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27 F.3d 980 63 USLW 2018, 25 Bankr.Ct.Dec. 1307,Bankr. L. Rep. P 75,968 In re MAXWAY CORPORATION;In re Danners, Incorporated, Debtors.MAURICE SPORTING GOODS, INCORPORATED, Plaintiff-Appellant,v.MAXWAY CORPORATION, by and through their OFFICIAL COMMITTEEOF UNSECURED CREDITORS; Danners, Incorporated, byand through their Official Committee ofUnsecured Creditors,Defendants-Appellees. No. 93-2552. United States Court of Appeals,Fourth Circuit. Argued May 11, 1994.Decided June 23, 1994. ARGUED: Kirby Todd Phillips, Waggoner, Hamrick, Hasty, Monteith & Kratt, Charlotte, NC, for appellant. Rebecca Sofley Henderson, Durham, Wyche, Story, Whitley & Henderson, L.L.P., Charlotte, NC, for appellees. ON BRIEF: John H. Hasty, G. Bryan Adams, III, Waggoner, Hamrick, Hasty, Monteith & Kratt, Charlotte, NC, for appellant. Albert F. Durham, Durham, Wyche, Story, Whitley & Henderson, L.L.P., Charlotte, NC, for appellees. Before WILKINS, Circuit Judge, and SPROUSE and CHAPMAN, Senior Circuit Judges. Affirmed by published opinion. Judge WILKINS wrote the opinion, in which Senior Judge SPROUSE and Senior Judge CHAPMAN joined. OPINION WILKINS, Circuit Judge: 1 During the bankruptcy proceedings of Maxway Corporation and Danners, Incorporated (collectively "Debtors"), the Official Committee of Unsecured Creditors (the Committee) brought this action against Maurice Sporting Goods, Incorporated (Maurice), seeking to avoid and recover, as preferential transfers, Debtors' payments to Maurice made during the 90-day period prior to the filing of Debtors' bankruptcy petitions. See 11 U.S.C.A. Sec. 547 (West 1993). The bankruptcy court granted summary judgment for the Committee in the amount of $543,038.92, and the district court affirmed. On appeal, Maurice principally argues that the Committee's avoidance action is barred by the two-year statute of limitations set forth in 11 U.S.C.A. Sec. 546(a)(1) (West 1993). We reject Maurice's contention that the two-year statute of limitations in Sec. 546(a)(1) begins to run against a debtor in possession upon the filing of a Chapter 11 bankruptcy petition and therefore affirm.I. 2 Debtors operated discount department stores in North Carolina. Maurice, a sporting goods distributor, sold merchandise to Debtors on open account. After receiving an invoice from Maurice, Debtors ordinarily made payment within four months, indicating the invoice paid on the check voucher. Between July 18, 1988 and September 7, 1988, a period in which Debtors were experiencing extreme financial difficulty, Debtors made eight separate payments to Maurice. 3 On October 7, 1988, Debtors voluntarily filed bankruptcy petitions for Chapter 11 reorganization. During the postpetition period, Debtors continued to manage their property as debtors in possession; a trustee was never appointed. Because postpetition revenues were insufficient to fund a reorganization, the bankruptcy court confirmed a plan in August 1990 that provided for the liquidation of Debtors' assets. The plan also authorized the Committee to file actions on behalf of Debtors for the benefit of the estate. 4 On July 25, 1991, over two years after the petitions were filed but prior to the close of the case, the Committee filed this action, seeking to recover the payments Debtors made to Maurice during the 90 days prior to the petition date. On cross motions for summary judgment, the bankruptcy court granted judgment in favor of the Committee in the amount of $543,038.92. After conducting a de novo review, the district court affirmed. II. 5 The issue presented is whether the two-year statute of limitations for bringing avoidance actions begins to run upon the "appointment" of a debtor in possession, i.e., the filing of a Chapter 11 bankruptcy petition. See 11 U.S.C.A. Sec. 1101(1) (West 1993). Although it is one of first impression in this circuit, numerous other courts have addressed this issue. Relying on the plain language of Sec. 546(a)(1), the overwhelming majority of bankruptcy and district courts have concluded that the two-year statute of limitations begins to run only upon the appointment of one of the trustees specified inSec. 546(a)(1). See, e.g., Bonwit Teller, Inc. v. Jewelmasters (In re Hooker Invs., Inc.), 162 B.R. 426 (Bankr.S.D.N.Y.1993) (listing cases); Brin-Mont Chems., Inc. v. Worth Chem. Corp. (In re Brin-Mont Chems., Inc.), 154 B.R. 903 (M.D.N.C.1993) (same). However, the four Courts of Appeals that have addressed the issue have concluded that the two-year statute of limitations begins to run against a debtor in possession upon the filing of a Chapter 11 bankruptcy petition. See U.S. Brass & Copper Co. v. Caplan (In re Century Brass Prods., Inc.), 22 F.3d 37 (2d Cir. 1994); Construction Mgt. Servs., Inc. v. Manufacturers Hanover Trust Co. (In re Coastal Group, Inc.), 13 F.3d 81 (3d Cir.1994); Upgrade Corp. v. Government Tech. Servs., Inc. (In re Softwaire Centre Int'l, Inc.), 994 F.2d 682 (9th Cir.1993); Zilkha Energy Co. v. Leighton, 920 F.2d 1520 (10th Cir.1990). We review de novo the conclusion of the bankruptcy court that the two-year statute of limitations in Sec. 546(a)(1) begins to run only upon the appointment of one of the trustees specified in Sec. 546(a)(1). See Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 399 (4th Cir.1992). A. 6 Statutory interpretation necessarily begins with an analysis of the language of the statute. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985). If the language is plain and "the statutory scheme is coherent and consistent," there is no need to inquire further. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). "[T]he sole function of the courts is to enforce [the statute] according to its terms." Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). Therefore, courts should venture beyond the plain meaning of the statute only in those rare instances in which there is a clearly expressed legislative intent to the contrary, Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 298-99, 78 L.Ed.2d 17 (1983), in which a literal application of the statute would thwart its obvious purpose, Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982), or in which a literal application of the statute would produce an absurd result, United States v. American Trucking Ass'ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940). 7 Section 546(a) of the Bankruptcy Code provides: 8 An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of-- 9 (1) two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or 10 (2) the time the case is closed or dismissed. 11 11 U.S.C.A. Sec. 546(a) (West 1993). The language of the statute is clear on its face. It requires that an avoidance action under Secs. 544, 545, 547, 548, or 553 be commenced within two years after the appointment of one of the specified trustees or prior to the close or dismissal of the case, whichever occurs earlier. Under this plain language, the Committee's avoidance action was timely filed because a trustee had not been appointed and the action was commenced prior to the close or dismissal of the case. 12 Nonetheless, Maurice argues that the plain language of the statute cannot be given effect because it is inconsistent with the language of 11 U.S.C.A. Sec. 1107(a) (West 1993) and contrary to clearly expressed legislative intent regarding the purpose of Sec. 1107(a). Section 1107(a) provides: 13 Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter. 14 11 U.S.C.A. Sec. 1107(a). By its terms, Sec. 1107(a) provides that the rights, powers, and duties conferred upon a debtor in possession are subject to any limitations on a Chapter 11 trustee. Moreover, in the legislative history of Sec. 1107(a), Congress stated that Sec. 1107(a) "places a debtor in possession in the shoes of a trustee in every way.... He is ... subject to any limitations on a chapter 11 trustee." S.Rep. No. 95-989, 95th Cong., 2d Sess. 116 (1978) reprinted in 1978 U.S.C.C.A.N. 5787, 5902. Maurice argues that an application of the plain meaning of Sec. 546(a)(1) is inconsistent with the language of and contrary to the legislative history of Sec. 1107(a) because it affords debtors in possession greater rights than Chapter 11 trustees. This is so, Maurice asserts, because debtors in possession are foreclosed from bringing avoidance actions only upon the close or dismissal of the case, whereas Chapter 11 trustees are additionally prohibited from commencing avoidance actions more than two years after their appointment. For this reason, Maurice contends that the two-year statute of limitations in Sec. 546(a)(1) should be interpreted as beginning to run upon the "appointment" of a debtor in possession. And, because the Committee's action was commenced more than two years after the filing of Debtors' petitions, Maurice maintains that the action is untimely. 15 We believe that Maurice's argument misconstrues the function and interaction of Secs. 546(a) and 1107(a). Section 1107(a) confers upon a debtor in possession the power and authority of a Chapter 11 trustee. The operation of Sec. 1107(a) thus provides standing to debtors in possession to seek the avoidance of preferential transfers even though Sec. 547 explicitly refers only to trustees. Subsections (b)-(g) of Sec. 546 similarly limit a trustee's--and through the operation of Sec. 1107, a debtor in possession's--authority to recover property under Secs. 544, 545, 547, 548, or 549. See 11 U.S.C.A. Sec. 546(b)-(g) (West 1993). However, unlike the remainder of Sec. 546, subsection (a) is not directed at limiting the authority of trustees to recover property. Rather, it establishes the time period within which an action may be commenced under Secs. 544, 545, 547, 548 or 553. It provides that no one may bring an avoidance action more than two years after the appointment of the enumerated trustees, not that the enumerated trustees may not commence an avoidance action more than two years after their appointment. Thus, by its terms, Sec. 546(a) applies both to trustees and debtors in possession, requiring both to commence an action within the specified time periods. The appointment of the various trustees is merely the starting point from which the clock begins to run in paragraph (1). Accordingly, an application of the plain language of Sec. 546(a)(1) is not, in our view, inconsistent with the general statutory scheme of functional equivalency established by the language and legislative history of Sec. 1107(a). 16 Also, our conclusion that the statute of limitations contained in Sec. 546(a)(1) does not begin to run upon the "appointment" of a debtor in possession is consistent with the congressional decision that the statute of limitations should not begin to run upon the appointment of some types of trustees. For example, when a debtor files a voluntary petition for relief under Chapter 7, the United States trustee appoints an interim trustee pursuant to 11 U.S.C.A. Sec. 701 (West 1993). See 11 U.S.C.A. Sec. 301 (West 1993). Yet, the two-year limitations period for filing an avoidance action does not begin to run until a permanent trustee is selected pursuant to 11 U.S.C.A. Sec. 702 (West 1993). See 11 U.S.C.A. Sec. 546(a)(1); see also Kroh v. T.R.M. Mfg. (In re Conco Bldg. Supplies, Inc.), 102 B.R. 190 (9th Cir. BAP 1989). Generally, interim trustees assume the limited role of performing administrative functions and preserving the assets of the estate. See 4 Lawrence P. King, Collier on Bankruptcy, p 701.01 (15th ed.1994). Thus, they are not as likely as Sec. 702 trustees to commence avoidance actions. Similarly, debtors in possession are not likely to commence avoidance actions, if for no other reason, because they are normally more interested in preserving relationships with their creditors than in maximizing the size of the estate. See, e.g., In re Hooker, 162 B.R. at 437; Katon v. International Bank of Miami, N.A. (In re Tamiami Range & Gun Shop, Inc.), 130 B.R. 617, 619 (Bankr.S.D. Fla.1991) (recognizing that a debtor in possession may also actively seek to delay a Chapter 11 administration beyond the two-year statute of limitations without pursuing an avoidance action in order to bar action against family or friends).1 In both instances, postponing the start of the two-year statute of limitations until the appointment of a trustee who is likely to bring an avoidance action prevents any delay in the commencement of such an action from penalizing unsecured creditors who would benefit from the recovery of a preferential or fraudulent transfer. B. 17 In sum, we recognize that the question presented is difficult and that legitimate policy arguments exist on both sides. However, the language of Sec. 546(a)(1) is plain; it provides that the two-year statute of limitations for bringing an avoidance action does not begin to run until the appointment of one of the trustees specified in Sec. 546(a)(1). Application of the plain language of Sec. 546(a)(1) in Chapter 11 cases would not produce an absurd result, nor is it inconsistent with the language of or contrary to the legislative history of Sec. 1107(a). And, as demonstrated by the operation of Sec. 546(a)(1) in Chapter 7 liquidations, interpreting the two-year statute of limitations as not beginning to run upon the filing of a Chapter 11 petition is consistent with the statutory scheme of limiting the time within which avoidance actions may be commenced without causing undue prejudice to unsecured creditors. Further, a debtor in possession's lack of incentive to prosecute avoidance actions establishes a strong basis for not beginning the clock upon the "appointment" of a debtor in possession.2 Additionally, we note that Maurice has not argued that the plain meaning of Sec. 546(a)(1) is contrary to the legislative history of Sec. 546(a)(1)3 or that an application of the plain language of the statute would thwart an obvious purpose of Sec. 546(a)(1). For these reasons, we conclude that the bankruptcy court properly interpreted the two-year statute of limitations in Sec. 546(a)(1) as beginning to run only upon the appointment of one of the trustees specified in Sec. 546(a)(1). Because a trustee had not been appointed when the action was filed, the Committee's action is not time barred. III. 18 After reviewing Maurice's remaining contentions regarding the denial of its motion to strike and the propriety of the grant of summary judgment for the Committee, we conclude that they are without merit. Accordingly, we affirm. 19 AFFIRMED. 1 Maurice asserts that a potential conflict of interest or lack of diligence on the part of a debtor in possession does not support a plain meaning interpretation of Sec. 546(a)(1) because Congress has provided other remedies in the event that a debtor in possession refuses to bring an avoidance action or causes delay in the administration of the estate. For example, a trustee may be appointed in a Chapter 11 reorganization for cause at any time, 11 U.S.C.A. Sec. 1104(a)(1) (West 1993); if a debtor in possession unreasonably delays the administration of the estate, the case may be converted to a Chapter 7 liquidation, 11 U.S.C.A.Sec. 1112(b)(3) (West 1993); and if a debtor in possession fails to bring an avoidance action, a creditors' committee may be appointed to bring an action on behalf of the estate, 11 U.S.C.A. Sec. 1103(c)(2) (West 1993). None of these provisions, however, remedies the time lost due to any impropriety on the part of the debtor in possession 2 Moreover, at least one court has concluded that the doctrine of laches applies to limit the time period within which a debtor in possession may bring an avoidance action. See In re Brin-Mont, 154 B.R. at 907. Because Maurice did not raise the doctrine of laches on appeal, we need not address this issue 3 The legislative history of Sec. 546(a)(1) is at best inconclusive. See S.Rep. No. 95-989, 95th Cong., 2d Sess. 87 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5872. The only other available evidence of congressional intent suggests that Congress did not intend the two-year statute of limitations to begin to run against debtors in possession upon the filing of a petition. Under the Bankruptcy Act, a trustee had only two years to bring a preference action, but this two-year period was tolled during the pendency of a reorganization case. In re Hooker, 162 B.R. at 436. When Congress enacted the Bankruptcy Code, it eliminated the tolling provision for trustees, but did not address such a change for debtors in possession. The absence of any congressional action on this point evinces an intent to continue to "toll" the limitations period in Chapter 11 reorganizations unless and until a trustee is appointed. See Dewsnup v. Timm, --- U.S. ----, ----, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992) (stating that courts should be reluctant to "interpret the Code, however vague the particular language under consideration might be, to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history") Further, by the time Congress promulgated amendments to the Bankruptcy Code in 1984 and again in 1986, bankruptcy courts had held that the two-year statute of limitations in Sec. 546(a)(1) does not begin to run in Chapter 11 cases upon the "appointment" of a debtor in possession. See, e.g., Steel, Inc. v. Berry (In re Steel, Inc.), 55 B.R. 426 (Bankr.E.D. La.1985); Alithochrome, Corp. v. East Coast Finishing Sales Corp. (In re Alithochrome, Corp.), 53 B.R. 906 (Bankr.S.D.N.Y.1985); Boatman v. E.J. Davis Co. (In re Choice Vend, Inc.), 49 B.R. 719 (Bankr.D.Conn.1985); J.E. Jennings, Inc. v. William Carter Co. (In re J.E. Jennings, Inc.), 46 B.R. 167 (Bankr.E.D.Pa.1985); Edleman v. Gleason (In re Silver Mill Frozen Foods, Inc.), 23 B.R. 179 (Bankr.W.D. Mich.1982); One Mktg. Co. v. Addington & Assocs. (In re One Mktg. Co.), 17 B.R. 738 (Bankr.S.D. Tex.1982). If Congress had intended a contrary interpretation of Sec. 546(a)(1), it could have amended Sec. 546(a)(1) to overrule these cases--particularly in 1986, when it amendedSec. 546(a)(1) by adding the reference to Sec. 1202. But, it did not. We recognize that both of these arguments rely on congressional silence or inaction and as such they constitute modest evidence of what Congress intended. However, as we stated at the outset, these episodes of silence or inaction constitute the only available evidence of congressional intent.

315 F.2d 695 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS,AFL-CIO, Respondent. No. 14004. United States Court of Appeals Third Circuit. Argued Dec. 4, 1962.Decided March 28, 1963. Hans J. Lehmann, Washington, D.C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., N.L.R.B., on the brief), for petitioner. Michael Breitkopf, Newark, N.J. (John J. Mooney, New York City, on the brief), for respondent. 1 Before BIGGS, Chief Judge, and STALEY, Circuit Judge, and LEAHY, District Judge. 2 LEAHY, District Judge. 3 This case is here upon the petition of the National Labor Relations Board under 10(e) of the National Labor Relations Act, 29 U.S.C. 151 et seq., for enforcement of its order directed at Local 825, International Union of Operating Engineers, AFL-CIO (referred to as the Union). The unfair labor practices are alleged to have occurred in Elizabeth, New Jersey. The question for decision is whether substantial evidence supports the Board's finding that the Union engaged in unlawful secondary activity under 8(b)(4)(ii)(B) of the Act by refusing to refer employees to Ernst and Ochs (more particularly identified infra)1 with the plan of forcing them to cease doing business with R. G. Maupai Co., Inc., in order to force Maupai to recognize and bargain with the Union. 4 By its fact-finding the Board concluded the Union had violated the Act by refusing to refer its members to a neutral employer-- Ernst-- when obligated by contract to do so and with the design to force the employer to cease doing business with Maupai and thus force Maupai to recognize and bargain with the Union. This is the master fact found by the Board. 5 It is difficult to give a succinct exposition to the Board's subsidiary findings of fact. As Trial Examiner Funke, for example, concluded: 'Much of the testimony in this case is obscure, confused, contradictory and, on some vital issues, meagre to a point approaching absence. From such an olio, decision must nevertheless be reached.' The narrative of what happened may be, of necessity, somewhat lengthy. 6 Maupai manufactures and installs hearing, air conditioning, and plumbing products. Maupai was a member of the Mechanical Contractors Association which had a collective labor agreement with the Pipefitters' Union2 and, under the agreement hired as its employees members of that union. In June 1959, Maupai contracted with the Housing Authority of the City of Elizabeth, New Jersey, to install a hearing system in an apartment house. In April 1960, as part of its operations it used a gasoline driven electric welding machine operated by a welder who was a member of the Pipefitters. The Union's shop steward, Hayes, directed Maupai's foreman, Lakin, to hire and assign an operating engineer for the welding machine. Lakin said he already had a pipefitter operating the machine. Later the Union's business agent, Pierson, phoned Maupai and likewise stated an engineer should be on the machine. 7 Maupai had a subcontract with Ernst for the excavating work covering the digging of a hold for the installation of a 15,000 gallon fuel tank in the heating plant. Ernst rented a crane, in connection with the excavating work, from Ochs. Ernst, shortly before this, signed a contract and forwarded it to the Union under which it was provided 'whenever desiring to employ workmen * * * employer shall call upon the Union * * * for any such workmen as the employer may, from time to time, need and the Union * * * shall refer such workmen from the open employment list.' On July 6, 1960, Ochs' crane was delivered to the job site with Zahn the operator and an oiler; but the crane was not operated that day because the oiler had not paid his dues with Local 825. The next day the crane was operated by Zahn and another oiler, Williams, both of whom had been referred to the job by the Union. But on the next day a work stoppage occurred-- Zahn did not show up for work, and Williams and Esposito, both Union members, refused work. Ernst was there at the time. He asked Corrigan, a Union member and a master mechanic for another contractor on the project, for an explanation. Corrigan said the men did not want to work because there was no labor agreement between the Union and Maupai. Ernst asked two other workmen if this were true and they said it was. Maupai's president came to the job site. he was told Esposito and Williams would not work because his company had no agreement with the Union. Maupai said he would not recognize the Union; then Williams said 'he would not recognize Maupai.' Ernst communicated with the Union's hiring hall, but was unable to get any other workmen. He then phoned Pierson, the Union's business agent, repeated the request for workmen, but Pierson refused to refer anyone until Maupai signed a contract and renewed his demand that Maupai should employ an operating engineer on the welding machine. The next day Maupai asked Pierson on the phone why the work stoppage had occurred, and he was told the same story Pierson had told Ernst. Then on July 25, Pierson met with Maupai's representatives to see if the men would go back to work. Pierson said the men would return to work if Maupai would sign an agreement with the Union. Bargaining was resumed-- e.g., whether the unfair labor practice charges would be withdrawn, whether the same dispute would ever arise again, etc. The meeting ended. No agreement was reached by the parties. Thereafter Ernst made further requests of the Union for men to work on the project. All requests were refused by the Union. 8 The Board was in agreement with the Trial Examiner that the Union did not start the work stoppage of Ernst's employees on July 8; since Maupai had no contract with the Union, they had ceased to work themselves because they were concerned about their pension and welfare funds. The Board dismissed the complaint and found no violation of 8(b)(4)(i)(B) of the Act; it did find, however, the Union, under its agreement, was bound to refer its members for employment to Ernst; it refused to do so; and taht the object of the refusal was to force Ernst to cease doing business with Maupai so as to force Manupai to recongize and bargain with the Union. Such conduct, the Board found (contrary to the Trial Examiner) constituted a violation of the Act, 8(b)(4) (ii)(B). The Board then ordered respondent to cease and desist and to post appropriate notices. 9 1. The relevant part of 8(b)(4), as amended by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 158(b)(4)(ii)(B), clearly states it to be an unfair labor practice for a union or its agents: 10 '(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where * * * an object thereof is-- 11 '(B) forcing or requiring any person to cease * * * doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 * * *.' 12 The statute in its present form deals with secondary boycotts and its provisions are not restricted to the use of force or violence as a means of bringing pressure against the secondary employer, but includes economic sanctions also.3 N.L.R.B. v. Highway Truckdrivers and Helpers, Local No. 107, etc., 3 Cir., 300 F.2d 317. Thus, it is unlawful to 'coerce a secondary employer * * * by denying him access to the craftsmen on the hiring hall list.'4 The langauge of the statute is without ambiguity and makes it unlawful to refuse to refer under a hiring hall arrangement, since such a refusal was one of the evils contemplated to be remedied by the 1959 amendments to the Act. In short, the Union's refusal to refer employees was a device to exert secondary pressure against Maupai and to this extent such refusal was unlawful. 13 2. The Board found-- we think correctly-- that Maupai, the primary employer, was engaged in commerce under the Act, as was Ochs, from whom Ernst rented the crane needed for the excavation work to be done by Ernst, since both employers made substantial purchases of machinery and materials out of state. N.L.R.B. v. Plumbers Union of Nassau County, etc., 2 Cir., 299 F.2d 497, in a factually similar situation, held it not necessary for the Board to show that each contractor on a project to engaged in commerce, but sufficient to show 'That a work stoppage by the building crafts on the job would substantially affect the flow of materials into the state for incorporation into the building under construction, and that consequently * * * the general contractor was so engaged.' (p. 500). And even though some of the subcontractors 'may not have been shown to have been in commerce, a dispute stopping their work on the job is properly held to affect commerce,' citing N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; International Brotherhood of Electrical Workers, etc. v. N.L.R.B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299; and Local 74, etc. v. N.L.R.B., 341 U.s. 707, 71 S.Ct. 966, 95 L.Ed. 1309.5 As we have said before, 'what affects the building industry in a given community affects interstate commerce,' and while 'one small stoppage may not have an immediately perceptible effect upon the flow of the whole stream * * * may small stoppages will have such effect.' Shore, etc. v. Building & Construction Trades Council, 3 Cir., 173 F.2d 678, 8 A.L.R.2d 731. 14 There is substantial evidence to support the Board's finding that the refusal of the Union to furnish workers to Ernst brought about a stoppage of the excavation work. The July 25 meeting was held between Pierson, the Union's business agent, and Maupai's president, for the specific purpose of attempting to bring the men back to work, but with no such result. After the issuance of the District Court's temporary injunction,6 the Union ordered Esposito back to work for Ernst. The record supports the Board's finding that the Union's refusal to furnish men resulted in a stoppage of work on the job site, and this clearly affected commerce under the authorities cited, supra. 15 3. The Union had a contractual duty to refer employees to Ernst which it violated. The Union through its business manager asked Ernst to sign the contract, which he did, and transmitted his signed copies through Corrigan to the Union. There never was any dispute between the Union and Earnst over the contract. The Union supplied men to Ernst before July 7, 1960. It sent him forms needed for making payments to the pension and welfare funds. That the Union failed to sign the agreement is immaterial for any written contract though signed only by one of the parties binds the other if he accepts it and both act in reliance on it as a valid contract.7 Justice Holmes once said: 'Conduct which imports acceptance is acceptance or assent, in the view of the law, whatever may have been the actual state of mind of the party.'8 And as Lord Chancellor Sugden wrote:9 'Tell me what you have done under such a deed and I will tell you what the deed means.' It is clear the Union violated its duty to refer employees to Ernst. 16 4. The Union's object, as the Board correctly found, was to cause a stoppage of work of the subcontractor with Maupai in order to force Maupai to enter into a contract with the Union. The record supports the Board's finding the Union wanted one of its members to operate Maupai's welding machine and to have a contract with Maupai covering the operation. In fact, the Union made such a demand; Pierson, the business agent, reiterated it several times; it was also amitted before the District Court. The record shows the Union's pressure on Ernst, a neutral employer, by shutting off his labor supply. In conclusion, we think the coercive action of the Union against Ernst for the purpose of obtaining recognition and bargaining rights from Maupai was in violation of 8(b)(4)(ii)(B) of the Act; and there is substantial evidence to support the Board's findings and conclusions. 17 A form of decree should be submitted enforcing the order of the Board. 1 It was agreed at oral argument that due to the meager evidence relating to Ochs, he should assume no role in this litigation 2 United Association of Pipefitters and Apprentices, Local 475 3 S.Rep. No. 187 on Senate Bill S. 1555, pp. 58-59, I. Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 454-455 (hereafter referred to as 'Leg.Hist.'), U.S.Code Congressional and Administrative News 1959, p. 2318 This Court made a complete examination of the pertinent legislative history in N.L.R.B. v. Highway Truckdrivers & Helpers, Local No. 107, 3 Cir., 300 F.2d 317, 320-321, and concluded 8(b)(4)(ii)(B) prohibits economic sanctions against a secondary employer. 4 II. Leg.Hist. 1581. For proposed amendments and debate on broadening the scope of the statute, see I. Leg.Hist. 475, 942; II. Leg.Hist. 975-976; 1194; 1198; 1523, 1851; I. Leg.Hist. 619, 681, 1700 5 Cf. N.L.R.B. v. United Brotherhood of Carpenters & Joiners of America, etc., 6 Cir., 181 F.2d 126, 130, aff'd Local 74, etc. v. N.L.R.B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309: 'A secondary boycott against a contractor engaged solely in intrastate activities to compel it to cease doing business with (an employer) engaged primarily in interstate business constituted an unfair labor practice under section 8(b)(4)(A).' See, too, United Brotherhood of Carpenters, & Joiners of America, etc. v. Sperry, etc., 10 Cir., 170 F.2d 863, 868 6 Cuneo v. Local 285, International Union of Operating Engineers, D.C.N.J., No. 653-60, where Judge Smith issued a temporary injunction which ordered the Union to refer prospective employees to Ernst. The entire testimony was incorporated into the record before the Board in the case at bar 7 1 Williston on Contracts, 3rd ed. 90A; Corbin on Contracts, P75; Girard Life Insurance and Trust Co. v. Cooper, 162 U.S. 529, 543, 16 S.Ct. 879, 40 L.Ed. 1062; First National Bank of Sleepy Eye, Minn. v. Sleeper, 8 Cir., 12 F.2d 228; J.P.C. Petroleum Corp. v. Vulcan Steel Tank, Corp., 10 Cir., 118 F.2d 713, 716 See, too, Smith v. Onyx Oil & Chemical Co., 3 Cir., 218 F.2d 104, 108, 50 A.L.R.2d 216. 8 Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N.E. 495. See, too, Corbin, loc. cit. pp. 235-236 9 1 Drury & Warren (Ir.Rep.) 353, 368

643 S.W.2d 563 (1982) 278 Ark. 94 Emma HURST, Appellant, v. Ray Hullen RICE et al., Appellees. No. 82-164. Supreme Court of Arkansas. December 20, 1982. Daily, West, Core, Coffman & Canfield by Ben Core, Fort Smith, for appellant. Swindell & Bradley by Benney E. Swindell, Clarksville, for appellees. *564 DUDLEY, Justice. Both parties to this appeal claim forty acres of mineral rights in Johnson County. Gas and coal are now at stake. In 1919 Rebecca Rogers Smith deeded her dower interest in the land to W.A. Hill. In 1920 he conveyed his interest in the surface "with all coal and mineral reserved, all right to mine, strip or enter and remove any and all coal is reserved." Appellees, the Hills, claim their title to the minerals through W.A. Hill. The mineral rights were not properly subjoined with the surface rights on the tax books in the years material to this appeal and, in 1929, the "Mineral Titles" in the name of W.A. Hill were forfeited for non-payment of the 1926 taxes. Appellant, Emma Hurst, claims title to all minerals by virtue of a State mineral tax deed obtained by her husband in 1930 for non-payment of the 1926 tax on minerals. The tax deed was confirmed in 1938 in an ex parte proceeding. In 1966, appellant, Emma Hurst, leased her interest to a drilling company as did others. Various leases were then pooled and unitized into a drilling unit and producing gas wells were drilled. In 1967 the producing gas companies filed a suit asking for a declaratory judgment between the parties to this appeal, and others, to determine ownership of the oil and gas and entitlement to royalties. After both parties to this appeal had answered, the trial court in 1967 decreed that appellant, Emma Hurst, and her husband, since deceased "were the owners of oil and gas in and under" the tract. In 1981 appellant, Emma Hurst, filed a petition to quiet title to the oil, gas and other minerals. She alleged that coal was being removed pursuant to a lease with the owner of the surface lands. The defendant removing the coal and the defendants owning the surface lands were dismissed without prejudice and are not parties to this appeal. The trial court held: (1) the 1967 decree decided only that appellant Hurst was entitled to oil and gas royalties that would accrue from the wells then producing; (2) the tax deed and confirmation, under which appellant claims, were invalid; and (3) the title to all coal, gas, oil and other minerals is owned by the heirs of W.A. Hill, under the mineral reservation, subject only to the right of appellant Emma Hurst to receive royalties from the then producing wells. Only Emma Hurst appeals. There is no cross-appeal. Appellant first contends that the chancellor erred in interpreting the 1967 decree to establish in her only a right to receive a royalty on the wells then producing. We agree. Both of the parties to the present action were before the court in 1967, ownership of the oil and gas was at issue and there was a final adjudication on the merits. That judgment decreed that appellant and her husband were "the owners of the oil and gas in and under the lands described...." After that term of court lapsed, the trial court lost jurisdiction to modify the judgment except for grounds which are not applicable to this case. Ark. Stat.Ann. § 29-506 (Repl.1962), superseded by ARCP Rule 60. The time to modify has passed. There was no appeal. The time to appeal has passed. The matter of ownership of the oil and gas is now res judicata. As we stated in Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980): The doctrine of res judicata is accepted as a rule of inflexible absolute law in practically every jurisdiction. If the judgment is entitled to res judicata, it is conclusive as to the cause of action involved no matter how "unfair" or "patently erroneous" it may now seem to the court examining the judgment. 65 Harv. L.R. 818. There must be an end to litigation at some point; and, if there has been one fair trial on the merits of a case, that is all that is required. Thus, the trial court erred in modifying the 1967 decree. The distinction between the 1967 decree and the 1982 decree is significant. The 1967 decree gave appellant ownership of the oil and gas but the 1982 decree modified that ownership to a right to *565 royalty from a lease. Appellant's award under the 1967 decree gave her the incidents of ownership of oil and gas including the right to sell the same, to explore for and develop the minerals, to lease for exploration and development, to receive income therefrom in the form of delay rentals and royalties either for shut-in or production, to pass by will or inheritance and to occupy as much of the surface as is reasonably necessary for mining and drilling purposes. H. Williams & C. Meyers, Oil & Gas Law §301 (1981). However, under the 1982 decree the rights of appellant were modified and appellant was held to possess a right only to receive payment of royalties from all wells producing in 1967. Thus, appellant would have only a right of contract to receive a payment based upon production under a lease and nothing more. Appellant's interest would terminate when the lease terminated. Id. §§ 302 and 303; see also, Hickman, Oil and Gas—Partition—Interest of Lessee, 11 Ark.L.Rev. 186 (1957). The decree now on appeal is modified to reflect that the appellant is the owner of the oil and gas. The 1967 decree was the result of a suit for a declaratory judgment filed by the production companies. It involved only the ownership of oil and gas. It did not involve title to the coal and other mineral rights. In the 1982 decree now before us the appellees, as heirs of W.A. Hill, were held to be owners of the coal and other minerals. We affirm. The claim of appellant, Emma Hurst, to the coal and mineral rights is based on the mineral tax deed. The mineral assessments for the year of the tax forfeiture were not subjoined to the assessments of the surface rights. For a mineral estate assessment to be valid, the mineral estate listing on the tax books must be subjoined to the surface estate. Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982). Therefore, the State mineral tax deed was void. The 1938 ex parte attempt to confirm the tax title did not constitute an adjudication against W.A. Hill because he was not made a party to that action and his reservation of mineral rights was of record. One seeking confirmation of a mineral title has constructive knowledge of a previous deed of record and is required to make that prior deed holder a party to the proceeding if the prior deed holder is to be bound. Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W.2d 858 (1928). Appellant Emma Hurst also claims that she has been in adverse possession of the minerals. A void mineral tax deed can be sufficient color of title for the purpose of determining title by adverse possession. Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946). However, to constitute adverse possession of constructively severed minerals, there must be a continuous user of the minerals for the statutory period. Even a sporadic user is not sufficient. Skelly Oil Co. v. Johnson, supra, citing Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 A.L.R. 1436 (1929). Appellant's only proof about mining was that "way back there" some people "around town went there and dug holes as they call them and got some [coal] out to burn." Such limited use is not sufficient to start the running of the statute of limitations. See, e.g., H. Williams & C. Meyers, Oil & Gas Law § 224.4 n.6 (1981). There was no showing that the appellees or their predecessors in title were put on notice of a claim of adverse possession of all minerals by appellant. Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W.2d 826 (1961). See also, Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949), discussed in H. Williams (1981). In addition, appellant contends that she has been drawing gas royalty for fifteen years and this production constitutes adverse possession for all minerals. We decline to so hold. Such a claim from gas production goes to the gas only and the drilling and production of a gas is not adverse to the mining or stripping of coal, a solid mineral. We need not decide if drilling and producing a gas or other liquid mineral is ever adverse to the drilling of any solid mineral. Nor need we decide whether the mining of one solid mineral is *566 adverse to that mineral alone or to the mining of all other minerals. Likewise, we do not decide whether the mining or producing of one mineral will be treated as adverse to all minerals when a claim is made to all minerals. See H. Williams & C. Meyers, Oil 224.4 (1981). We affirm the trial court's holding that appellant, Emma Hurst, does not hold title to the coal and other minerals, other than oil and gas, by virtue of the 1967 decree, the State mineral tax deed or adverse possession. In 1919 W.A. Hill purchased the dower interest of Rebecca Rogers Smith in the land. In 1920 he conveyed his interest in the surface "with all coal and mineral reserved, all right to mine, strip or enter any and all coal is reserved." Although there is no testimony by or about those grantors or grantees, the Hill deeds are abstracted in a properly certified abstract of title. The abstract is prima facie evidence of the facts recited in it. Ark.Stat.Ann. § 71-111 (Repl.1979). Thus the trial court was correct in ruling that appellees' claim based upon the reservation must prevail as between these parties. In oral argument appellant Emma Hurst pointed out that appellees, the alleged heirs of W.A. Hill, have failed to prove that he is dead or that they are his heirs. While such proof is lacking, it does not affect appellant's title in this case. If W.A. Hill is in fact deceased, a determination of heirship may be had, but that issue is not now before us. All that is before us is whether the claim based on the reservation in W.A. Hill prevails as between appellant and appellees. Appellant Emma Hurst also contends that the trial court erred in dismissing without prejudice the claim of appellees Rice to the coal. Since we affirm the ruling that appellant Emma Hurst owns no rights to the coal, the issue is moot to appellant. Appellees does not question the dismissal and therefore we do not address the point. Affirmed as modified. PURTLE, J., not participating.

546 S.W.2d 828 (1976) Robert BLACKWELL, Appellant, v. STATE of Tennessee, Appellee. Court of Criminal Appeals of Tennessee. October 13, 1976. Charles G. Wright, Jr., Chattanooga, for appellant. R.A. Ashley, Jr., Atty. Gen. David L. Raybin, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Thomas J. Evans, Asst. Dist. Atty. Gen., Chattanooga, for appellee. OPINION DUNCAN, Judge. In this appeal, the appellant Robert Blackwell, complains of a judgment rendered on November 25, 1975, by the Hamilton County Criminal Court, wherein his probation was revoked. On October 29, 1970, the appellant entered pleas of guilty in 2 cases in the Hamilton County Criminal Court to the offense of grand larceny in each case, receiving a penitentiary sentence of not less than 3 years nor more than 3 years in each case, the sentences to run concurrently. On November 30, the appellant's sentences were suspended and he was placed on probation. *829 Apparently, the supervision of the probation was transferred to the State of Florida. In December, 1972, the appellant was arrested in Florida and charged with robbery. On February 9, 1973, the Hamilton County Criminal Court ordered that a capias be issued for the appellant's arrest for an alleged probation violation. On June 4, 1973, the appellant entered a plea of guilty to the Florida robbery charge, and received a penitentiary sentence of 5 years. The next development occurred on May 20, 1974, when a detainer was lodged by Tennessee with the Florida authorities. The appellant alleges that after the detainer was filed, he took proper steps to comply with the Interstate Compact on Detainers, but that the Tennessee authorities failed to return him to Tennessee and try him within 180 days as required by the Act. At any rate, the appellant was paroled in Florida on October 31, 1975, and subsequently was returned to Tennessee on November 4. After a hearing on November 25, the trial court revoked his probation. The appellant argues that the failure of the Tennessee authorities to comply with the Interstate Compact on Detainers denied him a speedy trial. We do not agree. Tennessee Code Annotated § 40-3901 provides, in part, as follows: "Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; ... ." In our opinion, the detainer involved herein was not based on any "untried indictment, information or complaint"; instead, it was based on a probation violation capias. A careful study of the Interstate Compact on Detainers convinces us that it applies only to an untried criminal offense which is the basis of a charge laid in an indictment, information, or complaint. We interpret the terms "untried" and "complaint," as used in the Compact, as being synonymous with, or at least in the nature of, an untried indictment or information, since some jurisdictions use the term "complaint" in lieu of the terms "indictment" or "information." The term "untried" refers to matters which can be brought to a full trial. In a probation revocation proceeding the trial has already been held, and the defendant has been convicted. In such a hearing, the defendant comes before the court in a completely different posture than he does at his trial before conviction. In discussing a similar situation as it pertained to a parolee's rights at a parole revocation hearing, the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 2604-05, 33 L.Ed.2d 484 (1972), said: "We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. ..... "We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Our interpretation of the terms "untried" and "complaint," as they are used in the Interstate Compact on Detainers, is supported by rulings in other jurisdictions. People v. Diamond, 59 Mich. App. 581, 229 N.W.2d 857 (1975); People v. Hallaway, 39 Mich. App. 74, 197 N.W.2d 335 (1972); Buchanan v. Michigan Department of Corrections, *830 50 Mich. App. 1, 212 N.W.2d 745 (1973); People v. Batalias, 35 A.D.2d 740, 316 N.Y.S.2d 245 (1970). In Buchanan v. Michigan Department of Corrections, supra, which involved a parole violation detainer, the Michigan court expressly held that, "The provisions of the interstate agreement on detainers are not applicable in cases of parole violation detainers." In People v. Hallaway, supra, the Michigan court, quoting from the New York case of People v. Batalias, supra, said: "a charge of violation of probation is not in our opinion an `untried indictment, information or complaint'... ." From the record, we assume that the appellant was being supervised on his probationary sentences in Florida under authority of the provisions of T.C.A. § 40-3626, which allows a person placed on probation or parole in this State to be supervised in another state which has entered into an agreement with Tennessee to do so. We recognize that this agreement also provides that the sending state may retake the probationer or parolee without any formalities, unless he is suspected of having committed a crime in the receiving state, in which event he shall not be retaken without the consent of the receiving state, until discharged from prosecution or from imprisonment for such offense. In our opinion, for the appellant to have been returned to Tennessee any earlier than he was, it would had to have been under the provisions of this statute, and only then if Florida had consented. It appears from the record that the Tennessee authorities made no effort to obtain Florida's consent. Notwithstanding, unlike the 180 day provision of the Interstate Compact on Detainers, there are no time requirements contained in T.C.A. § 40-3626. Thus, since Tennessee did not invoke or attempt to invoke the provisions of this statute, we must consider such failure in light of the appellant's complaint that he was denied a right to a speedy trial. Tennessee Code Annotated § 40-2907 provides that when the trial judge learns of a possible violation of probation he issues a warrant for the arrest of the probationer. After the probationer is arrested, the statute requires that the probation hearing be heard "at the earliest practicable time." In his brief, the appellant cites Allen v. State, 505 S.W.2d 715 (Tenn. 1974) for the proposition that the right to a speedy trial is applicable to a probation revocation proceeding, but as we shall later point out, there are marked differences between the Allen case and appellant's situation. However, even accepting the Allen proposition, and considering the balancing tests enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we see no merit to the appellant's speedy trial complaint. Obviously, the delay in the present case was brought about by the appellant's own misconduct that resulted in his incarceration in the Florida penitentiary. Although the appellant requested a speedy hearing, he was not readily accessible to the Tennessee authorities because of his confinement in a foreign jurisdiction. Moreover, we do not think the appellant was prejudiced by the delay involved. His violation (the robbery conviction) was a matter of record. He admitted it at the hearing. In no way did the delay hinder his efforts to defend himself. As a matter of fact, the appellant makes no allegations that the delay impeded his efforts to defend his case in any manner. Thus, the result would have been the same had his revocation hearing been held on the day after his conviction in Florida. His argument that he may have missed an opportunity to have the trial judge run his revoked sentences concurrent with his Florida sentence is not sufficient to show prejudice in this case. The possibility that the trial judge would have so acted after he had already run the appellant's original sentences concurrently and after the appellant had committed a robbery while on probation is so unlikely as to suggest its total impossibility. Further, the detainer had no effect on the appellant's Florida prison status or privileges. At the hearing, the appellant testified that while this detainer *831 was in effect, he was in a band which traveled throughout the State of Florida without a guard. Further, in our opinion, the appellant can take no comfort from the holdings of Morrissey v. Brewer, supra, or Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the former requiring a prompt parole revocation hearing, and the latter applying the Morrissey principles to probation revocation hearings. At his revocation hearing in the present case, the appellant admitted his violation. In the Morrissey case, the court said: "If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter." As previously indicated, the case of Allen v. State, supra, is distinguishable from the present case. In Allen, the court was dealing with an intrastate prisoner. The Allen court pointed out that the prisoner "was readily accessible throughout the period." Allen, who was incarcerated in the Tennessee penitentiary during the entire time, was in custody of the Tennessee authorities from the outset. The present case, however, involves an interstate prisoner; one who was not in Tennessee's custody until he was returned to this jurisdiction. He was not available until that time. Further, in Allen, the court found prejudice; in the present case, we find no prejudice. The judgment of the trial court is affirmed. DAUGHTREY, J., and JERRY SCOTT, Special Judge, concur.

285 Pa. Superior Ct. 79 (1981) 426 A.2d 1150 Richard D. ADAMS, Appellant, v. NATIONWIDE INSURANCE COMPANY. Superior Court of Pennsylvania. Argued March 5, 1980. Filed March 6, 1981. *80 Delano M. Lantz, Harrisburg, for appellant. Lee C. Swartz, Harrisburg, for appellee. Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ. CERCONE, President Judge: This is an appeal from an order granting summary judgment on the pleadings in favor of the defendant, Nationwide Insurance Company (Nationwide), and against the plaintiff, who is defendant's insured motor vehicle accident victim. Once again we embark upon the stormy sea which is Pennsylvania's No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 P.S. *81 § 1009.101 et seq. The question before us today is whether a motor vehicle accident victim injured while driving his own automobile, but within the scope of his employment, is entitled to receive work-loss benefits from his no-fault insurance carrier to make up the difference, (or "net loss") between his actual wage loss and benefits conferred on him under the Workmen's Compensation Act. More specifically, we are asked to consider an apparent conflict between Section 206 of the No-Fault Act, 40 P.S. § 1009.206 (1974), and the Workmen's Compensation Act, 77 P.S. § 481(a) (1974). We have considered the question before in Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 291 (1978) and again in Wagner v. National Indemnity Company, 266 Pa.Super. 112, 403 A.2d 118 (1979) aff'd 492 Pa. 154, 422 A.2d 1061 (1980) although both those cases were decided under facts clearly distinguishable from those in this case. Although the record at this juncture is sparse, the operative facts as pleaded are these. Adams was employed as a zone manager for Standard Motor Products and was acting within the scope of his employment when the accident occurred. He was driving his own automobile, which was insured through Nationwide at his personal expense. Under the terms of the policy, Adams was entitled to claim eighty percent of his gross wages less any Workmen's Compensation benefits he received.[1] From September 22, 1976, until October 25, 1978, Nationwide paid Adams $37.40 per week pursuant to the insurance policy's terms. On the latter date, nationwide terminated its payments to Adams based on our decision in Turner v. SEPTA, supra. Adams brought suit in the Court of Common Pleas of Dauphin County seeking the reinstitution of the $37.40 in no-fault benefits. The lower court entered judgment on the pleadings in favor of Nationwide basing its decision on Turner v. SEPTA, supra, and Wagner v. National Indemnity Company, supra. *82 Turner v. SEPTA was decided on the following facts. Turner, a bus driver employed by SEPTA, was injured in a collision between his bus and another SEPTA vehicle. He applied for workmen's compensation, but was denied its benefits because he refused to submit to a medical examination. He then filed suit against SEPTA — self-insurer — seeking to recover under its no-fault coverage. Our decision turned on Section 303 of the Workmen's Compensation Act, 77 P.S. § 481(a) which was amended five months after the adoption of the No-fault Act. Section 303 reads in part: The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees . . . . 77 P.S. § 481(a). As here, the conflict in Turner v. SEPTA was between the exclusivity provision of the Workmen's Compensation Act and Section 206 of the No-fault Act, which reads: [A]ll benefits or advantages . . . that an individual receives or is entitled to receive from social security, . . . workmen's compensation, any state required temporary nonoccupational disability insurance and all other benefits received by or available to an individual because of an injury from any government . . . shall be subtracted from loss in calculating net loss. 40 P.S. § 1009.206(a). We concluded that the later adopted Workmen's Compensation Act was dispositive of the issue and hence that Turner was barred from recovery under the No-fault Act because of the former's exclusivity provision. The operative facts in Wagner v. National Indemnity Company, supra, were essentially the same as in Turner v. SEPTA, the only difference being that in the former case the accident victim's employer was not a self-insurer. In that case the accident victim's estate sued the insurance carrier of the victim's employer. We followed the decision in Turner v. SEPTA and refused to allow the estate to recover in excess of workmen's compensation benefits. We saw no reason to distinguish between a self-insured employer and an employer who contracted for the insurance of its *83 vehicles with another. The important elements in those two cases were that the vehicle was owned by the employer and the injury occurred within the scope of employment. Today's case, however, is analogous neither to Turner v. SEPTA nor to Wagner v. National Indemnity Company, but rather to a situation hypothesized in Turner v. SEPTA. We said there: It may well be, as appellee argues, that Section 206 is intended to provide for subtraction of workmen's compensation benefits received from the employer, from any no-fault recovery obtained by the employee from the insurer of a vehicle owner other than the employer. This could only occur if the employee were injured while using his own car or that of a third party in the course of conducting his employer's business, Id., 256 Pa.Super. at 48, 389 A.2d at 594. Furthermore, the Supreme Court in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980) (citing Turner v. SEPTA, supra, and Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 28, n. 6, 402 A.2d 1058, 1061 n. 6 (1979) indicates that the decision we reach today is the correct one. The Court states there: Under no-fault, a party may not be sued in tort except where the victim's basic loss benefits exceed the no-fault recovery limits. 40 P.S. § 1009.301 (Supp. 1979-80); Brunelli v. Farelly Brothers, supra. However, where an employee is injured in an accident and is covered by workmen's compensation, this by no means precludes recovery under no-fault; Section 303 of the Workmen's Compensation Act precludes recovery from the employer only. Thus, while no recovery is allowed under Section 204(a)(1) against the employer's no-fault carrier because of the exclusivity section of workmen's compensation, an insured employee could recover under Section 204(a)(2)-(5) if applicable. From this recovery, the workmen's compensation benefits would be deducted as called for in Section 206 of the No-Fault Act. Id., 492 Pa. at 167, 422 A.2d at 1067. *84 The instant case presents just such a situation; the action could not succeed under Section 204(a)(1) of the No-fault Act, but it could under Section 204(a)(2). This suit is not an attempt to establish Standard Motor Products' (appellant's employer) liability over and above its liability under the Workmen's Compensation Act, but rather it seeks recovery from the vehicle owner's own insurance carrier under the No-fault Act's Section 204(a)(2). Under these facts we can see no conflict between the two acts and hold it to have been error for the lower court to enter judgment on the pleadings against the appellant. Ordered reversed and remanded for proceedings below not herewith inconsistent. NOTES [1] His gross wages were $280.50 per week, eighty percent of that is $224.40. He received $187.00 per week in Workmen's Compensation benefits, making a difference of $37.40 per week.

[Cite as In re Disqualification of Stucki, ___ Ohio St.3d ___, 2019-Ohio-1624.] IN RE DISQUALIFICATION OF STUCKI. O’MALLEY v. O’MALLEY. [Cite as In re Disqualification of Stucki, ___ Ohio St.3d ___, 2019-Ohio-1624.] Judges—Affidavits of disqualification—R.C. 2701.03—Document attached to affidavit but not sworn to before an authorized officer may not be considered in deciding disqualification request—Remaining vague allegations of affiant insufficient to require removal of trial-court judge— Disqualification denied. (No. 19-AP-001—Decided January 30, 2019.) ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. DR-04-229141. ____________ O’CONNOR, C.J. {¶ 1} Defendant, Patrick Joseph O’Malley, has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge David Stucki, a retired judge sitting by assignment, from presiding over any further proceedings in the above-referenced case. {¶ 2} Mr. O’Malley alleges that Judge Stucki engaged in improper ex parte discussions, violated the court’s time guidelines for child-custody cases, failed to hold hearings on pending motions, and has been more focused on collecting money owed to the guardian ad litem rather than locating the parties’ children, who evidently disappeared from a Nebraska children’s facility. {¶ 3} Judge Stucki has responded in writing to the affidavit and denies any bias against Mr. O’Malley. The judge also denies engaging in any ex parte communications and explains his relationships with the guardian ad litem and the facility in which he placed the parties’ children.  SUPREME COURT OF OHIO {¶ 4} For the reasons explained below, no basis has been established to order the disqualification of Judge Stucki. {¶ 5} First, many of Mr. O’Malley’s allegations cannot be considered. With his sworn affidavit, Mr. O’Malley submitted an unsworn document entitled “Request For Disqualification.” The unsworn document included many factual allegations that went beyond those in his affidavit. R.C. 2701.03(B)(1) and (2), however, authorize a party to file an affidavit of disqualification, which must include “specific allegations” of bias sworn to before a “jurat of a notary public or another person authorized to administer oaths or affirmations.” Under Ohio law, an affidavit “ ‘is a written declaration under oath.’ ” In re Disqualification of Donnelly, 134 Ohio St.3d 1221, 2011-Ohio-7080, 982 N.E.2d 713, ¶ 2, quoting R.C. 2319.02. In deciding a disqualification request, the chief justice cannot consider unsworn allegations by a litigant. See In re Disqualification of Fuerst, 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 19, quoting In re Disqualification of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992) (explaining that a party’s failure to confirm allegations “ ‘by oath or affirmation’ ” violated R.C. 2701.03, leading to an unsworn letter having “ ‘no effect on the proceedings’ ”). Accordingly, Mr. O’Malley’s unsworn allegations in his memorandum cannot be considered in deciding his disqualification request. {¶ 6} Second, the vague allegations in Mr. O’Malley’s affidavit are insufficient to require Judge Stucki’s removal. For example, Mr. O’Malley states that he is “aware of many ex-parte discussions which had involved [J]udge David Stucki with others.” It is well established, however, that “[a]n alleged ex parte communication constitutes grounds for disqualification when there is ‘proof that the communication * * * addressed substantive matters in the pending case.’ ” (Ellipsis sic.) In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013- Ohio-2292, 989 N.E.2d 62, ¶ 7, quoting In re Disqualification of Calabrese, 100 Ohio St.3d 1224, 2002-Ohio-7475, 798 N.E.2d 10, ¶ 2. “The allegations must be 2  January Term, 2019 substantiated and consist of something more than hearsay or speculation.” Id. Here, Mr. O’Malley has not alleged—let alone established—that Judge Stucki engaged in ex parte communications about substantive matters in the case. “This and the other vague, unsubstantiated allegations of the affidavit are insufficient on their face for a finding of bias or prejudice.” In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988). {¶ 7} Similarly, “[a]n affidavit of disqualification * * * is not a vehicle to contest matters of substantive or procedural law.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Mr. O’Malley may have other remedies if he believes that Judge Stucki has failed to hold required hearings or if the guardian ad litem charged excessive fees. Those issues, however, cannot be litigated in a disqualification matter. And Mr. O’Malley’s mere disagreement with the judge’s legal decisions does not prove bias or prejudice. Id. {¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Stucki. ________________________ 3 

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 01-1135 DANNY M. KELLY, Plaintiff, Appellant, v. NORTEL NETWORKS CORPORATION, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge] Before Boudin, Chief Judge, Torruella and Selya, Circuit Judges. Danny M. Kelly on brief pro se. John D. Hanify, Matthew T. Connolly and Hanify & King, P.C. on brief for appellee. September 13, 2001  Per Curiam. Upon de novo review, we affirm the summary judgment dismissing plaintiff's complaint substantially for the reasons stated in the district court's order of dismissal. The district court did not abuse its discretion in denying plaintiff's alternative request for leave to amend the complaint since the proposed amendment was frivolous (and, in all events, would have been futile). Affirmed. 

742 F.Supp. 581 (1990) Larry D. WALLER, Plaintiff, v. PITTSBURGH CORNING CORP.; John Crane, Inc.; Garlock, Inc.; Celotex Corp.; and Carey-Canada, Inc., Defendants. No. 90-1233-K. United States District Court, D. Kansas. July 16, 1990. Ness, Motley, Loadholt, Richardson & Pool, Barnwell, S.C., for plaintiff. Polsinelli, White, Vardeman & Shalton, Kansas City, Mo., for defendant Pittsburgh Corning Corp. Gordon N. Myerson, P.C., Kansas City, Mo., for defendant John Crane, Inc. Foulston & Siefkin, Wichita, Kan., for defendant Garlock, Inc. Lewis, Rice & Fingersh, Overland Park, Kan., Butler, Vines, Babb & Threadgill, Knoxville, Tenn., for defendants Celotex Corp. and Carey-Canada, Inc. MEMORANDUM AND ORDER PATRICK F. KELLY, District Judge. The present case is an action for damages for personal injuries which the complaint alleges were suffered by the plaintiff, Larry D. Waller, due to exposure to asbestos products manufactured by the defendants. Originally filed in the United States District Court for the Eastern District of Texas, the case was subsequently transferred to this court. Motions for summary judgment have been filed by numerous defendants, including Owens-Corning Fiberglas Corp.; John Crane, Inc.; Fibreboard Corp.; Owens-Illinois, Inc.; Pittsburgh Corning Corp.; Garlock, Inc.; Celotex Corp.; Carey-Canada, Inc.; and Eagle-Picher. The arguments presented by each defendant are generally the same: first, that the plaintiff has failed to produce any evidence of exposure to asbestos products manufactured by the defendant; and second, that the plaintiff's claim is time barred under K.S.A. 60-513(b). The matter was presented to the court at a hearing on July 9, 1990. At the conclusion of the hearing, the court reserved ruling on the motions by the various parties. At the present time, to the best understanding of the court, several of the manufacturers have independently resolved their differences with the plaintiff, and at the present time five defendants remain in the *582 action: Pittsburgh Corning, Garlock, John Crane, Carey-Canada, and Celotex. For the reasons cited below, the court finds summary judgment should be granted on behalf of these defendants. Summary judgment is proper, where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987). In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R. Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The plaintiff, Larry Waller, began work at the American Petrofina Refinery at El Dorado, Kansas in November, 1960. During his first month of employment, Waller worked as a laborer, building scaffolding, handing insulation to carpenters, and mixing mud. Waller also worked on a two-week tower insulation project, during which he was exposed to asbestos products. Waller is unable to recall the brand names or manufacturers of these products. In December, 1960, Waller transferred to the refinery's light oil laboratory, where he worked for about four months. Until the end of 1962, Waller worked in the refinery's maintenance department as a rigger and boilermaker. During this time, Waller's duties included unloading asbestos materials and the removal of insulation. At the end of 1962, Waller returned to work in the light oil laboratory, where he worked until 1985. However, Waller also worked for the maintenance department on his days off during intermittent "turnarounds". A turnaround is an overhaul of the refinery involving the replacement of pipes and the cleaning out of the refinery's tower and exchanges, and Waller sometimes had to remove insulation while performing his maintenance duties. At most, Waller worked only four days per year doing turnaround maintenance work. Waller does not recall removing any insulation after 1976. The first argument advanced by several of the defendants, that there is no evidence of exposure to their respective products, needs not be addressed here. Instead, the court finds that the statute of limitations contained in K.S.A. 60-513(b) controls, and bars, the present action. The 10-year limitations provision of K.S.A. 60-513(b) was recently the subject of interpretation by the Supreme Court of Kansas, and reinterpretation by the Kansas Legislature. Under Tomlinson v. Celotex *583 Corp., 244 Kan. 474, 770 P.2d 825 (1989), the 10-year limit would apply to bar the claim of the plaintiff, since most of the evidence indicates exposure during the 1960s, and the plaintiff has himself indicated that he has no knowledge of any exposure to insulating materials after 1976. In Tomlinson, the supreme court held that the 10-year limit of K.S.A. 60-513(b) applied to claims for injuries from latent diseases, and that this application was constitutional. Shortly after the decision in Tomlinson, and in obvious response to that decision, the state legislature approved amendments to K.S.A. 60-513, creating a specific limitations period for latent disease claims. The central question is whether these amendments, signed into law on May 16, 1990, are applicable to the present action. Included within the amendments is a new subsection (e) to 60-513, which seeks to revive actions previously barred under the statute: Upon the effective date of this act through July 1, 1991, the provisions of this subsection shall revive such causes of action for latent diseases caused by exposure to a harmful material for: (1) Any person whose cause of action had accrued, as defined in subsection (d) on or after March 3, 1987; or (2) any person who had an action pending in any court on March 3, 1989, and because of the judicial interpretation of the ten-year limitation contained in subsection (b) of K.S.A. 60-513, and amendments thereto, as applied to latent disease caused by exposure to a harmful material the: (a) Action was dismissed; (b) dismissal of the action was affirmed; or (c) action was subject to dismissal. The intent of this subsection is to revive causes of action for latent diseases caused by exposure to a harmful material which were barred by interpretation of K.S.A. 60-513, and amendments thereto, in effect prior to this enactment. The issue in the present case is whether the amendments to 60-513(b) may be constitutionally applied to expand the time in which the action may be brought. It should be noted that the plaintiff's brief in response to the present motions completely ignores the issue of constitutionality. Instead, the plaintiff's brief raises two separate issues, which will be discussed below. Most of the state courts addressing the issue have held that the legislation which attempts to revive claims that have been previously time barred impermissibly interferes with vested rights of the defendant, and thus violates due process. These courts have taken the position that the passing of the limitations period creates a vested right of defense in the defendant, which cannot be removed by subsequent legislative action expanding the limitations period. See Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933); Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d 413 (Del.1984); Mazda Motors of America, Inc. v. S.C. Henderson & Sons, Inc., 364 So.2d 107 (Fla.Dist.Ct.App.1978), cert. denied, 378 So.2d 348 (1979); Wilson v. All-Steel, Inc., 87 Ill.2d 28, 56 Ill.Dec. 897, 428 N.E.2d 489 (1981); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258 (La.Ct.App. 1985), cert. denied, 481 So.2d 1349 (1986); Dobson v. Quinn Freight Lines, 415 A.2d 814 (Me.1980); Zitomer v. State, 21 Md. App. 709, 321 A.2d 328 (1974), rev'd on other grounds, 275 Md. 534, 341 A.2d 789 (1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 862, 47 L.Ed.2d 87 (1976); Williams v. Wellman-Power Gas, Inc., 174 Mont. 387, 571 P.2d 90 (1977); Grand Island School Dist. No. 2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979); Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447 (1922); In re Swan's Estate, 95 Utah 408, 79 P.2d 999 (1938); School Bd. of Norfolk v. United States Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987); Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963). In addition, several state courts have found revival legislation invalid under specific provisions in their state constitutions which prohibit retroactive legislation. See Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981); Jefferson County *584 Dept. of Social Services v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); Uber v. Missouri Pac. R. Co., 441 S.W.2d 682 (Mo. 1969); Gould v. Concord Hosp., 126 N.H. 405, 493 A.2d 1193 (1985); Wright v. Keiser, 568 P.2d 1262 (Okla.1977); Ford Motor Co. v. Moulton, 511 S.W.2d 690 (Tenn.), cert. denied, 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 109 (1974). On the other hand, a number of states have found that legislation reviving a previously dead claim does not inherently offend due process. See Chevron Chemical Co. v. Superior Ct., 131 Ariz. 431, 641 P.2d 1275 (1982); Gilbert v. Selleck, 93 Conn. 412, 106 A. 439 (1919); Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102, 317 S.E.2d 189, cert. denied, 469 U.S. 918, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984); Roe v. Doe, 59 Haw. 259, 581 P.2d 310 (1978); Aaron v. City of Tipton, 218 Ind. 227, 32 N.E.2d 88 (1941); City of Boston v. Keene Corp., 406 Mass. 301, 547 N.E.2d 328 (1989); Pryber v. Marriott Corp., 98 Mich. App. 50, 296 N.W.2d 597 (1980), aff'd, 411 Mich. 887, 307 N.W.2d 333 (1981); Donaldson v. Chase Securities Corp., 216 Minn. 269, 13 N.W.2d 1 (1943), aff'd, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); Crist v. Town of Gallup, 51 N.M. 286, 183 P.2d 156 (1947); Gallewski v. H. Hentz & Co., 301 N.Y. 164, 93 N.E.2d 620 (1950); Pnakovich v. S.W.C.C., 163 W.Va. 583, 259 S.E.2d 127 (1979); In the Interest of W.M.V., 268 N.W.2d 781 (N.D.1978); Vigil v. Tafoya, 600 P.2d 721 (Wyo.1979). Unfortunately for the plaintiff in the present action, Kansas has adhered consistently to the majority view that revival legislation is inconsistent with due process. In Morton v. Sharkey, 1 Kan. 535 (1860), the court discussed the legislature's adoption (in 1858 Kan.Sess.Laws, ch. 11, § 13) of a six-year limitations period for actions on commercial notes. Previously, a three-year limitations period existed in all actions on contract. 1855 Kan.Sess.Laws, ch. 3, § 4. The six-year statute had been adopted on April 1, 1858, several months before the three-year anniversary of the effective date of the prior law. The court concluded that the earlier three-year limitations period did not begin to run until the effective date of the act, and that the subsequent adoption of the six-year period was legitimate since the extension occurred prior to the date when the three-year bar would have come into effect. "The rule is," the court noted, "that the limitation period may be extended, where it has not already expired." 1 Kan. at 538. This rule has been followed consistently in later decisions. See Rostocil v. United Oil & Gas Royalty Ass'n, 177 Kan. 15, 25, 274 P.2d 761 (1954); Terrill v. Hoyt, 149 Kan. 51, 87 P.2d 238 (1939); Bowman v. Cockrill, 6 Kan. 190, 203, *311, *338 (1870). The rule received its most recent application in Jackson v. American Best Freight System, Inc., 238 Kan. 322, 709 P.2d 983 (1985). In Jackson, the court held that the provisions of K.S.A. 60-203(b) did not apply retrospectively, thereby reviving the plaintiff's claim. The two-year limitations period on the plaintiff's tort claim expired on June 30, 1983. The plaintiff had previously but unsuccessfully sought to serve two of the defendants. K.S.A. 60-203(b), which became effective the date of the expiration of the limitations period, provides an additional period of time for service of process, where a prior attempt at service has been adjudicated to be invalid due to "any irregularity in form or procedure." The statute then allows 90 days from that adjudication (or 120 days for good cause shown) in which to complete service, and upon valid service within that time, the action will "be deemed to have been commenced by the original filing of the petition." The Jackson court held that K.S.A. 60-203(b) did not serve to expand the time in which the plaintiff could be deemed to have commenced her action, since the limitations period applicable to the action had expired prior to the effective date of the savings statute. The court stated: While retrospective operation of procedural statutes has been allowed generally, where a vested right of defense exists prior to the effective date of the procedural statute, it would not be proper to allow the retrospective operation of 60-203(b). *585 Once it was established the defendants had never been served, the statute of limitations barred any further actions against them. Defendants had a vested right in the defense provided by the statute of limitations. There is no valid distinction between a vested general rule and a vested right of defense. Accordingly, the general rule is that a vested right to an existing defense is protected in like manner as a right of action, with the exception only of those defenses which are based on informalities not affecting substantial rights. The trial court was correct when it determined that under the facts of this case K.S.A. 60-203(b) did not apply retrospectively and that Jackson's action was barred by the two-year statute of limitations. 238 Kan. at 325, 709 P.2d 983 (citation omitted). Thus, it is clear that the revival provisions contained in the amendments to K.S.A. 60-513 are invalid under Kansas law, since they represent an attempt to remove vested rights on behalf of the defendants. The plaintiff offers two brief arguments. First, he contends that the Kansas limitations period is not controlling in the first place, and that, instead, it is the Texas statute of limitations which is controlling. Because the present matter was transferred from the Eastern District of Texas, the court should utilize the choice of law rules of that forum in determining the applicable statute of limitations. Ferens v. John Deere Co., ___ U.S. ___, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). Citing Ferens, and noting that the present case was originally brought in Texas, the plaintiff argues that the court must apply the Texas statute of limitations. But Ferens did not rule (as the plaintiff infers) that the transferee forum must always apply the statute of limitations of the transferor (here, Texas). Instead, the Supreme Court ruled in Ferens that "the transferee court must follow the choice of law rules that prevail ... in the transferor court." At ___, 110 S.Ct. at 1277, 108 L.Ed.2d at 449-50 (emphasis added). Thus, the present issue turns upon which statute of limitations Texas would apply, using Texas choice of law rules. There is little doubt that the Kansas statute of limitations contained in K.S.A. 60-513(b) is controlling in the present action. First, as this court held in Menne v. Celotex Corp., 722 F.Supp. 662 (D.Kan.1989), the statute is substantive rather than procedural in nature, and this court is obliged to apply the substantive law of Kansas. As the Kansas statute is substantive in nature, Texas choice of law rules would require application of K.S.A. 60-513(b). California v. Copus, 158 Tex. 196, 309 S.W.2d 227, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958). See also Goad v. Celotex Corp., 831 F.2d 508 (4th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2871, 101 L.Ed.2d 906 (1988). The second argument advanced by the plaintiff is that summary judgment on the present issue is improper. This argument may be quoted in its entirety: Rule 56(c) is reserved for judgment where there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Emphasis added). A number of defendants in their motion did not dispute any material facts in this case. Their arguments were limited only to an interpretation of the Kansas law. Clearly, their motions are outside the scope of rule 56(c) and should be denied. (Pltf's Resp. at 9.) It is hard to understand the plaintiff's argument. A movant for summary judgment does not seek to dispute material facts, but instead asserts that no dispute exists as to any material fact. The defendants have set out their contentions of undisputed facts and supported them with references to exhibits and deposition testimony. The plaintiff's response brief, on the other hand, while it disagrees (in the discussion portion of the brief) with many of these contentions, fails to comply with local rules. There is no statement of facts, by numbered paragraphs, which the plaintiff contends are in dispute, nor is there any *586 attempt to specifically controvert any of the contentions of the various defendants. Local Rule 206(c) requires that memoranda in opposition to a motion for summary judgment begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party. The defendants, unlike the plaintiff, are in compliance with the requirements of Fed.R.Civ.P. 56 and with Local Rule 206. IT IS ACCORDINGLY ORDERED this 16 day of July, 1990, that the motions for summary judgment of defendants John Crane (Dkt. No. 141), Celotex and Carey-Canada (Dkt. No. 155), Garlock (Dkt. No. 175), and Pittsburgh Corning (Dkt. No. 143) are hereby granted.

751 F.Supp. 1249 (1990) William G. WILSON, Plaintiff, v. Gunter H. KISS, Defendant. No. 89-CV-73241-DT. United States District Court, E.D. Michigan, S.D. December 5, 1990. *1250 Robert S. Krause, Brian K. Cullin, Detroit, Mich., for plaintiff. Gary E. Levitt, Birmingham, Mich., for defendant. MEMORANDUM OPINION AND ORDER ZATKOFF, District Judge. I. INTRODUCTION Plaintiff filed a multi-count complaint against defendant for torts allegedly arising out of an employment relationship between the parties. Plaintiff seeks monetary relief for alleged mental and financial injuries. This matter now comes before the Court on defendant's 12(b)(6) motion to dismiss plaintiff's claims for Intentional Infliction of Emotional Distress and for Fraudulent Misrepresentation. Plaintiff filed a timely response, and both parties have fully briefed the relevant issues. Pursuant to E.D.Mich.Local R. 17(1,) the Court addresses the motion without entertaining oral argument. Upon review of the motion, briefs, and file in this case, the Court finds that, plaintiff has pled legally sufficient emotional distress and fraud claims. Accordingly, the Court denies defendant's motion to dismiss. II. STANDARD OF REVIEW Defendant addresses his motion as one for dismissal under Fed.R.Civ.P. 12(b)(6). A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of the plaintiff's complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D.Mich.1986); Hudson v. Johnson, 619 F.Supp. 1539, 1542 (E.D. Mich.1985). A claim shall not be dismissed unless plaintiff fails to prove, beyond doubt, a set of facts to support his claim for relief. Janan, 785 F.2d at 558. "In evaluating the propriety of a dismissal under Rule 12(b)(6), the factual allegations in the complaint must be treated as true." Janan v. Trammell, 785 F.2d 557, 558 (6th Cir.1986); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). Thus, the following facts are gleaned from plaintiff's complaint. III. FACTS Prior to June 1985, plaintiff worked for many years as a manufacturer's representative in the automobile industry. Before plaintiff established an employment relationship with defendant, plaintiff owned and operated a company providing manufacturer's representative services to the automotive industry. Defendant suggested that plaintiff work with Lignotock Entities (Lignotock), a *1251 group of manufacturing service companies owned by defendant, to create an organization in the United States to sell Lignotock equipment and products to members of the U.S. automotive industry. Defendant allegedly indicated that such employment would offer plaintiff the opportunity to work for a multi-million dollar corporation, to earn great salaries and commissions, and to gain a secure future. In pursuit of such rewards, plaintiff entered into a five year employment contract with defendant and Lignotock. As a result, plaintiff ceased working with his own company. In accordance with his job duties and on behalf of Lignotock, plaintiff allegedly procured numerous sales orders and contracts, one of which was with General Motors (GM). The GM contract called for Lignotock to provide interior door panels for all GM L-body line automobiles. The contract further specified that payment would be in U.S. dollars. Plaintiff alleges that after the formation of the GM contract, the exchange rate between the U.S. dollar and the German deutsche mark changed in favor of the mark. As a result, Lignotock sought payment from GM in deutsche marks. To this end, defendant forced plaintiff to withhold Lignotock door panels, unless GM agreed to modify its contract and pay in marks. Plaintiff refused to comply with defendant's request because, plaintiff contends, defendant's effort to force a modification of the contract with GM constituted a criminal attempt to obtain money under false pretenses. Because of plaintiff's refusal to engage in such criminal conduct, defendant terminated plaintiff's employment relationship. Consequently, plaintiff filed a lawsuit against defendant, alleging that defendant acted in contravention of the public policy of the State of Michigan and/or the United States (Count I), tortiously interfered with plaintiff's business and prospective economic relationships with GM and other automotive companies (Count II), intentionally caused plaintiff to suffer emotional distress (Count III), tortiously interfered with plaintiff's contractual relationship with Lignotock (Count IV), and made false misrepresentations in an effort to encourage plaintiff to work with Lignotock (Count V). Defendant countered by filing a Rule 12(b)(6) motion to dismiss the claims of emotional distress (Count III) and fraudulent misrepresentation (Count V) in plaintiff's complaint. With respect to plaintiff's claim for emotional distress, defendant contends that plaintiff has not alleged severe emotional distress, that more generally plaintiff cannot recover damages for mental distress, and that plaintiff failed to demonstrate extreme and outrageous conduct. Regarding plaintiff's claim for fraudulent misrepresentation, defendant contends that plaintiff has improperly based his claim on an expression of opinion and/or a contractual promise, and that plaintiff could not have relied on defendant's statements in accepting employment with Lignotock. Thus, defendant contends that plaintiff's claims for emotional distress and fraudulent misrepresentation lack legal sufficiency and must be dismissed. IV. DISCUSSION A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Courts that have recognized the tort of mental distress,[1] including Pratt v. Brown, 855 F.2d 1225 (6th Cir.1988), have *1252 identified four elements essential to a prima facie claim: (1) extreme and outrageous conduct that is (2) intentional or reckless and (3) causes (4) severe emotional distress. 1. Sever Emotional Distress Defendant argues that plaintiff did not allege sever emotional distress. Plaintiff points to his complaint in arguing that he has properly pled severe emotional distress. The Court is not persuaded by defendant's argument. The commentary to the Second Restatement of Torts explains the emotional distress requirement as follows: The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe. Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.... (emphasis added). Plaintiff quite clearly alleges in paragraph forty-three that defendant's conduct caused embarrassment and humiliation, as well as mental and emotional anguish. Thus, plaintiff's averments of mental distress fall squarely within the Restatement's legal description of the type of distress necessary to support a claim. Therefore, the Court finds that plaintiff has properly pled severe emotional distress. 2. Recovery for Mental Distress Defendant next argues that even if plaintiff has alleged severe emotional distress, Michigan courts have refused to award damages for emotional distress arising out of economic relationships. Defendant's argument lacks merit. Defendant relies on Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 295 N.W.2d 50 (1980), in arguing that Michigan law does not recognize damages for mental distress when the parties enjoy merely an economic relationship. Because plaintiff and defendant enjoyed an employment relationship, defendant argues that plaintiff cannot recover damages for emotional distress. This argument misconstrues the import of Kewin, its progeny, and similar cases. Kewin held that damages for mental distress are not recoverable in a lawsuit for breach of an insurance contract. But Kewin is distinguishable from the instant case. In this case, plaintiff has not attempted to recover damages for mental distress in a breach of contract action. Instead, plaintiff seeks such damages in a tort action for intentional infliction of emotional distress. This distinction carries much significance in light of Roberts v. Auto Ins, 422 Mich. 594, 374 N.W.2d 905 (1985), in which the court noted that Kewin did not preclude the emergence of a separate tort for intentional infliction of emotional distress. In moving from Kewin to Roberts, the analytical focus shifts from an examination of damages recoverable in contract to the consideration of a distinct cause of action in tort. Thus, the Roberts court observed that while mental distress damages were not recoverable in contract, a tort action for intentional infliction of emotional distress can exist in a contractual context.[2] In the instant case, plaintiff has not sued under contract theories of recovery. Therefore, plaintiff's attempt to recover damages for mental distress does not trigger Kewin's prohibition. Rather, plaintiff has pled tort theories, which pursuant to Roberts can form the basis for awarding mental distress damages. Consequently, defendant's argument that plaintiff's claim is not actionable under Michigan law must fail. 3. Extreme and Outrageous Conduct Defendant also argues that his conduct, as a matter of law, was not extreme and outrageous as those terms are *1253 defined by the Restatement and Michigan case law. Plaintiff argues to the contrary. The Court concludes that plaintiff, as a matter of law, has properly pled extreme and outrageous conduct. The term "extreme and outrageous conduct" has acquired a unique and particular meaning for purposes of maintaining an emotional distress action in Michigan: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that has intended to inflict emotional distress, or even that his conduct has been characterized by "malice", or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Roberts, 422 Mich. at 602-03, 374 N.W.2d 905 (citing Restatement Torts, 2d, § 46, comment d, pp. 72-73).[3] The extreme and outrageous character of the conduct may arise from the position of the actor or a relationship to the distressed party. Ledsinger v. Burmeister, 114 Mich.App. 12, 19, 318 N.W.2d 558 (1982). Such conduct may occur through the abuse of a relationship that puts the defendant in a position of actual or apparent authority over a plaintiff or gives a defendant power to affect a plaintiff's interest. Margita v. Diamond Mortgage Co., 159 Mich.App. 181, 189, 406 N.W.2d 268 (1987) (citations omitted). Whether a defendant's acts were sufficiently outrageous depends on the context in which the defendant committed them. Rosenberg v. Rosenberg Bros., 134 Mich. App. 342, 353, 351 N.W.2d 563 (1984). In Ledsinger, defendant-merchant used racial slurs and insults to express his intent to discontinue his dealings with plaintiff-customer. The court noted that the ethnic and/or racial slurs were not per se extreme and outrageous. Rather, the slurs and insults coupled with defendant's abuse of his authoritative position over plaintiff were sufficient to support a claim for emotional distress.[4] In Rosenberg, defendant attempted to coerce plaintiff-widow into selling her deceased husband's share of a family owned partnership to defendant at a reduced price. Plaintiff depended on defendant for income and record keeping. In twenty-six separate instances, defendant had attempted to "browbeat" plaintiff into selling the partnership interest. This repeated harassment together with plaintiff's position of financial dependency supported a tort claim for emotional distress. *1254 In Margita, defendant made harassing phone calls, threatened foreclosure, and mailed late charge letters to plaintiff-home-owner on a debt that was not outstanding. The court held that the continuous unnecessary harassment over nearly two years might easily be considered extreme and outrageous conduct. Thus, the court upheld the legal challenge to plaintiff's claim for intentional infliction of emotional distress. In each case mentioned above, a combination of position, power, abuse, and significant perturbation rose above the level of mere insult, indignity, threat, annoyance, petty oppression and triviality to support a tort claim for mental distress. In light of the above mentioned cases, the allegations contained in plaintiff's complaint, accepted as true, indicate conduct that arguably exceeds the threshold standard for extreme and outrageous conduct. Plaintiff claims that defendant's conduct was extreme and outrageous because defendant utilized his authoritative position as employer to demand that plaintiff engage in criminal acts or risk discharge. Pursuant to Ledsinger, Rosenberg, and Margita, plaintiff has stated a legally sufficient cause of action. Defendant in this case abused his employment relationship with plaintiff by forcing plaintiff to chose between committing a criminal act or losing his job. Such abuse put defendant in a position of superiority and actual authority over plaintiff and gave defendant the ability to affect plaintiff's interests. It is not true that every wrongful termination or employer abuse, alone, will give rise to a claim for intentional infliction of emotional distress. Nor will a criminal act, by itself, generate a tort claim for mental distress.[5] But when both elements combine, that is when an employer gains a position of authority over an employee and forces the latter to chose between performing a criminal act or losing his job, it cannot be said as a matter of law that such conduct is not extreme and outrageous. Defendant attempts to distinguish this case by noting that plaintiff is not as vulnerable as the plaintiffs in the cases above — a browbeaten widow, an insulted customer, and a harassed homeowner. Defendant characterizes plaintiff as a sophisticated businessman who had significant bargaining power in his dealings with defendant. Defendant's version of the facts may not be fairly implied from the allegations of the complaint,[6] and thus are not to be considered under Rule 12(b)(6). Whether plaintiff was sophisticated and thus possessed substantial bargaining power relative to defendant remains a factual question for the trier of fact. Defendant also argues that the courts in Rosenberg and Margita were confronted with a pattern of abusive conduct over a period time. While the pattern of abusive conduct certainly entered into the courts' decisions, it was only one factor in the courts' analyses. Both the Rosenberg and Margita courts indicated in their opinions that a finding of outrageousness necessarily depended on the totality of the circumstances. In determining whether a defendant's conduct is extreme and outrageous, the existence of a pattern of repeated abuse over time is not dispositive. A single event, under the right circumstances, may be extreme and outrageous. The Michigan Court of Appeals agrees. In Ledsinger, a single confrontation involving racial slurs and insults adequately supported, as a matter of law, a claim for intentional infliction of emotional distress. In the instant case, defendant's conduct, forcing an employee to commit a criminal act or to lose his job, may be considered extreme and outrageous by a trier of fact.[7] *1255 Defendant occupied a position of authority and power over plaintiff. Pursuant to Michigan case law, defendant's abuse of this relationship coupled with defendant's criminal behavior fits the pattern of conduct supporting a finding of extreme and outrageous conduct. Accordingly, the Court concludes that plaintiff has pled, with legally sufficiency, extreme and outrageous conduct on the part of the defendant. B. FRAUDULENT MISREPRESENTATION To recover for fraud, it must appear (1) that the defendant made a material representation, (2) that such representation was false, (3) that when such representation was made, the defendant knew it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion, (4) that defendant made it with the intention that it should be acted upon by plaintiff, (5) that plaintiff acted in reliance upon it, and (6) that plaintiff thereby suffered injury. Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813 (1976). 1. The Misrepresentation: Facts, Opinions, and Promises First, defendant contends that plaintiff has based his claim on an unactionable expression of opinion. Plaintiff argues that defendant's statements were factual, and therefore actionable. The Court finds that defendant's alleged statements were factual and support a claim for fraudulent misrepresentation. An action for fraudulent misrepresentation must be based on a misstatement of fact and not upon an expression of opinion. Mieske v. Harmony Electric Co., 278 Mich. 61, 66, 270 N.W. 216 (1936). Generally, a statement of mere belief or opinion does not support an action for fraudulent misrepresentation. Platsis, 829 F.2d at 1293. In the instant case, plaintiff describes defendant's alleged fraudulent misrepresentation in paragraph eleven of the complaint: That Defendant KISS represented to the Plaintiff, for the purposes of inducing him to enter into employment with said Defendant and/or the Lignotock entities, that Plaintiff would be getting in on the ground floor of what was a great opportunity with a multi-million dollar corporation with great responsibilities and the opportunity to earn tremendous amounts of money in salary and commissions and to have a secure future. Defendant contends that these representations are expressions of opinion, not statements of fact. The Court disagrees. Defendant's alleged statements do not present any shades of speculation. Defendant did not qualify his statements with phrases like "I think ..." or "I believe. ..." Rather, defendant made strong declarative statements relating to the tangible benefits of employment with Lignotock. His statements to plaintiff paint a portrait of Lignotock as it actually existed. Hence, defendant's statements represent facts, which as a matter of law support a claim for fraudulent misrepresentation. Next, defendant claims that his statements refer to promises to render future performance, promises that may not serve as the basis for a claim of fraud. Plaintiff claims that although defendant's statements do represent promises for future performance, such promises are actionable under an exception to the general rule. The Court agrees with plaintiff. As a general rule, a misrepresentation must relate to an existing or pre-existing fact. Platsis v. E.F. Hutton & Co., Inc., 829 F.2d 13 (6th Cir.1987); Higgins v. Lawrence, 107 Mich.App. 178, 309 N.W.2d 194 (1981). Thus, promises to render future performance may not serve as the basis for a claim of fraud. Connellan v. Himelhoch, 506 F.Supp. 1290 (E.D.Mich.1981); Boston Piano & Music Co. v. Pontiac *1256 Clothing Co., 199 Mich. 141, 165 N.W. 856 (1917). However, an action for fraud, as an exception to the general rule, may be predicated upon a promise made in bad faith without a present intent to perform (bad faith exception). Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 247 N.W.2d 813 (1976); Crowley v. Langdon, 127 Mich. 51, 86 N.W. 391 (1901). In sum, under Michigan law, a material representation, as a matter of law, must be a statement of fact — not an expression of opinion — and cannot be a future promise, unless it is a future promise made in bad faith and without a present intention to perform. Defendant's promised an opportunity to work with a multi-million dollar firm, to enjoy significant responsibilities, and to earn large commissions and salaries. Thus, it is fair to construe defendant's statements as promises relating to the terms and conditions of plaintiff's future employment. Defendant argues that these promises of future performance are not actionable under Michigan law. But as defendant concedes, a bad faith exception to the general rule exists. Therefore, if plaintiff can demonstrate that defendant made the future promises in bad faith and without a present intent to perform, then plaintiff's claim will fall squarely within the exception to the rule. Defendant argues that even if plaintiff has a claim under the bad faith exception to the rule, it cannot be brought unless it is pled in his complaint.[8] No case law supports such a claim. Under Michigan case law, no special pleading requirements apply to claims relying on the bad faith exception. The Michigan Supreme Court has repeatedly stated that the six elements mentioned above represent a prima facie case for fraudulent misrepresentation.[9] Plaintiff has pled all six. 2. Reliance on Misrepresentation Finally, defendant argues that plaintiff could not have relied on defendant's statements in accepting employment with Lignotock. Defendant argues that because the employment contract between plaintiff and Lignotock expressly set forth the terms of plaintiff's employment and plaintiff's rate of compensation, plaintiff could not have relied upon representations inconsistent with his written contract. Defendant's argument is unconvincing. Defendant's argument assumes that his representations are not part of the contract, an assumption that does not explicitly appear in plaintiff's complaint and that cannot be readily inferred from the allegations of the complaint. Moreover, the issue of reliance presents a question of fact that the Court will not, and cannot, consider under Rule 12(b)(6). V. CONCLUSION For all of the foregoing reasons, the Court concludes that plaintiff has pled legally sufficient claims for intentional infliction of emotional distress and for fraudulent misrepresentation. Accordingly, defendant's motion to dismiss is hereby DENIED. IT IS SO ORDERED. NOTES [1] The Michigan Supreme Court has not specifically held that an action for intentional infliction of emotional distress may be brought under Michigan common law. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 597, 374 N.W.2d 905 (1985) (holding "[w]e are constrained from reaching the issue of whether [the tort of intentional infliction of emotional distress] should be formally adopted into our jurisprudence...."). Nonetheless, some Michigan Court of Appeals panels have recognized the cause of action. See, e.g., Dickerson v. Nichols, 161 Mich.App. 103, 409 N.W.2d 741 (1987). Similarly, the Sixth Circuit Court of Appeals has also recognized the tort under Michigan law. Pratt v. Brown, 855 F.2d 1225 (6th Cir.1988). Pursuant to Pratt, this Court proceeds under the belief that a claim for intentional infliction of emotional distress is actionable under Michigan law, notwithstanding the lack of a Michigan Supreme Court promulgation to that effect. [2] Such a claim must rest on a breach of duty distinct from the contractual duties of the parties. Roberts, 422 Mich. at 604, 374 N.W.2d 905. [3] Whether defendant's conduct meets the threshold requirement for outrageousness is a question of law to be decided by the Court. Sawabini v. Desenberg, 143 Mich.App. 373, 383, 372 N.W.2d 559 (1985) (it is initially for the trial judge to decide whether defendant's conduct might reasonably be regarded as so extreme and outrageous as to allow recovery for intentional infliction of emotional distress). [4] In Khalifa v. Henry Ford Hosp., 156 Mich.App. 485, 401 N.W.2d 884 (1986), the court held that ethnic insults, threats of unwarranted disciplinary reports, employment termination, and professional humiliation, together, did not support a claim for mental distress. For two reasons, the Khalifa court denied the damage claim for emotional distress. First, such damages are not recoverable in an action for breach of contract (plaintiff sued under both tort and contract). Khalifa, 156 Mich.App. at 499, 401 N.W.2d 884 (citing Valentine v. General American Credit, 420 Mich. 256, 362 N.W.2d 628 (1984)). Second, the court noted that Michigan had yet to officially recognize an independent tort action for intentional infliction of emotional distress. Khalifa, 156 Mich.App. at 499-500, 401 N.W.2d 884 (citing Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905 (1985)); therefore, the court implied that a separate tort for mental distress was not cognizable under Michigan common law. However, Khalifa is distinguishable from the instant case. Unlike Khalifa and Valentine, this case does not involve a breach of contract action. Also, since Khalifa, the Sixth Circuit Court of Appeals has unequivocally recognized under Michigan common law the independent tort of intentional infliction of emotional distress. See Pratt, 855 F.2d 1225. Thus, the limitations of Valentine and the uncertainty of Roberts, two legal impediments facing the plaintiff in Khalifa, pose no problems in the instant case. Accordingly, Khalifa does not control the instant case. [5] This much is reflected in the Restatement commentary. [6] The complaint does not detail plaintiff's commercial accomplishments and/or his business acumen prior to entering the employment relationship with defendant. Therefore, according to the complaint, the Court does not know if plaintiff was at all sophisticated. [7] The abusive employer-employee relationship in this case compels a finding of extreme and outrageous conduct more readily than the merchant-customer relationship in Ledsinger. Generally, an employment relationship may be one's sole means of support, and is more intimate and sensitive than a customer-merchant relationship. [8] Plaintiff first raised the bad faith exception in his response brief to defendant's motion. [9] The Michigan Supreme Court has indicated that a bad faith promise made without a present intent to perform is merely one variant of the first element (i.e., "material misrepresentation") of a prima facie case. See Hi-Way Motor Company, 398 Mich. at 336-339, 247 N.W.2d 813 (in determining whether a material misrepresentation existed, the court first characterized the defendant's statements as unactionable promises of future performance, but also considered whether they fell within the bad faith exception to the rule).

182 So.2d 405 (1966) THOMAS SMITH FARMS, INC., Petitioner, v. James R. ALDAY and Florida Industrial Commission, Respondents. No. 34433. Supreme Court of Florida. February 2, 1966. *406 Steve M. Watkins, of Truett & Watkins, Tallahassee, for petitioner. Dye & Joanos, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents. DREW, Justice. The claimant was injured when he fell from a mule barn he was constructing for his employer, a corporate farmer engaged primarily in growing tobacco. Claimant was a full-time employee hired to repair buildings and tenant houses and to erect new buildings on the farm although it was established that during the year he had been employed he had also worked in the tobacco barn for not more than 60 hours on noncarpentry work. The employer controverted the claim on the ground that, since its sole operation was farming, its employees were excluded from workmen's compensation coverage. The deputy commissioner found that the claimant was in the employ of a bona fide farmer and was engaged in agricultural work and therefore dismissed the claim. On appeal to the Full Commission that body, finding the claimant to be engaged in non-agricultural work, reversed the order of the deputy and remanded the case to determine whether three or more employees of the employer were engaged in non-agricultural work. The Commission based this holding on the ruling in this Court in Cassady, Sheriff v. Hiatt & Lee[1] that: "It is the character of the labor performed by the employee that must determine its application [the exemption] rather than the character of the employer's business." Concededly, we were dealing with the Unemployment Compensation Law in this case, but the reasons compelling the conclusion are equal — if not greater — when concerned with the Workmen's Compensation Law. We would not be consistent with our oft repeated holding that this latter act should always be construed liberally in favor of the workman if, in this instance, we should — as petitioner urges — adopt a construction that would eliminate from the protection of this law a large group of workmen. *407 In its opinion the Full Commission quoted at length from its earlier opinion of Rodrigez v. Flavor Pict Co-op, Dec. No. 2-1405 (Dec. 1964) which this Court tacitly approved in Flavor Pict Co-op v. Rodrigez[2] wherein we refused to hear argument on the grounds that there was no deviation from the essential requirements of law. Having read again the opinion of the Full Commission in Rodrigez we are impressed anew with its historical concept and cogent reasoning and herewith adopt as the opinion of this Court the following quoted portions: "Turning to the question of whether or not claimant was an agricultural farm employee within the meaning of the law or whether he was engaged in a different activity, we deem it beneficial to discuss the history of the term `agricultural labor,' from the enactment of the Workmen's Compensation Law in 1935. "As enacted in 1935, the Florida Workmen's Compensation Law exempted `agricultural and horticultural farm labor' from the employment covered by the Act, and provided that this exemption should include: (a) `canning of agricultural and horticultural products; (b) `the operation of manufacturing articles of or from palmetto fiber; and (c) `operations commonly known as "working the trees" for naval stores purposes, and the removal of stumps from land which may be used for agricultural, horticultural or grazing purposes, and land-clearing, logging, poles, piling, and cross tie operations, and also services performed in producing agricultural and horticultural crops, and all labor employed in picking, gathering, harvesting, hauling, processing, packing and handling, in their natural or fresh state, all agricultural and horticultural products.' "The original 1935 Act provided, however, that `agricultural labor used in the growing and harvesting of cane, and by-products, used in the manufacturing of sugar or the by-products of sugar shall come under and within the provisions of this act.' Later during the same session the Legislature repealed this particular provision. "In 1937 the Legislature consolidated and revised the exemption with respect to `agricultural and horticultural farm labor' by defining same as including: `turpentine labor, labor in processing gum-spirits-of-turpentine, crude-gum, oleoresin and gun-rosin, labor engaged in logging, poles, piling and cross-tie operations, the production and distribution by producer of dairy products, and all labor employed in the production and handling of agricultural and horticultural products in their natural or fresh state and whether the same be engaged in picking, gathering, harvesting, processing, packing, canning, or handling thereof, or in the hauling of same from the grove or field to the packing house or cannery.' The 1937 Legislature also enacted the Florida Unemployment Compensation Law. In this Act, it excluded `agricultural labor' from the term `employment,' without defining the meaning of `agricultural labor.' "The 1941 Legislature shortened the term `agricultural and horticultural farm labor' to read `agricultural farm labor,' as used in this exemption, and deleted from the Workmen's Compensation Law the definition or detailed specification thereof. (It did retain the exemption of `turpentine labor, labor in processing gumspirits of turpentine, crude gum, oleoresin and gum rosin.') *408 "No further change was made in this exemption until 1957, when the Legislature amended the exclusion to read: `3. Agricultural labor performed on a farm in the employ of a bona fide farmer or associations of farmers. The term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, ranches, nurseries, and orchards. * * * * * * `5. Turpentine labor, labor in processing gum-spirits-of turpentine, crude gum, oleoresin and gum rosin.' The definition of the term `farm' as included by the 1957 Legislature was adapted from that in the Unemployment Compensation Law, which has a somewhat broader definition, viz: `the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.' "In the interim, the 1941 Legislature had amended the Unemployment Compensation Law by adopting the comprehensive definition of `agricultural labor' contained in the 1939 Federal Unemployment Tax Act. It is to be noted that the definition of `agricultural labor' contained in the Unemployment Compensation Law and in the Federal Unemployment Tax Act covers not only such recognized agricultural chores as cultivating the soil, harvesting the crops, etc., but also all services performed on a farm in connection with the cultivation, raising and harvesting of the crops. Furthermore, without regard to whether performed on a farm, said definition covers all services performed in connection with the operation and management of the farm if performed in the employ of the owner, tenant or operator. Likewise, without regard to whether performed on a farm said definition covers all services performed in doing a variety of named acts as an incident to ordinary farming operations or as an incident to the preparation of fruits and vegetables for market (with certain specified exceptions). These phrases `in connection with' and `as an incident to' broaden the unemployment compensation definition of agricultural labor beyond the recognized farming chores of actually planting, cultivating, raising, and harvesting crops. In Farming, Inc. v. Manning, 121 F. Supp. 252, the Federal Court held that the right to exemption is dependent `upon the nature of the services performed by the employees.' "Court decisions construing Unemployment Compensation cases are herewith enumerated: United States v. Navar [5 Cir.], 1946, 158 F.2d 91; Jones, Collector of I.R. v. Gaylord Guernsey Farms [10 Cir.], 1942, 128 F.2d 1008; Cowicke [Cowiche] Growers v. Bates, Wash. 1941 [10 Wash.2d 585], 117 P.2d 624; and California Employment Commission v. Kovacevich, Calif. 1946 [27 Cal.2d 546], 165 P. 917, wherein the Supreme Court of California considered an unemployment compensation law which exempted `agricultural labor' without defining the term, and stated that the exemption refers to `the type of work that is being done' and is not dependent on the status of the employer. The Court quoted with approval the definition of `agriculture' in Webster's New International Dictionary, 2d Ed., viz: `the art or science of cultivating the ground and raising and harvesting crops * * *' It held that office workers are not `agricultural labor.' "The Florida Workmen's Compensation Law relating to the exemption of `agricultural labor' has never used such phrases as `in connection with' or `as an incident to' to broaden the term beyond its ordinary meaning. Other states construing `agricultural labor' are as follows, viz: The Arkansas Supreme Court in Gwin v. J.W. Vestal & Son, 170 S.W.2d 598, 205 Ark. 742, held that as used in the *409 Arkansas Workmen's Compensation Law exempting `agricultural farm labor,' the words `agricultural' and `farm' are descriptive adjectives modifying the noun `labor.' In Stuart v. Kleck, C.C.A.Ariz., 129 F.2d 400, the Arizona Supreme Court held that `agriculture' is the art or science of cultivating the ground, and raising and harvesting crops, often including also the feeding, breeding, and management of livestock; tillage; husbandry; farming; including to a variable degree the preparation of these products for man's use and their disposal by marketing or otherwise. In the Idaho case of In re Batt [66 Idaho 188, 157 P.2d 547], the court held that whether employees are engaged in `agricultural labor' depends on the type of employees' service and not on the employer's occupation. "In Tison v. Hyer, et al., 1944 [153 Fla. 769], 16 So.2d 437, the Florida Supreme Court held that, `in omitting the words "and horticultural" from the 1941 Act, the legislature merely intended to embrace all such activities under the head of "agricultural labor" * * *,' thereby eliminating a mere matter of redundancy. In Cassady, Sheriff, v. Hiatt & Lee, 1942 [150 Fla. 721], 8 So.2d 661, the Florida Supreme Court held that in interpreting the exemption of `agricultural labor' under the 1939 Unemployment Compensation Law, which did not define the term, `It is the character of labor performed by the employee that must determine its application rather the character of the employer's business,' pointing out that: `The labor was done in cultivating the soil, the literal etymological meaning of agriculture.' "From the foregoing, it is noted that the Courts in construing the term `agricultural labor' have repeatedly held that: `It is the kind of work done and the locale of it which controls * * *; `the type of work that is being done' is the controlling factor; `the nature of the services performed by the employees' must control; and `not every operation or service in or about a farm is agricultural labor'; and that many services performed on a farm in the employ of the farmer are not agricultural labor `because such specialized services are not in any way particularly associated with farming.' "This concept was embodied in the original 1935 Workmen's Compensation Law which defined agricultural labor in terms of the type of work being done, viz: `services performed in producing agricultural and horticultural crops, and all labor employed in picking, gathering, harvesting, hauling, processing, packing and handling, in their natural or fresh state, all agricultural and horticultural products.' This concept was retained in the 1937 Act in these words: `all labor employed in the production and handling of agricultural and horticultural products in their natural or fresh state and whether the same be engaged in picking, gathering, harvesting, processing, packing, canning, or handling thereof, or in the hauling of same from the grove or field to the packing house or cannery.' "There is no reason to believe that the Legislature intended to abandon this concept when it deleted these detailed specifications in 1941 and abbreviated the exemption to reach merely `agricultural labor.' In fact, using the reasoning of the Florida Supreme Court in Tison v. Hyer, supra, we can assume that `the Legislature merely intended to embrace all such activities under the head of "agricultural labor,"' thereby eliminating a mere matter of redundancy. This view is supported by the Supreme Court's statement in Cassady, Sheriff v. Hiatt & Lee, supra, that `It is the character of labor *410 performed by the employee that must determine its application * * *' Furthermore, the same 1941 Legislature amended the definition of `agricultural labor' in the Unemployment Compensation Law by expanding the term through use of such phrases as `in connection with' and `as an incident to.' If this same Legislature had intended to extent [sic] the term `agricultural labor' as used in the Workmen's Compensation Law in the same manner it would have been a simple matter for it to use the same definition it placed in the Unemployment Compensation Law. "In 1957 a bill was introduced in the Legislature to amend the exclusion in the Workmen's Compensation Law to read: `Agricultural labor performed on a farm in the employ of the owner, tenant or lessee thereof.' This language was devised after a study of leading Court opinions delineating the term `agricultural labor,' and after a study of the definition contained in the Unemployment Compensation Law. There was no intent to extend the meaning of the term `agricultural labor' beyond the limits defined in leading court decisions. In fact, the intent was to restrict the application of the term, viz: to be sure that `agricultural farm labor' was limited to such labor where actually `performed on a farm' and to further limit it to such labor where performed `in the employ of the owner, tenant or lessee thereof' (as similarly limited in Unemployment Compensation Law, Section 443.03(5) (g) l.b.) If there had been any intent to expand the concept of the term to include services `in connection with' or `as an incident to' the farming operations, these phrases also would have been adopted from the Unemployment Compensation Law definition. Thus the doctrine of expressio unius est exclusio alterious should apply. "The general rule is stated in `The Law of Workmen's Compensation,' Vol. 1, P. 774: `The nearly-universal exemption of farm labor is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer's business. But if a process performed on a farm is merely the first stage in the processing of a commodity by an industrial employer, such as a cannery or sugar refinery, the work may be held non-agricultural. Excessive specialization, commercialization or marketing by the farmer may cause the work to lose its agricultural standing. Occasional excursions into or out of agricultural duties are disregarded when the employee by virtue of his regular employment has status as either a covered or exempt employee.' "The Florida Supreme Court followed the first sentence of this general rule in Cassady, Sheriff, v. Hiatt & Lee, supra, when it held: `It is the character of labor performed by the employee that must determine its application rather than the character of the employer's business.' The full Commission followed the last sentence of this general rule in Bronson v. Prather, 1957, 2 FCR 337, when it held that an employee who was regularly employed in the employer's soft drink bottling plant and who was injured while working on the employer's ranch, which the employer had him do occasionally, was entitled to compensation. The Florida Supreme Court in effect followed the second sentence of said general rule in Steinfeldt-Thompson Company v. Trotter, 1957, 95 So.2d 262, when it held that where a commercial canning plant had contracted to purchase ripened tomatoes in the field and engaged an uninsured labor contractor to pick the tomatoes and deliver them to the plant, an employee of the labor contractor who gathered tomatoes and helped load the trucks in the *411 field was not engaged in `agricultural farm labor.' "In his discussion of the foregoing general rule Larson states at Section 53.40, P. 782: `The great majority of decisions, therefore, attempt to classify the over-all nature of the claimant's duties disregarding temporary departures from that class of duties even if the injury occurs during one of the departures. If, for example, an employee is generally engaged in ordinary farming duties, he does not leave the exempted class by engaging in such activities as shingling roofs on farm buildings, repairing farm machinery, or fixing a fence. After all, these are jobs that everyone associates with the normal routine of running a farm.' "We point out in conclusion that it never was the intent of the agricultural labor exclusion under the Florida Workmen's Compensation Law to exempt farmers as a class or agriculture as an industry, but merely to exempt the kind of work or labor particularly associated with ordinary farming operations performed on a farm, such as plowing, harrowing, planting, fertilizing, cultivating, harvesting, preparation of farm products for market (e.g., washing and packing,) feeding livestock, milking cows, bottling milk, repairing fences, and the like. We note that the 1957 Legislature further restricted this exemption by limiting it to such services where performed in the employ of a bona fide farmer or association of farmers." Our feeling that this embodies the correct interpretation of "agricultural labor" as excluded from the term "employment"[3] in the Workmen's Compensation Act is buttressed by the fact that both this Court and the Full Commission have been relying on the definition found in Cassady, Sheriff v. Hiatt & Lee[4] in both Unemployment Compensation and Workmen's Compensation cases for almost a quarter of a century. During this period many sessions of the Legislature have come and gone but none has exercised its legislative prerogative to correct our interpretation. We approve the order of the Full Commission. THORNAL, C.J., and THOMAS and ERVIN, JJ., concur. CALDWELL, J., dissents with opinion. CALDWELL, Justice (dissenting): I dissent. The claimant was engaged in agricultural work. The mule barn was essential to the operation of the farm and a part of it. Whether some or all farm labor should be exempt is a policy question to be determined by the Legislature. Absent Florida precedent I think we should follow that established in other jurisdictions. In the Miller case [Miller & Lux, Inc. v. Industrial Accident Commission of State of California], 179 Cal. 764, 178 P. 960 (1919), the court found the weight of authority to be that one employed by a farmer to devote his entire time to the repair of farm machinery is engaged in agricultural pursuit. That conclusion is supported by decisions in Idaho and Arizona. The Koger case of New Mexico [Koger v. A.T. Woods, Inc.] 38 N.M. 241, 31 P.2d 255, 256, 257 (1934), held the mechanic employed to attend engines used in irrigation to be an agricultural laborer. In Illinois, Hill v. Industrial Commission, 346 Ill. 392, 178 N.E. 905 (1931), it was held agricultural exemption should apply to any work done on a farm. In Pennsylvania, Warner v. Longstreth, 108 Pa.Super. 124, 164 A. 806 (1933), exemption was held to cover all things ordinarily done by the farmer incidental to farming. In New York, where the compensation act did not define "farm labor", it is held that *412 labor necessary to the continued operation of the farm was farm labor and exempt and later, in Coleman v. Batholomew, 175 App. Div. 122, 161 N.Y.S. 560 (1960), that the repair of farm buildings was a routine work of a farm laborer. NOTES [1] 1942, 150 Fla. 721, 8 So.2d 661. [2] Fla. 1965, 175 So.2d 36. [3] F.S. § 440.02(1) (c) 3, F.S.A. [4] Supra.

74 Ariz. 382 (1952) 249 P.2d 946 STATE v. ROTHE. No. 1025. Supreme Court of Arizona. November 12, 1952. Fred O. Wilson, Atty. Gen., and Alfred C. Marquez, Asst. Atty. Gen., for appellee. Allen & David, of Tucson, for appellant. STANFORD, Justice. Harry Ronald Rothe, appellant, was found guilty by a jury of the charge of aggravated assault, a felony, and he appeals from the judgment of conviction and claims excessive sentence imposed thereon. The facts show that while appellant was at his sister's house in Tucson, Arizona, he took his child, the daughter of the prosecutrix, Mrs. Lydia Rothe and together with his own mother started to drive away, asserting that he was tired of the prosecutrix' tantrums and was going to take the child and leave. Before driving away, the appellant twice attempted to remove the prosecutrix from the running board of the car on which she had placed herself in an effort to remove the child from the car. Finally the appellant drove away with the prosecutrix clinging to the right hand side of the car, and she remained there during the drive to the house of Prucnal's some three or four miles distant. Appellant testified that at the home of Prucnal's he removed the prosecutrix from the running board of the car and placed her over the fence and into the yard of said residence, while other witnesses, including the prosecutrix, testified that he slapped her several times on the face and then threw her over the fence with great force and violence. *383 The treating of the "Legal Propositions Relied Upon", submitted by the appellant, will we think, sufficiently dispose of the numerous assignments of error. We will first consider the appellant's contention that the trial court erred in excluding Defendant's Exhibit No. 1 for Identification, which is a letter written by the prosecutrix to a girl friend on the date of and prior to the alleged aggravated assault. In this letter the prosecutrix called her husband, the defendant, an animal, and admitted that she intended to return to Guatemala and obtain a divorce as soon as her baby was stronger. She said her husband knew nothing of her plans to get a divorce. She told her friend that after the divorce she planned to take a trip to "North Africa `Casablanca' where my dearest Phil is now!" In another part of the letter she referred to Phil, saying: "I have my Phil and he is sending me the money to go with him. Is not that a big love? Oh Jean he is wonderful!" Prior to offering this letter in evidence, the counsel for appellant cross-examined the prosecutrix as follows: "Q. Now, the fact of the matter is, Mrs. Rothe, that you were no longer interested in Harry Rothe at all on July 8, 1951, were you? A. If I was interested in him after July 8th? "Q. No, on July 8th, before you claim he assaulted you. A. If he was my husband, I was interested before, but not after he beat me like that; he take my baby. * * * * * * "Q. Before anything happened on July 8th and for some theretofore, you had been in love with and were intending to marry a man by the name of Phil? (At this point counsel for State objected to question and trial court overruled his objection) A. I know you can't marry anyone. I say that because I was very jealous. He left my family and he went to see a woman. He come back home with lipstick in the pocket. He was with the prostitute, if you permit me the sentence. That is what I have to hear every day. Forgive talking so dirty. "Q. That still doesn't answer my question. You were in love with a man by the name of Phil? A. I wasn't in love; he was in love with me. "Q. You were intending to marry him before July — A. No; I no love him; don't love nobody. * * * * * * "Q. Do you deny that you were intending to marry Phil prior to July 8th? A. I have no intention to marry anyone. I say that because I was very jealous, because my husband hurt my pride constantly. I have to. * * * * * * *384 "Q. Before any trouble arose between you and Harry on the 8th, it was your intention to go to South Africa to marry Phil? A. I go to Guatemala with my father and live there a long time and marry again." The letter was offered in evidence for the purpose of impeaching the prosecutrix as to the matters referred to above which were brought out on cross-examination and further to show her animosity toward defendant. In allowing the appellant to cross-examine the prosecutrix on the matters mentioned above, the trial court overruled the objections of the State's attorney that these matters were immaterial and collateral. We quote from the record rulings of the trial court on these objections: "The Court: `Mr. Castro, it is always proper to ask the witness as to her likes, dislikes of a third person against whom they are testifying. The objection is overruled.' * * * * * * "The Court: `It is to attack the credibility of the witness, her attitude, differences and whether there is a motive for testifying against her husband. Those matters are always proper.' * * * * * * "The Court: `I said a while ago that any witness taking the stand, subjected to cross-examination, may be interrogated as to their attitude, likes and dislikes or differences with any persons against whom they they are testifying. That is the rule of evidence that is too wellknown for anybody not to know about it who is practicing law. Anybody who takes the stand, you have a right to cross-examine as to whether or not they had difficulties with the party against whom they are testifying.'" We find no error in these pronouncements as they are correct statements of the law of evidence. The trouble is the court erred in their application. At the time the letter mentioned herein was offered by the appellant in evidence, the trial court excluded it on the grounds that it was "immaterial and irrelevant." The question presented for our determination is whether this letter was properly excluded by the trial court, and if not, did such ruling constitute reversible error? It is a well-known rule of law that a cross-examiner should be given great latitude in his questions which seek to impeach an adverse witness being examined. It is always proper to inquire as to the motive of the adverse witness in testifying, and to show any matter which bears on the credibility of that witness. Nowhere is this better established than in the case of Arnold v. State, 100 Tex. Cr. R. 387, 272 S.W. 798, in which the Texas court said: "* * * The motives which operate upon the mind of a witness when he testifies are never regarded as immaterial *385 or irrelevant, and it has always been the rule that the adverse party may prove declarations and acts of a witness which tend to show bias, interest, prejudice, or any other mental state or status which, fairly construed, might tend to affect his credibility." (Citing cases.) The Texas court held that it was reversible error for the trial court to not allow the defense to go into the matter of motive on cross-examination. In accord with this decision is the case of Cryer v. State, 101 Tex. Cr. R. 637, 276 S.W. 925. If the defendant is to be allowed to inquire on cross-examination into possible motives of the adverse witness in testifying then it seems to logically follow that the defendant be allowed to put contrary statements of said witness in evidence for the purpose of impeaching such adverse witness. This court, in Fuller v. State, 23 Ariz. 489, 205 P. 324, 325, said: "The party against whom a witness is produced has a right to show everything which may in the slightest degree affect his credibility * * *". (Citing cases.) We feel the jury should have been allowed to consider the contents of the letter in determining what weight they would give to the testimony of the prosecutrix. We hold that the trial court erred in excluding this letter, and that its ruling was highly prejudicial to the rights of appellant. In view of this holding, we see no occasion to consider the other assignments of error advanced by the appellant at this time. The judgment of conviction is reversed and the case remanded to the trial court for a new trial. UDALL, C.J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: January 26, 2017 4 NO. S-1-SC-35508 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 MARCOS SUAZO, 9 Defendant-Appellant. 10 CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS 11 Jeff F. McElroy, District Judge 12 Bennett J. Baur, Chief Public Defender 13 William A. O’Connell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 Hector H. Balderas, Attorney General 17 John Kloss, Assistant Attorney General 18 Santa Fe, NM 19 for Appellee  1 OPINION 2 CHÁVEZ, Justice. 3 {1} Defendant Marcos Suazo became agitated while roughhousing with his friend 4 Matthew Vigil. Suazo retrieved his shotgun and pointed it at Vigil. Vigil grabbed 5 the shotgun and placed the barrel in his mouth. Suazo pulled the trigger, killing Vigil 6 and severely injuring his friend Roger Gage, who was standing behind Vigil. A key 7 contested issue in this case was whether Suazo knew the shotgun was loaded when 8 he pulled the trigger. 9 {2} Two potentially reversible errors occurred during trial. First, at trial Suazo 10 sought to introduce testimony from two witnesses who saw him approximately one 11 hour after the shooting and heard him claim that he did not know the shotgun was 12 loaded. The district court excluded the testimony as inadmissible hearsay. Second, 13 over Suazo’s objection, the prosecution persuaded the court to depart from the 14 uniform jury instruction regarding second-degree murder, which has existed since 15 1981,1 by modifying the mens rea element. Instead of requiring the jury to find 16 beyond a reasonable doubt that “[Suazo] knew that his acts created a strong 17 probability of death or great bodily harm,” the modified instruction changed the mens 1 18 NMSA 1978, UJI Crim. 2.11 (1981), committee commentary (“Element 2 of 19 UJI 2.10 and of UJI 2.11 were . . . revised in 1981 to be consistent with the 1980 20 amendment to Section 30-2-1 NMSA 1978.”); see also UJI 14-211 NMRA (1989).  1 rea element to “knew or should have known.” See UJI 14-210 NMRA. 2 {3} Among other crimes, Suazo was convicted of second-degree murder and 3 aggravated battery with a deadly weapon. He appealed his second-degree murder 4 conviction to the Court of Appeals, contending that the district court erred by 5 excluding the witness testimony and by modifying the uniform jury instruction for 6 second-degree murder. The Court of Appeals certified his case to this Court pursuant 7 to Rule 12-606 NMRA and NMSA 1978, Section 34-5-14(C) (1996) due to the 8 significant public importance of the jury instruction issue. State v. Suazo, order at 3 9 (N.M. Ct. App. Sept. 4, 2015) (non-precedential). We accepted certification and 10 address both issues. 11 {4} First, we affirm the district court’s exclusion of the hearsay evidence because 12 the district court did not abuse its discretion in finding that Suazo’s statements, which 13 were overheard one hour after the shooting, were neither excited utterances nor 14 present sense impressions. Second, we hold that the district court erred by modifying 15 the uniform jury instruction for second-degree murder because in 1980 the 16 Legislature amended the definition of second-degree murder to specifically require 17 proof that the accused knew that his or her acts created a strong probability of death 18 or great bodily harm. 1980 N.M. Laws, ch. 21; see NMSA 1978, § 30-2-1(B) (1980). 2  1 Because the modified instruction misstated an essential element, we reverse Suazo’s 2 conviction for second-degree murder and remand for a new trial. See State v. 3 Dowling, 2011-NMSC-016, ¶ 17, 150 N.M. 110, 257 P.3d 930 (“When a jury 4 instruction is facially erroneous, as when it directs the jury to find guilt based upon 5 a misstatement of the law, a finding of juror misdirection is unavoidable.”). 6 I. BACKGROUND 7 {5} Suazo had spent most of the day drinking and visiting with his longtime 8 friends, Vigil and Gage, at the trailer where he lived and in other locations in and 9 around Talpa, New Mexico. Vigil and Suazo were roughhousing throughout most of 10 the day. The two friends often wrestled this way when they were together. 11 {6} Sometime in the early afternoon, Vigil remarked that Suazo had a nice shotgun, 12 and Gage asked to see it. When Suazo brought out the shotgun, Gage opened it to 13 make sure that it was not loaded. At Gage’s request, Suazo disassembled and 14 reassembled the gun. When they finished with the gun, Gage saw Suazo place it 15 against the wall near the back door of the trailer. Gage was certain that the gun was 16 not loaded at that point. 17 {7} Later that afternoon, Suazo and Vigil were wrestling outside again. Suazo told 18 Vigil not to mess with him because he had just lost his brother. The roughhousing 3  1 continued. Vigil tried to push Suazo against a car, and then Suazo rushed into the 2 trailer. Suazo’s girlfriend, Shania Lujan, heard him cock the shotgun. At trial she 3 testified that she told Suazo to be careful with the gun and that he responded “Don’t 4 worry, it’s not loaded.” However, she had previously given a statement that Suazo 5 had only responded “Leave me alone.” She testified that Suazo then held the shotgun 6 with one hand and pointed it at Vigil while standing in the doorway of the trailer. She 7 said that Vigil laughed and then grabbed the barrel of the gun and stuck it into his 8 own mouth. At this point, Gage was standing almost directly behind Vigil. Suazo 9 pulled the trigger and the gun fired. Vigil was killed and Gage was seriously injured. 10 It is not clear when the gun was loaded and who loaded it. 11 II. DISCUSSION 12 A. The district court did not abuse its discretion by excluding certain 13 statements by Suazo as hearsay 14 {8} Suazo sought to elicit testimony from two witnesses at trial regarding 15 statements he made approximately an hour after the shooting, between 4:40 and 5:00 16 p.m. Elaine Medina and Rosemary Cruz, Suazo’s stepmother, testified that Suazo 17 told them he had killed his best friend, he did not know the gun was loaded, and he 18 did not understand what had happened. Medina testified that when Suazo made these 19 statements he was curled up in a ball and crying hard, and she had never seen him cry 4  1 like that. Similarly, Cruz testified that he appeared drunk, he seemed “very upset,” 2 and he was crying “a lot” when he made the statements. The State objected to the 3 witnesses’ statements as hearsay, but defense counsel argued that the statements 4 should be admitted under the excited utterance and present sense impression 5 exceptions to the hearsay rule. See Rule 11-803(1)-(2) NMRA. The district court 6 sustained the State’s objections and excluded the evidence. 7 {9} Although the Court of Appeals only certified the jury instruction issue to this 8 Court, we take this opportunity to resolve Suazo’s claim that the district court 9 erroneously excluded the witness testimony about statements that he made after the 10 shooting. See State v. Orosco, 1992-NMSC-006, ¶ 2 n.2, 113 N.M. 780, 833 P.2d 11 1146 (stating that this Court has jurisdiction over the entire case following acceptance 12 of certification). “We examine the admission or exclusion of evidence for abuse of 13 discretion, and the trial court’s determination will not be disturbed absent a clear 14 abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 15 P.3d 85. “An abuse of discretion occurs when the ruling is clearly against the logic 16 and effect of the facts and circumstances of the case. We cannot say the trial court 17 abused its discretion by its ruling unless we can characterize [the ruling] as clearly 18 untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 5  1 438, 971 P.2d 829 (internal quotation marks and citations omitted). We conclude that 2 there was no abuse of discretion in this case. 3 {10} There is no doubt that Suazo’s anguished statements to Medina and Cruz were 4 hearsay because they were out-of-court statements offered to prove what they 5 asserted—that Suazo did not realize the shotgun was loaded and he did not mean to 6 kill Vigil. See Rule 11-801 NMRA (defining as hearsay out-of-court statements 7 offered to prove the truth of what they assert). Such statements are inadmissible 8 unless an exception applies. Rule 11-802 NMRA. 9 {11} A statement that would otherwise be hearsay can be admitted under the excited 10 utterance exception when it “relat[es] to a startling event or condition” and is “made 11 while . . . under the stress or excitement” caused by that event or condition. Rule 11- 12 803(2). “[T]he theory underlying the excited utterance exception is that the exciting 13 event induced the declarant’s surprise, shock, or nervous excitement which 14 temporarily stills capacity for conscious fabrication and makes it unlikely that the 15 speaker would relate other than the truth.” State v. Flores, 2010-NMSC-002, ¶ 47, 16 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citations omitted). Thus, 17 “to constitute an excited utterance, the declaration should be spontaneous, made 18 before there is time for fabrication, and made under the stress of the moment.” Id. 6  1 (internal quotation marks and citations omitted). In determining whether to admit a 2 statement under the excited utterance exception, the district court should consider the 3 totality of the circumstances and 4 consider a variety of factors in order to assess the degree of reflection or 5 spontaneity underlying the statement. These factors include, but are not 6 limited to, how much time passed between the startling event and the 7 statement, and whether, in that time, the declarant had an opportunity for 8 reflection and fabrication; how much pain, confusion, nervousness, or 9 emotional strife the declarant was experiencing at the time of the 10 statement; whether the statement was self-serving[; and whether the 11 statement was] made in response to an inquiry[.] 12 State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 (alterations 13 in original) (internal quotation marks and citations omitted). 14 {12} Under the totality of the circumstances, in this case the district court did not 15 abuse its discretion by excluding testimony regarding Suazo’s statements to Medina 16 and Cruz after the shooting. Prior to making the statements, Suazo drove away from 17 the crime scene with his girlfriend and asked her to take the batteries out of his phone. 18 He told her during the drive that he was “gonna go away for a long time.” He made 19 several stops, including at his stepmother’s house, where he hid the shotgun. The 20 approximately one hour that elapsed between the shooting and the statements, 21 coupled with Suazo’s intervening actions and statements, could reasonably be 22 interpreted to indicate that he reflected on what had happened and the gravity of his 7  1 situation, and therefore his later statements were not sufficiently spontaneous so as 2 to assure their reliability and qualify them as excited utterances. 3 {13} We likewise reject Suazo’s claim that it was error for the district court not to 4 admit the statements under the present sense impression hearsay exception. The 5 present sense impression exception applies to statements “describing or explaining 6 an event or condition, made while or immediately after the declarant perceived it.” 7 Rule 11-803(1). Again, given the length of time and Suazo’s intervening actions 8 between the shooting and the statements, the district court properly exercised its 9 discretion to refuse to apply this exception and exclude the testimony as hearsay. See 10 Flores, 2010-NMSC-002, ¶¶ 51-53 (explaining that the contemporaneity of the event 11 with the timing of the statement is the critical consideration in analyzing whether a 12 hearsay statement qualifies as a present sense impression). 13 B. The district court erred by including “should have known” in the jury 14 instruction for second-degree murder 15 {14} At the conclusion of Suazo’s trial, the State tendered a modified jury 16 instruction for second-degree murder. New Mexico’s uniform jury instruction for 17 second-degree murder would require the jury to find beyond a reasonable doubt that 18 Suazo “knew that his acts created a strong probability of death or great bodily harm” 19 to Vigil or another. UJI 14-210. The State’s modified jury instruction in this case 8  1 inserted “knew or should have known” in place of the word “knew,” but was 2 otherwise consistent with the model instruction. The distinction between “knew” and 3 “should have known” was central to this case because if the jurors believed that 4 Suazo did not realize that the shotgun was loaded and the shooting was therefore an 5 accident, as he claimed, they could have reasonably found that he should have known 6 of the probability of death or great bodily harm to Vigil because he obviously did not 7 inspect the gun to determine if it was loaded. The district court gave the State’s 8 proposed jury instruction over defense counsel’s objection. Suazo contends that the 9 district court erred by adding the phrase “or should have known” in instructing the 10 jury on the mens rea required for second-degree murder. 11 {15} We review the jury instruction in this case for reversible error because Suazo 12 preserved his objection at trial. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 13 654, 265 P.3d 705. We conclude that there is reversible error when the jury 14 instructions, taken as a whole, cause juror confusion by “fail[ing] to provide the 15 juror[s] with an accurate rendition of the relevant law.” Id. ¶ 22 (internal quotation 16 marks and citation omitted); see also Rule 5-608(A) NMRA (“The court must instruct 17 the jury upon all questions of law essential for a conviction of any crime submitted 18 to the jury.”). “When a jury instruction is facially erroneous, as when it directs the 9  1 jury to find guilt based upon a misstatement of the law, a finding of juror misdirection 2 is unavoidable.” Dowling, 2011-NMSC-016, ¶ 17. To ascertain whether the 3 challenged instruction in this case accurately stated the law, we must determine 4 whether the requisite mens rea for second-degree murder is satisfied by a jury finding 5 that Suazo should have known that his acts created a strong probability of death or 6 great bodily harm to Vigil. This inquiry requires us to interpret the mens rea 7 component of our second-degree murder statute. “Our primary goal when 8 interpreting a statute is to determine and give effect to the Legislature’s intent.” Cook 9 v. Anding, 2008-NMSC-035, ¶ 7, 144 N.M. 400, 188 P.3d 1151. 10 {16} We begin with the plain language of the statute, which is “[t]he primary 11 indicator of legislative intent.” State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 12 177, 218 P.3d 863. Pursuant to Section 30-2-1(B), 13 Unless he is acting upon sufficient provocation, upon a sudden quarrel 14 or in the heat of passion, a person who kills another human being 15 without lawful justification or excuse commits murder in the second 16 degree if in performing the acts which cause the death he [or she] knows 17 that such acts create a strong probability of death or great bodily harm 18 to that individual or another. 19 (Emphasis added.) Under the statute, a defendant must know that his or her acts 20 create a strong probability of death or great bodily harm; there is no express 21 requirement that a defendant “should have known.” Id.; see also UJI 14-210 10  1 (instructing jurors that they must find that “[t]he defendant knew that his [or her] acts 2 created a strong probability of death or bodily harm” to convict for second-degree 3 murder). The statute’s plain language and New Mexico’s uniform jury instruction 4 require that the defendant possess knowledge of the probable consequences of his or 5 her acts. See § 30-2-1(B); UJI 14-210. By contrast, neither the statute nor the jury 6 instruction explicitly mentions whether a reasonable person “should have known” of 7 the probable consequences as a mens rea standard. We must give effect to this plain 8 language unless we detect some ambiguity in the statute that requires a different 9 interpretation. State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d 10 933. 11 {17} We are not persuaded by the State’s reliance on State v. Brown as a source of 12 ambiguity in the statute that requires us to read the statutory term “knows” to 13 encompass an objective knowledge of the risk through a “should have known” 14 standard. 1996-NMSC-073, ¶ 16, 122 N.M. 724, 931 P.2d 69. In Brown, this Court 15 determined that a jury may consider evidence of intoxication when a defendant has 16 been charged with first-degree depraved mind murder because the defendant’s 17 “subjective or actual knowledge of the high degree of risk involved in his conduct” 18 is an essential element of that offense. Id. ¶¶ 13, 19, 35. As part of our analysis in 11  1 Brown, we distinguished between the culpable mental states required by first- and 2 second-degree murder. Id. ¶¶ 14, 16. To that end, we opined that a defendant’s 3 “subjective knowledge” of the risk under depraved mind murder constituted proof of 4 a “wicked or malignant heart” and “utter disregard for human life,” while second- 5 degree murder only required an “objective knowledge of the risk” without any 6 showing that the act was performed with a wicked or malignant heart. Id. ¶ 16 7 (internal quotation marks omitted). Our Court’s discussion of the mens rea 8 requirement for second-degree murder in Brown was unnecessary to the resolution 9 of that case and was therefore dicta. 10 {18} Our differentiation between a defendant’s subjective and objective knowledge 11 of the risk was intended to draw a principled distinction between first-degree 12 depraved mind murder and second-degree murder. See id. ¶ 16. This issue has vexed 13 New Mexico courts since 1980, when New Mexico’s current statutory definitions of 14 the mens reas for murder in the first- and second-degree were enacted. 1980 N.M. 15 Laws, ch. 21. The amended statute changed the mens rea for second-degree murder 16 from “malice aforethought” to knowledge that a defendant’s acts created a strong 17 probability of death or great bodily harm. Compare id. with NMSA 1953, § 40A-2-1 18 (1963). After this new language was enacted, courts and commentators alike noted 12  1 the difficulty in distinguishing between the knowledge requirements for first-degree 2 depraved mind murder (knowledge that an act is greatly dangerous to the lives of 3 others, indicating a depraved mind without regard for human life) and second-degree 4 murder (knowledge that an act creates a strong probability of death or great bodily 5 harm to the victim or another person). See Leo M. Romero, Unintentional Homicides 6 Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved 7 Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal 8 Homicide in New Mexico, 20 N.M. L. Rev. 55, 61-69 (1990) (identifying potential 9 distinctions between depraved mind murder and second-degree murder and 10 discussing the efforts of New Mexico courts to differentiate between the two). 11 {19} This Court first grappled with this thorny distinction in State v. McCrary, 12 which was decided more than a decade prior to Brown. McCrary, 1984-NMSC-005, 13 100 N.M. 671, 675 P.2d 120. In McCrary we determined that first-degree depraved 14 mind murder required proof of the defendant’s subjective knowledge that his or her 15 act was greatly dangerous to the lives of others. Id. ¶¶ 8-10. We relied on the 16 committee commentary to the uniform jury instruction on first-degree depraved mind 17 murder which existed at that time, which asserted that second-degree murder required 18 an objective test of a defendant’s knowledge, presumably implying that a “should 13  1 have known” standard would satisfy the mens rea requirement for second-degree 2 murder. Id. ¶ 8, referring to NMSA 1978, UJI Crim. 2.05, committee commentary 3 (Repl. Pamp. 1982). 4 {20} However, the committee commentary to a jury instruction is only persuasive 5 to the extent that it correctly states the law. See State v. Johnson, 2001-NMSC-001, 6 ¶ 16, 130 N.M. 6, 15 P.3d 1233 (disapproving of a uniform jury instruction and its 7 commentary because it was a “misstatement of [the] law”), holding limited on other 8 grounds by State v. Sims, 2010-NMSC-027, ¶¶ 31-32, 148 N.M. 330, 236 P.2d 642. 9 The passage in the commentary relied on by the McCrary Court is “doubtful 10 authority” that objective knowledge is sufficient for second-degree murder. Romero, 11 supra, at 65; see UJI Crim. 2.05, committee commentary (Repl. Pamp. 1982) (citing 12 Wayne R. LaFave & Austin W. Scott, Handbook On Criminal Law 544 (1972)). As 13 Professor Romero has noted, it appears that the drafters of the committee commentary 14 “lifted a sentence out of context and mistakenly assumed that the treatise supports an 15 objective standard for second degree murder.” Romero, supra, at 65-67. Instead, the 16 quoted portion of LaFave and Scott states that under first-degree depraved mind 17 murder, it is “unusual” that a defendant’s subjective realization of the risk will be at 18 issue, and argues that attendant circumstances known to a reasonable person will 14  1 often be sufficient to establish that the defendant knew that his or her acts were 2 greatly dangerous to the lives of others. Id.; see also UJI Crim. 2.05, committee 3 commentary (quoting LaFave & Scott at 544). Indeed, in the next paragraph the 4 treatise argues that a subjective realization of the risk should be required to convict 5 for any degree of murder due to the drastic penal consequences of a murder 6 conviction. LaFave & Scott, supra, at 544. 7 {21} To further confuse matters, a little over a year after McCrary was decided, we 8 held in State v. Beach that second-degree murder contained a specific “element of 9 subjective knowledge.” 1985-NMSC-043, ¶ 12, 102 N.M. 642, 699 P.2d 115. Beach 10 was later overruled in Brown “[t]o the extent that . . . Beach . . . holds that second- 11 degree murder contains the same ‘subjective knowledge’ element as [first-degree] 12 depraved mind murder.” Brown, 1996-NMSC-073, ¶ 16. 13 {22} The Brown Court overruled Beach in dicta, which likely explains why since 14 Brown was decided, neither our case law nor our uniform jury instructions have 15 applied the Brown dicta to second-degree murder cases. But cf. State v. Reed, 16 2005-NMSC-031, ¶ 81, 138 N.M. 365, 120 P.3d 447 (Serna, J., concurring in part and 17 dissenting in part) (advocating for a “should have known” standard to be incorporated 18 into the uniform jury instruction for second-degree murder based on Brown in a case 15  1 discussing first-degree depraved mind murder); State v. Baca, 1997-NMSC-059, ¶ 35, 2 124 N.M. 333, 950 P.2d 776 (referring to the objective test for second-degree murder 3 in analyzing an ineffective assistance of counsel claim in the context of a conviction 4 for aiding and abetting first-degree depraved mind murder). Reed clarified that first- 5 degree depraved mind murder can be differentiated from second-degree murder 6 because depraved mind murder requires a jury finding that the defendant’s act 7 “indicated a depraved mind without regard for human life.” 2005-NMSC-031, ¶ 21. 8 We laid out several indicators of a depraved mind in Reed, including (1) the number 9 of persons subjected to the risk, (2) subjective knowledge that the defendant’s act was 10 greatly dangerous to human life, and (3) an element of “intensified malice or evil 11 intent.” Id. ¶¶ 22-24 (internal quotation marks and citation omitted). Notably, the 12 majority opinion in Reed did not adopt the subjective-objective dichotomy urged by 13 the dissent in that case and the Brown dicta. See Reed, 2005-NMSC-031, ¶ 81 (Serna, 14 J., concurring in part and dissenting in part). However, the Reed majority stayed true 15 to Brown by clarifying how the knowledge standard for first-degree depraved mind 16 murder was distinct from the knowledge standard for second-degree murder. Reed, 17 2005-NMSC-031, ¶ 21; see Brown, 1996-NMSC-073, ¶ 16. The uniform jury 18 instructions have since been revised to elaborate upon the meaning of a “depraved 16  1 mind” and further distinguish first-degree depraved mind murder from second-degree 2 murder; however, the second-degree murder instruction has never been revised to 3 incorporate an objective “should have known” knowledge standard. See UJI 14-203, 4 14-210 to -213 NMRA. 5 {23} This Court’s hesitancy to adopt the mens rea for second-degree murder 6 advocated by the Brown dicta is commensurate with our consistent statements that a 7 negligent or accidental killing could not satisfy the elements of second-degree 8 murder. See, e.g., State v. Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d 9 1196 (holding that an “unintentional or accidental killing will not suffice” to establish 10 the mens rea element of second-degree murder), abrogation recognized on other 11 grounds by State v. Marquez, 2016-NMSC-025, ¶ 14, 376 P.3d 815; State v. Campos, 12 1996-NMSC-043, ¶ 18, 122 N.M. 148, 921 P.2d 1266 (“[A] negligent or accidental 13 killing would not constitute second-degree murder . . . .”); see also State v. 14 McGruder, 1997-NMSC-023, ¶ 21, 123 N.M. 302, 940 P.2d 150 (same), abrogated 15 on other grounds by State v. Chavez, 2009-NMSC-035, ¶ 26, 146 N.M. 434, 211 P.3d 16 891. Our longstanding refusal to endorse a theory of negligent murder forecloses the 17 implication in Brown that to convict of second-degree murder it would be sufficient 18 for the jury to find that a defendant should have known of the risk of his or her 17  1 conduct without anything more, because that is essentially a civil negligence 2 standard. See State v. Consaul, 2014-NMSC-030, ¶ 39, 332 P.3d 850 (noting the 3 close association between the phrase “knew or should have known” and principles 4 of civil negligence (internal quotation marks omitted)); see also Romero, supra, at 65 5 (“To say that a person should have known of the risk imposes a negligence standard 6 based on an objective test of what the reasonable person would have known under the 7 circumstances.”). Indeed, it is a “concept firmly rooted in our jurisprudence [that 8 w]hen a crime is punishable as a felony, civil negligence ordinarily is an 9 inappropriate predicate by which to define such criminal conduct” in the absence of 10 some contrary indication from the Legislature. Santillanes v. State, 1993-NMSC-012, 11 ¶¶ 30-31, 115 N.M. 215, 849 P.2d 358. 12 {24} Further, if we were to adopt a “should have known” standard for second-degree 13 murder, we would render inconsistent the culpability requirements under New 14 Mexico’s various homicide statutes. For example, the lesser offense of involuntary 15 manslaughter requires that a defendant have acted “without due caution and 16 circumspection.” NMSA 1978, § 30-2-3(B) (1994). In State v. Yarborough, we 17 clarified that “the State must show at least criminal negligence to convict . . . of 18 involuntary manslaughter.” 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131. 18  1 The uniform jury instruction for involuntary manslaughter requires proof that a 2 defendant “should have known of the danger involved” in his or her actions and also 3 “acted with a willful disregard for the safety of others.” UJI 14-231 NMRA. It would 4 be incongruent to interpret our second-degree murder statute to require a less culpable 5 mental state (ordinary negligence) than the minimum level of culpability required by 6 involuntary manslaughter (criminal negligence). See State v. Nick R., 7 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (“We must take care to avoid 8 adoption of a construction that would render the statute’s application absurd or 9 unreasonable or lead to injustice or contradiction.” (internal quotation marks and 10 citation omitted)). 11 {25} We detect no ambiguity in Section 30-2-1(B) that would require us to interpret 12 the knowledge requirement to extend to situations where a defendant did not know 13 of the risk created by his or her act, but instead merely should have known of that 14 risk. Despite some confusing language in our case law regarding first-degree 15 depraved mind murder, we have never incorporated an objective “should have 16 known” standard into our cases analyzing second-degree murder, or otherwise 17 implied that ordinary negligence could be a sufficiently culpable mental state to 18 support any kind of murder conviction. Our uniform jury instructions, to which the 19  1 State’s tendered instruction added a “should have known” component, have also 2 never incorporated an ordinary negligence standard for second-degree murder. 3 Accordingly, the instruction in this case misstated the mens rea element of second- 4 degree murder, and it was therefore error for the district court to provide this 5 instruction to the jury.2 6 C. The district court’s misstatement of the essential mens rea element is 7 reversible error requiring a new trial 8 {26} “[I]f an instruction is facially erroneous it presents an incurable problem and 9 mandates reversal.” State v. Parish, 1994-NMSC-073, ¶ 4, 118 N.M. 39, 878 P.2d 10 988; see also State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (“A 11 jury instruction which does not instruct the jury upon all questions of law essential 12 for a conviction of any crime submitted to the jury is reversible error.” (internal 13 quotation marks and citations omitted)). 14 {27} Our rules require lawyers to object to erroneous instructions, as defense 15 counsel did in this case. Rule 5-608(D). The purpose of this requirement is to alert 16 the trial court to the problem with the instruction and to allow the court an 17 opportunity to correct the error. Id. In this case, a uniform jury instruction has been 2 18 We note that the current committee commentary to UJI 14-203 states that 19 second-degree murder requires proof of objective knowledge, citing Reed and Brown. 20 The committee should revisit this commentary in light of our opinion in this case. 20  1 available for second-degree murder since 1981. NMSA 1978, UJI Crim. 2.10 (1981) 2 (“Second Degree Murder: voluntary manslaughter lesser included offense; essential 3 elements”); UJI Crim. 2.11 (1981) (“Second Degree Murder: voluntary manslaughter 4 not lesser included offense; essential elements”). “[W]hen a uniform instruction is 5 provided for the elements of a crime, . . . the uniform instruction should be used 6 without substantive modification . . . [unless] alteration is adequately supported by 7 binding precedent . . . and where the alteration is necessary in order to accurately 8 convey the law to the jury.” Uniform Jury Instructions—Criminal, Contents, General 9 Use Note (2015). For the essential elements of crimes not contained in a uniform jury 10 instruction, the court must draft an instruction, and ordinarily that instruction is 11 adequate if it substantially follows the language of the statute. See State v. Doe, 12 1983-NMSC-096, ¶ 8, 100 N.M. 481, 672 P.2d 654 (“[I]f the jury instructions 13 substantially follow the language of the statute or use equivalent language, then they 14 are sufficient.”), holding modified by Beach, 1985-NMSC-043, ¶ 12. The 15 modification of the uniform jury instruction in this case was not supported by binding 16 precedent, and it neither accurately conveyed the law to the jury nor substantially 17 followed the language of Section 30-2-1(B). This was not a case where the mens rea 18 element was not at issue or where the evidence was undisputed and indisputable. 21  1 Instructing the jury with a non-uniform jury instruction compromised Suazo’s 2 “fundamental right . . . to have the jury determine whether each element of the 3 charged offense has been proved by the state beyond a reasonable doubt,” and it was 4 therefore reversible error. Cabezuela, 2011-NMSC-041, ¶ 39 (internal quotation 5 marks and citations omitted). 6 {28} The State argues that we should not reverse because the jury found beyond a 7 reasonable doubt that Suazo “intended to injure Roger Gage or another,” which the 8 State contends no reasonable juror would have found while also finding that Suazo 9 did not know of the strong probability of death or great bodily harm to Vigil. Indeed, 10 in a prior case we held that a failure to instruct on an essential element of an offense 11 does not warrant reversal under a reversible error standard “[w]hen there can be no 12 dispute that the essential element was established.” Santillanes, 1993-NMSC-012, 13 ¶ 32 (concluding that in conducting its analysis, a court must consider whether there 14 is some evidence, no matter how slight, or a reasonable inference from such evidence, 15 that proves the element in issue) (citing Orosco, 1992-NMSC-006, ¶¶ 10-12)). 16 {29} In Santillanes we upheld the defendant’s conviction for child abuse under a 17 reversible error standard despite a jury instruction erroneously requiring the jurors to 18 find a civil negligence mens rea rather than the requisite statutory mens rea of 22  1 criminal negligence. 1993-NMSC-012, ¶¶ 32-34. In that case, the defendant was 2 accused of cutting his seven-year-old nephew’s throat with a knife during a scuffle, 3 but he claimed that his nephew had injured himself by jumping into a fishing line 4 strung between two trees, and notably did not argue that he had inadvertently caused 5 the boy’s throat to be cut. Id. ¶¶ 2, 33. The contested issue was whether the 6 defendant cut his nephew’s throat, not whether he cut his nephew’s throat with 7 criminal or civil negligence. We relied on the jury’s finding that the defendant had 8 cut his nephew’s throat with a knife, and concluded that under those facts “no rational 9 jury” could have determined that the nephew’s throat had been cut “without satisfying 10 the standard of criminal negligence” that should have been applied in that case. Id. 11 ¶ 34. Put another way, the element at issue in Santillanes was whether the defendant 12 had committed a specific act, not his mens rea. Thus, the jury’s finding beyond a 13 reasonable doubt that the defendant cut his nephew’s throat with a knife was also 14 necessarily a finding beyond a reasonable doubt that the defendant acted with at least 15 a mental state of criminal negligence in so doing. 16 {30} According to the dissent and the State, we should view this case similarly 17 because the jury found beyond a reasonable doubt that Suazo intended to injure Gage 18 or another by shooting a shotgun in Vigil’s mouth, which the State contends was 23  1 effectively a finding beyond a reasonable doubt that Suazo knew the gun was loaded 2 and that shooting it would create a strong probability of death or great bodily harm 3 to Vigil. That Suazo pulled the trigger of the shotgun was not at issue in the case. 4 Instead, the issue was whether he pulled the trigger of a shotgun that he knew was 5 loaded. Therefore, unlike in Santillanes, where the instructional error related to what 6 was essentially an uncontested issue, the mens rea element was a central aspect of this 7 case. We cannot say with certainty whether the jury found that Suazo knew the 8 shotgun was loaded, or whether jurors merely found that he should have known 9 because a simple inspection of the shotgun would have revealed whether it was 10 loaded. The latter finding cannot support a second-degree murder conviction 11 because, as we have previously discussed, mere negligence is not enough to prove 12 second-degree murder. The misstatement of the mens rea element misdirected the 13 jury, potentially allowing the jurors to convict Suazo based upon a finding that could 14 not support a second-degree murder conviction under the appropriate legal standard. 15 {31} It is tempting to agree with the dissent and the State that the intent to injure 16 element of aggravated battery satisfies the mens rea requirement for second-degree 17 murder because New Mexico criminalizes intent-to-injure battery, see State v. 18 Vasquez, 1971-NMCA-182, ¶ 12, 83 N.M. 388, 492 P.2d 1005 (recognizing that 24  1 aggravated battery requires proof of an intent to injure). If a jury finds that a 2 defendant intended to injure a person by pulling the trigger of a firearm, it is 3 reasonable to conclude that the jury found that the defendant knew that the firearm 4 was loaded, that it would discharge, and that pulling the trigger created a strong 5 probability of great bodily harm or death. Alternatively, if the jury was misled into 6 believing that the intent to injure element of aggravated battery is satisfied if the jury 7 finds that the defendant should have known that pulling the trigger created a strong 8 probability of great bodily harm or death, then it cannot be indisputable that the jury 9 found that the defendant knew the firearm was loaded and would discharge. The 10 latter situation is what occurred in this case. When discussing the instruction for 11 aggravated battery, the prosecutor told the jurors, 12 If you believe that [Suazo] committed second-degree murder, and that 13 he knew or should have known that his actions created great bodily harm 14 or death, towards Matthew Vigil, injuring Matthew Vigil, and as a result 15 he injures Roger Gage, that’s transferred intent. That’s where we get to 16 that element on Roger Gage. 17 (Emphasis added.) Thus, not only did the prosecution—perhaps negligently— 18 mislead the district court into issuing an erroneous instruction, the prosecution also 19 misled the jury into believing that the erroneous mens rea element for second-degree 20 murder—negligence—was sufficient to support a finding of aggravated battery. We 25  1 need not decide whether New Mexico recognizes the crime of criminal-negligence 2 battery because in this case the prosecution did not try to make a case for criminal- 3 negligence battery; instead, the prosecution argued a case for negligence battery. The 4 prosecution’s errant statement to the jury further undermines the State’s premise that 5 the jurors must have believed that Suazo knew that the gun was loaded to convict him 6 of aggravated battery against Gage. Despite the State’s contentions in this case, the 7 jury’s intent finding under aggravated battery is simply not enough for us to say with 8 certainty that the jury necessarily found a different, and highly contested, mens rea 9 for the offense of second-degree murder.3 10 {32} Having concluded that the error in this case mandates reversal, to avoid double 11 jeopardy concerns, we must examine whether sufficient evidence in this case supports 12 retrying Suazo. Dowling, 2011-NMSC-016, ¶ 18. Under a sufficiency of the 13 evidence test, we view the evidence in the light most favorable to the verdict and 14 draw all inferences in favor of the verdict to determine “whether substantial evidence 3 15 Although we cannot state with certainty how the jurors deliberated with 16 respect to each offense, there is at least a possibility that the jurors first considered 17 the second-degree murder charge, and determined Suazo’s guilt prior to considering 18 the battery charge. Therefore, the erroneous instruction may have influenced their 19 thinking with respect to battery. After all, once the jurors concluded that Suazo 20 committed second-degree murder, how could they not convict him of the lesser 21 offense of injuring Gage with the same shot? 26  1 of either a direct or circumstantial nature exists to support a verdict of guilty beyond 2 a reasonable doubt with respect to every element essential to a conviction.” State v. 3 Samora, 2016-NMSC-031, ¶ 34, ___ P.3d ___ (internal quotation marks and citations 4 omitted). In this case, to retry Suazo for second-degree murder with manslaughter as 5 a lesser-included offense, substantial evidence must exist to support the following 6 elements: (1) Suazo killed Vigil, (2) Suazo knew that his acts created a strong 7 probability of death or great bodily harm to Vigil or any other human being, (3) Suazo 8 did not act as a result of sufficient provocation, and (4) this happened in New Mexico. 9 Section 30-2-1(B); UJI 14-210. The first and fourth elements were undisputed in this 10 case, so the only issue is whether the mens rea and lack of sufficient provocation 11 components of the State’s case were met. 12 {33} Viewing the evidence in the light most favorable to a guilty verdict, we 13 conclude that there was sufficient evidence to support a reasonable jury’s conclusion 14 that the mens rea and lack of sufficient provocation elements were met in this case. 15 First, the jury could have reasonably inferred from Suazo’s statements, the ambiguous 16 evidence regarding who loaded the gun and when it was loaded, and the steps Suazo 17 took after the crime to conceal evidence, that Suazo knew the gun was loaded and 18 knew that pulling the trigger would cause great bodily harm or death to Vigil. 27  1 Second, the jurors could have reasonably concluded that the roughhousing between 2 Suazo and Vigil, an activity in which they frequently engaged and had been engaged 3 in throughout that day, was not enough to constitute sufficient provocation to reduce 4 the crime to manslaughter. See UJI 14-222 NMRA (“ ‘Sufficient provocation’ can 5 be any action, conduct or circumstances which arouse anger, rage, fear, sudden 6 resentment, terror or other extreme emotions. The provocation must be such as would 7 affect the ability to reason and to cause a temporary loss of self control in an ordinary 8 person of average disposition. The ‘provocation’ is not sufficient if an ordinary 9 person would have cooled off before acting.”). 10 III. CONCLUSION 11 {34} Suazo’s evidentiary arguments lack merit. The second-degree murder 12 instruction misstated the mens rea element for second-degree murder, and it therefore 13 requires reversal. We reverse Suazo’s conviction for second-degree murder and 14 remand for a new trial. 15 {35} IT IS SO ORDERED. 16 _____________________________ 17 EDWARD L. CHÁVEZ, Justice 28 1 WE CONCUR: 2 ___________________________________ 3 CHARLES W. DANIELS, Chief Justice 4 ___________________________________ 5 PETRA JIMENEZ MAES, Justice 6 ___________________________________ 7 BARBARA J. VIGIL, Justice 8 JUDITH K. NAKAMURA, Justice, concurring in part and dissenting in part 29  1 NAKAMURA, Justice (concurring in part; dissenting in part). 2 {36} This case is destined for the criminal law treatises. A shoots C. B is standing 3 between A and C. In order for A to shoot C, A must fire through B’s head. If we 4 accept these facts as true, what must A have known were the likely consequences for 5 B of A’s shooting C? There can be only one conclusion: A must have known that 6 there was a strong probability B would die. These, of course, are the facts of this 7 case. 8 {37} Suazo pointed the shotgun at Vigil, and Vigil inexplicably placed the barrel of 9 the shotgun into his mouth. Gage was standing behind Vigil. When Suazo pulled the 10 trigger and fired the shotgun, the shotgun pellets exploded from the cartridge, fired 11 out of the barrel of the shotgun, traveled into Vigil’s mouth, passed through Vigil’s 12 head killing him, and entered Gage’s body causing Gage serious injuries. For 13 perpetrating this act against Gage, Suazo was convicted of aggravated battery with 14 a deadly weapon. Suazo did not challenge the propriety of either the aggravated- 15 battery instruction or his conviction for aggravated battery. 16 {38} At trial, the jury was instructed that 17 For you to find [Suazo] guilty of aggravated battery with a deadly 18 weapon . . . the [S]tate must prove to your satisfaction beyond a 19 reasonable doubt each of the following elements of the crime: 30  1 1. [Suazo] touched or applied force to Roger Gage by shooting at 2 him with a firearm. 3 [Suazo] used a 12 gauge shotgun. 4 2. [Suazo] intended to injure Roger Gage or another; 5 3. This happened in New Mexico on or about the 21st day of May, 6 2013. 7 This instruction mirrors the uniform instruction. See UJI 14-322 NMRA. 8 {39} Aggravated battery is a specific intent crime. State v. Crespin, 9 1974-NMCA-104, ¶ 8, 86 N.M. 689, 526 P.2d 1282. “Specific intent to injure a 10 person is an essential element of the crime. The state must prove beyond a reasonable 11 doubt that the defendant knowingly committed an aggravated battery, purposely 12 intending to violate the law.” Id. (citation omitted). A firearm is a deadly weapon. 13 NMSA 1978, § 30-1-12(B) (1963) (“‘deadly weapon’ means any firearm . . . .”). 14 When, as in this case, aggravated battery is committed with a deadly weapon, the jury 15 need not be instructed that the weapon used was likely to cause death or great bodily 16 harm. See State v. Murillo, 2015-NMCA-046, ¶ 21, 347 P.3d 284 (explaining that the 17 jury need not find that a switchblade could cause death or great bodily harm because 18 a switchblade is per se a deadly weapon). Deadly weapons necessarily inflict great 19 bodily harm or fatal wounds. 20 {40} I agree with the majority that the instruction submitted to Suazo’s jury on 31  1 second-degree murder was incorrect. Maj. Op. ¶ 25. But we have previously 2 recognized that requiring reversal in every circumstance where a jury is misinstructed 3 would not only be unwise but would lead to undesirable results. See State v. Orosco, 4 1992-NMSC-006, ¶ 13, 113 N.M. 780, 833 P.2d 1146 (“Applying a rule of automatic 5 reversal is not required by the relevant constitutional principles and fails to take into 6 account our role as an appellate tribunal.”). Accordingly, we have held that, even 7 where a jury is misinstructed, the conviction may be affirmed so long as the omitted 8 or misstated element was properly and indisputably established. Id. ¶ 12; see also 9 Santillanes v. State, 1993-NMSC-012, ¶ 32, 115 N.M. 215, 849 P.2d 358. 10 {41} The jury’s decision to convict Suazo of aggravated battery against Gage 11 indisputably establishes that the jury must also have found that Suazo acted with the 12 required mens rea for second-degree murder. Suazo necessarily knew that, if he 13 committed aggravated battery against Gage with the shotgun, then Vigil would almost 14 certainly die. This must be true because, in order to commit aggravated battery 15 against Gage, Suazo had to fire the shotgun into Vigil’s mouth and through his head. 16 Because Suazo necessarily acted with the mens rea required to convict him of second 17 degree murder, the error in the second-degree murder instruction was not reversible. 18 Santillanes does not compel a different result. 32  1 {42} In Santillanes, the jury was misinstructed on the mens rea requirement for child 2 abuse, id. ¶¶ 29, 32, but we concluded that the error was not reversible. Id. ¶ 34. We 3 noted that “the defendant cut his nephew’s throat with a knife” from “just below his 4 right ear across to the left side of his neck below his jaw,” and that the jury found the 5 defendant cut the boy during a scuffle. Id. ¶¶ 33-34. We concluded that “no rational 6 jury” could have concluded that the defendant perpetrated these acts without also 7 necessarily concluding that the defendant acted with criminal negligence, the mens 8 rea requirement that the state was required to establish. Id. 9 {43} As the majority observes, Maj. op. ¶ 29, we expressly noted in Santillanes that 10 the defendant “did not argue that he inadvertently caused the boy’s throat to be cut.” 11 1993-NMSC-012 ¶ 33. According to the majority, this indicates that the mens rea 12 element of the offense for which the defendant in Santillanes was convicted was not 13 contested. Maj. op. ¶¶ 29-30. By contrast, Suazo maintained at trial that he did not 14 know the gun he fired into Vigil’s mouth and through his head was loaded, which was 15 an attempt to show he did not possess the necessary mens rea for second-degree 16 murder. For the majority, this distinction is crucial. Id. ¶ 29. The majority contends 17 that Suazo’s trial theory sufficiently distinguishes his case from Santillanes and 18 precludes this Court from resolving “whether the jury found that Suazo knew the 33  1 shotgun was loaded, or whether jurors merely found that he should have known 2 because a simple inspection of the shotgun would have revealed whether it was 3 loaded.” Id. ¶ 30. I do not concur. 4 {44} Unlike in Santillanes, Suazo was convicted of multiple offenses. Suazo’s jury 5 was correctly instructed that it had to find that the aggravated battery was 6 intentionally committed, and it so found. Therefore, the jury necessarily rejected 7 Suazo’s theory of the case. Only one shot was fired; it killed Vigil and grievously 8 injured Gage. That single shot could not be both intentional and accidental. Thus, 9 if Suazo intentionally fired the shot which injured Gage, he could not have 10 accidentally shot Vigil. Because Suazo’s jury found that Suazo intentionally fired the 11 shot that injured Gage, the jury necessarily rejected Suazo’s claim that he accidentally 12 killed Vigil. 13 {45} Lastly, I see no reason to conclude that the erroneous second-degree murder 14 instruction somehow infected the jury’s deliberation with respect to aggravated 15 battery. Maj op. ¶ 31 n.3. The district court properly instructed the jury on 16 aggravated battery. See State v. Privett, 1986-NMSC-025, ¶ 9, 104 N.M. 79, 717 17 P.2d 55 (instructing district courts to use uniform instructions when they exist). “The 18 jury is presumed to follow the court’s instructions.” State v. Gonzales, 34  1 1992-NMSC-003, ¶ 35, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds 2 by State v. Montoya, 2013-NMSC-020, 306 P.3d 426. And as noted, Suazo did not 3 challenge the propriety of the aggravated-battery instruction or his conviction for that 4 offense. Nor am I persuaded that the prosecution’s statement about transferred intent 5 misled the jury. Maj op. ¶ 31. Suazo did not object to the prosecutor’s statement and 6 the issue was not argued on appeal. Moreover, instruction number one informed 7 Suazo’s jury that “[t]he law governing this case is contained in instructions that I am 8 about to give you. It is your duty to follow the law as contained in these 9 instructions.” If misdirection occurred, it was cured by proper instructions. 10 {46} For the reasons set out above, I would affirm Suazo’s second-degree murder 11 conviction. I concur that the district court did not abuse its discretion in excluding 12 the statements Suazo made after the shooting. 13 _____________________________ 14 JUDITH K. NAKAMURA, Justice 35 

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit \ ARKANSAS GAME & FISH COMMISSION, Plaintiff-Cross Appellant, V. UNITED STATES, Defendcmt-Appellant. 2009-5121, 2010-5029 Appea1s from the United States Court of Federa1 C1aims in case no. 05-CV-381, Judge Char1es F. Lettow. ON MOTION ORDER The United States moves without opposition for a 25- day extension of time, until Ju1y 23, 2G10, to file a re- sponse/reply brief. Arkansas Game & Fish Co1n1nission opposes Upon consideration thereof, IT ls ORDERED THAT: The motion is granted No further extensions should be anticipated ARKANSAS GAME 85 FISH CO1V[M V. US 2 FoR THE CoURT -jul 1 5 /s/ Jan Horba1y Date cc: J u1ie D. Greathouse, Esq. Rbbert J. Lundman, Esq. J an H0rba1y C1erk s20 la 0 U.S. COURT 0¥ THE FEDERA$.FC|:F?ACll‘?ITmR .1uL 15 2010 .|AN HORBALY CLERK

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-18-00251-CV IN THE INTEREST OF D.N.M., I.S.C., R.L.L., CHILDREN On Appeal from the County Court at Law Moore County, Texas Trial Court No. CL 130-17, Honorable Delwin T. McGee, Presiding September 13, 2018 MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ. “Sam” appeals the trial court’s order terminating his parental rights to his daughter “Riley.”1 Sam challenges the judgment of termination because the judge did not specify the grounds or best interest finding in his oral pronouncement. Sam also contends the evidence was not legally or factually sufficient to support a finding of best interest. We affirm the judgment of the trial court. 1 To protect the privacy of the parties involved, we will refer to the appellant father as “Sam,” the mother as “Amber,” the child the subject of this appeal as “Riley,” the child’s siblings as “Denise” and “Ivy,” and the maternal grandmother as “Renee.” See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b).  Factual and Procedural Background Amber is the mother of Riley, Ivy, and Denise. Sam is the father of Riley, but Denise and Ivy have different fathers.2 Sam was present at the birth of Riley in March of 2013. Shortly thereafter, Amber and Riley moved out of state while Sam stayed in Dumas. In the beginning of 2017, Amber and Riley returned to Dumas. At that time, Sam obtained temporary orders for visitation with Riley. He was also ordered to pay child support of $441 per month. A few months later, the Texas Department of Family and Protective Services became involved with Amber due to her use of methamphetamine. On June 30, 2017, the Department obtained an emergency order of protection and placed Riley, Denise, and Ivy with their maternal grandmother, Renee. The Department developed a family service plan for Sam and the trial court ordered compliance with the plan’s requirements. The service plan required Sam to complete a psychological evaluation; obtain an Outreach, Screening, Assessment, and Referral (OSAR); attend rational behavior training (RBT); participate in a parenting class; complete individual counseling; maintain housing and employment; provide proof of employment; attend visits with Riley; allow home visits; maintain contact with the Department; pay his court-ordered child support; and submit to random drug screens. During the course of the case, Sam admitted to regular marijuana use. His hair follicle drug test on September 11, 2017, was positive for marijuana and 2 In the same order of termination, the trial court terminated the parental rights of Sam and the fathers of Denise and Ivy. That order also terminated Amber’s parental rights as to all three of the children. Only Sam has appealed. 2 methamphetamine. His urinalysis drug screen was positive for marijuana on that same date. He declined to drug screen five other times when requested by the Department. His urinalysis on April 5, 2018, was also positive for marijuana and he refused to submit to a court-ordered hair follicle drug test on that same date. Sam did not complete his court-ordered services. Notably, he failed to pay his court-ordered child support, did not maintain employment, did not participate in a drug abuse assessment, did not obtain a psychological evaluation or attend counseling, and did not visit with Riley during the pendency of the case. When the case began, Sam was employed at JBS and Allsup’s. He quit working at JBS in September of 2017 so that he could attend parenting classes. After that, he “started working small jobs here and there.” He worked at McDonald’s for two weeks. At the time of trial, Sam was employed at Sonic. According to Sam, he started taking his parenting classes in August of 2017, and he still had two classes left to complete as of the trial date in June of 2018. He said his counseling and RBT were scheduled for June, a date after the termination hearing. Appellant said he had been “trying to call [OSAR] and [he hadn’t] got an answer back.” He waited so long to start services because he was uncertain whether he was actually Riley’s father. Sam claims that he did not know about the drug screens requested by the Department. He testified that he did not have a telephone from September of 2017 until April of 2018. Later, he said he had a phone in December of 2017, but he could not remember the names of the providers he called to arrange services under the plan of service. 3  Sam testified that he did not pay court-ordered child support “because every time I would offer them money, they would say, ‘I don’t need your money, I don’t need your help, stay away from our house.’” Five-year-old Riley is placed with Renee, her maternal grandmother. Her sisters, nine-year-old Denise and eight-year-old Ivy, also live with Renee. Riley was in desperate need of eyeglasses when she was placed with Renee, and Renee took care of that need almost immediately. Renee described the children as “really good girls,” and stated, “I really love them.” The children are doing well in Renee’s home. They have all their needs met and are thriving. Riley is bonded with Renee and was ready to start kindergarten in the fall of 2018. According to Renee, Riley is scared of Sam because of an incident that happened between Sam and his girlfriend when he had Riley for visitation. That is the last time that Sam had visitation with Riley. The case was tried to the court on June 12, 2018. At the conclusion of the trial, the court granted the Department’s request to terminate Sam’s parental rights. The trial judge did not announce any specific grounds for termination of Sam’s rights, nor did he announce that termination was in the best interest of Riley. However, the trial court’s written judgment ordered termination on the grounds of inadequate support, endangering conduct, constructive abandonment, and failure to comply with a court order that established actions necessary to retain custody of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (E), (N), (O) (West Supp. 2017).3 The judgment also recites that 3 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.” 4 termination was in Riley’s best interest. See § 161.001(b)(2). The trial court appointed the maternal grandmother as the permanent managing conservator of Riley. Applicable Law A parent’s right to the “companionship, care, custody, and management” of his or her child is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child’s best interests. See id. In a case to terminate parental rights by the Department under section 161.001 of the Family Code, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and termination may not be based solely on the best 5 interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.— Amarillo 2009, pet. denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights if the evidence also establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95. Standards of Review When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should look at all of the evidence in the light most favorable to the trial court’s finding “to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that 6 must be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266). In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department’s allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. Analysis Oral Pronouncement of Judgment Sam challenges the validity of the trial court’s judgment of termination because the judge did not specify the predicate grounds or include the best interest finding in his oral pronouncement.4 In its written order, the trial court terminated Sam’s parental rights pursuant to sections 161.001(b)(1) (C), (E), (N), and (O) and found termination to be in the best interest of the child. 4 Sam presents this issue in his brief as “Whether the evidence was legally and factually sufficient to support the trial court’s ruling to terminate Appellant’s parental rights,” but Sam does not brief this point nor provide the Court with any analysis of the facts and the law in regard to this issue. Accordingly, the issue, if truly raised by Sam, is insufficiently briefed. See TEX. R. APP. P. 38.1(i). As such, this issue is waived. In re K.C.B., 280 S.W.3d 888, 896 (Tex. App.—Amarillo 2009, pet. denied) (appellant’s inadequate briefing waived any challenge to best interest finding). 7  When there is an inconsistency between a written judgment and an oral pronouncement of judgment, the written judgment controls. In re L.G.R., 498 S.W.3d 195, 206 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (upholding termination where trial court’s oral pronouncement did not include best interest finding); In re A.C., No. 04-12-00679-CV, 2013 Tex. App. LEXIS 801, at *4 (Tex. App.—San Antonio Jan. 30, 2013, pet. denied) (mem. op.) (upholding termination where trial court’s oral pronouncement only included findings that appellant’s parental rights should be terminated under section 161.001(1)(O) and section 161.003 because written judgment also included finding that termination of appellant’s rights was in the best interest of the children). Here, the written judgment provides the necessary grounds to support the termination. We overrule Sam’s challenge to the validity of the Order of Termination. Best Interest of the Child Sam also challenges the legal and factual sufficiency of the evidence supporting the best interest finding made under section 161.001(b)(2). A determination of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts examine the entire record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In assessing whether termination is in a child’s best interest, the courts are guided by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the desires of the child, (2) the emotional and physical 8 needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors as a condition precedent to parental termination, ‘particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind that a child’s need for permanence through the establishment of a stable, permanent home has been recognized as the paramount consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). The record reflects that Sam’s relationship with Riley was non-existent for the first four years of her life and that he had minimal contact with Riley until a few months before the Department became involved in June of 2017. The last period of possession that Sam exercised with Riley involved an altercation with his girlfriend and reports that Sam 9 had been drinking and using marijuana. Renee testified that Riley is scared of Sam as a result of this incident. Sam’s actions while this case was pending belie his assertion that he wanted a relationship with his daughter—not only did he not visit with Riley, he did not pay any child support or complete any of his court-ordered services in the ten months that this case was pending. He did, however, test positive for marijuana on two occasions, and his hair follicle test at the beginning of the case was also positive for methamphetamine. Sam admitted to regular marijuana use and refused to submit to random drug testing required by the court’s order five separate times. A fact finder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved on other grounds by, In re J.F.C., 96 S.W.3d at 256. In reviewing the parenting ability of the parent, a factfinder can consider the parent’s past neglect or past inability to meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139 (Tex. App.—El Paso 2016, no pet.). The factfinder can infer from a parent’s failure to take the initiative to avail himself of the programs offered to him by the Department that the parent “did not have the ability to motivate [himself] to seek out available resources needed now or in the future.” In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.)). The trial court was entitled to find that this evidence weighed in favor of the best interest finding. 10  The evidence established that Riley was bonded with her maternal grandmother, Renee, and that she was doing well in that placement. Renee ensured that Riley received significant dental and medical care upon being placed in her home. Renee is committed to the long-term care and protection of Riley and her sisters and intends to seek their adoption. Sam, on the other hand, had ill-defined plans for Riley and took no affirmative actions during the case to indicate that he can provide the stability and nurture necessary for Riley. His employment status was precarious, as was his ability to provide a safe and stable drug-free environment for Riley. Stability and permanence are paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parent’s and the Department’s plans for the child and determine whether the plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20. The trial court was entitled to find that this evidence weighed in favor of the best interest finding. When considering Riley’s best interest, the trial court could have taken into account that Sam had been an absent parent and refused to provide for Riley’s physical, emotional, and financial needs both before and after this case was filed. The judge could have believed that Sam would not change his behavior, given his continuation of a pattern of conduct that existed throughout Riley’s life. This evidence supports a finding that the existing parent-child relationship is not a proper one. After reviewing the Holley factors, we conclude that the evidence is both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of Sam’s parental rights is in the best interest of Riley. 11  Conclusion The judgment of the trial court terminating Sam’s parental rights is affirmed. Judy C. Parker Justice 12 

275 N.W.2d 281 (1979) 202 Neb. 334 Jeffrey POKORNY, Appellee, v. CITY OF SCHUYLER, a Municipal Corporation et al., Appellants. No. 41892. Supreme Court of Nebraska. February 13, 1979. *282 James K. Langdon, McGroarty, Welch & Langdon, P. C., Omaha, Donn K. Bieber, City Atty., Schuyler, for appellants. Martin A. Cannon of Matthews & Cannon, P. C., Omaha, for appellee. Heard before KRIVOSHA, C. J., BOSLAUGH, CLINTON and WHITE, JJ., and KNAPP, District Judge. BOSLAUGH, Justice. This was a suit to declare void the action taken by the city council of the City of Schuyler, Nebraska, on March 16, 1977, and March 25, 1977, relating to the purchase of *283 land for use in the improvement of the sanitary sewage disposal system of the City. The petition alleged that the City had violated the provisions of the open meeting law, sections 84-1408 to 84-1414, R.R.S. 1943. The petition also sought to enjoin the expenditure of public funds or other implementation of the resolution adopted by the city council on March 25, 1977. The plaintiff is a resident and taxpayer of the City and brought the action on behalf of all taxpayers similarly situated. The defendants are the City and the members of the city council. The trial court found generally for the plaintiff and enjoined the defendants from carrying out any action authorized at the meetings of March 16, 1977, and March 25, 1977. The defendants have appealed. The record shows that in 1977 the City of Schuyler, Nebraska, was considering a project to improve its sanitary sewage system. As a part of the project it was necessary to acquire land for use as a lagoon and waste water application area. On February 15, 1977, the city council held a public hearing on the matter of acquiring a tract of land for that purpose. The tract, which was owned by the Langemeier-Wagner Company, consisted of parts of two adjacent sections. The waste water application area consisted of the south 3,000 feet of the east ½ of Section 24, Township 17 North, Range 3, East of the 6th P.M., in Colfax County, Nebraska, and the south 3,000 feet of the west 400 feet of Section 19, Township 17 North, Range 4 East of the 6th P.M., in Colfax County, Nebraska. The lagoon area was a 42.8-acre tract in Section 24 lying north of the waste water application area. Prior to the hearing the City had obtained an appraisal which valued the land at $1,700 per acre. This appraisal did not consider severance damage. At the hearing it was disclosed that the utilities board favored purchasing the land for $2,000 per acre, the asking price, because the board felt that condemnation might result in a higher cost to the City. The project was to be funded with 87 percent federal and state funds and both the federal government and the state government had approved the purchase of the tract for $2,000 per acre. The council did not accept the recommendation of the utilities board but voted to obtain a second appraisal to be considered at the meeting on March 15, 1977. On March 9, 1977, the landowners withdrew their offer to sell the land to the City for $2,000 per acre. The second appraisal estimated the total damages, including severance damage, at approximately $74 per acre more than the first appraisal. This appraisal was considered by the council at its regular meeting on March 15, 1977, at which all councilmen were present. The council decided to discuss the appraisal with the landowners and announced that a special meeting would be held the following morning. A notice of a special meeting of the council to be held on March 16, 1977, was posted in three public places at 10 p. m., on March 15, 1977. A written acknowledgment of receipt of advance notice for the meeting and its agenda signed by the mayor and all councilmen is attached to the minutes of this meeting. The special meeting convened at 10:30 a. m., on March 16, 1977, with all councilmen present. At 10:39 a. m., the council voted to go into executive session with only the landowners, the board of public works, and the utilities superintendent allowed to remain present. At 11:30 a. m., the council reconvened in open session and voted to "recommend to the Board of Public Works" that the board offer the landowners $2,000 per acre for the tract. On March 17, 1977, the mayor wrote to the landowners enclosing a copy of the minutes of the special meeting of March 16, 1977, and requesting that the landowners consider further negotiations with the board of public works. On March 18, 1977, the landowners replied to the City, submitting what amounted to a counteroffer, and stating that they anticipated "official action" by the city council at the earliest possible time. *284 A special meeting of the council was held on March 25, 1977. Notice of this meeting was posted in three public places on March 23, 1977, and all councilmen except Pollard signed a written acknowledgment of advance notice of the meeting and its agenda. At this meeting, with all councilmen present except Pollard, the council adopted a resolution agreeing to purchase the land for $2,000 per acre contingent upon receipt of the City's federal grant. Another special meeting of the council was held on March 29, 1977, with all councilmen present at the beginning of the meeting. Notice of this meeting was posted in three public places on March 22, 1977, and all councilmen signed a written acknowledgment of advance notice of the meeting and its agenda. At this meeting the council voted to approve the contract for the purchase of the land, one councilman having left the meeting before this matter had been reached. Attached to the minutes of this meeting is the written contract for the purchase of the land dated March 28, 1977. Apparently the parties concede that all proceedings of the council were regular through the public hearing and meeting of March 15, 1977. If the council had adjourned that meeting until the following day instead of calling a special meeting for March 16, some of the questions concerning the meeting of March 16 could have been avoided. Section 84-1411, R.R.S.1943, requires reasonable advance "publicized notice" of the time and place of each meeting by a method designated by the public body and recorded in its minutes. There is an exception for emergency meetings but no effort was made to comply with the requirements applicable to emergency meetings. The notice of the meeting of March 16, 1977, was given by a notice posted in three public places at 10 p. m., on March 15, 1977. This could hardly be considered to be reasonable advance publicized notice as required by the statute. The record sustains the finding of the trial court that the notice of the meeting of March 16, 1977, was not reasonable advance public notice as required by section 84-1411, R.R.S.1943. The trial court found that the executive session held at the special meeting on March 16, 1977, also violated section 84-1410, R.R.S.1943. The statute permits a closed session if it is "clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting." The statute requires that the minutes show "the reason for the closed session." The minutes of the March 16 meeting do not show the reason for the closed session but it is apparent from the record that the purpose was to negotiate for the purchase of the land. The landowners, the board of public works, and the utilities superintendent were permitted to attend the closed session with the council. The record does not show what happened at the closed session, but after the council reconvened in open session it voted to "recommend to the Board of Public Works that they make an offer of $2,000.00 per acre for the land and damages" to the sellers. The purpose of the open meeting law is to insure that public policy is formulated at open meetings of the bodies to which the law is applicable. There is nothing in the law that requires negotiations for the purchase of land to be conducted at open meetings, but deliberations of the council as to whether an offer to purchase should be made is action that should be taken at an open meeting. In view of the entire record in this case the violation appears to be more technical than substantive, but the record sustains the finding of the trial court that the closed session violated section 84-1410, R.R.S.1943. The trial court found the agenda for the special meetings on March 16 and March 25, 1977, were defective under section 84-1408, R.R.S.1943. Section 84-1411, R.R.S.1943, requires that the notice contain an agenda of the subjects known at the time of the notice or a statement that the agenda is available at the principal office of *285 the public body. The purpose of the agenda requirement is to give some notice of the matter to be considered at the meeting so that persons who are interested will know which matters will be for consideration at the meeting. The agenda for the March 16 meeting contained this item: "2. Lad (sic) appraisals discussion." The agenda for the March 25 meeting contained this item: "Discussion of terms of land acquisition contract." These items, if considered separately, would not furnish much notice of the matter to be considered by the council. But, if they are viewed in the light of the entire record then it is apparent that few persons would be misled as to the nature of the matter to be considered by the council. The purchase of land for the sewage disposal improvement project had been an item of business for some time at the previous council meetings and the agenda for those meetings had contained an adequate description of the matter to be considered by the council. Although technically deficient, the agenda items alone would not destroy the validity of action taken at the March 16 and March 25 council meetings. The trial court also found that there had been no compliance with section 17-106, R.R.S.1943, with respect to the meetings of March 16 and March 25. The finding in regard to the meeting of March 16 was incorrect because all councilmen were present and participated in the meeting without objection. Under these circumstances a defect in the call is immaterial. Magneau v. Fremont, 30 Neb. 843, 47 N.W. 280; Nelson v. City of South Omaha, 84 Neb. 434, 121 N.W. 453. At the meeting on March 25, councilman Pollard was absent. The absence of a written call specifying the business to be transacted is an additional objection to the validity of the March 25, 1977, meeting. The important question in this case is what was the effect of the invalid meetings of March 16 and March 25. The trial court enjoined the defendants permanently "from carrying out any action authorized" at the meetings of March 16, 1977, and March 25, 1977. Carried to its logical conclusion this order would prevent the City from ever purchasing the land. We do not think this was the intent or purpose of the public meeting law. It is a general principle of law that where a defect occurs in proceedings of a governmental body, ordinarily the defect may be cured by new proceedings commencing at the point where the defect occurred. See 5 McQuillin, Municipal Corporations, § 16.93, p. 299; 56 Am.Jur.2d, Municipal Corporations, § 508, p. 559, § 510, p. 560; 63 C.J.S. Municipal Corporations § 1009, p. 597. We think this principle is applicable here. The effect of the invalidity of the meetings of March 16 and March 25 is the same as if the meetings had never occurred. No action authorized at those meetings could be sustained by reliance upon the proceedings of the council at those meetings. This does not mean the council could not authorize the purchase of the land at a subsequent meeting which complied with all statutory requirements. This is what happened at the meeting of March 29, 1977. The meeting of March 29, 1977, was a special meeting of the council attended by all members of the council. Notice of the meeting was posted in three public places on March 22, 1977. The agenda stated that an item of business at the meeting would be "approval of contract with Langemeier-Wagner Company requested by EPA." This was a substantial compliance with all statutory requirements concerning notice. The minutes show that the city attorney read the land contract to the council in open meeting which was followed by a discussion. The council then voted to approve the contract. The fact that one councilman had left the meeting before this item of business was reached is immaterial. The action of the council at the meeting of March 29, 1977, cured the defects which resulted from the invalidity of the meetings of March 16 and March 25. See 56 Am.Jur.2d, Municipal Corporations, § 497, p. 548, § 508, p. 559. *286 The findings of the District Court did not support the judgment which was rendered. The plaintiff was not entitled to injunctive relief. The judgment of the District Court is reversed and the cause remanded with directions to enter a judgment in conformity with this opinion. REVERSED AND REMANDED WITH DIRECTIONS.

