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733 N.W.2d 921 (2007) 2007 WI App 135 Paul E. SPENCER, Jr., Plaintiff-Respondent, v. John KOSIR, Defendant-Appellant.[†] No. 2006AP1691. Court of Appeals of Wisconsin. Submitted on Briefs March 5, 2007. Opinion Filed March 27, 2007. *923 On behalf of the defendant-appellant, the cause was submitted on the briefs of J. Bushnell Nielsen and Bridget M. Hubing of Reinhart Boerner Van Deuren, S.C. of Waukesha. On behalf of the plaintiff-respondent, the cause was submitted on the brief of Ralph W. Koopman of Koopman Law Office of Eagle River. Before CANE, C.J., and HOOVER, P.J., and PETERSON, J. ¶ 1 CANE, C.J. John Kosir appeals a judgment establishing Paul Spencer's right to an easement across Kosir's property. Kosir argues the circuit court erred by finding the easement had not been abandoned and that the court erred in its determination of the location and width of the easement. We disagree with Kosir and affirm the judgment. BACKGROUND ¶ 2 Kosir and Spencer own adjacent lots. Before Kosir's purchase in 1999, there were no significant improvements to either property. Spencer's property does not have access to the town road, but the deed reflects an easement across Kosir's property. Spencer only knew of the lot being visited twice. First, Spencer's mother visited the property in 1972 with her aunt who was the recorded titleholder at that time. Second, Spencer visited the property in 2003 with his attorney. ¶ 3 The easement in question has been continuously recorded since 1936. The easement states ". . . excepting and reserving in the grantors, a right of way for road purposes across the lands herein-above described." No efforts were made to establish and use the easement until the 1990's when Spencer's mother, who then owned the property, made a number of unsuccessful attempts to contact Kosir's predecessors in title to reach an agreement on the location of the easement road needed to comply with a DNR managed forest lands agreement she entered. ¶ 4 In an effort to comply with the managed forest lands agreement, Spencer retained an attorney in 2003 to assist him with the easement. Kosir and Spencer subsequently met, at which time Kosir refused to permit a logging road on his property. In December 2004, Spencer filed this lawsuit seeking a judicial declaration confirming the existence and validity of Spencer's easement rights and a determination of an appropriate width and location of the easement. ¶ 5 Both Kosir and Spencer moved for summary judgment. The circuit court granted summary judgment to Spencer, establishing an easement twenty feet wide with a road no wider than twelve feet. This roadway would be located along the eastern edge of Kosir's property and adjacent to Spencer's property. The court ordered Kosir to remove all of his personal property and/or improvements from the easement within sixty-days. The court's order also permits Spencer to cut down trees to clear a path for the easement. In turn, Spencer is required to compensate Kosir for the stumpage value of the harvested trees. DISCUSSION ¶ 6 The grant or denial of a motion for summary judgment is a matter of law this court reviews de novo. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997). We review summary judgment without deference to the circuit court but benefiting from its analysis. *924 Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). ¶ 7 Kosir argues the nonuse of the easement for roughly seventy years was sufficient to establish that the easement had been intentionally abandoned. Alternatively, Kosir argues the circuit court incorrectly expanded the purpose and scope of the easement in creating a road access. We disagree. ¶ 8 Kosir relies upon Burkman v. New Lisbon, 246 Wis. 547, 18 N.W.2d 4 (1945), to support his nonuse argument. However, this decision supports Spencer's position, and not Kosir's. In Burkman, the supreme court held that flowage rights acquired by prescription were lost by abandonment when the dam that created the rights was destroyed and no attempt was made to restore it. Id. at 557, 18 N.W.2d 4. In Burkman, an affirmative act, which helped persuade the court the rights were abandoned, was the fact that the dam was not rebuilt. See id. To reach this conclusion, the court relied on comments (c) and (d) of the RESTATEMENT OF THE LAW OF PROPERTY, VOL. V, § 504 (1940). Id. at 556, 18 N.W.2d 4. Comments (c) and (d) read as follows: c. Conduct as to Use. An intentional relinquishment of an easement indicated by conduct respecting the use authorized by it constitutes an abandonment of the easement. The intention required in the abandonment of an easement is the intention not to make in the future the uses authorized by it. The benefit of an easement lies in the privilege of use of the land subject to it. There is no abandonment unless there is a giving up of that use. The giving up must be evidenced by conduct respecting the use of such a character as to indicate an intention to give up the use for the future as well as for the present. Conduct, when inconsistent with the continuance of the use, indicates an intention to give it up. The conduct required for abandonment cannot consist of verbal expressions of intention. Such expressions are effective to extinguish an easement only when they comply with the requirements of a release and operate as such. Verbal expressions of an intention to abandon are relevant, however, for the purpose of giving meaning to acts which are susceptible of being interpreted as indicating an intention to give up the use authorized by an easement, but which do not give themselves conclusively demonstrate the intention which animated them. d. Nonuse. Conduct from which an intention to abandon an easement may be inferred may consist in a failure to make the use authorized. Nonuse does not of itself produce an abandonment no matter how long continued. It but evidences the necessary intention. Its effectiveness as evidence is dependent upon the circumstances. Under some circumstances a relatively short period of nonuse may be sufficient to give rise to the necessary inference; under other circumstances a relatively long period may be insufficient. The duration of the period of nonuse, though never conclusive as to the intention to abandon, is ordinarily admissible for the purpose of showing intention in that regard. (Emphasis added). We agree with the circuit court that these provisions are helpful in resolving the present case. Kosir also relies on other cases involving abandonment. However, all those cases involve easements that were established and used to some extent before they were abandoned. See Povolny v. Totzke, 2003 WI App 184, 266 Wis. 2d 852, 668 N.W.2d 834. Here, however, the easement's location was never established in the first place, let alone used. Therefore, *925 case law that involves established easements which are later abandoned is not analogous. ¶ 9 We also agree with the circuit court's application of legal principles to the presented facts in this case. The court reasoned: It is of no legal consequence that the easement road has not been constructed and used in all the years from 1936 to present. Spencer and his predecessors were under no affirmative legal obligation to construct the road when the easement was first created. It was a vacant, wooded parcel and was not occupied or used for any purpose by the owners at that time. The reservation of easement in 1936 was therefore in contemplation of a future need for legal access from the parcel to the town road. That need did not ripen until the mid-to-late 1990's when a timber harvest was contemplated by the [managed forest lands] plan for this property. At that point Spencer's mother did exercise reasonable efforts to preserve her easement claim, and Spencer himself has done so by attempting to negotiate access with Kosir and by initiating this lawsuit. Under these circumstances, the circuit court correctly held that the easement had not been abandoned merely because it was not used for seventy years. ¶ 10 Kosir also contends that Spencer's and his predecessors' acquiescence in Kosir's home construction and other structures and allowing trees to grow on his property are affirmative acts establishing an intent to abandon the easement. We disagree. The affirmative act required to demonstrate an intent to abandon must be that of the easement holder. Mere acquiescence is not an affirmative act. The actions of the servient owner alone cannot establish the easement holder's intent to abandon. See BRUCE & ELY, THE LAW OF EASEMENTS AND LICENSES IN LAND, § 10:20 (West Group, 2001). The first time Spencer had reason to appreciate the extent of Kosir's improvements was in 2003, when he was attempting to enforce the easement. Furthermore, there is no evidence that Kosir's improvements are so extensive as to render Spencer's use of a roadway impossible. ¶ 11 Because no path was ever created or contemplated, we also reject Kosir's argument that Spencer's conduct was essentially "allowing the easement path to fall into disrepair." Furthermore, we also note that in the context of abandonment no Wisconsin court has ever held that letting an easement fall into disrepair, by itself, is sufficient to establish abandonment. See Povolny, 266 Wis. 2d 852, 668 N.W.2d 834. ¶ 12 Alternatively, Kosir challenges the court's determination that the easement covers the eastern twenty-feet of his property and limits the travel portion to no more than twelve-feet in width. Kosir argues the easement should be limited to at most an eight foot wide walking path. We disagree. ¶ 13 The easement is described as "a right of way for road purposes." The easement does not have a specified width or location. When the location of an easement is not defined, the court has the inherent power to affirmatively and specifically determine its location, after considering the rights and interests of both parties. See Werkowski v. Waterford Homes, Inc., 30 Wis. 2d 410, 417, 141 N.W.2d 306 (1966). We review equitable remedies for erroneous exercise of discretion. See Mulder v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct.App.1984). The circuit court properly exercises its discretion if it applies the appropriate law and the record shows there is a reasonable factual basis for its decision. See Burkes v. Hales, 165 *926 Wis.2d 585, 590, 478 N.W.2d 37 (Ct.App. 1991). ¶ 14 The court's determination of the location and width of the easement road is supported by facts in the record. The court found the easement was recorded and enforceable, entitling Spencer to "right of way for road purposes." Because the words "road purposes" specify the type of "right of way" to be granted, we reject Kosir's reading of this language as not granting a road easement. Spencer did not need to use an alternate form of access to drive vehicles to his property nor is he limited to a walking path. ¶ 15 The court considered Kosir's interests and located the easement on the eastern edge of Kosir's property, where it would least affect Kosir's property. The court also considered Kosir's complaints about the number of trees that would have to be cut. In response to these complaints, the court limited the width of the easement road to twelve feet and ordered Spencer to pay Kosir the stumpage value of the marketable trees harvested in order to open up the easement road. Despite his assertions to the contrary, the record establishes Kosir has to move only those structures located within the easement. The court applied the appropriate law, and the record shows a reasonable factual basis for the location and width of the easement road. See id. Therefore, we conclude the court properly exercised its discretion. Judgment affirmed. NOTES [†] Petition for Review filed.

Exhibit 10.1 RESTRICTED UNIT AWARD AGREEMENT   THIS RESTRICTED UNIT AWARD AGREEMENT (this “Agreement”) is entered into as of [ ] (the “Effective Date”), by and between Whitestone REIT, a Maryland real estate investment trust (the “Company”), and [ ] (the “Participant”).   WHEREAS, the Participant is an employee of the Company or one of its subsidiaries or affiliates and in connection therewith has rendered services and received compensation for those services, for and on behalf of the Company and/or its subsidiaries or affiliates; and  WHEREAS, the Company has initiated and the shareholders approved the 2008 Long-Term Equity Incentive Ownership Plan as it may be further amended from time to time (the “Plan”), for the purpose of encouraging performance beyond the Participant’s assigned responsibilities and focusing as well on company goals and targets; and WHEREAS, the Company maintains the Plan, which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the Compensation Committee administering the Plan (the “Committee”) to receive an award under the Plan. NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:   1. Restricted Unit Award. The Participant is hereby granted [ ] Units (the “Units”) subject to the restrictions and on the terms and conditions set forth in this Agreement (the “Award”). Each Unit shall represent the right to receive one (1) common share of beneficial interest, par value $0.001 per share, of the Company (the “Common Shares”). The number of Units subject to this Award and the number of Common Shares deliverable with respect to such Units may be adjusted from time to time for capitalization adjustments as described in Section 4.2 of the Plan.   2. Restriction on the Units.   (a) Period of Restriction. Except as otherwise set forth herein, all the Units issued to the Participant pursuant to this Agreement shall be subject to a period of restriction (the “Period of Restriction”) during which the Participant’s rights in and to such Units shall be subject to the limitations and obligations set forth in this Section 2. (b) Lapse of Period of Restriction. The Period of Restriction shall lapse in accordance with the provisions of Exhibit A, which is attached hereto and forms part of this Agreement. During the period that the Units are subject to the Period of Restriction, such Units are referred to herein as “Restricted Units.” (c) Delivery of the Common Shares. Subject to Section 2(d) below, upon the lapse of the Period of Restriction with respect to a Unit, the Unit shall be converted into the right to receive a Common Share, and the Company will deliver to the Participant a number of Common Shares equal to the number of Units subject to this Award, on the applicable date of the lapse of the Period of Restriction or as soon as practicable thereafter. The form of delivery (e.g., a share certificate or electronic entry evidencing such shares) shall be determined by the Company. 1 -------------------------------------------------------------------------------- (d) Termination of Continuous Employment. Notwithstanding any other provision of this Agreement to the contrary, if the Participant is an employee of the Company or one of its subsidiaries or affiliates, and if the Participant’s continuous employment with the Company terminates for any reason (or no reason), other than the Participant’s death or Disability (as defined in the Plan), any Restricted Units that are subject to the Period of Restriction on the date of the Participant’s termination shall be immediately forfeited by the Participant and shall be automatically transferred to and reacquired by the Company at no cost to the Company, and neither the Participant nor his or her heirs, executors, administrators or successors shall have any right or interest in such Restricted Units or the underlying Common Shares. In the event of the Participant’s death or Disability, any Restricted Units that are subject to the Period of Restriction on the date of death or Disability shall immediately vest and the Participant or his or her heirs, executors, administrators or successors shall have the right and interest in such Restricted Units.      3. No Rights as a Shareholder. Until Common Shares shall have been delivered to the Participant in accordance with Section 2(c) hereof, subject to the terms of this Agreement and the Plan, shall have no rights of a shareholder with respect to the Restricted Units, including no right to vote the Restricted Units and no right to receive current dividends and distributions, with respect to the Restricted Units.   4. Change in Control. Notwithstanding Section 2 of this Agreement, if the Participant holds Restricted Units at the time a Change in Control (as defined in the Plan) occurs, the Period of Restriction with respect to such Restricted Units granted in Section 1 shall automatically lapse immediately prior to the consummation of such Change in Control. 5. Withholding. All deliveries and distributions under this Agreement shall be subject to withholding of all applicable taxes. The Participant agrees to make appropriate arrangements with the Company for satisfaction of any applicable federal, state or local income tax, withholding requirements or like requirements, including the payment to the Company upon the lapse of the Period of Restriction with respect to the Restricted Units (or such later date as may be applicable under the Internal Revenue Code of 1986, as amended (the “Code”)), or other settlement in respect of, the Restricted Units of all such taxes and requirement.. The Participant agrees that the Company shall be authorized to take such action as the Company may deem necessary (including, without limitation, in accordance with applicable law, withholding amounts from any compensation or other amount owing from the Company to the Participant) to satisfy all obligations for the payment of such taxes.   6. Restrictions on Transfer. During the Period of Restriction, the Participant shall not sell, transfer, pledge, hypothecate, assign, exchange or otherwise dispose of the Restricted Units. Any attempted sale, transfer, pledge, hypothecation, assignment, exchange or other disposition shall be null and void and of no force or effect and the Company shall have the right to disregard the same on its books and records and to issue “stop transfer” instructions to its transfer agent.   7. Plan Provisions Control. This Agreement is subject to the terms and conditions of the Plan, which are incorporated herein by reference. Notwithstanding anything to the contrary contained herein, the provisions of the Plan shall govern if and to the extent that there are inconsistencies between the provisions of the Plan and the provisions of this Agreement. The Participant acknowledges that the Participant has received a copy of the Plan prior to the execution of this Agreement. 8. No Rights Conferred. Nothing in this Agreement shall give the Participant any right to continue in the employ or service of the Company, any affiliate or any subsidiary and/or as a member of the Company’s Board of Trustees or in any other capacity, or interfere in any way with the right of the Company, any affiliate or any subsidiary to terminate the employment or services of the Participant. 2 -------------------------------------------------------------------------------- 9.    Consent to Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this Agreement, the Participant agrees that the Company may deliver the Plan prospectus and the Company’s annual report to the Participant in an electronic format. If at any time the Participant would prefer to receive paper copies of these documents, please contact Chief Financial Officer of the Company to request paper copies of these documents. 10. Adjustments. All references to the number and class of shares covered by this Agreement and other terms in this Agreement may be appropriately adjusted, in the discretion of the Committee, in the event of certain unusual or non-recurring transactions, as set forth in Section 4.2 of the Plan.   11. Compliance with Section 409A of the Code. The Participant hereby consents (without further consideration) to any change to this Agreement or the Award so the Participant can avoid paying penalties under Section 409A of the Code, even if those changes affect the terms and conditions of this Agreement of the Award and reduce its value or potential value.   12. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. This Agreement may not be assigned or transferred in whole or in part by the Participant, nor may the Participant delegate any duty or obligation under this Agreement, and any attempt to so assign, transfer or delegate shall be null and void and of no force or effect.   13. Interpretation of this Agreement. All determinations and interpretations made by the Committee with regard to any questions arising under the Plan or this Agreement shall be final, binding and conclusive as to all persons, including without limitation the Participant and any person claiming rights from or through the Participant.   14. Venue. Each party to this Agreement hereby irrevocably (i) consents and submits to the exclusive jurisdiction of the state and federal courts in Harris County, Texas in connection with any disputes arising out of this Agreement, and (ii) waives any objection based on venue or inconvenient forum with respect to any action instituted therein arising under this Agreement or the transactions contemplated hereby, and agrees that any dispute with respect to such matters shall be heard only in the courts described above.   15. Governing Law; Entire Agreement; Amendment. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to such state’s conflict of laws principles. The Plan and this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. This Agreement may be amended by the Committee, subject to the Participant’s consent if such amendment materially and adversely affects the rights of the Participant, except that the consent of the Participant shall not be required for any amendment made pursuant to Section 4.2 or Section 15.11 of the Plan, or as set forth in Section 11 of this Agreement.   16. Tax Elections. THE PARTICIPANT UNDERSTANDS THAT HE OR SHE (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR THE PARTICIPANT’S OWN TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE ACQUISITION OF THE UNITS HEREUNDER. THE PARTICIPANT ACKNOWLEDGES AND AGREES THAT HE OR SHE HAS CONSIDERED THE ADVISABILITY OF ALL TAX ELECTIONS IN CONNECTION WITH THE ISSUANCE OF THE UNITS.   3 -------------------------------------------------------------------------------- 17. Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed given (i) when delivered personally, or (ii) three days after being deposited in the United States mail, by certified or registered mail, postage prepaid, or (iii) the next business day after sent by nationally recognized overnight delivery service, and addressed, if to the Company, at its principal place of business, Attention: Chief Financial Officer, and if to the Participant, at his or her most recent address as shown in the employment or stock records of the Company.   IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. WHITESTONE REIT By:                         Name:                          Title:                         Participant:                     Date:    [ ] 4 -------------------------------------------------------------------------------- Exhibit A   Lapse of Period of Restriction The purpose of this Exhibit A is to set forth the date of lapse of the Period of Restriction under the terms of the attached Restricted Unit Award Agreement (the “Agreement”). This Exhibit A is incorporated into and forms a part of the Agreement. The Period of Restriction will lapse as follows: (a) 1/7th of these Units will vest on [______]. (b) 1/7th of these Units will vest on [______]. (c) 1/7th of these Units will vest on [______]. (d) 1/7th of these Units will vest on [______]. (e) 1/7th of these Units will vest on [______]. (f) 1/7th of these Units will vest on [______]. (g) 1/7th of these Units will vest on [______].           5

887 F.2d 62 UNITED STATES of America, Plaintiff-Appellee,v.George AYALA, Raul Alfredo Portillo, and Oscar Reza,Defendants-Appellants. No. 88-1880 Summary Calendar.United States Court of Appeals,Fifth Circuit. Oct. 16, 1989. Salvador C. Ramirez, El Paso, Tex., for defendants-appellants. LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee. Appeals from the United States District Court for the Western District of Texas. Before POLITZ, GARWOOD and JOLLY, Circuit Judges. GARWOOD, Circuit Judge: 1 Defendants-appellants George Ayala (Ayala), Raul Alfredo Portillo (Portillo), and Oscar Reza (Reza) appeal their convictions for conspiracy to possess with intent to distribute, and for possession with intent to distribute, one hundred pounds of marihuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846, contending that the evidence adduced at trial was insufficient to support their convictions1. We reject this contention and affirm. Facts and Proceedings Below 2 On March 10, 1988, after a tip from an informant that Ayala was trafficking in narcotics, U.S. Customs Service Special Agent Jimmy Searls (Searls) commenced surveillance of Ayala's activities, ultimately following him to an El Paso self-storage rental facility. At this point, Searls was unable to obtain a position from which to observe Ayala's actions inside the facility. 3 Later that day, Fred Shroeder (Shroeder), an investigator with the Customs Service, summoned Searls to the self-storage facility to show him a test vial containing debris found outside storage unit D-13 that had tested positive for marihuana. Although Searls was unable to detect a marihuana odor emanating from D-13 that evening,2 a Customs Service dog alerted at the door of the unit. As a result, the Customs Service rented a nearby unit from which agents could view unit D-13. 4 Searls testified that five days later he observed Ayala arrive at the storage unit under surveillance and open his car trunk, which Searls noticed contained a blue, hard-sided suitcase. Ayala opened the valise, exposing a black, plastic garbage bag surrounded by white towels that Searls believed were positioned to cushion the bag. Ayala then unlocked the door to unit D-13 with a key and entered it. From his vantage point, Searls was able to see inside the unit and notice that it housed a large scale and two dark-colored garbage bags, one of which Ayala weighed on the scale. Searls testified that after weighing the bag, Ayala completed his activity at D-13 for the day by storing the blue suitcase inside the unit and locking the door. 5 Shroeder testified that on March 22 he called the Customs Service canine unit to the self-storage rental facility in question to examine the exterior of unit D-13 and that, once again, the dog alerted at its entrance. Three days later, Shroeder observed Ayala return to unit D-13 to retrieve from it an unspecified number of bags, a few of which were plastic and others of which were white and marked with green writing. Ayala placed all of the bags inside the passenger's side of his car. Shroeder and Searls followed Ayala from El Paso as far as the U.S. Border Patrol checkpoint near Truth or Consequences, New Mexico. There, agents let Ayala pass after an apparently cursory inspection of his automobile.3 6 Upon returning to El Paso, Shroeder and Searls searched the garbage dumpster at the self-storage facility and discovered several black garbage bags and white nylon ones bearing green writing on the exterior similar to that seen by Shroeder earlier in the day on the white bags Ayala loaded in his car. Shroeder testified that the green markings appeared to indicate weights in kilograms. The white bags contained a green residue that smelled like marihuana and tested positive as such. 7 On April 12, 1988, while conducting a surveillance of Ayala's home, Shroeder and Searls observed a black Ford Bronco arrive at the house.4 Shroeder testified that he saw a man get out of the automobile and approach the house. He then discerned the same man talking to Ayala in his carport. Searls did not observe this initial contact between the two men, but he later saw two men, who appeared to him to be Mexican, leave the carport and enter the Bronco.5 Searls also saw Ayala exit the house carrying two suitcases that he loaded in the rear of the Bronco.6 8 Searls trailed the Bronco and its three passengers to the Amtrak passenger terminal in El Paso and followed the three inside the building. There Ayala split from Reza and the other passenger, both of whom entered the ticket line. From a place in line behind them, Searls was able to overhear Reza purchasing train tickets, although he was unable to make out the destination. After the suspects departed, Searls questioned the ticket agent and learned that Reza had purchased three tickets to Phoenix, Arizona, in the name of "L. Portillo." Fearing that a narcotics shipment would soon be leaving the city, Searls requested assistance from the El Paso Police Department, the United States Border Patrol, and the Drug Enforcement Agency (DEA). 9 Later in the day on April 12, the same black Ford Bronco returned to the Amtrak station, this time with four passengers. Border Patrol agent Jesse Shaw (Shaw) testified that the four--Ayala, Reza, Portillo, and co-defendant Victor Hernandez (Hernandez)--unloaded luggage from the vehicle and separated into two groups. Shaw followed Hernandez and Portillo, who was carrying a maroon suitcase as well as a light blue one, into the terminal. As the two neared the boarding area, Shaw and El Paso Police Sergeant Paul Irwin (Irwin) stopped them and requested identification, which they provided. When the officers asked Hernandez and Portillo to produce their tickets, Hernandez replied that only Portillo was traveling. Hernandez also answered Shaw's inquiry directed to Portillo about his destination, stating that Portillo was departing for a family-related visit to Phoenix. Shaw testified that Portillo said little, although when he spoke he did so in English. Because Hernandez insisted on doing most of the talking for the pair, the officers attempted to separate the two and interrogate them a few feet apart. 10 Shaw questioned Hernandez and asked him how he arrived at the train station. Hernandez responded that he and Portillo had hired a taxi; however, following Shaw's retort that he had seen the suspects show up at the station in a Bronco, Hernandez admitted that the pair had in fact arrived in the manner Shaw described and that he was at the station simply to drop off the appellants. 11 The officers' attempt to conduct separate interrogations failed when Irwin asked Portillo for consent to search his two suitcases because Hernandez again interrupted the questioning, advising Portillo in Spanish not to give consent. Shaw testified that during the officers' repeated requests for consent, Portillo said only a few words, appeared nervous, and seemed to look to Hernandez for counsel about what to say. When the officers asserted that they wanted Portillo to speak for himself, Hernandez told Portillo not to act until he saw a lawyer. Following an inspection of the suitcases by a narcotics dog that resulted in its alerting to them, the officers seized the suitcases and arrested Hernandez and Portillo. 12 El Paso Police officer Armando Fonseca (Fonseca) stopped the other two suspects, Reza and Ayala, as they entered the boarding area of the station and asked them if they would answer a few questions. Both agreed. Fonseca testified that Reza had two suitcases with him that appeared to be heavy because of the way he was carrying them, and that Ayala was toting a garment bag and a briefcase. 13 Fonseca began the questioning by asking Reza if he was boarding the train and, if so, to produce his ticket. Reza answered affirmatively and, with his hand visibly shaking, he presented Fonseca a ticket, which was issued in the name of "L. Portillo" for one-way passage to Phoenix. When Fonseca asked for other identification, Reza, still visibly nervous, displayed a driver's license bearing his actual name. Fonseca testified that Reza was unable to explain the discrepancy in the names. 14 After answering Fonseca's inquiry about the length and nature of his travel by stating that he was departing on a short trip to visit his father, Reza was unable to explain why he was carrying such large suitcases. Reza then responded to Fonseca's question about the nature of his association with Ayala by denying having ever seen him before. 15 Fonseca completed his interrogation of Reza by informing him that he was a narcotics officer and wanted to obtain his consent to search the suitcases. Reza rejoined that he did not understand the meaning of consent and asked if Fonseca had a search warrant. After failing to obtain consent to open the suitcases, Fonseca turned his attention to Ayala, who had paced nervously throughout the interrogation. 16 Ayala also held a one-way ticket to Phoenix in the name of "L. Portillo," although he asserted that his destination was Casas Grandes. In addition, after producing a driver's license in his own name, Ayala explained the difference in the names by asserting that someone else had purchased his train ticket for him. 17 Ayala maintained that he was traveling to Casas Grandes on business to examine property there for a Dallas developer. However, he was unable to provide Fonseca with the names of any of his contacts in Casas Grandes. Ayala also denied knowing Reza or the other two suspects and stated that he had arrived at the terminal by taxi. He further described the purported taxi driver's appearance to Fonseca, without realizing that Fonseca had earlier seen him arriving in the Bronco. 18 Fonseca testified that following the questioning and an examination of the suitcases by the narcotics dog, which alerted to them, Ayala reacted to the test results and his imminent detention by shaking his head "in a dejected manner." After search warrants were obtained, authorities found one hundred pounds spread among the four suitcases seized from Portillo and Reza. Though the suitcases contained some other items, the marihuana accounted for most of their weight. No illicit substances were discovered in Ayala's bags. Searls further testified that he examined the seized luggage and noted that one piece looked identical to the blue, hard-sided suitcase he had seen in Ayala's possession on March 15 at the self-storage facility. Except for essentially fruitless cross-examination of the government's witnesses, there was no defense evidence. 19 Following a bench trial, Ayala, Portillo, and Reza were convicted as charged on both counts. This appeal follows. Discussion 20 Appellants' sole contention on this appeal7 is that the evidence was insufficient to support their convictions. In evaluating such a challenge, we must examine the evidence as a whole in the light most favorable to the verdict and must afford the government the benefit of all reasonable inferences and credibility choices drawn therefrom. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Kim, 884 F.2d 189 (5th Cir.1989); United States v. Whittington, 783 F.2d 1210, 1216 (5th Cir.1986). This Court recognizes that it is the " 'sole province' " of the trier of fact " 'to weigh the evidence and the credibility of the witnesses.' " United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.1986) (quoting United States v. Davis, 752 F.2d 963, 968 (5th Cir.1985)). We will hold that the evidence is sufficient to sustain the verdict if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Palella, 846 F.2d 977, 981 (5th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 162, 102 L. Ed. 2d 133 (1988). When making such a determination, " '[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt....' " United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983)). 21 We observe more generally that what the fact finder "is permitted to infer from the evidence in a particular case is governed by a rule of reason," and that fact finders may properly " 'use their common sense' " and " 'evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.' " Henry, 849 angela84@example.net. Further, as the Supreme Court long ago remarked, "[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof." Coggeshall v. United States (The Slavers), 69 U.S. (2 Wall.) 383, 17 L. Ed. 911, 914-15 (1865). 22 To establish guilt of conspiracy to possess marihuana with intent to distribute under 21 U.S.C. Secs. 841(a)(1) and 846, the United States must prove beyond a reasonable doubt the existence of an agreement that entails a violation of the narcotics laws, the defendants' knowledge of the agreement, and their voluntary participation in it. The prosecution, however, does not need to present evidence showing an overt act by the defendants in furtherance of such a conspiracy. United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988); United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987). In determining the existence of a conspiracy agreement, the trier of fact may rely on circumstantial evidence, including presence and association, along with other evidence. See United States v. Graham, 858 F.2d 986, 991-92 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S. Ct. 1140, 103 L. Ed. 2d 201 (1989); United States v. Ascarrunz, 838 F.2d 759, 763 (5th Cir.1988). The elements of the conspiracy charge "may be inferred from the 'development and collocation of circumstances.' " United States v. Lentz, 823 F.2d 867, 868 (5th Cir.1987) (quoting United States v. Vergara, 87 F.2d 57, 61 (5th Cir.1982)). Although to be guilty a defendant must voluntarily participate in the conspiracy, he need only play a minor role in the overall scheme. United States v. Gonzales, 866 F.2d 781, 788 (5th Cir.1989). 23 In order to prove that the accused were guilty of the underlying offense, 21 U.S.C. Sec. 841(a)(1), the United States must establish beyond a reasonable doubt that they (1) knowingly (2) possessed marihuana (3) with intent to distribute it. See United States v. Richardson, 848 F.2d 509, 511 (5th Cir.1988); United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986). Possession of the illicit narcotic may be actual or constructive, constructive possession being "the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance." Gardea Carrasco, 830 F.2d at 45 (quoting United States v. Glasgow, 658 F.2d 1036, 1043 (5th Cir.1981)). In addition, possession and intent to distribute may be established by circumstantial evidence, and intent may be inferred as well from possession of a large amount of the illicit substance. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). 24 Ayala argues that the United States failed to prove any element of the conspiracy charge and that it did not establish that he had possession of the marihuana. To the contrary, the evidence against Ayala appears to have been more than sufficient to support his conviction. That evidence included testimony linking Ayala to a self-storage facility unit that he controlled, to which narcotics dogs alerted and in front of which government agents discovered marihuana residue. In addition, the evidence indicated that the white bags Ayala was seen carrying into the unit were similar to those containing traces of marihuana that agents discovered in a nearby garbage bin. The unit contained a scale. Further testimony disclosed that the blue suitcase Ayala stored at the unit on March 15 appeared identical to one holding marihuana that agents seized at the train station on April 12. 25 The evidence also revealed that early on April 12, agents observed Ayala accompany Reza to the train station and wait while Reza stood in the ticket line. Later in the day, they watched Ayala, Portillo, and Reza arrive at the station together in the black Bronco and unload luggage from its rear. When considered with the prior evidence, as well as evidence that Ayala was arrested carrying a train ticket bearing the same name as those tickets held by Reza and Portillo and that he exhibited nervous behavior during questioning and lied to Fonseca about his association with his co-defendants, it is clear that sufficient evidence existed establishing Ayala's guilty knowledge of and participation in the charged conspiracy. See Richardson, 848 F.2d at 509 (nervousness at checkpoint); United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir.1989) (lying evidence of guilty knowledge). 26 Although Ayala was not physically carrying the marihuana-laden suitcases when stopped by Fonseca, the trier of fact could have reasonably determined that he had constructive possession of the proscribed substance inside them. Ayala's link to the conspiracy as well as the evidence that one of the suitcases seized by agents had previously been in his possession allow the inference that Ayala had the knowing right to exercise dominion over the marihuana.8 Gardea Carrasco, 830 angela84@example.net. The evidence is also sufficient to show Ayala's guilt of the substantive offense on an aiding and abetting basis or under the rationale of Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 1184, 90 L. Ed. 1489 (1946). 27 Reza and Portillo also contend on appeal that the prosecution failed to prove any element of the conspiracy charges against them. They further maintain that although they were in possession of the marihuana when arrested, the prosecution failed to present evidence establishing that they were in knowing possession of the substance. With respect to Reza, once again, ample evidence exists to support his convictions on both counts. Even though Reza never appeared at the facility where the marihuana was stored, other sufficient evidence indicated his participation in the conspiracy and his knowledge of what he was carrying. Agents observed him arrive at Ayala's home on April 12, pick up Ayala and two apparently empty suitcases, and drive with Ayala to the train station. There, Reza purchased the three tickets to Phoenix bearing identical names, two of which Reza and Ayala were holding when arrested later in the day at the station. When Fonseca stopped Reza, whose two suitcases were later found to contain marihuana, he acted nervously and lied to Fonseca about his association with Ayala. See Richardson, 848 F.2d at 513 (nervousness); Romero-Reyna, 867 F.2d at 836 (providing false information). Given the foregoing as well as the fact that Reza, himself, was planning to travel on the train that day with the suitcases, rather than simply helping apparently innocent others with their luggage at the station, the trier of fact could have reasonably inferred that Reza had knowing possession of the marihuana he was carrying and that he voluntarily participated in the conspiracy. 28 Portillo entered the scenario later than Ayala and Reza and, as a result, the evidence against him is not as strong, although it is sufficient to sustain his convictions. Agents observed him arrive at the station on April 12 in the vehicle with Ayala, Reza, and Hernandez and take two suitcases, which later were discovered to contain marihuana, into the terminal. All three appellants had passage booked to Phoenix, yet Portillo entered the terminal separately from Ayala and Reza and appeared to be traveling apart from them. During questioning, Portillo seemed nervous and was reluctant to answer the officers' questions, relying on Hernandez to deal with them. Finally, like Reza, Portillo himself intended to travel on the train that afternoon with the suitcases and was not merely helping apparently innocent others with their luggage at the station. A collocation of the circumstances would allow a trier of fact to conclude beyond a reasonable doubt that Portillo knew what he was carrying and that he voluntarily participated in a conspiracy with Ayala and Reza to possess marihuana with the intent to distribute it. Conclusion 29 In conclusion, we find that the evidence was sufficient for the district court to convict Ayala, Portillo, and Reza on both counts. 30 AFFIRMED. 1 Appellants' sole other point on appeal is their challenge to the constitutionality of the federal sentencing guidelines followed by the district court in determining their sentences. Because the Supreme Court has since upheld the constitutionality of the guidelines, this challenge is rejected without further discussion. See United States v. Mistretta, --- U.S. ----, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 3172, 104 L. Ed. 2d 1033 (1989) 2 Searls testified, however, that he smelled marihuana at unit D-13 and also that he had found marihuana residue in front of it on subsequent occasions 3 The inspection did, however, include an examination of the interior of the trunk of Ayala's car 4 The Bronco was registered in the name of Reza's mother 5 One of the men was later identified as appellant Reza 6 Searls testified that he thought the suitcases were empty because of the way Ayala was able to "swing[ ] them in[to] ..." the rear of the Bronco 7 Apart from their attack on the constitutionality of the sentencing guidelines, see note 1, supra 8 With regard to all three appellants, the intent to distribute the marihuana can be inferred from the quantity of marihuana found in the suitcases, one hundred pounds. Prieto-Tejas, 779 F.2d at 1101

OPINION {¶ 1} On February 26, 2003, the Ashland County Grand Jury indicted appellant, Dane Ferenbaugh, on two counts of forgery in violation of R.C. 2913.31, both felonies of the fifth degree. On May 22, 2003, appellant pled guilty to one count; the remaining count was dismissed. By judgment entry filed July 14, 2003, the trial court sentenced appellant to twelve months in prison. {¶ 2} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 3} "The imposition of a prison sentence in this case imposes an unnecessary burden on state resources." I {¶ 4} Appellant claims his sentence of twelve months for forgery in the fifth degree places an "unnecessary burden on state or local government resources" in contravention of R.C.2929.13(A). Specifically, appellant claims the cost of imprisoning him "is an unnecessary burden given the facts of this case." Appellant's Brief at 7. We disagree. {¶ 5} R.C. 2929.13 governs sentencing guidelines for various specific offenses and degrees of offenses. Subsection (A) states as follows in pertinent part: {¶ 6} "Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an unnecessary burden on state or local government resources." {¶ 7} The very language of the cited statute grants trial courts discretion to impose sentences. Nowhere within the statute is there any guideline for what an "unnecessary burden" is. {¶ 8} The record sub judice is devoid of any evidence to support the claim of an "unnecessary burden on state or local government resources." In fact, the record indicates appellant's past probation violations have placed a burden on local government resources. T. at 4-5. This supports the argument in favor of a prison sentence. Having failed twice on local supervision resulting in probation violation hearings, resentencing and jail time, we find the lease impact on local and state government resources in this case would be imprisonment. {¶ 9} The sole assignment of error is denied. {¶ 10} The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby affirmed. Farmer, J., Gwin, P.J., and Boggins, J., concur.