T.C. Memo. 2008-235 UNITED STATES TAX COURT EDWARD NORMAN FADELEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 15933-05. Filed October 22, 2008. Edward Norman Fadeley, pro se. Aimee R. Lobo-Berg, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION SWIFT, Judge: Respondent determined deficiencies and additions to tax with respect to petitioner’s Federal income taxes as follows:  - 2 - Additions to Tax Sec. Sec. Sec. Deficiency 6651(a)(1) 6651(a)(2) 6654 2000 $33,852 $5,658 $6,035 $1,290 2002 34,798 6,038 3,220 868 At issue is petitioner’s claim to additional deductions for business and personal expenses beyond those allowed by respondent. All section references are to the Internal Revenue Code applicable to the years in issue, and all rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Some of the facts have been stipulated and are so found. Since 1957, petitioner has been a licensed attorney in Oregon. From approximately 1964 to 1989 petitioner was an elected member of the Oregon State Legislature. In 1989 petitioner was elected as a justice on the Oregon Supreme Court. In the mid-to-late 1990s, disciplinary questions were raised as to petitioner’s ability to continue performing judicial duties. In 1998, when petitioner was 68 years of age the disciplinary matter was settled. Under the settlement, petitioner agreed to retire as a justice of the Oregon Supreme Court but to retain his right to a judicial retirement pension. In 2000 and in 2002 petitioner received total pension income of $81,981 and $85,302, respectively, from petitioner’s  - 3 - judicial retirement and from a pension relating to his 25 years in the Oregon Legislature. In 2001 petitioner sold a parcel of real estate in Salem, Oregon, and petitioner used proceeds from the sale to pay to an Oregon law firm $100,000 in legal fees relating to the above disciplinary matter. Since his retirement in 1998, petitioner has performed a limited amount of legal work for a few clients out of his home. Petitioner and his wife’s home is located on an 80-acre farm in the Willamette Valley in Oregon. On their farm petitioner and his wife have a barn and raise a number of animals. Typically, petitioner and his wife work on the farm a total of 10 to 20 hours a week. Meat harvested from animals raised on the farm is kept on the farm and is eaten by petitioner and his wife and their guests. None of the meat is sold. Petitioner and his wife maintain no separate books and records relating to their farm activity. Bills, receipts, and payments relating to the farm are intermingled with petitioner and his wife’s personal expenses. For the 5 years for which evidence was offered, petitioner and his wife realized no profit from their farming activity, and the evidence does not establish what gross income, if any, was realized. During 2000 and 2002 petitioner’s wife worked part time as an employee of Landmark Education Corporation (LEC) and  - 4 - she was not otherwise engaged in a trade or business. As part of her employment with LEC, petitioner’s wife could have requested and received reimbursement from LEC for all employee-related expenses she incurred. In 2000 and 2002 petitioner and his wife received the following types and amounts of income and retirement benefits: Year Type Amount 2000 Pension $81,981 Social Security 18,102 Other income 2,750 Interest Income 106 2002 Pension $85,302 Social Security 19,248 Other income 2,750 Interest Income 76 In 2000 and 2002 Federal income taxes of $8,706 and $7,963, respectively, were withheld from petitioner’s pension income. As of the spring of 2005, petitioner and his wife had not filed their 2000 and 2002 Federal income tax returns. On audit, respondent prepared substitute 2000 and 2002 Federal income tax returns for petitioner, and respondent determined the above deficiencies in petitioner’s Federal income taxes. On May 27, 2005, respondent mailed to petitioner notices of the above deficiencies and additions to tax. In 2006, after petitioner filed the petition and after respondent filed a motion to dismiss for lack of prosecution, the  - 5 - Court continued this case and asked petitioner to file his 2000 and 2002 joint Federal income tax returns. On July 25, 2006, petitioner and his wife late filed with respondent their 2000 and 2002 joint Federal income tax returns. Petitioner himself prepared the returns. Thereon, petitioner reported the pension income received in each year, and petitioner and his wife each attached a Schedule C, Profit or Loss From Business, and a Schedule F, Profit or Loss From Farming, on each of which a loss was reported. Petitioner’s Schedules C related to petitioner’s part-time law practice. Petitioner’s wife’s Schedules C related to her employment with LEC. The Schedules F related to petitioner and his wife’s farming activity. Also attached to petitioner and his wife’s 2000 and 2002 late-filed joint Federal income tax returns was a Form 8829, Expenses for Business Use of Your Home, on which petitioner and his wife claimed that 70 percent of their home was used for petitioner’s legal work and 50 percent of their home expenses were deductible expenses of a home office. On Schedules A, Itemized Deductions, the following miscellaneous deductions were claimed: (1) $11,400 on the 2000 return as a loss carryback; and (2) $11,000 on the 2002 return as a loss carryforward relating to the $100,000 in legal fees petitioner paid in 2001 in connection with the settlement of the dispute over petitioner’s status as a justice on the Oregon Supreme Court.  - 6 - On their late-filed 2000 and 2002 Federal income tax returns, petitioner and his wife claimed credits for the approximately $8,000 that had been withheld during each year as Federal income taxes from petitioner’s pensions, no taxes due, and overpayments of Federal income taxes. Before trial in September of 2007, respondent reviewed petitioner and his wife’s late-filed 2000 and 2002 Federal income tax returns and allowed some of the items and disallowed others. Specifically, respondent disallowed many of the claimed Schedule A itemized deductions and Schedule C business expenses, all of the home office and farm expenses claimed, and all of petitioner’s wife’s claimed business expenses. Respondent disallowed most of the claimed expenses due to inadequate substantiation and due to respondent’s determination that petitioner’s wife’s claimed business and farm expenses did not qualify as ordinary and necessary expenses of a trade or business. At trial, the unagreed items claimed on petitioner’s late-filed 2000 and 2002 Federal income tax returns were tried by consent. Rule 41(b)(1). After trial, respondent acknowledged that 13.25 percent of petitioner’s home qualifies as a home office and that expenses properly allocated thereto are deductible under section 179. Respondent disallowed the $11,400 and the $11,000 in claimed carryback and carryforward losses relating to the legal fees petitioner incurred in 2001.  - 7 - The schedule below reflects by category for each year the total amounts of petitioner’s claimed expenses, the amounts respondent allowed, and the amounts still in dispute: 2000 Expense Amount Amount Allowed Still Category Claimed by respondent in dispute Business $33,546 $16,968 $ 6,272 Home Office 11,630 5,358 6,272 Itemized 52,042 40,594 11,400 Farm 8,902 -0- 8,902 2002 Expense Amount Amount Allowed Still Category Claimed by respondent in dispute Business $46,193 $19,519 $25,674 Home Office 16,709 5,372 11,337 Itemized 50,112 39,112 11,000 Farm 10,333 -0- 10,333 OPINION Generally, as to the allowance of deductions taxpayers bear the burden of proof, and the Commissioner’s determinations are entitled to a presumption of correctness. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Durando v. United States, 70 F.3d 548, 550 (9th Cir. 1995). Petitioner and his wife late filed their Federal income tax returns. During respondent’s audit and during pretrial, petitioner did not cooperate with respondent’s representatives, and petitioner did not participate in good faith in the Court’s  - 8 - pretrial stipulation process. Further, with regard to the expenses still in dispute, petitioner has not submitted credible evidence. The burden of proof on the disputed expenses (and on the additions to tax) is on petitioner. Sec. 7491(a); Rule 142(a). The $6,272 and the $25,674 in business expenses for 2000 and 2002 still in dispute have not been adequately substantiated by petitioner, and petitioner has not established that the disputed expenses constitute ordinary and necessary business expenses deductible under section 162. On brief, petitioner states that “Taxpayer spent all the money claimed in the amount of every deduction for the purpose that was claimed.” Petitioner’s records in evidence and the credible trial testimony, however, do not adequately establish the nature and/or purpose of the items in dispute--particularly whether the items were incurred in connection with a trade or business. Section 262 denies a deduction for personal, living, or family expenses. Section 274(d) requires taxpayers to maintain substantiating evidence with regard to travel, meal, and entertainment expenses. Beale v. Commissioner, T.C. Memo. 2000- 158. Petitioner has failed to substantiate that any of the claimed expenses still in dispute qualify as deductible business expenses.  - 9 - Also the law is clear that expenses for which petitioner’s wife could have received reimbursement from an employer are not deductible. Lucas v. Commissioner, 79 T.C. 1 (1982). With respect to the claimed home office expenses in dispute, section 280A generally prohibits deductions relating to a taxpayer’s personal residence. Section 280A(c)(1) provides an exception and allows a deduction for appropriate home office expenses where a taxpayer establishes that a portion of the taxpayer’s home is used exclusively on a regular basis as: (1) The taxpayer’s principal place of business or (2) a place of business which is used by the taxpayer in meeting with clients in the normal course of business. The deduction cannot exceed the gross income derived from the business use of the residence over the sum of certain deductions allocable to such income. Sec. 280A(c)(5); Tobin v. Commissioner, T.C. Memo. 1999-328; Cunningham v. Commissioner, T.C. Memo. 1996-141, affd. without published opinion 110 F.3d 59 (4th Cir. 1997). In order for a taxpayer to establish use of a personal residence on a “regular” basis, the business use must be more than occasional and incidental. Irwin v. Commissioner, T.C. Memo. 1996-490, affd. without published opinion 131 F.3d 146 (9th Cir. 1997); Hefti v. Commissioner, T.C. Memo. 1993-128. The use of a portion of a residence both for personal purposes and for the carrying on of a trade or business does not meet the exclusive use  - 10 - test. See Sengpiehl v. Commissioner, T.C. Memo. 1998-23; Hefti v. Commissioner, supra. The trial evidence is particularly vague as to petitioner’s use of his home in his part-time legal work.1 Respondent is generous in agreeing to treat 13.25 percent of petitioner’s home as a home office. On the facts before us we have no basis for using a higher percentage, and we disallow any claimed home office expenses in excess of the amount reflected by this percentage. With regard to the miscellaneous itemized deductions claimed on petitioner’s 2000 and 2002 tax returns that are still in dispute ($11,400 for 2000 and $11,000 for 2002), at trial petitioner testified that the $11,400 claimed for 2000 actually was incurred in 2001 and represented a claimed loss carryback to 2000. The $11,000 claimed for 2002 also was acknowledged to have been incurred in 2001 and represents a claimed loss carryforward to 2002. There is only a limited legal basis for loss carryovers of miscellaneous itemized deductions, and petitioner’s entitlement thereto in this case has not been established. See sec. 172(d)(4). The claimed Schedule F farm expenses still in dispute involve $8,902 for 2000 and $10,333 for 2002. No income was earned from petitioner and his wife’s farm activity, and the facts before us 1 Petitioner stated that he “lives in his workspace.”  - 11 - do not establish that the farm activity constituted a trade or business activity. Petitioner alleges that a number of misfortunes on the farm hampered efforts to earn a profit. Petitioner claims that one of the horses fell into a ditch and died and that cougars and an English bulldog killed some of the sheep and three pygmy angora goats. Petitioner notes that Douglas fir trees grow on the property, and petitioner argues that the long growing cycle for Douglas fir and the resulting delayed tree harvest, explain the lack of farming profits, not a lack of profit motive. On the evidence before us, we reject petitioner’s claimed additional farm expenses. Although not clear from the parties’ briefs, claimed medical expenses of $7,203 and a claimed horse casualty expense of $1,800 may also be in dispute. Neither item is supported by credible evidence, and they are disallowed. On the disputed additions to tax, the evidence satisfies respondent's burden of production. For the reasons stated, we sustain respondent’s disallowance of each of the claimed expenses still in dispute, and we sustain the imposition against petitioner of each of the additions to tax. Decision will be entered under Rule 155. 



06/16/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs April 2, 2020 FIRST CENTURY BANK v. EDWARD DUYOS Appeal from the Circuit Court for Claiborne County No. 09-CV-285 John D. McAfee, Judge ___________________________________ No. E2019-01441-COA-R3-CV ___________________________________ This appeal arises from a writ of garnishment issued by a Tennessee court against a Florida resident, garnishing wages he earned in Florida while working for an Ohio corporation that is registered to do business in Tennessee. The writ of garnishment was served on the employer’s registered agent for service of process in Tennessee, and the employer answered the writ without objection. The debtor timely filed a motion to terminate the garnishment, asserting that Florida law exempted his wages from collection. Following a hearing, the trial court concluded, sua sponte, that it lacked “jurisdiction” to issue a garnishment order because the debtor “lives in Florida and works full time in Florida.” This appeal followed. We have determined that the debtor waived the issue of personal jurisdiction by consenting to the court’s authority. We have also determined that the trial court has the authority to issue the garnishment order against the nonresident debtor’s employer with respect to a debt owed to the nonresident debtor because the employer is authorized to do business in Tennessee and has an agent upon whom process may be served. Therefore, we reverse the judgment of the trial court and remand this matter with instructions for the trial court to determine, inter alia, whether the debtor is entitled to an exemption under Florida or Tennessee law, and if so, to what extent, and to enter judgment accordingly. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W. MCCLARTY and ARNOLD B. GOLDIN, JJ., joined. Maybern Ellen Wall, Knoxville, Tennessee, for the appellant, First Century Bank. James Lee Deaton, Tazewell, Tennessee, for the appellee, Edward Duyos.  OPINION First Century Bank (“Creditor”) instituted this action in 2009 against Florida resident Edward T. Duyos Jr. (“Debtor”), seeking a deficiency judgment after foreclosing on Debtor’s real property in Union County, Tennessee. Debtor was duly served with process, but because he took no action in response to the complaint, a Motion for Default Judgment was filed on August 24, 2009. Debtor was noticed for the hearing on the motion but failed to appear or file a response. As a consequence, the trial court entered a default judgment against Debtor in the amount of $11,756.64 plus interest and costs in September 2009. Debtor did not appeal the judgment and has never sought relief from the judgment. Eight years later, in March 2017, Creditor served a writ of garnishment on the registered agent for service of process in Tennessee for Debtor’s employer, Sherwin- Williams Company (“Employer”). Employer answered the garnishment by providing Debtor’s wage information and calculating the maximum earnings subject to garnishment.1 According to Employer’s answer, Debtor’s gross pay was $2,768.94 for the two-week period between March 19 and April 1, 2017, and the maximum amount of Debtor’s wages that could be garnished under Tennessee law was $524.53.2 Shortly after Employer filed its answer, Debtor filed a Motion to Terminate Wage Garnishment. Debtor asserted that the entire amount of his wages was exempt from garnishment under Florida Statute Annotated § 222.11 because he was a Florida resident and provided more than half of the support for his children.3 Accordingly, Debtor requested the court to terminate the garnishment and order any funds held to be returned 1 Aside from answering the garnishment, Employer did not participate in the trial court proceedings, and it is not a party to this appeal. 2 Tennessee Code Annotated § 26-2-106(a) exempts 75% of a debtor’s weekly disposable earnings from garnishment: (a) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed: (1) Twenty-five percent (25%) of the disposable earnings for that week; or (2) The amount by which the disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage at the time the earnings for any pay period become due and payable, whichever is less. 3 Florida Statutes Annotated § 222.11(2)(b) provides, “Disposable earnings of a head of a family, which are greater than $750 a week, may not be attached or garnished unless such person has agreed otherwise in writing.” -2- to Debtor. Significantly, Debtor did not challenge the authority of the Tennessee court to rule on the merits of the garnishment proceedings or its jurisdiction over him. Debtor’s motion was not set for hearing until September 2018. When neither Debtor nor his counsel appeared at the hearing, the court denied the motion and reinstated the garnishment. Debtor promptly filed a Motion to Set Aside the court’s ruling, asserting that his counsel never received notice of the hearing because it was sent to the wrong address. No order was entered on the Motion to Set Aside, but Debtor proceeded to file a second Motion to Terminate in April 2019.4 Debtor’s second Motion to Terminate was heard on June 21, 2019. The trial court granted the motion, finding it lacked jurisdiction: Upon hearing of Defendant’s Motion to Terminate Garnishment on 21 June 2019[,] this Court finds the defendant lives in Florida and works full time in Florida. Therefore[,] this Court lacks jurisdiction to issue an order of garnishment. The garnishment is terminated[,] and all funds held by the garnishee shall be returned to the defendant. This appeal followed. ISSUES Creditor raises several issues on appeal.5 Briefly summarized, Creditor contends the trial court erred in terminating the garnishment based on a purported lack of 4 In April 2019, Creditor moved to extend its judgment under Tenn. R. Civ. P. 69.04. The trial court granted the extension on June 21, 2019. 5 Creditor’s issues read as follows: I. The trial court erred in terminating the garnishment of Defendant’s wages based on a purported lack of jurisdiction over the Defendant. A. The trial court does not need personal jurisdiction over Defendant to enforce the garnishment because a garnishment action is an ancillary, postjudgment collection action against the Garnishee and not the debtor. B. Defendant lacks standing to challenge the trial court’s exercise of personal jurisdiction over the Garnishee. II. Even if the trial court does require personal jurisdiction over Defendant to enforce the garnishment, which is denied, it has such jurisdiction. A. The personal jurisdiction established by the trial court in the original action survives to the garnishment action. -3- jurisdiction over Debtor because a garnishment action is an ancillary, postjudgment collection action against Employer and not Debtor. Creditor also contends the personal jurisdiction established by the trial court in the original deficiency action survives to the garnishment action and, if it did not, Debtor waived his right to challenge personal jurisdiction by failing to properly raise it in the trial court Debtor’s only identified issue reads as follows, “The trial court was correct in finding that Florida was the proper jurisdiction to litigate issues of protection from garnishment.” We have determined the dispositive issue is whether the trial court erred in terminating the garnishment of Debtor’s wages based on a purported lack of jurisdiction to issue a garnishment order. STANDARD OF REVIEW A trial court’s “decision regarding the exercise of personal jurisdiction over a defendant involves a question of law.” Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 645 (Tenn. 2009). Accordingly, we review the court’s decision de novo with no presumption of correctness. Id. ANALYSIS I. PERSONAL JURISDICTION OVER DEBTOR Creditor contends the trial court erred in terminating the garnishment of Debtor’s wages based on a purported lack of “jurisdiction.” It contends the court obtained personal jurisdiction over Debtor in 2009, and he remains subject to the continuing jurisdiction of the court to enforce the garnishment. Furthermore, it contends a garnishment action is an ancillary, postjudgment collection action against Employer and not Debtor. Creditor also contends Debtor waived his right to challenge personal jurisdiction by failing to properly raise it in the trial court. Although he did not expressly raise the issue of personal jurisdiction in the trial court, on appeal Debtor insists the trial court properly terminated the garnishment because the court lacked jurisdiction and that his “pleadings were sufficient to establish a challenge to the jurisdiction of a Tennessee Court to issue a valid order because they sought protection under the jurisdiction of Florida laws.” B. Defendant waived his right to challenge personal jurisdiction by failing to properly raise it in the trial court. -4-  The question of whether a court has jurisdiction over a party is distinct from the question of what law the court should apply. When deciding whether it has jurisdiction over a party, a court must “ascertain whether it is ‘fair and substantially just to both parties to have the case tried in the state where the plaintiff has chosen to bring the action.’” First Cmty. Bank, N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 383 (Tenn. 2015) (quoting Gordon, 300 S.W.3d at 646). In contrast, when deciding what law to apply, a court must determine whether the conflicting laws are substantive or procedural. See Boswell v. RFD–TV the Theater, LLC, 498 S.W.3d 550, 556 (Tenn. Ct. App. 2016). Further, a defendant waives his right to contest the court’s jurisdiction over him by recognizing “the proper pendency of the cause by making a motion that goes to the merits or by filing an answer, without challenging personal jurisdiction.” Landers v. Jones, 872 S.W.2d 674, 677 (Tenn. 1994). In this case, the trial court entered a deficiency judgment against Debtor in 2009 after he failed to file an answer. The events giving rise to the current litigation commenced on March 22, 2017, when Creditor pursued collection on the judgment through a writ of garnishment that was served on Employer’s registered agent in Tennessee. Upon learning of the Tennessee garnishment proceedings, Debtor made an appearance by filing his Motion to Terminate Garnishment. In his motion, Debtor neither contested the jurisdiction of the court nor otherwise challenged the validity of the default judgment. Instead, Debtor asserted that his wages were exempt from garnishment under a Florida exemption statute: Comes the [Debtor], through counsel and moves this court to terminate the wage garnishment issued to [Employer]. In support of [his] motion[,] movant would show[:] 1. D[ebtor] is currently a resident of Florida and has been his entire life. 2. The wages being garnished are earned in Florida. 3. [Debtor] provides more than half of the support for his four children, . . . . Therefore[, Debtor] qualifies as “head of household” under Florida Statutes 222.11[.] 4. As “head of household” under Florida Statutes 222.11[,] [Debtor’s] wages earned in Florida are exempt from garnishment. Thus, Debtor’s motion did not make an argument as to whether it was “fair and substantially just” to have the case tried in Tennessee. See First Cmty. Bank, N.A., 489 S.W.3d at 383. Rather, the motion asserted the application of Florida’s exemption law over Tennessee’s exemption law, which had already been applied. Accordingly, we find Debtor manifested an implied consent to submit to the jurisdiction of Tennessee courts— even if he was contesting the application of Tennessee law. See id. (stating that a party -5- may expressly or impliedly consent to jurisdiction by submitting to the authority of the court).6 Although the record does not expressly identify the type of jurisdiction the court purportedly lacked to issue an order of garnishment,7 we have determined the trial court had personal jurisdiction over Debtor. Therefore, if and to the extent the determination that the trial court lacked jurisdiction to issue an order of garnishment was based on the belief the court lacked personal jurisdiction over Debtor, that decision is reversed. II. GARNISHING WAGES EARNED IN ANOTHER STATE Having resolved the question of whether the trial court had personal jurisdiction over Debtor, we shall now focus on what we believe to be the dispositive issue in this appeal. That issue is whether the trial court has jurisdiction and the authority to issue a garnishment order against a nonresident debtor’s employer with respect to a debt the employer owes the nonresident debtor when the employer is authorized to do business in Tennessee and has an agent upon whom process may be served. Our Supreme Court considered that exact issue in Burnett v. Simmons, 135 S.W.2d 452 (Tenn. 1940), and answered it in the affirmative.8 Although the contention was not raised in the trial court, Debtor contends in his brief that the trial court lacked jurisdiction to garnish his wages from Employer in Tennessee because Employer could not “maintain an action against [Debtor] in Tennessee over wages he earned in another state.” This contention is principally based on 6 Because Debtor waived the issue of personal jurisdiction, we need not decide whether the Tennessee court retained personal jurisdiction over Debtor as it pertained to the ancillary proceedings to execute on the judgment via garnishment proceedings. 7 Its final order simply reads in pertinent part: “this Court finds the defendant lives in Florida and works full time in Florida. Therefore[,] this Court lacks jurisdiction to issue an order of garnishment.” 8 Similar to the facts and issue presented here, the relevant facts and issue presented in Burnett were summarized by the Court as follows: The question presented in this case is whether money due to a nonresident for services rendered out of the State to a foreign corporation can be subjected to attachment and garnishment in the hands of that corporation in Tennessee by a local creditor of the nonresident, when the foreign corporation has an office or agency in this State and is amenable to process here. The trial judge answered this question in the negative and . . . we think he erred. 135 S.W.2d at 453. -6- the holding in Williams v. Williams, 621 S.W.2d 567 (Tenn. Ct. App. 1981). In its reply brief, however, Creditor correctly notes that Williams is distinguishable from the present case because the facts in Williams are inapposite to the facts at bar, and the controlling authority is set forth in Burnett, 135 S.W.2d at 453 and Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678 (Tenn. 1988). We begin our analysis of this issue by noting that “[a] garnishment proceeding to enforce a judgment debt is an ancillary legal proceeding against the third party garnishee and must be brought where jurisdiction can be obtained over the third party.” Millard v. United States, 916 F.2d 1, 3 (Fed. Cir. 1990) (citing Harris v. Balk, 198 U.S. 215, 222 (1905)). Stated another way a “[g]arnishment is in the nature of an attachment of a debt due the judgment debtor from the garnishee; and, service of the garnishment upon the garnishee is a warning to the garnishee not to pay the debt but to answer the garnishment and hold the fund subject to the orders of the Court.”9 Smith v. Smith, 165 S.W.3d 285, 293 (Tenn. Ct. App. 2004) (quoting Meadows v. Meadows, No. 88-135-II, 1988 WL 116382, at *3 (Tenn. Ct. App. Nov. 2, 1988)). Our Supreme Court explained in Burnett that “a foreign corporation may be charged as garnishee in all cases where an original action might be maintained against it for the recovery of the property or credit in respect to which the garnishment is served.” 135 S.W.2d at 453 (quoting Mobile & O.R. Co. v. Barnhill, 19 S.W. 21, 22 (Tenn. 1892)). Thus, “a foreign corporation is subject to garnishment in a state in which it is authorized to do business, and in which it has an agent upon whom process may be served, in respect of an indebtedness due to a nonresident, even if it did not arise out of business in the state.” Id. (quoting 27 A.L.R. 1396, 1399); see also Williams, 621 S.W.2d at 568, overruled on other grounds by Davenport, 756 S.W.2d 678. The Court reasoned that the indebtedness due to the nonresident was no different than any other debt of a general nature: Like other debts, of a general nature, [a debt for unpaid wages] would follow the [employer] . . . and might be sued for wherever the [employer] could be personally served with process. And if the [employer] could be sued in this State for the debt, it would be subject to have the debt reached, under the laws of this State, by a creditor of its creditor. Burnett, 135 S.W.2d at 453 (quoting Holland v. Mobile & O. R. Co., 84 Tenn. 414, 417 (1886)); see also Dickson v. Simpson, 113 S.W.2d 1190, 1193 (Tenn. 1938) (jurisdiction 9 “Garnishment is a legal proceeding brought by a creditor (garnishor) of a person (the debtor) against a third party (garnishee) to obtain property of the debtor in the hands of the third party to satisfy the debt owed to the garnishor.” Millard, 916 F.2d at 2 (citing Harris, 198 U.S. at 226). -7- may be acquired over garnishee when “the debt so impounded [is] such that an action could be maintained thereon in that jurisdiction by the nonresident defendant against his debtor, the garnishee”). The foregoing notwithstanding, Debtor contends the trial court lacked personal jurisdiction over him because Employer could not “maintain an action against [Debtor] in Tennessee over wages he earned in another state.” This contention reveals that Debtor misconstrues the requirements articulated in Barnett. Whether or not Employer could maintain an action against Debtor in Tennessee is irrelevant. “[G]arnishment proceedings serve to subrogate the [creditor] to rights of the defendant debtor against the garnishee.” Williams, 621 S.W.2d at 568 (emphasis added). Thus, the relevant question is whether Debtor could maintain an action against Employer in Tennessee for unpaid wages. As explained, a party may expressly or impliedly consent to a court’s jurisdiction. See First Cmty. Bank, N.A., 489 S.W.3d at 383. It is undisputed that Employer could be served with process in Tennessee because it maintained an agent for service of process in Tennessee. Additionally, if Debtor were to file an action in Tennessee against Employer for unpaid wages, Debtor would be consenting to the jurisdiction of Tennessee courts. Thus, Creditor correctly summarized the law as applied to the facts of this case in its reply brief: The law is clear that “a writ of garnishment is simply a direction to the garnishee” rather than an entirely new action against the debtor in which personal jurisdiction must be established. [United States v.] Morton, 467 U.S. [822,] 829 [(1984)]; see also McPherson v. Social Sec. Admin., No. 1:09-0063, 2010 WL 1609975, at *2 (M.D. Tenn. Mar. 5, 2010) (noting same). The trial court undisputedly obtained personal jurisdiction over Garnishee based upon Garnishee’s contacts with Tennessee and its compliance with the writ of garnishment. Consequently, “due process does not require a renewal of [Debtor’s contacts] with this state” in order for Plaintiff to pursue the money it is owed. Levi Strauss [& Co. v. Crockett Motor Sales, Inc.], 739 S.W.2d [157,] 159 [(Ark. 1987)]. Personal jurisdiction over [Debtor] as to the garnishment is therefore inapposite . . . . Based on the foregoing, we find the trial court had jurisdiction over Employer and Debtor for the purpose of garnishing Debtor’s wages. Having determined that the trial court has jurisdiction over the parties concerning the issues raised in the trial court proceedings, we remand this matter to the trial court for further proceedings. On remand, the trial court should determine, inter alia, whether and to what extent Debtor is entitled to an exemption under Florida or Tennessee law. -8-  IN CONCLUSION Based on the foregoing, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion. Costs of appeal are assessed against Debtor, Edward Duyos. ________________________________ FRANK G. CLEMENT JR., P.J., M.S. -9- 

193 Ill. App.3d 231 (1990) 549 N.E.2d 1280 WILLIAM M. WADDEN, Plaintiff-Appellant, v. THE VILLAGE OF WOODRIDGE, Defendant-Appellee. No. 2-89-0157. Illinois Appellate Court — Second District. Opinion filed January 16, 1990. *232 *233 David G. Pribyl, of Goldstine & Broida, Ltd., of Summitt (Ronald J. Broida, of counsel), for appellant. Kenneth R. Menzel and Gerald M. Gorski, both of Gorski & Good, of Wheaton (Thomas W. Good, of counsel), for appellee. Judgment affirmed. JUSTICE WOODWARD delivered the Opinion of the court: Plaintiff, William Wadden (Wadden), filed a three-count complaint against the defendant, Village of Woodridge (Woodridge). Pursuant to a motion by Woodridge, count II of the complaint was dismissed. Thereupon, Woodridge filed a motion for summary judgment as to counts I and III of the complaint. Wadden filed an answer to the motion for summary judgment, to which defendant then filed a reply. Wadden then filed a motion to strike Woodridge's reply. The motion to strike was denied, and the trial court granted Woodridge's motion for summary judgment. Wadden appeals, raising the following issues: whether the trial court erred in granting the motion for summary judgment; and whether the trial court erred for failing to grant Wadden's motion to strike Woodridge's reply to Wadden's answer to the motion for summary judgment. The pertinent facts as revealed by the pleadings are largely undisputed and are as follows. In February 1985, Wadden was advised by Leonard Berg, the director of golf course services for the Village of Woodridge, that Woodridge was hiring him for the position of golf professional. In addition to the annual base salary of $33,000 that the position paid, Berg orally agreed to pay Wadden 5% of the annual net profits of Woodridge's golf pro shop. Wadden was also given a copy of its employee manual. Later, Wadden received a revised copy of the employee manual which provided, inter alia, that any employee who completes six months of probationary service automatically becomes a permanent employee and, as such, is entitled to a due-process hearing prior to being demoted or terminated for cause. The employee manual also provided that an employee *234 may be laid off when there is a shortage of work or funds or when a position is abolished. On March 3, 1987, Joseph G. Fennell, the acting administrator for the Village of Woodridge, notified Wadden by letter that the position of full-time golf professional was being abolished and that he would be laid off effective May 1, 1987. Subsequently, Wadden learned that on March 19, 1987, Woodridge had advertised in the local paper seeking to fill the position of support-service supervisor. Through his attorney, Wadden sent his application for the position of support-services supervisor to Woodridge. The letter also stated that Wadden believed that the general responsibilities and required knowledge and skills of his position of golf professional were identical to the position of support-service supervisor. Further, Wadden advised in the letter that if he was not appointed to the support-services supervisor position, he would deem the elimination of his position as an improper discharge without cause, in violation of Woodridge's employment and grievance procedures. After receiving Wadden's letter and application, Woodridge stopped advertising for the position of support-services supervisor and did not fill the position. The position of golf professional (seasonal, part time) was filled by Scott Pless, Woodridge's former assistant golf professional, a position eliminated at the same time as Wadden's. On April 30, 1987, Woodridge advertised seeking to fill the position of administrative assistant to the director of golf course services. Wadden did not submit another application for this position. In July 1987, Woodridge filled this position with someone other than Wadden. On August 21, 1987, Wadden filed a three-count complaint against Woodridge. Count I alleged that because the position of administrative assistant was the same in substance as that of golf professional, Woodridge had breached the contractual provisions of its employee manual by discharging Wadden without a due process hearing before the village administrator. Count II alleged that Woodridge had not acted in good faith in dealing with Wadden. Count III alleged that Woodridge had breached the oral agreement to pay Wadden his bonus of 5% of the net profit of the golf pro shop. Count II was later dismissed and is not part of the appeal before this court. On or about April 8, 1988, Wadden served interrogatories on Woodridge, seeking, inter alia, appropriation ordinances covering the years 1985 to current date which had been passed and approved. On or about June 3, 1988, Woodridge served its answer to interrogatories on Wadden. On or about October 26, 1988, Woodridge filed its motion for summary judgment. In response to Wadden's answer to the motion for *235 summary judgment, Woodridge filed a reply memorandum and affidavit which contained budget summaries and two Woodridge ordinances as exhibits. Wadden filed a motion to strike Woodridge's reply to the answer to the motion for summary judgment. On December 27, 1988, a hearing was held on Wadden's motion to strike. Wadden argued that Woodridge committed a substantial breach of discovery rules by failing to supply the ordinances requested by Wadden's interrogatories. In response, Woodridge admitted that the budget summaries, which were exhibits to the appropriation ordinances, were not furnished to Wadden and should have been furnished. The other ordinances were transfer ordinances which were not requested by Wadden. Counsel for Woodridge denied that failure to supply the documents was willful or intentional. Counsel for Woodridge suggested that in addition to supplying Wadden with the missing documents, he would not object to Wadden being given time to respond, or Woodridge would withdraw that portion of its motion for summary judgment with respect to count III that argued there was no appropriation for a percentage of the profits. Counsel for Wadden responded that Wadden was not seeking sanctions under Supreme Court Rule 201(k) (107 Ill.2d R. 201(k)) but rather under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). The trial court denied the motion to strike and refused to impose sanctions on Woodridge. Wadden elected to proceed with the hearing on the agreed basis that Woodridge would withdraw its nonappropriation argument with respect to count III of the complaint. On January 19, 1989, the trial court granted Woodridge's summary judgment as to counts I and III, the remaining counts of the complaint. Wadden now brings this appeal. Wadden contends, first, that the trial court erred in granting summary judgment as to count I of his complaint. Specifically, Wadden argues that since the "new" position of administrative assistant to the director of golf course services was the same as that of golf professional, there exists a genuine issue of material fact as to whether Woodridge actually abolished Wadden's position. If, in fact, the position was not abolished, then under the provisions of the employee manual, Wadden is entitled to a hearing before the village administrator before he can be discharged. In order to resolve this issue, we must examine the qualifications necessary for each of these jobs. The qualifications for golf professional (the position held by Wadden), included graduation from high school or equivalent, two years of college preferred, and five years' experience as a golf professional or assistant golf professional, and *236 currently holding a class A membership or junior membership in the PGA of America. The golf professional was required, inter alia, to have extensive knowledge of the rules of golf, to recognize necessary maintenance of the facilities, to know the types of construction of golf equipment in order to provide information to customers, and to have knowledge of golfing events to promote public interest. The job included: supervising the golf course employees, operating and maintaining the golf pro shop and locker room facilities, conducting golf lessons outside of the 40-hour work week, attendance at monthly management and supervisory staff meetings, and providing assistance for a variety of services for the golfing public. The position of administrative assistant to the director of golf course services requires the following qualifications: 60 hours of college or junior college accredited education and three years' experience at the supervisory level in the recreational industry. The required skills or knowledge for the position was virtually the same as for the golf professional except that the latter was to be knowledgeable about golfing events. The duties of the administrative assistant included directing the activities of part-time seasonal employees, participation in the running of the golf pro shop, coordination of the maintenance of the locker room facilities, coordinating housekeeping functions for the clubhouse, and making recommendations for capital improvements. • 1 It is not disputed in this case that the employee manual created an enforceable contract right whereby Wadden could not be discharged for cause from his position as golf professional without a hearing. (See Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill.2d 482.) However, the employee manual does permit the layoff of employees without a hearing when the employee's position has been abolished. The courts have recognized that a layoff due to the elimination of a position is distinct from a dismissal for cause and, therefore, does not trigger a right to a hearing required for dismissals for cause. See Woolfolk v. Board of Police & Fire Commissioners (1979), 79 Ill. App.3d 27. • 2-5 Summary judgment is proper where the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is not a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.) The purpose of summary judgment is to render judgment on questions of law after first determining that no genuine issue of fact exists between the parties. (Deltak, Inc. v. Schwartz (1983), 119 Ill. App.3d 119, 125.) Summary judgment is a drastic measure, to be granted only where the evidence construed most strongly *237 against the moving party establishes clearly and strongly and without doubt the right thereto. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App.3d 107, 113.) The reviewing court's sole function on appeal from a grant of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether the judgment correctly was entered as a matter of law. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App.3d 408, 416.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Addison v. Whittenberg (1988), 124 Ill.2d 287, 294. • 6 We are of the opinion that the evidence before the trial court clearly established that the position of golf professional was abolished rather than replaced by the position of administrative assistant as argued by Wadden. In comparing the two positions, we note some similarities but more distinctions between the two positions. The position of golf professional carried a wide range of responsibility and a high degree of autonomy. The "golf professional" had to have five years' experience and be a member of the PGA. He gave golf lessons and organized and administered golf tournaments. He operated the golf pro shop and locker room facilities and supervised the employees for those facilities. He also prepared the budget for the operations under his control. On the other hand, the administrative assistant is charged with carrying out the decisions and policies of the director of golf course services. He has none of the independent authority to operate the golf pro shop and locker room facilities or the supervising authority over those facilities. The administrative assistant has no responsibility or authority over golf lessons or tournaments. Although the administrative assistant must be familiar with the types and construction of golf equipment, there is no level of skill at golf or membership in the PGA required. Woodridge argues, and we agree, that there is a significant difference between a position which requires five years' experience in a professional athletic association and the requisite mastery to teach a sport and a position which merely requires sufficient knowledge to competently sell athletic equipment. Wadden argues that merely retitling a position does not permit employees to be dismissed without cause and a new employee to be hired for the retitled position, citing People ex rel. Byrnes v. Stanard (1956), 9 Ill.2d 372, and People ex rel. Fleming v. Geary (1944), 322 Ill. App. 338. In both those cases, the positions eliminated were identical to the positions created. However, as we concluded above, there is no question *238 that the former position of golf professional and the present position of administrative assistant to the director of golf course services are different both in qualifications and duties to be performed. Wadden also argues that the position of support-services supervisor was substantially similar to that of golf professional. We note that in rendering his decision, the trial judge remarked that his decision would have been different if the question of similarity involved the positions of golf professional and support-service supervisor. Nevertheless, even given the similarities between the positions of golf professional and support-service supervisor, because Woodridge never filled the position of support-services supervisor, no cause of action against Woodridge existed. (See Woolfolk v. Board of Fire & Police Commissioners (1979), 79 Ill. App.3d 27 (no cause of action against village for improper dismissal where the village abolished the police force, until there was evidence that village had hired other police officers without affording the former police officers priority rights established by ordinance).) Therefore, this argument is without merit. Wadden also relies on a provision of the employee manual which provides in pertinent part as follows: "An employee who resigns or is laid-off from Village employment in good standing and who subsequently applies for re-employment may be considered in filling positions in the Village service for which he/she is qualified." Contrary to Wadden's argument, this provision does not create any expectation, priority, or preference for former employees in the filling of village jobs. Regardless of Wadden's qualifications for the job of administrative assistant, the hiring of another individual other than Wadden did not violate the above provision of the employee manual. We are of the opinion that summary judgment was properly granted as to count I of the complaint. Wadden also contends that the trial court erred in entering summary judgment as to count III of his complaint. Wadden argues that a genuine issue of material fact exists as to whether Leonard Berg, the director of golf course services, had actual or apparent authority to contract with Wadden and whether that portion of the contract to pay Wadden's commission violated Woodridge's salary administration plan. • 7 An agent's authority may be actual or apparent, actual being either express or implied. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App.3d 1132, 1136.) Circumstantial evidence may be used to establish the existence and extent of an agent's authority. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App.3d 874, 880.) Unless the parties' relationship is so clear as to be undisputed, the existence *239 and scope of an agency relationship are questions of fact. Mateyka v. Schroeder (1987), 152 Ill. App.3d 854, 862. Woodridge denies that Berg had the authority to enter into a contract with Wadden. The description of Berg's duties as director of golf course services included the following statements: "In accordance with applicable administrative policies, [he] interviews, employs, evaluates and promotes departmental employees; recommends hiring and procedures for disciplinary action; develops and implements training programs for permanent and seasonal employees. * * * Reviews and directs the operation of the maintenance division of the golf course and facilities through subordinate supervisors; reviews and approves expenditures and contracts relating to the Village Greens of Woodridge." • 8 Berg's duties as director of golf course services did not include setting the compensation level for Wadden's position as golf professional. Wadden stresses that Berg told him he was hired and negotiated his salary. However, to establish the actual authority of an agent, the authority must be founded upon some word or act of the principal, not on the acts or words of the agent. (Schoenberger, 84 Ill. App.3d at 1136.) Therefore, we determine that no genuine issue of material fact exists as to Berg's actual authority. • 9 Wadden further argues that a genuine issue of material fact exists as to whether Berg had apparent authority. In Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App.3d 1132, the court, quoting from Wing v. Lederer (1966), 77 Ill. App.2d 413, defined apparent authority as follows: "`Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds his agent out as possessing — it is such authority as a reasonably prudent man, exercising diligence and discretion, in view of the principal's conduct, would naturally suppose the agent to possess.'" 84 Ill. App.3d at 1137. Wadden points to the following facts as tending to prove that Woodridge held Berg out as possessing the ability to contract with Wadden: Berg was a department head; he negotiated with Wadden and made a formal offer of employment; no other officer, employee, or official of the village made an offer of employment to Wadden or discussed salary with him; Woodridge advertised a negotiable "incentive package"; and Berg informed Wadden that the prior golf professional had been paid a similar percentage of the receipts from the golf pro shop. *240 The trial court found the case of Bank of Pawnee v. Joslin (1988), 166 Ill. App.3d 927, to be dispositive of Wadden's argument. In that case, the village manager and clerk of the village were authorized to negotiate the purchase of a parcel of real estate. Since the owner of the parcel refused to sell to the village, the manager and clerk arranged for Joslin to purchase the building which would then be conveyed to the village. According to Joslin, the village manager and clerk agreed that his expenses in the purchase would be reimbursed, and the clerk, who was an officer of the bank, represented to Joslin that the bank would not look to Joslin for repayment of the note signed by Joslin, individually, to finance the purchase of the property. The village did not acquire the property from Joslin, who was then sued by the bank for nonpayment of the note. Joslin filed a third-party complaint against the village. Joslin claimed that the village was estopped from denying the enforceability of the contract to purchase the property. The village defended, inter alia, on the basis that neither the village manager nor clerk had actual or apparent authority to appoint Joslin as the village's agent for purchasing the property. The trial court granted the village's motion for summary judgment and Joslin appealed. The reviewing court upheld the granting of the village's motion for summary judgment. While noting that the doctrine of estoppel has been held applicable to municipalities (Gregory v. City of Wheaton (1961), 23 Ill.2d 402), the court pointed out that, normally, a city or village cannot be estopped by an act of its agent beyond the authority expressly conferred upon that official, or made in derogation of statute. (Ganley v. City of Chicago (1980), 81 Ill. App.3d 877.) Nothing in the record indicated that the village clerk or the village manager was ever granted authority to enter into an undisclosed agency agreement with a third party, or to bind the village to a contract to repurchase real property from that third party. (Bank of Pawnee, 166 Ill. App.3d at 929.) The court concluded that the village was not estopped to deny the unenforceability of the alleged contracts, stating as follows: "Undoubtedly Joslin acted improvidently in this scenario. Yet one who deals with a governmental body is at risk of having accurately ascertained that those who purport to act for that body stay within the bounds of their authority. [Citation.] A person dealing with a municipal corporation `is charged with the knowledge of the limitations of the power of that corporation for any contract attempted to be entered into by any of its officials.' [Citation.] Where an employee of a municipal corporation purports to bind the municipality by contract, without approval or authority, *241 such a contract is `utterly void,' and cannot be validated by principles of estoppel." Bank of Pawnee, 166 Ill. App.3d at 940-41. • 10 We agree with Woodridge that the employee manual and Berg's job description, both of which are relied on by Wadden, in fact, establish Berg's lack of authority to enter into a commission contract on Woodridge's behalf. Under Woodridge's code of ordinances, the relevant portions of which are incorporated into the employee manual, Berg did not have authority to contract with Wadden for the payment of commission. Wadden's reliance on Aiardo v. Village of Libertyville (1989), 184 Ill. App.3d 653, is misplaced. Even assuming, arguendo, that Berg had the authority to actually hire employees, he would not have had the authority to contract for compensation which was prohibited by the village's ordinances. (Cf. Hogan v. City of Centralia (1979), 71 Ill. App.3d 1004 (City manager with clear authority to hire could not hire employee at salary higher than budget appropriation for the position).) Section 2-209(d) of the village's ordinances provides in pertinent part as follows: "Rewards. No reward in addition to regular compensation shall be received from any source by individual employees for the performance of their duties. This provision shall not be deemed to apply to the employee awards program and/or the employees suggestion program." Wadden argues that the prohibition contained in section 2-209(d) applies only to outside rewards, such as gifts or bribes. However, the ordinance specifically sets forth the two exceptions to the "no reward" provision. Moreover, the term "negotiable incentive package" was not defined in the advertisement for the position of golf professional as being a percentage of the pro shop receipts, which could very well have fallen under one of the exceptions to the "no rewards" provision. Finally, Wadden argues that since Woodridge advertised that the golf professional's position included a "negotiable incentive package," Wadden could reasonably assume that Berg had the authority to bind Woodridge to a contract for commission with Wadden. However, nothing in the ad indicates that Berg had any authority to bind Woodridge to a contract of any kind. The ad merely states that resumes should be sent to Woodridge's personnel manager. Again, the issue is not whether pursuant to its ordinance Woodridge was authorized to pay commissions, but whether Leonard Berg was authorized to bind Woodridge to such a contract. The pleadings clearly show that Berg had no actual or apparent *242 authority to bind Woodridge to the payment of commissions to Wadden. There being no genuine issue of material fact as to this issue, summary judgment was properly granted. Finally, Wadden contends that the trial court erred in refusing to strike Woodridge's reply to his answer to the motion for summary judgment. • 11 Supreme Court Rule 219(c) (107 Ill.2d R. 219(c)) provides a trial court with wide discretion as to the appropriate sanctions to impose upon a finding of failure to comply with discovery requests. A court's ruling on what sanction, if any at all, is appropriate will not be disturbed absent an abuse of discretion. Needy v. Sparks (1977), 51 Ill. App.3d 350, 363. • 12 Contrary to Wadden's assertion that Woodridge's failure to supply copies of all of the requested appropriation ordinances was willful and intentional, the record supports the trial court's finding that Wadden had not requested "transfer" ordinances, and, therefore, Woodridge's failure to supply "transfer" ordinances was not a violation of the discovery request. As for Woodridge's failure to supply the budget summaries which were a part of the requested appropriation ordinances, Woodridge acknowledged the oversight and offered equitable solutions to the remedy of the oversight. Given the confusion over the terms "appropriation" and "transfer" as applied to the ordinances, we cannot say that the "transfer" ordinances were willfully withheld, since they were never asked for. As to the budget summaries, nothing in the record indicates they were willfully or intentionally withheld. Thus, the trial court's adoption of the remedies suggested by Woodridge to cure the discovery deficiency was the appropriate response under the circumstances. • 13, 14 Wadden also points out that section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) allows the court to assess reasonable attorney fees against any party filing untrue pleadings. However, where sanctions are to be imposed for discovery abuses, the sanctions are more properly imposed pursuant to the Code's provisions dealing with discovery rather than section 2-611. Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App.3d 64, 72. For all of the foregoing reasons, the judgment of the circuit court is affirmed. Affirmed. DUNN and McLAREN, JJ., concur.

COURT OF APPEALS OF VIRGINIA PUBLISHED Present: Judges Humphreys, Russell and Senior Judge Bumgardner Argued at Norfolk, Virginia ANGEL ALEXIS CARTAGENA, A/K/A VEGUILLA ANGEL ALEXIS CARTEGENA OPINION BY v. Record No. 2002-16-1 JUDGE WESLEY G. RUSSELL, JR. NOVEMBER 28, 2017 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge Melissa I. Bray, Assistant Public Defender, for appellant. Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Angel Alexis Cartagena was convicted in a bench trial of falsifying a firearm consent form in violation of Code § 18.2-308.2:2, attempted possession of a firearm by a felon in violation of Code § 18.2-308.2, and possession of a firearm by a felon in violation of Code § 18.2-308.2. On appeal, he contends that the evidence presented at trial was insufficient in that it did not establish the range of punishment applicable to his prior felony conviction from the state of New York. BACKGROUND On May 8, 2015, Cartagena entered Liberty Pawn II in Virginia Beach and told the store manager that he was interested in purchasing a firearm. He asked her about the procedure for purchasing a gun, and she responded that he was required to fill out two separate forms, one for the state government and the other for the federal government. Cartagena inquired about questions 10A and 10B on the federal form, indicating that his race was not listed on the form. The manager created a box “NA” for Cartagena to check.  The manager testified that, if a prospective firearm purchaser cannot read or write, she does not give them an application. If an applicant has a question of whether or not he or she has been convicted of a felony, she instructs the applicant to go to the local police precinct and speak with an officer to find out whether he or she is eligible to purchase a firearm. The manager did not have any such conversation with Cartagena. He marked the corresponding boxes on each form that he was not a convicted felon. Cartagena provided the forms to the manager for processing. He failed the background check and was denied a firearms purchase. As a result, warrants eventually were issued for his arrest related to his attempted purchase. Officer J.S. Shelton stopped the car that Cartagena was driving on November 4, 2015 for outstanding warrants for the registered owner. The officer verified Cartagena’s identity as the car’s registered owner, confirmed that there were outstanding warrants for Cartagena for firearms offenses (including falsifying a firearms form), and placed him in the back seat of his patrol vehicle. Cartagena then stated that he had a weapon in the back seat of his car. Officer Shelton searched Cartagena’s car and found a Ruger .45 caliber semiautomatic handgun in a small compartment behind the passenger seat. Cartagena told Officer Shelton that he had tried to purchase a firearm at a pawn shop but he was not permitted to do so, so he purchased this gun from a gun trader on Facebook for $400. Cartagena showed Officer Shelton his bill of sale for the firearm, saying that if he “got caught with a gun” he would not be in any trouble. The Commonwealth introduced a Uniform Sentence and Commitment order from the Fulton County Clerk’s office, State of New York, as exhibit 2. The order indicates that upon a plea of guilty, Cartagena was convicted of “att[empt] assault,” citing PL-110-120.05-06. The order specifically denotes that the offense is a felony. Along with the conviction order, the Commonwealth introduced a copy of the statute that was in effect at the time of the conviction, -2- indicating that N.Y. Penal Law § 120.05, Assault in the second degree, is a Class D felony.1 Cartagena did not object to the introduction of either the conviction order or the statute. At the close of the Commonwealth’s case, Cartagena moved to strike the evidence, arguing, “[j]ust because New York calls this a felony does not in and of itself . . . qualify it necessarily as a felony without knowing what the punishments are available.” Cartagena argued that “in Virginia a felony has to do with punishment . . . the punishment is what dictates whether something’s a felony or a misdemeanor.” Cartagena then argued that no evidence had “been presented to the court that discusses the punishment” range under the New York statute. The Commonwealth countered by arguing that the evidence conclusively established that Cartagena had been convicted of a felony under the laws of the state of New York, which is all that the statute requires. Additionally, the Commonwealth asked the trial court to take judicial notice that, for the crime at issue, New York law provided for a potential term of imprisonment of greater than one year, which is a felony punishment in Virginia. Noting that the New York record “says felony . . . [i]t clearly says a felony . . . ,” the trial court denied the motion to strike. In doing so, the trial court did not indicate whether it was taking judicial notice that the New York offense for which Cartagena had been convicted carried a maximum punishment of greater than one year in prison. Cartagena testified that he was born in Puerto Rico and moved to New York in 2011. He claimed that, when he was convicted in New York, he did not speak English and that he did not understand what happened to him. He testified, that when he applied to purchase the gun at Liberty Pawn, he said he could not read the paperwork and asked for help. He did not 1 We note that, pursuant to N.Y. Penal Law § 100.5, a conviction for an attempt to commit a Class D felony is a Class E Felony. Pursuant to N.Y. Penal Law § 70.00, a Class E felony is punishable by a term of imprisonment of up to four years. -3- understand why his application had been denied. He believed that he legally could possess a firearm if he had a bill of sale for the gun. Cartagena then rested his case. Cartagena renewed his motion to strike, reiterating that a felony in New York is not necessarily a felony in Virginia. The court again denied the motion and found Cartagena guilty of all charges. This appeal followed. Cartagena challenges all of his convictions in a single assignment of error.2 He argues that all of his convictions must be reversed because the Commonwealth’s evidence was insufficient to prove that he previously had been convicted of a felony as that term is used in the relevant statutes. ANALYSIS We apply a deferential standard of review to challenges based on the sufficiency of the evidence, and the decision of the “[t]he lower court will be reversed only if that court’s judgment is plainly wrong or without evidence to support it.” Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 859 (2014) (internal quotation marks and citation omitted). “Nevertheless, when an appeal presents the question whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, we must construe statutory language to answer the question. That function presents a pure question of law which we consider de novo on appeal.” Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011); see also Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706, 710 (2015) (noting that “[t]o the extent our analysis of the sufficiency of the evidence requires us to examine the 2 Cartagena’s sole assignment of error reads: The trial court erred in finding the appellant guilty of falsifying a firearm consent form, attempted possession of a firearm by a convicted felon and possession of a firearm by a convicted felon because the evidence was not sufficient to establish that appellant was previously convicted of a felony. -4- statutory language, we review issues of statutory construction de novo on appeal”). “[W]e consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). Here, it is undisputed that the evidence establishes that Cartagena had been convicted of a felony under the laws of the state of New York prior to his attempted purchase of a firearm at Liberty Pawn and prior to his ultimate possession of a firearm purchased elsewhere.3 Cartagena argues that, to establish violations of Code §§ 18.2-308.2 and 18.2-308.2:2, the Commonwealth was required to prove that his conviction from New York carried a potential punishment of at least one year in prison. Cartagena posits that, because Code § 18.2-10 provides that the lowest-level Virginia felony carries such a potential punishment, an out-of-state conviction must carry such a potential punishment for it to be a “felony” for the purposes of Code §§ 18.2-308.2 and 18.2-308.2:2. A. Code § 18.2-308.2 As pertinent here, Code § 18.2-308.2(A) provides that [i]t shall be unlawful for . . . any person who has been convicted of a felony . . . whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm or ammunition for a firearm . . . . (Emphasis added). Thus, by its express terms, Code § 18.2-308.2(A) prohibits any person who has been convicted of a felony “under the laws of the Commonwealth, or any other state” from knowingly and intentionally possessing a firearm. 3 Cartagena does not challenge that the evidence established that he attempted to possess a firearm when he sought to purchase one at Liberty Pawn or that he knowingly and intentionally possessed the firearm that was recovered from his car the night he was arrested. -5-  It is undisputed that the evidence established that Cartagena “had been convicted of a felony . . . under the laws of” the state of New York, which, without question, is another state. Regarding the existence of a felony conviction, the express terms of the statute require nothing more, and therefore, the evidence was sufficient to support Cartagena’s convictions for attempted possession of a firearm in violation of Code § 18.2-308.2(A) and possession of a firearm in violation of Code § 18.2-308.2(A). Cartagena’s argument, that the statute requires that a felony conviction from another sovereign must carry a potential punishment equivalent to the potential punishment for a Virginia felony is not supported by the plain language of the statute. To reach Cartagena’s proposed result, we would have to read the statute as providing that the firearm prohibition arises when one has been convicted of a “Virginia felony” or has been convicted of a felony from another covered sovereign “so long as the potential punishment for that felony meets the minimum punishment for a Virginia felony.”4 In short, Cartagena asks us to interpret the statute as if it contains words and limits that do not actually appear in the statute. This we cannot do. “When the legislature has spoken plainly it is not the function of courts to change or amend its enactments under the guise of construing 4 Cartagena bases his argument on our decision in Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468 (2002). That reliance is misplaced. In Turner, the defendant was charged with unlawfully possessing a firearm after previously having been convicted of a felony in violation of Code § 18.2-308.2(A). Id. at 853, 568 S.E.2d at 469. The predicate prior conviction offered by the Commonwealth was a conviction for an offense under the Uniform Code of Military Justice. Id. The UCMJ does not categorize offenses as felonies or misdemeanors. Id. at 854, 568 S.E.2d at 469. Faced with a prior conviction from a system that did not categorize offenses as felonies or misdemeanors, this Court held that, because the offense “carrie[d] a ‘maximum punishment’ of ‘confinement for five years,’ together with ‘dishonorable discharge, [and] forfeiture of all pay and allowances,’ a penalty clearly consistent with a felony in Virginia . . . [,] [t]he trial court . . . correctly classified the UCMJ offense a ‘felony’ for purposes of Code § 18.2-308.2(A).” Id. at 857, 568 S.E.2d at 471. Our holding in Turner is limited to the anomalous situation where another jurisdiction does not classify an offense as either a felony or misdemeanor; it has no application when, as here, the other jurisdiction classified the offense as a felony. -6- them. The province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation.” Lahey v. Johnson, 283 Va. 225, 230, 720 S.E.2d 534, 537 (2012) (internal quotation marks and citations omitted); see also Ulka Desai v. A. R. Design Grp., Inc., 293 Va. 426, 438, 799 S.E.2d 506, 512 (2017) (“We are not permitted, under the guise of judicial construction, to rewrite the plain language of a statute.”). If the General Assembly had intended the firearm prohibition to be limited to convictions from other jurisdictions that carried punishments consistent with a Virginia felony or were otherwise the equivalent of a Virginia felony, it knew how to do so. The Code is replete with examples of offenses that are defined to include substantially similar offenses in other jurisdictions or that impose increased penalties for prior convictions from other sovereigns that are substantially similar to Virginia offenses.5 The lack of such language here is fatal to 5 See, e.g., Code § 18.2-46.1 (“predicate criminal act” defined as violation of certain Virginia statutes or “any substantially similar offense under the laws of another state or territory of the United States, the District of Columbia, or the United States”); Code § 18.2-60.3 (enhanced penalty for stalking conviction if person previously has been convicted of violation of Code § 18.2-60.3(A) or “a substantially similar offense under the law of any other jurisdiction”); Code § 18.2-67.5:3 (life sentence for subsequent conviction of certain violent sex crimes if previously convicted of one of those crimes or “for felonies under the laws of any state or the United States that are substantially similar to those” listed); Code § 18.2-104 (enhanced punishment for multiple convictions for larceny as defined in the Code of Virginia or for convictions “of any substantially similar offense in any other jurisdiction”); Code § 18.2-248 (enhanced penalties for multiple convictions of Code § 18.2-248 “or of a substantially similar offense in any other jurisdiction, which offense would be a felony if committed in the Commonwealth”); Code § 18.2-513 (“racketeering activity” defined as violation of certain Virginia statutes “or any substantially similar offenses under the laws of any other state, the District of Columbia, the United States or its territories”); Code § 19.2-297.1 (life imprisonment for third conviction for various Virginia felonies and “convictions under the laws of any state of the United States for any offense substantially similar” to the listed Virginia felonies); Code § 19.2-392.02 (“barrier crime” defined as a violation of delineated Virginia statutes “or any substantially similar offense under the laws of another jurisdiction”). The conclusion that the General Assembly’s decision not to utilize the “substantially similar” standard in the prohibition section of Code § 18.2-308(A) was the result of a conscious choice is supported by the decision of the General Assembly to incorporate that very standard in the enhanced penalty section of Code § 18.2-308.2(A). Specifically, the penalty section of Code § 18.2-308.2(A) imposes a five-year mandatory minimum punishment if the prior felony conviction was for a “violent felony as defined in § 17.1-805,” which, in turn, defines a violent felony as certain delineated -7- Cartagena’s proffered construction of Code § 18.2-308.2(A) because “[w]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.” Sarafin v. Commonwealth, 288 Va. 320, 328, 764 S.E.2d 71, 76, (2014) (internal quotation marks and citations omitted). Accordingly, the Commonwealth’s evidence was sufficient to establish that Cartagena had the requisite prior felony conviction for the purposes of Code § 18.2-308.2(A), and therefore, the evidence was sufficient to support Cartagena’s convictions for attempted possession of a firearm by a convicted felon and possession of a firearm by a convicted felon. B. Code § 18.2-308.2:2 Code § 18.2-308.2:2(A) requires that a person seeking to purchase a firearm from a licensed firearm dealer in Virginia must provide the dealer with written “consent . . . , on a form to be provided by the Department of State Police, to have the dealer obtain criminal history record information.” In addition to providing such consent, the form requires that the prospective purchaser detail specific identifying information and answer certain questions, including whether the prospective purchaser “has . . . been convicted of a felony offense or found guilty or adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act that would be a felony if committed by an adult . . . .” Id. Code § 18.2-308.2:2(B)(1) provides that “[n]o [firearm] dealer shall sell, rent, trade or transfer from his inventory any such firearm to any other person who is a resident of Virginia until he has (i) obtained written consent and the other information on the consent form specified in Virginia felonies and “any substantially similar offense under the laws of any state, the District of Columbia, the United States or its territories.” -8- subsection A . . . .”6 In turn, Code § 18.2-308.2:2(K) makes it a Class 5 felony for any person to “willfully and intentionally mak[e] a materially false statement on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law . . . .” Cartagena was charged with violating Code § 18.2-308.2:2(K) for “willfully and intentionally make a false statement on a form consenting to a criminal history information check in connection with the purchase of a firearm . . . .”7 Specifically, the Commonwealth alleged that Cartagena’s representation that he had not been convicted of a felony on the required state consent form constituted a materially false statement prohibited by Code § 18.2-308.2:2(K).8 Making essentially the same argument he made regarding his convictions for violating Code § 18.2-308.2(A), Cartagena argues on appeal that the evidence was insufficient to prove he made “a materially false statement as to whether he was ever convicted of a felony . . . [because t]he Commonwealth failed to prove that [his] New York conviction qualifies as a felony” for the purposes of Code § 18.2-308.2:2. We disagree. 6 Code § 18.2-308.2:2(C) contains a similar prohibition on a firearm dealer selling a firearm to a non-Virginia resident without first obtaining the form required by subsection A of Code § 18.2-308.2:2. Cartagena indicated on the state consent form that he was a Virginia resident. 7 Cartagena does not challenge in this appeal that his statements on the state consent form were willfully and intentionally made. 8 Although Cartagena also indicated on the federal form that he was not a convicted felon and Code § 18.2-308.2:2(K) applies both to the state consent form and federal firearms forms, the parties focus on the state consent form. The indictment specifically charges Cartagena with making “a false statement on a form consenting to a criminal history information check in connection with the purchase of a firearm . . . .” (Emphasis added). The state form required by Code § 18.2-308.2:2(A) that was filled out by Cartagena specifically provides that Cartagena “hereby consent[s] to having the transferor (seller) request a criminal history record information check be performed by the Department of State Police about me in connection with this transaction . . . ,” and thus, is a form “consenting to a criminal history information check.” In light of our ultimate conclusion regarding the state consent form, we need not, and thus do not, decide whether the federal form filled out by Cartagena falls within the indictment’s description of “a form consenting to a criminal history information check.” -9-  As noted above, the plain language the General Assembly chose to utilize in Code § 18.2-308.2(A) makes clear that a convicted felon may not possess a firearm regardless of “whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof . . . .” Although the reference to felony convictions in Code § 18.2-308.2:2 does not state explicitly that it encompasses convictions that other states have classified as felonies independent of how Virginia might classify the offenses, the lack of any limiting language, the information contained on the state consent form, and context all inexorably lead to the conclusion that Cartagena provided a materially false answer when he indicated that he had not been convicted of a felony. The relevant question on the state consent form asked: “Have you been convicted of a felony offense or found guilty or adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult?” There is nothing in the question that suggests that the question is somehow limited or qualified by the way Virginia punishes or classifies felonies. The question’s absolute terms, “Have you been convicted of a felony offense . . .?,” requires that a person who has ever been convicted of a felony anywhere answer in the affirmative regardless of whether Virginia or another jurisdiction would have classified or punished the offense differently. Given his New York felony conviction, Cartagena could not answer the question truthfully with anything other than an affirmative response. This conclusion finds further support from information Cartagena was provided on the form itself. Immediately after the question regarding felony convictions, the form instructs a prospective purchaser to “See Exceptions on back of form.” It also requires that a prospective purchaser “Initial here to document reading and understanding of the Exceptions on the back of - 10 - form.” The “Exceptions” section of the state consent form Cartagena signed and initialed provides, in pertinent part, as follows: A person who has been convicted of a felony is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law where the conviction occurred, the person has been pardoned, this conviction has been expunged or set aside, or the person has had civil rights (the right to vote, sit on a jury and hold public office) restored AND (2) the person is not prohibited by the law where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer “no” to question 7. It shall be unlawful for (i) any person who has been convicted of a felony . . . whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm. (Emphasis added). This language makes clear that the question encompassed the New York felony conviction as defined by New York. In stating that a person is barred from possessing a firearm if “convicted of a felony . . . whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof,” the form tracks the language of Code § 18.2-308.2(A). Thus, the same reasons that support our conclusion that the prohibition of Code § 18.2-308.2(A) is not limited to felonies that would be punished by a felony sentence in Virginia apply here as well. Moreover, the reference to the effect of a pardon “under the law where the conviction occurred” makes clear that the law of the state where the conviction occurred is to be considered. Thus, the “Exceptions” section makes clear that a felony conviction from another state requires an affirmative response to the relevant question even if Virginia would have classified or punished the offense differently. - 11 -  Finally, our conclusion is consistent with the purpose of the statutory scheme as a whole. The state consent form is designed to help ferret out prospective gun purchasers who are barred by Code § 18.2-308.2(A) or other provisions of law from possessing firearms before a firearm can be sold. It would be absurd to bar persons with a felony conviction under the laws of another state from possessing a firearm but allow such persons to answer “no” to the felony question on the state consent form just because the other state punished the offense differently than Virginia does. Given our conclusion regarding the meaning of the felony prohibition in Code § 18.2-308.2(A), logic dictates that the same construction of felony be applied for the purposes of establishing a conviction for a violation of Code § 18.2-308.2:2(K) for making a materially false statement regarding a prior felony conviction. Accordingly, because the evidence established that Cartagena previously had been convicted of a felony under the laws of the state of New York, the evidence was sufficient to establish that he made a materially false statement on the state consent form when he denied having ever been so convicted. CONCLUSION Because the evidence established that Cartagena had a prior felony conviction under the laws of the state of New York, the evidence was sufficient to support the prior felony conviction element of his convictions for attempted possession of a firearm by a felon in violation of Code § 18.2-308.2, possession of a firearm by a felon in violation of Code § 18.2-308.2, and falsifying a firearm consent form by making a materially false statement regarding a prior felony conviction in violation of Code § 18.2-308.2:2. Accordingly, his convictions for these offenses are affirmed. Affirmed. - 12 - 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1362-10 KENDRICK LEVELL TYLER, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS FORT BEND COUNTY Per curiam. Keasler, and Hervey, JJ., dissent. O R D E R The petition for discretionary review violates Rule of Appellate Procedure 68.4(i) because it does not contain a complete copy of the opinion of the court of appeals. The petition is struck. See Rule of Appellate Procedure 68.6. The petitioner may redraw the petition. The redrawn petition and copies must be filed in the Court of Criminal Appeals within thirty days after the date of this order. Filed: February 2, 2011 Do Not Publish

653 P.2d 1155 (1982) Arthur A. HOKE, Jr. and Helen P. Hoke, Plaintiffs-Appellants, v. Guy A. PAUL, Chief of Police of the County of Hawaii, County of Hawaii, a municipal corporation, and John Does 1 through 10, Defendants-Appellees. No. 8023. Supreme Court of Hawaii. November 16, 1982. *1157 Stanley H. Roehrig, Hilo, and Kazuhisa Abe, Honolulu, for plaintiffs-appellants. Burnham H. Greeley, Carlsmith, Carlsmith, Wichman & Case, Honolulu, for Guy Paul. Patricia K. O'Toole, Asst. Corp. Counsel, Hilo, for County of Hawaii. Before RICHARDSON, C.J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ. PADGETT, Justice. This is an appeal from the granting of a summary judgment in favor of Appellees Guy A. Paul (Paul) and the County of Hawaii (County). We affirm as to Appellee County of Hawaii and reverse as to Appellee Paul. The second amended complaint, with respect to which the summary judgment was granted, contained two counts. Count I was essentially an action in defamation concerning two documents prepared and allegedly published by Paul. Count II encompassed not only the two publications in question, but a series of acts commencing some 18 or 19 years earlier and allegedly continuing until the date of the filing of the second amended complaint. It sounded in what can best be described as malicious official harassment of Appellant Arthur A. Hoke, Jr. (Hoke) by Paul through the use of his position as Assistant Chief and later Chief of Police of the County of Hawaii. Appellant Helen P. Hoke (Helen Hoke), wife of Hoke claimed damages under both counts for loss of consortium. Extensive affidavits and other exhibits were filed on both sides with respect to the motion for *1158 summary judgment which, thereafter, was granted by the court below. I. THE COUNTY OF HAWAII. Appellants alleged, with respect to Paul's actions which are the claimed bases of liability under both counts, that those actions were taken in the course and scope of his employment. As to Count I, defamation, the law is that an employer may be liable for compensatory damages for the defamatory acts of an employee if the employee was acting within the scope and course of his employment. Kahanamoku v. Advertiser, 26 Haw. 500 (1922); 50 AM.JUR.2d, LIBEL AND SLANDER § 163 (1970). However, the affidavits filed by appellants in opposition to the motion for summary judgment make clear that their contention is that Paul, in doing the specific acts complained of, was acting contrary to procedures laid down in the general orders of the police department of the County of Hawaii and the collective bargaining contract between the County and the representative of the police officers, SHOPO. Appellants have therefore, insofar as the County of Hawaii goes, conceded that Paul was not acting within the scope and course of his duties as an employee of the County in publishing the two allegedly defamatory statements. Hence, summary judgment was properly granted on Count I in favor of the County: As to Count II, it is an action for harassment of another by a public official in the use of his official position arising out of subjective, intentional malice. Such an action clearly lies only against him personally and not his employer; compare, Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974); Runnels v. Okamoto, 56 Haw. 1, 525 P.2d 1125 (1974). Count II fails, therefore, fails to state a claim for relief against the County. II. THE LIABILITY OF APPELLEE PAUL UNDER COUNT I. A. The Standard of Malice. The two documents complained of are (1) a memorandum from Appellee Paul to the then Chief of Police of the County of Hawaii, Ernest J. Fergerstrom, dated July 22, 1975 authored by Appellee Paul and (2) a misconduct report prepared by Appellee Paul and signed by him as the investigator, receipt of a copy of which was acknowledged by Appellant Arthur A. Hoke, Jr., in December of 1975. Appellee contends that the "malice" standard adopted in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and followed by us in Tagawa v. Maui Publishing Co., Ltd., 50 Haw. 648, 448 P.2d 337 (1968) and Rodriguez v. Nishiki, Haw., 653 P.2d 1145 (decided 1982) is applicable. Under that standard, where the defamee is a public official or figure, the defamor is not liable, even though the publication be false, unless he knew that it was false or unless he published it with reckless disregard of whether or not it was false. On the other hand, appellants contend that the standard should be that adopted recently by us in Towse v. State, 64 Haw. 624, 647 P.2d 696 (1982), to wit, that where a defamor is a public official, he is held to the standard of a reasonable man in determining whether his publication is or is not false but where the defamee is also employed by the government, he or she must prove that the defamor acted with intentional, subjective malice by clear and convincing evidence, under the rule set forth in Medeiros, supra. We think that insofar as any claim sounding in defamation goes, it may be that the appellants in Towse, supra, although public employees, were not public "officials" (or public figures) (see New York Times Co. v. Sullivan, supra at 376 U.S. 283, n. 23, 84 S.Ct. at 727, n. 23). In our case, on the other hand, Appellant Hoke was a Captain of Police, a highly visible "public official", and therefore, the New York Times' standard should apply. That standard, however, does not save summary judgment on Count I in this case, since the evidence submitted by the *1159 appellants in opposition to the motion for summary judgment is sufficient to create a genuine issue of material fact as to whether or not Paul acted with knowledge of the alleged falsity of his statements or in reckless disregard thereof. For example, there is sufficient evidence of such clarity and convincing force that a reasonable trier of the fact, who believed it, could conclude that many of the charges of misconduct as a police officer and captain, leveled in the documents in question against Hoke by Paul concerned conduct of Hoke which was authorized by his superior and known to be so authorized by Paul, who, nevertheless, leveled the charges in disregard of that authorization. B. The Statute of Limitations. Defamation actions are governed by § 657-4, HRS, which provides, All actions for libel or slander shall be commenced within two years after the cause of action accrued, and not after. The original complaint in this case was not filed until January 23, 1978, thus, it was filed more than two years after the date of Exhibit A (attached to the complaint) and more than two years after Appellant Hoke had received Exhibit B (attached to the complaint). With respect to Exhibit A (the memorandum of July 22, 1975) appellants argue that they did not know of the existence of that document until May of 1976 when it was discovered in the course of the grievance procedure which eventually cleared Hoke of all of the charges leveled against him in the two documents by Paul.[1] As to Exhibit B, Hoke claims he did not know of its publication to the so-called second disciplinary board until he was called before that board on January 23, 1976.[2] Appellee argues that the statute of limitations with respect to defamation actions begins to run when the publication occurs, regardless of when it is discovered. See, 50 Am.Jur.2d, Libel and Slander § 390 at 912 (1970) and the cases cited in footnote 16 thereto. Appellants, on the other hand, contend that under Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967), the statute of limitations does not begin to run until the time when the injured party discovered or should have reasonably discovered the tort. The statute passed upon in Yoshizaki was RLH 1955 § 241-7 (now § 657-7, HRS) then reading: Actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued, and not after. It is identical with the libel and slander limitation statute in all pertinent respects. We, therefore, follow Yoshizaki, supra and hold that a claim for defamation accrues when the defamee discovers or reasonably should have discovered the publication of the defamation. The allegations of the complaint are to the effect that Exhibit B was given to the so-called second disciplinary board on January 21, 1976 but that Appellant Hoke did not learn of the same until January 23. The affidavits do not establish the correctness or incorrectness of this allegation one way or the other. The complaint does claim that the exhibit was distributed to an earlier disciplinary board which rejected the charges therein.[3] *1160 The distribution to the second board was a republication, a new and separate tort which started the statute running with respect to that publication when it was discovered or reasonably should have been discovered. 50 Am.Jur.2d, Libel and Slander § 169 (1970). Therefore, the claim with respect to that republication was not barred by the statute of limitations. However, we do not regard the dissemination of the charges in the two alleged defamatory documents to the persons charged with determining the correctness of the charges at Steps II and III of the grievance proceedings (after they had been first received by the so-called second disciplinary board) as actionable republications, particularly since the ultimate result of the grievance procedures was to clear Hoke of the charges against him and the dissemination was, thus, in no sense, harmful to his interests. III. THE LIABILITY OF APPELLEE PAUL UNDER COUNT II. A. The Alleged Claim for Malicious Official Harassment (Count II). Count II alleges in substance and in some detail a claim that Paul, over a period of many years continuing up to the date of the filing of the second complaint, intentionally and maliciously used his official position to harass Hoke. Paul did not attempt, by affidavit or otherwise, to establish that there was no factual basis for certain of the allegations, such as those in paragraph 2(g) of Count II, which alleges that he had, systematically and continuously, caused Hoke to be under surveillance and constant watch and investigation, in contravention of established policies and regulations and the ruling that Step III of the grievance procedure, from the time of Hoke's reinstatement in the police department up to and including the date of the filing of the second amended complaint. Moreover, there is certainly enough evidence in the affidavits filed in opposition to the motion for summary judgment for a reasonable trier of fact, who believed that evidence, to find that Hoke had clearly and convincingly established that Paul's course of conduct was malicious rather than for an otherwise proper purpose. We are therefore somewhat at a loss to understand how the court below could have granted summary judgment to Paul on Count II. B. The Effect of the Statute of Limitations on Count II. We note that if the appellants, on trial, are able to show that Count I of the complaint is not barred by the statute of limitations, then the allegations with respect to Exhibits A and B in Count II will likewise not be barred since, obviously, the amendment will relate back with respect to those factual matters. See Rule 15(c), HRCP, and Mauian Hotel v. Maui Pineapple Co., 52 Haw. 563, 481 P.2d 310 (1971). If appellants prevail at trial, they should, however, be limited, on Count II, to damages accuring not more than two years immediately prior to the original filing of that Count, together with damages arising out of the two statements complained of, if it is found that there is a relation back under Rule 15(c), HRCP, to the allegations of Count I. 51 Am.Jur.2d, Limitation of Actions § 135 (1970) (compare Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970)). C. The Standard of Malice Under Count II. The standard of malice and the degree of proof to be applied in determining liability under Count II is that laid down in Medeiros, supra. If, because of a relation back under Rule 15(c), HRCP, the publication of Exhibits A and B to the complaint is considered by the jury under this count, the Medeiros, not the New York Times standard, will apply to that consideration. IV. APPELLANT HELEN HOKE. Although, in the second amended complaint, Helen Hoke has alleged damages only for loss consortium, her affidavit reflects damage also because of emotional distress. If, on trial, she proves damage by reason of loss of consortium arising out of *1161 Paul's alleged tortious actions with respect to Hoke and/or she establishes, according to the standard laid down in Rodrigues, supra, that she has suffered damages by way of emotional distress arising out of Paul's alleged tortious conduct with respect to Hoke, she should be entitled to recover therefore on any count on which Hoke recovers damages. Her claim for relief, however, is not independent. If the jury, on trial, finds against Hoke and for Paul on either Counts I or II or both, then judgment should also be rendered against Helen Hoke on such count or counts. V. DUPLICATION OF DAMAGES. There can, of course, be no duplication of damages even if Appellant Hoke, or both appellants, prevail on both counts. Reversed and remanded for proceedings consistent with this opinion. NOTES [1] At oral argument, Paul's counsel referred to the transcript of an interview between Paul and Hoke, which referred to a "Misconduct Report", and indicated to the court that that report and Exhibit A were one and the same. Since the interview was dated July 15, 1975 and Exhibit A, July 22, 1975, it is obvious that such was not the case. [2] If January 23, 1976 is the determinative date with respect to Exhibit B, the complaint was timely filed since the last day of the two-year period, January 22, 1978, was a Sunday and the complaint was filed the next day. [3] Since that board did reject the charges, there was no actual damage to Hoke by the publication to it. Moreover, apparently Hoke knew of this publication in December 1975 so that, even if it had been actionable, a claim with respect to it would have been barred.

380 So.2d 182 (1980) JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY, Plaintiff-Defendant in Reconvention-Appellant, v. WILLETT TIMBER COMPANY, INC., Defendant-Plaintiff in Reconvention-Appellee. No. 7200. Court of Appeal of Louisiana, Third Circuit. January 30, 1980. Writ Refused March 21, 1980. *183 Ledbetter, Percy & Stubbs, J. Michael Percy, Alexandria, for plaintiff-appellant-appellee. Gold, Little, Simon, Weems & Bruser, Donald R. Sharp, Alexandria, for defendant-appellee-appellant. Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee. *184 Provosty, Sadler & deLaunay, Michael T. Pulaski, Alexandria, for defendant-third-party plaintiff-appellee. Before CUTRER, STOKER and WARE, JJ. WARE, Judge. This action was brought by John Deere Industrial Equipment Company (John Deere) to enforce an alleged lease of industrial equipment. On January 31, 1975, Willett Timber Company, Inc. (Willett) entered into an agreement styled an "Industrial Equipment Lease" with Norwel Equipment Company of Alexandria, Louisiana (Norwel), a John Deere dealership. Norwel's rights under the agreement were assigned to John Deere on the same date. Pursuant to that agreement, Willett acquired a large machine equipped for use in the pulpwood industry. The machine was composed of two major components. The larger of the two is manufactured by John Deere and is known as a John Deere Model 544 B Wheel Loader. The other component, which was attached to the John Deere Wheel Loader by Norwel, is manufactured by Rome Industries, Inc. (Rome) and is known as a Rome Model SHN Shear with Feller-Buncher. The machine was delivered to Willett on January 31, 1975. Shortly after Willett began using the machine, problems were encountered with its hydraulic system. In May of 1976, after Norwel had made numerous unsuccessful attempts to remedy the malfunctioning, Willett returned the machine to Norwel and stopped making the payments required by the agreement. John Deere brought the present action to compel Willett to resume making the payments and obtained a writ of sequestration, pursuant to which the machine was seized. Willett filed a motion to recall and set aside the writ. After a contradictory hearing, the trial court held that the agreement was actually a sale, rather than a lease, and set aside the writ. The agreement has been treated as a sale in all subsequent proceedings. Willett answered John Deere's petition and filed a reconventional demand, alleging that the machine contained redhibitory vices. It joined Norwel as a co-defendant, praying for judgment in solido against them. In addition to the rescission of the sale, Willett sought the return of the payments made on the purchase price, the cost of repairs, lost profits and attorney's fees. Norwel answered Willett's reconventional demand and also reconvened, seeking the unpaid balance due for parts and labor furnished for the repair of the machine. It also filed a third party demand against John Deere and Rome, seeking the rescission of its purchases of the John Deere Wheel Loader and the Rome Shear with Feller-Buncher, indemnification for any judgment rendered in favor of Willett and against Norwel, and attorney's fees. In addition, Norwel sought judgment against John Deere and Rome for the amount of its reconventional demand against Willett in the event that that demand was dismissed, based on a finding that the machine contained redhibitory vices. John Deere answered Willett's reconventional demand and filed a third party demand against Rome, praying for indemnification against any judgment rendered against it and in favor of Willett or Norwel. John Deere also amended its petition in the principal action, seeking a credit for the value of Willett's use of the machine in the event that judgment was rendered in favor of Willett and against it. After a trial on the merits, the district court found that the machine contained a redhibitory defect. Judgment was rendered (1) In favor of Willett and against John Deere and Norwel in solido, rescinding the sale and awarding Willett $30,607.09, the amount of the payments made on the purchase price, subject to a credit of $30,000.00 for Willett's use of the machine; (2) In favor of Willett and against John Deere in the amount of $48,000.00 for lost income and $7,500.00 for attorney's fees; (3) In favor of Norwel and against John Deere (on Norwel's third party demand) for all sums recoverable against Norwel with respect to *185 its solidary obligation with John Deere to Willett, plus $3,570, the amount owing for repairs to the machine, and $2,500 for attorney's fees; and (4) In favor of Rome and against Willett, Norwel, and John Deere, dismissing all demands against Rome. John Deere perfected a suspensive appeal from that judgment. Willett brought a devolutive appeal against all adverse parties and answered John Deere's appeal, asking that the judgment be modified to grant judgment in solido against John Deere, Rome and Norwel. In addition, Willett asks that the judgment be amended to delete the credit for its use of the machine and to include an additional $2,500.00 for the services of its attorney on appeal. Norwel answered the appeals taken by John Deere and Willett, asking that the judgment be amended to include an additional $4,000.00 for services rendered by its attorney on appeal. The principal issue on appeal is whether the machine contained redhibitory vices or defects. All but one of John Deere's specifications of error pertain to the trial court's finding that it did contain such a defect. John Deere contends that that finding is manifestly erroneous, and Norwel agrees. As we noted earlier, the machine purchased by Willett was composed of two major components that were assembled by Norwel. One was a John Deere Model 544 B Wheel Loader, and the other was a Rome Model SHN Shear with Feller-Buncher. The John Deere Wheel Loader is a large, self-propelled machine. Its engine supplies power to its wheels through a transmission and also drives a hydraulic pump, from which the machine derives its ability to perform work. The pump draws hydraulic fluid from a reservoir and expels it under pressure through hoses or lines, which carry the pressurized fluid into a cylinder containing a piston. The force of the fluid against the piston causes it to move within the cylinder. Valves are placed in the lines diverting the flow of fluid to and from the cylinder and within the cylinder itself. This produces a back and forth movement of the piston, which can be controlled by the operator of the machine and used to do work. The John Deere Wheel Loader is most commonly used by attaching a large bucket or scoop to its front, which is used to move loose materials, such as dirt, sand or gravel. Movement of the bucket is controlled by the hydraulic system, allowing the operator to lift the material and dump it. Laymen generally refer to such machines as "front end loaders". In this case, a Rome Model SHN Shear with Feller-Buncher was attached to the front of the John Deere Wheel Loader, rather than the usual bucket. Although the Rome attachment is not designed or manufactured by John Deere, John Deere approves its use with its Wheel Loader. John Deere dealers, such as Norwel, purchase the attachment from Rome, connect it to the Wheel Loader, and market the completed unit as one machine. The experts who testified agreed that the marriage of the Wheel Loader's hydraulic pump to the hydraulic components of the Rome assembly produced a single hydraulic system, rather than two separate ones. As its name suggests, the Rome attachment is also comprised of two major parts. The shear, which consists of hydraulically powered cutting blades, is designed to cut through small trees at ground level. The feller-buncher, which is composed of two large hydraulically operated clamps, then gathers the severed trees and holds them. After a sufficient number are cut, they are released and deposited on the ground in a pile. The assembly is designed to cut and gather the kind of small trees that are converted to pulpwood for use in the manufacturing of paper. Willett purchased the machine for that purpose. Shortly after Willett began using the machine, it became evident that its hydraulic system was malfunctioning. It repeatedly overheated and had to be shut down and allowed to cool, suspending Willett's operations for valuable periods of time. Norwel made numerous service calls and repairs, but the problems with the machine's hydraulic system continued. When *186 the machine had been operated less than 300 hours, the hydraulic pump had to be completely replaced. Engineers who testified at the trial agreed that the average life of that kind of pump is between 1,500 and 4,000 operating hours and that the repair frequency on the machine was far above normal. Norwel's mechanics were never able to determine the cause of the repeated failures of the hydraulic system. Even when Willett returned the machine in May of 1976 and discontinued its business operations, they could only suggest a complete testing of the component parts. Their repeated unsuccessful efforts to repair the machine had not given them a clue as to the source of the problem. At the trial, several experts testified concerning the possible causes for the hydraulic system's failure. It was established that the successful operation of such a system depends on the quality of the fluid within it. The fluid, which is an oil, not only serves as a means of propelling the piston as described earlier but also serves as a lubricant, which prevents the metal surfaces of the pump from coming into contact with one another. Since the pump turns at very high speeds, friction damage will destroy it within a short period of time if it is not properly lubricated. Excessive heat and contamination of the oil can greatly impair the oil's ability to adequately lubricate the pump. If dirt or other debris is allowed to enter the system, it has an abrasive effect on the smooth metal surfaces of the pump, causing damage. Particulate contamination can also arise from within the system itself, if the viscosity of the oil is reduced by excessive heat or its mixture with water, allowing the metal surfaces of the pump to come into closer contact with one another. Particles of metal are broken off as a result of the closer contact and are carried through the system by the oil, causing further damage. Friction damage results in increased heat within the system, regardless of whether the initial damage was caused by excessive heat or contamination of the oil. This heat further degrades the oil, causing more damage. Therefore, when this vicious cycle brings about the failure of a hydraulic system, the hydraulic oil will always be found to be in an extremely damaged and contaminated condition. Thus, it can be very difficult to determine the initial cause of the failure. Willett argues that the problems with the hydraulic system stemmed from its overheating and that the overheating was the result of a defect in the design or manufacture of the machine. Mr. Donald Foster, a mechanical engineer called by Willett, testified that the hydraulic system had an inadequate cooling capacity, because the size of the reservoir was too small. John Deere refuted that testimony, relying on the testimony of other witnesses to the effect that other identical machines, including one borrowed or rented by Willett, functioned satisfactorily and did not fail as a result of overheating. Mr. Foster also testified that the overheating could have been the result of internal leakage in the pump. On one of their service calls, Norwel's mechanics found that an o-ring had been cut, apparently when the pump was assembled at the factory. According to Mr. Foster, the damaged o-ring could have caused internal leakage. However, John Deere's experts testified that because of the location of the o-ring, only external leakage would have resulted, which would not have caused overheating. John Deere contends that the failure of the hydraulic system was brought on by Willett's poor maintenance of the machine. Some of Willett's employees testified that at times a brand of hydraulic oil and filters other than John Deere's were used in the machine. John Deere showed that the other filters that were used were inferior to its filters in that they were not able to remove as many particles from the oil and they would burst at a much lower pressure. It was also shown that the storage of the other brand of oil in large, unsheltered drums could have caused it to become mixed with water which condensed inside the drums. However, according to the undisputed *187 testimony of Willett's employees, for at least the first five or six months of the machine's operation only John Deere oil and filters were used. Norwel's work orders showed that in the first few months its mechanics changed the oil and filters several times. According to Willett's employees, the only time they added oil was when oil was lost because a hose broke or became dislodged. On those occasions, they added John Deere oil, which was stored in five gallon containers in the back of a covered truck. After considering all of the evidence presented at the trial, the trial judge concluded that Willett had failed to prove that there was a redhibitory defect in the design of the John Deere Wheel Loader or in the design or manufacture of the Rome assembly. He found, however, that Willett had proved that there was a manufacturing defect in the John Deere Wheel Loader. The principles of law applicable to this kind of case were fully summarized by the Louisiana Supreme Court in the following excerpt from its opinion in Rey v. Cuccia, 298 So.2d 840 (La.1974). "In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product's intended use. Civil Code Articles 2475, 2476, 2520; Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). The seller, of course, can limit this warranty by declaring to the buyer the hidden defects at the time of the sale, Article 2522, or can otherwise limit his obligations as seller, providing he do so clearly and unambiguously, Article 2474. "A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold `which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.' Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La. 1973). "The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction. J. B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbott Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir. 1968); Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3d Cir. 1961). "The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale. Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3d Cir. 1961); Mattes v. Heintz, 69 So.2d 924 (La.App. Orl.1954); Standard Motor Car Co. v. St. Amant, 18 La.App. 298, 134 So. 279 (1st Cir. 1931). As stated in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155: `... proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows the fact or causation sought to be proved is more probable than not.' "If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. Andries *188 v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1950); Standard Motor Car Co. v. St. Amant, 18 La.App. 298, 134 So. 279 (1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166 (1971)." After carefully examining the evidence in the record in light of those principles, we cannot say that the trial judge's findings are manifestly erroneous. They will, therefore, not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). John Deere's other specification of error is concerned with the trial court's award of damages to Willett. The trial court found that because of the chronic overheating of the machine, which required that it be shut down and allowed to cool during the workday, Willett was not able to fill all of its orders for wood chips. The failure to fill those orders resulted in a loss of income. John Deere does not dispute Willett's proof as to its loss or the trial judge's finding that it was caused by the malfunctioning of the machine. It simply argues that Willett is not entitled to damages because its business venture was unprofitable at its inception. We disagree. Although it is clear that Willett's endeavor would have been unprofitable even if the machine had functioned perfectly, its poor performance resulted in a loss to Willett. As a manufacturer, John Deere is presumed to know of the defects of the thing which it manufactures, and under LSA-C.C. Art. 2545, it is liable to the buyer for the damages it caused. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978). We turn now to Willett's arguments with respect to the credit given to John Deere and Norwel for its use of the machine. The issue raised by those arguments was addressed by the Louisiana Supreme Court in Alexander v. Burroughs Corporation, supra, wherein the court said: "A credit for a purchaser's use of a product may be proper in certain instances, even in favor of a bad faith seller. In the absence of specific provisions punitive damages are not obtainable in Louisiana; the object of the provisions governing redhibitory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Compensation for the buyer's use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overriden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller's attempts to repair." It is clear from that language that the trial court has discretion to allow a credit for use if such a credit is warranted under the facts of a particular case. After reviewing the facts of this case, we agree with the trial judge that a credit was in order. Undoubtedly, Willett was inconvenienced by the time lost when the machine was being repaired or allowed to cool. Nevertheless, the machine was not totally useless. In the 15 months that Willett used it, Willett was able to produce approximately 60% of the wood chips that were ordered and realized a gross income of over $237,000. Mr. Glen Manzer, president of Norwel, testified that the rental value of the machine was $4,869.00 per month. The trial judge correctly held that John Deere and Norwel were not entitled to a credit for the full rental value due to the poor performance of the machine. He concluded that $2,000 per month was a reasonable amount and allowed a credit of $30,000 for the 15 months that Willett used the machine. Willett points out that it was only paying $1,777.38 per month for the machine. However, we do not find it at all unusual for the rental price of such a machine to be considerably higher than the deferred payments provided for in a credit sale. The difference reflects the cost of repairs not covered under the warranty and depreciation. Willett would have had to bear those costs in addition to its monthly payments on the purchase price if the sale had not been rescinded. Under these circumstances, we do not believe that the trial *189 judge abused his discretion in allowing a credit of $30,000. The only remaining matters to be disposed of are the requests for additional attorney's fees. Willett and Norwel were awarded attorney's fees by the trial court. Those awards are clearly authorized by LSA-C.C. Art. 2545, and we believe that Norwel is entitled to an increase for the additional attorney's fees which it incurred in order to protect its rights on appeal. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir. 1979). Willett is not only protecting its rights on appeal, however. It sought additional relief, which was denied. In view of that fact, we find that it is not entitled to additional attorney's fees. Conlay v. Houston General Insurance Company, supra. Accordingly, that portion of the judgment which is rendered in favor of Norwel and against John Deere awarding Norwel $2,500 is amended to increase the award to $3,250. As amended, the judgment is affirmed. All costs of this appeal are assessed against John Deere Industrial Equipment Company. AMENDED AND AFFIRMED.

681 N.E.2d 552 (1997) 288 Ill. App.3d 743 224 Ill.Dec. 237 MOBIL OIL CORPORATION, a foreign corporation, Plaintiff-Appellee, v. MARYLAND CASUALTY COMPANY, a foreign corporation, and Northern Insurance Company of New York, a foreign corporation, Defendants-Appellants. No. 1-96-0351. Appellate Court of Illinois, First District, Fifth Division. May 9, 1997. *555 Kiesler & Berman, Chicago (John J. Piegore and Robert L. Kiesler, of counsel), for Defendants-Appellants. Peter D. Kasdin, Ltd., Chicago (Regina Picone Etherton, of counsel), for Plaintiff-Appellee. Presiding Justice HARTMAN delivered the opinion of the court: Defendants Maryland Casualty Company (Maryland) and Northern Insurance Company of New York (Northern) appeal the circuit court's grant of summary judgment in favor of plaintiff, Mobil Oil Corporation (Mobil), finding defendants liable for Mobil's attorney's fees pursuant to section 155 of the Insurance Code (215 ILCS 5/155(1) (West 1992)) (section 155), and awarding Mobil $442,762 in such fees. Mobil incurred these fees in two separate actions: a tort claim in which Maryland, after initially agreeing to defend Mobil under two liability insurance policies, later disputed the policy limits and advised Mobil to retain separate counsel, which it did; and a declaratory judgment action, in which Mobil claimed that the policies obligated defendants to indemnify Mobil for any liability incurred in the tort claim. The insurance policies were purchased by a third party, B.M.W. Constructors, Inc. (B.M.W.), the named insured, as part of a contract for the repair of a flare system at Mobil's oil refinery in Joliet, Illinois. The contract required B.M.W. to obtain liability insurance that would cover any work performed by B.M.W. at the refinery. For liability stemming from bodily injury, B.M.W. was required to obtain a minimum of $250,000 in coverage for each occurrence, and a minimum of $500,000 in aggregate coverage. The contract also required that B.M.W. obtain liability insurance naming and covering Mobil and any of Mobil's affiliates, under the policies "as their interests may appear." B.M.W. procured the insurance from its insurance representative, with coverage to be provided by Northern, a subsidiary of Maryland. The policies provided coverage for general liability, automobile liability, and excess liability. The general liability policy offered $1 million in coverage for each occurrence and a maximum of $6 million in coverage for aggregate liability. The excess liability policy provided up to $5 million in coverage. In July 1988, B.M.W. sent Mobil the certificate of coverage received from Northern for these policies, as required by Mobil's contract with B.M.W. The certificate listed B.M.W. as the insured party and added Mobil "as an additional insured as their interests may appear." The certificate made no reference to the contract between B.M.W. and Mobil. On September 17, 1988, two B.M.W. employees, Steve Cibulskis and Marvin Lamar, were injured as they performed repair work at the Joliet refinery. They and their spouses filed suit against Mobil in the circuit court of Cook County, No. 90-L-3410 (Cir. Ct. Cook Co.) (Cibulskis lawsuit). Mobil tendered its defense to Maryland which, in April 1989, unconditionally accepted Mobil's tender, hired a law firm to defend the Cibulskis lawsuit, and informed the law firm that, under the general liability policy, Mobil was entitled to up to $2 million in coverage. In a subsequent letter to one of the underlying plaintiff's attorneys, Maryland's claim representative stated that Maryland had accepted Mobil's tender of its defense and that further correspondence regarding the claim should be forwarded to Maryland. The parties to the Cibulskis lawsuit spent the next few years conducting discovery and preparing for trial. Maryland's trial attorney settled with Lamar, who was not severely injured, and continued to prepare for the claims by Cibulskis and his wife. In a response to one of the underlying plaintiffs' interrogatories regarding insurance coverage, Mobil's answers, prepared by Maryland's appointed defense counsel, stated that Mobil was covered by two insurance policies, with policy limits of $1 million and $5 million, which was submitted to those plaintiffs by Maryland's trial attorney on April 15, 1991. In two pretrial reports, Maryland's trial attorney recommended that the Cibulskis' case be settled for approximately $1.5 to $2 million. After extensive discovery had been completed, with some 33 depositions taken and *556 expert witnesses engaged, Maryland told Mobil in a letter dated December 16, 1991, that the insurance policies provided Mobil with only $250,000 in coverage, because the contract between Mobil and B.M.W., mentioned that sum. That contract was never made part of the rider or policy. Maryland further advised Mobil to retain its own defense counsel in the Cibulskis lawsuit to protect its interests in the event that Mobil's liability for the claim exceeded $250,000. On February 6, 1992, Mobil responded to Maryland's letter, noting that it was entitled to the full amount of coverage, $6 million, as an additional insured under the insurance policies. In a written reply, Maryland reiterated its position that Mobil was entitled only to $250,000 in coverage. Mobil hired its own attorney for the Cibulskis lawsuit on March 24, 1992, who filed a complaint against Maryland, Northern, and B.M.W. in chancery, seeking a declaration that the insurance policies provided full coverage to Mobil as an additional insured, and obligated the above-named defendants to indemnify Mobil in the Cibulskis lawsuit. Mobil also filed a third-party complaint against B.M.W., which was dismissed. On March 12, 1993, Maryland wrote Mobil stating, in effect, that the insurance company had reconsidered its position, and agreed to provide Mobil full coverage under the insurance policies.[1] Maryland refused, however, to pay any legal fees already incurred by Mobil's attorneys in the Cibulskis lawsuit. Mobil's attorney continued to prepare for trial. She repeatedly disagreed with Maryland's trial attorney regarding how and when the Cibulskis lawsuit should be resolved. Mobil's attorney sent several letters to this trial attorney, asking him to settle the lawsuit, because Mobil believed that a trial judgment might exceed the policy limits. The first letter, dated February 15, 1993, asked the attorney to accept the Cibulskis' offer to settle the case for $5.5 million, because they planned to seek punitive damages at trial which, if awarded, might be much higher than the current settlement offer.[2] A letter sent on May 14, 1993 by Mobil's attorney requested that Maryland accept the reduced offer of $3,750,000. A third letter, dated June 14, 1993, asked that Maryland accept a $2,250,000 offer, and accused Maryland of acting in bad faith by refusing to settle the case, asserting that Mobil could be subject to much greater liability if the case proceeded to trial. On July 30 and August 23, 1993, Mobil sent letters to Maryland's attorneys in the declaratory judgment action, warning that Mobil would sue Maryland for any amount awarded to the Cibulskis that exceeded the policy limits. In an August 6, 1993 letter, Maryland assured Mobil that it was willing to negotiate a fair and reasonable settlement, but disputed Mobil's contention that it should be responsible for paying any punitive damage award. On August 23, Mobil responded by asking why Maryland refused to accept the Cibulskis' most recent settlement offer of $2 million. Mobil's attorney reminded Maryland that its own trial attorney had recommended a settlement in the area of two million dollars, and had concluded that the case should be settled. On August 27, 1993, after the circuit court held a pretrial conference with the parties to the Cibulskis lawsuit, Mobil's attorney again wrote Maryland requesting that it accept the Cibulskis' settlement offer, which now stood at $1,800,000. The attorney noted the court's comment that two million dollars was a reasonable settlement offer in light of the evidence that would be presented at trial. The attorney further accused Maryland of acting in bad faith by refusing to settle the case, and again threatened to sue Maryland if a judgment against Mobil exceeded the policy *557 limits. The case went to trial that day. Several days later, on September 2, 1993, Maryland's trial attorney finally agreed to settle the case for $1.75 million. In the declaratory judgment action against Maryland and Northern, Mobil filed an amended complaint just before the Cibulskis lawsuit was settled. Count one alleged that defendants Maryland, Northern, and B.M.W. were obligated to indemnify Mobil in the Cibulskis lawsuit, and must pay for the costs of trial and any settlement or judgment entered against Mobil. Count two stated a claim against B.M.W. for breach of contract, seeking as damages the attorney's fees and costs incurred by Mobil in defending the Cibulskis lawsuit and litigating the declaratory judgment action. The circuit court granted B.M.W.'s motion to dismiss Mobil's amended complaint as to B.M.W. Mobil moved for summary judgment against Maryland and Northern, seeking payment of attorneys' fees pursuant to section 155 of the Insurance Code. Mobil asserted the language of the insurance policies unambiguously established that the insurance defendants had a duty to indemnify Mobil for up to $6 million in liability. After the Cibulskis lawsuit was settled, with Maryland paying the costs of the settlement, the circuit court chancery division transferred the case to the law division, the only remaining issue being Maryland's liability to Mobil for Mobil's attorney's fees. Mobil unsuccessfully moved for leave to file a jury demand, which was found to be untimely. Maryland moved to dismiss Mobil's complaint. Mobil's summary judgment motions for attorney's fees were still pending. At a hearing on the motions before the law division court, Mobil argued that Maryland's attorneys in the Cibulskis lawsuit were placed in a conflicting position when Maryland changed its position on the coverage issue, by reducing it to $250,000, which potentially prevented them from zealously defending Mobil, and by Maryland's assertion that the policy did not cover punitive damage awards. Maryland urged the record offered no evidence to support an inference that Maryland's attorney did not vigorously defend the suit. Maryland further argued that it acted in good faith when it refused to settle the case until the Cibulskis made a more reasonable settlement demand. Finding that the facts of the case were not in dispute, the circuit court denied Maryland's motion to dismiss and granted Mobil's summary judgment motion. The court determined that Maryland's position limiting the extent of coverage to $250,000 could have affected its trial attorney's decision not to settle the lawsuit, and to chance a not guilty verdict at trial. The court observed that such a position conflicted with Mobil's, which now faced potential liability for any damages arising above $250,000, as well as being subject to punitive damages in a significant amount, thereby impelling Mobil to seek settlement of the Cibulskis' claim. Therefore, two sets of counsel were needed to represent the conflicting interests of Maryland to try the case and Mobil to settle it. The court further found that Maryland acted in bad faith when it changed its position on the policy limits issue and limited Mobil to only $250,000 in coverage. The court held that Maryland was liable for attorney's fees incurred by Mobil in both the Cibulskis lawsuit and the current declaratory action. The court subsequently denied Maryland's motion to reconsider its ruling. The circuit court next discussed the issue of the amount of attorney's fees for which Maryland should be held liable. Inviting the parties to suggest the procedure to be followed in resolving that issue, the court thereafter announced that it would review Mobil's claim for fees, Maryland's objections to those fees, hold a hearing with respect to the fees, and thereafter enter a ruling. Maryland was invited to make any objection to this procedure, but stated through its counsel that it had none. In documents submitted to the circuit court, Mobil claimed its attorneys billed $461,143 for work performed both in the Cibulskis lawsuit and in the current declaratory action. The court convened a hearing on Mobil's petition for attorney's fees and Maryland's objections thereto. Both parties were invited to present any further support for their respective, previously filed submissions; *558 each elected to stand upon their documents. Mobil's counsel represented to the court that she was Mobil's trial lawyer in the underlying personal injury case, the chancery division aspect of the case, and the law division phase of the case and had personal knowledge as to almost everything asserted. Maryland made no effort to adduce any testimony from this, or any other, Mobil attorney as to the amount of fees claimed and offered no testimony of its own. Maryland made ten specific, written objections to these claims. The court sustained several of Maryland's objections, struck 127 hours of work from Mobil's claim, and entered judgment in the amount of $442,762.93. Maryland appeals. I The parties disagree on the appropriate standard of review to be applied in this case. In deciding the summary judgment motion, the circuit court was authorized to consider the pleadings, affidavits, deposition transcripts, and other evidentiary documents in order to determine whether the parties presented a genuine issue of material fact. 735 ILCS 5/2-1005(c) (West 1994); In re Estate of Davis, 225 Ill.App.3d 998, 1000, 168 Ill. Dec. 40, 589 N.E.2d 154 (1992). Summary judgment will be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). In the present case, the circuit court considered the issue of whether Maryland was liable for attorney's fees as a matter of law under section 155. The court properly so considered this aspect of Mobil's motion for summary judgment, and appellate review of its order granting Mobil's motion is de novo. Kleinwort Benson North America, Inc., v. Quantum Financial Services, Inc., 285 Ill.App.3d 201, 209, 220 Ill.Dec. 457, 673 N.E.2d 369 (1996); Outboard Marine, 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204; Zoeller v. Augustine, 271 Ill.App.3d 370, 374, 208 Ill.Dec. 17, 648 N.E.2d 939 (1995). A Maryland first argues that it was not liable as a matter of law for attorney's fees incurred by Mobil in the Cibulskis lawsuit after Maryland informed Mobil of the policy limits dispute. Section 155 of the Insurance Code provides for the award of attorney's fees in cases where the insurer caused "an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable." An insurer is not liable for attorney's fees under section 155 merely because it litigated, and lost, the issue of insurance coverage. Buais v. Safeway Insurance Co., 275 Ill.App.3d 587, 591, 211 Ill.Dec. 869, 656 N.E.2d 61 (1995) (Buais); Myrda v. Coronet Insurance Co., 221 Ill.App.3d 482, 489, 164 Ill.Dec. 66, 582 N.E.2d 274 (1991) (Myrda). If the insurer is found to be vexatious and unreasonable in refusing to defend a claim, however, section 155 authorizes the court to award fees and costs. Buais, 275 Ill.App.3d at 591, 211 Ill.Dec. 869, 656 N.E.2d 61; Shell Oil Co. v. AC & S, Inc., 271 Ill.App.3d 898, 909, 208 Ill.Dec. 586, 649 N.E.2d 946 (1995) (Shell Oil). The determination of whether an insurer's actions are vexatious and unreasonable must be determined after examining the totality of circumstances. Green v. International Insurance Co., 238 Ill.App.3d 929, 935, 179 Ill.Dec. Ill, 605 N.E.2d 1125 (1992). To be considered are the insurer's attitude, whether the insured was forced to file suit to recover, and whether the insured was deprived of the use of its property. If a bona fide dispute existed regarding the scope of the insurance coverage, an insurer's delay in settling the claim may not violate section 155. Verbaere v. Life Investors Insurance Co. of America, 226 Ill.App.3d 289, 297-98, 168 Ill.Dec. 353, 589 N.E.2d 753 (1992) (Verbaere). It is undisputed in this case that Maryland initially agreed to defend Mobil, and acknowledged that Mobil was entitled to full coverage under the insurance policies. Mobil hired separate legal counsel only after Maryland decided, two years and eight months after first agreeing to defend Mobil unconditionally, that the policy limits were $250,000 instead of $6 million. Maryland even suggested *559 that Mobil retain its own attorney in the underlying suit. Maryland argues that a bona fide dispute existed regarding the extent of Mobil's coverage, claiming it relied on B.M.W.'s assertion that it never intended to provide Mobil with more than $250,000 in coverage, but did so because B.M.W. later refused to sign an affidavit stating its intentions. Maryland contends that the certificate of insurance supports this argument because it states that Mobil is insured only "as their interests may appear." Based upon this evidence, Maryland claims the insurance policies were subject to reformation to reflect the true intentions of the parties, which assertedly were to provide only $250,000 in coverage. Alternatively, Maryland argues that a bona fide dispute existed regarding whether Mobil was entitled to any coverage, noting that Mobil was not listed as an additional insured in the insurance policy, and the insurance representative never told Maryland that Mobil was to be named as an additional insured. Maryland offered little, if any, evidence to support either argument, and cannot show that a bona fide dispute existed over the coverage issue. Regarding the first contention, the only proffered evidence of B.M.W.'s intention to limit coverage is an unsigned affidavit, prepared by Maryland itself, which is insufficient to establish the existence of a bona fide dispute in light of the absence of any language in the insurance policy expressing this intent. In addition, there is no evidence to suggest that the phrase "as their interests may appear," contained in the certificate of insurance and the underlying contract, established any basis upon which to limit Mobil's coverage. When an insurer acknowledges providing insurance pursuant to a contract between the insured and a third party, the contract is incorporated into the policy, and the documents are "construed together to determine the parties' intention." Continental National America Insurance Co. v. Aetna Life & Casualty Co., 186 Ill.App.3d 891, 896, 134 Ill.Dec. 608, 542 N.E.2d 954 (1989). In this case, the contract required B.M.W. to provide at least $250,000 in coverage to Mobil. Neither this requirement, nor the phrase "as their interests may appear," precluded B.M.W. from obtaining more than $250,000 in coverage for Mobil, or the policy itself from providing more than $250,000 in coverage. Moreover, language found in the certificate of coverage did not establish the limits of Mobil's rights under the policies (Pekin Insurance Co. v. American Country Insurance Co., 213 Ill.App.3d 543, 547, 157 Ill.Dec. 648, 572 N.E.2d 1112 (1991); Lezak & Levy Wholesale Meats, Inc. v. Illinois Employers Insurance Co. of Wausau, 121 Ill.App.3d 954, 957, 77 Ill.Dec. 419, 460 N.E.2d 475 (1984)), but merely stated the terms of the policy and the policy limits applicable to the insured. The policies themselves provided up to $6 million in coverage, and contained no language limiting coverage for additional insureds. If Maryland truly intended to limit coverage, it readily could have done so by adding its own restrictive language to the insurance polices. J.A. Jones Construction Co. v. Hartford Fire Insurance Co., 269 Ill.App.3d 148, 151, 206 Ill.Dec. 728, 645 N.E.2d 980 (1995). Nor is the remedy of reformation applicable here and Maryland's reliance on Zannini v. Reliance Insurance Co. of Illinois, Inc., 147 Ill.2d 437, 168 Ill.Dec. 820, 590 N.E.2d 457 (1992) (Zannini) in this regard is misplaced. In Zannini, plaintiff's insurance agent agreed to obtain coverage for his jewelry, but inadvertently failed to provide a schedule of the jewelry to the insurer. The policy issued to plaintiff made no provision for jewelry loss coverage. 147 Ill.2d at 444, 168 Ill.Dec. 820, 590 N.E.2d 457. Holding that the insurance agent possessed express authority to bind coverage on behalf of the insurer, the court reformed the contract to include coverage for jewelry intended to be scheduled. 147 Ill.2d at 451, 456,168 Ill.Dec. 820, 590 N.E.2d 457. The facts of Zannini are inapposite to the present case. Maryland offered no evidence to show that the parties intended to provide Mobil with only $250,000 in coverage, or that the parties mistakenly obtained $6 million in coverage on behalf of Mobil. Before a court may reform an instrument on the ground of mistake, the mistake must be of fact and not of law, common to both parties, and in existence at *560 the time of the execution of the instrument. 147 Ill.2d at 449,168 Ill.Dec. 820, 590 N.E.2d 457. Maryland therefore was not entitled to reformation of the insurance policy. Further, Maryland provided no evidence to prove that it did not know Mobil was an additional insured under the policies. To the contrary, Maryland knew the insurance policy issued to B.M.W. also covered Mobil as an additional insured; initially agreed to defend Mobil in the Cibulskis suit, without limitation; Maryland instructed its trial attorney that Mobil was fully insured by Maryland; and Maryland's attorney prompted Mobil to state in a sworn answer to an interrogatory that it was insured by Maryland under two multimillion dollar policies. Based on this undisputed evidence, all the parties believed that Mobil was entitled to receive the full amount of coverage. It was not until much later that Maryland informed Mobil its coverage was limited to $250,000. Maryland failed to contradict or rebut these facts, and could not have raised a bona fide dispute on the coverage issue. Maryland's conduct in asserting the existence of a coverage dispute is relevant, however, to the circuit court's decision awarding section 155 attorney's fees. Buais, 275 Ill.App.3d at 591, 211 Ill.Dec. 869, 656 N.E.2d 61. When an underlying complaint presents an issue of potential insurance coverage, and the insurer believes that the policy does not cover the claim, the insurer may not refuse to defend the insured, but must either defend the suit under a reservation of rights or seek a declaration of no coverage. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 207-08, 161 Ill.Dec. 774, 579 N.E.2d 322 (1991); J.A. Jones, 269 Ill.App.3d at 151, 206 Ill.Dec. 728, 645 N.E.2d 980. An insurer failing to act in either fashion, where a court finding determines wrongfully denied coverage, is estopped from raising policy defenses to coverage in a subsequent action. Waste Management, 144 Ill.2d at 208, 161 Ill.Dec. 774, 579 N.E.2d 322; J.A. Jones, 269 Ill. App.3d at 151, 206 Ill.Dec. 728, 645 N.E.2d 980. Maryland contends that it reserved its rights when it first informed Mobil that it planned to limit coverage to $250,000. A reservation of rights must adequately inform the insured of the rights that the insurer intends to reserve. A notice of a reservation of rights must make specific reference to the policy defense to be asserted by the insurer and to the potential conflict of interest. Royal Insurance Co. v. Process Design Associates, Inc., 221 Ill.App.3d 966, 973, 164 Ill.Dec. 290, 582 N.E.2d 1234 (1991). A proper reservation allows the insured to decide intelligently whether to hire independent counsel in order to avoid the conflict or not. Royal, 221 Ill.App.3d at 973, 164 Ill.Dec. 290, 582 N.E.2d 1234. Further, the notice must clearly inform the party of what right or rights are being reserved. Maryland's delayed announcement of the amended policy limits, in the middle of pre-trial litigation in the underlying claim, did not constitute an adequate reservation of rights. Maryland initially agreed to defend Mobil unconditionally; Mobil had the right to believe that it was fully covered under the insurance policies and did not consider obtaining its own counsel to defend the Cibulskis lawsuit. Maryland's subsequent change of position created a potential conflict of interest for the trial attorney it hired to defend Mobil. With a multimillion dollar insurance policy available, its attorney could enter into settlement negotiations with plaintiffs and avoid risking a large judgment at trial. Conversely, after learning that Mobil was entitled to only $250,000 in coverage, the attorney could hazard taking the case to trial and seek a judgment favoring Mobil, since Maryland's now reduced exposure amounted to a relatively small fraction of the Cibulskis' claim. This latter strategy could have backfired, resulting in a large judgment that would have exceeded coverage limits, and for which Mobil, and not Maryland, would have been liable. By failing to inform Mobil promptly of the potential coverage dispute, Maryland deprived Mobil of the opportunity to obtain its own counsel at the outset of the litigation and avoid the potential conflict of interest. *561 As Maryland failed to reserve its rights properly, and created a potential conflict of interest for its trial attorney by waiting two and a half years before raising the questioned coverage limits, Maryland was estopped from later claiming that it was not obligated to fully indemnify Mobil under the insurance policies, and therefore could not have raised a bona fide policy defense. The circuit court had the authority to consider Maryland's delay in asserting coverage to be vexatious and unreasonable as a matter of law, and conclude that Mobil was entitled to attorney's fees under section 155 for the period in which Maryland disputed the coverage to be provided. Maryland claims that it relied on the advice of its attorneys in believing that its coverage position was "well grounded in fact and is warranted by existing law or a goodfaith argument for the extension, modification, or reversal of existing law," in compliance with Supreme Court Rule 137. 155 Ill.2d R. 137 (Rule 137). Mobil sought attorney's fees under section 155 of the Insurance Code, however, not under Rule 137. The two provisions for attorney's fees apply to different types of conduct. Section 155 allows parties to seek attorney's fees from insurance companies whose delay of coverage is vexatious and unreasonable because there is no bona fide dispute over coverage. The language contained in Rule 137 is inapplicable. B Maryland next insists that it should not be liable for services rendered by Mobil's attorney after it ended the dispute over coverage. Although the parties no longer contested that issue, the punitive damages claim in the Cibulskis lawsuit created a new conflict of interest for Maryland's trial attorney, which could be resolved only by hiring additional counsel to represent Mobil's interests. This conflict was present because Maryland claimed it was not obligated to pay any punitive damage award. There was less incentive, therefore, for Maryland to settle the case, while Mobil had a greater desire to settle the case to avoid paying a large judgment that might not be covered by its insurance. Maryland was obligated to pay for counsel hired by Mobil to protect its interests after Maryland's attorney was faced with a conflict of interest. An insurer's duty to defend necessarily includes the right to control the litigation. Nandorf, Inc. v. CNA Insurance Cos., 134 Ill.App.3d 134, 136, 88 Ill.Dec. 968, 479 N.E.2d 988 (1985) (Nandorf). The attorney hired by the insurer is a fiduciary of both the insurer and the insured. 134 Ill.App.3d at 137, 88 Ill.Dec. 968, 479 N.E.2d 988. In cases involving conflicting interests, the attorney hired by the insurer may not also represent the insured absent full disclosure and consent. Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 194, 355 N.E.2d 24 (1976) (Peppers). When a conflict of interest arises, the insured is entitled to retain independent counsel, to be paid for by the insurer. Peppers, 64 Ill.2d at 199, 355 N.E.2d 24; Nandorf, 134 Ill.App.3d at 137, 88 Ill.Dec. 968, 479 N.E.2d 988. A conflict of interest exists if the interests of the insurer would be furthered by providing a less than vigorous defense to the allegations against the insured. Nandorf, 134 Ill.App.3d at 137, 88 Ill.Dec. 968, 479 N.E.2d 988. There, the insurer defended Nandorf, but reserved its rights to deny coverage for punitive damages. 134 Ill. App.3d at 135, 88 Ill.Dec. 968, 479 N.E.2d 988. The court found that although the insurer and Nandorf shared a common interest in a verdict in favor of Nandorf if the latter was held liable, the insurer's interests would have been served best by a small compensatory damage award and a large punitive damage award. This conflicting interest, and the fact that the request for punitive damages formed a substantial part of the claim, entitled Nandorf to independent counsel. 134 Ill.App.3d at 138-39, 88 Ill.Dec. 968, 479 N.E.2d 988. Similarly, in this case, Maryland's and Mobil's interests diverged on the liability and punitive damages issues. Attorneys for both Mobil and Maryland acknowledged that Mobil probably would be found liable if the case went to a jury, and that the judgment *562 could include a large punitive damage award. It was in Mobil's best interest, then, to settle the case quickly and avoid the risks posed by a jury trial. Contrarily, because the probability that the compensatory damages portion of the claim would have exhausted the newfound policy limits,[3] Maryland would have lost nothing by letting the case go to the jury, if Cibulskis did not agree to a settlement acceptable to Maryland. The conflict presented in this case is further evidenced by the communications between the attorneys. Counsel hired by Mobil repeatedly pleaded with Maryland's trial attorney to settle the case. Maryland's attorney refused several settlement offers made by the Cibulskis although the attorney previously had indicated that the case should be settled for the amount being suggested by those plaintiffs. Maryland's attorney waited until near the end of trial, just before closing arguments, before settling the underlying case. The conflict of interest faced by Maryland's attorney demonstrably established the need for an independent counsel to represent Mobil's interests. Because it had a contractual obligation to provide Mobil with a viable defense, Maryland must pay attorney's fees incurred by Mobil in the Cibulskis lawsuit. Peppers, 64 Ill.2d at 199, 355 N.E.2d 24; Nandorf, 134 Ill.App.3d at 136, 88 Ill.Dec. 968, 479 N.E.2d 988. C Next, Maryland argues that it should not have been ordered to pay Mobil's attorney fees for the period after the parties settled the Cibulskis lawsuit, because its conduct during that time was neither vexatious nor unreasonable. When an insured must bring a declaratory action against the insurer to enforce its right to coverage in an underlying lawsuit, the insured may recover section 155 attorney's fees incurred in both the underlying suit and the declaratory action. Shell Oil, 271 Ill.App.3d at 909, 208 Ill.Dec. 586, 649 N.E.2d 946; Verbaere, 226 Ill. App.3d at 300, 168 Ill.Dec. 353, 589 N.E.2d 753; Hall v. Svea Mutual Insurance Co., 143 Ill.App.3d 809, 813, 98 Ill.Dec. 81, 493 N.E.2d 1102 (1986). In addition, the insured may recover attorney's fees incurred on appeal. Verbaere, 226 Ill.App.3d at 302, 168 Ill.Dec. 353, 589 N.E.2d 753; Hall, 143 Ill.App.3d at 813, 98 Ill.Dec. 81, 493 N.E.2d 1102. Mobil was forced to bring a declaratory judgment action after Maryland reversed its coverage position, which was found to be vexatious and unreasonable. The circuit court properly ordered Maryland to pay the full costs of the declaratory judgment action, including the portion of the action that took place after the underlying suit was settled. II Maryland next disputes the amount of attorney's fees awarded Mobil. After granting Mobil's summary judgment motion as to liability for payment of attorney's fees at a hearing, the circuit court asked the parties for suggestions as to how to proceed on the damages portion of the case. A colloquy between court and counsel ensued, the court suggesting a procedure to decide the amount of damages. The court then specifically asked Maryland's counsel if he objected to this procedure, to which he responded in the negative. The court asked the parties to submit documents that would aid in calculating reasonable attorney's fees. Mobil submitted extensive billing statements. Mobil's attorney, who attended the case at every stage, represented to the court her ability to assist in providing information to the court based upon personal knowledge. Maryland submitted written objections to portions of the billing statements, but offered no witnesses. The court considered Maryland's written objections, and sustained some of them when it reduced the amount sought by Mobil. The amount of fees to be awarded was a factual question that the circuit court left to further evidentiary presentation and argument, after finding liability on summary judgment. Since that amount was decided by the court acting in its discretion as trier of fact, and not on summary judgment, the award of the amount of attorney fees is reviewed under the clear abuse of discretion standard. Shell Oil, 271 Ill.App.3d at 909, 208 Ill.Dec. 586, 649 N.E.2d 946; Garcia v. *563 Lovellette, 265 Ill.App.3d 724, 727-28, 203 Ill.Dec. 376, 639 N.E.2d 935 (1994); Myrda, 221 Ill.App.3d at 489, 164 Ill.Dec. 66, 582 N.E.2d 274; Keller v. State Farm Insurance Co., 180 Ill.App.3d 539, 554-555, 129 Ill.Dec. 510, 536 N.E.2d 194 (1989); Verbaere, 226 Ill.App.3d at 299, 168 Ill.Dec. 353, 589 N.E.2d 753. Considerable deference to the judgment and discretion of the court must be given; an increase or decrease of a fee award will be granted only if there has been a clear abuse of discretion. Shell Oil, 271 Ill.App.3d at 909, 208 Ill.Dec. 586, 649 N.E.2d 946; Garcia, 265 Ill.App.3d at 727-28, 203 Ill.Dec. 376, 639 N.E.2d 935; Myrda, 221 Ill.App.3d at 489, 164 Ill.Dec. 66, 582 N.E.2d 274; Keller, 180 Ill.App.3d at 554-555, 129 Ill.Dec. 510, 536 N.E.2d 194; Verbaere, 226 Ill. App.3d at 299, 168 Ill.Dec. 353, 589 N.E.2d 753. The circuit court must consider several factors when calculating reasonable attorney's fees, including: the time and labor required, the novelty and difficulty of the issues, the skill required, the preclusion of other employment necessary to accept the case, the customary fee charged in the community, the amount of money involved in the case, the results obtained, and the attorney's reputation, experience, and ability. Verbaere, 226 Ill.App.3d at 301, 168 Ill.Dec. 353, 589 N.E.2d 753; McHugh v. Olsen, 189 Ill. App.3d 508, 514, 136 Ill.Dec. 855, 545 N.E.2d 379 (1989). The time spent on a case by an attorney is an important factor to consider. Time records, although important, are not conclusive, and the court should carefully scrutinize them to determine whether they represent a reasonable expenditure of time in the context of the services rendered. McHugh, 189 Ill.App.3d at 514, 136 Ill.Dec. 855, 545 N.E.2d 379. Maryland contends that the award is excessive because the circuit court awarded fees at a rate of $150 per hour, and Maryland's attorneys, who were very experienced, charged only $94 per hour. The fact that Maryland's attorneys charged a lower rate does not make the rate awarded Mobil's attorneys unreasonably high. Courts have awarded comparable rates in other section 155 cases. See, e.g., Verbaere, 226 Ill.App.3d at 302, 168 Ill.Dec. 353, 589 N.E.2d 753 (upholding award of fees at an hourly rate of $175). The circuit court here considered the attorney's experience and the fact that no administrative charges or costs were billed before determining that the rate requested was reasonable. It cannot be said that this finding constituted an abuse of discretion. Maryland also disputes the number of hours billed by Mobil's attorneys, noting that its own attorneys billed fewer hours within the same time periods. Maryland does not discuss, however, the fact that it hired three separate law firms to handle the different issues in this case, one each for the Cibulskis lawsuit, the declaratory judgment action, and the attorney's fee hearings. Mobil hired one firm to perform all three functions. Maryland cannot compare the time spent by Mobil's attorneys on three separate claims to services provided by one of Maryland's attorneys on one claim. A review of the hearing, the billing statements submitted by Mobil, and Maryland's objections to fees, reveals that the circuit court thoroughly examined the record, considered all the parties' arguments, and evaluated the relevant factors before calculating the attorney's fees. The court did not allow fees for repetitive legal services, and reduced the requested award to eliminate billing hours it found to be excessive. Furthermore, although Maryland claims the amount requested is excessive, it offers no details regarding where or how the fees should be reduced. At no time did Maryland's attorney seek an additional evidentiary hearing, or seek to call any witnesses relative to the attorney's fees. Nor did he suggest any impropriety in the procedure followed by the circuit court in assessing the attorney fee amounts. Accordingly, the court did not abuse its discretion, and the fees awarded must be upheld. For the reasons set forth above, the decision of the circuit court must be affirmed on all issues. Affirmed. HARTMAN, P.J., with HOFFMAN and SOUTH, JJ., concurring. NOTES [1] An affidavit by one of Maryland's attorneys states that the company adopted a different position after B.M.W.'s Chief of Financial Operations refused to sign an affidavit to the effect that B.M.W. intended to provide Mobil with only $250,000 in insurance coverage. According to the attorney's affidavit, B.M. W.'s refusal to cooperate stemmed from the fact that B.M.W. relies on Mobil for up to $10 million worth of business each year, which Mobil denied, claiming it was not signed because the statements set forth in the affidavit were untrue. [2] The Cibulskis complaint ultimately was amended with leave of court to include a claim for punitive damages, on the eve of trial. [3] Cibulskis' actual medical expenses alone exceeded $250,000.

77 F.3d 502 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.S.F. HOTEL COMPANY, L.P., dba Summerfield Suites Hotel, Appellant,v.EMBASSY SUITES, INC., Appellee. No. 96-1041. United States Court of Appeals, Federal Circuit. Dec. 13, 1995. PTO 1 DISMISSED. 2 PROPOSED ORDER OF REMAND TO THE UNITED STATES PATENT AND 3 TRADEMARK OFFICE TRADEMARK TRIAL AND APPEAL BOARD 4 Pursuant to the stipulated motion under Rule 27(e) of the Federal Rules of Appellate Procedure and the Rules of this Court filed on December 5, 1995, it is hereby ORDERED THAT THIS APPEAL IS DISMISSED AND THE MATTER IS REMANDED TO THE UNITED STATES PATENT AND TRADEMARK OFFICE TRADEMARK TRIAL AND APPEAL BOARD FOR ENTRY OF THE EXPRESS ABANDONMENT OF APPELLEE'S SERVICE MARK APPLICATION.

5 So.3d 676 (2009) DANIELS v. SCHOOL BD. OF MANATEE COUNTY. No. 2D08-2510. District Court of Appeal of Florida, Second District. January 9, 2009. Decision without published opinion. Affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-4497 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus VICKIE JONES PEELE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CR-02-199) Submitted: January 28, 2004 Decided: February 10, 2004 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Joseph M. Wilson, Jr., BROWNE, FLEBOTTE, WILSON & HORN, P.L.L.C., Durham, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Vickie Jones Peele appeals her jury convictions of conspiring to defraud the United States by obtaining payments of false claims for tax refunds in violation of 18 U.S.C. § 286 (2000); and four counts of making fraudulent claims for tax refunds and aiding and abetting another in those offenses in violation of 18 U.S.C. §§ 2, 287 (2000). After the close of the Government’s case in chief, the district court denied Peele’s motion for acquittal for lack of sufficient evidence on all counts save one § 287 count. On appeal, Peele asserts the evidence was insufficient to support any of her convictions and that certain remarks by the prosecutor in closing argument unduly prejudiced her defense. We affirm. In reviewing the sufficiency of the evidence and the denial of a motion for acquittal, a guilty verdict “must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the finding of guilt.” Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We find the evidence, when viewed in its entirety and in the light most favorable to the Government, supports Peele’s convictions. Likewise, we find the prosecutor’s comments in closing did not prejudice Peele’s defense or violate her right to due process under - 2 - the Fifth Amendment. See United States v. Scheetz, 293 F.3d 175, 186 (4th Cir.), cert. denied, 537 U.S. 963 (2002). Accordingly, we affirm Peele’s convictions and sentence.* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Peele’s criminal judgment order contains several clerical errors. Most notably, Count One is described as a conspiracy to distribute 50 grams or more of a mixture containing methamphetamine, rather than a conspiracy to defraud the United States by obtaining payments of false claims for tax refunds. Also the term of imprisonment for Count One is omitted, and the term of supervised release for Count Four is omitted. Peele has not asserted these errors on appeal and they do not affect our disposition of the issues she has asserted. The district court may correct such clerical errors in the criminal judgment order at any time under Fed. R. Crim. P. 36. - 3 - 

767 F.Supp. 501 (1991) In re Proceeding to Compel Adrienne M. LEFKOWITZ, as Preliminary Executrix of the Estate of Nicholas Marsh (a/k/a Nicholas V. Marsh), Deceased, And/or Arcadia Trading Company, Limited and/or Bay Novelty and Inspection Company, Limited, to turn over the death benefits of certain retirement plans to the Decedent's Surviving Spouse, Irene B. Marsh. Adrienne M. LEFKOWITZ, Plaintiff, v. ARCADIA TRADING COMPANY LIMITED DEFINED BENEFIT PENSION PLAN, Bay Novelty and Inspection Company Limited Defined Benefit Pension Plan, Arcadia Trading Company Limited Pension Trust, Bonus Consultants Limited, the Committee of the Arcadia Trading Company Limited Defined Benefit Pension Plan, the Committee of the Bay Novelty and Inspection Company Limited Defined Benefit Pension Plan, Arcadia Trading Company, Limited, Bay Novelty and Inspection Company, Limited and the Bank of New York, as Preliminary Executor of the Estate of Irene B. Marsh, Defendants. Nos. 90 Civ. 1716 (KTD), 90 Civ. 2373 (KTD). United States District Court, S.D. New York. May 14, 1991. *502 *503 Rosen, Szegda, Preminger & Bloom, (David S. Preminger, of counsel), New York City, for plaintiff. McCarthy, Fingar, Donovan, Drazen & Smith (Frank W. Streng, William F. Macreery, of counsel), White Plains, N.Y., for defendant Bank of New York. Milbank, Tweed, Hadley & McCloy (Lorraine M. Brennan, of counsel), New York City, for all other defendants. MEMORANDUM & ORDER KEVIN THOMAS DUFFY, District Judge. Plaintiff Adrienne M. Lefkowitz originally commenced this action against her mother Irene B. Marsh to recover death benefits from two defined benefit pension plans (collectively "the Plans") adopted by two foreign companies, Arcadia Trading Company Limited ("Arcadia") and Bay Novelty and Inspection Company Limited ("Bay Novelty") in which her father Nicholas V. Marsh was the sole participant, naming Lefkowitz as the sole beneficiary. By Order to Show Cause and petition dated February 23, 1990, Mrs. Marsh commenced a turnover proceeding in Estate of Nicholas V. Marsh, File no. 1980/88, Surrogate's Court, New York County, seeking payment of death benefits on account of her late husband's participation in the two Plans during his life.[1] On March 14, 1990, Lefkowitz removed that proceeding to this court where it was assigned civil docket number 90 Civ. 1716 and Mrs. Marsh promptly moved to remand the action back to the Surrogate's Court. Mrs. Marsh died on May 13, 1990, three days before my decision was rendered retaining jurisdiction and denying her motion to remand. After Mrs. Marsh died, I allowed The Bank of New York to be named as preliminary Executor of the Estate of Irene B. Marsh and it was substituted as the proper party defendant in place of Mrs. Marsh ("Estate of Marsh"). In the interim, on April 6, 1990, Lefkowitz filed the instant complaint with this court, which added certain parties not named and/or properly served in the previous case. I accepted this complaint, 90 Civ. 2373, as related to 90 Civ. 1716, but the cases were never consolidated. In this latest action, Lefkowitz seeks the same benefits as sought by the Estate of Mrs. Marsh. The parties now cross-move pursuant to Fed.R.Civ.P. 56 for summary judgment.[2] Additionally, Lefkowitz seeks a declaratory judgment on the applicability of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 to the two foreign corporate benefits plans at bar.[3] STATEMENT OF FACTS Arcadia and Bay Novelty are corporations which were organized and have at all times existed under the laws of Hong *504 Kong. Neither corporation does business in, nor pays taxes to, the United States. Arcadia established the Arcadia Trading Company Ltd. Defined Benefit Pension Plan (the "Arcadia Plan") and Bay Novelty established the Bay Novelty and Inspection Co. Defined Benefit Pension Plan (the "Bay Plan"). Provisions and terms of the Plans are identical. Contemporaneously with the establishment of the Plans, Arcadia and Bay Novelty entered into an agreement creating the Arcadia Trading Company Ltd. Pension Trust (the "Trust"), the purpose of which was, inter alia, to administer the trust fund to which Arcadia and Bay Novelty made the contributions necessary to fund the Plans in accordance with the United States Tax laws.[4] Lefkowitz Motion, Exh. 6. Mr. Marsh, an American citizen and resident, was an employee of both Arcadia and Bay Novelty for the entire time that the Plans were in existence; he was the sole participant in each of the Plans. The Plans properly filed a Form 5300, an Application for Determination for Defined Benefit Plan, with the United States Internal Revenue Service ("IRS"), seeking determinations that the Plans as drafted met the requirements of the Internal Revenue Code ("IRC"), 26 U.S.C. § 401 entitled Qualified Pension, Profit-Sharing, and Stock Bonus Plans, and § 501 entitled Exception from Tax on Corporations, Certain Trusts, etc. Subsequently, the IRS issued such determination letters for tax qualification to each of the Plans. Lefkowitz Motion, Exh. 3. On May 26, 1983, Mr. and Mrs. Marsh executed mutual wills. Concurrently, they entered into a separate written agreement ("the Agreement"), pursuant to which neither one would "revoke his or her Will" or "execute a new Will, a Codicil or a trust agreement disposing of his or her property at death...." Lefkowitz Motion, Exh. 14. Each of the Plans had filed with the IRS a Notice of Intent to Terminate as of December 31, 1984. Lefkowitz Motion, Exh. 9. For tax purposes, "termination" of the Plans was deemed effective by the IRS as of December 31, 1984 and the IRS found no adverse effects from such termination on the Plans qualified tax status. Lefkowitz Motion, Exh. 10. In May 1986, Mr. Marsh suffered a paralyzing stroke after which Mrs. Marsh sought to and did bar him from their home. Mrs. Marsh then commenced a divorce action in January 1987. Soon after the divorce action was commenced, Mr. Marsh named Lefkowitz as the beneficiary of the death benefits payable under each of the Plans. Lefkowitz Motion, Exh. 11. In August 1987, Mr. Marsh commenced his own divorce action against Mrs. Marsh, claiming abandonment. Lefkowitz Motion, Exh. 27. Mr. Marsh died on March 15, 1988. At the time of his death, neither divorce action had been adjudicated but Mrs. Marsh was still estranged from Mr. Marsh. On May 13, 1990, Mrs. Marsh died. Mr. and Mrs. Marsh had three adult daughters from that marriage, one of whom is Lefkowitz. Mr. Marsh had been estranged from another daughter for ten years prior to his death and from the third daughter from 1983 to 1986. DISCUSSION The gravamen of Lefkowitz's complaint is her claimed entitlement to be designated the proper and lawful beneficiary of death benefits accrued by her father from the Arcadia and Bay Novelty Plans, under *505 which he was a sole participant. The Estate of Marsh, however, claims that, "pursuant to the Internal Revenue Code and other federal statutes," Mrs. Marsh was entitled to a certain spousal benefit entitled the qualified pre-retirement survivor annuity ("QPSA")[5] from the two Plans and that Mr. Marsh's purported designation of Lefkowitz, as a new beneficiary, was invalid. As such, the Estate of Marsh seeks to set aside the existing Lefkowitz designation and obtain QPSA benefits based on the application of Title I of ERISA. After successfully removing this case from the Surrogate's Court, Lefkowitz now avers that the Plans at bar are not under the purview of ERISA for, although having a qualified tax status under the Internal Revenue Code, they are plans in foreign corporations not subject to the Labor sections of ERISA.[6] Lefkowitz acknowledges, however, that these Plans would be subject to regulation under ERISA if they were Plans set up and/or run in the United States pursuant to 29 U.S.C. §§ 1001-1461.[7] Employee benefit plans are subject to ERISA if they are established or maintained "by any employer engaged in commerce or in any industry or activity affecting commerce." 29 U.S.C. § 1003(a)(1). Certain plans, however, are exempt from ERISA, under Section 4(b) of Title I, 29 U.S.C. § 1003(b)(4). That section provides a limited exemption for a plan "maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens." There is no dispute that Mr. Marsh was a citizen of the United States, the Plans sought and obtained determinations from the IRS as to their "qualified status," the Plans were amended from time to time to remain qualified under the Tax Code, and Mr. Marsh was the sole participant and trustee of the Plans. Thus, the exemption clearly does not apply in the instant case. Not only was the sole participant in the Plans a United States citizen, but Mr. Marsh availed himself of all of the concomitant ERISA tax benefits pursuant to Title II of the IRC. Indeed, if the Plans were not qualified plans, contributions to the Plans on behalf of Mr. Marsh would have been included in his gross income for the years in which contributions were made. Arcadia and Bay Novelty along with Marsh availed themselves of all of the privileges under the Internal Revenue Code. To claim, that a pension plan can selectively avail itself of the tax benefits of a qualified pension plan set forth in Title II, and yet not be subject to the rest of ERISA, primarily designed to protect the rights of employees to their benefits, is illogical and not supported by the submissions in this case. Clearly ERISA applies to the Plans at bar and jurisdiction is vested in this court pursuant to 29 U.S.C. § 1132(a)(3). Considering that the Plans are governed by ERISA, Lefkowitz next claims that she is entitled to the death benefits *506 without having to give up a spousal annuity to Mrs. Marsh's estate, principally because the Plans were never formally amended to adopt the QPSA provisions pursuant to 29 U.S.C. § 1055. This, Lefkowitz maintains, is significant because the Plans were amended periodically to remain tax qualified, yet they were never amended to provide a spousal annuity. The Arcadia and Bay Novelty Plans, however, remained in compliance with the IRC and its separate spousal provisions. Specifically, the Tax Code, in pertinent part states: In the case of any plan to which this paragraph applies, except as provided in section 417, a trust forming part of such plan shall not constitute a qualified trust under this section unless — (i) in the case of a vested participant who does not die before the annuity starting date, the accrued benefit payable to such participant is provided in the form of a qualified joint and survivor annuity, ["QJSA"][8] and (ii) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity is provided to the surviving spouse of such participant. 26 U.S.C. § 401(a)(11). The advent of mandatory spousal annuities or QPSAs derive from and were instituted as part of an overall scheme under the Retirement Equity Act of 1984, ("REA") of 1984, P.L. 98-397 which was signed into law on August 24th of that year. Among other things, it amended various portions of ERISA. In particular, the REA mandated automatic payment of survivor benefits, or a QPSA, to the surviving spouse of a participant vested in a pension plan prior to retirement and/or death. Specifically, ERISA as amended by the REA, provides: "in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity shall be provided to the surviving spouse of such participant."[9] 29 U.S.C. § 1055(a)(2); 26 U.S.C. §§ 401(a) and 417. According to Lefkowitz, because the REA's effective date succeeded the termination of the Arcadia and Bay Novelty Plans, no QPSA provision can be read into these Plans now. Lefkowitz further maintains that the Plans, as drafted and as in existence until their respective terminations, always provided: "`Beneficiary' shall mean: (a) the last person ... designated as Beneficiary by the Participant...." Lefkowitz Memo., Exh. 4, Art. I, ¶ 1.6. There is no dispute that Mr. Marsh designated Lefkowitz the last beneficiary within the meaning of the Plans.[10] However, after the REA's effective date, a QPSA was automatically payable on the first day of the subsequent new plan year unless the participant's spouse consented in writing to waive the election to receive such benefits. 26 U.S.C. § 417(a)(2); 29 U.S.C. § 1055(c)(1). The REA was thus effective for plan years beginning after December 31, 1984. The Arcadia and Bay Novelty Plans' "new plan year," subsequent to the enactment of the REA commenced on March 1, 1985. A transitional rule contained in REA § 303(c)(2) applies where a participant dies after the date of enactment of REA but before the plans have been amended to conform to the REA. Although the statute reads that the rule applies to those participants *507 who die "before the first day of the first plan year to which the amendments made by this Act apply," in most cases a plan would be retroactively amended to the first day of such plan, so that the REA amendments would be taken into account without the need for the transitional rule. In cases such as this one, where the plans were not properly amended to take into account the REA changes, the transitional rule is needed to protect a surviving spouse. The transitional rules provide that if a participant died in the period between the effective date of the amendments and the adoption of the amendments by the plan, the amendments "shall be treated as in effect as of the time of such participant's death." Pub.L. No. 98-397, Title III, Section 303(c); see Lucaskevge v. Mollenberg, 11 E.B.C. 1355, 1989 WL 83197 (W.D.N.Y.1989) ("transitional rules provided that the amendments made by the REA were to take effect immediately (August 23, 1984) even though plans were not required to adopt them until the beginning of plan years commencing after December 31, 1984.") Because the Plans at bar were not effectively terminated on December 31, 1984, I read the QPSA provisions into the Plans via the REA and its transitional rules.[11] Lefkowitz maintains, however, that she would be divested of a vested interest in the Plans as Mr. Marsh's beneficiary if her designation was considered void by the REA. Moreover, she maintains that the REA has no application to this case because the Plans terminated on December 31, 1984. Thus, Lefkowitz asserts, the transitional rules are of no assistance for they became applicable on the first day of the Plan year after the REA was signed into law, which was not until March 1, 1985, well after the Plans were terminated. Even if the Plans were not effectively terminated on December 31, 1984, Lefkowitz avers the Plans were never amended to include the QPSA provisions between the passage of the REA and Mr. Marsh's death over four years later. She contends that the corporations' failure to amend their plans was fatal and that retroactively applying the REA at such late a date is fundamentally unfair. Specifically, Lefkowitz argues that the purpose of the transitional rule was to insure that a very small class of persons, namely the spouses of participants who died before their annuity starting dates and between the passage of the REA and its effective date, were not deprived of QPSA's. She states that Mrs. Marsh does not fall into this protected category. Lefkowitz further claims that the transitional rule is neither a blanket acceleration of the effective date of the REA nor does it provide for coverage of participants who died prior to the time their plans were amended. As such, retroactive application of the REA to mandate Lefkowitz's divestment is not what the statute intended. Indeed, prior to the REA, a beneficiary other than a spouse could be named without having to be divested of a QPSA payment, except if otherwise provided by the Plans. As such, Lefkowitz avers that Mr. Marsh did not die within the window period described in the REA, § 303(c)(2)(C), because the REA never became effective with respect to the plans herein. I disagree. It is undisputed that the Plans at bar were not amended prior to Mr. Marsh's death, and thus did not reflect the changes made by the REA, and that the decedent died after the effective date of the REA. However, the REA included a transitional rule to provide immediate relief between August 24, 1984, when the statute was enacted, and the time that pension plan is amended in accordance with the REA. Pub.L. No. 98-397, Title III, Section 303(c), 98 Stat. 1452 (1984). Thus, the transitional rule allowing for retroactive application of the REA applies where a participant of a pension benefit plan dies after the effective *508 date of the REA but before the participant's plan was amended. Lucaskevge v. Mollenberg, 11 E.B.C. 1355, 1989 WL 83197 (W.D.N.Y.1989). The Estate of Marsh correctly asserts that even though the Plans at bar were terminated effective December 31, 1984, the Trust continued in existence without Mr. Marsh ever having retired prior to his death. As such, the Trust continued in existence past 1984 and was tax qualified. Because of the self-executing nature of the Code, Mr. Marsh could not designate Lefkowitz as his beneficiary in 1987 without Mrs. Marsh's consent.[12] Since the Arcadia and Bay Novelty Plans were never amended in accordance with the REA and Marsh died after the plans' effective date, the transitional rule should govern the question of the proper beneficiary. As such, under the REA the Estate of Marsh is entitled to QPSAs from the Arcadia and Bay Novelty Plans because Mrs. Marsh never executed a consensual spousal waiver indicating otherwise. See 29 U.S.C. §§ 1055(c)(1) and (c)(2). Indeed, the spousal consent provision of the REA applies to the Plans even though contributions to the Plans were terminated as of December 31, 1984. On April 11, 1986, the IRS issued a favorable determination letter regarding the contemplated termination of the Arcadia Plan and ruled that the proposed termination would not result in disqualification. However attached to that letter, the IRS set forth numerous caveats, including the IRS's position that "This letter does not apply to any provision" of the REA. See Bramson Affid., Exh. K. Similarly, the Bank of New York acknowledges that on October 8, 1986, the IRS issued a favorable determination letter as to the termination of the Bay Novelty Plan, but an attachment to the letter of the same date sets forth numerous caveats, including the IRS's position that: "This determination does not express an opinion as to whether your plan satisfies the provisions" of the REA. See Bramson Affid., Exh. L. Nonetheless, Lefkowitz ardently claims that because the IRS was contacted with regard to terminating the Arcadia and Bay Novelty Plans as of December 31, 1984, that the Plans' termination affects the spousal consent rules pursuant to the REA. With regard to whether the two Plans here were terminated for the purpose of determining applicability of the REA, the Treasury Department has provided guidance as to the application of the spousal consent rules under the REA to "terminated" plans. Specifically: benefits provided under a plan that is subject to the survivor annuity requirements sections of 401(a)(11) and 417 must be provided in accordance with those requirements even if the plan is frozen or terminated. However, any plan that has a termination date prior to September 17, 1985, and that distributed all remaining assets as soon as administratively feasible after that date, is not subject to the survivor annuity requirements. Treasury Reg. § 1.401(a)-20 (emphasis supplied). If assets of the plan are not distributed as soon as administratively feasible after a purported date of termination, the plan is not deemed "terminated." Whether a distribution is made as soon as administratively feasible is to be determined under all the facts and circumstances of the given case but, generally, the distribution which is not completed within one year following the date of plan termination specified by the employer will be presumed not to have been made as soon as administratively feasible. Rev.Rul. 89-87, 1989 — 27 I.R.B. 5.[13] In this case, although the first of the steps toward termination was taken, the *509 second step had not occurred within the suggested one year period. Since the distributions were not completed within one year following the date of termination of the Plans, it is fair to presume that the distributions were not made as soon as administratively feasible. Accordingly, these plans were and are subject to the provisions of ERISA and REA. As such, a QPSA is payable. Without Mrs. Marsh's written consent to waive receipt of the QPSA, Lefkowitz is not entitled to that amount constituting either the QJSA or QPSA. Under § 401(a)(11)(A) of the IRC, a plan may be qualified if the surviving spouse is entitled to a QPSA, and the employed spouse is a vested participant who dies before the annuity starting date. Mr. Marsh was a vested participant who died while still employed and before receiving any payment.[14] When Mr. Marsh died, he was 83 years old and was still employed by Arcadia and Bay Novelty. Accordingly, he died before the annuity starting date. In these circumstances, the REA mandates payment of Mrs. Marsh's QPSA as the then surviving spouse regardless of who was named a beneficiary, if that beneficiary was not named with the consent of the Plan participant's spouse. See 29 U.S.C. §§ 1055(a)(2), (c)(1)(A)(i), (c)(2)(A). Mrs. Marsh never consented to the Lefkowitz designation before her death, therefore, she and/or the Estate are entitled to that amount constituting the QPSA.[15] Finally, Lefkowitz argues that Mrs. Marsh was at most entitled to an annuity commencing March 1, 1988 and that to the extent the death benefit exceeds such amount, Lefkowitz as the named beneficiary is entitled to such excess. Apparently, Lefkowitz relies on certain assumptions pursuant to the QJSA rules. When REA was passed, all plans had to provide QJSAs unless the participant's spouse consented to another form of benefit. 29 U.S.C. §§ 1055(a)(1), (c)(1)(A)(i), (c)(2)(A). A QJSA, however, is an annuity in the form of a monthly benefit payable for the life of the retired participant, and upon the participant's death, an annuity of at least 50% and not more than 100% must be paid the participant's surviving spouse. Lefkowitz avers that the QPSA would have to be based on the Plans' QJSA provisions. Thus Mrs. Marsh's estate should be entitled to no more than would have been received in the 26 months from the date of Mr. Marsh's death until Mrs. Marsh's death. Pursuant to QJSA payment provisions, there is a presumption that the participant had retired and commenced receipt of certain monthly benefit payments prior to death and that those payments amounted *510 to no more than 50% of the entire annuity. Such was not the case here, thus, Lefkowitz's position seems untenable. Moreover, a trust forming part of a plan covered by 26 U.S.C. § 401(a)(11) shall not constitute a qualified trust unless, in the case where the vested participant dies before the annuity starting date and who has a surviving spouse, the surviving spouse is provided with a QPSA. The term QPSA in defined benefits plans,[16] such as the ones at bar, is described in 26 U.S.C. § 417(c)(1) as a survivor annuity for the life of the surviving spouse of the participant if: (A) the payments to the surviving spouse under such annuity are not less than the amounts which would be payable as a survivor annuity under the qualified joint and survivor annuity under the plan (or the actuarial equivalent thereof) if — (i) in the case of a participant who dies after the date on which the participant attained the earliest retirement age, such participant had retired with an immediate qualified joint and survivor annuity on the day before the participant's date of death. 26 U.S.C. § 417(c)(1)(A)(i). Lefkowitz maintains, however, that only individual account plans are subject to the proposition that absent spousal consent to the contrary, all of a participant's benefit must be paid to the spouse. By their nature, individual account plans require that the full benefit be paid to the spouse on the participant's death. Under a defined Benefits plan, a QPSA may only pay the survivor 50% of the annuity. Although Lefkowitz's position may have legal basis, and the plans at bar are concededly defined benefits plans, her argument is of no moment. It is set out in the express provisions of the Arcadia and Bay Novelty Plans, namely Article III, that the QJSA is an annuity for the joint lives of the participant and his spouse and unreduced for the life of the survivor of them in an amount equal to the lesser of certain specific amounts. Bramson Affid., Exhs. A and B. Thus, even if Mr. Marsh had retired the day before his death, Mrs. Marsh would have received a QJSA at 100% unreduced after her husband's death. Accordingly, Mrs. Marsh is entitled to 100% of the actuarial equivalent of the joint and survivor annuity which would have been payable to Mr. Marsh had he retired on the day before his death which would qualify as a QPSA pursuant to 26 U.S.C. § 417(c)(1). Furthermore, § 13.3 of each of the Plans provides that, upon termination, "any funds in excess of the actuarial liabilities of the Employer shall be returned to the Employer." Any funds in excess of the QPSA are apparently payable to the Hong Kong entities of Arcadia and Bay Novelty and the Lefkowitz designation is void under the law and Plans' provisions. For the foregoing reasons, I declare that ERISA is applicable to the Plans at bar, Lefkowitz's motion for partial summary judgment is denied and the Estate of Marsh's motion for partial summary judgment is granted. An inquest determining the amount of the QPSA is hereby referred to Magistrate Judge Roberts. SO ORDERED. NOTES [1] Mrs. Marsh's petition commencing the turnover proceedings in Surrogate's Court sought to nullify the designation of Lefkowitz as beneficiary of the death benefits under the Plans. She relied on three grounds: (1) that "pursuant to the Internal Revenue Code and other federal statutes," the Plans "must give a qualified pre-retirement survivor annuity to Mrs. Marsh...."; (2) that the designation violates a written agreement between Mr. and Mrs. Marsh; and (3) that Mr. Marsh lacked capacity at the time of the designation of the beneficiary or was subject to undue influence. Petition ¶¶ 12, 17-22. [2] Counsel for Lefkowitz maintains that because a 3(g) statement, pursuant to the local rules of the Southern and Eastern Districts of New York, did not accompany the Bank of New York's motion for summary judgment that such omission constitutes a fatal deficiency requiring its motion be rejected. While I admonish counsel for the Estate of Marsh to provide such statements in the future, I will accept the Bramson Affidavit as setting forth a concise statement of all of the material facts necessary for the resolution of Bank of New York's motion. [3] This case is before me because of claims arising under ERISA. I do not intend by this decision to usurp the power of the Surrogate's Court, nor do I intend to act as the Surrogate of the Southern District of New York. What I find so impressive, and indeed troubling however, is the gamesmanship and squabbling that has grown up over nothing more than money in this action. In my mind, nothing is truly gained by either party, and all of this fighting over money is disparaging to a wealthy, essentially broken family where neither party claiming title to the funds manifest entirely pure motives. [4] If an employer intends to deduct contributions made to a trust that holds the assets of a pension plan, compliance with the tax exemption provisions of the Internal Revenue Code ("IRC"), 26 U.S.C. § 404, is mandatory. In addition, beneficiaries of the trust (those employees who are participants in the plan) will not be taxed on their respective shares of the trust's assets until such time as the beneficiary actually receives a distribution of those assets if the trust is in compliance with the IRC. The IRC governs the tax status of trusts, but it does not regulate the plan. The failure of a plan to satisfy provisions under the Code renders the trust ineligible for tax qualification. On the other hand ERISA, 29 U.S.C. §§ 1001-1461, regulates trusts and contains extensive fiduciary duty requirements which are absent from the IRC. [5] "[T]he term `qualified preretirement survivor annuity' means a survivor annuity for the life of the surviving spouse of the participant...." 29 U.S.C. § 1055(e)(1). [6] ERISA is comprised of several Titles: Title I, the Labor Title, is codified at 29 U.S.C.; Title II, is codified in the Internal Revenue Code or 26 U.S.C. ERISA is now commonly understood to refer to 29 U.S.C. §§ 1001-1461 and not to those provisions of Title II, 26 U.S.C. §§ 401(a) and 501. [7] Lefkowitz earlier claimed that because the Plans at bar are subject to the provisions of ERISA, this court is vested with proper jurisdiction. It was on that very basis that I retained jurisdiction on May 16, 1990. Since that time, a new Surrogate Eve Preminger was elected, replacing Surrogate Marie Lambert who originally had the Estate of Marsh case. Now Lefkowitz seeks to remand the case back to the state Surrogate's Court, claiming that ERISA is not applicable to the Arcadia and Bay Novelty Plans as they are based in Hong Kong with no apparent ties to the United States except for the fact that Mr. Marsh, a United States citizen, was the sole beneficiary under the Plans. If Lefkowitz's position were to prevail, the logical result would be to place the actions back in the New York State Courts, from which Lefkowitz already sought and obtained removal. This would essentially be inequitable as it appears that Lefkowitz is merely Surrogate shopping by this application. [8] A QJSA is an annuity in the form of a monthly payment for the life of the participant and, upon the participant's death, an annuity in the same or a lesser amount must be paid the surviving spouse, if any. Payment of a QJSA presumes that the participant began retirement and was paid a certain monthly sum prior to death pursuant to the retirement benefits component of a plan. [9] Pursuant to REA, the QPSA provisions were not effective until plan years beginning after December 31, 1984. 29 U.S.C. § 1001. The next new plan year for the Arcadia and Bay Novelty Plans commenced March 1, 1985. [10] Prior to the REA, there was no requirement that a pension plan pay out any sums of money on account of a participant who died before the participant was entitled to commence receiving benefits. The provision of benefits on account of such a participant, i.e., death benefits, was purely voluntary on the part of the plan. [11] Although it may appear inequitable, in this case, to read in a QPSA to provide for a wife who essentially abandoned her husband, the law and policy require such an outcome not only for this case but also for future cases. Providing for a surviving spouse is of utmost importance and as discussed further infra, Mr. and Mrs. Marsh's marriage remained intact legally until Mr. Marsh's death. [12] Lefkowitz argues that a QPSA should not be enforceable because Mrs. Marsh was estranged from and abandoned Mr. Marsh after he suffered a stroke, and they both subsequently filed for divorce. For all intents and purposes, the marriage was a nullity and should be deemed dissolved according to Lefkowitz. I disagree. Inequitable as it may seem, the Marsh's were still married under the law because neither divorce was finalized prior to Mr. Marsh's demise. [13] Counsel for Lefkowitz maintains that Estate of Marsh's reliance on Rev.Rule 89-87 is misplaced, averring that a revenue rule is merely used to advise taxpayers of the IRS's position on a certain subject and is limited to the tax consequences addressed in the revenue rule. Thus, counsel states that Rev.Rule 89-87 merely advises of the IRS's position regarding the tax qualification of trusts in certain circumstances and it may not be read into ERISA. Whether there exists a private right of action pursuant to this revenue rule is of no moment for my reliance in citing this rule is purely constructional, and in aid to interpreting portions of ERISA. [14] "Annuity starting date" has been defined as "the first day of the first period for which an amount is received as an annuity because of disability or retirement." Pension and Profit Sharing Vol. I ¶ 8072, at 8301 (Prentice Hall). [15] It is noteworthy that Mr. Marsh, who signed a beneficiary designation form on April 16, 1987 naming Lefkowitz, signed this form almost three years after QPSA requirements were enacted. Moreover, that form was intended for unmarried employees and contained certifications that the participant is "unmarried as of the date hereof." Bramson Affid., Exh.P. Although that provision was crossed out on the form, it further stated the following: "I understand that under current law, if I hereafter marry, my marriage will revoke this designation. I will therefore immediately inform the Plan Administrator of any change in marital status." Mr. Marsh should have been alerted then as to the significance of marital status. That Mrs. Marsh was estranged from Mr. Marsh is of no moment for there was never a decree stating that the couple was divorced prior to Mr. Marsh's death. Under New York law, no judgment, decree, order or other judicial determination regarding separation or abandonment can be rendered or made nunc pro tunc based on Mr. and Mrs. Marsh's matrimonial actions, because both of those actions abated on Mr. Marsh's death. See Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891 (2d Dep't 1980), affd., 52 N.Y.2d 850, 437 N.Y. S.2d 77, 418 N.E.2d 670 (1981) (both actions for divorce abated at the death of a spouse). Thus, the integrity of their legal status as a married couple is unquestionable. [16] A defined benefit plan is simply defined as "a pension plan other than an individual account plan...." 29 U.S.C. § 1002(35). It has no individual accounts, rather, all contributions are made to one fund and a participant's monthly annuity or benefit is based on a formula which accounts for compensation and years of service. Lefkowitz Motion, Exhs. 17 ¶¶ 7 and 8, 18 ¶ 3, and 19 ¶ 2.

69 Cal.Rptr.3d 876 (2007) 158 Cal.App.4th 635 The PEOPLE, Plaintiff and Respondent, v. Curtis L. GRAY, Defendant and Appellant. No. B192564. Court of Appeal of California, Second District, Division One. December 31, 2007. *877 Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent. Certified for Partial Publication.[*] ROTHSCHILD, J. After the first jury could not reach a verdict, on retrial, the second jury convicted defendant, Curtis L. Gray, of first degree residential burglary. The trial court sentenced him to a term of 25 years to life pursuant to the Three Strikes law. The principal issue in his appeal is whether the trial court committed prejudicial error in modifying CALCRIM No. 316 (impeaching a witness with a prior felony conviction) to allow the jury to determine if the witness's felony conviction was one "involving moral turpitude" which the court defined as "involving dishonesty." We hold that the modified instruction was erroneous but that the error was not prejudicial under the facts of this case. Finding no other errors, we affirm the judgment. FACTS AND PROCEEDINGS BELOW The victim, Dana Scott, lived across the street from her parents, Patricia and Percy Kirklin.[1] When Scott moved in to her home, she gave her parents a key to the metal security door that covered the wooden front door of the house. Scott did not have a key to the wooden door, so she always left it unlocked. Late one afternoon Scott called her mother and asked her to go to her house, let the dog out and turn on some lights. Patricia unlocked the metal security door but she could not enter because the wooden door was locked. She returned home and asked Percy to try to open the front door. Percy took the screen off a front window, reached under the window which was slightly ajar, and unlocked the wooden door. Before he removed the screen, he noticed that it was slightly bent. Patricia and Percy entered Scott's house. The locked door and the bent screen aroused Percy's suspicion so he decided to check the rooms. In the back bedroom, he saw a pair of pant legs and two feet in the closet with the soles of the shoes facing up as though the person was lying face down. Percy immediately left the bedroom and told his wife to call the police. At that point Gray called out: "Mr. Kirklin, you know me. I'm Curtis." *878 Gray told Percy there was no need to call the police; that he had come by to visit Scott and was planning to surprise her. Gray then walked past Percy and out the front door. Percy noticed Gray had a backpack over his shoulder. After Gray left, Patricia and Percy returned home, called Scott and told her what had just happened. Scott asked her parents to call the police, which they did. Scott filed a police report stating that several items that she had seen in her jewelry box that morning now were missing. Patricia, told the police that she recognized the man who had been in Scott's house as Curtis Gray. She recognized Gray because approximately a year earlier he and others had helped Scott move to her house. Scott testified that Gray was an acquaintance she had met through her ex-husband. She acknowledged that Gray had helped her move into her house but stated that after the move she saw him infrequently. Her last contact with Gray was by telephone two weeks before he was found inside her house. At that time she told him to stop calling her and to leave her and her family alone. Scott testified that she did not talk to Gray after that call and that she did not give him permission to enter her house or take anything from her house. Before Gray testified, the parties and the trial court discussed what evidence regarding his prior convictions for robbery, grand theft, receiving stolen property and arson would be admitted as impeachment. Like the court in his previous trial, this court ruled that it would permit Gray to be impeached by evidence that he had been convicted of four prior but unspecified felony convictions involving "moral turpitude" and one conviction for arson. The court also informed the parties that, unlike the previous trial, it would define "moral turpitude" in the jury instruction on credibility. Defense counsel did not object to the court's evidentiary ruling but reserved the right to argue on the jury instruction. Based on the trial court's ruling, Gray's testimony began with his acknowledgement that he had been convicted of two felonies involving moral turpitude in 1987, another felony involving moral turpitude in 1994 and a fourth felony involving moral turpitude in 2001. Gray also admitted a 2001 felony conviction for arson. Gray testified that he did not know Scott's ex-husband, did not become acquainted with her through her ex-husband, but met Scott through a computer dating service. He had spent time with her on four or five occasions and also met her parents. A week before the alleged burglary Scott called him and asked him to help her move again. She arranged to leave a set of keys to the house in her mailbox so that he could help pack while she was at work. According to their arrangement, he found the keys and entered the house. He spent the morning packing, then he had lunch, took a nap, and resumed packing. He was packing items in the closet in the back bedroom when he heard Scott's father, Percy, yell, "Who's in the house?" Gray came out of the closet and identified himself. Percy asked him what he was doing there, and Gray told him he was there to help Scott pack. Percy stated he did not know anything about that and asked Gray to leave, which he did. Gray denied taking anything from Scott's house. After the close of evidence, the parties and the court conferred regarding the credibility instruction pertaining to felony convictions. Defense counsel argued that the court should give the instruction in CALCRIM No. 316, which allows consideration of a witness's "felony" conviction only for the purpose of evaluating the witness's *879 credibility,[2] and objected to any reference in the instruction to convictions involving "moral turpitude" or including a definition of "moral turpitude" in the instruction. The prosecutor argued that the court should instruct the jury that four of the felonies Gray committed involved dishonesty. The court instructed the jury that in determining the credibility of a witness it could consider the fact that the witness had been convicted of a felony "involving moral turpitude" and that "moral turpitude is defined as involving dishonesty." The jury convicted Gray of the first degree burglary of a residence, and the trial court sentenced him to a term of 25 years to life under the Three Strikes law (Pen.Code, § 667, subds.(b)-(i)). Gray filed a timely notice of appeal. DISCUSSION I. THE INSTRUCTION REGARING GRAY'S PRIOR FELONY CONVICTIONS. Gray contends the trial court erred in the instruction on the consideration of prior felony convictions in determining credibility. We agree the court erred but we conclude that the error was harmless. The trial court instructed the jury with its own modified version of CALCRIM No. 316 as follows (the court's modifications are in italics): "If you find that a witness has been convicted of a felony involving moral turpitude, you may consider that fact only in evaluating the credibility of the witness's testimony. Moral turpitude is defined as involving dishonesty. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." The court erred in making these modifications for three reasons. Although a witness may be impeached by evidence of conviction of a crime involving moral turpitude (People v. Castro (1985) 38 Cal.3d 301, 313-314, 211 Cal.Rptr. 719, 696 P.2d 111), whether the conviction proposed as impeachment involves moral turpitude is for the trial court to decide, not the jury. (Id. at pp. 313-314, 316, 211 Cal.Rptr. 719, 696 P.2d 111.) Thus, contrary to the language of the modified instruction, it is not within the jury's province to "find that a witness has been convicted of a felony involving moral turpitude." The modified instruction is also incorrect in limiting moral turpitude to dishonesty. Our Supreme Court has defined moral turpitude more broadly as a "`general readiness to do evil'" which may, but does not necessarily, involve dishonesty. (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.) A conviction for arson, for example, shows "a readiness to do evil" but does not involve dishonesty. (People v. Miles (1985) 172 Cal.App.3d 474, 481-482, 218 Cal.Rptr. 378.) (The trial court acknowledged this difference but stated it was immaterial in this case because all of Gray's unspecified felonies involved dishonesty.) Finally, the court erred in modifying CALCRIM No. 316 because the modification conflicted with the unmodified instruction the court gave pursuant to CALCRIM No. 226 which instructs the jury that in evaluating a witness's testimony, it may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony including that the witness has "been convicted of a felony[.]" Although the trial court erred in modifying CALCRIM No. 316, the errors were not prejudicial. *880 Gray acknowledges, and we agree, that his convictions for robbery, grand theft and receiving stolen property involved moral turpitude. Therefore, evidence of those convictions was relevant to the issue of Gray's credibility, and the trial court properly admitted that evidence. (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.) The court also properly instructed the jury under CALCRIM No. 316 that it must determine whether he was convicted of a felony. Allowing the jury also to decide whether Gray's felonies involved moral turpitude did him no harm because as a matter of law those felonies did involve moral turpitude. Indeed, the court had correctly made that determination when it admitted the evidence of the felonies. Gray contends that the modified instruction which told the jury that moral turpitude involves dishonesty requires reversal of his conviction because it "served to direct the jury to disregard appellant's defense and adopt the prosecution's view of the evidence." He argues that the court, in effect, told the jurors that if the felony was one of moral turpitude they must find him dishonest and. reject his defense. In support of this contention defendant points to the omission of "moral turpitude" to modify "conviction" in the penultimate sentence of the instruction cautioning the jury, "The fact of a conviction does not necessarily destroy or impair a witness's credibility." The failure to repeat the modifier "involving moral turpitude" in the sentence cited by defendant does not change the meaning of the instruction read as a whole. More importantly, the instruction does not require the jury to find defendant dishonest. Rather, it allows the jury to consider a conviction of a crime of moral turpitude in evaluating credibility. We acknowledge that whenever a jury is informed of a defendant's convictions, even for the limited purpose of impeaching his credibility, a danger exists that some jurors also will view that evidence as showing a defendant's propensity to commit crimes despite having been instructed not to do so. (People v. Rollo (1977) 20 Cal.3d 109, 116, 141 Cal.Rptr. 177, 569 P.2d 771.) The Evidence Code, however, entitles the People to present evidence of the credibility of any witness, including a criminal defendant (Evid.Code, § 785) and "[n]o witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity." (People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.) To the extent evidence of a criminal conviction is so prejudicial that it outweighs its evidentiary value, the trial court may exclude it. (Evid.Code, § 352.) Defendant, however, does not contend that the evidence of his convictions should have been excluded. Indeed, although the trial court could have permitted evidence of defendant's actual prior convictions (Evid. Code, § 788; People v. Terry (1962) 57 Cal.2d 538, 563, 21 Cal.Rptr. 185, 370 P.2d 985; cf. People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647, 248 Cal.Rptr. 891 [affirming admission of defendant's three prior burglary convictions in the trial on a new charge of burglary]) by "sanitizing" his convictions it reduced the potential prejudice of those convictions. The court thus focused the jury's attention on how those crimes might affect Gray's credibility rather than on how similar those crimes were to the crime for which he was on trial. Because the modified instruction limited the jury's consideration to felonies involving dishonesty, it caused the jury to consider the element of those crimes that gives them their greatest probative value for impeachment. As the court recognized in Castro, "Obviously it is easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty *881 as a necessary element than when it merely indicates a `bad character' and `general readiness to do evil.'" (People v. Castro, supra, 38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111.) In this case, the danger that the jurors might misuse the felony impeachment evidence to conclude that Gray is a bad character or prone to acts of dishonesty is reduced because not only the judge but the prosecutor instructed them not to do so. In her closing argument, the prosecutor told the jury: "I don't want you to ... convict the defendant because he's got these convictions in the past. That's not the purpose for which you get to learn that he has those convictions, and I'm instructing you specifically don't find him guilty just because he's got those convictions in the past[.]" Finally, Gray argues that he has shown prejudice from the erroneous instruction because the jury hung in the first trial and convicted him in this trial although the only significant difference between the two trials is that in the first trial the court did not instruct that crimes of moral turpitude involve dishonesty but in the second trial it did. We disagree. The evidence was not identical and, in any case, it is impossible to know what facts and arguments one jury found significant and another jury did not. II.-III.[**] DISPOSITION The judgment is affirmed. We concur: VOGEL, Acting P.J., and JACKSON, J.[***] NOTES [*] Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts; II and III. [1] Because they have the same last name we will refer to the Kirklins by their first names. [2] We discuss CALCRIM No. 316 in more detail in Part I of this opinion. [**] See footnote *, ante. [***] (Judge of the L.A. Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

974 A.2d 1198 (2009) IN RE R.K. No. 1505 MDA 2008. Superior Court of Pennsylvania. April 13, 2009. Affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7538 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOHN JERMAINE BECKHAM, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:00-cr-00136-4; 3:06-cv-00292) Submitted: December 14 2006 Decided: December 21, 2006 Before MICHAEL, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. John Jermaine Beckham, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Jermaine Beckham seeks to appeal the district court’s order denying his 28 U.S.C. § 2255 (2000) motion on the ground that it was untimely filed. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Beckham has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

[Cite as State v. Clark, 2015-Ohio-5082.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 15AP-135 (C.P.C. No. 14CR-531) v. : (REGULAR CALENDAR) Carlos C. Clark, : Defendant-Appellant. : D E C I S I O N Rendered on December 8, 2015 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Pritchard, for appellee. Todd W. Barstow, for appellant. APPEAL from the Franklin County Court of Common Pleas. BROWN, P.J. {¶ 1} This is an appeal by defendant-appellant, Carlos C. Clark, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of kidnapping, aggravated burglary, and rape. {¶ 2} On January 31, 2014, appellant was indicted on one count of kidnapping, in violation of R.C. 2905.01, one count of aggravated burglary, in violation of R.C. 2911.11, and one count of rape, in violation of R.C. 2907.02. The matter came for trial before a jury beginning December 16, 2014. No. 15AP-135 2 {¶ 3} The first witness for the state was Columbus Police Officer Nicholas Thatcher. On January 20, 2014, at 12:39 a.m., Officer Thatcher and his partner were dispatched to an apartment on Spiros Court, Galloway. The dispatch reported "a female caller on the phone saying that her ex-boyfriend had broke into the residence and was chasing her." (Tr. 54.) The front door of the apartment was open, and the officers observed two young children inside. The officers then made contact with the female caller, K.W., who was "[c]rying, scared, hysterical, out of breath." (Tr. 56.) Officer Thatcher obtained a statement from K.W. and then contacted police detectives. {¶ 4} On January 20, 2014, at 12:57 a.m., Ronald Estepp, a member of the Columbus Fire Department, was dispatched to Spiros Court. Estepp prepared a written incident report in which he noted: "Patient stated she was raped by Carlos Cornelius Clark. Transported to Doctors West." (Tr. 68.) The report indicated that K.W. was "achy and anxious, and that she was shaking." (Tr. 69.) Medical personnel transported K.W. to Doctors Hospital. {¶ 5} A.D. is the brother of K.W. On January 20, 2014, A.D. resided at an apartment on Erika Court, Galloway, in an apartment located near K.W.'s residence. On that date, K.W. "come beating on my door screaming." (Tr. 78.) A.D. opened the door, and K.W. "told me what happened and everything, so we called the police." (Tr. 78.) K.W. "was barefoot. She was scared out of her mind. I've really never seen her that scared before." (Tr. 79.) K.W. said: "Bub, help me. He's chasing me. He's going to get me. He's right behind me." (Tr. 80.) A.D. called 911, and K.W. "was trying to call 911 too." (Tr. 79.) K.W. had "left the children" at her residence, and "she didn't know what to do." (Tr. 81.) Several minutes later, a dispatcher informed them that police officers had arrived at K.W.'s residence. K.W. then returned to her apartment, accompanied by A.D. At trial, the state played a recording of the 911 call. {¶ 6} K.W., age 23, has a son, age 7, and a daughter, age 2. Appellant is K.W.'s former boyfriend; they dated from 2011 until December 2013, when K.W. "broke up with him." (Tr. 88.) She described the relationship as "on again/off again." (Tr. 88.) {¶ 7} On January 20, 2014, K.W. resided on Spiros Court, Galloway. On that date, K.W. had just put her son to bed when she heard a noise. She looked outside, but did not see anything. K.W. testified that she started to "get up, and before I could even No. 15AP-135 3 make it to my bedroom door, [appellant] was already standing in the middle of my bedroom proceeding to tell me that I was his and where's the guy that's hiding in here, and I proceeded to tell him there's no man." (Tr. 90.) Appellant said to K.W.: "Bitch, don't move. I'm going to check." (Tr. 91.) Appellant then "searched, ransacked my house." (Tr. 91.) {¶ 8} K.W. remained in the bedroom; she "stood there and didn't move, as he told me to, because I didn't want him to hurt me." (Tr. 92.) Appellant then came upstairs and told K.W. that she "was lucky." (Tr. 92.) K.W. testified that appellant "grabbed me by my hair, and took me to the bathroom." (Tr. 92.) Appellant closed the bathroom door and "proceeded to take advantage of me when I told him I didn't want to." (Tr. 92.) He "tried to get me to do oral, and I wasn't doing it." (Tr. 92.) Appellant "hit me a couple of times, and then told me to turn around and placed me over the bathroom sink, and he ripped my pants down." (Tr. 92-93.) Appellant was "squeezing my neck" and "would squeeze harder when I would tell him that I don't want to and try to pull my pants up." (Tr. 93.) He "squeezed really hard and said, So you're saying that I'm raping you?" (Tr. 93.) Appellant said: "Go ahead. Say it. Say that I'm raping you, Bitch, so that I can kill you. Go ahead." (Tr. 93.) K.W. responded to appellant: "That's not what I'm saying. What I'm saying is I don't want to do this, Carlos. Get off me." (Tr. 93.) Appellant told K.W. "I was his. If he couldn't have me, no one could." (Tr. 93.) Appellant "proceeded to tell me that I wasn't moving until he ejaculated." (Tr. 95.) K.W. testified that, during the incident, appellant's penis "went in my vagina and my anus," and he ejaculated. (Tr. 95-96.) {¶ 9} Appellant handed K.W. a rag and "tells me to clean up at the sink. He cleans up in my bathtub, and then he says, Bitch, go downstairs." (Tr. 97.) K.W. told appellant she wanted a cigarette. Appellant asked for a cigarette, and K.W. said she had only one but that she would share it with him. K.W. went to her bedroom and grabbed two phones to hide inside her clothing. {¶ 10} K.W. then came downstairs and appellant "calls * * * out my name, and says, You haven't lit the cigarette yet?" (Tr. 99.) K.W. told appellant that her lighters "stay up on top of the shelf by the stove in the kitchen." (Tr. 99.) K.W. walked over toward the shelf "to reach for it, and that's when he tries to push me into hot grease that was on my stove." (Tr. 99-100.) Appellant had a knife and put it to K.W.'s throat. No. 15AP-135 4 Appellant "said he was going to slice my throat and let my 6 year old find me like that." (Tr. 101.) Appellant "kept hitting me, and all I was doing was blocking him. We fell over the kitchen table, couple things fell off the counter, and then we ended up on the floor." (Tr. 101-02.) K.W. sat on the floor with her knees close to her chest. Appellant "kept hitting me with a knife, and that's when he was threatening me, again." (Tr. 102.) {¶ 11} K.W. asked appellant: "Why are you doing this to me?" (Tr. 102-03.) Appellant eventually "put the knife up and * * * laid backwards onto my dining room/kitchen floor." (Tr. 103.) K.W. saw this as her "opportunity to jump up and run, and that's what I did." (Tr. 103.) She ran "[o]utside where some neighbors were." (Tr. 103.) Appellant chased after K.W. and told her: "Bitch, you're dead. Anybody you gets dead. I don't care when it is. You are all going down." (Tr. 104.) K.W. then ran to her brother's residence, located nearby, and called 911. {¶ 12} K.W. returned to her residence after police officers responded. An ambulance arrived and transported her to the hospital. Shortly after the incident, appellant "still proceeded to call and text my phone." (Tr. 106.) Appellant "was * * * texting, telling me he loves me; he's sorry; he don't know what he was thinking; please forgive him; I better not tell nobody; if I do, I better not go to court; so forth." (Tr. 106.) K.W. testified that she sustained a bruise on her foot, as well as bruises on her legs and side during the incident; she also received scratches on her thighs, and marks on her neck and face. {¶ 13} Ashley Russell, a registered nurse employed by Doctors Hospital, conducted an examination of K.W. on January 20, 2014; Russell noted "bruising and points of tenderness * * * to [K.W.'s] neck, her head, the back of her scalp." (Tr. 196.) Russell also noted "bruising on her right wrist, two small scratches to her right back, abrasion on her leg, her left leg, and bruising to her right leg." (Tr. 196.) Hospital personnel took photographs of K.W. At trial, the state introduced photographs of K.W. and her residence. {¶ 14} On January 20, 2014, Columbus Police Detective Eric Poliseno interviewed K.W. at the hospital. Detective Poliseno and his partner subsequently collected evidence at K.W.'s residence, including washcloths from the bathroom. The detectives submitted the washcloths to the Bureau of Criminal Identification and Investigation ("BCI") to test No. 15AP-135 5 for DNA evidence; they also collected a rape kit from the hospital and submitted it to BCI with a laboratory request. {¶ 15} At trial, Sarah Glass, a forensic scientist with BCI, identified items from a sexual assault evidence collection kit, including vaginal samples, several washcloths, and an oral swab taken from appellant. Glass testified that she identified the presence of semen on the vaginal samples; one of the washcloths also testified positive for semen. Glass forwarded the results to BCI for DNA testing. {¶ 16} Hallie Garofalo, a forensic scientist with BCI, testified that the DNA profile from the vaginal swabs resulted in two DNA profiles; "one being consistent with [K.W.], the other * * * consistent with Carlos Clark." (Tr. 285.) Testing of the washcloth indicated a DNA profile consistent with appellant's DNA. {¶ 17} Appellant, age 23, has two prior felony convictions for possession and receiving stolen property. Appellant testified on his own behalf, and gave the following account as to the events at issue. Appellant and K.W. first met when they were both employed at a warehouse. They eventually started dating, and appellant was living at K.W.'s residence until "around January 17th" 2014. (Tr. 305.) {¶ 18} On the evening of January 18, 2014, appellant was at K.W.'s residence. Appellant woke up on K.W.'s couch the morning of January 19, 2014. He and K.W. "had got into an argument the previous day because of my infidelities and women calling my phone." (Tr. 307.) K.W. came downstairs and appellant made coffee. They began talking about their relationship, "and if we were going to be together." (Tr. 307.) Appellant "told her I loved her and that these other women are just other women, and we made up." (Tr. 307-08.) Appellant "told her I wanted to marry her, and actually we made up, and we had sex, wiped off." (Tr. 308.) {¶ 19} Appellant later "received a call from one of my other females," and he and K.W. "ended up getting into another argument about that." (Tr. 308.) Appellant left K.W.'s residence and obtained a ride from a friend; they drove to "the Hilltop." (Tr. 308.) Appellant was "at the Hilltop, relaxing, hanging out with a few buddies. I ended up getting a call from my girlfriend at the time." (Tr. 308.) Appellant's girlfriend, later identified as Melinda Fee, "comes and picks me up, and we go to her cousin's house. We relax over there. She decides to get my name tattooed on her left breast. She gets my No. 15AP-135 6 name tattooed on her left breast and put it on Facebook." (Tr. 308.) According to appellant, his girlfriend obtained the tattoo between 9:00 and 10:00 p.m. on January 19, 2014. Appellant denied forcing K.W. to have sex with him. He also denied hitting K.W., entering her apartment without permission, or ransacking the apartment. {¶ 20} On cross-examination, appellant stated that he broke off the relationship with K.W. in December 2013. Appellant began dating Fee in October 2013. He denied contacting K.W. after the alleged incident. At trial, the prosecutor showed appellant a printout containing his prison PIN code and a telephone log. Appellant acknowledged telling police officers during an interview that he did not leave his cousin's residence on the evening of January 19, 2014. When the police questioned appellant about the last time he had seen K.W., appellant told them "we broke up on the 17th." (Tr. 335.) {¶ 21} The state called Fee as a rebuttal witness. Fee testified that she dated appellant from November 2013 to January 2014. On February 19, 2014, at approximately 1:00 p.m., Fee picked up appellant "on the Hilltop" and they drove to the apartment of Fee's cousin near Norton Road. (Tr. 350.) Around midnight, appellant left the apartment; he told Fee "he was going to go find my cousin." (Tr. 351.) Appellant was gone "[a]bout 25 minutes." When he returned, appellant "was out of breath like he was running." (Tr. 351.) Fee asked appellant "where he went, and he * * * lied to me." (Tr. 351.) Fee testified that appellant "didn't go look for my cousin, that he went over to that girl's house and * * * was over there with her for that little bit of time and then came back." (Tr. 351-52.) Fee stated that appellant "told me that he was over there, that he had went over there." (Tr. 355.) {¶ 22} Following deliberations, the jury returned verdicts finding appellant guilty of rape, aggravated burglary, and kidnapping. The trial court conducted a sentencing hearing on January 22, 2015. The trial court subsequently filed an entry sentencing appellant to five years incarceration on Count 1, five years incarceration on Count 2, and eight years incarceration on Count 3, with Counts 1 and 2 to be served concurrently to each other, and Counts 2 and 3 to be served consecutively to each other, for a total sentence of 13 years incarceration. {¶ 23} On appeal, appellant sets forth the following two assignments of error for this court's review: No. 15AP-135 7 I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF KIDNAPPING; AGGRAVATED BURGLARY AND RAPE AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES. {¶ 24} Under the first assignment of error, appellant contends his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. We note that appellant does not separately argue his sufficiency and manifest weight claims; the focus of his argument, however, challenges the credibility of K.W.'s testimony. {¶ 25} In State v. Martin, 10th Dist. No. 14AP-189, 2014-Ohio-4447, ¶ 19-20, this court discussed the distinction between sufficiency and manifest weight claims as follows: In reviewing the "record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " In contrast to a sufficiency argument, a reviewing court considering a manifest weight challenge "may not merely substitute its view for that of the trier of fact." Rather, an appellate court "must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Citations omitted.) {¶ 26} As indicated, the jury returned verdicts finding appellant guilty of kidnapping, aggravated burglary, and rape. R.C. 2905.01(A) defines the offense of kidnapping, in part, as follows: No. 15AP-135 8 No person, by force, threat, or deception * * * shall * * * restrain the liberty of [another], for any of the following purposes: *** (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; (4) To engage in sexual activity * * * with the victim against the victim's will. {¶ 27} R.C. 2911.11(A) sets forth the elements of the offense of aggravated burglary, and states, in part: No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another. {¶ 28} R.C. 2907.02(A)(2) defines the offense of rape as follows: "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." {¶ 29} We first consider appellant's sufficiency of the evidence challenge. At trial, the state presented evidence that K.W., while inside her residence on January 20, 2014, heard a noise. She looked outside, but did not see anything. As K.W. started to walk toward her bedroom door, appellant was "standing in the middle of [her] bedroom," and he began accusing her of hiding another man in the residence. (Tr. 90.) Appellant ordered K.W. not to move, and he then "searched, ransacked [her] house." (Tr. 91.) K.W. testified that he "was opening up my closet doors, throwing a couple things out, moving my stuff around, looking around for another man." (Tr. 141.) No. 15AP-135 9 {¶ 30} Appellant then returned to the bedroom, grabbed K.W. by the hair and took [her] to the bathroom. Appellant closed the bathroom door and "proceeded to take advantage of" her. (Tr. 92.) Appellant "hit [K.W.] a couple of times," and then turned her around and placed her "over the bathroom sink," and he "ripped [her] pants down." (Tr. 93.) Appellant told K.W. that she "wasn't moving until he ejaculated." (Tr. 95.) K.W. testified that, during the incident, appellant's penis "went in my vagina and my anus," and that he ejaculated. (Tr. 95-96.) Appellant cleaned up in the bathroom using washcloths that were subsequently collected as evidence. {¶ 31} K.W. then came downstairs to the kitchen; as she was reaching up near the stove to get a cigarette lighter, appellant attempted to "push [her] into hot grease that was on [the] stove." (Tr. 100.) Appellant put a knife to K.W.'s throat, and threatened to "slice" her throat. (Tr. 101.) Appellant began hitting K.W., and they fell over a kitchen table to the ground. Appellant continued to hit K.W. and threaten her. K.W. was eventually able to flee her residence, and she ran to her brother's apartment. {¶ 32} Upon review of the record, and construing the evidence most strongly in favor of the prosecution as we are required to do in considering a sufficiency challenge, the evidence submitted by the state, including the testimony of K.W., if believed, was sufficient to support the elements of rape, aggravated burglary, and kidnapping beyond a reasonable doubt. Accordingly, we reject appellant's sufficiency challenge. {¶ 33} Appellant also contends his convictions were against the manifest weight of the evidence. As noted above, appellant primarily challenges the credibility of K.W.'s testimony. Appellant maintains that, despite K.W.'s testimony that he viciously assaulted her, photographs taken of K.W. at the hospital fail to show corresponding injuries. Appellant also argues that photographs of K.W.'s residence showed no signs of a brutal attack, and appellant notes that K.W. testified she moved items of evidence in the residence at the direction of police officers and detectives. {¶ 34} At trial, K.W. testified that she sustained bruises to her foot, legs and side, as well as scratches on her thighs, and marks on her neck and face, as a result of the assault. While appellant contends that photographs of K.W. introduced at trial did not match the injuries alleged by K.W., the state also presented the testimony of Ashley Russell, a registered nurse at Doctors Hospital, who participated in an examination of No. 15AP-135 10 K.W. shortly after the incident. Russell noted "bruising and points of tenderness * * * to [K.W.'s] neck, her head, the back of her scalp," as well as "bruising on her right wrist, two small scratches to her right back, abrasion on her leg, her left leg, and bruising to her right leg." (Tr. 196.) During closing argument, defense counsel argued before the jury that any bruising depicted in the photographs was inconsistent with the offenses alleged. The jury, however, was free to consider the photographs and to believe or disbelieve the testimony of the witnesses, including the nurse who examined K.W. shortly after the incident. The trier of fact obviously found credible the testimony of K.W. and/or Russell. {¶ 35} With respect to appellant's claim that K.W. moved items of evidence in the apartment at the direction of police personnel, K.W. testified, during cross-examination, that "[w]hen the police got there * * * I moved the oil, with the police's consent, because the thing was still hot and my children was in the house." (Tr. 128.) K.W. explained that "[t]hey told me to move the grease off of the hot burner." (Tr. 130.) {¶ 36} Under Ohio law, "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Further, a criminal defendant "is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial." State v. Timmons, 10th Dist. No. 04AP-840, 2005-Ohio-3991, ¶ 10. Here, the trier of fact was in the best position to assess the credibility of K.W.'s testimony, and the jury obviously found any inconsistencies to be immaterial. Upon review, we find that the verdicts were not against the manifest weight of the evidence, and the jury did not lose its way and create a manifest miscarriage of justice. {¶ 37} Based upon the foregoing, appellant's first assignment of error is without merit and is overruled. {¶ 38} Under the second assignment of error, appellant contends the trial court erred in imposing consecutive sentences by failing to comply with the requirements of R.C. 2929.14(C)(4). Specifically, appellant argues that the trial court failed to make a finding that consecutive sentences were not disproportionate to the danger he posed to the public. No. 15AP-135 11 {¶ 39} R.C. 2929.14(C)(4) states, as follows: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post- release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 40} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus, the Supreme Court of Ohio recently held: "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings." {¶ 41} A review of the transcript of the sentencing hearing in the instant case indicates the trial court stated that consecutive sentences were necessary to punish the offender, and that consecutive sentences were not disproportionate to the offense and the conduct at issue in the case. The court also noted that appellant was under community control at the time of the offense. As argued by appellant, the trial court did not specifically state during the sentencing hearing that consecutive sentences were not disproportionate "to the danger the offender poses to the public." In Bonnell, however, No. 15AP-135 12 the Supreme Court held that a trial court is not "required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry." Id. at ¶ 37. {¶ 42} In State v. Hargrove, 10th Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 15, this court considered a similar contention, i.e., that the trial court had failed to comply with R.C. 2929.14(C)(4) by failing to find "that 'consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public.' " This court observed that "relevant case law shows that appellate courts have been fairly deferential to the trial court when reviewing the transcript of a sentencing hearing to determine whether the trial court has made the findings required by R.C. 2929.14(C)(4)." Id. at ¶ 19. By way of example, we cited State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, in which "this court held that statements by the trial court that defendant's criminal conduct 'shows a very serious disregard for people's safety' and that there were 'several different victims' shows that the trial court made the second required finding under R.C. 2929.14(C)(4)." Hargrove at ¶ 19, quoting Hillman at ¶ 68. In reviewing the record in Hargrove, this court found the trial court's statements during the sentencing hearing, including the court's observation that the appellant had previously been convicted of a similar crime, permitted this court to find "that the trial court found not only that consecutive service is necessary to punish appellant but also that consecutive service is not disproportionate to the danger appellant poses to the public." Id. at ¶ 18. {¶ 43} In the present case, while the trial court did not expressly recite the statutory language with respect to the second finding, we find that the record is sufficient for this court to conclude that the court made the necessary findings. Specifically, during the sentencing hearing, the court expressed "concern" about appellant's "prior conduct," including the fact he had previously engaged in similar "assaultive-type behavior." (Tr. Jan. 22, 2015, 18.) The court also noted on the record that appellant's prior behavior "demonstrates that consecutive sentences are necessary in this matter." (Tr. Jan. 22, 2015, 19.) Further, the trial court incorporated the findings into the judgment entry. Thus, while the court "did not employ the precise statutory language in making its findings in support of a consecutive sentence," the trial court's "commentary at the No. 15AP-135 13 sentencing hearing demonstrates that it did make the findings required by R.C. 2929.14(C)(4)." Hillman at ¶ 70. {¶ 44} Accordingly, appellant's second assignment of error is not well-taken and is overruled. {¶ 45} Based upon the foregoing, appellant's first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. SADLER and HORTON, JJ., concur. ___________________ 

FILED NOT FOR PUBLICATION MAR 04 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-10395 Plaintiff - Appellee, D.C. No. 1:05-CR-00425-JMS v. MEMORANDUM * ANTONIO SANTOS, Defendant - Appellant. Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding Argued and Submitted February 9, 2010 Honolulu, Hawaii Before: FARRIS, D.W. NELSON and BEA, Circuit Judges. Antonio Santos appeals his conviction for conspiracy to distribute and possess, with intent to distribute, 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.  Santos argues that the district court erred in finding that the waiver of his Miranda rights was knowing and intelligent. We review the district court’s finding for clear error. United States v. Younger, 398 F.3d 1179, 1185 (9th Cir. 2005). The district court’s finding was not clearly erroneous. It relied on testimony from four government agents in finding that Santos understood English and had agreed to answer questions. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127-28 (9th Cir. 2005). It also took note of the correction Santos made to his statement, showing Santos understood English. Based on these findings, the district court could properly conclude that Santos understood his rights and waived them. See United States v. Bautista-Avila, 6 F.3d 1360, 1366 (9th Cir. 1993). We review all of Santos’ remaining arguments for plain error because he failed to object to any of the alleged errors. United States v. Banks, 514 F.3d 959, 975-76 (9th Cir. 2008). Santos first argues that the district court should have given limiting instructions on the use of the cooperating witnesses’ guilty pleas. We agree. The court should have given a limiting instruction since the jury must be told “in unequivocal language that the plea may not be considered as evidence of a defendant’s guilt.” United States v. Halbert, 640 F.2d 1000, 1006-07 (9th Cir. 1981) (per curiam). However, there was no plain error since the pleas were not prejudicial. The pleas were elicited to blunt the force of subsequent defense 2 impeachment. See United States v. Garcia-Guizar, 160 F.3d 511, 524 (9th Cir. 1998); United States v. Tamura, 694 F.2d 591, 602 (9th Cir. 1982). Following the introduction of the guilty pleas, the jury heard extensive testimony from the cooperating witnesses as to their involvement in the conspiracy and Santos’ involvement. The government did not place undue emphasis on the pleas and did not suggest that they were evidence of Santos’ guilt. Garcia-Guizar, 160 F.3d at 524. It is reasonable to assume the jury used the testimony regarding the facts of the conspiracy to convict Santos and only used the guilty pleas to evaluate the witnesses’ credibility. See United States v. Christian, 786 F.2d 203, 214 (6th Cir. 1986). Santos argues that the limiting instruction regarding Agent Lawson’s testimony was inadequate. There was no error. The limiting instruction specifically provided that the testimony was not for the truth of the matter asserted but for the context of the investigation. When cautionary instructions are given, a jury is presumed to have followed them. Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en banc). Santos also argues that in closing, the government vouched for the cooperating witnesses’ credibility. The statements complained of do not constitute vouching. The prosecutor did not express his personal opinion as to the witnesses’ 3 credibility. The claims that the cooperating witnesses had accepted responsibility, went through a mental process before pleading guilty, and had knowledge of the conspiracy were all reasonable inferences based on their guilty pleas. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Santos further alleges that the prosecutor’s comments on his demeanor and motivations in his closing statement were prosecutorial misconduct. There was no misconduct. Prosecutors are allowed to tell jurors that they are to consider the defendant’s conduct, demeanor, and believability. United States v. Gooch, 506 F.3d 1156, 1160-61 (9th Cir. 2007). Santos also alleges that the government’s argument about immigrants was an improper emotional appeal. Although improper, the emotional appeal did not constitute plain error. See United States v. Weatherspoon, 410 F.3d 1142, 1150 (9th Cir. 2005). As discussed infra, the evidence is overwhelming, the case was not close, and there is no prejudice. See Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002). Santos also argues that the statement that the jury should force Santos to take responsibility for his actions was impermissible. Generally, the prosecution cannot urge the jury to undertake a law enforcement function. See Leavitt v. Arave, 383 F.3d 809, 834 (9th Cir. 2004) (per curiam). Santos, however, has plucked this 4 statement out of context. The very next sentence urges the jurors to look at all the evidence and compare it to the elements of the charged criminal activity. The jury was instructed that none of the arguments by the lawyers is evidence. Leavitt, 383 F.3d at 834. Additionally, the immigrant analogy and the enforcement argument were both mentioned only once and were not expounded upon at length, dulling any potential prejudice flowing from the statements. See United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). Finally, Santos argues that the lack of a limiting instruction on the guilty plea, the immigrant analogy, and the responsibility plea, cumulatively prejudiced his trial. In evaluating cumulative error, we conduct a harmless error analysis. United States v. Berry, 627 F.2d 193, 201 (9th Cir. 1980). Here any error was harmless. The evidence against Santos was overwhelming. Santos confessed to the crime. Numerous law enforcement agents testified as to his confession. The cooperating witnesses corroborated the confession as well as Santos’ participation in the conspiracy. The alleged error did not infect the entirety of their testimony. The jury heard ample evidence about the underlying conspiracy, not merely that the witnesses had plead guilty. Any errors in closing argument were isolated instances and were corrected by limiting instructions. The cumulative effect of the alleged errors was not prejudicial. 5 AFFIRMED. 6 

848 S.W.2d 951 (1993) 41 Ark.App. 33 HENDERSON STATE UNIVERSITY, Appellant, v. Joe SPADONI, Appellee. No. CA 92-423. Court of Appeals of Arkansas, Division II. February 24, 1993. *952 Ed McCorkle, Arkadelphia, for appellant. William Travis Mathis, Arkadelphia, for appellee. JENNINGS, Chief Judge. This is a school discipline case. The Clark County Chancery Court enjoined Henderson State University from suspending Joe Spadoni for the 1991-92 school year, holding that the university had denied Spadoni procedural due process. We reverse the chancellor's decision. On September 22, 1991, Joe Spadoni struck a fellow student, Bobby Cullen, in the face with a beer bottle. The bottle broke and Cullen was cut rather severely on the nose and the arm. The injury to the arm required twenty-four staples; the injury to the nose required twelve stitches and a subsequent skin graft. The incident took place in the street between the Henderson State University campus and the Phi Sigma Kappa fraternity house, of which Spadoni was a member. Bobby Cullen was a member of Sigma Phi Epsilon Fraternity: the quarrel appears to have had its origin in inter-fraternity rivalry. There was conflicting evidence on whether Cullen struck Spadoni before the former was hit in the face with a bottle. On October 1, 1991, Spadoni was notified by Associate Dean Robert Neal that he had been suspended from school. In accordance with school procedure, Spadoni immediately exercised his right to appeal to the university disciplinary committee. A hearing was set for October 15, and before the hearing Spadoni was provided with the full text of all witnesses' statements. The committee was composed of four students and four faculty members. During the October 15 hearing, at which Spadoni was represented by an attorney, the committee heard the testimony of fourteen witnesses. After the four-hour hearing the committee voted six to zero with two abstentions to uphold the one year suspension. *953 Mr. Spadoni promptly filed suit in Clark County Chancery Court seeking an injunction to prohibit the suspension. After a hearing held on December 10, 1991, the chancellor held that Spadoni had been denied his rights to procedural due process and permanently enjoined Henderson State from suspending him. There is no question but that the Due Process Clause of the Fourteenth Amendment to the United States Constitution gives rights to a student who faces expulsion for misconduct at a tax-supported college or university. Dixon v. Alabama State Bd. ofEduc., 294 F.2d 150 (5th Cir.1961); see also Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Once it is determined that due process applies, the question remains what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). There is a general policy against intervention by the courts in matters best left to school authorities. "Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities." Goss v. Lopez, 419 U.S. at 578, 95 S.Ct. at 738, citing Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Fortman v. Texarkana Sch. Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974). A chancery court has no power to interfere with school district boards in the exercise of their discretion when directing the operation of the schools unless the boards clearly abuse their discretion. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). The burden is upon those charging such an abuse to prove it by clear and convincing evidence. Bowman, 294 Ark. at 71, 740 S.W.2d 909. Undoubtedly these general principles apply to disciplinary hearings for students at state supported universities and colleges. What procedural safeguards then are required in this context by the Due Process Clause? In Goss the Court said, "[T]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." 419 U.S. at 578, 95 S.Ct. at 738; Boykins v. Fairfield Bd. of Educ., 492 F.2d 697 (5th Cir.1974), cert, denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975). Flexibility and elbow room are to be preferred over specificity. Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir.1969), cert, denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970). Again in Goss, the Court said that a student facing suspension is entitled to, at the very minimum, "some kind of notice and... some kind of hearing." 419 U.S. at 579, 95 S.Ct. at 738. See also University of Houston v. Sabeti, 676 S.W.2d 685 (Tex. Ct.App.1984) (holding basic elements of due process are notice and a right to be heard). A full-dress judicial hearing is not required. See Dixon v. Alabama State Bd. of Educ, 294 F.2d at 159. The court's order states in part: (3) That the Defendant, Henderson State University, failed to provide the Plaintiff due process in this case, and therefore, the preliminary injunction should be permanent and the University should allow the Plaintiff to continue his education at the University for the Fall term of 1991 and Spring term of 1992; (4) The Court, in finding that the Plaintiff was not afforded due process, makes the following specific findings: (a) That the hearing before the Disciplinary Committee did not afford the Plaintiff nor his witness the opportunity to give their entire testimony but was restricted to questions asked by the chairman; (b) That the committee met behind closed doors with Dean Neal for approximately forty-five minutes prior to the hearing. In effect, the prosecutor met with the judges behind closed doors which smacks with impropriety; (c) That George Staples, a member of Sigma Phi Epsilon Fraternity, served as an official member of the Disciplinary Committee. The committee as *954 well as Mr. Staples, knew that the prosecuting witness, Bobby Cullen, was a member of Sigma Phi Epsilon and that Mr. Staples had a conflict of interest and should have disqualified from hearing the case; (d) That Exhibit 14, a letter from faculty member Dr. John Crawford addressed to Dr. Charles Dunn dated October 16, 1991, is further evidence that he observed the injustice that took place at the committee hearing and reported this to Dr. Dunn prior to his decision; (e) That the suspension was not based upon the facts as set forth in this finding by the Court; (f) That the University investigation was incomplete and one sided which clearly indicates that due process was not afforded; (g) The University's action in this case and their actions involving athletic students indicates that the University has two standards that they apply in the same type of off campus activities. IT IS, THEREFORE, CONSIDERED AND ORDERED that the preliminary injunction is made permanent in that due process was denied to the Plaintiff and the University shall allow the Plaintiff to continue his education for the Fall term of 1991 and Spring term of 1992. The chancellor's first finding, that the hearing unduly restricted Mr. Spadoni from presenting his side of the case, is clearly against a preponderance of the evidence. At the hearing in chancery court Spadoni admitted that the faculty did not prohibit him from presenting any evidence he wanted them to hear. The finding is apparently based on testimony that Spadoni's witnesses were required to testify in response to questions instead of being permitted to tell whatever they wanted to say, but this is normal procedure even in a judicial proceeding. Similarly, the chancellor's finding that the suspension was "not based upon the facts" was clearly erroneous. The appellee admitted striking Bobby Cullen in the face with the beer bottle. His argument before the chancellor was that he was justified in doing so because Cullen hit him first. As stated previously, the evidence on this point was in conflict, but in any event this was a question of fact to be decided by the disciplinary committee. Likewise the court's findings that the investigation was "one sided and incomplete" and that "the University has two standards that they apply in the same type of off campus activities" are simply not supported by the record. The finding by the court that the disciplinary committee met with Dean Neal prior to the beginning of the hearing itself finds support in the evidence, but it is undisputed that the purpose of the meeting was to decide whether the hearing would be open or closed and whether the "Buckley Amendment" applied. In any event we cannot agree that the meeting resulted in a deprivation of the student's right to procedural due process. The chancellor's finding that committee member George Staples was a member of the same fraternity as Bobby Cullen is supported by the evidence, but again, we do not agree that this fact in and of itself constituted a denial of due process. The chancellor also found that a letter from Dr. John Crawford, the faculty advisor for Mr. Spadoni's fraternity, "Is further evidence that he [Crawford] observed the injustice that took place at the committee hearing." In the letter, Dr. Crawford objected to the closing of the hearing, expressed dissatisfaction with the "attitude" of the committee, and expressed the opinion that both Cullen and Spadoni should be punished equally. The letter will not support a finding of a denial of procedural due process. In the case at bar, Mr. Spadoni was provided reasonable notice of the specific charges against him. Before the disciplinary hearing he was provided with copies of the statements of witnesses. He was represented by counsel at the hearing. He was permitted to ask questions of the witnesses against him. He was permitted to speak in his own defense and to call *955 witnesses, including character witnesses, in his own behalf. We conclude that Mr. Spadoni was provided more than the "rudimentary elements of fair play" required by the Due Process Clause. See Dixon v. Alabama State Bd. of Educ, 294 F.2d at 159. We therefore reverse the chancellor's decision to the contrary. Reversed. PITTMAN and COOPER, JJ., agree.

216 F.Supp.2d 1133 (2001) GEOTHERMAL RESOURCE GROUP, INC., a Nevada Corp., Plaintiff, v. PUNA GEOTHERMAL VENTURE, a Hawaii general partnership, Defendant. Civ. No. 91000330ACK/KSC. United States District Court, D. Hawai`i. September 20, 2001. *1134 Diana L. Van De Car, Hilo, HI, for plaintiff. Patricia M. NaPier, Joachim P. Cox, Jill S.M. Baldemor, Goodsill, Anderson Quinn & Stifel, Honolulu, HI, for defendant. ORDER DENYING DEFENDANT'S MOTION TO DISMISS KAY, District Judge. BACKGROUND This lawsuit involves a contract dispute between Geothermal Resource Group, Inc. ("Plaintiff") and Puna Geothermal Venture ("Defendant"). Since the inception of Defendant's geothermal power plant in 1993 until this dispute arose in October of 1999, the parties have enjoyed a relatively harmonious working relationship.[1]See Complaint at ¶ 5, 17. The instant dispute arises from the following alleged circumstances. In January of 1999, Plaintiff orally agreed to provide "consulting drilling engineering services" in conjunction with the reworking of two injection wells and the drilling of a new production well at Defendant's geothermal power plant ("resource enhancement project"). See id. at ¶ 16. Approximately seven months into the project, in September of 1999, Defendants coerced Plaintiff into signing a written contract[2] ("Master Work Agreement"). See id. at ¶ 14. One month after Plaintiff signed the contract, in October of 1999, Defendants stopped paying for Plaintiff's services. See id. at ¶ 17. After a series of delays and incurring cost in excess of the original budget, Plaintiff completed work on the resource enhancement project in January of 2000. See id. On April 12, 2001, Plaintiff filed a Complaint in the Third Circuit Court of the State of Hawaii that set forth the following claims: (1) breach of the original consulting agreement, (2) breach of the master work agreement, (3) promissory estoppel, and (4) unjust enrichment. On June 20, 2001 Defendant removed the action to federal court.[3] On May 21, 2001 *1135 Defendant filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure ("F.R.C.P.") Rule 12(b)(6) arguing that Hawaii Revised Statutes ("H.R.S.") Section 444, governing contractors, precludes Plaintiff from seeking compensation for work completed on the resource enhancement project. Plaintiff filed an Opposition on August 28, 2001 to which Defendant replied on September 6, 2001. The Court heard oral argument on September 17, 2001. STANDARD I. MOTION TO DISMISS Under Rule 12(b)(6), in determining whether a motion to dismiss for failure to state a claim upon which relief can be granted, this Court must accept as true the plaintiff's allegations contained in the complaint and view them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir.1990); Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir. 1986). Thus, the complaint must stand unless it appears beyond doubt that the plaintiff has alleged no facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. Balistreri, 901 F.2d at 699; Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In essence, as the Ninth Circuit has stated, "[t]he issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims. Id. A motion under Rule 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the Complaint, such as lack of jurisdiction or the statute of limitations. 2A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, ¶ 12.07 at 12-68 to 12-69 (2d ed.1991 & supp. 1191-92) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)) (emphasis added). DISCUSSION Defendant asserts that H.R.S. Section 444 bars Plaintiff from pursuing this lawsuit because Plaintiff was an un-licensed "contractor" with respect to the resource enhancement project. Plaintiff does not allege having held any type of license. Instead, Plaintiff contends that it acted as a "professional engineer" such that H.R.S. Section 464 governs and Section 444 is inapplicable. The critical distinction between Section 444 (Contractors) and Section 464 (Professional *1136 Engineers) is that Section 444 includes a provision prohibiting un-licensed contractors from initiating a civil action to recover for work done. See Haw.Rev.Stat. § 444-22 (1998).[4] Section 464 does not include a like provision and arguably[5] would not preclude an un-licensed professional engineer from enforcing a valid contract. C.f. Wilson v. Kealakekua Ranch, Ltd., 57 Haw. 124, 132, 551 P.2d 525 (1976). Moreover, Section 444 specifically exempts "professional engineer[s] acting solely within [their] professional capacity." Thus, the issues presented to the Court are (1) whether, based on the pleadings,[6] Plaintiff's involvement in the resource enhancement project was that of a "contractor," as defined by H.R.S. Section 444, or (2) whether, and to what extent, his involvement was that of a "professional engineer" as defined by H.R.S. Section 464. A. H.R.S. Sections 444 and 464 H.R.S. Section 444-1 defines "contractor" as: any person who by oneself or through others offers to undertake, or holds one-self out as being able to undertake, or does undertake to alter, add to, subtract from, improve, enhance, or beautify any realty or construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, excavation, or other structure, project, development, or improvement, or do any part thereof, including the erection of scaffolding or other structures or works in connection therewith. Haw.Rev.Stat. § 444-1 (1998). Section 444-2 provides an exemption for "professional engineer[s] acting solely in [their] professional capacity." Although H.R.S. Section 444 does not define "professional capacity" or "professional engineer," according to Section 464, a "professional engineer" is: a person who holds oneself out as able to perform, or who does perform, any professional service such as consultation, investigation, evaluation, planning, design, or observation of construction or operation, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works, *1137 or projects, wherein the safeguarding of life, health, or property is concerned or involved, when such professional services requires the application of engineering principles and data. Haw.Rev.Stat. § 464-1 (1998). The Hawaii Administrative Rules, which intend to clarify and implement H.R.S. Section 464, further define the following terms: "consultation" is "meetings, discussions, written or verbal messages, reports, etc. involving scientific, aesthetic or technical information, facts, or advice for purposes of planning, designing, deciding, or locating construction or alteration of structures ... or projects"; "investigation" means "careful search, examination, inquiry or study to reveal or determine scientific, aesthetic, or technical information or facts for the planning, design, location, construction, or alteration of existing or proposed structures ... or projects"; "evaluation" is "careful search, examination, or inquiry to reveal, determine, or estimate the value, worth, merit, effect, efficiency, or practicability of planning, design, location, construction, or alteration of existing or proposed structures, buildings, works, processes, land areas, or projects"; "planning" means "careful search, examination, inquiry, study, and the formulation or execution of a statement, outline, draft, map, drawing, diagram, or picture arrangement, scheme, schedule, program, or procedure for locating, building, or altering existing or proposed buildings, structures ... or projects." "design" means "any procedure which conveys the plan ... and nature of construction or alteration of existing or proposed buildings, structures, works, machines, processes, land areas, or projects"; "observation of construction" means "making visits to the site by a licensed engineer ... to observe the progress and quality of the executed work and to determine, in general, if the work is proceeding in accordance with the contract documents. It is not required that they make exhaustive or continuous on-site observations to check the quality or quantity or work nor is it intended that the engineer ... be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the work." Haw.Admin.R. §§ 16-115-1, 16-115-2 (2001). The licensing requirement of both statutes serves to protect the public from unfit, incompetent, and dishonest professionals and contractors. See Wilson v. Kealakekua Ranch, Ltd., 57 Haw. 124, 130, 551 P.2d 525 (1976) (commenting on the purpose of H.R.S. Section 464); Jones v. Phillipson, 92 Hawaii 117, 125, 987 P.2d 1015 (Ct.App.1999) (commenting on the purpose of H.R.S. Section 444). B. Plaintiff's Involvement in the Project Throughout the Complaint, Plaintiff characterizes its services as "consulting engineering services," "consulting drilling services," "engineering services," and "professional and technical services." Complaint at ¶ 5, 6, 17, 31, 32, 36, 37, 38. Beyond these generalizations, Plaintiff alleges that its "function was to manage the drilling aspects of the `resource enhancement project.'" Id. at ¶ 7. Additionally, it appears that Plaintiff supervised a number of people that Defendant hired to partake in the construction of the wells, see id., and managed the refurbishment of a used drilling rig. Id. at ¶ 8. In certain instances, Plaintiff "retained technical and professional personnel to oversee the drilling operations at the project site." Id. at ¶ 17. It also appears that Defendant employed a *1138 drilling contractor and construction manager in connection with the resource enhancement project, see id. at ¶ 7 and 9, and that Plaintiff's duties included reporting cost and schedule projections to the construction manager. Id. at ¶ 11. C. Analysis Defendant contends that Plaintiff's role in the supervision and management of the resource enhancement project renders it a "contractor" as defined by H.R.S. Section 444.[7] In opposition, Plaintiff argues that viewing the allegations in the light most favorable to Plaintiff and accepting the allegations as true, as the Court must do in a Motion to Dismiss, the Complaint sufficiently establishes that Plaintiff acted within the capacity of a "professional engineer" and therefore is entitled to pursue this action. Plaintiff's involvement in the resource enhancement project appears to fall within H.R.S. Section 444-1's broad definition of "Contractor." Based on the allegations in the Complaint, Plaintiff not only undertook, but succeeded in reworking Defendant's injection wells and also contributed to the successful drilling of a new well. Complaint at ¶ 17. These actions would appear to constitute "adding to", "subtracting from" or "enhancing" realty and/or "altering" or "improving" a structure or project. Despite the foregoing, H.R.S. Section 444-2 specifically exempts professional engineers acting solely within their professional capacity.[8]See Haw.Rev.Stat. § 444-2(5). Thus, the question becomes whether Plaintiff's involvement in the resource enhancement project was that of a "professional engineer." The allegations in the Complaint set forth facts that when viewed in the light most favorable to Plaintiff establish that Plaintiff's role in the resource enhancement project may have been that of a "professional engineer." It appears from the Complaint that Plaintiff feasibly could have performed "professional services" such as "consultation," "investigation," "evaluation," "planning," "design," and "observation of construction." First, accepting the allegations as true, Plaintiff provided "consulting drilling services." See Complaint at ¶ 6. Second, it is not only plausible, but likely that re-work of the two existing wells and especially the production of a new well involved "investigation" (careful search and examination to determine scientific and technical information for planning and design purposes), "planning" (formulation of a schedule or procedure for altering projects), and "design" (procedure that conveys the plan and nature of the alteration of the project). See Haw.Admin.R. § 16-115-2. Third, Plaintiff "evaluated" in that it appraised Defendant's construction manager of cost *1139 projections associated with the resource enhancement project. See id. (stating that evaluation is "careful search to estimate the value, worth ... of alteration of existing or proposed structures ... or projects"). Last, it is feasible that Plaintiff's oversight and management of the drilling operations, see Complaint at ¶ 7, 17, constitutes "observation of construction." See Haw.Admin.R. § 16-115-2 (noting that observation of construction includes "observ[ation] [of] the progress and quality of the executed work...."). Therefore, Plaintiff's involvement in the resource enhancement project may have been that of a "professional engineer." H.R.S. Section 444 does not require professional engineers acting solely in their professional capacity to possess a contractor's license. H.R.S. Section 444 is silent as to the definition of "professional capacity."[9] However, H.R.S. Section 464 and the Hawaii Administrative Rules Section 16-115-2 provide guidance. See Section A. Section 464 instructs that "professional service" includes "consultation, investigation, evaluation, planning, design, or observation of construction." The Administrative Rules further define these terms. Based on the allegations in the Complaint, the Court cannot conclude with certainty that Plaintiff acted outside the scope of its "professional capacity." While the Court notes that the supervisory, management and procurement activities undertaken by Plaintiff do not fit squarely within the definitions of "consultation," "investigation," "evaluation," "planning," "design," and/or "observation of construction,"[10] viewing the allegations in the light most favorable to Plaintiff, the Court finds that under a given set of facts,[11] these activities may lie somewhere on the perimeter of what constitutes "professional services." Thus, the Court cannot conclude that Plaintiff acted outside the scope of its professional capacity with respect to the resource enhancement project. See De La Cruz, 582 F.2d at 48 (instructing that the Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of Plaintiff's claims). Because it is feasible that Plaintiff's actions constituted that of a "professional engineer acting solely within [its] professional capacity," it is not apparent that H.R.S. Section 444 bars Plaintiff from bringing this lawsuit. CONCLUSION Based on the foregoing, the Court DENIES Defendant's Motion to Dismiss. The Court recognizes that "[t]he purpose of [F.R.C.P.Rule 8 and] notice pleading is to `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" In re Marino, 37 F.3d 1354, 1357 (9th Cir.1994) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Plaintiff's Complaint adequately puts Defendant on notice that Plaintiff makes a claim to recover for the engineering services it provided. It is the *1140 role of the factfinder to determine what services provided by Plaintiff fall within the definition of "engineering" as opposed to "contractor"-type services. IT IS SO ORDERED. NOTES [1] As this is a Motion to Dismiss whereunder the Court must accept the allegations of the Complaint as true and view them in a light most favorable to Plaintiff, the Court in this background section is simply reciting some of the allegations in the Complaint. [2] Defendant contends that both parties had always contemplated formalizing the oral agreement and that the written contract merely documented and did not change the terms of the oral agreement that Plaintiff had performed for the previous seven months. [3] Defendant, a Hawaii general partnership, did not meet the removal requirements of 28 U.S.C. Section 1441(b) in that Defendant is a citizen of the state in which the complaint was filed. Although the Ninth Circuit does not appear to have addressed this issue directly, "the majority of courts have held that a defendant's residency in the forum state is a waivable procedural defect." Ravens Metal Products, Inc. v. Wilson, 816 F.Supp. 427, 428 (S.D.W.Va.) (citing In re Shell Oil Co., 932 F.2d 1518, 1522-23 (5th Cir.1991), cert. denied, 502 U.S. 1049, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992), Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., 903 F.2d 352, 358-60 (5th Cir.1990), Farm Constr. Serv., Inc. v. Fudge, 831 F.2d 18, 21-22 (1st Cir.1987) (further citations omitted)); see also Korea Exch. Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir.1995); Hurley v. Motor Coach Indus. Inc., 222 F.3d 377, 379-80 (7th Cir.2000), Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 704-06, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972). Thus, because 28 U.S.C. Section 1441(d) required Plaintiff to file a motion to remand within 30 days of removal to the federal district court, Plaintiff is deemed to have waived the procedural defect. [4] H.R.S. Section 444-22, Civil Action, provides: The failure of any person to comply with any provision of this chapter shall prevent such person from recovering for work done, or materials or supplies furnished, or both on a contract or on the basis of the reasonable value thereof in a civil action, if such person failed to obtain a license under this chapter prior to contracting for such work. Haw.Rev.Stat. § 444-22 (1998). [5] Defendant does not appear to argue that H.R.S. Section 464 would bar Plaintiff from seeking recovery for failure to obtain an engineering license. See Reply at 5 (noting that H.R.S. Section 464 affords Plaintiff "relative safety"). [6] Because this is a Motion to Dismiss, the Court will assess Plaintiff's involvement in the resource enhancement project based on the allegations in the Complaint. The Court declines to consider the affidavit of William Rickard, attached as exhibit A to Plaintiff's Opposition. Additionally, although the Court may consider the Master Work Agreement attached as Exhibit B to Defendant's Reply, see Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir.1998) (stating that "a district court ruling on a motion to dismiss may consider documents `whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading'") (alteration in original), because Plaintiff alleges that the Master Work Agreement was the product of coercion and duress, and because the Court is obliged to accept these allegations as true, the provisions of the Agreement will not be referenced. See Penn v. Transportation Lease Hawaii, Ltd., 2 Haw.App. 272, 275, 630 P.2d 646 (1981) (noting that "where a party's manifestation of assent is induced by an improper threat that leaves him no reasonable alternative, the contract is voidable by that party"). [7] More specifically, Defendant proffers that Plaintiff should be classified as a "general engineering contractor" or a "specialty contractor." However, because both classifications are predicated upon qualification as a "contractor," see Haw.Rev.Stat. § 447-7(b) and (d) (1995) (stating "[a] general engineering contractor is a contractor whose principal contracting business ..." and "[a] specialty contractor is a contractor whose operations ...") (emphasis added), to fall within the purview of H.R.S. Section 444, Plaintiff's involvement in the resource enhancement project must fit within Section 444-1's definition of "contractor." [8] At the hearing, Defendant acknowledged that Plaintiff can recover to the extent it rendered engineering services and that Plaintiff could amend the complaint to more definitively assert the engineering services provided. Additionally, though Defendant argued that Plaintiff acted as a contractor, it also conceded that Plaintiff provided some engineering services in the four months for which Defendant withheld payment. [9] H.R.S. Section 444 also does not define "professional engineer," however, because the term is defined by H.R.S. Section 464, the Court utilized Section 464's definition in its analysis. See Section C.2. [10] The Court is aware that the Hawaii Administrative Rules comment that engineers are not intended to "be responsible for construction means, methods, techniques, sequences, or procedures...." [11] For example, Plaintiff may establish that its managerial and supervisory duties involved determination of whether the work was proceeding in accordance with the contract documents and observation of the progress and quality of the executed work. Haw.Admin.R. § 16-115-2 (defining "observation of construction").

694 F.Supp. 854 (1988) UNITED STATES of America, Plaintiff, v. Humberto PEREZ, Defendant. No. 87-806-CR. United States District Court, S.D. Florida, Miami Division. August 4, 1988. *855 James McAdams, Asst. U.S. Atty., Miami, Fla., for plaintiff. Frank Rubino, Steven Kollin, Leonard Cooperman, Brett Panter, Stephen LeClair, Raymond Takiff, Terrence McWilliams, and David Russell, Miami, Fla., for defendant. ORDER AND MEMORANDUM OPINION SPELLMAN, District Judge. THIS CAUSE is before the Court upon the filing of a Report and Recommendation by United States Magistrate Linnea R. Johnson, on Plaintiff's Motion to Disqualify, and upon Defendant HUMBERTO PEREZ' objection to the Magistrate's Report. Accordingly, upon the Defendant's objections to the Magistrate's Report and Recommendation and upon the Court's de novo review of the record, the Court agrees with the Magistrate that Mr. Rubino be disqualified from further representation of the Defendant. It is therefore, ORDERED AND ADJUDGED that the Magistrate's Report and Recommendation be and the same is accepted, adopted and made a part hereof as this Court's Order and Memorandum Opinion. It is further ORDERED AND ADJUDGED that the Plaintiff's Motion to Disqualify be and the same is hereby GRANTED. Defendant's counsel, Frank Rubino, be and he is hereby disqualified to serve as counsel for HUMBERTO PEREZ, and said Defendant is hereby ORDERED to secure substitute counsel within thirty days from the entry of this Order. The trial date of January 1989 shall remain in full force and effect regardless of this Order. *856 REPORT AND RECOMMENDATION LINNEA R. JOHNSON, United States Magistrate. The UNITED STATES OF AMERICA has moved to disqualify Frank A. Rubino, Esquire, as counsel for Defendant, HUMBERTO PEREZ. The Honorable Eugene P. Spellman, United States District Judge, referred the Motion to Disqualify on June 2, 1988, to Linnea R. Johnson, United States Magistrate for Report and Recommendation. A hearing on the motion was held on June 28, 1988. Findings of Facts On May 16, 1988, the government moved to disqualify Mr. Rubino from representation of Defendant, HUMBERTO PEREZ. On June 13, 1988, the Defendant filed his Answer in Opposition with Supporting Affidavits. On May 27, 1988, the government filed its reply to Defendant's response. In further support of its position, the government filed two supporting affidavits in open court on June 28, 1988. By way of summary, the government's position is that Mr. Rubino should be disqualified from representation of the Defendant because Mr. Rubino had previously represented Nelson Bacallo, a former defendant, and now "star" government witness. This case, affectionately known as operation Sno White had its inception in an ill-fated state prosecution some eight years ago. There, Mr. Rubino represented HUMBERTO PEREZ. The remodeled case surfaced next in the District of Arizona in 1985. In the Arizona case which resulted in a mistrial and several appeals, Mr. Rubino represented Nelson Bacallo. MR. PEREZ was not a Defendant in the Arizona case. Prior to the instant indictment, Mr. Rubino represented ten (10) grand jury targets including Nelson Bacallo. In those early proceedings, the government expressed to Mr. Rubino its concern as to a conflict of interest. In November 1987, a federal grand jury, sitting in Miami, Florida, returned its first Sno White Indictment charging Nelson Bacallo. Shortly after his indictment, Mr. Bacallo requested of his attorney, Mr. Rubino, that he enter into negotiations with the government seeking leniency in exchange for cooperation. Mr. Rubino refused and withdrew as counsel of record. Mr. Bacallo obtained new counsel and quickly entered into a negotiated plea and has now risen to the level of "star" government witness. Through the testimony of Nelson Bacallo and other evidence, the government obtained the instant superseding indictment against, among others, HUMBERTO PEREZ. Upon the initial appearance of Defendant PEREZ, Mr. Rubino files his appearance of record. At the bond hearing held at the initial appearance, Mr. Rubino addressed the strength of the government's evidence. In so doing, Mr. Rubino characterized his former client, Nelson Bacallo, as a murderer and one not worthy of belief.[1] In a somewhat unrelated case known as the River Cops, the government sought to obtain the assistance of Regino Capiro through his wife, Anna Capiro. It was the position of the government that Regino Capiro could ultimately supply evidence which would be of assistance in gaining an indictment against Nelson Bacallo. During this effort, Mr. Rubino represented Anna Capiro. Since the arrest and cooperation of Nelson Bacallo, it has been determined that Mr. Rubino advised his former client, Bacallo, of the then ongoing efforts of the government to indict him. It is the position of the government, that actual conflict has been demonstrated with the potential for more conflict as this cause progresses. The government asserts that disqualification is necessary to preserve the integrity of the judicial system. It is the position of the Defendant that he is entitled to counsel of his choice under the sixth amendment; that he trusts no *857 other attorney; that he waives any conflict or effective assistance claim now or in the future. Defense counsel urges that the government's motives in this motion are to remove him as counsel so as to "flip" MR. PEREZ. As an alternative to this drastic relief, the counsel for Defendant suggests that he will not personally cross-examine the "key" government witness, Bacallo, but rather enlist independent co-counsel to handle that portion of the trial. Legal Analysis Disqualification orders are issued pursuant to the Court's inherent authority to take measures against unethical conduct occurring in connection with proceedings before it. The District Court finding will be reversed if clearly erroneous. United States v. Hobson, 672 F.2d 825 (11th Cir. 1982) cert. den. 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). A defendant's Sixth Amendment right to counsel of his choice is not absolute. It must give way where there is a serious risk that the public confidence in our judicial system may be undermined. Hobson, Id. at 827. Accord United States v. Garrett, 727 F.2d 1003 (11th Cir.1984), aff'd 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In determining whether or not to disqualify trial counsel, the Court must balance two sixth amendment rights: (1) the qualified right to be represented by counsel of one's choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest. Wheat v. United States, ___ U.S. ___, 108 S.Ct. 1692, 1696, 100 L.Ed.2d 140 (1988). In the instant case, PEREZ has filed an affidavit and given testimony affirmatively waiving his attorney's conflict of interest. Defendant urges that this waiver forecloses any further judicial inquiry. "No such flat rule can be deduced from the Sixth Amendment presumption in favor of counsel of choice." Wheat, 108 S.Ct. at 1697. The Court has an independent interest in ensuring that the integrity of the judicial system is preserved and that trials are conducted within the ethical standards to which we all adhere. Rule 44(c) Fed.R. Crim.P.; Cohen v. Hurley, 366 U.S. 118, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961). Accord Wheat, supra, 108 S.Ct. at 1697. Rule 16(C), Local Rules for the United States District Court, Southern District of Florida has adopted and approved the ABA Code of Professional Responsibility. Canon 4 requires an attorney to preserve the confidences and secrets of a client. Ethical consideration 4-5 states that, "a lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes." Canon 5 requires that a lawyer exercise independent professional judgment on behalf of a client. Ethical consideration 5-16 authorizes multiple representations only where both clients consent after full explanation of the implications of common representation. Herein, Nelson Bacallo has expressedly objected to the representation. If Mr. Bacallo had not objected, the integrity of the system might adequately have been protected by the public record made at the hearing on this motion. See United States v. Cunningham, 672 F.2d 1064 (2nd Cir.1982), cert. den. 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). Canon 9 requires that a lawyer should avoid even the appearance of professional impropriety. The Eleventh Circuit has established a two prong test for disqualification of an attorney under Canon 9. First, "there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur. Second, a Court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer's continued participation in a particular case." United States v. Garrett, 727 F.2d 1003 (11th Cir.1984), aff'd 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In the instant case, the government has demonstrated two occasions of identifiable impropriety and convincingly argues that further conflict and impropriety will undoubtedly occur when the government's *858 star witness, Bacallo, is subject to cross examination from his former attorney. Where, as in United States v. James, 708 F.2d 40 (2nd Cir.1983), the subject matter of the joint representation is the same, and as in United States v. O'Malley, 786 F.2d 786 (7th Cir.1986), the prior representation of the witness in the other litigation was extensive, the likelihood for further conflict is substantial and real. In successive representation, there must be a showing of "inconsistent interests." Smith v. White, 815 F.2d 1401 (11th Cir.1987) cert. den. ___ U.S. ___, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). Herein, the attorney's relationship with the witness was substantial and grew from the same criminal activity that is the subject of this indictment. The defendant has a right to conflict free, effective representation. The attorney's conduct must be guided by the Code of Professional Responsibility. Considering these factors, it is clear that there is serious potential for conflict that may impede the trial and reflect upon the integrity of the judicial system. The government has demonstrated that inconsistent interests are present in this successive representation. The suggested alternative of obtaining a pinch hitter to cross-examine Mr. Bacallo is uninviting. The strictures of the Code of Professional Responsibility does not support such an alternative. While Defendant maintains that his defense is not directed to an attack on Mr. Bacallo, it is clear that the witness is the lynch pin of the government's case against PEREZ. As the complexion of a case changes in trial so do defenses. Accordingly, it is the recommendation of the undersigned that the government's Motion to Disqualify be GRANTED. The parties will have ten (10) days from the date of this Report and Recommendation in which to serve and file written objections, if any, with The Honorable Eugene P. Spellman, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal factual findings contained herein. See LoConte v. Dugger, 847 F.2d 745, 749-80 (11th Cir.1988). RESPECTFULLY SUBMITTED in Chambers, at Miami, Dade County, Florida, this 20 day of July 1988. NOTES [1] The government disavows such knowledge and asserts that this disclosure must have been based upon attorney-client communication. Mr. Rubino proffers that the information came to him by a government informant not Bacallo.

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER OF ABATEMENT Appellate case name: Keith Allen Kupferer v. The State of Texas Appellate case number: 01-11-00619-CR Trial court case number: 1237989 Trial court: 338th District Court of Harris County, Texas Appellant Keith Allen Kupferer pled guilty to first degree murder with a deadly weapon and was sentenced to forty years in the Texas Department of Corrections. See TEX. PENAL CODE§ 29.03(a)(2) (West 2011). Before pleading guilty, Kupferer filed a motion to suppress his confession, which he contended was obtained in violation of the Fifth Amendment because police officers continued to question him after he unambiguously invoked his right to remain silent. After a suppression hearing, the trial court denied Kupferer’s motion and entered findings of fact and conclusions of law. In reviewing a ruling on a motion to suppress, we give almost total deference to a trial judge’s explicit findings of fact. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). The Court of Criminal Appeals has held that “upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings.” State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). These include “findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.” Id. This requirement assures that appellate resolution of the suppression issue is based on the reality of what happened at the trial court rather than on appellate assumption that may be entirely fictitious. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Cullen, 195 S.W.3d at 699). In some cases the trial court may make explicit findings it considers dispositive of the historical facts, but that the appellate court determines are insufficient to resolve the legal issues. See, e.g., Elias, 339 S.W.3d at 676–77. In Elias, the trial court granted a motion to suppress and entered written findings of fact and conclusions of law, and the court of appeals affirmed. The Court of Criminal Appeals concluded, based on the testimony and argument developed at the suppression hearing, that the trial court was on “notice that the question whether the [defendant] activated his turn signal within a hundred feet of the intersection was potentially dispositive of the legality of his initial detention,” and yet the trial court’s findings did not address this potentially dispositive issue. Id. at 676. Therefore, the Court held that the trial court erred to conclude that its findings of fact were legally dispositive of the motion to suppress, and that the court of appeals should have remanded the case to the trial court for entry of additional, specific findings of fact and conclusions of law with respect to this dispositive issue. Id. at 676– 77. Here, Kupferer contends that he invoked his Fifth Amendment right to remain silent by telling the Houston Police Department officer conducting the interview: “To tell you the truth, I really don’t want to talk about it, but I mean.” The record reflects that defense counsel specifically asked the trial court to make a finding on whether this was an invocation of his right to remain silent. In response, the trial court made only a finding regarding Kupferer’s waiver of his rights: “I find, after again the defendant began asking questions himself and then answering the questions of [the officer], that he did in fact waive his rights.” The trial court thus focused on the issue of waiver and made no finding as to whether Kupferer’s statement was an invocation of his right to remain silent. However, the issues of invocation and waiver are two distinct inquiries. See Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490 (1984). Based on the arguments and testimony developed at the suppression hearing and the explicit request by defense counsel for a finding on the issue, the trial court was on notice that the question of whether Kupferer unambiguously invoked his right to remain silent was potentially dispositive of its admissibility ruling, yet the trial court failed to make an express finding with respect to this issue. We need not presume, assume, or guess at what historical facts a trial court actually found when ruling on a motion to suppress. Mendoza, 365 S.W.3d at 670. The more prudent course is to abate this case and remand to the trial court for entry of more specific supplemental findings of fact and conclusions of law. See Mendoza, 365 S.W.3d at 672–73; Elias, 339 S.W.3d at 676–77. Accordingly, we abate the appeal and remand the case for entry of additional findings of fact and conclusions of law. The trial court is directed to make written findings on: (1) whether Kupferer unambiguously invoked his right to remain silent; (2) if so, whether Sergeant Chappell scrupulously honored that invocation; and (3) any other matters the trial court deems relevant or necessary to provide this court a basis for reviewing the ruling’s correctness. The written findings of the trial court shall be included in a supplemental clerk’s record and sent to this Court within 30 days of the date of this order. Kupferer’s supplemental brief, if any, will be due twenty days after the supplemental clerk’s record is filed. The State’s supplemental brief, if any, will be due twenty days after Kupferer’s supplemental brief is due, or is filed, whichever occurs earliest. It is so ORDERED. Judge’s signature: /s/ Justice Huddle  Acting individually  Acting for the Court Date: October 17, 2012 

651 P.2d 378 (1982) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Richard MADONNA, Defendant-Appellant. No. 79SA550. Supreme Court of Colorado, En Banc. August 9, 1982. *380 J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary E. Ricketson, Asst. Atty. Gen., Denver, for plaintiff-appellee. J. Gregory Walta, Colorado State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, Denver, for defendant-appellant. LEE, Justice. The defendant, Brian Richard Madonna, appeals his convictions on two counts of criminal attempt to obtain a narcotic drug by fraud and deceit, sections 18-2-101 and XX-XX-XXX, C.R.S.1973 (1978 Repl.Vol. 8 and 1978 Repl.Vol. 5), and one count of conspiracy to obtain a narcotic drug by fraud and deceit, sections 18-2-201 and XX-XX-XXX, *381 C.R.S.1973 (1978 Repl.Vol. 8 and 1978 Repl.Vol. 5).[1] He contends that the trial court erred in denying his motion to suppress an out-of-court photographic identification which he claims was illegal, and an in-court identification, which he claims was tainted by the improper photographic identification. He also claims that the court erred in admitting into evidence a transcript of a deceased witness' suppression testimony relating to the photographic identification. He challenges other evidentiary rulings regarding prior inconsistent statements and similar transactions. He contests the consecutive sentences ordered by the court.[2] Finally, he asserts he was improperly found guilty of contempt of court and improperly sentenced to a ninety day jail sentence to run consecutively to all other sentences. We affirm the convictions, but reverse the judgment of contempt and remand for further proceedings. I. The charges in this case arose from two separate transactions involving forged prescriptions for dilaudid, a narcotic drug. On September 21, 1977, a man who identified himself as a Denver physician telephoned the Westlake Pharmacy in Loveland, Colorado, and requested the pharmacist to fill a prescription for dilaudid. The pharmacist checked the Denver telephone directory for the doctor's name and learned that he was listed as an obstetrician and gynecologist. The pharmacist then attempted to verify the prescription by calling the doctor's office but was unable to speak with the doctor. Sometime later another call was received from a person claiming to be the doctor and the pharmacist agreed he would fill the prescription. After receiving this call, the pharmacist observed a man, who had been standing near the counter, leave the store. The pharmacist grew suspicious and followed the man out of the store in an effort to obtain a license plate number but was not successful. Another man was standing behind a telephone booth, outside the store, but he left when he saw the pharmacist. The next day, September 22, a man identified as Robert Hanneman entered the Alco Pharmacy in Loveland and presented a prescription for dilaudid. The pharmacist checked the prescription by telephoning the clinic listed on the prescription. After ascertaining that the doctor who purportedly issued the prescription was an obstetrician, the pharmacist telephoned the police. An officer arrived and arrested Hanneman, who told the officer that three men had paid him $10 to have the prescription filled. Several days after Hanneman's arrest, while he was being held in the Larimer County Jail, a Loveland police detective showed him photographs of the defendant and Rodney Robitz, taken by the Morgan County Sheriff's Department on September 17, 1977. Hanneman was asked if "these were the same parties involved with him in the incidents at Westlake and Alco [pharmacies]." Hanneman identified both men. Although he was certain of his photographic identification of Robitz, he was somewhat tentative in his identification of the defendant, because, as he explained, the second man had worn sunglasses the entire time Hanneman was with him. The defendant was thereafter arrested and charged.[3] Prior to trial the defendant moved to suppress Hanneman's photographic identification, *382 arguing that it was obtained in a manner so impermissibly suggestive as to violate due process of law. He also sought suppression of any in-court identification of the defendant, arguing that such identification would necessarily be the product of the illegal photographic identification. At the suppression hearing Hanneman testified that on September 21, 1977, three men had approached him at 19th and Larimer Streets in Denver and offered to pay him $10 for each prescription for dilaudid he was able to have filled. He agreed and they drove to Loveland where one of the men impersonated a doctor and telephoned the Westlake Pharmacy while another man went inside posing as a customer. Hanneman testified that the following day the same men picked him up in Denver and again drove to Loveland to attempt to pass a prescription at the Alco Drugstore. The man whom he knew as Brian, later identified as the defendant, wrote out a prescription in the front seat of the vehicle. Hanneman took it into the drugstore to have it filled and was subsequently arrested. Hanneman testified that he had been with the defendant and Robitz for several hours on both September 21 and 22. Regarding the photographic identification he had made while confined in the Larimer County Jail, he stated that it had no influence on his present in-court identification of the defendant. The court denied the motion to suppress and admitted the in-court identification, ruling that it had not been tainted by the prior out-of-court identification. On the first day of trial the prosecution informed the court that Hanneman had died of cancer. The prosecution sought to offer into evidence a transcript of Hanneman's testimony at the suppression hearing. To prove the unavailability of the witness the prosecution offered into evidence a death certificate for "Robert R. Hennemann" and presented testimony from the officer who had arrested Hanneman to the effect that the date of birth and other personal data provided to him by Hanneman at the time of the arrest matched the information on the death certificate. The court ruled that Hanneman's death had been established and his suppression testimony would be admitted under the prior testimony exception to the hearsay rule. During the prosecution's case, Hanneman's suppression testimony, including that part relating to the photographic identification of the defendant and Robitz, was read to the jury. The prosecution's case also included evidence of another attempted drug purchase in Brush, Colorado on September 17, 1977. In this incident a taxi driver was paid $10 to present a prescription for dilaudid at a drugstore and then deliver the dilaudid to a person whom the driver later identified as the defendant. The taxi driver's arrival at the pharmacy was preceded by a telephone call from someone purporting to be the prescribing physician. The pharmacist became suspicious of the call and contacted a police officer who arrived on the scene. With the cooperation of the taxi driver the officer was able to arrest the defendant and Robitz shortly after the driver attempted to deliver the dilaudid to the defendant at a specified location. After the prosecution rested, defense counsel sought to impeach Hanneman's suppression testimony by offering into evidence, through the testimony of the arresting officer, Hanneman's custodial statements which allegedly were inconsistent with his former testimony. These statements related to the circumstances surrounding Hanneman's initial meeting of the defendant and his role during the incident at the Alco Pharmacy.[4] The court refused *383 to admit the statements on the ground that defense counsel was aware of the statements at the time of the suppression hearing but failed to utilize them to impeach Hanneman on that occasion. The jury found the defendant guilty of both counts of criminal attempt to obtain a narcotic drug by fraud and deceit and guilty of conspiracy to obtain a narcotic drug by fraud and deceit. The court sentenced the defendant to not less than four and not more than five years on each count, the sentences to run consecutively to each other. This appeal followed. II. The defendant claims that the court erred in denying his motion to suppress the out-of-court and in-court identification by Hanneman because the out-of court identification was so suggestive as to violate due process of law, U.S. Const. amend. XIV; Colo.Const. art. II, sec. 25, and the in-court identification was the product of that illegal identification. We conclude that Hanneman's in-court identification of the defendant was properly admitted during the trial. In addition, we hold that under the circumstances of this case, the admission of Hanneman's pre-trial photographic identification of the defendant was harmless error, and therefore does not require a new trial. A defendant is denied due process of law when an in-court identification is based on an out-of-court identification which is so unnecessarily suggestive as to render the in-court identification unreliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); People v. Mack, 638 P.2d 257 (Colo.1981). A pre-trial identification procedure that is so unnecessarily suggestive as to violate due process is inadmissible. E.g., Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, supra. When such a constitutional violation is established, an in-court identification by the witness is permissible only if the prosecution proves by clear and convincing evidence that the in-court identification is not the product of the unconstitutional procedure but, rather, is based upon an independent source, such as the witness' observations of the accused during the commission of the offense. E.g., Foster v. California, supra; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); People v. Horne, 619 P.2d 53 (Colo. 1980). In this case the court concluded that Hanneman's in-court identification of the defendant at the suppression hearing was not the product of the photographic identification of the defendant held at the Larimer County Jail.[5] Although the court did not *384 explicitly find the photographic identification to be unnecessarily suggestive, such is implicit in the court's ruling, and we do not disagree with that conclusion. The court did find that the in-court identification was based on an independent source—Hanneman's observations of the defendant during the two days the offenses were being committed.[6] From our review of the suppression testimony we are satisfied that there is clear and convincing evidence to support the court's conclusion. Since the in-court identification was not tainted by the photographic identification the admission of this testimony was proper. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In its suppression ruling the court noted the various suggestive elements involved in the out-of-court photographic identification. The evidence showed that only two photographs were shown to Hanneman, one of each of the two suspects in the case. There is no indication in the record of any emergency which made this type of photographic confrontation imperative and prohibited the police from utilizing a less suggestive procedure in determining the witness' ability to make an identification. Both photographs were police mug shots with each subject holding a large placard bearing an identification number, the date of September 17, 1977, and the words "Sheriff's Department Morgan County, Colorado." The officer conducting the identification asked Hanneman, who was then in jail for the same offense for which the suspects were being investigated, whether the men in the pictures were the ones involved with him in the incidents at the pharmacy, thus focusing the witness' attention on identifying the subjects in a specific criminal context. The method of conducting this identification was improper, since it tended to interject unnecessary risks of misidentification due to the suggestive circumstances, and it was error to allow admission of testimony regarding this identification. Stovall v. Denno, supra. Nonetheless, Hanneman's personal contact with and observation of the defendant for approximately sixteen hours over a period of two days and Hanneman's participation in the commission of the crimes in concert with the defendant and his confederates sufficiently support the reliability of Hanneman's in-court identification of the defendant. Thus, we conclude that under the facts of this case, the error in admission of the photographic identification into evidence was harmless beyond a reasonable doubt and does not require reversal of the conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Germany v. People, 198 Colo. 337, 599 P.2d 904 (1979). III. The defendant contends that the admission of Hanneman's suppression testimony violated his constitutional right to confrontation, U.S. Const. amend. VI; Colo.Const. art. II, sec. 16, because the prosecution did not establish Hanneman's unavailability at trial and the defendant was not accorded an adequate opportunity for full and effective *385 cross-examination at the suppression hearing. We reject these contentions. To satisfy the requirements of constitutional confrontation, a party offering a witness' former testimony must establish the present unavailability of the witness. Also, there must have been a sufficient opportunity for the accused to cross-examine the witness at the former hearing so as to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement." Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293, 301 (1972). "[T]he right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant's inability to give live testimony is in no way the fault of the State." California v. Green, 399 U.S. 149, 166, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489, 501 (1970). Here the prosecution presented evidence that Hanneman had died prior to trial. Although the spelling of Hanneman's name on the death certificate (Hennemann) was slightly different from the spelling he offered at the suppression hearing (Hanneman), the officer who arrested him on September 22, 1977 testified that he gave a date and place of birth identical to those entries on the death certificate. This evidence adequately supported the trial court's finding of unavailability.[7]Duran v. People, 156 Colo. 385, 399 P.2d 412 (1965). We also conclude that the defendant had an adequate opportunity for cross-examination at the suppression hearing so as to satisfy the other constitutional predicate for admissibility. Not only did the opportunity for cross-examination exist, but, in addition, defense counsel took full advantage of that opportunity. During the suppression hearing, defense counsel probed into Hanneman's ability to make an in-court identification of the defendant and further cross-examined him on his vision and drinking habits. Under these circumstances we are satisfied that the jury was provided with an adequate basis for evaluating the truth of Hanneman's suppression testimony. We hold that the admission of this former testimony into evidence did not violate the defendant's constitutional right of confrontation. Mancusi v. Stubbs, supra.[8] IV. The defendant argues that the court erred in rejecting evidence of Hanneman's statements made to the arresting officer on September 22, 1977, which he contends are inconsistent with those portions of his suppression testimony in which Hanneman described the circumstances of his initial encounter with the defendant and his own role in the attempt to pass the forged prescriptions. These statements are not entirely consistent with Hanneman's suppression testimony, see supra note 4, and they relate to material issues in this case. See, e.g., Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); C. McCormick, Evidence § 37 (1972). At the time of the trial the general rule was that such statements were not admissible unless the witness had been asked about the time and place and to whom the statement was made. See, e.g., Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967); Balltrip v. People, 157 Colo. 108, 401 *386 P.2d 259 (1965).[9] Defense counsel, although aware of the statements, failed to lay a proper foundation when he did not call Hanneman's attention to the statements at the suppression hearing and they were not offered into evidence at that time to provide the witness an opportunity to explain the apparent inconsistencies. Under the circumstances, we find no reversible error in the trial court's ruling on the admissibility of the prior statements. V. We next consider whether the court erred in admitting evidence of the defendant's participation in an attempt to obtain a narcotic drug by fraud and deceit on September 17, 1977 in Brush, Colorado. We find no error in the admission of this evidence. The Brush incident, in addition to being closely proximate in time, involved features markedly similar to the offense charged. In the Brush transaction there was a bogus telephone call from a "physician" to a pharmacist, a forged prescription for dilaudid and the solicitation of a stranger to pick up the prescription. This evidence establishes a modus operandi that is highly probative of the issue of identity. See, e.g., People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). The trial court adhered to the procedural standards of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), in admitting this evidence and we find no reversible error. Compare, C.R.E. 404(b); People v. Beasley, 43 Colo.App. 488, 608 P.2d 835 (1979). VI. The defendant next challenges the sentences ordered for his conviction of two counts of attempt to obtain a narcotic drug and one count of conspiracy.[10] The defendant was sentenced to three consecutive terms of four to five years for the class 5 felony convictions. The defendant argues that he was entitled to indeterminate sentencing with no minimum term, that he was unfairly sentenced to near-maximum terms without a showing of aggravating factors, and that it was an abuse of the trial court's discretion to order that the respective sentences be served consecutively. Pursuant to section 16-11-101, C.R.S. 1973 (1978 Repl.Vol. 8), the defendant was entitled to be sentenced to an indeterminate term with no minimum unless at the time of the conviction he had a prior conviction for a felony which occurred within five years prior to the date the present offense was committed.[11] The attempt and conspiracy *387 offenses were committed on September 21 and 22, 1977; the jury verdict was returned on August 18, 1978; and the defendant was sentenced on December 6, 1978. At the sentencing hearing in December of 1978, evidence was introduced that on October 2, 1978 defendant Madonna had entered a guilty plea in Nebraska to a felony which had occurred on August 22, 1977. The defendant had not been sentenced on the Nebraska charge at the time he was sentenced on this case. The defendant argues that since he had not been sentenced, his Nebraska guilty plea did not amount to a "conviction" within the language of section 16-11-101, supra, n. 11, for consideration in this case. Thus, he argues, he was entitled to an indeterminate sentence for each class 5 felony. We find no merit in this argument. The statute does not require that the sentencing for the prior conviction antedate the sentencing for the later conviction. The statute instructs that if the defendant was previously convicted of an offense which occurred within five years prior to the date of the offense in the instant case, he is ineligible for indeterminate sentencing. Since it is undisputed that the defendant entered his guilty plea to the Nebraska charge prior to the date that he was sentenced in Colorado, the defendant was ineligible for an indeterminate sentence. We hold that the guilty plea in the Nebraska case constituted a conviction within the meaning of the statute. The defendant also argues that the imposition of three consecutive near-maximum terms was an abuse of discretion. See, e.g., People v. Edwards, 198 Colo. 52, 598 P.2d 126 (1979). Factors that he urges us to consider include the fact that the attempts and the conspiracy took place within a twenty-four hour period; that there were no violent or aggravating factors; that Madonna's record included a 1963 conviction for check forgery, a 1973 conviction for extortion, and the 1978 Nebraska conviction for feloniously entering a building; that Madonna was at the time of sentencing a married man, thirty-five years of age, and the father of four children. He argues that the trial court record does not support the conclusion that he was a hardened criminal without hope of rehabilitation and accordingly the consecutive near-maximum sentences were not warranted. The trial court has wide discretion in sentencing and absent a finding of abuse of discretion we will not substitute our judgment for that of the trial judge. See, e.g., People v. Trujillo, 627 P.2d 737 (Colo.1981). On appellate review of a sentencing decision, we may properly consider "the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based." Section 18-1-409(1), C.R.S.1973 (1978 Repl.Vol. 8). We are concerned with the sentencing goals of deterrence, punishment, rehabilitation, and protection of the public. See section 18-1-102(1)(b), C.R.S. 1973 (1978 Repl.Vol. 8); see also People v. Edwards, supra; People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). The pre-sentencing report revealed that the defendant had been arrested on numerous occasions for drug-related offenses prior to his arrest on these charges. This record, considered with his three prior felony convictions, does not lend support to the defendant's plea that he was a good candidate for rehabilitation. Moreover, the pre-sentencing report indicated that Madonna suffered from an acute drug problem and that his actions were often motivated by his need for drugs. Based upon this record, we cannot say that as a matter of law the trial court abused its discretion in fixing near-maximum terms for each conviction. People v. Valencia, 630 P.2d 85 (Colo.1981); People v. Colasanti, 626 P.2d 1136 (Colo.1981). In addition, we find no reversible error in the order imposing consecutive sentences. People v. Soper, 628 P.2d 604 (Colo. 1981). Although both attempt counts were related to a single conspiracy to obtain narcotics through fraud and deception, each *388 criminal act was sufficiently separate so as to be punishable consecutively. Each incident involved a different, although similar, occurrence, and the proof for each attempt was separate, involving different times, places, and evidence of the attempt. See, e.g., People v. Anderson, 187 Colo. 171, 529 P.2d 310 (1974). In addition, the conspiracy conviction was "a separate and distinct offense from that which is the object of the conspiracy, and as such may be punishable by a consecutive sentence." People v. Morgan, 189 Colo. 256, 258, 539 P.2d 130, 131 (1975); DeBose v. People, 175 Colo. 356, 488 P.2d 69 (1971); compare, People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978); section 18-1-402(3), C.R.S.1973 (1978 Repl.Vol. 8). Under the circumstances we find no abuse of the trial court's discretion in ordering the consecutive sentences. VII. The remaining issue we consider here is the validity of a sentence of ninety days for contempt of court which the defendant was ordered to serve because he failed to appear at his sentencing hearing on October 5, 1978. The defendant was free on bond and arrived at the sentencing hearing one hour late. The sentencing hearing was reset for one hour later, but the defendant failed to appear. The court ordered a citation to be issued to the defendant to show cause why he should not be held in contempt of court for his failure to appear. The citation was never served on the defendant. At the sentencing hearing held on December 6, 1978, the same judge imposed a ninety day jail term on the contempt charge, to run consecutively to all other sentences. The People have confessed error and agree that the procedural deficiencies require that the judgment of contempt be vacated. The failure of the defendant to appear as ordered by the court may constitute an indirect contempt of court. People v. Palmer, 42 Colo.App. 460, 595 P.2d 1060 (1979); Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973); Harthun v. District Court, 178 Colo. 118, 495 P.2d 539 (1972). As an indirect contempt, the procedure prescribed by C.R.C.P. 107(c) and (d) must be followed. Moreover, if the People pursue the contempt matter in this case on remand, then a different judge than the one who issued the citation should preside at the hearing. Ealy v. District Court, 189 Colo. 308, 539 P.2d 1244 (1975); Harthun v. District Court, supra. VIII. We have considered the other arguments for reversal raised by the defendant and find them to be without merit. We affirm the judgments of conviction, but reverse the judgment of contempt and remand for further proceedings in accordance with the views expressed in this opinion. DUBOFSKY, LOHR and QUINN, JJ., dissent. QUINN, Justice, dissenting: Although the majority determines that Hanneman's photographic identification of the defendant was unnecessarily suggestive and testimony regarding this identification should not have been admitted at the defendant's trial, it nevertheless concludes that the admission of this testimony was harmless error. With this conclusion I disagree. In my view the admission of evidence relating to the out-of-court identification cannot be considered harmless beyond a reasonable doubt and, under these circumstances, the defendant should be granted a new trial. In determining whether the admission of constitutionally tainted evidence is harmless, the critical inquiry is whether the prosecution, as the beneficiary of the constitutional error, is able to establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 825, 828, 17 L.Ed.2d 705, 710 (1967); see also Germany v. People, 198 Colo. 337, 599 P.2d 904 (1979). The record in this case belies the notion that the admission of the tainted out-of-court identification *389 evidence was harmless error under the Chapman standard. The identification of the defendant as the author of the forged prescriptions was the critical issue at trial. Hanneman's suppression testimony placed the defendant at the scene of the offenses and directly implicated him in the crimes charged. The evidence relating to Hanneman's out-of-court photographic identification was used by the prosecution to bolster Hanneman's in-court identification of the defendant at the suppression hearing. Without the out-of-court identification evidence one can only speculate as to what verdicts the jury might have returned on the three counts. Considering the significance of the identification issue to this case, I am not convinced beyond a reasonable doubt that the admission of the unconstitutionally suggestive photographic identification did not contribute to the jury's verdict. That there might be evidence sufficient to support the conviction apart from the tainted out-of-court identification is not determinative of the harmless error issue. A new trial is the only appropriate remedy to cure the constitutional infirmity which occurred here. I am authorized to say that Justice DUBOFSKY and Justice LOHR join me in this dissent. NOTES [1] This appeal was originally filed in the court of appeals but was transferred to this court pursuant to sections 13-4-102(1)(b) and 13-4-110, C.R.S.1973. [2] One issue which we summarily dipose of here relates to the sufficiency of the evidence to support the convictions. When the properly admitted evidence is viewed as a whole and in a light most favorable to the prosecution, it is sufficient to support the convictions. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). [3] Rodney Robitz also was originally charged in the information along with the defendant. Robitz entered into a plea bargain and was not tried. Hanneman was charged with a misdemeanor offense but was not prosecuted and became a key prosecution witness. Apparently, the fourth man involved in the transactions was never arrested. [4] Defense counsel made an offer of proof, through the testimony of the arresting officer, with respect to the contents of the prior statement, as follows: "There were two statements altogether. The first one being that he was hitchhiking and that a man in a white Chevy picked him up, told him that he could make $10.00 if he got a prescription filled. They tried to get it filled in Fort Collins and the druggist said he didn't have the prescription. So, they tried to get it filled in Loveland and got picked up. The second statement given to me by Mr. Hanneman was that he was standing on the corner of 19th and Larimer Street on the 21st of September. This car stopped with three men in it. `They asked me if I wanted to make some money, so I went with—so I went with them. They said all I had to do was get a prescription filled and I would get $10.00. We went to Lyons and Estes Park. I got the prescription filled at the Rexall Drug. We went to the Westlake center. We didn't do anything. We went to Berthoud and got scared off. We then went to Longmont and got one filled at Sullivan's Drugs.' Those were the two statements given to me by Mr. Hanneman." [5] The court ruled as follows: "THE COURT: The question before the Court on the motion to suppress is whether the in court identification, whether it be this identification or all future court identifications, by Mr. Hanneman of the Defendant was tainted by the photo identification on September 26, 1977. "The [prosecution has] explained that the Court should consider certain factors; that the individual Mr. Hanneman now making the identification was not contemplated to be a witness. But, in the same light, the Court considers that the witness who has made the identification at that time was a possible Defendant in a criminal action and might well hope to have other individuals identified as the real culprits and might quickly identify others as being such individuals, seeing photos of such individuals as well as markings that the individuals had been arrested by some law enforcement agency. However, the witness at that time stated that while this appeared to be one of the individuals, a Brian, who was involved, he was not sure due to sunglasses, which adds credibility to his statement plus the fact that he was able to identify individuals in person much better than by photographs. The witness has explained that he has an independent recollection of the Defendant from several hours being spent with the Defendant on two separate days in September of 1977. "The Court finds that there's independent recollection of the Defendant and under the totality of all the circumstances weighed by the Court in this case that the photo identification did not in any way taint the identification by the witness, Mr. Hanneman, of the Defendant nor has the Defendant in any way been deprived of any of his constitutional rights to due process of law or to a fair trial. "The request for suppression of the in court identification of the Defendant by Mr. Hanneman will be denied." [6] Hanneman had many hours in the intimate company of the defendant in which to observe him. On September 21 he was picked up by the defendant and his confederates at about 10:00 o'clock in the morning and was with them that day for approximately twelve hours. The next day, September 22, Hanneman was with the defendant from 7:30 o'clock in the morning until he was arrested at the Alco Drugstore in Loveland at about 11:00 a.m. [7] Nothing in the record suggests any knowledge by the prosecution of "facts which probably would render [Hanneman] unavailable on the day of trial," thereby triggering "a duty to pursue means of preserving the witness' testimony." Flores v. People, 196 Colo. 565, 568, 593 P.2d 316, 319 (1979). [8] Our decision in People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979), does not require a different conclusion. Smith's rationale, precluding preliminary hearing testimony to be introduced at trial if the witness is unavailable, is based upon the limited purposes of a preliminary hearing as a screening device for unwarranted charges. Considering the broader purpose of suppression hearings which involve questions of credibility and fact-finding, we see no reason to extend the rationale of Smith to this factual setting. This is especially true where, as here, the witness was extensively cross-examined at the suppression hearing on the very matters for which the evidence is offered at trial. See also C.R.E. 804(b)(1), as amended effective July 1, 1981, which would also allow admission of this testimony. [9] C.R.E. 806, adopted after defendant's trial, provides as follows: "When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain." Compare, section 16-10-201(1)(a), C.R.S.1973. [10] We find no merit in the defendant's challenge of a special legislative call session in which the General Assembly acted to delay the effective date of House Bill No. 1589, a presumptive sentencing law. This issue has previously been decided by this court. People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980); see, e.g., People v. Lowery, Colo., 642 P.2d 515 (1982). [11] Section 16-11-101, C.R.S.1973, provides in part: "(b) ... In class 4 and class 5 felonies in which no mandatory minimum sentence is required, the court shall impose only a maximum sentence to imprisonment which shall be no more than the maximum sentence provided by law for violation of the statute involved and which shall be no less than one-third of the maximum sentence provided by law for violation of the statute involved...." * * * * * * "(d) A person who has been previously convicted of a felony in this state or in another jurisdiction, based upon an offense which occurred within five years prior to the date of the offense for which he is being sentenced, shall not be eligible for an indeterminate sentence, notwithstanding the institution to which he is sentenced ...." Though in effect at the time the defendant was sentenced, section (d) was repealed effective July 1, 1979.

172 F.3d 347 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Ronald Joseph CLAYTON, Defendant-Appellant-Cross-Appellee. No. 97-60712. United States Court of Appeals,Fifth Circuit. April 12, 1999. Rebecca K. Troth, U.S. Dept. of Justice, Mark L. Gross, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, John R. Hailman, Calvin D. Buchanan, Oxford, MS, for United States. Michael R. Wall, J.P. Hughes, Oxford, MS, for Clayton. Appeals from the United States District Court for the Northern District of Mississippi. Before JOLLY, WIENER and PARKER, Circuit Judges. E. GRADY JOLLY, Circuit Judge: 1 Ronald Joseph Clayton, former Chief Deputy Sheriff of DeSoto County, Mississippi, stands convicted of violating the civil rights of an arrested woman by kicking her in the head. He also was convicted of making a false statement of material fact to the FBI when he denied the use of unreasonable force during the incident of arrest. On appeal, Clayton challenges the district court's denial of his motion for judgment of acquittal on the grounds that the government had failed to establish venue. Clayton also contends that the district court gave an improper modified Allen charge to the jury. Finally, Clayton challenges the sufficiency of the evidence supporting his convictions. 2 The government cross-appeals. It contends that the district court erred in failing to enhance Clayton's offense level by two levels, first, under § 3A1.3 and, second, under § 3C1.1 of the United States Sentencing Guidelines because Freeman was physically restrained (handcuffed) during the time she was kicked, and because Clayton obstructed the federal investigation of the incident by warning officers at the scene of the offense to keep silent about what they saw. 3 We affirm each of Clayton's convictions, and his sentence for making a false statement of material fact. We vacate Clayton's sentence with respect to the civil rights conviction and remand for resentencing. 4 * We do not retry a case in the appellate court. We therefore view the facts in the light most favorable to the verdict. We will very briefly state those facts. Clayton, during the drug-related arrests of Jaefis Totten and Jennifer Freeman on January 13, 1994, kicked Freeman in the head as she lay facedown and handcuffed. Clayton was also charged with kicking Totten and striking him with a police-issued flashlight. On March 9, 1995, during the course of a federal investigation of the incident conducted by the FBI, Clayton expressly denied kicking, striking, or using force against the pair. 5 Some two years later, on May 22, 1997, the grand jury indicted Clayton on one count of depriving Totten of his right to be secure from unreasonable force by one acting under the color of law,1 one count of depriving Freeman of her right to be secure from unreasonable force by one acting under the color of law, and one count of making a false statement of material fact to the FBI.2 6 The case was tried to a jury in July 1997. The jury, after five and one-half hours of deliberating, informed the district court that it was unable to reach a verdict on one of the charges. The court gave the jury a modified Allen charge, instructing it to keep deliberating. The jury returned the split verdict, now the subject of this appeal, forty-five minutes after the district court gave the charge. The jury found Clayton guilty of count 2, violating Freeman's civil rights and count 3, making a false statement of material fact to the FBI. The jury, however, acquitted Clayton of depriving Totten of his civil rights. 7 On October 15, 1997, the district court sentenced Clayton to twelve months and one day imprisonment for the civil rights conviction and twelve months and one day imprisonment for the false statement conviction. The district court ordered Clayton's sentences to be served concurrently. It also fined him a total of ten thousand dollars, five thousand for each conviction. The district court further ordered Clayton to be placed on supervised release after his imprisonment for a term of three years. Finally, in sentencing Clayton, the district court rejected the government's argument that under U.S.S.G. § 3A1.3 Clayton's offense level should be adjusted upward by two-levels because he assaulted Freeman while she was handcuffed. The district court also rejected the government's recommendation for the two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 on the grounds that Clayton obstructed the subsequent FBI investigation of the incident when, at the scene of the offense, he threatened the officers with termination unless they kept quiet about what they had seen. 8 On appeal, Clayton argues that the district court erred in denying his motion for judgment of acquittal because the government failed to prove that venue for the indicted offenses lay in the Northern Judicial District of Mississippi. Second, Clayton contends that the district court's modified Allen charge was prejudicial and coercive. Finally, Clayton challenges the sufficiency of the evidence. 9 On cross-appeal, the government contends that because Freeman was handcuffed when Clayton kicked her in the head, the district court erred in failing to enhance Clayton's offense level under the victim restraint adjustment, U.S.S.G. § 3A1.3. The government further contends that because Clayton threatened officers with termination if they reported the offense, the district court erred in refusing to apply the obstruction of justice adjustment, U.S.S.G. § 3C1.1. 10 After a careful review of the record, we are satisfied that the government adequately established venue of the charged offenses.3 We also find that the sufficiency of the evidence supports Clayton's convictions for violating Freeman's civil rights4 and for making a false statement of material fact the FBI.5 We therefore turn to address Clayton's remaining argument and the arguments raised by the government on cross-appeal. II 11 * Clayton argues that each of his convictions should be reversed because the district court's modified Allen charge6 was both prejudicial and coercive. Specifically, Clayton contends that the Allen charge was coercive because the district court alluded to sequestering the jury in the course of its deliberations. Clayton argues that the coercive effect of the district court's threat of sequestration is supported by the fact that the jury returned a split verdict against him in only forty-five minutes after receiving the instruction. Clayton further argues that the Allen charge was prejudicial because no reference was made to the government's burden of proving the charges against him beyond a reasonable doubt. Clayton therefore contends that the instruction encouraged the jury to accept a level of proof below a reasonable doubt. B 12 Because Clayton failed to object to the jury charge at trial, we review the district court's modified Allen charge for plain error, a very difficult standard to satisfy, indeed. Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1424 (5th Cir.1996) (en banc) (citations omitted). Under the plain error standard, forfeited errors are subject to review only where the errors are "obvious," "clear," or "readily apparent," and they affect the defendant's substantial rights. Id.; United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.1994) (en banc), abrogated in part by, Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). We will not exercise our discretion to correct the forfeited errors, however, unless they "seriously affect the fairness, integrity, or public reputation of the judicial proceeding." Calverley, 37 F.3d at 164 (citations omitted). Applying these standards to the record before us, we do not find that the district court erred, plain or otherwise, in giving the jury the modified Allen charge. 13 We permit district courts to give modified versions of the Allen charge, so long as the circumstances under which the district court gives the instruction are not coercive, and the content of the charge is not prejudicial. United States v. Heath, 970 F.2d 1397, 1406 (5th Cir.1992) (citations omitted). The district court specifically instructed the jury, in part: 14 [I]f I dismissed you for the night--it would be very difficult at this time to get accommodations for you. I know several of you live pretty far away, so that might be impractical but it is not impossible that you could go home for the night and come back tomorrow if you thought that would help, give you a fresh start tomorrow. 15 Because nothing in this record plausibly can be read to suggest that the district court coerced the jury to reach its verdict by threatening sequestration, we find no "clear" nor "obvious" error in the charge. Nor do we find the jury's return of a verdict after only a forty-five minute deliberation, in and of itself, to be proof that its verdict was coerced. Even under the more stringent abuse of discretion standard, we have approved Allen charges where the jury later deliberated for as short as twenty-five minutes. United States v. Scruggs, 583 F.2d 238, 241 (5th Cir.1978) (citations omitted). 16 We are also satisfied that the Allen charge was not prejudicial. The district court, in its final jury charge, admonished the jury at least eleven times that the government had the burden of proving Clayton's guilt beyond a reasonable doubt. The district court also took care in its final charge to define the term "reasonable doubt" and the phrase "proof beyond a reasonable doubt." Given the district court's constant emphasis on the reasonable doubt standard, the exclusion of the standard from the Allen charge could not have prejudiced the jury's understanding of the level of proof necessary to convict Clayton, so as to have affected his substantial rights--the outcome of his trial. 17 Even if we assumed plain error on the part of the district court, Clayton can not show that the modified Allen charge seriously affected the "fairness, integrity or public reputation" of his trial. In the light of the jury's discriminating verdict, whereby Clayton was acquitted of one of the civil rights charges, we cannot say that the district court pressured the jury into returning guilty verdicts on the remaining counts that it otherwise would not have reached. 18 In sum, Clayton has shown no plain error with respect to the district court's modified Allen charge. III 19 * We now turn to the government's cross-appeal. 20 The district court concluded that because Freeman had been lawfully restrained (handcuffed) during the course of a legitimate arrest--a restraint that was separate from and not done to facilitate the commission of the offense itself--the two-level victim restraint adjustment, U.S.S.G. § 3A1.3, was not applicable.7 21 In its cross-appeal, the government contends that the district court erred in refusing to apply the victim restraint adjustment to Clayton's offense level. The government argues that the district court's interpretation of U.S.S.G. § 3A1.3 is contrary to the plain language of the guideline, which provides no exception for the "lawful" restraint of the victim. The government further argues that application of the guideline was warranted because Freeman was handcuffed when Clayton kicked her in the head.B 22 The district court's interpretation of the sentencing guidelines is a conclusion of law that we review de novo. United States v. Lister, 53 F.3d 66, 69 (5th Cir.1995) (citations omitted). 23 First, we find that the district court's interpretation of U.S.S.G. § 3A1.3, although reasoned and well considered, is not supported by the letter of the guideline. Section 3A1.3 simply provides, with two exceptions that are inapplicable here, a two-level enhancement to the defendant's sentence if the victim was physically restrained in the course of the offense. U.S.S.G. § 3A1.3 ("if a victim was physically restrained in the course of the offense, increase by 2 levels"). Furthermore, we think that an underlying consideration in applying the guideline is that the physical restraint of a victim during an assault is an aggravating factor that intensifies the wilfulness, the inexcusableness and reprehensibleness of the crime and hence increases the culpability of the defendant. It is true, as the district court concluded, that Freeman was not handcuffed to facilitate the commission of the offense against her--Clayton's use of unreasonable force. Nevertheless, Clayton took advantage of the restraint Freeman was under as she lay on the ground, handcuffed. She posed not the slightest threat to him in this condition. She could not defend herself against an assault, and could not flee from harm. Because Clayton took advantage of this restraint and the particular vulnerability of the victim, it seems to us that both the letter and spirit of the guideline applies to impose an additional sentence on Clayton, beyond the one mandated for his use of unreasonable force. Especially in the light of the facts in this case, we agree with the Fourth Circuit that the lawfulness of the defendant's restraint of the victim at the time the unreasonable or excessive force occurs is not a concern implicated by U.S.S.G. § 3A1.3. See United States v. Evans, 85 F.3d 617 (4th Cir.1996) (T ABLE, T EXT IN W ESTLAW, 1996 WL 233056) (rejecting argument U.S.S.G. § 3A1.3 enhancement inapplicable because handcuffing incidental to lawful arrest). 24 We therefore reverse the district court's ruling, vacate the sentence on count two, and remand for resentencing not inconsistent with this opinion. C 25 The government further argues that the district court erred in failing to add a two-level adjustment to Clayton's offense level for obstruction of justice under U.S.S.G. § 3C1.1, on the grounds that Clayton threatened the witnesses prior to the federal investigation of his civil rights offenses. 26 The government argues that at the scene of the January 13, 1994 arrests, Clayton warned several officers that they did not see anything and that if he had to worry about them telling what they saw, he did not need them working for him. These threats, the government says, deterred officers from coming forward with information to the FBI, thereby obstructing the federal investigation. The government argues that the plain language of U.S.S.G. § 3C1.1, which speaks of conduct occurring during an investigation,8 does not actually require the attempt to obstruct justice to occur during the federal investigation. It is sufficient if Clayton's threats were made for the purpose of obstructing the administration of justice. Relying on United States v. Barry, 938 F.2d 1327, 1334 n. 8 (D.C.Cir.1991), the government argues that in 1990, the Sentencing Commission amended the commentary to U.S.S.G. § 3C1.1 to extend application of the guideline to conduct made unlawful by the federal obstruction of justice statutes, 18 U.S.C. §§ 1501-1516. This amendment, the government argues, "implies that the Sentencing Commission did not intend to bar consideration of attempts to obstruct the administration of justice solely because the obstruction occurred before the commencement of the investigation of the offense." Finally, although the government concedes that Fifth Circuit precedent limits application of U.S.S.G. § 3C1.1 to conduct occurring "during the investigation of the instant offense," see United States v. Luna, 909 F.2d 119, 120 (5th Cir.1990), United States v. Wilson, 904 F.2d 234, 236 (5th Cir.1990), the government contends that because the 1990 amendments post-date these cases, the 1990 amendments--not our cases--provide the authoritative interpretation of the guideline. D 27 We cannot agree with the government's proposed application of U.S.S.G. § 3C1.1. The plain language of U.S.S.G. § 3C1.1 (1994) provides that "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation ... of the instant offense, increase the offense level by 2 levels." (Emphasis added.) We do not dispute that the 1990 amendments extended the application of U.S.S.G. § 3C1.1 to conduct prohibited by the federal obstruction of justice statutes. See U.S.S.G. § 3C1.1, comment. (n.3(i))(1994) (noting enhancement applies to conduct prohibited by 18 U.S.C. §§ 1501-1516.)9 Indeed, we have previously held generally that conduct prohibited by 18 U.S.C. § 1512 triggers the application of U.S.S.G. 3C1.1. See United States v. Greer, 158 F.3d 228, 236-37 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1129, --- L.Ed.2d ---- (1999); United States v. Graves, 5 F.3d 1546, 1555 (5th Cir.1993), cert. denied, 511 U.S. 1081, 114 S.Ct. 1829, 128 L.Ed.2d 459 (1994); United States v. Pofahl, 990 F.2d 1456, 1482-83 (5th Cir.1993), cert. denied, 510 U.S. 996, 114 S.Ct. 560, 126 L.Ed.2d 460 (1993). Furthermore, we note specifically that § 1512(b)(3) criminalizes intimidation or threats made with the intent to "hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense...." Thus, it would seem that vis-a-vis application note 3(i), which incorporates by reference § 1512(b)(3), the guideline may be applied to conduct occurring before an investigation begins. 28 Consequently, we acknowledge that there does exist an apparent conflict between the plain language of U.S.S.G. § 3C1.1 and application note 3(i) that must be resolved. In resolving such inconsistencies, we treat commentary to a guideline as akin to a federal agency's interpretation of its own legislative rules, and it is therefore given controlling weight when interpreting and applying a particular guideline. Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The Supreme Court has made clear, however, that "if the commentary and the guideline it interprets are inconsistent, in that following one will ... violat[e] the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline." Id. at 43, 113 S.Ct. 1913 (citing 18 U.S.C. §§ 3553(a)(4), (b)); United States v. Ashburn, 20 F.3d 1336, 1340 (5th Cir.1994), cert. denied, 514 U.S. 1113, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995). See also United States v. Ortiz-Granados, 12 F.3d 39, 42 (5th Cir.1994) (citations omitted). 29 In any event, it seems to us the apparent conflict between U.S.S.G. § 3C1.1 and its 1990 commentary can be reconciled without declaring which must prevail over the other in this instance. In short, the commentary properly interpreted creates no conflict with the guideline. From the language of application note 3(i), see footnote 9, supra, at 354, it does not automatically follow that any and all conduct prohibited by the obstruction statutes requires the application of the guideline. Furthermore, the proper application of the commentary depends upon the limits--or breadth--of authority found in the guideline that the commentary modifies and seeks to clarify. Here, the guideline specifically limits applicable conduct to that which occurs during an investigation; application note 3(i) expressly provides that it is describing only a type of conduct that is subject to the guideline. We therefore conclude that conduct that violates 18 U.S.C. §§ 1501-1516 warrants application of U.S.S.G. 3C1.1 only when such conduct occurs, in the words of the guideline, during an investigation of the defendant's instant offense. We agree with the Tenth Circuit that the plain language of U.S.S.G. § 3C1.1 explicitly contemplates this temporal or nexus requirement. Cf. United States v. Gacnik, 50 F.3d 848, 852-53 (10th Cir.1995) (conduct undertaken prior to investigation does not fulfill nexus requirement enunciated in U.S.S.G. § 3C1.1) (citations omitted) and United States v. Lister, 53 F.3d 66, 71 (5th Cir.1995) ("obstruction of justice [adjustment] involves ... a temporal requirement...."). 30 We also find that our reading of § U.S.S.G. § 3C1.1 is entirely consistent with the Sentencing Commission's most recent clarification of the guideline--a clarification, we add, that takes precedent over prior conflicting judicial interpretations. Stinson, 508 U.S. at 46, 113 S.Ct. 1913.10 In 1998, the Sentencing Commission amended the commentary to U.S.S.G. 3C1.1 expressly to provide, inter alia, that "[the obstruction] adjustment applies if the defendant's obstructive conduct ... occurred during the course of the investigation, prosecution, or sentencing of the defendant's instant offense of conviction...."11 U.S.S.G. § 3C1.1, comment. (n.1) (1998). The purpose of the 1998 amendment to application note one was to clarify the point that we have made here, that U.S.S.G. § 3C1.1, indeed, includes a "temporal element." U.S. S ENTENCING G UIDELINES M ANUAL, Supplement to Appendix C, Amendment 581 (1998).12 To be sure, we are bound by this amended commentary, Stinson, 508 U.S. at 46, 113 S.Ct. 1913, and our authority to give it recognition retroactively is without question. United States v. Anderson, 5 F.3d 795, 802 (5th Cir.1993), cert. denied, 510 U.S. 1137, 114 S.Ct. 1118, 127 L.Ed.2d 428 (1994) (citations omitted). Furthermore, in the light of the 1998 amendments, our earlier cases interpreting U.S.S.G. § 3C1.1 remain binding authority. See Luna, 909 F.2d at 120, Wilson, 904 F.2d at 236. 31 Thus, in sum, we cannot say that Clayton's conduct justifies application of U.S.S.G. 3C1.1. Although it is clear that Clayton took immediate steps to suppress information concerning the incident by intimidating and threatening the officers at the scene, there is no evidence that Clayton continued these threats once the federal investigation of his case began. We therefore reject the government's argument for application of the obstruction of justice enhancement.13 IV 32 For the foregoing reasons, each of Clayton's judgments of conviction is affirmed. We AFFIRM the sentence with respect to count three, we VACATE Clayton's sentence with respect to count two, and REMAND for resentencing on that count in a manner not inconsistent with this opinion. 33 CONVICTIONS AFFIRMED; SENTENCE VACATED in part; REMANDED for resentencing. 34 WIENER, Circuit Judge, specially concurring. 35 I concur in the foregoing opinion, including its analysis of U.S.S.G. § 3C1.1 in sections IIIC and D and its conclusion that the sentence enhancement provisions of § 3C1.1 are inapplicable to obstructive conduct that occurs before the commencement of an investigation. Nevertheless, I write separately to express my consternation with what I perceive to be absurd results produced by that rule, for which perception the instant case could well be Exhibit I: A high ranking county law enforcement officer blatantly commits a federal crime in full view of several subordinate officers (who are presumably at-will employees) and immediately threatens them with loss of employment if they break the unwritten "code of silence" either by reporting the crime or responding truthfully to investigatory questions about the crime; yet because the perpetrator's obstructive conduct at the scene of the crime of necessity predates the commencement of any investigation, his sentence is immune from enhancement for obstruction of justice. 36 I reluctantly agree that this result is mandated by the Sentencing Commission's 1998 amendment of the commentary to § 3C1.1--specifically U.S.S.G. § 3C1.1, comment. (n.1) (1998)--and the explanation contained in U.S. Sentencing Guideline Manual, Supplement to Appendix C, Amendment 581 (1998) that "the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant's offensive conviction." I just cannot fathom why that should be! 37 The plain language of § 3C1.1 clearly does not command such a bizarre result under any known rules of interpretation. Whether examined under legal canons of statutory interpretation or plain English rules of syntax, the phrase "during the investigation" should be read to modify the immediately preceding phrase, "administration of justice," not the more remote clause ("the defendant willfully ... attempted to obstruct or impede"). When § 3C1.1 is given such a faithful reading, Clayton's warning to his deputies immediately after the completion of his criminal conduct was obviously and specifically intended to obstruct or impede the facet of the administration of justice that would take place during the investigation of his offense (and likely during prosecution and sentencing as well). Indeed, if the subject Guideline were meant to be applied as the Sentencing Commission now instructs through its 1998 amendments, why was it not originally written to read: 38 If the defendant, during the investigation, prosecution, or sentencing of the instant offense, willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice, increase the offense level by 2 levels. 39 Such a rearrangement of the various clauses and phrases of this directive would dispel any doubt and justify the inclusion of a "temporal element." As it stands, though, the plain wording of the Guideline should make the enhancement applicable to Clayton. Still, I concede that the 1998 amendments condemn the actual language of § 3C1.1 to the dustbin of careless drafting (or careless reading) by construing that wording to inoculate the obstructer's sentence from being enhanced when his obstructive conduct precedes the commencement of an investigation. 40 Inasmuch as I am aware of nothing in the legislative history of this Guideline that reflects an intent of Congress to exempt obstructive conduct like Clayton's solely on the basis of timing vis-a-vis the commencement of an investigation, I urge that the Sentencing Commission, or the Congress itself, either fix the problem or explain this aberration for the benefit of sentencing courts and those of us who must review their work on appeal. Please enlighten us all: Is the panel's analysis in the foregoing opinion simply wrong? If not, what policy dictates the Sentencing Commissions's interpretation which, I submit, produces such an anomalous result? 1 18 U.S.C. § 242 2 18 U.S.C. § 1001 3 Viewing all the evidence in the light most favorable to the government, we conclude that the government established that each of Clayton's charged offenses occurred in the Northern Judicial District of Mississippi. United States v. Leahy, 82 F.3d 624, 633 (5th Cir.1996) (citations omitted). There is no dispute that the acts of unreasonable force underlying the charges against Clayton occurred along Highway 178, eastbound. FBI Agent John Lavoie testified that Highway 178 is located in DeSoto County, Mississippi. Similarly, the conversation forming the basis of the false statement of material fact to the FBI also occurred in DeSoto County, specifically, at the DeSoto County Sheriff's Department. Finally, Clayton himself admitted at trial that DeSoto County, Mississippi, is located in the Northern Judicial District of Mississippi. In the light of this proof, it is unnecessary for us to elaborate further on the other evidence establishing venue in this case 4 The evidence is clearly sufficient to support the civil rights conviction. Three of the officers who witnessed Clayton kick Freeman in the back of the head testified that at the time of assault, Freeman lay on the ground facedown, that she did not resist arrest, and that she posed no threat of harm to the officers. Officer Steve Bierbrodt testified that Freeman was handcuffed during the offense. The three officers further agreed that Clayton's use of force in this manner was either unjustified or without cause. In finding Clayton guilty beyond a reasonable doubt, the jury must have credited this testimony over Clayton's explanation that he merely placed his foot between Freeman's shoulder blade and her neck, and that his actions were necessary to put her under control so that she could be handcuffed. We find this credibility determination well within the province of the jury to make, and it is one that we will not disturb on appeal 5 In support of Clayton's false statement conviction, FBI Agent Lavoie testified that in a March 9, 1995 interview, Clayton explicitly stated that he had not struck nor kicked Freeman during her January 13, 1994 arrest, and that in accordance with his hands-off policy, he did not interfere with his officers during the course of an arrest. There was sufficient evidence--noted above in footnote 4--that Clayton's statements to Agent Lavoie were false and material. The jury could rationally conclude that they were made with the specific intent to thwart the federal investigation into his use of unreasonable force. See United States v. Sidhu, 130 F.3d 644, 650 (5th Cir.1997) (citations omitted) 6 See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896) 7 U.S.S.G. § 3A1.3 (1994) provides that "if a victim was physically restrained in the course of the offense, increase by 2 levels." 8 U.S.S.G. § 3C1.1 (1994) provides that "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." 9 Application note 3 to U.S.S.G § 3C1.1 (1994) reads as follows: The following is a non-exhaustive list of examples of the type of conduct to which this enhancement applies ... (i) conduct prohibited by 18 U.S.C. §§ 1501-1516. This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct. (Emphasis added.) 10 We note that our interpretation of U.S.S.G. § 3C1.1 is inconsistent with other circuits who have previously addressed this issue. See United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.1993) (noting "obstruction of justice can be set in train before investigation begins"); United States v. Barry, 938 F.2d 1327, 1333-34 (D.C.Cir.1991) (applying U.S.S.G. § 3C1.1 enhancement to conduct occurring prior to investigation or prosecution of offense of conviction) 11 The 1998 Amendments were effective November 1, 1998 12 Amendment 581 provides in pertinent part: The amendment also clarifies the temporal element of the obstruction guideline (i.e., that the obstructive conduct must occur during the investigation, prosecution, or sentencing of the defendant's offense of conviction). U.S. S ENTENCING G UIDELINES M ANUAL, Supplement to Appendix C, Amendment 581 (1998). 13 In reaching this end we note that the current, modified version of application note 3(i) is found in application note 4(i) of the 1998 obstruction of justice enhancement, U.S.S.G. § 3C1.1 (1998). Application note 4(i) provides in part: The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies ... (i) other conduct prohibited by the obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§ 1510, 1511). This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct. U.S.S.G. § 3C1.1, comment. (n.4) (1998). Without question, application note 4(i) poses the same potential conflict with the plain language of U.S.S.G. § 3C1.1 as does note 3(i). We therefore emphasize that notwithstanding our repeated reference to the 1990 commentary and U.S.S.G. 3C1.1 (1994), our holding today is not limited in application to this dated version of the obstruction of justice enhancement.

05/01/2019 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 3, 2019 Session IN RE ANNA G. Appeal from the Chancery Court for Overton County No. 17-CV-52 Ronald Thurman, Chancellor No. M2018-01456-COA-R3-PT A mother’s parental rights were terminated based on the ground of abandonment by willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1- 102(1)(A)(i). The mother appealed, and we reverse the trial court’s judgment. Although the mother did not provide cash to the child’s guardians, she spent a portion of her disposable income that was not insignificant on the child during the relevant four-month period, thereby precluding the petitioners from proving abandonment by clear and convincing evidence. Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court Reversed ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined. Laurie A. Seber, Cookeville, Tennessee, for the appellant, Jaime W.G. Mark E. Tribble, Cookeville, Tennessee, for the appellees, Michael G. and Barbara G. Andrea McLerran Ayers, Livingston, Tennessee, Guardian Ad Litem. OPINION I. FACTUAL AND PROCEDURAL BACKGROUND In this parental termination case, the paternal grandfather and his wife (“Petitioners”) are seeking to terminate the parental rights of Anna G.’s mother, Jaime G. (“Mother”).1 Mother and Michael G. (“Father”) were teenagers when Anna was born in 1 Petitioners sought to terminate both the mother’s and father’s parental rights to Anna. The trial court terminated both parents’ rights, but the father did not appeal the termination of his rights. Because Mother is the sole appellant, we will not address the trial court’s termination of the father’s rights. July 2007. In November 2008, the Department of Children’s Services (“DCS” or “the Department”) filed a motion in the Juvenile Court for Putnam County to have Anna adjudicated dependent and neglected. The Department placed Anna with Petitioners when she was about eighteen months old. An adjudicatory and dispositional hearing took place in September 2009 during which Anna was determined to be dependent and neglected, and she remained in Petitioners’ custody. The Department moved to close Anna’s case in June 2010, stating that its involvement with the parents ceased in December 2009 and that the parents had not taken the steps necessary to have Anna returned to their care. The juvenile court filed an order on October 13, 2010, closing the case and ordering that Anna’s custody would remain with Petitioners. On August 8, 2017, Mother sought to reopen the juvenile court case by filing a petition seeking increased visitation with Anna, unsupervised contact, and a restoration of custody. The following day, on August 9, 2017, Petitioners filed a petition seeking to terminate Mother’s and Father’s parental rights.2 Petitioners asserted just one ground for termination: abandonment by willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). This case was tried over a period of three days at the end of May and beginning of June 2018. The trial court entered a decree terminating Mother’s and Father’s parental rights on July 11, 2018. It held that the Petitioners proved by clear and convincing evidence that “the parents have abandoned Anna [G.] pursuant to Tenn. Code Ann. § 36- 1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i)” because they willfully failed to contribute to Anna’s support or make reasonable payments towards her support for more than four (4) consecutive months prior to the filing of the termination petition. The court then determined that Petitioners established by clear and convincing evidence that terminating Mother’s and Father’s rights was in Anna’s best interest. Mother appeals the termination of her rights, arguing that the trial court erred in ruling that the evidence clearly and convincingly showed that (1) she abandoned Anna by failing to pay child support pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i) and that (2) terminating her parental rights was in Anna’s best interest. II. STANDARD OF REVIEW The Tennessee Supreme Court has described the appellate review of parental termination cases as follows: An appellate court reviews a trial court’s findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo 2 Mr. G., one of the petitioners, testified that he filed the termination petition in response to Mother’s and Father’s separate efforts to regain custody of Anna. -2-  on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court’s ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017). The termination of a parent’s rights is one of the most serious decisions courts make. As the United States Supreme Court has said, “[f]ew consequences of judicial action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S. 745, 787 (1982). “Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005), and of “severing forever all legal rights and obligations of the parent or guardian,” Tenn. Code Ann. § 36-1-113(l)(1). A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d at 521 (citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. Our legislature has listed the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists, Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). -3-  To terminate parental rights, a court must find by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). ‘“Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.”’ In re Carrington H., 483 S.W.3d at 522 (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)). “Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). As a reviewing court, we “must ‘distinguish between the specific facts found by the trial court and the combined weight of those facts.”’ In re Keri C., 384 S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must determine “whether the combined weight of the facts . . . clearly and convincingly establishes all of the elements required to terminate” a parent’s rights. Id. (citing In re Tiffany B., 228 S.W.3d at 156, and In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct. App. 2004)). “When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are ‘uniquely positioned to observe the demeanor and conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). Once a ground for termination is established by clear and convincing evidence, the trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005), and White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). “The best interests analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination.” Id. at 254. The existence of a ground for termination “does not inexorably lead to the conclusion that termination of a parent’s rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). III. ANALYSIS The only ground for termination that Petitioners asserted against Mother was abandonment by failure to pay support. See Tenn. Code Ann. §§ 36-1-113(g)(1) and Tenn. Code Ann. 36-1-102(1)(A)(i). Section 36-1-102(1)(A)(i) defines abandonment, in part, as a parent’s willful failure to support or make reasonable payments towards the support of a child for a period of four consecutive months immediately preceding the filing of a termination petition.3 A parent’s “support” or “reasonable payments toward 3 The statute defining “abandonment” was amended effective July 1, 2018; as amended, Tenn. Code Ann. § 36-1-102(1)(A) no longer includes the term “willful” in its definition of “abandonment.” Instead, Tenn. -4- such child’s support” must be “more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). “Token support” is defined as “support, under the circumstances of the individual case, [that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). The word “means” in this context refers to a parent’s income as well as his or her resources for the payment of debts. In re Adoption of Angela E., 402 S.W.3d 636, 641 (Tenn. 2013) (citing In re Z.J.S., No. M2002-02235- COA-R3-JV, 2003 WL 21266854, at *11 n.24 (Tenn. Ct. App. June 3, 2003)). “Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent.” In re Audrey S., 182 S.W.3d at 863. A parent’s failure to support is “willful” if he or she ‘“is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support.”’ Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). The willfulness of particular conduct depends upon the actor’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct. In re Audrey S., 182 S.W.3d at 864 (citations omitted). If a parent’s failure to support is out of his or her control, that parent’s failure will not be deemed “willful.” In re Adoption of Angela E., 402 S.W.3d at 640. Whether a parent has failed to support a child is a question of fact, but whether a parent’s failure to support a child was willful is a question of law. Id.; see also In re Alysia S., 460 S.W.3d 536, 566 (Tenn. Ct. App. 2014). As the parties filing the termination petition, Petitioners had the burden of proving by clear and convincing evidence that Mother abandoned Anna by willfully failing to support or to make reasonable payments towards her support during the relevant four- month period. In re Bernard T., 319 S.W.3d at 596; see Tenn. Code Ann. § 36-1- 102(1)(A)(i). Petitioners filed the petition to terminate Mother’s and Father’s parental rights on August 9, 2017. Thus, the relevant four-month period in this case runs from Pub. Ch. 875, § 2, codified at Tenn. Code Ann. § 36-1-102(1)(I), makes the absence of willfulness an affirmative defense to abandonment for failure to visit or support. To establish this defense, the parent (or guardian) must prove by a preponderance of the evidence that the failure to visit or support was not willful. Because this change is substantive rather than procedural or remedial, however, the amended statute does not apply retroactively to this case. See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004). Instead, this case is governed by the law in effect when the termination petition was filed in August 2017. -5- April 9 through August 8, 2017. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that statutory four- month period covers four months preceding day termination petition was filed and does not include day petition was filed). Petitioners were required to prove that Mother “had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse.” In re Adoption of Angela E., 402 S.W.3d at 641. At the time of trial, Anna had been living with Petitioners for about nine and a half years. Mother testified that she offered Petitioners cash at different times over the years to help out with Anna’s expenses, “but they were not receptive of it.” Mother testified as follows: Q. Did [the Petitioners] ever ask you for child support? A. No, they did not. Q. And did you try to give them child support? A. I have. Q. Okay. And was that over the course of Anna’s time with them or a certain year or - - A. It was over the course of it. I have offered on multiple occasions, it was within a certain time frame. It was just while they had her, obviously. But it wasn’t pinpointed to a specific year or anything. I don’t remember the exact dates or conversations that were had. At another point during the trial, Mother was asked when, specifically, she offered Petitioners cash, and she responded: It’s been various times throughout - - more - - not very recently because, you know, I got told no so many times that I just feel like I had stopped trying to give them cash and just went with other options. Mother explained that the “other options” she referred to included school supplies, which she purchased for Anna before the start of school, and clothes. Focusing on the four- month relevant time period, Mother testified that she purchased a charm bracelet and charms as a fourth grade graduation gift in May 2017, which cost “somewhere around $100.” Mother testified further as follows: A. I have bought her clothes and a backpack and some like nail polish and other little things for her birthday, clothes that she could wear to school and -6-  a new backpack that she had been asking for forever, so . . . Q. And do you remember the cost of the backpack? A. It was like $200 for the backpack and the matching wallet. .... Q. Okay. Anything else that you bought during that time period? A. I got her school supplies. I got her a baby car seat and stroller for her baby dolls. We did a mommy and me date night in June and – Q. You did a what? I’m sorry. A. A mommy and me date night in June of that year where I got the tickets and T-shirts and we got raffle tickets while we were there and some balloon animals, cotton candy-type things. And I made us grass skirts because it was a Hawaiian theme . . . . Q. Do you know how much that cost? A. Altogether, I know it was well over $100 because the shirts themselves were like $36 . . . . Mother also testified that she spent about $80 on school supplies in July. Mother provided copies of her receipts for the graduation gift, school supplies, backpack and wallet, toys, and the June date night, all of which totaled $539.71. Mother further testified that she planned Anna’s birthday party at Mellow Mushroom and Dave & Buster’s, which cost “about $55,” not including the cake Mother made, which cost “at least $30.” When asked whether she had ever given Anna cash, Mother answered that she gave Anna some gift cards from Kohl’s, Claire’s, iTunes, and Payless as part of her birthday present. She testified that the total cost of the gift cards was “somewhere around $100 to $120.” Mother explained that the purpose of some of the gift cards was for Anna to get herself clothes to wear to school. Mother estimated that she spent a total of “about $800” on Anna during the relevant four-month period. Petitioners do not dispute this figure. Mother testified that her net income was about $350 per week during the four- month period at issue. She earned between $7.50 and $8 per hour from April through part of July 2017, working for an automobile parts retail store. Mother worked for an insurance agency from sometime in June until the beginning of August 2017. The -7- evidence showed Mother earned approximately the same hourly wage working for the insurance company. Mother also had about $300 in a savings account. Mother testified that she was living with her grandfather during the relevant four- month period and that she was not responsible for paying any rent. She helped clean the house and spent between $25 and $50 monthly on cleaning supplies and approximately $250 for food each month. Mother had a car, and she spent $600 each month to cover the car payments and insurance during the relevant period. She testified that gas for the car cost her between $80 and $100 each month. When she was asked about other expenses she had, Mother replied that she had outstanding medical bills and student loans and that she was trying to work out payment plans for those expenses. She also testified that she paid her attorney $1,500 as a retainer and filing fee in July or August 2017 when she decided to file the petition in juvenile court to increase her visitation with Anna, have unsupervised visits, and possibly restore Anna’s custody to her. Michael G., one of the petitioners, testified that he never told Mother or Father that he did not want child support, and he denied that either of them ever offered him “any monetary cash support for their child.” Barbara G., the other petitioner, also testified that she had received no offers of monetary support from either Mother or Father. Petitioners did not dispute Mother’s testimony regarding the items and support she provided Anna or the money Mother spent for Anna’s birthday or for the “mommy and me date night” during the four-month period at issue. Mother and Father were married when Anna was younger, but they were not married at the time of trial. In contrast to Mother’s low earnings, Father’s annual income for 2017 was $91,720. The trial court seemed to consider Mother’s and Father’s income together in reaching the conclusion that their support of Anna during the relevant four- month period was “token.” The court wrote the following in its final decree: j. Both parents did provide evidence of providing some support during the time period. It mainly consisted around gifts at holidays and for the child’s birthday. The child’s birthday was during the four-month time frame in question. The parents did provide a birthday party and some clothing, but the Court finds said support was “token” under the Statute. k. The parents have not provided support to the caregivers for lights, gas, water, food, clothing during the vast majority of the child’s life, nor during the four month period in question. -8-  1. Both parents testified that they had offered to pay support, but neither parent testified that they offered any support to the Petitioners in the four-month period prior to filing this Petition. .... n. In weighing the issue of the parents’ offer to pay support against the Petitioners’ denial, the Court finds the testimony of Michael [G.]’s more credible in that he was having to work two jobs to make ends meet to pay for not only his other children, but the child in question in this case. In arguing that Mother abandoned Anna by willfully failing to pay support, Petitioners focus largely on the early years when Anna was living with them, asserting that Mother failed to provide diapers or formula for Anna. For purposes of proving the ground of abandonment by willfully failing to provide child support, however, the relevant time period is limited to the four months preceding the date when the termination petition was filed. Petitioners contend that Mr. G. was required to work two jobs to support Anna and his other children. Mr. G. testified that he has not worked a second job since 2012 or 2013, and Petitioners’ counsel conceded at oral argument that Mr. G. was not working two jobs during the relevant four-month time period. Thus, evidence of Mr. G.’s working two jobs is irrelevant for purposes of proving the ground of abandonment. Likewise, the court’s finding that the parents failed to contribute to Petitioners’ costs for “lights, gas, water, food, clothing during the vast majority of the child’s life” is irrelevant for purposes of establishing the ground of abandonment because only the four months before the termination petition was filed are at issue. There is no dispute that Mother did not give Petitioners cash to help support Anna during the relevant four-month period or offer to give them cash during this period. The parties dispute whether Mother offered Petitioners cash when Anna was younger, and the trial court credited Petitioners’ testimony over Mother’s on this issue. We defer to the trial court’s credibility determination with regard to this issue and conclude that Mother is unable to show her efforts to give Petitioners cash were thwarted by their refusal to accept her offers. See Kelly, 445 S.W.3d at 692 (stating appellate courts afford trial courts deference when reviewing issues hinging on witnesses’ credibility); In re Colton R., No. E2016-00807-COA-R3-PT, 2017 WL 499439, at *12 (Tenn. Ct. App. Feb. 7, 2017) (“It is well-settled in Tennessee that a parent who attempts to visit and maintain a relationship with the child, but is ‘thwarted by the acts of others and circumstances beyond his control,’ cannot be found to have willfully abandoned the child.”) (quoting In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). Petitioners rely on three cases to support their argument that Mother provided only token support to Anna. In the case In re Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078 (Tenn. Ct. App. July 23, 2018), the father testified that he had access -9- to $16,000 monthly and that he provided toys and snacks to his child during the relevant four-month time period. In re Gabriel B., 2018 WL 3532078, at *5. The father testified that he spent one to two hundred dollars on gifts and snacks for his child each time he saw him. Id. The case does not indicate that the father provided receipts for any of the alleged purchases, and the Department’s records of the father’s supervised visits did not support the father’s testimony that he brought gifts and snacks to each visit. Id. We affirmed the trial court’s conclusion that the few gifts the father provided his child constituted merely “token support” in light of the father’s reported level of income. Id. at *7. The second case the Petitioners rely on is In re Brantley B., No. M2016-02547- COA-R3-PT, 2017 WL 4877456 (Tenn. Ct. App. Oct. 30, 2017). In that case, the mother paid no child support during the relevant period but argued that the trial court “erred in failing to consider her testimony that she provided toys, books, a backpack, candy, and clothes, as well as gifts on various holidays” to counter any finding of willfulness. In re Brantley B., 2017 WL 4877456, at *4. The evidence revealed that money the mother earned that could have gone towards support of her child “was used to support her addiction.” Id. The opinion does not indicate that the mother provided receipts establishing the amounts she actually spent on the child, so it could not be determined whether the amount the mother spent on the child was meaningful under the circumstances. We affirmed the trial court’s holding that the mother’s support was no more than token support under the statute. Id. The final case the Petitioners rely upon is In re Keilyn O., No. M2017-02386- COA-R3-PT, 2018 WL 3208151 (Tenn. Ct. App. June 28, 2018). In that case, the mother had a monthly income of $800 and monthly expenses of approximately $150. In re Keilyn O., 2018 WL 3208151, at *7. The mother in that case did not pay any formal child support, but there was evidence that she bought her children school supplies, shoes, backpacks, groceries, and soap. Id. at *2. The trial court found that the mother purchased “an unspecified amount of groceries and school supplies” for her children, which it classified as “token.” Id. at *7. We found that the evidence did not preponderate against this finding. Id. As was the case in In re Gabriel B. and In re Brantley B., the opinion does not reflect that the mother introduced evidence of the amount of money she spent on the groceries and school supplies in the relevant four- month period, with the result that the trial court could not determine whether the mother’s contribution to the children’s support was meaningful under the circumstances. In the present case, the trial court found Mother had between $150 and $300 per month in disposable income that she could use to pay child support. The evidence showed that Mother spent approximately $800 on Anna over the relevant four-month period, which averages out to about $200 per month.4 Petitioners point to no case law 4 Mother introduced a child support worksheet as an exhibit at trial showing that her monthly child support - 10 - that states a parent is required to spend every disposable dollar on his or her child to avoid having his or her parental rights terminated, yet they contend Mother’s rights should be terminated because she did not spend more on Anna during the relevant period. We find this case is similar to In re Alysia S., 460 S.W.3d 536 (Tenn. Ct. App. 2014). In that case, the mother had not made a monetary child support payment in the four months preceding the filing of the termination petition. In re Alysia S., 460 S.W.3d at 565. The mother was not a high wage earner and had other financial obligations she was required to meet during the relevant time period, similar to Mother. Id. at 567-68. The mother testified that she sent her child “three to four outfits, shoes, socks, underwear, and vitamins” during the relevant time period, id. at 568, and the record showed that she brought gifts and snacks to a supervised visit during this same period, id. at 570. The trial court recognized that the mother did not make child support payments because she used her income to pay bills and because the foster parents had told her previously not to pay them child support. Id. at 568-69. Like Mother, who had legal bills to pay in an effort to increase her time with Anna, the mother in In re Alysia S. had legal bills to pay in an effort to defend a dependency and neglect petition. Id. at 571. The trial court terminated the mother’s parental rights, and we reversed that decision on appeal, writing: The evidence in this case falls short of meeting [the clear and convincing] standard. The evidence presented by [the petitioners] simply does not produce a firm belief or conviction, in our minds, that Mother, during the four month period, had the capacity to support Alysia, made no attempt to do so, and had no justifiable excuse for not doing so. We hold that the evidence in this case does not support a finding that Mother intentionally abandoned Alysia, and we therefore reverse the trial court’s finding that this ground for termination was proven by clear and convincing evidence. Id. at 572. Unlike the cases upon which Petitioners rely, Mother presented evidence of her wages and expenses during the relevant four-month period, and she presented proof of the purchases she made in support of Anna. No evidence was introduced that Mother used any of her wages on illegal drugs, as was the case in In re Brantley B., 2017 WL 4877456, at *4, or that she lived an extravagant lifestyle.5 Petitioners filed their termination petition one day after Mother filed a petition to obtain unsupervised time, and possibly custody, of Anna, and they admitted that they filed their petition in an effort to obligation according to the child support guidelines would have been $236 during the relevant time period. 5 The record shows that the only entertainment expense Mother had during the relevant time period was a $14 monthly subscription to Netflix. - 11 - prevent losing custody of Anna. Mother clearly wants to be a part of Anna’s life, and we find that the money Mother has spent in support of Anna during the relevant four-month period, which averages out to about one-quarter of her net income, does not qualify as “token” under the statute. See In re Z.J.S., 2003 WL 21266854, at *11 (“A parent’s financial support of his or her child will not be deemed to be ‘token’ unless it is ‘insignificant’ in light of the parent’s ‘means.’”) (quoting Tenn. Code Ann. § 36-1- 102(1)(B)). We conclude that the Petitioners have failed to show by clear and convincing evidence that Mother abandoned Anna within the meaning of Tenn. Code Ann. §§ 36-1- 113(g)(1) and 36-1-102(1)(A)(i) and reverse the trial court’s judgment terminating Mother’s parental rights to Anna.6 The parties should bear in mind that this opinion is limited to reversing the trial court’s decision terminating Mother’s rights to Anna and does not alter or affect the juvenile court’s October 13, 2010 decision placing Anna into Petitioner’s custody. IV. CONCLUSION The judgment of the trial court is reversed, and this matter is remanded with costs of appeal assessed against the appellees, Michael G. and Barbara G., for which execution may issue if necessary. ________________________________ ANDY D. BENNETT, JUDGE 6 Because we conclude that Petitioners failed to prove that Mother abandoned Anna, the best interests analysis does not come into play. - 12 - 

134 Ariz. 293 (1982) 655 P.2d 1345 James DAVIS, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Lou Regester Furniture Company, Respondent Employer, Industrial Indemnity Company, Respondent Carrier. No. 1 CA-IC 2725. Court of Appeals of Arizona, Division 1, Department C. November 23, 1982. *294 Dee Dee Samet, P.C. by Dee Dee Samet, Tucson, for petitioner. James A. Overholt, Acting Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent. Everett, Bury & Moeller, P.C. by Kenneth D. Everett, J. Michael Moeller, Tucson, for respondent employer and respondent carrier. OPINION JACOBSON, Presiding Judge. In this special action review of an Industrial Commission award, the dispositive issue is whether a routine hourly wage increase within a month before an industrial injury justifies using an expanded wage base to compute the average monthly wage. The administrative law judge used an expanded wage base for this reason. Because we conclude this was error, we set aside the award. The relevant procedural history is as follows. On February 11, 1981, the respondent carrier issued a notice of claim status establishing a $637.22 average monthly wage for the petitioner. The Industrial Commission thereafter independently established the same average monthly wage. See A.R.S. § 23-1061(F). The petitioner timely protested and hearings were held. The administrative law judge relied on the following facts to make his decision. On October 26, 1979, the petitioner began work for the respondent employer as a truck driver and furniture mover. He was paid $3.50 per hour. On February 1, 1980, he received a raise to $3.75 per hour. The following November 15, 1980, he received another raise to $4.00 per hour. He was injured at work ten days later. The award established a $650.26 average monthly wage for the petitioner. The dispositive findings were as follows: 11.... The Court of Appeals on two occasions has specifically rejected the projection of wages based on a wage increase received during the period of 30 days before the industrial injury. Floyd H. Hartshorn Plastering Co., Inc. v. Industrial Commission, 22 Ariz. App. 603, 529 P.2d 1197 (1974); and Floyd Hartshorn Plastering Co. v. Industrial Commission, 16 Ariz. App. 498, 494 P.2d 398 (1972). The Administrative Law Judge is to be given discretion in choosing a period of time which he feels leads to a just result in establishing the average monthly wage. Floyd Hartshorn Plastering Co., supra. 12. The applicant received a wage increase from $3.50 an hour to $3.75 per hour on February 1, 1980. The total wages earned from this date through the date of injury equals $6,392.24. This figure, divided by the total number of days since the wage increase on February 1, 1980, equals an average monthly wage of $650.26. After exhausting administrative remedies, the petitioner sought special action review *295 of this award. See A.R.S. § 23-951; 17A A.R.S. Special Actions, Rules of Procedure, rule 10. On appeal, the petitioner urges the court to permit the extrapolation of a wage increase received within the month before an industrial injury. He also argues that even if this extrapolation is impermissible, the wage base that the administrative law judge used unjustifiably diluted the wage increase. In Floyd Hartshorn Plastering Co., Inc. v. Industrial Commission, 22 Ariz. App. 603, 529 P.2d 1197 (1974) (Hartshorn II), this court set aside an award for an average monthly wage that extrapolated a wage increase. The petitioner has cited no authority for a contrary rule, and we have discovered none. See A. Larson, The Law of Workmen's Compensation, § 60.11 (1981). Because of the relationship between workmen's compensation premiums and the wage actually received, the proposed extrapolation is actuarially unsound. See, e.g., Brisendine v. Skousen Brothers, 48 Ariz. 416, 62 P.2d 326 (1936); Still v. Industrial Commission, 27 Ariz. App. 142, 551 P.2d 591 (1976). We therefore reject the petitioner's first argument. On the other hand, for the reasons that follow, we agree with the petitioner's second argument. We reject, however, his related contention that the correct wage base was from October 15 to November 25, 1980. A.R.S. § 23-1041 governs the average monthly wage determination. In relevant part it states: A. Every employee of an employer within the provisions of this chapter who is injured by accident arising out of and in the course of employment, or his dependents in event of his death, shall receive the compensation fixed in this chapter on the basis of such employee's average monthly wage at the time of injury. B. If the injured or killed employee has not been continuously employed for the period of thirty days immediately preceding the injury or death, the average monthly wage shall be such amount as, having regard to the previous wage of the injured employee or of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, reasonably represents the monthly earning capacity of the injured employee in the employment in which he is working at the time of the accident. * * * * * * D. The term `monthly wage' means the average wage paid during and over the month in which the employee is killed or injured. (Emphasis added.) Confusion has resulted from this combination of a compensation standard referring to the average monthly wage and a definition of monthly wage referring to wages paid during the month before the injury. See Floyd Hartshorn Plastering Co. v. Industrial Commission, 16 Ariz. App. 498, 494 P.2d 398 (1972) (Hartshorn I); United Metro v. Industrial Commission, 117 Ariz. 47, 570 P.2d 818 (App. 1977). Some cases have avoided the confusion by narrowly interpreting the definition to apply only to an employee who has worked for less than one month, while others have avoided it by interpreting the definition to apply to all employees unless special circumstances justified averaging the wages earned over a longer time. Compare, e.g., Powell v. Industrial Commission, 104 Ariz. 257, 451 P.2d 37 (1969) with e.g., Kurtz v. Matich, 96 Ariz. 41, 391 P.2d 594 (1964). Hartshorn I followed this more moderate approach because of its consistency with the statutes' history and the plain meaning of its terms. The court clarified the rule as follows: [T]he statute contemplates ... that the wages received during that thirty day period should constitute the basic wage for the determination of the average monthly wage. However, if the evidence *296 shows that for some reason said wages do not realistically reflect the claimant's demonstrated earning capacity, then the Commission should consider wages received over such a reasonable period in excess of thirty days as would allow the consideration of pertinent factors. 16 Ariz. App. at 505, 494 P.2d at 405. Accordingly, although the administrative law judge has broad discretion to fix a realistic wage base, this discretion is conditional: the evidence must justify using a wage base greater than one month. These justifications include, but are not limited to, intermittent employment, see United Metro v. Industrial Commission, supra; seasonal employment, see Pettis v. Industrial Commission, 91 Ariz. 298, 372 P.2d 72 (1962); or inflated wages received during the month before the injury, see Kennecott Copper Corp. v. Industrial Commission, 61 Ariz. 382, 149 P.2d 839 (1944). In the present case, the justification was the routine hourly wage increase the petitioner received during the month before the injury. Hartshorn I and Hartshorn II, relied upon to support the award, strongly indicate the contrary. In Hartshorn I, a routine wage increase received within the month before the injury was retroactively applied to past earnings; in Hartshorn II, this wage increase was extrapolated to a full month. Both calculations were set aside. In dictum, however, the court in each case stated that a routine wage increase did not justify using a wage base greater than one month. 22 Ariz. App. at 605, 529 P.2d at 1199; 16 Ariz. App. at 505, 494 P.2d at 405. We agree and hold that a routine wage increase alone does not justify using an expanded wage base. In such a case, A.R.S. § 23-1041 requires an average monthly wage calculation based on the wages actually received during the month before the injury. In this context, the respondents assert that the award is justified because the petitioner worked intermittently. The record belies this assertion. The respondent employer's accounting procedures, not intermittent employment, caused the apparent irregularity in the hours worked. The administrative law judge confirmed this during the hearing. We also reject the petitioner's argument that the correct wage base was from October 15 to November 25, 1980. This argument is inconsistent with our holding that the presumptive 30 day wage base applies to this case. For the reasons given above, the administrative law judge unjustifiably used an expanded wage base to calculate the petitioner's average monthly wage. We therefore must set aside the award. Award set aside. CONTRERAS and BROOKS, JJ., concur.