Deutsche Investment Management Americas Inc. One Beacon Street Boston, MA 02108 October 4, 2010 Securities and Exchange Commission treet, N.E. Washington, DC20549 RE: DWS Floating Rate Plus Fund (the “Fund”), a series of DWS Portfolio Trust (the “Trust”) (Reg. Nos. 002-13627 and 811-00042) Ladies and Gentlemen: Pursuant to Rule 497(j) under the Securities Act of 1933, as amended, the Trust hereby certifies that the form of Prospectus and Statement of Additional Information that would have been filed on behalf of the Fund pursuant to Rule 497(c) upon the effectiveness of Post-Effective Amendment No. 110 to the Trust’s Registration Statement on Form N-1A (the “Amendment”), do not differ from that contained in the Amendment, which was the most recent Amendment to such Registration Statement and was filed electronically on September 29, 2010. Please direct any comments or questions on this filing to the undersigned at (770)265-0557. Very truly yours, /s/Scott D. Hogan Scott D. Hogan Vice President Deutsche Investment Management Americas Inc. cc:Adam M. Schlichtmann, Ropes & Gray LLP

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 12-3097 ___________ JAMES V. WALLACE, Appellant v. WARDEN DAVID EBBERT; KEVIN BITTENBENDER, D.H.O. ____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 11-cv-01936) District Judge: Honorable William W. Caldwell ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 16, 2012 Before: RENDELL, FISHER and GARTH, Circuit Judges (Opinion filed: November 20, 2012) ___________ OPINION OF THE COURT ___________ PER CURIAM Appellant, James V. Wallace, is a federal prisoner proceeding pro se. On August 23, 2010, while he was an inmate at the Allenwood Federal Correctional Institution in White Dear, Pennsylvania, (“FCI-Allenwood”), he was issued an incident report for violating the Federal Bureau of Prisons (“BOP”) Prohibited Acts Code 112, which prohibits the use of any narcotics not prescribed by medical staff. See 28 C.F.R. § 541.3, tbl. 1. According to the incident report, Wallace’s August 17, 2010 urine sample had tested positive for opiates. On September 3, 2010, at a hearing before a Disciplinary Hearing Officer (“DHO”), Wallace admitted the charge against him. Based on Wallace’s admission and other evidence, the DHO sustained the disciplinary charge. After noting that this was Wallace’s fourth Code 112 violation, and explaining the seriousness of the offense, the DHO sanctioned him as follows: (1) loss of eighteen months of telephone privileges, as well as three years of visiting privileges; (2) disciplinary segregation of sixty days; (3) disallowance of fifty-four days of good time credit; and (4) forfeiture of 458 days of non-vested good time credit. On October 19, 2011, Wallace filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 claiming that the DHO impermissibly relied on his prior Code 112 violations to “enhance” the sanctions pertaining to his good time credits. According to Wallace, the sanctions were “harsh and unjust,” and violated both 28 C.F.R. § 541.3 and BOP Program Statement 5270.09, which outlines the inmate discipline program in accordance with the underlying regulation. The District Court denied the petition, and Wallace timely appealed. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). We exercise plenary review over the District Court’s legal conclusions and 2 review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). The District Court correctly concluded that Wallace’s punishment fell within the range of acceptable punishments outlined in the applicable regulations.1 Pursuant to Table 1 of 28 C.F.R. § 541.3, the DHO was permitted to “[f]orfeit and/or withhold . . . non-vested good conduct time (up to 100%),” and “[d]isallow ordinarily between 50% and 75% (27-41 days) of good conduct time credit available for a year.” Wallace’s loss of 458 days of non-vested good conduct time was clearly permitted by this regulation, and, although the loss of 54 days of good conduct time exceeded the “ordinar[y]” sanction, nothing in Table 1 prohibited the DHO from disallowing a greater percentage of his good conduct time in an effort to deter him from future infractions—especially given his history of Code 112 violations. Furthermore, while Wallace argues that the DHO was not permitted to enhance his punishment under Table 2 based on prior offenses that were more than two years old, see 28 C.F.R. § 541.3, tbl. 2 (“Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity Level”), the DHO did not rely on Table 2 to determine his punishment; rather, as previously noted, the DHO imposed sanctions permitted under Table 1. For these reasons, we will affirm the District Court’s judgment. 1 The District Court also determined that Wallace received all of the process he was due during the disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974); Superintendent v. Hill, 472 U.S. 445, 454 (1985). Wallace does not challenge this ruling on appeal, and we see no error in the District Court’s reasoning. 3

NO. 12-16-00301-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS DEVIN MIMS, § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Devin Mims appeals his conviction for theft. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm. BACKGROUND Appellant was charged by indictment with theft of property valued at less than $2,500 enhanced to a state jail felony by two prior theft convictions. He pleaded “true” to the enhancements and “guilty” to the offense as charged. After a hearing, the trial court assessed Appellant’s punishment at imprisonment for twenty-two months. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel relates that he has reviewed the record and found no reversible error or jurisdictional defects. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. 1 We have considered counsel’s brief and conducted our own independent review of the record. Id. at 811. We have found no reversible error. CONCLUSION As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw and affirm the judgment of the trial court. Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this court’s judgment or the date the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered October 18, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 1 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed. 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 18, 2017 NO. 12-16-00301-CR DEVIN MIMS, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0764-16) THIS CAUSE came to be heard on the appellate record and brief 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, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

951 F.2d 363 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.Helmut "Bill" BUBBEL, Defendant-Appellant. No. 90-10503. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 20, 1991.Dec. 19, 1991. 1 Before ALARCON and T.G. NELSON, Circuit Judges, and PRICE, District Judge* 2 MEMORANDUM** 3 Helmut "Bill" Bubbel (Bubbel), appeals from the judgment of conviction following a jury trial. Bubbel was found guilty of conspiracy to import marijuana in violation of 21 U.S.C. § 963, and conspiracy to commit interstate travel in aid of racketeering in violation of 18 U.S.C. § 371. On appeal Bubbel raises five contentions: 4 1. The district court acquitted Bubbel of conspiracy to import drugs from Colombia; therefore, the jury's verdict subjected Bubbel to double jeopardy. 5 2. Co-defendant's opening statement and closing argument resulted in Bruton violations denying Bubbel his right to cross-examine the witnesses against him. 6 3. The district court abused its discretion by denying Bubbel's motion to sever his trial. 7 4. Bubbel was denied his right to effective assistance of counsel because his trial counsel misunderstood the nature of the charges against him. 8 5. Bubbel's right under the sixth amendment to be informed of the nature and cause of the accusation against him was violated. 9 We conclude that each of these contentions lack merit and affirm. DISCUSSION 1. Double Jeopardy Claim 10 Bubbel contends that at the conclusion of the Government's case in chief, the district court acquitted him of any involvement in the conspiracy to import marijuana from Colombia. As a result, he argues that when the judge instructed the jury on the charge concerning the conspiracy to import marijuana from "Colombia, and elsewhere," he was subjected to double jeopardy. 11 We review de novo the denial of a motion to dismiss for a violation of the double jeopardy clause. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990). Bubbel did not move to dismiss this matter on double jeopardy grounds, accordingly we must review this claim for plain error. See United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986) (when no objection is made at trial, review on appeal is for plain error). 12 "A plain error is a highly prejudicial error affecting substantial rights." Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. 13 Id. (quoting, United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)). 14 On July 13, 1990, at the conclusion of the Government's case, Bubbel made several motions including a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. On July 17, 1990, the district court heard arguments on these motions. The district court first ruled on Bubbel's motion for a determination that "as a matter of law he withdrew from the alleged conspiracy on February 20th of 1986." The court denied Bubbel's motion on the grounds that it was for the jury to decide whether there was sufficient evidence to indicate that Bubbel withdrew from the conspiracy after the failure of the effort to smuggle marijuana from Asia. In explaining the basis for its ruling, the district court stated: "In that regard, [the jury] will consider the credibility of the pilots, whether or not they believe the pilots when they say Mr. Bubbel had nothing to do with the subsequent conspiracy. That's for the jury to decide." 15 The next issue considered by the district court was Bubble's motion for acquittal under Rule 29. The Government argued that there was only one conspiracy which involved the use of the DC-6 to import marijuana from Asia and Colombia. The defense argued that if a single conspiracy was charged, then, "there is no evidence showing Mr. Bubbel's intent to import marijuana from Colombia." The district court ruled as follows: 16 Before the court is Defendant Bubbel's Rule 29 motion for judgment of acquittal on Counts IV and V, insofar as the indictment refers to the conspiracy to import marijuana from, quote, "Colombia and elsewhere," unquote. 17 The fact there is no evidence that Mr. Bubbel participated in a conspiracy to import marijuana from Colombia is not essential to the adequacy of the allegations in the indictment. It is an allegation of general nature, allegation (sic) specifically confirmed the acquisition of the DC-6 aircraft, the plans to fly to Southeast Asia, the off-loading sites, and preparations for Alaska, all of which refer to the overall conspiracy. 18 The issue for a court on a Rule 29 motion is to determine whether there is sufficient evidence on which a jury could return a verdict of guilty. And certainly in this particular case there is sufficient evidence to withstand the Rule 29 motion. 19 And it is denied. 20 Bubbel argues "that the court's midtrial ruling of no evidence to support appellant BUBBEL's involvement insofar as Counts II and III [IV and V of superseding indictment] refer to the conspiracy to import marijuana from Colombia constitute an acquittal of those charges. The submission to the jury allowing conviction despite the lack of evidence placed appellant in Double Jeopardy and denied Due Process." Brief of curtis39@example.net. 21 We disagree. The district court did not "acquit" Bubble of anything. Instead, in denying his motion for the entry of a judgment of acquittal on the charge that Bubbel conspired to import marijuana from "Colombia and elsewhere", the district court explained that there was sufficient evidence to go to the jury on the question of whether Bubbel had withdrawn from the conspiracy prior to the plot to import drugs from Colombia. Because Bubbel was not acquitted of any charge by the district court, he was not subjected to double jeopardy. 2. Alleged Bruton Violation 22 Bubbel second contention is that the attorney for his co-defendant, Thomas Gary Smith, violated the rule established in Bruton v. United States, 391 U.S. 123 (1968), during his opening statement and closing arguments. We review allegations of Bruton error de novo. Herd v. Kincheloe, 800 F.2d 1526, 1529 (9th Cir.1986). As Bubbel made no objections to the opening statement or closing argument, we review this claim for plain error. 23 Bubbel asserts that it was Smith's trial strategy "to confess his guilt as to both of the counts in which he was jointly charged with appellant BUBBEL for the purpose of establishing credibility with the jury, and then focusing his defense on the more serious [Continuing Criminal Enterprise] charges." As a result, he argues that he "was denied his constitutional right to confront and cross examine the witness against him and was denied a fair trial by co-defendant Smith's admission of the two jointly charged conspiracy counts." 24 A Bruton violation occurs when at a joint trial, an out of court admission of the co-defendant which implicates the defendant is admitted into evidence. The harm occurs when: 25 the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. 26 Bruton, at 135-36 (footnotes omitted). 27 The only portion of the record relied upon by Bubbel in support of his Bruton claim is the opening statement and closing argument presented by Smith's attorney. The Government correctly responds that this case involves neither evidence of an out of court admission, nor statements of Smith implicating Bubbel in the conspiracy as required by Bruton. Bubbel has failed to cite to any authority applying Bruton to the argument of counsel for a co-defendant. Bubbel has failed to demonstrate from this record that a highly prejudicial error resulted in a miscarriage of justice. 3. Motion to Sever Trials 28 Bubbel asserts that the district court erred in denying his motion to sever his trial from that of his co-defendant Smith. He argues that Smith presented an antagonistic defense, and that admission of evidence pertaining to Smith's operation of a Continuing Criminal Enterprise unduly prejudiced Bubbel by association. We review for abuse of discretion a district court's denial of a motion to sever under Rule 14 of the Federal Rules of Criminal Procedure. United States v. Plache, 913 F.2d 1375, 1378 (9th Cir.1990). 29 The Government responds that this issue has been waived on appeal due to Bubbel's failure to renew his motion at the close of evidence. Bubbel concedes that he did not renew his motion at the close of all the evidence, but argues that he fits within one of the exceptions set forth in Plache to the requirement that the motion to sever be renewed at the close of all the evidence. 30 In Plache, the appellant made three motions for a severance. The first was made before trial, the second "early in the trial, and the third at the close of the Government's case in chief." 913 curtis39@example.net. In affirming the conviction, we stated that it was unnecessary to review the merits of Plache's claim "because Plache did not renew his motion to sever at the close of all trial evidence. Failure to do so generally waives appellate review." Id. We explained our ruling in Plache on the following passage: 31 In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956 (1977), we identified two exceptions to the requirement of renewal to preserve appellate review: " the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." Neither of these two exceptions has been shown to apply here. 32 Without any supporting authority, Plache contends this issue was not waived because he renewed a motion to sever at the close of the Government's case in chief. This is not the law of our circuit. 33 913 F.2d at 1379 (citations omitted). 34 Like the appellant in Plache, Bubbel made a motion to sever before trial. Bubbel filed no other motion for a severance. Instead at the end of the Government's case in chief, he filed a document entitled "MOTION TO DISMISS COUNTS IV AND V OF INDICTMENTS." A footnote on the first page of that document states: "Although this motion is brought as a motion to dismiss, it also reinstates our motion to sever defendants under Rule 14 of the Federal Rules of Criminal Procedure. The arguments in the motion to sever would be identical, and at this point, a severance equates to a dismissal." 35 In submitting the above motion to the court on July 13, 1990, Bubble's counsel orally described the motion before the court as a request for an order of dismissal. No reference was made during argument to a motion to sever. The district court heard oral argument on the motion to dismiss on July 17th. Bubbel's counsel did not discuss the reinstated motion to sever. Bubbel's cursory reinstatement of his motion to sever at the close of the Government's case in chief did not accompany the introduction of evidence deemed prejudicial. Because the motion was not renewed at the close of the presentation of all the evidence some four trial days later, the severance issue was waived on this appeal. 36 4. Alleged Ineffective Assistance of Counsel 37 Bubbel asserts that he received inadequate assistance of counsel during his trial. He argues that his defense counsel misunderstood the nature of the charges against him and, as a result, conceded that Bubbel was involved in the Asia conspiracy. 38 Bubbel has the burden of establishing that (1) counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense such that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689. 39 Bubbel did not raise the issue of ineffective assistance of counsel before the district court. In United States v. Wagner, 834 F.2d 1474 (9th Cir.1987), we held that an ineffectiveness of counsel claim should not be considered on direct appeal, where the appellant asserts that counsel's trial strategy was inadequate, unless counsel's ineffectiveness is so obvious that it is not necessary to develop facts outside the trial record. Id. at 1482-83. Under such circumstances, the trial court's failure to take notice of the problem sua sponte " ' "might constitute plain error which may be considered on direct appeal." ' " Id. at 1482 (quoting United States v. Kanzi, 576 F.2d 238, 242 (9th Cir.1978) (quoting United States v. Porter, 431 F.2d 7, 11 (9th Cir.), cert. denied, 400 U.S. 960 (1970))). 40 Bubbel contends that "the entire defense theory was based on counsel's view that the events prior to February 20, 1986, were irrelevant since the indictment only charged BUBBEL with conspiracy to import from Columbia [sic], which is an issue the Government had effectively conceded." Brief of curtis39@example.net. Bubbel argues that it was clear from the indictment and the court proceedings that in fact he was charged "with having conspired to smuggle from Southeast Asia as well as from Colombia.... To interpret the Indictment in any other manner falls below constitutionally required standards of competence." 41 Bubbel has failed to demonstrate from this record that counsel's performance fell below the constitutional threshold. The only portion of the record that Bubbel cites in support of his claim that counsel was ignorant of the meaning of the charges is an isolated excerpt from his counsel's closing argument. It should be noted that the closing argument was 56 pages long and that the quoted portion in the brief groups together one two-sentence paragraph, and one sentence from a different page altogether. Put into context, counsel argued that even if Bubbel was a participant in the conspiracy to smuggle marijuana from Southeast Asia, this constituted an entirely separate conspiracy from the charged conspiracy to smuggle drugs from "Colombia, and elsewhere". The jury was instructed that if they found that Bubble was a member of a conspiracy not charged in the indictment then, the jury "must find the defendant not guilty, even though that defendant may have been a member of some other conspiracy." 42 Bubbel has failed to overcome the presumption that counsel's argument constituted sound trial strategy. The record does not support a finding that counsel's arguments were so erroneous that the trial court's failure to take notice sua sponte of the alleged ineffectiveness constituted plain error. 5. Notice of Charges 43 In his final claim, Bubbel asserts that since his defense counsel misunderstood the charges against him, he was denied his sixth amendment right "to be informed of the nature and cause of the accusation" against him. As discussed in section IV, Bubbel has failed to establish on this record that counsel was working under any misapprehension concerning the nature and scope of the charges contained in the indictment. Bubbel did not present this issue to the trial court. Therefore we review this claim for plain error. 44 "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of ... for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). Bubbel does not assert that the indictment was inadequate to provide the requisite notice, or that the district court failed to provide him with a copy of the indictment as required by Rule 10 of the Federal Rules of Criminal Procedure. Indeed, in section IV of his brief, Bubbel repeatedly states that the indictment was "clear" as to the charges against him, and that in addition "at many points in the proceedings the defense attorneys were given notice of the charge by sources other than the charging document." Brief of Appellant at 28, 30. Bubbel also asserts in his brief that "[i]n response to various defense motions the government repeatedly provided information as to what its indictment alleged...." Brief of curtis39@example.net. Appellant's brief also quotes instances in which the district court provided notice as to the nature of the charges against Bubbel. Brief of curtis39@example.net. 45 Bubbel has failed to demonstrate from this record that "it should have been abundantly clear to the trial judge that the defendant misunderstood the offense for which he was on trial and, therefore, was not properly informed as to the nature and cause of the accusation and, therefore, did not present a meaningful defense to the crime that was charged." Brief of curtis39@example.net. Bubbel's claim that his sixth amendment right to notice was violated is without merit. 46 AFFIRMED. * The Honorable Edward Dean Price, Senior United States District Judge for the Eastern District of California, sitting by designation ** 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

72 F. Supp. 2d 526 (1999) Theodore W. WILLMORE, Sr. v. AMERICAN ATELIER, INC. No. Civ.A. 98-6623. United States District Court, E.D. Pennsylvania. November 24, 1999. Richard L. Orloski, Allentown, PA, for plaintiff. John K. Baker, Tallman, Hudders & Sorrentino, Allentown, PA, for defendant. MEMORANDUM AND ORDER JOYNER, District Judge. Plaintiff, Theodore Willmore, instituted this suit under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA") seeking both monetary damages and reinstatement to his former position with American Atelier, Inc. as a furniture scruffer. Defendant has now filed a motion for summary judgment on the grounds that, (1) plaintiff is not a disabled person within the meaning of the ADA and, (2) its decision to terminate his employment was due solely to his insubordinate and belligerent behavior on the day of his termination. For the reasons which follow, the motion for summary judgment shall be granted. Factual Background According to the averments in his complaint, Theodore Willmore, Sr. was hired by American Atelier, Inc. on May 4, 1998. A short time later, on June 3, 1998, Mr. Willmore contends that he seriously injured his back when he fell while working but he apparently nevertheless continued to work. On June 22, 1998, the plaintiff *527 somehow injured his hands while working, and was terminated later that same day. By this lawsuit, Plaintiff contends that Defendant terminated his employment because of his hand and back injuries and that since these injuries effectively disabled him, his termination was therefore in violation of the ADA. Standards for Summary Judgment Motions The standards to be applied by the district courts in ruling on motions for summary judgment are set forth in Fed. R.Civ.P. 56. Under subsection (c) of that rule, .... The judgment sought shall be rendered forthwith 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Pursuant to this rule, a court is compelled to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their melindadavis@example.net. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988); Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D.N.Y.1990). Generally, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa.1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D.Pa.1990). Where, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against [it]." Fed.R.Civ.P. 56(e). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and it cannot rely on unsupported assertions, conclusory allegations, or mere suspicions or beliefs in attempting to survive such a motion. Tziatzios v. U.S., 164 F.R.D. 410, 411, 412 (E.D.Pa.1996) citing Celotex v. Catrett, supra, 477 U.S. at 325, 106 S. Ct. at 2553-54, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd Cir.1989). Discussion The Americans with Disabilities Act prohibits certain employers from discriminating against individuals on the basis of their disabilities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 2143 (1999). The core anti-discrimination section of the ADA provides that: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. *528 Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3rd Cir.1998); 42 U.S.C. § 12112(a). Under the Definitions section of the Act, a "covered entity means an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). A "qualified person with a disability," in turn, is defined as "... an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires ..." 42 U.S.C. § 12111(8). In light of the preceding definitions, the Courts have held that disability discrimination cases, like other types of employment discrimination, are to be analyzed under the burden shifting framework first articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). To establish a prima facie case of discrimination under the ADA, the plaintiff must therefore show three elements: (1) that he is a disabled person within the meaning of the ADA; (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he has suffered an otherwise adverse employment decision as a result of discrimination. Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3rd Cir.1999); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3rd Cir.1998). Turning to the first prong of the prima facie case, we must initially determine whether or not Mr. Willmore is a disabled person within the meaning of the ADA. Under 42 U.S.C. § 12102(2), "a disability" is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. The EEOC's regulations define "substantially limits" as "(I) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." Taylor v. Phoenixville, 184 F.3d at 307, citing 29 C.F.R. § 1630.2(j)(1). The regulations also include the following factors for evaluating when someone is substantially limited in a major life activity: "(I) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id., citing 29 C.F.R. § 1630.2(j)(2). Thus the determination whether a person has a disability under the ADA is clearly an individualized inquiry. See: Sutton, 527 U.S. at ___, 119 S.Ct. at 2147. It appears from the Plaintiff's Affidavit in Opposition to the defendant's Motion for Summary Judgment that the "disabilities" upon which this lawsuit is based arose when he first injured his back when he tripped over a cart on June 9, 1998 and on June 22, 1998 when he hit the outside of his left hand on a piece of furniture and it began to swell up. Mr. Willmore received medical care for both of these injuries, but as plaintiff's deposition reveals, his physician directed only that he should not lift heavy objects and should not "overdo it" with regard to walking as a result of the back injury. Plaintiff further testified that he was told by the defendant's company doctor that he should refrain from working until his hand was further examined. There is no evidence that either injury was expected to result in a long period of disability or that Plaintiff lost any time from work as a result of his injuries. While the *529 plaintiff claims that he had a little bit of difficulty in sleeping, standing and "moving with the flow" at work from the back injury and that his ability to grip items with his left hand is impaired, in evaluating the nature and severity of these problems, we cannot find that they rise to the level of a "substantial limitation" within the meaning of the ADA nor is there any evidence that Mr. Willmore was unable to perform any major life activities as a consequence of the condition of either his hand or his back. Similarly, there is no evidence that Mr. Willmore had a record of such an impairment nor is there any evidence that he was regarded as disabled by his former employer. Indeed, while American Atelier may have had notice that Mr. Willmore had suffered a back injury some three weeks before his termination, his hand injury was allegedly suffered on the same day that he was terminated and shortly after the plaintiff had confrontations with both a co-worker and the company controller. Given that there is no evidence that the plaintiff either missed any work as a result of his back injury, that he either required or requested any special accommodations as a result of either of his injuries, or that American Atelier "mistakenly believed" that plaintiff's "actual, non-limiting impairment substantially limited one or more of his major life activities," we cannot find either a record of his having such an impairment or that he was regarded as having one. See Also: Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484 (1999). Accordingly, we cannot find that the plaintiff was "disabled" within the meaning of the ADA. Turning next to the second and third prongs of the prima facie test, while we would find that Mr. Willmore was clearly qualified to perform the essential functions of his job (given that he continued to perform it despite his alleged injury), we find no evidence that the basis for the plaintiff's termination was anything other than insubordination and threatening behavior to both a co-worker and a superior. Indeed, Mr. Willmore's threatening and belligerent behavior was attested to at the depositions of James Balko and James Phillips and was further corroborated by the numerous written employee warning notices which plaintiff received over the brief course of his employment with the defendant company. Plaintiff himself admitted in his deposition that he had a verbal confrontation with Mr. Phillips and that when he was called in to explain what had happened with Mr. Phillips to Mr. Balko, the company controller and head of personnel matters, Mr. Balko "wasn't too pleased," his attitude "was not good." Although in an affidavit, the plaintiff asserts that he "was fired from American Atelier due to my disabilities, i.e. injuries to my back and hand, and John Hoffmeister and James Banko's perception of my disabilities, causing them to think that my disabilities rendered me a liability to the company," plaintiff has simply adduced no evidence to support his allegations or to refute the defendant's evidence, despite having had ample opportunity to do so through the discovery process. The plaintiff having failed to demonstrate two of the three prongs necessary to establish a prima facie case, we conclude that summary judgment is now appropriately entered in favor of the defendant and against the plaintiff. An appropriate order follows. ORDER AND NOW, this 24th day of November, 1999, upon consideration of the Defendant's Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED and judgment as a matter of law is hereby entered in favor of the Defendant and against the Plaintiff pursuant to Fed. R.Civ.P. 56.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION Presently before the court is the Motion to Strike filed by the Third Party Defendant. The motion should be granted. The plaintiffs, Maria and Steven Mirabella, filed a first-party complaint against Yale New Haven Hospital, Yale School of Medicine, James Chung, M.D., and Kendall Healthcare Products Company (hereinafter Kendall), on January 10, 1992. The revised complaint, dated April 27, 1992, seeks damages for personal injuries suffered by Maria Mirabella when an eight millimeter length of epidural catheter allegedly remained inside of her body following the administration of epidural anesthesia at Yale New Haven Hospital. The plaintiffs' claims against Kendall are made pursuant to Connecticut's Product Liability Act, § 52-572m et seq. The complaint alleges that Kendall was engaged in the business of designing, manufacturing, distributing and selling medical supplies and that the epidural catheter at issue was manufactured by Kendall. On December 3, 1992, Kendall filed a motion to implead Teleflex Incorporated (USA) (hereinafter Teleflex) as a third-party defendant on the ground that Teleflex is or may be liable to Kendall for the plaintiffs' claims against Kendall. In this motion, Kendall alleges that Teleflex, not Kendall, is ultimately liable for any defect that may be proven. The motion to implead was granted by the court, Thompson, J., on December 21, 1992. Kendall filed a six count third-party complaint against Teleflex, dated December 27, 1992, seeking indemnification. Kendall claims that the catheter that allegedly injured the CT Page 7161 plaintiff was manufactured by Teleflex and sold by Teleflex to Kendall. The six counts in the third-party complaint, respectively, are (1) negligence, (2) breach of an implied warranty of merchantability, (3) breach of an implied warranty of fitness for a particular purpose, (4) breach of an express warranty that the catheter was free from defects, (5) that the defect in the catheter existed at the time the catheter was sold to Kendall, and (6) that Teleflex is liable to Kendall pursuant to Connecticut's Product Liability Act, § 52-572m et seq. Kendall additionally seeks recovery for attorneys' fees incurred in connection with the defense of the plaintiffs' claims. On February 26, 1993, Teleflex filed a motion to strike the third-party complaint in its entirety or, alternatively, counts one, five and six. Teleflex also filed a memorandum of law in support of its motion to strike. Kendall filed a memorandum of law in opposition to Teleflex's motion to strike on March 16, 1994. On March 1, 1993, the first-party plaintiffs filed a motion to consolidate, pursuant to Practice Book § 84(a), the present case andMirabella v. Teleflex Incorporated (USA) CV-93-0342487, (hereinafter Mirabella II) filed in the Judicial District of New Haven at New Haven, on the grounds that the facts and allegations arise out of the same transaction and will involve the same issues and factual witnesses. The court, Licari, J., granted the motion for consolidation on March 15, 1993. In Mirabella II, the plaintiffs, Maria and Steven Mirabella, filed a complaint against Teleflex, dated December 30, 1992, seeking recovery under Connecticut's Product Liability Act. The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Novametrix Medical Systems, Inc.v. BOC Group, Inc., 224 Conn. 210, 214-15. Teleflex moves to strike Kendall's third-party complaint in its entirety on the grounds that third-party claims for indemnification in product liability actions are not allowed under Connecticut law pursuant to the holding of Kyrtatas v. Stop Shop,Inc., 205 Conn. 694. Teleflex contends that the Connecticut Supreme Court determined in Kyrtatas v. Stop Shop, Inc. that the Product Liability Act has abrogated the common law rules of indemnification in the context of product liability suits where all of the defendants are parties to the original action. Teleflex argues that since both Kendall and Teleflex have been sued by the plaintiffs and the cases have been consolidated, the present case CT Page 7162 is analogous to Kyrtatas v. Stop Shop, Inc.. Additionally, Teleflex argues that Kendall has failed to allege the elements necessary to state a cause of action for indemnification based upon active versus passive negligence. Kendall claims that Teleflex's reliance on Kyrtatas v. Stop Shop, Inc., supra, is misplaced and that Malerba v. CessnaAircraft Co., 210 Conn. 189, which holds that common law indemnification is a viable cause of action in the context of product liability claims, governs the present case. Kendall additionally argues that the specific facts set forth in the first count, and those necessarily implied therefrom, adequately allege that Teleflex is or may be liable to Kendall for its negligence and thus adequately allege a cause of action for indemnification. In Kyrtatas v. Stop Shop, Inc., supra, the court addressed the issue of whether "common law indemnity principles based on the concept of active versus passive liability apply in the context of a statutory product liability action." Id., 695. The plaintiff inKyrtatas v. Stop Shop, Inc. brought suit under the Connecticut Product Liability Act against several defendants, who then filed cross claims against one another seeking common law indemnity for any damages the plaintiffs might recover. The court in Kyrtatas v. Stop Shop, Inc. concluded that "the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution under General Statutes § 52-572o." Id., 699. Comparative responsibility is inconsistent with indemnification because the former allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the latter doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort. Indemnification is also irreconcilable with the product liability act because the legislature in subsection (e) of § 52-572o has abolished the common law prohibition against contribution in the context of these suits . . . . CT Page 7163 Id., 700. Thus, the court concluded that "[t]he product liability act by permitting actions for contribution has eliminated any reason for retaining the doctrine of indemnification in regard to [a product liability suit]." Id., 701. The holding in Kyrtatas v.Stop Shop, Inc. is limited, however, "to situations in which allpotential defendants are parties to the suit." (Emphasis added.) Id., 702. One year later, in Malerba v. Cessna Aircraft Company, supra, the supreme court limited Kyrtatas v. Stop Shop, Inc., supra, to its facts, and held that common law indemnification continues as a viable cause of action in the context of a product liability case where a named defendant has filed a third-party complaint seeking indemnification against a third-party defendant. See Hoboken WoodFlooring v. Torrington Supply, 6 Conn. Super. Ct. 1133 Miller v. NortheastUtilities, supra. 8 Conn. Super. Ct. 509. The plaintiffs in the present case and Mirabella II are asserting product liability claims against both Kendall and Teleflex, each as first-party defendants, in two actions which have been consolidated for trial. As such, the plaintiffs' claims against both Kendall and Teleflex should be decided in accordance with Connecticut Product Liability Act, and specifically the Act's principles of comparative responsibility. While Kendall and Teleflex are not defendants in the same action the consolidation of the present case and Mirabella II, places the two cases in a posture analogous to that of Kyrtatas v. Stop Shop, Inc., supra., notMalerba v. Cessna Aircraft Comp. , in that the two defendants from which the plaintiffs are seeking relief under the product liability act are defendants in the same trial and are each responding to a complaint of the plaintiff. The analysis of Kyrtatas v. Stop Shop, Inc. applies in the present case, and Kendall's third-party claim for indemnification is improper. Accordingly, the motion to strike is granted. CT Page 7164