280 F.Supp.2d 1189 (2002) Darlene JESPERSEN, Plaintiff, v. HARRAH'S OPERATING COMPANY, INC., a Delaware Corporation Defendant. No. CV-N-01-0401-ECR(VPC). United States District Court, D. Nevada. October 22, 2002. Order Denying Reconsideration November 27, 2002. *1190 Jeffrey A. Dickerson, Kenneth J. Mckenna, Reno, NV, for Plaintiff. Veronica Arechederra-Hall, Littler Mendelson, PC, Las Vegas, NV, for Defendant. ORDER EDWARD C. REED, JR., District Judge. This action arises out of plaintiff Darlene Jespersen's ("Plaintiff") termination from employment with defendant Harrah's Operating Company ("Defendant"). Plaintiff filed this lawsuit, asserting that Defendant discriminated against her in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and alleging related state tort claims.[1] Defendant moved for summary judgment (# 20). Plaintiff opposed (# 22) and Defendant replied (# 23). BACKGROUND Plaintiff worked at Harrah's from 1979 until 2000. She was initially hired as a dishwasher, but was soon promoted. She worked as a bartender for the majority of her time at Harrah's. Defendant introduced a program in early 2000 to universally improve the performance of its beverage employees. As part of that program, Defendant issued its "Personal Appearance Standards" to govern how its employees should look. In March 2000, Plaintiff received the Personal Appearance Standards and committed to meeting those standards. In April 2000, Defendant revised the Personal Appearance Standards. One of the revisions was the addition of a makeup requirement. The standard differed for males and females. Specifically, the policy for females said: "[m]akeup ... must be worn and applied neatly in complimentary colors. Lip color must be worn at all times." On May 5, 2000, Plaintiff refused to sign-off on the standards because of the makeup requirement. She had worn makeup in the past and it had made her feel extremely uncomfortable, ill and violated. Defendant told her that compliance was mandatory. When Plaintiff still refused to comply, she was given the opportunity to view job openings, but did not apply for any of them. Defendant thereafter terminated Plaintiff's employment. After exhausting her administrative remedies, Plaintiff filed this action. STANDARD Summary judgment allows courts to avoid unnecessary trials where no material factual dispute exists. Northwest Motorcycle Ass'n v. U.S. Department of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The court must view the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and should award summary judgment where no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed.R.Civ.P. 50(a). Where reasonable minds could differ on the material facts at issue, however, summary judgment should not be granted. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue *1191 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form — namely, depositions, admissions, interrogatory answers, and affidavits — only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir.1988). In deciding whether to grant summary judgment, a court must take three necessary steps: (1) it must determine whether a fact is material; (2) it must determine whether there exists a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) it must consider that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Summary Judgement is not proper if material factual issues exist for trial. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999). As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Disputes over irrelevant or unnecessary facts should not be considered. Id. Where there is a complete failure of proof on an essential element of the nonmoving party's case, all other facts become immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is not a disfavored procedural shortcut, but rather an integral part of the federal rules as a whole. Id. ANALYSIS I. Evidentiary Objections As a preliminary matter, we address Plaintiff's objections to Defendant's evidence. Plaintiff asserts that the "affidavits" attached in support of Defendant's motion are deficient because they are not notarized. Had Defendant submitted unnotarized affidavits, this argument might be valid. However, the evidence at issue consists of declarations signed under penalty of perjury as required under 28 U.S.C. § 1746. Therefore, Plaintiff's objections are without merit. II. Title VII. Title VII makes it unlawful to discriminate against any individual on account of protected traits, including one's sex. 42 U.S.C. § 2000e-2(a)(1). To prove one's case under Title VII, a plaintiff may proceed on one of two recognized theories: disparate treatment or disparate impact. Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir.2000). Disparate treatment arises when an employer treats some people less favorably than others because of their sex; while disparate impact involves an employer's practice that is facially neutral but falls more harshly on one group than another. Id. (internal citations and quotation marks omitted). Disparate treatment is permissible under Title VII, but only it if is justified by a bona fide occupational qualification ("BFOQ"). Id. The facts in this case are largely undisputed. Defendant terminated Plaintiff because she refused to comply with Defendant's "Personal Appearance Standards" because they required her to wear makeup. The question we must answer is whether that policy, which required women to makeup, but prohibited men from doing the same, is discriminatory under Title VII on a theory of disparate treatment.[2] *1192 It is well established that grooming and appearance standards that have different but equal requirements for men and women are not violative of Title VII. See, e.g., Willingham v. Macon Tel. Publishing Co., 507 F.2d 1084 (5th Cir.1975)(restrictions on length of men's hair permissible where there is no restriction for women); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir.1974)(same); but see Carroll v. Talman Federal Savings & Loan Ass'n, 604 F.2d 1028 (7th Cir.1979) (requiring women to wear uniforms but allowing men to wear "customary business attire" found discriminatory and unequally burdensome because of natural tendency to assume uniformed women have less professional status than men in normal business clothes). Underlying these holdings is the premise that employer's sex-differentiated regulation of dress, cosmetic or grooming practices, which do not discriminate on the basis of immutable characteristics or intrude upon a person's fundamental rights, do not fall within the purview of Title VII. See Willingham, 507 F.2d at 1091; Baker, 507 F.2d at 896. For example, in Baker, the Ninth Circuit noted that Congress' objectives in passing Title VII was not meant to govern "hair styles or modes of dress over which the job applicant has complete control," but rather was meant to address "itself to characteristics which the applicant, otherwise qualified, had no power to alter." Baker, 507 F.2d at 897. Therefore, the fact that an employer may implement sex-differentiated appearance standards does not necessarily mean that such standards are unlawfully discriminatory. The key consideration to determine whether a sex-differentiated appearance standard is discriminatory is whether it is applied evenhandedly to both sexes. Frank, 216 F.3d at 854 (9th Cir.2000); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982). "An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment." Frank, 216 F.3d at 854. In Frank, the court noted that "an employer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms." Id. at 855. There, the court held that weight restrictions that held males to a large-framed standard but held females to a medium-framed standard was facially discriminatory because it imposed different and more burdensome weight standards on women. Id. (emphasis in original). Although we have yet to encounter a decision that deals directly with a policy that requires one sex to wear makeup and forbids the other from doing so, the Ninth Circuit's analysis in Frank is instructive. That is, given that Defendant's Personal Appearance Standards prescribed different requirements for men and women, the question is whether the sex-differentiated, standards imposed unequal burdens. Defendant argues that while its standards are not identical for each sex, one is not more burdensome than the other. Upon careful consideration, we agree. The policy at issue required women to wear makeup, but prohibited men from doing the same. Ex E, attached to Def.'s Motion. It allowed women to wear their *1193 hair up or down without a restriction on length, but prohibited men from having their hair reach below the tops of their shirt collars. Id. Men could not wear nail polish; women could wear nail polish, but only in certain colors. Id. Finally, each had to wear solid black leather shoes. Id. Plaintiff argues that imposing a requirement that female employees wear makeup and not imposing such a requirement on males demonstrates discrimination. Opp. at 9. As stated, to resolve this issue we must look at whether the burdens imposed are equal, not merely whether one sex is burdened. While we agree that some women may consider the requirement to wear makeup burdensome, we also think that some men may feel the same way with regard to the male makeup policy. Women must wear makeup. Men cannot. As Plaintiff states "in modern society, both men and women wear makeup." Id. Thus, prohibiting men from wearing makeup may be just as objectionable to some men as forcing women to wear makeup is to Plaintiff. In addition to the makeup provision, the policy forbids men from having the length of their hair fall below the tops of their shirt collars. Ex. E, attached to Def.'s Motion. There is no restriction on the length of women's hair. As Defendant points out, this requirement surely constitutes a burden on men that is not imposed on women. The other requirements are equally restrictive to both males and females. Because a fair reading of the policy indicates that it is applied "evenhandedly to employees of both sexes," Gerdom, 692 F.2d at 606, we conclude that this situation is more like the sex-differentiated standards that impose equal but different burdens on both sexes, than that discussed in Frank which imposed a different and heavier burden on women. Frank, 216 F.3d at 855. Moreover, the makeup requirement involves a mutable characteristic, which does not infringe on equal employment opportunities due to one's sex. Baker, 507 F.2d at 897. Therefore, it does not violate Title VII under a disparate treatment theory. We note that much of Plaintiff's authorities relate to the rule announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), in which the Supreme Court determined that employers cannot discriminate on the basis of sexual stereotyping. The Ninth Circuit recently applied Price Waterhouse to determine that sexual stereotyping by male co-employees was evidence of abuse for purposes of same-sex sexual harassment. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001). However, the court in Nichols made sure to limit Price Waterhouse's reach from the situation we confront here, stating "[o]ur decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards." Id. at 875 n. 7. As the Ninth Circuit expressly excepted grooming and appearance standards from the confines of the Price Waterhouse rule, we reject Plaintiff's argument that it applies here. In addition, Plaintiff's cursory claim of same-sex sexual harassment has no merit. Plaintiff provided no allegations in her complaint, nor evidence in support of her opposition, to show that she was subjected to sexual harassment of any sort. We are mindful that the true gravamen of Plaintiff's complaint appears to be that it is discriminatory to force a woman to wear makeup because she feels it is exploitive and perpetuates women's roles as sex objects. Plaintiff believes Defendant's policy negatively impacts women by portraying them in this stereotypical manner. *1194 She argues that Defendant should not treat women like "Barbie" dolls. Opp. at 9. Plaintiff is entitled to disagree with and object to the means by which Defendant promotes itself and its employees. Yet even if we agree that Defendant's policy may not be a step forward in freeing women from societal stereotypes, it does not convert Defendant's conduct into unlawful discrimination. See Alam v. Reno Hilton Corp., 819 F.Supp. 905, 913-14 (D.Nev. 1993) (finding that making decisions for hiring casino dealers based on a preference for "barbie doll" images is not discriminatory). Defendant's sex-differentiated appearance standards impose equal burdens on each sex, and, therefore, do not constitute disparate treatment under Title VII. Frank, 216 F.3d at 855. Accordingly, we need not reach the parties' arguments as to whether the requirement is a bona fide occupational qualification. Plaintiff's Title VII claim of disparate treatment fails. III. State Claims A. Intentional Infliction of Emotional Distress To establish a cause of action for intentional infliction of emotional distress, Plaintiff must establish the following: (1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation. Olivero v. Lowe, 116 Nev. 395, 995 P.2d 1023 (2000) (citations omitted). As to the first element, Plaintiff claims that "being fired for refusing to wear makeup is extreme and outrageous." Opp. at 14. We do not agree. "Termination of employees, even in the context of a discriminatory policy, does not in itself amount to extreme and outrageous conduct." Alam, 819 F.Supp. at 911. Moreover, as discussed, we do not find Defendant's policy discriminatory. Plaintiff has failed to establish a factual dispute as to the first element. In addition, a showing of severe or extreme emotional distress under the second element requires proof of physical injury or serious emotional distress causing physical injury. Olivero, 995 P.2d at 1026. Plaintiff does not dispute this requirement, but claims that such issues are a question for the jury. Although she testified that she felt extremely uncomfortable, ill and violated when she had worn makeup at work in the past, the only physical manifestation of the distress Plaintiff alleges is that she "felt ill." Jespersen Depo. at 138, Ex. A attached to Opp. We note that Plaintiff attested to feeling this way when she had worn makeup years before Defendant instituted the makeup requirement at issue. When Defendant implemented its Personal Appearance Standards, Plaintiff only felt "extremely uncomfortable." Id. at 78. There is no evidence of emotional distress causing her physical injury due to either Defendant's conduct regarding its implementation of the standards, or her refusal to comply with them. Even if we do consider this as evidence of Plaintiff's severe emotional distress, it is insufficient. As Defendant notes, we have previously held that evidence of feelings of "inferiority, headaches [and] irritability" are not enough to amount to severe emotional distress. Alam, 819 F.Supp. at 911. Therefore, Plaintiff's failure to present evidence to show either extreme or outrageous conduct or that she suffered physical injury or distress causing physical injury requires that we dismiss this claim as a matter of law. B. Negligent Supervision and Training A claim of negligent training or supervision requires a breach of a duty of care in *1195 training or supervising an employee. See Hall v. SSF, Inc., 112 Nev. 1384, 930 P.2d 94 (1996). Such claims have been discussed in Nevada law where a third party is harmed by an employee and it is charged that, had an employer exercised reasonable care in training or supervising an employee, the injury would not have occurred. See, e.g., Vinci v. Las Vegas Sands, Inc., 115 Nev. 243, 984 P.2d 750 (1999)(finding no evidence of employer's failure to use reasonable care in training or supervision in plaintiff's action for injuries sustained at casino); Hall, 930 P.2d at 99 (noting that an employer has a duty to ensure that employees are fit for their positions in action by injured patron of nightclub). Plaintiff has neither averred, nor demonstrated through evidence, that such a breach occurred. Instead, the evidence shows that Defendant implemented its policy of requiring makeup and Plaintiff chose not to follow it. As discussed, the policy is not discriminatory. In response to Defendant's contention, Plaintiff asserts that the policy was ambiguous and that Plaintiff thought as long as she was feeling and looking her best without makeup, she was complying with it. Opp. at 16. Therefore, she asserts she "has presented evidence that Defendant failed to properly train it's [sic] employees in dealing with this situation" and "that Defendant was negligent in supervising its employees ...." Id. at 16-17. Unfortunately, even if this were a valid argument, Plaintiff presents no evidence to support it. Pleadings alone are insufficient to raise an issue of disputed fact to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, this argument fails. Plaintiff has not put forth any evidence that Defendant was negligent in the way in which it trained or supervised its employees' implementation of the Personal Appearance Standards. As there is no evidence that Defendant breached any duty owed to Plaintiff, this claim must also fail. IT IS THEREFORE HEREBY ORDERED THAT, as addressed above, Defendant's Motion for Summary Judgment (# 20) is GRANTED. Summary judgment has therefore been granted as to all of Plaintiff's claims except for the claim of disparate impact. MINUTE ORDER IN CHAMBERS IT IS HEREBY ORDERED that the motion for reconsideration (# 26), filed by defendant on November 1, 2002, is GRANTED on the following basis. The original motion for summary judgment filed by defendant did not seek summary judgment on the basis of disparate impact, but only on the basis of disparate treatment. Nevertheless, the motion for reconsideration has been treated by the parties, in and of itself, as a motion for summary judgment on the issue of disparate impact. In the course of presentation and opposition to the motion for reconsideration, the parties have had a full opportunity to brief the issue of summary judgment as to disparate impact. The parties agree that there is no genuine issue of material fact. Whether the defendant's policy has disparate impact is an issue of law for the Court. We conclude that the policy does not have disparate impact as a matter of law. There is no evidence that it falls more harshly on one gender than the other. Therefore, we grant summary judgment on the issue of disparate impact in favor of defendant and against plaintiff. IT IS, THEREFORE, HEREBY ORDERED that defendant's motion (# 26) treated as a motion for partial summary judgment on the issue of disparate impact is GRANTED. *1196 All other issues in the action have previously been disposed of by our previous orders. IT IS, THEREFORE, HEREBY ORDERED that the Clerk shall enter summary judgment in favor of defendant and against plaintiff. NOTES [1] Plaintiff also included a claim of retaliation in her complaint, but stipulated to dismiss that claim in her opposition. Opp. at 13. [2] Defendant's motion attacks Plaintiff's gender discrimination claims, arguing that its policy is not discriminatory. While it is quite clear that these arguments address whether Plaintiff was subject to discrimination under a disparate treatment theory, it is not clear whether the motion is also intended to address Plaintiff's separate claim of disparate impact. See Comp. ¶¶ 11-14. Because we are unable to discern whether Defendant seeks to move for summary judgment on this separate claim, we do not reach it. Therefore, Plaintiff's disparate impact claim remains.

308 F.Supp.2d 671 (2004) Richard FRAZIER, Jr., Plaintiff, v. ANGEL MEDICAL CENTER, a corporation; Executive Risk Indemnity Insurance Co., Inc., Policy No. 8168-5451; Nelson P. Davis, M.D.; Bruce Portner, M.D.; Christeen Kaga, M.D.; Gilberto Robels, M.D.; Scott M. Petty, M.D.; Unknown and Unnamed John and Jane Does; Private Medical Corporation or Physicians Professional Corporation, their insurer and unknown entity to be named when known to Plaintiff, Defendants. No. CIV. 2:03CV25. United States District Court, W.D. North Carolina, Bryson City Division. March 16, 2004. *672 *673 *674 Richard Frazier, Jr., Atlanta, GA, pro se. Sharon L. Parker, Phillip T. Jackson, Dameron, Burgin & Parker, P.A., Marion, NC, James W. Williams, Jacqueline D. Grant, Roberts & Stevens, P.A., Isaac N. Northup, Derrick R. Bailey, Northup & McConnell, PLLC, Asheville, NC, Andrew C. Buckner, Womble, Carlyle, Sandridge and Rice, Winston-Salem, NC, George R. Ragsdale, Ragsdale Liggett, Raleigh, NC, for Defendant. MEMORANDUM AND ORDER OF DISMISSAL THORNBURG, District Judge. THIS MATTER is before the Court on the following motions: 1. the motion to strike and dismiss of Defendant Angel Medical Center (Angel), filed April 14, 2003, and amended April 17, 2003; 2. the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) of Defendant Nelson Parke Davis, M.D. (Dr. Davis), filed April 14, 2003; 3. the motion to dismiss pursuant to Rule 12(b)(6) of Defendants Christeen Kaga, M.D. (Dr. Kaga), Gilberto Robels, M.D. (Dr. Robels), and Scott M. Petty, M.D. (Dr. Petty), filed April 23, 2003; 4. the motion to dismiss of Defendant Bruce Portner, M.D. (Dr. Portner), filed April 23, 2003; 5. Dr. Davis' motion to dismiss the amended complaint, filed September 22, 2003; 6. Dr. Portner's motion to dismiss the amended complaint, filed September 22, 2003; 7. Angel's motion to disallow the appointment of power of attorney, filed September 23, 2003; 8. Angel's motion to dismiss the constitutional and state law claims, filed September 23, 2003;[1] 9. Angel's motion to dismiss the Emergency Medical Treatment and Active Labor Act (EMTALA) claim, filed September 23, 2003; 10. Angel's motion to dismiss the medical malpractice claim, filed September 23, 2003; 11. the motion of Drs. Kaga, Robels and Petty to dismiss the amended complaint, filed September 23, 2003, and amended October 9, 2003; 12. Plaintiff's motion requesting an extension of time to effect service, filed October 8, 2003; *675 13. the motion to dismiss of Defendant Executive Risk Indemnity Insurance Co., Inc. (Executive), filed October 17, 2003; and 14. Dr. Petty's motion for an order of dismissal, filed November 17, 2003. I. ALLEGATIONS OF THE COMPLAINT On August 14, 2003, Plaintiff filed his amended complaint which alleges that during the early morning hours of November 1, 2000, his car hit a telephone pole when he was involved in a high speed automobile chase while flecing law enforcement authorities. Complaint, filed August 14, 2003, at 4. Plaintiff was transported by ambulance to Angel where he was treated in the emergency room. Id. Plaintiff has attached copies of his medical records to his amended complaint. Those records show that Dr. Petty conducted radiology studies of the Plaintiff's left ankle, left femur, pelvis, chest and spine as a result of the accident on November 1, 2000. Dr. Petty diagnosed a severe fracture of the Plaintiff's left heel. It was noted that the Plaintiff had not been wearing his seatbelt at the time of the accident, at which time he was going approximately 60 miles per hour. He sustained lacerations to his forehead and nose, which were sutured, and he had a blood alcohol content of 113. Although there was some consideration of transferring the patient to another hospital for an orthopedic consultation, the hospital was unable to find one which would accept such a transfer. As a result, Dr. Kaga, who was the orthopedic surgeon on call that morning, treated the Plaintiff and noted the following in her progress notes: I talked to the patient at length regarding his calcaneal[2] injury. I explained that this is a very serious injury and very prone to chronic residual pain as well as post-traumatic arthritis even with good and adequate internal fixation. I explained that normally at his age, open reduction internal fixation would be recommended and still may be in the future once his swelling is down and risks of skin complication and infection are reduced. I recommended a bulky compressive dressing and splint for the lower extremity, elevation at all times above the heart, and then re-evaluation in five days this coming Monday to see if the swelling is improved. . . . . . The patient will be discharged from the emergency room. He is given written and verbal instructions which are carefully reviewed with him. He will keep the splint clear and dry. He will keep his left foot elevated above the heart at all times.... [H]e has an appointment this coming Monday, 11/06/00 at noon. We will re-evaluate him at that time and see if the swelling is improved. Progress Notes attached to Complaint (emphasis and footnote added). At the time the Plaintiff was released from the emergency room, he was taken into custody by the United States Marshal's Service and ultimately delivered to law enforcement authorities in Georgia. At the time this action was filed, the Plaintiff was a federal inmate in Atlanta, Georgia. Plaintiff raises the following claims: (1) negligence; (2) a violation of the EMTALA; (3) negligent hiring; (4) deliberate indifference to a serious medical need and a conspiracy among Angel and the law enforcement authorities to deprive him of adequate medical care; and (5) medical malpractice. In response to the Defendants' motions, the Plaintiff has acknowledged that Dr. Petty was erroneously joined as a defendant and has committed no malpractice. *676 II. STANDARD OF REVIEW " `A complaint should not be dismissed for failure to state a claim upon which relief may be granted unless after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'" De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002)). III. DISCUSSION It is first noted that the substantive elements of a medical malpractice action are determined by state law in a federal diversity action. Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.1982). North Carolina state law defines a medical malpractice action as "a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider." Doctors, nurses, and hospitals all qualify as health care providers. To prevail on a medical malpractice claim in North Carolina, a plaintiff must establish: (1) the applicable standard of care; (2) the defendant's breach of that standard; and (3) that the breach caused the plaintiff's injury. The standard of care for claims arising from medical treatment in North Carolina provides: the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. Because this statute does not abrogate common law duties, health care providers must also exercise reasonable care and diligence in providing services and use their best judgment in the treatment and care of patients. Wright v. United States, 280 F.Supp.2d 472, 477 (M.D.N.C.2003) (quoting N.C. Gen.Stat. §§ 90-21.11, 21.12) (other internal citations omitted). In North Carolina, a plaintiff's malpractice complaint must assert that "the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness" as required by the North Carolina Rules of Civil Procedure for medical malpractice actions. Moore v. Pitt County Mem'l Hosp., 139 F.Supp.2d 712, 713 (E.D.N.C.2001); Bass v. Durham County Hosp. Corp., 358 N.C. 144, 592 S.E.2d 687 (2004). Rule 9(j) of those rules provides that [a]ny complaint alleging medical malpractice by a health care provider ... in failing to comply with the applicable standard of care ... shall be dismissed unless: (1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care; . . . . . (3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur. N.C. Gen.Stat. § 1A-1, Rule 9. Thus, failure to include such a certification in the complaint will result in dismissal unless the complaint states a cause of action for *677 negligence pursuant to the doctrine of res ipsa loquitur. Bass, supra. Here, the Plaintiff admits that no certification has been submitted because he relies solely on the doctrine of res ipsa loquitur."[T]he pleadings have a binding effect as to the underlying theory of plaintiff's negligence claim." Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002). "Res ipsa loquitur claims are normally based on facts that permit an inference of defendant's negligence." Id., 572 S.E.2d at 103. The doctrine "permits a fact finder `to infer negligence from the mere occurrence of the accident itself' based on common knowledge or experience." Wright, 280 F.Supp.2d at 481 (quoting Diehl v. Koffer, 140 N.C.App. 375, 378, 536 S.E.2d 359, 362 (2000)). In medical malpractice actions, res ipsa loquitur applies if the injurious result rarely occurs standing alone and is not an inherent risk of the operation. The doctrine is reserved, however, "for those situations in which a physician's conduct is so grossly negligent or treatment is of such nature that the common knowledge of laypersons is sufficient to find [the essential elements]."... When treatment results in an injury to an area implicated in the surgical field, however, common knowledge does not support an inference of negligence in North Carolina. [R]es ipsa loquitur rarely is appropriate in medical malpractice actions. Courts have demonstrated an "awareness that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate." Id. (quoting Bailey v. Jones, 112 N.C.App. 380, 387, 435 S.E.2d 787, 792 (1993); Schaffner v. Cumberland County Hosp. Sys., Inc., 77 N.C.App. 689, 692, 336 S.E.2d 116, 118 (1985)) (other internal citations omitted). At issue here is whether the doctrine can be applied to a situation in which a treating specialist provides the initial emergency care and instructs the patient to return for follow-up care. "The answer to this question is obviously not a matter of common knowledge nor does it warrant the presumption created by applying the doctrine of res ipsa loquitur. Thus, under the general rule, plaintiff was required to produce expert testimony to establish a prima facie case on his medical malpractice claim." Warden v. United States, 861 F.Supp. 400, 403 (E.D.N.C.1993), aff'd, 25 F.3d 1042 (4th Cir.1994) (Decision to treat prisoner's condition as a non-emergency is not a matter susceptible of decision as a matter of common knowledge, thus, res ipsa loquitur does not apply.); Ballance v. Wentz, 22 N.C.App. 363, 368, 206 S.E.2d 734, 737 (1974) (Res ipsa loquitur cannot be relied on to determine whether good orthopedic practice was used in the treatment, care and supervision of the plaintiff.). There remains, however, the allegation of the complaint that Angel was negligent in the hiring of the doctors who treated the Plaintiff. "[C]orporate negligence actions brought against a hospital which pertain to clinical patient care constitute medical malpractice actions; however, where the corporate negligence claim arises out of policy, management or administrative decisions, ... the claim is instead derived from ordinary negligence principles." Estate of Waters v. Jarman, 144 N.C.App. 98, 103, 547 S.E.2d 142, 145 (2001). Where the claim is based on the failure of an emergency room physician to provide adequate care, the case is actually a medical malpractice case which requires a certification. Id., at 102, 547 S.E.2d at 145 (quoting Paris v. Kreitz, 75 N.C.App. 365, 331 S.E.2d 234 (1985)) ("`There is no evidence of a standard by which the Hospital's handling of the case could be judged by a jury.'"); Iodice v. United States, 289 F.3d 270, 276-77 (4th Cir.2002). Such is *678 the case here. The Plaintiff "failed to allege facts sufficient to state elements of such a claim. Even in these days of notice pleadings, a complaint asserting a negligence claim must disclose that each of the elements is present in order to be sufficient." Id., at 281 (internal quotations omitted). Although the complaint is couched in terms of negligent hiring, the only allegation is that the Plaintiff should have received different or additional treatment. That is a claim which sounds in malpractice, not ordinary negligence. Plaintiff also alleges that he was discharged prior to having his condition stabilized in violation of the EMTALA, 42 U.S.C. § 1395dd, et seq. The statute provides in pertinent part: In the case of a hospital that has a hospital emergency department, if any individual ... comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition ... exists. If any individual ... comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either — (A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility .... 42 U.S.C. § 1395dd(a), (b). The Plaintiff's medical records show that when Dr. Kaga learned the extent of the fracture of the Plaintiff's left heel, she initially considered transferring him to a facility which would have specialized treatment. The emergency room physician followed up on that suggestion; however, the hospital representative in Gainesville, Georgia, felt Angel was obligated to stabilize the Plaintiff prior to any transfer. Another hospital representative at Emory University Hospital in Atlanta, Georgia, felt that no orthopedic care was indicated at the time. When Dr. Kaga came out of surgery, she learned, however, that the emergency room physician had already had a surgery consultation and had been unsuccessful in finding a transfer facility. Dr. Kaga then discussed his injury with the Plaintiff and advised that surgery would most likely be necessary once the swelling had decreased. She scheduled a follow-up appointment after treating his foot. From this language in the medical records, the Plaintiff presumes that he was not stabilized within the meaning of the statute. EMTALA is a limited "anti-dumping" statute, not a federal malpractice statute. Its core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat. Numerous cases and the Act's legislative history confirm that Congress's sole purpose in enacting EMTALA was to deal with the problem of patients being turned away from emergency rooms for non-medical reasons. Once EMTALA has met that purpose of ensuring that a hospital undertakes stabilizing treatment for a patient who arrives with an emergency condition, the patient's care becomes the legal responsibility of the hospital and the treating physicians. And, the legal adequacy of that care is then governed not by EMTALA but by the state malpractice law that everyone *679 agrees EMTALA was not intended to preempt. Bryan v. Rectors and Visitors of Univ. of Virginia, 95 F.3d 349, 351 (4th Cir.1996) (internal citations omitted). Here, the Plaintiff claims he was not stabilized because he was not transferred. However, the statute defines stabilization as the provision of "such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual ...." Id., at 352 (quoting 42 U.S.C. § 1395dd(e)(3)(A)). It seems manifest ... that the stabilization requirement was intended to regulate the hospital's care of the patient only in the immediate aftermath of the act of admitting [Plaintiff] for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment. It cannot plausibly be interpreted to regulate medical and ethical decisions outside that narrow context. Id. The Plaintiff's condition was clearly stabilized and Dr. Kaga offered to provide long term treatment. The fact that the Plaintiff was unable to return for such treatment due to his incarceration does not mean that either Dr. Kaga or the hospital "abandoned" him. However, even if such were the case, abandonment is a state law tort, not a federal cause of action pursuant to the EMTALA. Id. The statute "`is not a substitute for state law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence.'" Trivette v. N.C. Baptist Hosp., Inc., 131 N.C.App. 73, 75, 507 S.E.2d 48, 50 (1998) (quoting Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir.1994)). Assuming arguendo that the Plaintiff's argument is that surgery should have been performed before his discharge from the emergency room, he still fares no better. The failure to provide surgical intervention at that time would be a matter of malpractice, not failure to stabilize. Id.; accord, Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139 (4th Cir.1996) (Treatment of head injury by x-rays and sutures sufficient despite the fact that additional tests would ultimately have saved the plaintiff's life.). "Stabilizing a patient does not mean treating the patient's emergency medical condition in full." Bergwall v. MGH Health Servs., Inc., 243 F.Supp.2d 364, 374 (D.Md.2002). Moreover, to the extent the Plaintiff has attempted to state an EMTALA claim against the physicians, no such claim exists because the statute provides an action for personal injury damages only against a hospital. Baber v. Hosp. Corp. of America, 977 F.2d 872 (4th Cir.1992); Bergwall, supra. The only claim remaining is the Plaintiff's claim for conspiracy to deprive him of medical care and deprivation thereof. That claim is based on the Plaintiff's allegation that law enforcement authorities preferred he be transferred to a Georgia hospital. However, since that did not occur, he has failed to state a claim. Nor would he prevail in any event. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251[ ] (1976), the Supreme Court held that prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of their prisoners. Pretrial detainees are entitled to at least the same protection under the Fourteenth Amendment as are convicted prisoners under the Eighth Amendment. Thus, deliberate indifference to the serious *680 medical needs of a pretrial detainee violates the due process clause. . . . . . Deliberate indifference is a very high standard — a showing of mere negligence will not meet it. Deliberate indifference requires a showing that the defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee's serious need for medical care. . . . . . Negligence, however, is insufficient to support a claim of a Fourteenth Amendment violation. To be sure, the [ ] complaint throws in words and phrases such as "deliberate indifference," "malicious," "outrageous," and "wanton" when describing the conduct of the [Defendants]. The presence, however, of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support a finding of deliberate indifference. Young v. City of Mount Ranier, 238 F.3d 567, 575-78 (4th Cir.2001) (internal quotations and citations omitted). The most that can be said of the Plaintiff's claims is that he has raised the specter of medical malpractice. That is a far cry from deliberately ignoring a serious need for medical care. To the contrary, the Plaintiff was provided with medical care. The fact that he did not return for follow-up treatment with Dr. Kaga is hardly a fact which can be used to argue that any Defendant was deliberately indifferent to his medical needs. "Deliberate indifference requires, at a minimum, that the defendant thought about the matter and chose to ignore it. It may appear when prison officials deny, delay, or intentionally interfere with medical treatment." Harden v. Green, 27 Fed.Appx. 173, 178, 2001 WL 1464468 (4th Cir.2001); Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir.1997) (The prisoner must show "that a prison official actually [knew] of and disregard[ed] an objectively serious condition, medical need, or risk of harm."). That is not the case here. Since there has been no showing of deliberate indifference to a serious medical need, the Plaintiff cannot make out a case of conspiracy. IV. ORDER IT IS, THEREFORE, ORDERED that Plaintiff's claims based on medical malpractice against the Defendants are hereby DISMISSED with prejudice; and IT IS FURTHER ORDERED that Plaintiff's remaining claims are hereby DISMISSED with prejudice; and IT IS FURTHER ORDERED that, to the extent other pending motions have not been specifically addressed by this Order, they are hereby DENIED as moot. NOTES [1] It is noted that Angel did not file one motion to dismiss which included all of the claims sought to be dismissed. Instead, Angel filed numerous motions to dismiss. This practice is not allowed in this Court and counsel is cautioned against such filings in the future. [2] Heel. Dorland's Illustrated Medical Dictionary (28th ed.1994).

270 U.S. 527 (1926) UNITED STATES v. NATIONAL EXCHANGE BANK OF BALTIMORE. No. 222. Supreme Court of United States. Argued March 16, 1926. Decided April 12, 1926. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. *528 Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States. Messrs. G. Ridgely Sappington and Charles G. Baldwin for defendant in error. *533 MR. JUSTICE HOLMES delivered the opinion of the Court. This is a suit brought by the United States to recover the difference between the amount to which a check paid by it had been fraudulently raised and the amount for which the check was drawn. The case was heard upon a demurrer to the declaration and the judgment was for the defendant both in the District Court and in the Circuit Court of Appeals, 1 Fed. (2d) 888. The facts alleged are as follows: A disbursing clerk drew a United States Veterans' Bureau check upon the Treasurer of the United States in favor of one Beck, for $47.50. After it was issued the check was changed so as to call for $4750. Beck endorsed it to a bank of South Carolina and received the amount of the altered check. That bank endorsed it "Pay to the order of Any Bank, Banker, or Trust Company. All prior endorsements guaranteed, June 3, 1922," negotiated it to the defendant, and received the same amount. The defendant endorsed the check "Received Payment Through the Baltimore Clearing House, Endorsements Guaranteed, June 5th, 1922," delivered it to and received the same amount from the Baltimore Branch of the Federal Reserve Bank of Richmond, the agent of the plaintiff, which forwarded the check to the Treasurer of the United States and was given credit for $4750. The Baltimore Branch had no notice of the fraudulent change. The Government argues that acceptance or payment of a draft or check although it vouches for the signature of the drawer does not vouch for the body of the instrument, Espy v. First National Bank of Cincinnati, 18 Wall. 604; that this rule is not changed by § 62 of the Uniform Negotiable Instruments Law, Article 13, § 81, Maryland Code of Public General Laws: "The acceptor, by accepting the instrument, engages that he will pay it according to the tenor of his acceptance"; that the drawer and *534 drawee of the check were not the same in such sense as to charge the drawee with knowledge of the amount of the check, and that therefore the United States can recover as for money paid under a mistake of fact. The defendant urges several considerations on the other side, but it is enough to say that the last step in the Government's argument seems to us, as it did to the Circuit Court of Appeals, unsound. If the drawer and the drawee are the same the drawer cannot recover for an overpayment to an innocent payee because he is bound to know his own checks. Bank of United States v. Bank of Georgia, 10 Wheat. 333. In this case there is no doubt that in truth the check was drawn by the United States upon itself. The Government attempts to escape from this conclusion by the fact that the hand that drew and the hand that was to pay were not the same, and some language of Chief Justice White as to what it is reasonable to require the Government to know in paying out millions of pension claims. The number of the present check was 48218587. United States v. National Exchange Bank, 214 U.S. 302, 317. But the Chief Justice used that language only to fortify his conclusion that the United States could recover money paid upon a forged endorsement of a pension check. He cannot be understood to mean that great business houses are held to less responsibility than small ones. The United States does business on business terms. Cooke v. United States, 91 U.S. 389. It has been suggested that the ground of recovery for a judgment under a mistake of fact is that the fact supposed was the conventional basis or tacit condition of the transaction. Dedham National Bank v. Everett National Bank, 177 Mass. 392, 395. If this be true, then when the United States issues an order upon itself it has notice of the amount and when it comes to pay to an innocent holder making a claim as of right it is at arm's length and takes the risk. We are of opinion that the United States is *535 not excepted from the general rule by the largeness of its dealings and its having to employ agents to do what if done by a principal in person would leave no room for doubt. Judgment affirmed.

641 N.W.2d 863 (2002) 249 Mich. App. 222 In re ESTATE OF Gloria I. FLURY, Deceased. Gerald Flury and Elizabeth Flury, Petitioners-Appellees/Cross-Appellants, v. Marvin Flury, Respondent-Appellant/Cross-Appellee. Flury v. Horton. Docket No. 220977. Court of Appeals of Michigan. Submitted December 4, 2001, at Detroit. Decided January 15, 2002, at 9:10 a.m. Released for Publication April 4, 2002. *864 Suzanne V. Longstreet, Southfield, for Gerald and Elizabeth Flury. Wilson, Lawler & Lett, PLC (by R. David Wilson and Steven T. Lett), Lansing, for Alice Horton. Before: COOPER, P.J., and MARK J. CAVANAGH and MARKEY, JJ. PER CURIAM. Alice Horton, personal representative of the estate of Marvin Flury[1] (respondent), appeals as of right from the jury's verdict *865 finding that Marvin Flury assigned all of his rights in Gloria Flury's estate to petitioner Gerald Flury. Gerald and Elizabeth Flury (petitioners) cross appeal. We affirm. This case is before this Court for a second time. The facts that preceded the first appeal are set forth in In re Flury Estate, 218 Mich.App. 211, 554 N.W.2d 39 (1996). A pertinent portion of those facts is reproduced below: Respondent [Marvin] is the father of petitioner Gerald Flury and the decedent, Gloria Flury, who died June 13, 1991, leaving a sizeable estate. Petitioners contend that Gloria had written a holographic will leaving everything to Gerald. When the will turned up missing, Gerald, an attorney, visited his elderly estranged father and obtained, among other documents, an executed assignment of his father's interest in Gloria's estate. Admission of the lost will was sought by petitioners and contested by respondent. A trial by jury was conducted ... [and] Gerald, the proponent of the lost will, prevailed. The jury found that a holographic will existed, that it was validly written, and that Gerald was the sole heir. The jury also found that the assignment from respondent to Gerald was without consideration, but was not the result of undue influence and was not executed as a result of actual or constructive fraud. [Id. at 213, 554 N.W.2d 39.] In the previous case, this Court reversed the decision of the probate court and remanded for a new trial. Id. at 220, 554 N.W.2d 39. In reaching this conclusion, this Court stated that the probate court had improperly admitted evidence concerning Marvin's poor relationship with his family and that this "likely tainted the jury's consideration of the assignment issue to [Marvin's] detriment." Id. The probate court was instructed to limit this evidence on remand. Id. During the retrial, the probate court, following this Court's prior opinion, allowed very few details of the parties' familial relationships into evidence. The probate court also directed a verdict in favor of respondent with regard to the issue of the holographic will because petitioners failed to produce two witnesses to testify that a holographic will was executed by Gloria. Thereafter, the jury determined that Marvin's assignment of his estate interest to petitioner Gerald was valid. Respondent first argues on appeal that the trial court erred in failing to instruct the jury that consideration is a necessary element for a valid assignment.[2] We disagree. Claims of instructional error are reviewed de novo on appeal. Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). [W]e examine the jury instructions as a whole to determine whether there is error requiring reversal.... Even if *866 somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. We will only reverse for instructional error where failure to do so would be inconsistent with substantial justice. [Id. (citations omitted).] Respondent relies on Goodrich v. Waller, 314 Mich. 456, 22 N.W.2d 862 (1946), for the proposition that consideration is required for an assignment to be valid. In Goodrich the Supreme Court declared that assignments of an inheritable interest in an estate require valid consideration. Id. at 470, 22 N.W.2d 862. In this regard, the Supreme Court stated: Furthermore, there was no valid consideration for the assignments. No money was paid to plaintiffs, and the record is convincing that they executed the assignments as an accommodation to defendant in the belief that their interests in the Halstead estate were of little, if any, value.... While the settlement of family disputes should be encouraged, nevertheless, a valid consideration must be shown for an assignment of an inheritable interest in an estate. There was no consideration for the assignments in question from plaintiffs to defendant. [ Id. at 469-470, 22 N.W.2d 862.] While Goodrich appears to support respondent's argument in this case, respondent fails to note that the Legislature has since enacted M.C.L.§ 700.216(7).[3] "[W]here comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter." Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183, 413 N.W.2d 17 (1987). MCL 700.216 was part of the Revised Probate Code and it prescribed in detail the course of conduct to pursue when successors wished to alter the wishes of the deceased. Thus, we conclude that at the time this case was decided, M.C.L. § 700.216(7) was the controlling law. MCL 700.216(7) provided: Subject to the rights of creditors and taxing authorities, competent successors and fiduciaries of minors or incapacitated persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or under the laws of intestacy, in any way that they provide in a written agreement executed by all who are affected by its provisions. The fiduciary shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. [Emphasis added.] "Statutes should be interpreted consistently with their plain and unambiguous meanings." Stozicki v. Allied Paper Co., Inc., 464 Mich. 257, 263, 627 N.W.2d 293 (2001). The plain language of M.C.L. § 700.216(7) does not require that consideration be given when an agreement is made regarding *867 the interests, shares, or amounts of an estate. It simply requires a signed writing. For example, in In re Jobe Estate, 165 Mich.App. 774, 775, 419 N.W.2d 65 (1988), a brother and sister entered into a written agreement concerning their shares of their mother's estate. Thereafter, one of the parties claimed that the agreement was procured through undue influence.Id. at 776, 419 N.W.2d 65. However, this Court explained that M.C.L. § 700.216(7) allowed for agreements to change the distribution of an estate between heirs. In re Jobe Estate, supra at 776-777, 419 N.W.2d 65. We note that there was no consideration paid in that case and that the validity of the assignment was upheld. In the instant case, it is uncontested that a writing exists wherein Marvin gave his interests in the estate to petitioner Gerald. There is also evidence of Marvin's awareness of the approximate worth of Gloria's estate. Indeed, before being told the actual value of Gloria's estate, Marvin told his nephew that the estate must be worth around $250,000 because Gloria had Kmart stock and was "tight-fisted." Moreover, in concluding that the assignment was valid, the jury determined credibility issues in favor of petitioner Gerald and rejected arguments that the agreement was involuntary or that Marvin did not have necessary information disclosed to him. See Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 219 Mich.App. 190, 195, 555 N.W.2d 733 (1996). We find no error in the probate court's denial of respondent's request for an instruction on the issue of consideration and conclude that the assignment was valid. Respondent further claims that the probate court abused its discretion by allowing petitioners to admit evidence that the Court of Appeals had previously prohibited and classified as prejudicial. As a result of this error, respondent opines that the probate court should have granted her motion for a mistrial. We disagree. "Whether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion resulting in a miscarriage of justice." Persichini v. William Beaumont Hosp., 238 Mich.App. 626, 635, 607 N.W.2d 100 (1999). A mistrial should be granted only when the error prejudices one of the parties to the extent that the fundamental goals of accuracy and fairness are threatened. Id. at 635-636, 607 N.W.2d 100; Wischmeyer v. Schanz, 449 Mich. 469, 481, 536 N.W.2d 760 (1995). Respondent argues that the following exchanges during the direct examination of petitioner Gerald require a mistrial: Q. Let me ask you something. On the date of Gloria's death, what was her relationship with Marvin Flury? A. I don't believe— Mr. Wilson: Your Honor— The Witness:— spoken in 25 years. * * * Q. And what, if anything, did you discuss with [Marvin Flury] at that point? A. I think I mentioned to him that he and Gloria had never gotten along. However, respondent fails to explain or rationalize in her appellate brief how these questions and answers rise to the level of requiring a mistrial. Instead, respondent simply concludes that she was entitled to a mistrial. An appellant is not permitted to announce his position and leave it to this Court to rationalize the *868 basis for his claims. Caldwell v. Chapman, 240 Mich.App. 124, 132-133, 610 N.W.2d 264 (2000). Nonetheless, we do not find that the questions and answers were unduly prejudicial. It was obvious from the testimony legitimately presented at trial that Marvin had no relationship with Gloria. In fact, Marvin testified that he had only read about Gloria's death in the paper, failed to attend her funeral, and stated that he never received anything from her and did not want anything. More importantly, in In re Flury Estate, supra at 217, 554 N.W.2d 39, this Court specifically expressed concern over the evidence "scrutinizing" Marvin's relationship with his ex-wives and other failed relationships with women. The questions and answers at issue in this case did not relate to the highly prejudicial evidence that was expressly condemned by this Court. However, even if the challenged questions and answers were improper, the errors were harmless. The jury heard information that was already apparent from the legitimate record. We further note that after respondent's motion for a mistrial, there were no more "impermissible" questions or answers. In light of our disposition of this case, we decline to address the issues raised in petitioners' cross appeal. Affirmed. NOTES [1] We note that respondent Marvin Flury is deceased. By order of the trial court on November 18, 1998, Marvin's estate was substituted in his place with Alice Horton, also known as Irene Horton, his friend, acting as the personal representative. [2] Respondent also raises the argument in her appellate brief that the trial court improperly refused to instruct the jury that there is a presumption of undue influence where there is a fiduciary relationship. However, this issue is waived on appeal because it was not raised in the statement of questions presented. Wallad v. Access BIDCO, Inc., 236 Mich.App. 303, 309, 600 N.W.2d 664 (1999); MCR 7.212(C)(5). Similarly, respondent's claim that the evidence supported a finding of fraud or undue influence is not properly before this Court. Id. [3] MCL 700.216(7) was in effect at the time of trial in this case. It was subsequently repealed, effective April 1, 2000. MCL 700.3914 now addresses the issue of agreements between heirs and is similar in substance.

44 Cal.3d 635 (1988) 749 P.2d 836 244 Cal. Rptr. 181 THE PEOPLE, Plaintiff and Respondent, v. EDGAR M. HENDRICKS, Defendant and Appellant. Docket No. Crim. 22388. Supreme Court of California. February 29, 1988. *639 COUNSEL Marcus S. Topel, under appointment by the Supreme Court, William M. Goodman, Ray H. Plumhoff, Lynne S. Coffin and Marianne D. Bachers for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Mark Howell, Thomas A. Brady, Gloria F. DeHart and *640 Charles R.B. Kirk, Deputy Attorneys General, for Plaintiff and Respondent. OPINION LUCAS, C.J. This is an automatic appeal (Pen. Code, § 1239, subd. (b); further statutory references are to this code unless otherwise indicated) from a judgment of death under the 1978 death penalty law (§ 190.1 et seq.). As we shall explain, we conclude that the judgment should be affirmed in its entirety. Defendant was charged with murdering James Parmer and Charleston Haynes. (§ 187.) He was also charged with robbing the two men (§ 211) and with burglarizing Parmer's residence (§ 459). Four special circumstances were alleged: (1) felony murder for the Parmer robbery (§ 190.2, subd. (a)(17)(i)); (2) felony murder for the Parmer burglary (§ 190.2, subd. (a)(17)(vii)); (3) felony murder for the Haynes robbery; and (4) multiple murder (§ 190.2, subd. (a)(3)). (In a related case, People v. Hendricks (1987) 43 Cal.3d 584 [238 Cal. Rptr. 66, 737 P.2d 1350], we reviewed defendant's convictions of two additional murders, affirming the convictions but reversing the death penalty.) In the summer of 1980 defendant was working as a "hustler" — a male prostitute for men — in San Francisco and Los Angeles. In the course of his trade he would also rob his customers. He had a paid sexual encounter with Joseph N. at the San Francisco residence the latter shared with victim Parmer, who was also homosexual. A few days later defendant returned to the residence and broke in. He shot Parmer six times at point-blank range, the last three times as Parmer lay unconscious on the floor. He then took various items including Parmer's checkbook, and fled. He subsequently had a paid sexual encounter with victim Haynes in the latter's San Francisco hotel room. He shot Haynes five times at point-blank range, the last three times as Haynes lay prone on a bed. He then took various items including Haynes's checkbook, and fled. The jury found defendant guilty as charged on all counts except the robbery of Haynes; as to that count it found him guilty of grand theft, a lesser included offense. The jury also found all the special circumstance allegations to be true, with the exception of the allegation based on the robbery of Haynes. In the penalty phase the prosecution presented evidence that in the summer of 1980 defendant also murdered Harry Carter and James Burchell — *641 who were both homosexuals — in Los Angeles, and Virginia Hernandez in Oakland. The defense introduced evidence to show that defendant had suffered neglect and abuse from his early years, and was the victim of homosexual rape as a teenager; defendant had a stable and responsible relationship with a woman and had acted as a father to her young son; in the summer of 1980, however, after the woman's son had been sexually abused by other boys and the woman had ended their relationship, defendant lost control of himself. The defense also presented the testimony of a psychologist, Dr. Linda Carson, who opined in substance that defendant had killed out of "homosexual rage" — i.e., under an irresistible impulse springing from fear that he was in fact homosexual. In rebuttal the prosecution called a psychiatrist, Dr. Victor Reus, who disagreed with Dr. Carson's opinion. He stated that defendant had the capacity to premeditate, deliberate, harbor malice, and form the specific intents to steal and kill. The jury fixed the penalty at death, and judgment was entered accordingly. I GUILT PHASE CONTENTIONS Defendant raises a number of contentions relating to the issue of guilt; none, as we shall show, is meritorious. A. The Checkbooks (1) He first claims the court erred in failing to bar the introduction of Parmer's and Haynes's checkbooks as fruits of his allegedly unlawful arrest. Even if the court did err, however, the error was plainly harmless beyond a reasonable doubt. Subsequent to the challenged arrest, defendant fled from the state. After he was rearrested, he gave tape-recorded statements to the police. In these statements, which were played to the jury, he admitted taking the checkbooks. B. Cross-examination of Dr. Carson (2) Defendant next contends the court erred in ruling that Dr. Carson, the defense psychologist, would be subject to cross-examination on the Carter, Burchell, and Hernandez homicides if she testified. We disagree. After the prosecution rested its case in the guilt phase, defense counsel informed the court that he would call Dr. Carson to give testimony on defendant's state of mind at the time of the killings. The prosecutor announced that if defendant tendered a mental defense, he would cross-examine *642 the psychologist on the three uncharged homicides. Defense counsel objected. The court then conducted a hearing in camera to receive and evaluate counsel's offer of proof. Counsel established that Dr. Carson would testify in substance that defendant acted out of "homosexual rage" in the Parmer and Haynes homicides. The court ruled that if defendant tendered a mental defense through Dr. Carson's testimony, the prosecution would be entitled to cross-examine her on the uncharged homicides for impeachment purposes. Thereupon the defense rested without putting on any evidence. Other-crimes evidence may be used to impeach the testimony of an expert witness. (See People v. Nye (1969) 71 Cal.2d 356, 373-376 [78 Cal. Rptr. 467, 455 P.2d 395]; People v. Jones (1964) 225 Cal. App.2d 598, 610-613 [37 Cal. Rptr. 454].) Because an expert witness may be cross-examined more extensively and searchingly than a lay witness, the court has broad discretion to admit such evidence for impeachment. (See People v. Nye, supra, at pp. 374-375; People v. Jones, supra, at pp. 610-613.) No abuse of discretion appears here. Because Dr. Carson's "opinion ... was at odds with the evidence introduced by the prosecution," the prosecutor was entitled to "attempt to discredit" it. (People v. Nye, supra, 71 Cal.2d at p. 376.) Defendant seeks to avoid this conclusion by arguing on the basis of People v. Coleman (1985) 38 Cal.3d 69 [211 Cal. Rptr. 102, 695 P.2d 189], that use of the uncharged homicides should have been barred as unduly prejudicial. But the evidence here appears to be both more probative and less prejudicial than the mentally ill woman's "[a]ccusatory statements `from the grave,'" which were at issue in Coleman. (Id. at p. 93.) C. Failure to Instruct Defendant further contends the court improperly refused three instructions. The first was a proposed modification of the standard instruction defining robbery (CALJIC No. 9.10) — specifically the addition of a paragraph to the effect there is no intent to deprive another of his property if the taker has a good faith belief that he has a right to such property. In his tape-recorded statements, defendant claimed he had broken into the residence shared by Joseph N. and Parmer in order to collect money each assertedly owed him for his services as a prostitute. He relies primarily on People v. Butler (1967) 65 Cal.2d 569 [55 Cal. Rptr. 511, 421 P.2d 703], but the case is distinguishable. (3) Defendant admitted his "right" was based on prostitution, and impliedly conceded he knew prostitution is illegal. The claim-of-right defense is inapplicable to claims based on notoriously illegal activities. (People v. Gates (1987) 43 Cal.3d 1168, 1181-1182 [240 Cal. Rptr. 666, 743 P.2d 301].) The second proposed instruction concerned the time at which the intent to steal was formed: "If you have a reasonable doubt whether the defendant *643 formed an intent to steal from Mr. Parmer and/or Mr. Haynes before they were shot, then you are instructed that Mr. Parmer and/or Mr. Haynes were not killed in the perpetration of, or attempt to perpetrate, the crime of robbery." In refusing this charge the court expressly and correctly followed the long settled rule that an instruction that may confuse the jury should not be given. (People v. Strange (1882) 61 Cal. 496, 497.) Although they had the opportunity, defense counsel made no attempt to redraft the instruction. Relying on People v. Whitehorn (1963) 60 Cal.2d 256, 264-265 [32 Cal. Rptr. 199, 383 P.2d 783], defendant argues that the court had a duty to correct what he styles the "cosmetic problem" with the instruction. The argument misses the point. (4) The court gave CALJIC Nos. 8.21 and 9.10, which adequately cover the issue of the time of the formation of the intent to steal. Because the proposed instruction, even if properly drafted, "merely elaborate[s] upon the general instruction[s]," refusal to give it was not error. (People v. Anderson (1966) 64 Cal.2d 633, 640-641 [51 Cal. Rptr. 238, 414 P.2d 366].) (5) The third proposed instruction involved involuntary manslaughter. It is of course the rule that the court is under no duty to give a requested instruction when there is no substantial evidence in support. (People v. Flannel (1979) 25 Cal.3d 668, 684-685 [160 Cal. Rptr. 84, 603 P.2d 1] (plur. opn.).) "Involuntary manslaughter is ... inherently an unintentional killing." (People v. Broussard (1977) 76 Cal. App.3d 193, 197 [142 Cal. Rptr. 664] (italics added); accord, People v. Germany (1974) 42 Cal. App.3d 414, 419 [116 Cal. Rptr. 841].) As the physical evidence established, defendant shot Parmer six times at point-blank range, the last three times as he lay on the floor unconscious; he shot Haynes five times at point-blank range, the last three times as he lay prone on the bed. In light of this evidence, defendant's self-serving tape-recorded statements denying an intent to kill cannot be deemed substantial in character. Therefore, the court did not err in refusing the involuntary manslaughter instruction. D. Denial of Mistrial (6) Defendant next contends the court erred in denying his motion for a mistrial based on an outburst in open court in which he admitted he was guilty of six murders. But a defendant may not be heard to complain when, as here, such prejudice as he may have suffered resulted from his own voluntary act. (See People v. Harris (1981) 28 Cal.3d 935, 951-953 [171 Cal. Rptr. 679, 623 P.2d 240], cert. den. 454 U.S. 882 [70 L.Ed.2d 192, 102 S.Ct. 365].) E. Photographs (7) Defendant's final contention relating to the guilt phase is that the court erroneously admitted certain photographs of Parmer and Haynes. *644 The point lacks merit. "Evidence Code section 352 vests the court with broad discretion to weigh the prejudicial effect of [such] evidence against its probative value." (People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal. Rptr. 657, 595 P.2d 91].) No abuse of discretion appears. The "[p]hotographs which disclose the manner in which [the] victim[s] [were] wounded are `relevant on the issue[] of malice....'" (People v. Frierson (1979) 25 Cal.3d 142, 171 [158 Cal. Rptr. 281, 599 P.2d 587].) And they are no more, and indeed are perhaps less, shocking than many such exhibits. (See also People v. Hendricks, supra, 43 Cal.3d 584, 594-595.) II SPECIAL CIRCUMSTANCES CONTENTIONS Defendant contends that each of the three special circumstance findings — felony-murder robbery (Parmer), felony-murder-burglary (Parmer), and multiple murder — must be vacated because the court failed to instruct the jury that it could find each of the allegations true only if defendant acted with intent to kill. The point must be rejected. (8) In People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal. Rptr. 585, 742 P.2d 1306], we held that the court must instruct on intent to kill in connection with felony-murder or multiple-murder special circumstances when there is evidence from which the jury could find that the defendant was an accomplice rather than the actual killer. In this case, of course, defendant admitted he was the actual killer. He was thus not entitled to an instruction on intent to kill. (9) In an argument raised in conjunction with the claimed instructional errors, defendant contends that the evidence was insufficient to support the felony-murder-burglary and felony-murder-robbery special circumstances. We have already determined that, under these facts, defendant was not entitled to a special instruction on his claim-of-right defense, and that the standarized instructions (CALJIC Nos. 8.21 and 9.10) adequately covered the issue of the time of the formation of the intent to steal. (Ante, at pp. 642-643.) Defendant's paramour, Annette Stone, under a grant of immunity, testified that prior to the Parmer murder defendant left their motel room, announcing "[h]e was going to find a faggot, knock him over the head, and take his money." He later returned with Parmer's checkbook; Stone cashed a check for $255 by forging the victim's signature, turning the proceeds over to defendant. The jury found defendant guilty of the robbery of Parmer and the burglary of his residence. We conclude that there was sufficient evidence to support the felony-murder special circumstance findings in the present case. *645 III PENALTY PHASE CONTENTIONS Defendant raises a number of issues relating to the question of penalty. None, as we shall explain, has merit. A. Exclusion of Prospective Jurors (10) Defendant contends prospective jurors Forentino Solia, Deborah Wertheim, Mary Reyna, and Eileen Brown were improperly excused for cause because of their views on the death penalty. The record shows otherwise. In Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the United States Supreme Court implied that a prospective juror could not be excused for cause unless, as relevant here, he made it "unmistakably clear" that he would "automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at trial of the case...." (Id. at p. 522, fn. 21 [20 L.Ed.2d at p. 785], italics in original.) In Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], however, the court reconsidered Witherspoon and declared that the proper standard was "whether the [prospective] juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (Id. at p. 424 [83 L.Ed.2d at pp. 851-852].) We adopted the Witt standard in People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal. Rptr. 82, 739 P.2d 1250]. Even under the Witherspoon standard, the exclusions here were proper. It is plain from the face of the record that, although their initial responses were somewhat ambiguous, the challenged jurors (Solis, Wertheim, Reyna, and Brown) ultimately made it unmistakably clear they would automatically vote not to impose the death penalty. The point must therefore be rejected. B. Other Crimes Evidence (11) Defendant contends that the introduction, pursuant to section 190.3, subdivision (b), of other-crimes evidence — specifically, the murders of Carter, Burchell, and Hernandez — denied him due process of law. In People v. Balderas (1985) 41 Cal.3d 144, 204-206 [222 Cal. Rptr. 184, 711 P.2d 480], however, we rejected the identical claim. Because defendant presents us with no reason to depart from our holding, we must reject his claim as well. *646 C. Photographs Defendant contends that the admission into evidence at the penalty phase of certain photographs constituted prejudicial error. The photographs at issue are exhibit 115, which depicts the position of the clothes on Virginia Hernandez's body; exhibit 117, which reveals a view of Hernandez's face in death; and exhibits 120 and 122, which show wounds on the body of Harry Carter. Defendant concedes that exhibits 117, 120 and 122 are relevant to the issue of penalty. He argues, however, that they should have been excluded as unduly prejudicial under Evidence Code section 352: exhibits 120 and 122, he says, are too gruesome; exhibit 117 is supposedly cumulative to other photographs in evidence. Further, he argues that exhibit 115 does not accurately depict the crime scene — the body, he asserts, had been moved before the photograph was taken — and therefore is irrelevant. As we shall explain, prejudicial error does not appear. As to exhibits 117, 120 and 122, we doubt that defendant has carried his burden of showing that the court abused its "broad discretion to weigh the prejudicial effect of [such] evidence against its probative value" (People v. Pierce, supra, 24 Cal.3d at p. 211) when it admitted these photographs into evidence. Each of the photographs, as defendant concedes, is relevant and none appears to be unduly prejudicial: exhibits 120 and 122, although not pleasant to view, seem no more shocking than many similar photographs, and exhibit 117, as defendant himself admits, is not gruesome but merely duplicative of other photographs in evidence. (12) We also doubt that defendant has carried his burden of showing that exhibit 115 is irrelevant. The record contains testimony adequately explaining how the representation in the photograph differed from the crime scene in its original state. (See People v. Isby (1947) 30 Cal.2d 879, 891-892 [186 P.2d 405].) But even if the court did err in admitting any or all of the four photographs at issue here, we cannot conclude that the error was prejudicial. Viewing the penalty phase as a whole, it seems clear that even if these photographs had not been admitted the outcome would have been the same. D. Dr. Reus's Testimony Defendant contends that a portion of Dr. Reus's testimony was without proper foundation and should have been stricken. The facts necessary to resolve this claim are as follows. Dr. Carson, the defense psychologist, gave testimony concerning defendant's mental state during the time relevant to the killings. Defendant then took the stand and engaged in the following colloquy. *647 "BY MR. BERMAN [defense counsel]: Q. Mr. Hendricks, when you were asked about if the [sic] care about the lives of other people and you said no, are you talking about now, or are you talking about July, August, September last year? "A. At that particular time I didn't care about no one at all. I was at a, a rage, more or less. I were — I didn't care. Lee's Market on Revere Street is a case you don't know of at all. The sixth one, I got up and said that I was, six cases. That is the sixth one there. "Q. Edgar, when this is over, would you like to talk to the police about that one. "A. Yes, whatever. "Q. Do you care about human life, now, other people's life? "A. I care a great deal about human life. I care a great deal about people now." The prosecutor then proceeded to cross-examine defendant on the Lee's Market murder. "BY MR. MUNSON: Q. Are you telling us, Mr. Hendricks, that you killed a person at Lee's Market on Revere Street? "A. A grocery store. "Q. Is that in the City and County of San Francisco? "A. In the Bayview Area. "Q. When was this? "A. Columbus Day. "Q. Of what year? "A. '80 "Q. What happened? "A. Me and some other guy, friend of mine — you want to say — went into the store and robbed them, shot the guy then — didn't want to shoot the guy but — just the reason why I'm letting all this out now, I know I am going to get the death penalty anyway so I clear my own conscience. "Q. Do you feel that that decision should be left up to the ladies and gentlemen of the jury rather than you, sir, of what penalty? *648 "A. Oh, yes. "Q. You say that you didn't want to shoot the man at Lee's Market, but why did you shoot him? "A. He tried to grab my gun." The prosecutor called Dr. Reus to rebut the testimony of Dr. Carson. The following colloquy occurred. "BY MR. MUNSON: Q. Doctor, leaving aside the sexual aspect for just a moment, the defendant out of your presence took the stand, and he testified in his own behalf, and part of his testimony, he indicated to all of us that he was engaged on Columbus Day 1980. He said he walked in with another chap to a grocery store. I believe he said it was on Revere Street. In any event, it was in the City and County of San Francisco. He was armed with a gun. [¶] He said, `I want to rob the grocer.' He said, `The grocer reached for the gun and I shot him.' [¶] Now, does that indicate, if these facts are true, does that indicate an ability on the part of the defendant to plan a crime, arm himself with a deadly weapon, and execute the crime? "A. Well, certainly that report would indicate that, if that is the only information at hand, that the individual is capable of doing that, yes." Defendant claims that the testimony of Dr. Reus quoted above was without proper foundation and should have been stricken. He argues in substance as follows: it is improper to ask an expert witness a hypothetical question that assumes facts not in evidence; to be admissible, the evidence of the other crime must prove that crime beyond a reasonable doubt; defendant's testimony, however, does not prove his guilt of the Lee's Market murder beyond a reasonable doubt; hence, it was improper for the prosecutor to ask the question he did; therefore, Dr. Reus's answer should have been stricken. The claim must be rejected. To begin with, at least one of defendant's crucial premises is not true. (13) It is simply not the case that "evidence of the other crime, to be admissible, must prove such crime beyond a reasonable doubt." (People v. Holliman (1969) 274 Cal. App.2d 89, 94 [78 Cal. Rptr. 826], citing Fricke & Alarcon, Cal. Criminal Evidence (6th ed.) Degree of Proof of Other Offenses, p. 293.) In any event, the claim must be rejected at the threshold. (14) It is, of course, "the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal. Rptr. 732, *649 579 P.2d 1048], and cases cited.) Here, defense counsel made no objection whatever. Defendant's argument to the contrary is without merit. What he puts forth as an objection on the part of defense counsel was merely his request to continue closing argument in the face of what he called defendant's "bombshell" confession. E. Prosecutorial Misconduct (15) Defendant contends that the prosecutor engaged in prejudicial misconduct in violation of the principles of People v. Murtishaw (1981) 29 Cal.3d 733 [175 Cal. Rptr. 738, 631 P.2d 446], when in his rebuttal to defense counsel's closing argument he made a comment going to the issue of "further dangerousness." During his closing argument defense counsel stated as follows: "If you find that even within the prison system Edgar Hendricks has the ability to repent and rehabilitate his life, albeit within the prison system, I think you should vote for life, and I think you have seen that Edgar Hendricks is learning about himself, that he is not a monster, that he can learn from his mistakes and make a better person of himself." In response to that comment, the prosecutor made the following statement. "[Mr. Berman] said that if you believe that the state prison system could rehabilitate him, and he has the ability to rehabilitate his life, that might be a factor indicating that punishment should be given.... You have to weigh and consider if he goes to prison what would happen if he's in a cell and somebody approaches him for sex or he's in a cell with a gay person. It's 3:00 in the morning and the guard is clear down the corridor. Now, all the guards and the wardens aren't going to prevent something terrible from happening." Defendant claims that in making the comment quoted above the prosecutor engaged in prejudicial misconduct in violation of the principles of People v. Murtishaw, supra, 29 Cal.3d at pages 767-774, which holds that expert predictions of "future dangerousness" are generally inadmissible during the penalty phase of a capital trial. The claim must be rejected. Initially, it appears that the prosecutor's comment was not improper. (See People v. Davenport (1985) 41 Cal.3d 247, 288 [221 Cal. Rptr. 794, 710 P.2d 861].) As we explained in Davenport, Murtishaw was concerned with limiting expert predictions of dangerousness, not prosecutorial argument on that topic. Here, the prosecutor made a brief response to defense counsel's comment about defendant's rehabilitative potential, and unlike the erroneously admitted expert testimony considered in Murtishaw, which "was the principal prosecution penalty phase evidence" (29 Cal.3d at p. 775), the *650 comment here was brief and — within the context of the penalty phase as a whole — plainly of minor significance. (See People v. Miranda (1987) 44 Cal.3d 57, 110-111 [241 Cal. Rptr. 594, 744 P.2d 1127].) In any event, the claim is not properly preserved for review. First, defendant made no objection whatever at trial. Second, it is plain that a timely objection and admonition would have cured the harm: as we have explained above, the comment was brief and clearly of minor significance. Accordingly, defendant must be deemed to have waived the objection and the claim cannot be raised on appeal. (People v. Green (1980) 27 Cal.3d 1, 27-34 [164 Cal. Rptr. 1, 609 P.2d 468].) F. Instructions on Mitigating Evidence and Sentencing Discretion (16) Defendant contends that the sentencing formula of section 190.3 is unconstitutional on the ground that it withdraws constitutionally compelled sentencing discretion from the jury. In People v. Brown (1985) 40 Cal.3d 512, 538-544 [230 Cal. Rptr. 834, 726 P.2d 516], vacated on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], however, we rejected that very contention. Defendant presents us with no compelling reason to reconsider our holding. Defendant contends that certain comments in the prosecutor's closing argument, combined with the mandatory language of the instructions based on section 190.3, may have misled the jury to his prejudice. We cannot agree. Even though in People v. Brown, supra, 40 Cal.3d at pages 538-544, we rejected the claim that section 190.3 is unconstitutional, "We acknowledge[d] that the language of the statute, and in particular the words `shall impose a sentence of death,' leave room for some confusion as to the jury's role," and added that "indeed, such confusion is occasionally reflected in records before this court." (Id. at p. 544, fn. 17.) For that very reason, we directed that "trial courts in future death penalty trials ... instruct the jury as to the scope of its discretion and responsibility in accordance with the principles set forth in [Brown]." (Ibid.) We made it clear, however, that "We pass[ed] no judgment ... upon the validity of death penalty verdicts previously rendered without benefit of ... the instructions we [then] require[d]." (Ibid.) We concluded that "Each such prior case must be examined on its own merits to determine whether, in context, the sentencer may have been misled to defendant's prejudice about the scope of its sentencing discretion under the 1978 law." (Ibid.) As we recently explained in People v. Allen (1986) 42 Cal.3d 1222 [232 Cal. Rptr. 849, 729 P.2d 115], "Our concern in Brown was that the unadorned *651 statutory instruction might in two interrelated ways lead the jury to misapprehend its discretion and responsibility. "First, we pointed out that the jury might be confused about the nature of the weighing process. As we observed: `[T]he word "weighing" is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary "scale," or the arbitrary assignment of "weights" to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider.' [Citation.] "Second, we were concerned in Brown that the unadorned instruction's phrase, `the trier of fact ... shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances' (italics added), could mislead the jury as to the ultimate question it was called on to answer in determining which sentence to impose. Although the quoted phrase could be understood to require a juror (i) to determine whether `the aggravating circumstances outweigh the mitigating circumstances' without regard to the juror's personal view as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe death is the appropriate sentence under all the circumstances, we concluded in Brown that the statute was not intended to, and should not, be interpreted in that fashion. Instead we stated: `By directing that the jury "shall" impose the death penalty if it finds that aggravating factors "outweigh" the mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the "weighing" process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence, which penalty is appropriate in the particular case.'" (42 Cal.3d at pp. 1276-1277.) As we recently observed in People v. Ghent, supra, 43 Cal.3d 739, 777, "A majority of the justices of the United States Supreme Court, upon reviewing our Brown decision, stressed the necessity of analyzing the record in each case to determine whether the jury instructions, taken as a whole, and read in conjunction with the prosecutor's arguments, adequately informed the jury of its responsibility to consider all of the mitigating evidence in the case. (See California v. Brown, supra, 479 U.S. 538, 546 [93 L.Ed.2d 934, 943, 107 S.Ct. 837, 842] (conc. opn. by O'Connor, J.), 561 [93 L.Ed.2d at p. 952, 107 S.Ct. at p. 850] (dis. opn. by Brennan, J.), 563 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842] (dis. opn. by Blackmun, J.).) We have undertaken such a review, and we conclude that there exists `no legitimate basis' (see *652 opn. of O'Connor, J., id., at p. 546 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842]) for believing that the jury was misled regarding its sentencing responsibilities." We draw a similar conclusion in the present case. (17) First, although the jury was instructed pursuant to former CALJIC No. 8.84.1 and its unadorned "factor (k)" language (see People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10 [196 Cal. Rptr. 309, 671 P.2d 813]), we are confident that a reasonable jury would not have been led to believe it was to ignore defendant's proffered mitigating character evidence. Indeed, the prosecutor told the jurors that factor (k) allowed them to consider "any evidence at all in this record." We therefore find no factor (k) error. (18) Nor does it appear that the jury was misled regarding the nature of the weighing process, the first aspect of our concern in Brown. The prosecutor did not present the jury's weighing responsibility as a mere "mechanical" or "counting" process. His closing argument was short and evidently unimpassioned. (We set out pertinent portions of the argument in the appendix, post, p. 662.) He suggested that in undertaking the weighing process, the jury "might ... draw a line down like a scale," list the aggravating circumstances on one side and the mitigating ones on the other, and "make a finding of fact" as to whether the aggravating factors "outweigh" the mitigating ones. But the prosecutor stopped short of telling the jury that it must impose death if the aggravating factors outnumber the mitigating ones. (See People v. Myers (1987) 43 Cal.3d 250, 275 [233 Cal. Rptr. 264, 729 P.2d 698], finding the prosecutor's use of a "scale motif" in his argument did not mislead the jury since he did not suggest that a mere mechanical "counting" process was involved.) The prosecutor affirmatively explained that "What the law is telling you is that you weigh the aggravating and mitigating factors." (Italics added.) In using the "scale" analogy, the prosecutor simply suggested a mechanism by which the jurors could separate out the aggravating and mitigating factors before proceeding to their task of ascertaining the appropriate weight to be given them. In addition, the prosecutor explained to the jury that (1) each juror must decide for himself whether a particular item of evidence should be deemed aggravating or mitigating; (2) the prosecutor's characterization of the evidence was itself not evidence in the case but merely was intended to offer "guidelines"; (3) there did exist some mitigating evidence or circumstances in the case, including the absence of any prior convictions. Furthermore, as noted, he told the jury that under "factor (k)" it could consider "any evidence at all in this record," including the testimony of all the witnesses. Any ambiguity about the jury's weighing responsibility was certainly cured by defense counsel, who explained that the jurors must decide for *653 themselves what evidence in the case should be deemed aggravating or mitigating, and that "no one can tell you" what elements to find in deciding the penalty question. Then counsel observed that although the jurors could draw up a chart as suggested by the prosecutor, "it is up to you" what evidence belongs there. Finally, counsel explained that although the sentencing instruction is indeed phrased in mandatory terms, nonetheless "you become the scale that this weighing process occurs on," there is room for "mercy within the framework of the law," and there is "no point system" involved in the process, because the weighing occurs within each juror. Counsel stressed that "you are all moral creatures" and each juror should base his penalty decision "on your own moral scale." The prosecutor, in his final closing argument, conceded that he agreed with "practically everything" defense counsel had stated. He then urged the jurors to follow the law and "drive out influences that may detract from that pure judgment" needed in deciding the penalty issue. Thus, the jury could not have been misled into thinking that it must impose death if the aggravating factors outweighed in number the mitigating ones. The prosecutor's reference to a "scale" was consistent with the jurors' weighing function, and the jurors were made well aware that they could decide whether particular evidence was aggravating or mitigating, and whether the mitigating factors called for an exercise of "mercy" on their part. (19) Turning to the second aspect of our concern in Brown, we believe the jury understood its obligation to determine whether or not death was an appropriate penalty for defendant. It is true, as defendant observes, that the prosecutor focused on the mandatory phrasing of the statutory instruction, that the jury "shall" impose death if the aggravating circumstances outweigh the mitigating ones; indeed, he described the process as an "automatic" one. But the prosecutor's argument was no different in substance from the argument in People v. Allen, supra, 42 Cal.3d 1222, 1279 ["`Shall, not may, not might, not maybe. It is very explicit. If the aggravating evidence outweighs the mitigating evidence you shall return a verdict of death'"], which we concluded could not, on the facts of that case, have misled the jury. As we stated in Allen, it is not improper per se to instruct the jury that it "shall" impose death. (P. 1279, fn. 38.) We acknowledge that People v. Myers, supra, 43 Cal.3d 250, 275-276, contains some language which might support defendant's position. There, the prosecutor urged that "Your job is a fact-finding process. The law dictates what the penalty shall be depending upon what weight you give, *654 what the total weight is to each aggravating or mitigating circumstance.... It would not be appropriate for you to determine what result you want to obtain and then seek to shade the factors or the weight to give to the various factors." Myers concluded that this argument was improper, because the jury's task was "not simply to determine whether aggravating factors outweigh mitigating factors and then to impose the death penalty as a result of that determination, but rather to determine, after consideration of the relevant factors, whether under all the circumstances `death is the appropriate penalty' for the defendant before it." (P. 276, quoting People v. Brown, supra, 40 Cal.3d 512, 541.) Myers appears to be factually distinguishable. There, the prosecutor admonished the jury that, because of the mandatory phraseology of the instruction, it would be improper in deciding penalty to "shade the factors or the weight to give to the various factors" in order to reach a particular penalty. Such argument was misleading, for a reasonable juror might have construed it as meaning that he or she could not assign different weights or values to the various aggravating and mitigating factors. Moreover, Myers was perhaps unduly critical of the prosecutor's reliance upon the mandatory language of the standard instruction. That language was directly taken from the 1978 death penalty law and accurately describes the jury's function under that law: to weigh the applicable aggravating and mitigating factors and, on that basis, and that basis alone, to determine whether death is an appropriate penalty. Of course, as we explained in Brown, supra, 40 Cal.3d 512, included within the weighing function itself is the determination whether death is an "appropriate" penalty under the circumstances. As we said in Brown, "the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case." (P. 541.) Serious constitutional challenges could arise were we to instruct the jurors that they may place their decision as to the "appropriate" penalty upon some undefined criteria other than, or in addition to, a weighing of the aggravating and mitigating circumstances in the case. Such an instruction comes perilously close to violating the mandate of Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], that the jurors must be given specified standards or guidelines within which to focus their discretion. Under Furman, we simply cannot tell the jury to "weigh all the factors, but regardless of the outcome do whatever you think is appropriate." Such an instruction would invite arbitrary decisions based on improper or irrelevant sentencing considerations including, for example, the defendant's race. *655 Thus, we see no impropriety in a prosecutor urging that the jurors "follow the law" and base their penalty decision on a weighing of the applicable factors, so long as it is understood that inherent in the weighing process itself is the determination of "appropriateness" that, as Myers explained, is so essential. As previously noted, the jury in the present case fully understood that it could assign whatever weight it deemed appropriate to the various aggravating and mitigating factors, and that its penalty decision should be based on all the evidence in the case. Therefore, viewing the record as a whole, we cannot conclude the prosecutor derailed the jury from a proper understanding of its duty to determine appropriateness of death through the weighing process. (20) Defendant additionally argues that the prosecutor's argument herein was objectionable under Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633], wherein the high court condemned telling the jury of the availability of an appeal to the state Supreme Court in which the reviewing court would determine the "correctness" or "appropriateness" of the jury's sentencing decision. Caldwell deemed such argument impermissible because it could lead some jurors to believe "that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Id. at p. 329 [86 L.Ed.2d at p. 239].) As we have explained above, however, Caldwell's concerns are not implicated here because we have concluded the jury was not misled into believing the determination of "death-appropriateness" rests elsewhere. We believe the prosecutor made it clear to the jurors from the very outset that the decision whether to impose the death penalty rested solely in their hands. In his opening remarks, the prosecutor explained to the jury that "you are going to have one of the most important decisions that you will probably have to make in the course of your lifetime because you are going to decide based on the evidence and the law whether a human being shall suffer life imprisonment or shall suffer death." (Italics added.) The prosecutor observed that the "law" will provide much guidance in reaching the penalty decision, including specifying the various aggravating and mitigating factors upon which the penalty decision must be based. He also explained that once the jury concluded the aggravating circumstances outweighed the mitigating ones, a death sentence was "automatic." But at no time did the prosecutor attempt to "pass the buck" to another sentencing or reviewing body. On the whole, we believe the jurors thus realized that the ultimate sentencing responsibility was theirs, and theirs alone. No Caldwell error occurred here. *656 The judgment is affirmed. Panelli, J., Arguelles, J., Eagleson, J., and Kaufman, J., concurred. MOSK, J., Concurring and Dissenting. I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings. I dissent, however, from the affirmance of the judgment as to penalty. In their discussion the majority have devised a novel means to satisfy the constitutional requirement of heightened reliability for a sentence of death: no matter how misleading the instructions and the arguments of counsel may be, the prosecutor will be deemed able to "cure" the harm if his statements to the jurors are correct in some respect, and a reviewing court will stamp its approval on the ultimate result — even if the prosecutor himself is responsible in large part for misleading the jurors, and even if the result of his erroneous argument is death. I cannot subscribe to such an unprincipled "rule," even when it is applied in the case of one of society's malefactors. The grim satisfaction of eliminating one repetitive criminal is not worth the damage to the fair and orderly administration of justice. As I shall show, the majority opinion is contrary to the decision of the United States Supreme Court in Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633], and to our decision in People v. Brown (1985) 40 Cal.3d 512 [230 Cal. Rptr. 834, 726 P.2d 516], reversed on other grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]. Yet my colleagues ignore this authority in order, by any means, to inflict on this defendant what they perceive to be his just deserts. Penal Code section 190.3 (hereafter section 190.3), adopted as part of the 1978 death penalty law, states in relevant part that "the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances." In Brown we held that the mandatory sentencing formula of section 190.3 was not unconstitutional in itself. (40 Cal.3d at pp. 538-544.) Nevertheless, we recognized that when delivered in an instruction the unadorned statutory language might mislead the jury as to the scope of its sentencing discretion and responsibility. (Id. at p. 544, fn. 17.) With respect to cases in which the jury had been instructed in the statutory language, we announced that we would examine each such appeal on its merits to determine whether the jury may have been misled to the defendant's prejudice. (Ibid.) This is such a case. *657 Our concerns in Brown were essentially two. The first was that the unamplified language of section 190.3 might mislead the jury as to the nature of the weighing process: "In [its] context, the word `weighing' is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary `scale,' or the arbitrary assignment of `weights' to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider...." (40 Cal.3d at p. 541.) Our second concern was that the statutory language might mislead the jury as to the substance of the ultimate determination it was called on to make. Contrary to constitutional principles, that language "could be understood to require a juror (i) to determine whether `the aggravating circumstances outweigh the mitigating circumstances' without regard to the juror's personal view as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe death is the appropriate sentence under all the circumstances...." (People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal. Rptr. 849, 729 P.2d 115].) In Brown we declared that the statutory language should rather be interpreted to require that the jury make "`an individualized determination on the basis of the character of the individual and the circumstances of the crime'" (40 Cal.3d at p. 540, italics deleted), and thereby decide "which penalty is appropriate in the particular case" (id. at p. 541). In the case at bar, the court instructed the jury in the potentially misleading words of section 190.3, without significant addition, deletion, or modification. Further, as will appear, the prosecutor's closing argument rendered those words actually misleading. The prosecutor's argument was relatively short. After making some introductory remarks and "review[ing] the law" that governed the jury's determination, he quoted and expanded on several of the statutory sentencing factors. He then stated: "It is now your duty to determine which of the two penalties, death or confinement in the state prisons for life, without possibility of parole, shall be imposed. After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider and take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.... "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. Again the word *658 `shall' is used. Now, is there a schoolteacher on the jury? Somebody must know the difference between `may' and `shall.' `Shall' in ordinary parlance in its ordinary signification is a term of command and one which must be given a compulsory meaning and denoting obligation." The prosecutor continued: "What the law is telling you is that you weigh the aggravating factors and the mitigating factors. So I'm going to discuss with you the aggravating factors and the mitigating factors. What you might do — and ... ladies and gentlemen, there is nothing I can say or do to help you. This is a decision that you are going to have to make. All I can do is give you some help probably in maybe the way that you might logically go about performing your duty. You have — you might draw a big line and draw a line down like a scale. "You might list all of the mitigating factors on one side of the scale, list all of the aggravating factors on the other side of the scale, and make a finding of fact and answer this question: Did the aggravating factors outweigh the mitigating factors? Or conversely: Did the mitigating factors outweigh the aggravating factors? "Okay. What does the law tell you to do in that regard? If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison without the possibility of parole. "So once you make your findings of the facts, the law is somewhat automatic. The law tells you what to do. The law doesn't tell you how or what the facts are that you should find, but it helps you in this sense. If you find that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the death penalty. If you find that the mitigating circumstances outweigh the aggravating circumstances, you shall impose life imprisonment. "It doesn't give you any control over that. So the law is, pretty much automatically flows from the facts as you find them." In concluding his argument the prosecutor told the jury: "I've given you some idea that I hope is at least helpful to you in arriving at this decision you have to make. Bear [that] in mind ... if you find you have to look at the law because the law has been carefully structured. The law is aware that you have a very important decision to make. "It takes a little bit of sting out in the sense that you have to decide facts. Once you decide, if you do, that the aggravating circumstances outweigh the mitigating circumstances, it's automatic. You shall impose death. *659 "So in that sense the law takes care of that burden or that portion of the burden. So what you are as you were at the first phase of the trial, you are finders of fact." The closing argument of the prosecutor thus caused the very harm we feared in Brown. First, he misled the jury as to the nature of the weighing process. He told the jurors that just as in the guilt phase, they were "finders of fact" and their determination would be a "finding of fact." He also presented the penalty-fixing process as essentially a "mere mechanical counting of factors on each side of an imaginary `scale'...." (Brown, supra, 40 Cal.3d at p. 541.) Second, he misled the jury as to the substance of the ultimate decision it was called on to make. He told the jurors that the law compels them to vote for death if the aggravating factors outweigh the mitigating, regardless of their belief as to the appropriateness of that penalty — even though the law imposes no such compulsion (ibid.). Three times he erroneously called the death penalty "automatic" in these circumstances. This understanding of the prosecutor's argument is unaffected by the fact that he also made certain comments that seem not to narrowly cabin the sentencing process; in context, these comments are both insubstantial and insignificant. Nor is it significant that in his own argument defense counsel stated, "I think [the prosecutor] gave you a most honest and honorable discussion," and then described the penalty determination as a moral assessment of the facts. Counsel's remark plainly constituted an attempt to ingratiate himself with the jury and subtly put his own words into the prosecutor's mouth; it certainly does not imply that the prosecutor's words could reasonably be understood other than in accord with their plain meaning. Finally, my conclusion is not affected by the prosecutor's comment in rebuttal that "I agree with practically everything counsel has said," a similar attempt at ingratiation. Moreover, I am unable to conclude that defense counsel's description of the sentencing process as a moral assessment of the facts prevented the jury from being misled. In the face of the apparently mandatory language of the section 190.3 instruction and the prosecutor's repeated quotation, paraphrase, and explication of that language, counsel's argument would evidently be heard as little other than a plea that the jurors depart from their oaths and dispense a mercy that was not theirs to give under the law. In addition to its effect on the potentially misleading instruction, the prosecutor's argument was independently objectionable under Caldwell v. Mississippi, supra, 472 U.S. 320, as an attempt to minimize the jury's sense of responsibility for determining the appropriateness of death. In Caldwell the high court stated the relevant facts as follows. "In their case for mitigation, [Caldwell's] lawyers put on evidence of [his] youth, *660 family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another's death, even in the context of a capital sentencing proceeding.... "In response, the prosecutor sought to minimize the jury's sense of importance of its role." (472 U.S. at pp. 324-325 [86 L.Ed.2d at p. 237].) Specifically, he told the jurors that "`[defense counsel] would have you believe that you're going to kill this man and they know — they know that your decision is not the final decision.... Your job is reviewable.'" (Id. at p. 325 [86 L.Ed.2d at p. 237].) He went on: "`The decision you render is automatically reviewable by the Supreme Court. Automatically....'" (Id. at pp. 325-326 [86 L.Ed.2d at p. 237].) The jury returned a verdict of death and the court sentenced the defendant accordingly. The United States Supreme Court reversed the judgment as to penalty on the ground that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Id. at pp. 328-329 [86 L.Ed.2d at p. 239].) The court reasoned, in part, that an argument such as the prosecutor's was prejudicial in that it "offers jurors a view of their role which might frequently be highly attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. [Citations.] Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest [elsewhere] presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." (Id. at pp. 332-333 [86 L.Ed.2d at p. 242].) The court explained: "for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant's death. This would thus also create the danger of a defendant's being executed in the absence of *661 any determination that death was the appropriate punishment." (Id. at p. 332, fn. omitted [86 L.Ed.2d at p. 241].) I apply this reasoning to the case at bar. At the penalty phase defense counsel urged the jury to confront its responsibility for determining, on the basis of an individualized moral assessment of the facts, whether defendant should be condemned to death. By contrast, the prosecutor repeatedly sought to minimize the jury's sense of its constitutional responsibility. As the quoted portions of his argument plainly show, he told the jurors in essence that the responsibility for deciding the appropriateness of death rested not on them but on a reification he called "the law," which made the ultimate penalty "automatic" if certain "facts" were "found." It was not they but "the law," he insisted, that bore the "burden" of condemning defendant to death. Despite the majority's exercise in rationalization, I cannot consider either the Brown error or the prosecutor's independently objectionable argument to be harmless. In vacating the sentence of death in Caldwell, the high court explained: "This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its `truly awesome responsibility.' In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standards of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated." (Id. at p. 341 [86 L.Ed.2d at p. 247].) Until today, this court too had premised its capital decisions on the assumption that the jury recognizes its grave constitutional responsibility when it considers the question of life or death. In the case at bar the Brown error threatened, and the prosecutor's argument sought, to minimize the jury's sense of that responsibility: the jurors were led to entertain the erroneous belief that it was "the law," and not they, who rendered the verdict. Because I cannot say that either the error or the independently objectionable argument was without effect, I cannot conclude that the jury's decision meets the reliability requirements of the Eighth Amendment. *662 For these reasons I would vacate the verdict of death and reverse the judgment as to penalty. Broussard, J., concurred. Appellant's petition for a rehearing was denied April 21, 1988, and the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted. APPENDIX Defense counsel stated near the beginning of his own argument: "I think Mr. Munson gave you a most honest and honorable discussion. I don't want to use the word `argument' in dealing with this state of the trial, and he didn't tell you that you must vote for the death penalty, or you must vote for life without possibility of parole, because he quite honestly told you that what you consider to be an aggravating circumstance is up to you, and how you want to view it; and what you consider to be a mitigating circumstance is up to you, and how you view it." (Italics added.) The prosecutor opened the substantive portion of his argument with the following statement: "Now, you are going to have to make one of the most important decisions that you will probably have to make in the course of your lifetime because you are going to decide based on the evidence and the law whether a human being shall suffer life imprisonment or shall suffer death, and there's very little that I can give you or guide you on this decision, but there is an awful lot the law can give you, and there is an awful lot of things the law can provide for you in making this terrible important judgment on human life." (Italics added.) The prosecutor then proceeded to "review the law" that governed the jury's determination. He began by quoting and expanding on several of the statutory sentencing factors. He continued: "It is now your duty to determine which of the two penalties, death or confinement in the state prisons for life, without possibility of parole, shall be imposed. After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider and take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. Those were the things that I just read to you a minute or two ago, A, B, C, D. "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. Again the word `shall' is used. Now, is there a schoolteacher on the jury? Somebody must know the difference between may and shall. Shall in ordinary parlance in its ordinary signification is a term of command and one which must be given a compulsory meaning and denoting obligation. ".... .... .... .... .... . . "Now, that is the law. What the law is telling you is that you weigh the aggravating factors and the mitigating factors. So I'm going to discuss with you the aggravating factors and the mitigating factors. What you might do — and, again, ladies and gentlemen, there is nothing I can say or do to help you. This is a decision that you are going to have to make. All I can do is give you some help probably in maybe the way that you might logically go about performing your duty. You have — you might draw a big line and draw a line down like a scale. *663 "You might list all of the mitigating factors on one side of the scale, list all of the aggravating factors on the other side of the scale, and make a finding of fact and answer this question: Did the aggravating factors outweigh the mitigating factors? Or conversely: Did the mitigating factors outweigh the aggravating factors? "Okay. What does the law tell you to do in that regard? If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison without the possibility of parole. "So once you make your findings of the facts, the law is somewhat automatic. The law tells you what to do. The law doesn't tell you how or what the facts are that you should find, but it helps you in this sense. If you find that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the death penalty. If you find that the mitigating circumstances outweigh the aggravating circumstances, you shall impose life imprisonment. "It doesn't give you any control over that. So the law is, pretty much automatically flows from the facts as you find them." (Italics added.) The prosecutor then considered at length the evidence presented during the trial under the several statutory factors. When he arrived at factor (k), he stated: "K, any other circumstance, any other circumstances which extenuate the gravity of the crime even though it is not a legal excuse for the crime. That means that you can consider any evidence at all in this record. You can consider the testimony of all the witnesses. You can consider all of the photographs, all the physical evidence, everything." (Italics added.) As he concluded, the prosecutor stated: "I've given you some idea that I hope is at least helpful to you in arriving at this decision you have to make. Bear in mind that if you find you have to look at the law because the law has been carefully structured. The law is aware that you have a very important decision to make. "It takes a little bit of sting out in the sense that you have to decide facts. Once you decide, if you do, that the aggravating circumstances outweigh the mitigating circumstances, it's automatic. You shall impose death. "So in that sense the law takes care of that burden or that portion of the burden. So what you are as you were at the first phase of the trial, you are finders of fact. You are judges. You are the deciders. Obviously, you could — nobody can stop you — from being arbitrary, from being capricious. You could all say, well, the aggravating circumstances do outweigh the mitigating circumstances, but the heck with it. I'm just not going to do it. "I can't stop you from that. The people you live with in your community can't stop you from doing that. The only thing I can tell you is that you did take an oath." (Italics added.) After opening his argument with the comment about the prosecutor's "most honest and honorable discussion," defense counsel proceeded to compare the guilt and penalty phases of a capital trial. "[W]e have had two stages in this trial, and the first stage you heard evidence. You heard argument. You were given instructions, and you made a decision. "In this stage you have heard evidence. You have heard arguments. You will be given instructions, and you will arrive at a sentence. "But those two stages have only that kind of shallow similarity. They are very different. In the first stage you were told that there are certain crimes alleged, and you were instructed by the Court that each of those crimes has certain elements, facts that must be proved, and that the standard you use is proof beyond a reasonable doubt. "Proof beyond a reasonable doubt isn't a mathematical formula, but it is not so hard to understand. It basically means you are very, very sure. So you can take that standard. It was almost like you do see a scale in front of you, and look at the facts, and do those facts come up to prove beyond a reasonable doubt, and you did that. "You did your job. You knew what elements you were looking for, but here in this stage there is no special facts that are trying to be proven to you. There is no way anybody can tell you what elements you must find before you arrive at the death penalty or life without possibility of parole. *664 "You can say, you can draw a chart with aggravating on one side, mitigating on the other, but what you decide is aggravating or mitigating is up to you, and the worst part of it is how do you compare? What is the formula? "And I think that is what Mr. Munson quite honorably told you. It's up to you to decide. The law tells you that you shall impose one penalty if you find the aggravating factors outweigh the mitigating. You shall impose the other if the mitigating outweigh the aggravating. But this outweighing is not something to take outside you. It can only be internalized. You become the scale that this weighing occurs on, and I think that Munson was very honorable with you in not standing up here and saying somehow the law insists you find one penalty and/or the other, and I hope I'm going to be just as honorable." (Italics added.) Defense counsel then proceeded to argue for the imposition of life imprisonment without the possibility of parole. He stated and explained his general opposition to the dealth penalty. He then asked the jury to exercise mercy in consideration of the hard life defendant had been forced to lead and the redeeming qualities he had nevertheless shown. He told the members of the jury; "You are the scales on which this aggravating and mitigating must be weighed, and that means that what you are as people comes into play in making this decision. You are not a jury of jackals, of lions, or ants, or of computers. You are human beings. That means you are moral animals, and it is on your own moral scale that you will make this decision." (Italics added.) Defense counsel concluded: "The decision is yours. I hope that God grants you wisdom to make the right decision, what it is. I have faith in you, ladies and gentlemen. The decision is yours." The prosecutor then made a brief rebuttal. In opening he stated: "I have given you the law and principles of law. I have gone over each of the elements of aggravation and mitigation. I've tried to give you some rational way of determining the terrible decision that you have to make. I agree with practically everything counsel had said. Believe me, it's tough to me, too. [¶] It's tough on the judge. It's tough on you. It's tough on everybody. These are very difficult things to do in a society, but that's what we have. We have courts of law. We have people from the community in which these people are charged to come in and sit in judgment of them. I simply want to get you in the framework of the mind of a judge, the moral mind, the fair mind, the mind that will take all of the issues, all of the evidence, dispassionately weigh and consider, render an honest, fair and a true verdict." (Italics added.) In response to defense counsel's statement about defendant's rehabilitative potential, which is quoted above, the prosecutor then made the comment about defendant and a homosexual cellmate, which is also quoted above. At the conclusion, the prosecutor made the following statement: "And last, what I'm saying is you are you, but you are us. You are society. You can be selfish. You can't say, `Well, gee, I want to do this. I want to do that.' "I wish you could have that luxury. You don't have that luxury. We have stripped you of that. You are representing all of us. You don't have this individual luxury. You took an oath, `I will follow the law. I will follow the instructions of the Court.' Because you are representatives of the people, all of us, and I'm not going to go on to any more things. I've had my say. "I think Mr. Berman had his say. I just want to remind you to follow the law. When you decide the facts, remember, please, please, you sit as judges. Drive out influences that you think may detract from that pure judgment that is needed in this decision. Drive out things that start creeping into your mind that you feel would render anything less than a pure, honest, open, fair judgment because if you do that, the quality of your judgment will be reflected in your verdict, whatever it may be."

(2008) CAMDEN COUNTY COUNCIL ON ECONOMIC OPPORTUNITY, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES et al., Defendants. Civil Action No.: 07-1835 (RCL). United States District Court, District of Columbia. July 7, 2008. MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. This matter comes before the Court on the parties' cross-motions for summary judgment. The Court has considered defendants' motion [15] and plaintiff's motion [20], the opposition and reply briefs, the entire record herein, and the applicable law. For the reasons set forth below, defendants' motion [15] will be GRANTED; plaintiffs motion [20] will be DENIED. I. BACKGROUND Plaintiff, Camden County Council on Economic Opportunity, is a not-for-profit corporation founded in 1965 and incorporated in 1966 to carry out the "Great Society" programs of the Johnson Administration. Plaintiff operates a variety of programs in furtherance of its charitable purposes, including Head Start which serves about 1,300 low-income children and their families through twenty-three sites that provide "health, educational, nutritional, and other services that are determined, based on family needs assessments, to be necessary." Head Start Act, 42 U.S.C. § 9831 (2008). Within defendant United States Department of Health and Human Services ("¶¶ S"), the Administration for Children and Family ("ACF") administers and oversees the Head Start program. This case arises out of a review of plaintiffs Head Start program by or under the supervision of ACF. Such a review is required every three years. Except where expressly indicated, the following facts are not in dispute. A. ACF's Review of Plaintiffs Head Start Program Plaintiff is a non-profit corporation established under the laws of New Jersey and had been a Head Start grantee for the greater Camden, New Jersey area. (Am. Compl. ¶ 2.) ACF conducted a review of plaintiffs Head Start program in September 2005 using the Program Review Instrument for Systems Monitoring ("PRISM"). (Id. ¶ 9.) Plaintiff then received a letter from ACF dated January 27, 2006 notifying plaintiff that it was a grantee with deficiencies as defined under 45 C.F.R. § 1304.3(a)(6)(i)(A) and 45 C.F.R. § 1304.3(a)(6)(i)(c). (Admin. R. at 226); 45 C.F.R. § 1304.3 (2008). Plaintiff was found to have failed to perform substantially in the areas of Childhood Development and Health Services as well as Program Design and Management. (Admin. R. at 226.) The Head Start Program Performance Standards, codified in 45 C.F.R. § 1304, sets forth the minimum requirements of a Head Start grantee. (Defs.' Mem. in Supp. of Summ. J. at 2.) The Head Start Act states that if the ACF Secretary identifies a deficiency, the grantee may be required to correct the deficiency immediately (within thirty days), within ninety days, or pursuant to a Quality Improvement Plan (QIP). 42 U.S.C. § 9386a(d)(1)(B)(ii) (2007). In its letter, ACF noted twelve deficiencies and required that some be corrected immediately and the rest be resolved within ninety days. Plaintiff claims that ACF lacked the authority under its own regulations to require correction of deficiencies within ninety days absent a QIP. (Pl.'s Cross-mot. for Summ. J. at 9.) Plaintiff further argues that ACF failed to follow the statutorily required procedures in doing so. (Id.) The parties dispute whether ACF had authority to impose a ninety-day corrective action period and whether it followed the proper procedures in doing so. B. March 2006 Follow-Up Review The March 2006 follow-up review focused solely on the deficiencies that ACF identified as requiring correction immediately, within thirty days. (Admin. R. at 187.) ACF found that plaintiff continued to be in noncompliance with 45 C.F.R. § 1304.53(a)(10)(viii) by. failing to "ensure that the outdoor premises of a site were cleaned daily and kept free of undesirable and hazardous materials and conditions." (Id. at 201.) Though ACF originally identified this issue specifically with regard to two sites, Charleston Center and Hayes Center, the follow-up revealed the existence of similar problems at a third site, Lois I Center. (Id.) When ACF revisited the sites three days later, some improvements had been made, but some hazardous and unsanitary conditions remained unresolved. (Id. at 202.) Plaintiff contends that ACF failed to provide adequate notice to plaintiff of its need to address the conditions at the Lois I Center. (Pl.'s Cross-mot, for Summ. J. at 16.) ACF and the Departmental Appeals Board ("DAB") rejected this argument, finding that the regulation clearly sets forth the expectation that all outdoor premises will be cleaned daily and free from undesirable and hazardous materials and that plaintiff "had notice of the type of conditions that the survey regarded as violating the performance standard." (Admin. R. at 15-16; Defs.' Mem. in Supp. of Summ. J. at 14.) Whether ACF properly held plaintiff responsible for a continuing deficiency at a site not specifically mentioned in the initial January 2006 report remains a disputed issue. C. May 2006 Follow-Up Review The May 2006 follow-up review took place ninety-one days after plaintiffs receipt of the January 2006 report. (Defs.' Mem. in Supp. of Summ. J. at 9.) This review revealed that plaintiff remained a grantee with deficiencies. Plaintiff failed to "ensure that all children were up-to-date on their medical and dental care within the [ninety]-day period." (Id.; Admin. R. at 187, 195.) Plaintiff had also failed to, "[i]n collaboration with each child's parent,... ensure that all children enrolled in the program were screened for developmental, sensory, and behavioral concerns." (Defs.' Mem. in Supp. of Summ. J. at 9; Admin. R. at 196.) Finally, ACF found that plaintiff had "not fully established and maintained efficient and effective record-keeping systems to provide accurate and timely information regarding children, families, and staff." (Defs.' Mem. in Supp. of Summ. J. at 10; Admin. R. at 188, 198.) Though the parties disagree as to how many records and files fell short of the prescribed performance standards, plaintiff concedes continuing deficiencies. Plaintiff primarily attacks the May 2006 follow-up review on procedural grounds, asserting that defendants may only impose a ninety-day correction period if the ACF Secretary, "taking into consideration the seriousness of the deficiency and the time reasonably required to correct the deficiency[,]" determines such a course of action to be appropriate. 45 U.S.C. § 9836a(d)(1)(B)(ii) (2007). The exact number of insufficient files and whether defendants may be afforded a presumption of reasonableness remain disputed issues. D. ACF's Decision to Terminate Plaintiffs Head Start Grant Funding A letter dated April 9, 2007 notified plaintiff of ACF's decision to terminate plaintiffs Head Start grant funding on the basis that plaintiff failed "to timely correct the findings determined to constitute deficiencies from the PRISM Monitoring Review conducted in September 2005." (Admin. R. at 186); See 45 C.F.R. § 1303.14(b)(4). Plaintiff timely appealed in accordance with 45 C.F.R. § 1303.14.(f)(1), and DAB granted summary disposition in favor of ACF, affirming defendants' decision to terminate plaintiffs federal financial assistance. (Defs.' Mem. in Supp. of Summ. J. at 11; Admin. R. at 1.) Plaintiff now seeks an order from this Court granting declaratory and injunctive relief on the basis that defendants' decision to terminate plaintiff's grant was arbitrary, capricious, and/or contrary to law pursuant to the Administrative Procedure Act ("APA"). See 5 U.S.C. § 701-706 (2008). II. DISCUSSION A. Legal Standards for Summary Judgment and Administrative Action Review A Court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" suitable for trial. FED. R.CIVP. 56(c). To ascertain whether an issue involves "material" facts, a court must look to the substantive law on which the claim or defense rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" if its resolution could establish an essential element of the nonmoving party's challenged claim or defense. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where "the nonmoving party [ ] fails[ ] to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," the moving party is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. 2548. Further, the Court must accept the nonmoving party's evidence as true and must draw "all justifiable inferences" in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions, not those of a judge[.]" Id. Yet "[t]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient." Id. at 252, 106 S.Ct. 2505. This standard is "`very close' to the `reasonable jury' directed verdict standard," and despite their distinct procedural postures, "the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or ... is [instead] so one-sided that one party must prevail as a matter of law." Id. at 250-51. Under the APA, the Court is to set aside an agency action that is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (2008). The standard of review is highly deferential to the agency, so that a Court need not find that the agency's decision is "the only reasonable one, or even that it is the result [the Court] would have reached had the question arisen in the first instance in judicial proceedings." Am. Paper Inst, Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983). The Court is not entitled to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Moreover, judicial review is confined to the full administrative record before the agency at the time the decision was made. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981). When reviewing that record, the Court considers "whether the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Jifry v. FAA, 370 F.3d 1174, 1180 (D.C.Cir.2004). B. Application of Legal Standards 1. Plaintiff's Argument that ACF Did Not Have Authority to Impose a Ninety-Day Corrective Action Period Plaintiff argues that ACF acted without authority in requiring plaintiff to correct its deficiencies within ninety days absent a QIP. (Pl.'s Cross-mot. for Summ. J. at 9.) Plaintiff bases this claim on the plain language of 45 C.F.R. § 1304.60(b), which states that defendants may require a grantee to correct any deficiencies "either immediately or pursuant to a Quality Improvement Plan." 45 C.F.R. § 1304.60(b) (2008) (emphasis added). In plaintiffs view, this regulation acts as a self-imposed constraint on defendants' discretionary authority under the Head Start Act, which provides that a grantee may be required: (i) to correct the deficiency immediately, if the Secretary finds that the deficiency threatens the health or safety of staff or program participants or poses a threat to the integrity of Federal funds; (ii) to correct the deficiency not later than ninety days after the identification of the deficiency if the Secretary finds, in the discretion of the Secretary, that such a ninety-day period is reasonable, in light of the nature and magnitude of the deficiency; or (iii) in the discretion of the Secretary (taking into consideration the seriousness of the deficiency and the time reasonably required to correct the deficiency), to [develop] a quality improvement plan[.] 42 U.S.C. § 9836a(d)(1)(B)(ii) (2007) (emphasis added). Defendants counter that the regulation's section 1304 carries an effective date of January 1, 1998; only thereafter, on October 27, 1998, was the ninety-day corrective action period added to the Head Start Act as an option. (Defs.' Mem. in Supp. of Summ. J. at 29.) Because Congress is presumed to be familiar with existing relevant law when it enacts legislation and because regulations must conform to the requirements set forth in the statute under which they are promulgated, defendants contend that the regulation was implicitly superceded by the statutory provision's amendment. See, e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988); United States v. Larionoff, 431 U.S. 864, 873, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). This Court is satisfied that defendants acted properly under their statutory authority to impose a ninety-day correction period and agrees with DAB that "[t]here was no indication that the regulation was intended to limit the options made available by the statute." (Admin. R. at 8.) The evidence does not present sufficient disagreement to require submission to a jury, and therefore no genuine issue exists with regard to defendants' authority to impose a ninety-day corrective action period. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. 2. Plaintiff's Argument that ACF Failed to Consider the Relevant Factors in Deciding to Impose the Ninety-Day Period Plaintiff argues that even if ACF had authority to impose a ninety-day corrective action period, it did not follow the proper procedural process in doing so. (Pl.'s Cross-mot. for Summ. J. at 13.) 42 U.S.C. § 9836a(d)(1)(B)(ii) affords defendants the option to impose a ninety-day correction period if the ACF Secretary determines that this time frame "is reasonable, in light of the nature and magnitude of the deficiency." 42 U.S.C. § 9836a(d)(1)(B)(ii) (2007). Plaintiff asserts that "[w]hen a statute requires agencies to `consider' particular factors, it imposes upon agencies duties that are `essentially procedural'.... [T]he only role for a court is to ensure that the agency has considered the [factors]." (Pl.'s Cross-mot. for Summ. J. at 14) (quoting Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C.Cir.1986)). Plaintiff argues that without concrete evidence of a reasonableness determination by defendants, the Court may not fully and fairly determine whether ACF's decision to impose the ninety-day corrective action period was arbitrary and capricious. (Pl.'s Cross-mot. for Summ. J. at 14-15); 5 U.S.C. § 701 (2008). DAB found that defendants were under no obligation to prove or explain their bases for deciding to impose a particular time frame and that reasonableness may be presumed from ACF's reference in the January 2006 notice to relevant statutory provisions and specific review findings. (Defs.' Mem. in Supp. of Summ. J. at 14.) Because the standard set forth in 42 U.S.C. § 9836a(d)(1)(B)(ii) is one of reasonableness rather than a multi-factor analysis, this Court is persuaded that DAB properly presumed defendants' finding that a ninety-day time period was reasonable "in light of the nature and magnitude of the deficiencies." (Id.; Admin. R. at 14.) The violation identified by defendants as requiring immediate correction involved the inspection and cleaning of an outdoor playground, whereas those violations afforded a ninety-day corrective action period involved updating and supplementing files and contacting parents to make the necessary arrangements. (Defs.' Mem. in Supp. of Summ. J. at 4-6.) Ensuring that client files are kept up-to-date is an inherently time-consuming project but is absolutely necessary to the program's successful operation and therefore required prompt and expeditious attention. Correction of incomplete files could not be justifiably deferred by requiring a QIP. Further, plaintiff made no effort to contest the ninety-day period until it had expired and plaintiffs funding was revoked. Seeking another bite at the apple when these deficiencies affect the safety and health of low-income families and their children is unacceptable and shall not be rewarded. The Court finds that defendants used proper discretion in imposing the ninety-day corrective action period and that its decision was not arbitrary, capricious, or otherwise contrary to law. 5 U.S.C. § 706(2) (2008). The evidence does not present sufficient disagreement to require submission to a jury, and therefore no genuine issue exists with regard to defendants' determination of reasonableness. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. 3. Plaintiffs Argument that ACF Failed to Provide Adequate Notice of Plaintiffs Need to Address the Conditions at Lois I Center Plaintiff argues that defendants improperly relied on conditions at the Lois I Center as a basis for terminating plaintiffs funding by providing insufficient notice to plaintiff that defendants would consider conditions at all of plaintiffs playgrounds, not only the sites specifically mentioned in the initial January 2006 report. (Defs.' Mem. in Supp. of Summ. J. at 14; Pl.'s Cross-mot. for Summ. J. at 16.) The Head Start Act requires that defendants show similarity between an initial determination of deficiency and a final determination in order to properly support a decision to terminate funding, and plaintiff asserts that defendants failed to meet this standard. (Pl.'s Cross-mot. for Summ. J. at 16); See 42 U.S.C. § 9836a(d)(1)(A) (2008). Defendants counter that no "legitimate notice question" exists since "CCC had notice of the type of conditions that the surveyors regarded as violating the performance standard." (Admin. R. at 16); See First State Cmty. Action Agency, Inc., DAB No. 1877 (May 1, 2003). Like at Charleston Center, Lois I Center had a "wooden pile with rusty nails sticking out of it and ... other debris, which included trash and leaves on the playground," clearly posing a threat to the health and safety of children. (Defs.' Mem. in Supp. of Summ. J. at 26.) This Court is satisfied that defendants provided sufficient notice to plaintiff with regard to the 45 C.F.R. § 1304.53(a)(10)(viii) deficiency and agrees with DAB that the review process "is not intended to be an opportunity to play cat and mouse with ACF by correcting one premise while allowing other premises to be or become noncompliant or by correcting one set of hazards while allowing similar hazards to exist." (Admin. R. at 16.) The evidence does not present sufficient disagreement to require submission to a jury, and therefore no genuine issue exists with regard to plaintiffs claim of insufficient notice. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. 4. Plaintiff's Argument that ACF Reported Inaccurate Information, Thereby Precluding Summary Judgment in Favor of Defendants Plaintiff disputes ACF's findings in the May 2006 follow-up review with regard to the exact number of files affected by each category of missing information, concluding that these disparities invalidate defendants' termination decision. (Pl.'s Cross-mot, for Summ. J. at 20-24.) Plaintiff also alleges that some files only remain incomplete because "the parents ... either failed to submit requested documentation or failed to make/attend [an appointment]." (Id. at 20.) However, the statutory regulation plainly states that plaintiff "must assist parents in making the necessary arrangements to bring the [children's files] up-to-date," not rely solely on the parents' initiative. 45 C.F.R. § 1304.20(a)(1)(ii)(A) (2008) (emphasis added). Further, whether plaintiff is missing documentation of six as opposed to seven lead screenings, or eleven rather than twelve vision screenings is irrelevant since plaintiff does not dispute any one of defendants' findings in its entirety. (Pl.'s Cross-mot. for Summ. J. at 20-24.) Plaintiff remained a grantee with deficiencies despite having ninety days to bring its files and premises up to the minimum statutorily required standards. Defendants properly terminated plaintiffs federal financial assistance because plaintiff "failed to timely correct one or more deficiencies as defined by 45 C.F.R. § 1304[.]" See 45 C.F.R. § 1303.14(b)(4) (2008). The evidence does not present sufficient disagreement to require submission to a jury, and therefore no genuine issue exists with regard to the true number of nonconforming files and outdoor premises. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. III. CONCLUSION For the foregoing reasons, plaintiffs Motion for Summary Judgment will be DENIED, and defendants' Motion for Summary Judgment will be GRANTED. A separate order shall issue this date.

491 F.Supp. 1199 (1980) ROBERT'S WAIKIKI U-DRIVE, INC., a Hawaii Corporation; Robert's Kauai U-Drive, Inc., a Hawaii Corporation; Robert's Maui U-Drive, Inc., a Hawaii Corporation; and Robert's Hawaii U-Drive, Inc., a Hawaii Corporation, Plaintiffs, Counterclaim-Defendants, v. BUDGET RENT-A-CAR SYSTEMS, INC., a corporation, Defendant, Counterclaim-Plaintiff. Civ. No. 77-0009. United States District Court, D. Hawaii. June 9, 1980. *1200 *1201 *1202 *1203 *1204 Martin Anderson, David J. Reber, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for plaintiffs, counterclaim-defendants. Wallace S. Fujiyama, Fujiyama, Duffy & Fujiyama, Honolulu, Hawaii, Robert Salman, Phillip, Nizer, Benjamin, Krim & Ballon, New York City, for defendant, counterclaim-plaintiff. DECISION ON MOTIONS SAMUEL P. KING, Chief Judge. I. BACKGROUND FACTS Robert's Waikiki U-Drive, Inc., et al., (Robert's) brought this action in 1977 against Budget Rent-A-Car Systems, Inc. (Budget) for damages resulting from certain fly-drive agreements Budget had entered into with Aloha Airlines in 1971 and Pan American World Airways in 1972, and from certain acquisitions made by Budget in 1969. The case arises under the federal antitrust laws and the antitrust and unfair competition laws of the State of Hawaii. The Court has independent jurisdiction over the state claims because of diversity of citizenship. Plaintiffs (Robert's) were four car rental companies doing business on Oahu, Maui, Kauai and Hawaii. These companies were consolidated by merger on December 31, 1978. Robert's is a closely-held, family-owned and operated corporation, operating under the direction of the Robert Iwamoto, Sr. family. Budget's Hawaii operations were opened in the early 1960's by Irwin Bickson through a licensing or franchise agreement between Budget Rent-A-Car Corporation of America and Mr. Bickson's partnership, doing business as Budget Rent-A-Car of Hawaii. In 1969, Leisure Corporation, a subsidiary of Transamerica Corporation, acquired the independently owned, exclusive Budget licensees on the islands of Oahu, Maui and Kauai. Budget of Kauai was partially owned by Robert Iwamoto, Jr., an officer and director of various Robert's companies, and when he sold out to Leisure, he was required to enter into a restrictive covenant that prevented him from actively participating in the car rental market in Hawaii for five years. In 1974, Leisure Corporation was merged into Transamerica. Defendant Budget now operates the Hawaii franchises and is a wholly owned subsidiary of Budget Rent-A-Car Corporation, which is also owned by Transamerica. Defendant is an Illinois corporation engaged in the car rental business in various states. *1205 Though the acquisitions of the licensees are challenged by Robert's, the crux of the case is the fly-drive agreements. Beginning in the summer of 1971, Budget, in conjunction with Aloha Airlines, began offering fly-drive programs. The essence of these programs was that the consumer was offered a package, so that when he flew on Aloha he received a special rate on a Budget car. In the first program, an Aloha passenger who flew to Maui or Kauai could rent a Budget car for one day for $19.95. In the second program, an Aloha passenger who flew to the island of Hawaii could rent a Budget car for one day for $12.95. The third program, and the one that is at the heart of this lawsuit, was the $7.00 fly-drive package. In an agreement with Aloha, Budget promised to rent automatic compact cars to certain Aloha passengers for one day for $7.00. The regular Budget rate was $14.00. This agreement was entered into between Budget and Aloha in September 1971, and provided that Aloha was to pay Budget $7.00 for each rental. The program remained in effect through September 1973. In October of that year a new fly-drive agreement was entered into, and by its terms the payments to Budget were not to be linked to the number of cars rented, but rather were to be linked to Budget's prorata share of the advertising costs of the programs. Robert's contends that the Federal Aviation Act forbade an airline from reducing the airfare it was required to charge under its tariffs. Robert's claims that although the payments to Budget from Aloha were stated to be for advertising expenses, they were in fact illegal rebates that had the effect of reducing airfares. Robert's also claims that Budget and Aloha engaged in a fraudulent coverup to hide the true nature of the rebates from the C.A.B., from competitors and from the general public. Robert's alleges that during the course of the coverup Budget and Aloha falsified invoices, and Aloha and its employees submitted altered documents to and gave perjured testimony before the C.A.B. In April 1972, Budget entered into a fly-drive agreement with Pan American. The agreement covered only the island of Oahu, and the fly-drives were available both to round-trip Pan American passengers and to passengers who switched from another carrier to Pan American for their return trip to the Mainland. The payments from Pan American to Budget were $5.00 per rental. In June 1972, the C.A.B. began an investigation of the Budget-Pan American fly-drive program. Richard O'Melia, Director of the Bureau of Enforcement of the C.A.B., wrote to the President of Pan American stating that the C.A.B. had received a complaint contending that the fly-drive arrangement constituted "rebates in violation of Section 403(b) [49 U.S.C. § 1373(b)] of the Federal Aviation Act and an unfair practice or an unfair method of competition within the meaning of Section 411 [49 U.S.C. § 1381] of the Act." Robert's alleges that during the C.A.B. investigation a false copy of the Budget-Pan American agreement was submitted to the C.A.B. The submitted agreement spoke of Pan American reimbursing Budget for one-half of the total advertising expenditures, rather than Pan American paying Budget a flat, per-car figure. Robert's also claims that during a contemporaneous C.A.B. audit of Aloha, a similar false contract was submitted. The C.A.B. closed its informal investigation of the Budget-Pan American fly-drives without determining the legality of the arrangement. Robert's argues that this was due to the fraud perpetrated on the C.A.B. The C.A.B. commenced a formal enforcement proceeding against Aloha in 1973. In his 1975 decision, the Administrative Law Judge determined that Aloha had violated 1) § 403(b) of the Federal Aviation Act by indirectly rebating to passengers the payments it had made to Budget; 2) § 404(b) of the Act, 49 U.S.C. § 1374(b), by making the lower airfare available only to those passengers who rented Budget cars and 3) § 411 of the Act by violating § 403(b), and "by interfering with the normal competitive processes through the use of the unlawful *1206 rebating plan to increase its market share at the expense of a competitor." The Administrative Law Judge ordered Aloha to cease and desist from its violations of the Act. The decision of the Administrative Law Judge was affirmed by the C.A.B. in an "Opinion and Order" filed in October 1976. Aloha petitioned the Court of Appeals for the District of Columbia Circuit for review of the C.A.B.'s order. That court affirmed the C.A.B. insofar as it had determined that the 1971 fly-drive plan allowed for illegal rebates in violation of the Act, but reversed the C.A.B.'s finding that the 1973 agreement violated the Act. The court did not find substantial evidence in the record to support the latter finding. Aloha Airlines, Inc. v. C.A.B., 598 F.2d 250 (D.C. Cir. 1979). In 1972, Aloha initiated an antitrust action against Hawaiian Airlines in this Court. Hawaiian counterclaimed, charging that the fly-drive agreements were illegal under the antitrust laws. During pretrial proceedings on the counterclaim, Hawaiian asserted that the fly-drives were illegal tying arrangements. This Court rejected that claim as a matter of law. Aloha Airlines, Inc. v. Hawaiian Airlines, Inc., 68 F.R.D. 351, 353 (D.Hawaii 1975). A jury decided against Hawaiian on the counterclaim, but this Court granted a new trial because of evidence that John Sakamoto of Aloha had given perjured testimony. The counterclaim was settled before a retrial. II. ROBERT'S § 1 CLAIM AGAINST BUDGET A. The Fly-Drives as Illegal Tying Arrangements Robert's initial contention is that the $7.00 fly-drive agreements between Budget and Aloha, and between Budget and Pan American, were tying arrangements, illegal per se under § 1 of the Sherman Act, 15 U.S.C. § 1 (1976). Robert's moves for partial summary judgment and for an order in the form of a jury instruction to the effect that these fly-drives were "tying arrangements which are to be found illegal per se under Section 1 of the Sherman Act if Robert's demonstrates that there was sufficient economic power in the tying product and a not insubstantial amount of commerce was affected." The Court rejects the contentions of Robert's that the fly-drives were illegal tying arrangements.[1] On the surface the plan looks relatively simple. Certain Aloha customers were told that they could rent a Budget car for one day for $7.00. It appears at first glance that if there were a tying arrangement, the tying product was the discounted car rental. That was the product that was intended to, and in fact did attract customers. Clearly customers were not accepting the "onerous" discounted car rental rate in order to take advantage of the normal Aloha airfare. Nevertheless, plaintiffs ask the Court to rearrange the transaction. They contend that since in reality Budget was receiving rebates from Aloha in the amount of the discount (or nearly in the amount of the discount), the products should be viewed as a $14.00 car rental and discounted airfare. Therefore, contends Robert's, the discounted airfare was the tying product, and the car rental was the tied product. The Court will arguendo view the arrangement in this way. The classical definition of a tie-in is "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier." Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). In other words, there *1207 must be coercion. A buyer must be told that he will not get the tying product unless he purchases the tied product. "Of course where the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit at a single price." 356 U.S. at 6 n.4, 78 S.Ct. at 518. No fly-drive customers, however, were actually coerced. Plaintiffs do not contest the fact that consumers could travel on Aloha and rent a Budget car, or travel on Aloha and not rent a Budget car. Yet, they still argue that there was the requisite coercion. They begin and end their argument with United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977) (Fortner II).[2] In Fortner II, U.S. Steel had one division that sold prefabricated houses, and another that provided financing for prefabricated house purchasers. U.S. Steel agreed to lend Fortner $2,000,000 on very advantageous terms, in return for Fortner's agreement to purchase, for $689,000, the components for 210 homes. Fortner contended that the credit terms offered were 1) not available but for the component purchase and 2) "unique." They therefore contended that because of the size of the U.S. Steel credit department, and because of the uniqueness of the financing (it covered 100% of Fortner's acquisition and development costs), U.S. Steel possessed "appreciable economic power" in the tying market, the market for the type of financing offered. In Fortner II the Supreme Court was considering the question of whether absent significant economic power in the credit market, the per se uniqueness of the credit offered was enough to establish appreciable market power. The Court held it was not. Quite clearly, if the evidence merely shows that credit terms are unique because the seller is willing to accept a lesser profit—or to incur greater risks— than its competitors, that kind of uniqueness will not give rise to any inference of economic power in the credit market. Yet this is, in substance, all that the record in this case indicates. Fortner II, 429 U.S. at 621-22, 97 S.Ct. at 868. What plaintiffs focus on, however, is the fact that the Court viewed discounted financing as a tying product (or a potentially tying product). Robert's maintains that here the discounted airfare must be viewed as a different product than the non-discounted airfare, and thus the separate availability for purchase of non-discounted airfare becomes irrelevant. If a customer wanted the "unique" discounted airfare, he had to also purchase the tied car rental. The Court believes that Robert's misreads the Fortner cases. The only financing U.S. Steel offered was the discount financing, and only to buyers of prefabricated houses. It was not in the business of offering credit per se, and it did not offer "regular" financing as well as discount financing. In this case, Aloha offered both discounted[3] and non-discounted airfare, and the non-discounted airfare could be purchased with no car rental strings attached. This is the equivalent of the situation described in Northern Pacific. "Of course where the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit at a single price." 356 U.S. at 6 n.4, 78 S.Ct. at 518. The Fortner cases are inapplicable because in them the discounted financing was the only financing that was offered. There was coercion in that if the buyer wanted any financing at all from U.S. Steel, it had to purchase the houses. In Fortner II the Court recognized that the uniqueness of certain types of products gave rise to a presumption of economic power. The Court was speaking of patent monopolies, copyright monopolies and extensive land holdings. 429 U.S. at 619, 97 *1208 S.Ct. at 867. Plaintiffs contend that since Aloha was offering its rebates illegally, and other carriers (Hawaiian) could not legally compete, the discounted airfares had the same type of uniqueness as patents and copyrights. The Court rejects this contention. If a patent holder offered a patented product for $50 by itself, and for $43 if purchased with a $14 widget, that would not on the surface be an illegal tie-in. That is so even though no other manufacturer could offer the patented product for sale at any price. If the terms were such that the price for the patented product alone was so high that no one would buy it without the widget, a question of a tie-in might be raised, since the separate price could be viewed as a non-legitimate offering. However, in this case, the non-discounted rate for the airfare was market price, and even the $14 rate for the alleged tied car rental was not high. The offering of the non-discounted airfare was legitimate. Robert's preoccupation with Hawaiian's legal barriers to meeting Aloha's price does not focus on the coercion question. The Fortner cases teach that legal barriers to competitors may make a product unique, but nowhere do they hold that there is coercion if the tying product is sold at market by itself, and below market in conjunction with another product. A case in point is SmithKline Corp. v. Eli Lilly & Co., 427 F.Supp. 1089 (E.D.Pa.1976), aff'd, 575 F.2d 1056 (3d Cir.), cert. denied, 439 U.S. 838, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978). The simplified facts of this case are that Lilly sold two drugs, Keflin and Keflex, and it essentially had monopoly power in the market for those drugs.[4] It also sold a third, similar drug—Kefzol. SmithKline tried to compete in the market with Ancef, a product identical to Kefzol. Lilly offered a pricing schedule to hospitals, and the practical effect of the schedule was that if the hospitals purchased a sufficient amount of Kefzol (enough to effectively exclude them from purchasing a significant amount of Ancef), they received a discount of 3% on their purchases of all three drugs. They were free to purchase Ancef, but if they did so, they would not, as a practical matter, be able to receive the 3% discount. Their purchases of Keflin and Keflex were very large, and they usually bought Kefzol, even though Ancef was cheaper. SmithKline claimed that in reality Lilly was conditioning the purchase of 3% discounted Keflin and Keflex on the purchase of expensive Kefzol. That is the same contention Robert's is making in this case (except for the fact that here the tied product—the "$14.00" car rental—is not expensive). The district court held that the arrangement was not a tie-in. It stated that since the buyer was free to buy the non-discounted Keflin and Keflex, there was no coercion and no tie-in. It went on to state: From an abstract perspective, if one disregards the economics of the market place, hospital pharmacists had the "freedom to choose" any of Lilly's products without having to buy a tied product; thus they were "free to take either product by itself." . . . The economics of the marketplace precluded that freedom of choice for most hospitals; such a freedom of choice, more prevalent in theory than in operational reality, is enough to circumvent the tie-in prohibitions of the relevant antitrust laws. 427 F.Supp. at 1114. This is precisely in point. Robert's attempts to distinguish the case by contending there was an "absence of any . . . uniqueness" in the tying products in SmithKline. This is an untenable position. Lilly had huge, monopoly-type dominance, in the market for Keflin and Keflex—two patented products—[5] and in terms of an antitrust analysis, that is close to the maximum uniqueness possible. Other cases that the Court has examined support its conclusion that Robert's has not shown the requisite coercion so as to make *1209 out a prima facie case of a per se violation of the Sherman Act.[6] Defendant also argues that because neither Aloha nor Pan American had any direct economic interest in the tied product market, there was no tie-in. Robert's avers that because 1) each fly-drive package sold by Budget increased airline revenues; 2) Budget sometimes paid commissions to Aloha and 3) Budget paid some incentive bonuses to Aloha and Pan American employees, there was the requisite economic interest in the tied product market. The law is straight forward in this area. The tying seller must have an economic interest in the tied market, see Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir. 1977), and classically this takes the form of his trying to introduce a product into the tied market. See, e. g., Rodrigue v. Chrysler Motors Corp., 421 F.Supp. 903, 904 (E.D.La.1976). In order for one to establish an illegal tying agreement, it is necessary to show that the tying arrangement involves a seller who not only competes in the tying item's line of commerce, but also participates for profit in the area of competition to which the tied item belongs. See also Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979) ("There is no illegal tying arrangement where a `tying' company has absolutely no interest in the sales of a third company whose products are favored by the tie-in"); BBD Transportation Co., Inc. v. United States Steel Corp., 1976-2 Trade Cases (CCH) ¶ 61,079 at 69,874 (N.D.Cal. August 25, 1976). Plaintiffs' allegation that "substantial revenue" flowed to the airlines does not meet the economic interest test. Any time two products are sold as a package, there is presumably some benefit to both parties. There was an economic interest in the transaction—more particularly the part of the transaction that involved the payment for airfare—but that is not an economic interest in the tied product market. Showing revenue from the transaction as a whole is not enough. Similarly, the fact that Budget provided sales incentives to Aloha and Pan American employees did not result in Aloha and Pan American having an economic interest in the tied market. Plaintiffs' claim as to rebates paid to Aloha by Budget presents a slightly different problem. The original $7 fly-drive agreement contained a provision that for every package that Aloha sold, Budget would pay Aloha one dollar. In Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), the court stated that in order for there to be a tying arrangement, the tying company must have a financial interest in the sales of the tied product. 585 F.2d at 834-35. The court noted, however, that in that case there were allegations of rebates from the producer of the tied product to the seller of the tying product. The court stated: The jury could have found from the evidence we have discussed that Sealy [manufacturer of the tying product—a franchise] forced the use of the [tied product] and was paid handsomely by Universal [manufacturer of the tied product] simply for creating a captive market in which it could and did charge a premium price. Even if the [tied product] was a superior product, such an arrangement was unlawful. 585 F.2d at 835. Although plaintiffs' claim seemingly comes within the rubric of Ohio-Sealy, the *1210 Court finds a basic difference between the two cases. In Ohio-Sealy, defendant got the rebates because of sales of the tied product. Here, Aloha got the one dollar because it, not Budget, sold the package. Aloha's economic stake was not in the tied market but rather in its own selling ability. In the situation contemplated in Ohio-Sealy, the manufacturer of the tied product would kick back money to the manufacturer of the tying product for steering business its way. Buyers would be forced (presumably) to pay higher prices for the tied product if they wanted the tying product. The seller of the tying product would make money each time a tied product was sold. Here, in a complete reversal of the situation contemplated in Ohio-Sealy, the seller of the tying product, Aloha, was paying the seller of the tied product, Budget, so that Budget's product could get a free ride. That the payment from Aloha to Budget was one dollar less when Aloha sold the product does not change the functional analysis. There was no interest in the tied product market because no money actually flowed to Aloha every time there was a car rental. Budget simply got one dollar less when Aloha sold the package. The evils that were alluded to in Ohio-Sealy are not present in this case, and the language regarding viewing a package sale as a tying arrangement because of rebates is inapposite. Aloha did not have an economic interest in the tied product market sufficient to allow the $7.00 fly-drive to be viewed as an illegal tying arrangement. The Court notes finally that it has difficulty accepting the picture painted by Robert's —a picture that portrays the discounted airfare rather than the discounted car rental as the tying product. The Court does not feel that it need reach the question of the accuracy of the portrait. Since the requisite coercion was not present, and since Aloha and Pan American had no economic interest in the tied product market, the fly-drives were not tying arrangements amounting to per se violations of § 1 of the Sherman Act. B. Standing Plaintiffs contend that even if the conduct of Budget does not rise to the level of a per se violation of the antitrust laws, it still violates § 1 of the Sherman Act on a rule of reason analysis. Section 1 condemns unreasonable restraints of trade, and aside from several set categories of per se violations such as price fixing, the reasonableness of a particular restraint is determined by examining all the facts and circumstances surrounding the restraint. Budget first argues that plaintiffs have no standing to raise their § 1, rule of reason claims, because even if there were a conspiracy, Robert's was not within the "target area" of that conspiracy. Budget relies on the case of Conference of Studio Unions v. Loew's Inc., 193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). The Court believes that a thorough analysis of the Studio Unions case is appropriate. In that case there were a group of major studios (Majors) who were accused by an association of labor unions (the Conference) of conspiring with another group of unions (IATSE) to violate the antitrust laws. The complaint charged that the Majors and IATSE conspired for the purpose of destroying the Conference and its member unions, and for the purpose of "eliminating as competitors the motion picture production companies herein described as the Independents." 193 F.2d at 52. The alleged conspiracy was multifaceted. It included an agreement by the Majors only to hire IATSE members in most circumstances, and an agreement by IATSE to supply all the labor needs of the Majors before supplying any of the labor needs of the Independents. The Majors also agreed amongst themselves to curtail production of motion pictures and to limit competition in the distribution of motion pictures. The Conference contended that it suffered antitrust injury because the conspiracy prevented its members from working for the Majors. The court rejected this contention, holding that the conspiracy was directed toward the Independents and therefore only they had standing. According to the court, the Conference did not *1211 suffer any injury due to a lessening of competition among the commercial studios, the only real targets of the conspiracy. The court stated: A conspiracy may have many purposes and objects; the conspirators may perform an almost infinite variety of acts in furtherance of the conspiracy; but, in order to state a cause of action under the antitrust laws a plaintiff must show more than that one purpose of the conspiracy was a restraint of trade and that an act has been committed which harms him. He must show that he is within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry. Otherwise he is not injured "by reason" of anything forbidden in the antitrust laws. 193 F.2d at 54-55. Budget argues that "under the misguided theory of the fly/drives as an antitrust conspiracy, if these programs were `directed' at someone, competing airlines would have been the alleged `targets.' . . . Budget's position is that Robert's is not in any area of the economy which is directly, and not merely incidentally, affected by the claimed wrong so as to give rise to antitrust standing." Budget's Reply Memorandum in Support of its Motion for Summary Judgment at 19. Budget reads Studio Unions as viewing the conspiracy alleged there as one that was intended to destroy both the Independents and the Conference. Budget claims that Studio Unions holds that even though IATSE, one of the conspirators, clearly had as its object the elimination of the Conference, the Conference was denied standing. The Court does not read Studio Unions that way. What hurt the Conference was the agreement by the Majors only to hire IATSE members. The Studio Unions court did not view this agreement on the part of the Majors as itself violative of the antitrust laws. The Studio Unions court viewed only the conduct and agreements directed at the Independents (IATSE agreeing not to furnish workers, and restraints in film distributions) as arguably violative of the antitrust laws. Since the Majors' agreement not to use Conference workers was not an antitrust violation, the Conference was injured only incidentally as the result of the illegal conspiracy. In this case, Robert's alleges that 1) Budget's intent was to increase its market share (even though Aloha, obviously, was interested only in the air transportation market) and 2) the agreement did in fact restrain competition in the rental car market. Robert's maintains that since Budget's target was the car rental market, car rental companies have standing. In light of the Court's interpretation of Studio Unions, the Court agrees. There can be two targets of an antitrust conspiracy, and Studio Unions is not to the contrary.[7] The formulation of the "target area" test of standing has changed somewhat since Studio Unions, and even since In Re Multidistrict Vehicle Air Pollution, 481 F.2d 122, 128 (9th Cir.), cert. denied sub nom. Morgan v. Automobile Manufacturers Association, Inc., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973) ("To attain standing, a plaintiff must thus allege that the antitrust violation injured a commercial enterprise of the plaintiff in the area of the economy in which the elimination of competition *1212 occurred"). In Solinger v. A&M Records, Inc., 586 F.2d 1304, 1311 (9th Cir. 1978), the court related the test for standing: "In order to have standing under section 4 when the plaintiff has alleged violations of sections 1 and 2, Solinger must show that the injury occurred within an area of the economy that foreseeably would have been affected by the antitrust violation alleged." The court noted specifically that foreseeability had not been used by the Multidistrict Vehicle Air Pollution court in formulating a standing test.[8] In this case, it is certainly possible that the fly-drives could have endangered competitive conditions in the car rental market. Budget was offering cars at $7 below the market rate, and might possibly have been expected to pick up enough business to put some of its marginal competitors out of business. The allegation is that Budget's competition had no legal way of meeting Budget's rate, and the focus is not on what actually happened, but on what foreseeably could have happened. The Court holds that the foreseeability test is the proper one for standing,[9] and finds that some competitive breakdown in the car rental market was foreseeable. Therefore, the Court finds that Robert's has standing to raise its § 1, rule of reason claim. C. Injury to Competition In order to establish a prima facie case of a § 1, rule of reason violation, plaintiffs must show an injury to competition. As the Ninth Circuit has recently stated: The elements of a cause of action for an unreasonable restraint of trade under the rule of reason analysis of Sherman One are: (1) An agreement among two or more persons or distinct business entities; (2) Which is intended to harm or unreasonably restrain competition; (3) And which actually causes injury to competition. Kaplan v. Burroughs Corp., 611 F.2d 286, 290 (9th Cir. 1979); Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 844 (9th Cir. 1980).[10]*1213 Defendant contends that plaintiffs have made absolutely no showing as to injury to competition, and at the hearing on the instant motions, the Court closely questioned plaintiffs' counsel on this point. The following are some of his responses to the Court's questions as to what evidence of injury to competition has been presented by Robert's. Yes, well, the deposition of the Iwamoto family has made it clear that in the customer lines in front of the U-drive counters, that when an Aloha Airlines plane would land, the people would flock to the Budget counters, and the rest of them were there looking around at empty spaces; and then they were trying to go over and get them out of the line. (Transcript of Hearing at 34). . . . . . Well, the fact of financial information alone, sir, the Robert's financial information and their gross revenues was [sic] going up until it hit 1972; and then it dropped. (Tr. at 34-35). . . . . . And the impact on [Robert's], it's not a very far move to say there's no reason why it should affect them anymore to [sic] affect everyone else. (Tr. at 37). . . . . . From the evidence that the Iwamotos, that their business was hurt; from the findings of the CAB who said that other people couldn't do it; from the admissions of Mr. Bickson who said he was selling below cost if he sold for $7. (Tr. at 38-39). . . . . . And I'm saying, on competition, the evidence in this case right now is that when that Aloha Airlines landed, all the people ended up in front of Budget; and there are about six or seven or eight rental U-drives in front. Now that's some evidence they're affected. (Tr. at 40). . . . . . Injury to competition is not bankruptcy; it's only loss of profits. (Tr. at 40). Plaintiffs have not alleged that they went out of business because of the fly-drives. They have not alleged that anyone else went out of business because of the fly-drives. They have not alleged that because of the fly-drives consumers were forced to pay more within the car rental market. They have not alleged that because of the fly-drives Budget achieved a market position that allowed it to impose onerous terms on consumers of rented cars. They have shown no diminution in competition. As is demonstrated by the quotations from plaintiffs' counsel's argument, plaintiffs are alleging only that they and other competitors of Budget lost money. It is clear to the Court that their contention is that this is enough of a showing of injury to competition to withstand a motion for summary judgment. It is equally clear to the Court that they are wrong. As has been said many times, many ways, the antitrust laws protect competition, not competitors. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). And competition is not injured simply because one or more competitors suffer a loss of income. Lessening of competition can be shown if the number of competitors is reduced appreciably, or if there are outward signs of adverse effects on competitive conditions such as rising prices, or onerous terms being imposed on consumers, but adverse impact is simply not shown by a loss of profits, or even by the total elimination of one competitor. As was stated by the Ninth Circuit in Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 450 (9th Cir. 1979): Plaintiff had to demonstrate genuine issues of material fact not only with respect to the causal connection between its *1214 injury and defendants' actions, rather clearly appearing here, but also that its injury was of the type the antitrust laws were intended to prevent, that is, that defendants' conduct did have some anticompetitive effect beyond plaintiff's own loss of business or the market's loss of a competitor. And again in Gough v. Rossmoor Corp., 585 F.2d 381, 386 (9th Cir. 1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979); the Ninth Circuit stated: To amount to an unreasonable restraint of trade the anticompetitive conduct must have an effect greater than its effect upon the plaintiff's business.... The conduct must have an adverse impact on the competitive conditions in general as they exist within the field of commerce in which the plaintiff is engaged. Many other cases make the same point.[11] Despite the clear case law, plaintiffs dispute this conclusion. In their Memorandum in Opposition to Defendant's Motion for Summary Judgment, they make several points. They first contend that since Budget was "already in a position of dominance in the discount car rental industry, and indeed in the car rental industry overall, at the time it developed its fly-drive programs," that alone is enough to allow a jury to conclude that there was an unreasonable restraint of trade. They cite Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978). In the first place, as defendant points out, there is no evidence before the Court that Budget was in a position of market dominance. In the second place, Columbia Metal is inapposite. The allegations in that case were that Kaiser, which controlled 80% of the aluminum culvert market, conspired to drive one of its few competitors out of business. 579 F.2d at 32. Here, there is no contention that Budget's market share was even close to 80%. In addition, in this case, Budget had literally scores of competitors. Finally, there is no evidence at all that the contract or conspiracy had as its purpose putting particular competitors of Budget out of business. Robert's first contention is untenable. Plaintiffs' second contention is that because the "core of the fly-drive programs was the illegal reduction of air fares by Aloha," such illegality "must be weighted heavily in the jury's calculus of reasonableness." Apparently plaintiffs believe that because of the illegal methods allegedly used, injury to competition need not be further shown. Defendant's position is that under the antitrust laws, the legality or illegality of particular conduct (as measured by laws other than the antitrust laws) is totally irrelevant in determining whether there has been an unreasonable restraint of trade. Although the Court agrees with plaintiffs that the legality or illegality of a course of conduct is a relevant factor in a rule of reason case, a threshold question is, nevertheless, whether given that illegal conduct, there has been an injury to competition. *1215 The Court does not believe that the cases defendant cites stand for the proposition that assuming injury to competition, the legality or illegality of the conduct that caused such injury is irrelevant. Conduct that is arguably reasonable despite injury to competition, because of valid business or market considerations, may well be found by a jury not to be reasonable if in violation of non-antitrust laws. A jury might even be instructed that after finding injury to competition, one factor they could consider in determining whether a restraint was reasonable, was whether the restraint or conduct surrounding it violated a particular non-antitrust law or regulation. A rule of reason determination is made by looking at all facts surrounding a restraint. Defendant relies on Sitkin Smelting & Refining Co., Inc. v. FMC Corp., 575 F.2d 440 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978). That case involved an allegation of sham bidding, whereby one of the bidders was given the opportunity to match the highest bid received in the bidding process. If it matched that bid, it was to be awarded the contract. Defendant cites some unconditional language from the case: "Conduct not within the scope of the Act is not made into an antitrust violation by accompanying conduct which is reprehensible under some moral or ethical standard or even illegal under some other law." 575 F.2d at 447. Yet, the case talks of conduct not otherwise within the scope of the antitrust laws, and conduct that injures competition is within that scope, even though under some circumstances it may not violate the Sherman Act. Sitkin emphasizes the fact that there was no evidence that market prices, quantity or quality were affected. There was no evidence of any material diminution in competition. Similarly, in this case, plaintiffs have not shown any diminution in competition or adverse effect on market price.[12]Sitkin supports the position of defendant, but it does not make the legality of conduct irrelevant in a rule of reason analysis. Defendant also cites Juneau Square Corp. v. First Wisconsin National Bank, 475 F.Supp. 451 (E.D.Wis.1979). In that case, illegal and unfair means were allegedly used to drive a competitor out of business. The district judge told the jury that in order to find an antitrust violation, they would first have to find an injury to competition. He also instructed the jury that the illegal nature of acts committed by the defendants was irrelevant. In reviewing a motion for a new trial, the court stated: Whether any of these acts also violated principles of tort law was not, in and of itself, determinative of an antitrust violation. Merely because a defendant's acts may have constituted a tort does not automatically make that defendant's acts violative of the Sherman Act. 475 F.Supp. at 457. The court also noted that plaintiffs had, in closing argument, presented their theory regarding the allegedly illegal conduct to the jury. Looking at the judge's comments as a whole, this Court believes they do not stand for the proposition that the legality or illegality of conduct is irrelevant. It is irrelevant, however, in determining whether there was injury to competition, and tortious or illegal conduct does not "automatically, in and of itself," establish an injury to competition, and therein a violation of the Sherman Act. Plaintiffs next claim that the unreasonableness of the restraints (and hence by implication the injury to competition) is ipso facto demonstrated because there was a *1216 drastic reduction in prices, "despite increasing cost pressures on all car rental companies during this period." They cite in conjunction with this Ben Hur Coal Co. v. Wells, 242 F.2d 481, 486, (10th Cir.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1427 (1957). That case involved a claim that the defendant sold goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor in violation of § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a (1976). No claim is made with regard to that section in this case, and no evidence of any specific intent to destroy a particular competitor or competition has been shown. Budget aptly cites Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). That case involved a claim that Chrysler violated § 1, because it subsidized its partially-owned dealers without providing similar assistance to independent dealers. Though the effect of the subsidies was to lower prices to consumers, the plaintiff claimed that the subsidies were unreasonable because it could not compete, and its competitive opportunities were, therefore, unreasonably restricted. The court held that unless there was forward vertical integration that had the effect of concentrating Dodge sales in the hands of Chrysler-owned dealers, there was no antitrust violation. The court ruled that the subsidies had a pro-competitive effect at both intrabrand and interbrand levels. This was despite the fact that the subsidies obviously reduced the profits of non-subsidized dealers, and despite the fact that plaintiff claimed some of the cars sold by its subsidized competitors were sold at prices that no private venture capital dealers could afford to meet. Similarly, in this case, plaintiffs contend that because they were unable to meet Budget's price without losing money, there was injury to competition. As the Glauser court rejected that contention, so does this Court. Plaintiffs attempt to distinguish Glauser because that case dealt only with intrabrand competition, and this one deals with interbrand competition. The Glauser court, however, did not so limit its holding, and in fact stated that the rule of reason standard is as applicable to restraints on intrabrand competition as it is to restraints on interbrand competition. 570 F.2d at 82. Plaintiffs' final contention is that the Supreme Court in Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967), held that there can be injury to competition when a competitor loses profits because forced to match a very low price not justified by costs. The Court noted that a jury could reasonably have concluded "that a competitor who is forced to reduce his price to a new all-time low in a market of declining prices will in time feel the financial pinch and will be a less effective competitive force." 386 U.S. at 699-700, 87 S.Ct. at 1334. This Court first notes that Utah Pie involved a claim under Section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) (1976). The relevant portion of that section forbids discriminatory pricing where the effect "of such discrimination may be substantially to lessen competition . . . in any line of commerce . . .." That section is not the same as § 1 of the Sherman Act, and, in addition, there was clear evidence of discriminatory pricing and some evidence of predatory intent in Utah Pie. Also, as defendant points out, in Utah Pie the jury found for plaintiff on the § 1 conspiracy count. Finally, this Court takes note of the fact that antitrust law has changed since 1967, and to the extent that the rationale of Utah Pie supports plaintiffs' contentions, it clashes with the rationale of Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), which requires antitrust injury—injury associated with lessened competition.[13] Given today's legal climate, the Court views as apropos the comments of Mr. Justice Stewart, dissenting in Utah Pie: *1217 That the Court has fallen into the error of reading the Robinson-Patman Act as protecting competitors, instead of competition, can be seen from its unsuccessful attempt to distinguish cases relied upon by the respondents. Those cases are said to be inapposite because they involved "no general decline in price structure," and no "lasting impact upon prices." But lower prices are the hallmark of intensified competition. 386 U.S. at 705-06, 87 S.Ct. at 1337 (footnote omitted).[14]See also Pacific Engineering & Production Co. v. Kerr-McGee Corp., 551 F.2d 790, 796 (10th Cir.), cert. denied, 434 U.S. 879, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977). The Court finds that plaintiffs have not made a prima facie showing of injury to competition, a necessary component of their § 1, rule of reason cause of action. Since, as discussed above, they have also not shown any per se violations of § 1, their entire § 1 claim must be dismissed. Defendant agreed that if plaintiffs' § 1, claim was to be dismissed, its counterclaim should be dismissed also. Thus defendant's counterclaim will be dismissed. III. SECTION 2 CLAIMS A. Attempt to Monopolize Plaintiffs assert that the actions of Budget in participating in the fly-drives, and in engaging in other alleged anticompetitive conduct, establish a prima facie case of an attempt to monopolize under § 2 of the Sherman Act, 15 U.S.C. § 2 (1976), and under the Hawaii equivalent, Haw.Rev. Stat. § 480-9 (1976). There are four essential elements of a § 2, attempt to monopolize claim: 1) specific intent to control prices or destroy competition with respect to a part of commerce; 2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; 3) a dangerous probability of success and 4) antitrust injury. California Computer Products Inc. v. International Business Machines, 613 F.2d 727, 736 (9th Cir. 1979); Foremost International Tours, Inc. v. Qantas Airways Ltd., 478 F.Supp. 589, 594 (D.Hawaii 1979). The first element, specific intent, can either be shown by direct proof, or by inference from proof of the second element, predatory or anticompetitive conduct directed to accomplishing the unlawful purpose. However, if the latter method is used, the conduct must be such that it can serve as the basis for a substantial claim of restraint of trade. Janich Brothers, Inc. v. American Distilling Co., 570 F.2d 848, 855-56 (9th Cir. 1977), cert. denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978);[15]Hallmark Industry v. Reynolds Metal Co., 489 F.2d 8, 12-13 (9th Cir. 1973), cert. denied, 417 U.S. *1218 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974); Foremost Tours, supra, 478 F.Supp. at 594. The third element, dangerous probability of success, can be shown by direct proof of market power, but it can also be inferred from proof of specific intent to control prices or destroy competition (element 1), accompanied by predatory pricing directed toward that end (element 2). Janich, supra, 570 F.2d at 853; Hallmark, supra, 489 F.2d at 12; Lessig v. Tidewater Oil Co., 327 F.2d 459, 474 & n. 46 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964). Thus, if the second element, predatory or anticompetitive conduct that can serve as the basis for a substantial claim of restraint of trade, is made out, in some circumstances that second element can serve as the basis for an inference of specific intent, and then in turn as the basis for an inference of dangerous probability of success. In any circumstance, plaintiffs' first task is to establish specific intent by direct proof, by showing the requisite predatory or anticompetitive conduct or possibly by showing market power sufficient to support a finding of dangerous probability of success.[16] Plaintiffs do not contend in their memoranda that they can establish specific intent by direct proof, but rather assert that they can show it by inference. Their relevant market is the "discount" car rental market in Hawaii, though the defendant maintains that the only market raised by the pleadings is the Hawaii car rental market in general. Defendant also contends that no evidence whatsoever regarding any discount market has been presented to the Court. The Court believes that even if it looks at the discount market as the relevant market, plaintiffs have not presented evidence sufficient to withstand summary judgment. Plaintiffs rely on certain of defendant's conduct to support the inference of specific intent. Naturally they rely on the fly-drives, but they also claim to rely on Budget's knowing participation in a conspiracy to violate the Federal Aviation Act, Budget's practice of extracting unreasonably restrictive covenants in connection with its acquisitions and Budget's 20%-25% share of the entire car rental market, "with its share for the discount car rental market being substantially greater." The Court first notes that it has been shown only one restrictive covenant, and does not believe that this covenant is such that it supports in any measurable degree Robert's claim of specific intent. Therefore, all the Court will examine is the fly-drives, Budget's conduct in connection with them and Budget's alleged market power. *1219 Market power is relevant in several ways in connection with specific intent. First, market power is relevant when considering whether there is a substantial claim of restraint of trade from which to infer specific intent, because in a rule of reason case, injury to competition is determined by reference to a particular market, and by reference to the market shares held by the alleged conspirators.[17] Second, a different type of market power is relevant if a plaintiff cannot support a substantial claim of restraint of trade. He may be able to show inferable specific intent by showing market power sufficient to support a finding of dangerous probability of success, combined with conduct that does not rise to the level of a § 1 violation. See note 15 supra; cf. note 17 supra.[18] The Court will consider the latter type of market power first. Plaintiffs have not made a showing of market power sufficient to support a finding of dangerous probability of success, even if the discount car rental market is considered as the relevant market. The only evidence regarding market share is an estimate that Budget's present market share in the entire Hawaii car rental market is 20%-25%. There is no evidence regarding Budget's share of the discount car market, though Robert's naturally contends that it is significantly higher. Still, whatever market power Budget holds is market power in a very competitive market. Robert's *1220 has presented no evidence regarding the number of companies competing in the car rental market in Hawaii. Defendant has presented some probative evidence[19] that the number of car rental companies in Hawaii increased during the years 1973 to 1976, and was at all times over one hundred. Budget's competitors included Hertz, Avis and National (although Robert's might claim that those companies were not strong competitors in the discount car rental market). One of Robert's owners testified at his deposition that he believed Robert's fleet size and volume were greater at that time than in 1971, the year the fly-drives first started. The Court also notes that the practice that is the basis of the attempt to monopolize claim—the fly-drives—is a practice whereby Budget was renting cars for one day to certain airline customers at alleged predatory rates. Subsequent days were at regular prices. Plaintiffs have presented no evidence on the percentage of rental business that these programs accounted for, but that percentage is obviously an important factor in the Court's determination of what market share is necessary to support a finding of dangerous probability of success. All the evidence so far presented has indicated that the car rental market in Hawaii, or even the discount car rental market in Hawaii, is highly competitive, and at least as competitive now, and at the time the lawsuit was filed, as it was during the time preceding the fly-drives. The market share necessary to support a finding of dangerous probability of success in this case is higher than has been shown to belong to any operator in the car rental (or discount car rental) business. In General Communications Engineering, Inc. v. Motorola Communications & Electronics, Inc., 421 F.Supp. 274 (N.D.Cal.1976), the court was considering dangerous probability of success in connection with a claim that Motorola had attempted to monopolize the private two-way radio communications market in Northern California and the United States. Plaintiff presented affidavits that Motorola's share was 71%, and other evidence was that Motorola's share was 64%. The court noted that even given this market share, the relevant market was so competitive that it virtually precluded a finding of dangerous probability of success.[20] Though the market share required for monopoly power is perhaps different from the market share required for dangerous probability of success, the Court finds instructive the views of other courts as to what market share is necessary for monopoly power. In United States v. Aluminum Company of America, 148 F.2d 416, 424 (2d Cir. 1945) (Learned Hand, J.) the court expressed doubt as to whether a 60%-64% market share could amount to a monopoly. In Transamerica Computer Co., Inc. v. International Business Machines Corp., 481 F.Supp. 965, 986 (N.D.Cal.1979), the court found that I.B.M.'s 53.8% market share in *1221 one peripheral computer product market did not rise to the level of a monopoly share. Though these cases are only guides for the Court, they reinforce its view that plaintiffs have not presented evidence sufficient to withstand summary judgment on this issue, especially considering the fact that the relevant market is a very competitive one. Plaintiffs have not shown a market share sufficient to support a finding of dangerous probability of success. Plaintiffs, therefore, must show predatory or anticompetitive conduct that can serve as the basis for a substantial claim of restraint of trade.[21] The Court has already determined that the conduct in this case did not rise to the level of an unreasonable restraint of trade. That forecloses the possibility that the alleged predatory and anticompetitive conduct can serve as the basis for an inference of specific intent. Plaintiffs, however, contend that there was predatory pricing. The Court notes that element 2 of the cause of action, as it is presented by Janich, is predatory pricing or anticompetitive behavior, but for this element alone to support an inference of specific intent (element 1) it must rise to the level of an unreasonable restraint of trade. The Court will, nevertheless, discuss plaintiffs' claim, as it appears that the Ninth Circuit definition of predatory pricing tracks the Ninth Circuit definition of conduct that constitutes an unreasonable restraint of trade. In Janich, predatory pricing was defined as follows: Pricing is predatory only where the firm foregoes short-term profits in order to develop a market position such that the firm can later raise prices and recoup lost profits [citations omitted]. Therefore, the product must be such that if predatorily priced, rivals are likely to be driven out of the market or excluded, allowing the firm to raise prices. 570 F.2d at 856. Here, there is no evidence that defendant was foregoing profits, since it was receiving rebates from the airlines. In addition, as the Court noted in connection with the § 1 claims, there is no evidence that any rivals were driven out of the market or excluded. There is no evidence that anything Budget did gave it the ability to raise prices. There is no evidence that had the fly-drives continued, Budget would have been in a position to either exclude competition or raise prices. In short, there is no evidence of predatory pricing. Even the alleged below-cost pricing (excluding rebates) occurred on only a part of Budget's total business. In Janich, the court indicated that the pricing of one product in an entire line at a low level is predatory only if it is likely to drive out or exclude rivals from the entire market. 570 F.2d at 856-57. Even if rivals are unable to sell the one low-priced product, there is no predatory pricing unless that inability to sell is likely to drive them out of the entire market—in this case either the Hawaii car rental market or the Hawaii discount car rental market. While Robert's has presented some evidence that other car rental firms were unable to compete effectively for the patronage of certain Aloha customers, they have presented absolutely no evidence that those firms were unable to compete within other segments of the car rental or discount car rental markets. Even were the fly-drives such an important part of the market as to provide a vehicle for a predatory pricing claim, there is no evidence that Budget was selling below marginal, or average variable cost. That is the case even if the rebates are totally ignored. In Janich, the court indicated that once a product has enough market importance to sustain a predatory pricing claim, predatory pricing can be shown by demonstrating sales below marginal cost, or where that is too difficult to show, sales below average variable cost. 570 F.2d at 857; Hanson v. Shell Oil Co., 541 F.2d 1352, *1222 1358 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977). Marginal cost has been defined as "the increment to total cost that results from producing an additional increment of output." Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697, 700 (1975). Marginal cost is sometimes difficult to ascertain from conventional business records, and average variable cost[22] is likely to approximate marginal cost. Areeda & Turner, supra, 88 Harv.L.Rev. at 700 n.13, 716-17 & n.42; Janich, supra, 570 F.2d at 858. In this case, though there has been some deposition testimony that the $7 fly-drives were below "cost," the context in which the statements were made indicates that the cost referred to was average cost, not marginal or average variable cost.[23] It must be remembered that the $7 rate was only for the first day of the fly-drives. Therefore, it would be necessary to determine the average length of the car rental portion of the fly-drivers, and the average revenue to Budget from each fly-drive. Then the marginal or average variable cost of the average fly-drive would have to be determined. There has been no evidence that this cost was less than what Budget took in, even ignoring the rebates. Marginal or average variable cost parameters are suggested by this excerpt from plaintiffs' counsel's argument on the § 2 claims: Now, that's a fair inference from that, that when other people are forced to sell for $7, as is our testimony replete to the depositions, that when the cars were stacked up in the parking lot—and it's a perishable commodity; if you don't rent today, you'll never rent it again. It's like a hotel room. You rent for whatever you can get if for. (Tr. at 41). If renting cars for the $7 rate was below marginal cost, it would have been unprofitable for anyone to have rented them. Businessmen do not rent for whatever they can get, if what they can get is less than marginal cost. As discussed in note 23 supra, however, this analysis may not be valid if the fly-drive cars Budget was renting would have been rented anyway. Because Robert's has failed to make a sufficient showing as to specific intent, its attempt to monopolize claim cannot withstand summary judgment. In making this specific intent determination, the Court has also determined that plaintiffs have not presented evidence sufficient to withstand summary judgment as to whether there was 1) predatory or anticompetitive conduct that can serve as the basis for a substantial claim of restraint of trade; 2) market power sufficient to support an inference of dangerous probability of success or 3) predatory pricing that was likely to drive out or exclude rivals from the entire relevant market.[24] *1223 B. Conspiracy to Monopolize Plaintiffs have also made a claim that the defendant engaged in a conspiracy or combination to monopolize in violation of § 2 of the Sherman Act, and in violation of Haw.Rev.Stat. § 480-9 (1976). Though plaintiffs and defendant disagree as to the elements of a prima facie case of conspiracy to monopolize, one element of that cause of action is specific intent to monopolize, i. e., specific intent to control prices or destroy competition in any line of trade or commerce. Pacific Coast Agricultural Export Association v. Sunkist Growers, Inc., 526 F.2d 1196, 1205 (9th Cir. 1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1741, 48 L.Ed.2d 204 (1976); Chisolm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1144 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974); V. & L. Cicione, Inc. v. C. Schmidt & Sons, Inc., 403 F.Supp. 643, 651 (E.D.Pa.1975), aff'd, 565 F.2d 154 (3d Cir. 1977). See also Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 453 & n.48 (9th Cir. 1979). The test for specific intent is no different when a conspiracy to monopolize claim, as distinguished from an attempt to monopolize claim, is being considered. Since the Court has already held that plaintiffs have satisfied none of the possible tests for specific intent in connection with their attempt to monopolize claim, their conspiracy to monopolize claim must also fall. IV. SECTION 7 CLAIMS Plaintiffs also seek relief for alleged violations of § 7 of the Clayton Act, 15 U.S.C. § 18 (1976), and the Hawaii equivalent, Haw.Rev.Stat. § 480-7 (1976). They challenge certain acquisitions made by the defendant, and also challenge certain alleged anticompetitive conduct made possible by the acquisitions. They seek divestiture, damages and other injunctive relief. Plaintiffs challenge the 1969 acquisitions of Budget Rent-A-Car of Hawaii, Budget Rent-A-Car of Kauai and Budget Rent-A-Car of Maui, by Leisure Corporation, Budget's predecessor in interest. Plaintiffs are also apparently trying to challenge Budget's subsequent acquisitions of its sublicensee on Maui and a non-licensee, Island Holidays. These two acquisitions were not mentioned in the complaint, and the Court does not consider that defendant was fairly apprised that they would be part of the § 7 claim. If plaintiffs make a motion to amend the Court will consider it, though it is unlikely the present trial date can be kept if claims based on these two acquisitions are added. Defendant first contends that Budget Rent-A-Car of Hawaii was a partnership, and hence not within the reach of either § 7 or § 480-7, which forbid the acquisition of "the whole or any part of the assets of another corporation." See United States v. American Building Maintenance Industries, 422 U.S. 271, 279, 95 S.Ct. 2150, 2155, 45 L.Ed.2d 177 (1975). Plaintiffs concede this, but enigmatically state that this acquisition must be judged by § 1 standards. The Court notes that no § 1 claims surrounding any acquisitions have properly been raised, and the Court has not considered and will not consider any. As to plaintiffs' request for divestiture, the Ninth Circuit has definitely ruled, as the plaintiffs admit, that divestiture is not available in a private § 7 action. Calnetics Corp. v. Volkswagen of America Inc., 532 F.2d 674, 692 (9th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976); International Telephone & Telegraph Co. v. General Telephone & Electronics Corp., 518 F.2d 913 (9th Cir. 1975). Therefore, this Court will not consider divestiture as an available remedy. As to any claim for damages based on the acquisitions themselves, the Court *1224 considers them time-barred. The acquisitions occurred in 1969, and this suit was not filed until some seven years later. As was stated in International Telephone & Telegraph Co. v. General Telephone & Electronic Corp., supra: The four-year limitation of Clayton Act § 4B [15 U.S.C. § 15(b)] for private antitrust actions for damages is long enough to enable potential plaintiffs to observe the actual effects of a possible antitrust violation and to calculate its potential effects. The abuses which would occur if plaintiffs were permitted to search the history of other firms and challenge at their pleasure any possible violations, no matter how old, seem apparent. 518 F.2d at 929. Plaintiffs have argued that they were damaged by anticompetitive acts made possible by the merger. They cite Purex v. Proctor & Gamble Co., 596 F.2d 881 (9th Cir. 1979), and contend that for these anticompetitive acts, the limitations period should be measured from the time the acts were committed. The Court believes that under the teachings of United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 597, 77 S.Ct. 872, 879, 1 L.Ed.2d 1057 (1957) and Purex, a § 7 violation can be based on conduct occurring after an acquisition. When a cause of action is based on such conduct, the statute of limitations begins to run from the date of that conduct, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-39, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971). That does not mean that any damage based on the merger itself reaccrues. For that damage, the four year limitations period begins to run from the date of the acquisition.[25] To base a § 7 violation on subsequent conduct, however, several things must be shown. First, it must be demonstrated that the conduct was made possible by the acquisition, Brunswick Corp. v. Pueblo Bowl-A-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); Purex, supra, 596 F.2d at 887. Plaintiffs must show either that the acts were anticompetitive because of the acquisitions, or that their anticompetitive nature was enhanced by the acquisitions. Acts that might be characterized as merely competitive before a merger, might well be viewed as anticompetitive when performed by a company that, because of the merger, "dominates" the market. Purex, supra, 596 F.2d at 885 & 887. There must be a showing that the conduct was related to an enhanced capacity to meet the short-term threat of a new entrant into a dominated market, F. T. C. v. Proctor & Gamble Co., 386 U.S. 568, 579, 87 S.Ct. 1224, 1230, 18 L.Ed.2d 303 (1967), or simply that the conduct had a tendency to substantially lessen competition or create a monopoly. There has been no evidence of any conduct that had a tendency to create a monopoly in any market, or that had a tendency to stop a particular new entrant from entering a "dominated" market. Thus, plaintiffs are reduced to showing that there was conduct that had a tendency to substantially lessen competition. If they are relying on the fly-drives, they must first show that the acquisitions allowed the fly-drives to take place, or substantially enhanced their anticompetitive nature. As defendant points out, the fly-drives were offered by a non-acquired licensee as well as the acquired licensees. If regardless of the acquisitions, the fly-drives would still have been offered by all the outlets that did offer them, the anticompetitive conduct did not occur (nor was it enhanced) because of the acquisitions. The Court's primary problem with this cause of action, however, is that plaintiffs must show that the enlarged corporation had some type of market dominance. In the Purex case, for example, the acquired firm, Clorox, led the national liquid bleach market with 48.8% of industry sales, and in certain regional markets its position approached monopoly proportions. The Purex *1225 court stated that the Supreme Court test as to whether the merger and subsequent conduct were illegal was whether "the acquisition had the effect of substantially lessening competition in the liquid bleach markets by raising entry barriers or by dissuading the smaller firms, such as Purex, from aggressively competing for fear of retaliation by Proctor." 596 F.2d at 887. Here, there is no evidence that Budget was a dominant firm, that it became a dominant firm in any market by reason of its acquisitions or that the acquisitions or subsequent conduct raised entry barriers. Perhaps an inference can be made that smaller firms were unable to compete for certain of Aloha's passengers, but that provides no evidence as to lessening of competition in the entire relevant market. There is no evidence that smaller firms feared Budget or feared retaliation from Budget, regardless of the financial reserves of Budget's parent, Transamerica. There is, in short, no evidence that any acts substantially lessened competition. While it is true a § 7 violation can occur without proof that an acquisition actually had anticompetitive effects, for damages based on subsequent conduct to be recoverable, there must be actual antitrust injury. In Purex, after the court had already described Clorox as a dominant firm, it noted that it was able to infer that the acquisition had affected competition. Here, the Court has been presented no evidence that acts allegedly made possibly by the acquisition affected competition in any market. A comment exactly on point is made in Julius Nasso Concrete Corp. v. DIC Concrete Corp., 467 F.Supp. 1016, 1024 (S.D.N.Y. 1979): Where an acquisition is challenged, the test is whether [the effect of] the merger "may be substantially to lessen competition, or to tend to create a monopoly." ... Damages are still speculative and the only relief that may be had is an injunction against prospective harm. In contrast, where actions taken after the merger are challenged, actual damages must be shown; it is no longer sufficient to show merely the potential for harm. Thus, the practical effect of the court's ruling in ITT is to prevent private plaintiffs suing over four years after an acquisition has taken place from availing themselves of the prophylactic rule prohibiting mergers with probable anticompetitive effects and to require them to show actual or imminent injury to competition resulting from acts committed or threatened after the combination. In this case, plaintiffs have show no evidence of any actual or imminent injury to competition in any relevant market. Plaintiffs also seek injunctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26 (1979), and under Haw.Rev.Stat. § 480-13 (1976), for violations of § 7 and § 480-7. While one may sue for injunctive relief based on past, present or impending violations of the antitrust laws, International Telephone & Telegraph, supra, 518 F.2d at 928-29, here there is no evidence of either past or present violations of the law. Even had the acquisitions themselves initially violated the law, plaintiffs are not now entitled to injunctive relief unless they can show past anticompetitive behavior, or good reason to expect impending anticompetitive behavior. They have not met their evidentiary burden in either regard, as they have not shown any evidence of injury to competition. They are not entitled to injunctive relief. V. SECTION 480-2 CLAIMS Plaintiffs have made a claim based on Haw.Rev.Stat. § 480-2 (1976), which states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." Section 480-3 states: "It is the intent of the legislature that in construing section 480-2 the courts will be guided by the interpretations given by the Federal Trade Commission and the federal courts to section 5(a)(1) of the Federal Trade Commission Act." Section 480-13 allows treble damage recovery for violations of § 480-2, provided either that the defendant is a merchant as defined by the Hawaii Uniform Commercial *1226 Code, Haw.Rev.Stat. § 490 et seq. (1976), or that the proceeding or suit is in the public interest as those "terms are interpreted under section 5(b) of the Federal Trade Commission Act," 15 U.S.C. § 45(b) (1976). Defendant's first claim is that because only the Federal Trade Commission can enforce the Federal Trade Commission Act, § 480-2 does not create any private right of action. Whatever small doubts previously existed on that score were resolved by the decision of the Hawaii Supreme Court in Ai v. Frank Huff Agency, Ltd., ___ Haw. ___, 607 P.2d 1304 (1980). Section 480-13 creates a private right of action for violations of § 480-2. Defendant's next argument is that because the antitrust claims do not state causes of action, neither can the § 480-2 claim. Many cases that hold that an integral part of a § 1 claim is injury to competition, also state that one reason for this is that the antitrust laws are no substitute for state unfair trade practice or business tort laws.[26] The antitrust laws are primarily, if not exclusively, for the protection of competition, but unfair trade practice laws are for the protection of competitors as well. The standards for establishing causes of action are different, and plaintiffs' inability to make out a viable antitrust claim does not doom their § 480-2 claim to failure. Defendant next contends that even if the standards for an antitrust violation and for a § 480-2 violation are different, it has done nothing that could be considered an unfair trade practice. In order to examine this contention, the Court must determine the meaning of § 480-2. In Ai, the Hawaii Supreme Court noted: "HRS § 480-2, as its federal counterpart in the FTC Act, was constructed in broad language in order to constitute a flexible tool to stop and prevent fraudulent, unfair or deceptive business practices for the protection of both consumers and honest businessmen." In addition, as noted in Ai, the Hawaii House Judiciary Committee, in recommending passage of § 480-2, quoted Congressional justifications for the broad, sweeping language of the Federal Trade Commission Act: It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task. S.C.Rep.No. 267, 3d Leg., Reg.Sess., House Journal at 600 (1965) (quoting H.R.Conf. Rep.No. 1142, 63d Cong., 2d Sess., at 19 (1914)). It is clear then, that the language proscribing unfair and deceptive practices in § 480-2 is far-reaching. In F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972), the Supreme Court was considering the sweep of § 5 of the F.T.C. Act, 15 U.S.C. § 45 (1976): Thus, legislative and judicial authorities alike convince us that the Federal Trade Commission does not arrogate excessive power to itself if, in measuring a practice against the elusive, but congressionally mandated standard of fairness, it, like a court of equity, considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws. 405 U.S. at 244, 92 S.Ct. at 905. The Court approvingly cited the criteria used by the Commission in determining whether a particular practice offends public values and is, therefore, unfair. *1227 "(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some commonlaw, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen)." Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed.Reg. 8355 (1964). 405 U.S. at 244-45 n.5, 92 S.Ct. at 905.[27] As was additionally stated in Spiegel, Inc. v. F.T.C., 540 F.2d 287, 293 (7th Cir. 1976): In determining whether Spiegel's challenged practices are unfair under Section 5 of the Act, the Commission remained faithful to its previously announced criteria. A practice is unfair when it offends public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. The Court must use this type of test to measure the evidence produced by plaintiffs. They have alleged that defendant knowingly conspired with certain airlines to violate the Federal Aviation Act. They have alleged that defendant engaged in certain promotions that were in violation of the Act. They have alleged that they and other competitors could not engage in the same types of programs because of their illegal nature. It is true that the defendant could not have been sanctioned by the C.A.B. for participating in a program that violated the Act, but that is not determinative of the § 480-2 claim. To the contrary, participating in such a program, knowing it to be in violation of the Act, could be considered as offensive to public policy, and immoral, unethical, oppressive or unscrupulous. There is at least a question of fact on this point.[28] Defendant also argues that plaintiffs are barred by the statute of limitations. First of all, the Court notes that for any of the fly-drives that took place after December 16, 1972, the statute of limitations is no bar. Regardless of whether plaintiffs knew of their cause of action as to some fly-drives before this date, each new fly-drive was an alleged new act of unfair competition or a new unfair trade practice, and hence as each fly-drive occurred, a new cause of action accrued. Haw.Rev.Stat. § 480-24 reads: *1228 Any action to enforce a cause of action arising under this chapter shall be barred unless commenced within four years after the cause of action accrues . . .. For the purpose of this section, a cause of action for a continuing violation is deemed to accrue at any time during the period of the violation. Since the fly-drives are alleged to have been a continuing violation, the Court believes that at least insofar as the post December 16, 1972 fly-drives are concerned, the statute of limitations is no bar. Defendant has cited some cases that seem to indicate that in an antitrust context, when a cause of action is based on an illegal contract, the limitations period begins to run from the date of that contract. That limitations period, claims the defendant, applies to all damage suffered, regardless of when it took place. Defendant cites In re Multidistrict Vehicle Air Pollution, 591 F.2d 68 (9th Cir. 1979), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1980), in support of its position. In that case, the court held that plaintiff's damage was certain and the limitations period began to run from the time of a refusal to deal. The court held that subsequent affirmance of the refusal to deal was not a new overt act, and hence did not start the statute of limitations running anew. The court quoted from Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 126-27 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976): Where the violation is final at its impact, for example, where the plaintiff's business is immediately and permanently destroyed, or where an actionable wrong is by its nature permanent at initiation without further acts, then the acts causing damage are unrepeated, and suit must be brought within the limitations period and upon the initial act. 591 F.2d at 72. The case at bar is clearly distinguishable both from the facts of In Re Multidistrict Vehicle Air Pollution, and from the situation spoken of in Poster Exchange. Here, the violation was not final at the time the contracts were signed—it was continuing, and it continued each time there was a fly-drive. A refusal to deal, accompanied by indications that that refusal is permanent, is arguably by its very nature "permanent at initiation without further acts." An open-ended contract, with no set output, is a far different story. Defendant also cites El Paso v. Darbyshire Steel Co., Inc., 575 F.2d 521 (5th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979). The El Paso court held that even though the defendant received payments under a contract until 1974, the statute of limitations started running when the contract was signed in 1970. While on its face that is the situation here, the El Paso court noted that on the date the contract was signed, the rights and liabilities of the parties were finalized. "On that date, the price, the quantity, and the delivery schedule were fixed by the terms of the contract. Any damages caused by the alleged conspiracy were provable with certainty on that date." 575 F.2d at 523. Here, the quantity and delivery schedule were by their very nature unascertainable when the contract was signed. The Court also believes that at the time the contract was signed, damages were too speculative to be proven. As was stated by the Supreme Court in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971): "[E]ven if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable." At the time the original contracts were signed, plaintiffs could not have proved their damages, because it was totally uncertain how many, if any, fly-drives would take place. The program could have lasted for a month, or it could have lasted for years. The Court has examined the cases cited by the defendant, and believes they are all distinguishable from the case at bar. The nature of the damages in those cases was much less speculative at the time the limitations period began, than it was in this case when the fly-drive agreements were entered into. *1229 The Court also doubts whether the general rule cited by the defendant is even valid. [I]t is not at all clear that a cause of action pertaining to a contract which is alleged to be in unreasonable restraint of trade accrues upon execution of the contract. Controlling Ninth Circuit authority indicates that each partial performance of a contract alleged to be in restraint of trade causes the satute [sic] to run anew. Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264, 1270 (9th Cir. 1975). To hold otherwise is to say that some damage that might have been sustained was barred before it accrued. Twin City Sportservice, supra, at 1270. General Atomic Co. v. Exxon Nuclear Co., Inc., 1979-2 Trade Cases (CCH) ¶ 62,966 at 79,499 (S.D.Cal. September 6, 1979). Because the Court views the fly-drives as an alleged continuing violation of § 480-2, see Haw.Rev.Stat. § 480-24, and also because the Court views the federal rule cited by the defendant as not applicable to these facts, the cause of action based on fly-drives that took place after December 16, 1972 is not barred by the statute of limitations. As for fly-drives prior to that date, the Court believes § 480-24 may still control. If read literally, the statute allows the limitations period for all acts to begin running from the date of the last act, if the violation is a continuing one. Since the alleged acts of unfair competition are the fly-drives themselves, as well as the fly-drive agreements, the alleged violation here continued past December 16, 1972. Nevertheless, the Court does not foreclose further argument on this point. Plaintiffs also argue that there was fraudulent concealment. To the extent that their cause of action is based on below-cost pricing, they have no argument. They always knew the lower price that Budget was charging renters, and they had to have had a very good idea of what Budget's costs were. To the extent that their cause of action is based on Budget's entering into contracts that were in violation of the Federal Aviation Act, they have raised material questions of fact as to fraudulent concealment. They contend that Budget hid the true nature of the rebates it received, and hence they were prevented from learning that the Federal Aviation Act was being violated. Plaintiffs have presented sufficient evidence to withstand a motion for summary judgment on this issue. To the extent that plaintiffs can show a continuing violation of § 480-2, or fraudulent concealment of a § 480-2 violation, they can recover provable damages caused by fly-drives that took place prior to December 16, 1972. Plaintiffs have requested that this Court instruct the jury that the fly-drive contracts were illegal under the Federal Aviation Act. They contend that there are no material questions of fact as the illegality of the contracts, and also that Budget is collaterally estopped from denying the illegality of the contracts. As the Court has already held, the legality of the contracts is relevant in this case. Obviously, most evidence surrounding the contracts will be introduced at trial, as both the nature of the contracts and their competitive fairness or unfairness is relevant. Were the Court to now rule that the contracts were illegal, no trial time would be saved, as the Court is certainly not going to rule that if the contracts violated the Act, the defendant automatically violated § 480-2. The purpose of summary judgment is to eliminate unnecessary issues from trial, and thus cut down on trial time. Since granting summary judgment on this point would not have this effect, summary judgment is denied. Plaintiffs also request that Budget be bound by certain facts established in two prior C.A.B. proceedings and in litigation in this Court. The Court first notes that Budget was not a party in any of those proceedings. Robert's cites cases for the proposition that non-parties can in some circumstances be bound by prior proceedings, but the prior proceedings in this case were not only primarily administrative, but were also conducted by an agency that had no jurisdiction over Budget. Though Robert's points out that Budget could have *1230 intervened in the C.A.B. actions, it would be inequitable for this Court to tell Budget that it cannot protect its rights here, because it did not intervene in a proceeding before an agency that had no jurisdiction over it. While Budget might have benefited from a C.A.B. determination that the fly-drives were legal, its stake in this action is much greater than any possible stake it had in the C.A.B. actions. All the cases Robert's cites on the issue of privity involve a similarity of issues and interests between the prior and subsequent proceedings. Those cases also involve a significant amount of participation in the first action by the party sought to be estopped in the second. The Court notes that Robert's evidence as to the extent of Budget's participation in the C.A.B. proceedings is slight. In their reply memorandum, plaintiffs rely heavily on Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F.Supp. 507 (S.D.Fla.1978). In that case, the State of Florida was estopped from litigating the ownership of certain sunken treasure because of prior in rem litigation involving the ownership of the treasure. In the prior litigation, decided against the United States, the State had participated, had had the opportunity to intervene and would have received significant financial benefits had the United States won. The court found that the State had made a purposeful choice to cooperate with the United States, hoping to take advantage of a favorable judgment, rather than intervening and settling all possible questions that could have arisen from the operative set of facts. This case is totally different. There is no evidence that Budget directly participated in the C.A.B. actions, and there is no evidence that its interests were the same in those actions as they are here. All questions arising from the facts considered in the administrative proceedings could not possibly have been settled in those proceedings. Treasure Salvors is not in point, and plaintiffs are not entitled to collaterally use the C.A.B. findings. As for the prior litigation in this Court involving Hawaiian Airlines and Aloha Airlines, the Court sees no applicable principle of law under which Budget can even conceivably be precluded from relitigating anything determined in that action. Budget is not collaterally estopped. VI. EVIDENTIARY MATTERS Both parties have made a variety of motions regarding the use of certain evidence, much of it concerning Aloha's attempt to hide from the C.A.B. the true nature of the fly-drive rebates. The Court notes that the dismissal of the antitrust claims substantially changes the nature of the case, and hence the status of all evidentiary motions. Thus, all motions are denied. New motions may be made, but it is likely most matters will be determined at or near the time of the trial. The Court feels it would be helpful to the parties to discuss generally the types of evidence that will be relevant in this case. Any factual evidence that shows the legal or illegal nature of the contracts; any evidence that shows the nature of the competitive process or the ability of Budget's competitors to compete with the fly-drives; any evidence that shows Budget's knowledge of the alleged illegal nature of the fly-drives; and any evidence that shows industry knowledge in general as to the legality or illegality of the fly-drives, will be relevant. Relevant does not mean admissible, however, and normal hearsay rules will be applied. If plaintiffs intend to introduce acts of Aloha on the ground that they are the acts of a co-conspirator of Robert's, they must show independent evidence of the conspiracy. The Court will require that a preliminary showing of a conspiracy be made outside the presence of the jury, and if the Court is not satisfied with the showing, the Court will not allow the evidence to be introduced. The Court believes that the unfair competition claim is and always has been the heart of this lawsuit. The antitrust claims simply turn a moderately-priced case into a case that could be very expensive. The antitrust claims did not even add the element of treble damages, as treble damages are recoverable for violations of § 480-2. *1231 For the reasons stated above, defendant's motions for summary judgment as to all the antitrust claims will be granted, and all the antitrust claims will be dismissed. Defendant's counterclaim will also be dismissed. Defendant's motion for summary judgment as to the § 480-2 claim will be denied. All of plaintiffs' motions for summary judgment or for jury instructions will be denied. The evidentiary motions will be denied with leave to renew at the appropriate times. The parties are requested to submit appropriate orders consistent with this opinion. NOTES [1] As noted above, the Court rejected a similar contention in earlier litigation. In that case, Hawaiian maintained that the discounted car rental was the tying product and the airfare was the tied product. Here, plaintiffs urge the Court to view the airfare as the tying product and the car rental as the tied product. Of course, it is necessary for these plaintiffs to so urge, as only those sellers competing in the tied market have standing to challenge the arrangement. [2] A prior Supreme Court decision in the same case is Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) (Fortner I). [3] It must always be kept in mind that the idea of a discounted airfare is an invention of the plaintiffs. No consumers ever thought they were getting a $14.00 car rental and a discounted airfare. [4] The district court specifically found monopoly power in the cephalosporin market, with most of that power derived from the sale of Keflin and Keflex. 427 F.Supp. at 1129. [5] See note 4 supra. [6] In Moore v. Jas. H. Matthews & Co., 550 F.2d 1207 (9th Cir. 1977), the court, following Northern Pacific, found that as long as the buyer is free to take either product by itself there is no tying arrangement. The court also indicated that evidence of coercion would be an appreciable number of buyers forced to accept the tied product instead of desirable substitutes. Plaintiffs have made no showing at all on this point. See also Ungar v. Dunkin' Donuts of America, Inc., 531 F.2d 1211 (3d Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976); Greenville Publishing Co., Inc. v. Daily Reflector, Inc., 496 F.2d 391, 400 (4th Cir. 1974) ("Because the combination rate offer is voluntary, we agree with the district court that it is not illegal per se as a tying arrangement"). [7] This Court is not alone in reading Studio Unions differently than Budget. In Blankenship v. Hearst Corp., 519 F.2d 418, 425 (9th Cir. 1975), the court gave its view of Studio Unions: "The court found the plaintiff labor unions and its members to have suffered nonrecoverable `incidental' damages from an alleged conspiracy to drive certain movie production companies which employed none of the union members out of business." Under this view, not only was the conspiracy itself not directed at putting the Conference out of business, it was not even directed at anyone who employed Conference members. The Blankenship quote, therefore, can be viewed as intimating that had the Conference alleged that illegal conduct had been directed toward putting them out of business, or even directed toward putting someone who employed them out of business, there might have been standing. In this case, Budget was not concerned about competition in the air transportation market. It is irrelevant that a greater effect might have been expected in the air transportation market, as long as it is alleged that some restraint was foreseeable in the car rental market as well. [8] 586 F.2d at 1311 n.6. The Court also noted that in a § 1 action "the scope of parties who can be directly injured by an action that `the antitrust laws are designed to prevent' is much broader" than in a § 7 action. 586 F.2d at 1312 n.9. [9] See, e. g., Blankenship v. Hearst Corp., 519 F.2d 418, 426 (9th Cir. 1975) ("In order to define the proper limits of the target `area of the economy' one determines what area `could reasonably be foreseen would be affected' by the alleged illegal activity"); In re Western Liquid Asphalt Cases, 487 F.2d 191, 199 (9th Cir. 1973), cert. denied sub nom. Standard Oil Co. of California v. Alaska, 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974) ("[T]he area of the economy which appellees reasonably could have or did foresee would be endangered by the breakdown of competitive conditions"); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 220 (9th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87 (1964) ("[P]laintiff must show that, whether or not then known to the conspirators, plaintiff's affected operation was actually in the area which it could reasonably be foreseen would be affected by the conspiracy"). [10] The Supreme Court has recently stated that a § 1 violation can be established by proof of "either an unlawful purpose or an anticompetitive effect. United States v. United States Gypsum Co., 438 U.S. 422, 436, n.13, 98 S.Ct. 2864, 2873 n.13, 57 L.Ed.2d 854 (1978); see United States v. Container Corp., 393 U.S. 333, 337, 89 S.Ct. 510, 512, 21 L.Ed.2d 526 (1969); United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 489, 70 S.Ct. 711, 714, 94 L.Ed. 1007 (1950); United States v. Socony Oil Co., supra, 310 U.S. [150] at 224-225, n.59, 60 S.Ct. [811] at 844-846 [84 L.Ed. 1129]." McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 243, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980). The unlawful purpose referred to is an intent to enter into a conspiracy to violate the antitrust laws. While it is possible that this can be the intent to commit a rule of reason violation, all the cases cited by the Supreme Court involved per se violations— usually price-fixing. An unlawful purpose egregious enough to remove the requirement of showing anticompetitive effect, and yet not involving a per se violation, is difficult for this Court to imagine. These plaintiffs have not shown a purpose to enter into a conspiracy per se violative of the Sherman Act. Neither have they shown any direct evidence of an intent to eliminate competition. Whatever circumstances the Supreme Court may have envisioned for allowing a § 1 violation to be established by showing unlawful purpose without anticompetitive effect—not involving a per se violation of § 1, and not involving direct proof of an intent to eliminate competition—are not present in this case. The Ninth Circuit's formulation of the essential elements of a rule of reason, § 1 violation is applicable here. [11] See, e. g., Kaplan v. Burroughs Corp., 611 F.2d 286, 291 (9th Cir. 1979) ("It is the impact upon competitive conditions in a definable product market which distinguishes the antitrust violation from the ordinary business tort"); Golden Gate Acceptance Corp. v. General Motors Corp., 597 F.2d 676, 678 (9th Cir. 1979) ("No allegation or evidence as to an adverse effect upon competition was presented by appellants other than the fact that one distributor would be replaced by another"); Northwest Power Products, Inc. v. Omark Industries, Inc., 576 F.2d 83, 90-91 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); Stifel, Nicolaus & Co., Inc. v. Dain, Kalman & Quail, Inc., 430 F.Supp. 1234 (N.D. Iowa 1977); A.D.M. Corp. v. Sigma Instruments, Inc., 481 F.Supp. 1297 (D.Mass.1980); Petroleum for Contractors, Inc. v. Mobil Oil Corp., 1978-2 Trade Cases (CCH) ¶ 62,151 at 75,082 (S.D.N.Y. July 5, 1978) ("Accordingly, if plaintiffs are to state a claim under § 1 of the Sherman Act, specific factual allegations of injury to competition will have to be pleaded"); Prestige Manufacturing Corp. v. Martin Beverage Co., 1977-1 Trade Cases (CCH) ¶ 61,413 at 71,544 (S.D.N.Y. April 29, 1977) ("The complaint herein contains no allegation, nor any fact from which an allegation may be inferred, that a market, however defined, has suffered a diminishing of competition attributable to defendants' activities"). [12] Sitkin even contains some language favorable to plaintiffs. The court talks of a showing that the contract or conspiracy in a substantial way "unreasonably restrict[ed] competitive opportunity." 575 F.2d at 448. Though plaintiffs have not pressed Sitkin in this regard, they could argue that since they were unable to legally meet Budget's price, their competitive opportunities were unreasonably restricted. However, the way the Court approaches the problem, nothing unreasonably restricts competitive activity unless it affects more than the profits of competitors. If a restraint forces competitors out of the market so that competition is reduced, or if it allows someone in the market to raise market prices or otherwise adversely affect the consumer, then and only then can there be an unreasonable restriction of competitive opportunity. [13] Brunswick does have some language arguably favorable to plaintiffs: The short-term effect of certain anticompetitive behavior—predatory below-cost pricing, for example—may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened. Of course, the case for relief will be strongest where competition has been diminished. 429 U.S. at 489 n.14, 97 S.Ct. at 698. There is no evidence of predatory pricing here, however, see part III infra, because the hallmark of predatory pricing is its likelihood to exclude competitors from an entire relevant market if continued indefinitely. In this case, the alleged below-cost pricing (excluding the rebates) affected only a portion of the relevant car rental market. Even the situation anticipated in the Brunswick footnote was one of a competitor facing a substantial threat of being forced out of business. There is no evidence that even had the fly-drives continued indefinitely, anyone would have been forced out of the entire relevant market. In addition, the fly-drives were not short-lived, and so any tendency to exclude competition would likely have manifested itself. As noted, there was no evidence presented of exclusion of competition, nor was there even any evidence that Robert's lost money, as opposed to profits, in the years of the fly-drives. The Brunswick footnote does not help plaintiffs. [14] The dissent also relied on Utah Pie's large market share in arguing no injury to competition. Admittedly, that aspect is not present in this case. [15] The Ninth Circuit has, since Janich, listed the essential elements of an attempt to monopolize claim in different, sometimes confusing ways. In Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665 (9th Cir. 1980), the court noted that specific intent to control prices or destroy competition, and predatory conduct directed to the accomplishment of that unlawful purpose, are the only two indispensible elements of an attempt to monopolize claim. 610 F.2d at 669. The court also noted that despite Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964), market power is relevant in determining whether specific intent to monopolize is present. This is not inconsistent with Janich's holding that specific intent can be inferred if there is a § 1 violation, for market power is relevant in determining whether there is a § 1 violation. See note 17 infra. The Blair Foods court may also have been saying that market power is relevant in connection with direct, as opposed to inferential proof of specific intent. Finally, the Blair Foods court may have been saying that market power is relevant even when a § 1 violation is shown, but as no § 1 violation has been shown in this case, the Court need not consider that possibility. Janich also implied that there was another way specific intent could be found. Where a plaintiff relies only upon a defendant's conduct to establish an attempted monopolization claim and does not show market power, specific intent to monopolize should ordinarily be inferred only where the alleged conduct is of a kind clearly threatening to competition or clearly exclusionary. Thus, where the plaintiff does not allege and prove market power (element 3), he must demonstrate conduct which is clearly threatening to competition or clearly exclusionary in order to show "predatory conduct which may form the basis of a substantial claim of restraint of trade." 570 F.2d at 854 n.4. The quoted language suggests that conduct that does not rise to the level of an unreasonable restraint of trade, combined with market power sufficient to support a finding of a dangerous probability of success, may also serve as the basis for an inference of specific intent. Thus, in reality, plaintiffs can demonstrate specific intent by direct proof, by showing a substantial restraint of trade (a § 1 violation) or by showing some lesser restraint of trade combined with very significant market power. [16] As regards the latter method, see Janich, supra, 570 F.2d at 854 n. 4 and note 15 supra. [17] In California Computer Products, supra, the court made the following statement: "Market power is relevant to determining whether [making an inference of specific intent from a § 1 violation] is proper, but where a § 1 violation `clearly' exists, proof of market power is unnecessary to support an inference of specific intent." 613 F.2d at 736-37 (footnote omitted). See also Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 453 n.47 (9th Cir. 1979). The Court is puzzled by this statement. It does not see how market power is relevant in inferring specific intent from a § 1 violation that exists, but is not relevant when that § 1 violation "clearly" exists. There cannot be a meaningful distinction between violations that "merely" as opposed to "clearly" exist. The California Computer Products court may have been attempting to equate a "clear" violation with a per se violation. However, once a § 1 violation is found, be it per se or rule of reason, the same market power considerations should control in determining whether to infer specific intent. Proof of market power may not be indispensable once a § 1 violation has been established, but the role of market power cannot be both qualitatively and quantitatively different, depending on whether the violation is rule of reason or per se. Rule of reason violations have as a concomitant part market definition, while per se violations apparently do not. See California Computer Products, supra, 613 F.2d at 737 n.10. Thus, the court may simply have been trying to say that in determining whether there is a per se violation of § 1, market definition (and by implication market power) is not relevant, and so when considering whether to infer specific intent from a per se violation, market definition (and hence by implication market power) is not indispensable. It is also possible that the court was trying to paraphrase Hallmark Industry v. Reynolds Metal Co., 489 F.2d 8, 12-13 (9th Cir. 1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974), which stated: "Therefore, evidence of market power may be relevant, but it is not indispensable where a substantial claim of restraint of trade is made." Hallmark, however, made no distinctions between rule of reason and per se violations, or between clear and other types of violations. A substantial claim of restraint of trade is always necessary for a § 1, rule of reason violation. There is a difference between the market power considerations that go into a determination of whether there was an unreasonable restraint of trade, and the market power considerations that go into a determination of whether there was a dangerous probability of successfully monopolizing a particular market. Even absent the latter degree of power, the market share held by the defendant may well be relevant in determining whether the conduct of the defendant was sufficient to support a finding of an unreasonable restraint of trade. Determinations of injury to competition are made after examining all the facts surrounding a restraint. Acts carried out by a manufacturer with a 5% market share might not injure competition, while those same acts, when carried out by a manufacturer with a 33% market share, might well injure competition. Yet, that 33% market share probably could not support a finding of dangerous probability of success. The Court notes that it has already found that the fly-drives have not been shown to have injured competition regardless of Budget's market share. [18] As was stated in note 15 supra, market power may be relevant in a third way—in connection with direct proof of specific intent. As noted, plaintiffs, in their memoranda, have not tried to establish specific intent by direct proof, but rather only by inference. [19] Defendant has introduced copies of the yellow pages from the telephone books of the several Hawaii counties from 1973, a period at the height of the fly-drives, and from 1976, a period just prior to the filing of the instant lawsuit. Though the yellow pages themselves are hearsay, the Court believes they could either come into evidence under one of several exceptions to the hearsay rule, or else the data underlying them (which is almost certainly reliable) could be proved by non-hearsay testimony. [20] The court granted defendant's motion for summary judgment on the ground that there was not sufficient evidence to support a finding of either specific intent to monopolize or dangerous probability of success. The court did note that if it had been forced to decide the dangerous probability issue, it would have required more evidence defining the relevant market. What this Court considers most instructive about Motorola is that the basis for the antitrust violations was alleged unfair trade practices. The Motorola court noted: "While plaintiff may have a viable cause of action under state law or the Federal Trade Commission Act, this court does not believe that defendant's conduct, even accepting plaintiff's version of it, is sufficient to support the requisite inference of intent to monopolize under section 2." 421 F.Supp. at 291. In this case, though the relevant market is also very competitive, plaintiffs have not even presented evidence that Budget's market share was as large as Motorola's in the Motorola case. [21] It is perhaps possible that an inference of specific intent may be drawn exclusively from conduct that is not actionable under § 1, but only if that conduct is unilateral, and hence not a contract, combination or conspiracy. The conduct must still unreasonably restrain trade, and hence a plaintiff would still have to show an injury to competition. [22] Fixed costs are those that in the short run do not vary with changes in output. They include such things as expenses of management, interest on bonded debt and items of irreducible overhead. Variable costs vary in the short run with changes in output. They include such items as raw materials, fuel, labor used to produce the product, indirect labor for clerical and custodial tasks, utilities, repair and maintenance costs and per unit royalties and license fees. Average cost is determined by adding the fixed and variable costs and dividing by output. Average variable cost is determined by dividing the variable costs by output. Areeda & Turner, supra, 88 Harv.L.Rev. at 700; Janich, supra, 570 F.2d at 858 & n.11; Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980). [23] There was testimony that Budget admitted that absent the payments from Aloha it would have lost money on the fly-drives. This probably means it would have lost money considering average cost. Average cost is the relevant cost if before the fly-drivers all of the Budget's cars were being rented. If a firm is operating at capacity, marginal cost must include increasing the ability to produce, and in this context that would mean either buying more cars or reducing turnaround time. If there is complete use, reducing prices only results in losing money (disregarding the rebates). There is no evidence regarding what percentage of Budget's, or anyone else's cars were being rented prior to the fly-drives. [24] The Court has also discussed whether there was below marginal cost pricing of any product, aside from the question of whether that product had sufficient market importance to even support a claim of predatory pricing, and aside from the question of whether the rebates should be disregarded. Were the only issue before the Court whether, ignoring the rebates, the fly-drives were sold at below marginal or average variable cost, the Court would find that there are disputed questions of fact on this issue. [25] Though the state limitations provision, Haw. Rev.Stat. § 480-24 (1976), differs from the federal, see part V infra, this case is not one of a "continuing violation," as the fly-drives took place two years after the acquisitions. Hence, there can be no possible relation back. [26] See, e. g., George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547 (1st Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975); General Communications Engineering, Inc. v. Motorolo Communications & Electronics, 421 F.Supp. 274, 290-91 & 294 (N.D.Cal.1976); Arizona v. Cook Paint & Varnish Co., 391 F.Supp. 962 (D.Ariz. 1975), aff'd, 541 F.2d 226 (9th Cir. 1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1327, 51 L.Ed.2d 593 (1977); Associated Radio Service Co. v. Page Airways, Inc., 414 F.Supp. 1088 (N.D.Tex. 1976); Eye Encounter, Inc. v. Contour Art, Ltd., 81 F.R.D. 683 (E.D.N.Y.1979); Petroleum for Contractors, Inc. v. Mobil Oil Corp., 1978-2 Trade Cases (CCH) ¶ 62,151 at 75,082 (S.D.N.Y. July 5, 1978). [27] The Court viewed these criteria not as relevant only in the context of cigarette advertising, but rather as those generally used by the Commission in considering questions of fairness. [28] Some guidance is available from other courts as to what constitutes an unfair method of competition or an unfair trade practice. In Barquis v. Merchants Collection Association of Oakland, Inc., 7 Cal.3d 94, 496 P.2d 817, 101 Cal.Rptr. 745 (1972), the court was discussing California's statute prohibiting unfair competition, which is statutorily defined as any unlawful, unfair or fraudulent business practice. The court talked of such things as wrongful business practices generally, in whatever context they may occur. The court also spoke of violations of fundamental rules of honesty and fair dealing. In Covenant Radio Corp. v. Ten Eighty Corp., 35 Conn.Supp. 1, 390 A.2d 949, 955 (1977), the court, quoting Spiegel, defined an unfair trade practice as one that offends "public policy and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Interpretations of the Connecticut statute, as interpretations of § 480-2, are to be guided by interpretations of § 5 of the F.T.C. Act. In Columbia Broadcasting System, Inc. v. Melody Recordings, Inc., 134 N.J.Super. 368, 341 A.2d 348, 352 (Super.Ct.App.Div.1979), the court noted that the tendency of the law has been to espouse scrupulous standards of commercial morality and business fairness in trade. "Reflecting this bent, it has been observed that the essence of unfair competition is fair play." In Harrington Manufacturing Co., Inc. v. Powell Manufacturing Co., Inc., 38 N.C.App. 393, 248 S.E.2d 739, 744 (Ct.App.1978), the court stated that unfair competition refers to conduct a court of equity would consider unfair. "Thus viewed, the fairness or unfairness of particular conduct is not an abstraction to be derived by logic. Rather, the fair or unfair nature of particular conduct is to be judged by viewing it against the background of actual human experience and by determining its intended and actual effects upon others."

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1196 ___________ United States of America, * * Appellee, * * v. * * Antwoyn Terrell Spencer, * * Appellant. * ___________ Appeals from the United States No. 09-1197 District Court for the ___________ District of Minnesota. United States of America, * * Appellee, * * v. * * Derrick Jerome Spencer, * * Appellant. * ___________ Submitted: October 20, 2009 Filed: January 21, 2010 ___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges. ___________ BENTON, Circuit Judge. Antwoyn Terrell Spencer and Derrick Jerome Spencer were tried together in district court1 on charges of cocaine distribution. The jury convicted Antwoyn of conspiracy to distribute cocaine, attempted possession with intent to distribute it, and money laundering. The jury convicted Derrick of conspiracy to distribute cocaine, and two counts of distributing it. The brothers appeal, alleging trial and sentencing error. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. I. On May 21, 2007, a grand jury indicted four defendants: brothers Antwoyn, Derrick, and Frederick Spencer, and Jovan Gentle. Frederick Spencer was acquitted. Jovan Gentle, a seller for Antwoyn and Derrick, was a fugitive at the time of trial. A. The conspiracy to distribute cocaine Count 1 charges that Antwoyn, Derrick, and Jovan Gentle “knowingly and intentionally conspired with each [other] and with others to distribute” cocaine and crack cocaine. The government offered testimony of several co-conspirators, including Jermaine Richardson and Vontrell Williams. Richardson testified that for two years, he and Derrick sold cocaine and crack regularly. Richardson indicated that Derrick got the drugs from his brother Antwoyn. Richardson’s testimony included this exchange: 1 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota. -2-  Q. During the period of 1998 on until your arrest [in June 2006], how much time did you spend with Derrick? A. At first really not too much, but probably like the last two years or year and a half of that, I spent a lot of time with him. Q. And the last two years, that’s when you were getting those big amounts from Antwoyn Spencer? A. Yeah. Q. And were you out on the streets selling those amounts? A. Was I? Q. Well, breaking it down and selling it in smaller amounts? A. Yeah, that’s how I sold it, in smaller amounts. Q. And did you ever ride around and do that same thing with Derrick? A. I did. Co-conspirator Williams testified that from 1998 to 2001, he ordered about 80 kilograms of cocaine from Antwoyn, and that Derrick frequently delivered the drugs on Antwoyn’s behalf. He further testified that after getting out of prison in April 2005, he started getting cocaine from Antwoyn again. The government also cited the interrupted delivery by John Nguyen to Antwoyn, discussed below, as evidence of the drug conspiracy. The jury received conspiracy instructions tracking Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, and convicted Antwoyn and Derrick on the conspiracy count. -3-  B. Antwoyn’s attempted possession with intent to distribute cocaine Police arrested John Nguyen in Wichita, Kansas, after seizing eight kilograms of cocaine at a traffic stop. Nguyen told police he was a mule regularly delivering cocaine from Texas to Antwoyn in Minnesota, and that the seized cocaine was on its way to Antwoyn. About 14 hours after Nguyen’s arrest (and two hours after Nguyen would have delivered the load), Nguyen’s cell phone received a call from Antwoyn’s number. No one answered. Nguyen testified against Antwoyn at trial. He stated that he had delivered, or attempted to deliver, 32 kilograms of cocaine to Antwoyn between early 2006 and his arrest on August 15, 2006. The government offered evidence to corroborate Nguyen’s testimony. First, at the time of the Wichita stop, Nguyen had multiple phone numbers for Antwoyn stored in two cell phones. The government established a calling history between the Spencers and Nguyen, which included a call Nguyen received, two days before his arrest, from a phone traced back to Derrick. Second, the eight kilograms of cocaine seized at Wichita were distinctively packaged like a kilogram of cocaine seized from Jermaine Richardson two months earlier. Third, according to other cooperating witnesses, Antwoyn’s cocaine source in the summer of 2006 was an Asian male from Texas. C. Derrick’s distribution of cocaine Jovan Gentle, cooperating with law enforcement, made two controlled purchases of powder cocaine from Derrick. Each time, he wore a transmitting device. Gentle subsequently disappeared and was a fugitive at the time of trial (following the trial, he was caught, pled guilty, and sentenced). The government proved the two transactions by two types of evidence: the tape-recorded conversations between Derrick and Gentle, and observations of surveillance officers. -4-  D. Antwoyn’s money laundering Before buying a home in Brooklyn Park, Minnesota, in 2005, Antwoyn gave cash to third parties in exchange for checks, which he deposited in his bank account. He also deposited $4,000 cash there. Antwoyn then used funds from this account to buy a cashier’s check for $22,900, which he presented at closing. Antwoyn purchased the home in his own name. IRS Special Agent Daniel Nye testified that his analysis excluded any legitimate funds as sources of the money for the home purchase. Antwoyn did not object to Nye’s testimony. E. Counsel for Frederick Spencer’s opening statement During opening statements, counsel for Frederick Spencer stated to the jury: Fred Spencer is accused of two counts of money laundering. The Government will tell you that he [Frederick] is involved with his brothers Antwoyn and Derrick in this alleged drug trafficking ring and that he is allowing some of their drug proceeds to flow to his business. You will hear another story from Fred Spencer, however. You will hear directly from Fred Spencer. He has always been cooperative. He’s not going to hide behind the Fifth Amendment. Antwoyn and Derrick objected. The court gave the jury the following curative instruction, to which all parties agreed: [Counsel for Frederick Spencer] has acknowledged that [his] statement was an inadvertent mischaracterization of the law, and you may not consider it in your deliberations. Please keep in mind that the defendant in a criminal case has an absolute right under the United States Constitution not to testify. The fact that a defendant does not testify -5-  cannot be discussed or considered by the jury in any way when you are considering and arriving at your verdict. But keep in mind that no inference of any kind may be drawn from the fact that other defendants may or may not decide to exercise their privilege under the constitution and not testify. Frederick was acquitted and is not party to this appeal. F. Drug-quantity determinations The district court agreed with the drug quantities recommended in the presentence reports, finding Antwoyn responsible for 213.4 kilograms of cocaine and 56.6 kilograms of crack cocaine (1,174,680 kilograms of marijuana equivalency), and Derrick responsible for 677.52 grams of cocaine and 13.3 kilograms of crack cocaine (266,135.5 kilograms of marijuana equivalency). These quantities were “based on the testimony of trial witnesses.” With respect to Antwoyn, the district court reviewed “the trial transcript in preparation for sentencing -- with particular attention to the testimony of Vontrell Williams, Yama Tunson, Oliver Scott, and Jermaine Richardson” and concluded “the quantities suggested by these witnesses were proven by a preponderance of the evidence.” With respect to Derrick, the district court reviewed “the trial transcript in preparation for sentencing -- with particular attention to the testimony of Vontrell Williams” and concluded “the quantities suggested by these witnesses were proven by a preponderance of the evidence.” G. Sentences The district court sentenced Antwoyn to concurrent 324 month terms on two counts – conspiracy, and attempted possession with intent to distribute cocaine. It also imposed a concurrent sentence of 240 months on the money-laundering count. -6-  The district court sentenced Derrick to 292 months on the conspiracy count and a concurrent 240 months on the distribution counts. II. A. The conspiracy to distribute cocaine Antwoyn and Derrick contest their conspiracy convictions, arguing: (1) the conspiracy instructions impermissibly amend the conspiracy charged in the indictment, and (2) the government failed to prove that either Antwoyn or Derrick acted to further the conspiracy within the five-year statute of limitations. 1. Jury instructions Antwoyn and Derrick argue that the district court’s jury instructions 20 and 21, which track Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, constructively amend the indictment. A constructive amendment of an indictment occurs when jury instructions broaden the scope of an indictment by permitting a conviction for an uncharged offense. See United States v. Griffin, 215 F.3d 866, 868-69 (8th Cir. 2000); United States v. Begnaud, 783 F.2d 144, 147 (8th Cir. 1986). Ordinarily, this court reviews jury instructions de novo. But here, both defendants acknowledge that they never objected to the instructions below, and thus review is for plain error. See United States v. Smith, 450 F.3d 856, 859 (8th Cir. 2006); United States v. Gavin, 583 F.3d 542, 546-47 (8th Cir. 2009). Count 1 charges that Antwoyn, Derrick, and Gentle “knowingly and intentionally conspired with each [other] and with others to distribute” cocaine and crack cocaine. Jury instruction 20 states that one essential element of conspiracy is -7- that “two or more persons reached an agreement or came to an understanding to distribute cocaine or crack cocaine.” Jury instruction 21 states in relevant part: The prosecution must prove that each of the defendants charged in Count 1 reached an agreement or understanding with at least one other person. It makes no difference whether that other person is a defendant or named in the indictment. You do not have to find that all the persons charged were members of the conspiracy. Antwoyn and Derrick argue that these instructions constructively amend the indictment “because the indictment required the jury to find the defendants guilty of the crime of conspiracy with each other, while Instruction 20 [and 21] specifically instructed the jury could find either or both Spencers guilty of simply conspiring with any other person, and therefore, not each other.” Instructions 20 and 21 do not amend the indictment, because the indictment does not require “the jury to find the defendants guilty of the crime of conspiracy with each other” as the Spencers insist. A defendant can be convicted of conspiracy even if the jury concludes that not everyone alleged to be involved in the conspiracy actually participated. See Berger v. United States, 295 U.S. 78, 81 (1935) (“It is settled by the great weight of authority that although an indictment charges a conspiracy involving several persons and the proof establishes the conspiracy against some of them only, the variance is not material.”). If Derrick were acquitted, Antwoyn could be convicted for conspiring with others, and vice versa. See, e.g., United States v. Allen, 613 F.2d 1248, 1253 (3d. Cir. 1980) (where the indictment charged Allen, Cooper, and Meador unlawfully conspired to sell drugs with each other and with persons known and unknown, “the question is not whether there was sufficient evidence that Allen conspired with Meador and/or Cooper, but whether there was sufficient evidence that he conspired with some other person.”). The indictment in this case specifically states that the defendants conspired with each other and with others. “An indictment may be phrased in the conjunctive, when -8- the statute and jury instructions are phrased in the disjunctive, without creating a constructive amendment of the indictment . . . .” United States v. Thompson, 560 F.3d 745, 748 (8th Cir. 2009), quoting United States v. Brown, 330 F.3d 1073, 1078 (8th Cir. 2003); see also United States v. Behler, 14 F.3d 1264 (8th Cir. 1994). In Behler, Count 1 charged a conspiracy “with Thomas Stephen McRea and others” to distribute methamphetamine. During deliberation, the jury asked the court: “Does Thomas Stephen McRea have to be a part of the conspiracy to enable a guilty verdict on Count #1?” The district court answered “no.” Id. at 1269. This court affirmed, applying United States v. Lueth, 807 F.2d 719, 732-34 (8th Cir. 1986), which approved an instruction that the jury could convict the defendant of conspiracy to distribute cocaine or marijuana or both, where the indictment charged conspiracy to distribute cocaine and marijuana. This court reasoned that “by changing the language of the prior instruction from the conjunctive to the disjunctive, ‘what was removed from the case was in no way essential to the offense on which the jury convicted.’” Behler, 14 F.3d at 1270, quoting Lueth, 807 F.2d at 734. Compare United States v. Yeo, 739 F.2d 385 (8th Cir. 1984) (finding a constructive amendment where the indictment charged that Yeo used “extortionate means to collect and attempt to collect [a debt] from Jim Crouch,” and the jury instruction stated that Yeo could be found guilty for using “extortionate means to collect [a debt] from Jim Crouch or another.”). The indictment here is phrased in the conjunctive. Under Behler, the jury instructions in the disjunctive do not constructively amend the indictment. The district court did not commit plain error by giving model jury instructions consistent with the law. Antwoyn and Derrick contend that if the jury instructions do not constructively amend the indictment, then Count 1 of the indictment is duplicitous, inappropriately joining multiple offenses in a single count. See United States v. Moore, 184 F.3d 790, 793 (8th Cir. 1999) (“‘Duplicity’ is the joining in a single count of two or more -9- distinct and separate offenses.”); United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994) (“The principal vice of a duplicitous indictment is that the jury may convict a defendant without unanimous agreement on the defendant’s guilt with respect to a particular offense.”). Antwoyn and Derrick posit that the jury could have convicted Antwoyn of conspiracy if seven jurors believed that he conspired with (only) Derrick, while the other five believed that he conspired with (only) Richardson. The Spencers conclude that this is reversible error where, as here, no jury instruction addresses the duplicity.2 Cf. Karam, 37 F.3d at 1286 (“[A]ssuming arguendo that Count IV of the indictment is duplicitous, we believe that the district court’s instructions to the jury cured the duplicity. The district court instructed the jury that it ‘must unanimously agree upon at least one particular distribution that the defendant is alleged to have made.’”). Antwoyn and Derrick waived this argument by failing to object to the allegedly duplicitous count before trial. See United States v. Prescott, 42 F.3d 1165, 1167 (8th Cir. 1994) (“We have held that the failure to object to duplicitous counts is a waiver of that defense.”); Fed. R. Crim. P. 12(b)(3) (listing “a motion alleging a defect in the indictment” among “motions that must be made before trial.”). Even if this argument were not waived, the indictment was not duplicitous. Under Lueth, the government can prove its case in the disjunctive where the indictment alleges, in the conjunctive, that the defendant committed the same offense (conspiracy to distribute controlled substances) in more than one way (by selling cocaine and by selling marijuana). 807 F.2d at 733-34. In this context, indicting in the conjunctive does not render a charge duplicitous. See Moore, 184 F.3d at 793 (“Enumerating the controlled substances did not render count I duplicitous.”), citing Lueth, 807 F.2d at 734. 2 As the district court noted, Antwoyn’s counsel requested (successfully) that the multiple conspiracies jury instruction be withdrawn (while the prosecutor desired to include it out of an abundance of caution). -10-  Behler adopts the Lueth rule where the indictment lists conspirators, rather than drugs, in the conjunctive. 14 F.3d at 1270. Under Behler, the government can prove its case in the disjunctive where an indictment alleges, in the conjunctive, that the defendant committed the same offense (conspiracy to distribute controlled substances) in more than one way (by conspiring with one co-conspirator and others). By analogy, enumerating the co-conspirators does not render a count duplicitous. See Moore, 184 F.3d at 793 (“Enumerating the controlled substances did not render count I duplicitous.”), citing Lueth, 807 F.2d at 734; Behler, 14 F.3d at 1270 (adopting Lueth where the indictment enumerates conspirators, rather than drugs, in the conjunctive). Even if the indictment raised duplicity concerns, the Spencers’ convictions would stand. In Griffin v. United States, 502 U.S. 46 (1991), one count of the indictment charged Griffin with conspiring to (1) impair the efforts of the IRS to collect taxes, and (2) impair the efforts of the Drug Enforcement Administration to ascertain forfeitable assets. The jury returned a general verdict of guilty on the count. She appealed, arguing that the general verdict left in doubt whether the jury convicted her of conspiring to defraud the IRS (for which there was sufficient proof) or conspiring to defraud the DEA (for which, the prosecution conceded, there was not sufficient proof). The Supreme Court affirmed. The Court stated that “[w]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . ., the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Id. at 56-57, quoting Turner v. United States, 396 U.S. 398, 420 (1970) (holding that, where an indictment charges knowingly purchasing, dispensing, and distributing heroin, the conviction would have to be sustained if there was sufficient evidence of distribution alone). See generally United States v. Summers, 137 F.3d 597, 602 (8th Cir. 1998) (affirming a conspiracy conviction despite the claim that the government proved multiple conspiracies while the indictment charged a single conspiracy, because the evidence “established the existence of a single, ongoing conspiracy . . . .”). Here, as discussed below, the evidence viewed most favorably to -11- the verdict sufficiently establishes a single conspiracy between Antwoyn, Derrick, and others. 2. Statute of limitations According to Antwoyn and Derrick, the government failed to prove an act in furtherance of their conspiracy, with a date attached to it, in the five years before their indictment on May 21, 2007.3 This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences. See United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). “The jury’s verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Moore, 108 F.3d 878, 881 (8th Cir. 1997). The brothers contend that the government had the burden to prove that they conspired with each other within the limitations period. This is incorrect as stated 3 The government contends that Antwoyn and Derrick waived the statute-of- limitations defense by not raising it before or at least during trial. See United States v. Siegelman, 561 F.3d 1215, 1232 (11th Cir. 2009) (“Requiring the defendant to assert a limitations defense at trial gives the prosecution a fair opportunity to rebut the defense through additional evidence or during summation.”). Antwoyn and Derrick respond that, when a limitations defect is not in the indictment but in the proof, the defense can be asserted for the first time in a motion for acquittal either before or after the trial. See Grunewald v. United States, 353 U.S. 391, 396 (1957) (“It was therefore incumbent on the Government to prove that the conspiracy . . . was still in existence . . . and that at least one overt act in furtherance of the conspiracy was performed” within the limitations period). They maintain that here the statute-of-limitations issue was evident only from a close parsing of the trial transcript. This court need not here address the waiver issue, as the government provided sufficient evidence that Antwoyn and Derrick committed conspiratorial acts within the limitations period. -12- above. See Behler, 14 F.3d at 1269-70. To meet its burden, the government needed to show only that each defendant conspired with others within the limitations period. The government provided ample evidence that both Antwoyn and Derrick committed conspiratorial acts within the limitations period. Testimony indicated that during 2006 alone, Antwoyn received 24 kilograms of cocaine from Nguyen. Vontrell Williams testified that he purchased cocaine from Antwoyn following his release from prison in 2005. Jermaine Richardson testified that in the two years before his 2006 arrest, he received large amounts of cocaine from Antwoyn. Richardson also testified that he rode around selling cocaine and crack cocaine with Derrick during this period. Derrick’s two convictions for selling cocaine to Gentle in April and May 2006 corroborate Richardson’s testimony that Derrick was dealing drugs within the limitations period. The Spencers argue that Richardson did not testify that he rode around selling cocaine and crack cocaine with Derrick in 2005-2006. The Spencers focus on the prosecutor’s use of “ever” in questioning Richardson: Q. Did you ever ride around and do that same thing with Derrick? A. I did. (emphasis added). But, in context, the prosecutor had already narrowed the scope of the questioning to 2005-2006. Three questions earlier, the prosecutor asked, “And the last two years, that’s when you were getting those big amounts from Antwoyn Spencer?” Critically, the prosecutor prefaced this question with the restrictive clause “And the last two years,” referring to the last two years before Richardson’s 2006 arrest. Thus, a reasonable jury could conclude that the ensuing questions – “And were you out on the streets selling those amounts?”; “Well, breaking it down and selling it in smaller amounts?”; and “And did you ever ride around and do the same thing with Derrick?” – asked about the two-year period already identified. Interpretation of -13- testimony is for the jury. See, e.g., Alholm v. Am. S.S. Co., 144 F.3d 1172, 1179 (8th Cir. 1998) (where Alholm’s testimony could be interpreted in multiple ways, “[t]he evidence at trial could support either type of finding, depending on the interpretation of testimony, and such factual questions are for the jury to determine.”). The district judge who heard Richardson’s testimony understood the exchange this way. Denying the Spencers’ motion for acquittal, the court found, “Richardson testified that he sold drugs with Derrick Spencer in the two years prior to his arrest in June 2006.” Antwoyn and Derrick assert that evidence that they separately sold cocaine to third parties is not enough to establish a conspiracy. See United States v. Prieskorn, 658 F.2d 631, 633 (8th Cir. 1981) (“Appellant correctly argues that the relationship between buyer and seller does not establish a conspiracy.”) Prieskorn does not help the Spencers. It recognized that evidence does not sufficiently establish conspiracy in buyer-seller situations where there is “only evidence of a ‘single transient sales agreement’ and small amounts of drugs consistent with personal use.” Id. at 634. In this case, the evidence indicates multiple transactions of large amounts of drugs, and an ongoing relationship between Antwoyn, Derrick, and other co-conspirators. The evidence here sufficiently establishes conspiracy. Even if, as the Spencers maintain, the government had to prove they conspired with each other within the limitations period, Jermaine Richardson testified that when he was selling drugs with Derrick in 2005-06, Derrick got his drugs from Antwoyn. In addition, officers executing a search warrant at the Spencers’ mother’s home in 2007 found drug scales and packing materials, as well as documents and other items tying Antwoyn and Derrick to the home. The evidence here is sufficient to establish conspiracy between Antwoyn and Derrick within the statute of limitations. -14-  B. Antwoyn’s attempted possession with intent to distribute cocaine Antwoyn contends that the evidence is insufficient to support his attempted possession conviction. This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences. Cruz, 285 F.3d at 697. According to Antwoyn, the government failed to prove that he took a substantial step towards acquiring the eight kilograms of cocaine seized from Nguyen. Antwoyn maintains that the government relied on the unanswered telephone call to Nguyen’s phone after his arrest as the “substantial step.” This act, Antwoyn contends, is too ambiguous to be a substantial step. See United States v. Davis, 8 F.3d 923, 927 (8th Cir. 1993) (“Conduct is not considered a substantial step unless it is strongly corroborative of the criminal intent of the accused.”); Fryer v. Nix, 775 F.2d 979, 994 (8th Cir. 1985) (the act cannot be ambiguous, but must be “unequivocal”). Antwoyn relies on United States v. Joyce, 693 F.2d 838 (8th Cir. 1982), overturning a conviction for attempting to possess cocaine with intent to distribute. Joyce flew from Oklahoma City to St. Louis to purchase cocaine, arrived at the arranged hotel room with $22,000 cash, and momentarily handled the package of cocaine. But negotiations broke down in the hotel room; Joyce left with no intent of returning to make a purchase. This court held that a reasonable jury could not find a substantial step, because “the [attempter’s] act must have passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime,” and “Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused . . . .” 693 F.2d at 841-42. -15-  Joyce and subsequent decisions “turned on whether it was the defendant himself -- rather than a third party -- who ended the chain of events leading toward, but not resulting in, the commission of a substantive crime.” United States v. Burks, 135 F.3d 582, 584 (8th Cir. 1998), citing United States v. Jonsson, 15 F.3d 759, 762 (8th Cir. 1994); see also United States v. Mims, 812 F.2d 1068, 1078 (8th Cir. 1987). In Burks, officers executed a search warrant of the defendant’s house minutes after postal inspectors delivered a box of cocaine. Burks had not opened the package, but had cut one side of the box. “Officers found a utility knife beside the package, and elsewhere in the master bedroom found a plate, a razor blade, and a small plastic baggie with some residue.” Burks, 135 F.3d at 583. They also found “seven hundred dollars in cash and three Western Union Money Order receipts” from Burks to a man in San Diego, the source of the package. Id. Burks was convicted for attempted possession with intent to distribute cocaine. This court affirmed, holding that “[t]his case differs from Joyce because here it was the intervention by government agents that ended the chain of events.” Id. at 584. “Furthermore, the jury was presented with other circumstantial evidence that supports the conclusion that Burks’s actions constituted a substantial step toward actual possession of the cocaine. ‘A reasonable fact-finder may find guilt beyond a reasonable doubt based solely on circumstantial evidence.’” Id., quoting United States v. Garrett, 948 F.2d 474, 476 (8th Cir. 1991). Here, as in Burks, the government, not the defendant, ended the chain of events. As in Burks, the government presented circumstantial evidence that Antwoyn ordered and intended to possess the eight kilograms of cocaine. Nguyen testified that he was delivering the eight kilograms to Antwoyn, and that he had already delivered 24 kilograms of cocaine to Antwoyn in 2006 before his Wichita arrest. Co-conspirators testified that Antwoyn’s source of supply in the summer of 2006 was an Asian male from Texas. A kilogram of cocaine seized from Jermaine Richardson, which Richardson testified he got from Antwoyn, was packaged in the same distinctive manner as the eight kilograms seized from Nguyen. Telephone records show Antwoyn and Nguyen were in frequent telephone contact during the summer of 2006. The jury could reasonably infer from this evidence, along with the missed phone call -16- to Nguyen’s phone, that Antwoyn ordered and intended to possess the eight kilograms of cocaine. C. Derrick’s distribution of cocaine Derrick was convicted on two counts of distributing cocaine, both based on controlled sales to Gentle. Derrick argues that the district court violated his rights under the Sixth Amendment’s Confrontation Clause by allowing evidence of these controlled buys despite Gentle’s unavailability. This court reviews de novo the district court’s determination of the protections afforded by the Confrontation Clause, and reviews the underlying factual determinations for clear error. See United States v. Bordeaux, 400 F.3d 548, 552 (8th Cir. 2005). The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Gentle was a fugitive at the time of Derrick’s trial. The government proved the two transactions by two types of evidence: the tape-recorded conversations between Derrick and Gentle, and the observations of surveillance officers. The tape recordings do not implicate Crawford. Derrick’s statements on the tape are “admissions by a party-opponent” and are admissible on that basis. See United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006). Gentle’s statements on the tape are admissible because they are nontestimonial. They put Derrick’s statements “into context, making the admissions intelligible for the jury.” Id. at 666. “Statements providing context for other admissible statements are not hearsay because they are not offered for their truth. As a result, the admission of such context evidence does not offend the Confrontation Clause because the declarant is not a witness against the accused.” Id. (citations omitted). -17-  As for the observations of the surveillance officers, the officers were live witnesses, subject to cross-examination. Derrick does not explain how their testimony implicates Crawford. D. Antwoyn’s money laundering Antwoyn objects to his money-laundering conviction on two grounds: (1) there is insufficient evidence that the money used to purchase his home in 2005 was “proceeds” of his unlawful drug trafficking, and (2) there is insufficient evidence that he “intended to conceal” the source of the money. This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences. Cruz, 285 F.3d at 697. 1. Proceeds IRS Special Agent Daniel Nye testified that his analysis excluded any legitimate funds as sources of the money for the home purchase. This evidence, admitted without objection, is sufficient. See United States v. Pizano, 421 F.3d 707, 723 (8th Cir. 2005) (holding that circumstantial evidence of a defendant’s lack of legitimate income sufficiently establishes that funds defendant used to purchase real property are drug proceeds). Antwoyn contends that he is entitled to a new trial under the Supreme Court’s intervening decision in United States v. Santos, ___ U.S. ___, 128 S. Ct. 2020 (2008). Santos holds that, in the context of a gambling organization, the word “proceeds” in the money-laundering statute refers to profit, not gross revenue.4 Antwoyn reasons 4 Because Santos was a plurality opinion, its precedent is the narrowest holding that garnered five votes. See SOB, Inc. v. County of Benton, 317 F.3d 856, 862 n. 1 (8th Cir. 2003), citing Marks v. United States, 430 U.S. 188 (1977). Justice -18- that, because the jury instructions in his trial do not distinguish between “profits” and “receipts,” his conviction is impermissibly based on receipts rather than profits. Other circuits hold – and this court agrees – that Santos does not apply in the drug context. See United States v. Howard, 309 Fed. Appx. 760, 771 (4th Cir. 2009) (unpublished) (“Santos does not establish a binding precedent that the term ‘proceeds’ means ‘profits,’ except regarding an illegal gambling charge . . .”); United States v. Fleming, 287 Fed. Appx. 150, 155 (3d Cir. 2008) (unpublished) (holding that “the term ‘proceeds’ includes gross revenues for drug sales.”). See also Santos, ___ U.S. at ___, 128 S. Ct. at 2035 & n.1 (Alito, J., dissenting) (“five Justices agree with the position” that “the term ‘proceeds’ ‘include[s] gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.’”). Even if Santos applies in drug cases, the district court here found, “Antwoyn Spencer’s home purchase was a personal expense paid with the profits of his illegal activity, rather than the type of business expense described in Santos.” 2. Intent to conceal Antwoyn asserts that the evidence cannot establish intent to conceal when assets are purchased in his own name, relying on United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995). But the money-laundering statute does not require proof of intent to conceal the launderer’s identity; it requires proof of intent to conceal the illegal nature or source of the funds. See United States v. Norman, 143 F.3d 375, 377-78 Stevens’s concurrence provides the narrowest holding: “The revenue generated by a gambling business that is used to pay the essential expenses of operating that business is not ‘proceeds’ within the meaning of the money laundering statute.” ___ U.S. at ___, 128 S. Ct. at 2033. Justice Stevens acknowledges, “[a]s Justice Alito rightly argues, the legislative history of [18 U.S.C.] § 1956 makes it clear that Congress intended the term ‘proceeds’ to include gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.” ___ U.S. at ___, 128 S. Ct. at 2032. -19- (8th Cir. 1998); United States v. Rounsavall, 115 F.3d 561, 565-66 (8th Cir. 1997); United States v. Nattier, 127 F.3d 655, 659-60 (8th Cir. 1997). This court reversed Rockelman’s money-laundering conviction because, in addition to not concealing his identity, he purchased the property entirely with cash and did nothing to hide the fact that he was paying for his property in cash. Rockelman, 49 F.3d at 422. Unlike Rockelman, Antwoyn converted cash into checks from third parties, paying for the home with a cashier’s check. Antwoyn did not pay for the home in cash. The jury could reasonably conclude that Antwoyn structured the transactions this way in order to conceal the source of his money. E. Counsel for Frederick Spencer’s opening statement Antwoyn and Derrick argue that they are entitled to a new trial because Frederick Spencer’s counsel told the jury, in his opening statement, “You will hear directly from Fred Spencer. He has always been cooperative. He’s not going to hide behind the Fifth Amendment.” If Antwoyn or Derrick had been denied a mistrial, the standard of review would be whether the district court abused its discretion in denying their motion for a new trial. See United States v. Metz, 625 F.2d 775, 778 (8th Cir. 1980). But here, neither defendant requested a mistrial. Rather, all parties agreed that the court should give a curative instruction, which it did. This court’s “standard of review when no motion for a mistrial was made at trial is only for plain error.” United States v. Waldman, 310 F.3d 1074, 1078 (8th Cir. 2002) (applying plain error review where an expert witness testified to the defendant’s intent, the court sustained defense counsel’s objection and gave curative instructions, and defense counsel did not move for mistrial). This court reverses for plain error “only if the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected.” Id., quoting United States v. McNeil, 184 F.3d 770, 777 (8th Cir. 1999). -20-  The Fifth Amendment forbids any direct comment by the prosecution or defense counsel on a defendant’s failure to testify. See Griffin v. California, 380 U.S. 609, 613-15 (1965); Robinson v. Crist, 278 F.3d 862, 866 (8th Cir. 2002); DeLuna v. United States, 308 F.2d 140, 154-55 (5th Cir. 1962). “[I]ndirect comments constitute a constitutional violation if they manifest [an] intent to call attention to a defendant’s failure to testify or would be naturally and necessarily taken by a jury as a comment on the defendant’s failure to testify.” Robinson, 278 F.3d at 866, quoting Graham v. Dormire, 212 F.3d 437, 439 (8th Cir. 2000). A direct or especially blatant indirect comment cannot be cured by the standard privilege instruction. Robinson, 278 F.3d at 866. But “where the argument in favor of finding a constitutional violation is tenuous at best, the [privilege] instruction is an additional safeguard.” Id. Antwoyn and Derrick argue that Frederick’s counsel’s comment was sufficiently direct that it was not cured by the district court’s privilege instruction, analogizing it to the comments warranting reversal in De Luna. In De Luna, one codefendant, Gomez, testified; the other, de Luna, did not. Counsel for Gomez argued, “Well, at least one man was honest enough and had courage enough to take the stand and subject himself to cross examination and tell you the whole story . . . You haven’t heard a word from this man [de Luna].” De Luna, 308 F.2d at 143. The Fifth Circuit held this direct comment on de Luna’s failure to testify violated his Fifth Amendment rights. Id. at 154-55. The comment at issue here is more analogous to the comment in Metz. 625 F.2d at 777. Metz, Cuezze, and Spero were tried together for conspiring to possess, and possessing, a prohibited destructive device. Metz did not testify. In opening statements, Spero’s counsel said: “In spite of that right [to refuse to testify], Joe Spero and Mike Cuezze will testify, and they will explain their version of things . . . .” Id. Metz, relying on De Luna, argued that this language emphasized to the jury his decision not to testify, and that the trial court’s instructions did not cure the prejudice. On appeal, this court reasoned: -21-  [A]n examination of the statements made by Spero’s counsel reveals no direct reference to Metz’s decision not to testify. Instead, the remarks were limited to the decision made by Metz’s codefendants to take the stand and subject themselves to cross-examination. Under the circumstances, any prejudice which Metz might have suffered is the product of inference, alone, and can in no way be compared to the direct statements of the codefendant’s counsel in De Luna. Id. at 778. This court held: “Contrary to the situation in de Luna, we believe that the court’s instructions to the jury in the present appeal were sufficient to remove any prejudice to Mr. Metz which might have been inferred by the jury from the comments of Spero’s counsel.” Id. Like Spero’s counsel in Metz, Frederick’s counsel never affirmatively stated that Antwoyn and Derrick would not testify. He emphasized that Frederick would testify. A reasonable juror would not naturally and necessarily interpret this as commenting on Antwoyn’s or Derrick’s failure to testify. Any prejudice to Antwoyn or Derrick is the product of inference alone. As the district court noted in denying the Spencers’ motion for acquittal, “any inference as to Antwoyn or Derrick Spencer’s failure to testify is made all the more tenuous by the fact that, at the time the comment was made, it was not certain that [they] would invoke their Fifth Amendment rights during the trial.” In this case, the district court’s instruction was sufficient. F. Drug-quantity determinations Antwoyn and Derrick contest the district court’s drug-quantity determinations, which are factual findings reviewed under the clearly erroneous standard. See United States v. Casas, 999 F.2d 1225, 1230 (8th Cir. 1993). In this context, a district court’s credibility determinations are “virtually unreviewable on appeal.” Id. (citations omitted). -22-  Antwoyn and Derrick claim that the evidence of the drug quantities involved in their conspiracy is so speculative that it cannot serve as the basis for calculating drug quantities, as a matter of law. See United States v. Simmons, 964 F.2d 763, 775- 76 (8th Cir. 1992) (holding that a witness’s interview and testimony “lack[ed] sufficient indicia of reliability to serve as a basis for calculating the quantity of cocaine base . . . .”). Specifically, Antwoyn and Derrick assert that if Richardson and Williams testified accurately about the drug quantities they purchased, Richardson would have netted over $6 million in profit, and Williams would have netted over $600,000. The government disputes the Spencers’ calculations. The district court presided at trial, observed the demeanor of the witnesses, and reviewed the trial transcript before sentencing. In its written statement of reasons for imposing sentences for both Antwoyn and Derrick, the district court noted that it overruled their challenges to the drug-quantity calculations. In each, the district court wrote that the drug-quantity calculations “were based on the testimony of trial witnesses.” “After viewing that testimony at trial and reviewing the trial transcript in preparation for sentencing . . . the Court concluded that the quantities suggested by these witnesses were proved by a preponderance of the evidence.” The district court’s careful determinations were not clearly erroneous. III. The judgment of the district court is affirmed. BEAM, Circuit Judge, concurring and dissenting. I concur in the court's opinion except for Part II.B. which concerns Antwoyn Spencer's alleged attempt to possess the cocaine seized from John Nguyen in Wichita, Kansas. From this holding, I dissent. There was simply insufficient evidence to support the conviction. -23-  Proof of an attempt to possess drugs requires that (1) the defendant intended to possess the drugs, and (2) he took a substantial step towards possession of the drugs. United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982). This step must "strongly corroborate[]" his criminal intent. Id. The court attempts to distinguish Joyce, but the case remains good law in this circuit and is applicable to this purported offense. In Joyce, the conviction was overturned for lack of a substantial step even though the government's informant described numerous phone conversations with Joyce to set up the deal, Joyce flew from Oklahoma City to St. Louis to purchase the drugs, and Joyce went to a hotel room where the deal was to take place. Id. at 839-40. Joyce carried $22,000 in cash and physically handled the package containing the cocaine but negotiations broke down in the hotel room when the undercover police officer refused to open the package. Id. at 840. Joyce left without making a purchase and was arrested. Id. There really is no evidence regarding specific steps Antwoyn took toward the possession of this particular eight kilograms of cocaine seized from Nguyen on August 15, 2006. The only evidence, minimal at best, of a substantial step towards completion of the offense is the unanswered phone call Nguyen received from Antwoyn's phone following Nguyen's arrest. The government, and apparently the court, relies heavily on inferences raised from evidence of the "normal" course of business between Nguyen and Antwoyn to support Antwoyn's attempt charge. That evidence might support a conspiracy conviction but falls well short of proof of attempt. The key lies in the difference between the law of attempt and the law of conspiracy. Under the law of attempt, a substantial step is required in order for the defendant to be convicted. In contrast, conspiracy . . . does not require an overt act. United States v. Robinson, 217 F.3d 560, 564-65 n.3 (8th Cir. 2000). -24-  Each case the court cites in support of its affirmance is distinguishable. United States v. Burks, 135 F.3d 582 (8th Cir. 1998), for example, supports the proposition that but for the intervention of law enforcement, Nguyen would have completed his delivery of the cocaine to Antwoyn and that such behavior was sufficient to support a "substantial step." Id. at 584. But the Joyce problem is still there. No substantial step was taken by Antwoyn. In Burks, the case revolved around Burks' attempted possession and it was Burks that law enforcement cut short mid-stream. Id. Likewise, United States v. Garrett is inapposite. 948 F.2d 474, 477 (8th Cir. 1991). In Garrett the defendant completed telephone calls to a drug courier in an attempt to obtain cocaine from the courier, not knowing that police had already arrested the courier and seized the drugs. Id. at 476-77. Again, the instant case is totally different, as there was no confirmed contact from Antwoyn in this case regarding this shipment. The inferences to be gleaned from the facts in this case fall well short of establishing a substantial step toward possession of the particular eight kilograms possessed by Nguyen at the time of his arrest. The inferences from the surrounding facts that Antwoyn often dealt with an Asian male from Texas, dealt in multi-kilo levels of cocaine, that the packaging of the cocaine Nguyen possessed matched other batches co-conspirators claimed they received from Antwoyn do little if anything to prove that on August 15, Antwoyn attempted to possess that particular eight kilograms. Accordingly, I would reverse the attempt conviction and remand the case to the district court for resentencing of Antwoyn Spencer without consideration of that crime. ______________________________ -25- 

19 F.3d 30 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Lazaro Monroy DIAZ, Defendant-Appellant. No. 93-50690. United States Court of Appeals, Ninth Circuit. Submitted March 8, 1994.*Decided March 11, 1994. Before: FLETCHER, BRUNETTI and TROTT, Circuit Judges. 1 MEMORANDUM** 2 Lazaro Monroy Diaz appeals his 12-month sentence following entry of a guilty plea to transfer of false identification documents in violation of 18 U.S.C. Sec. 1028(a)(2). Diaz contends the district court erred by denying his request to sentence him to twelve months plus one day of incarceration, thereby precluding him from receiving good-time credit under 18 U.S.C. Sec. 3624(b). Diaz argues that the district court mistakenly believed Diaz would receive good time credits even for a sentence of twelve months. We have jurisdiction under 28 U.S.C. 1291 and affirm. 3 A sentence within the properly calculated United States Sentencing Guidelines range is not appealable. United States v. Young, 988 F.2d 1002, 1004 (9th Cir.1993). Nonetheless, a defendant has a due process right to have his sentence based on accurate information. United States v. Jones, 982 F.2d 380, 385 (9th Cir.1992). Diaz' claim is therefore subject to appellate review. 4 A close reading of the record reveals that the district court was aware of the effect that imposing a twelve month, rather than a longer sentence, would have on Diaz' ability to receive good time credits. In fact, Diaz informed the district court of the law regarding that issue. The district court simply found that twelve months was the appropriate sentence. Under these circumstances, we discern no sentencing error. 5 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. 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 9th Cir.R. 36-3

FILED NOT FOR PUBLICATION MAR 02 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SILVERIO AUGUSTO CANEL- No. 09-70718 VELASQUEZ, Agency No. A075-525-970 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 12, 2012 San Francisco, California Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, Senior District Judge.** Silverio Augusto Canel-Velasquez petitions for review from a decision of the Board of Immigration Appeals denying his application for cancellation of * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jed S. Rakoff, Senior District Judge for the Southern District of New York, sitting by designation. removal under 8 U.S.C. § 1229b(b). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. 8 U.S.C. § 1229b(b)(1)(C) makes an alien statutorily ineligible for cancellation of removal if the alien has been convicted of two crimes involving moral turpitude. See also 8 U.S.C. § 1182(a)(2)(A)(i)(I), (a)(2)(A)(ii). Canel- Velasquez conceded below that his conviction under California Penal Code § 496(a) for receipt of stolen property constitutes a crime involving moral turpitude. He now argues that his conviction for disorderly conduct involving prostitution under California Penal Code § 647(b) does not involve moral turpitude. Because a violation of section 647(b) is a crime involving moral turpitude, Rohit v. Holder, No. 10-70091 (9th Cir. Feb. ***, 2012), Canel- Velasquez has been convicted of two crimes involving moral turpitude and is statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C). PETITION FOR REVIEW DENIED. 2 

745 F.2d 56 Hardy Salt Co.v.United Steelworkers of America, AFL-CIO-CLC 83-1632 United States Court of Appeals,Sixth Circuit. 9/18/84 1 W.D.Mich. AFFIRMED

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § No. 08-15-00251-CV § IN THE INTEREST OF S.M.B., Appeal from § A CHILD. 380th District Court § of Collin County, Texas § (TC # 380-51444-2008) § MEMORANDUM OPINION This appeal is before the Court on its own motion for determination of whether it should be dismissed for want of jurisdiction. Finding that the trial court’s interlocutory orders denying a motion to transfer venue and to disqualify counsel are not appealable, we dismiss the appeal for lack of jurisdiction. It is well settled that appellate courts have jurisdiction over final judgments and interlocutory orders made appealable by statute. Lehmann v. Har-Con Corporation, 39 S.W.3d 191, 195 (Tex. 2001); TEX.CIV.PRAC.&REM.CODE ANN. § 51.014 (West 2015)(authorizing appeals from certain interlocutory orders). A final judgment is one that disposes of all pending parties and claims. See Lehmann, 39 S.W.3d at 195. Appellant filed a notice of appeal indicating that he is appealing the trial court’s orders denying Appellant’s motion to transfer venue under Section 155.021 of the Texas Family Code and denying Appellant’s motion to disqualify counsel. The Court notified Appellants that it intended to dismiss the appeal for lack of jurisdiction because there is no final judgment and these interlocutory orders are not appealable. In his response, Appellant focuses on whether the orders have been reduced to writing by the trial court but that is not the critical issue. The issue is whether these interlocutory orders are appealable. The Family Code expressly provides that an order denying transfer under Section 155.201 is not subject to interlocutory appeal. TEX.FAM.CODE ANN. 155.204(h)(West 2014). An order denying a motion to disqualify counsel in a civil proceeding is an interlocutory order and is subject to review only in an appeal from the final judgment. See National Western Life Insurance Company v. Walters, 663 S.W.2d 125, 126 (Tex.App.--Austin 1983, no writ). We therefore dismiss the appeal for want of jurisdiction. November 3, 2015 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. -2- 

697 F.2d 289 Detex, Ltd.v.William Iselin & Co., Inc. 82-7235 UNITED STATES COURT OF APPEALS Second Circuit 9/14/82 1 S.D.N.Y. AFFIRMED

Order entered February 14, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01369-CV GATOR APPLE, LLC, Appellant V. APPLE TEXAS RESTAURANTS, INC., Appellee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. 11-6565 ORDER The Court has before it court reporter Vielica Dobbins’s February 12, 2013 request for an extension of time in which to file the reporter’s record. The Court GRANTS the request and ORDERS the reporter’s record submitted on February 12, 2013 timely filed as of that date. /s/ ELIZABETH LANG-MIERS JUSTICE 

689 F.Supp.2d 483 (2010) Mark B. MITSKOVSKI, Elizabeth A. Martina and Thomas J. Pisa, Petitioners, v. BUFFALO AND FORT ERIE PUBLIC BRIDGE AUTHORITY, Respondent. No. 04-CV-0465(Sr). United States District Court, W.D. New York. January 22, 2010. *484 Robert E. Knoer, The Knoer Group, PLLC, Buffalo, NY, for Petitioners. Marilyn A. Hochfield, Kavinoky & Cook, LLP, Buffalo, NY, for Respondent. DECISION AND ORDER H. KENNETH SCHROEDER, JR., United States Magistrate Judge. In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings *485 in this case, including entry of final judgment. Dkt. #38. Currently before the Court is Respondent's motion for summary judgment (Dkt. # 44), and Petitioners' cross-motion for summary judgment. Dkt. # 52. For the following reasons, Respondent's motion is granted and Petitioners' motion is denied. PROCEDURAL BACKGROUND Petitioners are residents in the neighborhood of the Peace Bridge. Dkt. # 1-2, ¶¶ 1-3. They commenced this action by Notice of Petition filed May 28, 2004 in the New York State Supreme Court, County of Erie, seeking a declaration that the Buffalo and Fort Erie Public Bridge Authority ("Public Bridge Authority"): (1) is a state agency and public body subject to the New York State Environmental Quality Review Act ("SEQRA"), New York State Freedom of Information Law ("FOIL"), and New York State Open Meeting Law; (2) that it violated SEQRA by segmenting the Border Infrastructure Improvement Project ("BIIP"), from the Capacity Expansion Project ("CEP"), and failing to conduct an adequate environmental review of the BIIP; and (3) that it violated an Order of the Hon. Eugene M. Fahey, J.S.C., in the consolidated cases of City of Buffalo v. New York State Dep't of Envtl. Conservation and Buffalo Olmsted Parks Conservancy v. The Buffalo and Fort Erie Pub. Bridge Auth., Index No. 1999/4309. Dkt. #1-2. The Public Bridge Authority removed the action to this Court pursuant to 28 U.S.C. § 1331. Dkt. #1. Petitioners moved to remand on the ground, inter alia, that the complaint alleged only state claims and did not invoke federal question jurisdiction. Dkt. #4. By Decision and Order entered October 5, 2004, 2004 WL 5573946, the Hon. John T. Elfvin granted the motion to remand because Respondent failed to comply with a local rule requiring an index of documents filed in state court be filed in this Court upon removal. Dkt. # 17. On appeal, the Court of Appeals for the Second Circuit determined that remand was "too drastic a remedy for such a minor noncompliance." Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 133 (2d Cir.2006). The Court of Appeals also determined that it had jurisdiction to determine subject matter jurisdiction even though Judge Elfvin had not reached that question. Id. at 133-34. Addressing the existence of subject matter jurisdiction, the Court of Appeals stated: The construction of an interstate or international compact approved by Congress under the Compact Clause of the Constitution, see U.S. Const. art. I, § 10, cl. 3,[1] presents a federal question. See Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 ... (1981); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 278, 79 S.Ct. 785, 3 L.Ed.2d 804 ... (1959). The Authority is the product of a compact between New York and Canada, approved by Congress. In 1934, Congress gave its consent to the State of New York to enter into the agreement or compact with the Dominion of Canada set forth in chapter 824 of the Laws of New York, 1933, and an act respecting the Buffalo and Fort Erie Public Bridge Authority passed at the fifth session, Seventeenth Parliament, Dominion of Canada (24 George V 1934), assented to March 28, 1934, for the establishment of the Buffalo and Fort Erie Public Bridge Authority ... H.R.J. Res. 315, 73rd *486 Cong., 2d sess. (May 3, 1934). In 1957, Congress gave approval to a reconstituted compact authorizing the Authority. See H.R.J. Res. 342, 85th Cong., 1st sess. (Aug. 14, 1957). Id. at 134-35. Because petitioners sought a declaration that the Respondent is a New York State agency, and resolution of that claim would "inevitably require construction of the compact," the Court of Appeals determined that the "federal question jurisdiction of the District Court has been properly invoked." Id. at 135. FACTUAL BACKGROUND In the early 1990's, the Public Bridge Authority contemplated a number of construction projects, including the CEP, the Commercial Vehicle Processing Center Project in Canada, the Canadian Plaza/Gateway Project and the U.S. Plaza/Connecting Roadways Project. City of Buffalo v. New York State Dep't of Env. Cons., 184 Misc.2d 243, 246, 707 N.Y.S.2d 606 (Erie Cty 2000). The New York State Department of Environmental Conservation ("NYSDEC"), assumed the lead agency role for the environmental review of the CEP and determined that the construction of a second international bridge south of the existing bridge would have no significant adverse impact on the environment. Id. at 246-247, 707 N.Y.S.2d 606. Before reaching that conclusion, the NYSDEC considered "whether the second Bridge proposal would be improperly segmented from the review of any possible future and related inland development (improvement to the Peace Bridge Plaza in the City of Buffalo)," and determined that segmentation of the CEP from the U.S. Plaza/Connecting Roadways Project was permissible. Id. at 247-248, 707 N.Y.S.2d 606. As a result, the environmental review "did not address the bridge and bridge construction relating to traffic flow into (1) the current plaza, (2) construction of a new plaza in the current location, or (3) construction of a new plaza in a new location." Id. at 248-49, 707 N.Y.S.2d 606. The City of Buffalo, Buffalo Olmsted Parks Conservancy, Inc., and the Episcopal Church Home, among others, commenced an article 78 proceeding in New York State Supreme Court challenging the NYSDEC's issuance of a permit for the construction of a second bridge on the ground that the NYSDEC failed to comply with SEQRA by improperly segmenting the environmental review. See 04-CV-693 at Dkt. #4. The petition also sought to enjoin the Public Bridge Authority from performing any actions in furtherance of the development of a second bridge until environmental concerns had been addressed. See 04-CV-693 at Dkt. # 4. In an opinion dated April 7, 2000, Justice Fahey determined that the NYSDEC's declaration of no adverse environmental effect was fundamentally flawed because it improperly segmented consideration of the environmental impact of the proposed bridge construction from the proposed plaza construction, stating: In this instant case, in terms of traffic flow, the bridge and the adjoining plaza with the connecting roadways are a single, inseparable development entity. The effects of their construction must be reviewed together. A final environmental impact statement considering the potential environmental effects of the proposed bridge, proposed plaza and alternative is required. Id. at 255, 707 N.Y.S.2d 606. Justice Fahey concluded: The failure by Respondent DEC to consider the cumulative impact of bridge and plaza construction constituted a violation of the Department's obligation to take "a hard look" under SEQRA. Therefore, the determination of nonsignificance *487 was arbitrary and capricious. The issuance of the permit by Respondent DEC is annulled. The Negative Declaration of Respondent DEC is annulled. The Respondent PBA is permanently enjoined from going forward with bridge construction until it has complied with SEQRA. The matter is remitted to Respondents PBA and DEC for reconsideration of the cumulative impact of the proposed bridge construction and the related plaza/connected roadways project, and consideration of alternatives, and for preparation of an environmental impact statement concerning the same. Id. at 255-57, 707 N.Y.S.2d 606. Accordingly, Justice Fahey issued the following Order: Petitioner, THE CITY OF BUFFALO ("City") having commenced the above referenced Article 78 Proceeding to challenge certain actions of the Respondent Buffalo and Fort Erie Public Bridge Authority ("PBA") in obtaining a permit from Respondent New York State Department of Environmental Conservation ("DEC") and certain actions of Respondent DEC in granting that permit, all relating to the possible construction of a new bridge adjacent to the Peace Bridge crossing between Fort Erie, Ontario, Canada and Buffalo, New York and such proceeding having come on to be heard before the undersigned Justice of the Supreme Court, * * * ... it is hereby ORDERED and ADJUDGED that the Petition of the City is hereby granted; and it is further ORDERED and ADJUDGED that Permit No. 0-1402-00415/00005 issued by Respondent DEC to Respondent PBA on January 27, 1999 is hereby annulled; and it is further ORDERED and ADJUDGED that Respondent PBA is permanently enjoined from going forward with bridge construction described in the aforesaid permit and negative declaration or physical acts in furtherance thereof until Respondent PBA has completed proceedings complying with the New York State Environmental and Quality Review Act ("SEQRA"); and it is further ORDERED and ADJUDGED that the matter is remitted to Respondents PBA and DEC for reconsideration of the cumulative impact of the proposed bridge construction project and the related plaza/connecting roadways project, and consideration of alternatives with respect thereto and, before proceeding, for the preparation of an environmental impact statement with respect to the same. See 04-CV-693 at Dkt. # 1-4. In accordance with Justice Fahey's Decision and Order, the General Manager of the Public Bridge Authority, Ron Rienas, affirms that all permits were vacated and a new environmental assessment, the "2000 Bi-National Integrated Environmental Process" was initiated with respect to the construction of a second bridge and a new U.S. plaza and connecting roadways in Buffalo and Fort Erie. Dkt. # 46, ¶ 2. A draft Environmental Impact Statement ("EIS"), was circulated for comment in September, 2007, but has yet to be completed. See Draft EIS at http:// peacebridgex.com. The draft EIS contemplates a no build alternative; construction of a companion bridge to the south of the existing bridge with reconfiguration of connecting roadways and a new and expanded U.S. Federal Inspection Plaza in Buffalo; and construction of a companion bridge to the south of the existing bridge with reconfiguration of connecting roadways and a U.S. Federal Inspection Plaza in Fort *488 Erie under a Shared Border Management Plan. See Draft EIS at pp. 6-7. In the interim, the Public Bridge Authority commenced work on the BIIP, which is the subject of this lawsuit. The BIIP was financed by Canadian Border Infrastructure Funds to address lengthy delays in processing traffic caused by increased security measures following the terrorist attacks of September 11, 2001. Dkt. # 46, ¶¶ 3 & 14-15. The BIIP improvements included the relocation of toll booths and Public Bridge Authority administrative functions from the U.S. plaza to the Canadian plaza, relocation of the U.S. duty free store and the addition of three new commercial inspection booths. Dkt. # 46, ¶¶ 16 & 18 and Exh. B. DISCUSSION AND ANALYSIS Petitioners argue that the Public Bridge Authority is a New York State municipal entity subject to SEQRA and that it violated SEQRA by failing to conduct an adequate environmental review of the BIIP and by segmenting its review of the BIIP. Dkt. # 55, pp. 24-31 & 36-44. As a state agency, petitioners argue that Respondent should also be subject to FOIL and New York's Open Meetings Law. Dkt. #55, pp. 31-33. Petitioners also argue that Respondent should be subject to the City of Buffalo's Citywide Site Plan Review. Dkt. #55, pp. 45-46. Petitioners assert that Justice Fahey already determined that Respondent is a state agency subject to New York law and argue that this Court should not overturn his determination. Dkt. # 55, pp. 29-31. In addition, petitioners ask this Court to declare that Respondents have violated Justice Fahey's Order by proceeding with border infrastructure improvements before completion of an EIS considering the cumulative effect of all proposed construction projects. Dkt. # 55, p. 47. Respondent argues that this Court must reject petitioners' request for a declaration that the Public Bridge Authority is a New York state agency subject to state statutes because the Court of Appeals for the Second Circuit has rejected that contention and determined that the Authority is an international compact entity. Dkt. #49, pp. 6-10. Respondents argue that as a compact entity, the Public Bridge Authority cannot be subject to state statutes unless the compact expressly requires adherence to such statutes. Dkt. # 49, pp. 6-10. Respondents deny that this petition has any impact upon Justice Fahey's Order and affirm their compliance with that Order. Dkt. # 64, p. 11. Summary Judgment Standard Summary judgment is appropriate "[i]f 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). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party." Thomas v. Irvin, 981 F.Supp. 794, 799 (W.D.N.Y.1997) (internal citations omitted). A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). *489 Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Is the Public Bridge Authority a State Agency? The Public Bridge Authority was created by the New York State Legislature in 1933 as a "body corporate and politic, constituting a public benefit corporation." Laws of New York, Chapter 824 § 1 (1933). The legislation further states that the Public Bridge Authority "shall constitute the municipal corporate instrumentality of the state of New York, for the purposes of carrying out the provisions of this act." Laws of New York, Chapter 824 § 2 (1933). Thus, the Public Bridge Authority was created as a public benefit corporation or municipal corporation or agency of the State of New York. The New York State legislature authorized and empowered the Public Bridge Authority to enter into a compact with Canada with respect to the bridge crossing between New York and Canada. Laws of New York, Chapter 824 § 2 (1933). As required by the United States Constitution, Congress granted its consent to permit the State of New York to enter into the compact with Canada for the establishment of the Public Bridge Authority. House Joint Resolution 315, 73rd Congress, May 3, 1934. Thus, the Public Bridge Authority is "the product of a compact between New York and Canada, approved by Congress." Mitskovski, 435 F.3d at 135. As the Court of Appeals for the State of New York explained: the State has chosen to enter into a compact with the Dominion of Canada for the creation of a new body corporate and politic with a board appointed by the State, responsible to the State and acting for the State. We have held that similar bodies corporate created to act for the State in carrying out a public purpose are State agencies.... We find that the corporate body here created is such an agency of the State. People ex rel. Buffalo and Fort Erie Pub. Auth. v. Davis, 277 N.Y. 292, 299, 14 N.E.2d 74 (1938). What Effect Does an Interstate/International Compact have upon a State Agency? An "interstate compact, by its very nature, shifts a part of a state's authority to another state or states, or to the agency the several states jointly created to run the compact." Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 42, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). The resulting entities "are to be regarded not as extensions of each compacting state's authority, but rather as independently functioning parts of a regional polity ...." International Union of Operating Eng'rs, Local 542 v. Delaware River Joint Toll Bridge Comm'n, 311 F.3d 273, 276 (3d Cir.2002). "In all circumstances, the compact governs the internal operations of the compact entity." Matthew S. Tripolitsiotis, Bridge *490 Over Troubled Waters: The Application of State Law to Compact Clause Entities, 23 Yale L. & Pol'y Rev. 163, 167 (2005). The Court's "role in interpreting the Compact is, therefore, to effectuate the clear intent of both sovereign states, not to rewrite their agreement or order relief inconsistent with its express terms." International Union of Operating Eng'rs, 311 F.3d at 276. Neither state may unilaterally regulate the internal operations of a compact entity. See Tripolitsiotis, 23 Yale L. & Pol'y Rev. at 182. For example, New York cannot enforce its human rights laws and New Jersey cannot enforce its "Barrier-free Statute" requiring access for individuals with disabilities upon the Port Authority of New York and New Jersey. Dezaio v. Port Auth. of N.Y. & N.J., 205 F.3d 62, 65 (2d Cir.), cert. denied, 531 U.S. 818, 121 S.Ct. 56, 148 L.Ed.2d 24 (2000) and HIP, Inc. v. Port Authority of New York and New Jersey, Civ. No. 07-2982, 2008 WL 852445 (D.Ct.N.J. March 28, 2008). Nor could New York impose its anti-discrimination statute regarding employment for former inmates upon the Waterfront Commission of New York Harbor, an interstate compact between New York and New Jersey. Malverty v. Waterfront Comm'n of N.Y., 71 N.Y.2d 977, 979-80, 529 N.Y.S.2d 67, 524 N.E.2d 421 (1988). Similarly, New York cannot impose its Labor Law upon the Port of New York Authority. Agesen v. Catherwood, 26 N.Y.2d 521, 526, 311 N.Y.S.2d 886, 260 N.E.2d 525 (1970) (New York's Labor Law "should not be construed to impose a unilateral regulation of the wages of only a fraction of the Authority's employees, namely, those building and mechanical workers who, it is alleged, work solely on projects within the State of New York."). However, compact entities remain subject to regulation by the compacting states when their actions affect the health or welfare of the citizens of the state. See Tripolitsiotis, 23 Yale L. & Pol'y Rev. at 182. As the Court of Appeals for the State of New York explained in Agesen: The distinction between the internal operations and conduct affecting external relations of the Authority is crucial in charting the areas permitting unilateral and requiring bilateral State action. New York and New Jersey have each undoubted power to regulate the external conduct of the Authority, and it may hardly be gainsaid that the Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public. 26 N.Y.2d at 526-27, 311 N.Y.S.2d 889, 260 N.E.2d 527 (internal citation omitted); see Dezaio, 205 F.3d at 65 (Agesen "teaches that internal operations of the Authority— unlike its external conduct which is subject to each of the Compact State's health and safety laws—are independent from the unilateral control of either State without the other's concurrence."). Is the BIIP subject to SEQRA or the City of Buffalo's Site Plan Review Process? As set forth in the enabling legislation, the Public Bridge Authority has the power to "maintain, reconstruct, repair and replace and operate any properties acquired by it, and pay for the same out of any funds collected by it in the operation of properties acquired by it." Laws of New York, Chapter 824 § 9(5) (1933).[2] Ron Rienas, the General Manager of the Public Bridge Authority, affirms, and petitioners do not dispute, that the BIIP involved the relocation of toll booths and *491 Public Bridge Authority administrative functions from the U.S. plaza to the Canadian plaza as well as the addition of new inspection booths and relocation of the U.S. duty free store within the U.S. plaza and did not utilize any funds from New York State. Dkt. #46, ¶¶ 3 & 16; Dkt. # 47, ¶¶ 11 & 15-16; Dkt. # 53, p. 6. As the undisputed facts demonstrate that the BIIP involved internal infrastructure improvements and relocation of existing infrastructure, neither New York nor the City of Buffalo can impose their environmental regulations upon the Public Bridge Authority. To hold otherwise would usurp the authority granted to the compact. See Seattle Master Builders v. Pacific N.W. Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986) (Council, a compact between Washington, Oregon, Montana and Idaho, not subject to Washington's statute requiring preparation of an environmental impact assessment), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987). Is the Public Bridge Authority subject to New York's FOIL and Open Meetings Law? The enabling legislation for the Public Bridge Authority authorizes the board to "adopt such by-laws, rules and regulations for the calling and conduct of its meetings and the management of its affairs as it may deem necessary or proper, not inconsistent with the provisions of this act." Laws of New York, Chapter 824 § 7 (1933). This legislation expresses no intent that the Public Bridge Authority would be subject to New York's subsequently enacted FOIL or Open Meetings Law. Moreover, it is obvious that New York's FOIL and Open Meetings Law would affect the internal operations of the Public Bridge Authority. As a result, New York's FOIL and Open Meetings Law are not applicable to the Public Bridge Authority. See C.T. Hellmuth & Assocs., Inc. v. Washington Metro. Area Transit Auth., 414 F.Supp. 408 (D.Md.1976) (Maryland Public Information Act inapplicable to interstate compact). Did the BIIP Violate Justice Fahey's Decision and Order? Justice Fahey's Decision and Order annulled the permit allowing the Public Bridge Authority to proceed with construction of a second bridge and enjoined the Public Bridge Authority from going forward with bridge construction until the Public Bridge Authority completed an EIS considering the cumulative impact of the proposed bridge construction project and the related plaza/connecting roadways project. See 04-CV-693 at Dkt. # 1-4. That review—the "2000 Bi-National Integrated Environmental Process"—is under way and construction of a second bridge has not begun. Thus, there is no basis for finding a violation of Justice Fahey's Decision and Order. CONCLUSION For the foregoing reasons, Respondent's motion for summary judgment (Dkt. # 44), is GRANTED and Petitioner's motion for summary judgment (Dkt. #52), is DENIED. The Clerk of the Court shall take such steps as necessary to close this case. SO ORDERED. NOTES [1] The Compact Clause states, "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State." U.S. Const. Art. I, § 10, cl. 3. [2] In 1957, the legislature amended the Public Bridge Authority legislation and renumbered this provision as § 9(e), but made no substantive changes to this section.

978 F.2d 707 Quinonesv.Meachum NO. 92-2026 United States Court of Appeals,Second Circuit. Sept 30, 1992 1 Appeal From: D.Conn. 2 AFFIRMED.

355 Mass. 127 (1969) 243 N.E.2d 178 JAMES J. DERBA, INC. vs. HAMILTON SERVICE, INC. Supreme Judicial Court of Massachusetts, Suffolk. December 3, 1968. January 3, 1969. Present: WILKINS, C.J., CUTTER, KIRK, SPIEGEL, & REARDON, JJ. Jerome P. Facher for the plaintiff. Harold Lavien for the defendant. *128 WILKINS, C.J. Commonwealth Management, Inc. (Commonwealth) owed an amount for meat products for which the plaintiff (Derba) was about to sue. This action is to recover on an agreement by the defendant (Hamilton) to pay the indebtedness in consideration that Derba would forbear to sue Commonwealth. Hamilton's main reliance is the Statute of Frauds, G.L.c. 259, § 1, which was the only ground of demurrer relied upon. The same defence is set up in the answer. The demurrer was overruled. After a trial on the merits another judge found for Derba. Upon reports, the Appellate Division upheld the overruling of the demurrer, but vacated the finding for Derba and ordered a finding entered for Hamilton. Both parties appealed from the order of the Appellate Division. As we shall consider the issues raised at the trial on the merits, we do not discuss the artificial case raised by the demurrer. See Walcott v. Cambridge, 351 Mass. 32, 33; Massachusetts Bar Assn. v. Cronin, 351 Mass. 321, 324, and cases cited. Hamilton owned a motel, known as Hamilton House, at 1110 Commonwealth Avenue, Boston. Derba was a wholesale dealer, which sold meat for the motel to Commonwealth, a corporation controlled by one Zirpolo. The motel contained the Kismet Lounge and the Royal Colony Restaurant, which were managed and operated by Commonwealth. The restaurant ran into financial difficulties, and Hamilton became concerned about its continued operation. In these circumstances Hamilton sent Derba a form letter[1] (exhibit 1) bearing date of October 15, 1965. Below the typed name and address of Derba, the mimeographed body of the letter stated that the management of Royal Colony Restaurant, formerly managed by Commonwealth, had been turned over to Hamilton, and asked creditors not to *129 extend further credit without Hamilton's written approval. The signature was "Hamilton Service Inc., George M. Brown [handwritten], George M. Brown, President." The typewritten postscript on the second letter was as follows: "P.S. Enclosed please find check for 1/3 of bill ending 9/30/65. We will pay 1/3 in Dec. 1965 and the Balance in Jan. 1966. We appreciate your patience in this matter." The enclosed check (exhibit 3) was for $2,244.25, bore date of November 19, was payable to James J. Derba and signed "George M. Brown." On the face of the check to the left there is printed, "By endorsement this check when paid is accepted in full payment of the following account." This is followed by this statement in ink: "Date 10/1/65 Total Bill Amount 6,732.77 1/3 of Bill 2,244.25 Loss of Guarantee Michael Zirpolo Royal Colony Rest." The trial judge found that "George M. Brown, president of the defendant was authorized to act in behalf of the defendant in its dealings with the plaintiff." He also concluded: "The contents of exhibits 1-3 signed by George M. Brown constitute a binding written contract of the defendant to pay to the plaintiff the debt owed to the plaintiff by the Commonwealth Management, Inc. in the amount of ... [$4,488.52]." "There was adequate consideration for the contract." Hamilton submitted requests for rulings. Of these the judge denied requests numbered 1, 2, 3, 4, 5, 6, and 10, and reported these rulings, and no others, to the Appellate Division. The Appellate Division considered only the first two requests. These were: "1. If the court finds that the defendant promised to pay to the plaintiff the debt owed the plaintiff by Commonwealth Management, Inc., such promise falls within G.L.c. 259, § 1, Second. 2. If the court finds that the defendant promised to pay to the plaintiff the debt owed to the plaintiff by Commonwealth Management, Inc., in consideration of the plaintiff's forbearance to sue Commonwealth Management, Inc., such promise falls within G.L.c. 259, § 1, Second." Both were denied by the trial *130 judge with the notation "Inapplicable to facts found." This was harmless error. The Appellate Division stated "the [trial] court found as a fact that the letters of October 15, November 15, and the check of November 15 sufficed to produce a binding written contract of the defendant to pay to Derba the debt of Commonwealth. This finding [sic] was inconsistent with the court's ruling with respect to request for ruling Number 1. This request properly stated the law. If Hamilton agreed with Derba to pay the debt of Commonwealth, it was a promise to pay the debt of another and under the Statute of Frauds should be in writing, and in view of the court's finding to this effect it should have ruled as requested." We agree that the ruling should have been given. The trial judge's action was not a finding but a ruling, and was not "inconsistent" with the ruling on request numbered 1. The contract fell within the statute, but it complied with the statute. See Forman v. Gadouas, 247 Mass. 207, 212; Tzitzon Realty Co. Inc. v. Mustonen, 352 Mass. 648, 653. The Appellate Division reached a similar result as to the second request. We agree, for reasons hereinbefore stated, that the request was correct and that the ruling should have been given. The Appellate Division proceeded to rule that there was no consideration and that the agreement was unenforceable. See, however, Boyd v. Freize, 5 Gray, 553, 555; Restatement 2d: Contracts, § 75 (3) (b); Williston, Contracts (3d ed.) § 135B. This question, however, was not reported. The duty of the Appellate Division was to deal with the questions reported and no others. The appeal brings before us the rulings of law reported by the judge to the Appellate Division and questions of law touching the action of the Appellate Division. Gaston Elec. Co. v. American Constr. Co. Inc. 336 Mass. 454, 456. Hamilton's remaining requests which the trial judge reported and the Appellate Division did not consider (see Barry v. Sparks, 306 Mass. 80, 85) do not merit discussion. *131 Requests 3, 4, 5, and 10 relate to the Statute of Frauds which was complied with. The tenth request was fragmentary of the whole case, as the judge stated in denying it. Let the following entries be made: The order of the Appellate Division is affirmed in so far as it upheld the overruling of the demurrer; it is reversed in so far as it vacated the finding for the plaintiff and directed entry of a finding for the defendant. Judgment is to be entered for the plaintiff on the finding of the judge of the Municipal Court. So ordered. NOTES [1] This letter was the second of two sent by Hamilton to Derba. The first was sent on or about October 15, 1965 (exhibit 2) and was identical to the second except that it bore no postscript, and no check was enclosed. The second letter was sent on or about November 15, 1965, and contained a check.

727 F.Supp.2d 978 (2010) Toni L. TOOHEY, individually, and as Personal Representative of the Heirs and the Estate of Frank R. Toohey, Deceased, Plaintiff, v. The WYNDHAM WORLDWIDE CORPORATION HEALTH & WELFARE PLAN, Employee Benefits Committee Wyndham Worldwide Corporation, Life Insurance Company of North America, and Wyndham Worldwide Corporation, Defendants. Civil No. 09-88-ST. United States District Court, D. Oregon. July 26, 2010. *981 Christopher L. Cauble, Walter L. Cauble, Cauble & Cauble, LLP, Grants Pass, OR, Louis S. Franecke, Franecke Law Group, San Rafael, CA, for Plaintiff. Douglas C. Berry, Graham & Dunn PC, Seattle, WA, for Defendants. ORDER HAGGERTY, District Judge. Magistrate Judge Stewart referred to this court a Findings and Recommendation [97] in this matter. The Magistrate Judge recommends that plaintiffs' Motion for Summary Judgment [69] and defendants' Motion for Summary Judgment [73] be granted in part and denied in part. No objections were filed, and the case was referred to this court. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation of the Magistrate. Campbell v. U.S. Dist. Ct., 501 F.2d 196 (9th Cir.1974). No clear error appears on the face of the record. This court adopts the Findings and Recommendation. *982 CONCLUSION The Findings and Recommendation [97] is ADOPTED. IT IS SO ORDERED. FINDINGS AND RECOMMENDATIONS STEWART, United States Magistrate Judge: INTRODUCTION Plaintiff, Toni L. Toohey, brings this action individually and on behalf of the heirs and estate of Frank R. Toohey ("Toohey") to recover sums allegedly due under insurance contracts purchased by Toohey and his employer and issued by Life Insurance Company of North America ("LINA"). The other named plaintiffs are her two sons. This court dismissed the First Amended Complaint without prejudice for failure to state a claim upon which relief could be granted. See Order (docket # 43) adopting Findings and Recommendations (docket # 37). The First Amended Complaint alleged eight claims for relief, seven arising under state-law theories of contract, tort, and fraud, and one seeking benefits under the Employee Retirement Income Security Act ("ERISA"), 29 USC § 1001, et seq. The court found that ERISA preempted the state-law claims and dismissed the ERISA claim for failure to name the proper party as a defendant. After plaintiffs filed the Second Amended Complaint ("SAC"), this court dismissed Claims Three through Five and struck the jury demand. See Order (docket # 64) adopting Findings and Recommendations (docket # 62). Later this court dismissed defendants Cigna Corporation, Cigna Group Insurance, LINA, and Trustees of the Group Insurance Trust for Employers in the Service Industry. See Judgment of Dismissal (docket # 68). Remaining before the court are Claims One and Two against Wyndham Worldwide Corporation ("WWC"), Wyndham Worldwide Corporation Health & Welfare Plan ("the Plan") and the Wyndham Worldwide Corporation Employee Benefits Committee ("Plan Administrator") (collectively "Defendants"). The First Claim alleges a claim for benefits under ERISA § 502(a)(1)(B) (codified at 29 USC § 1132(a)(1)(B)). The Second Claim alleges equitable estoppel against the Plan and Plan Administrator. Plaintiffs seek injunctive, equitable, and monetary relief. This court has jurisdiction over these claims pursuant to 29 USC § 1132(e) and 28 USC § 1331. The parties have filed cross-motions for summary judgment (dockets # 69 & # 73). For the reasons that follow, the motions should be granted in part and denied in part and this case remanded for the Plan Administrator to resubmit the claim to LINA for reconsideration. FACTS I. Background Wyndham Resort Development Corporation ("Wyndham Resort Development"), a subsidiary of WWC, employed Toohey as an account executive until August 4, 2008, when he died in a plane crash. SAC, ¶¶ 12, 13, 19. As part of his job responsibilities, Toohey was responsible for overseeing timeshare sales at all of Wyndham Resort Development's properties in Oregon, including the Running Y Ranch Resort ("Running Y") outside Klamath Falls. Burback Decl., ¶ 2. His position required him to travel throughout the state, visiting properties in Seaside, Gleneden, Depoe Bay, Eagle Crest, and Klamath Falls. Hulme Depo. (attached to Berry Decl.), p. 56. *983 Toohey made arrangements to visit the sales team at the Running Y on August 4, 2008, in order to evaluate the team and provide some hands on training. Id. pp. 16, 21-22. He planned to bring Jason Ketcheson ("Ketcheson"), another sales representative, with him to the meeting. Id. p. 21. Ketcheson was also a licensed commercial pilot. Berry Decl., Ex. 1, p. 1. On the evening of August 3, 2008, Ketcheson rented a small aircraft from a company based out of the Seaside Municipal Airport, telling the operator that he was making a business trip to Klamath Falls the following morning. Id. Around 6:45 a.m. on August 4, 2008, the plane departed from Seaside and crashed minutes later in Gearhart, killing Toohey, Ketcheson, and three people on the ground. Id. Toohey had never before flown with Ketcheson and had never taken a noncommercial aircraft for work purposes. T. Toohey Depo. (attached to Berry Decl.), p. 9. Approximately two weeks before the scheduled meeting on August 4, 2008, Toohey told Brad Hulme, manager of the sales team at the Running Y, that he would be flying down to Klamath Falls for the meeting. Hulme Depo., p. 22. However, Toohey's supervisors did not know about his plans to take a noncommercial flight. Pappas Decl., ¶ 2; Burback Decl., ¶ 3. II. Insurance Policies As an employee of Wyndham Resort Development, Toohey participated in a benefit package sponsored by WWC. SAC, ¶¶ 13, 14. This benefit package provided employees with medical coverage, disability insurance, life insurance, accidental death and disability ("AD & D") insurance, and business travel ("BTA") insurance (collectively, "the Plan"). Id.; Patton Decl. (attached as Ex. B to Franecke Decl.), Ex. A, pp. 19-21. At the time Toohey died, multiple insurance policies funded these benefits, including Policies Nos. OK 980073, ABL 980053, and ABL 980060. SAC, ¶¶ 14-33; Patton Decl., Exs. C-E. Wyndham obtained these three Policies from LINA. Id. Policies Nos. OK 980073 and ABL 980060 provided AD & D coverage. Patton Decl., Exs. C & E. Participants automatically received basic AD & D coverage in the amount of 1.5 times their annual salary, and WWC paid the premium on this coverage. Id. Ex. A, pp. 4, 8, 21, & Ex. B, p. 6. Defendants estimate that Toohey's basic AD & D benefits coverage was $588,000. Id. Ex. F, p. 4. Participants also could elect additional voluntary AD & D coverage in the amount of two to five times their annual salary. Id. Ex. B, pp. 14-15. Toohey elected to pay the premium for the voluntary AD & D coverage in the amount of three times his annual salary for a maximum recovery of one million dollars. Id. Ex. C, p. 67, & Ex. F, p. 4. Policy No. ABL 980053 was the BTA policy. Id. Ex. D. BTA benefit coverage was automatic for all WWC employees who were eligible to participate in the Plan. Id. Ex. A, p. 4. WWC paid the entire premiums for BTA coverage. Id. p. 21. BTA benefit coverage was for five times the annual salary, for a maximum of one million dollars. Franecke Decl., Ex. F, p. 6. All three polices contain the following language: This Policy has been issued in conjunction with an employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974 ("ERISA"). This Policy is a Plan document within the meaning of ERISA. As respects the Insurance Company, it is the sole contract under which benefits are payable by the Insurance Company. Except for this, it shall not be deemed to affect or supersede other Plan documents. *984 The Plan Administrator has appointed the Insurance Company as the named fiduciary for deciding claims for benefits under the Plan, and for deciding any appeals of denied claims. Patton Decl., Ex. C, p. 41, Ex. D, p. 29, & Ex. E, p. 20. WWC never provided Toohey with copies of the Policies, binder letters, or other documents which formed the insurance contracts, but did provide several booklets purporting to describe the benefits available under the Plan. SAC, ¶¶ 15, 16. These included the "About Your Participation" booklet, which contained general information about the administration of the Plan, and the "Life and Accident Insurance Benefits" booklet, which purported to describe the life, AD & D, and BTA coverages under the Plan. Id. ¶ 16; Patton Decl., Exs. A-B (collectively referred to as the summary plan description ("SPD")). The SPD identifies WWC as the Plan's sponsor and the WWC Employee Benefits Committee as the Plan Administrator. Id. Ex. A, p. 19. For each of the policies, the Plan designates LINA as the Claims Administrator. Id. Ex. C, p. 41, Ex. D, p. 34, & Ex. E, p. 20. The Plan Administrator designated LINA as the Claim Fiduciary vested with "the authority, in its discretion to interpret the terms of the Plan, including the Policies; to decide questions of eligibility for coverage or benefits under the Plan; and to make findings of fact." Id. Ex. D, p. 34. Moreover, all decisions made by LINA were final and binding to the full extent permitted by law. Id. Under the Plan, LINA was responsible for providing the SPD to the Plan Administrator for dissemination to plan participants and beneficiaries[1]. Id. However, the Plan Administrator was "solely responsible for assuring that any form of SPD which differs from the wording of the SPD provided by [LINA] is consistent with the terms of the applicable Plan documents including the Policies." Id. Plaintiffs are the named beneficiaries under the Policies. III. Policies and SPD Language The language used in the SPD to describe benefit exclusions differs from the exclusionary language contained in the Policies. All three Policies include the following exclusion: In addition to any benefit-specific exclusions, benefits will not be paid for any Covered Injury or Covered Loss which, directly or indirectly, in whole or in part, is caused by or results from any of the following unless coverage is specifically provided for by name in the Description of Benefits Section: * * * 6.[2] flight in, boarding or alighting from an Aircraft or any craft designed to fly above the Earth's surface: a. except as a passenger on a regularly scheduled commercial airline; b. being flown by the Covered person or in which the Covered Person is a member of the crew; c. being used for: i. crop dusting, spraying or seeding, giving and receiving flying instruction, fire fighting, sky writing, sky diving or hang-gliding, pipeline or power line inspection, aerial photography or exploration, racing, endurance *985 tests, stunt or acrobatic flying; or ii. any operation that requires a special permit from the FAA, even if it is granted (this does not apply if the permit is required only because of the territory flown over or landed on); d. designed for flight above or beyond the earth's atmosphere; e. an ultra-light or glider; f. being used for the purpose of parachuting or skydiving; g. being used by any military authority, except an Aircraft used by the Air Mobility Command or its foreign equivalent[.] Patton Decl., Ex. C, p. 28, Ex. D, p. 13, & Ex. E, p. 11 (emphasis added). In addition, Policies Nos. OK 980073 (AD & D Policy) and ABL 980053 (BTA Policy) contain the following exclusion for: 8. travel in any Aircraft owned, leased or controlled by the Subscriber, or any of its subsidiaries or affiliates. An Aircraft will be deemed to be "controlled" by the Subscriber if the Aircraft may be used as the Subscriber wishes for more than 10 straight days, or more than 15 days in any year. Id. Ex. C, p. 28, & Ex. D, p. 13. On the other hand, the SPD describes the AD & D and BTA exclusions in the following manner: AD & D benefits are not payable for losses that result from any of the following causes: * * * • injury sustained while operating, learning to operate or serving as a member of the crew of an aircraft; while in any aircraft except as a fare-paying passenger on a regularly scheduled commercial airline or as a passenger in a nonscheduled private aircraft used for pleasure purposes with no commercial intent during the flight [;] • injury sustained while boarding, riding in or leaving an aircraft or any craft designed to fly above the earth's surface that is being used crop dusting, spraying or seeding; fire fighting; sky writing; sky diving, hang gliding, bungee jumping or parasailing; pipeline or power line inspection; aerial photography or exploration; racing endurance tests, stunt or acrobatic flying; parachuting or sky diving; any aircraft or craft that is an ultra-light or glider; or if the aircraft performs any operation that requires a special permit from the FAA even if the permit is granted (this does not apply if the permit is required only because of the territory flown over or landed on) or is being used by any military authority, except as an aircraft used by the Air Mobility Command or its foreign equivalent; or flight in any spacecraft[.] * * * The Business Travel Accident Plan does not cover any accidental death, injury or paralysis caused by or resulting from the following[:] * * * • injury sustained while operating, learning to operate or serving as a member of the crew of an aircraft; while in any aircraft except as a farepaying passenger on a regularly scheduled commercial airline or as a passenger in a nonscheduled private aircraft. An injury is covered if the private aircraft is owned, leased or controlled by the Company [;] • injury sustained while boarding, riding in or leaving an aircraft or any craft designed to fly above the earth's surface that is being used crop dusting, spraying or seeding; fire fighting; sky writing; sky diving, or hang gliding; pipeline or *986 power line inspection; aerial photography or exploration; racing endurance tests, stunt or acrobatic flying; parachuting or sky diving; any aircraft or craft that is an ultra-light or glider; or if the aircraft performs any operation that requires a special permit from the FAA even if the permit is granted or is being used by any military authority, except as an aircraft used by the Air Mobility Command or its foreign equivalent; or flight in any spacecraft[.] Id. Ex. B, pp. 8, 11, 17 (emphasis added). IV. Benefit Claims On August 29, 2008, LINA denied plaintiffs' claim for AD & D benefits, citing the AD & D Policies' exclusion for losses caused by flight in an aircraft "except as a passenger on a regularly scheduled commercial airline." Franecke Decl., Ex. E., pp. 27-36. LINA denied plaintiffs' claim for BTA benefits on September 10, 2008, based upon similar exclusion language contained in the BTA Policy. Id. pp. 37-43. Represented by counsel, plaintiffs sought a redetermination of LINA's denial of AD & D benefits on October 29, 2008, and for the denial of BTA benefits on November 3, 2008. Id. pp. 46-48, 50-51. Plaintiffs did not submit any additional materials with their appeals. Id. pp. 48-49. On November 26, 2008, LINA denied plaintiffs' claims for AD & D and BTA benefits, again citing the exclusions in all three Policies for any loss while a passenger in any aircraft except as a passenger on a regularly scheduled commercial airline. Id. pp. 53-55. LINA relied upon the WWC proof of loss claim form for Accidental Death benefits, Toohey's death certificate, the NTSB preliminary report, plaintiffs' letter of appeal, and Policies Nos. ABL 980053, ABL 980060, and OK 980073. Id. p. 54. In summarizing the evidence to support the denial, LINA stated, "Mr. Toohey was a passenger in a private aircraft used for pleasure with no commercial intent during the flight such as paid flight instruction or carrier for hire of passengers or cargo." Id. The denial letter indicated that "all administrative levels of appeal have been exhausted and we cannot honor any further appeals on this claim... Please note that you have a right to bring legal action regarding your claim under the ERISA section 502(a)." Id. p. 55. Plaintiffs did not seek a review of LINA's denial of benefits to the Plan Administrator, though such a review was permitted under the terms of the WWC employee benefits plan. Patton Decl., Ex. B., p. 18. Instead, plaintiffs filed the current suit. STANDARDS Summary judgment is appropriate only when the record shows 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." FRCP 56(c). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Id. While ERISA provides a cause of action for the recovery of benefits, it "does not contain a body of contract law to govern the interpretation and enforcement of employee benefit plans. Rather, Congress intended that courts apply contract principles derived from state law but be guided by the policies expressed in ERISA and other federal labor laws." Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir.1997) (citation omitted). Accordingly, the terms in an *987 ERISA plan should be interpreted "in an ordinary and popular sense as would a person of average intelligence and experience." Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.), cert. denied, 537 U.S. 1067, 123 S.Ct. 602, 154 L.Ed.2d 556 (2002) (citation omitted). FINDINGS The Plan is governed by ERISA, and this action was brought pursuant to 29 USC § 1132(a)(1)(B), which permits suits by beneficiaries to recover benefits. It is undisputed that the Plan's Policies unambiguously exclude coverage for death in a private aircraft. However, the relevant exclusionary language of the SPD differs. The parties disagree on whether the inconsistencies and resulting ambiguity in the SPD entitle plaintiffs to recover benefits. Plaintiffs contend that the ambiguities in the SPD led Toohey to believe that a death that occurred in a private aircraft was covered by the Plan, and that the ambiguities should be construed in plaintiffs' favor and benefits paid. Defendants argue that due to a lack of evidence of reliance by Toohey on the SPD, the SPD is not enforceable regardless of any ambiguities that may exist. In the alternative, defendants assert that even if the SPD is considered, the plain language of the SPD, when construed as a whole, is not ambiguous and excludes benefits. I. Conflict of Interest: Standard of Review ERISA does not specify a standard of review. Filling that statutory gap, courts apply either a de novo or an arbitrary and capricious standard of review, depending on whether the administrator has the discretion to interpret the terms of the plan or make benefits determinations. A denial of benefits is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962-63 (9th Cir.2006) (en banc). However, if the plan vests the administrator with such discretionary authority, then the court reviews the plan administrator's decision only for an abuse of discretion. Firestone, 489 U.S. at 115. The term "arbitrary and capricious" also describes this deferential standard of review. See Dytrt v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 894 (9th Cir.1990). No deference to the plan administrator is given under de novo review. In contrast, under the arbitrary and capricious standard of review, an administrator's decision "is not arbitrary unless it is `not grounded on any reasonable basis.'" Horan v. Kaiser Steel Ret. Plan, 947 F.2d 1412, 1417 (9th Cir.1991) (emphasis in original), quoting Oster v. Barco of Cal. Employees' Ret. Plan, 869 F.2d 1215, 1218 (9th Cir.1988). Also, an arbitrary and capricious standard of review limits the court's consideration to the evidence reviewed by the plan administrator at the time the eligibility decision was made. McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1316 (9th Cir.1994), cert. denied 514 U.S. 1066, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995); Taft v. Equitable Life Assur. Soc., 9 F.3d 1469, 1471 (9th Cir.1993). Which standard of review applies depends primarily upon the terms of the plan. A plan confers discretion when it "includes even one important discretionary element, and the power to apply that element is unambiguously retained by its administrator." Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992), cert. denied 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). The grant of discretion "should be clear: unless plan documents unambiguously say in sum or substance *988 that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan, the standard of review will be de novo." Sandy v. Reliance Standard Life. Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000). The authority to determine eligibility for benefits "inherently confers discretion" upon the plan administrator. Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996). In an addendum, the Plan confers full discretionary authority on LINA to determine eligibility for benefits and construe the terms of the Plan: Claim Fiduciary shall be responsible for adjudicating claims for benefits under the Plan, and for deciding any appeals of adverse claim determinations. Claim Fiduciary shall have the authority, in its discretion, to interpret the terms of the Plan, including the Policies; to decide questions of eligibility for coverage or benefits under the Plan; and to make any related findings of fact. All decisions made by such Claim Fiduciary shall be final and binding on Participants and Beneficiaries of the Plan to the full extent permitted by law. Patton Decl., Ex. D, p. 34. At oral argument, the parties disagreed whether the addendum conferring this discretion applies to all three Policies, since it is attached only to Policy No. ABL 980053. In the first paragraph, the Plan appoints LINA as the Claim Fiduciary, "to the extent that such benefits are funded by policies of insurance issued by such companies ("Policies")." Although it is attached to only one Policy, this language is sufficient to cover all Policies issued to WWC by LINA. Plaintiffs argue that the phrase "to the full extent permitted by law" somehow limits the Plan's grant of discretion to LINA. That argument is rejected because that phrase is found only in the sentence referring to the finality of decisions made by LINA, and does not qualify the prior sentence concerning the scope of the appointment. Thus, "de novo review does not apply; abuse of discretion review does." Abatie, 458 F.3d at 965. However, where "a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion." Firestone, 489 U.S. at 115, 109 S.Ct. 948. Abuse of discretion review is required "whenever an ERISA plan grants discretion to the plan administrator, but a review informed by the nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record. This standard applies to the kind of inherent conflict that exists when a plan administrator both administers the plan and funds it, as well as to other forms of conflict." Abatie, 458 F.3d at 967. Courts must "temper the abuse of discretion standard with skepticism `commensurate' with the conflict." Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir.2009), quoting Abatie, 458 F.3d at 959, 965, 969. The importance that courts attach to the conflict depends on the "conflict's nature, extent, and effect on the decisionmaking process." Id. at 1153, quoting Abatie, 458 F.3d at 970 (remaining citation omitted). A variety of factors may be considered, including the monetary conflict (structural conflict of interest), the emphasis by the administrator of evidence favorable to a denial of benefits and de-emphasis of unfavorable evidence, inconsistent explanations for claims denials, the presence of procedural irregularities in the claims process, and evidence which tends to show bias or bad faith. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116-19, 128 S.Ct. 2343, 2351-52, 171 L.Ed.2d 299 (2008) (financial incentives, emphasis of evidence *989 favoring denial of benefits, failure to provide independent experts all relevant evidence); Nolan, 551 F.3d at 1155 (bias); Abatie, 458 F.3d at 968 (inconsistent reasons for claims denial, failure to adequately investigate, failure to credit reliable evidence, making decisions against the weight of the evidence); Friedrich v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir.1999) (procedural irregularities in initial claims process and unfair appeal process); Lang v. Long Term Disability Plan, 125 F.3d 794, 797 (9th Cir.1997) (inconsistent reasons). The reviewing court must make "something akin to a credibility determination about the insurance company's or plan administrator's reason for denying coverage under a particular plan and a particular set of medical and other records." Abatie, 458 F.3d at 969. Moreover, evidence which might materially affect the abuse of discretion standard of review must be viewed "through the lens of the traditional rules of summary judgment" and in the light most favorable to the non-moving party. Nolan, 551 F.3d at 1154-55.[3] Courts may consider evidence outside the administrative record to determine the nature, extent, and effect of any conflict of interest. Id. at 1154. LINA has a structural conflict of interest as it both determines eligibility for benefits and pays benefit awards. An inherent financial conflict in a case such as this, where the benefits in dispute are over $2,500,000,[4] must be considered in determining the effect this conflict had on the decision-making process. Plaintiffs contend that LINA actively concealed the conflict between the Plan documents and the SPD during the review process, but has not presented any evidence of malice, selfdealing, parsimonious claims-granting history, or inconsistent reasons for denial. Nor have defendants presented any evidence, as suggested by the Ninth Circuit, to show that the alleged conflict of interest did not affect the benefits decision: [A] conflicted administrator, facing closer scrutiny, may find it advisable to bring forth affirmative evidence that any conflict did not influence its decisionmaking process, evidence that would be helpful in determining whether or not it has abused its discretion. For example, the administrator might demonstrate that it used truly independent medical examiners or a neutral, independent review process; that its employees do not have incentives to deny claims; that its interpretations of the plan have been consistent among [beneficiaries]; or that it has minimized any potential financial gain through structure of its business (for example through a retroactive payment system). Abatie, 458 F.3d at 969 n7. Consequently, the court has limited information from which to determine the extent of the conflict of interest. The record is clear that LINA's financial stake was significant, as it was responsible for paying benefits and was charged with interpreting the terms of the Plan and determining benefit eligibility in an exceedingly *990 large claim. As the writer of the policies, LINA had even more of a stake in the outcome, which was compounded by the fact that the Plan clearly designated responsibility to LINA for providing the SPD to the Plan Administrator. Defendants now assert that LINA was not actually responsible for writing the SPD and delegated that responsibility to a third party. Regardless of who wrote the SPD, the Plan indicates that LINA was to be given the SPD for use in making benefit determinations. Because the benefits decision hinged upon whether the SPD or Policies controlled, and LINA not only had a significant financial stake, but also was responsible for writing the Policies, the court will apply a heightened degree of skepticism in reviewing the decision for abuse of discretion. II. Contradictions Between SPD and Policies "The primary document governing an employee benefit plan is the master plan document, which sets forth the terms and conditions of the plan. Those terms and conditions are then summarized for employees in the benefit plan's summary plan description." Providence Health Plans of Oregon v. Simnitt, 2009 WL 700873 at *5 (D.Or. March 13, 2009), citing Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1329 (9th Cir.1996). ERISA requires that every employee subject to a qualifying plan receive an SPD. 29 USC § 1022(a). An SPD must be "written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." Id. The SPD is the participant's "primary source of information regarding employment benefits," and is itself a part of the plan. Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1143 (9th Cir.2002) (citations omitted). When interpreting an ERISA plan, the plan documents must be construed as a whole. Id. (citations omitted). When the terms of a plan document conflict with the SPD, the document more favorable to the participant controls. Id. p. 1145. The Ninth Circuit has determined that: Any burden of uncertainty created by careless or inaccurate drafting of the summary must be placed on those who do the drafting, and who are most able to bear the burden, and not on the individual employee, who is powerless to affect the drafting of the summary or the policy and ill equipped to bear the financial hardship that might result from a misleading or confusing document. Accuracy is not a lot to ask. Id. citing Hansen v. Continental Ins. Co., 940 F.2d 971, 981-82 (5th Cir.1991). This conclusion rests on the theory that "the law should provide as strong an incentive as possible for employers to write the SPDs so that they are consistent with the ERISA plan documents, a relatively simple task." Id. (citations omitted). Here, the SPD and the Policies contain drastically different language concerning the exclusions related to air travel. The Policies unambiguously deny coverage unless the loss occurred while Toohey was "a passenger on a regularly scheduled commercial airline." Patton Decl., Ex. C, p. 28, Ex. D, p. 13, & Ex. E, p. 11. The parties agree that under the terms of the Policies, plaintiffs cannot recover benefits. On the other hand, the exclusionary language in the SPD is much broader. It provides that "AD & D benefits are not payable for losses . . . while in any aircraft except as a fare-paying passenger on a regularly scheduled commercial airline or as a passenger in a nonscheduled private aircraft *991 used for pleasure purposes with no commercial intent during the flight[.]" Id. Ex. B, pp. 8, 17. It also states that the BTA Policy "does not cover any accidental death, injury, or paralysis . . . while in any aircraft except as a fare-paying passenger on a regularly scheduled commercial airline or as a passenger in a nonscheduled private aircraft. An injury is covered if the private aircraft is owned, leased or controlled by the Company[.]" Id. p. 11. None of the Plan documents define the key terms that distinguish the exclusionary clauses in the SPD from the straightforward exclusion in each of the Policies. Namely, there is no definition of a "nonscheduled private aircraft" or what is meant by the phrase "used for pleasure purposes with no commercial intent during the flight." Further complicating the issue is that the SPD itself is inconsistent, adding the restriction that the aircraft "be used for pleasure purposes with no commercial intent during the flight" only for AD & D benefits, and that "an injury is covered if the private aircraft is owned, leased or controlled by the Company" only for BTA benefits. Such a contradiction is of the type addressed in Bergt because the additional language in the SPD greatly expands the class of aircraft covered by the policies. Moreover, the additional AD & D requirement that the aircraft be "used for pleasure purposes with no commercial intent," and the additional BTA exception that "an injury is covered if the private aircraft is owned, leased or controlled by the Company," further modifies the aircraft exclusion as set forth in the Policies. By adding these phrases, the drafters eliminated as a possible interpretation that the Policies apply only when the accident occurs while a passenger on regularly scheduled commercial airline and opened up a whole host of additional possibilities, depending upon how the phrases "used for pleasure purposes with no commercial intent" and "the private aircraft is owned, leased or controlled by the Company" are interpreted. When the master plan documents and the SPD so directly conflict, the "important policy of protecting plan members from misleading or false information contained in a plan document" is implicated. Simnitt, 2009 WL 700873 at *5. Moreover, Toohey was never provided copies of the Policies and had only the SPD to rely upon, thereby further implicating Bergt's equitable principle that beneficiaries are entitled to rely upon the plan documents that have been provided. See id. Accordingly, the court must apply the version that is more favorable to the claimant. In this case, that version is contained within the SPD. III. Reliance Defendants contend that even if the SPD controls, it is not enforceable because plaintiffs have not shown Toohey's reliance upon it. In response, plaintiffs assert that the Ninth Circuit does not require reliance upon the more favorable document in order for it to control and that even if it does, they have presented ample evidence of reliance. A. Plaintiffs' Burden The parties do not dispute that the Ninth Circuit has not directly addressed the issue of whether a claimant must demonstrate reliance on the SPD in order for its more favorable language to trump the plan's language. Defendants urge the court to adopt the reasoning in Skinner v. Northrop Grumman Retirement Plan B, 2010 WL 679061 (C.D.Cal. Jan. 26, 2010). There the court held that a claimant seeking to invoke a favorable SPD provision must show that he reasonably relied upon the provision and that because of this reliance, he "did or did not take action resulting *992 in the forfeiture of the very benefit sought." Id. at *8, quoting Adams v. J.C. Penney, 865 F.Supp. 1454, 1461 (D.Or. 1994), aff'd, 83 F.3d 426 (9th Cir.1996). The court noted that most circuit courts addressing this issue "require either a showing of reasonable reliance or a more stringent showing of prejudice." Id. at *7, citing Mauser v. Raytheon, 239 F.3d 51, 59 (1st Cir.2001); Wilkins v. Mason Tenders Pension Fund, 445 F.3d 572, 585 (2nd Cir.2006); Stiltner v. Beretta, 74 F.3d 1473, 1478 (4th Cir.1996); Health Cost Controls v. Washington, 187 F.3d 703, 711 (7th Cir.1999); Koons v. Aventis Pharmaceuticals, 367 F.3d 768, 775 (8th Cir.2004); Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir.1996); Branch v. G. Bernd Co., 955 F.2d 1574, 1579 (11th Cir.1992). The Skinner court also relied upon three district court cases in this circuit, including one from this court, holding that reasonable reliance is required in order to recover under the terms of a contradictory, more favorable SPD. Id. citing Adams, 865 F.Supp. at 1460 (finding plaintiff's evidence of reliance wholly insufficient and granting defendants' motions for summary judgment); Kaiser Permanente Plan v. Bertozzi, 849 F.Supp. 692, 698 (N.D.Cal. 1994) (finding decedent's telephone call and letter to insurer in an attempt to satisfy the SPD requirements prior to her death sufficient to preclude summary judgment); Berry v. Blue Cross, 815 F.Supp. 359, 364-65 (W.D.Wash.1993) (holding that plaintiffs were required to prove reasonable reliance on the SPD in making their health coverage decisions, but leaving the reasonableness inquiry to the factfinder). Skinner adopted the rule as articulated by this court in Adams. In Adams, the claimant maintained that the plan and the SPD differed as to what constituted hearing loss, and the only evidence of reliance was that, after being told by a representative of her employer that her claim was not covered, the claimant made unrelated expenditures in greater amounts than she would have otherwise based solely on the more favorable SPD. Adams, 865 F.Supp. at 1462-63. The court found that the claimant's alleged reliance was insufficient because it was made in the face of contradictory information and did not affect the benefits sought since the expenditures were for her daughter's education and a new car, and to hold that such actions constitute reasonable reliance would "vitiate the very requirement of reliance." Id. at 1463. In applying the reasonable reliance rule, Skinner found that the plaintiffs' evidence of reliance was inadequate because they asserted only that they continued their employment without any evidence that such continued employment would forfeit their benefits. 2010 WL 679061 at *8. The court emphasized the importance of avoiding an "unintended windfall" to participants if employers are strictly liable for a defective SPD which could potentially discourage employers from offering plans. Id. at *7 ("[R]equiring reasonable reliance before a participant can recover greater benefits than the plan sponsor intended based on a defective SPD fosters the balance Congress sought to achieve between protecting participants and maintaining incentives for employers to offer benefit plans."). Plaintiffs point to a more recent case by another district court in this circuit which declined to adopt the reasonable reliance rule. Goldinger v. Datex-Ohmeda Cash Balance Plan, 2010 WL 1270191 (W.D.Wash. March 31, 2010). That court reasoned that the Ninth Circuit would not impose a reliance requirement, pointing out that the three district court cases requiring reasonable reliance all predated the Ninth Circuit's decision in Bergt. It further distinguished the contrary district court cases by citing to another district court case, Lancaster v. U.S. Shoe Corp., 934 F.Supp. 1137, 1154-55 (N.D.Cal.1996), *993 holding that an inaccurate SPD controls over the plan, regardless of whether the claimant can show reliance upon the SPD, because such an objective test would encourage insurers to ensure that SPDs clearly reflect plan provisions and provide clearer expectations about the likely outcome of disputes. The court also relied on the Ninth Circuit's clear directive that ambiguities in ERISA plans should be construed against the drafter. Because SPDs are participants' "primary source of information regarding employment benefits," a "rule that insulates plan administrators from liability for most errors in SPDs promotes careless drafting of SPDs and undermines the effectiveness of SPDs in apprising participants of their rights and obligations." 2010 WL 1270191 at *7. To further underscore the importance of accurately drafted SPDs, Goldinger emphasized that Congress has enacted statutes and regulations that "tightly control the content of an SPD." Id. citing 29 USC § 1022(b); 29 CFR §§ 2520.102-2 to 2520.102-4. Based on a review of these authorities, this court is inclined to adhere to its previous ruling, which also has been adopted by a majority of other courts, that a claimant must demonstrate reliance on the SPD in order for its more favorable language to trump the plan's language. B. Evidence of Reliance There is no way to know what Toohey was thinking when he decided to take a private flight to Klamath Falls on August 4, 2008, leaving only circumstantial evidence to determine whether he reasonably relied upon the SPD. Mrs. Toohey asserts that she and her husband relied upon the SPD based upon the following evidence: (1) they never received a copy of the Policies; (2) in making the benefit election every year, they consulted the SPD; and (3) had the SPD indicated that there would be no coverage for flight in a private aircraft, Toohey would not have taken the flight, as it would have been contrary to company policy. It is undisputed that the Tooheys never received a copy of the Policies and that they consulted the SPD when making their benefit election for the year. T. Toohey Depo., pp. 14-16, 24. This testimony is bolstered by Toohey's benefit election history, indicating that he changed his voluntary AD & D coverage several times. Franecke Decl., Ex. E, pp. 19-26. For the 2006 benefit year, he changed his election from a complete waiver of the voluntary AD & D coverage to selecting coverage that was five times his annual salary. Id. p. 26. For the 2007 benefit year, he dropped the coverage down to four times his annual salary, and for the 2008 year, he again modified his coverage, to three times his annual salary. Id. pp. 19, 22. This case is distinguishable from Adams and Skinner where the alleged reliance was entirely unreasonable and without basis. This is not a case where the claimant admittedly had no knowledge of the SPD prior to the claim or where the claimant took objectively unreasonable action wholly unrelated to the claimed benefit on the basis of contradictory information. Instead, the record indicates that prior to his death, Toohey was in possession of the SPD and made changes to the voluntary AD & D coverage every year during the open enrollment period which lends support to the claim that he read, relied upon, and made decisions based upon the SPD content. While it is unknown whether Toohey consulted the SPD prior to making his travel plans for the morning of August 4, 2008, this action is the type anticipated by the SPD in order to furnish participants with information regarding coverage and under what circumstances coverage would be denied. Toohey's *994 decision to fly on a private aircraft is directly related to the claimed benefit. Since the Tooheys never received copies of the Policies, they had no contradictory information upon which to make decisions. Thus, it is reasonable to conclude that Toohey relied upon the terms of the SPD to his detriment. As a result, plaintiffs have presented minimal, but sufficient, circumstantial evidence of reasonable reliance upon the SPD. IV. Entitlement to Benefits Defendants argue that even if the SPD controls, LINA, as the Claims Administrator, did not abuse its discretion by denying benefits because plaintiffs failed to bring the SPD to LINA's attention during the review process and because the plain language of the SPD is consistent with the denial of benefits. Plaintiffs assert that because the SPD was part of the Plan, they were not required to bring it specifically before the Claims Administrator during the review process and that LINA's failure to consider the SPD was a clear abuse of discretion. Plaintiffs further claim that the clear language in the SPD covers the flight in question, and that LINA is bound by its statement supporting its final denial of benefits. A. Exhaustion As a general rule, a plan participant must first exhaust the plan's internal review proceedings before bringing a lawsuit regarding the denial of benefits. Diaz v. United Agr. Employee Welfare Ben. Plan and Trust, 50 F.3d 1478, 1483 (9th Cir.1995), citing Amato v. Bernard, 618 F.2d 559, 566-68 (9th Cir.1980). Thus, claims may be waived if not first presented in administrative proceedings. See Bahnaman v. Lucent Technologies, Inc., 219 F.Supp.2d 921, 925 (N.D.Ill.2002). However, a plan participant need only exhaust claims, not theories or issues; so long as the claim was properly raised, the participant may raise any theory or issue in subsequent court proceedings, if it is based upon information that was before the administrative review body. Id. Here, the parties dispute whether plaintiffs properly raised the issue of their reliance upon the conflicting SPD provisions during the review process. There is no dispute that during the review process, plaintiffs consistently claimed that they were eligible for AD & D and BTA benefits. Plaintiffs repeat that same claim here, and there is no indication that any of the facts relied upon in this action were not brought to LINA's attention. Moreover, LINA, as the Claims Administrator, was required to obtain information adequate to make an informed decision. Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463-64 (9th Cir.1997), citing Kunin v. Benefit Life Trust Ins. Co., 910 F.2d 534, 538 (9th Cir.1990) (burden is on plan administrator to obtain adequate information to make decision). Despite the Plan's conferral of responsibility to LINA for drafting the SPD based upon the standard certificates of insurance, defendants now contend that a third party actually drafted the SPD and that LINA did not review the SPD at all during the review process. Consequently, LINA, in its duty to make an informed decision should have, at a minimum, reviewed all the relevant Plan documents. Since the SPD was a Plan document, plaintiffs were not required to specifically draw LINA's attention to it in order to properly raise the claim. B. Coverage under the SPD The SPD provides that both AD & D and BTA benefits are not payable for losses while in an aircraft, subject to two exceptions: (1) if the participant is a fare paying passenger on a regularly scheduled commercial airline; or (2) while a passenger *995 in a nonscheduled private aircraft. The first exception, consistent with the Policies, unambiguously excludes coverage. At issue is the second exception. The SPD requires that in order to be covered while a passenger in a nonscheduled private aircraft, the aircraft must be "used for pleasure purposes with no commercial intent during the flight." The BTA Policy contains an additional sentence, stating that "[a]n injury is covered if the private aircraft is owned, leased or controlled by the company." The parties hotly dispute the meaning of these additional phrases. With regard to the AD & D Policies, it is curious that the final denial letter dated November 3, 2008, stated that the decision to deny benefits was because "[t]he information in [the] file supports the fact that Mr. Toohey was a passenger in a private aircraft used for pleasure with no commercial intent at the time of his death." Franecke Decl., Ex, E, p. 54. This is the precise language that appears in the SPD as an exception to the aircraft exclusion for entitlement to AD & D benefits. It also is the same language used by plaintiffs' counsel in the October 29, 2008 letter appealing the denial of benefits. Id. p. 46. It is unclear if LINA, in using this language, was referring to the SPD or to counsel's letter or was making an intentional admission, as opposed to simply repeating the wording used by plaintiff's counsel. The denial letter also states that the airplane had "no commercial intent during the flight such as paid flight instruction or carrier for hire of passengers or cargo" which also parrots the language in counsel's letter. Id. The Plan does not define the phrase "used for pleasure purposes with no commercial intent during the flight," and each side has posited a reasonable interpretation. Plaintiffs contend that the exclusion requires that the "commercial intent" occur during the flight, such as if Toohey had been taking a client down to Klamath Falls in order to make a sale. Under this interpretation, the fact that Toohey intended to engage in business once exiting the aircraft is irrelevant because the SPD only excludes commercial activity during the flight itself. Defendants argue that Toohey's use of the aircraft to travel to a business meeting necessarily confers commercial intent because he intended to engage in business upon arriving his destination. In contrast, had he used the aircraft to travel to Klamath Falls for vacation, then Toohey would have lacked any commercial intent. Thus, at least two reasonable interpretations are possible for the phrase "used for pleasure purposes with no commercial intent during the flight" in the SPD, rendering the SPD ambiguous with regard to entitlement to AD & D benefits. Turning next to the SPD provisions governing the BTA Policy, defendants contend that the second sentence serves as an additional limitation, such that a beneficiary may only recover if the loss occurs while in a nonscheduled private aircraft that is "owned, leased, or controlled by the Company." In interpreting this provision, ERISA requires that the interpretation of terms be guided by principles of contract and plan documents construed as a whole. Consistent with this undertaking, courts should "look to the agreement's language in context and construe each provision in a manner consistent with the whole such that none is rendered nugatory." Dupree v. Holman Professional Counseling Centers, 572 F.3d 1094, 1097 (9th Cir.2009) (citations omitted). The first sentence provides that all losses as a passenger on a nonscheduled private aircraft are covered. To find that the second sentence does not serve to qualify losses on a nonscheduled private aircraft would render the first sentence meaningless. Thus, the second sentence can be reasonably interpreted to *996 mean only that losses are recoverable if they occur in a nonscheduled private aircraft owned, leased or controlled by WWC. In determining what is meant be "owned, leased, or controlled" to the facts of this case, Policies Nos. OK 980073 (AD & D Policy) and ABL 980053 (BTA Policy) contain the following definition: An Aircraft will be deemed to be "controlled" by the Subscriber if the Aircraft may be used as the Subscriber wishes for more than 10 straight days, or more than 15 days in any year.[5] Patton Decl., Ex. C, p. 28, Ex. D, p. 13. The evidence in the record indicates that Ketcheson, an employee of WWC, rented the aircraft for just one day. Thus, the aircraft was not "controlled" by WWC under the terms of the Plan. It is undisputed that the airplane also was not "owned" by WWC. Thus, in order to be awarded BTA benefits, plaintiffs must establish that the airplane was "leased" by WWC. Even if a one day rental qualifies as a lease, the limited record currently before the court does not shed any light on whether that lease was by WWC. There may be other facts relevant to this determination that were not considered by LINA in the initial claims determination. V. Remand The Ninth Circuit has made it clear that "remand for reevaluation of the merits of a claim is the correct course to follow when an ERISA plan administrator, with discretion to apply a plan, has misconstrued the Plan and applied the wrong standard to a benefits determination." Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir.1996). Given defendants' assertion that LINA did not use the SPD in making the initial benefit determination, it is clear that the Claims Administrator "has not yet had the opportunity of applying the Plan, properly construed, to [plaintiffs'] application for benefits." Id. at 460. "It is not the court's function ab initio to apply the correct standard to the participant's claim." Id. at 461 (citation omitted). Under the terms of the Plan, LINA, as Claims Administrator, is charged with determining benefit claims and has not yet had a chance to make a benefit determination here based upon the SPD. As discussed above, the SPD and Policies conflict, plaintiffs have made the required showing of reliance on the SPC, the relevant provision in the SPD concerning AD & D benefits is ambiguous, and LINA never had occasion to apply the SPD concerning BTA benefits to the facts underlying this claim. Because LINA has not made a determination regarding the applicability of the SPD to plaintiffs' claims, this court cannot review that determination for an abuse of discretion. Accordingly, the Plan Administrator should resubmit plaintiffs' claims to LINA to consider the SPD. RECOMMENDATIONS For the reasons discussed above, plaintiffs' Motion for Summary Judgment (docket # 69) and defendants' Motion for Summary Judgment (docket # 73) should be GRANTED in part and DENIED in part and this matter should be remanded for the Plan Administrator to resubmit the claim to LINA for reconsideration. *997 SCHEDULING ORDER The Findings and Recommendations will be referred to a district judge. Objections, if any, are due June 16, 2010. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. NOTES [1] Defendants offer evidence that despite the language in the Plan, LINA did not prepare the SPD at issue, but it was instead prepared by a third-party firm employed by WWC. Skrzat Decl., ¶ 2. [2] The numbering differs among the Policies, but all three include the same language regarding aircraft exclusions. [3] Assuming that the record is devoid of evidence which might materially affect the abuse of discretion standard of review, the court dispenses with the usual tests of summary judgment: "Where the decision to grant or deny benefits is reviewed for abuse of discretion, a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply." Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 (9th Cir.1999), overruled on other grounds by Abatie, 458 F.3d at 965. [4] Defendants estimate that plaintiffs would be entitled to benefits totalling $2,588,000. That amount includes $588,000 for basic AD & D benefits, $1,000,000 for basic BTA benefits, and $1,000,000 for voluntary AD & D benefits. Franecke Decl., Ex. F, p. 4. [5] This provision in the Policies serves as an additional exclusion, expressly providing that losses resulting from travel in an aircraft, even if owned, leased, or controlled by the company, are not covered. The SPD provides the exact opposite, and as discussed above, the more favorable provision controls. Nevertheless, the definition provides helpful guidance.