119 Ill. App. 2d 142 (1970) 255 N.E.2d 615 R.J. Vanderlaan, d/b/a R.J. Vanderlaan Construction, Plaintiff-Appellee, v. Berry Construction Company, a Delaware Corporation, J. Everett Sims, Marjorie M. Sims, John J. Molloy and Dorothy J. Molloy, Defendants, J. Everett Sims, Marjorie M. Sims, John J. Molloy, and Dorothy J. Molloy, Defendants-Appellants. Gen. No. 11,103. Illinois Appellate Court — Fourth District. January 26, 1970. Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (John E. Fick, of counsel), for appellants. Wilson, Dyar, Houchen & McDonald, of Decatur (Vernon H. Houchen, of counsel), for appellee. *143 TRAPP, J. Plaintiff, a subcontractor, sued Berry, the principal contractor, and the owners of certain real estate, claiming a balance due upon a subcontract. The owners moved to dismiss the complaint for failure to state a cause of action against them. The magistrate denied such motion and the owners elected to stand upon their pleadings. Judgment was entered in favor of the plaintiff in the sum of $1,965.95. The owners appeal. The record shows judgment by default against the contractor in the stated sum. Plaintiff's Exhibit A, the subcontract concerned, explicitly notes that Berry is the principal contractor and that plaintiff is a subcontractor who is to furnish labor and materials for a portion of the work under the principal contract and that plaintiff is to be paid by Berry, the contractor. Count I of the complaint alleges the contract between the plaintiff and Berry, performance by the former, and the balance due. The owners are named as defendants to such cause of action. The Count further alleges that the labor and material supplied by plaintiff were to meet the specifications set out in the contract between the owners and Berry. There is no allegation of service of notice of a subcontractor's lien upon the owners as provided in chapter 82, § 24, Ill Rev Stats 1967. It is alleged that at the time plaintiff completed the work, the owners were indebted to the contractor in an amount greater than the balance due plaintiff and that they knew that the plaintiff had not been paid by the contractor. Count II alleges that the subcontract was prepared "by and at the direction" of the owners and "incorporates" the terms of the principal contract between the contractor and the owners; that the owners received the benefits resulting from plaintiff's construction, and *144 that plaintiff performed in accordance with the directions of the owners' engineer. The motion to dismiss noted that no facts concerning compliance with the Mechanic's Lien Statute were pleaded; that Count I of the complaint shows, upon its face, that there was no contract between plaintiff and the owner-defendants, and that no other facts are pleaded which state a cause of action against them; that Count II fails to state facts showing any equitable lien in the favor of the plaintiff, but that the pleadings show only a contract between Berry and the plaintiff. The owners contend that a subcontractor has no cause of action against the owner except as provided by the Mechanic's Lien Statute and that no notice invoking such statute was pleaded or, in fact, given. Chapter 82, §§ 21, 24, Ill Rev Stats 1967. [1-3] In the absence of an express contract with the owner, a subcontractor, or one contracting with a principal contractor, cannot recover against the owner upon a contract theory for there is no employment between them. Peers v. Madison County Board of Education, School Dist. No. 3, 72 Ill. 508; Baker v. Mayer, 163 Ill. App. 391; 9 CJ, 176. As to recovery from the owner, the rights of a subcontractor arise under the Mechanic's Lien Statute. Suddarth v. Rosen, 81 Ill. App. 2d 136, 224 NE2d 602. In Suddarth there was an action to foreclose a mechanic's lien by a subcontractor. He contended that a notice of a subcontractor's lien as required in chapter 82, § 24, was unnecessary as there was actual notice of plaintiff's claim and that the strict and technical requirement of notice should not defeat recovery for labor and material supplied in good faith by a subcontractor. The court affirmed a judgment for defendant holding that such notice was a condition precedent to a lien and that without such lien the subcontractor could not recover against the owner. *145 Here the plaintiff contends that the owners should be held liable because they knew of the work and received the benefit thereof. In Campbell v. Day, 90 Ill. 363, it is stated that the doctrine that one seeing work done upon his property without objection is liable to the person performing it has no application where the entire work is contracted for and placed under another who has the power to employ whom he chooses. It is said that the owner has the right to presume that such work is being done for and in behalf of the contractor. See also Sloan v. Cleveland, C., C. & St. L. Ry. Co., 140 Ill. App. 31. [4] The statute providing for a mechanic's lien has long been construed as being in derogation of the common law and strictly construed as to the manner of invoking it. Since plaintiff has not undertaken to state a cause of action in terms of a lien as a subcontractor, it is unnecessary to review his several contentions regarding the owners' alleged duties to procure affidavits from the contractor and retain funds as provided in chapter 82, §§ 5,24 and 27, Ill Rev Stats 1967. In view of the law established as to the applications of the Mechanic's Lien Statute, it is unnecessary to discuss at length plaintiff's contention that the principal contract and the subcontract must be construed as one instrument so as to create liability in the defendant-owners. The magistrate erred in refusing to dismiss the complaint as to the owner-defendants who appeal. The judgment below is reversed and remanded with directions to enter judgment in favor of the owner-defendants who appeal, with costs to be paid by plaintiff. Reversed and remanded. CRAVEN, P.J. and SMITH, J., concur.

Case: 20-1062 Document: 23 Page: 1 Filed: 04/16/2020 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ DENNIS C. MCKEOWN, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2020-1062 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0633-31-2843-I-1. ______________________ Decided: April 16, 2020 ______________________ DENNIS C. MCKEOWN, Richmond, CA, pro se. DEANNA SCHABACKER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by TRISTAN LEAVITT, KATHERINE MICHELLE SMITH. ______________________ Before LOURIE, WALLACH, and HUGHES, Circuit Judges. PER CURIAM. Case: 20-1062 Document: 23 Page: 2 Filed: 04/16/2020 2 MCKEOWN v. MSPB Petitioner Dennis C. McKeown seeks review of a deci- sion of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction because Mr. McKeown re- signed from federal employment. The Board lacks jurisdic- tion over a resignation unless the petitioner can show it was involuntary. Mr. McKeown claims that he resigned involuntarily due to intolerable work conditions. Because the Administrative Judge properly concluded that Mr. McKeown failed to present nonfrivolous allegations of in- voluntary resignation to establish jurisdiction, we affirm the Board’s decision. I Mr. McKeown was a Supervisory Emergency Manage- ment Program Specialist within the Response Division, Re- gion IX, of the Federal Emergency Management Agency, a section of the Department of Homeland Security. He had twenty-two years of service with FEMA before his resigna- tion in 2019. During the time relevant to this appeal, his job duties included “preparing FEMA responses to natural disasters” in Region IX (Arizona, California, Hawaii, Ne- vada, & the Pacific Islands). McKeown v. Dep’t of Home- land Sec., No. SF-0633-31-2843-I-1, slip op. at 2 (M.S.P.B. July 30, 2019) (Board Decision). Starting in 2016, Mr. McKeown reported to FEMA management that he believed a contractor was billing FEMA inappropriately, first for incomplete work on a ty- phoon project and later for duplicative and out-of-scope work on an earthquake project. He also made whistle- blower complaints to the DHS Office of Inspector General in November 2018 and March 2019. According to the Ad- ministrative Judge, the November 2018 “disclosures are the basis of [Mr. McKeown’s] whistleblower retaliation de- fense in his appeal of the agency’s decision to place him on furlough in December 2018 during the partial government shutdown.” Board Decision at 3 n.4. DHS OIG declined to investigate the March 2019 complaint. Because of his Case: 20-1062 Document: 23 Page: 3 Filed: 04/16/2020 MCKEOWN v. MSPB 3 belief regarding the out-of-scope work on the earthquake project, Mr. McKeown repeatedly tried unsuccessfully to determine who approved the work and so refused to com- plete briefings and presentations for FEMA administra- tors. He also participated in the investigation of a colleague’s Equal Employment Opportunity (EEO) com- plaint. According to Mr. McKeown, his supervisors retaliated against him for these activities over the next three years by creating intolerable working conditions through “har- assment, isolation from coworkers, removal of job duties, denial of merit system due process, and an unethically co- ercive requirement to approve [contractor] tasks outside of contract scope of work deliverables.” Resp. App. 27. 1 Dur- ing this time, Mr. McKeown received a five-day suspension for conduct unbecoming and failure to follow instructions and an “unacceptable” rating on his 2018 performance re- view. In May 2019, Mr. McKeown resigned, stating that the agency’s behavior towards him, including “attempts to force [him] to take responsibility for” the contractor’s alleg- edly out-of-scope work, “placed [him] in an impossible eth- ical position.” Resp. App. 74. Mr. McKeown appealed to the Board, claiming that his resignation was involuntary due to the intolerable work conditions, and requested a hearing. Because resignations are presumed voluntary and the Board has no jurisdiction over voluntary resignations, Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340 (Fed. Cir. 2001), the Administrative Judge required Mr. McKeown to make nonfrivolous allegations that he resigned involuntarily due to duress, coercion, or 1 Both parties filed appendices with their briefs. “Pet. App.” refers to the Appendix included with the Peti- tioner’s brief. “Resp. App.” refers to the Supplemental Ap- pendix included with the Respondent’s brief. Case: 20-1062 Document: 23 Page: 4 Filed: 04/16/2020 4 MCKEOWN v. MSPB misrepresentation by the agency before receiving a hear- ing. Board Decision at 1−4. Mr. McKeown alleged several ways in which FEMA management retaliated against him: unfairly assessing his performance, eliminating and re-as- signing key work responsibilities, and interfering in his re- lationships with co-workers, subordinate employees, and partners. The Administrative Judge held that Mr. McKeown failed to state a non-frivolous allegation that his resigna- tion was involuntary and dismissed his case for lack of ju- risdiction. Board simpsonbrad@example.org. She acknowledged that the “allegations illustrate significant disagreements with [Mr. McKeown’s supervisor] about work assignments, a feeling of being unfairly evaluated, and a challenging work environment” as well as Mr. McKeown’s “significant per- sonal reactions to each of the alleged instances of harass- ment.” Id. at 11−12. However, she found Mr. McKeown provided insufficient specific examples for each allegation and that there was reason for the agency to take the actions it had. E.g., id. at 9 (reasoning that “the agency had legit- imate reasons to reassign the work when the appellant did not complete it” and that Mr. McKeown’s supervisor “sepa- rated” him from a subordinate “because of a report that the appellant harassed” the subordinate). The allegations therefore did not demonstrate an objectively intolerable work environment that would “compel a reasonable person to resign.” Id. at 8, 11. The Administrative Judge’s initial decision became the final decision of the Board on Septem- ber 3, 2019. Mr. McKeown timely appealed. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). Case: 20-1062 Document: 23 Page: 5 Filed: 04/16/2020 MCKEOWN v. MSPB 5 II A The Board lacks jurisdiction over voluntary resigna- tions or retirements. Shoaf, 260 simpsonbrad@example.org. The peti- tioner therefore has the burden of showing that “his or her resignation or retirement was involuntary and thus tanta- mount to forced removal.” Trinkl v. Merit Sys. Prot. Bd., 727 F. App’x 1007, 1009 (Fed. Cir. 2018). Cf. Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). One way for the petitioner to rebut the presumption of voluntariness is to show that the resignation was the prod- uct of coercive acts by the agency, such as intolerable work- ing conditions. Shoaf, 260 F.3d at 1341; Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). But “the doctrine of coercive involuntariness is a narrow one.” Staats, 99 F.3d at 1124 (describing limited scenarios where a resignation was involuntary, like when it was “induced by a threat to take disciplinary action that the agency knows could not be substantiated” or where the agency at- tempts to force the employee to quit, without “any legiti- mate agency purpose”). We objectively consider the totality of the circumstances to determine whether “a reasonable employee confronted with the same circumstance would feel coerced into resigning.” Shoaf, 260 F.3d at 1342 (quot- ing Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999)). “Whether the [B]oard had jurisdiction to adjudicate a case is a question of law, which we review de novo.” Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). We review the Board’s factual findings affecting the juris- dictional inquiry for substantial evidence. Lentz v. Merit Sys. Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017). B On appeal, Mr. McKeown argues that the Administra- tive Judge committed several errors in her jurisdictional Case: 20-1062 Document: 23 Page: 6 Filed: 04/16/2020 6 MCKEOWN v. MSPB determination: (1) failing to consider the “potential legal jeopardy [Mr. McKeown faced] for participation in fraud” had he not resigned, Pet. Br. 5–8; (2) determining that no one forced him to place his name on assignments, particu- larly the earthquake project briefing, and finding that the earthquake project briefing was not a condition of employ- ment; and (3) ignoring the “pattern of retaliation against [him]” for reporting what he believed to be fraudulent bill- ing for work outside of the earthquake project’s contract scope, Pet. Br. 4. We reject these arguments. First, though Mr. McKeown now argues that a reason- able employee faced with potential personal liability for fraud would resign rather than simply “stand and fight,” Pet. Br. 5–6, 10–11; Mem. in Lieu of Oral Arg. 3−4, he did not argue this before the Administrative Judge. He alleged only that he was “not willing to compromise his personal integrity and public trust responsibility by placing his name on fraudulent [contractor] products as a condition of employment with FEMA.” Board Decision at 10; Resp. App. 56. We consider this argument waived. 2 Second, we see no error in the Administrative Judge’s conclusions: that the project briefings were not a condition of employment and that Mr. McKeown failed to nonfrivo- lously allege that his supervisor’s actions were coercive. Board Decision at 9−12. Indeed, Mr. McKeown repeatedly refused to complete assigned briefings for the earthquake project and received an “unacceptable” performance rating for 2018, yet remained employed with no pending 2 And even if the argument was not waived, we find it objectively implausible for Mr. McKeown to fear personal legal liability for presenting a “fraudulent claim for pay- ment or approval,” 31 U.S.C. § 3729(a)(1)(A), based on cre- ating or presenting a project status update to internal FEMA stakeholders, especially when he had already re- ported his suspicions through formal channels. Case: 20-1062 Document: 23 Page: 7 Filed: 04/16/2020 MCKEOWN v. MSPB 7 disciplinary action when he resigned. And in 2019, the earthquake project presentation originally assigned to Mr. McKeown was reassigned to another employee. Third, the fact that the Administrative Judge did not explicitly reference Mr. McKeown’s April 2019 whistle- blower case was not error. An Administrative Judge need not explicitly address all of a petitioner’s allegations or ev- idence in her opinion: Omission does not indicate a lack of consideration. See Marques v. Dep’t of Health & Human Servs., 22 M.S.P.R. 129, 132 (M.S.P.B. 1984) aff’d, 776 F.2d 1062 (Fed. Cir. 1985). Regardless, the decision here re- flects an understanding of the entire timeline of events, in- cluding Mr. McKeown’s December 2016 and April 2019 complaints regarding the allegedly improper contractor work and billing. Reviewing the record, we have no doubt that Mr. McKeown had a fraught working relationship with his di- rect supervisor and other FEMA Region IX administrators. However, a stressful working environment does not equate to coercion. Brown v. U.S. Postal Serv., 115 M.S.P.R. 609, 616−17 (M.S.P.B. 2011) (reasoning that a finding of coer- cion was not supported by an appellant’s allegations of, among other things, her supervisors’ “increasing demands that she perceived as trying to cause her to fail” and “groundless[] critic[ism]” of her work); Miller v. Dep’t of Def., 85 M.S.P.R. 310, 322 (M.S.P.B. 2000) (“Dissatisfaction with work assignments, a feeling of being unfairly criti- cized, or difficult or unpleasant working conditions are gen- erally not so intolerable as to compel a reasonable person to resign.”). We have considered Mr. McKeown’s remaining argu- ments and find them unpersuasive. For the reasons ex- plained above, we affirm the Board’s decision. AFFIRMED No costs.