?0?-f5 MO. RIGINAL IN THE CORT OF CRIMINAL APPEALS AUSTIN, TEXAS FREDDIE J. FOREMAN REC'D IN COURT OF APPEALS RECEIVED IN DEFENDANT - APPELLANT 2th Court of Appeals District COURT OF CRIMINAL APPEALS VS. 12. JUL 2 2 2015 SVIEW THE STATE OF TEXAS "IVLER TEXAS Abel Acosta, Cleit PLAINTIFF - APPELLEE CATHY S. LUSK, CLERK REVIEW SOUGHT FROM THE 12TH. COURT OF APPEALS NO. 12-14-00232-CR FILED IN APPEALLED FROM THE COURT OF CRIMINAL APPEALS 349th. JUDICIAL DISTRICT COURT JUL 22 2C.5 HOUSTON COUNTY, TEXAS CAUSE NO. 13CR-184 Abel Acosta, Cierk THE HONORABLE MARK A. CALHOON PRESIDING JUDGE APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FREDDIE JAMES FOREMAN #925367 ELLIS UNIT 1697 FM 980 HUNTSVILLE, TEXAS 77343 PRO SE  TffiBLE OF CONTENTS INDEX OF AUTHORITIES 1 STATEMENT OF JURISDICTION 2 STATEMENT OF THE CASE 2 PROCEDURAL HISTORY 2 APPELLANT'S GROUND FOR REVIEW. 3 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ALLOWING APPELLANT'S REQUESTED JURY INSTRUCTION UNDER TEXAS CODE OF CRINI- NAL PROCEDURE ARTICLE 38.23: EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OR THOSE OF TEXAS MAY NOT BE ADMITTED IN A CRIMINAL CASE. SEE TEX. CODE CRIM. PROC. ART. 38.23 INSTRUCTION. ARGUMENT 3 PRAYER FOR RELIEF 10 CERTIFICATE OF SERVICE 10  INDEX OF AUTHORITIES STATE CASES ATKINSON V- STATE, 923 S.W.2d 21 (TX.CR.APP. 1996) 3 MADDEN V. STATE, 242 S.W 3d 504 (TEX .CR. APP. 2007 ) 5 STATE STATUTES TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 (A) 5 TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 3,5,8 TEXAS CODE CRIMINAL PROCEDURE ART. 18.01 (B) 6,7,8,9 TEXAS CODE CRIMINAL PROCEDURE ART. 18.06 (B) 6 TEXAS RULE APP. PROC. ANN. 68.2 (VERN.2003) 2 TEXAS RULE APP. PROC. ANN. 68.4 (VERN.2003) 2 TEXAS RULE APP. PROC. ANN. 69.1 (VERN. 2003) 9 (PAGE ONE)  STATEMENT OF JURISDICTION APPELLANT WAS CHARGED WITH THE OFFENSE OF POSSESSION OF A CONTROLLED SUBSTANCE ON SEPTEMBER 26,2013. APPELLANT WAS CONVICTED OF POSSESSION OF A CONTRILLED SUBSTANCE ON AUGUST 06.2014, AND WAS SENTENCED TO TWENTY (20) YEARS CONFINEMENT IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION, AND A TEN-THOUSAND DOLLAR FINE. NO MOTION FOR NEW TRIAL WAS FILED. NOTICE OF APPEAL WAS FILED AUGUST 06,2014. THE COURT OF APPEALS AFFIRMED APPELLANT'S CONVICTION ON JUNE 17.2015. NO MOTION FOR REHEARING WAS FILED. THIS COURT HAS JURISDICTION PURSUANT TO TEX. R. APP. P. ANN. 68.2(VERN. 2003). STATEMENT OF THE CASE THIS APPEAL LIES FROM APPELLANT'S FELONY JURY TRIAL AND CONVICTION. THIS ISSUE BROUGHT FORWARD WAS DEVELOPED IN THE TRIAL COURT OR OTHERWISE APPEAR IN THE RECORD. PROCEDDRAL HISTORY APPELLANT RAISED ONE GROUND OF ERROR FOR REVIEW IN THE COURT OF APPEALS. THE COURT CONSIDERED THIS GROUND ON THE MERIT, AND DECIDED THE SAME ADVERSELY TO APPELLANT. THE COURT OF APPEALS RENDERED IT'S JUDGMENT ON JUNE 17,2015. NO MOTION FOR REHEARING WAS FILED. TEX. R. APP. P. ANN. 68.4(e) (VERN. 2003). (PAGE TWO)  APPELLANT'S GROUND FOR REVIEW THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ALLOW ING APPELLANT'S REQUESTED JURY INSTRUCTION UNDER TEX. CODE OF CRIMINAL PROCEDURE ARTICLE 38.23; EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES, OR THOSE OF TEXAS MAY NOT BE ADMITTED IN A CRIMINAL CASE. SEE TEX. CODE CRIM. PROC. ANN. ART. 38.23 (A) (WEST 2005) . APPELLANT DISAGREES WITH THE 12TH. COURT OF APPEALS ARGUE- MENT THAT APPELLANT WAS NOT ENTITLED TO AN ARTICLE 38.23 INSTRUCTION, AND AFFIRMED THE JUDGMENT OF THE TRIAL COURT. ARGUMENT THIS COURT SHOULD GRANT THIS PETITION ON THE GROUND THAT THE TRIAL COURT ERRED BECAUSE THE EVIDENCE OBTAINED IN THIS CASE WAS ILLEGALLY SEIZED EVIDENCE, ARTICLE 38.23 (TEXAS EXCLUSIONARY RULE)); PERMITS THE JURY TO DISREGARD ILLEGALLY SEIZED EVIDENCE. THE COURT IS REQUIRED TO INSTRUCT THE JURY TO DISREGARD INCRIMINATING EVIDENCE USED AGAINST THE DEFENDANT IF THE JURY BELIEVES OR HAS A REASONABLE DOUBT THAT THE EVIDENCE WAS OBTAINED IN VIOLATION OF THE LAW, ARTICLE 38.23. SEE ATKINSON V. STATE,923 S.W.2d 21 (TX.CR.APP.1996): WHEN A FACTUAL ISSUE IS RAISED, THE DEFENDANT HAS AN ABSOLUTE RIGHT TO AN INSTRUCTION. IN THIS CASE, A FACTUAL ISSUE WAS RAISED IN THE ILLEGALITY OF THE SEIZED EVIDENCE. CROCKETT POLICE OFFICER, CLAYTON SMITH, FAILED TO PROVIDE THE APPELLANT WITH A COPY OF THE SEARCH WARRANT. ON SEPTEMBER 26,2013, THURSDAY MORNING AT 7:20am., OFFICER C. SMITH AND FIVE OTHER OFFICERS CAME TO APPELLANT'S HOME AT 218 WOOD STREET, OFFICER C. SMITH STATED , MR. FOREMAN (PAGE THREE) WE HAVE A SEARCH WARRANT TO SEARCH YOUR HOUSE.. APPELLANT ASKED OFFICER C. SMITH FOR A COPY OF THE SEARCH WARRANT, OFFICER C. SMITH STATED, WE GOT IT. THE APPELLANT ASKED AGAIN IN HIS BEDROOM, OFFICER C. SMITH REPLIED, WE GOT IT. THIS WAS BEFORE BEFORE THE SEARCH BEGAN, AN HOUR LATER THE APPELLANT WAS ARRESTED AND CHARGED WITH POSSESSION OF A CONTROLLED SUBSTANCE WITHOUT A SEARCH WARRANT. A WEEK AFTER APPELLANT WAS ARRESTED, THE APPELLANT SAW OFFICER C. SMITH AND GOT A COPY OF THE SEARCH WARRANT. THE APPELLANT REVIEWED THE SEARCH WARRANT AND NOTICED THE WORD COPY AT THE TOP OF THE SEARCH WARRANT, IN BIG RED LETTERS HE ALSO NOTICED THE DISTRICT CLERK OF HOUSTON COUNTY STAMP MARK AT THE TOP RIGHT HAND CORNER OF THE SEARCH WARRANT, IT STATES SEPTEMBER 27,2013 AT 9:43. APPELLANT ARGUES THAT OFFICER C. SMITH CAME TO APPELLANT'S HOME ON SEPTEMBER 26,2013 AT 7:20am.; STATING HE HAD A SEARCH WARRANT. OFFICER C. SMITH DID NOT HAVE A SEARCH WARRANT UNTIL THE MORNING OF SEPTEMBER 27,2013 AT 9:43. THIS PROVES EVIDENCE WAS OBTAINED IN VIOLATION OF THE LAW. THE SEARCH WARRANT PROVES THAT OFFICER C. SMITH DID NOT PROVIDE THE APPELLANT WITH A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013, WHICH IS A THURSDAY. THE APPELLANT CONTENDS, THE COPY OF THE SEARCH WARRANT THAT HE RECEIVED FROM OFFICER C. SMITH, A WEEK AFTER APPEL LANT'S ARREST, HAS THE CLERK STAMP-MARK DATED SEPTEMBER 27,2013, WHICH IS A FRIDAY. IT IS IMPOSSIBLE FOR THE OFFICER TO GIVE THE APPELLANT A COPY OF THE SEARCH WARRANT ON THURSDAY, SEPTE)- (PAGE FOUR) MBER 26,2013. APPELLANT ARGUED AT HIS TRIAL, THAT HE DID NOT RCEIVE A COPY OF THE SEARCH WARRANT ON HIS AMENDED MOTION TO SUP PRESS. THIS WAS FILED WITH THE COURT ON JULY 07,2,014. THE MOTION WAS HEARD ON AUGUST 04,2014. THE JUDGE DENIED THE MOTION A DAY BEFORE TRIAL. AT TRIAL, ON AUGUST 05,2014, DEFENSE COUNSEL ASKED THE JUDGE FOR A JURY INSTRUCTION; CODE OF CRIM. PROC. ART. 38.23: THE EVIDENCE IN THIS CASE WAS OBTAINED ILLEGALLY.. WHEN EVIDENCE PRESENTED BEFORE THE JURY RAISES A QUESTION OF WHETHER THE FRUITS OF A POLICE-INITIATED SEARCH OR ARREST, WERE ILLEGALLY OBTAINED; "THE JURY SHALL BE IN STRUCTED THAT IF IT BELIEVES, OR HAS A REASONABLE DOUBT, THAT THE EVIDENCE WAS OBTAINED IN VIOLATION OF THE PROVISION OF THIS ARTICLE, THEN AND IN SUCH EVENT, THE JURY SHALL DISREGARD ANY SUCH EVIDENCE SO OBTAINED". THE COURT OF CRIMINAL APPEALS HELD IN,MADDEN V. STATE, 242 S.W.3d 504 (TX.CR.APP.2007) WHEN A DISPUTED, MATERIAL ISSUE OF FACT IS SUCCESSFULLY RAISED, THE TERMS OF THE STATUTE ARE MANDATORY AND THE JURY MUST BE INSTRUCTED ACCORDINGLY. EVIDENCE TO JUSTIFY AN ARTICLE 38.23(A) INSTRUCTION CAN DERIVE "FROM ANY SOURCE" NO MATTER WHETHER "STRONG, WEAK, CONTRA DICTORY, UNIMPEACHED OR UNBELIEVEABLE." BUT IT MUST, IN ANY EVENT, RAISE A FACTUAL DISPUTE ABOUT HOW THE EVIDENCE WAS OBTAINED" APPELLANT ARGUES HE RAISED A FACTUAL DISPUTE ABOUT HOW THE EVIDENCE WAS OBTAINED WITHOUT A SEARCH WARRANT UNDER CHAPTER 18.(R.R., VOL.1, p. 185). (PAGE FIVE)  AT TRIAL, OFFICER C. SMITH TESTIFIED THAT, HE GAVE THE APPELLANT A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013, AT APPELLANT'S HOME, AND AT'THE JAIL.(R.R. VOL. 1 p. 122). THE SEARCH WARRANT, ITSELF, SHOWS THAT OFFICER C. SMITH IS NOT TELLING THE TRUTH. THE DISTRICT CLERK'S STAMP-MARK STATES SEPTEMBER 27,2013 AT 9:43 ON A FRIDAY MORNING. APPELLANT ARGUES THAT OFFICER C. SMITH AND FIVE OTHER OFFICERS CAME TO HIS RESIDENCE ON SEPTEMBER 26,2013 AT 7:20am. WHICH IS A THURSDAY. THE COPY OF THE SEARCH WARRANT IS TWENTY-SIX (26) HOURS LATE. THIS PROVES THAT APPELLANT WAS NOT SERVED A COPY OF THE SEARCH WARRANT BY OFFICER C. SMITH ON THURSDAY MORNING SEPTEMBER 26,2013 AT 7:20am. IT IS ILLEGAL FOR A POLICE OFFICER, OR OFFICERS, TO COME TO A PERSON'S HOME AND STATE, I HAVE A SEARCH WARRANT TO SEARCH YOUR HOME AND NEVER PRODUCE THE SEARCH WARRANT UNTIL DAYS LATER. APPELLANT ARGUES THE TEX. CODE OF CRIM. PROC. CHAPTER 18, ARTICLE 18.06, WAS VIOLATED IN THIS CASE, SEE SECTION (B) OF THIS ARTICLE WHICH STATES, ON SEARCHING THE PLACE ORDERED TO BE SEARCHED, THE OFFICER EXECUTING THE WARRANT SHALL PRESENT A COPY OF THE WARRANT TO THE OWNER OF THE PLACE, IF HE IS PRESENT. THE APPELLANT WAS AT HOME, BUT, DID NOT RECEIVE A COPY SEARCH WARRANT. MOREOVER, OFFICER C. SMITH DOES NOT MEET THE REQUIREMENTS TO OBTAIN A SEARCH WARRANT IN THIS CASE. OFFICER C. SMITH VIOLATED TEX. CODE OF CRIM. PROC. CH. 18, ART. 18.01, SEC TION (B), WHICH STATES: (PAGE SIX)  "NO SEARCH WARRANT MAY NOT ISSUE FOR ANY PURPOSE IN THIS STATE UNLESS SUFFICIENT FACTS ARE FIRST PRESENTED TO SATISFY THE ISSUING MAGISTRATE THAT PROBABLE CAUSE DOES IN FACT EXISTS FOT ITS ISSUING. A SWORN AFFIDAVIT SETTING FORTH SUBSTANT IAL FACTS ESTABLISHING PROBABLE CAUSE SHALL BE FILED IN EVERY INSTANCE IN WHICH A SEARCH WARRANT IS REQUESTED. EXCEPT AS PROVIDED BY ARTICLE 18.011, THE AFFIDAVIT IS PUBLIC IN FORMATION IF EXECUTED, AND THE MAGISTRATE'S CLERK SHALL MAKE A COPY OF THE AFFIDAVIT AVAILABLE FOR PUBLIC INSPECT ION IN THE CLERK'S OFFICE DURING NORMAL BUSINESS HOURS. IN THE PRESENT CASE, OFFICER C. SMITH'S SWORN AFFIDAVIT IS NOT IN PLACE: HIS SWORN AFFIDAVIT IS NOT FILED UNTILTWO- DAYS (2) AFTER THE SEARCH WARRANT WAS ISSUED. THE SEARCH WARRANT WAS ALLEGEDLY ISSUED TO OFFICER C. SMITH ON SEPT EMBER 25,2013 AT 4;25pm. HIS SWORN AFFIDAVIT IS NOT FILED UNTIL SEPTEMBER 27,2013 AT 9:43; HIS SWORN AFFIDAVIT IS FILED TWO-DAYS (2) LATER. OFFICER CLAYTON SMITH, AND FIVE OTHER OFFICERS, CAME TO APPELLANT'S HOUSE ON SEPTEMBER 26,2013 AT 7:20am, ALLEGING THEY HAD A SEARCH WARRANT. OFFICER C. SMITH DOES NOT HAVE A FILED SWORN AFFIDAVIT IN PLACE, WHICH IS USED TO OBTAIN A SEARCH WARRANT. APPELLANT WAS ARRESTED ON SEPTEMBER 26,2013. OFFICER C. SMITH'S SWORN AFFIDAVIT TO OBTAIN A SEARCH WARRANT IS NOT FILED UNTIL SEPTEMBER 27,2013 AT 9:43.. ACCORDING TO ARTICLE 18.01, SECTION (B), OFFICER C. SMITH'S SWORN AF FIDAVIT SHOULD HAVE BEEN FILED BEFORE THE SEARCH WARRANT WAS ISSUED, IT IS NOT, IT IS FILED TWO-DAYS AFTER THE SEARCH (PAGE SEVEN) WARRANT WAS ISSUED. THIS VIOLATED ARTICLE 18.01 OF CHAPTER 18, CODE OF CRIM. PROC, BECAUSE OFFICER C. SMITH'S SWORN AFFIDAVIT WAS NOT FILED WITH THE DISTRICT CLERK'S OFFICE BEFORE THE SEARCH WARRANT WAS ISSUED IN THIS CASE. THE PROCEDURE OUTLINED IN ARTICLE 18.01, SECTION (B), HAPPENS FIST BEFORE A SEARCH WARRANT IS ISSUED. THE 12TH. COURT OF APPEALS STATED IN IT'S OPINION AT PAGE THREE: WE NOTE THAT THE SEARCH WARRANT IS NOT IN THE APPELLATE RECORD. THEREFORE, THE COURT OF APPEALS DID NOT REVIEW THE APPELLANT'S SEARCH WARRANT WHICH WOULD HAVE SHOWN THAT APPELLANT DID NOT GET A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013. THE APPEALS COURT ALSO NOTED , AT PAGE THREE,OF IT'S OPINION THAT APPELLANT'S MOTION TO SUPPRESS WAS NEVER RULED UPON. HOWEVER, THIS IS NOT TRUE. APPELLANT FILED TWO-MOTIONS TO SUPPRESS THE. THE FIRST MOTION WAS INCORRECT. THE SECOND MOTION WAS HEARD ON AUGUST 04,2014; AMENDED MOTION TO SUP PRESS. IT WAS FILED JULY 07,2014, WITH THE COURT NOT THE CLERK. IT WAS DENIED BY THE HONORABLE JUDGE MARK A. CALHOON AUGUST 04,2014. IMPORTANT DOCUMENTS AND TRIAL RECORDS WERE LEFT OUT OF THIS APPEAL FOR SOME REASON. THE AMENDED MOTION TO SUPPRESS ARGUED THAT APPELLANT WAS DENIED A COPY OF THE SEARCH WARRANT AND THE POLICE OFFICERS VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS, ARTICLE ONE, SECTION NINE OF THE TEXAS CONSTITUTION AND UNDER ARTICLE li.23 CODE OF CRIM. PROC. DEFENSE ALSO ARGUED AT TRIAL THAT APPELLANT WAS DENIED A COPY OF THE SEARCH WARRANT AND A JURY INSTRUCTION 3§.23 IS REQUIRED (R.R. VOL. 1, p. 185).  THE APPEALS COURT DID NOT HAVE THE SEARCH WARRANT, OFFI CER C, SMITH'S SWORN AFFIDAVIT, AMENDED MOTION TO SUPPRESS, THE REPORTER RECORDS WAS NOT EVER MADE TO THE AMENDED MOTION TO SUPPRESS HEARING; THAT WAS HELD ON AUGUST 04,2014. THERE IS TO MANY COURT RECORDS AND DOCUMENTS MISSING IN THIS APPEAL FOR THE APPEALS COURT TO MAKE A DECISION THAT APPELLANT WAS NOT ENTITLED TO TO AN ARTICLE 38.23 IN STRUCTION. DEFENSE COUNSEL RAISED A FACTUAL DISPUTE IN THIS AMENDED MOTION TO SUPPRESS AND DURING TRIAL;"MY CLIENT WAS NOT SERVED A SEARCH WARRANT UNDER CHAPTER 18 (R.R., VOL. 1, p. 185). THIS COURT SHOULD GRANT APPELLANT'S PETITION FOR DISCRE TIONARY REVIEW ON THIS GROUND, AND ORDER A FULL BRIEF ON THE MERIT. TEX. RULE APP. P. ANN. 69.1 (VERN. 2003). (PAGE NINE)  PRAYER FOR RELIEF WHEREFORE PREMISES CONSIDERED, APPELLANT PRAYS THIS HONOR ABLE COURT TO CONSIDER THIS GROUND FOR REVIEW RAISED HEREIN, TO GRANT THIS PETITION FOR DISCRETIONARY REVIEW, AND TO ORDER A FULL AND COMPLETE HEARING ON THE MERIT, AND WITH BRIEF. RESPECTFULLY SUBMITTED, -fAJ^Mjf^ <Jcu*uuz -fmemis^^ FREDDIE JAMES FOREMAN #925367 ELLIS UNIT 1697 FM 980 HUNTSVILLE, TEXAS 77343 PRO SE CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT ON THIS jj^DAY OF JULY 2015, A TRUE AND CORRECT COPY OF THE FOREGOING PETITION WAS MAILED TO THE 12th. COURT OF APPEALS, CLERK CATHY S. LUSK AND ANOTHER MAILED TO THE HOUSTON COUNTY DISTRICT ATTORNEY'S OFFICE, ANOTHER MAILED TO THE STATE PROSECUTING ATTORNEY, AT P.O. BOX 12405, CAPITOL STATION, AUSTIN, TEXAS 78711. y^jZ^t&U^-UM^Z^^ — FREDDIE JAMES FOREMAN (PAGE TEN)  NO. 12-14-00232-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS FREDDIE JAMES FOREMAN, § APPEAL FROM THE 349TH APPELLANT V. § JUDICIAL DISTRICT COURT THE STA TE OF TEXAS, APPELLEE § HOUSTON COUNTY, TEXAS MEMORANDUM OPINION . Freddie James Foreman appeals his conviction for possession of a controlled substance. In his sole issue on appeal, Appellant contends that the trial court erred in denying his requested jury instruction under Texas Code of Criminal Procedure Article 38.23. We affirm. Background In 2013, Appellant and his nephew lived in a mobile home in Crockett, Texas. Crockett Police Department officers believed that Appellant's nephew committed several burglaries and thefts. They obtained a search warrant and executed it at the mobile home while Appellant and his nephew were present. When the officers initially entered the residence, they did not believe that Appellant was a suspect. However, while talking with Appellant in his bedroom prior to searching the home, the officers noticed several small baggies in plain view on the bedroom floor. These baggies were the type commonly used for packaging small quantities of narcotics for sale. The officers also noticed a hasp on Appellant's bedroom door, which they believed to be unusual inside a residence. Appellant told officers that his nephew was not allowed in his room, and that there was no need to search it. The officers searched Appellant's bedroom and quickly discovered cocaine located in a sock. The officers told Appellant they discovered cocaine in his bedroom, and Appellant's immediate reply was to ask how much cocaine they found. One of the officers then asked Appellant about the baggies they discovered, and Appellant replied that the baggies held cookies he consumed. Appellant then stated that his nephew could have gone in his room without his permission, implying that the cocaine belonged to his nephew. Appellant was arrested and indicted for possession of a controlled substance, namely cocaine, in an amount of one gram or more, but less than four grams. The punishment level was raised to that of a second degree felony because of a prior felony conviction. Appellant pleaded "not guilty" to the charged offense and "true" to the enhancement paragraph. The jury sentenced Appellant to twenty years of imprisonment and assessed a $10,000.00 fine. This appeal followed. Jury Instruction In his sole issue on appeal, Appellant contends that the trial court erred in denying his requested jury instruction under Texas Code of Criminal Procedure Article 38.23. Standard of Review and Applicable Law Under Article 38.23, evidence obtained in violation of the Constitution or laws of the United States or those of Texas may not be admitted in a criminal case. See Tex. Code Crim. PROC. Ann. art. 38.23(a) (West 2005). If a fact issue is raised about whether evidence was improperly obtained in this manner, the jury shall be instructed to disregard evidence that it finds was obtained in violation of the United States or Texas Constitution or laws. See id. A defendant's right to the submission of an Article 38.23 jury instruction is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)). To be entitled to an Article 38.23 jury instruction, the defendant must establish that (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the challenged conduct. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone as a question of law. Madden, 242 S.W.3d at 510. "The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct." Id. at 511. Discussion Appellant contends in his brief that the officers had no probable cause to search his bedroom, and that the officers exceeded the scope of the search warrant. Appellant did not provide any analysis in his brief showing that the evidence raised an issue of material fact on these issues. However, he cited various pages of the record he believed supports his argument. At trial, he asked for an Article 38.23 instruction based on "the pictures being changed, the material being placed. That the scope was exceeded and the fact [that Appellant was not] served a search warrant under Rule 18." The issue of whether the officers had probable cause to search his room was not a contested issue of material fact at trial. Appellant filed a pretrial motion to suppress evidence stating generally that the officers violated his state and federal constitutional rights pertaining to search and seizure, along with his rights under Texas Code of Criminal Procedure Article 38.23. However, he never obtained a ruling on the motion, and the issue was not litigated at a pretrial hearing or at the trial itself. Consequently, the issue of probable cause was not affirmatively contested, and Appellant was not entitled to an Article 38.23 instruction on that basis. See Madden, 242 S.W.3d at 510. Moreover, since the facts do not raise the issue of probable cause to search his room, the issue was to be decided by the trial court as a question of law. See id. With regard to Appellant's remaining argument concerning the scope of the search warrant, we note that the search warrant is not in the appellate record, nor was it admitted into evidence at trial. The detective who obtained the warrant testified that the warrant directed him to search the residence at the specified address. He was not asked whether it covered the entire residence or only a portion of it. None of the testimony or other evidence raised the issue concerning the search warrant's scope. Therefore, an Article 38.23 instruction was not required on this ground. See id. Appellant's sole issue is overruled. Disposition Having overruled Appellant's sole issue, we affirm the judgment of the trial court. James T. Wqrthen Chief Justice Opinion delivered June 17, 2015. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH)  COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JUNE 17, 2015 NO. 12-14-00232-CR FREDDIE JAMES FOREMAN, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 13CR-184) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, for which execution may issue, and that this decision be certified to the court below for observance. James T. Worthen, Chief Justice. Panel consisted ofWorthen, C.J., Hoyle, J., and Nee ley, J.  ft •OV ^ 3o 1 > So' M . in- —•.I it) •*. * -^ 5 Si ? \ U) X "•t- -tv 11 \ f»j ± ^ ^ 

99 Wn.2d 577 (1983) 663 P.2d 487 BUCHSIEB/DANARD, INC., ET AL, Petitioners, v. SKAGIT COUNTY, Respondent. No. 48742-1. The Supreme Court of Washington, En Banc. May 19, 1983. Philip L. Carter (of Livengood, Silvernale, Carter & Tjossem), for petitioners. C. Thomas Moser, Prosecuting Attorney, and John R. *578 Moffat, Deputy, for respondent. DOLLIVER, J. In 1978 plaintiffs Buchsieb/Danard, Inc., and Cana Development Company (Buchsieb/Danard) purchased approximately 188 acres of undeveloped land located just east of the Skagit Regional (Bayview) Airport on Bayview Ridge in Skagit County. The land was zoned residential and had been designated residential in the Northwest District Comprehensive Plan, adopted by the Skagit County Board of Commissioners (Board). On May 21, 1979, plaintiffs submitted a long plat subdivision application requesting approval of the preliminary plat for subdivision of approximately 98 acres of the Bayview Ridge property. The subdivision, called Bayview Estates, would consist of 326 single family and duplex residential lots. The subdivision would be developed over a 10-year period. On June 18, 1979 and July 2, 1979, the Skagit County Planning Commission held public hearings on the Buchsieb/Danard proposal. At the public hearings, the Skagit County Planning Department staff recommended, with certain modifications, approval of phase 1 of Bayview Estates, consisting of 118 lots on 37 acres. The planning department staff recommendation was subject to numerous conditions relating to road construction, sewer service commitments, water supply, and drainage. On July 16, 1979, the planning commission voted to recommend approval of phase 1 of the preliminary plat subject to the conditions recommended by the planning department staff. The Board considered plaintiffs' preliminary plat proposal at a public hearing on August 21, 1979. At the public hearing, opponents of the Bayview development presented a document entitled "Preliminary Draft [of] Skagit Conservation District Long Range Plan". The draft amendment to the comprehensive plan emphasized the need to protect agricultural land from development. On August 28, 1979, the Board unanimously denied the preliminary plat proposal. In resolutions 8140 and 8141, as adopted on September 25, 1979, the Board gave reasons for its denial of *579 Buchsieb/Danard's preliminary plat application. The Court of Appeals summarized those reasons as follows: 1. Adverse impact on local traffic patterns; 2. Incompatibility with current land use in nearby areas; 3. No specific commitment for handling drainage; 4. Proximity to Bayview Airport, creating potential environmental problems; 5. Removal of secondary agricultural land; 6. Failure to establish need for additional new housing on the scale proposed; 7. No specific certain commitment for sewer lines beyond a 2-year period; 8. Incompatibility with planned growth management in an agricultural area; 9. Inadequacy of county revenues to provide urban services for a community of the proposed size. Buchsieb/Danard, Inc. v. Skagit Cy., 31 Wn. App. 489, 494, 643 P.2d 460 (1982). On September 7, 1979, plaintiffs petitioned for a writ of review, or in the alternative, for a writ of mandamus. Buchsieb/Danard claimed the reasons set forth by the Board involved considerations outside the scope of the local subdivision ordinance. Furthermore, plaintiffs asserted the Board improperly considered proposed changes in Skagit County's comprehensive plan when the Board rejected plaintiffs' preliminary plat application. In a memorandum opinion dated April 2, 1980, the Skagit County Superior Court dismissed Buchsieb/Danard's petition. The Court of Appeals affirmed the decision of the Superior Court. Buchsieb/Danard, Inc. v. Skagit Cy., supra. The Court of Appeals ruled that a board of commissioners is empowered by the State Environmental Policy Act of 1971, RCW 43.21C, to inquire into and disapprove preliminary plats on the basis of environmental impact. Buchsieb/Danard, 31 Wn. App. at 495. Specifically, the Court of Appeals held that concern over noise and traffic, police and fire protection, schools, and other problems of planned growth management are properly considered by a board confronted with *580 plans for a development which, in the words of an opponent at the hearing, would turn a previously unused area into the fourth largest town in Skagit County. Subsequent to the Court of Appeals decision in Buchsieb/Danard, Inc. v. Skagit Cy., supra, we decided Norco Constr., Inc. v. King Cy., 97 Wn.2d 680, 649 P.2d 103 (1982). In Norco a developer sought to compel the King County Council to act on its preliminary plat application. The council had postponed action indefinitely pending adoption of a revised comprehensive plan for the area. We held that a county's discretion in ruling on a preliminary plat proposal is limited to consideration of land use restrictions that existed during the statutory time period for the county to approve or disapprove the plat application. Norco, 97 Wn.2d at 688. See RCW 58.17.140. Accordingly, we affirmed a superior court decision granting the writ of mandamus requested by Norco Construction. In the present case we granted discretionary review for consideration of the Court of Appeals decision in light of Norco Constr., Inc. v. King Cy., supra. RAP 13.4(b)(1). We have examined plaintiffs' claim the Court of Appeals decision in Buchsieb/Danard is in conflict with our decision in Norco and we find the claim to be without merit. Therefore, we affirm the Court of Appeals decision. [1] In Norco we held the King County Council could not "defer beyond the statutory time period approval or disapproval of a preliminary plat because it is not in conformity with proposed changes to the County's comprehensive plan and zoning ordinances." Norco, 97 Wn.2d at 682. We ruled that "such proposed changes are not a valid basis for disapproval of a plat application within the time period required by statute." 97 Wn.2d at 682. While we held a developer did "have a right to have a decision on its preliminary plat application made within 90 days after filing its application" (97 Wn.2d at 684), we did not deny local governments the ability to consider the future environmental impact of growth. As noted by the Court of Appeals, both Skagit County Code 14.16.010 and the State Environmental *581 Policy Act of 1971, RCW 43.21C, empowered the Board to consider environmental impacts. Buchsieb/Danard, Inc. v. Skagit Cy., 31 Wn. App. 489, 494-95, 643 P.2d 460 (1982). The denial by the Board of the preliminary plat, based on future environmental impacts, was within its authority and nothing in Norco Constr., Inc. v. King Cy., supra, prevents the exercise of this authority. We also reject plaintiffs' contention the Board improperly considered the proposed amendment to the County's comprehensive plan during public hearings on Buchsieb/Danard's preliminary plat proposal. The record before us is devoid of any impropriety; rather it demonstrates the Board had valid and sufficient reasons for its decision. See State ex rel. Randall v. Snohomish Cy., 79 Wn.2d 619, 624, 488 P.2d 511 (1971). Plaintiffs raise two additional issues in their petition for review. Plaintiffs assert the Board failed to support its denial of Buchsieb/Danard's preliminary plat application with findings of fact and conclusions of law as required by RCW 58.17.100. Plaintiffs also claim the Board failed to act on the preliminary plat application within 90 days of filing of the applicant's final environmental impact statement, as required by RCW 58.17.140. [2] Plaintiffs failed, however, to raise noncompliance with RCW 58.17.100 and RCW 58.17.140 before the trial court or the Court of Appeals. We continue to adhere to our rule that, except as to issues of manifest error affecting a constitutional right, issues not raised at the trial court or the Court of Appeals cannot be raised for the first time before the Supreme Court. See, e.g., Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982); Pappas v. Hershberger, 85 Wn.2d 152, 153-54, 530 P.2d 642 (1975); Peoples Nat'l Bank v. Peterson, 82 Wn.2d 822, 829-30, 514 P.2d 159 (1973). Therefore, we will not consider these issues since they are not properly before us. RAP 2.5(a). Affirmed. *582 WILLIAMS, C.J., and ROSELLINI, STAFFORD, UTTER, BRACHTENBACH, DORE, DIMMICK, and PEARSON, JJ., concur.

26 Ariz. App. 172 (1976) 547 P.2d 24 Merlin M. OLSEN and Grace M. Olsen, husband and wife, John Doe 1 to 3 and Jane Doe 1 to 3 and Black Corporation 1 to 3, Appellants, v. Harry T. GOSS, Executor of the Estate of Mary Emma Stitt, Deceased, Appellee. No. 1 CA-CIV 2762. Court of Appeals of Arizona, Division 1, Department C. March 25, 1976. *173 Richard J. Rubin, Phoenix, for appellants. Mariscal, Weeks, Lehman & McIntyre, P.A. by Richard A. Friedlander, Phoenix, for appellee. OPINION NELSON, Presiding Judge. This action arose out of a quiet title suit brought by Harry T. Goss (Goss) in his capacity as executor of the Estate of Mary Emma Stitt, deceased, the appellee here, seeking to quiet title in certain real estate located in Maricopa County owned by Mary Emma Stitt at her death, and seeking to invalidate Treasurer's Deeds issued the Olsens, the appellants here, as a result of their purchasing the property at a delinquent tax sale. The trial court granted summary judgment to Goss, quieting title to the property in question to the estate and invalidating the Treasurer's Deeds. We agree and affirm the judgment of the trial court. While both the appellants and appellees pose a variety of questions they feel are presented here for review in this case, we deem there to be only one basic question. Did the actual owner of this property receive the notice required by the statutes of this state, and the decisions of the appellate courts interpreting those statutes, that the property in question was about to be lost for non-payment of taxes? The trial court answered this question in the negative. The decisions of this Court, the Arizona Supreme Court, and the decisions of the Supreme Court of the United States cited therein, clearly indicate that the trial court's resolution was correct. The facts necessary for the disposition of this cause are not in dispute. On October 28, 1958, Mary Emma Stitt died testate, owning the property in question. In due course Goss was appointed executor of the Estate of Mary Emma Stitt and maintained that status at all times involved in this cause. In May of 1964, pursuant to A.R.S. § 42-423, Goss redeemed the property in question, which had been sold for delinquent taxes for the years 1959, 1960, 1961 and 1962. As required by A.R.S. § 42-423, Goss satisfied the County Treasurer as to his right to redeem the property as the executor of the Estate of Mary Emma Stitt, the record owner. This fact is reflected in the entry in the County Treasurer's Record of Tax Sales of the tax years 1959 through 1962. See: A.R.S. § 42-423A. On February 1, 1966, the Maricopa County Treasurer sold the property again for delinquent taxes, this time to the Olsens, pursuant to A.R.S. § 42-381 et seq. Olsens paid the taxes levied upon the property thereafter. After the expiration of five years, the Olsens, having elected not to bring an action to foreclose the rights of Goss to redeem the property as provided in A.R.S. § 42-451, applied for a Treasurer's Deed pursuant to A.R.S. § 42-455. The County Treasurer, pursuant to A.R.S. §§ 42-455, 456 and 457, sent a registered letter addressed to Mary Emma Stitt at her last known address, published a notice in the Arizona Weekly Gazette for four consecutive weeks that a Treasurer's Deed had been applied for as to the property in question, together with the other information required by the statute, and posted the requisite notice on the property itself. The letter was returned to the Treasurer's office. No actual notice was received by Goss until after the Treasurer's Deeds had *174 been issued and recorded. This action in the lower court was thereafter immediately filed. This matter is controlled by this Court's decision in Johnson v. Mock, 19 Ariz. App. 283, 506 P.2d 1068 (1973), as well as the Arizona Supreme Court's decision in Laz v. Southwestern Land Company, 97 Ariz. 69, 397 P.2d 52 (1964) and the decisions of the Supreme Court of the United States (Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) cited therein. The facts in Johnson are almost identical to those here. The property was sold for taxes and a treasurer's deed sought. The owners did not receive actual notice because a quit claim deed, duly recorded, was not picked up on the tax rolls. Notice was sent to the owners as shown on the tax rolls and was not returned to the Treasurer's office, but no notice was posted on the property. The Olsens have attempted to distinguish Johnson on the basis of this latter fact, the failure to post as required by A.R.S. § 42-457. A reading of the case does not permit this construction. The holding clearly goes to the duty to give actual notice by mail where the correct information was readily available, even though erroneously excluded from the tax rolls. The reference to the failure to post is at best an afterthought to show that because of the peculiar facts in that case, the presence of a tenant on the property, the posting would probably have resulted in actual notice also. While we reject the appellants' argument that the County Treasurer is held to know the contents of all public records regarding any particular piece of property, in light of the decisions in Johnson, Laz, Schroeder and Mullane, supra, we here hold that the County Treasurer, where he has knowledge that actual notice has not been received pursuant to the letter mailed in accordance with A.R.S. § 42-456 (the letter was returned undelivered in this case), he must, at a minimum, review his own records to ascertain if the name and address used to initially mail the notice required by A.R.S. § 42-456, was in fact correct. In this case, such a search would have quickly revealed both the death of the record owner and the name and address of the executor of the estate. While Olsens also take issue with the fact that they have not as yet received the moneys required to be paid upon redemption, as provided in A.R.S. § 42-421, the judgment entered below, in addition to quieting title in Goss, awarded to the Olsens all sums due pursuant to A.R.S. § 42-421. They will receive all moneys contemplated upon the redemption of the property and their interests are therefore fully protected and secure. The judgment is affirmed. HAIRE, C.J., and EUBANK, J., concur.

543 U.S. 950 DURAN-ROMEROv.UNITED STATES. No. 04-6344. Supreme Court of United States. October 18, 2004. 1 C. A. 9th Cir. Certiorari denied. Reported below: 101 Fed. Appx. 753.

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Tracy Kathleen Chambers, * From the County Court at Law of Taylor County, Trial Court No. 1-1169-17. Vs. No. 11-18-00227-CR * August 20, 2020 The State of Texas, * Memorandum Opinion by Wright, S.C.J. (Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J., sitting by assignment) (Willson, J., not participating) This court has inspected the record in this cause and concludes that there is no error in the judgment below. Therefore, in accordance with this court’s opinion, the judgment of the trial court is in all things affirmed. 

168 Ill. App.3d 1008 (1988) 523 N.E.2d 143 MCI TELECOMMUNICATIONS CORPORATION, Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees. No. 86-2006. Illinois Appellate Court — First District (4th Division). Opinion filed April 14, 1988. *1009 Anne E. Johnston and Ronald W. Gavillet, both of Chicago, for petitioner. Neil F. Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and Kathleen Nolan, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission. *1010 Thomas R. Phillips and Susan D. Proctor, both of Chicago, for respondent AT&T Communications of Illinois, Inc. Order affirmed. JUSTICE McMORROW delivered the opinion of the court: AT&T Communications of Illinois, Inc. (AT&T), applied to the Illinois Commerce Commission (the Commission) to reclassify AT&T's long distance telephone service as "competitive [throughout the State of Illinois] [because the] service, or its functional equivalent, or a substitute service, is reasonably available from more than one provider * * * [in the entire State]" in accordance with section 13-502(b) of the Universal Telephone Service Protection Law of 1985 (the Act) (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-502(b)). Following a hearing in which MCI Telecommunications Corp. (MCI) participated, the Commission entered an order allowing AT&T's application. MCI filed a petition for appellate review of the Commission's order. Upon review, MCI argues that the Commission's order should be reversed because (1) the Commission erroneously interpreted the Act to permit reclassification of a service as competitive where an equivalent or substitute to AT&T's long distance service is reasonably available from other carriers to a majority, rather than all, access line customers in the State; and (2) the substantial evidence of record does not support the Commission's determination that an equivalent or substitute to AT&T's long distance service is reasonably available from other carriers to a majority of access line customers throughout the State. We affirm. BACKGROUND On January 7, 1986, AT&T filed its application and supporting documents with the Commission for reclassification of its long distance service as competitive in the entire State of Illinois and approval of its proposed competitive tariff for that service. In support of its application, AT&T stated that long distance customers in Illinois had functionally equivalent or substitute service that is "reasonably available" from other carriers in accordance with section 13-502(b) of the Act (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-502(b)). AT&T proposed to continue to provide long distance service in accordance with its uniform, statewide pricing schedule so that long distance service customers would receive equal economic and technological benefits of competition. AT&T contended that its proposed tariff would reduce an average customer's current monthly bill by over 6% and requested that such reductions become effective on February 6, 1986. In response to AT&T's application, other long distance telecommunications *1011 carriers, including MCI, filed requests for a hearing and petitions to intervene. On February 5, 1986, the Commission entered an interim order in which it found AT&T's proposed service tariff to be competitive for purposes of that order and authorized AT&T to file its proposed tariff to be effective February 6, 1986, on an interim basis. Thereafter the Commission allowed the petitions to intervene, held a hearing on AT&T's application, and took the matter under advisement. The following summarizes the evidence produced at the hearing. Evidence presented by AT&T showed that as of December 1985, long distance service was available from more than one provider through local access to, at a minimum, approximately 70% of the 5.7 million access lines in Illinois; by June 1986, this percentage would increase to over 75% of the access lines in the State; and by December 1986, the percentage would be at least 86%. In addition, four long distance companies provided customers with access to their service on a statewide originating basis by means of 800 numbers, thus making service from more than one provider available throughout Illinois. Also, certain large local telecommunications companies had either undertaken or substantially completed the process of converting to equal access, so that competitors to AT&T would be able to provide long distance service of similar quality and ease to that of AT&T without the burdens associated with non-equal access. AT&T's evidence further showed that the long distance toll market was competitive throughout the State because choices in the market were potentially available due to easy market entry. In view of this ease in market entry, many consumers in Illinois currently had actual and potential substitutes available from other common carriers who provided long distance services, as well as wide-area telecommunications services and private lines. Evidence presented by the intervenors disputed that produced by AT&T. The intervenors' witnesses testified to the effect that the long distance service of AT&T was not competitive on a statewide basis, because there were several towns, villages, and nonurban areas where, because of nonequal access, competitors were hampered by technological burdens not encountered by AT&T (e.g., dialing of several extra digits in order to access the competitor's long distance service or a variability of transmission quality with inferior connections). Witnesses also testified to the effect that the long distance markets in these areas were not characterized by ease of entry, because capital was not readily available to AT&T's competitors. Staff witnesses of the Commission testified that the public would benefit from the allowance of AT&T's application, provided AT&T retains its statewide rate averaging for basic long distance service and *1012 maintains charges for other long-distance-related services at rates no greater than those applicable in the Federal jurisdiction. Staff observed that AT&T's competitors would continue to enjoy several competitive advantages over AT&T even if AT&T's application were granted, since these competitors were not forced to average their rates, had fewer regulatory restrictions than AT&T, had the ability to pursue competitive status for all services (not just long distance service), and were not rate-base regulated. The Commission determined that AT&T's application should be allowed, finding that "a majority of access line customers presently have the ability to obtain long distance service from more than one provider." The Commission also determined that AT&T's long distance service "should be provided under a statewide pricing schedule * * * [to] ensure that all of AT&T's Long Distance Service customers will receive equal economic and technological benefits of competition." The Commission further determined that the rates for optional long distance services provided by AT&T should not be "greater than the corresponding published rate in the federal jurisdiction." MCI thereafter petitioned for review of the Commission's order. OPINION We first turn our attention to the Commission's interpretation of the Act. MCI argues that the Commission's construction of section 13-502(b) of the Act is contrary to the plain meaning of the term "reasonably available" alternative services in that section. According to MCI, alternatives to AT&T's long distance service can be "reasonably available" only when those alternatives are actually available to all customers in the State. MCI asserts that alternatives cannot be "reasonably available" when they are actually available to only a majority of the access line customers of this State. We disagree. • 1, 2 When considering the interpretation to be given a statute, a court's primary objective is to ascertain and give effect to the intent of the legislature (Penkava v. Kasbohm (1987), 117 Ill.2d 149, 154) according to the plain and ordinary meaning of the statutory language (Donnelly v. Edgar (1987), 117 Ill.2d 59, 66). Terms must be considered in their overall context with a view to the reason and necessity for the statute and the purpose to be achieved thereby. (People v. Inghram (1987), 118 Ill.2d 140, 149.) The interpretation of a statute by an agency charged with its administration is accorded great deference, but is not binding on the court. Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n (1983), 95 Ill.2d 142, 152-53.) Section 13-502 of the Act, at issue here, is part of a comprehensive *1013 legislative enactment known as the Universal Telephone Service Protection Law of 1985 (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-101 et seq.). In adopting this legislation, the Illinois legislature specifically found, inter alia, that "universally available and widely affordable telecommunications services are essential to the health, welfare and prosperity of all Illinois citizens; [and that] the competitive offering of telecommunications services may create the potential for increased innovation and efficiency in the provision of telecommunications services and reduced prices for consumers." Ill. Rev. Stat. 1987, ch. 111 2/3, pars. 13-102(a), (c). In accordance with these findings, the legislature declared as State policy that "telecommunications services should be available to all Illinois citizens at just, reasonable and affordable rates and * * * such services should be provided as widely and economically as possible in sufficient variety, quality, quantity and reliability to satisfy the public interest." (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-103(a).) It also declared that "when consistent with the protection of consumers of telecommunications services and the furtherance of other public interest goals, competition should be permitted to function as a substitute for certain aspects of regulation in determining the variety, quality and price of telecommunications services and * * * the economic burdens of regulation should be reduced to the extent possible consistent with the protection of the public interest." (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-103(b).) Lastly, the legislature declared as a matter of State policy that "the consumers of [regulated] telecommunications services and facilities * * * should be required to pay only reasonable and non-discriminatory rates or charges and * * * in no case should rates or charges for non-competitive telecommunications services include any portion of the cost of providing competitive telecommunications services." Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-103(d). In order to put into effect these legislative findings and policy declarations, section 13-502(b) states in pertinent part, "A service shall be classified as competitive only if, and only to the extent that, for some identifiable class or group of customers in an exchange, group of exchanges, or some other clearly defined geographical area, such service, or its functional equivalent, or a substitute service, is reasonably available from more than one provider, whether or not any such provider is a telecommunications carrier subject to regulation under this Act. * * * The Commission shall have the power to investigate the classification of a telecommunications service, on its own motion or upon complaint, and to modify such classification or reclassify any service, in whole or in part, after notice and hearing." (Ill. Rev. Stat. 1987, ch. *1014 111 2/3, par. 13-502(b).) Similarly, section 13-209 defines a "competitive telecommunications service" as "a telecommunications service, its functional equivalent or a substitute service, which, for some identifiable class or group of customers in an exchange, group of exchanges, or some other clearly defined geographical area, is reasonably available from more than one provider * * *. A telecommunications service may be competitive for the entire state, some geographical area therein, * * * or for a specific customer or class or group of customers, but only to the extent consistent with this definition." Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-209. • 3 Considered in the context of its legislative findings and policy declarations, section 13-502 of the Act was correctly interpreted by the Commission to authorize reclassification of AT&T's statewide long distance service as competitive, on the ground that alternatives to AT&T's long distance service are actually available to a majority of access line customers in this State. Section 13-502(b) calls for "reasonable availability" of alternatives to AT&T's long distance service. Because of the legislature's specification that such availability be "reasonable," we cannot agree with MCI's position that the Act requires total, complete, absolute equality in the quality, quantity, or degree of availability of those alternatives in comparison to AT&T's long distance service. MCI's construction of section 13-502(b) would render impossible achievement of the Act's goals that "telecommunications services * * * be available to all Illinois citizens at just, reasonable and affordable rates * * * as widely and economically as possible in sufficient quality, quantity and reliability to satisfy the public interest" and that "the economic burdens of regulation * * * be reduced to the extent possible consistent with the protection of the public interest." (Ill. Rev. Stat. 1987, ch. 111 2/3, pars. 13-103(a), (b).) MCI's suggested interpretation of section 13-502 would also render illusory the Act's objectives that telecommunications services be "universally available[,] * * * widely affordable" and increasingly innovative, efficient, and economical by virtue of a "competitive offering of telecommunications services." Ill. Rev. Stat. 1987, ch. 111 2/3, pars. 13-102(a), (c). • 4 MCI also asserts that section 13-502 limits a competitive reclassification "only to the extent" that alternatives are "reasonably available," and that as a result AT&T's reclassification of long distance service should have been restricted to those areas where alternatives are currently "reasonably available" to all long distance customers of this State. We disagree. In limiting the telecommunications service of a particular carrier to competitive reclassification "only to the extent" *1015 that there are reasonable alternatives to the service in a certain geographical area, exchange, or similar grouping, the legislature sought to ensure that "in no case should rates or charges for non-competitive telecommunications services include any portion of the cost of providing competitive telecommunications services." (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-103(d); see also Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-507.) We find no support in the Act for MCI's assertion that section 13-502, by restricting competitive reclassification "only to the extent" that alternatives are "reasonably available" in a certain geographical area, exchange, or group or class of customers, requires that literally every customer in this State have the choice of a carrier, other than AT&T, that provides near-identical long distance service to that of AT&T. • 5 In addition, our review of the record finds substantial support for the Commission's order. (See Ill. Rev. Stat. 1987, ch. 111 2/3, par. 10-201(e)(iv)(A); see also, e.g., Allen v. Weinberger (7th Cir.1977), 552 F.2d 781, 784.) Evidence produced at the hearing established that, as of December 1985, long distance service was available from more than one provider through local access to approximately 70% of the access lines in Illinois and that this percentage would increase steadily in subsequent months. In addition, the record showed that equal access to local exchanges had been undertaken or substantially completed in numerous areas of this State and had already greatly reduced the barriers MCI contends would render its long distance service noncompetitive to that of AT&T. Also, use of 800 numbers provides the functional equivalent of an alternative service by which certain telecommunications carriers offer long distance service to access line customers throughout the State. The Commission determined that these circumstances warranted the conclusion that alternatives to AT&T's long distance service are reasonably available to a majority of access line customers in Illinois. In view of the substantial evidence we find in the record to support these factual determinations, we decline MCI's invitation to substitute our judgment for that of the Commission. For the reasons stated, the order of the Illinois Commerce Commission is affirmed. Affirmed. JIGANTI, P.J., and LINN, J., concur.

44 F.3d 860 UNITED STATES of America, Plaintiff-Appellee,v.Pamela JONES, Katresa Marie Johnson, Mark J. Scott, Jr.,Defendants-Appellants. Nos. 93-8022, 93-8030 and 93-8031. United States Court of Appeals,Tenth Circuit. Jan. 4, 1995. Joseph D. Welton, Detroit, MI, for Pamela Jones, defendant-appellant. Cyril C. Hall, Pontiac, MI, for Katresa Marie Johnson, defendant-appellant. Joseph P. McCaffery (Julia N. Whalen with him on the brief), Chicago, IL, for Mark J. Scott, Jr., defendant-appellant. John R. Green, Asst. U.S. Atty. (David D. Freudenthal, U.S. Atty., with him, on the brief), Cheyenne, WY, for plaintiff-appellee. Before SEYMOUR, Chief Judge, ANDERSON, Circuit Judge, and DAUGHERTY, District Judge.* SEYMOUR, Chief Judge. 1 Mark Scott, Pamela Jones and Katresa Johnson appeal their convictions for conspiracy to possess cocaine with intent to distribute it in violation of 21 U.S.C. Secs. 846 and 841(a)(1), and for possession with intent to distribute over 200 kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), and 18 U.S.C. Sec. 2. We affirm the conspiracy and possession convictions of Mr. Scott and Ms. Jones and reverse the convictions of Ms. Johnson. I. 2 On March 15, 1992, Wyoming Highway Patrolman Daniel J. Dyer clocked a Lincoln Continental driving 76 miles per hour in a 65 mile per hour zone. Officer Dyer signaled for the car to stop by turning on his overhead lights and headlights. The car did not stop immediately, but instead continued for approximately one mile past an entrance-exit ramp, finally stopping on an overpass where Officer Dyer could not safely approach the driver's side. Before approaching the car, Officer Dyer verified that it was not stolen. 3 Officer Dyer noted that the car had California license plates and was rented from Budget Rent-A-Car (Budget). There were two occupants, a driver, Pamela Jones, and a passenger, Katresa Johnson. Officer Dyer also observed three small pieces of luggage on the back seat. After admonishing Ms. Jones for speeding, Officer Dyer asked for her driver's license and the rental car agreement. He also inquired about their destination. Ms. Jones replied, "Well, we're just coming from Los Angeles and we're going back to Detroit." Rec., vol. VII, at 145. Ms. Jones also told Officer Dyer that they had flown from Detroit to Los Angeles but, because they ran out of money, decided to drive back to Detroit. Officer Dyer noticed that a Mr. Scott, rather than Ms. Jones, appeared as the renter on the contract. Ms. Jones identified Mr. Scott as her cousin. 4 Officer Dyer then returned to his car to check the status of Ms. Jones' driver's license. After receiving an ambiguous response from dispatch, Officer Dyer returned to the car and informed Ms. Jones and Ms. Johnson that they would have to wait until dispatch clarified whether the license was suspended. He then checked Ms. Johnson's license, which was valid. 5 Meanwhile, Officer Dyer became suspicious that the car might be transporting contraband. He described numerous factors which contributed to this suspicion: 1) the car was a large rental automobile; 2) Ms. Jones and Ms. Johnson were driving from Los Angeles to Detroit, two cities associated with high drug usage; 3) Ms. Jones and Ms. Johnson, purportedly returning from a two week vacation in Los Angeles, had purchased one-way plane tickets to Los Angeles and had three, relatively small pieces of luggage in the back seat; 4) Mr. Scott rented the car for their return trip, allegedly because Ms. Jones and Ms. Johnson had run out of money on their vacation; 5) the car did not immediately stop, and when it did, it stopped in an area where it was unsafe for the officer to approach the vehicle from the driver's side; 6) the picture of Ms. Jones appeared more sophisticated on her driver's license; and 7) Ms. Jones was not nervous, suggesting that she may have been stopped under similar circumstances previously. Consequently, Officer Dyer asked Ms. Jones whether there were any drugs in the car. She responded negatively. He then asked, "Well, you don't mind if I took [sic] a quick look in the trunk then, do you?" Rec., vol. VII, at 150. She refused, stating that her teachers had instructed that the police do not have the right to look in vehicles. Officer Dyer was persistent, arguing, "[Y]ou don't want me to think you got something in there, do you?" Id. at 151. Ms. Jones firmly resisted his requests. 6 At this time, dispatch reported that Ms. Jones' license had been suspended. Officer Dyer issued Ms. Jones a citation for driving under suspension and asked Ms. Johnson to drive Ms. Jones to the sheriff's office to post a $220 bond. While en route, Officer Dyer asked the local drug enforcement agents to meet them at the sheriff's office. 7 Once at the station, Officer Dyer asked Ms. Jones about the contents of the trunk. She claimed that she was carrying new luggage holding clothes. In a separate conversation, Officer Dyer asked Ms. Johnson, "What do you have in the trunk there? Pamela Jones said you had wicker chairs." She replied, "Wicker chairs? Well, whatever she said is what we got in there." Rec., vol. VII, at 155. Ms. Jones made several credit card calls from memory upon arrival at the police station. 8 Officer William Gallatin, a member of the Wyoming Drug Task Force, informed Ms. Shelly Lucas, a manager in the Los Angeles Budget office from which the car had been rented, that police stopped the car for speeding, the driver of the vehicle had a suspended license, and the authorized driver, Mr. Scott, was not present when Officer Dyer stopped the car. Ms. Lucas asked police to seize the car on Budget's behalf. 9 Officer Gallatin also spoke with Ms. Jones. She became visibly nervous after he identified himself as a narcotics agent. During this conversation, Ms. Jones told Officer Gallatin that she and Ms. Johnson had been visiting relatives in Los Angeles for two weeks, that they ran out of money, and that her cousin rented them a car for their return trip. She also claimed to be unemployed. 10 Officer Gallatin then told Ms. Jones and Ms. Johnson that they were seizing the car and inventorying the contents. Both became visibly upset. Ms. Johnson appeared on the verge of tears. Officer Gallatin then asked if a black suitcase on the back seat belonged to either of them. Both denied ownership. The officers opened the suitcase to discover several "bricks" of cocaine. The police arrested Ms. Jones and Ms. Johnson. The officers subsequently found over 200 kilograms, or 440 pounds, of cocaine in closed luggage in the back seat and trunk of the car. 11 The government's investigation revealed that Ms. Jones and Ms. Johnson used cash to purchase one-way tickets on Northwest flight 51 for $628 each. They departed from Detroit for Los Angeles at 7:00 p.m. on March 12, 1992. Mr. Scott departed from Detroit for Los Angeles later that evening on Northwest flight 339. He purchased a round-trip ticket on an American Express card for $1,252. Mr. Scott rented the car that Ms. Jones was driving from the Budget Rent-A-Car at LAX Airport on March 12 at 11:56 p.m. He then checked into the Howard Johnson Motel. 12 At trial, Special Agent Susan Mathison of the Drug Enforcement Administration ("DEA") office in Detroit testified that when contacted by the Wyoming agents, she was involved in an ongoing investigation concerning Mr. Derek Washam and Ms. Jones. As part of this investigation, Agent Mathison placed a pen register on various telephone numbers associated with Derek Washam. A telephone number associated with Ms. Jones appeared repeatedly on the pen register. For example, in a one week period a few days before Ms. Jones trip to Los Angeles, there were eighteen calls between Washam-related numbers and Pamela Jones' number. Mr. Scott's telephone number also appeared on the pen register which revealed four calls between the Washam residence and the Scott residence on March 12, 1992. Mr. Scott called a Washam-related pager number several times between March 7 and March 13, 1992, including three calls from Mr. Scott's room at Howard Johnson's. The address book in Mr. Scott's possession when he was arrested contained the pager number. 13 The district court denied Ms. Jones' and Ms. Johnson's motion to suppress the evidence seized from the car, concluding that neither defendant had standing to contest the search of the car. A jury convicted Mr. Scott, Ms. Jones, and Ms. Johnson on both the conspiracy and the possession charges. Defendants appeal, arguing insufficient evidence to sustain the convictions, Fourth Amendment violations, Sixth Amendment violations, and various evidentiary errors. II. SUFFICIENCY OF EVIDENCE 1. Ms. Johnson A. Conspiracy 14 Ms. Johnson claims that the evidence was insufficient to sustain her conviction for conspiracy to possess cocaine with intent to distribute. We review the sufficiency of the evidence in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Chatman, 994 F.2d 1510, 1514 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 230, 126 L.Ed.2d 185 (1993). To support a conspiracy conviction, "the government must show that there was an agreement to violate the law, that the defendant knew the essential objectives of the conspiracy, that the defendant knowingly and voluntarily took part in the conspiracy, and that the conspirators were interdependent." United States v. Anderson, 981 F.2d 1560, 1563 (10th Cir.1992) (citing United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993)). While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable, and "caution must be taken that the conviction not be obtained 'by piling inference on inference.' " United States v. Butler, 494 F.2d 1246, 1252 (10th Cir.1974) (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943)). As we recently stated, an inference is reasonable only if the conclusion flows from logical and probabilistic reasoning: " 'If there is an experience of logical probability that an ultimate fact will follow from [sic] a stated narrative of historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.' " United States v. Jones, Nos. 93-4240, 94-4030, at 10 (10th Cir. filed ______) (quoting Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981)). " 'A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such [an inference] is infirm because it is not based on the evidence.' " Id. (quoting Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir.1987)). 15 Ms. Johnson was a passenger in a vehicle caught transporting drugs. To meet its burden, the government must prove guilty knowledge: an implicit or explicit agreement to enter into a known conspiracy with a known objective. Mere knowledge that drugs are present in a vehicle, without additional evidence to support a reasonable inference of a knowing agreement to distribute them, is insufficient to sustain a conspiracy conviction. See United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.1991). For the reasons set out below, we are persuaded that the government failed to offer sufficient evidence to prove beyond a reasonable doubt the requisite agreement between Ms. Johnson and the other conspirators. 16 A thorough review of the record reveals that Ms. Johnson was a passenger in a car, driven by her cousin Ms. Jones, which was stopped en route from Los Angeles to Detroit and was carrying over 200 kilograms of cocaine. Ms. Johnson flew to Los Angeles with Ms. Jones on a one-way ticket purchased with cash. The only evidence Officer Dyer offered regarding Ms. Johnson's behavior was a question which we view as a normal response in the context of a roadside stop: "Why don't you just let us go?" Rec., vol. VII, at 152. Ms. Jones responded to Officer Dyer's requests to search the car, and Ms. Jones fabricated the story regarding their two week vacation in Los Angeles. Ms. Johnson remained silent during these discussions. Although Ms. Jones' license was invalid, Ms. Johnson held a valid license, and Officer Dyer ordered Ms. Johnson to drive Ms. Jones to the police station. When Detective Gallatin told Ms. Johnson that they were seizing the car upon Budget's request, she became "nervous" and was "on the verge of crying." Rec., vol. VIII, at 58. Ms. Johnson denied ownership of the piece of luggage in the back seat of the car in which the officers first discovered drugs. Ms. Johnson's personal effects were found on the back seat of the car in another piece of luggage which did not contain any cocaine. None of Ms. Johnson's personal effects were found in the trunk of the car. Nor was Ms. Johnson carrying keys to the car or the trunk of the car when arrested. Upon arrest, Ms. Johnson asked Ms. Jones for a telephone number and a credit card number to complete a phone call. During the inventory of Ms. Johnson's belongings, the police found only $1.44 in her possession. Investigators did not find Ms. Johnson's fingerprints on any of the cocaine bricks. 17 These facts clearly establish that Ms. Johnson traveled with Ms. Jones and was a passenger when Officer Dyer stopped the car for violating the speed limit. But mere presence, as a passenger, in a car found to be carrying drugs is insufficient to implicate the passenger in the conspiracy. United States v. Riggins, 15 F.3d 992, 994 (10th Cir.1994). Likewise, mere association with conspirators does not support a conspiracy conviction. Chatman, 994 F.2d at 1515; United States v. Evans, 970 F.2d 663, 669 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993); United States v. Austin, 786 F.2d 986, 988 (10th Cir.1986). 18 From the evidence, no reasonable jury could infer beyond a reasonable doubt that Ms. Johnson knew of the cocaine's presence in the car.1 There is no evidence, direct or circumstantial, indicating she knew the car contained cocaine or that she participated in a common plan to distribute it. While 200 kilograms is a large amount of cocaine to be carrying in a car, all the cocaine was contained in closed luggage. Neither Officer Dyer nor Officer Gallatin suggested that a discernible smell contributed to their suspicions. Ms. Johnson was not in possession of keys to the car or trunk when arrested, suggesting that she did not have control over the car or the contents of the trunk. Although two bags in the back seat contained cocaine, Ms. Johnson's personal effects were not in either bag, and the cocaine was not in plain view. The only evidence that could raise an inference of knowledge was Ms. Johnson's nervous and upset demeanor when Officer Dyer told her that the car would be seized. However, this is a plausible reaction from even an innocent bystander who had been detained by the police for close to two hours, who had been escorted to the police station, and who had just been told that police would search and seize the car in which she was riding. 19 It may be reasonable to infer from the evidence that Ms. Johnson suspected illegal activity. She flew from Detroit to Los Angeles on a one-way ticket, paid for with cash, presumably by someone else. And Ms. Johnson deferred to Ms. Jones' description of their travel plans and the contents of the trunk. Mere suspicion of illegal activity, however, is insufficient to prove participation in a conspiracy. Austin, 786 F.2d at 988-89. One does not become a participant in a conspiracy merely by associating with conspirators known to be involved in crime. Chatman, 994 F.2d at 1515 (citing Evans, 970 F.2d at 669); United States v. Dickey, 736 F.2d 571, 585 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). One must agree to participate in order to be convicted for conspiracy. 20 The key question therefore is the adequacy of the evidence to sustain an inference that Ms. Johnson agreed, either implicitly or explicitly, to enter into a known conspiracy. There is a conspicuous lack of direct or circumstantial evidence supporting an inference of an explicit agreement to participate in the conspiracy. While Mr. Scott and Ms. Jones were linked to the conspiracy through a common denominator, the pen registers showing frequent communication with Derek Washam immediately before and after the March 15 stop, Ms. Johnson was never implicated in such evidence. There is no evidence of Ms. Johnson's presence at any meetings with Mr. Scott and Ms. Jones. Nor is there evidence of Ms. Johnson's participation in drug-related negotiations or transactions. 21 We must determine whether, absent evidence supporting an inference that Ms. Johnson knew of the cocaine's presence, her passenger status in a vehicle transporting cocaine coupled with the reasonable inference that she suspected illegal activity support an inference that Ms. Johnson implicitly agreed to participate in the conspiracy. We do not believe they do. A survey of cases from other circuits supports our conclusion that insufficient evidence exists to draw the requisite inference that could implicate Ms. Johnson in the conspiracy. 22 When courts have sustained conspiracy convictions for passengers, an additional piece of evidence not present in this case grounded reasonable inferences of an agreement. In United States v. Carter, 14 F.3d 1150 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 156, 130 L.Ed.2d 94 (1994), the defendant, a passenger in a van driving from Arkansas and stopped in Memphis, was charged with and convicted of conspiracy after the police found 437 pounds of marijuana in the van. The Sixth Circuit affirmed the passenger's conspiracy conviction because the driver and passenger told conflicting stories, supporting an inference that they were trying to deceive the officer; the passenger repeatedly tried to walk away from the van, suggesting that he was trying to "keep the police from discovering the marijuana;" and the two had been driving together for a considerable amount of time with a very strong odor of marijuana emanating from the van. Id. at 1150, 1156-57. From these facts, the Sixth Circuit concluded that the passenger knew of the existence and scope of the conspiracy and actively participated therein. Although in the instant case Ms. Jones and Ms. Johnson did, as in Carter, drive together for a considerable length of time, the contraband was odorless. Nor did Ms. Johnson actively try to deceive Officer Dyer or divert his attention. The strongest reasonable inference that we can draw is that Ms. Johnson suspected illegal activity. 23 The Fifth Circuit has interpreted conflicting statements, frequently combined with nervousness or implausible stories, as sufficient evidence from which to infer a passenger's agreement to participate in a known conspiracy with a known objective. In United States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992), the border patrol stopped a car in which the defendant was a back seat passenger. When an agent inspected the vehicle, he felt something under the back seat which turned out to be cocaine and a loaded weapon. The Fifth Circuit upheld the passenger's conspiracy conviction given evidence that he told a conflicting story, appeared nervous, hovered aggressively over the officer as he was searching the back seat, shared driving responsibilities, and received payment for driving the car. Id. at 101-02; see also, e.g., United States v. Shabazz, 993 F.2d 431, 433, 441-42 (5th Cir.1993) (sufficient evidence to sustain possession charges where passenger was owner of car, gave statement conflicting with driver's statement, was nervous, and became anxious when officer began searching the side of car where drugs were found). In the present case, Ms. Johnson never lied to the police. She did not tell any stories that conflicted with those of Ms. Jones. She did not appear nervous or anxious until police informed her at the station of the search and seizure of the rental car. We view her reaction as a natural one for a cross-country traveler who had been detained by the police for close to two hours and who found herself in the custodial environment of a police station with no money and about to lose her mode of transportation. 24 In another Fifth Circuit case, United States v. Limones, 8 F.3d 1004 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1562, 128 L.Ed.2d 209 (1994), the defendant, Mr. Fuentes, was not a passenger in a vehicle transporting cocaine when arrested but had been a passenger in a car involved in drug transactions prior to arrest. The court rejected Mr. Fuentes insufficient-evidence claim because he had been an active participant in drug-related negotiations and transactions: an address book linked Mr. Fuentes to other conspirators; Mr. Fuentes found a buyer for the cocaine and negotiated the sale; and he was to receive $1000 for "the deal." Id. at 1009. There is no evidence that Ms. Johnson participated in any negotiations for sale of the cocaine. Nor is there evidence that Ms. Johnson received payment for her participation in any drug dealings. In fact, she only possessed $1.44 when arrested. 25 The Eighth Circuit, in United States v. Johnson, 18 F.3d 641 (8th Cir.1994), found the evidence sufficient to sustain a passenger's conspiracy conviction where the passenger rode over five hundred miles in a car transporting cocaine; the passenger's clothing and personal effects were found in an open bag containing cocaine; and the bag containing the cocaine and the passenger's personal effects also contained two weapons, one of which was in plain view. The Eighth Circuit concluded that "a fact finder could determine that it would be unreasonable for [the driver] to have had Johnson [the passenger] accompany him on a trip to Texas and, more importantly, place three kilograms of cocaine and two firearms in a bag containing Johnson's clothing unless Johnson knew about the cocaine." Id. at 647. Although, in the instant case, Ms. Johnson traveled a significant distance with Ms. Jones, her personal effects were not found in any piece of luggage containing cocaine, all bags holding cocaine were closed, none of the cocaine bricks were visible, and Ms. Johnson had no apparent access to or control over the trunk. Unlike the situation in Johnson, there is no evidence here that Ms. Johnson knew or should have known that cocaine was present in the car. 26 In these cases, evidence of conflicting stories, active attempts to divert officers' attention from the stopped vehicle, participation in drug transactions, or knowledge of and control over drugs, in addition to the defendant's status as a passenger in a vehicle transporting drugs, reasonably supported inferences that the defendant agreed to participate in the conspiracy. None of these factors are present in Ms. Johnson's case. A review of several other circuit court decisions, reversing conspiracy convictions for insufficient evidence on facts more incriminating than ours, provides added support to our conclusion that the evidence here is insufficient to sustain Ms. Johnson's conspiracy conviction. 27 The Third Circuit, for example, reversed a passenger's conspiracy conviction even though the passenger told police a story inconsistent with the driver's, placed his luggage in the trunk where a suspiciously altered compartment held the drugs, appeared nervous, and removed the keys from the ignition, presumably to prevent the police from searching the trunk. United States v. Terselich, 885 F.2d 1094, 1098 (3d Cir.1989). In the instant case, Ms. Johnson did not tell a conflicting story; nor did she attempt to obstruct the officer's access to the trunk. 28 In arriving at its conclusion in Terselich, the Third Circuit relied on United States v. Cooper, 567 F.2d 252 (3d Cir.1977), where the court reversed a passenger's conviction despite evidence of phone calls to his residence from the residence of a conspirator. The court concluded that "in the absence of ... some evidence that he [passenger] engaged in telephone or other communication of a conspiratorial nature, no factfinder could find beyond a reasonable doubt that Cooper was a member of the ... conspiracy." Id. at 254-55. In Cooper, the defendant clearly called and received calls from the home of a known conspirator. Ms. Johnson, on the other hand, was conspicuously absent from the phone records which helped link Mr. Scott and Ms. Jones as co-conspirators. 29 In United States v. Rosas-Fuentes, 970 F.2d 1379 (5th Cir.1992), the passenger asked the police officer whether anything had been found in the car's tank. The police officer responded, " 'Well you tell me,' " and the passenger responded, " 'Well, yes.' " Id. at 1381. This conversation, coupled with a nervous demeanor and an implausible explanation for travel plans, provided insufficient evidence to implicate the passenger in a conspiracy. The evidence in our case is less incriminating. Ms. Johnson did not ask Officer Dyer whether anything had been found in the car. In fact, she did not initiate any conversation with Officer Dyer. Ms. Jones, rather than Ms. Johnson, fabricated the story regarding their travel plans. 30 The Ninth Circuit has also reversed convictions on evidence more inculpatory than the evidence in our case. In United States v. Penagos, 823 F.2d 346 (9th Cir.1987), the defendant was not a passenger when arrested, but undercover narcotics agents observed him, prior to arrest, as a passenger in a vehicle involved in drug transactions. In that case, additional evidence that the defendant looked up and down the street while conspirators loaded drugs into a vehicle, placed and received, alongside a clearly implicated conspirator, 45 to 60 minutes of phone calls from a public telephone following what appeared to be a drug-related meeting, and briefly met with two convicted conspirators, was held insufficient to support the defendant's conspiracy conviction. Id. at 347-48. In another Ninth Circuit case, drug agents arrested a passenger in a vehicle carrying suspiciously significant amounts of cash. United States v. Lopez, 625 F.2d 889 (9th Cir.1980). Although the defendant was present in a house where drug-related negotiations took place, accompanied conspirators to the scene of the drug transaction, and admitted to the arresting officer that he "knew what was going down," the court concluded the evidence was insufficient to support the conspiracy conviction because there was no clear evidence that the defendant actually participated in the negotiations or deliveries. Id. at 896. The evidence against Ms. Johnson is much less incriminating than the evidence in Penagos and Lopez. 31 Finally, in United States v. Pena, 983 F.2d 71 (6th Cir.1993), the passenger was asleep when the police stopped the driver for speeding. The passenger and the driver told the police inconsistent stories about their trip. The evidence also revealed that the passenger had accompanied the driver from Houston to Columbus, was promised an airline ticket from Columbus to Texas, and "felt" that there was probably something illegal going on. Nonetheless, the Sixth Circuit reversed a conviction for aiding and abetting in the possession of cocaine with intent to distribute, concluding that the evidence was insufficient to show that the passenger knew there was cocaine in the car or took any steps to aid in its transportation or delivery.2 While the facts in our case are somewhat reminiscent of those in Pena, the passenger there additionally told a conflicting story. No such evidence has been offered in the case against Ms. Johnson. If the facts in Pena are insufficient to support an inference of an implicit agreement, then the less incriminating facts in this case are likewise insufficient to support such an inference. 32 The latter cases share two characteristics. First, they reverse conspiracy convictions based on insufficient evidence. Second, they do so notwithstanding evidence more incriminating than that in our case. We hold that the evidence here is insufficient to support Ms. Johnson's conspiracy conviction, and we reverse and remand to the district court to vacate the conviction and sentence. 33 B. Possession of Cocaine with Intent to Distribute 34 Ms. Johnson also challenges her substantive conviction for possession of cocaine with intent to distribute pursuant to 21 U.S.C. Sec. 841(a)(1). In order to convict a defendant of possession, the government must prove beyond a reasonable doubt that the defendant knowingly possessed cocaine with the specific intent to distribute. United States v. Hager, 969 F.2d 883, 888 (10th Cir.) (citing United States v. Gay, 774 F.2d 368, 372 (10th Cir.1985), cert. denied, --- U.S. ----, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992)). Possession of narcotics may be actual or constructive. A defendant is deemed to have constructive possession of narcotics if the government proves, through direct or circumstantial evidence, knowing "ownership, dominion or control over the narcotics and the premises where the narcotics are found." Hager, 969 F.2d at 888. 35 A defendant can also be implicated by aiding and abetting a co-defendant in the possession of cocaine with intent to distribute. 18 U.S.C. Sec. 2. To be guilty of aiding and abetting, a defendant must willfully associate with the criminal venture and aid such venture through affirmative action. United States v. Esparsen, 930 F.2d 1461, 1470 (10th Cir.1991) (citing United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir.1986), cert. denied, --- U.S. ----, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992)). The government must prove, through direct or circumstantial evidence, more than mere presence at the scene of the crime even if coupled with knowledge that the crime is being committed. Esparsen, 930 at 1470. While evidence of "relatively slight moment may warrant a jury's finding of participation," Zamora, 784 F.2d at 1031 (quoting United States v. Garguilo, 310 F.2d 249 (2d Cir.1962)), a defendant "may not stumble into aiding and abetting liability by inadvertently helping another in a criminal scheme unknown to the defendant." United States v. Hanson, 41 F.3d 580, 582 (10th Cir.1994). 36 The lack of evidence to support Ms. Johnson's conspiracy claim is equally dispositive of her claim that the evidence is insufficient to support her conviction on the possession charges. As discussed above, there is no evidence to support, beyond a reasonable doubt, an inference that Ms. Johnson knew of the cocaine's presence. Consequently, actual possession cannot underlie Ms. Johnson's possession conviction. Nor is there sufficient evidence to support an inference of constructive possession. None of Ms. Johnson's personal effects were found in luggage holding cocaine; when arrested, Ms. Johnson was not in possession of keys to the car or trunk; and she was not a renter or authorized driver of the rental car. Finally, there is insufficient evidence to sustain Ms. Johnson's possession conviction with an aiding and abetting argument. There is no evidence that Ms. Johnson knowingly agreed to participate in the conspiracy or willfully furthered the venture through positive action. We therefore hold that the evidence is insufficient to support Ms. Johnson's possession conviction. Because retrial is barred by double jeopardy, United States v. Daily, 921 F.2d 994, 1011 (10th Cir.1990), cert. denied, 502 U.S. 952, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991); United States v. Sullivan, 919 F.2d 1403, 1428 (10th Cir.1990), cert. denied, --- U.S. ----, 113 S.Ct. 285, 121 L.Ed.2d 211 (1992); United States v. Doran, 882 F.2d 1511, 1526 (10th Cir.1989), we do not address Ms. Johnson's remaining substantive claims. 2. Mr. Scott A. Conspiracy 37 Mr. Scott challenges the sufficiency of the evidence to sustain his conspiracy conviction. The evidence shows that Mr. Scott flew from Detroit to Los Angeles on March 12, 1992, a few hours after Ms. Jones and Ms. Johnson departed for Los Angeles. He rented the car in which police discovered the cocaine. Mr. Scott returned to Detroit on March 15. He lied to Special Agent Barrett in a taped telephone call, claiming that he had returned the rental car on March 13 because the audio-tape player in the car was not functioning correctly. The evidence overwhelmingly shows that Mr. Scott did not return the car on March 13 and that Budget did not regain physical control of the car before it was stopped on March 15. Furthermore, Agent Barrett testified that an inventory of the car's contents revealed a bag of 42 cassettes, one of which was in the tape player. Mr. Scott was represented by lawyers who had worked for Derek Washam, the object of an ongoing DEA investigation since August 1991. When arrested, Mr. Scott possessed a business card with these lawyers' names and handwritten advice on how to respond in the event of a DEA stop. When Mr. Scott made his first appearance in court, represented by one of Mr. Washam's lawyers, Derek Washam was present in the courtroom. The pen register on Washam-related phone numbers revealed four phone calls from the Washam residence to the Scott residence the day all defendants traveled to Los Angeles. Ms. Jones' residence frequently appeared on the pen register during the same general time period. The room receipt from the Howard Johnson motel indicated several calls to a Washam-related pager number. When arrested, the address book that Mr. Scott was carrying contained the pager number. 38 This evidence and the reasonable inferences drawn therefrom clearly support Mr. Scott's conspiracy conviction. This conclusion is consistent with our holding in United States v. Markopoulos, 848 F.2d 1036 (10th Cir.1988). In that case, the defendant rented the car in which the border patrol discovered 148 pounds of marijuana; traveled to New Mexico prior to the departure of the driver, and made several phone calls from his hotel to the driver. We found this evidence sufficient to sustain Mr. Markopoulos' conviction. Id. at 1038, 1040. Mr. Scott flew to Los Angeles and rented the car. Both of these acts furthered the conspiracy's objectives, supporting an inference that Mr. Scott knowingly and voluntarily agreed to participate in the conspiracy. The timing of Mr. Scott's trip to Los Angeles, his rental of a large car, and the lies he told regarding the rental return date support an inference that Mr. Scott knew of the objectives and scope of the conspiracy. Mr. Scott's presence on the pen registers, the increased telephone activity between Washam-related and Scott-related phone numbers during early to mid-March 1992, and the connections between Mr. Washam's lawyers and Mr. Scott heighten the plausibility of such inferences. His interdependence with the other conspirators, namely Ms. Jones, is self-evident, given Mr. Scott's integral role in renting the car. Accordingly, we affirm Mr. Scott's conspiracy conviction. 39 B. Possession of Cocaine with Intent to Distribute 40 Mr. Scott also appeals his possession conviction, arguing insufficient evidence. His conviction rests solely on an aiding and abetting theory. Evidence sufficient to support Mr. Scott's conspiracy conviction, including evidence that he knowingly and willfully agreed to participate in the criminal venture and overtly furthered the criminal venture by flying to Los Angeles and renting the car, is also sufficient to support Mr. Scott's possession conviction. Accordingly, we affirm. III. FOURTH AMENDMENT SEARCH AND SEIZURE 1. Motion to Suppress Seizure of Cocaine 41 Ms. Jones appeals the district court's denial of her motion to suppress the cocaine seized from the car. Fourth Amendment rights are personal. United States v. Rascon, 922 F.2d 584, 586 (10th Cir.1990), cert. denied, 500 U.S. 926, 111 S.Ct. 2037, 114 L.Ed.2d 121 (1991). A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests. Id. An illegal search or seizure only harms those with legitimate expectations of privacy in the premises searched. United States v. Roper, 918 F.2d 885, 886-87 (10th Cir.1990). Whether a movant has a legitimate expectation of privacy and therefore has standing to contest a particular search is an issue of law that we review de novo. United States v. Rubio-Rivera, 917 F.2d 1271 (10th Cir.1990). 42 We have held that a defendant in sole possession and control of a car rented by a third party has no standing to challenge a search or seizure of the car. United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir.1984). The record here reveals that Ms. Jones did not rent the car; Mr. Scott did. Nor was Ms. Jones authorized to drive the car. Although she argues that she was authorized to drive the car as an employee of Your Way, Inc., the alleged corporation on behalf of which Mr. Scott rented the car, we are not persuaded by this argument. Mr. Scott, during a recorded conversation with Agent Barrett, admitted that Your Way, Inc. is "more or less [a] dormant" corporation. Rec., vol. IX, at 239. Ms. Jones told Officer Gallatin that she was unemployed, rec., vol. VIII, at 179, and no one refuted that testimony at trial. Under our holding in Obregon, Ms. Jones did not have a legitimate expectation of privacy in the rented car and consequently does not have standing to challenge the search of the car or the seizure of the cocaine therein. We affirm the district court's denial of Ms. Jones' motion to suppress the evidence seized during the search of the rental car. 2. Detention After Initial Stop 43 Ms. Jones also claims that her detention after the initial stop constituted a seizure in violation of the Fourth Amendment. She does not contest the validity of her initial stop for speeding. To determine the validity of a roadside detention, we balance the intrusion on Fourth Amendment rights against the importance of the government interests involved. United States v. Arango, 912 F.2d 441, 446 (10th Cir.1990) (citing United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). An ordinary traffic stop is a limited seizure and is more like an investigative Terry stop than a custodial arrest. United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). We therefore assess the reasonableness of traffic stops under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, the actions of the police must be justified at their inception and reasonably related to the circumstances which originally justified their interference. Id. at 20, 88 S.Ct. at 1879. Although we review the district court's factual findings under a clearly erroneous standard, Walker, 933 F.2d at 815, the ultimate determination of reasonableness under the Fourth Amendment is a determination of law that we review de novo, id. (citing United States v. Pena, 920 F.2d 1509, 1513-14 (10th Cir.1990)), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). 44 An officer conducting a routine traffic stop may legitimately detain a driver while requesting a driver's license and vehicle registration, running a computer check, and issuing a citation. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (citing United States v. Gonzalez, 763 F.2d 1127, 1130 (10th Cir.1985)); Obregon, 748 F.2d at 1376. Once the driver produces a valid license and proof that she is entitled to operate the car, the driver must be permitted to proceed. Guzman, 864 F.2d at 1519. Subsequent or concurrent detentions for questioning are justified only when the officer has "reasonable suspicion 'of illegal transactions in drugs or of any other serious crime.' " Id. (quoting Florida v. Royer, 460 U.S. 491, 498-99, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). "Whether such an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend upon any one factor but on the totality of the circumstances." United States v. Soto, 988 F.2d 1548, 1555 (10th Cir.1993). 45 Officer Dyer detained Ms. Jones for approximately thirty minutes following the original stop for speeding. During that entire time, Officer Dyer awaited a response from dispatch regarding the status of Ms. Jones' license. Dispatch ultimately informed Officer Dyer that Ms. Jones' license was suspended. On the rental contract, Mr. Scott appeared as the authorized driver. Ms. Jones never proved that she was entitled to operate the rental car. According to Guzman, an officer may detain a driver until assured that the driver's license is valid and the driver is legitimately operating the vehicle. Guzman, 864 F.2d at 1519. Because Officer Dyer never received such assurances, the duration of the detention was justified. 46 Concurrent with this legitimate investigative detention, however, Officer Dyer questioned Ms. Jones regarding the transportation of contraband. This questioning is justified only if Officer Dyer reasonably suspected that Ms. Jones was transporting drugs. At trial, Officer Dyer identified several factors heightening his suspicion that the car may have been transporting drugs, including the size of the car, the fact that both Los Angeles and Detroit are known for high drug usage, the lack of luggage for an alleged two week trip, Ms. Jones' reluctance to stop the car, the location of the stop, her inability to prove authorization to operate the car, and apparent familiarity with such stops. In Arango, an analogous case regarding a traffic stop for speeding, we concluded that the combination of the driver's inability to prove lawful possession of the vehicle and the officer's skepticism regarding the amount of luggage provided reasonable suspicion to justify an inquiry related to the transportation of contraband. Arango, 912 F.2d at 447. We have also identified failure to promptly stop an automobile in response to flashing police lights, United States v. Walraven, 892 F.2d 972, 975 (10th Cir.1989), and the fact that defendants were traveling from and to known drug areas, United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986), as factors supporting reasonable suspicion. Given such precedent, and considering the "totality of the circumstances," we conclude that Ms. Jones' further roadside detention for questioning was supported by reasonable suspicion and, therefore, was legitimate. IV. SIXTH AMENDMENT RIGHT TO COUNSEL 47 On September 4, 1992, the government filed a motion to disqualify Alvin L. Keel, attorney for Ms. Jones, and Timothy S. Crawford, attorney for Ms. Johnson, arguing that the attorneys' connections with Derek Washam presented an inherent danger of conflict of interest. After a hearing, the district court granted this motion, concluding that continued representation raised "a serious potential conflict of interest." Rec., vol. V, at 254. The court suspended Mr. Keel and Mr. Crawford, along with their respective local counsel, for ten days and appointed the federal public defender, the assistant public defender, and two local attorneys as interim counsel. On October 5, the court reinstated Mr. Keel and Mr. Crawford upon Ms. Jones' and Ms. Johnson's request. Defendants proceeded to trial on October 20. Mr. Scott argues that the disqualification of Mr. Crawford and Mr. Keel was unconstitutional because it 1) deprived Ms. Jones and Ms. Johnson of their right to counsel of choice and 2) denied Mr. Scott his right to effective assistance of counsel. 48 Although standing was not raised by either party, we may raise sua sponte the threshold issue of whether Mr. Scott has standing to bring such Sixth Amendment claims. Alexander v. Anheuser-Busch Cos., 990 F.2d 536, 538 (10th Cir.1993). The Sixth Amendment right to counsel is a personal right. United States v. Partin, 601 F.2d 1000, 1006 (9th Cir.1979) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), cert. denied, 446 U.S. 964, 100 S.Ct. 2939, 64 L.Ed.2d 822 (1980). A defendant thus does not have standing to raise the Sixth Amendment claims of a co-defendant. Partin, 601 F.2d at 1006; see also United States v. Adams, 1992 WL 279227, at * 3 (10th Cir. Oct. 5, 1992). Neither Ms. Jones nor Ms. Johnson challenges the disqualifications on appeal. Their co-defendant, Mr. Scott, may not vicariously assert their rights. We therefore hold that Mr. Scott does not have standing to challenge the disqualification of the attorneys on grounds that the disqualification deprived his co-defendants of their right to counsel of choice. 49 Mr. Scott also contends that his personal Sixth Amendment rights were implicated because the disqualification denied him the ability to plan and pursue a joint defense. While Mr. Scott has standing to bring this claim, we nonetheless conclude the claim is meritless. It is undisputed that during the ten-day disqualification period, Mr. Scott's attorneys were free to communicate with Ms. Jones' and Ms. Johnson's appointed interim attorneys, thereby affording Mr. Scott the uninterrupted opportunity for a joint defense. Although the disqualified attorneys were prohibited from communicating with Ms. Jones and Ms. Johnson, they could communicate with their former clients' appointed attorneys "to advise them of the defenses," rec., vol. V, at 258, further assuring the continuity of any joint defense strategy. Moreover, Mr. Scott's argument that he was deprived of a joint defense appears rather vacuous considering that he denied knowing either co-defendant. See rec., vol. IX, at 242-43. We hold that Mr. Scott was not denied effective assistance of counsel. V. EVIDENTIARY ISSUES 1. Hearsay 50 Evidentiary rulings are committed to the discretion of the trial court and are reviewed only for abuse of discretion. United States v. Zimmerman, 943 F.2d 1204, 1211 (10th Cir.1991). While we review evidentiary rulings by considering the record as a whole, Boren v. Sable, 887 F.2d 1032, 1034 (10th Cir.1989), deference to the trial judge is heightened when reviewing rulings on hearsay questions, id. at 1033. This court applies a harmless error standard when reviewing trial courts' rulings on hearsay objections resting solely on the Federal Rules of Evidence. United States v. Jefferson, 925 F.2d 1242, 1253-55 (10th Cir.), cert. denied, 502 U.S. 884, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991). A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect. Id. at 1255. 51 Mr. Scott argues that the district court committed reversible error in admitting evidence over two hearsay objections. The first concerns Ms. Lucas' testimony regarding the "closing information" on Budget's car rental contracts generated on April 14, 1992 (closing contracts). The government offered into evidence Budget's closing contracts which indicated in the "Time in" blank that the Lincoln Continental had been returned on March 13, exactly 24 hours following rental. The defense did not object, presumably because this broke the link between Mr. Scott's rental of the car and the March 15 stop. However, Ms. Lucas, a manager from the LAX Budget office, explained why the closing contracts may not have accurately reflected the time of the car's return. She testified that, in the normal course of business, a rental contract that is in "limbo," as in the instant case, is frequently closed for revenue purposes "as of one day" in Budget's computer system. Rec., vol. IX, at 67. The defense objected to this evidence on grounds that the "Time in" entry on the closing contracts was self-explanatory. The court overruled this objection because Ms. Lucas, as a manager, could legitimately testify regarding procedures followed in the ordinary course of business. Mr. Scott does not appeal this ruling. However, Ms. Lucas further testified that Mr. Scott called Ms. Harrison, Budget's general manager, at the end of March or the beginning of April, claiming that he had kept the car for only one day. On April 14, following Mr. Scott's phone call, Budget closed the contract. Mr. Scott's attorney objected to Ms. Lucas' testimony of the phone conversation as hearsay. The district court overruled his objection on grounds that Ms. Lucas should be permitted to testify regarding the regular course of business. Mr. Scott now alleges that this ruling constitutes reversible error, arguing that the "Time in" entry is self-evident proof of his returning the car on March 13. We disagree. 52 Even if the district court erroneously admitted testimony of the contents of Mr. Scott's and Ms. Harrison's conversation, we nonetheless conclude that the admission of this testimony was harmless error. The only objectionable hearsay testimony was the substance of the conversation between Ms. Harrison and Mr. Scott. Yet, in a recorded conversation with Agent Barrett, Mr. Scott claimed that he had told Budget that he should have only been charged for one day. Furthermore, Ms. Lucas had already testified, without objection, that Mr. Scott had called at the end of March or the beginning of April, claiming that he had returned the car on March 13. Given such properly admitted testimony, we find it difficult to understand how the admission of this evidence could have harmed Mr. Scott's case. 53 Furthermore, even though Mr. Scott claimed that he returned the car on March 13 because of a broken tape player, the record contains much evidence, independent of this conversation, which tends to establish that Mr. Scott did not return the car on March 13. Although Ms. Lucas testified that the closing contracts indicated the car was "returned" on March 13, she never testified that Budget regained physical control of the car on March 13. Instead, she explained that the "Time in" entry "doesn't necessarily mean that a car was turned in that particular day." Rec., vol. IX, at 102. Ms. Lucas testified that when Officer Gallatin contacted her on March 15 to inquire whether Ms. Jones or Ms. Johnson had authorization to drive the car, she checked the outstanding contract on the computer which, in contrast to the closing contracts, did not indicate in the "Time-in" blank that the car had been returned. After a thorough review of the inventory sheets and the log sheets, no one at Budget had knowledge of the car being returned to LAX Airport between March 12 and March 15. The "Time in" blank remained empty for a considerable time thereafter. In fact, when the government requested documents at the end of March or the beginning of April, Budget had not yet generated the closing contracts. Mr. Scott's closing contract indicated that he returned the car exactly 24 hours after its rental, further suggesting that the entry was, as Ms. Lucas testified, a bookkeeping convention rather than an accurate reflection of the car's return. Ms. Lucas also testified that it is Budget's policy to accept the customer's alleged date of return for revenue purposes. In the instant case, the closing contracts, giving deference to the customer, reflected Mr. Scott's claim that he returned the car on March 13. The closing contracts nonetheless indicated that Budget assessed a substantial unauthorized drop charge, implying that it never accepted Mr. Scott's allegations that the car was returned to LAX. Ms. Lucas also described, in some detail, the various check-in and inventory procedures, noting that there was no record of Mr. Scott availing himself of any of these procedures and further noting that if Mr. Scott had returned the car, it would have been extremely difficult for the car to have left the lot absent notice by one of the attendants. Finally, the government played for the jury a time-lapsed video tape of the Budget office and parking lot at LAX on the days in question, and the return of the car was not reflected on the tape. Even absent Ms. Lucas' testimony regarding the phone conversation, a reasonable juror could conclude that the closing contracts' "Time in" entries did not accurately represent when the car was returned to Budget. The admission of this testimony was harmless. 54 Mr. Scott also alleges Alamo Rent-A-Car documents found among Ms. Jones' belongings during the car's inventory were irrelevant hearsay, and their admission is reversible error. These documents referred to several vehicles rented by Derek Washam for an unreasonably long period and returned with unreasonably high mileage. When the government offered these documents into evidence during trial, the defense conceded their authenticity but objected to their relevance. Rec., vol. VIII, at 140-41. The defense did not raise a hearsay objection at trial. Id. In general, the failure to object to the introduction of evidence is deemed a waiver of the objection absent plain error. United States v. McIntyre, 997 F.2d 687, 699 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 736, 126 L.Ed.2d 699 (1994). A plain error is one that is " 'obvious or ... seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992) (quoting United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). The admission of the evidence here does not amount to plain error under this standard. 55 Mr. Scott also challenges the Alamo documents' relevance. The decision to admit or exclude evidence is within the sound discretion of the trial court and is reviewed for an abuse of discretion. Chatman, 994 F.2d at 1515. This evidence, like the pen registers admitted without objection, tends to prove Ms. Jones' affiliation with Derek Washam. We hold that the district court did not abuse its discretion in admitting the Alamo documents. 2. Display of Cocaine 56 The government displayed over 200 pounds of cocaine during trial. Mr. Scott argues that this evidence was more prejudicial than probative and was cumulative. The government argues that Mr. Scott failed to object on these bases and therefore waived the issue for appeal. A review of the record refutes the government's argument. In anticipation of the display of cocaine, Mr. Scott's attorneys objected to its admission on the grounds that the prejudicial effect of displaying the actual cocaine was more prejudicial than probative. Rec., vol. VIII, at 37. They reiterated this objection when the cocaine was formally offered into evidence and also contended the evidence was cumulative. Id. at 77. Evidence notwithstanding an objection under Fed.R.Evid. 403 is reviewed for abuse of discretion.3 Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1252 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993). Although we have never squarely addressed whether the display of large quantities of cocaine in a drug conspiracy case is more prejudicial than probative, other circuits have held that such decisions are within the sound discretion of the trial court. See United States v. Gonzalez, 933 F.2d 417, 426-28 (7th Cir.1991) (trial court did not abuse its discretion in permitting display of 2,248 kilograms of cocaine in drug conspiracy case); United States v. Arango-Correa, 851 F.2d 54, 58 (2d Cir.1988) (trial court did not abuse its discretion under Fed.R.Evid. 403 in permitting display of 500 pounds of cocaine in drug conspiracy case); United States v. Peyro, 786 F.2d 826, 830 (8th Cir.1986) (trial court did not abuse its discretion in permitting display of 10.5 kilograms of cocaine). We likewise conclude that the display of the cocaine was not an abuse of discretion in this case. 3. Expert Testimony 57 We review the admission of expert testimony under an abuse of discretion standard. United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir.1992) (citing United States v. Vreeken, 803 F.2d 1085, 1091 (10th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987)); United States v. Barbee, 968 F.2d 1026, 1031 (10th Cir.1992). During trial, the government asked Special Agent Barrett to estimate the value of a kilogram of cocaine in Wyoming. Mr. Scott's attorney objected to the testimony as irrelevant hearsay. The court overruled these objections. Agent Barrett then testified that the street rate for a kilogram of cocaine in Wyoming in March 1992 was $25,000. Mr. Scott appeals the admission of this testimony, questioning its relevance and claiming that it is more prejudicial than probative. 58 We have admitted expert testimony regarding the street value of cocaine. See, e.g., Fitzgerald v. United States, 719 F.2d 1069, 1070 (10th Cir.1983) (admission of expert testimony establishing that drugs in questions had aggregate street value of $18,400). Other circuits have held that expert testimony regarding the value of drugs is relevant to prove the drugs were intended for distribution. See United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 206, 130 L.Ed.2d 136 (1994). We therefore hold that the district court did not abuse its discretion in admitting Agent Barrett's testimony. 59 We REVERSE for insufficient evidence Ms. Johnson's convictions on both the conspiracy and possession counts. We AFFIRM Ms. Jones' and Mr. Scott's convictions on both counts. * The Honorable Fred Daugherty, Senior United States District Judge for the Western, Eastern and Northern Districts of Oklahoma, sitting by designation 1 Even evidence showing Ms. Johnson's knowledge that drugs were present in the car would not support the conspiracy conviction. Merely riding in a car with knowledge that it contains illegal drugs is insufficient evidence to uphold a conspiracy conviction. United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.1991) 2 Although Pena involves an aiding and abetting conviction while, at the moment, we are interested solely in Ms. Johnson's conspiracy conviction, both crimes require at a minimum that the passenger was a knowing participant. The Sixth Circuit concluded that the evidence was insufficient to support an inference that the passenger knowingly assisted in the possession or transportation of cocaine. Pena, 983 F.2d at 73. A similar inference also would be necessary to support a conspiracy conviction. Therefore, the reasoning the Sixth Circuit employed in Pena is identical to that it would have embraced had conspiracy been the charge. Evidence insufficient to support the aiding and abetting conviction would likewise be insufficient to support a conspiracy conviction based on the same facts 3 Federal Rule of Evidence 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

44 F.3d 643 Steven Paul SCHULZ, Plaintiff-Appellant,v.William LONG; Robert Vanalmsick; Col. Gilbert H.Kleinknecht; Frank C. Bick; Robert W. Flagg; BrainerdLatourette, Jr.; Joseph L. Mason; James Raymond; St.Louis County, Missouri; St. Louis County Police Department,Defendants-Appellees. No. 94-1256. United States Court of Appeals,Eighth Circuit. Submitted Sept. 12, 1994.Decided Jan. 3, 1995. Thomas P. Howe, St. Louis, MO, argued (Henry B. Robertson, on the brief), for appellant. Michael A. Shuman, Clayton, MO, argued, for appellees. Before HANSEN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge. HANSEN, Circuit Judge. 1 Steven Schulz appeals the final judgment of the district court1 granting several defendants summary judgment, granting one defendant judgment as a matter of law, and entering judgment on a jury verdict in favor of the remaining defendant in this 42 U.S.C. Sec. 1983 claimed use of excessive force case. Schulz contends that the district court erred in: (1) granting defendant Robert Vanalmsick judgment as a matter of law; (2) excluding certain evidence at trial; and (3) granting several defendants summary judgment on Schulz's failure to train claim. Finding no error, we affirm. I. BACKGROUND 2 Steven Schulz (hereinafter "Appellant") is a diagnosed paranoid schizophrenic who has been hospitalized on several occasions for mental health treatment, with one hospitalization being an involuntary commitment. On July 17, 1986, Appellant began throwing, breaking, and sawing items in his basement bedroom at the home of his parents, Virgil and Doris Schulz. Virgil Schulz unsuccessfully attempted to negotiate with his son to go to the hospital for treatment. Mr. and Mrs. Schulz then conferred with a psychiatrist who had treated Appellant on a prior occasion. The psychiatrist suggested that the police might have to be called for assistance in taking Appellant to the hospital. 3 Eventually, Doris Schulz called the police. Defendant Robert Vanalmsick, a St. Louis County Police Officer, arrived first at the Schulz residence. He was joined shortly thereafter by defendant William Long, who is also a St. Louis County Police Officer. Mr. and Mrs. Schulz advised each officer when they arrived of Appellant's mental condition, including his prior involuntary confinement, and that he was destroying items in the basement. Mr. and Mrs. Schulz also informed the officers that Appellant did not have access to weapons, and they did not believe he was dangerous but was in need of treatment at a mental hospital. 4 Officer Vanalmsick went downstairs shortly before Officer Long's arrival and engaged Appellant in conversation. At the foot of the stairs, Appellant had erected a chest-high barricade, consisting of tables, chairs, boxes, and other items. Officer Vanalmsick stood on the landing at the bottom of the stairwell as he spoke with Appellant, who was on the other side of the barricade. When Officer Long arrived, he also went downstairs and stood several steps above Officer Vanalmsick. 5 During his conversation with the officers, the Appellant stated that if he went to the hospital, he wanted to speak with a "negotiator" upon arrival. However, he would not tell the officers whom he would accept as a negotiator. Appellant also expressed a concern that the officers were going to "rush him" and hurt him. (Trial Tr. at 149.) Officer Vanalmsick assured Appellant that the officers had no plans to "rush him," nor did they intend to hurt him. Approximately fifteen minutes after Officer Long arrived, the conversation began to stagnate with the officers being unable to convince Appellant to go to the hospital. Officer Long then went upstairs and contacted the police dispatcher to send a supervisor to the premises, stating "get here as soon as possible but don't expedite" and then returned to the basement. (Trial Tr. at 92.) 6 Sometime thereafter Appellant retrieved a single-bladed hatchet from his bedroom area. After several requests from Officer Vanalmsick to put down the hatchet, Appellant acquiesced and set it down on a nearby shelf. As the conversation between Officer Vanalmsick and Appellant continued, Appellant again picked up the hatchet. Officer Vanalmsick testified at trial that during this time, while he did not feel that Appellant was threatening him with the hatchet, he remained concerned about its presence. (Trial Tr. at 150-51.) 7 After continued dialogue, Appellant apparently relented to Officer Vanalmsick's requests to put down the hatchet and go to the hospital. He told the officers that he wanted to write down their names and pack a few things for the trip to the hospital. He placed the hatchet on an adjacent shelf and returned to his bedroom area. Officer Vanalmsick retrieved the hatchet from the shelf and handed it to Officer Long, who tossed it to the top of the stairs. 8 Appellant saw the officers remove the hatchet and became incensed. He screamed obscenities at the officers and commenced hurling bricks at them. The officers took shelter from the flying bricks. When Appellant ceased throwing bricks, he looked around confusedly. Officer Vanalmsick decided to try to get past the barricade to subdue Appellant. Officer Vanalmsick testified that he believed the officers were authorized to subdue or control Appellant because an assault had been committed on the officers and Appellant posed a danger to the officers' safety. (Trial Tr. at 158.) 9 However, Officer Vanalmsick became entangled in the barricade. As he attempted to free himself, he momentarily took his eyes off Appellant. Appellant then retrieved a long-handled, double-bladed ax and began approaching Vanalmsick "at a very deliberate" pace. (Trial Tr. at 101.) Officer Long testified that Appellant was holding the ax with both hands, in a cocked position, with the blade at the top and at about head level. (Trial Tr. at 100-01.) Officer Long then unholstered his gun, pointed it at Appellant, and warned him twice, "Drop the ax or I'll shoot." (Trial Tr. at 101.) Appellant did not respond to these warnings and continued to approach Officer Vanalmsick. When Appellant got within 6-8 feet of Officer Vanalmsick, Officer Long started firing at him. Appellant continued to approach Officer Vanalmsick unimpeded until Officer Long's fourth shot felled him. He ended up about 3-5 feet short of Officer Vanalmsick, who was still entangled in the barricade. 10 Appellant later commenced this 42 U.S.C. Sec. 1983 action, alleging violations of his rights under the Fourth and Fourteenth Amendments to be free from an unreasonable seizure. Count I of the complaint charged Officers Long and Vanalmsick in their individual capacities with violating these rights. Count II set forth a failure to train claim against St. Louis County, Missouri, as well as various other defendants. 11 Prior to trial, the district court granted the Count II defendants' motions for summary judgment. At trial, the district court granted Officer Vanalmsick's motion for a judgment as a matter of law. The jury returned a verdict in favor of Officer Long, the only remaining defendant. Appellant appeals.II. DISCUSSION A. Judgment as a Matter of Law 12 Appellant contends that the district court erred in granting judgment as a matter of law to Officer Vanalmsick. Appellant argues that a jury question remained concerning whether Officer Vanalmsick was liable for an unreasonable seizure because he set in motion a chain of events which culminated with Appellant being shot. The district court granted Vanalmsick judgment as a matter of law because he did not "seize" Appellant. The district court observed that Vanalmsick did not physically restrain Appellant, did not fire the shots that stopped the Appellant's movement, and in fact, did not even touch Appellant during the encounter. (Trial Tr. at 185-86.) 13 We review de novo a district court's decision to grant judgment as a matter of law. Medtronic, Inc. v. ConvaCare, Inc., 17 F.3d 252, 255 (8th Cir.1994). 14 Judgment as a matter of law is appropriate only where the nonmoving party has presented insufficient evidence to support a jury verdict in his or her favor, and this is judged by viewing the evidence in the light most favorable to the nonmoving party and giving him or her the benefit of all reasonable inferences from the evidence, but without assessing credibility. 15 Abbott v. City of Crocker, 30 F.3d 994, 997 (8th Cir.1994). 16 The gravamen of Appellant's constitutional claims is that Officers Vanalmsick and Long employed excessive force in the course of subduing him. In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Supreme Court held that "all claims that law enforcement officers used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard...." As a necessary predicate to determining whether the district court erroneously granted Officer Vanalmsick a judgment as a matter of law because he did not "seize" Appellant, we must identify at what point Appellant became "seized" in this case. 17 A "seizure" occurs only when a citizen is physically touched by law enforcement officers or when he otherwise submits to a show of authority by the officers. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). An assertion of authority by a law enforcement officer without a corresponding submission by the citizen does not constitute a seizure within the meaning of the Fourth Amendment. Id. at 626, 111 S.Ct. at 1550-51. "Neither usage nor common-law tradition makes an attempted seizure a seizure." Id. at 626 n. 2, 111 S.Ct. at 1551 n. 2.2 18 In Cole, we applied Hodari D. in addressing the plaintiff's claim that the officers' unsuccessful measures to stop a fleeing truck were "seizures." 993 F.2d at 1332. We stated that "these actions constituted assertions of authority by the officers, but they were not seizures under the Fourth Amendment because Cole did not submit to any of them, nor did any succeed in stopping him." Id. at 1333. We held that one becomes seized when the officer's show of authority has the effect of stopping his movement. Id. at 1332-33. 19 Here, the undisputed evidence shows that Officer Vanalmsick did not touch Appellant, nor did Appellant submit to Officer Vanalmsick's show of authority in any way. The most that can be said for Officer Vanalmsick's acts is that they amounted to an attempted seizure, which Hodari D. makes clear is not a seizure. Thus, the district court properly granted Vanalmsick's motion for judgment as a matter of law.B. Motions in Limine 20 Appellant next contends that the district court erred in granting the motions in limine of Officers Vanalmsick and Long to exclude evidence that: (a) the officers, by their actions, created the need to use force; (b) they should have responded to the situation in the Schulz basement in a different manner, such as waiting for a supervisor or a SWAT team; and (c) they should have used a lesser degree of force or should have followed a policy of using deadly force only as a last resort. The district court excluded the evidence on the basis that it was irrelevant to the two issues in the case: (1) whether the officers effectuated a seizure; and (2) whether such seizure was unreasonable. (Trial Tr. at 15-17.) "In reviewing this ruling, we must give substantial deference to the district court's decision on the admissibility of evidence, and we will not find error unless the district court clearly abused its discretion." May v. Arkansas Forestry Comm'n, 993 F.2d 632, 637 (8th Cir.1993). 21 As noted above, Appellant's excessive force claim is analyzed under the Fourth Amendment's reasonableness standard. The premise of the district court's ruling excluding the evidence was that Appellant was seized when Officer Long shot him, which is consistent with our determination above on when the seizure occurred. Therefore, we must now determine whether the district court erred in ruling that the excluded evidence was irrelevant to the issue of whether Officer Long's seizure of Appellant was reasonable. 22 Appellant first argues that the district court erred in excluding evidence that Officers Vanalmsick and Long created the need to use the force that was ultimately used. Appellant essentially argues that he should have been allowed to present evidence that the acts of Vanalmsick and Long preceding the seizure caused the circumstances which ultimately led to the need to use deadly force. However, Appellant's argument is foreclosed by Supreme Court case law. The Supreme Court has stated: 23 The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... With respect to a claim of excessive force, the [ ] standard of reasonableness at the moment applies: 'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation. 24 Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872 (emphasis added) (citations omitted). The Court's use of the phrases "at the moment" and "split-second judgment" are strong indicia that the reasonableness inquiry extends only to those facts known to the officer at the precise moment the officers effectuate the seizure. 25 Our holding in Cole confirms this analysis. There we stated that "[t]he Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Consequently, we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment." 993 F.2d at 1333 (citations omitted). We then held that "[i]n analyzing the reasonableness of [the officer's] decision to use deadly force, we examine the information that [the officer] possessed at the time of his decision" to use such force. Id. at 1333. This analysis has been adopted by numerous other circuits as well. See, e.g., Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir.) (quoting Cole in stating that " 'we scrutinize only the seizure itself, not the events leading to the seizure' "), cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.1992) ("pre-seizure conduct is not subject to Fourth Amendment scrutiny"); Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir.) (rejecting as irrelevant evidence that police officer manufactured the circumstances which gave rise to the seizure), cert. denied, --- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.1991) ("the officer's liability [is to] be determined exclusively upon an examination and weighing of the information [the officers] possessed immediately prior to and at the very moment [they] fired the fatal shot[s]"). Accordingly, evidence that Officers Vanalmsick and Long created the need to use force by their actions prior to the moment of seizure is irrelevant to the issues presented here, and therefore the district court did not abuse its discretion in excluding it.3 26 Appellant next argues that the district court erred in excluding evidence that the officers should have responded in a different manner, or that the officers should have used a lesser degree of force.4 However, the Fourth Amendment does not allow this type of "Monday morning quarterback" approach because it only requires that the seizure fall within a range of objective reasonableness. See Cole, 993 F.2d at 1334. In Cole we specifically stated that: 27 It could be argued, of course, that [the officer's] decision to use deadly force might not have been the most prudent course of action; other courses of action, such as another stationary roadblock might conceivably have been available. The Constitution, however, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision. 28 Id. (citing Graham, 490 U.S. at 396, 109 S.Ct. at 1871-72). Again, other circuits have reached the same or similar conclusions. See, e.g., Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) ("as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them"); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir.) (holding that "[t]he Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable"), cert. denied, --- U.S. ----, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994). 29 The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within a range of conduct which is objectively "reasonable" under the Fourth Amendment. Alternative measures which 20/20 hindsight reveal to be less intrusive (or more prudent), such as waiting for a supervisor or the SWAT team, are simply not relevant to the reasonableness inquiry. For clarity, the reasonableness inquiry in cases such as this where deadly force is used is simply whether "the officer [using the force] has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 1697, 85 L.Ed.2d 1 (1985). The district court committed no clear abuse of discretion in excluding this evidence because it focused on what could have been done rather than whether Officer Long had probable cause to believe Appellant posed a significant threat of harm to Officer Vanalmsick.5 C. Summary Judgment 30 Appellant's final argument is that the district court erroneously granted summary judgment to the Count II defendants on his failure to train claim. Appellant argues that the Count II defendants are liable for his injuries because they failed to show that they had a custom or policy in place at the time of the incident in this case which provided training for officers in the use of deadly force and/or handling mentally disturbed persons. It is the law in this circuit, however, that a municipality may not be held liable on a failure to train theory unless an underlying Constitutional violation is located. See Abbott, 30 F.3d at 998. Given our disposition above that the district court correctly granted Officer Vanalmsick judgment as a matter of law, coupled with the jury's determination that Officer Long committed no Fourth Amendment violation, there exists no underlying Constitutional injury upon which Appellant may premise his failure to train claim. The district court committed no error in granting summary judgment to the Count II defendants.6 III. CONCLUSION 31 For the reasons enumerated above, we affirm the judgment of the district court. 1 The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri 2 Appellant's argument that Hodari D. merely defines what constitutes an arrest as opposed to a seizure is undermined by the language of Hodari D. as well as our subsequent analysis of that case in Cole v. Bone, 993 F.2d 1328, 1332 (8th Cir.1993). In Hodari D., the Court stated that "[a]s this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been 'seized' within the meaning of the Fourth Amendment." 499 U.S. at 623, 111 S.Ct. at 1549. In Cole, we specifically held that Hodari D. defines what constitutes a seizure for Fourth Amendment purposes. 993 F.2d at 1332 3 Appellant's reliance upon Estate of Starks v. Enyart, 5 F.3d 230, 233-34 (7th Cir.1993), for the proposition that facts prior to seizure may be considered in the reasonableness determination is misplaced. First, Starks is contrary to our holding in Cole. Further, we believe that Starks runs counter to the spirit of Graham, wherein the Court indicated that only facts known to the officer immediately prior to the moment of seizure were to be factored into the "reasonableness" calculation 4 The defendants argue that this issue is unreviewable because the plaintiff did not apprise the court of the substance of this evidence at trial, either through an offer of proof or through the context of the questions asked. However, after carefully reviewing the record, we believe that the district court was cognizant of the nature and substance of the evidence plaintiff wished to present on this issue. (See Trial Tr. at 14-17). Therefore, we will address the merits of this argument 5 Appellant offers Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.1992), for the proposition that alternative courses of action are relevant in the reasonableness inquiry. However, that court stated that "we cannot say as a matter of law that Andaya acted reasonably when he then shot the unarmed Stancill four more times. At the time of the second shooting, it was far from clear that Andaya reasonably feared for his life." Id. (emphasis added). Thus, given the court's focus on the reasonableness of the seizure according to the circumstances existing at the time of the seizure, we read Hopkins to be consistent with our holding in this case. To the extent it is inconsistent with our law, we decline to follow it 6 Appellant's reliance on the Ninth Circuit's decision in Hopkins, 958 F.2d at 888, in support of his argument that the Count II defendants may be held liable regardless of our disposition of the claims against Officers Vanalmsick and Long is unpersuasive because it is contrary to our existing case law

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 484 WAL 2018 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : LINDA SHERRELL JONES, : : Petitioner : ORDER PER CURIAM AND NOW, this 30th day of April, 2019, the Petition for Allowance of Appeal is DENIED. 

362 F.Supp.2d 407 (2004) Thomas DENNEY, R. Thomas Weeks, Norman R. Kirisits, Kathryn M. Kirisits, TD Cody Investments, L.L.C., RTW Investments, L.L.C., NRK Syracuse Investments, L.L.C., DKW Partners, DKW Lockport Investors, Inc., Donald A. Destefano, Patricia J. Destefano, DD Tiffany Circle Investments L.L.C., Tiffany Circle Partners, Diamond Roofing Company, Inc., Jeff Blumin, JB Hilltop Investments L.L.C., Kyle Blumin, KB Hoag Lane Investments, L.L.C., L. Michael Blumin, MB St. Andrews Investments, L.L.C., Fayetteville Partners, and Laurel Hollow Investors, Inc., on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. JENKENS & GILCHRIST, a Texas Professional Corporation, Jenkens & Gilchrist, an Illinois Professional Corporation, BDO Seidman, L.L.P., Pasquale & Bowers, L.L.P., Cantley & Sedacca, L.L.P., Dermody, Burke, and Brown, Certified Public Accountants, PLLC, Paul M. Daugerdas, Paul Shanbrom, Edward Sedacca, Deutsche Bank AG, and Deutsche Bank Securities, Inc., d/b/a Deutsche Bank Alex Brown, A Division of Deutsche Bank Securities, Inc., Defendants. No. 03 Civ. 5460 SAS. United States District Court, S.D. New York. November 23, 2004. *408 *409 David R. Deary, W. Ralph Canada, Shore & Deary, L.L.P., Dallas, Texas, Jeffrey Daichman, Nahum Kainovsky, Kane Kessler, P.C., New York City, Joe R. Whatley, Jr., Othni Lathram, Whatley Drake, L.L.C., Birmingham, Alabama, Ernest Cory, Cory Watson Crowder & Degaris, P.C., Birmingham, Alabama, for Plaintiffs. Michael R. Young, I. Bennett Capers, Anamika Samanta, Wilkie Farr & Gallagher, L.L.P., New York City, Richard Hans, Cary Samowitz, Piper Rudnick, L.L.P., New York City, for Defendants BDO Seidman, L.L.P. and Paul Shanbrom. John Lindquist, Trial Attorney, United States Department of Justice, Tax Division, Washington, D.C., David S. Jones, Assistant United States Attorney, Tax and Bankruptcy Unit Chief, United States Attorney's Office, Southern District of New York, New York City, for the Government (An Interested Non-Party). OPINION AND ORDER SCHEINDLIN, District Judge. I. INTRODUCTION A. The Evidentiary Determination At issue here is a memorandum (the "Kerekes Memorandum") dated August 11, 2000, written by Michael Kerekes, a partner at BDO Seidman, L.L.P. ("BDO").[1] Plaintiffs, who obtained the memo from defendant Jenkens & Gilchrist ("Jenkens"), seek to make use of the Kerekes Memorandum in this action and in related actions across the country. BDO contends that the memo is privileged. Plaintiffs have moved for a determination of the privilege issue. For the following reasons, I find that any privilege that may have attached to the Kerekes Memorandum has been waived. B. Plaintiffs' Motion to Lift the Stay Plaintiffs seek to use the Kerekes Memorandum in support of their motion to lift the stay of this action pending the outcome of an appeal by certain defendants of this Court's decision to deny defendants' motion to compel arbitration of this dispute. Because I conclude that the Kerekes Memorandum is not privileged, I will address plaintiffs' motion to lift the stay. For the following reasons, plaintiffs' motion is granted. II. BACKGROUND In connection with the preliminary class settlement with Jenkens in this case, Jenkens produced documents, including the Kerekes Memorandum, to plaintiffs' counsel, who are also Lead Class Counsel.[2] Plaintiffs' counsel first attempted to use the Kerekes Memorandum in a case similar to the present action, Miron v. BDO Seidman, L.L.P., pending in the Eastern *410 District of Pennsylvania.[3] Plaintiffs' counsel filed a Motion for Leave to Supplement the Record with the Kerekes Memorandum. BDO, arguing that the memo was privileged, opposed the motion and cross-moved to compel plaintiffs' counsel to return the memo. The Honorable J. Curtis Joyner held, for the purposes of Miron only, that the memo was privileged.[4] Plaintiffs now ask this Court to find that the memo is not privileged. III. FINDINGS OF FACT Michael Kerekes, the author of the Kerekes Memorandum, is a partner at BDO, and, at the relevant time, was a member of BDO's Tax Solutions Opinions Committee.[5] The memo is addressed to David Dreier, a lawyer at White & Case, L.L.P., and to the other members of BDO's Tax Solutions Opinion Committee. The memo discusses the effective date of the then recently-issued IRS Notice 2000-44 and the effect of the notice on the requirement that BDO maintain lists of taxpayers participating in certain tax shelter transactions. How the Kerekes Memorandum came into the possession of Jenkens is the subject of dispute. Plaintiffs rely on the affidavit testimony of Donna Guerin, a Jenkens shareholder, to the effect that she was faxed a copy of the memo by Robert Greisman, a partner at BDO and a member of the Tax Solutions Opinion Committee.[6] Guerin did not retain a copy of the fax cover sheet.[7] Her copy of the memo does not have a phone number, and the pages are out of order.[8] The fax appears to have been sent on January 19, 2001, at 3:59 p.m. Guerin recalls discussing the memo and its contents with Greisman. According to Guerin, Greisman "wanted Jenkens to reconsider the text of opinion letters that it planned to send to those clients that Jenkens had advised who were also clients of BDO, to harmonize such text.... As part of the back-up for his argument, Greisman sent me the [Kerekes Memorandum]."[9] Guerin has also submitted a copy of another memorandum, sent by Greisman via fax on January 22, 2001, on the same matter.[10] This memorandum, authored by Greisman himself, was intended for BDO's clients and BDO does not claim that it is privileged. BDO denies that Greisman sent the Kerekes Memorandum to Guerin. BDO relies on Greisman's affidavit, in which he states that "I do not recall or believe I sent a copy of [the Kerekes Memorandum] to Ms. Guerin or anyone else at Jenkens & *411 Gilchrist."[11] Greisman recalls talking to Guerin about the list-keeping requirements of IRS Notice 2000-44, and admits sending the January 22 fax.[12] However, Greisman denies discussing the Kerekes Memorandum with Guerin.[13] BDO argues that the absence of a cover sheet and the disorganization of the pages in Guerin's copy of the memo suggests that its release was accidental. Finally, BDO claims that, on the day Guerin received the fax, "four months after its preparation... Mr. Greisman was in Los Angeles for a meeting and then on a plane home to Chicago."[14] However, BDO has not offered any alternative explanation of how Jenkens acquired the document. I find Guerin's testimony credible. Guerin's specific and unequivocal recollections as to the details of her conversations with Greisman are more persuasive than Greisman's failure to recall sending or discussing the memo. Given BDO's decision not to call Greisman as a witness — surely an indication that BDO has little faith in his ability to withstand cross-examination — I base my findings solely on his various affidavits. Those affidavits are not only vague, but contradictory. In his second affidavit, signed on September 12, 2004, and submitted to Judge Joyner in Miron, Greisman stated that he had no record or recollection of having sent her the January 22 fax;[15] now, in his third affidavit, submitted for the first time in this proceeding, Greisman admits sending it. Greisman's failure to recall sending the Kerekes Memorandum therefore carries little weight. Accordingly, I find that Greisman intentionally faxed the memo to Guerin (or caused it to be faxed to her), on January 19, 2001, "as part of the backup for [Greisman's] argument" with respect to Jenkens' opinion letters, as described above.[16] I also find that Greisman and Guerin discussed the memo and its contents around that time. IV. CONCLUSIONS OF LAW A. Is The Kerekes Memorandum Privileged? As a threshold matter, plaintiffs argue that the Kerekes Memorandum is not a privileged attorney-client communication. The attorney-client privilege "is one of the oldest recognized privileges for confidential communications."[17] The privilege, designed to "encourage full and frank communication between attorneys and their clients," shields from discovery advice given by the attorney as well as communications from the client to the attorney, made in pursuit of or in facilitation of the provision of legal services.[18] "The broad outlines of the attorney-client privilege are clear: `(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently *412 protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.'"[19] The party asserting the attorney-client privilege bears the burden of proof.[20] Two courts have already determined that the Kerekes Memorandum is a privileged attorney-client communication.[21] It is a close question, nonetheless. Although the memo is addressed to BDO's outside counsel, it asks no specific questions of him. The memo ends with a request for "comments or alternative readings," presumably from all recipients, but there is no indication that this generic request is directed at Dreier.[22] Kerekes indicates an intention to seek legal advice from outside counsel when a particular lawyer "returns a week from Monday," but states that "we will need to form our own conclusions on this issue ... during the coming week."[23] In addition, Kerekes states that "parts" of the memo "reflect discussions with David Dreier,"[24] but there is no way to determine from the face of the document which parts this applies to, or whether those discussions involved the provision of legal advice. Further factual development would be required to answer these questions. Because, as discussed below, I conclude that whatever privilege that might have once attached to the memo has been waived, there is no need to resolve the difficult question of whether the memo is a privileged attorney-client communication. B. Waiver by Disclosure to a Third Party It is well-established that the attorney-client privilege is waived if the holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the communication to a third party or stranger to the attorney-client relationship.[25] The party claiming the privilege has the burden of showing "that the communications between client and attorney were made in confidence and have been maintained in confidence."[26] It is therefore BDO's burden to show that its privilege was not waived through disclosure to Jenkens.[27] Plaintiffs argue that, assuming the Kerekes Memorandum was a privileged attorney-client communication, the privilege was waived when Greisman faxed it to Guerin. BDO argues in response that Greisman lacked the authority to waive the privilege on behalf of BDO, and that the disclosure of the memo to Jenkens was in any case not a waiver under the common interest doctrine. Neither of BDO's arguments is persuasive. i. Greisman's Authority to Waive the Privilege BDO contends that Greisman lacked the authority to waive BDO's privilege, even if *413 he intentionally disclosed the memo. BDO argues that Commodity Futures Trading Commission v. Weintraub[28] is controlling here, and that, under Weintraub, Greisman, who was a partner of BDO, but not an officer or director, was without authority to waive BDO's privilege. In Weintraub, the Supreme Court "face[d] the [ ] question of which corporate actors are empowered to waive the corporation's privilege."[29] The Court noted that: The administration of the attorney-client privilege in the case of corporations ... presents special problems. As an inanimate entity, a corporation must act through agents. A corporation cannot speak directly to its lawyers. Similarly, it cannot directly waive the privilege when disclosure is in its best interest. Each of these actions must necessarily be undertaken by individuals empowered to act on behalf of the corporation.[30] The Court went on to state that "the parties agree that the power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors."[31] Despite this statement, Weintraub did not expressly limit the power to waive the corporation's privilege to its officers and directors. Indeed, the holding of Weintraub was that a trustee for a bankrupt corporation also has the authority to waive the corporation's privilege, even with respect to pre-bankruptcy communications.[32] It is far from clear that Weintraub has any application to the present case. Greisman was a partner in BDO, not its employee, and "`[w]ell established concepts of partnership doctrine impute the knowledge and actions of one partner to all others.'"[33] Under basic principles of partnership law, Greisman's decision to disclose the memo to Guerin must be imputed to BDO. BDO has identified no authority questioning the power of a partner who is not an officer or director to waive a partnership's privilege.[34] In any case, even *414 assuming, arguendo, that BDO is correct in arguing that Weintraub applies in the partnership context, it is clear that Greisman had sufficient authority to waive BDO's privilege. Few cases have addressed the situation in which a single employee, officer or director of a corporation discloses privileged communications to a third party without the express authorization of the corporation's management.[35] The Eastern District of Virginia, in an opinion that has been widely cited in the secondary sources, held that the privilege may be waived not only by officers and directors, but also by lower-level employees, when, acting on behalf of the corporation, they disclose attorney-client communications to third parties — at least where the corporation authorized the employee's possession of the confidential communication, and the corporation took inadequate steps to prevent the employee disclosing it.[36] This holding is in line with the general rule that "[t]he voluntary disclosure of privileged communications to third parties ... by the client or the client's authorized agent destroys both the communications' confidentiality and the privilege that is premised upon it."[37] Courts have held, however, that even an officer or director may be without authority to waive the privilege when acting in his or her individual capacity, especially in the face of a board or management decision to the contrary.[38] The Second Circuit has held that when a corporate officer testifies in his individual capacity before a grand jury, he does not, generally speaking, have the power to "waive the corporation's privilege without that entity's consent."[39] There can be no question here that Greisman had the authority to waive BDO's privilege with regard to the Kerekes Memorandum. Greisman was a partner of BDO. He was a member of BDO's Tax Solutions Opinion Committee, authorized to represent BDO with respect to tax shelters. He was clearly authorized to possess the memo; as a member of the Committee, he was one of the memo's addressees, and in fact the memo credits *415 him with a role in its creation. In sending the memo to Guerin, Greisman was not acting in his individual capacity, but as a representative and agent of BDO, in pursuit of BDO's interests. For these reasons, I conclude that Greisman had the authority to waive BDO's privilege by disclosing the memo to Guerin. Moreover, the privilege would have been waived even if Greisman did not have the authority to disclose the memo. BDO authorized Greisman's possession of the memo, and authorized Greisman to discuss tax shelters and the list-keeping requirements with Guerin. BDO has made no showing that it took any precautions to prevent Greisman from disclosing the memo to third parties; in fact, the memo is not labelled as either privileged or confidential. ii. The Common Interest Doctrine BDO argues that, even if Greisman had the authority to waive BDO's privilege, any disclosure was protected by the common interest doctrine. This argument also is unavailing. "At its core, `the common interest doctrine applies when multiple persons are represented by the same attorney. In that situation, communications made to the shared attorney to establish a defense strategy remain privileged as to the rest of the world." '[40] However, the doctrine is not limited to such situations. "[T]he weight of authority is that the common interest doctrine does extend at least to situations `where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.' That is, the doctrine applies where parties are represented by separate counsel but engage in a common legal enterprise."[41] Like all privileges, the common interest rule is narrowly construed.[42] The party asserting the common interest rule bears the burden of showing that there was "an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy."[43] "A claim resting on the common interest rule requires a showing that `the communication in question was given in confidence and that the client reasonably understood it to be so given."'[44] "Some form of joint strategy is necessary to establish a [joint defense agreement], rather than merely the impression of one side."[45] BDO's argument fails in several respects. In order to invoke the common interest doctrine, it is not enough merely to show, as the doctrine's name might suggest, that BDO and Jenkens had interests in common. Nor is it sufficient to show that they shared concerns about potential litigation. BDO must show a "cooperative and common enterprise towards an identical legal strategy."[46] That is, BDO must show some agreement, whether formal or informal, written or unwritten, to *416 pursue a joint legal defense. To do so, BDO must show some meeting of the minds between the parties. In addition, BDO must show that the particular communication at issue was disclosed in connection with the joint legal defense. BDO has not met either burden. Indeed, BDO maintains that neither Greisman nor BDO intended to send the Kerekes Memorandum to Guerin at all. BDO cannot argue simultaneously that Greisman did not mean to send the memo, or that if Greisman did intentionally send the memo, BDO did not authorize him to do so, and that BDO sent the memo in connection with a consciously pursued legal strategy.[47] In the absence of any coherent allegation to the contrary, Guerin's explanation for BDO's disclosure of the memo — that BDO was attempting to persuade Jenkens to harmonize the language of its client letters with that of BDO's, rather than in furtherance of a joint defense — is persuasive.[48] Moreover, even if BDO could show that BDO believed that it was disclosing the memo in connection with a common legal defense strategy, there has been no showing that Jenkens believed that it was engaged in any such joint strategy. Guerin categorically denies any such understanding. The fact that Jenkens produced the memo to the government and to plaintiffs, without invoking the joint defense privilege as to the memo or any other document, is also persuasive evidence that Jenkens was not aware of any joint defense strategy. Finally, it would still be necessary for BDO to show that the communication was given in confidence, and that BDO made reasonable efforts to protect the privilege. There has been no such showing. Guerin does not recall that Greisman gave her any indication that the memo was privileged; and, as I have noted, nothing on the face of the memo indicates that it is privileged. iii. Even If the Disclosure Were Inadvertent, the Privilege Has Been Waived Even if I were to accept that the disclosure of the memo was inadvertent — if, say, Greisman or his secretary sent the memo to Guerin under the belief that it was a different document, or misdirected the memo to Guerin while intending to send it to someone else — there would still be no question that the privilege has been waived. I have already credited Guerin's testimony that she discussed the contents of the memo with Greisman in early 2001. Even if Greisman did not intend to send the memo to Guerin, or even if it was not Greisman who sent it, he knew when she discussed it with him that it was in her possession. This circuit's standard test for inadvertent disclosure was articulated in Lois Sportswear, USA, Inc. v. Levi Strauss & *417 Co.[49] In applying the Lois Sportswear test, courts look to the following factors: the reasonableness of the precautions to prevent inadvertent disclosure, the time taken to rectify the error, the scope of the discovery and the extent of the disclosure. There is, of course, an overreaching issue of fairness and the protection of an appropriate privilege which, of course, must be judged against the care or negligence with which the privilege is guarded.[50] BDO cannot show that it guarded the privilege with appropriate care. Greisman knew that the memo was in Guerin's possession at least as early as January 2001.[51] He made no effort to demand the memo's return, or even to inform Guerin that the memo was confidential and had been sent in error. Therefore, not only did BDO fail to demand the memo's return in 2001, when it first learned that it had come into Jenkens' possession; BDO still did not demand its return three years later, even when it knew that Jenkens was producing documents to the IRS and to plaintiffs. iv. Plaintiffs' Motion to Lift the Stay In an Order dated April 30, 2004, I denied defendants' motion to compel arbitration on the ground that the contracts containing the arbitration clauses were mutually fraudulent.[52] All defendants other than the Jenkens and Cantley defendants filed a notice of appeal, and moved to stay this action pending appeal. In an Order dated June 14, 2004 (the "June 14 Order"), I granted the motion to stay.[53] In that Order I held, as an additional ground for denying the motion to compel arbitration, that the arbitration clauses did not encompass the underlying dispute.[54] Plaintiffs now move to vacate the stay of this action pending appeal, on the basis of the newly-discovered Kerekes Memorandum. In the June 14 Order, I wrote that "[o]rdinarily, when a party appeals an order denying a motion to compel arbitration, the district court should stay the action pending appeal."[55] Just four months later, the Second Circuit has addressed this very issue. In Motorola Credit Corp. v. Uzan,[56] the Second Circuit held that a district court has jurisdiction to proceed with a case despite the pendency of a non-frivolous appeal from an order denying a motion to compel arbitration. The Court "explicitly adopt[ed] the Ninth Circuit's position that further district court proceedings in a case are not `involved in' the appeal of an order refusing arbitration, and that a district court therefore has jurisdiction to proceed with a case absent a stay from this Court."[57] However, "either the district court or the court of appeals may — but is not required to — stay the proceedings upon determining that the appeal *418 presents a substantial question."[58] "This is a proper subject for the exercise of discretion by the trial court."[59] The Kerekes Memorandum states that "[o]ur engagement letters have been structured not to make clear exactly what services we were providing in return for our fee."[60] This language clearly supports my conclusion that the contracts are mutually fraudulent, and that the arbitration clauses do not cover the disputes. While defendants' appeal still raises a substantial question, in light of the Kerekes Memorandum, the likelihood of success appears somewhat diminished. In view of this new evidence, and the Second Circuit's ruling in Motorola, I am no longer persuaded that a stay is necessary or desirable. To prolong the stay would impose substantial and unjustified further delays on what has already been a much-delayed litigation. The balance of the equities now tips in favor of lifting the stay. IV. CONCLUSION For the foregoing reasons, I find that any privilege that may once have attached to the Kerekes Memorandum has been waived by its disclosure to Jenkens. Plaintiffs' motion to lift the stay is granted. SO ORDERED. NOTES [1] The allegedly privileged memorandum was submitted to the Court by plaintiffs as an exhibit to their motion to lift the stay. See Kerekes Memorandum, Ex. A to Plaintiffs' Notice of Motion to Lift Stay Served October 21, 2004, at 5. [2] Jenkens has also produced the memo to the Government, in response to IRS summonses issued in the Northern District of Illinois. See United States v. Jenkens & Gilchrist, P.C., No. 03 C 5693 (N.D.Ill.). [3] Miron v. BDO Seidman, L.L.P., No. 04 Civ. 968, 2004 U.S.Dist. LEXIS 22101 (E.D.Pa. Oct. 20, 2004). [4] See id. In a separate proceeding, in which the IRS is seeking to enforce summonses against BDO, Judge James Holderman of the Northern District of Illinois permitted BDO to withhold the memo as privileged. See United States v. BDO Seidman, L.L.P., No. 02 C 4482, 2004 WL 1470034, *3 (N.D.Ill. June 29, 2004). It appears that Judge Holderman was not informed that BDO had disclosed the Kerekes Memorandum to Jenkens, and that through Jenkens the memo had already been produced to the government and to plaintiffs' counsel. [5] See Affidavit of Michael Kerekes, Ex. C to Affidavit of Michael R. Young, defendant's counsel ("Young Aff."). [6] See Supplemental Affidavit of Donna Guerin ("Supp. Guerin. Aff."), by Letter to the Court dated November 17, 2004. [7] See Affidavit of Donna Guerin ("Guerin Aff."), Ex. 3 to Affidavit of W. Ralph Canada, plaintiffs' counsel, ¶ 5. [8] See id. [9] Supp. Guerin Aff. ¶ 5. [10] See January 22, 2001 Fax, Ex. 1-B to Guerin Aff. [11] Third Affidavit of Robert Greisman, attached to BDO's Memorandum of Law in Response to Plaintiffs' Motion for an Evidentiary Determination ("BDO Mem."), ¶ 2. [12] See id. ¶ 3. [13] See id. ¶ 4. [14] BDO Mem. at 5. [15] See Second Affidavit of Robert Greisman, Ex. B to Young Aff., ¶ 11. [16] Supp. Guerin Aff. ¶ 5. [17] Swidler Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). [18] Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). [19] United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997). [20] See In re Grand Jury Subpoena Dated Dec. 19, 1978, 599 F.2d 504, 510 (2d Cir.1979). [21] See BDO Seidman, 2004 WL 1470034 at *3; Miron, 2004 U.S. Dist. LEXIS 22101 at *2. [22] Kerekes Memorandum at 7. [23] Id. at 5. [24] Id. at 1. [25] See In re Grand Jury Proceedings, No. M-11-189, 2001 WL 1167497, at *7 (S.D.N.Y. Oct. 3, 2001). [26] In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.1973) (emphasis added). [27] See id. See also International Bhd. of Teamsters, 119 F.3d at 214 (listing elements of privilege). [28] 471 U.S. 343, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985). [29] Id. at 348, 105 S.Ct. 1986. [30] Id. [31] Id. [32] See id. [33] NLRB v. Broad Street Hospital & Medical Center, 452 F.2d 302, 304 n. 1 (3d Cir.1971) (quoting Friend v. H.A. Friend & Co., 416 F.2d 526, 533 (9th Cir.1969)). See also Mallis v. Bankers Trust Co., 717 F.2d 683, 689 n. 9 (2d Cir.1983) ("It is a basic tenet of the law of agency that the knowledge of an agent, or for that matter a partner or joint venturer, is imputed to the principal."). [34] Shaffer v. OhioHealth Corp., No. 3AP-102, 2004 WL 35725 (Ohio Ct.App. Jan. 8, 2004), cited by BDO for the proposition that Weintraub applies to partnerships, in fact dealt with an alleged waiver by a corporate employee, not a partner. Shaffer merely cites Weintraub for the proposition that "where a corporation, partnership, or other collective entity is the client, the attorney-client privilege belongs to the company and not to its employees outside of their employment capacity." Id. at *4. Other courts have extended Weintraub's narrow holding to the partnership context, finding that a trustee for a bankrupt partnership has the authority to waive the partnership's privilege. See, e.g., United States v. Campbell, 73 F.3d 44 (5th Cir.1996) (holding that "there is no logical reason to distinguish partnerships from corporations or other legal entities in determining the client a lawyer represents" and that "the rules regarding the attorney-client privilege of corporations are no less instructive when applied to a partnership."); Meoli v. Am. Med. Serv. of San Diego, 287 B.R. 808 (S.D.Cal. Jan.9, 2003) (same). These general propositions, however, are not controlling of the question at issue here. [35] See Charles A. Wright & Arthur R. Miller, 24 Fed. Prac. & Proc. Evid. § 5487 (2004) (noting that "it is surprising how infrequently [the issue of which employees may waive a corporation's privilege] has been given attention in the case law."). [36] See Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693 (E.D.Va.1987) (holding that salesman's disclosure of allegedly privileged memorandum during sales negotiations on behalf of corporation waived corporation's privilege). See also Moore v. Comm'n of Internal Revenue, 2004 TNT 221-14 (T.C., Nov. 15, 2004) (holding that limited liability company's privilege was waived by representative's disclosure of documents, with or without explicit authorization; and, alternatively, that privilege was waived when documents were disclosed by employee even if she lacked the authority to make the disclosure, where employee had "ready access" to documents and management took no precautions to prevent her from disclosing them). [37] Paul R. Rice, Attorney-Client Privilege in the United States, § 9:27 (2d ed.1999) (emphasis added). [38] See, e.g., Milroy v. Hanson, 875 F.Supp. 646 (D.Neb.1995) (permitting corporation to assert privilege against director, in director's individual lawsuit against the corporation, and denying director's authority to waive privilege on behalf of corporation). [39] United States v. John Doe (In re Grand Jury Proceedings), 219 F.3d 175, 185 (2d Cir.2000). The Second Circuit refused to adopt a per se rule as to whether the lone officer's waiver could or could not be imputed to the corporation. Instead, the court set out a "fairness" analysis, focusing in particular on whether the officer's disclosure of privileged material was "a deliberate attempt on the part of the corporation to exculpate itself, as opposed to [the officer's] effort to exculpate himself personally." See id. at 185-88. [40] Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 446 (S.D.N.Y.1995). [41] Id. at 447 (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)). [42] See United States v. Weissman, 195 F.3d 96, 100 (2d Cir.1999) ("privileges should be narrowly construed and expansions cautiously extended"). [43] Lugosch v. Congel, 219 F.R.D. 220, 237 (N.D.N.Y.2003). [44] Weissman, 195 F.3d at 99 (quoting Schwimmer, 892 F.2d at 244). [45] Id. at 100. [46] Lugosch, 219 F.R.D. at 237. [47] BDO's argument resembles what Freud dubbed "kettle logic," the counter-logic of jokes, dreams and the unconscious: A borrowed a copper kettle from B and after he had returned it was sued by B because the kettle now had a big hole in it which made it unusable. His defense was: "First, I never borrowed a kettle from B at all; secondly, the kettle had a hole in it already when I got it from him; and thirdly, I gave him back the kettle undamaged." Sigmund Freud, The Joke and Its Relation to the Unconscious, 51 (Adam Phillips ed., Joyce Crick trans., Penguin Books 2003) (1905). [48] In Miron, Judge Joyner held that, assuming Greisman sent the memo to Guerin, the disclosure was protected under the common interest rule. Judge Joyner did not have the benefit of Guerin's Supplemental Affidavit, in which, for the first time, she describes the non-litigation related purpose of the disclosure. [49] 104 F.R.D. 103 (S.D.N.Y.1985). [50] Id. at 105. [51] Greisman's knowledge of the disclosure, as noted above, must be imputed to the partnership. [52] See Denney v. Jenkens & Gilchrist, 340 F.Supp.2d 338, 346-47 (S.D.N.Y.2004). [53] See Denney v. Jenkens & Gilchrist, 340 F.Supp.2d 348, 353 (S.D.N.Y.2004). [54] See id. at 351-53. [55] See id. at 349-50 (citing In re Winimo Realty Corp., 270 B.R. 99, 105 (S.D.N.Y.2001); Satcom Int'l Group PLC v. Orbcomm Int'l Partners, L.P., 55 F.Supp.2d 231, 236 (S.D.N.Y.1999), and Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d 504, 505 (7th Cir.1997)). [56] 388 F.3d 39 (2d Cir.2004). [57] Id. (citing Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990)). [58] Id. (citing Britton, 916 F.2d at 1412 & n. 8). [59] Britton, 916 F.2d at 1412. [60] Kerekes Memorandum at 5.

987 So.2d 534 (2007) EX PARTE SMITH WRECKER SERVICE, INC., and Michael Frey (In re Horace Jackson and Nikko Bizzell v. Smith Wrecker Service, Inc., and Michael Frey). 1061696. Supreme Court of Alabama. December 21, 2007. *535 Henry C. Barnett, Jr., and Todd H. Cox of Capell & Howard, P.C., Montgomery, for petitioners. Jackson B. Harrison, Montgomery, for respondents. LYONS, Justice. Smith Wrecker Service, Inc., and Michael Frey (hereinafter collectively referred to as "Smith Wrecker"), the defendants in an action pending in the Wilcox Circuit Court, petition this Court for a writ of mandamus directing the Wilcox Circuit Court to vacate its order denying their motion to transfer the action to Elmore County and to enter an order granting the motion, because, Smith Wrecker argues, venue in Wilcox County is improper. In the alternative, Smith Wrecker asks this Court to enter an order transferring this case to the Elmore Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute. We grant the petition on the basis that venue is improper in Wilcox County and issue the writ. I. Factual Background This action arises from the alleged wrongful acts and omissions by Smith Wrecker in the sale of a vehicle to an automobile dealer who then resold the vehicle to Horace Jackson and Nikko[1] Bizzell. Michael Frey, a resident of Elmore County, owns Smith Wrecker Service, Inc., a towing-service company whose sole office is in Elmore County. On or about May 17, 2006, the Elmore County Sheriff's Department asked Smith Wrecker Service, Inc., to tow an abandoned vehicle from the intersection of Highway 14 and Highway 111 in Elmore County to the lot operated by Smith Wrecker Service, Inc. Frey towed the vehicle to the lot, which is located in Elmore County. In an effort to gain information about the vehicle, Smith Wrecker Service, Inc., submitted an abandoned-motor-vehicle record request to the State Department of Revenue. The Department of Revenue sent Smith Wrecker Service, Inc., a response, which certified that the Department of Revenue files reflected no record for the abandoned vehicle. Smith Wrecker Service, Inc., later auctioned the vehicle at its place of business in Elmore County. A local automobile dealer purchased the vehicle at the auction and then resold the vehicle to Horace Jackson and Nikko Bizzell, residents of Elmore County.[2] A policeman for the City of Pine Hill later pulled over the vehicle, which Bizzell was driving, in Wilcox County. A routine computer search of the vehicle-identification number indicated that the vehicle was stolen. The policeman then arrested Bizzell on a charge of possessing stolen property. Bizzell was held in the Pine Hill city jail in Wilcox County for two days. Jackson and Bizzell brought an action against Smith Wrecker in Wilcox County, alleging negligence, fraud, and deceptive *536 trade practices by Smith Wrecker based on Smith Wrecker's failure to ascertain before selling the vehicle to a third party that it was a stolen vehicle. Smith Wrecker moved to dismiss the claims pursuant to Rules 12(b)(7) and 19(a), Ala. R. Civ. P., for failure to join as an indispensable party the automobile dealer who sold the vehicle to Jackson and Bizzell. In the event the court did not dismiss the claims, Smith Wrecker also moved to transfer the case to Elmore County pursuant to Rules 12(b)(3) and 82(d)(1), Ala. R. Civ. P., arguing that venue is improper in Wilcox County. In the alternative, Smith Wrecker argued that the convenience of the parties and witnesses and the furtherance of justice require transfer of the action to Elmore County pursuant to § 6-3-21.2, Ala.Code 1975, the forum non conveniens statute. After a hearing on Smith Wrecker's motion to dismiss or, in the alternative, to transfer the case, the trial court denied the motion. Smith Wrecker timely petitioned this Court for a writ of mandamus. II. Standard of Review "In Ex parte National Security Insurance Co., 727 So.2d 788, 789 (Ala. 1998), this Court described the manner of obtaining review of the denial of a motion for a change of venue in a civil action and the scope of this Court's review: "`The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995)."' Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 344-45 (Ala.2006). III. Analysis Smith Wrecker's contention that Wilcox County is an improper venue cannot be sustained unless venue in Wilcox County is improper as to both Frey and Smith Wrecker Service, Inc. If venue in Wilcox County is proper as to either one of them, then, under the concept of pendent venue, venue is proper as to both of them. See Rule 82(c), Ala. R. Civ. P. ("Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought."). We address the issues in light of § 6-3-2, Ala.Code 1975 ("Venue of actions — Against individuals"), § 6-3-7, Ala. Code 1975 ("Venue of actions — Against foreign and domestic corporations"), and § 8-19-10(c), Ala.Code 1975 (venue of actions alleging deceptive trade practices). A. § 6-3-2, Ala.Code 1975 ("Venue of Actions — Against Individuals") Smith Wrecker argues that venue in Wilcox County is improper as to Frey under § 6-3-2(a), Ala.Code 1975. Section 6-3-2(a) establishes venue for a civil action against an individual: "(a) In proceedings of a legal nature against individuals: *537 "(1) All actions for the recovery of land, of the possession thereof or for a trespass thereto must be commenced in the county where the land or a material part thereof lies. "(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence. "(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred." We agree with Smith Wrecker's contention that, so far as the claims against Frey are concerned, only § 6-3-2(a)(3) applies, because negligence and fraud claims are classified as personal actions when determining proper venue. See Ex parte Mitchell, 690 So.2d 356, 358 (Ala.1997). Smith Wrecker argues that under § 6-3-2(a)(3) venue in Wilcox County is improper because Frey is a resident of Elmore County and all the alleged acts and omissions complained of in the negligence, fraud, and deceptive-trade-practices claims against Frey occurred in Elmore County. Smith Wrecker asserts that Frey had no contact with Wilcox County and that his only act related to Jackson and Bizzell's claims was towing the abandoned vehicle from the shoulder of a highway in Elmore County to the lot operated by Smith Wrecker Service, Inc., in Elmore County. Jackson and Bizzell argue that venue is proper as to Frey in Wilcox County under § 6-3-2(a)(3) because, they say, Frey's alleged wrongful acts and omissions caused "bodily injury" to Bizzell in Wilcox County.[3] Jackson and Bizzell rely on Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 693 (Ala.2005). They argue that this Court in Ex parte Haynes Downard "interpreted the wrongful `act or omission' of the Ala.Code § 6-3-2(a)(3)" and then, in a quote attributed to Ex parte Haynes Downard, recite: "`In personal injury actions where the defendant's wrongful act or omission causes bodily harm to the plaintiff, the injury occurs in the county where the bodily harm occurs."' Response to petition, p. 8 (quoting Ex parte Haynes Downard, 924 So.2d at 693). However, in Ex parte Haynes Downard this Court did not consider § 6-3-2(a)(3). The quotation in Jackson and Bizzell's response to the petition dealing with venue in personal-injury actions and attributed to Ex parte Haynes Downard appears in Ex parte Haynes Downard only as a portion of a longer quotation from Ex parte Graham, 634 So.2d 994, 997 (Ala.1993). In Ex parte Graham, this Court dealt with the precursor statute to § 6-3-7, Ala.Code 1975, which governs venue in actions against corporations. It provided: "[A]ll actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence." (Emphasis added.) Suffice it to say that Jackson and Bizzell's argument is based upon what can charitably be described as at least an inaccurate *538 representation of this Court's holding in Ex parte Haynes Downard. The complaint does not charge Smith Wrecker with participating in Bizzell's arrest and the seizure of the vehicle in Wilcox County; those acts are described only as consequences of the acts or omissions that took place in Elmore County. Therefore, none of the alleged acts or omissions of Smith Wrecker occurred in Wilcox County, and venue is improper in Wilcox County as to Frey under § 6-3-2(a)(3). See Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002) ("Insofar as Green [an individual as to whom venue was governed by § 6-3-2(a)(3)] is concerned, it would be illogical and inconsistent to conclude that his `act or omission' occurred anywhere other than in Marion County, from where he mailed the letter made the basis of this action. Hugghins's alleged reliance on that letter in Covington County is not the `act or omission' of Green."). B. § 6-3-7, Ala.Code 1975 ("Venue of Actions — Against Foreign and Domestic Corporations") Smith Wrecker argues that venue in Wilcox County is improper as to Smith Wrecker Service, Inc., under § 6-3-7(a), Ala.Code 1975. Section 6-3-7(a) sets forth venue for a civil action against corporations: "(a) All civil actions against corporations may be brought in any of the following counties: "(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or "(2) In the county of the corporation's principal office in this state; or "(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or "(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action." Smith Wrecker argues that Wilcox County does not fall within any of these four categories because, it says, (1) the sale of the vehicle in Elmore County gave rise to all of Jackson and Bizzell's claims, (2) the sole office of Smith Wrecker Service, Inc., is in Elmore County, (3) Jackson and Bizzell are Elmore County residents, and (4) Smith Wrecker Service, Inc., does not conduct, and has not conducted, business in Wilcox County. In Ex parte Suzuki Mobile, Inc., 940 So.2d 1007, 1009-10 (Ala.2006), this Court noted that under § 6-3-7, "the inquiry is not the location of the injury, but the location of the events or omissions giving rise to the claim." As we explained in Ex parte Suzuki: "Frennea's argument focuses on the fact that his son's injuries occurred in Choctaw County. Under § 6-3-7, as it read before an amendment effective July 24, 1999, that fact would have been dispositive.2 Now, however, the inquiry is not the location of the injury, but the location of the events or omissions giving rise to the claim. Applying our holding in Ex parte Pikeville Country Club, 844 So.2d 1186 (Ala.2002), to the facts of this case, we conclude that the events or omissions giving rise to Frennea's claim did not occur in Choctaw County, as is necessary for venue to be proper there under § 6-3-7(a)(1). *539 2 "Before the 1999 amendment, the relevant part of the statute stated that `all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred...."' Id. Smith Wrecker asserts that Smith Wrecker Service, Inc., did not engage in any of the acts or omissions in Wilcox County that gave rise to Jackson and Bizzell's claims and that Bizzell's alleged injuries in Wilcox County are not material to a determination of venue. Jackson and Bizzell do not rebut Smith Wrecker's assertion that venue in Wilcox County is improper under § 6-3-7(a). Instead, Jackson and Bizzell argue that venue is proper in Wilcox County under § 6-3-7(c)[4] to all of their claims because venue is proper in Wilcox County to Bizzell's claims of bodily injury. However, as we determined above, venue in Wilcox County is improper as to Bizzell's claims; therefore, we do not reach the effect of bodily injury. We conclude that venue in Wilcox County is improper under § 6-3-7(a) because the event giving rise to Jackson and Bizzell's claims — the sale of the vehicle — occurred in Elmore County, and it is undisputed that Smith Wrecker has conducted no business in Wilcox County. C. § 8-19-10(c), Ala.Code 1975 (Venue of Actions Alleging Deceptive Trade Practices) Smith Wrecker also asserts that Elmore County is the only proper venue for Jackson and Bizzell's deceptive-trade-practices claim because it conducts business only in and around Elmore County. Section 8-19-10(c), Ala.Code 1975, provides that a deceptive-trade-practices claim "may be brought in the circuit court for the county in which the defendant resides, has his/her principal place of business, is doing business, or committed the unlawful act or practice." Because it is undisputed that Michael Frey is a resident of Elmore County, the sole office of Smith Wrecker Service, Inc., is in Elmore County, Smith Wrecker Service, Inc., has not conducted business in Wilcox County, and that any act by Smith Wrecker occurred in Elmore County, we conclude that Wilcox County is an improper venue for Jackson and Bizzell's deceptive-trade-practices claim. IV. Conclusion Because Jackson and Bizzell filed the action in Wilcox County, an improper venue, *540 and because Elmore County, the venue proposed by Smith Wrecker, is a proper venue, we conclude that Smith Wrecker has demonstrated a clear legal right to the requested relief. Because of our holding on the venue issue, we need not reach the question whether Smith Wrecker was also entitled to the transfer on the basis of forum non conviens. We grant Smith Wrecker's petition and issue the writ of mandamus, directing the trial court to vacate its order denying Smith Wrecker's motion to transfer this case from the Wilcox Circuit Court to the Elmore Circuit Court and to enter an order transferring the case to the Elmore Circuit Court. PETITION GRANTED; WRIT ISSUED. COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur. NOTES [1] The plaintiffs styled their complaint with the name "Niko" Bizzell, but the body of their complaint spells the name "Nikko" Bizzell. Materials filed in the Supreme Court carry both spellings. [2] From the materials filed in this Court, it is unclear who purchased the vehicle. The complaint alleges that Jackson purchased the vehicle, while the facts as stated in the petition for the writ of mandamus indicate that Jackson and Bizzell purchased the vehicle. Jackson and Bizzell's response to the petition for the writ of mandamus states that they agree with the assertion of the material facts in the petition. [3] Jackson and Bizzell did not allege in their complaint that Bizzell had suffered any "bodily injury" while incarcerated in Wilcox County. However, in their reply to Smith Wrecker's motion to transfer, they assert that "injury from false imprisonment is an injury to the person and does constitute bodily injury" and that venue in Wilcox County is therefore proper. [4] Section 6-3-7(c) provides: "Anything to the contrary in Rule 82(c) of the Alabama Rules of Civil Procedure notwithstanding, in any action against a corporation, venue must be proper as to each and every named plaintiff joined in the action, unless the plaintiffs shall establish that they assert any right to relief jointly, severally, or arising out of the same transaction or occurrence and that the existence of a substantial number of questions of law or material fact common to all those persons not only will arise in the action, but also: (1) that such questions will predominate over individualized questions pertaining to each plaintiff; (2) the action can be maintained more efficiently and economically for all parties than if prosecuted separately; and (3) that the interest of justice supports the joinder of the parties as plaintiffs in one action. If venue is improper for any plaintiff joined in the action, then the claim of any such plaintiff shall be severed and transferred to a court where venue is proper. In the event severance and transfer is mandated and venue is appropriate in more than one court, a defendant sued alone or multiple defendants, by unanimous agreement, shall have the right to select such other court to which the action shall be transferred and, where there are multiple defendants who are unable to agree upon a transferee court, the court in which the action was originally filed may transfer the action to any such other court. Transfer of the action and notice thereof shall be in accord with Section 6-3-22."