Citation Nr: 0032302 Decision Date: 12/12/00 Archive Date: 12/20/00 DOCKET NO. 99-09 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from February 1941 to October 1947. He was a prisoner of war from April 14, 1942 to April 16, 1942. By decision in July 1996, the Board of Veterans' Appeals (Board) denied the veteran's claim for service connection for residuals of an injury to the left arm, to include the left shoulder and arthritic changes. Recently, the veteran has submitted additional evidence seeking to reopen his claim for service connection for a left shoulder disability. The veteran was scheduled to testify at a hearing at the Board in September 2000, but he failed to report for it. Effective March 1, 1999, the name of the United States Court of Veterans Appeals was changed to the United States Court of Appeals for Veterans Claims ("the Court"). REMAND In an administrative decision dated July 1991, the RO concluded that the veteran was a prisoner of war from April 14, 1942 through April 16, 1942. The veteran was not informed of this determination until December 1991, and it is not clear if he was advised of his right to appeal the decision. In a statement received in August 1998, the veteran indicated he wanted to "appeal" the determination regarding his prisoner of war status. He argues that he was a prisoner of war for more than three years. As noted above, the issue currently before the Board is whether new and material evidence has been submitted to reopen a claim for service connection for a left shoulder disability. In light of the fact that the record demonstrates that the veteran has arthritis of the left shoulder, the question as to whether he was a prisoner of war for thirty days of more is inextricably intertwined with the underlying issue in this case. See 38 C.F.R. § 3.309(c) (1999). The Court has held that a claim that is inextricably intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim. Harris v. Derwinski, 1 Vet. App. 180 (1990). However, the RO has not formally adjudicated the veteran's current claim regarding the length of time he was a prisoner of war. Under the circumstances of this case, the Board finds that additional action is required by the RO. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a left shoulder disability is deferred. Accordingly, the case is REMANDED to the RO for action as follows: The RO should formally consider whether the veteran was a prisoner of war for not less than thirty days. If this determination is adverse, and the veteran files a notice of disagreement, the RO should develop this matter in accordance with appellate procedures. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the Regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. James R. Siegel Acting Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 Form 10-Q (Mark One) x QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period endedMay 31, 2012 o TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT For the transition period from to Commission file number333-102945 JETBLACK CORP. (Exact name of small business issuer as specified in its charter) Nevada 98-0379431 (State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.) Suite #219 10654 - 82 Avenue, Edmonton, Alberta T6E 2A7 (Address of principal executive offices) (Issuer's telephone number) N/A (Former name, former address and former fiscal year, if changed since last report) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.Yes xNoo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YesxNo o Large accelerated filer o Accelerated filer o Non-accelerated filer o (Do not check if a smaller reporting company) Smaller reporting company x State the number of shares outstanding of each of the issuer's classes of common equity, as of the latest practicable date67,352,000 common shares issued and outstanding as of July 20, 2012 Check whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yeso Nox JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED BALANCE SHEETS May 31, $ (Unaudited) August 31, $ ASSETS CURRENT ASSETS Cash – Total Current Assets – Total Assets – LIABILITIES AND SHAREHOLDERS’ EQUITY (DEFICIT) LIABILITIES CURRENT LIABILITIES Accounts payable and accrued liabilities Shareholder advance Total Current Liabilities Total Liabilities SHAREHOLDERS’ EQUITY (DEFICIT) Common stock, $.001 par value, 1,350,000,000shares authorized, 67,352,000 and 66,963,000 shares issued and outstanding at May 31, 2012 and August 31, 2011 respectively Additional paid in capital Subscription receivable – ) Deficit accumulated during the development stage ) ) Total Shareholders’ Equity (Deficit) ) TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY (DEFICIT) – See accompanying notes to consolidated financial statements. 2 JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED STATEMENTS OF OPERATIONS Three and Nine Months Ended May 31, 2012 and May 31, 2011 and the Period from April 17, 2002 (Inception) through May 31, 2012 (Unaudited) Three Months Ended May 31, Three Months Ended May 31, Nine Months Ended May 31, Nine Months Ended May 31, April 17, 2002 (Inception) to May 31, $ REVENUE – COST OF GOODS SOLD – ) GROSS PROFIT – EXPENSES Inventory write-down – General and administrative Total Expenses Net Operating Loss ) NET LOSS ) NET LOSS PER SHARE: BASIC AND DILUTED ) WEIGHTED AVERAGE SHARES OUTSTANDING: BASIC AND DILUTED 67,207,315 127,955,326 67,091,018 144,496,962 See accompanying notes to the consolidated financial statements. 3 JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED STATEMENTS OF CASH FLOWS Nine Months Ended May 31, 2012 and May 31, 2011 and the Period from April 17, 2002 (Inception) through May 31, 2012 (Unaudited) Nine Months Ended May 31, Nine Months Ended May 31, April 17, 2002 (Inception) to May 31, CASH FLOWS FROM OPERATING ACTIVITIES: Net loss $ ) $ ) $ ) Adjustments to reconcile net loss to cash used by operating activities: Common stock issued for services – – Impairment – – Change in current assets and liabilities Inventory – – ) Accounts payable and accrued expenses ) ) CASH FLOWS USED IN OPERATING ACTIVITIES ) ) ) CASH FLOWS FROM FINANCING ACTIVITIES: Advances from (repayment to) shareholders ) – Proceeds from issuance of common stock CASH FLOWS PROVIDED BY FINANCING ACTIVITIES NET CHANGE IN CASH – Cash, beginning of period – – – Cash, end of period $ $

Exhibit 10.34 SEVENTH AMENDMENT TO CREDIT AGREEMENT This SEVENTH Amendment to Credit Agreement (the “Amendment”) is made and entered into as of March 7, 2007 by and between BANK OF THE WEST (the “Bank”) and ALPHATEC SPINE, INC. (the “Borrower”) with respect to the following: This Amendment shall be deemed to be a part of and subject to that certain Credit Agreement dated as of January 24, 2006, as it may be amended from time to time, and any and all addenda and riders thereto (collectively the “Agreement”). Unless otherwise defined herein, all terms used in this Amendment shall have the same meanings as in the Agreement. To the extent that any of the terms or provisions of this Amendment conflict with those contained in the Agreement, the terms and provisions contained herein shall control. WHEREAS, the Borrower and the Bank mutually desire to extend and/or modify the Agreement. NOW THEREFORE, for value received and hereby acknowledged, the Borrower and the Bank agree as follows:   1. Modification of Definition of Borrowing Base. Commencing with the date of this Amendment, Section 1.1.6 of the Agreement is hereby deleted and replaced with the following: “Borrowing Base”: shall mean, as determined by the Bank from time to time, the lesser of: (i) 80% of the aggregate amount of Eligible Accounts of the Borrower plus the lesser of 50% of the aggregate amount of book entry Accounts outstanding not more than 15 days from the date of entry or $500,000.00 plus the lesser of 40% of the Value of Acceptable Inventory of the Borrower which consists of raw materials, work-in-process or finished goods plus 20% of the Value of Acceptable Inventory which consists of inventory held at the customer's location or $500,000.00, (ii) the total amount of deposits which are maintained by Borrower at Bank which are neither demand deposit accounts or pledged as collateral, or (iii) $12,000,000.00.   2. Modification of Definition of Reporting and Certification Requirements. Commencing with the date of this Amendment, the first paragraph only of Section 6.1(v) of the Agreement is hereby deleted and replaced with the following: “Not later than 30 days after the end of each month, (i) a borrowing base certificate in the form attached hereto as Exhibit “A” (“Borrowing Base Certificate”), executed by Borrower and certifying the Amount of the Eligible Accounts, and the total amount of deposits which are maintained by Borrower at Bank which are neither demand deposit accounts or pledged as collateral, as of the last day of the preceding month; and, (ii) an aging of accounts receivable indicating separately the amount of accounts due from each Account Debtor and the amount of total accounts receivable which are current, 31 to 60 days past the due date, 60 to 90 days past the due date, and the amount over 90 days past the due date and an aging of accounts payable indicating the amount of such payables which are current 31 to 60 days past the due date, 60 to 90 days past the due date, and the amount over 90 days past the due date; and, (iii) a schedule of inventory specifying the Value thereof in the form attached hereto as Exhibit “B”, and such other matters and information relating to the Borrower’s inventory as the Bank may request.   3. Modification of Financial Condition/Net Loss. Commencing with the date of this Amendment, Section 6.2(i) of the Agreement is hereby deleted and replaced with the following: A maximum net loss, during the period commencing January 1, 2007, not to exceed $6,500,000.00 measured as of each quarter end in the year 2007.   4. Deletion of Financial Condition/Quarterly Profitability and Annually Net Profit. Sections 6.2(ii) and 6.2(iii) of the Agreement are hereby deleted in their entirety.   -1- -------------------------------------------------------------------------------- 5. Representations and Warranties. The Borrower hereby reaffirms the representations and warranties contained in the Agreement and represents that no event, which with notice or lapse of time, could become an Event of Default, has occurred or is continuing.   6. Confirmation of Other Terms and Conditions of the Agreement. Except as specifically provided in this Amendment, all other terms, conditions and covenants of the Agreement unaffected by this Amendment shall remain unchanged and shall continue in full force and effect and the Borrower hereby covenants and agrees to perform and observe all terms, covenants and agreements provided for in the Agreement, as hereby amended.   7. Governing Law. This Amendment shall be governed and construed in accordance with the laws of the State of California to which jurisdiction the parties hereto hereby consent and submit.   8. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, this Amendment has been executed by the parties hereto as of the date first hereinabove written.   BANK:     BORROWER: BANK OF THE WEST     ALPHATEC SPINE, INC. BY:   /s/ Kris Ilkov     BY:   /s/ Steven M. Yasbek NAME:   Kris Ilkov, Vice President     NAME:   Steven Yasbek, Vice President and Chief Financial Officer       ADDRESS:         2051 Palomar Airport Road, Suite 100 Carlsbad, CA 92011   -2- -------------------------------------------------------------------------------- LOGO [g96405imagebig.jpg] INVOICE March 8th 2007 Mr. Steven Yasbek, CFO ALPHATEC SPINE, INC 2051 Palomar Airport Road, Ste 100 Carlsbad, CA 92011 Dear Steve: This letter is our invoice for the following: Amendment Waiver Fee of $50,000.00 Please authorize us to debit your account #672-017696 for $50,000.00 by signing below and faxing back to us at (662)990-8201   We authorize Bank of the West to debit account no. 672-017696 for the waiver fee of 50,000.00 /s/ Steven M. Yasbek Steven Yasbek, CFO – Alphatec Spine Inc Thank you for your banking business and for your assistance with this matter. If you have any questions, please give me a call.   /s/ Kristian T. Ilkov Kristian T. Ilkov, VP San Diego National Banking Office -------------------------------------------------------------------------------- LOGO [g96405imagesmall.jpg] March 5, 2007 Steven Yasbek CFO Alphatec Spine, Inc 2051 Palomar Airport Rd, Ste 100 Carlsbad, CA 92011   RE: Credit Agreement dated January 24th, 2006 executed by Alphatec Spine, Inc. (“Borrower”)      and Bank of the West (“Bank”) (the “Agreement”) Dear Mr. Yasbek: Borrower has requested the following waiver in connection with the subject Agreement. Bank hereby waives Borrower’s breach of Section 6.2(iii and iv) of the Agreement occurring for the period ending December 31st, 2006. Any further breach of that Section is not waived. Except to the extent of this and any prior waiver, the Agreement shall remain unaltered and in full force and effect. This letter shall not be a waiver of any existing default or breach of a covenant unless specified herein. This waiver shall be effective only upon receipt by the Bank of the enclosed acknowledgment copy executed by the Borrower and Alphatec Holdings, Inc, guarantor to the Agreement. If the foregoing is acceptable, please sign the enclosed copy and return to the undersigned not later than                     . Sincerely,   /s/ Kristian Ilkov Kristian Ilkov, Vice President   Accepted and Agreed to Date: 3-13-07 Alphatec Spine, Inc., Borrower By:   /s/ Steven M. Yasbek Its:   CFO Alphatec Holdings, Inc., Guarantor By:   /s/ Steven M. Yasbek Its:   CFO   San Diego National Banking Office 1280 Fourth Avenue San Diego, CA 92101 (662)990-8201 Fax (662)990-8201    Member FDIC

592 F. Supp. 2d 953 (2008) AWG LEASING TRUST, KSP Investments, Inc. As Tax Matters Partner, Plaintiff, v. UNITED STATES of America, Defendant. Case No. 1:07-CV-857. United States District Court, N.D. Ohio. May 28, 2008. *957 Brian J. Lamb, David J. Hooker, James D. Robenalt, Jeffry J. Erney, Anthony J. Rospert, Frank R. Desantis, Michele Kryszak Abraham, Stephen D. Williger, Thompson Hine, Cleveland, OH, Tracy A. Hannan, Thompson Hine, Atlanta, GA, for Plaintiff. Karen A. Smith, Matthew Von Schuch, Robert J. Kovacev, Stuart J. Bassin, U.S. Department of Justice, Washington, DC, for Defendant. OPINION & ORDER [Resolving Doc. No. 1] JAMES S. GWIN, District Judge: I. Introduction[1] With this action, two large national banks dispute adjustments that the Internal Revenue Service ("IRS") made to partnership federal income tax returns for the 1999, 2000, 2001, 2002, and 2003 tax years. In those adjustments, the IRS found that the banks' partnership, the AWG Leasing Trust, mis-characterized a 1999 transaction as a $423 million purchase of a German waste-to-energy facility. The IRS says the transaction was a thinly-veiled tax dodge that attempted to skirt IRS and Congressional action directed to limiting transactions that had the purpose of transferring tax deductions for rental payments, depreciation, amortization, and interest payments from tax neutral entities. As a result, the IRS claims that the Plaintiffs owe approximately $88 million in taxes for the 1999-2003 tax years and will owe much more for subsequent years. As will be described below, the banks say that they paid $423 million on December 7, 1999 to buy a waste-to-energy facility in Wuppertal, Germany and should be allowed to depreciate the Wuppertal plant. The banks argue that their contemporaneous lease of the facility back to the original owner under a very long-term triple-net lease and their grant of an option to repurchase the facility does not defeat their claim of ownership rights to the facility. The banks also say that they should be allowed to deduct interest on the $368 million long-term non-recourse loans that they obtained from two German banks to finance the transaction even though the loan proceeds went to escrow-type accounts that the German entity could not access and that were committed to paying the German company's lease payments and to providing sufficient funding to complete the option exercise. In deciding this case, the Court makes two determinations. First, the Court decides whether the 1999 transaction has economic substance apart from the tax bharding@example.com. Second, the Court considers whether the banks enjoyed the benefits and burdens of ownership of the Facility when the transaction pre-funded the repurchase of the facility and also required the original owner to repurchase the facility unless it met near-impossible conditions. As will be described, the Court finds that the transaction had some minimal substance apart from the tax benefit. However, the Court finds that the Plaintiffs never obtained an ownership interest sufficient to obtain a depreciable interest in the facility. The Court further concludes that the Plaintiffs are not entitled to deductions for interest paid or accrued on the underlying transaction loans because such loans do not constitute genuine indebtedness. *958 For the reasons that follow, this Court SUSTAINS the IRS's determination that the Plaintiffs' asserted tax benefits relating to the AWG transaction are improper. The Court DENIES the Plaintiffs' claimed depreciation deductions under 26 U.S.C. § 168, interest expense deductions under § 163(a), and amortization of transaction costs deductions. The Court also upholds the IRS's imposition of accuracy-related penalties at the partnership level for substantial understatement of tax liability under 26 U.S.C. § 6662(a). II. Background This case revolves around a 1999 sale-in/lease-out ("SILO") transaction. Under some SILO transactions, a party acquires assets from a tax-exempt party under a "head lease." A SILO head lease typically involves a lease term sufficiently long to qualify as a sale under United States tax law. The acquiring party then simultaneously leases the assets back to the original owner under a longterm triple-net "sublease" with lease and option payments that exhaust almost all of the sale proceeds. The original owner also receives an option to repurchase the asset. Depending upon the transaction provisions, the exercise of the repurchase option may be nearly certain. In practical terms, the tax-exempt property owner continues to use the property as it did before the transaction and has no risk of losing control of the property. Meanwhile, the taxpayer receives tax benefits, sometimes significant tax benefits, by depreciating the assets, amortizing certain transaction costs, and deducting interest payments. Where the original owner seems extremely likely to repurchase the facility that it originally sold, the IRS argues that a true sale has not occurred and that the owner-lessor is not entitled to claim tax benefits associated with ownership, such as deductions for depreciation. The IRS also says that where a transaction has no economic substance apart from tax benefits, the taxpayer is not entitled to deduct interest on loans used to fund the transaction or expenses associated with the transaction. A. Historic Tax Treatment of Leveraged Lease Transactions For some time, financial leasing has served as an important vehicle for commercial enterprise fund raising. Leasing can mitigate the capital commitment that usually accompanies asset purchases. Often, commercial leases also allow parties to transfer tax benefits in an efficient fashion. Lessees who were unable to fully utilize tax benefits (usually because of a lack of profits) could obtain lower financial cost by entering a transaction that allowed them to transfer the tax benefits associated with depreciation and interest expense deductions to lessors who could more fully use these tax benefits. In theory, the lessees obtained lower financing costs in recognition of their transfer of the tax benefit. Accounting rules that apply to leveraged leases also make them significantly more attractive.[2] Concerned that financial leases unfairly undercut the federal tax system, *959 the IRS and Congress have adopted rules to ensure that the risks and indices of true ownership pass to the lessor before tax benefits can be claimed. SILOs are a modified version of their tax-driven financial predecessors, lease-in/lease-out ("LILO") transactions. Although each transaction is factually distinct, SILOs generally differ from LILOs by having a longer-term head lease that is sufficiently long to qualify for tax purposes as a sale. In a typical LILO, the taxpayer leases property from a tax-exempt entity and simultaneously leases the same property back to the owner and gives the owner an option to repurchase the lease. In practical terms, the tax-exempt property owner continues unfettered use of the property just as before the transaction, but the taxpayer claims tax benefits. As the Fourth Circuit Court of Appeals recently noted, "LILOs have been harshly criticized as abusive tax shelters that serve only to transfer tax benefits associated with property ownership from tax-indifferent entities, which have no use for them, to U.S. taxpayers." BB & T Corp. v. United States, 523 F.3d 461, 465 (4th Cir.2008) (citing David Hariton, Response to "Old `Brine' in New Bottles" (New Brine in Old Bottles), 55 TAX L. REV. 397, 402 (2002)). In 1996, the IRS issued proposed regulations that generally eliminated any favorable tax treatment associated with LILOs. These proposed regulations sought to reduce the tax benefits of lease-leaseback transactions by treating prepaid rent as a loan. Section 467 Rental Agreements, 61 Fed. Reg. 27,834 (June 3, 1996). On May 19, 1999, the IRS issued a final ruling under I.R.C. § 467, significantly reducing the tax benefits commonly associated with LILO structures. See Rev. Rul. 99-14, 1999-1 C.B. 835, modified and superseded by Rev. Rul. 2002-69, 2002-2 C.B. 760. In its 1999 ruling, the IRS determined that LILOs were abusive and impermissible tax shelters and announced that it would seek disallowance of rent and interest deductions on the grounds that these transactions lack economic substance. These regulations did not retroactively apply to any transactions created before May 19, 1999, but "there remained a risk that the IRS would invoke generally applicable tax law principles to disallow LILO-related deductions." BB & T Corp. v. United States, 523 F.3d 461, 465 (4th Cir.2008). KeyCorp ("Key") and PNC Financial Services Group, Inc. ("PNC Financial") previously participated in a large number of LILO transactions. As a result of the 1999 IRS regulations, Key and PNC stopped taking part in new LILO transactions. [Joint Ex. 56, Doc. 167-7 at KSP0197639-42; Angel Tr., Doc. bharding@example.com.] Presumptively alerted that the IRS would challenge exotic efforts to transfer tax deductions from tax indifferent entities, one might have thought that banks would step away from similar transactions. Instead, some United States banks began to enter into sale-leaseback transactions ("SILOs") that were designed to substantially replicate lease-leaseback transactions. [Joint Ex. 56, Doc. 167-7 at KSP0197639-42; Angel Tr., Doc. bharding@example.com.] Having given notice that purposeless efforts to transfer tax benefits would be addressed, it was no surprise when in 2004, Congress passed the American Jobs Creation Act to explicitly eliminate all tax advantages of SILO transactions created after March 12, 2004. America Jobs Creation Act of 2004, Pub. L. No. 108-357, § 848, 118 Stat. 1418 (2004). Consequently, neither Key nor PNC participated in any new cross-border lease to service contract transactions after that date. [Angel Tr., Doc. 178-1 at 224-25; Larkins Tr., *960 Doc. 178-1 at 291; Keener Tr., Doc. bharding@example.com.] The last SILO transaction to which Key was a party, for example, closed on January 7, 2004. [Joint Ex. 56 (Leveraged Lease Portfolio Rep.), Doc. bharding@example.com.] In 2005, the IRS issued a notice about tax-exempt leasing involving defeasance in which it declared that it would contest claimed tax deductions for any SILO transactions that it suspected had no economic purpose apart from tax benefits. IRS Notice 2005-12, 2005-1 C.B. 630. Unsurprisingly, after the efforts of both Congress and the IRS to eliminate the tax benefits of lease-in/lease-out and sale-in/ lease-out transactions, both LILOs and SLOs have become almost non-existent in the leveraged leasing industry today. Many SILOs that were created before 2004, however, remain in effect and the tax implications of these economic structures present the dispositive issue for this Court today. B. Overview of the Instant Litigation The present case involves a SILO transaction entered into in 1999 for the "sale" and "leaseback" of a fully integrated waste-to-energy disposal and treatment plant located in Wuppertal, Germany (the "Facility"). Built in 1976, the Facility uses state-of-the-art technology to burn waste from households and small businesses. [Joint Stip., Doc. 83-1 at ¶ 30, 32; Ellsworth Tr., Doc. 178-1 at 415-16; Gonzalez Tr., Doc. 178-1 at 370-71; Joint Ex. 24 (Duke Rep.), Doc. 164-1 at KSP0175821-24; Pl. Ex. 119 (Appraisal), Doc. bharding@example.com.] The Facility then converts the waste into fuel to generate electricity and steam heat, as well as other byproducts. Prior to the 1999 transaction at issue, Abfallwirtschaftgesellschaft mbH Wuppertal ("AWG") owned the Facility. [Joint Stip., Doc. 83-1 at ¶ 32.] Founded in 1971, AWG is a German corporation that is owned and maintained by a consortium of west German municipalities, including the cities of Wuppertal, Remscheid, and Velbert. The public utilities arm of the City of Wuppertal, Wuppertaler Stadtwerke WSWAG, is the largest shareholder in AWG.[3] [Joint Stip., Doc. 83-1 at ¶ 34.] AWG has owned and operated the Facility since the plant became operational in 1976. [Joint Stip., Doc. 83-1 at ¶ 32; Pl. Ex. 80 (Final Key Credit Package), Doc. bharding@example.com.] At the time of the 1999 transaction, AWG operated at a profit, having earned over $10 million in 1999. AWG also had relatively little debt despite having recently completed a major renovation. At the end of 1999, AWG had longterm debt of $177 million. [Pl. Ex. 128, Doc. bharding@example.com.] AWG receives all of its revenue from the operation of the Facility. 90.8% of the revenue from the Facility is generated through "tipping" fees that the Facility charges to its customers for the disposal of their solid waste. The Facility produces the remaining 9.2% of its revenue by selling electricity, steam heat, and other byproducts created during the waste incineration process. [Joint Stip., Doc. 83-1 at ¶ 31, 34-35; Pl. Ex. 119 (Appraisal), Doc. 142 at PNC0004991-92; Joint Ex. 49 (1998 AWG Annual Rep.), Doc. 166-8.] The municipalities that own and operate AWG are also important customers of the Facility. These German municipalities provide large amounts of the materials *961 incinerated at the Facility and are responsible for much of the tipping fee income that AWG receives. [Joint Stip., Doc. 83-1 at ¶ 35.] The municipalities therefore control, at least indirectly, the tipping fees that they charge themselves. [Joint Stip., Doc. 83-1 at ¶¶ 34-35; Pl. Ex. 119 (Appraisal), Doc. 142 at PNC0004991-92; Joint Ex. 49 (1998 AWG Annual Rep.), Doc. 166-8.] German law generally treats AWG like a privately-held corporation and requires AWG to produce financial statements and to pay trade and corporate income taxes. [Schweiss Tr., Doc. 178-1 at 1060; Joint Ex. 49 (1998 AWG Annual Rep.), Doc. 166-8.] Between 1991 and 1997, AWG refurbished and renovated the Facility. [Pl. Ex. 52 (AWG Equity Mem.), Doc. 133-39 at IRS-ADM-000468; Joint Ex. 24 (Duke Rep.), Doc. bharding@example.com.] During this time period, AWG replaced the Facility's boilers, essential components to the waste-to-energy production process. AWG also replaced the grates that are used to load waste into the boilers and assorted other related pieces of equipment. After this renovation, in 1999, Duke Engineering Services ("Duke") conducted an engineering evaluation of the Facility and concluded the plant had a useful life of 46 years and was in as good a condition as that of a four year old facility. [Joint Stip., Doc. 83-1 at ¶¶ 50-51; Gonzalez Tr., Doc. 178-1 at 371-74, 393; Joint Ex. 24 (Duke Rep.), Doc. bharding@example.com.] Under German law, municipalities have a duty to dispose of domestic waste and waste generated in their respective territories. Germany had also passed a law forbidding the use of landfills after 2005, making the AWG incinerating facilities more important to the AWG owners. The municipal owners of AWG had no known reason for selling the Facility and no apparent need for capital. Yet, in early 1998, for unclear and unexplained reasons, a promoter sought investors on behalf of AWG by requesting proposals for a sale-leaseback of the Facility. Against this backdrop, the Plaintiffs offer no explanation as to what purpose motivated AWG to enter the Transaction. AWG's 1999 financial statements indicate that AWG was profitable as the sole owner and operator of the Facility, earning a net income of DM 19,114,814.62 (or $10,113,658.53 in 1999 U.S. dollars). [Pl. Ex. 128, Doc. bharding@example.com.] Although the Plaintiff Banks enjoy a contractual right to require testimony from responsible AWG officers regarding what motivated the Transaction, they offered no evidence to explain why AWG wanted, or needed, the Transaction. No representatives of AWG or its German municipality shareholders bharding@example.com. As described, the Facility had just undergone a significant renovation that placed it in a like-new condition in 1999. AWG earned a profit, was able to pay its bills, including the costs associated with the renovation, and nothing suggests it needed additional capital. Against this background, the Court surmises that the promoters simply devised a scheme to allow AWG to convey a tax-avoidance transaction for a fee. Nothing suggests that AWG had ever had any financial relation with Key Global Finance or with PNC Financial Services Group, Inc. ("PNC"). There is no evidence that AWG itself ever approached Key Global Finance or PNC about putting together a financial transaction involving the Facility. Instead, facilitators put AWG in contact with the Plaintiffs. Promoters Deutsche Anlagen-Leasing GmbH ("DAL") and Macquarie Corporate Finance (USA), Inc. ("Macquarie") initiated the process of securing a U.S. leasing transaction involving the Facility. Macquarie *962 contracted with the accounting firm of Deloitte & Touche LLP ("Deloitte") to provide appraisals for the possible transaction. After being solicited to participate by promoter Macquarie, in April 1998, Key Global Finance, an affiliate of KeyCorp ("Key"), a financial services company with its headquarters in Cleveland, Ohio, drafted an Offering Memorandum seeking American investors to take part in a $250 million LILO transaction involving the Facility. [Joint Stip., Doc. 83-1 at ¶ 37.] Apparently, in 1998, Deloitte had valued the AWG facility at $250 million. Shortly thereafter, Deloitte informed Key that it believed the Facility could support a higher appraised value than $250 million. [Def. Ex. E, Doc. 151-17.] In a June 10, 1998 letter, Key stated that "Deloitte & Touche has valued the current FMV [fair market value] of the facility at approximately $450 million, which is well beyond the preliminary estimates we received in February ..." Id. That same month, Key Global Finance drafted another Offering Memorandum attempting to find equity investors to participate with it in a $450 million LILO transaction for the Facility. [Joint Stip., Doc. 83-1 at ¶ 38; Joint Ex. 53 (Offering Mem.), Doc. 167-4.] These efforts, however, did not result in any contracts between AWG and potential lessors. [Joint Stip., Doc. 83-1 at ¶ 39.] In late 1998, PricewaterhouseCoopers Global Structured Finance Group ("PWC") and debis Financial Engineering GmbH began promoting a cross-border leveraged leasing transaction for the Facility on AWG's behalf. [Joint Stip., Doc. 83-1 at ¶ 40, 41.] In April 1999, PWC sent an Equity Information Memorandum to possible investors proposing a prospective LILO transaction for the Facility. [Joint Stip., Doc. 83-1 at ¶ 41; Pl. Ex. 52 (AWG Equity Mem.), Doc. 133-39.] Both Key and PNC, a financial services company headquartered in Pittsburgh, Pennsylvania, responded favorably to this memorandum. Key and PNC generally compete against each other in the leasing industry. [Joint Stip., Doc. 83-1 at ¶¶ 27-29.] As large bank-based institutions, Key and PNC offer a variety of financial products and services, including leasing services, and each company maintains leasing portfolios worth several billion dollars. [Larkins Tr., Doc. 178-1 at 266-69; Angel Tr., Doc. bharding@example.com.] Both corporations have engaged in domestic leveraged leasing transactions for several decades, arguably in an attempt to increase after-tax profits. Neither corporation, however, had participated in any cross-border leveraged leasing transactions prior to 1996. [Angel Tr., Doc. 178-1 at 223; Keener Tr., Doc. 178-1 at 320-21, 335-36.] Beginning in 1996, however, Key and PNC both began engaging in significant cross-border lease-in/lease-out ("LILO"), and later sale-in/lease-out ("SILO"), transactions.[4] [Angel Tr., Doc. 178-1 at 223; Keener Tr., Doc. 178-1 at 320-21, 335-36.]