206 Cal.App.3d 184 (1988) 253 Cal. Rptr. 484 THE PEOPLE, Plaintiff and Respondent, v. GUY THOMAS STRINGHAM, Defendant and Appellant. Docket No. A039020. Court of Appeals of California, First District, Division Four. November 29, 1988. *188 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Martin S. Kaye and Laurence K. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[*]] OPINION POCHE, Acting P.J. Defendant Guy Thomas Stringham appeals from a judgment of conviction entered after a jury returned verdicts finding him guilty of second degree murder, kidnapping, and felony false imprisonment (Pen. Code, §§ 187, 207, 236).[1] The primary question presented is this: Can a plea bargain which has been accepted by one judge be rejected by another judge following the commencement of sentencing proceedings at which a murder victim's next of kin appears and denounces the negotiated disposition? Our answer is Yes. PROCEDURE AND EVIDENCE The centerpiece of the amended information filed against defendant was the charge that he had murdered Paul Snipes. This count included special circumstance allegations that the murder had occurred while defendant was engaged in kidnapping Snipes, and that the murder involved the infliction of torture (§ 190.2, subds. (a)(17)(ii), (a)(18)). The murder count also included allegations that defendant had been armed with a firearm (§ 12022, subd. (a)), and that he had furnished a firearm "to another for the purpose of aiding, abetting and enabling that person to commit a felony" within the meaning of section 12022.4. Defendant was further charged with additional crimes against Snipes, specifically; two counts of assault with a deadly weapon or by means of *189 force likely to produce great bodily injury (§ 245, subd. (a)(1)); kidnapping; false imprisonment effected by violence, menace, fraud, and deceit; and separate counts of conspiring to kidnap Snipes and to falsely imprison him (§ 182). All of the offenses alleged in the information occurred on or about August 21, 1986. On December 12, 1986, the prosecutor informed Judge Petersen that "we have reached a resolution in this case." The terms of the agreement were that the prosecutor would amend the murder charge to voluntary manslaughter. Defendant would enter pleas of guilty to voluntary manslaughter and kidnapping. In addition, defendant would admit the allegation that he had furnished a firearm to another. The remaining charges and enhancement allegations would be dismissed. In conformity with section 1192.7, and in response to a question from Judge Petersen, the prosecutor stated that the basis for concurrence to the plea was his uncertainty whether he could produce the testimony of a pair of material witnesses.[2] Judge Petersen advised defendant that "acceptance [of the proposed disposition], of course, is conditional and if, after I read the probation report, ... I desire to not accept the plea, it will be so stated and you will be allowed to ... withdraw your guilty plea and the matter will then go to trial on all the charges now pending against you.... [¶] ... [U]pon the Court's acceptance, if I do accept this negotiated plea, the other charges will be dismissed against you." After being admonished of the rights he would be surrendering, defendant entered guilty pleas in accordance with the terms of the negotiated disposition. January 23, 1987, was the date set for receipt of a probation report[3] and for sentencing. On December 18, 1986, Judge Petersen told the parties that he was recusing himself and requesting that "the Judicial Council ... assign an outside Judge to handle all future proceedings in this case."[4] Judge Petersen *190 was thereafter replaced by Judge Buffington from Humboldt County. The following events occurred in 1987: When proceedings were resumed before Judge Buffington on January 23d, he stated that he had received and read the probation report. He then inquired "Is there any legal cause why sentence should not be pronounced?" After responding "No legal cause," defendant's counsel addressed himself to an appropriate sentence in light of the probation report. During the course of his presentation counsel's remarks apparently became too factually specific for the court, which interrupted: "I've read the probation report. I've read the mitigation [statement], but what I need to do is read [more about] this [case]. You're going to be splitting hairs over whether or not one of the facts or another fact applies, and I can't make any judgment without really reading the preliminary examination. That's going to take some period of time.... [¶] Tell me what you want me to consider and tell how long you think it's going to take. I think it's unfair to the People, I think it's unfair to the defendant, I think it's unfair to Mr. Snipes' family, and certainly unfair to me, to expect me to do a just sentencing on no knowledge of what's happened." After determining that Snipes's parents were present, Judge Buffington inquired of them "I take it that you and your family are saying that I should not accept this plea?" Mr. Snipes answered affirmatively, and said that he had been told by a probation officer "I had the right to make a statement here." Replying that "You will have a right," Judge Buffington was asked by Mr. Snipes if "the decision is to be made today whether to accept this plea today or not. Is that correct so far?" Judge Buffington responded "Yes, sir, basically," and then permitted Mr. Snipes to read a statement in which Mr. Snipes passionately excoriated the plea bargain and the "remiss attitude on the part of the prosecution." Mr. Snipes concluded his statement with these remarks: "When you consider the lack of punishment already mentioned[5] and the apparent lack of professionalism on the part of the prosecution, I hope you'll agree that justice has not been served in this case and deal with these to reverse that trend. Guy Stringham is a murderer and should be charged accordingly." Judge Buffington gave Mr. Snipes permission to "write a letter to the Court" with any additional comments. "I'll consider the letter. I'll consider your comments in making the decision that I have to *191 make." After conferring with counsel for both sides regarding the materials he could examine to familiarize himself with the case, Judge Buffington continued matters until January 30th. On January 30th the court conducted a hearing at which the parties earnestly requested acceptance of the plea bargain. The prosecutor outlined several perceived obstacles to convicting defendant for murder, one of the difficulties being the likely unavailability of Detective Williams. (See fn. 2 and accompanying text, ante.) Judge Buffington, however, was unsatisfied that Williams could not be produced, and his review of the preliminary examination transcript and the other materials designated by the parties for his perusal persuaded him that "there's a case to be tried here." He therefore rejected the bargain and set a March trial date. The evidence received at the trial need not be summarized in exhaustive detail because defendant does not make any claim that it is insufficient to support his convictions. The pertinent circumstances shown by the trial record can be reduced to the following: The victim, Paul Snipes, went to Cheryl Horn's house trailer on the evening of August 21, 1986, in response to a telephone request from Ms. Horn. While Ms. Horn was awaiting Paul's arrival, Mitch Farrell came to her house and told her that he wanted to talk to Paul. When Paul entered the house, Farrell hit and kicked him, before and after he tied Paul's hands behind his back. The two men left at approximately 10:30 p.m. When they returned about an hour later, Paul displayed signs of additional beatings. In Ms. Horn's words, "he was messed up, you couldn't tell it was the same person when he left." Farrell continued to beat and kick Paul. James Balfour came to the trailer shortly thereafter. According to Ms. Horn, Farrell and Balfour were looking for defendant. Balfour telephoned defendant, who came to the trailer. Before the four men departed at about 2 a.m., Paul had "his fingers bent back" by Farrell, who also brandished a knife (brought by defendant) and "threatened to cut his balls off." The beating and kicking continued, mostly by Farrell, but defendant did kick Paul at least once. Defendant, Farrell, and Balfour called Paul names ("punk," "liar," "thief") and Farrell accused him of causing the death of a friend; defendant in particular "wanted to know about who ripped him off." After Farrell stated "We're going to go take him and finish him off," defendant replied "Not so loud, he might hear you." Paul asked the others "`Just quit beating me.... Just go finish me off.'" After the four men left the trailer, Farrell returned approximately 20 minutes later. The following day Farrell told Ms. Horn that he had shot Paul. Richard Williams, previously employed as a detective with the Del Norte County Sheriff's Department, testified that he interviewed defendant *192 concerning the Snipes homicide on September 4, 1986. Defendant recounted that "he got ... wound up with everything that was going on and he got himself involved, that he did kick Mr. Snipes, he did threaten Mr. Snipes with the knife," and he did talk about shooting Paul. Upon leaving Ms. Horn's trailer, defendant, Farrell, and Balfour drove Paul away with the aim of "thumping him further." Defendant had a shotgun, which he gave to Farrell, knowing it was about 80 percent sure that Farrell would use it to kill Paul. Detective Williams further testified that Paul's body was discovered in the culvert of a freeway embankment. The physician who performed the autopsy on the body testified that he observed extensive "blunt trauma" about the head and chest, and a shotgun wound to the neck which was the cause of death. Defendant testified that he went to Ms. Horn's trailer to see if Paul could assist him in finding a man named Larry Moriarity. He knew Balfour only vaguely, and did not know Farrell or Ms. Horn at all. Defendant admitted that, before leaving the trailer, he did kick Paul once; that it was his knife with which Farrell threatened Paul; and that, brandishing a shotgun shell, he (defendant) did tell Paul "If I was going to kill you, I would start with your foot and work my way up" even though "I was just blowing off steam." Once they left the trailer, Paul, who had apparently agreed to help locate Moriarity, was put in defendant's truck and driven away with defendant and Farrell. Defendant thought "we were heading out to the Redwood Motel where Larry Moriarity was supposed to be." Before they reached this destination,[6] Farrell had the truck stopped along a heavily wooded section of the freeway because "he'd talk to him [Paul] some more." Defendant thought Farrell asked "`Let me see the gun,' because he wanted to use it to get at the truth at Paul." Farrell and Paul went "down the hill," following which defendant heard a gunshot. He saw Farrell striking Paul (who was "making some kind of noise") with the butt of the shotgun. Thinking "Get rid of the evidence," defendant collected the shotgun and looked for an ejected shotgun shell while Farrell dragged the body to the culvert. Defendant and Farrell then returned to the truck and left the scene. Defendant testified that his statement to Detective Williams was truthful but not entirely accurate, primarily in that he had no inkling *193 Farrell was going to use defendant's shotgun to kill Paul; the "eighty percent hunch" he mentioned to Williams was "using a lot of hindsight." The jury found defendant guilty of second degree murder ("Killing Resulting from an unlawful Act dangerous to life"),[7] kidnapping, and false imprisonment, as well as finding true the allegation that he had furnished a firearm "to another with the purpose of aiding or abetting a felony." Defendant was acquitted of the assault charges. The conspiracy charges were apparently dismissed on the prosecutor's motion before the case was submitted to the jury. Defendant was sentenced as follows: eight years for the kidnapping; three years for the false imprisonment, this term permanently stayed pursuant to section 654 upon completion of the kidnapping term; a term of fifteen years to life for the murder, this term to commence upon completion of the kidnapping term; and an additional two years for the firearm enhancement, this term also being permanently stayed pursuant to section 654 upon completion of the murder term. This timely appeal followed. REVIEW I Defendant presents a variety of arguments in support of his contention that the plea bargain proposed to Judge Petersen should be specifically enforced because it was erroneously rejected by Judge Buffington. We discuss each separately. (A) Defendant initially contends that the bargain must be specifically enforced because it was in fact accepted by Judge Buffington. Defendant submits that the court's authority to reject the plea lapsed and the court could only proceed to pronounce judgment as required by section 1202 after the court had (1) performed the allocution required by section 1200, (2) ascertained that defendant had no legal cause why judgment should not be pronounced, and (3) permitted Mr. Snipes to speak as a matter of right pursuant to section 1191.1. Defendant is in effect arguing that compliance with sections 1200 and 1191.1 marks the point of no return for a court's power to withdraw approval of a plea bargain. *194 (1) We start with the basic proposition that "[j]udicial approval is an essential condition precedent to any plea bargain worked out by the defense and the prosecution." (People v. Cardoza (1984) 161 Cal. App.3d 40, 45 [207 Cal. Rptr. 388].) The parties' negotiated disposition is ineffective unless and until it is approved by the court. (See People v. Orin (1975) 13 Cal.3d 937, 942-943 [120 Cal. Rptr. 65, 533 P.2d 193].) This principle is recognized in numerous statutes (e.g., §§ 1192.1, 1192.2, 1192.4), the most important of which is section 1192.5.[8] The court's approval of a proposed plea bargain must necessarily be an informed decision. The court can be expected to consult the probation report that will almost always be prepared. (See §§ 1191, 1203, subds. (b), (g); Cal. Rules of Court, rule 418; People v. Kaanehe (1977) 19 Cal.3d 1, 14 [136 Cal. Rptr. 409, 559 P.2d 1028].) In felony cases, the court may (as did Judge Buffington) examine the transcript of the defendant's preliminary examination. Diagnostic reports received pursuant to section 1203.03, statements in aggravation and mitigation, and victim statements (see § 1170, subd. (b)) may also be considered. Information from these and other sources is available to a court pondering whether to withdraw its approval of a negotiated disposition. It cannot be assumed that no attention will be paid to them by the court. The potential for reflection and a change of the judicial position is obvious and statutorily sanctioned. "[I]mplicit in the language of section 1192.5 is the premise that the court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea." (People v. Johnson (1974) 10 Cal.3d 868, 873 [112 Cal. Rptr. 556, 519 P.2d 604].) That statute "provides that the court's approval of a plea bargain is not binding on the court and that approval may be withdrawn at the time of sentencing if the court, after further consideration and in the exercise of its inherent discretion in sentencing, concludes that the bargain is not in the best interests of society" (People v. Woodard (1982) 131 Cal. App.3d 107, 110 [182 Cal. Rptr. 254]) or "upon [the court] being more fully informed about the case." (People v. King (1981) 123 Cal. App.3d 406, 408 [176 Cal. Rptr. 507]; see People v. Beasley (1970) 5 Cal. App.3d 617, 624, fn. 3 [85 Cal. Rptr. 501].) A change of the court's mind is thus always a possibility. *195 With respect to the proposed disposition, defendant was expressly told by Judge Petersen that the court's "acceptance, of course, is conditional." Judge Buffington's comments at his first appearance in the case clearly advised defendant that acceptance was still conditional and had not yet become irrevocable. (2a), (3) (See fn. 9.) The fact that Judge Buffington's final decision occurred after he performed the allocution required by section 1200[9] is not controlling. (2b) With the possible exception of capital cases (see People v. Robbins, supra, 45 Cal.3d 867 at pp. 888-890; id. at p. 891 (conc. opn. of Mosk, J.)), allocution remains what this court termed it in 1971, "a formality only." (People v. Chew (1971) 16 Cal. App.3d 254, 258 [94 Cal. Rptr. 83].) Nothing in the plain language of section 1200 suggests that it restricts the court's near-plenary power granted by section 1192.5 to retract approval of a plea bargain. As a matter of practical reality, allocution may often commence the hearing at which judicial doubts about the negotiated disposition ripen into a resolve to reject it. It would be at such a hearing that the court is advised of any second thoughts by the parties. Moreover, assuming the prosecution remains inclined to abide by its prior consent and a specific sentence choice is not an integral component of the bargain, the parties' views of the appropriate sentence choice in light of the probation report will be expressed at the sentencing hearing. That marks a logical and appropriate point for the court, "upon being more fully informed about the case" (People v. King, supra, 123 Cal. App.3d 406 at p. 408), to "conclude[] that the bargain is not in the best interests of society." (People v. Woodard, supra, 131 Cal. App.3d 107 at p. 110.) (4) It is also at the sentencing hearing that the victim or the victim's next of kin may appear pursuant to section 1191.1.[10] That statute was *196 enacted as part of an initiative measure entitled "The Victim's Bill of Rights," the general goal of which was to promote the rights of victims of crime. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 247 [186 Cal. Rptr. 30, 651 P.2d 274]; People v. Zikorus (1983) 150 Cal. App.3d 324, 330 [197 Cal. Rptr. 509].) The specific goal of section 1191.1 "was to mandate a previously optional procedure; to require the judge to listen to and consider the views of the victim." (People v. Zikorus, supra at p. 331 [original italics].) As with section 1200, nothing in the plain language of section 1191.1 hints at any limitation of the court's power to reject a plea bargain pursuant to section 1192.5. To the contrary, section 1191.1 expressly entitles the victim or next of kin to appear and address the court at "all sentencing proceedings." Numerous authorities have construed section 1192.5 as authorizing withdrawal of approval of a plea bargain well after the start of proceedings accompanying sentencing. (See e.g., People v. Johnson, supra, 10 Cal.3d 868 at p. 873 [court can withdraw approval "upon sentencing"]; In re Falco (1986) 176 Cal. App.3d 1161, 1165 [222 Cal. Rptr. 648] [withdrawal proper "at the time of sentencing"]; In re Eads (1980) 102 Cal. App.3d 499, 503 [162 Cal. Rptr. 411] ["the trial court is ... authorized to withdraw its prior approval ... at the time set for pronouncement of judgment"].) If, as occurred here, a defendant obviates the necessity of a trial by entering a plea of guilty, matters will proceed directly to the sentencing hearing. If the victim or next of kin is dissatisfied with the plea and wishes to protest, the earliest opportunity to do so will be at that hearing. The sentencing hearing will commence with the court making the inquiry demanded by section 1200. Having no inkling of the victim's or next of kin's disgruntlement, the defendant will answer that there is no legal cause why judgment should not be pronounced. Only thereafter will the victim or next of kin have an opportunity to make the statement expressly authorized by section 1191.1. To accept defendant's argument that the court is at that point divested of its power to reject the plea bargain would consign the statement to utter ineffectuality: the court would have to listen to the statement and then ignore it, powerless to do anything based upon the statement protesting such a fait accompli. This situation might only be aggravated if the bargain included a specified sentence, for then the victim or next of kin would not even have the satisfaction of arguing for a more severe punishment. The clear purposes behind section 1191.1 are to acquaint the court with the victim's unique perspective of the case, and require consideration of the victim's statement by the court. Our obligation in construing section 1191.1 is to adopt a construction of section 1191.1 that will effectuate the voters' intent, give meaning to each word and phrase, and avoid absurd results. *197 (See People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [239 Cal. Rptr. 656, 741 P.2d 154]; People v. Aston (1985) 39 Cal.3d 481, 492 [216 Cal. Rptr. 771, 703 P.2d 111]; People v. Zikorus, supra, 150 Cal. App.3d 324 at pp. 329-330.) It would be difficult to conceive of a more absurd result than to adopt a construction which would prevent a victim or next of kin from having a meaningful opportunity to protest a plea bargain that will allow a defendant to escape the punishment which the victim or next of kin feels is appropriate to the crime. Defendant's construction would reduce the victim's statement to "an arid ritual of meaningless form." (Staub v. City of Baxley (1958) 355 U.S. 313, 320 [2 L.Ed.2d 302, 310, 78 S.Ct. 277].) Fidelity to our obligation in construing section 1191.1 compels us to reject defendant's interpretation and thereby preserve a provision of "The Victim's Bill of Rights" from becoming a dead letter in the significant context of negotiated dispositions. Defendant's initial attack on Judge Buffington's withdrawal of judicial sanction of the plea bargain fails accordingly. (B) Defendant next assails Mr. Snipes's right to make his statement and the propriety of the substance of his statement. (5) Defendant presents an elaborate argument concerning Mr. Snipes's supposed lack of standing to address the court. That argument may be recast as follows: Sections 1191.1 and 679.02[11] entitle victims and other designated persons to appear at "all sentencing proceedings" and "express ... views concerning the crime, the person responsible, and the need for restitution." Doubling back on his first argument, defendant now sees the fact that the plea bargain had not become final as establishing that matters had not proceeded to the sentencing stage where Mr. Snipes would be entitled to be heard. The hearing Judge Buffington convened on January 23, 1987, was a "sentencing proceeding" within the meaning of sections 679.02 and 1191.1. His compliance with section 1200 leaves no room for doubt on that point. In assuming that a "sentencing proceeding" involves nothing more than the arraignment for judgment and the pronouncement of sentence, however, defendant gives too narrow a reading to the term. A sentencing proceeding is a concept of considerable flexibility, with much richness of diversity. It *198 may encompass motions for a new trial (see §§ 1181, 1201, subd. (b)), motions in arrest of judgment (see § 1185), and attacks on a plea of guilty (see § 1018; People v. Griggs (1941) 17 Cal.2d 621, 624 [110 P.2d 1031]; People v. Grand (1971) 16 Cal. App.3d 27, 30-31 [93 Cal. Rptr. 658]). Doubts as to the defendant's sanity may be raised and resolved. (See §§ 1201, subd. (a), 1203.03, 1368.) Charges, enhancements, and special circumstance findings may be stricken. (See § 1385; People v. Williams (1981) 30 Cal.3d 470, 477-490 [179 Cal. Rptr. 443, 637 P.2d 1029].) Supplemental probation reports may be ordered. (See People v. Grimble (1987) 196 Cal. App.3d 1058, 1062-1064 [242 Cal. Rptr. 382].) A "sentencing proceeding" has even been held to include matters such as the termination of a restitution order which follows the actual imposition of sentence. (See Melissa J. v. Superior Court (1987) 190 Cal. App.3d 476, 478 [237 Cal. Rptr. 5].) Judicial deference to statutory language is not synonymous with slavishness to literalism. Linguistic defects both patent and latent in initiative statutes have on numerous occasions been subordinated to manifest voter intent. (See e.g., People v. Skinner (1985) 39 Cal.3d 765, 775-777 [217 Cal. Rptr. 685, 704 P.2d 752]; People v. Bigelow (1984) 37 Cal.3d 731, 755 [209 Cal. Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723]; Lynch v. State Bd. of Equalization (1985) 164 Cal. App.3d 94, 114-115 [210 Cal. Rptr. 335]; Cooperrider v. Civil Service Com. (1979) 97 Cal. App.3d 495, 500-503 [158 Cal. Rptr. 801]; Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal. App.3d 661, 670-678 [126 Cal. Rptr. 415].) The withdrawal of approval of a plea bargain may not ordinarily and literally be seen as comprehended within a "sentencing proceeding." Nevertheless, as shown in part I(A), final action regarding a negotiated disposition may occur during the course of a sentencing proceeding. The manifest purpose of the electorate in enacting section 1191.1 would be frustrated if victims or next of kin were deprived of the opportunity to acquaint the court with their opinion concerning the propriety of a plea bargain. The obvious occasion for such opinions to be expressed is at the "sentencing proceedings" that will in the normal course of affairs follow close on the heels of an accepted plea bargain. We therefore hold that sections 1191.1 and 679.02 entitle a victim or next of kin to attack a plea bargain at a "sentencing proceeding" — i.e., "when the case comes on for sentencing after the plea has been formally approved and entered." (People v. Townsend (1985) 171 Cal. App.3d 900, 903 [215 Cal. Rptr. 120].) In light of this conclusion, Mr. Snipes's "right" to make the statement was correctly recognized by Judge Buffington. Defendant's claim that Mr. Snipes lacked standing to make his statement to Judge Buffington must consequently be rejected. Defendant's attack on the substance of Mr. Snipes's remarks is also unavailing. In enacting section 1191.1 the people, the supreme and *199 sovereign source of power in this state (see Cal. Const., art. II, § 1), gave Mr. Snipes the right "to reasonably express his ... views concerning the crime, the person responsible, and the need for restitution." Mr. Snipes was not concerned with restitution, but he did have strong views regarding the crime and defendant's responsibility. The victim was not idealized ("He became addicted to drugs and did resort to thievery to support his addiction"), and in any event a murdered person's parent can hardly be expected to maintain an angelic impartiality. Mr. Snipes's remarks, which did not elicit a single objection from either the defense or the prosecution, were not hasty or ill-considered. He had followed the case closely and taken the trouble to write out his statement, which he read to Judge Buffington. Strictly speaking, his comments concerning the "apparent lack of professionalism on the part of the prosecution" may not have been germane when viewed in isolation. But seen in the context of Mr. Snipes's entire statement, that opinion was connected to the larger issues of whether "the person responsible" would face punishment appropriate to "the crime." His bottom-line conclusion ("Guy Stringham is a murderer and should be charged accordingly") dealt directly with defendant's responsibility and culpability for the crimes charged. It was therefore fully harmonious with section 1191.1. Following his own independent examination, Judge Buffington agreed with that conclusion. More importantly, so did the jury. Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529] does not constitute a basis for invalidating Mr. Snipes's statement. The court in Booth, taking pains to limit its holding to capital cases, held that introduction of a "Victim Impact Statement" at the sentencing phase of a capital murder trial violated the Eighth Amendment because it "can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." (Id. at pp. 508-509 [text & fn. 12] [96 L.Ed.2d 440 at p. 452, 107 S.Ct. 2529 at p. 2536].) Mr. Snipes was not addressing the finder of fact at the sentencing phase of a capital trial. (C) (6a) Defendant's next ground for attacking Judge Buffington's decision to reject the plea bargain is that "[t]he court did not properly exercise its discretion" in doing so. As previously mentioned, section 1192.5 impliedly vests a court with "broad discretion to withdraw its prior approval of a negotiated plea." (People v. Johnson, supra, 10 Cal.3d 868 at p. 873.) (7) "Judicial discretion is that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his *200 view of expediency or of the demand of equity and justice.... The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy or warped by prejudice or moved by any kind of influence save alone the overwhelming passion to do that which is just." (People v. Surplice (1962) 203 Cal. App.2d 784, 791 [21 Cal. Rptr. 826]; accord Harris v. Superior Court (1977) 19 Cal.3d 786, 796 [140 Cal. Rptr. 318, 567 P.2d 750]; People v. Preyer (1985) 164 Cal. App.3d 568, 573 [210 Cal. Rptr. 807]; People v. Hernandez (1984) 160 Cal. App.3d 725, 750 [206 Cal. Rptr. 843].) Measured against virtually every aspect of this standard, Judge Buffington is immune from the charge of abuse. (6b) Judge Buffington did not withdraw approval of the plea bargain until after he had ordered a one-week continuance on his own motion to study the case. That time was put to good use: his comments a week later establish a deep knowledge of the case that could only have come from mastering the preliminary examination transcript and the other sources requested by the parties. Not content with just acquainting himself with the circumstances of the crimes, Judge Buffington also reexamined the apparent basis for Judge Petersen's prior acceptance of the plea bargain. After putting a series of searching questions to the prosecutor, Judge Buffington elicited that no real effort had been made to ensure Detective Williams's presence at trial. That in turn impeached the prosecutor's representation that he could not prove murder, a conclusion with which Judge Buffington expressly disagreed. It is almost certain that Judge Buffington thus believed the prosecutor's consent to the bargain was based upon factually misplaced impressions concerning these points (cf. People v. Cobb (1983) 139 Cal. App.3d 578, 582, 586 [188 Cal. Rptr. 712]) and legally dubious authority to negotiate the bargain.[12] The week-long hiatus would also have allowed Judge Buffington to place Mr. Snipes's statement in its proper perspective, with all influences of passion and sympathy disregarded. Judge Buffington's considered opinion was that "the bargain [was] not in the best interests of society." (People v. Woodard, supra, 131 Cal. App.3d 107 at p. 110.) In light *201 of the preceding discussion, there is no tincture of the abused discretion defendant claims. (D) (8) The final prong of defendant's attack is that the "extraneous considerations" and "overbearing pressure" from the Snipes family so effected Judge Buffington's objectivity as to amount to a violation of due process which can only be remedied by specific performance, i.e., an order directing that defendant be sentenced in accord with the plea bargain. We find defendant's analysis inaccurate and his remedy inappropriate. Defendant treats Mr. Snipes's statement as possessing a sufficient intrinsic prejudicial force that it irretrievably warped Judge Buffington's judgment. Contrary to defendant's position, Mr. Snipes's statement is not analogous to coercive forces on the order of a lynch mob (see Frank v. Mangum (1915) 237 U.S. 309, 335 [59 L.Ed. 969, 983, 35 S.Ct. 582]; People v. Reid (1924) 195 Cal. 249, 259 [232 P. 457, 36 A.L.R. 1435]; cf. People v. Fleming (1913) 166 Cal. 357, 371-377 [136 P. 291]) or pervasive extrajudicial publicity. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 352-357 [16 L.Ed.2d 600, 614-617, 86 S.Ct. 1507]; Rideau v. Louisiana (1963) 373 U.S. 723, 724-727 [10 L.Ed.2d 663, 664-666, 83 S.Ct. 1417]; cf. Estes v. Texas (1965) 381 U.S. 532, 543-550 [14 L.Ed.2d 543, 550-554, 85 S.Ct. 1628].) It has already been established that the statement made by Mr. Snipes enjoyed statutory sanction, and that the substance of his remarks was, in general, comfortably within the scope permitted by section 1191.1. Mr. Snipes was certainly more than a casual observer (see fn. 5 and accompanying text, ante), but he cannot be found guilty of exerting "overbearing pressure" on the court. Judge Buffington's decision to withdraw approval of the plea was informed and deliberate. The stated grounds had nothing to do with either Mr. Snipes or his statement, but only the absence of the defects the prosecutor perceived in sustaining the murder charge against defendant. Nothing in defendant's briefs or the record rebuts the presumption that Judge Buffington acted solely on the basis of proper motives and considerations. (See Evid. Code, § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [141 Cal. Rptr. 133, 569 P.2d 727].) "Specific enforcement of a particular agreed upon disposition must be strictly limited because it is not intended that a defendant and prosecutor be able to bind a trial court" (People v. Kaanehe, supra, 19 Cal.3d 1 at p. 14) "which remains free, even after initial approval, to finally reject it." (People v. Daugherty (1981) 123 Cal. App.3d 314, 322 [176 Cal. Rptr. 500].) Defendant was explicitly warned by Judge Petersen that the plea bargain could still be rejected. Up to the point when it was rejected by Judge Buffington, the *202 negotiated disposition was not something to which defendant had an immutably vested interest superior to all judicial interference. Accordingly, this was not one of the "very special circumstances" (People v. Kaanehe, supra, at p. 13) where specific enforcement would be appropriate. II (9a) As previously mentioned, defendant was sentenced to separate terms of imprisonment for the kidnapping and the murder. He contends that the term for the kidnapping should have been stayed pursuant to section 654 because "the kidnapping was for a single criminal objective, the commission of additional bodily harm to the victim (which resulted in his death)." (10) "Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. [Citation.] `The proscription against double punishment ... is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute.... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.'" (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal. Rptr. 654, 558 P.2d 552].) "`The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it." (People v. Porter (1987) 194 Cal. App.3d 34, 38 [239 Cal. Rptr. 269].) "However, when there is no dispute as to the facts, the applicability of Penal Code section 654 is a question of law." (People v. Ratcliffe (1981) 124 Cal. App.3d 808, 816 [177 Cal. Rptr. 627].) (9b) Citing People v. Milan (1973) 9 Cal.3d 185 [107 Cal. Rptr. 68, 507 P.2d 956], defendant appears to argue that the undisputed evidence demonstrates as a matter of law that his sole criminal goal was to inflict additional bodily harm to Paul Snipes once the latter was taken from the trailer. The defendant in Milan was convicted (among other crimes) of the first degree murder of cab driver Burney, the robbery of Burney, and the kidnapping of Burney for the purpose of robbery with bodily harm. This is the passage *203 from Milan on which defendant relies: "Defendant may not be punished for both the kidnaping of Burney for the purpose of robbery with bodily harm and the murder of Burney which was the indivisible culmination of the infliction of bodily harm, ..." (Id. at p. 196.) Defendant's reliance, and the argument he premises upon it, are misplaced. Milan involved a conviction for violating section 209. (See People v. Milan, supra, 9 Cal.3d 185 at p. 192.) Defendant was convicted of violating section 207. Although both statutes deal with kidnapping, their emphasis and coverage differs. Section 207 is the general statute. Section 209 is aimed at kidnappings committed, not as the end of illegal endeavor, but rather as the subsidiary means of accomplishing another specified criminal intent. The ultimate criminal goals are different. Section 209 deals with situations with a substantial likelihood or actual occurrence of profound harm. The Supreme Court has held that the primary purpose behind section 209 is to impose harsher penalties for kidnappings whose commissions entail a substantially increased risk that the victim "will suffer grave bodily or psychic injury or even death." (People v. Laursen (1972) 8 Cal.3d 192, 198 [104 Cal. Rptr. 425, 501 P.2d 1145].) This may explain the practice of describing section 209 as covering "aggravated" kidnappings and section 207 as covering "simple kidnapings." (See People v. Williams (1970) 2 Cal.3d 894, 901 [88 Cal. Rptr. 208, 471 P.2d 1008].) If the evidence conclusively showed that defendant participated in the kidnapping with, as he contends, the sole criminal objective of inflicting additional bodily harm, that would seem to bring him within the ambit of section 209. Yet it was section 207 which the prosecution accused him of violating. A possible objection is that this discloses nothing more than the prosecution's view of the case prior to production of all the evidence. Yet if the jury had believed the argument defendant now presents it almost certainly would have convicted him of first degree felony murder.[13] This we know it did not do. (See fn. 7 and accompanying text, ante.) The respect for the jury's conclusion displayed by Judge Buffington likewise precludes this court from determining that section 654 must operate as a matter of law in the manner defendant urges. (Cf. People v. Green (1980) 27 Cal.3d 1, 69-71 [164 Cal. Rptr. 1, 609 P.2d 468]; In re Chapman (1954) 43 Cal.2d 385, 389 [273 P.2d 817].) *204 This being so, the only remaining question is whether substantial evidence supports Judge Buffington's express findings that defendant had separate intents for the kidnapping and the murder. Those findings, made at the time of defendant's sentencing, were (with minor editorial changes made by us) as follows: "The Court finds the facts indicate the following: [¶] The defendant appeared at Mrs. Horn's trailer pursuant to a phone call from James Balfour. The defendant had been looking for Larry Moriarity or Mr. Snipes for some time. "The defendant's testimony indicated that his sole interest in Mr. Snipes was to find Mr. Moriarity. The defendant wanted to find Moriarity because Moriarity had taken the defendant's money. "The defendant testified that he did not intend to harm Snipes; he indicated that he wanted to leave to find Moriarity. "When the defendant and Mr. Farrell and Mr. Snipes got to the location of Mr. Moriarity, they did not know how to lure Moriarity out of the motel. At this point the crimes of false imprisonment and kidnapping had been committed by the defendant with the stated goal of finding Moriarity. "The defendant and the other two left the area of the motel and drove to Jedediah Smith State Park. The defendant handed a shotgun to Mr. Farrell; that act could not have furthered the intent to imprison or kidnap Mr. Snipes so as to get to Moriarity. The only possible conclusion is that the gun was provided to Mr. Farrell to enable Mr. Farrell to accomplish some separate criminal motive other than the kidnapping. "Mr. Stringham knew that the chances were high, as he stated it, eighty percent, that the gun would be used to kill Snipes. The provision of the weapon was pursuant to an intent formed after the kidnapping, ... These acts are, therefore, not incident to one objective and they may be separately punished." Judge Buffington's logic is impeccable. If defendant was interested in kidnapping the victim only as a means to the end of getting to Moriarity, that interest ended once Moriarity was presumably located in the motel. Murdering the victim would therefore be utterly extraneous and unconnected to the kidnapping's objective of locating Moriarity. The record is consistent with the interpretation that defendant at that time, and at the moment Farrell asked for the shotgun, formulated a new and separate intent to facilitate a murder. "The record is equally consistent with the view that the kidnaping[] w[as] completed before the murder[], which followed as an afterthought." (Seiterle v. Superior Court (1962) 57 Cal.2d 397, 401 [20 *205 Cal. Rptr. 1, 369 P.2d 697].) The trial court therefore did not err by concluding that separate sentences were appropriate in light of defendant's distinct multiple criminal objectives. III[*] .... .... .... .... .... . The judgment of conviction is affirmed. Channell, J., and Perley, J., concurred. Appellant's petition for review by the Supreme Court was denied February 23, 1989. Mosk, J., was of the opinion that the petition should be granted. NOTES [*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III. [1] Statutory references are to the Penal Code unless otherwise indicated. [2] One of the witnesses was Detective Richard Williams, who had conducted an interrogation of defendant, and who had subsequently suffered a heart attack. The other was Mitchell Farrell, who was involved in events surrounding Snipes's death. As will be seen, Williams eventually testified at defendant's trial. Farrell refused to testify and was adjudged in contempt. [3] Due to the fact that defendant's mother was employed by the probation department of Del Norte County (see fn. 4, post), it was agreed that the probation report would be prepared by the probation department of either Humboldt or Siskiyou County. [4] Judge Petersen's apparently sua sponte "Notification Of Recusal" read in pertinent part: "[T]his Judge recuses himself because a member of the victims' [sic: victim's] family has made allegations that one of the reasons the negotiated plea was entered into is because a member of the Defendant's family is employed in the Probation Department. It is my opinion that if this Judge accepts the plea and/or imposes a sentence less than the maximum, they will conclude it is showing favoritism. Therefore this Judge is requesting the Judicial Council to assign an outside Judge to handle all future proceedings in this case." It also appears that defendant's sister and brother-in-law are employed by local law enforcement agencies. [5] Mr. Snipes had earlier mentioned that others involved in the death of his son (i.e., Farrell, James Balfour, and Cheryl Horn) had either had all charges dropped or had been allowed to plead guilty to significantly reduced charges. At the time of trial, Farrell was in state prison after pleading guilty to first degree murder, and Balfour had pleaded guilty to assault with a deadly weapon and was awaiting sentencing. Mr. Snipes's low opinion of the district attorney's office was no passing fancy. He subsequently sought without success to have the district attorney's office disqualified and replaced by the Attorney General. [6] During the course of the statement he made when interrogated by Detective Williams defendant stated that he did in fact drive to the motel and "parked out in the field across from where Larry Moriarity was staying." After defendant and Farrell tried "to figure out how they were going to get Moriarity out" of the motel, "then it was decided by Mitch that they would go ahead and go up into the woods, question Paul Snipes a little further, tie him up, and then come back and get Moriarity, and then take Moriarity to where Snipes was and talk to the both of them." [7] This language appears on the verdict form. The verdict forms completed by the jury leave no doubt as to the precise basis for their decision on the homicide charge, conclusively demonstrating their conclusions that defendant was not guilty of "premeditated and deliberate" first degree murder, and not guilty of either first or second degree felony murder. [8] Section 1192.5 provides in pertinent part: "Where such plea [of guilty] is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea. "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.... "If such plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn ...." [9] Section 1200 provides: "When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." "Allocution is defined as the `Formality of a court's inquiry of prisoner as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction.' (Black's Law Dict. (5th ed. 1983) p. 39.)" (People v. Robbins (1988) 45 Cal.3d 867, 891 [248 Cal. Rptr. 172, 755 P.2d 355] (conc. opn. of Mosk, J.); accord People v. Cross (1963) 213 Cal. App.2d 678, 681 [28 Cal. Rptr. 918].) [10] Section 1191.1 provides in pertinent part: "The victim of any crime, or his or her parent or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, has the right to attend all sentencing proceedings ... and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. "The victim, or his or her parent or guardian if the victim is a minor, or next of kin has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents, or guardians, and next of kin made pursuant to this section and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation...." [11] Section 679.02, subdivision (a)(3) provides: "The following are hereby established as the statutory rights of victims and witnesses of crimes: [¶] For the victim, the victim's parents or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, to be notified of all sentencing proceedings, and of the right to appear, to reasonably express his or her views, and to have the court consider his or her statements, as provided by Section 1191.1." [12] Section 1192.7, subdivision (a), which was adopted by the voters at the same time as section 1191.1, provides in pertinent part: "Plea bargaining in any case in which the indictment or information charges any serious felony ... is prohibited, unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." The murder and kidnapping charges against defendant each qualified as a "serious felony" for purposes of this statute. (§ 1192.7, subds. (c)(1) and (c)(20).) [13] As construed by the Supreme Court in People v. Bigelow, supra, 37 Cal.3d 731 at page 755, section 190.2, subdivision (a)(17)(ii), which defendant was accused of violating, provides in pertinent part: "The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found ... to be true: [¶] The murder was committed while the defendant was engaged in or was an accomplice in the commission of, ... [¶] Kidnapping in violation of Sections 207 [or] 209." (Italics added.) [*] See footnote, ante, page 184.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1041 _____________ NANCY L. SMITH, Appellant v. N3 OCEANIC, INC. ______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cv-00730) District Judge: Honorable Berle M. Schiller ______________ Submitted Under Third Circuit L.A.R. 34.1(a) September 27, 2017 ______________ Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges. (Opinion Filed: November 22, 2017) ______________ OPINION* ______________ RESTREPO, Circuit Judge. * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.  Nancy Smith appeals the District Court’s grant of summary judgment to N3 Oceanic, Inc., her former employer, in her suit for age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). We will affirm. I As we write solely for the benefit of the parties, we set out only the facts necessary for the discussion that follows.1 From February 2004 until September 2014, Smith was employed by N3 Oceanic, Inc. as a Customer Service Representative (“CSR”). App. 192. During her 10-year-long tenure with the company, N3’s management regarded Smith as a good employee with some recurring issues related to her demeanor. App. 334. Emails among N3’s management document incidents when Smith reacted unprofessionally to instructions or events, describing her as “argumentative,” “disagreeable,” and “angry.” App. 382, 384. At the time of her firing, Smith was 70 years old, the oldest CSR employed by N3. App. 334. Several months before her termination, N3 changed its employee health benefits to an age-based policy, such that healthcare premiums paid by employees would correlate with the employee’s age.2 App. 337. In August 2014, because of the increase in costs, Smith waived her health benefits, writing “cannot afford – discrimination!” on the waiver 1 For the purpose of this appeal, the facts described are undisputed or viewed in the light most favorable to Smith. 2 N3 changed from a four-tier health insurance policy in which the tiers were determined by the number of people insured (self, self plus spouse, self plus children, etc.) and all employees paid the same amount for each tier regardless of age, to an age- based policy in which the employee’s premiums were determined by the employee’s age at the time the policy came into effect. App 337. 2 form. App. 370. N3’s management was aware of Smith’s comments on the form. App. 337. On September 6, 2014, N3 received an email from a disgruntled customer with the subject line “My last purchase with [N3]” complaining of misleading and inconsistent promotional pricing. App. 200. He noted in the email that the CSRs shared his frustration but had told him that their concerns “f[ell] on deaf ears with management.” Id. N3 then traced the customer’s last order in its ordering database and found that Smith had handled the order. App. 310. Although N3 was unable to prove that Smith had made the disparaging remarks about management to the customer, Smith’s supervisor believed that they were consistent with comments that Smith had previously made about pricing and promotions. App. 247-48. Over the course of the next week, N3 hired an 18-year-old woman as a CSR and fired Smith. App. 197, 245. In her complaint against N3, Smith alleged a violation of the ADEA based on age discrimination and retaliation for protected conduct. The District Court granted N3 summary judgment on both of Smith’s claims. This timely appeal followed. We will address each claim in turn. II3 3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 621. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary judgment is plenary. NAACP v. City of Phila., 834 F.3d 435, 440 (3d Cir. 2016). We apply the same summary judgment standard as the District Court. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). That standard required the Court to grant summary judgment where, with inferences drawn in favor of the non-moving party, “the movant shows that there is no genuine dispute as to any 3  The ADEA makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In assessing a claim of age discrimination under the ADEA, courts employ the McDonnell Douglas burden-shifting framework. Walton v. Mental Health Ass’n. of Se. Pa., 168 F.3d 661, 667-68 (3d Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). A plaintiff alleging employment discrimination under the ADEA must make a prima facie case with four elements: (1) she is over 40 years old; (2) she is qualified for the position; (3) she suffered from an adverse employment decision; and (4) her replacement was sufficiently younger to permit a reasonable inference of age discrimination. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). Under the burden-shifting framework, once the plaintiff makes out a prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802. If the employer demonstrates a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the employer’s stated reason was pretextual. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015). The District Court found that Smith made a prima facie case and that N3 articulated legitimate, nondiscriminatory reasons for the firing by citing the customer complaint and Smith’s occasional lack of professionalism. Neither of these findings is material fact and the movant is entitled to judgment as a matter of law.” Id. at 218; see also Fed. R. Civ. P. 56(a). 4 disputed by the parties. The District Court granted summary judgment to N3 after conluding that she had failed to show that N3’s reasons were pretextual. Smith challenges this conclusion on appeal. The third and final step of the McDonnell Douglas framework requires the plaintiff to demonstrate that the presumptively valid reasons for her rejection dissembled a discriminatory decision. McDonnell, 411 U.S. at 805. Plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s actions. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). “[S]ince the factual dispute at issue is whether discriminatory animus motivated the employer,” not whether the employer’s decision was wrong or mistaken, the plaintiff must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Id. at 765 (emphasis omitted) (citation omitted). Smith fails to offer evidence which would cast doubt on N3’s articulated reasons or suggest N3’s decision was motivated by “discriminatory animus.” Id. Smith contends that N3 neither formally disciplined her for unprofessional conduct nor identified specific examples of such conduct. Neither of these arguments, however, address the incidents documented in N3’s internal emails over the course of Smith’s employment. Similarly, while Smith denies making critical remarks about N3’s management to customers, it was reasonable for N3 to conclude based on Smith’s past comments and the customer’s order 5 history that she made the statement alleged in the email. Because she is unable to show that N3’s legitimate reasons were pretextual, Smith’s discrimination claim must fail. III Under the McDonnell Douglas framework, a plaintiff asserting a retaliation claim under the ADEA must establish a prima facie case by showing: (1) she was engaged in protected activities; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the employer’s adverse action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Protected activities include not only an employee’s filing of formal charges of discrimination against an employer but also “informal protests of discriminatory employment practices, including making complaints to management.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (quoting Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)). If the plaintiff makes these showings, the burden of production shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action. Id. (citation omitted). “If the employer advances such a reason, the burden shifts back to the plaintiff to demonstrate that ‘the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.’” Id. (citation omitted). 6  Smith established a prima facie case. First, her comment (“cannot afford- discrimination!”) on her waiver form qualifies as a protected activity. Given the increase in health premiums because of her age, a jury could reasonably conclude that Smith intended her comments to be an “informal protest” expressing to management her belief that she had suffered discrimination on the basis of her age. Id. Her supervisor testified that “there were conversations . . . about what [the comment] meant.” App. 337. As to the second element, Smith’s termination of employment qualifies as an adverse employment action. Lastly, a jury could reasonably conclude that the timing of the termination, approximately one month after she submitted the waiver form, in light of Smith’s unblemished formal disciplinary record, satisfies the third element in establishing a causal link between the protected activity and the adverse action. N3, however, presented a legitimate, non-retaliatory reason for the adverse action by once more citing the customer complaint and Smith’s history of unprofessional behavior. As discussed in greater detail above, Smith failed to rebut N3’s claim that it fired her because she disparaged N3’s management to a customer, which served as the culmination of a documented history of occasionally unprofessional behavior. Thus, Smith’s retaliation claim must fail. IV For the foregoing reasons, we will affirm the District Court’s grant of summary judgment to N3. 7 

Electronically Filed Intermediate Court of Appeals CAAP-14-0001134 12-FEB-2016 09:25 AM 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WEST VENTURES, L.P., FKA Sleiman No. 19-71134 Ventures, L.P.; ANTHONY T. SLEIMAN, Tax Matters Partner, Tax Ct. No. 24683-10 Petitioners-Appellants, MEMORANDUM* v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Appeal from a Decision of the United States Tax Court Submitted July 10, 2020** Seattle, Washington Before: CLIFTON, D.M. FISHER,*** and M. SMITH, Circuit Judges. West Ventures, L.P. (West Ventures) appeals the tax court’s order and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. decision in favor of the Commissioner. West Ventures argues that the tax court lacked subject matter jurisdiction to sustain the Commissioner’s disallowance of a $62,370,000 short-term capital loss (Loss) declared in its tax filing (Form 1065) for the 1999 tax year. We have jurisdiction under 26 U.S.C. § 7482(a). The tax court’s rulings on jurisdictional issues are reviewed de novo. See Gorospe v. Comm’r, 451 F.3d 966, 968 (9th Cir. 2006) (reviewing the tax court’s dismissal for lack of subject matter jurisdiction de novo); see also Taproot Admin. Servs., Inc. v. Comm’r, 679 F.3d 1109, 1114 (9th Cir. 2012) (reviewing the tax court’s grant of summary judgment de novo). Because the Internal Revenue Code, its associated regulations, and our case law are clear that the Loss was a partnership item of West Ventures, the final partnership administrative adjustment (FPAA) was properly issued to West Ventures, the tax court had jurisdiction, and we affirm.1 West Ventures’ main argument on appeal is that, in seeking to disallow the Loss, the Commissioner commenced proceedings against the wrong entity, and 1 We recognize that the tax court appears to have concluded that the Loss was an “affected item” of Sleiman Two. However, “[d]ecisions of the tax court are reviewed on the same basis as decisions from civil bench trials in the district court.” MK Hillside Partners v. Comm’r, 826 F.3d 1200, 1203 (9th Cir. 2016) (quoting DHL Corp. & Subsidiaries v. Comm’r, 285 F.3d 1210, 1216 (9th Cir. 2002). Accordingly, the tax court’s decision may be affirmed on any ground supported by the record, even if not relied upon by the tax court. See Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir. 2017). 2 thus the tax court lacked jurisdiction. In particular, West Ventures argues that, according to Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), 26 U.S.C. §§ 6221–6234 (2000), the Commissioner’s FPAA should have been issued to Sleiman Ventures (Two) LP (Sleiman Two), which is 90% owned by West Ventures. In statutory terms, West Ventures’ argument is that the Loss is a “partnership item” of Sleiman Two, not West Ventures. See 26 U.S.C. § 6226(f) (2000) (the tax court has “jurisdiction to determine all partnership items” of the partnership to which the FPAA relates). Pursuant to TEFRA, a partnership item is one that is “required to be taken into account for the partnership’s taxable year under any [income tax] provision” and that “is more appropriately determined at the partnership level than at the partner level.” 26 U.S.C. § 6231(a)(3) (2000). When identifying a partnership item, “[t]he ‘critical element’ is that the partnership is required to make the determination.” Greenwald v. Comm’r, 142 T.C. 308, 313–314 (2014) (quoting 26 C.F.R. § 301.6231(a)(3)-1(c)(1)). “Partnership items, such as a partnership’s income, gain, loss, deductions, or credits, are items that must be taken into account on a partner’s federal income tax return and that are determined by the Treasury Secretary to be ‘more appropriately determined at the partnership level than at the partner level.’” Candyce Martin 1999 Irrevocable Tr. v. United States, 739 F.3d 1204, 1210 (9th Cir. 2014) (citation omitted) (quoting 26 U.S.C. § 6231(a)(3) 3 (2000)). “‘[P]artnership losses . . . are . . . partnership items’ of the partnerships that initially reported the losses.” Russian Recovery Fund Ltd. v. United States, 101 Fed. Cl. 498, 505 (2011) (quoting Sente Inv. Club P’ship v. Comm’r, 95 T.C. 243, 247 (1990)), aff’d, 851 F.3d 1253 (Fed. Cir. 2017). Moreover, “the IRS must adjust a partnership item at the partnership level that first produces the loss (or gain) in question.” Id. Here, it is undisputed that the Loss was first reported in West Ventures’ Form 1065, and it was not reported in Sleiman Two’s Form 1065 for the 1999 tax year. This makes sense, because the Loss was produced by West Ventures’ redemption of its partnership interest in Sleiman Two. Therefore, the FPAA, to the extent it disallowed the Loss, was properly issued to West Ventures, the entity that first produced and reported it. In Candyce Martin, we specifically rejected West Ventures’ argument in analogous circumstances. Analyzing a tax shelter structure almost identical to the one at issue here, we observed that “the IRS could have issued an FPAA” to the partnership, like West Ventures here, that claimed losses stemming from its redemption of interests in another partnership (here, Sleiman Two). 739 F.3d at 1212. We repeatedly referred to those losses, which were analogous to the Loss, as partnership items of the redeeming entity—in this case, West Ventures. Id. at 1210–12. And we rejected the idea that the losses could have originated with the 4 non-reporting partnership, which in this case was Sleiman Two. Id. at 1213. Accordingly, Candyce Martin establishes that, for the purposes of disallowing the Loss, the FPAA was properly issued to West Ventures. West Ventures’ secondary argument, that the FPAA was untimely, depends on the conclusion that the Loss was not a partnership item of West Ventures. But, as described above, we conclude that the Loss was a partnership item of West Ventures. Accordingly, without ruling upon the full extent of the scope of the Form 872-P agreements extending the Commissioner’s deadline to make assessments related to West Ventures, the FPAA was timely here. AFFIRMED. 5 

SECOND DIVISION November 25, 2003 No. 1-02-0456 IN THE INTEREST OF F.M., a Minor ) Appeal from the (THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County. Petitioner-Appellee, ) ) v. ) ) F.M., a Minor, ) Honorable ) Richard F. Walsh, Respondent-Appellant). ) Judge Presiding. PRESIDING JUSTICE WOLFSON delivered the opinion of the court: Following an adjudicatory hearing, respondent F.M. was found delinquent based on his commission of aggravated criminal sexual assault.  Respondent was placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years of age.  On appeal, respondent contends: (1) the aggravated criminal sexual assault statute he was charged with violates due process because it permits felony adjudications based on innocent conduct; (2) his disposition as a Class X offender pursuant to section 12-14(b)(i) of the Criminal Code of 1961 was in error where that section properly is classified as a Class 4 offense; and (3) he was deprived of due process of law where the State presented unreliable evidence of prior bad acts through a victim impact statement.  We affirm. FACTS Respondent was charged with aggravated criminal sexual assault pursuant to section 12-14(b)(1).  720 ILCS 5/12-14(b)(1) (West 2000).  He was adjudicated delinquent after a stipulated adjudicatory hearing. At the hearing on a motion to suppress statements, Sergeant William Stutzman of the Wheeling Police Department testified that on March 29, 2000, he investigated a possible incident of sexual abuse between respondent, respondent's sister, and a neighbor girl.  He called respondent's mother and asked her to bring respondent to the police station.  After being read his Miranda rights, respondent gave a verbal statement, followed by a written statement.  He admitted placing his penis in the mouths of his sister and the neighbor girl.  The court denied the motion to suppress. The parties entered into a stipulatory adjudicatory hearing that incorporated respondent's statement.  They also stipulated that on March 28, 2000, respondent was 13 years old, and the neighbor victim was 6 years old.  The state informed the court that the charges related to respondent's sister were nolle prossed.  The trial judge adjudicated respondent delinquent of aggravated criminal sexual assault. At the dispositional hearing, the State introduced evidence in the form of two victim impact statements.  The victim's father and mother each read a statement to the court.  In the victim's mother's statement, she said, "what [the victim] saw was she played a part in a game at least three separate times*** The fact that he subjected my daughter and his sister to this numerous times makes me wonder about my ability to protect my daughter."   The State recommended that respondent be placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years old.  The assistant public defender had no objection and said she was "fundamentally in agreement" with the recommended sentence.  The court followed the State's recommendation, placing respondent on five years' probation and ordering respondent not to have any unsupervised contact with children under 12.  Respondent also was ordered to participate in sex offender treatment, with family counseling and mandatory school attendance. DECISION I. Substantive Due Process Respondent first contends the statue under which he was found delinquent, section 12-14(b)(i), violates due process because it sweeps too broadly and potentially punishes innocent conduct.  The section charged against respondent does not require that sexual penetration be accompanied by sexual gratification or the use or threat of force.  Absent a requirement of criminal intent or a culpable mental state, respondent contends, merely changing a baby's diaper or washing a baby with a washcloth could be punishable as a felony.   Whether a statute is constitutional is a question of law to be reviewed de novo .   People v. Morgan , 203 Ill. 2d 470, 486, 786 N.E.2d 994 (2003).  All statutes are presumed constitutional, and the party challenging the constitutionality of a statute bears the burden of clearly establishing the alleged constitutional violation.   In re R.C. , 195 Ill. 2d 291, 296, 745 N.E.2d 1233 (2001). Section 12-14(b)(i) provides: "(b) The accused commits aggravated criminal sexual assault if the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who was under 9 years of age when the act was committed."  720 ILCS 5/12-14(b)(i) (West 2000). "Sexual penetration" is defined as: "any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person ***."  720 ILCS 5/12-12(f) (West 2000).   The State contends respondent essentially is arguing section 12-14(b)(i) is overbroad, the same defense argument rejected in People v. Terrell , 132 Ill. 2d 178, 547 N.E.2d 145 (1989), where the accused facially challenged the aggravated criminal sexual assault and criminal sexual assault statutes.  There, the court discussed two alternative requirements for standing to attack the constitutionality of a statute: the person must be directly affected by the alleged unconstitutionality, or he must claim the statute inhibits the exercise of rights protected under the First Amendment.   Terrell , 132 Ill. 2d at 212.  The first requirement prevented the defendant from pursuing his challenge to the face of the statutes.  That is, "[t]he defendant does not have standing to challenge the constitutionality of those statutes on the ground that they may be applied unconstitutionally in a different situation."   Terrell , 132 Ill. 2d at 212. Terrell would dispose of an overbreadth claim in this case, although the overbreadth doctrine was "designed to protect first amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of that freedom."   People v. Anderson , 148 Ill. 2d 15, 26, 591 N.E.2d 461 (1992), citing Broadrick v. Oklahoma , 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).   Respondent insists he is not arguing overbreadth in this case.  Although we believe Terrell requires rejection of respondent's claim on standing grounds, we will address the due process theory he relies on to attack the facial validity of section 12-14(b)(i).   Respondent contends section 12-14(b)(i) is unconstitutional because it violates substantive due process.  See Anderson , 148 Ill. 2d at 27 (distinguishing between first amendment overbreadth claim and due process claim based on People v. Wick , 107 Ill. 2d 62, 481 N.E.2d 676 (1985)).  When legislation does not affect a fundamental right, we use the rational basis test to analyze a substantive due process claim.   People v. Wright , 194 Ill. 2d 1, 24, 740 N.E.2d 755 (2000).  We must determine whether the statute bears a reasonable relationship to its intended purpose, and whether the means adopted are a reasonable method of accomplishing that purpose.   Wright , 194 Ill. 2d at 24.       Respondent relies on three Illinois Supreme Court decisions: Wright , 194 Ill. 2d at 28 (invalidating section 5-401.2(i) of the Vehicle Code providing that anyone who "knowingly" failed to keep certain records for three years was guilty of a Class 2 felony); People v. Zaremba , 158 Ill. 2d 36, 42, 630 N.E.2d 797 (1994) (invalidating a section of the Illinois Theft Statute making it a felony for a person to obtain or exert control over property in the custody of a law enforcement agency where that person has been informed the property was stolen); and Wick , 107 Ill. 2d at 66 (invalidating a section of the aggravated arson statute making it a Class X felony to knowingly damage a building by a fire that caused injury to a fireman or police officer at the scene).   In each case the court held that because the statute did not require a culpable mental state it could be read to apply to wholly innocent conduct.  The statutes did not possess a rational relationship to their intended purpose because they could sweep in innocent people who reasonably believed they were engaging in lawful activity.  Standing was not an issue in these cases. Unlike the statutes in Wick , Wright , and Zaremba , the criminal sexual assault statute does not reach innocent conduct.  Although the definition of "sexual penetration" does not expressly require a mental state, the legislature clearly did not intend the statute to define a strict liability or public welfare offense.   Terrell , 132 Ill. 2d at 209.  This court and the Illinois Supreme Court have held the criminal sexual assault statute implicitly requires that the act of sexual penetration be intentional or knowing.  See Terrell , 132 Ill. 2d at 209; People v. Bofman , 283 Ill. App. 3d 546, 551, 670 N.E.2d 796 (1996); People v. Ramsey , 190 Ill. App. 3d 723, 726, 546 N.E.2d 1108 (1989); People v. Jimenez , 191 Ill. App. 3d 13, 26, 547 N.E.2d 616 (1989); People v. Smith , 152 Ill. App. 3d 589, 594, 504 N.E.2d 850 (1987); People v. Bartay , 150 Ill. App. 3d 130, 132, 501 N.E.2d 364 (1986); People v. Burmeister , 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212 (1986) .   We disagree with respondent when he says section 12-14(b)(i) does not require an unlawful purpose, thereby punishing innocent as well as culpable conduct.  The section does require culpable intent--the intent of someone under 17 to commit an act of sexual penetration on a victim under 9.  See Terrell , 132 Ill. 2d at 209; Ramsey , 190 Ill. App. 3d at 726; Burmeister , 147 Ill. App. 3d at 224.  The statute does not punish innocent conduct.   Jimenez , 191 Ill. App. 3d at 26; Burmeister , 155 Ill. App. 3d at 223-24.  Accordingly, we hold the aggravated criminal sexual assault statute does not violate due process.     II. Class X Offense Respondent next contends he was improperly sentenced as a Class X offender where the sentencing provision of the criminal sexual assault statute did not classify subsection 12-14(b) as a Class X offense. Section 12-14(d)(1) provided: "Aggravated criminal sexual assault in violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of subsection (a) is a Class X felony***" 720 ILCS 5/12-14(d)(1) (West 2000). The statute was silent as to the classification of subsection 12-14(b).  Section 5-5-2(a) of the Unified Code of Corrections provides an unclassified offense "which is declared by law to be a felony or which provides a sentence to a term of imprisonment for one year or more shall be a Class 4 felony."  730 ILCS 5/5-5-2(a) (West 2000).  Accordingly, respondent contends he should have been disposed as a Class 4 offender. Subsequent to respondent's commission of the offense, section 12-14(d)(1) was amended by Public Act 92-502 to classify section 12-14(b) as a Class X offense.  Pub. Act 92-502, eff. December 19, 2001.  The statute now provides: "Aggravated criminal sexual assault in violation of paragraph (2), (3), (4), (5), (6), or (7) of subsection (a) or in violation of subsection (b) or (c) is a Class X felony."  720 ILCS 5/12-14(d)(1) (West 2001). Notwithstanding the amendment, respondent contends the constitutional prohibition against ex post facto laws requires that he be sentenced in accordance with the law in effect at the time the offense was committed.  See People v. Ollie , 333 Ill. App. 3d 971, 992, 777 N.E.2d 529 (2002).   The State responds that the legislature always intended for section 12-14(b) to be a Class X offense.  In 1984, the legislature enacted Public Act 83-1067, to recodify the existing sexual offenses into "a comprehensive statute with uniform statutory elements."   Haywood , 118 Ill. 2d at 271.  Section 12-14(d) of the original statute provided that all forms of aggravated criminal sexual assault were Class X felonies.  Pub. Act 83-1067, eff. July 1, 1984.  A 1999 amendment, among other things, inserted "in violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of subsection (a)" in the first sentence of subsection (d)(1), but made no reference to subsections (b) and (c).  Pub. Act 91-404, eff. January 1, 2000.  The State contends the statute's silence as to subsection (b) was a legislative oversight which was remedied by the December 19, 2001, amendment. The transcripts of the legislative debates bear this out.  See 92nd Ill. Gen. Assem., Senate Proceedings, November 28, 2001, at 23, and November 29, 2001, at 28 (statements of Senator Dillard explaining amendment's purpose was to reenact penalty provisions in the aggravated criminal sexual assault statute that were erroneously eliminated); 92nd Ill. Gen. Assem., House Proceedings, November 29, 2001, at 108-109 (statements of Representative Hultgren stating the amendment corrected an error in drafting that took out the penalty phase for aggravated criminal sexual assault).    The primary rule of statutory construction is to determine and give effect to the legislature's true intent.   People v. Hickman , 163 Ill. 2d 250, 261, 644 N.E.2d 1147 (1994).  When the language of a statute is ambiguous, it is appropriate to resort to other methods of statutory construction to determine legislative intent.   People v. Koppa , 184 Ill. 2d 159, 169, 703 N.E.2d 91 (1998).  If the legislature's intent and purpose can be ascertained from the statute, "words may be modified, altered, or even supplied so as to obviate any repugnancy or inconsistency with the legislative intention."   People v. Parker , 123 Ill. 2d 204, 210-11, 526 N.E.2d 135 (1988), quoting People v. Bratcher , 63 Ill. 2d 534, 543, 349 N.E.2d 31 (1976).  The "judiciary possesses the authority to read language into a statute which has been omitted through legislative oversight."   People v. Smith , 307 Ill. App. 3d 414, 419, 718 N.E.2d 640 (1999), quoting People v. Chandler , 129 Ill. 2d 233, 253, 543 N.E.2d 1290 (1989).   In several cases cited by the State, courts have supplied missing words to statutes so as not to defeat the intention of the legislature.  In Smith , 307 Ill. App. 3d at 417, the defendant contended the absence of the language "predatory criminal sexual assault of a child" from the sentencing provisions of the indecent solicitation statute rendered the statute void and unconstitutional.  The court considered the objective of the legislation in concluding the legislature's failure to include the language in the provision was an oversight rather than an intentional omission.   Smith , 307 Ill. App. 3d at 420.  Similarly, in People v. Tellez , 295 Ill. App. 3d 639, 693 N.E.2d 516 (1998), the statute treated criminal neglect of an elderly person and of a disabled person equally throughout the statute, but the sentencing provision classifying the offense as a Class 3 felony was silent as to neglect of the disabled.  The court determined the omission of the words "or disabled" from the penalty section of the statute was a legislative oversight.   Tellez , 295 Ill. App. 3d at 643.  See also Parker , 123 Ill. 2d at 211, 213-14 (supreme court concluded the legislature intended the "sexual relations within families" statute to apply to stepparents; otherwise the legislative intent would have been defeated).     In this case, we believe the legislature's failure to include subsection (b) in the sentencing provision of the statute classifying it as a Class X offense was not intentional, but an oversight.  The legislature's December 19, 2001, amendment including subsections (b) and (c) in the sentencing provision to conform with the original version of the statute, as well as the legislative history of the amendment, support our holding.  Respondent properly was sentenced as a Class X offender under the statute.   III. Victim Impact Statement Respondent next contends his sentence should be vacated because the State introduced, through a victim impact statement, unreliable evidence that respondent had engaged in prior sexual misconduct on three separate occasions.  He contends the victim's mother's statement cannot be deemed trustworthy because there was no showing that the accusations were reliable and accurate.  See People v. LaPointe , 88 Ill. 2d 482, 498-99, 431 N.E.2d 344 (1981) (at sentencing, trial court is not limited to considering information that would be admissible at trial, but it must exercise care to insure the accuracy of information considered).   We need not decide whether the evidence was properly admitted.  Not only was respondent's sentence mandated by statute, but respondent had no objection to and agreed to the sentence.  Pursuant to section 5-715(1) of the Juvenile Court Act of 1987, the period of probation for a minor found guilty of a Class X offense "shall be at least 5 years."  705 ILCS 405/5-715(1) (West 2000).  Since we have determined that respondent properly was sentenced as a Class X offender, respondent's five-year probation was mandatory.  Moreover, at the dispositional hearing, the defense attorney failed to object to the victim impact statement and indicated she was fundamentally in agreement with the sentence recommended by the State because it was mandated by statute.  We find no error in respondent's sentence. CONCLUSION We affirm the decision and rulings of the trial court. Affirmed. BURKE, and GARCIA, JJ., concur.

Case: 12-14700 Date Filed: 09/11/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14700 Non-Argument Calendar ________________________ D.C. Docket No. 1:11-cv-20450-MGC MARIO SIMBAQUEBA BONILLA, Plaintiff-Appellant, versus U. S. DEPARTMENT OF JUSTICE, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 11, 2013) Before DUBINA, MARTIN and FAY, Circuit Judges. PER CURIAM:  Case: 12-14700 Date Filed: 09/11/2013 Page: 2 of 7 Appellant Mario Simbaqueba Bonilla, a federal prisoner proceeding pro se, appeals the district court’s grant of summary judgment on his complaint brought against the U.S. Department of Justice (the “Department”) under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), upon finding that he failed to exhaust administrative remedies because his administrative appeal was filed out-of-time. Under FOIA, an individual may request public records from an agency, and the agency must provide the records unless the statute exempts the information from disclosure. 5 U.S.C. § 552(a)(3), (b). An agency must decide whether to comply with a request within 20 business days after receiving it. Id. § 552(a)(6)(A)(i). The agency must immediately notify the requestor of its decision, and, if it denies the request, must state the reason for doing so and inform the requestor of the right to appeal the decision to the head of the agency. Id. “The FOIA clearly requires a party to exhaust all administrative remedies before seeking redress in the federal courts.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Although not a jurisdictional requirement, exhaustion of administrative remedies is a condition precedent to filing a suit in federal court. Id. at 1367-68; Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979). Section 16 of Title 28 of the Code of Federal Regulations contains the rules and procedures that the Department follows in processing records requests under 2  Case: 12-14700 Date Filed: 09/11/2013 Page: 3 of 7 FOIA. 28 C.F.R. § 16.1(a). If a requestor is dissatisfied with the Department’s response to a FOIA request, he may appeal to the Department’s Office of Information Policy (“OIP”), but the appeal must be in writing and “must be received by the [OIP] within 60 days of the date of the letter denying [the] request.” Id. § 16.9(a). In September 2009, Bonilla made a FOIA request to the Department for various documents. After receiving a letter from the Department, dated April 7, 2010, stating that it was denying his request, Bonilla sent a letter from prison administratively appealing the denial to the OIP. He dated the letter May 11, 2010, but did not provide any evidence or allege that he gave the letter to prison authorities to be mailed on that date. The OIP received it on June 14, 2010, eight days outside of the 60-day limit in which to file an administrative appeal under FOIA. The OIP closed his administrative appeal because Bonilla had not met the applicable deadline. Bonilla then filed a complaint in federal court, requesting that the district court order the Department to release the documents that he requested. The district court granted summary judgment in favor of the Department upon finding that Bonilla failed to exhaust available administrative remedies because he failed to timely file his administrative appeal. On appeal, Bonilla argues that the district court erred because (1) there was a genuine issue of material fact as to the date the Department received his letter of 3  Case: 12-14700 Date Filed: 09/11/2013 Page: 4 of 7 appeal because the letter contained two stamps: one clearly reading “received June 14, 2010,” and one that was illegible; (2) the term “60 days” in 28 C.F.R. § 16.9(a) should be construed to mean 60 business days (rather than calendar days), which would make his appeal timely, even though it was received on June 14, 2010; and (3) under the prison mailbox rule, set forth in Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988), his administrative appeal should be deemed “filed” on May 11, 2010, the date on his letter of appeal. In his initial appellate brief, for the first time, Bonilla alleges that he gave his appeal letter to prison officials on May 11, 2010. We review a district court’s grant of summary judgment de novo, viewing all facts in the light most favorable to the non-movant. Ross v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999). Under Federal Rule of Civil Procedure 56, a court will grant summary judgment if a movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We may affirm on any grounds supported by the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). Pleadings filed by a pro se litigant are construed liberally, but pro se litigants must nonetheless conform to procedural rules, including deadlines. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007); Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir. 1999) (“Liberal construction does not mean liberal deadlines.”), overruled in part Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). The Supreme Court has 4  Case: 12-14700 Date Filed: 09/11/2013 Page: 5 of 7 explained that an agency’s interpretation of its own regulations—even in a legal brief—is entitled to deference unless that interpretation (1) is plainly erroneous, (2) is inconsistent with the regulation, or (3) there is reason to suspect that the interpretation does not reflect that agency’s fair and considered judgment. Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. ___, ___, 131 S. Ct. 2254, 2260-61 (2011) (internal quotation marks omitted). In Houston, the Supreme Court set forth the prison mailbox rule, holding that, for purposes of Federal Rule of Appellate Procedure 4(a)(1), a pro se prisoner’s notice of appeal is “filed” on the date that the prisoner delivers the notice to prison authorities, rather than the date on which the court clerk receives the notice. 487 U.S. at 270-73, 108 S. Ct. at 2382-83. In reaching its decision, the Supreme Court explained that the Federal Rules of Appellate Procedure did not set forth criteria for when the moment of filing occurs. Id. at 272-73, 108 S. Ct. at 2383. We have extended the rule set out in Houston from habeas corpus appeals to complaints filed by pro se prisoners under 42 U.S.C. § 1983 and under the Federal Tort Claims Act, 28 U.S.C. § 2671. Garvey v. Vaughn, 993 F.2d 776, 782-83 (11th Cir. 1993). However, we have not extended the prison mailbox rule to administrative appeals under FOIA, and research reveals no published decisions by 5  Case: 12-14700 Date Filed: 09/11/2013 Page: 6 of 7 the Supreme Court or any other circuit court of appeals discussing the applicability of the prison mailbox rule under similar circumstances. We conclude from the record that the district court properly granted summary judgment in favor the Department because Bonilla failed to exhaust administrative remedies. First, the illegible stamp on Bonilla’s letter of appeal does not create a genuine issue of material fact as to the date the letter was received because the appeal letter contained a legible stamp clearly indicating that the Department received it on June 14, 2010. Second, the Department construes the term “60 days” in §16.9(a) to mean 60 calendar—rather than business—days, and that construction is entitled to deference because it is not plainly erroneous or inconsistent with the regulation, nor is there reason to suspect that it does not reflect the Department’s fair and considered judgment. See Talk Am., Inc., 564 U.S. at ___, 131 S. Ct. at 2260-61. Finally, we need not decide whether the prison mailbox rule extends to cases involving administrative FOIA appeals because here, even if it applied, it would not help Bonilla. Bonilla’s FOIA appeal letter contains the typed date “May 11, 2010,” but he did not so much as allege in the district court that he gave the letter to prison authorities before the 60-day deadline in 28 C.F.R. § 16.9(a) expired. Although in Garvey, we explained that prison authorities bear the burden of showing a pro se prisoner’s date of delivering a document for mailing, Garvey is 6  Case: 12-14700 Date Filed: 09/11/2013 Page: 7 of 7 distinguishable because, here, prison authorities were not a party to the lawsuit and Bonilla was the only person in a position to provide information concerning the date that he gave his appeal letter to prison authorities. See Garvey, 993 F.3d at 779‒80. Because he did not even assert in the district court the date when he gave his letter to prison officials, the prison mailbox rule—even if applicable—would not have availed him. Therefore, we need not reach the issue of whether the prison mailbox rule would apply here. Under the circumstances of this case, we conclude that the district court properly granted summary judgment in favor of the Department, and, accordingly, we affirm the judgment. AFFIRMED. 1 1 Bonilla’s motion to file reply brief out-of-time is GRANTED. 7 

662 P.2d 180 (1983) PANOS INVESTMENT COMPANY, a general partnership composed of Bradley K. Panos, Thomas G. Panos, Clifton W. Panos, Geoffrey G. Panos, Gregory P. Panos, and Gus G. Panos, Trustee of the Patrick T. Panos Estate, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF LARIMER, and the Honorable John A. Price, one of the Judges thereof, Respondents. No. 83SA21. Supreme Court of Colorado, En Banc. April 25, 1983. Dixon & Snow, Rod W. Snow, Denver, for petitioners. Fischer & Wilmarth, Gene E. Fischer, Steven G. Francis, Fort Collins, for respondents. NEIGHBORS, Justice. This is an original proceeding in which the petitioners seek to prohibit the District Court for Larimer County from exercising in personam jurisdiction over them in Civil Action No. 82CV951. The petitioners filed a motion to dismiss the complaint filed against them on the ground that the court lacked personal jurisdiction over them under the Colorado long-arm statute, section 13-1-124, C.R.S.1973. The trial court denied the motion. The petitioners then filed this case pursuant to C.A.R. 21. We issued a rule to show cause. We affirm the ruling of the trial court and discharge the rule. I. The complaint filed in the underlying action contains the following relevant factual allegations: On October 24, 1979, Frank Hopper and Bradley K. Panos jointly signed and delivered in Larimer County a promissory note for $45,000 payable to Gene E. Fischer (Fischer). The note is attached to the complaint. It provides that monthly payments of $5,000 principal, plus interest, are to be made "at 900 Savings Building, *181 Fort Collins, Colorado." The makers of the note made some payments to Fischer, but have been in default since September 1, 1981. The amount of the principal balance due and owing is $17,585. Fischer filed suit in the respondent court against Bradley Panos in his individual capacity[1] and the petitioners. Paragraph 3 of the complaint contains the following allegations with respect to the participation of the petitioners in the transaction: "3. That the Defendant, PANOS INVESTMENT COMPANY, and the individual partners thereof, guaranteed in writing the payment of said Note, and said obligation is a partnership debt." Bradley K. Panos is named in the caption as one of the persons who "composed" Panos Investment Company, a general partnership. The complaint contains no allegations about the residence of Bradley K. Panos or any of the other partners in Panos Investment Company. Nor does it state where the partnership was formed or where any of its activities are conducted. The petitioners moved to dismiss the complaint. In their motion, the petitioners' counsel attested "by information and belief none of the Defendants are residents of, or domiciled in the State of Colorado." The motion states that all of the petitioners were served with process in Utah. The trial court ruled that the allegations in the complaint were adequate to subject the petitioners to the jurisdiction of Colorado courts no matter where the petitioners reside. In so ruling, the court specifically found that the test set forth in Van Schaack & Co. v. District Court, 189 Colo. 145, 538 P.2d 425 (1975), to determine the adequacy of a jurisdictional foundation where jurisdiction is grounded on a single act had been satisfied. II. Section 13-1-124, C.R.S.1973, provides in pertinent part: "Jurisdiction of courts. (1) Engaging in any act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person, and, if a natural person his personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from: (a) The transaction of any business within this state...." In enacting the long-arm statute, the General Assembly "intended to extend the jurisdiction of Colorado courts to the fullest extent permitted by the due process clause of the United States Constitution." Waterval v. District Court, 620 P.2d 5, 8 (Colo.1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). Accord, e.g., Safari Outfitters, Inc. v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1969). In Van Schaack & Co. v. District Court, supra, we adopted the following three-prong test to be used in determining whether the requisite minimum contacts with the forum state are present in a single transaction case consistent with the requirements of due process: "First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable." 189 Colo. at 147, 538 P.2d 425, quoting from State ex rel. White Lumber Sales, Inc. v. Sulmonetti, 252 Or. 121, 127, 448 P.2d 571 (1968). A. The preliminary issue to be decided is what evidence we will consider in determining whether the trial court's ruling was *182 correct. The answer to the rule to show cause contains documents and alleged facts which were not before the trial court when it heard oral arguments on the petitioners' motion to dismiss. Specifically, references are made to an amended complaint,[2] the alleged guarantee, and other documents attached to the answer to the rule to show cause. We find this procedure unacceptable. This is another case where a party fails to comply with well-established procedures in the trial court and requests, if not expects, this court to act as the fact finder to whom relevant and important evidence is presented for the first time. We decline to consider the additional evidence. The orderly administration of justice requires that parties first present all evidence and arguments to the trial court. Simply stated, we will not consider issues and evidence presented for the first time in original proceedings. See LeGrange v. District Court, 657 P.2d 454 (Colo.1983). In City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974), we stated: "Relief in the nature of prohibition is a proper remedy only in those cases where the district court is proceeding without or in excess of its jurisdiction or has abused its discretion in exercising its functions. C.A.R. 21(a); Orcutt v. District Court, 167 Colo. 162, 445 P.2d 887 (1968). The scope of inquiry granted to this court by C.A.R. 21(a) is, therefore, limited to examining the jurisdictional grounds upon which the district court acted to determine whether or not the district court exceeded its jurisdiction or abused its discretion." 184 Colo. at 180, 519 P.2d 325. Therefore, we confine our decision to a review of the record as it existed in the trial court. B. A party who asserts jurisdiction under the long-arm statute has the burden of establishing that the court has jurisdiction, once jurisdiction is challenged. Harvel v. District Court, 166 Colo. 520, 444 P.2d 629 (1968); Jenkins v. Glen & Helen Aircraft, Inc., 42 Colo.App. 118, 590 P.2d 983 (1979). This burden is met by making a prima facie showing of threshold jurisdiction. Texair Flyers, Inc. v. District Court, 180 Colo. 432, 506 P.2d 367 (1973). A party may make the required prima facie showing of threshold jurisdiction by alleging jurisdictional facts in the complaint, by submitting affidavits, or presenting evidence at the hearing on the motion to dismiss or to quash service of process. Fleet Leasing, Inc. v. District Court, 649 P.2d 1074 (Colo.1982); Texair Flyers, Inc. v. District Court, supra. The only jurisdictional facts in the record are the allegations of the complaint and the provisions of the promissory note attached to it and incorporated by reference. C. We are persuaded that the allegations in the complaint are adequate to satisfy the Van Schaack test. As to the first element, a guarantee by its very nature is a purposeful act. The obligation to which the guarantee relates is payable in Colorado. Therefore, the performance or nonperformance of the guarantee in the event of a default by the makers will cause important consequences in Colorado. The second prong is satisfied because the cause of action against Panos Investment Company arose from the partnership's alleged failure to honor its guarantee to pay the promissory note in Colorado, as required by its terms, after the makers defaulted. Finally, the third element is met because the guarantee has a substantial connection with Colorado. Again, the salient fact is that the guaranteed obligation is payable in Colorado.[3] It is not unreasoanble to subject a guarantor to the jurisdiction of courts in *183 the very state where an obligation is specifically payable when the makers fail to perform their obligations and the guarantee becomes operable. Our earlier cases forecast the result reached here. See Tucker v. Vista Financial Corp., 192 Colo. 440, 560 P.2d 453 (1977) (Colorado resident's execution of promissory note payable to California bank, together with disbursal authorization, enabled California courts to assert personal jurisdiction over that maker even though she signed the documents in Colorado and forwarded them to the bank by mail); Giger v. District Court, 189 Colo. 305, 540 P.2d 329 (1975) (Missouri resident's written guarantee of performance of covenants in lease of Colorado real property, given as part of consideration for lessor's consent to assignment of a leasehold, subjected the guarantor to personal jurisdiction in Colorado to enforce the guarantee even though the guarantor signed the agreement in Missouri); and Van Schaack & Co. v. District Court, supra (Kansas bank's issuance of letter of credit to guarantee payment by real estate purchaser of amount required by contract to extend the time for performance of purchaser's contract obligations to buy Colorado real property subjected the bank to personal jurisdiction in Colorado to enforce the letter of credit). See also Waterval v. District Court, supra; Mister Steak, Inc. v. District Court, 194 Colo. 519, 574 P.2d 95 (1978); and At Home Magazine v. District Court, 194 Colo. 331, 572 P.2d 476 (1977). Some state courts have held that it is consistent with fair play and substantial justice to subject a nonresident defendant to personal jurisdiction under facts similar to those before us,[4] while other jurisdictions have adopted a contrary view.[5] The analysis contained in opinions upholding jurisdiction in these circumstances is more persuasive. It is only realistic to assume that the guarantees in those cases were important inducements to the extension of credit to a third party and that the guarantor knew it. The creditor seeks assurances that the debt will be paid in accordance with its terms, including place of payment. When the primary obligor defaults, it is unreasonable and inconsistent with fair play to expect the creditor to pursue the guarantor in a different forum to enforce the guarantor's agreement to underwrite the primary obligor's promise that the money will be paid in the forum state. To require a guarantor to defend in the courts of the state where the guaranteed obligation is payable is fully consistent with "traditional notions of fair play and substantial justice." See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The contacts of Panos Investment Company with the State of Colorado, as alleged in the complaint, are adequate to meet the requirements of Van Schaack & Co. v. District Court, supra, and of the decisions of the United States Supreme Court from which the Van Schaack test was derived. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). III. The ruling of the trial court is affirmed. The rule is discharged.[6] NOTES [1] Bradley Panos is a petitioner in this case only as a partner in Panos Investment Company. He does not contest jurisdiction over him individually as the maker of the promissory note. [2] In his ruling of December 29, 1982, the respondent judge noted that the amended complaint was filed on December 15, 1982, two days after the hearing on the motion to dismiss. [3] The record before the trial court when the respondent judge ruled on the motion to dismiss did not contain the guarantee. It has been held that where the guarantee agreement does not provide otherwise the guarantee obligations are payable at the place of payment specified in the note guaranteed. Gubitosi v. Buddy Schoellkopf Products, Inc., 545 S.W.2d 528 (Tex.Civ.App.1976). [4] E.g., First Wyoming Bank v. Trans Mountain Sales & Leasing, Inc., 602 P.2d 1219 (Wyo.1979) (nonresident guarantor of promissory note payable to Wyoming bank was subject to personal jurisdiction in Wyoming in action on the guarantee even though the guarantee was executed in Colorado). [5] E.g., Misco Leasing, Inc. v. Vaughn, 450 F.2d 257 (10th Cir.1971) (Oklahoma resident who executed and mailed in Oklahoma a guarantee of contract payments to have been made in Kansas by Oklahoma lessee of equipment leased by Kansas lessor was not subject to personal jurisdiction in Kansas). [6] The issue of insufficient service of process raised on behalf of Thomas Panos is not before us because the trial court did not rule on his motion to dismiss. We note, however, that the remedy for alleged insufficient process is to quash service of process, rather than to dismiss the complaint. Hoen v. District Court, 159 Colo. 451, 412 P.2d 428 (1966); Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 409 P.2d 517 (1966); Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).

134 Cal.App.3d 148 (1982) 184 Cal. Rptr. 444 In re the Marriage of JACQUELINE J. and ROBERT A. JOHNSON. JACQUELINE J. JOHNSON, Respondent, v. ROBERT A. JOHNSON, Appellant. Docket No. 49441. Court of Appeals of California, First District, Division One. July 23, 1982. *151 COUNSEL Donald J. De Vries and Michaud, Weber, De Vries & Hernandez for Appellant. William K. Wilburn and Nancy Ann Gee for Respondent. *152 OPINION BANCROFT, J.[*] Appellant husband appeals from an interlocutory judgment of dissolution entered on August 31, 1979. He makes various contentions regarding the denial of his motion for continuance, the date of separation, the valuation and distribution of community property, the amounts awarded as child and spousal support, a certain promissory note, the imposition of liens and the lack of findings of fact and conclusions of law. The case is remanded for further proceedings consistent with the views expressed in this opinion as to the note and the liens but otherwise affirmed. STATEMENT OF FACTS Respondent wife (hereafter Jacqueline) by her petition filed April 17, 1979, stated, inter alia, that the parties married on July 1, 1964, in Reno, Nevada, had not separated by the petition's filing date, and had a male child of 14 years and a female child of 11 years. In his own behalf, appellant husband (hereafter Robert) filed his response on June 4, 1979, conceding that the statistical information in the petition was correct and, for the most part, challenging only Jacqueline's valuation of the most valuable asset, the family home. Pursuant to an at-issue memorandum filed on June 12, 1979, a July 18, 1979, notice set the trial date for August 27, 1979. Jacqueline's counsel moved on August 1, 1979, for a continuance on account of his vacation plans. Jacqueline then secured new counsel who on August 10, 1979, filed an order to show cause (hereafter OSC) for support and for restraining orders together with a motion to restore the August 27 trial date. Robert appeared at the OSC hearing on August 22, 1979, when the court awarded temporary monthly payments of spousal support in the sum of $500 and child support in the amount of $175 per child for a monthly total of $850. Relevant portions of the order entered that date are as follows: "3.... This order is subject to Respondent's reasonable rights of visitation when Respondent has not been drinking for a period of at least 24 hours prior to such visitation. ... [¶] 8. The Court orders that, in the event that Respondent does not make the payments herein ordered, the payments shall be charged against and taken out of *153 Respondent's share of the community property of the parties. [¶] 9. The Court further orders that the Court specifically finds that Respondent is capable of working and earning money in more than sufficient amounts to pay the support ordered herein, but has failed to do so." (Italics added.) The case was called for trial on August 27 and 28 but not assigned until August 29th when it was heard before the same judge who heard the order to show cause. Evidence was presented primarily through Jacqueline's testimony, not subjected to cross-examination, covering the date of separation; community property and debts; the earnings, earning capacity and expenses of the parties; spousal and child support; attorneys fees; and the imposition of liens on Robert's share of the community property as security for spousal and child support payments. Both parties had filed financial declarations. On the trial date, Jacqueline filed an additional financial statement attached to her proposal for the distribution of community property and support payments.[1] At the conclusion of the hearing, the trial judge announced his decision from the bench. Robert requested no findings. A six-page interlocutory judgment prepared by Jacqueline's counsel was entered August 31, 1979. Robert became represented for the first time when counsel substituted into the case on September 12, 1979, and filed a notice of intention to move for a new trial. On September 20, 1979, Robert's lawyer filed a request for findings of fact and conclusions of law. The court filed no written findings and conclusions. Instead, on October 12, 1979, the court filed its memorandum decision on the motion for a new trial setting forth the court's position regarding what it considered to be the late filing of the request for findings of fact and conclusions of law. The court also increased by 10 percent the face value of a note awarded to Robert as his community property share, provided that unless Jacqueline accepted the 10 percent increase, it would grant the new trial motion. Jacqueline accepted the 10 percent increase. Additional facts will be set forth in this opinion as necessary to the issues under discussion. Robert appeals, contending the trial judge committed reversible error in: *154 1. Denying his motion for a trial date continuance; 2. Utilizing the April 1, 1978, separation date; 3. Setting the spousal and child support amounts; 4. Valuing and disposing of the community residence; 5. Failing to make findings of fact and conclusions of law; 6. Imposing the liens against his share of the community property. I. Continuance (1) The continuance issue arose at the outset of the trial when Robert said he would like to have an attorney and handed to the clerk a card as he said, "I talked to one, this gentleman, here." He stated his debts left him without funds to engage counsel. We treat Robert's remarks as a request for a continuance in order to engage counsel. When the court denied the "motion," it did not abuse its discretion. Both parties cite 4 Witkin, California Procedure (2d ed. 1971) Trial, section 7, page 2865, for the well established proposition that the trial judge exercises a broad discretion in ruling on a motion for continuance. At the time of the request, the judge noted that the request was "a little late in the day...." The judge had specifically warned Robert at the OSC hearing on August 22, 1979, to get a lawyer. Also, Robert had appeared at the OSC hearing apparently while intoxicated and the court made a specific finding supported by testimony that Robert had a serious drinking problem. After he was served with the original petition, he filed his response and financial statement and appeared at the OSC hearing — all without counsel. His only claim is that he didn't have funds for an attorney. No showing was made that the continuance request was in good faith and not solely for the purpose of delay. Clearly, there was no violation of the right to counsel in this civil case and it is not argued. In view of the court's duty to hear and determine cases "`with as great promptness as the exigencies of the case will permit,'" there appears to be no abuse of discretion in the circumstances of this case. (Mann v. Pacific Greyhound Lines (1949) 92 Cal. App.2d 439, 446 [207 P.2d 105].) "Unnecessary continuances are wasteful, nonproductive, time-consuming and a *155 fertile ground for criticism by the public of the courts." (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal. App.3d 776, 781 [140 Cal. Rptr. 383].) If there were error, it was only procedural in nature. (Larson v. Solbakken (1963) 221 Cal. App.2d 410, 429 [34 Cal. Rptr. 450].) No miscarriage of justice resulted which would justify a reversal. (Cal. Const., art. VI, § 13; Larson v. Solbakken, supra, at pp. 429-430.) II. Separation Date (2) Robert contends the court erred in finding the date of separation to be April of 1978.[2] Jacqueline testified to that date although her petition showed that the parties were not yet separated by the date of its filing on April 17, 1979. There was really no conflict in the trial evidence. Robert conceded there had been "no home life, no family life, no nothing ... for several years." Whatever conflict there may appear to be, the trial court resolved it based upon substantial evidence and consequently allowed reimbursement to Jacqueline for her payment of community debts after April 1978 in light of Civil Code section 5118.[3] (In re Marriage of Imperato (1975) 45 Cal. App.3d 432, 435-436 [119 Cal. Rptr. 590]; In re Marriage of Baragry (1977) 73 Cal. App.3d 444, 448 [140 Cal. Rptr. 779].) See footnote 2, ante. III. Support Payment Reservation Robert contends the trial judge, instead of making specific awards, should have reserved jurisdiction on either spousal support or both child and spousal support. His contention is without merit. A) Spousal Support The interlocutory judgment ordered Robert to pay child support in the amount of $175 per month for each of two children totalling $350 *156 plus spousal support in the sum of $150 per month. Robert was unemployed at the time of trial and had no other income. His income reflected in tax returns and W2 Forms from 1969 through 1978 declined from $24,129 in 1973 to $9,461 for seven months of 1978. Despite his engineering degree, he had not worked steadily for over three years. He was formerly a vice president and sole share owner of a small corporation. Jacqueline's take home pay at trial was shown to be $722.15 monthly. At trial she was a 41-year-old, full-time employed office manager, secretary, and bookkeeper. She had worked full time before and during the first three years of the marriage and part time beginning three years after the birth of her children. On the other hand, Robert had previously been able to earn in excess of $24,000 per year; he was 41-years-old at the time of trial; he failed to pursue a pretrial interview regarding employment which was said to pay $32,500, plus a company car, because he had two drunk driving convictions resulting in a suspended license and considered hiring a driver to be an impractical solution. The court was satisfied that Robert was seriously under the influence of alcohol at the OSC hearing. He admitted he had been unemployed on a continuing basis since April 1976. After that date, work was intermittent and he did some consulting. Section 4801 provides in pertinent part: "(a) In any judgment decreeing the dissolution of a marriage ..., the court may order a party to pay for the support of the other party any amount, and for such period of time, as the court may deem just and reasonable. In making the award, the court shall consider the following circumstances of the respective parties: [¶] (1) The earning capacity and needs of each spouse. [¶] (2) The obligations and assets, including the separate property, of each. [¶] (3) The duration of the marriage. [¶] (4) The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in the custody of the spouse. [¶] (5) The time required for the supported spouse to acquire appropriate education, training, and employment. [¶] (6) The age and health of the parties. [¶] (7) The standard of living of the parties. [¶] (8) Any other factors which it deems just and equitable." (Italics added.) (3) The trial court has broad but not unlimited discretion in setting spousal support payments pursuant to section 4801. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454 [143 Cal. Rptr. 139, 573 P.2d 41].) (4) Robert seems to contend that the court could not fix spousal *157 support payments in this case, since he was unemployed at trial. Such is not the law. Section 4801, subdivision (a) commands that earning capacity, among other circumstances, be considered. Nor was it the law before the phrase "earning capacity" was added to further define the term "circumstances of the ... part[y]," the sole statement of criteria in the original version of section 4801 (Stats. 1969, ch. 1608, § 8, p. 3333) and in its predecessor, section 139. (Pencovic v. Pencovic (1955) 45 Cal.2d 97, 100 [287 P.2d 501]; cf. Philbin v. Philbin (1971) 19 Cal. App.3d 115 [96 Cal. Rptr. 408]; Baron v. Baron (1970) 9 Cal. App.3d 933, 943 [88 Cal. Rptr. 404].) The court apparently concluded that Robert could abstain from the use of intoxicants and earn a living and pay support monies in the future. Substantial evidence supported such a conclusion. In determining the amount of spousal support, the court considered the relevant facts and acted within its discretion. (In re Marriage of Aufmuth (1979) 89 Cal. App.3d 446 [152 Cal. Rptr. 668].) Finally, although Robert contends the court should have reserved jurisdiction over support payments, he ignores language in section 4801, subdivision (a) which established continuing jurisdiction to modify support orders.[4] As our high court stated: "A court's decision concerning the amount of support can, however, be modified at any time during the support payment period. (Civ. Code, § 4801, subd. (a).)" (In re Marriage of Morrison, supra, 20 Cal.3d 437, 454, fn. 11.) B. Child Support Robert asserts, but apparently does not seriously contend, that child support should not have been awarded, likewise for the reason that he was unemployed at the time of trial. But no abuse of discretion appears in the award of child support in this case either. Should Robert notice a motion to modify and at the hearing establish to the satisfaction of the court that his circumstances have changed, i.e., that he no longer has *158 the earning capacity, he may be entitled to a modification of either spousal or child support or both. (§§ 4801, subd. (a), 4700.) IV. Community Property Robert contends that the court abused its discretion in three respects regarding the community property. The first is that there was not substantial evidence to support the valuation of the community residence. The second is that the court abused its discretion in dividing the community property. The third is that the court improperly ordered conditional liens upon Robert's share of the community property as security for spousal and child support payments. A) The Residence (5) We may dispose briefly of the evaluation of the community residence. There was uncontested testimony from Jacqueline that the family home had a value of $100,000, minus the sum of $5,000, as necessary repairs. The sum of $28,600, representing the balance due on the first and second mortgages was shown in Jacqueline's petition. The net figure thus arrived at by the court was $66,400 consistently with Jacqueline's testimony. There was no contrary evidence. Substantial evidence thus supports the court's conclusion in evaluating the house. B) The Community Property Division (6) In dividing the community property, the court subtracted the community debts from the community assets and divided the balance in half to arrive at a net figure of $29,358.38 to be awarded to Robert since the family home was awarded to Jacqueline. The proceeds of a note arising from a sale by the parties of their Tahoe vacation property is to be divided equally between the parties as the payments are made. Substantial evidence clearly exists in support of such a division and no abuse of discretion is shown. Robert contends however that when the court ordered Jacqueline to execute a note in favor of Robert in the sum of $29,358.38, it failed to discount it properly in accordance with In re Marriage of Tammen (1976) 63 Cal. App.3d 927 [134 Cal. Rptr. 161]. Jacqueline responds that the Tammen issue was laid to rest by the trial court when, on husband's motion for new trial, Jacqueline was required to increase the *159 face value of the note by 10 percent or face a new trial. She agreed to the increase. Robert nevertheless contends, on the authority of In re Marriage of Hopkins (1977) 74 Cal. App.3d 591 [141 Cal. Rptr. 597] and In re Marriage of Herrmann (1978) 84 Cal. App.3d 361 [148 Cal. Rptr. 550], that the note in this case was unnecessary and not marketable. Section 4800, subdivision (b)(1) authorizes notes in the situation presented in this case, for it provides: "Where economic circumstances warrant, the court may award any asset to one party on such conditions as it deems proper to effect a substantially equal division of the property." Here there are no liquid assets of either party; there is a lengthy marriage; there are orders for child and spousal support threatened by Robert's irresponsibility; he has threatened to disappear and perhaps not abide by court orders; and the parties apparently cannot occupy the same house as tenants in common on account of Robert's violence. Economic circumstances warrant the use of a conditional promissory note in this case. Robert argues, however, that the note ordered by the court is required to provide that the entire balance becomes due and payable on certain triggering events, such as Jacqueline's death, cohabitation, or the sale or refinancing of the home. Additionally, he reasons that the addition of 10 percent to the face value of the note still does not result in an equal division of the community property under Civil Code section 4800 especially since the value of the note may be seriously affected by the liens upon it. "A trial court has a great deal of flexibility in dividing community property to achieve the greatest equity and, indeed, is encouraged to be innovative." (In re Marriage of Duke (1980) 101 Cal. App.3d 152, 158 [161 Cal. Rptr. 444], referring to In re Marriage of Boseman (1973) 31 Cal. App.3d 372 [107 Cal. Rptr. 232], citing Rep., Assem. Com. of Judiciary, 1 Assem. J. (1970 Reg. Sess.).) "The exercise of a trial court's sound discretion is best preserved by maintaining a maximum degree of allowable flexibility." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 603 [153 Cal. Rptr. 423, 591 P.2d 911].) Under the Family Law Act, the trial court has a duty to make a division of community property which is not only mathematically equal but practical and equitable as well. (In re Marriage of Fink (1979) 25 Cal.3d 877, 885 [160 Cal. Rptr. 516, 603 P.2d 881].) Section 4800 of the Civil Code does not require an in-kind division of community property. (In re Marriage of *160 Connolly, supra, 23 Cal.3d at p. 603.) Ample authority exists for a court, consistently with sections 4800 and 4801, where economic circumstances warrant it, to award temporarily the exclusive occupancy of the family home, the major community asset, to a spouse, usually the wife,[5] who is awarded the children upon a series of conditions protecting the interests of the "out of possession" owner in his equity in the home until the ultimate sale when the children have reached their majority. (See, e.g., In re Marriage of Escamilla (1982) 127 Cal. App.3d 963 [179 Cal. Rptr. 842]; In re Marriage of Thompson (1979) 96 Cal. App.3d 621, 625-626 [158 Cal. Rptr. 160]; In re Marriage of Herrmann, supra, 84 Cal. App.3d 361, 365-366; In re Marriage of Boseman, supra, 31 Cal. App.3d 372, 376.) Robert contends that the note should immediately become due and payable upon Jacqueline's cohabitation with another adult male. We disagree. Of a similar contention, the Escamilla court properly observed: "We fail to perceive what adverse impact [such a condition] would have upon respondent's rights in the property or upon the children's need to live in the house as a means of support. While the continual presence of a third person in the residence might well have an adverse emotional impact upon a nonpossessory father, any such effect would be far outweighed by the benefits accruing to the children from occupancy of the family home. It would be unduly harsh to penalize the children for the possessory owner's personal relationship with third parties. Moreover, with respect to the remarriage condition, it has been held that the continuing parental duty to support minor children is independent of the marital status of the parents." (In re Marriage of Escamilla, supra, 127 Cal. App.3d 963, 970.) C) The Lien (7) Robert complains also that in other instances, the trial court did not require that Jacqueline's note to him be paid off upon certain other contingencies. However, in view of our conclusion that the trial court abused its discretion in imposing a lien upon Robert's distributive *161 share of community assets, including the aforementioned note, we shall discuss the matter of the note and the lien together. A brief factual background is essential here to present the issue. In its interlocutory judgment, the trial court awarded Robert a one-half interest in a note representing the proceeds of the sale of community held Tahoe real property. The Tahoe property note provided for payments of $220 per month for seven years, totalling $18,480, plus a $25,000 balloon payment due in 1986 — altogether, the note's minimal value being $43,480. Robert's 50 percent share would thus be $21,740. Additionally, the "Jacqueline note" representing Robert's interest in the family residence was fixed (after the new trial motion induced the addition of 10 percent to its face value) in the sum of $32,294.22 to equalize the difference in community property passing to the wife. Robert's share of the community property thus turns out to be his interest in these two notes — a total sum of $54,034.22. Having observed Robert to be intoxicated at the OSC hearing and having heard testimony from both parties of Robert's not inconsiderable insobriety over several years, the trial judge found Robert to have an alcohol problem of "gargantuan" proportions. The trial judge specifically found that although Robert has the ability to work, he would dissipate his share of the community property and "render himself incapable of discharging his obligations to support his children and his former wife." Accordingly, the court, as security for Robert's payment of spousal support and child support, found good cause for, and did impose, a lien upon the entire $54,034.22 sum "until it is clearly shown to the court that [he] has solved his personal problems and shown himself to be sufficiently responsible to assure the prompt payment of child and spousal support. The court specifically finds that this order is necessary to maintain the family at a reasonable level of existence while [Robert] hopefully seeks another career and [Jacqueline] supports the family." Robert argues cogently in his brief that the lien against the Jacqueline and Tahoe property notes is unreasonable. He contends, "Appellant has been effectively deprived of acquiring any other property, including a home of his own, a new business, or anything of that nature for many, many years. This, of course, assumes that he cannot come into court with an order to show cause based upon changed circumstances and prove to the court that he has steady employment and has cured any alcohol *162 problem of `gargantuan' proportions. It appears that there is a scarcity of reported cases in this area — probably for the reason that the lien imposed is clearly unreasonable. Other remedies are clearly available to respondent should appellant not provide for the support payments, including order to show cause re: contempt, wage assignments, executions, and receiverships." We agree. We find no support in California cases for the imposition of a lien such as is involved in the instant case. There is ample, if not overwhelming, evidence in support of each of the findings of the trial judge, except that we find no legal support for the conclusion that those findings permit the imposition of the lien here involved. The lien lacks certainty or even probability as to the time or circumstance which will permit Robert to receive any portion of his share of the community property. Although for laudable reasons, the trial judge has virtually established a conservatorship without a hearing.[6] The precise nature and likely duration of Robert's drinking problem has not been appropriately determined, whether temporary and curable or permanent and incurable.[7] Upon remand, the trial court shall exercise its discretion to assure Robert's enjoyment of his community property share. Thus, the Jacqueline and Tahoe property notes, if ordered, must contain reasonable contingencies upon the occurrence of which Robert is certain to be paid off within a reasonable time in all the circumstances. The trial judge may use any of the contingencies already provided for in its interlocutory judgment and should consider other contingencies suggested by the decisions of our courts, including but not limited to, a payoff when the younger child reaches his majority and a payoff when the house is refinanced. Additionally, the trial judge should consider, if the lien technique is utilized as security for the payment of court ordered support, restricting its use reasonably so as not to deprive Robert of his share of the community property for an indefinite period of time or upon contingencies uncertain ever to occur. *163 V. Findings and Conclusions (8a) Finally, Robert contends the court erred in not making written findings of fact and conclusions of law. There were in fact neither findings of fact and conclusions of law nor a memorandum of intended decision. The court announced its decision from the bench and asked Jacqueline's attorney to draw the order. (9) Written findings and conclusions are required only if they are requested.[8] (Code Civ. Proc., § 632.) (8b) A request for findings must be served and filed within ten days after oral announcement of intended decision in open court. (Former Cal. Rules of Court, rule 232 (b).) The court's decision was orally announced on August 29, 1979. Robert's request was not made until September 20, 1979. The interlocutory judgment was signed on August 30, 1979, the day immediately following the trial. Thus, Robert claims he didn't have a 10-day period within which to request findings. Although it no doubt would have been preferable for the court to have advised Robert that he had 10 days within which to request findings, no legal duty for the trial judge to do so has been found. "A lay person, who is not indigent, and who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney — no different, no better, no worse." (Taylor v. Bell (1971) 21 Cal. App.3d 1002, 1009 [98 Cal. Rptr. 855], citing Doran v. Dreyer (1956) 143 Cal. App.2d 289, 290 [299 P.2d 661].) Although "it is the duty of a trial judge presiding over the trial of a case being conducted by a layman or a laywoman in propria persona to see that a miscarriage of justice does not occur through inadvertence, he is not required to act as counsel for that party...." (Taylor v. Bell, supra, 21 Cal. App.3d 1002, at p. 1008, citing Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal. App.2d 206, 209 [289 P.2d 823].) The trial judge conceded in his memorandum decision of ruling on motion for new trial that the interlocutory judgment was entered prematurely but explained: "Technically, he is correct; but practically, it makes no difference. The fact is that the case was heard by this Court on August 30 in the *164 morning. The judge was leaving on a month's vacation at 4:00 p.m. that afternoon. Counsel for Petitioner rushed through the interlocutory judgment, having prepared it from the court reporter's readback of his notes. The Court then signed the judgment just before leaving. No demand for findings of fact and conclusions of law was made by the Respondent Johnson (although he was in pro per) and the Court is reasonably sure that both it and counsel for the Petitioner overlooked the absence of a waiver of findings. Nevertheless, the request for findings was filed late. Even if the judgment had not been signed on August 30 the request for findings filed by Respondent Johnson was filed so long after August 30 that requested findings would have been denied in any event. Consequently, the argument that the interlocutory was entered prematurely because of the absence of findings is basically moot. It would be bootless to set aside the interlocutory, then deny the request for findings and then have the interlocutory entered as of a later date." We agree. In any event, there was no abuse of the trial judge's sound discretion. We find neither error nor prejudice. The cause is remanded to the trial court for further proceedings in accordance with the views expressed in this opinion, including an award of reasonable attorneys' fees on appeal in favor of appellant; and, as so modified, the judgment is affirmed. Racanelli, P.J., and Newsom, J., concurred. A petition for a rehearing was denied August 13, 1982, and respondent's petition for a hearing by the Supreme Court was denied September 22, 1982. Bird, C.J., was of the opinion that the petition should be granted. NOTES [*] Assigned by the Chairperson of the Judicial Council. [1] The "17.1 Statement" according to Santa Clara County rules. [2] The court's finding is clearly implied, although not stated in the interlocutory judgment, from the colloquy between the court and Robert at trial and from the fact that the court reimbursed Jacqueline for her payment of community debts from her separate property during the year in question. Robert does not contend the finding was not made. [3] Civil Code section 5118 provides: "The earnings and accumulations of a spouse ..., while living separate and apart from the other spouse, are the separate property of the spouse." (All statutory references hereafter are to the Civil Code unless otherwise indicated.) [4] Section 4801, subdivision (a) reads: "... Any order for support of the other party may be modified or revoked as the court may deem necessary, except as to any amount that may have accrued prior to the date of the filing of the notice of motion or order to show cause to modify or revoke...." [5] Depriving a wife of certain controls over her financial future may be "inconsistent with the Legislature's stated objective that the woman's `approaching equality with the male should be reflected in the law governing marriage dissolution and in the decisions of courts with respect to matters incident to dissolution.' (Assem. Com. Rep. on Assem. Bill No. 538 and Sen. Bill No. 252 (The Family Law Act), Com. on Judiciary, 4 Assem. J. (1969 Reg. Sess.) p. 8062; [citations].)" (In re Marriage of Brigden (1978) 80 Cal. App.3d 380, 394-395 [145 Cal. Rptr. 716].) [6] See, e.g., 7 Witkin, Summary of California Law (8th ed. 1974) Wills and Probate, sections 591-592, pages 5991-5992; id. (1982 supp.) sections 615A, 632A-634A, pages 295-296, 310-313. [7] We have learned that at the time of the April argument in this case Robert had made no support payments and that he was serving a sentence of a year in the county jail for his second drunk driving conviction. [8] Civil Code section 4512 states that, as in other cases, "the court must file its decision and conclusions of law."

174 So.2d 398 (1965) THE FLORIDA BAR, Complainant, v. Harry E. KING, Respondent. No. 33891. Supreme Court of Florida. April 21, 1965. Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, for The Florida Bar, complainant. Chester Bedell, Jacksonville, for respondent. *399 PER CURIAM. On March 3, 1964, The Florida Bar filed a complaint against the respondent, Harry E. King, charging him with the following acts of misconduct which we quote from the complaint: "3. The respondent, Harry E. King, did knowingly and wilfully solicit, procure and cause one James L. Busbee and one Rollie Arnold to commit perjury in testifying before the Honorable William D. Hopkins, Acting State Attorney for the Tenth Judicial Circuit, in and for Polk County, Florida, on the 29th day of February, 1956, that is to say respondent caused or procured the said James L. Busbee and Rollie Arnold to corruptly and falsely testify, under lawful oath, that they were present and did witness and observe a meeting between one Boone D. Tillett, Jr., and respondent, Harry E. King, on the 4th day of February, 1956, at or near Babson Park, Polk County, Florida, at which time respondent transferred $10,000.00 good and lawful currency of the United States of America to said Boone D. Tillett, Jr., and said testimony was, in fact, false and respondent knew that said James L. Busbee and Rollie Arnold did not witness the said meeting, as aforesaid. "4. The respondent, Harry E. King, did unlawfully solicit, conspire, combine and confederate with one H.P. Gordon, the then Sheriff of Polk County, Florida, to have James L. Busbee and Rollie Arnold testify falsely and corruptly, under lawful oath, before the Honorable William D. Hopkins, Acting State Attorney for the Tenth Judicial Circuit in and for Polk County, Florida; that they, the said James L. Busbee and Rollie Arnold, were present and witnessed a meeting on February 4, 1956, near Babson Park, Florida, between Respondent, Harry E. King, and one Boone D. Tillett, Jr., when the truth, in fact, respondent and said H.P. Gordon knew that the said James L. Busbee and the said Rollie Arnold were not, in fact, present, nor did they witness said meeting near Babson Park, Florida. "5. That the respondent, Harry E. King, did on or about March 19, 1956, knowingly and wilfully testify falsely under oath before the grand jury of the Tenth Judicial Circuit, which false testimony is set forth as follows: * * *." (We omit here the specific testimony.) Thereafter, on March 23, 1964, respondent filed his answer and request for hearing. The Florida Bar designated as referee Honorable Victor O. Wehle, formerly a circuit judge of the sixth judicial circuit and now again a judge of said circuit. Hearing was held before Judge Wehle on May 27, 1964, and on August 25, 1964, his report as referee was filed. Said report is explicit and thorough, and we quote the substance thereof as follows: "SUMMARY OF EVIDENCE "James L. Busbee, formerly a Deputy Sheriff of Polk County, testified (Tr. pp. 13-40) that in 1956 at the suggestion of his superior Sheriff, Pat Gordon of Polk County, he had falsely testified before the State's Attorney and before the Grand Jury regarding his having seen Mr. King and Mr. Tillett at a certain orange grove near Babson Park, at which time, Mr. Tillett and Mr. King exchanged papers. Busbee had not been present at that meeting and had not seen the matters to which he testified. Mr. King knew that Busbee was going to so testify and knew that the testimony was false and had been concocted for the benefit of Mr. King. "Certain other evidence regarding the matter was stipulated to by counsel for the parties, which evidence it is not necessary to recite here. *400 "Earlier in the proceedings (Tr. pp. 2-13) Mr. King, through his attorney, Mr. Bedell, admitted the allegations of paragraphs 1 and 2 of the complaint; admitted that Busbee and Arnold testified falsely before the State's Attorney as alleged in paragraphs 3 and 4 of the complaint; admitted that King knew that they intended to so falsely testify and that he did not attempt to dissuade or prevent them; and admitted that the testimony given by King before the Grand Jury as set forth in paragraph 5 of the complaint was untrue. "The respondent did not concede that he procured or solicited Busbee and Arnold to give the false testimony before the State Attorney (Tr. p. 4) nor that he solicited, conspired, etc. with Sheriff Gordon to procure Busbee and Arnold to falsely testify. "With these stipulations and with the testimony of Mr. Busbee above outlined, the Bar rested its case. "The respondent placed on the stand numerous character witnesses (Tr. pp. 40-126) and offered to place many more character witnesses on the stand, but the Bar through its counsel waived this and agreed that the letters attached to the transcript as exhibits No. 2(a) through 2(dd) be received in evidence. "The respondent was then placed on the stand and made an apparently full disclosure of all the pertinent portions of his participation in the transactions resulting in these proceedings (Tr. pp. 126-168). "The respondent's testimony can be summarized as follows: "He had been a practicing attorney in Winter Haven, Polk County, Florida, since 1925. He had become interested in politics and was elected State Senator in Polk County in 1940 and was re-elected for three succeeding terms totaling sixteen years of service. In the 1955 session of the State Senate, he was the leading candidate for President of the 1957 Senate, having secured sufficient commitments to assure his election. "For many years, Boon D. Tillett, an attorney of Polk County, had been antagonistic to the respondent. Tillett was elected to the House of Representatives of Polk County, serving in the 1955 session. He announced as a candidate against the respondent for State Senator in the primaries of 1956 and a bitter campaign was anticipated. "Early in the compaign, Tillett approached the respondent and offered to withdraw in respondent's favor if the respondent would reimburse Tillett for $10,000.00 of campaign expenses. Respondent ultimately agreed to pay this $10,000.00 to eliminate Tillett as an opponent. "At Tillett's suggestion, they met in the grove near Babson Park for the exchange of the money and for Tillett to deliver to the respondent a signed announcement of Tillett's withdrawal from the race. The exchange was made and the respondent thereafter released the announcement to the press, whereupon Tillett revealed that the whole thing had been a plant to attempt to establish the respondent as having bribed Tillett to withdraw from the race. "The Sheriff of Polk County, active in Polk County politics apparently decided to protect the respondent by procuring two of the Sheriff's Deputies, Busbee and Arnold, to testify that the respondent was the one that tried to trap Tillett and that the two Deputy Sheriffs had assisted in the entrapment by secretly witnessing the meeting in the grove near Babson Park. "These Deputies did so testify before the State Attorney while he was investigating the case, and before the Grand Jury which was investigating *401 the case and ultimately issued several indictments. The respondent knew these Deputies were going to so falsely testify, but in his overwhelming desire to be re-elected State Senator and become President of the Senate, did not attempt in any way to prevent this perjury. In addition, the respondent himself testified falsely before the State Attorney and before the Grand Jury regarding the Deputy Sheriffs' presence at the bribery scene. "Respondent now makes no attempt to defend his conduct, but on the contrary confesses that he had misconducted himself as above set forth. "The Bar offered no evidence as to any other occasions in which the respondent had ever been accused of misconduct as an attorney or otherwise, resting its case solely on the misconduct of the respondent in connection with the Tillett matter. "Respondent humbly states that he has at all times in his practice of law, except for the Tillett occasion, properly conducted himself. His good record in this behalf was testified to by some twenty-three witnesses and similar testimony of many other witnesses was proffered by the respondent, and conceded by the Bar. Amongst those testifying to the high standard and good conduct of the respondent, both before and after the events complained of, were Circuit Judges Henry G. Stephenson (Tr. pp. 48-56) and William K. Love (Tr. pp. 63-67); Polk County Judge, Richard A. Bronson (Tr. pp. 101-103); D.H. Sloan, Jr., Circuit Clerk of Polk County from 1937 to 1964; Ray Clements, Tax Collector of Polk County since 1940, and a member of the Florida Bar since 1949 (Tr. pp. 107-109) and numerous lawyers practicing in Polk County. "Amongst those who wrote letters of recommendation which were received in evidence were Glen Darty, State Attorney of the Tenth Circuit, Circuit Judge D.O. Rogers of the Tenth Circuit; and many other lawyers practicing in Polk County, including many of the senior and most highly respected members of the Bar, such as J. Hardin Peterson of Lakeland, Gordon Petteway of Lakeland, H.C. Crittenden of Winter Haven and Henry Jollay of Winter Haven. "The gist of all the character testimony was to the effect that the respondent had at all times and in all matters (except the Tillett transaction) evidenced a high sense of responsibility and a high conception of legal ethics and had been one of the most highly respected and trusted members of the Polk County Bar for many years. "As a result of the Tillett episode, the respondent was prosecuted and convicted, although ultimately all convictions were reversed. He never took the witness stand in any of the criminal trials and so did not further compound his perjury or subornation of prejury. Probably as a result of the Tillett episode, he was defeated in the election for State Senator and has never again held public office, his political future having been effectively ruined by the episode out of which these proceedings arose. Incidentally, he never received the return of the $10,000.00 bribery as Mr. Tillett managed to dispose of that. Mr. Tillett is now dead and consequently unable to testify in these proceedings. "Some of the criminal proceedings involved in this matter appear in the following cases: Gordon, et al. vs State of Florida [Fla.] 104 So.2d 524 Gordon vs State of Florida [Fla. App.] 119 So.2d 753 (certiorari denied [Fla.] 123 So.2d 349) King vs State of Florida [Fla.App.] 134 So.2d 502 *402 King vs State of Florida [Fla.] 143 So.2d 458 "FINDINGS OF FACT "After considering all of the pleadings, exhibits and evidence before me, I find that: "1. The respondent did on or about March 19, 1956, knowingly and willfully testify falsely under oath before the Grand Jury of the Tenth Judicial Circuit, the false testimony set forth in paragraph 5 of the complaint. "2. That the respondent knew that James L. Busbee and Rollie Arnold intended to commit perjury in testifying before the Acting State Attorney for the Tenth Judicial Circuit on or about February 29, 1956, and did not attempt to dissuade them or in any way to prevent them from so perjuring themselves for his benefit. "RECOMMENDATION OF GUILT "It is recommended that respondent be found guilty as charged in paragraph 5 of the complaint. It is recommended that he be found not guilty as to the matters charged in paragraphs 3 and 4 of the complaint as there is insufficient evidence to show that respondent "solicited, procured and caused" the perjury charged in paragraph 3 and no evidence at all as to the respondent's guilt under paragraph 4. "RECOMMENDATION OF DISCIPLINE "If this matter had been brought before me shortly after the acts of misconduct, I believe that I would have unhesitatingly recommended disbarment for a substantial period, if not permanently. However, the situation has been drastically changed by the lapse of time and the actions of the respondent in the interim. The misconduct took place over eight years ago. It is the only act of misconduct ever attributed to the respondent. Before and since that time, he has conducted himself in an exemplary fashion and earned and retained the confidence of the Bench and Bar of his circuit. Under these circumstances, to recommend either disbarment or suspension would accomplish no worthy objective. The respondent has been substantially punished by the ruining of his political future, the loss of the $10,000.00 bribe, the expense of defending himself in the criminal and disciplinary proceedings and in the humiliation and embarrassment he must have suffered over the years. His misconduct, gross as it was, nevertheless did not occur in his capacity as an attorney. His clients have not suffered as a result of his misconduct. "Because of the widespread publicity resulting from the various criminal trials, I feel that some action should be taken publicly to show that the Bar does not condone the respondent's actions, even though his good conduct in recent years has made suspension or disbarment inadvisable. I, therefore, recommend a public reprimand." In accordance with the provisions of Integration Rule 11.06(9) (b), 31 F.S.A. which provides: "Bar counsel and respondent may each file a statement in support of or in opposition to the findings and recommendations of the referee," a statement by counsel for The Florida Bar was filed with the Board of Governors in which Bar counsel concurred in the referee's recommendations concerning a public reprimand. The full statement of Bar counsel is as follows, viz.: "The undersigned Bar counsel received respondent's statement in opposition to the Referee's recommendation of discipline on the 9th day of September, 1964. "Bar counsel agrees with the recommendation of discipline as contained in *403 the Referee's report, but disagrees with the Referee's recommendation of guilt. "It is felt that the testimony, evidence and stipulation of the parties conclusively showed that the respondent was guilty of subornation of perjury as charged in paragraph 3 of the complaint and guilty of conspiracy to commit perjury as charged in paragraph 4 of the complaint. "The testimony conclusively showed that it was the respondent who took the two deputy sheriffs, Busbee and Arnold, to the orange grove, the scene of the alleged payoff, for the purpose of rehearsing or preparing their testimony before the Acting State Attorney on that same afternoon. (TR. pp. 20, 21, 22, 23, 24, 25, 34 and 35.) "As Bar counsel and as a member of a profession that is generally considered an honorable one, I can think of very few violations more serious and involving moral turpitude than that of perjury, subornation of perjury and conspiracy to commit perjury. Lawyers, more than any other group of people, should be aware of the importance and sanctity of oaths before judicial bodies. There simply is no excuse or defense that could be offered on behalf of a lawyer of Mr. King's intelligence and experience after he willfully lied under oath before a duly constituted Grand Jury. "Perhaps even more serious is his subornation of the perjury of the two deputy sheriffs, both of whom pled guilty to perjury, suffered public disgrace and humiliation and remained on probation for a period of time. Particularly when neither of these two deputies had anything to gain from their sworn testimony, whereas Mr. King was to have benefited from same. "Bar counsel concurs in the Referee's recommendations concerning a public reprimand for the simple reason that it will at least in a small way help to put the record straight." On December 1, 1964, the Board of Governors of The Florida Bar filed its judgment in this cause. It concurs with the findings of the referee but disagrees with his recommendation of discipline. It recommends that respondent be disbarred. We have given careful consideration to the entire record in this cause and agree with the conclusions and recommendations of the referee. He is an able, experienced and highly regarded circuit judge. He heard the witnesses and was in a position to judge the sincerity of their testimony. The acts committed by respondent were extremely reprehensible, and we are convinced, as was the referee, that had this case been diligently initiated and prosecuted at the time of the commission of such acts we would have considered disbarment required. Had such occurred, and had respondent now nine years later petitioned for reinstatement and presented the record of exemplary conduct both before and after these acts that he has presented here, we would order reinstatement. Disciplinary proceedings should be handled with dispatch. State ex rel. Florida Bar v. Oxford, Fla., 127 So.2d 107. Disciplinary or disbarment proceedings are solely for the purpose of purging the roll of legal practitioners of unworthy or disreputable members and not for the purpose of punishment for any malfeasance or dereliction of duty, and no fine, imprisonment or other punitive sentence can be imposed. State ex rel. Florida Bar v. Rubin, Fla., 142 So.2d 65. Prior to these acts of respondent he was a successful lawyer and state senator. He was well regarded for his ability as well as his integrity. He had reached the point that his high goal of becoming president of the Florida Senate was committed to him by his fellow senators, and he only needed to be returned as senator by the electorate of his district to attain this ambition. Then *404 he became involved in political skulduggery with a ruthless political enemy who was determined to defeat him for the office. By his own aggression, or that of his antagonist, respondent bought this opponent out of the race for the sum of $10,000, but his opponent did not stay bought. He made public political capital of the incident, and then came a political tussle between the two as to who had set a trap for the other. Things went from bad to worse, and respondent saw his reelection and the presidency of the senate, which had seemed so secure to him, slipping from his grasp as a result of this altercation. No doubt in desperation, he went along with a false story and not only knowingly allowed others to testify to it but also did so himself. Such actions cannot be condoned, particularly by a member of the legal profession. But we believe from the evidence presented, as apparently did the referee, that said actions were out of character for respondent. We do not condone them, and respondent does not. They are extremely reprehensible and damaging to the legal profession. We are now confronted with the question of whether or not we should further damage respondent by taking away from him his profession of thirty-nine years' standing. He has suffered degradation and humiliation, the loss of reelection to the senate, as well as the presidency of the senate, the loss of $10,000 and the torment of being under criminal prosecution for a number of years. In spite of this, according to all of the evidence presented, he has at all times since that episode nine years ago conducted himself in an exemplary manner as a man and as a lawyer. The testimony reflects that since this occasion he has given his clients "gold plated" service in his legal representation of them. He has the support of every circuit judge of his circuit, as well as the bar of that area. In addition, other prominent and substantial non-lawyer citizens appeared in his behalf. In spite of the respondent's gross misconduct of nine years ago, we believe that by his subsequent exemplary conduct he has earned the right to continue to serve his profession. We believe that he will at all times in the future conduct himself in such manner as to rectify, insofar as he can, the blemish that he has placed upon his record. If we did not think so, we would agree with the Board of Governors and sustain the order of disbarment. Under the circumstances heretofore related, however, we consider disbarment or suspension at this late date to be excessive. It is, thereupon, Ordered that Harry E. King be and he is hereby publicly reprimanded for his acts aforesaid. Costs of these proceedings in the sum of $1,019.51 are assessed against respondent. It is so ordered. DREW, C.J., THORNAL, O'CONNELL and BARNS (Retired), JJ., and McCORD, Circuit Judge, concur.

969 F.2d 1045 Russellv.Puckett* NO. 91-1761 United States Court of Appeals,Fifth Circuit. July 21, 1992 1 Appeal From: S.D.Miss. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

510 U.S. 1195 Wilsonv.Southern Railway Co. et al. No. 93-1219. Supreme Court of United States. March 21, 1994. 1 Appeal from the Ct. App. Ga. 2 Certiorari denied. Reported below: 208 Ga. App. 598, 431 S. E. 2d 383.

674 S.E.2d 864 (2009) ESTATE OF Robert Judson JAMES, Administrator, Edwin F. Gentry, Esq. v. Kenneth C. PEYTON. American Casualty Company of Reading, PA v. Kenneth C. Peyton. Record Nos. 081310, 081314. Supreme Court of Virginia. April 17, 2009. *865 Bruce A. Levine (Holley & Levine, on brief), for appellant Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq. Dawn E. Boyce (Trichilo, Bancroft, McGavin, Horvath & Judkins, on briefs), Fairfax, for appellant American Casualty Co. of Reading, PA. Leila H. Kilgore (Kilgore & Smith, on brief), Fredericksburg, for appellee. OPINION BY Justice LAWRENCE L. KOONTZ, JR. In these consolidated interlocutory appeals arising from a personal injury action, we consider whether the circuit court erred in concluding that an amended motion for judgment properly names an administrator of an estate rather than the estate itself as a party defendant. Specifically, we consider whether the language "Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esquire" names a proper party to the personal injury action in question in these appeals. BACKGROUND Whether a pleading has adequately identified the proper party to be sued is a question of law. Therefore, we review the record de novo on appeal. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006); Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003); Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001). On April 5, 2004, Kenneth C. Peyton filed a motion for judgment[1] in the Circuit Court of Culpeper County against Robert Judson James. Peyton alleged therein that on February 6, 2003, Peyton and James were involved in an automobile accident in Culpeper County at the intersection of Virginia Route 663 and U.S. Route 29. Peyton alleged that as a proximate result of James' negligent operation of his vehicle, Peyton suffered various personal injuries. Peyton sought $500,000 in damages. At the time the April 5, 2004 motion for judgment was filed, Peyton's counsel was apparently unaware that James had died on March 1, 2003 as a result of injuries he sustained in the accident. James died intestate, and no administrator of his estate had qualified at the time the action was filed. On July 6, 2004, Peyton filed a "MOTION FOR LEAVE TO AMEND MOTION FOR JUDGMENT/SUBSTITUTE ESTATE FOR DEFENDANT." (Emphasis added.) In that motion, Peyton requested that the circuit court grant "leave to substitute `the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq.' for the Defendant, Robert Judson James." The motion further averred that "the proper party is `the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq.'" A copy of the amended motion for judgment appended to Peyton's motion for leave to amend styled the defendant as "the Estate of ROBERT JUDSON JAMES, Administrator, Edwin F. Gentry, Esq." The following pertinent allegations of fact are made in the body of the amended motion for judgment: 2. Defendant, Robert Judson James, was a resident of Brandy Station, Virginia. 3. Robert Judson James died on March 1, 2003. 4. On June 28, 2004, Mr. Edwin F. Gentry, Esq. qualified as the Administrator of the Estate of Robert Judson James. By an order dated July 7, 2004, the circuit court granted Peyton's motion for leave to amend. On the same day, the clerk of the circuit court issued a notice of amended motion for judgment to be served on Gentry. On July 27, 2004, an answer and grounds of defense, captioned in the style of the amended motion for judgment, was filed. The pleading admitted that Gentry qualified as the administrator of James' estate. The pleading was signed: *866 ESTATE OF ROBERT JUDSON JAMES By Counsel Peyton obtained service of process of the amended motion for judgment on American Casualty Company of Reading, Pennsylvania, his uninsured motorist carrier. Thereafter, American Casualty filed a response and grounds of defense on October 6, 2004. Ultimately, on March 27, 2008, a motion for summary judgment was filed on behalf of "the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq."[2] Principally citing Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171-72 (1996), it was contended in the motion that Peyton's action was a nullity because the named defendant was an estate. The motion contained the further assertion that it was not sufficient to include a reference to the personal representative of the estate in the caption as "[t]his is not merely a mis-ordering of words," because "[t]he personal representative and the estate are two different entities," and, thus, "naming the estate is not a misnomer" which could be cured by a further substitution of the personal representative of the estate. On April 1, 2008, following a hearing conducted on the motion for summary judgment, the circuit court ruled that Peyton's amended motion for judgment failed to properly identify Gentry, in his capacity as administrator of James' estate, as the defendant. Additionally, because Peyton's motion to amend had asserted that the "estate" was to be substituted for the original defendant, the court ruled that the amended motion for judgment had identified the estate, not Gentry, as the defendant. Accordingly, the court sustained the motion for summary judgment, ruling that Swann required that an action maintained against an estate could not be amended to substitute the personal representative since they are separate, distinct entities. Thereafter, on April 16, 2008, the circuit court conducted a hearing upon Peyton's motion to reconsider the court's April 1, 2008 order. At that hearing, Peyton sought to distinguish Swann, contending that the amended pleading identifying the defendant as "the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq." was merely a misnomer, not a misjoinder. Peyton requested the court to set aside the prior order granting summary judgment and, pursuant to Code § 8.01-6, to permit a further amendment of the motion for judgment "correcting" the style of the defendant to be "Edwin F. Gentry, Esq., Administrator of the Estate of Robert Judson James." This should be permitted, Peyton contended, because Gentry had actual notice of the action and would not be prejudiced by allowing the further amendment. The circuit court initially announced its ruling from the bench, stating: "It may be that the style of the amended motion for judgment was not worded as one might expect. But Mr. Gentry, upon further review, is correctly named as the administrator. He is, in fact, the duly qualified administrator by this Court and he was personally served with process." Reversing its prior determination, the court concluded that the amended motion for judgment properly identified Gentry, in his capacity as the administrator of the estate, rather than the estate itself, as the defendant. At the conclusion of the April 16, 2008 hearing, the circuit court entered an order vacating the April 1, 2008 order. In that order, the court expressly ruled that "the Defendant the estate of Robert Judson James, Administrator, Edwin F. Gentry, Esquire, is a proper party pursuant to this Court's Order." Thereafter, on June 30, 2008 and pursuant to Code § 8.01-670.1, the circuit court entered an order certifying an interlocutory appeal to this Court on the issue whether "the Defendant `The Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esquire' is a proper party to the action." By *867 orders dated November 8, 2008, we awarded these appeals, consolidating them for argument and decision. DISCUSSION Initially, we observe that the party filing a civil action has an obligation to express the nature of the claim being asserted, and the identity of the party against whom it is asserted, in clear and unambiguous language so as to inform both the court and the opposing party of the nature of the claim being made. See, e.g., Ford Motor Co. v. Benitez, 273 Va. 242, 251-52, 639 S.E.2d 203, 207 (2007); Hensley v. Dreyer, 247 Va. 25, 30, 439 S.E.2d 372, 375 (1994). Thus, when there is an ambiguity in the pleading, whether as a result of a defect in form or lack of clarity in the allegations made, the proponent has the burden to show that the pleading is sufficient to identify the claims being asserted and the party alleged to be liable on those claims. The motion for judgment filed by Peyton on April 5, 2004 was proper in form in that it clearly stated a claim for personal injuries allegedly suffered by Peyton as a result of the negligence of Robert Judson James, who was identified in both the caption and throughout the body of the pleading as the defendant. The record does not disclose whether, prior to filing the pleading, Peyton's counsel was aware that James had died on March 1, 2003. Prior to July 1, 1991, an action "filed against a deceased party was a nullity." Parker v. Warren, 273 Va. 20, 24, 639 S.E.2d 179, 181 (2007) (citing Rennolds v. Williams, 147 Va. 196, 198-200, 136 S.E. 597, 597-98 (1927)). "Thus, if a litigant filed a personal action against a defendant who, possibly unbeknownst to the plaintiff, had died, ... the statute of limitations would continue to run." Id. Nor could the error, even if unintentional, be cured by substituting the executor or administrator of the deceased party's estate "because the personal representative was a person distinct from the decedent, the mistaken naming of the decedent was not a misnomer and substitution of the personal representative did not relate back to the initial filing of the lawsuit." Id. (citing Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971)); see also Swann, 252 Va. at 184, 476 S.E.2d at 172. However, an amendment of Code § 8.01-229 in 1991 adding subsection (B)(2)(b) altered this long-standing rule "by providing that [an action] filed against a defendant who was deceased when the action was filed could be amended to substitute the decedent's personal representative." Parker, 273 Va. at 24, 639 S.E.2d at 181. Code 8.01-229(B)(2)(b) provides: If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent's personal representative as party defendant before the expiration of the applicable limitation period or within two years after the date such suit papers were filed with the court, whichever occurs later, and such suit papers shall be taken as properly filed. Pursuant to Code § 8.01-229(B)(2)(b), Peyton's July 6, 2004 motion to amend the original motion for judgment was clearly authorized under the circumstances of this case. However, the amended motion for judgment remained subject to the rule requiring the motion to be clear and unambiguous in expressing the identity of the party the plaintiff intends to name as the defendant and upon what basis that party is liable to the plaintiff. Here, unless the amended motion for judgment clearly identified Gentry, in his representative capacity, as the party being substituted as the party defendant in place of James, Code § 8.01-229(B)(2)(b) would not permit the substitution of a separate party defendant. Peyton acknowledges that the proper format for identifying a personal representative of an estate as a party defendant in a pleading is to list the personal representative by name followed by a description of the capacity in which he or she is being sued. He contends, however, that the "syntactical difference" between the proper form for such pleadings and the form used in the caption of his amended motion for judgment in this case *868 is of no moment because "the words `Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq.' ... share the same meaning as `Edwin F. Gentry[,] Esq., Administrator, Estate of Robert Judson James.'" Peyton further contends that even if the circuit court erred in determining that the form of the amended pleading was adequate to identify Gentry in his representative capacity as the party defendant, the defect in the pleading was nonetheless merely a misnomer and subject to correction by amendment. This is so, he maintains, because unlike Swann, where the named party was only identified as the estate without reference to a personal representative in the original action filed, here the pleading identified Gentry as the personal representative in both the caption and the body of the pleading, and Gentry had actual notice of the action. We disagree. In addition to discussing this same issue in Swann, we have addressed analogous issues in cases involving other types of relationships that require a person or entity that is not capable of appearing sui juris to sue or be sued through a fiduciary in a representative capacity. In such cases, the courts are required to determine whether the identification of the party comported with a recognized statutory form. If it did not, the courts must determine whether the defect in the pleading constituted a misnomer, where the right person or entity was made a party but was incorrectly named in the pleading, or a misjoinder, where the person or entity identified by the pleading was not the person by or against whom the action could, or was intended to be, brought. See, e.g., Cook v. Radford Community Hosp., Inc., 260 Va. 443, 451, 536 S.E.2d 906, 910 (2000). Where there is a misjoinder of a party who cannot sue or be sued directly, there is a corresponding nonjoinder of the fiduciary who is the proper party. The distinction is significant. It is permissible by amendment of the deficient pleading to correct a misjoinder under Code § 8.01-5, a misnomer under Code § 8.01-6, and a nonjoinder under Code §§ 8.01-5 and 8.01-7. However, the statutes distinguish the circumstances under which the permitted correction will relate back to the original filing, effectively tolling the statute of limitations. In that regard, Code § 8.01-6, in pertinent part, provides that: An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party. In similar fashion, Code § 8.01-6.1 permits this relation back for amendments changing or adding a claim or defense, and Code § 8.01-6.2(A) permits the same for amendments regarding a party's trade name or corporate name.[3] Moreover, even when correction of a misjoinder and nonjoinder is permitted, the amendment is only allowed to bring in a proper defendant. Likewise, a new plaintiff may not be substituted for an original plaintiff who lacked standing to bring the action. *869 Chesapeake House on the Bay, Inc. v. Virginia National Bank, 231 Va. 440, 442-43, 344 S.E.2d 913, 915 (1986); see also Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247, 253, 377 S.E.2d 381, 384 (1989); Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163, 173, 118 S.E. 502, 505 (1923). In Cook, an action was filed in the name of a person who had been declared incompetent and for whom a guardian had been appointed. The trial court denied a motion to amend the pleading to reflect that the guardian was the proper party plaintiff, ruling that the defect could not be cured by amendment and dismissed the action. 260 Va. at 446, 536 S.E.2d at 907. On appeal, we affirmed the judgment, concluding that the error in filing the action in the name of the incompetent constituted a misjoinder, not a misnomer. Id. at 451, 536 S.E.2d at 910. Similarly, in Miller v. Highland County, 274 Va. 355, 650 S.E.2d 532 (2007), we considered whether an action which named a locality as a party defendant, rather than the locality's governing body, was subject to correction as a misnomer. Holding that the relevant statutory provision under which the action was brought required the action to be against the governing body, we concluded that there had not been a misnomer because the plaintiff "did not incorrectly name the right entity[, the governing body], but named a different entity[, the locality]." Id. at 368, 650 S.E.2d at 537. We used the same rationale in Swann to conclude that "[t]he personal representative of a decedent and the decedent's `estate' are two separate entities; the personal representative is a living individual while the `estate' is a collection of property." Swann, 252 Va. at 184, 476 S.E.2d at 172. Accordingly, we held that "one cannot be substituted for another under the concept of correcting a misnomer." Id. As in Cook and Miller, there was no dispute in Swann as to whether the pleading naming the incorrect party could have been interpreted as actually naming the proper party. In each case, respectively, the pleading clearly named the incompetent, the locality, and the estate, not the guardian, the governing body, or the personal representative. Thus, while these cases are instructive in resolving the present appeals, we must first consider whether the circuit court erred in ruling that Peyton's amended motion for judgment adequately identified Gentry, in his representative capacity, as the party defendant. We addressed a similar "syntactical" conundrum in Herndon v. St. Mary's Hospital, Inc., 266 Va. 472, 587 S.E.2d 567 (2003). In that case, we were required to consider whether the parents of a minor child could bring an action in their own names as next friend of the child, rather than in the name of the child by them as his next friends. We concluded that under the applicable statute an action for the benefit of a minor child must be brought in the name of the child by a next friend because the "established rule is that the minor child, not the next friend, is the real party in interest in such an action." Id. at 476, 587 S.E.2d at 570. Accordingly, we held that the trial court did not err in dismissing the action, since the parents were not entitled to maintain the action for the child in their own names. Id. at 477, 587 S.E.2d at 570. Although we were not required to address the question whether the court should have allowed the substitution of the child, by his parents as next friends, as the proper party, it is clear that, as in Cook, such an amendment would not have been allowed since the failure to name the proper party plaintiff cannot be cured by an amendment. In determining the adequacy of a pleading to identify a party, we consider the pleading as a whole. Thus, whether a party named in a caption is a proper party to the action is to be determined not merely by how that party is identified in the caption of the pleading, but by the allegations set forth within a pleading that identify that party more specifically. See McCormick v. Romans, 214 Va. 144, 147, 198 S.E.2d 651, 653 (1973). As Peyton conceded during oral argument of these appeals, the amended motion for judgment is not a model of clarity. Indeed, there is a patent ambiguity between the caption of the amended motion for judgment and *870 the allegations within that pleading. The caption identifies "the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq." as the defendant; the allegations within the motion for judgment refer to the "Defendant, Robert Judson James." Although Peyton states in the motion for judgment that James died and that Gentry qualified as administrator of James's estate, nothing within the body of the pleading clearly identifies Gentry in his capacity as administrator of James' estate as the party defendant. To the contrary, when the term "defendant" is used in the allegations of fact, the term clearly refers to James, as when, for example, it is alleged that Peyton's vehicle was struck by "Defendant's vehicle." Just as in Herndon, where the order of the words identified the parents, not the child, as the plaintiffs who were further described as the "next friends" of the child, here, the most straightforward reading of the amended motion for judgment identifies "the Estate of ROBERT JUDSON JAMES" as the party defendant. While the caption of the pleading goes on to identify Gentry as the administrator of the estate and the body of the pleading recites the fact of his qualification as administrator, at best these references only serve to identify James' estate more specifically. They simply do not name Gentry, rather than the estate, as the party defendant when the pleading is read as a whole. Accordingly, we hold that the circuit court erred in ruling that the amended motion for judgment identified Gentry, in his capacity as administrator of James' estate, as the party defendant. Because we have determined that the estate was the party defendant named by the amended motion for judgment, it follows that this case is controlled by Swann, unless there is merit in Peyton's contentions that Swann can be distinguished on the ground that despite the "misnomer" of the proper party defendant, here Gentry, the proper party, was identified in the amended motion for judgment and was actually served with that pleading. Accordingly, Peyton contends that there would be no prejudice in allowing a correction of the "misnomer." We disagree with those contentions. Peyton has misapprehended the difference between "misnomer" and "misjoinder." As was explained above, a "[m]isnomer arises when the right person is incorrectly named, not where the wrong defendant is named." Swann, 252 Va. at 184, 476 S.E.2d at 172; see also Cook, 260 Va. at 451, 536 S.E.2d at 910; Rockwell, 211 Va. at 561, 179 S.E.2d at 472. Code § 8.01-6 permits the correction of a misnomer where the party that was identified by the wrong name has notice and otherwise will not suffer prejudice by the amendment, and the statute relates the amendment back to the original filing, effectively tolling the statute of limitations. In this case, the wrong defendant was named, and Code § 8.01-6 is not applicable to such a misjoinder. Accordingly, the circuit court's original determination to award summary judgment and to dismiss Peyton's action in this case was correct, because a misjoinder is simply not subject to being legitimized by substituting the correct party. The only resolution in such a case, in the absence of a statute of limitations bar, is to commence a new action against the proper party. CONCLUSION For these reasons, we hold that the circuit court erred in setting aside the order of April 1, 2008 awarding summary judgment to the Estate of Robert Judson James and in permitting the amended motion for judgment to be maintained against Edwin F. Gentry in his capacity as administrator of the estate. Accordingly, the court's order of April 16, 2008 will be reversed, and because the applicable statute of limitations now bars Peyton's action, final judgment will be entered here for the estate and American Casualty. Record No. 081310—Reversed and final judgment. Record No. 081314—Reversed and final judgment. NOTES [1] The suit in this case was filed before we amended our rules, effective January 1, 2006, to provide that a civil action, which includes legal and equitable causes of action, is commenced by filing a "complaint." Rules 3:1 and 3:2; see also Ahari v. Morrison, 275 Va. 92, 95 n. 2, 654 S.E.2d 891, 893 n. 2 (2008). [2] The long interval between the filing of the initial pleadings and the motion for summary judgment was occasioned by ancillary proceedings, including the consolidation of this case with Peyton's action against another driver involved in the same accident, the intervention of a workers' compensation carrier asserting a right of subrogation, and extensive discovery. None of these proceedings, recounted in a manuscript record of more than 1000 pages, are germane to issues raised in these appeals. [3] While the parties in this appeal do not reference Code § 8.01-6.2(B), that statute provides that when an action is "filed against an estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of the estate of the deceased and service is effected or attempted on an individual or individuals as executor [or] administrator ... of the estate, such filing tolls the statute of limitations for such claim in the event the executor [or] administrator... of the estate [is] unable to legally receive service at the time service was attempted, or defend suit because [his] authority ... excludes defending said actions, or [his] duties ... had expired at the time of the service or during the time of defending said action." While we express no opinion with regard to the scope of the application of this statute, we note that by its express terms it is inapplicable in this case because Gentry was legally able to receive service of the suit under the proper name of James' estate.

595 F.2d 441 19 Fair Empl.Prac.Cas. 584, 19 Empl. Prac.Dec. P 9104Donald WREN, Appellant,v.T.I.M.E.-D.C., INC., Appellee. No. 78-1593. United States Court of Appeals,Eighth Circuit. Submitted Jan. 11, 1979.Decided April 3, 1979. 1 Michael J. Hoare of Chackes & Hoare, St. Louis, Mo. (argued), and Michael Wolf of American Civil Liberties Union, St. Louis, Mo., on brief, for appellant. 2 Thomas E. Tueth of Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, Mo. (argued), and Michael Miller of Gracey, Maddin, Cowan & Bird, Nashville, Tenn., on brief, for appellee. 3 Before ROSS and McMILLIAN, Circuit Judges, and VAN SICKLE, District Judge.* 4 VAN SICKLE, District Judge. 5 Donald Wren appeals from an order of the United States District Court for the Eastern District of Missouri dismissing his action against T.I.M.E.-D.C., Inc. Wren alleges that T.I.M.E.-D.C. discriminated against him because of his religious beliefs and practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e Et seq. The trial court, following the guidelines set forth by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), concluded that T.I.M.E.-D.C. was unable to accommodate Wren's religious practices in a reasonable manner without undue hardship. We affirm. 6 Wren had been an employee of T.I.M.E.-D.C., an interstate trucking operation, since 1965. He was an over-the-road truck driver and had been a member of Local 600 of the Teamsters Union approximately nineteen years. 7 The St. Louis terminal operates 365 days a year and is a critical link in T.I.M.E.-D.C.'s trucking operation which covers basically the entire continental United States. At the time suit was brought, approximately sixty over-the-road truck drivers were employed at the St. Louis terminal. 8 The St. Louis terminal operates under a contract with Local 600 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. This agreement subjected the St. Louis terminal to a seniority system. This seniority system is important in scheduling drivers on the various runs. Approximately sixty percent of the over-the-road drivers' runs are bid runs. The remaining drivers are placed on the extra board. 9 Drivers, according to their seniority, may bid for set schedule runs during a bidding period that occurs once every six months. The bid run is desirable in that it consists of a schedule with a regular departure time, regular days off, a regular number of work hours per week, and a more steady paycheck. 10 Over-the-road drivers who are unable to secure a bid run because they lack seniority or are unwilling to secure a bid run for any personal reasons are placed on the extra board. Extra board drivers haul freight as it becomes available and must be available for call from the dispatcher twice daily. The extra board is also subject to the seniority system. Drivers on the extra board with the most seniority are called first and may reject the run only if extra board drivers with less seniority are available. If no extra board drivers with less seniority are available, the driver called is required to protect the shift by driving the run. Any driver on the extra board may decline a run for certain reasons. Some of these reasons are sickness of a driver, more than seventy hours of driving within eight days, or excused absence secured in advance of the dispatch. Thus, the least senior extra board driver contacted, who is without a sufficient excuse for not making the run, must make the run. 11 If all the extra board drivers are either assigned or have excused absences and there is still a need for drivers for the scheduled number of runs, the dispatcher checks with off-duty bid drivers, laid off city drivers, and casual road drivers1 in that order. If either city drivers or casual road drivers are utilized, T.I.M.E.-D.C. is required under the union contract to make certain contributions to insurance and pension funds.2 The substitute drivers do not have to be available for call from the dispatcher and, even if contacted, may refuse the run at will. This creates a problem in that if the dispatcher cannot locate a driver within a certain time period, a run may have to be cancelled. Since dispatches out of St. Louis are timed to relay with dispatches out of other T.I.M.E.-D.C. terminals, unavailability of a driver may result in delay or cancellation of both runs, causing T.I.M.E.-D.C. to experience a double economic loss and the customers to experience a delay in service. 12 Between 1974 and 1976, T.I.M.E.-D.C. was in serious financial difficulty. In an all-out effort to turn the company around, there were stringent measures taken. One of the measures taken was to reduce the number of drivers employed and to utilize the remaining drivers to their utmost capacity. Because certain benefits such as health, welfare, and pension costs are set, it is more economical to work one driver seventy hours per week than to work each of two drivers thirty-five hours per week. 13 At the time of this suit, Wren was 44-years old. In his thirteen years with T.I.M.E.-D.C., he had climbed to twenty-fourth out of fifty-nine drivers on the seniority list at the St. Louis terminal. In August of 1972, Wren began to study the beliefs of the Worldwide Church of God and was baptized into that faith in April of 1973. One of the principles of the religion is that the Sabbath, which is celebrated from sundown Friday to sundown Saturday, is a day of rest on which no work may be done. All parties agree that Mr. Wren's religious sincerity is not an issue in this case. 14 In April of 1973, Mr. Wren provided Tom Thiene, T.I.M.E.-D.C. Terminal Manager at St. Louis, with documents explaining the basic tenets of the Worldwide Church of God regarding its Sabbath and Holy Days. Since Wren's seniority was not high enough to secure a bid run that would not conflict with his Sabbath, he remained on the extra board. From 1973 through 1976, Wren was able to avoid work on most Sabbaths without incident. During this period of time, the company had a large pool of drivers, and the dispatchers would usually call Wren only when the extra board was exhausted. This same arrangement was apparently available to the other extra board drivers when they wanted time off. However, Wren was not immune from work on his Sabbath. Information compiled from his driver's log books indicate that Wren worked on all or part of his Sabbath twelve days in 1973, sixteen days in 1974, eleven days in 1975, and nine days in 1976. 15 On May 5, 1976, Robert Grempler became the St. Louis Terminal Manager. In an effort to cure the company's financial difficulties, Grempler reduced the number of drivers, and tried to utilize them to their maximum number of hours per week. Because of this reduction in drivers, the extra board became exhausted much more often than before, and Wren was asked to drive on his Sabbath with increased frequency. In June of 1976, Wren and another driver, who was a member of the Worldwide Church of God, asked for excused absences on their Sabbath. Grempler refused the requests with the following reply: 16 In reference to your request for excused absences, failure to protect your work shift when required in compliance with the National Master Freight Agreement and Central States Area Over the Road Supplemental Agreement, will result in disciplinary action, up to and including discharge. 17 In 1977, Wren began to insist that he would work on the Sabbath only in an emergency. Wren claimed an emergency existed only when less senior extra board drivers, off duty bid drivers, laid off city drivers, and casual drivers were all unavailable. But Grempler demanded that Wren be available to drive when the extra board was exhausted. 18 Wren then resorted to using his ingenuity to avoid working on the Sabbath. He scheduled dentist and chiropractor appointments on Saturdays. At other times he called in sick on Friday night. Wren also let his Department of Transportation Health Certificate (DOT) lapse. If all else failed, Wren could remember this certificate and have an excuse for not working on the Sabbath. 19 Because of these tactics, Wren was issued warning letters on June 25, 1977, July 5, 1977, and August 15, 1977. In these letters Wren was notified that Grempler would no longer accept any excuses from Wren for not protecting his dispatch on Friday nights and Saturday mornings with the exception of a claim of sickness verified by a doctor's statement. 20 On August 26, 1977, October 29, 1977, and December 12, 1977, Wren was discharged for failure to protect his dispatch. Each incident involved a refusal to accept a work assignment on the Sabbath. Wren was reinstated after the first two discharges upon his agreeing to be available for dispatch on his Sabbath when the extra board became exhausted. Wren never carried these agreements out. 21 The basic cause of Wren's discharge was his persistent attempts to observe his Sabbath. Title VII of the Civil Rights Act of 1964 prohibits the discharge of an employee because of his religion. Title 42 U.S.C. § 2000e-2(a)(1)-(2) provides: 22 (a) It shall be an unlawful employment practice for an employer 23 (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or 24 (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 25 Religion is defined in 42 U.S.C. § 2000e(j) as follows: 26 (j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. 27 Thus, it is an unlawful employment practice for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of its employees. 28 The United States Supreme Court, in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), provided new guidelines concerning the degree to which Title VII requires an employer to accommodate the religious beliefs of its employees. The Court stated, in an opinion by Mr. Justice White, that Title VII did not require an employer to undertake activity which would violate a bona fide seniority system in the name of accommodation. The Court also stated that an employer was not obligated to take accommodation steps which would require it to bear costs, such as overtime pay for replacements, if such costs were more than De minimis. 29 Having carefully scrutinized the record in this case and having found the facts to be as set forth above essentially the same as they were found by the trial court we apply the controlling law and reach the same conclusion as the district court. Judge Wangelin applied the Hardison standards to the facts of this case as follows: 30 It is true that defendant did not bend over backwards to accommodate plaintiff. However, it made efforts within the seniority system to aid him. Defendant is not required to go out of that system. TWA v. Hardison, 432 U.S. at 81, 97 S.Ct. 2264. Plaintiff even had one opportunity to bid on a regular run that did not conflict with his Sabbath. Although his failure to do so certainly does not preclude recovery, he does have an obligation to try to eliminate the conflict. (footnote omitted) Cf. Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977). 31 The procedure plaintiff suggests would involve calling off-duty regular over-the-road drivers, laid off city drivers and casual drivers. In addition to paying extra contributions if casual or city drivers were used (as discussed earlier) dispatchers would be required to go through a more complicated procedure merely to find the driver. If that procedure were to fail, as it might because the alternate drivers suggested by plaintiff are not paid to be "on call", defendant would be required to cancel a run. The expenses could further pyramid if deliveries or customers were lost. Such a system would require T.I.M.E.-D.C. to bear more than a De minimis cost. TWA v. Hardison, 432 U.S. at 84, 97 S.Ct. 2264. Under the standards described in Hardison, defendant has fulfilled its obligation to plaintiff and judgment will be entered accordingly. 32 Wren v. T.I.M.E.-D.C., Inc., D.C., 453 F.Supp. 582, 584 (1978). 33 We hold that T.I.M.E.-D.C. should not be compelled to bear more than a De minimis cost in order to accommodate Wren's religious practices. Actual costs in using replacement drivers include contributions to insurance and pension funds and costs of locating replacement drivers. Additional costs are foreseeable because of delays and cancellations of runs when replacement drivers are not timely available. Further, it would violate the seniority system to arrange for Wren to have Saturdays off. It would deprive the other employees of their contractual seniority rights under the Central States Area Over the Road Supplemental Agreement. 34 We therefore affirm on the basis of the trial court's well reasoned opinion reported at 453 F.Supp. 582 (1978). * The Honorable Bruce M. Van Sickle, United States District Judge for the District of North Dakota, sitting by designation 1 Drivers who have no permanent employment relationship with the company 2 At the time this suit was brought, if a laid off city driver was used during a week, T.I.M.E.-D.C. was required to make the full weekly contribution into the Health and Welfare and Pension Funds provided under the terms of the union contract. This amounted to $55.50. If a casual driver was used, T.I.M.E.-D.C. was required to pay the casual driver an additional fifty cents per hour for a hospitalization insurance contribution, and to pay into the union's Pension Fund $6.00 per tour of duty

793 F.Supp. 233 (1992) Murray GRIBIN, Plaintiff, v. HAMMER GALLERIES, A DIVISION of HAMMER HOLDINGS, INC.; Jules Brassner, Defendants. No. 92-0411 RG (Sx). United States District Court, C.D. California. May 7, 1992. David Paul Steiner of Steiner & Saffer, a Professional Law Corp., Los Angeles, Cal., for plaintiff Murray Gribin. Sheldon M. Jaffe and Robert E. Young of Law Offices of Sheldon M. Jaffe, Los Angeles, Cal., for defendants Hammer Holdings, Inc. and Jules Brassner. ORDER ON DEFENDANTS' MOTION TO DISMISS OR, ALTERNATIVELY, TO CHANGE VENUE GADBOIS, District Judge. This action came on for hearing before the Court, Honorable Richard A. Gadbois, Jr., presiding, on April 20, 1992. Having considered the moving and opposition papers, arguments of counsel and all other matters presented, the Court hereby rules as follows. Background The Plaintiff is an art collector who sold a painting by Marie Laurencin entitled "Three Young Ladies" to Defendant Brassner for $450,000 in June, 1990. (Unbeknownst to Plaintiff, Defendant Hammer *234 Galleries was Brassner's "partner" in the purchase and put up half of the purchase price — apparently because the two Defendants planned on re-selling the painting to a Japanese buyer.) The sale was consummated through Ansley Graham, either — this is disputed by the parties — by Graham contacting Brassner and offering to sell him the painting or by Brassner contacting Graham and offering to buy the painting. According to the Complaint, Graham was a former private art broker and mutual friend of both Plaintiff and Brassner and did not receive any commission for the sale. Pursuant to the purchase agreement, the painting was accompanied by a certificate of authenticity of Paul Petrides — who is "the leading expert on Marie Laurencin art," according to Plaintiff. It seems, however, that Defendants' Japanese buyer wanted the painting examined by Daniel Marchessau — who, Plaintiff claims, is a more recently established expert on Laurencin art, but, according to Defendants, is "the leading expert on Marie Laurencin." Apparently, Marchessau examined the painting and refused to include it in his Catalogue Raisonne of the works of Marie Laurencin, which, according to Defendants, is "tantamount to ... a determination that the painting is less than authentic" and thus makes it "unsaleable [with] virtually no market value." Subject matter jurisdiction is based on diversity, pursuant to 28 U.S.C. § 1332(a)(1) (Supp.1991). Analysis A. MOTION TO DISMISS. 1. Standards for Hearing Declaratory Action. The Declaratory Judgment Act [28 U.S.C. § 2201(a)] provides: In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. "[I]t is now well settled by a multitude of cases that the granting of a declaratory judgment rests in the sound discretion of the trial court exercised in the public interest." 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2759, at 645 (2d ed. 1983 & Supp.1991) (hereinafter Wright & Miller). Declaratory relief will ordinarily be granted when it will "serve a useful purpose in clarifying the legal relations in issue or terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Tierney v. Schweiker, 718 F.2d 449, 457 (D.C.Cir. 1983); see Maryland Cas. Co. v. Rosen, 445 F.2d 1012 (2d Cir.1971); Wright & Miller § 2758, at 630. On the other hand, a district court ordinarily should not entertain a declaratory action "where another suit is pending in state court presenting the same issues, not governed by federal law, between the same parties." Continental Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1370 (9th Cir.1991) (quoting Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620 (1942)).[1] 2. Race to the Courthouse. Presently, there is no parallel action pending in any court. However, Defendants contend that Plaintiff beat them to the courthouse door and they would have filed/will file this action in the Southern District of New York.[2] Defendants cite a plethora of cases from other circuits to buttress the notion that the Declaratory Judgment Act should not be used to "deprive the plaintiff of his traditional choice of forum and timing, ... provok[ing] a disorderly race to the courthouse." *235 Hanes Corp. v. Millard, 531 F.2d 585, 593 (D.C.Cir.1976). In response, Plaintiff argues that most of the cases cited by Defendants are ones in which a parallel action had been filed. Defendants reject this distinction as irrelevant, contending that they have clearly announced their intention to file suit as soon as this action is dismissed or transferred, but have not done so yet in the interests of economy. While some earlier courts applied a chronological test — whereby the first suit commenced is allowed to proceed — this Court believes "the discretion of the federal court cannot turn on so mechanical rule"; rather: The real question for the court is not which action was commenced first but which will most fully serve the needs and convenience of the parties and provide a comprehensive solution of the general conflict. Wright & Miller § 2758, at 637-38. 3. Anticipation of Defense. The Declaratory Judgment Act was not intended to enable a party to obtain a change of tribunal from a state to federal court, and it is not the function of the federal declaratory action merely to anticipate a defense that otherwise could be presented in a state action. Wright & Miller § 2758, at 631-632. In their Reply, Defendants elaborate on the circumstances giving rise to Plaintiff's filing of this action. Defendants allege that they waited over a year after learning of the dubiousness of the painting's authenticity to file suit — during which time, they investigated the authenticity and repeatedly spoke with Plaintiff who "insinuated that if it were determined that the painting were not a Laurencin original, he would refund the purchase price." Then, when Marchessau finally and unequivocally refused to authenticate it, Defendants claim, they "formally ... demanded rescission," upon which Plaintiff "cunningly moved instantly to bring this lawsuit" while Defendants were still awaiting his response to their rescission demand.[3] Numerous courts have refused to grant declaratory relief to a party who has come to the court only to assert an anticipatory defense: The Fifth Circuit held that the district court had not abused its discretion in staying a declaratory action pending the outcome of a parallel suit in another federal district court, filed by the declaratory defendant 40 days after the declaratory action was instituted. Amerada Petroleum Corporation v. Marshall, 381 F.2d 661 (5th Cir.1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 776, 19 L.Ed.2d 828. The court relied on the district judge's findings that (1) the declaratory action "apparently was in anticipation of the New York suit[,] an equitable consideration which the district court was entitled to take into account" [citations omitted], id. at 663; and (2) factors ... favor[ed] New York as the better forum." Id. at 664. The Seventh Circuit affirmed a district court's dismissal of a declaratory action, where a general contractor sought declarations that (1) it was not in charge of the construction site where an accident had occurred, (2) the injured employees had no cause of action against it, and (3) the subcontractor was liable to indemnify it for any amount recovered. Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165, 1167 (7th Cir.1969). The court held that: to compel potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tortfeasor would be a perversion of the Declaratory Judgment Act. Id. at 1167. The Fourth Circuit upheld a district court's refusal to entertain a declaratory relief prayer where the "apparent reasons for the ruling were that the declaratory plaintiff's suit was anticipatory of the action at law [filed ten days later in another federal district] and that a declaratory judgment might not settle the entire controversy." Allied-General Nuclear Services *236 v. Com. Edison Co., 675 F.2d 610, 613 (4th Cir.1982).[4] In a case discussed earlier, Hanes, 531 F.2d at 585, the D.C. Circuit first considered whether the district court had properly exercised its jurisdiction in entertaining the declaratory action which involved patent infringement — one of the types of litigation for which the Declaratory Judgment Act was particularly designed. However, the court distinguished the plaintiff in Hanes from the usual declaratory patent plaintiff — one who brings suit due to her uncertainty about the legality of the course of conduct she wishes to pursue — because Hanes instead was: simply in the position of one expecting to be sued for past alleged transactions ... [and] one who desires an anticipatory adjudication, at the time and place of its choice, of the validity of the defenses it expects to raise against patent-related claims it expects to be pressed against it. Id. at 592. 4. Failure or Delay in Bringing Suit. Additionally, one district court has devoted a thoughtful consideration to many of the issues presented in the instant case. In State Farm Fire and Cas. Co. v. Taylor, 118 F.R.D. 426 (M.D.N.C.1988), the court dismissed State Farm's declaratory action seeking a determination of whether it was liable under a fire insurance policy issued to the defendants. After reviewing some "discretionary guidelines" to be considered, the court held "most importantly to the case at bar, `[t]he anticipation of defenses is not a proper use of the declaratory judgment procedure'." Id. at 429-30. The court emphasized: The declaratory remedy is not a tactical device whereby a party who would be a defendant in a coercive action may choose to be plaintiff if he can beat the other party to the courthouse. Id. at 431 (emphasis in the original). The court explained that a useful purpose may be served — the guiding principle for whether to entertain declaratory actions—"if the party entitled to bring a coercive action fails or delays in bringing it." Id. at 429 (emphasis in the original). However, the court found that the insureds had not so delayed since the declaratory action had been filed before they had the opportunity to file their own action. Id. Thus, State Farm could not show it needed relief from any "uncertainty and insecurity" caused by a "coercive plaintiff's" failure to sue, id., or that its "rights could be fully protected" only by a declaratory action. Id. at 430 n. 4 (citing American Telephone & Telegraph v. Henderson, 63 F.Supp. 347, 347 (N.D.Ga.1945)). Significantly, the court also went on to hold that the insureds had not been unreasonable in not filing a parallel action during the pendency of the declaratory action, stating: Although the existence of a parallel state action is a factor to be considered, it is not an inflexible prerequisite for a discretionary dismissal, particularly, where, as here, the potential coercive plaintiff intends to bring an action. Id. at 429 n. 6.[5] 5. Relief from Uncertainty Arising from Delay in Prosecution. In his Opposition, Plaintiff claims: *237 Defendants ignore the fact that plaintiff has attempted to resolve the dispute without litigation but to no avail. Plaintiff has at all times been fully cooperative and anxious to resolve this dispute expeditiously. Opposition, at 13. However, this Court has not located in the record any declarations or other support for these alleged attempts to resolve the parties' dispute. Nor has the Court unearthed any claims by Plaintiff that the continuing unresolved status of the conflict (or Defendants' failure to prosecute) has caused Plaintiff any particular harm. Nor did Plaintiff request any damages in his prayer for relief — other than costs and expenses of the litigation. On this record, the only potential harm to the Plaintiff is that he may have to defend a suit in New York, which will be more costly and difficult for him. However, this implicates the very principle behind the cases cited above: the allegedly aggrieved party is entitled to choose the time and place for suit. B. CONCLUSION OF THE COURT. Finding that Plaintiff has artfully filed this action as a preemptive maneuver in anticipation of his defense and in order to seize a California forum, this Court hereby exercises its discretion to dismiss this action. The action is dismissed without prejudice.[6] IT IS SO ORDERED. NOTES [1] The same rule applies where the parallel action is pending in another federal district. See Rowan Companies, Inc. v. Blanton, 764 F.Supp. 1090, 1093 (E.D.La.1991). [2] According to Defendants' moving papers, when Defendants learned that the subject painting would not be included in Marchessau's catalogue, they telephoned Plaintiff and requested that he rescind the purchase agreement, immediately upon which Plaintiff filed this action. [3] Apparently, Defendants plan to sue Plaintiff for fraud and breach of contract. [4] The court noted the rule that, ordinarily, upon multiple suits being filed in different federal courts upon the same factual issues, the first action is permitted to proceed to the exclusion of the other, but stated: "Given our disposition here, we have no occasion to consider the applicability of this rule of priority to the instant controversy." Id. at 611 n. 1. [5] The Ninth Circuit has recently spoken similarly on this point. An insurance company brought a declaratory action — seeking a declaration of non-liability on an insurance policy — one month after the insureds had filed suit for breach of contract. Continental Cas. Co. v. Robsac Industries, 947 F.2d 1367 (9th Cir.1991). The Ninth Circuit found the district court had abused its discretion by not dismissing or staying the declaratory action — brought solely on the basis of diversity jurisdiction. The court's holding rested in part on the interest in avoiding litigants' use of the declaratory judgment action as a means of forum shopping — finding the insurance company's suit represented "the archetype of ... `reactive' litigation." Id. at 1372. In response to the insurance company's contention that it had intended to file suit in federal court before the insured filed the state court action, the court stated: Whether the federal declaratory judgment action regarding insurance coverage is filed first or second, it is reactive, and permitting it to go forward when there is a pending state court case presenting the identical issue would encourage forum shopping in violation of the Brillhart principle. Id. at 1372-73. [6] Plaintiff may attempt to re-file later if, for example, he can show that Defendants' failure to bring suit has caused uncertainty and insecurity from which he needs relief — one of the purposes of the Declaratory Judgment Act.

668 F.2d 333 SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.Interstate Power Company, Iowa Electric Light and PowerCompany, Iowa-Illinois Gas and Electric Company, Iowa Powerand Light Company, Iowa Public Service Company, IowaSouthern Utilities Company, Metropolitan Utilities Districtof Omaha, Minnesota Gas Company, North Central PublicService Company, Northern States Power Company (Minnesota),Northern States Power Company (Wisconsin), NorthwesternPublic Service Company, and Northern Natural Gas Company,Intervenor-Respondents. No. 79-2020. United States Court of Appeals,Eighth Circuit. Submitted Sept. 15, 1981.Decided Nov. 25, 1981.As Amended Feb. 9, 1982. Frances E. Francis, South Dakota Public Utilities Commission, Spiegel & McDiarmid, Washington, D. C., for petitioner. 1 Joshua Z. Rokach, Federal Energy Regulatory Commission, Washington, D. C., for F. E. R. C. 2 George Meiburger, Gallagher, Boland, Meiburger & Brosnan, Washington, D. C., for intervenor, Northern. 3 Before LAY, Chief Judge, and HEANEY, BRIGHT, STEPHENSON, HENLEY, McMILLIAN and ARNOLD, Circuit Judges, En banc.* 4 HEANEY, Circuit Judge, with whom LAY, Chief Judge, and BRIGHT and McMILLIAN, Circuit Judges, join. 5 This matter is before the Court en banc on the petition of the South Dakota Public Utilities Commission to review an order of the Federal Energy Regulatory Commission (FERC). The order permitted the Northern Natural Gas Company (Northern or Commission) to depreciate certain equipment over a period of time shorter than its physical life on the theory that Northern's supplies of natural gas would be exhausted prior to the time the equipment became obsolete. When the matter was first before a panel of this Court, 643 F.2d 504, we affirmed. We now reverse. We hold that the depreciation rates fixed by FERC are neither within the zone of reasonableness nor supported by substantial evidence. The rates appear to have been developed to support settlement rates agreed to by Northern and its wholesale customers rather than on the basis of natural gas reserves that are or will become available to Northern. The FERC substantially underestimated the natural gas reserves in Northern's traditional supply areas, significantly understated the share of future reserves from those areas that Northern can be expected to purchase, and failed to give any weight to the fact that Northern has entered into several agreements which reasonably insure that it will receive substantial supplies of natural gas from nontraditional supply areas during the physical life of its equipment. 6 We reverse and remand to the FERC. I. FACTUAL AND PROCEDURAL BACKGROUND 7 Northern is a major interstate transporter of natural gas with revenues exceeding one billion dollars per year. Its pipelines move natural gas from the producing areas of Texas, Oklahoma and Kansas northward to Nebraska, Iowa, South Dakota, Minnesota and Wisconsin. Northern also owns producing and gathering equipment offshore in the Gulf of Mexico, in Montana and in Wyoming. For the purpose of computing depreciation, Northern's properties are divided into four components, two of which are of primary importance here. The first is referred to as the South End supply area. The South End links Northern's traditional major supply fields-the Hugoton-Anadarko and the Permian Basin-to the rest of the Northern system. The second major component is referred to as the Market Area which consists of the equipment north of the Kansas-Nebraska border.1 8 The primary issues in the proceedings below were whether the FERC properly estimated the reserves of natural gas available in areas capable of supplying Northern, and what share of those estimated reserves Northern would be able to acquire. The depreciation rates developed by the Staff were determined by a modified unit of production method which allocates depreciation costs on the basis of the volume of gas that is expected to flow through the facility (its useful life) rather than its physical life. The higher the estimates of natural gas supplies, the lower the depreciation rates should tend to be because it is more likely that the pipeline system will be a useful asset throughout its physical life. Conversely, the lower the estimated supplies, the higher depreciation rates should be because the pipeline system may become useless before it has physically deteriorated to the point where abandonment would be required. For example, in this case, under the FERC staff's estimates, Northern's facilities will be useful until approximately the year 2000. The physical life of the equipment, however, will not end until about the year 2011. In these circumstances, the FERC concluded that an increased rate of depreciation was appropriate. Therefore, the gravamen of this litigation, and the subject of nearly 7,000 pages in this voluminous record, is how much natural gas Northern can reasonably expect to have available to it for purchase between now and 2011. 9 The FERC2 order approved settlement agreements in two related rate cases filed by Northern. The first, RP 76-89, was filed on April 22, 1976. It requested rate increases of $71.7 million per year. The second, RP 77-56, was filed about a year later, while the earlier case was still pending. It requested additional rate increases of $109 million per year. Both were requests for general rate increases that eventually were narrowed to the single issue of proper rates of depreciation.3 10 Negotiations between the FERC and Northern in RP 76-89 began in August, 1976. Thirty-one petitions for leave to intervene were granted; most of the petitioners were local utilities. Several state regulatory agencies were also represented including the South Dakota Public Utilities Commission and the Iowa State Commerce Commission. In October, 1976, the FERC approved Northern's settlement rates, setting the composite depreciation rate at 4.48 percent and providing for rate increases of $57 million per year. South Dakota filed adverse comments on the settlement proposal. The FERC rejected South Dakota's arguments. On application for rehearing, the Commission reversed itself, finding that the settlement was not supported by substantial evidence and remanded the case to the presiding administrative law judge for a hearing on the depreciation rates. A three-day hearing was held in January and February, 1978. In June, the ALJ found that neither the settlement rates nor those proposed by South Dakota were supported by substantial evidence. He held that Northern's preexisting rates would remain in effect. 11 Meanwhile, RP 77-56 had reached a similar stage. Following discussions among Northern and other parties, a settlement was reached providing for increases of $63.6 million per year. South Dakota again opposed the settlement rates. A hearing was held in April of 1978. The parties agreed to waive the ALJ's initial decision; and upon completion of the hearing, the proposed settlement and the record were certified to the FERC. Thus, the two cases consisting of identical parties and similar issues were pending before the FERC. In August, 1979, the Commission issued its order consolidating the two dockets and approving the settlement rates calling for increases of $120.6 million per year. South Dakota made an application for rehearing which was denied on October 4, 1979. This appeal followed.4 II. STANDARDS AND SCOPE OF REVIEW 12 The Natural Gas Act of 1938 provides the authority and the relevant standards to guide the FERC in its administrative function. Section nine of the Act, 15 U.S.C. § 717h, authorizes the FERC to determine "proper and adequate rates of depreciation" for natural gas companies within its jurisdiction. Section four, 15 U.S.C. § 717c, requires that the depreciation rates set by the FERC pursuant to section nine must be "just and reasonable." See Memphis Light, Gas and Water Division v. Federal Power Commission, 504 F.2d 225, 230 n.19 (D.C.Cir.1974). A final Commission decision on a contested settlement must be supported by substantial evidence. Placid Oil Co. v. Federal Power Commission, 483 F.2d 880, 893 (5th Cir. 1973). 13 The FERC has been granted wide latitude to use its expertise to set depreciation rates. Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b), provides that "(t)he finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." Id.; see 5 U.S.C. § 706(2) (E). The United States Supreme Court has interpreted the role of a court reviewing ratemaking orders as follows: 14 (W)e have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. * * * We are not obliged to examine each detail of the Commission's decision; if the "total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end." * * * 15 Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a "zone of reasonableness." (Citations omitted.) 16 Permian Basin Rate Cases, 390 U.S. 747, 791-792, 88 S.Ct. 1344, 1372-1373, 20 L.Ed.2d 312 (1967). 17 While the discretion accorded the FERC in ratemaking is wide, it is not unlimited. The FERC cannot rely on empty recitals of agency expertise to sustain its decision. It must use that expertise and give "reasoned consideration to each of the pertinent factors." Permian Basin Rate Cases, supra, 390 U.S. at 792, 88 S.Ct. at 1373; Tenneco Oil Co. v. Federal Energy Regulatory Commission, 571 F.2d 834, 839 (5th Cir. 1978); American Public Gas Association v. Federal Power Commission, 567 F.2d 1016, 1030 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978). We, as a reviewing court, have a responsibility to carefully search the record to determine whether or not the FERC has "articulate(d) some rational relation between the facts found, supported by substantial evidence, and the action which it took." Memphis Light, Gas and Water Division v. Federal Power Commission, supra, 504 F.2d at 230. In sum, our primary role is to decide whether the rate selected by the FERC is within a "zone of reasonableness," whether the agency has given reasoned consideration to each of the pertinent factors and whether the ultimate rate is just and reasonable.5 18 Only one other court has discussed its role in the special circumstances of a FERC order allowing an increase in depreciation rates due to decreasing supplies of natural gas. Memphis Light, Gas and Water Division v. Federal Power Commission, supra, 504 F.2d at 232-233, 235. There, the District of Columbia Circuit reversed and remanded a FERC order where there was no evidence in the record regarding the future reserves available to the pipeline company. Id. at 236. The court found that the Commission accepted the utility's projections without sufficient critical examination and stated that an increase in depreciation rates must be based upon substantial evidence and not "snatched from the air on a purely hypothetical 'worst case' analysis." Id. at 234. On remand, the Commission was instructed to make a reasoned estimate of the useful life of the particular equipment involved. The court identified three pertinent factors that the Commission must consider in making its reasoned estimate, each of which is relevant here: 19 (1) FERC's independent judgment based on evidence pertinent to what the Commission really expects will happen; 20 (2) Current policies designed to increase or sustain industry-wide gas supply; and 21 (3) The extent and location of reserves that the utility may utilize. Id. at 235. 22 As discussed below, the FERC failed to adequately consider these and other factors in selecting its depreciation rates. III. DISCUSSION 23 The FERC found that the models used by the staff established a zone of reasonable estimates of natural gas available in Northern's traditional supply areas (the Hugoton-Anadarko and Permian Basins). The lower bounds of the zone was marked by the "EHF" model, and the upper bounds by the "PGC" model. It then found that the staff's final estimate of the share of gas reserves available to Northern from these areas, which was based on a weighted average of Northern's share for 1974, 1975 and 1976, was a reasonable one. 24 The following tables set forth the depreciation rates derived from the two models, the present rates and the settlement rates. 25 RP 77-56 -------- Area EHF PGC Present Settlement ---- --- --- ------- ---------- South End 5.45 4.79 4.65 5.25 Market Area 3.96 3.10 3.75 3.75 RP 76-89 -------- South End 5.44 4.99 4.65 5.15 Market Area 4.02 3.33 3.75 3.75 26 Before discussing whether the models properly establish a zone of reasonableness, it would be well to explain the models in some detail. 27 The EHF model is named for Edward H. Feinstein, a member of the Commission staff. The EHF model is statistically based and predicts annual reserves based on a theory that relates drilling efforts to results. The model uses historical data to project future reserves. The theory assumes that for any finite depletable natural resource, the large high-grade, easy-to-find deposits are discovered during the early years of the depletion cycle and that the mature years are marked by the discovery of smaller, scattered and lower-grade deposits. Hugoton-Anadarko and Permian Basin fields are mature basins. 28 Feinstein based his predictions on statistics from 1967-1976. He compared cumulative exploratory drilling footage to cumulative reserve additions. He extrapolated this historical data to predict the potential gas recoverable and the reserves discovered annually. This pattern was extended to the point where the relationship of effort to results was negligible. As part of this process, Feinstein calculated a figure referred to as "effectiveness of exploration" which was a comparison of new field drilling footage to new field discoveries. He next plotted the effectiveness of exploration data in relation to exploratory footage and time in separate graphs, and then compared cumulative reserve additions to cumulative exploratory footage. This information is based on national data and was used to determine the respective depreciation rates by applying these national averages to the basins here. 29 The PGC model is based upon estimates of natural gas reserves developed by the Potential Gas Committee (PGC) in conjunction with the Potential Gas Agency at the Colorado School of Mines. The Potential Gas Agency is supported by the American Gas Association. The PGC model is one of the few studies which utilizes factual regional data, including data from the two basins here. The estimate represents the potential supply to be found by wells expected to be drilled in the future under conditions of (1) adequate but reasonable prices, and (2) normal improvements in technology. Estimates are made for only those accumulations which occur at less than 30,000 feet. Gas from nonconventional sources is not included. The estimates have remained reasonably consistent since 1968. 30 PGC divides its estimates into the following categories: 31 Proved reserves-Proved reserves are the current estimated quantity of natural gas which analysis of geologic and engineering data demonstrate with reasonable certainty to be recoverable in the future from known oil and gas reservoirs under existing economic and operating conditions. * * * 32 Potential supply-This is the prospective quantity of gas yet to be found or to be added to existing fields exclusive of proved reserves. It is divided into the following three categories: 33 Probable-The most assured of new supplies resulting from the growth of existing fields. This includes extensions and new pools in productive discovered reservoirs and shallower or deeper new pool discoveries within existing fields in formations productive elsewhere within the same geologic province or subprovince. * * * 34 Possible-Less assured is the supply from new field discoveries in formations previously productive; such new fields would be distinctly separated from existing fields. As an example, an undrilled structure would be in this category. 35 c. Speculative potential gas supply (associated with non-productive formations.) 36 (1) Supply from new pool discoveries in formations not previously productive within a productive geologic province or subprovince. 37 (2) Supply from new field discoveries obtained by: 38 (a) Future new field discoveries in formations not previously productive within a productive geologic province or subprovince. 39 (b) Future new field discoveries within a geologic province not previously productive. (Emphasis included.) 40 Potential Supply of Natural Gas in the United States (as of December 31, 1976), Potential Gas Committee, Potential Gas Agency, Colorado School of Mines at 5, 6 & 30 (1977). 41 With this background, we turn to the question of whether the rates approved by the FERC are within the zone of reasonableness. In our view, they are not for the following reasons: 42 A. The rates appear to have been developed to support the settlement rates, and the share factor analyses is not supported by substantial evidence in the record. 43 The Commission Staff used three different approaches at various stages of this proceeding to determine the appropriate rates of depreciation. Initially, the Staff assumed that the natural gas reserves available in the Hugoton-Anadarko and Permian Basins would be those estimated by the Potential Gas Committee (PGC) in 1972-discounting the probable and possible categories by 50 percent and eliminating the speculative category entirely. Then using a weighted average of Northern's shares in 1974 and 1975, the Staff estimated that Northern would secure 10.40 percent of the available natural gas in the Hugoton-Anadarko Basin and 9.06 percent of the available reserves in the Permian Basin. Based on these estimates, the Staff arrived at depreciation rates that approximated those agreed to in the settlement agreement. 44 The matter was appealed to the Commission which held that the Staff had demonstrated no basis for discounting the possible and probable categories by 50 percent. The Staff then took a different approach to predicting reserves. E. H. Feinstein of the Staff utilized the above-described EHF model using data for each year from 1970 to 1976. His estimates of the natural gas reserves in the Hugoton-Anadarko and Permian Basins using this formula were higher than those predicted using the discounted PGC estimates. Feinstein then reduced the estimate of Northern's share of these reserves to 4.65 percent for Hugoton-Anadarko and 8.22 percent for Permian. As a result, his estimates of natural gas available to Northern from the two basins were even less than the Staff's initial predictions. 45 Feinstein then made a third attempt at estimating total reserves. He adopted the PGC's 1976 estimates for probable and possible natural gas supplies in the Permian and Hugoton-Anadarko Basins, once again excluding the speculative category. Next, he estimated Northern's share in the relevant basins to be 6.3 percent for Hugoton-Anadarko and 9.29 percent for Permian. These percentages represented the weighted average of Northern's shares from 1974 to 1976. Feinstein contends that the change in percentages was the result of the addition of Northern's share for 1976 and the inclusion of American Gas Association "revisions" of previously reported reserves. The net result was that his estimate of reserves available to Northern again approximated the reserves predicted by the settlement agreement. 46 In commenting on Feinstein's effort, the ALJ stated: 47 It is difficult to know what to make of all this. 48 The fact that the Staff's principal expert first went at the task of computing proper and adequate depreciation rates and thereafter felt compelled to repeat the exercise two more times, using different techniques and producing different results, does not inspire great confidence in the validity of the initial job. * * * 49 Considering the implications of the question, one suspects that the Staff has sought to justify a predetermined result. But that is not the Staff's function. Its function here was conscientiously to draw reasoned inferences from data which in its best judgment most closely correspond to the truth. 50 Docket No. RP 76-89, Initial Decision of Administrative Law Judge, at 30 (1978). 51 We agree with this statement. We would add that neither the Staff nor the Commission has given any satisfactory explanation for reducing Northern's shares from 10.4 percent and 9.06 percent to a lower level. The Commission does state that the final share factors-6.3 percent for the Hugoton-Anadarko Basin and 9.29 percent for the Permian Basin-represent the average of the shares acquired by Northern for the years 1974, 1975 and 1976. It argues that these years are more apt to predict the future than the years suggested by South Dakota, 1971-1976. (Under the latter suggestion, Northern's share factor would be 17.22 percent for the Hugoton-Anadarko Basin and 14.89 percent for the Permian Basin.) 52 If the Staff had adhered to the data for the same three-year period from the start, one might be inclined to accept the decision as a rational one; but it did not. After having to modify its total reserve projections, the Staff adjusted the shares three times to bring the final result within the terms of the settlement agreement. Moreover, at the time the decision was being considered by the Commission, two additional years of experience-1977 and 1978-were available which it did not use. In 1977, Northern acquired 8.14 percent of the available gas in the Hugoton-Anadarko Basin and 14.49 percent of the natural gas in the Permian Basin. In 1978, Northern acquired 7.98 percent of the reserves available in the Hugoton-Anadarko Basin and 12.77 percent of the reserves available in the Permian Basin. If the Commission modified its estimates to reflect the addition of recent data, as it did for the 1976 data, it could and should have also used the information that was available for 1977 and 1978, information which reflects Northern's ability to acquire a larger share of the gas in the basins here as a result of the Natural Gas Policy Act. 53 Moreover, Northern's shares during the 1974-1976 period used by the Commission were particularly low due to intense competition from intrastate companies which were not subject to the federal price ceiling that controlled interstate companies. With the enactment of the Natural Gas Policy Act, the intrastate/interstate distinction has been eliminated. As a result of the new price parity, Northern, as its own witness admitted, can reasonably expect to obtain an increased share of the natural gas available in the Hugoton-Anadarko and Permian Basins. Indeed, this fact is evidenced by the larger shares that Northern obtained in 1977 and 1978-which the Commission ignored. 54 B. The EHF model on which the rates are primarily predicated is seriously flawed. 55 The validity and reasonableness of the EHF model is critical to the Commission's decision. It is the model primarily relied upon by the Commission to estimate the reserves in Northern's traditional supply areas-the Hugoton-Anadarko and Permian Basins. This model projected the following reserves: 56 EHF PGC --- --- Hugoton-Anadarko Basin 37 99 Permian Basin 10 55 -- --- 47 Tcf 154 Tcf 57 (The PGC model is shown at this point to illustrate the fact that if the Commission had relied on it, Northern's reserves of natural gas would be more than sufficient to meet Northern's need through the life of its equipment.) 58 In our view, neither the validity nor the reasonableness of the EHF model has been sustained by substantial evidence on this record. 59 1. The model unduly minimizes the importance of developmental drilling during a period when rising prices have led to increased drilling activity.6 For example, in 1976, 1.5 Tcf of natural gas were added to the reserves in the Hugoton-Anadarko Basin by developmental drilling while only .211 Tcf were added to the same reserves by new field drilling. Similarly, 9,234 exploratory wells were drilled in the United States in 1976 compared to 7,539 in 1973, an increase of 22 percent. Thus, even if the model might have some validity at another time, it has little or none during this period. Higher prices brought about by the Natural Gas Policy Act and OPEC have led to massive developmental drilling which is not predicted with any degree of accuracy by a historical analysis of new field drilling. To illustrate this point, between 1972 and 1976, higher prices made drilling at depths between 15,000 and 30,000 feet feasible in the Hugoton-Anadarko Basin. This drilling resulted in additions of 28 Tcf to the reserves of that basin-an incremental addition that alone equals 76 percent of the total reserves projected by the EHF model.7 60 2. The study imputes the results of studies of nationwide gas production to the Hugoton-Anadarko and Permian Basins. No substantial evidence has been introduced to justify this extrapolation. In contrast, the PGC breaks down its estimates into regions, including the Hugoton-Anadarko and Permian areas. 61 3. The results give the impression of facial absurdity. The model projects that 80 percent of the reserves in the Hugoton-Anadarko Basin and 75 percent of the reserves in the Permian Basin will remain undiscovered through the year 2000. There is no evidence in the record to support this result. 62 4. The EHF estimates ignore current governmental policies expressed in the Natural Gas Policy Act, 15 U.S.C. § 3301 et seq. (Supp. III 1979). The Act deregulates the natural gas industry over a period of years on the theory that permitting prices to rise will stimulate production and increase the supplies of natural gas available to consumers. The Commission's response to the assertion that it was obligated to consider the Act's effect on the industry and the likelihood of its generating more reserves was that it "could not take into account the effect of the Natural Gas Policy Act on drilling because, as yet, we do not have sufficient facts on either drilling or the reserve additions that may result." In re Northern Nat. Gas Co., FERC Docket Nos. RP 77-56 and RP 76-89 at 5 (October 4, 1979) (Order Denying Rehearing). This is nonsense. The record is replete with evidence that, by early 1979, the Act, whatever else it had accomplished, was already beginning to achieve its goal of encouraging new drilling, exploration and production of natural gas.8 63 5. The model did not consider reserves in the two basins below the level of 15,000 feet even though wells below that depth were producing as early as 1976. 64 6. The Commission argues that the EHF estimates are substantiated by the testimony of Gary D. Hancock, Manager of Supply Evaluation for Northern. He theorized that the natural gas available in the Hugoton-Anadarko and Permian Basins would be limited by the fact that not more than 2,300 drilling rigs would be operating in the time period in question here. In fact, by the time this case was presented to the Commission, a substantially greater number of drilling rigs were already in operation. 65 C. The PGC model developed by the FERC staff falls within the zone of reasonableness but it was essentially ignored by the Commission in predicting reserves available in the Hugoton-Anadarko and Permian Basins. 66 The PGC model used by the Staff and approved by the Commission projected reserves of 99 Tcf in the Hugoton-Anadarko Basin and 55 Tcf in the Permian Basin. Even though these estimates entirely exclude the PGC speculative category, they project total reserves in the two basins which are 97 Tcf larger than those projected by the flawed EHF model. To put it another way, the PGC model projects reserves three times as large as the EHF estimate. If the speculative reserves were included, the differences would be even larger. 67 The Commission, commenting on these differences, stated: "Widely divergent estimates are not uncommon, and the Commission is satisfied that both of the staff's models are serious and careful studies satisfying the requirements of Memphis." It cited a 1977 study of the PGC as support for its position. The study does not support the Commission's claim of wide divergence. In fact, the study flatly contradicts the Commission's position. It states: 68 (W)hen the quantities of natural gas expressed in the various estimates are placed on the same basis and when the differences in basic assumptions and method of approach are considered, there is a remarkable degree of uniformity among most workers as to the most likely value of the quantity of natural gas yet to be discovered and developed within the United States. 69 A Comparison of Estimates of Ultimately Recoverable Quantities of Natural Gas in the United States: A Potential Gas Committee Report, Potential Gas Agency, Colorado School of Mines, at 9 (1977). 70 That the estimates are nearly uniform is clearly demonstrated by a close examination of Appendix No. 1, which has been reproduced from the 1977 PGC comparison study. This appendix not only debunks Feinstein's testimony that the estimates of the PGC are the highest in the field, but it also demonstrates graphically that the estimates of the PGC are remarkably consistent with other projections. The PGC estimates are particularly close to other predictions when the speculative category has been excluded, as they have been here. The chart below, derived from Appendix No. 1, illustrates this fact. We have included only those projections subsequent to 1972 which can reasonably be compared to the PGC projections.9 71 These estimates of total reserves of natural gas in the United States are very close indeed. The ratio between the lowest, U. S. Geological Survey, and the highest, Exxon, is only 1 to 1.20. Appendix No. 2 also illustrates clearly that the PGC estimates are conservative and well in line with those conducted by other major institutions.10 72 D. The Commission's estimates fail to give any weight to nontraditional natural gas sources in which Northern has made substantial investments, including Alaska, Alaska offshore, Atlantic offshore, and the Arctic. 73 A depreciation engineer for the Staff, Ronald Lucas, testified that the Commission was aware that Northern had recently invested in gas reserves in Alaska and the Arctic. Northern agreed to pay $30 million for the right to purchase 1.5 Tcf of natural gas in the Prudhoe Bay area at two cents per Mcf, and agreed to pay $20 million for development of natural gas fields in offshore Alaska and the Atlantic Coast. Northern has also agreed to advance $75 million for drilling expenditures in the Canadian Arctic Islands. See Northern Natural Gas Co., SEC File No. 1-3423, Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (SEC Form 10-K) at pp. 12-14 (for fiscal year ending December 13, 1978). The total Northern investment in these areas was $125 million from which it expects to receive substantial supplies of natural gas in the years ahead to supplement its purchases from its traditional supply areas and from Montana and the Gulf Coast. 74 Moreover, Northern contracted, in the late 1970s, to purchase gas from Canadian sources to help meet its needs until the Alaskan, Atlantic Coast and Arctic were able to deliver natural gas to it.11 Natural gas was being delivered pursuant to this contract at the time the final hearing on this matter was being held. 75 In projecting the natural gas reserves that will be available to Northern, the Commission failed to give any weight to these substantial efforts by Northern to secure gas from non-traditional sources.12 76 In sum, we are thoroughly convinced from a careful review of the entire record that the EHF estimates of natural gas reserves reasonably available to Northern are without support in the record and are not within the zone of reasonableness.13 The EHF estimates are substantially less than the PGC predictions which the Staff also examined.14 The PGC is one of the most respected analysts in the natural gas industry and its projections are well in line with those of other groups. Nevertheless, without any apparent rational basis, the EHF model totally eliminates the PGC's speculative category and then reduces the remainder by 300 percent. Moreover, the EHF projection ignores entirely the fact that Northern has spent at least $125 million to acquire the right to obtain reserves from non-traditional sources that show at least a reasonable probability of being productive. Prudence obviously dictates that a discount factor be applied to the speculative category of the PGC estimates and to non-traditional sources, but it also demands that some weight be given to these sources in setting the upper limits of the zone of reasonableness. The result is that Northern's consumers are unfairly overcharged. 77 The Commission finally argues, however, that if the depreciation rates it established now are too high, it can reduce them in a later rate case. The trouble with this theory is that the cost of Northern's service to its present consumers is unnecessarily excessive. Even if the facts are adjusted in the future, there is no guarantee that the present consumers will be compensated by such adjustments. Moreover, the Commission's approach creates a disincentive for Northern to acquire new supplies of gas. The accelerated depreciation rates will cause the rate base to decline more rapidly than it otherwise would if a realistic depreciation rate were used. While there may be an immediate improvement in cash flow that could be used to acquire new gas supplies, there is no mechanism for insuring that the added funds will be used to benefit Northern's gas customers inasmuch as Northern is a diversified company and may decide to invest the cash in its non-pipeline activities. IV. CONCLUSION 78 The Congress of the United States has given the Federal Energy Regulatory Commission the important and sensitive responsibility of regulating natural gas rates. To set appropriate rates, the Commission must necessarily determine depreciation rates; and to do this, it must estimate the potential recoverable natural gas reserves available to pipeline companies. Recognizing the difficulty of estimating reserves, the courts have permitted the Commission to develop estimates within a "zone of reasonableness." The Commission is expected to use its expertise to establish a zone of reasonableness. It did not do so here. It simply developed a mathematical formula that insured that its reserve estimates supported its settlement efforts. In so doing, it ignored the conservative geological estimates of the Potential Gas Committee which predicted reserves three times as large as those predicted by the Staff's EHF model. It also ignored non-traditional sources available to Northern. The FERC, with its expert staff, can certainly do better than that. 79 The public interest demands that the Commission fulfill its responsibilities. Accordingly, this case is remanded to the Commission with directions to it to vacate the rate increase granted pursuant to the orders being reviewed here and for further proceedings consistent with this opinion. 80 STEPHENSON, Circuit Judge, dissenting, with whom HENLEY and ARNOLD, Circuit Judges, join. 81 I respectfully dissent for the reasons stated in the majority panel opinion which I authored. See South Dakota Public Utilities Commission v. Federal Energy Regulatory Commission, 643 F.2d 504 (8th Cir.), rev'd en banc, 668 F.2d 333 (8th Cir. 1981). 82 The role of a court reviewing a decision by the FERC is limited to determining whether the FERC has given reasoned consideration to each of the pertinent factors. See South Dakota Public Utilities Commission v. Federal Energy Regulatory Commission, supra, 643 F.2d at 509. 83 It is my view that the Commission has given "reasoned consideration" to all of the pertinent factors in the formulation of the depreciation rates in question. Moreover, as noted in the panel opinion, "(t)he special responsibility placed in the hands of the FERC and the corresponding limited role of judicial review has often dictated the result." Id. at 510 (citing Tenneco Oil Co. v. Federal Energy Regulatory Commission, 571 F.2d 834, 840 (5th Cir. 1978); Shell Oil Co. v. Federal Power Commission, 520 F.2d 1061, 1071 (5th Cir. 1975)). 84 It remains my view that the combination of these two factors should likewise have dictated the result in this case.Appendix No. 1 85 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEAppendix No. 2 86 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 87 Figure 5 depicts the estimates of the quantities which include "most likely" or mean values from each of the four sources. The values may not all be exactly comparable but they do represent values of the quantity of undiscovered gas which can be expected to be found with a reasonable (on the order of 50% probability) degree of certainty. There is a close similarity among the estimates which have been made by the majority of estimators when one considers that the sum of the most likely value of possible potential supply and the probable growth of known fields should be about the same order of magnitude as the most likely, or 50% probability, quantity in statistical evaluation. Exxon's full inventory value is the most comparable to the PGC, Mobil and USGS estimates.Appendix No. 3 88 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 89 The estimates shown on Figure 6 include the total probable plus possible plus speculative categories of the Potential Gas Committee and the estimates of low probability from the other three sources previously considered. It seems remarkable, when recognizing the uncertainties involved in these types of estimates, that the values from these independent sources should be relatively close together, ranging from about 1 to 1.6 times as much potential, essentially undiscovered, gas as has been previously discovered. * The Honorable DONALD R. ROSS, United States Circuit Judge, took no part in the consideration or decision of this case 1 The other two components are the Montana supply area and the Gulf Coast area. Together, these two areas contain approximately five percent of Northern's depreciable property. South Dakota abandoned its attack on the settlement rates for these two areas during the hearing before the administrative law judge in RP 76-89 2 The FERC was established as part of the Department of Energy Organization Act which became effective on October 1, 1977. 42 U.S.C. § 7101, et seq. Most of the duties of the now defunct Federal Power Commission (FPC) were transferred to the FERC. These transferred responsibilities include the authority to set "proper and adequate" depreciation rates contained in section nine of the Natural Gas Act, 15 U.S.C. § 717h. Section 402(a)(2) of the Department of Energy Organization Act, 42 U.S.C. § 7172(a)(2), 91 Stat. 565, 584 (1977). Any reference to the Commission or FERC in this opinion corresponds to the appropriate agency depending upon the time frame 3 The FERC regulations define depreciation as follows: "Depreciation," as applied to depreciable gas plant, means the loss in service value not restored by current maintenance, incurred in connection with the consumption or prospective retirement of gas plant in the course of service from causes which are known to be in current operation and against which the utility is not protected by insurance. Among the causes to be given consideration are wear and tear, decay, action of the elements, inadequacy, obsolescence, changes in the art, changes in demand and requirements of public authorities, and, in the case of natural gas companies, the exhaustion of natural resources. FERC Uniform System of Accounts for Natural Gas Companies, 18 C.F.R. Part. 204-11B (1979) (emphasis added). There are, generally, two methods to determine depreciation cost. The straight line method which evenly distributes the cost of an asset over the full physical life. The second is based upon units of production. This method places emphasis on the total units to be produced and the rate of production. It takes into consideration the service life of an asset and thereby permits exhaustion of natural resources to be taken into account. The unit of production is prescribed by the Commission in its regulations. 18 C.F.R. Part. 201-404.1(B), 404.2(B) (1979). The FERC used the unit of production method to determine the settlement rates in question here. We find no error in this decision. 4 The Minnesota Public Service Commission intervened on appeal 5 Permian Basin Rate Cases, 390 U.S. 747, 791-792, 88 S.Ct. 1344, 1372-1373, 20 L.Ed.2d 312 (1967); Mobil Oil Corp. v. Federal Power Commission, 417 U.S. 283, 307-308, 94 S.Ct. 2328 (1974); Gulf Oil Corp. v. Federal Energy Regulatory Commission, 575 F.2d 67, 70 (3rd Cir. 1978); Tenneco Oil Co. v. Federal Energy Regulatory Commission, 571 F.2d 834, 838-840 (5th Cir. 1978); American Public Gas Association v. Federal Power Commission, 567 F.2d 1016, 1028-1030 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Memphis Light, Gas and Water Division v. Federal Power Commission, 504 F.2d 225, 230 (D.C.Cir.1974) 6 Feinstein testified that the method used in the EHF model is to analyze and extrapolate the historical exploration results with the expended effort. * * * By expended effort, I mean "new field drilling footage." * * * My model dictates that it is unnecessary to use the intermediate efforts, such as extensions, deeper horizons, and development (drilling) to arrive at total reserve additions. (Emphasis added.) Docket No. RP 77-56, Record, vol. 3, at 527-528. 7 In its 1976 study, the PGC reported that The most significant change from the 1972 Potential Gas Committee estimates for this area has been made in the estimates for the deeper portion of the Anadarko basin at depths between 15,000 feet and 30,000 feet. There is a major increase of 28 TCF in the Possible category. Increased drilling activity has taken place in the deep trough of the basin in response to increases in natural gas prices, which have made high risk, very costly ventures more attractive from an economic standpoint. This has resulted in new data and significant discoveries. Several new fields have been discovered at intermediate depths and producing potential of the ultra-deep Hunton and Ellenberger/Arbuckle has been demonstrated. Recent discoveries in the Hunton have shown high deliverability (8 BCF per well per year) and high ultimate recovery (100 BCF per well). In addition to the prolific Hunton reservoir, the Mills Ranch and West Mayfield discoveries in 1974 and 1976 have added the Ellenberger/Arbuckle deep carbonate reservoir as a viable commercial target with potential that could overshadow the ultimate gas recovered from the earlier Hunton Fields. Potential Supply of Natural Gas in the United States (as of December 31, 1976), Potential Gas Committee, Potential Gas Agency, Colorado School of Mines, at 13-14 (1977). 8 G. H. Lawrence, President of the American Gas Association, testified before the House Subcommittee on Energy and Power as follows: Even at this early date the indications are that passage of the NGPA is playing a significant role in encouraging the production of gas energy from domestic production. Investment by the gas production industry for drilling, exploration, and production is now rising rapidly. The 1979 figures are running some 14 percent over 1978 figures * * *. Second, seismic activity, which is the initial exploratory step has increased markedly. Last year was a boom year and so far 1979 has been even stronger. New seismic activity in early 1979 was up 8 percent over the corresponding period of 1978. Gas well completions set a record in 1978. Despite that new record the monthly data through April show that each month in 1979 has recorded even higher gas well completions. So far they are running 19 percent ahead of last year. New gas discoveries in Texas as of mid-May are 40 percent above the rate of discoveries recorded in 1978. The statistics show that in 1978 deep well drilling was up over 60 percent from the previous year, much of this was in anticipation of the NGPA deep drilling incentives. This year with the special incentives in the Natural Gas Policy Act for the early deregulation below 15,000 feet we fully expect this trend to continue since deep well drilling alone is up by 23 percent during the first 5 months of 1979 over the comparable period in 1978. Natural Gas Issues: Hearings Before the Subcomm. on Energy & Power of the House Comm. on Interstate & Foreign Commerce, 96th Cong., 1st Sess. 67, 68 (1979) (Statement of G. H. Lawrence). The Congressional Subcommittee also received testimony from the Aspen Institute for Humanistic Studies, in the form of a prepared written Executive Summary of a Workshop on "R & D Priorities and the Gas Energy Option" published in June, 1978. The institute was comprised of 50 noted scientists, engineers, economists, environmentalists and industry leaders, who exchanged research at a seminar extending over a five-day period. The Institute concluded that traditional and nontraditional sources of natural gas were potentially plentiful and would play a significant role in America's energy policy. The Institute's Summary also reported that the critical variable in making more gas available was price-in other words, deregulation. The prepared testimony continued: "Higher prices over the past few years have already resulted in increased drilling and reserve additions. In 1977, reserve additions were the highest in ten years." Id. at 145. Additionally, J. P. Guinane, Manager of Gas Acquisition for Northern, substantially corroborated this view of the effect of the Act in his testimony. Docket No. RP 77-56, Record, vol. 2, at 39-48. 9 The projections that are not shown on the table were either prepared prior to 1972 or did not break down potential reserves into categories corresponding to those used by the PGC. The estimates that are included in the table substantially correspond to the PGC's proved, probable and possible categories. The values depicted in the table may not all be exactly comparable but they do represent values of the quantity of gas which can be expected to be found with a reasonable degree of certainty. See A Comparison of Estimates of Ultimately Recoverable Quantities of Natural Gas in the United States: A Potential Gas Committee Report, Potential Gas Agency, Colorado School of Mines, at 10 (1977) Institution Conducting the Study Proved Probable Possible Total -------------------- ------ -------- -------- ----- PGC--1972 266 266 384 916 U.S. Geological Survey-- 1974 (95% probability) 237 202 322 761 Insitiute of Gas Technology-- 1974 (Low estimate) 237 663 900 Mobil--1973 250 52 485 787 Exxon (full inventory-- mean estimate) 237 111 582 930 10 A third exhibit was prepared by the PGC. It is reproduced and included here as Appendix No. 3. With respect to this exhibit, which includes speculative categories, the PGC noted: It seems remarkable, when recognizing the uncertainties involved in these types of estimates, that the values from these independent sources should be relatively close together, ranging from about 1 to 1.6 times as much potential, essentially undiscovered, gas as has been previously discovered. 11 For example, Northern's Vice President John R. Brady testified that as a result of its agreements to obtain natural gas from Alaska, "(Northern's) customers now are able to look forward to a very substantial gas supply from a domestic source which will be available in the market area in the relatively near-term future." Docket No. RP 77-56, Record, vol. 2, at 58-59 12 The Staff's failure to seriously consider the availability of natural gas from non-traditional sources is illustrated by the following testimony of its principal expert, E. H. Feinstein: Q. Why did you limit your estimates to the traditional sources only? A. (Feinstein) I guess my answer is that I was really only requested to come up with-to provide Ron Lucas with an estimate for the traditional sources of supply. If you recall, I adopted Ray Vincent's testimony, and his testimony was in relation to the traditional sources of supply. That was in 76-89. Docket No. RP 77-56, Record, vol. 3, at 525. 13 On the other hand, we cannot agree with South Dakota's contention that the Commission erred in consolidating the 1976 and 1977 proceedings 14 The compounding effect of underestimating both Northern's share factor from the two basins and the reserves available in those basins results in projected reserves for Northern that are at least 3.9 times lower than those predicted by the Staff's PGC model

880 S.W.2d 72 (1994) Maximo MARTINEZ, Appellant, v. The STATE of Texas, Appellee. No. 06-93-00111-CR. Court of Appeals of Texas, Texarkana. Submitted March 18, 1994. Decided April 26, 1994. Opinion Overruling Rehearing May 31, 1994. *74 Paul Schiffer, Houston, for appellant. John B. Holmes, Dist. Atty., Houston, for appellee. Before CORNELIUS, C.J., and BLEIL and GRANT, JJ. OPINION CORNELIUS, Chief Justice. Maximo Martinez appeals from his conviction for possession with intent to deliver cocaine weighing at least 400 grams. After a bench trial, he was sentenced to twenty years' imprisonment and a fine of $5,000.00. Martinez contends that the contraband should have been excluded from evidence because it was obtained in an illegal warrantless search and that the evidence is insufficient to establish that he participated in the offense. We overrule these contentions and affirm the judgment. We view the evidence in the light most favorable to the prosecution. It shows that on June 4, 1991, officers with the Houston police department and agents of the Drug Enforcement Administration instituted an undercover operation to purchase two kilograms of cocaine. The purchase was set up by Kenneth Spence, a confidential informant, who had made the initial contact with the sellers. The officers first met to discuss the operation. Spence made a telephone call and then the officers drove, in several vehicles, to an automobile body shop where Maximo Martinez and Pedro Martinez, a co-defendant, were supposed to be located. When the officers did not find them at this location, *75 Spence made another telephone call, and the officers and Spence proceeded to Peter G's Auto Sales, located at 3802 Reveille in Harris County, arriving shortly before 6:00 p.m. Peter G's had been a gas station at one time and was now being operated as a used car lot. Spence and Officer Larry Allen, an undercover narcotics officer, drove into the parking lot at Peter G's. Allen was wearing a "wire" and kept the other officers informed of what he was doing and observing. Allen and Spence got out of their vehicle and approached Maximo and Pedro. Pedro asked them to wait a few minutes because there were still customers on the lot. Pedro also told Allen to act as if he were considering buying a car, and Allen did so. After waiting for a while, Allen approached Pedro and asked him where the "stuff" was. Pedro told him to wait a few minutes, so Allen went back to looking at cars. At some time during these events, Maximo told Allen to "be patient." Thirty to forty-five minutes later, a brown Buick drove onto the parking lot. A Hispanic man got out and spoke to Maximo and Pedro in Spanish. The three talked for ten to fifteen minutes. Then Pedro opened the trunk of the Buick, pulled out a blue-wrapped package in the form of a brick, and placed it in a flowered bag. Pedro, with the bag in one hand and a jack handle in the other, walked to and entered a storage room that had been part of the old service station building. Shortly, Pedro came out of the storage room without the bag and spoke with Maximo and the Hispanic man for another five or ten minutes. The Hispanic man then got back in the Buick and drove away. Allen continued to look at cars for a few minutes and then again approached Pedro and asked him "what was going on." Pedro motioned for Allen to follow him, and the two of them went into the storage room, where Allen saw the same flowered bag on the floor. Pedro picked up the bag and handed it and a razor blade to Allen. Allen cut a corner of the blue-wrapped, brick-like package inside the bag and found what, based on his experience as a narcotics officer, he believed was cocaine. The substance was later confirmed to be cocaine by a chemist employed by the Houston police department. Since Spence had told the officers that the deal was to be for two kilograms, Allen asked Pedro where the other kilogram was. Pedro replied that he thought there were two "keys" in the bag. Then Maximo, who had entered the room after the other two, said he was going to make a phone call to get the other kilogram. Allen then walked back outside, where he saw Maximo get into a gray pickup truck and drive away. He waited another ten to fifteen minutes and then advised Pedro he would only wait thirty more minutes. Allen testified that he was becoming worried because he had already been at the location for over two hours, and all of the other such transactions had taken less time. At some point during this time, Pedro told Allen that the next time he would not have to wait so long, the "stuff" would be there waiting for him. Maximo did not return right away, so Allen told Pedro that he would just take the one kilogram. Allen and Pedro went back into the storage room, where Allen once again cut into the brick with a razor blade. He told Pedro he was going to get the money, left the flowered bag with the brick in it on the floor of the storage room, left the storage room, and gave a prearranged signal to the other officers. The other officers quickly arrived at the scene and placed all those present under arrest. In order to maintain his cover, Allen was handcuffed along with Pedro and two employees of Peter G's Auto Sales. While in handcuffs, Allen saw Maximo drive up to the entrance to the car lot, stop, and then speed off. The raiding officers arrived on the scene less than one minute after the bust signal. They arrested those present and seized the cocaine, recovering it in the flowered bag from the floor of the storage room where Allen had left it. Approximately one month later, Maximo Martinez was arrested while working at the same used car lot. Martinez first contends that the trial court erred in failing to suppress the cocaine because it was seized during an illegal warrantless search. He brings this point under *76 U.S. CONST. amend. IV and TEX. CONST. art. I, § 9. He argues that the State failed to meet its burden of proof at the suppression hearing and also failed to prove the legality of the search beyond a reasonable doubt at the trial. The State counters that Martinez has no standing to complain of the seizure because he had no reasonable expectation of privacy in the substance, and even if he does have standing to raise the issue, there was probable cause and also exigent circumstances justifying a search and seizure without warrant. The United States and Texas Constitutions protect persons against unreasonable searches and seizures by state action. Normally, police officers must first obtain a valid arrest or search warrant based on probable cause. Evidence seized illegally without a warrant may be subject to exclusion at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The general rule is that, to have standing to raise a Fourth Amendment claim, a person must have an actual, subjective expectation of privacy in the thing seized or searched, and that the expectation must be one that society recognizes as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring); United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992). A person does not have a reasonable expectation of privacy in something he voluntarily exposes to the public. As stated by the Court in Katz, supra, "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. There is no legitimate expectation of privacy in information one turns over to third parties. California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30, 37 (1988) (citing Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2581-82, 61 L.Ed.2d 220, 229 (1979)). Consistent with this reasoning, Texas courts have held that a person's display of contraband to an undercover agent deprives that person of the right to claim a reasonable expectation of privacy. See Vela v. State, 775 S.W.2d 11, 12 (Tex.App.—Houston [1st Dist.] 1989, pet. ref'd); Garber v. State, 671 S.W.2d 94, 97 (Tex.App.—El Paso 1984, no pet.). When a person displays contraband to another person for the purpose of initiating a sale of the contraband, he holds out the contraband for public display and sale and can no more claim an expectation of privacy in it than anyone else holding out his wares for sale to the public. The fact that the potential customer is an undercover agent makes no difference. In this case, the undisputed testimony of Officer Allen shows that Pedro Martinez, with Maximo Martinez standing by, voluntarily handed to Allen the flowered bag containing the kilogram brick of cocaine. This voluntary display of the cocaine to Allen by Pedro deprived Maximo, who participated with Pedro in the transaction, of any right to claim a reasonable expectation of privacy regarding the cocaine. Thus, the seizure of the cocaine by the police was not subject to Fourth Amendment protection. See Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. The fact that the cocaine was seized by a member of the raiding team and not by Allen makes no difference. The issue is whether Maximo's expectation of privacy in the cocaine was reasonable, not who seized the cocaine. Maximo therefore has failed to show any privacy interest in the thing seized—the cocaine—and has no standing to challenge its seizure. As to the premises searched, although Maximo's brief refers to the premises as his "place of business," nothing in the record of the suppression hearing indicates that Martinez had any possessory or proprietary interest in the premises. A defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Wilson v. State, 692 S.W.2d 661, 667 (Tex.Crim.App.1984) (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)). One who asserts neither a possessory nor a proprietary interest in the place searched is not entitled to challenge a search of the area. See Calloway v. State, 743 S.W.2d 645, 651 (Tex.Crim.App. 1988) (citing Rakas v. Illinois, 439 U.S. 128, *77 147-48, 99 S.Ct. 421, 432-33, 58 L.Ed.2d 387, 403-04 (1978)). The record does not indicate that Martinez had any financial, proprietary, possessory, or other interest in the automobile dealership. Indeed, the evidence shows that he was only one of several employees there and had no ownership interest in the business or the shed where the cocaine was seized. He therefore has failed to show any privacy interest in the premises searched. Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim.App. [Panel Op.] 1979). Martinez had no legitimate expectation of privacy in either the cocaine seized or the premises searched. Therefore, he has no standing to challenge the search. As we have found no standing, it is not necessary for us to consider whether probable cause and exigent circumstances existed for the warrantless search and seizure. Martinez also asserts that the evidence is not sufficient to support his conviction. Specifically he contends that the evidence does not support the necessary finding that he exercised care, control, custody, or management of the cocaine. In reviewing the sufficiency of the evidence in a criminal case, the appeals court must view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could find each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Rivera v. State, 808 S.W.2d 80 (Tex.Crim. App.1991). The standard of review is the same for direct and circumstantial evidence cases. Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983); see also Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). To support a conviction for unlawful possession of a controlled substance, the State must adduce sufficient evidence to prove that the accused exercised care, control, and management over the contraband and that he knew the matter possessed was contraband. Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App.1982). Martinez does not argue sufficiency of the evidence regarding the second element. Possession need not be exclusive, and evidence showing joint possession with another is sufficient. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim.App.1985). Where possession is not exclusive, the State must produce evidence of additional facts and circumstances affirmatively linking the accused to the contraband. Cude v. State, 716 S.W.2d at 47; McGoldrick v. State, 682 S.W.2d at 578. Mere presence in the vicinity of the contraband, or even mere knowledge of an offense taking place, will not establish that the accused exercised the requisite care, control, and management or that he had joint possession of the contraband. Oaks v. State, 642 S.W.2d at 177. But under the law of parties, a person may be held criminally responsible for the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicited or encouraged, aided, or attempted to aid the other person to commit the offense. Tex.Penal Code Ann. §§ 7.01, 7.02(a)(2) (Vernon 1974). In this case, there is more than mere presence in the vicinity of the cocaine. According to Officer Allen's undisputed testimony, Maximo Martinez was closely involved with Pedro Martinez in the transaction and actively participated and assisted in its sale. Maximo was with Pedro when Pedro told Allen to wait a few minutes because there were customers on the car lot. While Allen was waiting, Maximo told Allen to "be patient." Allen saw Maximo and Pedro twice in conversations with the Hispanic man who drove the brown Buick with the cocaine in its trunk onto the car lot. After Allen complained that there should be two kilograms of cocaine, Maximo stated he was going to make a phone call to get the other kilogram. A rational fact finder could well conclude that Maximo's subsequent departure in a pickup truck was for the purpose of obtaining the other kilogram. Moreover, after the raid, Allen saw Maximo drive up to the entrance to the car lot, stop, and when he saw the officers, quickly drive off. Maximo's actions are sufficient to establish affirmative links between himself and the cocaine. See Humason v. State, 728 *78 S.W.2d 363, 365-66 (Tex.Crim.App.1987). These links to the contraband are clearly more than conjecture or speculation. See Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim.App.1984). This evidence also is sufficient to establish criminal responsibility under the law of parties, where evidence is sufficient if it shows that the actor was physically present at the commission of the offense and encouraged the commission of the offense by either word or agreement. Lewis v. State, 856 S.W.2d 271, 274 (Tex.App.— Texarkana 1993, no pet.). Martinez argues that his statement that he would make a telephone call to get the other kilogram occurred after the offense was completed, and apparently he contends that the statement is therefore irrelevant. Martinez was charged with possession of cocaine with intent to deliver. The evidence indicates that Maximo and Pedro remained in possession of the kilogram after the statement in question—the drug transaction being postponed so that Maximo could obtain the second kilogram. The offense, therefore, was of a continuing nature until the police actually seized the cocaine. Any actions or statements by Maximo during this period are relevant evidence of his guilt or innocence at trial and may be considered in reviewing the sufficiency of the evidence claim. Martinez also argues that Davila v. State, 664 S.W.2d 722 (Tex.Crim.App.1984), supports his claim that he did not exercise the requisite care, custody, control, and management of the cocaine. Even disregarding the fact that Davila involved a conviction for delivery of contraband and the instant case is for possession with intent to deliver, the facts of the two cases are easily distinguishable. In Davila the evidence showed that, at most, the defendant, Gloria Davila, merely relayed a third party's offer to buy contraband to Davila's husband, and her husband, with no help from Davila, negotiated and completed the drug transaction. Id. at 723-24. In this case, the testimony of Officer Allen clearly indicates that Martinez was an active participant in the attempted drug transaction and not merely an innocent intermediary. Martinez was physically present at the commission of the offense and actively encouraged it by word and deed. Lewis v. State, 856 S.W.2d at 274. The evidence is both legally and factually sufficient for a reasonable trier of fact to find Martinez guilty beyond a reasonable doubt as a party to the offense.[1] The judgment is affirmed. ON MOTION FOR REHEARING In his motion for rehearing, Martinez argues that there is no evidence that the cocaine was seized in the storage room where the officer saw it. Martinez correctly notes that the seizing officer did not testify and the flowered bag was not introduced as evidence. However, Allen (the undercover officer) testified without contradiction. He described the bag, cocaine, and the blue wrapping covering the cocaine; said that the bag was left in the storage room; told how quickly he gave the "bust signal" after he and Martinez left the storage room; and how quickly the raiding officers secured the area. Mike Sanders, a DEA agent and member of the raiding party, stated without dispute that he saw the brick-type substance in a blue wrapping in a bag in the storage room after everyone had been placed under arrest, although he could not remember what the bag looked like. Paul Powell, an officer with the Houston police department, testified without dispute that he saw Officer Bobby Hebert, who had accompanied Powell on the raid, proceed directly to the storage room and recover a brick-like object wrapped in blue plastic-type paper, exactly as Allen had described the brick of cocaine left in the storage room. Allen also testified that immediately after the raid he saw Hebert with the blue package after Hebert retrieved it. This undisputed testimony was sufficient for a reasonable trier of fact to find that the *79 blue-wrapped package containing cocaine that was shown to Allen and left in the storage room in the flowered bag was the same blue-wrapped package recovered by Officer Hebert, as witnessed by the above-named officers. The flowered bag may have been left in the storage room or lost, but the testimony clearly shows that the cocaine was seized where it was left. Martinez also argues that there is testimony that Pedro owned the auto sales division and that he, Maximo, owned the mechanic's work area. The following excerpts from Alabarran's testimony are the only parts of her testimony dealing with ownership of the premises: Q. And do you know who owns Peter G's Auto Sales? A. No, because I never get involved in who is the owner. Probably he [Pedro], I don't know. . . . . Q. June 4, 1991, the day that you were arrested, was Max working at Peter G's Auto Sales on Reveille? A. Yes. Q. Max didn't own this place then, did he? A. No, sir. Q. He was just working out of here until he could get his own shop; isn't that correct? MS. PARSONS: Objection, leading. MR. LAVINE: This is cross examination. THE COURT: Overruled. Q. (Mr. Lavine) Max was working out of here until he had a place of his own; isn't that correct? A. Exactly. Q. This storage room didn't belong to Max, did it? A. No, sir. This testimony falls far short of proving that Martinez had an ownership interest in the premises. For the reasons stated, the motion for rehearing is overruled. NOTES [1] Since the exclusive fact jurisdiction of the courts of appeals under the state constitution both permits and requires a review of the factual sufficiency when sufficiency of the evidence is challenged on appeal, we have done so in this appeal. See Stone v. State, 823 S.W.2d 375 (Tex. App.—Austin 1992, pet. ref'd, untimely filed); Susan Bleil & Charles Bleil, The Court of Criminal Appeals Versus the Constitution: The Conclusivity Question, 23 St. Mary's L.J. 423 (1991).

536 U.S. 939 LINNEEN ET UX.v.GILA RIVER INDIAN COMMUNITY. No. 01-1462. Supreme Court of the United States. June 24, 2002. 1 C. A. 9th Cir. Certiorari denied. Reported below: 276 F. 3d 489.

805 F.Supp. 185 (1992) JUDY-PHILIPPINE INC., Plaintiff, v. S/S VERAZANO BRIDGE, S/S LALANDIA, S/S HYUNDAI COMMANDER, their engines, boilers, tackle, etc., Hyundai Merchant Marine Co. Ltd., Pac Bridge Shipping, Ltd., Defendants. No. 89 Civ. 7112 (RWS). United States District Court, S.D. New York. October 23, 1992. Kingsley & Kingsley, Hicksville, N.Y. (Harold M. Kingsley, of counsel), for plaintiff. *186 Cichanowicz, Callan & Keane, New York City (Deborah R. Reid, of counsel), for defendant Hyundai Merchant Marine Co., Ltd. Chalos & Brown, P.C., New York City (Harry A. Gavalas, William M. Cassarini, of counsel), for defendant Pac Bridge Shipping Ltd. Schindel, Cooper & Farman, New York City, for third-party defendant Land Bridge Terminal, Inc. OPINION SWEET, District Judge. Plaintiff Judy-Philippine, Inc. ("Judy-Philippine") has moved to amend its complaint pursuant to Rule 15 and for summary judgment pursuant to Rule 56, Fed. R.Civ.P. For the reasons set forth below, this motion is granted in part and denied in part. Prior Proceedings In an Opinion dated December 23, 1991, familiarity with which is assumed, Judy-Philippine, Inc. v. S/S VERAZANO BRIDGE, 781 F.Supp. 253 (S.D.N.Y.1991), Judy-Philippine's motion for summary judgment on the issue of liability was granted, its motion on the issue of damages was denied, and the summary judgment motions of defendants Hyundai Merchant Marine Co., Ltd. ("Hyundai"), Pac Bridge Shipping, Ltd. ("Pac Bridge"), and third-party defendant Land Bridge Terminal, Inc. ("Land Bridge") were denied. Specifically, the Court held that: Judy-Philippine alleges that the missing goods were worth $34,514.45 and seeks that amount plus interest. The defendants contest this amount and, absent further evidence on the question of valuation, summary judgment on the issue of damages is not proper at this juncture. Id. at 260. The $34,514.45 amount was set forth in Judy-Philippine's Amended Schedule A appended to its Amended Complaint and was calculated as the total damages resulting from the loss of cargo contained in four containers that were shipped across the Pacific to the West Coast of the United States on the S/S VERAZANO BRIDGE, S/S LALANDIA, and S/S HYUNDAI COMMANDER. The following shortages were noted upon delivery to Judy-Philippine's warehouse in Carteret, New Jersey: container HDMU-4036180: 66 cartons worth $14,288.93; container NLSU-6026800: 35 cartons worth $12,363.31; containers HDMU-4064685 and KMTU-4011629: 25 cartons worth $7,862.21. Judy-Philippine has now moved pursuant to Rule 15(b) for leave to amend the Amended Complaint to reflect its damages in the amount of $66,852.00 and pursuant to Rule 56 for summary judgment in that amount plus interest, asserting that this amended figure represents the sound market value of the goods at destination and conforms to the evidence presented to the Court in support of its previous motion for summary judgment. In a footnote in the December 23, 1991 Opinion, the Court acknowledged that, although Judy-Philippine alleged $34,514.45 as the amount of its damages in the Amended Complaint of October 27, 1989, "[s]ome of the documents submitted by Judy-Philippine to the Court state a different amount," to wit, "$66,852.00 plus interest and costs." Id. at 260 n. 6. This figure was reflected in the market value calculations made by Judy-Philippine's counsel, which were included as an exhibit to its Amended Notice of Motion for Summary Judgment. In addition, Judy-Philippine has offered as documentary evidence in support of this motion a set of price lists from 1989 and 1990 which allegedly specify the prices of the various lost goods. These lists were previously included as an exhibit to its Amended Notice of Motion for Summary Judgment. According to Judy-Philippine it is entitled by law to the sound market value of the goods at destination in the absence of a factual dispute. The defendants contest both the appropriateness of employing the market value measure of damages in this case and the amount of damages claimed by Judy-Philippine. *187 The Motion to Amend is Granted Rule 15(a) provides in relevant part that "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(b) states that: [w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. The amendment sought by Judy-Philippine is intended to make the Amended Complaint conform to the evidence presented in the course of its previous motion for summary judgment, as was noted by the Court at that time. See id. at 260 n. 6. This amendment is consistent with the purpose of Rule 15 and should be granted. In granting a Rule 15(b) motion, the Court must consider any prejudicial effect. Here, the defendants will not be prejudiced by the amendment, because, in light of the disposition of Judy-Philippine's motion for summary judgment set forth below, they will have an opportunity to contest this amended figure in further proceedings. The Measure of Damages Under COGSA § 1304(5) Two distinct questions are confused in the dispute between Judy-Philippine and the defendants on the issue of damages: one is the method by which that amount is to be calculated, the other is the amount of damages to be awarded. The confusion arises from Judy-Philippine's assertions that the market value method is the only appropriate measure of damages in a lost cargo case and that the submission of claim bills and price lists establishes an injured party's loss. The confusion is compounded by the defendants' objection to the market value method employed by Judy-Philippine on the sole ground that it yields an excessively large damage figure. The rights and liabilities of the Judy-Philippine, Pac Bridge as carrier, and Hyundai as owner and operator of the ships in question are governed by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.App. §§ 1300-15.[1] In regulating ocean bills of lading under COGSA, Congress created federal law governing the terms of transport of goods by sea. COGSA § 1304(5) sets forth the liability of a carrier and ship as follows: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier. 46 U.S.C.App. § 1304 (1976, 1992). COGSA restricts both a carrier's ability to limit its liability under its bill of lading and the liability itself. See General Elec. Co. v. MV NEDLLOYD, 817 F.2d 1022, 1024 (2d Cir.1987) (§ 1304 as ceiling and floor of liability), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 661 (1988). *188 Numerous discretely packaged items can be placed in a single container, raising the question of whether the container itself was the "package" for COGSA liability-limiting purposes. The Second Circuit recently resolved the "container as COGSA package" problem in favor of shippers and against carriers and ships. In Monica Textile Corp. v. S.S. TANA, noting the inherent ambiguity created when a bill of lading refers to both containers and other units susceptible of being COGSA packages, the Second Circuit held as a general rule that "where the bill of lading discloses the contents of the container, then the container is not a COGSA package." 952 F.2d 636, 641 (2d Cir.1991). See also Binladen BSB Landscaping v. M.V. NEDLLOYD ROTTERDAM, 759 F.2d 1006, 1015 (2d Cir.) (general reluctance to treat container as COGSA package because of unduly limiting liability only overridden when bill of lading does not clearly indicate alternative number of packages within container), cert. denied, 474 U.S. 902, 106 S.Ct. 229, 88 L.Ed.2d 229 (1985); Smythgreyhound v. M/V "EURYGENES", 666 F.2d 746, 753 (2d Cir.1981) ("bright line rule" that when contents of container are disclosed in bill of lading, container is not COGSA package); Mitsui & Co. v. America Export Lines, Inc., 636 F.2d 807, 821 (2d Cir.1981) (presumption that container is not COGSA package). This general rule applies even when the bill of lading form explicitly states as a condition of the contract that the term "package" shall include containers stuffed and sealed by the merchant or his agent, and that the liability is explicitly limited to $500 with respect to the contents of each container, because bills of lading are recognized to be adhesion contracts whose ambiguous terms must be resolved against the carrier. Monica Textile, 952 F.2d at 641-43. Judy-Philippine contracted to purchase three shipments of children's garments from its supplier in Hong Kong, the PiRa Company ("PiRa"). The clothes were made by PiRa's factory in Hong Kong, Accoship Limited, and were loaded into four containers and sealed at the PiRa factory. Judy-Philippine arranged with Pac Bridge for the transport of the containers to the Port of New York. In the matter at hand, the Monica Textile/Mitsui presumption is triggered and the COGSA liability limitations are extended to each of the 1,542 cartons rather than to the four containers, because the bills of lading expressly describe the contents of each container in terms of cartons, that is, freight units susceptible of being COGSA packages. Since Judy-Philippine alleges less than $500 per carton in damages, it is necessary to identify the applicable measure of damages consistent with COGSA § 1304 to determine the extent of the defendants' liability. In Internatio, Inc. v. M.S. TAIMYR, 602 F.2d 49 (2d Cir.1979), the Second Circuit discussed at length the measure of damages to be employed in lost cargo cases under COGSA and read COGSA § 1304(5) as providing: that "(i)n no event shall the carrier be liable for more than the amount of damage actually sustained." This comports with the long-established principle of contract law stated by Mr. Justice Holmes in Chicago, Milwaukee & St. Paul Railway v. McCaull-Dinsmore Co., 253 U.S. 97, 100, 40 S.Ct. 504, 504-05, 64 L.Ed. 801 (1920): The rule of the common law is ... an embodiment of the plain fact that the actual loss caused by a beach of a contract is the loss of what the contractee would have had if the contract had been performed.... Internatio, 602 F.2d at 50. See also Kanematsu-Gosho Ltd. v. M/T MESSINIAKI AIGLI, 814 F.2d 115, 118 (2d Cir.1987) (fair market value method not only measure but held to be more appropriate measure of actual loss there than plaintiff's asserted "exceptional measure of damages"). Like plaintiff Internatio, Judy-Philippine relies on The Ansaldo San Giorgio I v. Rheinstrom Bros. Co., 294 U.S. 494, 55 S.Ct. 483, 79 L.Ed. 1016 (1935) (improperly stowed barrels of cherries in brine arrived in bad condition), for the proposition that it *189 is entitled to recover the market value of the goods at the time and place the vessel arrived at its destination. There the Court stated, "[t]he measure of the shipper's recovery is normally the market value of the goods at destination, in like condition as they were when shipped, on the date when they should have arrived." Id. at 496, 55 S.Ct. at 484 (emphasis added). In Internatio, the Second Circuit rejected this interpretation of The Ansaldo San Giorgio I by noting, the Court was not establishing a special rule of damages for maritime cases, in derogation of the ordinary contract rule. It merely was indicating the way in which a shipper's loss would "normally" be measured. Such a method of measurement is not an end in itself, for as the Court has stated in Illinois Central Railroad v. Crail, 281 U.S. 57, 64-65, 50 S.Ct. 180, 181, 74 L.Ed. 699 (1930): The test of market value is at best but a convenient means of getting at the loss suffered. It may be discarded and other more accurate means resorted to if, for special reasons, it is not exact or otherwise not applicable. Internatio, 602 F.2d at 50 (citation omitted). The other cases cited by Judy-Philippine include the same qualification on the use of the market value measure of damages in cases of this kind as was expressed in Internatio. In St. Johns N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio De Janeiro, 263 U.S. 119, 125, 44 S.Ct. 30, 31, 68 L.Ed. 201 (1923) (barrels of rosin jettisoned in during storm), the Court stated that "[g]enerally, the measure of damages for loss of goods by a carrier when liable therefor is their value at the destination to which it undertook to carry them," (emphasis added); in Thyssen, Inc. v. S.S. FORTUNE STAR, 777 F.2d 57, 61 (2d Cir.1985) (galvanized steel pipe badly damaged while in transit), the Second Circuit quoted Judge Learned Hand from Weirton Steel Co. v. Isbrandtsen-Moller Co., 126 F.2d 593, 594 (2d Cir.1942), saying that "`(t)he ordinary rule is indeed that damages for injury to goods while in possession of a carrier are to be computed at the difference between the sound market value at destination and the value as damaged,' adding, `[t]hat is obviously the right measure where the consignee buys the goods for resale which is the ordinary case'" (emphasis added)[2]; and in Seguros Banvenez, S.A. v. S/S OLIVER DRESCHER, 761 F.2d 855, 860-61 (2d Cir.1985) (improperly stowed cranes washed overboard), the Second Circuit again noted that "[t]he correct measure of damages ... is the amount necessary to put the injured parties in the exact position they would have been in had there been no breach. In loss of cargo cases, this generally means the market value of the goods at the time and place they were to have been delivered" (emphasis added and citations omitted). In Internatio, an importer brought an action against a carrier to recover for a defective shipment of cocoa beans. Upon the arrival of the shipment at Philadelphia, 128 bags of beans were missing and 2000 bags were torn or stained, resulting in a loss of 23,454 pounds of beans. See 602 F.2d at 50. The market price of the cocoa beans in Philadelphia on the day of arrival *190 was $2.01 per pound, but the contract price was $.9172 per pound for resale by Internatio to M & M Mars, Inc. See id. The Second Circuit held that the market value measure was not applicable there "because it would result in a recovery greater than the loss suffered." Id. The loss of the $.9172 per pound price was the only loss proved by Internatio. If, as might have been expected in light of the substantial increase in the price of cocoa between the time of contracting and the time of delivery, M & M had required Internatio to enter the market to purchase cocoa to make up the deficiency, then Internatio would have been entitled to damages measured by the existing market price. But the district court found, and the evidence clearly showed, that "plaintiff was unable to prove that it obtained a replacement for this cocoa shipment" and that "(a)pparently Mars did not hold plaintiff liable for any damages." Id. at 50-51. Therefore, while generally appropriate, the market value measure of damages is not the exclusive measure to be used in lost cargo cases. The market value measure is the appropriate measure only if the injured party can establish that it yields the amount necessary to put the injured party in the exact position it would have been in had there been no breach, and that it would not result in a recovery greater than the loss suffered. For Judy-Philippine to succeed on its claim that the market value measure of damages should be applied in the matter at hand, it must establish that the market value of the goods in question represents the actual loss it suffered. See id. at 50. The Motion for Summary Judgment is Denied "Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). `As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.' However, where the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991) (citations omitted). As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991); see also Bay, 936 F.2d at 116. Judy-Philippine's motion for summary judgment must be denied for the reasons set forth in the December 23, 1991 Opinion of the Court. Judy-Philippine, 781 F.Supp. at 253. While the Court noted Judy-Philippine had alleged damages of $34,514.45 in its Amended Complaint and submitted documents supporting the figure of $66,852.00, the Court denied the motion for summary judgment on the issue of the measure of damages because "[t]he defendants contest this amount and, absent further evidence on the question of valuation, summary judgment on the issue of damages is not proper at this juncture. Hartford Fire Ins. [Co. v. M/V SAVANNAH], 756 F.Supp. [825,] 829 [(S.D.N.Y.1991)]." Id. at 260. According to Judy-Philippine the proposed amendment of the damages figure resolves the matter, alleging that the Court "reserved decision as to damages because of a discrepancy between the amount demanded in the Complaint ($34,514.45) and the amount demanded in plaintiff's motion for summary judgment ($66,852.00)." Kingsley Aff. 1-2. However, this misstates the Court's reasoning and conclusion regarding the issue of damages. The amounts contested and not sufficiently established to justify granting Judy-Philippine's previous motion for summary judgment *191 were both the $34,514.45 and $66,852.00 figures, and they continue to be disputed on the present motion. Pac Bridge argues that Judy-Philippine: has not provided any evidence that [the market value] was its loss. The price list is speculative at best as no evidence has been provided that this is the actual price of the goods nor the price at which plaintiff would sell the goods. The possibility exists that the goods could be discounted, or that the price list was a guideline or even that the goods would not have been sold at all. Pac Bridge Mem. 4-5. Hyundai contends that the only new information added to the record on this motion is a statement by Judy-Philippine's counsel regarding the claims calculations he prepared that were based on price lists marked as an exhibit at the deposition of Angel Kwan. However, "(t)he deposition of Angel Kwan is devoid of any testimony to authenticate this document or establish plaintiff's damages.... As there is no authentication they may not be considered on this motion." Hyundai Mem. 2. The fact that Judy-Philippine's witness, Angel Kwan, identified the price lists at a deposition is not sufficient to authenticate these documents or to establish Judy-Philippine's damages. Applying the requirements of Rule 56 as interpreted by Bay and Binder to this record, the ambiguities and inferences drawn from the underlying facts must be resolved in favor of the defendants and present a genuine issue for trial. Judy-Philippine has failed to satisfy the burden of proof imposed by Rule 56(c) of showing that there is no genuine issue as to any material fact regarding the amount of damages for which the defendants are liable, and that it is entitled to a judgment of $66,852.00 as a matter of law on the market value measure of damages. Conclusion For the reasons set forth above, Judy-Philippine's motion to amend is granted and motion for summary judgment is denied. It is so ordered. NOTES [1] On the record before the Court, it is presumed that the rights and liabilities existing between the defendant and third party plaintiff, Hyundai, and third party defendant Land Bridge, which has offices and places of business in New Jersey, are governed by the law of the State of New Jersey and not by COGSA. An action against a terminal for the negligent loss of cargo is a state claim governed by state law and does not fall within federal maritime jurisdiction. See Seguros "Illimani" S.A. v. M/V POPI P, 929 F.2d 89, 92 (2d Cir.1991); Roco Carriers, Ltd. v. M/V NURNBERG EXPRESS, 899 F.2d 1292, 1295 (2d Cir.1990); National Resources Trading, Inc. v. Trans Freight Lines, 766 F.2d 65, 68 (2d Cir.1985); Colgate Palmolive Co. v. S/S DART CANADA, 724 F.2d 313, 315 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984); Leather's Best, Inc. v. S.S. MORMACLYNX, 451 F.2d 800, 808 (2d Cir.1971). [2] The Second Circuit, however, distinguished Thyssen from Weirton on the ground that the tin plate in the latter case was intended for manufacture by the shipper-consignee, not for immediate resale, and the [tin plate] had been reconditioned at roughly one-tenth of the amount awarded by the district court. Moreover, the only evidence offered by the plaintiff in support of the higher measure of damages was its surveyor's testimony concerning what price the plate would bring if it was sold as plate, without reconditioning. In order to avoid a windfall to the plaintiff, the court thus demanded evidence that the product manufactured had in fact sold for less than goods manufactured from undamaged plate. Thyssen, 777 F.2d at 62. In contrast, the damaged steel in Thyssen was resold without reconditioning, and the plaintiff presented evidence regarding the amount for which the steel was resold. Id. On that record, the Second Circuit affirmed an award of compensatory damages, reflecting the difference between the contract price at which the undamaged pipe was to be sold to a customer and the depreciated price of the damaged pipe at which it was actually sold, plus the surveyor's fee to establish the damage. Id. at 59, 62.

957 F.Supp. 201 (1997) Scott SIMPSON and Stephanie Simpson, on behalf of themselves and all others similarly situation, Plaintiffs, v. US WEST COMMUNICATIONS, INC., a corporation, Defendant. Civil No. 96-456-RE. United States District Court, D. Oregon. January 29, 1997. *202 *203 John J. Carey, Joseph P. Danis, Carey & Danis, L.L.C., St. Louis, MO, Dan W. Clark, Dole, Coalwell & Clark, P.C., Roseburg, OR, for Plaintiffs. Michael H. Simon, Andrew J. Bowman, Perkins Coie, Portland, OR, for Defendant. OPINION REDDEN, District Judge: BACKGROUND Plaintiffs, Scott and Stefanie Simpson, filed this class action lawsuit against defendant, US West Communications, Inc., challenging defendant's marketing and sale of optional inside wire maintenance service plans (IWMS) to its telephone customers in Oregon. The parties have stipulated and the court has ordered that the matter of class certification would be addressed, if necessary, following the ruling on defendant's summary judgment motion. Therefore, the procedural posture of the litigation at this time is a case of two individual plaintiffs asserting personal claims against the defendant. See Wright v. Schock, 742 F.2d 541, 545 (9th Cir.1984). Plaintiffs allege six claims for relief: monopolization and attempted monopolization in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (Claim 1); fraudulent misrepresentation and omission (Claim 2); breach of contract (Claim 4); unjust enrichment (Claim 6); restitution (Claim 7); and declaratory and injunctive relief (Claim 8). Pursuant to this court's Order dated August 15, 1996, Claim 3 (negligent misrepresentation) and Claim 5 (breach of the implied covenant of good faith and fair dealing) were dismissed. Defendant's summary judgment motion is granted and this case is dismissed. The facts are not in dispute here. I rely on the "Agreed Facts" set forth separately as Exhibit A attached to the Pretrial Order (filed December 9, 1996), p. 13-16. STANDARDS Summary judgment is appropriate "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved *204 against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630. CLAIMS VIOLATION OF § 2 OF THE SHERMAN ACT — CLAIM ONE Plaintiffs contend that prior to 1987, defendant maintained a monopoly for IWMS in Oregon pursuant to a monopoly franchise with Oregon that permitted defendant to "bundle" IWMS with basic telephone services. Defendant was later directed by the FCC and the OPUC to unbundle IWMS in order to create effective competition for the service. Plaintiffs contend that defendant's deceptive and misleading solicitations for IWMS — including announcements sent to telephone customers — effectively coerced customers into purchasing IWMS from defendant by: (a) misleading customers into believing that they needed IWMS; and (b) leading customers to believe that defendant was the only effective provider of the service. To prove a claim for monopolization, a plaintiff must establish two elements: (1) the possession of monopoly power in the relevant market; and (2) the "willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 541 (9th Cir.1991), cert. denied, 503 U.S. 977, 112 S.Ct. 1603, 118 L.Ed.2d 316 (1992) (quotation omitted). In addition, "antitrust injury" must also be proven in all private antitrust actions. Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir.), cert. denied, ___ U.S. ____, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995) (citation omitted). Plaintiffs cannot prove monopoly power. Defendant supplies less than 44% of its customers with IWMS. Although that evidence is not controlling, it is persuasive, particularly when considered with evidence that anyone, including consumers themselves, can participate in this market and provide substitute wire repair service. See Dimmitt Agri Industries, Inc. v. CPC International, Inc., 679 F.2d 516, 528 (5th Cir.1982), cert. denied, 470 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983); and United States v. E.I. Du Pont De Nemours & Co., 351 U.S. 377, 395, 399, 76 S.Ct. 994, 1007, 1009, 100 L.Ed. 1264 (1956). Further, plaintiffs fail to submit an affidavit from any competitor or potential competitor in support of their statement that competitors face "overwhelming barriers to entry" into the market of providing customers with IWMS. Plaintiffs also fail to offer any case authority or expert witness affidavits for their statement that a wire maintenance service plan can be a relevant market under the antitrust laws. I find that the relevant market is inside wire repair, not inside wire repair "plans." I find no evidence that defendant engaged in exclusionary or predatory conduct as to plaintiffs' claims for actual monopolization or attempted monopolization. Section 2 does not prohibit vigorous competition on the part of a monopoly[.] What Section 2 does prohibit is "exclusionary" conduct defined as "behavior" that not only (1) tends to impair the opportunities of rivals, but also (2) either does not further competition on the merits or does so in an unnecessarily restrictive way. Ocean State Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of Rhode Island, 883 F.2d 1101, 1110 (1st Cir.1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990) (quotations omitted) Defendant's marketing and sales practices for IWMS in Oregon do not constitute exclusionary or predatory conduct. Defendant marketed inside wire service in Oregon only through "positive option" marketing, never through a "negative option." The mere fact of raising prices, or even charging supracompetitive prices, is not anticompetitive and is not unlawful in and of itself. [U]nless the monopoly has bolstered its power by wrongful actions, it will not be required to pay damages merely because its prices may later be found excessive. *205 Setting a high price may be a use of monopoly power, but it is not in itself anticompetitive. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 294 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). I find no evidence of impairment of rivals. As early as 1983, Pacific Northwest Bell (PNB) told customers in writing that they had "several options" for maintaining their inside wiring, including "have PNB (or someone else) charge you for actual time spent." More recently, in 1993, in a notice defendant sent to its customers informing them of an upcoming price increase, defendant stated: Basic Wire Maintenance, Line-Backer and Line-Backer Plus are optional services. You are not required to purchase this service in order to have basic telephone service. If you wish to cancel the service at any time, you may do so at no charge. You do have options for repair of inside telephone wire. You may hire another company, do it yourself, or call [the defendant]. Defendant provided these same disclosures in its announcement of its 1996 price increase. Davis, relied on by plaintiffs, is distinguished. Davis involved the use of "negative option" contracts to enroll customers in Southern Bell's inside wire maintenance service. An earlier decision by the court in this case held, "The [FCC] has stated that default procedures, or negative options, such as the ones used by Southern Bell, are anticompetitive." Davis v. Southern Bell Telephone & Telegraph Co., 755 F.Supp. 1532, 1533 (S.D.Fla.1991). The percentage of Southern Bell's customers who were enrolled in its inside wire maintenance plans was approximately 85%, versus less than 44% in our case. Finally, those plaintiffs submitted three expert witness affidavits describing the specific competitive situation in that particular market. No such evidence exists here. Finally, I find no evidence of antitrust injury, specifically, I find no evidence that plaintiffs' alleged injury "flow[s] from aspects of the defendant's conduct" that are adverse to competition. Rebel Oil Co., 51 F.3d at 1433 ("If the injury flows from aspects of the defendant's conduct that are beneficial or neutral to competition, there is no antitrust injury, even if the defendant's conduct is illegal per se"). Contrary to plaintiffs' argument, the Supreme Court has held that a "forced purchase" of an unwanted product is not an "antitrust injury." When a purchaser is "forced" to buy a product he would not have otherwise bought even from another seller in the tied-product market, there can be no adverse impact on competition because no portion of the market which would otherwise have been available to other sellers has been foreclosed. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 16, 104 S.Ct. 1551, 1560, 80 L.Ed.2d 2 (1984). Their claim that they would not have purchased IWMS but for defendant's challenged conduct does not allege the requisite "antitrust injury." Plaintiffs' failure to show an "antitrust injury" defeats both plaintiffs' claims for actual and attempted monopolization. SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir.), cert. denied, ___ U.S. ____, 117 S.Ct. 583, 136 L.Ed.2d 513 (1996) (antitrust injury is an element of a claim for monopolization); and Rebel Oil, 51 F.3d at 1433 (antitrust injury is an element of a claim for attempted monopolization). Further, plaintiffs, as consumers, lack standing to bring a claim for attempted monopolization. Since there is not a certified class, I look to the individual plaintiffs' status to determine standing. To prove a claim for attempted monopolization, a plaintiff must establish that (1) a defendant has engaged in anticompetitive conduct; (2) with the specific intent to obtain monopoly power; and (3) a dangerous probability exists that the attempt will succeed within the relevant market. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 890-91, 122 L.Ed.2d 247 (1993). when defendants engage in ... anticompetitive acts in an attempt to gain a monopoly, *206 the competitor who is being driven out of the market is the party with standing. Only when the defendants achieve a monopoly and are in a position to harm consumers by engaging in monopoly overcharging, is there harm to the consumers.... The most likely enforcer is the immediate victim of the illegal conduct — namely, the competitor weakened or ruined by the improper conduct. Similarly, a consumer cannot obtain damages without showing that he actually paid more than the competitive level. In re Air Passenger Computer Reservation Systems, 727 F.Supp. 564 (C.D.Cal.1989). In Davis v. Southern Bell Tele & Telegraph Co., 1994-1 Trade Cas. (CCH) para. 70,510, 1994 WL 88981 (S.D.Fla.1994), the court adopted in full the reasoning of In re Air Passenger. The plaintiffs in Davis, all customers of Southern Bell's inside telephone wire repair plans, brought a claim for attempted monopolization. The court dismissed that claim, holding that consumers do not, as a matter of law, have standing to assert a Section 2 "attempt" claim. Davis, at 71,770 ("only when the defendants achieve a monopoly and are in a position to harm consumers by engaging in monopoly overcharging, is there harm to consumers") (quotation omitted). Plaintiffs' antitrust claims, both actual and attempted, are dismissed. FRAUDULENT MISREPRESENTATION AND OMISSION — CLAIM TWO I find no false, misleading and deceptive representations to customers or omissions of material facts in connection with the solicitation of IWMS. Defendant's summary judgment motion is granted. Under Oregon law, a party cannot recover for fraud based upon nondisclosure of material facts unless the defendant had a duty to disclose. Gebrayel v. Transamerica Title Ins. Co., 132 Or.App. 271, 281, 888 P.2d 83, rev. denied, 321 Or. 47, 892 P.2d 1024 (1995) (citation omitted). A duty to disclose exists when the parties are in a "fiduciary relationship," Gebrayel, 132 Or.App. at 281, 888 P.2d 83, or possibly a "special relationship," as that term is defined under Oregon law. Plaintiffs cannot prove either a special or fiduciary relationship. In my August 15, 1996, Opinion, I held that there is no "special" relationship between plaintiffs and defendant, and found as a matter of law, that a telephone company is not in a "fiduciary relationship" with its customers. Opinion, p. 4. Therefore, because there is no "special" or "fiduciary" relationship between plaintiffs and defendant, defendant was not under a duty to disclose and summary judgment is granted on this claim. Regarding plaintiffs' allegation that defendant affirmatively misrepresented that apartment tenants are responsible for maintaining inside wire — plaintiffs cite no evidence to support this. Further, plaintiffs are not apartment dwellers, so this allegation is irrelevant. Plaintiffs next allege that defendant represented to its customers "that the service was for their economic benefit, when in fact the service was very profitable for the phone company to the customer's detriment." Plaintiffs' Opposition, p. 31. Plaintiffs' cite Ex. H in support. However, Ex. H, which referred to the price of defendant's Line-Backer service at $1.00 per month, must have been prepared before August 1988 when the price was increased to $1.55. Plaintiffs offer no evidence that they ever saw, or relied upon, Exhibit H. Further, that exhibit does not support plaintiffs' allegation. Finally, plaintiffs allege that defendant "represented that its negative option increases were a reflection of the increase in cost of living." Plaintiffs' Opposition, p. 31. The only evidence cited by plaintiffs is the deposition testimony of a defendant employee commenting on America Online's current pricing program. See Plaintiffs' Ex. T. Plaintiffs offer no evidence that any such representation was ever made by defendant to them, or even to any other defendant customer. Further, with one exception, defendant did disclose the information plaintiffs' allege was not disclosed. The one exception is plaintiffs' allegation that defendant "failed to disclose its own knowledge regarding the *207 very low frequency with which the maintenance service offered by it would be required by residential customers." Plaintiffs' Opposition, p. 35. I decline to hold that sellers of service contracts, service warranties, and extended warranties are under an affirmative legal duty to maintain and disclose to their customers the frequencies that such services are actually used by purchasers. BREACH OF CONTRACT — CLAIM FOUR Plaintiffs contend that they entered into a contract with defendant for IWMS. By reason of defendant's allegedly deceptive and misleading solicitations, plaintiffs were unlawfully coerced or induced into entering into this contract. Defendant allegedly materially breached this contract by failing to perform as promised and by charging unfair and excessive prices. Defendant's motion is granted. Plaintiffs' allegation that defendant charged "excessive" prices for IWMS does not state a claim for breach of contract. There is no allegation or evidence that plaintiffs did not agree to pay defendant's specified monthly charge as a condition of receiving IWMS from defendant. Because plaintiffs expressly agreed to pay defendant's specified monthly charge, plaintiffs cannot base their breach of contract claim on an allegation that the monthly charge was "unfair" or "excessive." I have earlier ruled that plaintiffs' failure to allege that they did not agree to defendant having discretion to raise prices after prior notice precluded plaintiffs' claim that defendant is liable based on the price charged. Opinion, pp. 204-205. See also, Tolbert v. First National Bank of Oregon, 312 Or. 485, 823 P.2d 965 (1991): when (1) the parties agree to (and their contract provides for) a unilateral exercise of discretion regarding changes in one of the contract terms, and (2) the discretion is exercised after prior notice — we hold as a matter of law that the parties' reasonable expectations have been met. Id., 312 Or. at 494, 823 P.2d 965. Defendant's Terms and Conditions expressly give defendant the ability to increase prices after prior notice to its customers. Following such notice, customers are free to cancel IWMS, which plaintiffs did in March 1996. Even without a pending price change, a customer may cancel IWMS at any time, without penalty. Further, precedent exists to allow telephone companies to enter into contracts by the exact methods used by defendant to form its inside wire maintenance service contracts in Oregon. See Berjian v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 375 N.E.2d 410, 414 (Ohio 1978) (terms and conditions contained in the directory advertising agreement constituted an enforceable contract between the parties). Defendant did not increase the price of IWMS to plaintiffs (during the time period that plaintiffs subscribed to the service); and plaintiffs do not claim that they canceled IWMS due to announced price increase. For these reasons, plaintiffs cannot maintain their claim that defendant breached its contract with them. Further, defendant's written "Terms and Conditions" are sent to customers of its IWMS plans within several days after a customer first signs up for that service. Plaintiffs admit receiving a copy. This notice clearly states that defendant may increase the monthly charge for IWMS following 30 days prior notice. These facts preclude a claim for breach of contract premised upon defendant's price increase. CLAIMS SIX, SEVEN AND EIGHT Plaintiffs' claims for unjust enrichment, restitution, declaratory injunctive and equitable relief are dismissed as plaintiffs did not prevail on their underlying claims. CONCLUSION Defendant's summary judgment motion is GRANTED as to all claims. This case is dismissed.

183 Ariz. 282 (1995) 903 P.2d 590 In the Matter of the ESTATE OF Grace Cooley GILLESPIE, aka Grace C. Gillespie, aka Grace Gillespie, deceased. James Alpine GILLESPIE, Personal Representative, Appellee, v. Sidney J. GILLESPIE, Appellant. No. CV-94-0285-PR. Supreme Court of Arizona, En Banc. September 14, 1995. Lewis & Roca by Thomas E. Klinkel, Christine Hartland, Patricia K. Norris, Phoenix, for the Estate of Grace Cooley Gillespie and James Alpine Gillespie. Gregory E. Hinkel, H. Eldon Hanson, Phoenix, for Sidney J. Gillespie. MARTONE, Justice. This case requires us to address the troubling question of whether a Will[1] expresses the will of a person who signs it under very stressful circumstances at that moment in time when life and death intersect. I. THE FACTS The material facts are not in dispute. In 1979, Grace Gillespie, now deceased, executed a Will which gave three-fourths of her estate in equal shares to each of her three children, James Gillespie, Bernadette Gillespie Wolfswinkel, and Sidney Gillespie. Grace left the remaining one-fourth of her estate in trust for her mother. If her mother predeceased her, her share would pass to the children of Grace's brothers. Grace appointed her brother, Everett, to be the trustee for her mother's portion and designated her daughter, Bernadette, to be the alternate trustee. James was not named as a trustee. *283 Grace named her lawyer, H. Eldon Hanson, as her personal representative, and if he could not serve, then he could nominate a replacement, absent which she named her brother, and if he could not serve, her daughter, Bernadette. James was not named personal representative. On March 11, 1992, Grace was admitted to the hospital with pneumonia and lung cancer. Surgery on March 16, 1992, confirmed that it was terminal. The next day she was still on a ventilator and drowsy. The following day, March 18, 1992, there was no expectation that she would be extubated soon. She was expectorating thick yellow spit and was sedated for pain control. That night, James and Bernadette visited Grace and brought with them legal documents drafted at James's request by his lawyers. James placed one of the documents in front of Grace, told her that it was her Will, and that under it all of her estate would be equally divided among her three children, Bernadette, James and Sidney. Bernadette asked if that was what Grace wanted. Grace, while intubated, nodded affirmatively. Grace signed the Will. The signature page of that Will is attached as Appendix A to this opinion. The signature page of her 1979 Will is attached as Appendix B to this opinion. The contrast between the two signatures in strength and clarity speaks for itself. James then asked his mother to sign a document "okaying" everything that he had done on her behalf as her attorney-in-fact. He did not tell her what he had done. Grace signed that document. Acting under a general power of attorney dated August 14, 1991, James changed Grace's estate plan without consulting Grace to see whether it conformed to her wishes. He asked his lawyers to prepare the 1992 Will and a trust agreement. The 1992 Will appointed James as personal representative and conveyed the bulk of the estate to James as trustee under a trust document he created. Grace did not ask him to do any of this. The lawyers who drafted these documents prepared them for James, and not for Grace. They represented James and billed him for their services. Indeed, they never communicated with Grace. The trust document, signed only by James on March 18, 1992, the same date he presented the 1992 Will to his mother, provided that upon Grace's death, one-third of the estate would go outright to James, one-third would go outright to Sidney, and one-third would pass in trust to Bernadette. On that same day, James changed Grace's beneficiary designation for her $2,000,000 plus lottery winnings from three equal shares outright to each of the children to James as trustee. Grace died six days later. On the day of her death, James amended the trust document to provide that Sidney's share would be held in trust, and not be granted to him outright. Grace had not asked for a new Will. Although James and Bernadette said they were unaware of the 1979 Will, neither they nor anyone else asked her if she had a Will. Except for the three-equal-share representation made to her at her deathbed, no one ever discussed her wishes with her. The 1992 Will and the accompanying trust document were not read to her. Even if they had been, they were written in complex legalese and were not likely to be understood by a lay person. The general power of attorney under which all of this was purportedly done was of the drugstore variety which authorized James to sign "bottomries" and "charter parties," but makes no mention of Grace's Will or estate plan. Neither James nor anyone else told Grace about the trust document or about the change in the lottery beneficiary when he presented a document to her, while she was intubated on death's doorstep, purporting to ratify his acts. As to this "ratification," one of the attesting witnesses said: There was another piece of paper that Jimmy had said — I didn't — I didn't know what the name of it is. He had a paper, and he said, "Mom, this is so I can continue to pay your bills and to feed Emily." Emily was her bird. She had a cockatiel. Deposition of Fred Rustin, May 29, 1992, at 54. Attached as Appendix C to this opinion is the ratification document showing that she could not even keep her signature on the line. *284 There is nothing in the record that would suggest that Grace would want her son James to have control over the distribution of her estate assets to her adopted son, Sidney. The 1992 Will contains some specific bequests, none of which were made known to Grace. It gave her Lexus automobile to Bernadette and forgave two-thirds of the outstanding debt owed to her by Gillespie Properties (James's corporation). H. Eldon Hanson filed a petition for his appointment as personal representative and for the formal probate of the 1979 Will. James filed an objection, asked that he be appointed personal representative, and asked that the 1992 Will be admitted to probate. After Sidney appeared as an interested party, he and James filed cross-motions for summary judgment on the undisputed facts. James argued that there was no evidence of lack of testamentary capacity or undue influence. Sidney argued that, wholly apart from the issues of testamentary capacity and undue influence, a testator must know and understand the contents of a document before that document can be said to be that person's Will. Viewing the case as one involving testamentary capacity and undue influence, the trial court granted James's motion for summary judgment and denied Sidney's. The trial court did not address Sidney's argument that the 1992 Will was not the will of his mother. The court of appeals affirmed. While acknowledging that Sidney was correct that a testator must have knowledge of the contents of a Will for it to be valid, it did not see the trust arrangement as inconsistent with Grace's understanding that the three children were to take equally. We granted review to decide whether on these facts the 1992 Will is in fact the will of the testator. II. THE LAW AND ITS APPLICATION A challenge to a Will as the will of the testator can be based on separate and independent grounds. Lack of testamentary capacity, undue influence, lack of knowledge, and fraud are among them. Each one of these can independently and sufficiently support a finding of invalidity. Thus, although a testator may well have testamentary capacity, that same person may not have knowledge of the contents of a Will. Testamentary incapacity can be a sufficient condition to invalidate a Will, but it is not a necessary one. See, e.g., Newhall's Estate, 190 Cal. 709, 214 P. 231, 235 (1923). We believe the evidence in this case of lack of knowledge is so overwhelming that it is unnecessary to base our decision on any other ground.[2] "Where the testator lacks knowledge as to the entire contents of the will or is misled as to the nature of the instrument as a whole," then it "is undoubtedly correct" that "the instrument is inoperative." 1 W. Bowe & D. Parker, Page on the Law of Wills § 5.8, at 176-77 (1960). For example, in Duchesneau v. Jaskoviak, 360 Mass. 730, 277 N.E.2d 507 (1972), the court noted that in addition to testamentary capacity, "it must also be shown that the testator knew the contents of the instrument which he signed." Id., 277 N.E.2d at 510. The evidence supported a finding in that case that a hospital patient did not know the contents of an instrument he was asked to sign. He "had no part in drafting the instrument," and "no one did any talking at the hospital before the testator signed the instrument." Id. The cases uniformly support the proposition that unless the document that purports to be a Will is in fact the will of the testator, it is invalid. Pepe v. Caputo, 408 Ill. 321, 97 N.E.2d 260, 262 (1951) ("Where a will is prepared for a testator, and he is not given an opportunity to read it, or if he is unable to read and its contents have not been explained to him, such an instrument cannot be said to be his will, and will not, on contest, be sustained as a will."); Estate of Smelser, 16 Kan. App.2d 112, 818 P.2d 822, 826 (1991) (It is required "that the testator have knowledge of the will's contents at the time of its execution for the will to be valid"); Estate of Mendoza, 76 Nev. 396, 356 P.2d 13, 16 (1960) *285 ("It needs no citation of authority to support the universally recognized rule that it is essential to the validity of a will that the testator know and understand the contents thereof."); Estate of Cohen, 445 Pa. 549, 284 A.2d 754, 756 (1971) ("[I]f a decedent had no knowledge of the contents of a document purporting to be his will, it cannot be said that such a document is a declaration of that decedent's intentions."). The 1992 Will was the will of James, not Grace. Grace did not ask anyone to draw up a new Will for her. She already had a Will and a lawyer. James took it upon himself to substitute his judgment for hers. He asked his lawyer to draft a Will and a trust agreement that expressed his will. He then presented one of them to his mother on her deathbed and failed to disclose its contents to her. She was intubated and could not speak. She was in no position to read the Will. Neither he nor Bernadette told their mother that the document they presented her varied in material respects from her Will. It changed the personal representative, the distribution, and made specific bequests. It subjected Bernadette's and Sidney's shares to the discretion, power, and control of James through a trust arrangement. James did not tell her that he had changed her lottery beneficiary designation so that instead of passing outright to her children it would be subject to his control under a trust. Without full disclosure, the representation that each of her children would take equally was misleading. When James asked his mother to ratify his acts as attorney-in-fact, he did so under the representation that it would allow him to continue to pay her bills and feed her bird. He did not tell her that the document purported to ratify the substitution of his estate plan for hers. On these undisputed facts we conclude as a matter of law that the 1992 Will is invalid because Grace lacked any understanding of its contents and indeed was misled as to its true nature. The trial court thus erred in granting James's motion for summary judgment and should have granted Sidney's. We reverse the judgment in favor of James, vacate the memorandum decision of the court of appeals, and remand this case to the trial court for entry of judgment in favor of Sidney on his motion for summary judgment, denial of probate of the 1992 Will, and for further proceedings on the admission of the 1979 Will to probate. FELDMAN, C.J., MOELLER, V.C.J., and CORCORAN and ZLAKET, JJ., concur. *286 *287 *288 NOTES [1] We shall use a capital "W" when referring to the written instrument, and we shall use a small "w" when referring to the testator's wishes. [2] We do, however, reject James's argument that A.R.S. § 14-3406(B) saves this Will. That statute addresses the formal requirements of execution, not the substantive validity of a Will that meets those formal requirements.

794 P.2d 579 (1990) ALASKA FEDERAL SAVINGS & LOAN ASSOCIATION OF JUNEAU, Appellant and Cross-Appellee, v. Carl J. BERNHARDT d/b/a Eaglewood Communications, Appellee and Cross-Appellant.[*] Nos. S-2881, S-2955. Supreme Court of Alaska. February 23, 1990. Rehearing Denied March 13, 1990. Richard Brown and Timothy A. McKeever, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellant and cross-appellee. Carl J. Bernhardt, pro se. Peter Giannini, Anchorage, for appellee and cross-appellant. *580 Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ. OPINION COMPTON, Justice. I. FACTUAL BACKGROUND AND PROCEEDINGS On June 17, 1985, Carl J. Bernhardt was sued by Alaska Federal Savings and Loan Association (AFSL). AFSL alleged that Bernhardt was personally operating a cable television system, d/b/a "Eaglewood Communications," in the Eaglewood Subdivision of Eagle River without authority from AFSL, which owned the subdivision. Bernhardt, who is not a lawyer, undertook to defend the suit on his own behalf. Bernhardt filed an answer and motion for summary judgment, the gravamen of which was that AFSL had sued the wrong party, and that the actual operator of the cable system was the Eagle River Development Corporation (ERDC), of which he was only the president. Bernhardt attached his affidavit to this effect and supported it with the subdivision plan for Eaglewood, filings in a connected bankruptcy case listing the cable system as an asset of ERDC, and a copy of a "registration of business name" form, filed with the Department of Commerce and Economic Development pursuant to AS 10.35.050, showing that ERDC (not Bernhardt) had taken the trade name of "Eaglewood Communications" to operate the cable system. Before Bernhardt's summary judgment motion could be ruled on, he and AFSL stipulated to stay the suit "pending a determination as to whether or not the automatic stay" in a bankruptcy case against ERDC would affect the suit against him. The case lay dormant until April 29, 1987, when the superior court sent notice to AFSL threatening to dismiss the suit for want of prosecution. Civil Rule 41(e). AFSL opposed dismissal on the ground that it had been conducting discovery in ERDC's bankruptcy case to determine exactly to whom the cable system belonged, ERDC or Bernhardt. Bernhardt filed a memorandum in support of dismissal, attached to which was the affidavit of Peter W. Giannini, ERDC's attorney in the bankruptcy case. Giannini averred that AFSL had discovered no evidence suggesting that Bernhardt owned or claimed to own the cable system. Bernhardt called for "appropriate" sanctions against AFSL's counsel for their opposition to a Civil Rule 41(e) dismissal. The superior court did not dismiss the case. Six weeks later AFSL reversed its position 180 degrees and moved to dismiss the case against Bernhardt. The ground asserted for dismissal was the same as had been asserted by Bernhardt throughout: that "in all likelihood the cable system is operated by ERDC." AFSL sought to justify its suit against Bernhardt by noting that Bernhardt had entered into transactions as president of "Eaglewood Communications," the d/b/a of the cable system, prior to the filing of the complaint. This allegedly confused AFSL, which believed "Eaglewood Communications" was a mere alias of Bernhardt, not checking to see if the name was a registered trade name or to whom it was registered. However, AFSL admitted that Bernhardt, despite apparently resisting previous discovery efforts, was deposed on October 26, 1986 and testified and produced more supporting documents tending to show that ERDC in fact operated the cable system, apparently to AFSL's satisfaction. There is no suggestion in the record that AFSL learned anything more concerning ownership of the cable system between its receipt of the lack of prosecution notice and its own motion to dismiss. In response to AFSL's motion to dismiss, Bernhardt renewed his motion for summary judgment, and sought costs, attorney fees, and Civil Rule 11 sanctions against AFSL. Bernhardt's Civil Rule 11 arguments focused on the filing of the initial complaint itself, counsel's failure to concede to Bernhardt's summary judgment motion in light of the attached exhibits showing that ERDC owned the cable system, and AFSL's opposition to dismissal for failure to prosecute in light of the information in their possession at that time. *581 The superior court denied the motion for sanctions under Civil Rule 11, concluding that it did not think it could "make adequate findings to support" the sanctions requested, despite noting that counsel's actions in this case were "borderline." It concluded, however, that "there is no authority in Alaska that specifically precludes a court from entering an award of attorney's fees in a case that's litigated by a pro per, defendant or plaintiff, under the same circumstances which it would be litigated by a lawyer on behalf of that person ... for whose service the litigant would be compensated." Accordingly, the court ordered an award of costs and attorney fees against AFSL.[1] AFSL appeals the award of costs and attorney fees; Bernhardt cross-appeals the denial of sanctions under Rule 11. II. DISCUSSION A. THE SUPERIOR COURT ERRED BY AWARDING A NON-ATTORNEY PRO SE LITIGANT ATTORNEY FEES. The question of whether prevailing lay pro se litigants may recover attorney fees is a question of first impression in this state.[2] We adopt the rule which is most persuasive in light of precedent, policy and reason. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). The common law did not permit recovery of attorney fees; rather, the basis for such recovery lies in the adoption of Alaska Rule of Civil Procedure 82.[3]McDonough v. Lee, 420 P.2d 459, 460 (Alaska 1966). The plain language of Civil Rule 82 authorizes only partial reimbursement of attorney fees. It says nothing concerning reimbursement of expenditures made by non-attorneys. "Attorney's fees" presupposes attorney representation. E.g., Atherton v. Board of Supervisors of Orange County, 176 Cal. App.3d 433, 222 Cal. Rptr. 56, 57 (1986). Although the plain language of a rule is not the end of interpretive analysis, it is entitled to some weight. See Ward v. State, 758 P.2d 87, 89-90 n. 5 (Alaska 1988). Admittedly, there are policy arguments both for and against allowing a pro se litigant to recover attorney fees. Policy reasons to deny lay pro se litigants attorney fees include: (1) the difficulty in valuing the non-attorney's time spent performing legal services, i.e., the problem of over compensating pro se litigants for "excessive hours [spent] thrashing about on uncomplicated matters," Culebras Enter. Corp. v. Rivera Rios, 660 F. Supp. 540, 546 (D.P.R. 1987) vacated on other grounds, 846 F.2d 94 (1st Cir.1988); (2) the danger of encouraging frivolous filings by lay pro se litigants and creating a "cottage industry" for non-lawyers, see Crooker v. United States, Dep't of the Treasury, 634 F.2d 48, 49 (2nd Cir.1980); (3) our view that the express language of Civil Rule 82 specifying "attorney's fees" is not easily susceptible to a construction allowing awards to non-attorneys, see also Hannon v. Security Nat'l Bank, 537 F.2d 327, 328-29 (9th Cir.1976); and (4) the argument that, in cases where a litigant incurs no actual fees, the award amounts to a penalty to the losing party and a windfall to the prevailing one, Crooker v. United States Parole Comm'n., 632 F.2d 916, 921 (1st Cir.1980), vacated on other grounds, 469 U.S. 926, 105 S.Ct. 317, 83 L.Ed.2d 255 (1984). See also, Note, Pro Se Can You Sue?: Attorney Fees for Pro Se Litigants, 34 Stan.L.Rev. 659, 666 (1982). We find these policy reasons more persuasive than *582 those put forth by the few courts which have allowed fees to lay pro se litigants. E.g., Holly v. Acree, 72 F.R.D. 115, 116 (D.C. 1976) (arguing the economic detriment to lay pro se litigants involved in litigation).[4] B. THE SUPERIOR COURT ERRED IN CALCULATING GIANNINI'S FEES AS COSTS. The superior court awarded Bernhardt $1,316.75 in costs. Among those costs was a charge of $687.50 for consulting fees charged by Peter Giannini, an attorney. AFSL objects, contending that such expenditures must be compensated, if at all, not as "costs" under Civil Rule 79, but as "attorney's fees," for which a prevailing party may be only "partially compensated" under Civil Rule 82. We agree. Attorney fees are not recoverable under Civil Rule 79, but only under Civil Rule 82. E.g., State v. University of Alaska, 624 P.2d 807, 817 (Alaska 1981). On remand, the superior court should recalculate under Civil Rule 82 the portion of the cost award attributable to Giannini's services. The remainder of the superior court's cost award was for paralegal services and document production. Such expenses are properly characterized as costs and may be awarded under Civil Rule 79. CTA Architects of Alaska, Inc. v. Active Erectors & Installers, Inc., 781 P.2d 1364, 1367 (Alaska 1989). C. THE SUPERIOR COURT DID NOT ERR BY DENYING BERNHARDT CIVIL RULE 11 SANCTIONS AGAINST AFSL. 1. The Complaint. Bernhardt's first Civil Rule 11 allegation concerns the purportedly bad faith filing of the complaint, which occurred on June 17, 1985, before the 1986 amendment to Civil Rule 11.[5] Prior to December 15, 1987, Civil Rule 11 provided for sanctions only if a pleading was signed "with the intent to defeat the purposes of the rule." Sanuita v. Common Laborer's and Hod Carriers Union of Am., 402 P.2d 199, 200 (Alaska 1965). The purpose of the rule was to insure the good faith of counsel; it was aimed at deterring pleadings made in bad faith, for purposes of delay, or without good grounds to support it. Id. at 200 n. 2. The old version of the rule limited sanctions to cases of willful violations, and did not apply to mere oversights. Id. at 201. The court's refusal to sanction counsel under the old rule for filing the complaint is subject to review under an abuse of discretion standard. Id. We reverse for abuse of discretion only when left with a "definite and firm conviction on the whole record that the trial judge has made a mistake." E.g., Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980) (per curiam). We are not left with a definite and firm conviction of error. There was some ambiguity at the time the complaint was filed as to who the owner of the cable system was.[6] 2. Failure to act affirmatively and dismiss the complaint. Several of Bernhardt's Civil Rule 11 allegations concern counsel's purportedly improper failure to concede error and affirmatively act to dismiss the case after receiving substantial evidence indicating that Bernhardt had been improperly sued. Neither the past nor the present version of Civil Rule 11, however, reaches omissions. Both concern only the veracity and propriety *583 of purpose of affirmative representations (pleadings, motions, or other papers) made by counsel. See Alaska R.Civ.P. 11. This contention lacks merit. 3. Opposing the court's motion to dismiss the complaint for lack of prosecution. Timothy McKeever, one of AFSL's attorneys, signed a document filed with the court on April 24, 1987, opposing dismissal of the case for lack of prosecution. The date of this action brings it within the ambit of the revised version of Civil Rule 11, effective December 15, 1986. The rule then provided, in pertinent part: The signature of an attorney ... constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact ... and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless expense in the cost of litigation. Alaska R.Civ.P. 11. The "new" rule no longer strictly requires willful conduct or subjective bad faith to impose sanctions; "[t]he key in determining whether sanctions should be imposed is whether there was a reasonable basis for the attorney's signature." 5 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1334 (Supp. 1987); Advisory Committee Note, 97 F.R.D. 165, 198 (1983); see also Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986); Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir.1986). "There is no [longer] room for a pure heart, empty head defense under Rule 11." Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 187 (1985). This inquiry is to be made based on what was reasonable for the attorney to believe at the time the paper was submitted. Advisory Committee Note, 97 F.R.D. at 199; Golden Eagle, 801 F.2d at 1537. Under the new Civil Rule 11, a trial court's imposition or non-imposition of sanctions remains subject to review only for abuse of discretion. Keen v. Ruddy, 784 P.2d 653, 658-59 (Alaska 1989). We do not believe that the superior court abused its discretion. On the one hand, the motion opposed dismissal for lack of prosecution. McKeever and other counsel had conducted some minimal relevant discovery, although only in a connected bankruptcy case. On the other hand, McKeever then had in his possession evidence tending to dispel any confusion about who actually owned the cable company. It is possible to reasonably infer from the evidence in his possession and his reversal of position about six weeks later that he knew opposing the trial court's dismissal for lack of prosecution was unnecessary. It is also possible, however, to reasonably infer that no improper purpose was present, given the initial confusion and a limited amount of evidence received after the complaint was filed suggesting that the cable company was run by the "developer," and that two employees believed that "developer" meant Bernhardt. Because there are conflicting reasonable inferences that could be drawn, we will defer to the trial court. III. CONCLUSION The judgment of the superior court is AFFIRMED in part, REVERSED in part, and the case REMANDED for further proceedings consistent with this opinion. BURKE, J., concurs. BURKE, Justice, concurring. I concur in the opinion of the court, but I am of the view that the decision in this case requires us to reconsider our holding in Sherry v. Sherry, 622 P.2d 960, 966 (Alaska 1981). To the extent that it creates a double standard, for the award of attorney's fees to lawyer and non-lawyer pro se litigants, Sherry should probably be overruled. I would decide this question after instructing the parties to brief the issue. NOTES [*] Editor's Note: This opinion was originally published at 788 P.2d 31. It is published here as corrected. [1] The court awarded Bernhardt $5,000 in attorney fees and $1,316.75 in costs. He had requested $6,500 in attorney fees based on an estimated 68.5 hours of legal work. [2] We have previously allowed prevailing attorney pro se litigants attorney fees for the time spent performing legal tasks, as distinguished from time spent as a client in the matter. Sherry v. Sherry, 622 P.2d 960, 966 (Alaska 1981). Neither party asks us to reconsider Sherry; thus we decline to do so. At least one recent case has called the fairness of differing approaches into question, however. Swanson & Setzke, Chtd. v. Henning, 116 Idaho 199, 201-203, 774 P.2d 909, 911-13 (App. 1989). [3] AS 09.60.010 provides that: The supreme court shall determine by rule or order the costs, if any, that may be allowed a prevailing party in a civil action... . [4] Some commentators have supported the awarding of attorney fees on the ground that it discourages unreasonable suits and settlement positions. E.g., Hicks, Statutory Damage Caps Are an Incomplete Reform: A Proposal for Attorney Fee Shifting in Tort Actions, 49 La.L.Rev. 763, 791 (1989). Civil Rule 11 in part serves, however, to discourage frivolous litigation, while Civil Rule 68 operates to discourage unreasonable settlement positions. [5] Civil Rule 11 has again been amended, effective January 15, 1990. The most recent amendment deletes the last sentence, mandating sanctions for a violation. [6] All that AFSL knew at the time the complaint was filed was that Bernhardt had several years previously been president of "Eaglewood Communications, Inc."

206 Kan. 125 (1970) 476 P.2d 216 DORMA LEE ADKISON, Appellant, v. WILLIAM EARL ADKISON, Appellee. No. 45,826 Supreme Court of Kansas. Opinion filed November 7, 1970. Gerald D. Lasswell, of Smith, Stinson, McMaster, Lasswell and Smith, of Wichita, argued the cause and was on the brief for the appellant. The opinion of the court was delivered by HATCHER, C.: This is an appeal from a judgment of the district court granting custody of a five months old baby girl to the father following a divorce decree. The appellant does not appear to be requesting any change in the decree granting the divorce but dwells on the divorce proceedings for the purpose of showing the arbitrary and prejudicial conduct of the trial judge in the entire matter. The general thrust of appellant's contentions is that — "The demeanor of the trial court throughout the trial shows that the trial court abused its discretion and was unduly prejudiced against the plaintiff and that this prejudice materially hindered the plaintiff's receiving substantial justice." Insofar as the above contention is to be applied to the decree granting custody of the five months old baby girl to the father rather than to the mother, we are inclined to agree with appellant. Before we discuss the facts, the procedure at the trial and the rulings of the trial court, it would perhaps be helpful if we discussed the general rule of law applicable in the determination of child custody. When a situation exists such as is here presented, the paramount consideration of the trial court is the welfare and best interest of the child. The trial court is in the best position to judge whether the best interests of the child are being served and *126 in the absence of the abuse of judicial discretion this court will not disturb a trial court's judgment. (Bergen v. Bergen, 195 Kan. 103, 403 P.2d 125; Whitebread v. Kilgore, 193 Kan. 66, 391 P.2d 1019; Hazelwood v. Hazelwood, 190 Kan. 493, 376 P.2d 815.) However, where an abuse of discretion is affirmatively shown by the record, this court will not hesitate to reverse or change the order of the trial court. (Gardner v. Gardner, 192 Kan. 529, 389 P.2d 746.) It is an elementary rule in this state that if a child is of tender age it almost of necessity must be entrusted to its mother's care, without weighing unduly what may be some possible shortcomings in her character or conduct. (Janney v. Janney, 159 Kan. 230, 154 P.2d 131.) A hearing on child custody requires the careful and conscientious consideration of all material factors in order that courts may exercise sound judicial discretion in the premises. (Prier v. Lancaster, 169 Kan. 368, 219 P.2d 358.) Plaintiff and defendant were married September 14, 1966. A child was born from such marriage December 20, 1968. Plaintiff had three children by a prior marriage. About one month after the child was born to the latter marriage, defendant left the home and took all of the furniture. Plaintiff had to borrow a bottle warmer to feed the baby. The welfare agency then helped her start a new home. During all of the time referred to herein defendant had contributed but twenty or thirty dollars to the support of plaintiff and the child. The above facts are not in dispute. On March 28, 1969, plaintiff filed suit for divorce and custody of the child. Defendant filed an answer and cross-petition asking for divorce from plaintiff and custody of the child. Trial was commenced on May 23, 1969, following an announcement by the trial court that — "After a short pretrial conference it developes the divorce itself is not contested in this case. Therefore, the evidence on the divorce should be minimum...." The plaintiff testified to the facts heretofore presented and further that the defendant had threatened to kill her with a gun. She testified that she was "deadly scared of him." Dorothy Holmes, a witness for plaintiff, corroborated plaintiff's testimony. She was present when defendant pointed a gun at *127 plaintiff. She had observed black and blue marks on plaintiff while she was living with defendant. She testified that defendant "drinks quite a bit and when he drinks he has a terrible temper." She was present when defendant moved out the furniture. When he moved the stove, plaintiff had no way of warming the bottle for the month old baby. She further testified that plaintiff took good care of the children, kept them clean and was a fit and proper mother. The court then advised counsel for plaintiff that any other evidence would be merely cumulative, and that at this time no more evidence was needed on the divorce question. Thereafter the defendant testified in his own behalf. Defendant stated that he had heard his wife's request for a divorce and that he agreed a divorce should be granted in this case. He stated that he did not wish to contest the divorce itself. Defendant was then asked to state his grounds for divorce and over the objections of plaintiff testified what his grounds for divorce would be and claimed his wife caused their fights. He further testified, "I am a highly nervous man." He had given his wife thirty dollars for support from January 20, to May 23, 1969. He requested the court for custody of his child and stated he had facilities to keep the child in that his aunt had asked him to make his home with her. He said he, his aunt and his mother would care for the child; he could adequately care for the child, and that he never wanted the divorce in the first place. He testified he saw a man enter his wife's house at 9:30 P.M. on May 3, and not come out before he left at 12:30 A.M. The witness stated he approached his wife and the other man the next day and tried to see his child and was refused. In the last four months he had received $1,600.00 in wages. Gladys Adkison testified she was the mother of defendant and that she lives at 602 West 4th, Winfield, Kansas. She stated that she was willing to raise the baby and that she was capable and had adequate facilities. The witness stated she sat with Mr. Adkison in front of his wife's house, one time only, between 8:00 P.M. and about 5:30 A.M. the next day. At about 12:30 A.M. a man came out, rolled up his car windows and went back inside the house. On cross-examination the witness stated she was sixty-two years old and had last cared for children thirty-two years ago. She had had six children of her own, five before her divorce. She cared for her own five children for three years after her own divorce until *128 her health went bad and then their father, who was her former husband, took them to raise. She further testified she had been arrested for driving while intoxicated. All of the witnesses, including the defendant, testified that plaintiff was a good housekeeper and that the children were clean and well cared for. The trial court entered judgment granting the parties a divorce each from the other and decreed that the custody of the infant child be transferred from plaintiff to defendant no later than 8:00 P.M. the date of the decree. It was further ordered that each party pay their own attorney fees. The previous order under which defendant had paid $120.00 on a $200.00 allowance for attorney fees to plaintiff was set aside. The plaintiff filed a motion for an amendment of findings, amendment of judgment and for a new trial. Counsel for plaintiff made his own investigation in preparation for presenting the above motion. He attached to his affidavit a signed statement from the aunt of the defendant stating that she was 64 years of age, she did not know the defendant had used her name in the divorce case and that defendant and his mother were not going to live with her because she could not take care of the baby and hold her job. She further stated that she thought the plaintiff should have been given care of the baby. Plaintiff's attorney also filed his affidavit to which was attached the written statement of the brother-in-law of defendant's mother who was to help defendant keep the baby. The statement reads in part: "During the early or middle part of the 1930's my brother Ralph Tanner was separated from Gladys [defendant's mother] and was traveling outside of the State of Kansas as a photographer. During that time Gladys was living in Winfield & had with her the five children that were born to her and my brother, Ralph Tanner. During this period of time my brother would mail to me money for me to give to Gladys for support & the support of their five children. "During this period of time Gladys was taking very poor care of the children & finally it became so bad that I went & got the children & took them to my mother for her to raise. My mother thereafter raised the children for a number of years & Gladys seldom ever visited them although they lived in Cowley County, Kansas. "During the time that Gladys had the children before my mother took them *129 to raise, the children were very poorly cared for by Gladys. Their clothes were dirty & they had holes in their shoes, although I was delivering sufficient money each week to Gladys for their support. "At the time I picked up the five children from Gladys & took them to my mother for her to raise until my brother remarried, Gladys told me she didn't want the children since she didn't want to be bothered with them. "I have been told that Gladys said that she gave up the five children because of her health. This is not true. The reason she gave them up is because she wasn't taking care of them & didn't want to be bothered with them. The condition of the children in her care was so bad that I had to take them to my mother's to raise until my brother remarried." Plaintiff's attorney also filed an affidavit which reads in part: "That he is one of the attorneys for the plaintiff in the above entitled matter; that he has checked the records of the Winfield Police Department, Winfield, Kansas, and has ascertained that such records reflect that one Gladys Adkison was convicted in the Winfield City Court of Winfield, Kansas, on the charge of drunkenness in 1944; that she was arrested on the charge of driving under the influence of intoxicating liquor and having no driver's license in Winfield, Kansas, on October 29, 1968; and that the records of the Police Department of Winfield, Kansas, reflect evidence of .19 alcohol content in Gladys Adkison's blood at the time; and that thereafter said Gladys Adkison was convicted of such charges on November 27, 1968, in the Municipal Court of Winfield, Kansas, fined the sum of $100.00, and placed upon probation for a period of one year thereafter with reporting dates to her parole officer on July 8, 1969, and November 12, 1969; at the time of her arrest on October 29, 1968, the said Gladys Adkison was placed in jail at the City of Winfield Jail and remained in jail overnight and was released the following morning; ..." At the hearing on the motion for new trial, the law partner of plaintiff's original counsel argued the matter because original counsel had made the affidavits and thought he might also be required to testify in connection therewith. After the argument the court in substance stated that since the counsel arguing this motion was not the same counsel who tried the case, the court would be required to disregard the arguments of counsel. Thereupon, the court questioned trial counsel on why he did not argue the motion. Trial counsel's reply was that he was leaving himself available to testify concerning the affidavits filed in support of the motion. The trial judge, disregarding the arguments of counsel and the uncontradicted affidavits introduced with the motion for new trial, then stated that he had made certain findings of fact at the trial in order to spare the feelings of the parties involved. He stated that if the court must now make specific findings, which findings *130 had never been requested by either party, the court finds that the "husband had proven grounds for divorce against the wife and that the wife had not proven grounds for divorce against him...." and the wife was unfit to have custody of the child. An appeal was filed and in due course a request was made to the district court for permission to proceed with the appeal in forma pauperis. The trial court denied the application and permission had to be obtained from this court. The plaintiff filed an application for temporary custody during the appeal or in the alternative for reasonable visitation rights. Plaintiff presented evidence under oath that she was being denied reasonable visitation rights with her child. Defendant had moved from a number of different residences in a short period of time between the trial and the motion for temporary custody. Neither the plaintiff nor her counsel could find out where the defendant was staying with the child. The plaintiff presented evidence that she had only seen her child three times since custody was granted to the father. The court, over the objection of the plaintiff, allowed the defendant to testify without being sworn. While the defendant was testifying without being sworn, counsel for defendant suggested that he would be willing to have the testimony under oath retroactive. The court stated, "this is just for therapy. We want to understand each other better." In overruling the motion for at least reasonable visitation rights, the court stated, "Well, this is on appeal to another court, and the other court will decide whether other error was committed here. I see nothing to do, except to leave it in status quo." We are forced to conclude that at the hearings on custody of the child there was not the careful and conscientious consideration of all material factors making it possible for the trial court to exercise sound judicial discretion in the premises, and under the facts and circumstances disclosed by the record the trial court abused its discretion in taking the five months old baby girl from its mother and giving custody to the father. We are not directing the immediate delivery of the custody of the child to the mother. Right to custody must be determined from the facts and circumstances existing at the time the determination is made. Over a year has expired since the custody order was made by the trial court. There is also the question of child support if and when a change of custody is decreed. *131 It is ordered that, as soon as possible, compatible with due process and proper procedure, a full hearing be held to determine the proper custody of the infant under present conditions, and that the matter be transferred to another division for such hearing. APPROVED BY THE COURT. FONTRON, J., concurring: I agree that prejudicial error is disclosed by the record and that Mrs. Adkison should be granted a new trial as to matters relating to child custody. Furthermore, I concur in the view that the case should be transferred to another division of the Sedgwick County District Court for the purpose of conducting the rehearing. In addition to the directions which the court has set out in its opinion, I would also direct that Mrs. Adkison be accorded specific rights of visitation with her infant daughter, even now less than two years old, during pendency of the rehearing proceedings, and that the order granting such visitation rights spell out the time, place and length of the mother's visits. The record clearly reflects recalcitrance on the part of Mr. Adkison in matters pertaining to visits by Mrs. Adkison with the child. He seldom permitted any visitations by the mother, and failed to keep her properly advised of the child's whereabouts. Upon oral argument, at which Mr. Adkison did not appear, the court was advised that Mrs. Adkison had not seen her child for a period of several months and had been unable to ascertain where either the girl or her father could be found. For the reasons expressed, I believe a proper order of visitation should be made as early as possible. Not only would such an order be just, but it might be of assistance to Mrs. Adkison in locating her small daughter.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00151-CV IN THE INTEREST OF A.A.N., I.G.N., AND N.L.N., II, CHILDREN ---------- FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 233-485486-10 ---------- MEMORANDUM OPINION1 ---------- I. Introduction In his sole issue, Father appeals the permanent injunction in the trial court’s judgment regarding his girlfriend’s access to the children and having unrelated members of the opposite sex stay overnight. We reverse and render in part and affirm as modified. 1 See Tex. R. App. P. 47.4.  II. Factual and Procedural Background Mother and Father had three children together. They divorced on January 26, 2011. The divorce decree appointed both parties as joint managing conservators and named Mother as the conservator with the exclusive right to designate the primary residence of the children. On August 10, 2012, Mother filed a petition to modify the parent-child relationship and application for a temporary restraining order and a protective order. Father filed a counter-petition to modify the parent-child relationship. The trial court’s January 26, 2013 temporary orders stated, among other things, that the parties “shall not have unrelated members of the opposite sex staying overnight during each party’s period of possession” and that “the children shall have no access to . . . [Father’s girlfriend].”2 After conducting a hearing on February 21, 2013, the trial court denied both parties’ modification requests but ordered that the injunctions prohibiting any contact between Father’s girlfriend and the children and prohibiting the parties from having unrelated members of the opposite sex stay overnight during their period of possession remain in effect and survive finality of the judgment.3 This appeal followed. 2 The children were ages fifteen, eleven, and eight. 3 The trial court also ordered that the injunction prohibiting Father from interfering with Mother’s use and enjoyment of the vehicle in her possession remain in effect and survive finality of the judgment, but Father does not complain about this permanent injunction in this appeal. 2  III. Discussion In his sole issue containing three subissues, Father argues that the trial court abused its discretion by granting the permanent injunctive relief at issue here because Mother never pleaded for that relief, the evidence is legally and factually insufficient to support this injunctive relief, and the injunction prohibiting the parties from having unrelated members of the opposite sex stay overnight is overly broad and not supported by the evidence. Because the family code does not expressly address permanent injunctions in suits affecting the parent-child relationship, see Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied), we apply the rules applicable to permanent injunctions in civil cases generally. See Tex. Fam. Code Ann. § 105.003(a) (West 2014) (“Except as otherwise provided by this title, proceedings shall be as in civil cases generally.”). To be entitled to a permanent injunction, the party seeking the injunction must plead and prove (1) a wrongful act, (2) imminent harm, (3) irreparable injury, and (4) absence of an adequate remedy at law. See Indian Beach Prop. Owners Ass’n v. Linden, 222 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A trial court abuses its discretion by granting an injunction when it misapplies the law to established facts or when the evidence does not reasonably support the determination or the existence of a probable right of recovery or probable injury. See Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 916 (Tex. App.—Dallas 2006, no pet.). Furthermore, “a 3 permanent injunction ‘must not grant relief which is not prayed for nor be more comprehensive or restrictive than justified by the pleadings, the evidence, and the usages of equity.’” In re N.W., No. 02-12-00057-CV, 2013 WL 5302716, at *11 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003)). Here, Mother’s pleadings did not contain a request for a permanent injunction, and she neither amended her pleadings nor asked for a trial amendment to add a request for a permanent injunction. See id. (dissolving permanent injunction in final order when Father’s pleadings did not include a request for permanent injunction); Falor v. Falor, 840 S.W.2d 683, 687 (Tex. App.—San Antonio 1992, no writ) (holding trial court abused its discretion by issuing permanent injunction that father stay away from mother because mother did not plead or prove necessity of permanent injunction). A permanent injunction cannot stand in the absence of pleadings requesting such relief, the granting of a trial amendment to add a request for permanent injunction, or trial of the issue by consent.4 See A.B.H., 266 S.W.3d at 599–601 (holding trial court’s 4 Trial by consent is a doctrine that is only intended to cover extraordinary cases in which it clearly appears from the record that the parties tried the unpleaded issue. See In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.); RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Consent may be found only when evidence concerning an unpleaded issue is developed under circumstances indicating that both parties understood the issue was in the case. See Tex. R. Civ. P. 67; A.B.H., 266 S.W.3d at 600. Having reviewed the record, we cannot say that this is the type of extraordinary case in which the record clearly indicates that both parties understood requests for permanent injunctions were in the case. 4 appointing father sole managing conservator in absence of pleading or trial by consent constituted abuse of discretion); Falor, 840 S.W.2d at 687 (dissolving permanent injunction in absence of pleading and proof); see also Tex. Fam. Code Ann. § 156.004 (West 2014) (“The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.”); Tex. R. Civ. P. 301 (requiring trial court’s judgment to conform to pleadings); In re J.A.L., No. 02-10-00374-CV, 2012 WL 858638, at *2–3 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.) (mem. op.) (holding trial court abused discretion by modifying conservatorship and child support because no pleading requested that relief); Funes v. Villatoro, 352 S.W.3d 200, 214 (Tex. App.— Houston [14th Dist.] 2011, pet. denied) (reversing trial court’s permanent injunction and rendering a take-nothing judgment as to injunctive relief when plaintiff did not seek injunctive relief in his pleadings). Further, even if Mother had pleaded for the permanent injunctions at issue, the record contains insufficient evidence to support their issuance. Mother testified that her daughter was concerned about Father’s girlfriend after discovering racy pictures of her on the internet. Mother stated that she was disgusted by the pictures and that she believed Father’s girlfriend was a bad influence on her children. However, Mother presented no evidence that the children were harmed by these photographs or that the children would suffer irreparable injury if they were allowed further access to Father’s girlfriend. Mother’s concern that Father’s girlfriend was a bad influence on the children was 5 not a sufficient basis to support an injunction prohibiting the girlfriend from having any contact with the children. See Frequent Flyer Depot Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 227 (Tex. App.—Fort Worth 2009, pet. denied) (stating that fear and apprehension of a speculative injury are not sufficient to support an injunction). Additionally, neither side developed testimony on the impact of having an overnight guest, and the record is devoid of any evidence showing that the children would be imminently harmed and would suffer irreparable injury if unrelated members of the opposite sex—even the children’s friends from school—were allowed to stay overnight during the parties’ periods of possession. Accordingly, we sustain Father’s sole issue. IV. Conclusion Having sustained Father’s sole issue, we reverse the parts of the judgment granting the permanent injunctions at issue and render judgment dissolving those permanent injunctions. We affirm the remainder of the judgment as modified. PER CURIAM PANEL: MCCOY, MEIER, and GABRIEL, JJ. GABRIEL, J. concurs without opinion. DELIVERED: July 31, 2014 6 

658 N.E.2d 657 (1995) Doug DEVORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 22A04-9412-CR-501. Court of Appeals of Indiana. December 14, 1995. Rehearing Denied February 7, 1996. Transfer Denied April 3, 1996. Michael J. McDaniel, McDaniel & Biggs, for appellant. Pamela Carter, Attorney General, Meredith J. Mann, Deputy Attorney General, Indianapolis, for appellee. OPINION STATON, Judge. Doug Devore ("Devore") pled guilty to eighteen counts of child molesting and now appeals his sentence. Devore presents two issues on appeal which we restate as follows: *658 I. Whether the trial court abused its discretion in denying Devore's motion to suppress medical records obtained by the State. II. Whether the trial court abused its discretion in limiting Devore's statement prior to sentencing. We affirm. The facts most favorable to the State reveal that Devore admitted himself to a Kentucky hospital with his chief complaint being his desire to control his child molesting. A hospital employee reported the alleged abuse to the authorities on October 27, 1993. On November 4, 1993, the State filed an information charging Devore with nineteen counts of child molesting, which was later amended to include two additional counts of child molesting. Sometime thereafter, the State sought discovery of Devore's medical records from the hospital, which the hospital furnished. In August 1994, Devore entered a plea of guilty to eighteen counts of child molesting. At a subsequent hearing, Devore received a sixty-year sentence with ten years suspended. This appeal ensued. I. Medical Records Devore contends that the sentencing court erred in allowing his medical records to be introduced into evidence. We note that a trial court has broad discretion in ruling on the admissibility of evidence and in determining its relevancy. We will disturb its ruling only upon a showing of abuse of that discretion. Kremer v. State (1987), Ind., 514 N.E.2d 1068, 1073, reh. denied; Little v. State (1995), Ind.App., 650 N.E.2d 343, 344. Furthermore, the sentencing court is not confined to evidence which would be admissible at trial. Madden v. State (1990), Ind., 549 N.E.2d 1030, 1034. Devore argues that the physician-patient privilege and the statute abrogating privileged communications do not authorize the State's introduction of his medical records into evidence.[1] We disagree. In Indiana, "any individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report" as required by statute. IND.CODE § 31-6-11-3 (1993). Thus, everyone, including physicians, has a duty to report suspected child abuse. In order to reconcile the reporting statute with the physician-patient privilege,[2] the Indiana legislature abrogated the physician-patient privilege in cases where a child is a victim of abuse or neglect. The abrogation statute provides: The privileged communication between: * * * * * * (2) a health care provider and the health care provider's patient; * * * * * * is not a ground for excluding evidence in any judicial proceeding resulting from a report of a child who may be a victim of child abuse or neglect, or relating to the subject matter of such a report or failing to report as required by this chapter. IND.CODE § 31-6-11-8 (1993). Decisions of the Indiana Supreme Court clearly indicate that this section is to be liberally construed to abrogate the privilege so that children may be protected from various forms of abuse, including child molesting. See, e.g., *659 Davidson v. State (1990), Ind., 558 N.E.2d 1077, 1090-91; Baggett v. State (1987), Ind., 514 N.E.2d 1244, 1244-45 (IC XX-X-XX-X applicable in the case of child molesting). Devore argues that the abrogation statute should not apply because the child abuse had already been reported and the purpose of the reporting statute had been fulfilled. In support of this argument, he relies on Daymude v. State (1989), Ind.App., 540 N.E.2d 1263, trans. denied. In Daymude, the defendant's daughter was defined as a "child in need of services" ("CHINS") by the public welfare department. Id. at 1264. The juvenile court then ordered the department to provide counseling services to the daughter and her family. During the course of counseling, Daymude revealed information to his counselor relating to alleged incidents of sexual abuse. After the State charged Daymude with child molesting, criminal deviate conduct, and incest, the State attempted to depose Daymude's counselor. Over Daymude's objection, the trial court ordered the counselor to answer questions relating to Daymude's communications with him. On interlocutory appeal, Daymude claimed that the communications were privileged and confidential and were not abrogated by the reporting statute. Id. The Daymude court held that "the physician-patient privilege is not abrogated with regard to confidential communications disclosed by a defendant while participating in counseling sessions ordered by a trial court pursuant to a report of child molesting." Id. at 1268. The court limited its holding to the specific facts presented. Id. It noted that the physician-patient privilege arose as a direct result of therapy ordered by the court during a CHINS proceeding. In addition, the privileged communications were made long after the report of child abuse. Since the abuse had already been reported, the purpose of the statute had been fulfilled.[3]Id. In the case at bar, we are presented with an entirely different factual scenario. First, Devore did not undergo court-ordered counseling. Instead, he voluntarily admitted himself to a hospital with his chief complaint being his desire to control his child molesting. Moreover, Devore's communications were made at the hospital between October 25, 1993 and October 28, 1993. The State filed charges against Devore on November 4, 1993. While some of the child abuse may have already been reported, there may have been additional child victims. Second, the molested child in Daymude was Daymude's own daughter, apparently a single victim. Id. at 1264. Here, the number of molested children was unknown, as many of the child victims were members of a baseball team that Devore coached. The goal of the reporting statute is to promote the reporting of child abuse cases and to provide a mechanism for the investigation of the abuse in order to protect the child and to provide rehabilitative services for the child and his parents, guardian, or custodian. IC XX-X-XX-X; Daymude, supra, at 1265. Because Devore's medical records may have revealed other children in need of protection or rehabilitative services, the goal of the statute was clearly met. Finally, Devore pled guilty. The medical records were admitted into evidence and available to the sentencing judge. It is well settled that the sentencing court is not confined to evidence which would be admissible at trial. See, e.g., Madden, supra, at 1034; Thomas v. State (1990), Ind.App., 562 N.E.2d 43, 47. Therefore, we conclude Devore's claim of privilege has been abrogated and the court did not abuse its discretion in allowing the medical records to be introduced into evidence. Moreover, even if we were to find that a privilege did exist and the records were excludable, Devore was not prejudiced. The court has considerable latitude in the admission or rejection of evidence. See Ballin *660 v. State (1993), Ind.App., 610 N.E.2d 846, 850, trans. denied. The appellant must demonstrate actual prejudice before the error will be grounds for reversal. Id. As stated above, Devore pled guilty to eighteen counts of child molesting. He now argues in his reply brief that a diagnosis of pedophilia constituted an aggravating factor which the court considered in sentencing. A careful review of the record reveals that the sentencing judge did not use the pedophilia diagnosis as an aggravating factor. Thus, no prejudice flowed from the error, if any, in admitting Devore's medical records. II. Statement by Defendant Devore also argues that he was denied his statutory right to make a statement at the sentencing hearing. The relevant statute provides in pertinent part: When the defendant appears for sentencing, the court shall inform him of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement. IND.CODE § 35-38-1-5 (1993). However, the Indiana Supreme Court has held that the defendant is not entitled to make a statement when he pleads guilty. Fuller v. State (1985), Ind., 485 N.E.2d 117, 122. See also, Minton v. State (1980), Ind., 400 N.E.2d 1177, 1179. The clear import of the statute is that the right to make a statement applies only where a defendant has entered a plea of not guilty and a trial has occurred resulting in a verdict or a finding of guilty. Minton, supra, at 1179. Therefore, we conclude that the sentencing court did not err in limiting Devore's statement. Affirmed. HOFFMAN and FRIEDLANDER, JJ., concur. NOTES [1] Devore also argues that the State violated Kentucky and federal law in obtaining the medical records. We note that this court is not bound by the law of other jurisdictions and that Devore neglects to cite authority as to how Kentucky law is applicable in this case. Furthermore, he contends 42 C.F.R. §§ 2.61-2.64 (1994) mandates notice to a patient where his records are sought. That section applies to a patient's treatment at a "federally assisted alcohol and drug abuse program." 42 C.F.R. § 2.12 (1994). Devore failed to present any evidence which supports his claim that the Kentucky hospital is a "federally assisted" program. Therefore, we decline to address Devore's arguments that the State violated Kentucky and federal law. [2] IND.CODE § 34-1-14-5 (1993) defines the physician-patient privilege as follows: Except as otherwise provided by statute, the following persons shall not be competent witnesses: * * * * * * (3) Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases. [3] The purpose of the reporting statute is set forth in IND.CODE § 31-6-11-1 (1993) which states: It is the purpose of this chapter to encourage effective reporting of suspected or known incidents of child abuse or neglect, to provide in each county an effective child protection service to quickly investigate reports of child abuse or neglect, to provide protection for such a child from further abuse or neglect, and to provide rehabilitative services for such a child and his parent, guardian, or custodian.

United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-3660 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Peter Terrell Redditt lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota ____________ Submitted: February 10, 2020 Filed: July 15, 2020 [Published] ____________ Before LOKEN, BENTON, and KELLY, Circuit Judges. ____________ PER CURIAM. Peter Terrell Redditt pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Reddit has three prior Minnesota convictions for first degree aggravated robbery. See Minn. Stat. § 609.245, subd. 1. In United States v. Libby, 880 F.3d 1011, 1015-16 (8th Cir. 2018), we held that this crime is, categorically, a violent felony under the “force clause” of the Armed Career Criminal Act (“ACCA”).1 Consistent with Libby, the district court2 classified Redditt’s prior convictions as “violent felonies” and sentenced him to 180 months imprisonment, the ACCA mandatory minimum prison sentence. See 18 U.S.C. § 924(e)(1). Reddit appeals, arguing his Minnesota aggravated robbery convictions are no longer ACCA violent felonies in light of the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544 (2019), issued after his sentencing. In United States v. Jackson-Bey, No. 18-3545 (8th Cir. July 7, 2020), we recently rejected this identical argument, concluding it was foreclosed by two decisions issued while Redditt’s appeal was pending. In Taylor v. United States, 926 F.3d 939, 942 (8th Cir. 2019), we held that “Stokeling reinforced -- and certainly did not cast doubt on -- our decision in Pettis3 that a prior Minnesota conviction for the crime of simple robbery is a ‘violent felony’ under the ACCA’s force clause.” Based on Taylor, we held in United States v. Robinson 925 F.3d 997, 998-99 (8th Cir. 2019), that first degree aggravated robbery remains a violent felony after Stokeling because its offense conduct includes simple robbery. As Jackson-Bey is binding on our panel, we must affirm. The prior conviction at issue in Jackson-Bey was the Minnesota offense of simple robbery -- taking personal property from another person while using or threatening the imminent use of force to overcome the person’s resistance or to compel 1 The force or elements clause states: “(B) the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). 2 The Honorable David S. Doty, United States District Judge for the District of Minnesota. 3 United States v. Pettis, 888 F.3d 962, 966 (8th Cir. 2018), cert. denied, 139 S. Ct. 1258 (2019). -2- acquiescence in the taking. Minn. Stat. § 609.24. We concluded that Stokeling did not overrule or undermine our prior decisions in Libby and Pettis that this offense is, categorically, a violent felony under the ACCA’s force clause. After we issued our decisions in Taylor and Robinson, Redditt moved for leave to file a pro se supplemental brief arguing that even if the Minnesota offense of simple robbery is a violent felony under the ACCA’s force clause, first degree aggravated robbery is not because it can be committed by being armed without using force. As this is a variation of the argument presented by counsel, we grant the motion for leave to file. However, we conclude that this argument, too, is foreclosed by our prior decisions. A person commits Minnesota first degree aggravated robbery if he, “while committing a robbery, is armed with a dangerous weapon . . . or inflicts bodily harm upon another.” Minn. Stat. § 609.245, subd. 1. Redditt argues that, because the statute defines first degree aggravated robbery as “robbery” with a weapon, not “simple robbery” with a weapon, simple robbery is not a lesser included offense of first degree aggravated robbery. But in Libby, we held that simple robbery is a lesser included offense of first degree aggravated robbery, 880 F.3d at 1013, and we noted that “[n]either party disputes that the elements, as defined in both Minn. Stat. § 609.245, subd. 1 and Minn. Stat. § 609.24, present an indivisible offense.” 880 F.3d at 1015. In Robinson, we confirmed, post-Stokeling, that first degree aggravated robbery “is defined as simple robbery committed while armed with a dangerous weapon.” 925 F.3d at 998-99 (quotation omitted). Thus, binding circuit precedent establishes that Minnesota first degree aggravated robbery is an indivisible offense that includes the lesser included offense of simple robbery. Thus, it is, categorically, a violent felony under the ACCA. The judgment of the district court is affirmed. ______________________________ -3- 

[Cite as Sheppard v. Ohio Bd. of Regents, 2016-Ohio-3477.] VICTORIA C. SHEPPARD, Ph.D. Case No. 2015-01053 Plaintiff Judge Patrick M. McGrath Magistrate Robert Van Schoyck v. DECISION OHIO BOARD OF REGENTS, et al. Defendants {¶1} On January 22, 2016, defendants filed a motion to dismiss pursuant to Civ.R. 12(B)(6). On January 29, 2016, plaintiff filed a response; however, there is no certificate of service to demonstrate that the document was served upon counsel for defendants, as required under Civ.R. 5. It has been stated before, in the magistrate’s order of January 29, 2015, that pursuant to Civ.R. 5(B)(4) documents filed with the court “shall not be considered until proof of service is endorsed thereon or separately filed.” {¶2} On February 22, 2016, plaintiff filed a motion for leave to amend her complaint. Once again, there is no certificate of service to demonstrate that the motion was served upon counsel for defendants as required under Civ.R. 5. Moreover, the motion only seeks to add party-defendants, namely individuals whom the court previously dismissed from this action on December 23, 2015, on the basis that only instrumentalities of the state can be defendants in original actions in the court of claims. Therefore, plaintiff’s motion is DENIED as moot. {¶3} In construing defendants’ motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling her to recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). Case No. 2015-01053 -2- DECISION {¶4} According to the complaint, plaintiff unsuccessfully applied for professorships or other employment with defendant, Kent State University (KSU), 79 times. The complaint provides that plaintiff subsequently requested and obtained a meeting with Richard E. Serpe, Chair of the Sociology Department at KSU, “to discuss her career and to follow-up with a review of the vitae sent to * * * Serpe, in consideration of her obtaining employment in the Kent State University Department of Sociology (another Academic Chair had proposed Plaintiff’s graduate school background and academic research was better suited to Sociology, as opposed to Public Administration).” {¶5} It is alleged that during the meeting, on January 23, 2013, Serpe made statements pertaining to race and gender, including mentioning that he is a white man and has a brother-in-law who is black and is his best friend. Plaintiff alleges that Serpe also told her he had recently hired two black individuals for professorships, which to plaintiff indicated that “consideration of her for employment would be different” if she were white. {¶6} It is also alleged that Serpe “exhibited unwanted sexually explicit behavior.” According to the complaint, Serpe inappropriately touched plaintiff’s feet during the meeting. It is alleged that Serpe stated during the meeting “I could hire you” and “you never know how things will end.” It is further alleged that Serpe “used profanity several times,” with the only specific example being that Serpe lowered his voice at one point in the meeting and said “I f----d up! I can f--k up, you can’t…” {¶7} Plaintiff alleges that shortly after the meeting, she filed a charge of race and gender discrimination with defendant, Ohio Civil Rights Commission (OCRC). According to the complaint, an investigator with OCRC promised plaintiff that OCRC “can make them sit down with you and we can make them give you a job, and compensate you.” It is alleged that in spite of the assurances, however, OCRC ultimately found no probable cause and dismissed the charge in July 2013. Case No. 2015-01053 -3- DECISION {¶8} The complaint provides that plaintiff later sought a meeting with KSU’s president to discuss settling her claims, but she was referred to KSU’s legal counsel, with whom she met on December 4, 2014. The complaint states that plaintiff made a settlement offer at this meeting, but KSU later sent her a letter declining the offer. Plaintiff claims that she had been misled at the meeting into believing that KSU would either accept her offer or respond with a counteroffer. {¶9} Procedurally, it is noted that a timeline attached to the complaint provides that on January 22, 2015, plaintiff filed suit against several defendants, including the defendants in the present action, in the Portage County Common Pleas Court. The timeline provides that the common pleas action was later removed to federal court, and following that court’s dismissal of plaintiff’s federal civil rights claims, the action was remanded to the common pleas court, from which all remaining claims were dismissed for lack of jurisdiction on November 23, 2015. {¶10} On December 22, 2015, plaintiff commenced the present action in the court of claims. Plaintiff’s complaint sets forth six counts for relief and requests judgment in the amount of $50 million. {¶11} Defendants argue in their motion to dismiss that the complaint sets forth no claim upon which relief can be granted. {¶12} Counts one and two of the complaint assert claims for “race discrimination” and “sexual discrimination” under 4112.02(A). {¶13} “Under Ohio law, an employer may not discharge without just cause, refuse to hire or otherwise discriminate against an individual with respect to hire, tenure, terms, conditions or privileges of employment ‘because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry’ of that person.” Burns v. Ohio State Univ. College of Veterinary Med., 10th Dist. Franklin No. 13AP-633, 2014-Ohio-1190, ¶ 6, quoting R.C. 4112.02(A). Case No. 2015-01053 -4- DECISION {¶14} “‘To prevail in an employment discrimination case, a plaintiff must prove discriminatory intent’ and may establish such intent through either direct or indirect methods of proof.” Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012- Ohio-1709, ¶ 25, quoting Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998). {¶15} “Direct evidence of discrimination is evidence of any nature, which if believed, is sufficient by itself to show the employer more likely than not was motivated by discriminatory animus in its action.” Smith v. Superior Production, LLC, 10th Dist. Franklin No. 13AP-690, 2014-Ohio-1961, ¶ 16. “Discriminatory statements only support a claim for discrimination under the direct evidence standard if there is a causal link or nexus between the discriminatory statement and the prohibited act of discrimination. Vague, ambiguous, or isolated comments cannot be used as direct evidence to establish that an adverse action was motivated by discriminatory intent.” (Citation omitted.) Chapa v. Genpak, LLC, 10th Dist. Franklin No. 12AP-466, 2014-Ohio-897, ¶ 90. {¶16} As evidence of race discrimination, plaintiff cites remarks that Serpe allegedly made during the meeting, including stating that he is white and has a black brother-in-law who is also his best friend, and that he recently hired two professors who are black. In her complaint, plaintiff concludes that based on the mere fact that Serpe “openly mentioned race during a meeting with an African American scholar,” he violated Ohio law. Assuming that Serpe made these statements, however, they are not sufficient to establish an inference of discriminatory intent on the basis of race. See Sheppard v. Kent State Univ., N.D.Ohio No. 5: 15 CV 417, 2015 U.S. Dist. LEXIS 105325 (Aug. 11, 2015). Similarly, as evidence of gender discrimination, plaintiff points to the fact that Serpe allegedly stated at one point during the meeting that he is male and at other times used profanity that she construed as sexual in nature, including the following: “I f----d up! I can f--k up, you can’t...” The statements alleged, however, are Case No. 2015-01053 -5- DECISION not sufficient to establish a plausible inference of discriminatory intent on the basis of gender. {¶17} “In the absence of direct evidence, discrimination claims are subject to a version of the burden shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). * * * Under McDonnell Douglas, a plaintiff must first present evidence from which a reasonable jury could conclude that there exists a prima facie case of discrimination.” Turner v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011-Ohio-4654, ¶ 11-12. Under this approach, “a plaintiff must prove by a preponderance of the evidence that (1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position in question; and (4) comparable, non- protected persons were treated more favorably.” Refaei v. Ohio State Univ. Hosp., 10th Dist. Franklin No. 10AP-1193, 2011-Ohio-6727, ¶ 12. {¶18} Plaintiff’s complaint does not support a prima facie claim under this theory. There is no suggestion that plaintiff had an employment application pending with KSU when she requested and obtained the meeting with Serpe to “discuss her career,” but even if it is assumed that plaintiff could establish that she suffered an adverse employment action, such as KSU’s failing to hire her for any of the positions she applied for in the past, the complaint does not support an inference that comparable, non- protected persons were treated more favorably. To the contrary, the complaint provides that KSU hired African Americans for such positions. {¶19} Count three of the complaint asserts a claim for “sexual harassment and intimidation.” “[A] plaintiff may establish a violation of R.C. 4112.02(A)’s prohibition of discrimination ‘because of * * * sex’ by proving either of two types of sexual harassment: (1) ‘quid pro quo’ harassment, i.e., harassment that is directly linked to the grant or denial of a tangible economic benefit, or (2) ‘hostile environment’ harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or effect of Case No. 2015-01053 -6- DECISION creating a hostile or abusive working environment.” Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 176 (2000). {¶20} With regard to the “hostile work environment” theory, “[a] plaintiff must be an employee at the time of the harassment to establish a claim for hostile work environment.” Hoyt v. Nationwide Mut. Ins. Co., 10th Dist. Franklin No. 04AP-941, 2005-Ohio-6367, ¶ 71. From the complaint, it is clear that plaintiff was not an employee of KSU at the time of the alleged harassment. Therefore, plaintiff cannot prevail under the hostile work environment theory of sexual harassment. {¶21} To prevail on a quid pro quo claim, plaintiff must demonstrate (1) that she was a member of a protected class, (2) that she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, (3) that the harassment complained of was based on gender, and (4) that her submission to the unwelcome advances was an express or implied condition for receiving job benefits or that her refusal to submit to sexual demands resulted in a tangible job detriment. Id. at ¶ 74. {¶22} Among the allegations cited in the complaint as evidence of sexual harassment are that Serpe “used profanity several times,” the only specific example being that Serpe lowered his voice at one point in the meeting and said “I f----d up! I can f--k up, you can’t…” It is also alleged that Serpe’s feet touched plaintiff’s during the meeting, and that Serpe stated at some point during the meeting “I could hire you” and “you never know how things will end.” Making all reasonable inferences in plaintiff’s favor, even if the allegation of plaintiff’s feet being touched could be construed as an unwelcome advance, the complaint does not support an inference that Serpe conditioned a job benefit such as hiring plaintiff on her submission to the same. See Sheppard v. Kent State Univ., N.D.Ohio No. 5: 15 CV 417, 2015 U.S. Dist. LEXIS 105325 (Aug. 11, 2015). Case No. 2015-01053 -7- DECISION {¶23} The fourth count of the complaint is for “defamation and impunment [sic] of personal integrity.” Impugning of personal integrity is not an independent claim for relief recognized under Ohio law. As for defamation, defendants assert that the claim is time- barred. “R.C. 2743.16(A) provides the applicable statute of limitations for civil actions against the state, stating such actions ‘shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties.’” Stubbs v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-484, 2012-Ohio-1374, ¶ 14. “A claim for defamation ‘shall be commenced within one year after the cause of action accrued.’” Fischer v. Kent State Univ., 10th Dist. Franklin No. 14AP-789, 2015-Ohio-3569, ¶ 22, quoting R.C. 2305.11(A). Accordingly, the one-year limitation on actions found in R.C. 2305.11(A) applies to plaintiff’s claim of defamation. Shampine v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin Nos. 11AP-123 & 11AP-384, 2011-Ohio-6057, ¶ 12. “A cause of action for defamation accrues on the date of publication of the alleged defamatory matter.” Pankey v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 11AP- 36, 2011-Ohio-4209, ¶ 9. {¶24} According to the complaint, plaintiff’s claim of defamation arises from statements that were made by legal counsel for KSU during the course of the OCRC proceedings. The complaint provides that those proceedings terminated in July 2013. Plaintiff initiated this action more than one year later, on December 22, 2015. Even if plaintiff originally asserted the defamation claim in the lawsuit before the Portage County Common Pleas Court and re-filed it in this court under the savings statute (R.C. 2305.19(A)), plaintiff states that that the common pleas lawsuit commenced on January 22, 2015, also more than one year after the publication of the allegedly defamatory matter. Accordingly, plaintiff’s defamation claim is barred by the applicable one-year statute of limitations. Case No. 2015-01053 -8- DECISION {¶25} The fifth count of the complaint is for “infliction of emotional distress.” The complaint provides that this claim arises from all the defendants’ “negligent or intentional disregard of Plaintiff’s charges * * *.” The only specific factual allegations plaintiff associates with this claim are that after she sought a meeting with KSU’s president to discuss settling her claims, she was granted a meeting with KSU’s legal counsel on December 4, 2014, counsel asked what plaintiff proposed in terms of a settlement and said that he would discuss her demand with other members of KSU’s legal department, and KSU subsequently informed plaintiff that it declined her offer in a letter dated December 15, 2014. Plaintiff alleges that she felt misled in that she believed KSU would either accept her offer or respond with a counteroffer. {¶26} “A claim for intentional infliction of emotional distress requires plaintiff to show that (1) defendant intended to cause emotional distress, or knew or should have known that actions taken would result in serious emotional distress; (2) defendant’s conduct was extreme and outrageous; (3) defendant’s actions proximately caused plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered was serious.” Hanly v. Riverside Methodist Hosps., 78 Ohio App.3d 73, 82 (10th Dist.1991). {¶27} In Yeager v. Local Union 20, 6 Ohio St.3d 369, 374 (1983), quoting Restatement of the Law 2d, Torts, Section 46, comment d (1965), the court explained that liability in such cases “‘has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”’” {¶28} As a matter of law, the court concludes that the allegations upon which plaintiff’s claim is predicated are not so outrageous in character and extreme in degree as to support a claim for intentional infliction of emotional distress. Case No. 2015-01053 -9- DECISION {¶29} The sixth count of the complaint is for negligent supervision. Basically, plaintiff alleges that KSU failed to properly supervise Serpe, and OCRC failed to properly supervise its investigators. {¶30} “In order to establish a claim for negligent supervision or retention, the following elements must be demonstrated: ‘(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employer’s act or omission causing plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.’” Chapa v. Genpak, LLC, 10th Dist. Franklin No. 12AP-466, 2014-Ohio-897, ¶ 106, quoting Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 729 (10th Dist.1999). {¶31} Plaintiff’s complaint does not set forth underlying factual allegations which, if proven, would establish all the elements of a negligent supervision claim. The facts alleged do not support an underlying tort or wrong by Serpe, and aside from a conclusory allegation that KSU was negligent in supervising Serpe, plaintiff does not allege facts suggesting that KSU had notice of Serpe’s alleged incompetence. See Ford v. Brooks, 10th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 22-24. Moreover, the allegation that OCRC was negligent in supervising its employees is vague and essentially represents a challenge to the outcome of the OCRC proceedings. {¶32} As a final matter, in addition to the six counts for relief discussed above, the complaint also provides, in part, that this is a “civil rights action [that] raises federal questions under the Fourteenth Amendments [sic] to the United States Constitution and 42 U.S.C. § 1983.” “It is well-established that the Court of Claims lacks subject-matter jurisdiction over alleged violations of constitutional rights and claims arising under Section 1983, Title 42, U.S. Code (‘§1983’).” Guillory v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin Nos. 07AP-861 & 07AP-928, 2008-Ohio-2299, ¶ 12. Consequently, these claims shall be dismissed for lack of subject matter jurisdiction. Case No. 2015-01053 -10- DECISION {¶33} Based upon the foregoing, defendants’ motion to dismiss shall be granted, plaintiff’s civil rights claims shall be dismissed without prejudice, and plaintiff’s complaint shall be otherwise dismissed. PATRICK M. MCGRATH Judge [Cite as Sheppard v. Ohio Bd. of Regents, 2016-Ohio-3477.] VICTORIA C. SHEPPARD, Ph.D. Case No. 2015-01053 Plaintiff Judge Patrick M. McGrath Magistrate Robert Van Schoyck v. JUDGMENT ENTRY OHIO BOARD OF REGENTS, et al. Defendants {¶34} For the reasons set forth in the decision filed concurrently herewith, defendants’ motion to dismiss is GRANTED, plaintiff’s civil rights claims are DISMISSED without prejudice, and plaintiff’s complaint is otherwise DISMISSED. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. PATRICK M. MCGRATH Judge cc: Victoria C. Sheppard, Ph.D. Duffy W. Jamieson 1700 West Market Street, C122 Assistant Attorney General Akron, Ohio 44313-7002 30 East Broad Street, 15th Floor Columbus, Ohio 43215-0590 Randall W. Knutti Assistant Attorney General 150 East Gay Street, 18th Floor Columbus, Ohio 43215-3130 Filed May 24, 2016 Sent To S.C. Reporter 6/17/16 

599 So.2d 213 (1992) Melvin O. CARLTON, Jr., Appellant, v. Ellen S. CARLTON, Appellee. No. 91-3285. District Court of Appeal of Florida, First District. May 13, 1992. *214 Barry L. Zisser and Nancy N. Nowlis, Jacksonville, for appellant. Dale G. Westling, Sr. and David A. Hertz, Jacksonville, for appellee. SHIVERS, Judge. This appeal is from a final judgment of dissolution of marriage. The former husband raises six issues, and we find that three have merit. First, the parties were unable to agree on the distribution of their relatively large amount of personal property. In this case a coin flip relative to the personal property was to take place after the entry of the order on appeal. Thus, there is no basis for appellate review. Shea v. Shea, 572 So.2d 558 (Fla. 1st DCA 1990). Accordingly, remand is required for the trial court either to rule on the equities of the actual distribution of the personal property on the lists submitted by the parties or to equitably distribute the property. Second, the trial court ordered "that the Wife shall have a COBRA option to continue health insurance through the Husband's carrier." In addition, the trial court ordered that "[f]or so long as [his] support obligation continues, the Husband shall maintain major medical and dental insurance for the benefit of the minor child." The uncontroverted evidence is that the former husband does not have access to group insurance except through the former wife's policy at work. There is also no evidence that the former husband's insurance carrier from his prior employment offered a COBRA option, or that if the carrier did offer the option, the window of opportunity to elect the option is still open. Subsection 61.13(1)(b), Florida Statutes *215 (1991), states, "Each order for child support shall contain a provision for health insurance for the minor child when the insurance is reasonably available. Insurance is reasonably available if the obligor has access at a reasonable rate to group insurance." Therefore, on remand the trial court shall reconsider its ruling on these health insurance matters. In its reconsideration, the trial court shall make specific findings. Third, the trial court ordered the former husband to pay his former wife's attorney's fees, but the order does not set forth the basis for the award. Thus, on remand the trial court "must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors." Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990). The remainder of the final judgment of dissolution is affirmed. AFFIRMED in part, REVERSED in part and REMANDED. JOANOS, C.J., and BOOTH, J., concur.

258 F.2d 696 103 U.S.App.D.C. 396 James N. WASHINGTON, Appellant,v.UNITED STATES of America, Appellee. No. 13742. United States Court of Appeals District of Columbia Circuit. Submitted May 16, 1958.Decided June 26, 1958. Mr. Nathan J. Paulson, Asst. U.S. Atty., Washington, D.C., with whom Messrs. Oliver Gasch, United States Atty., Carl Belcher and Arthur J. McLaughlin, Asst. U.S. Attys., Washington, D.C., were on the brief, submitted on the brief, for appellee. Messrs. Lewis Carroll, Asst. U.S. Atty., and E. Tillman Stirling, Asst. U.S. Atty., Washington, D.C., at the time record was filed, also entered appearances for appellee. Before: REED, Associate Justice of the Supreme Court, retired,* and PRETTYMAN and BURGER, Circuit Judges. PER CURIAM. 1 This is an appeal from the conviction of appellant in the District Court on an indictment in three counts charging violation of the narcotic laws.1 The appellant was found guilty on the three counts, and sentenced to imprisonment on each count of from eight months to two years, the said terms to run consecutively. 2 Appellant, a layman, had counsel, appointed by the court at his trial. Counsel appointed in this court on appellant's request withdrew because no substantial reason for reversal appeared. Appellant himself then briefed his appeal. He raises questions as to the inconsistency of the evidence of the several witnesses and the refusal of the judge to hear argument on the motion for judgment of acquittal. The record has been examined and we find no sufficient ground for discussion or reversal as to those points. 3 A third ground for reversal is the admission of evidence of a confession of the prisoner between arrest and appearance before a magistrate. The arrest took place at about 12:05 a.m., and he was taken to Police Headquarters, Narcotics Squad. Shortly after arrival, the arresting officers asked him about the charge of selling narcotics. After some twenty minutes he admitted the sale and offered to disclose the identity of his vendor. No objection was made to the admission of his statement and there was uncontradicted evidence by police observers of the facts of the actual sale. The accused was promptly taken before a magistrate the following morning. 4 Under the circumstances of this case, we do not think there can be error in the admission of the appellant's statement to the police.2 5 A fourth ground is the Government's failure to produce at the trial the informer who had allegedly purchased the narcotics from appellant in view of police officers who did testify. There was evidence that the prosecution had made reasonable efforts to locate the absent witness and an adequate 'absent witness' instruction was given to the effect that the jury might 'draw the inference that the testimony of that witness would be unfavorable' to the Government unless the witness' absence was sufficiently explained.3 These facts justify the jury's verdict. 6 The judgment of the District Court is affirmed. * Sitting by designation pursuant to the provisions of Section 294(a) Title 2, U.S.Code, 28 U.S.C.A. 294(a) 1 21 U.S.C. 174, 21 U.S.C.A. 174, 26 U.S.C. 4704(a), 4705(a), 26 U.S.C.A. 4704(a), 4705(a). These cover sales of unlawfully imported narcotics, sales without proper stamps and without an appropriate order 2 Lawson v. United States, 101 U.S.App.D.C. 332, 248 F.2d 654; Blackshear v. United States, 102 U.S.App.D.C. 289, 252 F.2d 853; cf. Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337. See Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685. Gilliam v. United States, 103 U.S.App.D.C. 181, 257 F.2d 185 3 Dear Check Quong v. United States, 1947, 82 U.S.App.D.C. 8, 160 F.2d 251

IN THE COURT OF APPEALS OF IOWA No. 13-1712 Filed October 29, 2014 IN RE THE MARRIAGE OF JEREMIAH DANIEL ANDERSON AND TAI REBECCA ANDERSON Upon the Petition of JEREMIAH DANIEL ANDERSON, Petitioner-Appellee, And Concerning TAI REBECCA ANDERSON, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Boone County, Michael J. Moon, Judge. A mother appeals the district court decision denying her application for modification of the physical care provision of the parties’ dissolution decree. AFFIRMED. Robb D. Goedicke of Cooper, Goedicke, Reimer & Reese, P.C., West Des Moines, for appellant. Daniel J. Tungesvik of Kruse & Dakin, L.L.P., Boone, for appellee. Considered by Mullins, P.J., Bower, J., and Mahan, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).  2 MAHAN, S.J. A mother appeals the district court decision denying her application for modification of the physical care provision of the parties’ dissolution decree. We agree with the district court’s determination the mother has not shown a substantial change of circumstances that would justify modification of the physical care provision of the parties’ dissolution decree. We deny the father’s request for appellate attorney fees. We affirm the decision of the district court. I. Background Facts & Proceedings. Jeremiah Anderson and Tai Anderson were married in 2005. They have three minor children. A dissolution decree was entered on May 7, 2010, granting the parties joint legal custody and placing the children in Jeremiah’s physical care. The district court found Tai was “probably one of the most dishonest persons this Court has ever seen testify. She lied about virtually everything. After observing her and hearing the testimony for two days, the Court finds her credibility is virtually nil.”1 The court found Jeremiah had a good work ethic, was more emotionally stable than Tai, and had a strong family support structure. Tai was ordered to pay $413 per month in child support. She was granted visitation on alternating weekends, alternating holidays, and one month during the summer. The dissolution decree was affirmed on appeal. See In re Marriage of Anderson, No. 10-1133, 2011 WL 768797 (Iowa Ct. App. Mar. 7, 2011). 1 Tai told Jeremiah she was divorced when they married, but she was not then yet divorced. (Tai was divorced from her previous husband after she married Jeremiah; the parties, however, do not dispute that they were legally married.) For several months Tai stated she had a paid position with the Iowa National Guard, when in fact she was working as a volunteer. She also stated her “job” required her to work some nights and weekends, but this was untrue, and it is unknown where she was during this time.  3 Before procedendo was issued in the previous appeal on April 8, 2011, Tai filed the present action on April 5, 2011, seeking to modify the physical care provision of the parties’ dissolution decree. She claimed the children were not safe in Jeremiah’s care, she and Jeremiah could not communicate, and he was alienating the children from her. Jeremiah filed a counterclaim, asking for sole legal custody of the children and asking to have Tai’s child support obligation increased. The modification hearing commenced on July 17, 2013. At the time of the dissolution hearing Tai was living in the home of Perry Miller. She adamantly denied they were in a romantic relationship, stating she was just renting space in his home. On November 26, 2012, however, she married Perry. At the modification she stated she had previously been untruthful about the nature of their relationship. Tai and Perry moved from Ankeny to Ottumwa, Iowa. Tai had been previously employed at a daycare. At the time of the modification hearing, she was employed selling advertising for a local television station. Tai pleaded guilty to a charge of fourth-degree theft arising from a bad check and was placed on probation. Jeremiah, then and now, is employed by Union Pacific Railroad.2 He continues to live in Stratford, Iowa. Jeremiah was previously a member of the Iowa National Guard. In the summer of 2010 he was deployed to Afghanistan. He left the children in the care of his parents, but after a court action, the children were placed in Tai’s physical care. On Jeremiah’s request, the National Guard 2 Although Jeremiah is working for the same employer, he testified at the modification hearing that his job presently involves less travel than before.  4 permitted him to return to Iowa and resume care of the children. Tai had the children in her care from August to December 2010. Jeremiah left the National Guard in December 2011. There is a confirmed report from March 2010 that Jeremiah physically abused one of the children, but it was not placed on the child abuse registry because it was determined to be “minor, isolated and unlikely to reoccur.” The incident took place one or two years previous to the report, when the parties were still married.3 The district court issued an order on August 20, 2013. The court found Tai had not met her burden to show a material and substantial change of circumstances since the entry of the decree. The court determined the parties would remain joint legal custodians and the children should remain in Jeremiah’s physical care. The court modified Tai’s child support obligation, increasing it to $692 per month. The court also modified the parties’ visitation schedule to give Tai five weeks of visitation over the course of the summer, rather than one solid month of summer visitation. The court denied Tai’s post-trial motion filed pursuant to Iowa Rule of Civil Procedure 1.904(b). Tai now appeals. II. Standard of Review. This action was tried in equity, and our review is de novo. Iowa R. App. P. 6.907. We give weight to the factual findings of the district court, especially 3 The incident was discussed during the dissolution hearing. The report from the Iowa Department of Human Services came out after the dissolution hearing but before the decree was filed. Thus, the underlying facts of the incident were considered by the court at the time of the decree, but not the fact the Department issued a confirmed report. Jeremiah stated he intended to slap one of the children on the mouth to teach him not to use bad language, when the child moved and he accidentally struck the child on the nose, causing a bloody nose. In addition to the one confirmed report, there had been several investigations of Jeremiah by the Department that were determined to be unfounded. Jeremiah claimed Tai was making unsubstantiated allegations against him to the Department.  5 when considering the credibility of witnesses, but are not bound by those findings. Iowa R. App. P. 6.904(3)(g). This is because the district court has an opportunity to view, firsthand, the demeanor of the parties. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). III. Modification of Physical Care. Tai contends the district court should have modified the parties’ dissolution decree to grant her physical care of their three children. She asserts there has been a substantial change in circumstances. Tai points out that after the dissolution decree there was a confirmed report Jeremiah physically abused one of the children. She claims there is a lack of communication between Jeremiah and herself. She also claims Jeremiah has been alienating the children from her. Tai contends she would be the better parent to have physical care of the children because she could provide a more structured environment and would do a better job of providing maximum ongoing contact with the other parent. A court may modify the physical care provision of a dissolution decree “only when there has been a substantial change in circumstances since the time of the decree not contemplated by the court when the decree was entered, which is more or less permanent and relates to the welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004). A parent seeking to modify physical care has a heavy burden and must show the ability to offer care superior to that of the current custodial parent. In re Marriage of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009). Once custody of children has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994).  6 The district court determined Tai had not shown there was a material and substantial change of circumstances, which is more or less permanent and relates to the children’s welfare, since the entry of the dissolution decree. The confirmed report of child abuse against Jeremiah was based on an incident that occurred during the time the parties were married. The facts concerning that incident were extensively litigated during the original dissolution hearing. The only other changes presented by the record are that Tai got married and moved with her new husband. Tai has not shown the parties’ communication has deteriorated since the time of the dissolution decree. Furthermore, she has not shown Jeremiah was alienating the children against her. We agree with the district court’s conclusion Tai has not shown a material and substantial change of circumstances such that the physical care provision of the parties’ dissolution decree should be modified. In addition, we determine the record does not establish Tai met her burden to show she could minister more effectively to the well-being of the children. The record shows the children have done well in Jeremiah’s care. Tai has not shown she could provide better care than the children are currently receiving. We affirm the decision of the district court denying Tai’s request to modify the physical care provision of the parties’ dissolution decree. IV. Grandparent Obstruction. Tai claims the district court should have addressed the issue of grandparent obstruction. She claims Jeremiah’s parents were interfering with her relationship with the children. She also claimed Jeremiah relied too much on his parents to help take care of the children.  7 As Tai noted, this issue was not addressed by the district court in the modification order. In Tai’s rule 1.904(2) motion she alleged the paternal grandmother had disparaged her in front of the children. In ruling on the motion, the court stated: Certainly, there were episodes described throughout the course of three days of testimony which demonstrated that [Jeremiah] and his mother had been less than sensitive concerning their comments and actions towards [Tai]. The relationship between [Jeremiah] and [Tai] and between [Jeremiah’s] mother and [Tai] following the entry of the decree has been contentious, however, the episodes taken collectively did not rise to the level of a substantial change in circumstances. Thus, the record shows this issue was addressed by the district court in its ruling on Tai’s rule 1.904(2) motion. We concur in the district court’s conclusion that the relationship between Tai and the paternal grandparents did not establish a substantial change in circumstances which would support a modification of physical care. V. Attorney Fees. Jeremiah seeks attorney fees for this appeal.4 An award of attorney fees is not a matter of right, but rests in the court’s discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). An award depends upon the needs of the party seeking the award, the ability of the other party to pay, and the relative merits of the appeal. Id. The record shows Jeremiah has substantially more income than Tai. For this reason, we deny Jeremiah’s request for appellate attorney fees. 4 In her reply brief, Tai asserts she should be awarded appellate attorney fees. We do not address issues raised for the first time in a party's reply brief. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009).  8 We affirm the decision of the district court denying Tai’s request to modify the physical care provision of the parties’ dissolution decree. Costs of this appeal are assessed to Tai. AFFIRMED. 

FAKEYE V. STATE (comment: 1) COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-04-300-CR OLUGBENGA FAKEYE APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY ------------ OPINION ------------ I. Introduction In a single issue, Appellant Olugbenga Fakeye asserts error on the part of the trial court in failing to admonish him, in connection with his guilty plea, of the consequences of such a plea in violation of Texas Code of Criminal Procedure section 26.13(a)(4).  We reverse and remand. II. Background Following the reading of the indictment, Fakeye pleaded guilty to organized criminal activity with the underlying offense of fraudulent use or possession of identifying information.  This was followed by the following exchange: THE COURT: Mr. Fakeye, do you understand the possible punishment of this offense is by incarceration in the Institutional Division of the Texas Department of Criminal Justice for not less than two nor more than 20 years and a possible fine of up to $10,000? THE DEFENDANT: Yes. THE COURT: Now, knowing that’s the range of punishment, do you still want to enter your plea of guilty? THE DEFENDANT: Yes. The State later adduced evidence during the punishment phase of Fakeye’s trial that he participated in a scheme to steal identifying information from students at Mountain View College.  He then used that information to obtain credit cards that were later used to purchase merchandise at a Mervyn’s department store. A jury assessed punishment at five years’ incarceration and a fine of $1,652.00.  On appeal, Fakeye contends that his guilty plea was involuntary as a result of the trial court’s failure to admonish him about the possibility of deportation when he entered his plea. III. Incomplete Admonishment Article 26.13(a)(4) requires that the trial court admonish the defendant of the possibility of deportation before accepting a guilty plea.   See Tex. Code Crim. Proc. Ann . art. 26.13(a)(4) (Vernon Supp. 2005).  However, the failure to admonish a defendant on the consequences of his guilty plea is statutory error rather than constitutional error.   Burnett v. State , 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).  Thus, under the harm analysis of statutory error, we disregard the error unless it affected appellant's “substantial rights.” See Tex. R. App. P . 44.2(b). Here, the State concedes error on the part of the trial court in failing to admonish Fakeye in accordance with this part of the code. However, the State asserts that Fakeye was not harmed by the trial court’s failure to admonish him about the possibility of deportation as a result of his plea of guilty.  Additionally, the State points to this court’s earlier holding in Lopez v. State for the proposition that a defendant bears the burden of showing that he was unaware of the possible consequences of his plea.  71 S.W.3d 511 (Tex. App.—Fort Worth 2002, no pet.).  The State concludes that Fakeye, like the defendant in Lopez , has failed to carry this burden.   However, in Lopez , we stated: Under Carranza , the court of criminal appeals imposed upon the defendant the burden of proof to show he was unaware of the consequences of his plea and that he was misled or harmed by the admonishment of the trial court.   Carranza , 980 S.W.2d at 658.  The court of criminal appeals has since made it clear that an appellant has no burden to show harm under rule 44.2(b).   Johnson v. State , 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Id. at 516, n.1 (emphasis added).   The Texas Court of Criminal Appeals explained that as the reviewing court, we must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him.   Burnett, 88 S.W.3d at 638.  T he appellant nor the State has any formal burden to show harm under this analysis.   Id.  Rather, as the reviewing court, we are to examine the entire record to determine whether, on its face, it suggests that a defendant did not know the consequences of his plea. Id .  The court also pointed out that a silent record would support such an inference.   Id .; Hwang v. State , 130 S.W.3d 496, 500 (Tex. App.—Dallas 2004, pet. ref’d). A “silent” record is one in which there is no indication that appellant was ever informed about the specific consequences of his plea. Hwang , 130 S.W.3d at 500. Further, the court held that a reviewing court should also consider facts in the record that show that the defendant did know the consequences of his plea.   Id .  The court stated that it is ultimately this court's responsibility to determine whether the record supports or negates a defendant's assertion of harm.   Burnett, 88 S.W.3d at 639. In the same case, the court held that when a reviewing court has “grave doubt” that the result was free from the “substantial influence of the error, then a court concludes that an error may have had substantial influence on the outcome of the proceeding[s].”   Id. at 637.  “Grave doubt” means that “in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.”   Id . at 637-38 (quoting O'Neil v. McAninch , 513 U.S. 432, 433, 115 S. Ct. 992, 993 (1995)). In this case, the State argues that Fakeye, like the defendant in Lopez ,  was not harmed by the State’s failure to administer the admonishment regarding deportation.  However in that case, the appellant understood the potential deportation consequences of his plea.   Lopez , 71 S.W.2d at 516.  Here, the record supports an inference that Fakeye was unaware of the deportation consequences of his plea.  The record is silent; there is no indication in the record that Fakeye was actually informed that a guilty plea could result in “deportation, the exclusion from admission to this country, or the denial of naturalization under federal law,” nor are there facts in the record that suggest that Fakeye knew the consequences of his plea.   See Tex. Code Crim. Proc. Ann. art 26.13(a)(4).  However, the record does contain some evidence that Fakeye was not a United States citizen:  (1) a motion in limine requested that there be no mention of “defendant’s immigration status in this country,” which was discussed at the hearing wherein Fakeye, age eighteen, pleaded guilty, (2) State’s exhibit twenty-two that indicated that Fakeye went to high school in Nigeria, where he lived as late as 2001, and (3) testimony from Fakeye where he stated that he came to the United States from another country. Based on the entire record before us, we are left with grave doubt as to  whether the conviction was free from the substantial influence of the error.  It is obvious that Fakeye’s ability to enter a guilty plea freely and voluntarily is called into question by his apparent ignorance of the deportation consequences of that plea. And because the evidence suggests that Fakeye is an immigrant, those consequences were particularly material.  Thus, we hold that Fakeye was harmed by the trial court’s failure to admonish him on the deportation consequences of his guilty plea.   Compare Hwang , 130 S.W.3d at 501 (holding that appellant was harmed by trial court’s failure to admonish him of deportation consequences of his guilty plea where the record was silent about whether he was ever specifically informed that his guilty plea could result in deportation and record showed that appellant moved to the United States from Korea) with Denton v. State , No. 2-02-467-CR, 2004 WL 362265, at *2 (Tex. App.—Fort Worth Feb. 26, 2004, pet. ref’d) (not designated for publication) (mem. op.) (holding that appellant was not harmed where defendant never asserted that he was not a U.S. citizen and no evidence in the record suggested he was not a U.S. citizen).  We sustain Fakeye’s sole issue. IV. Conclusion Having sustained Fakeye’s sole issue, we reverse and remand to the trial court for further proceedings.   See Tex. R. App. P . 43.2(d). BOB MCCOY JUSTICE PANEL A: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ. CAYCE, C.J. filed a dissenting opinion. PUBLISH DELIVERED: February 9, 2006 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-04-300-CR OLUGBENGA FAKEYE APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY ------------ DISSENTING OPINION ------------ I dissent.  There is no evidence in the record of this case showing that appellant did not know of the deportation consequences of his guilty plea. (footnote: 1)  Nor is there any evidence that appellant’s knowledge of the deportation consequences would have had any effect on his decision to plead guilty. Because there is no evidence showing that appellant was unaware of the consequences of his plea or that he would not have entered the plea had he known the consequences, the record does not show that appellant’s substantial rights were affected by the error.   Lopez v. State, 71 S.W.3d 511, 516 (Tex. App.—Fort Worth 2002, no pet.).  I would, therefore, affirm.   JOHN CAYCE CHIEF JUSTICE PUBLISH DELIVERED: February 9, 2006 FOOTNOTES 1:The majority relies on one sentence of dicta in Burnett v. State , 88 S.W.3d 633, 638 (Tex. Crim. App. 2002) to support its conclusion that a “silent record” proves that appellant had no knowledge of the deportation consequences of his plea.  It is, of course, axiomatic that we cannot accept a disputed allegation of fact as true without a record containing evidence of the alleged fact.  A silent record neither proves nor disproves the alleged fact. Because the one sentence in Burnett on which the majority relies is dicta that contravenes axiomatic principles of evidentiary review, I do not consider it to have any precedential value. COMMENTS AND ANNOTATIONS Comment 1: MAJORITY BY JUSTICE MCCOY DISSENT BY CHIEF JUSTICE CAYCE