. As previously discussed, many banks, including Key and PNC, stopped engaging in LILO transactions and began using SILO structures as the result of the IRS final regulations that took effect in May 1999. [Angel Tr., Doc. 178-1 at 224; Section *963 467 Rental Agreements, 64 Fed. Reg. 26863 (May 18, 1999).] On August 23, 1999, Key and PNC sent AWG conditional and separate proposals to participate in a sale-in/lease-out transaction for the Facility for $425 million. [Joint Stip., Doc. 83-1 at ¶¶ 42, 43; Joint Ex. 41 (PNC Leasing Proposal), Doc. 165-13.] On August 26, 1999, Key and PNC submitted a joint proposal to AWG. AWG approved the proposal that same week. [Joint Stip., Doc. 83-1 at ¶¶ 45, 46.] The parties signed a conditional term sheet allowing for further negotiation and due diligence. [Joint Stip., Doc. 83-1 at ¶¶ 42-46; Pl. Ex. 73 (Key Proposal), Doc. 135-2; Pl. Ex. 83, (PNC Proposal), Doc. bharding@example.com.] Key and PNC subsequently hired independent experts to advise them about various legal, engineering, financial, and environmental issues associated with the possible AWG leveraged leasing transaction. [Angel Tr., Doc. 178-1 at 104-119, 155; Keener Tr., Doc. bharding@example.com.] Among these experts, Key and PNC hired Duke Engineering & Services, Inc. ("Duke") to do an engineering assessment of the Facility. [Joint Stip., Doc. 83-1 at ¶ 47.] Duke, a qualified engineering firm, provided a comprehensive 186-page report that complimented the design, construction, and operation of the Facility, and predicted a 46 year useful life for the Facility. [Joint Stip., Doc. 83-1 at ¶¶ 47-51; Gonzalez Tr., Doc. 178-1 at 363-69; Joint Ex. 24 (Duke Rep.), Doc. 164-1.][5] Key and PNC also retained the accounting and consulting firm of Deloitte & Touche LLP ("Deloitte") to provide an appraisal of the Facility and to conduct a financial analysis of the proposed SILO transaction (hereinafter, the "Deloitte Appraisal"). [Joint Stip., Doc. 83-1 at ¶ 53.] Apart from the Deloitte Appraisal, the Plaintiffs obtained no other appraisals' of the Facility. The Plaintiff banks acknowledge that they never engaged in any negotiations with AWG over the price for the Facility. In attempting to explain why they never attempted to test whether AWG would accept a lower price, the Plaintiffs say bargaining seldom occurred in such transactions. Responding, the United States says that the Facility was not worth the suggested price and the Plaintiffs accepted the price without negotiations to increase their tax deductions. The final Deloitte Appraisal for the Facility also concluded that the remaining economic useful life of the Facility was 46 years. Id. at ¶ 54-56. In its appraisal, Deloitte studied three different aspects of the proposed AWG transaction. First, Deloitte assessed the fair market value of the Facility at the closing date, December 7, 1999 (the "Closing Date"). Second, Deloitte predicted the future fair market value of the Facility both at the end of the Leaseback period and at the end of the Service Contract. Deloitte conducted this analysis to assess expected residual values of the Facility. Finally, Deloitte assessed the economics of the Service Contract option as part of its compulsion analysis regarding the options that AWG would face in 2024. [Pl. Ex. 119 (Appraisal), Doc. 142.] Deloitte followed standard appraisal methodology by considering three different types of appraisal methods—the cost approach, the discounted cash flow approach, and a market comparable method—and reaching a "conclusion of value." Deloitte's application of the discounted cash flow approach and the market comparable approach, however, were flawed.[6] *964 In its report, Deloitte concluded that the cost approach offered the best indication of the Facility's current fair market value. [Pl. Ex. 119 (Appraisal), Doc. bharding@example.com.] The Court finds that this cost approach provides a reasonable estimate of the value of the Facility. The cost approach measures an asset's value by utilizing the cost of another asset of equal or comparable utility. Id. at PNC0004972. Deloitte was aware of construction costs and value indications of similar waste-to-energy plants in Germany and other Western European countries from its work on other valuation assignments. Id. at PNC0004976-78; Ellsworth Tr., Doc. bharding@example.com. Deloitte believed the most comparable construction costs for a similar waste-to-energy plant was a plant in Cologne, Germany. [Ellsworth Tr., Doc. 178-1 at 428-29; Pl. Ex. 55 (AWG Resp.), Doc. bharding@example.com.] The Cologne facility cost DM 900 million to construct and was a 450,000 tons/year plant. This was very similar to AWG's Facility, which Deloitte valued at DM 800 million and was a 385,000 tons/year plant. This comparable cost evidence is the best evidence of what it would cost to replace the AWG Facility in 1999. [Ellsworth Tr., Doc. 178-1 at 428-29; Pl. Ex. 55 (AWG Resp.), Doc. bharding@example.com.] Utilizing these generally accepted appraisal methods, Deloitte concluded that the total project costs to replace or reconstruct the Facility, as of December 7, 1999, would be approximately DM 800 million or $423 million U.S. dollars.[7] [Joint Stip., Doc. 83-1 at ¶ 57; Pl. Ex. 119 (Appraisal), Doc. bharding@example.com.] This appears to have been a reasonable conclusion, particularly in light of the credible evidence regarding the costs of replacing the Facility based on the similarly situated Cologne plant. Deloitte also generally considered that, in 1999, it was known that a new German law that prohibited most forms of landfilling in Germany would take effect in 2005. This law, commonly known as TASI, was anticipated to depress tipping fee rates in the short-term while customers tried to make use of their landfills' capacity, but was expected to lead to increased market tipping fees for incinerators after 2005. Increased market tipping fees obviously increase the value of the Facility to its owners. As AWG explained, "[F]rom the year 2005—the directive is suspended until this point in time—waste incineration plants were given a kind of monopoly status." [Pl. Ex. 54 (AWG Resp.), Doc. 133-41 at DT000021; Pl. Ex. 55 (AWG Resp.), Doc. 133-42 at DT000043; Pl. Ex. 119 (Appraisal), Doc. 142 at PNC0004940-41; Ellsworth Tr., Doc. 178-1 at 410-13, 426-27.] Without any apparent negotiation, the Plaintiffs agreed that the purchase price of the Facility should be $423 million. Joint Ex. 6, (Lease) Doc. bharding@example.com. On December 7, 1999, KSP Investments, Inc. ("KSP"), a wholly-owned subsidiary of Key, and PNC Capital Leasing, LLC ("PNC Leasing"), a wholly-owned subsidiary of PNC, entered into the leveraged leasing transaction with AWG for the "sale" and "leaseback" of the German waste-to-energy Facility. [Joint Stip., *965 Doc. 83-1 at ¶ 2.] The Plaintiffs finalized the transactions with a series of written agreements, including the Participation Agreement that was executed by all of the parties. Id. at ¶ 72; Joint Exs. 1-25. In total, the Plaintiffs generated over 2,000 pages of closing documents to govern their relationship. KSP and PNC Leasing made their respective investments in the AWG Transaction through a Delaware business trust called the AWG Leasing Trust (the "Trust"). [Joint Stip., Doc. 83-1 at ¶ 3.] Both KSP and PNC Leasing each own a 50% interest in the Trust. Id. at ¶¶ 2-7. KSP and PNC are the beneficiaries and the grantors of the AWG Leasing Trust. Id. at ¶ 4. The AWG Leasing Trust is treated as a partnership for federal income tax purposes. [Joint Stip., Doc. 83-1 at ¶ 8.] The Trust annually files a U.S. Return of Partnership Income (Form 1065) and is treated as a pass-through entity whereby its partners, Key and PNC, receive annual K-1 schedules that report their allocable portions of the Trust's income and deductions. [Joint Stip., Doc. 83-1 at ¶ 9.] Pursuant to 26 U.S.C. § 6231(a)(1)(B)(ii), the AWG Leasing Trust chose to have the tax treatment of all partnership items determined at the partnership level. Id. at ¶ 10. KSP was designated as the "Tax Matters Partner" for the AWG Leasing Trust pursuant to 26 U.S.C. § 6231(a)(7). [Joint Stip., Doc. 83-1 at ¶ 11.] In this capacity, KSP represents the AWG Leasing Trust and brought the present action on the Trust's behalf against the United States to determine the propriety of the IRS's proposed adjustments to several "partnership items" in the Trust's tax returns. Id. at ¶ 11. C. Procedural History of the Present Case The Trust filed timely federal income tax returns for the taxable years of 1999, 2000, 2001, 2002, and 2003. [Joint Stip., Doc. 83-1 at ¶ 16.] In its tax returns for these years, the Trust reported income in the form of accrued rent payments from AWG under the Leaseback. The Trust also reported deductions for depreciation on the Facility, interest expense on loans, and amortization expenses for the transaction costs (i.e. attorneys' fees and appraisal costs). [Joint Exs. 30, 31, 32, 35, and 38 (Tax Returns), Doc. 165.] On December 26, 2006, the IRS challenged the tax positions asserted on the Trust's tax returns for these years and also imposed several adjustments in the Final Partnership Administrative Adjustment ("FPAA"). [Joint Stip., Doc. 83-1 at ¶ 18.] In the FPAA, the IRS claimed that the Trust did not become the owner of the Facility for purposes of United States federal tax law and therefore could not claim tax benefits associated with ownership. Id. at ¶ 19; Pl. Ex. 161 (IRS Notice), Doc. 147-1. The IRS also made adjustments to the Trust's tax return for these years to disallow certain deductions claimed by the Trust and to restate the nature of the transaction in other ways that may reduce the Trust's claimed tax benefits. [Joint Stip., Doc. 83-1 at ¶ 20; Pl. Ex. 161 (IRS Notice), Doc. 147-1.] KSP, as the Tax Matters Partner of the Trust, took an appeal through this present lawsuit under 26 U.S.C. § 6226(a)(2). [Joint Stip., Doc. 83-1 at ¶ 25.] On March 22, 2007, KSP filed a complaint against the United States in this Court to determine the propriety of the IRS's proposed adjustments to several "partnership items" in the Trust's 1999, 2000, 2001, 2002, and 2003 tax returns. [Complaint, Doc. 1.] After fully conducting discovery, the parties filed pre-trial briefs and proposed findings of fact and conclusions of law, as well as a joint stipulation of facts. [Docs. *966 81, 82, 83, 84, 85.] Beginning on January 21, 2008, this Court conducted a week-long bench trial in the case. [Docs. 100, 101, 102, 104, 106.] As remarked at the trial, counsel for both parties provided admirable representation of their respective positions. After the completion of the trial, the parties filed post-trial briefs and reply briefs, along with final proposed findings of fact and conclusions of law. [Docs. 105, 118, 119, 120, 121, 122, 123.] Before analyzing whether the 1999 SILO should receive favorable tax treatment, this Court provides a detailed discussion of the structure of the 1999 transaction. III. The Structure of the AWG Transaction The AWG deal was structured as a "sale-leaseback-to-service-contract" transaction regarding the waste-to-energy plant in Wuppertal, Germany (the "Facility"). [Angel Tr., Doc. bharding@example.com.] In summary, the transaction seemingly called for the Plaintiffs to pay $423 million to lease the Facility from AWG and called for AWG to lease the facility back. The transaction also gave AWG an option in 2024 to repurchase the balance of the Plaintiffs' lease. Of the $423 million, all of the payment excepting $28.6 million was committed to escrow-type accounts to guarantee AWG's sublease of the facility and to fund the exercise of the 2024 purchase option. Unless AWG rejects that purchase option, the 1999 transaction results a simple circular flow of money. As with most SILOs, the AWG transaction had two significant components: a head lease under which the Plaintiffs "acquired" the Facility from AWG, and a simultaneous sublease under which the Plaintiffs leased the Facility back to AWG. The 1999 transaction also provides AWG with an option to reacquire the Facility for a fixed purchase price in 2024. Alternatively, the 1999 transaction requires AWG to enter into a service contract with the Plaintiffs in 2024 if the Plaintiffs do not exercise the purchase option. However, to choose the service contract instead of the purchase option, the transaction strangely requires AWG, a lessee under the sublease and a customer under the Service Contract, to arrange non-recourse financing for the Plaintiffs. Unless AWG obtains such non-recourse financing for the Plaintiff, the purchase option must be exercised and the circular flow of moneys completed. A. The Transaction Structure at Closing 1. The Head Lease The Plaintiffs executed a Head Lease Agreement ("Head Lease"). Under the terms of the Head Lease, AWG "sold" the economic and tax ownership of the Facility to the Plaintiffs for 75 years in exchange for a lump sum payment of $423 million, payable at closing via a wire transfer into AWG's bank account ("the head lease rent").[8] [Joint Stip., Doc. 83-1 at ¶ 73-77.] Section 9(k) of the Head Lease states, "The Head Lessee [the Trust] and the Head Lessor [AWG] intend this Head Lease to constitute an agreement for the sale of the Facility by the Head Lessor to the Head Lessee on the Closing Date for U.S. federal income tax purposes." [Joint Ex. 4, Doc. 157-2 at IRS-ADM-002735; *967 Angel Tr., Doc. bharding@example.com.] Under the terms of the Head Lease, the Trust is entitled to any condemnation proceeds if the Facility is taken by eminent domain during the 75 year period. [Joint Ex. 4, Doc. bharding@example.com.] As will be discussed later, AWG and the Plaintiffs treated the Head Lease as a sale of the Facility from AWG to the Trust on the closing date under U.S. federal income tax law, but not under German tax law. AWG's lease of real property to the Plaintiffs was not recorded as is typically required under German title law. In its audited financial statements, AWG did not record any sale of the Facility and continues to deduct depreciation for tax purposes under German tax law. 2. The Leaseback ("Leaseback") Along with the above-described Head Lease Agreement, at closing the parties simultaneously executed a Lease Agreement (the "Leaseback") in which the Trust "leased" the Facility back to AWG until January 1, 2024 (the "Initial Leaseback Period") in exchange for a series of annual rent payments. [Joint Stip., Doc. 83-1 at ¶ 82.] The Leaseback is a "triple net" lease, meaning that the lessee (AWG) must bear the costs of operating the Facility during the Leaseback Term, including taxes, insurance, and maintenance expenses. Id. at ¶ 85. The Leaseback states, "It is the intent of the parties hereto that this Lease is a true lease, and that the Lessor [the Trust] is the owner and lessor and the Lessee [AWG] is the lessee of the Facility for all U.S. Federal, state and local income tax purposes." [Joint Ex. 6, Doc. bharding@example.com.] Under the Leaseback, AWG is entitled to the sole possession and operation of the Facility during the Leaseback Term if it satisfies certain obligations under the Leaseback. [Joint Stip., Doc. 83-1 at ¶¶ 86, 87.] AWG must pay all costs for the use and maintenance of the Facility during the Leaseback term, and AWG is also entitled to keep all profits generated from the Facility during the Leaseback. Id. at ¶¶ 89, 90. The Leaseback requires that AWG operate, maintain, and repair the Facility in accordance with certain standards set forth in the Leaseback. Id. at ¶ 88. The Leaseback establishes annual reporting requirements, including certifications of AWG's compliance with maintenance and repair obligations, environmental reporting obligations, financial reporting obligations, insurance requirements, and other Leaseback obligations. [Joint Ex. 2, Doc. bharding@example.com.] AWG has provided this information to the Trust each year since 1999. [Angel Tr., Doc. bharding@example.com.] Under the Leaseback, AWG also is required to maintain and return the Facility in specified good condition. The return conditions are detailed in the Leaseback, including fourteen engineering performance tests that the Facility must pass at the end of the Leaseback. [Joint Ex. 2 (Participation Agreement), Doc. 156 at IRS-ADM-002245-48; Angel Tr., Doc. bharding@example.com.] B. Cash Flows at Closing Under the terms of the Participation Agreement, AWG "receives" the $423 million lump sum "head lease payment" at closing. To fund the closing, the Plaintiffs contributed a relatively small amount and borrowed the rest. The Plaintiffs contributed $55.1 million in cash to the transaction with AWG. The Plaintiffs borrowed $368 million from two German banks. [Joint Ex. 8 (Loan and Security Agreement), Doc. 159-1; Joint Ex. 25 (Closing Funding Mem.), Doc. 164-2 at IRS-ADM-000510; Def. Graphic 1, Doc. 151-5.] In reality, however, approximately $383 million of the $423 million is instantly transferred *968 to other parties involved in the transaction. AWG keeps only $28.5 million, or approximately 7% of the stated head lease payment, for itself. [Joint Ex. 2 (Participation Agreement), Doc. 156; Joint Ex. 9 (Series A PUA), Doc. 159-2 at IRS-ADM-002973; Joint Ex. 10 (Nord LB PUA), Doc. 159-3 at IRS-ADM-002999; Joint Ex. 15(PUA), Doc. 160-5 at IRS-ADM-003166; Joint Ex. 25 (Closing Funding Mem.), Doc. 164-2, at IRS-ADM-00503-10.] The remaining $26.5 million of the cash that the Plaintiffs paid at closing goes to AIG Matched Funding, a subsidiary of American International Group ("AIG"), in the form of a "Payment Undertaking Agreement Fee" (the "Equity PUA"). [Keener Tr., Doe. 178-1 at 341-42; Joint Ex. 15(PUA), Doc. 160-5 at IRS-ADM-003166; Joint Ex. 25 (Closing Funding Mem.), Doc. 164-2, at IRS-ADM-00503-10.] This $26.5 million payment to AIG serves as an investment that, over the initial 24 year sublease term, grows to an amount that is sufficient to permit AWG to repurchase the plant if it chooses to exercise its option in 2024. Key and PNC each provided equity contributions of $27.6 million to the Trust to fund the $28.5 million payment to AWG and to fund the $26.5 investment with AIG. In addition to the $55 million equity investment, the Plaintiffs also paid approximately $4.9 million to the entities, including lawyers, consultants, and arrangers, that helped to set up the deal with AWG. [Def. Graphic 1, Doc. 151-5.] After contributing the $55.1 million, the Plaintiffs obtained the remaining 87% of the purchase price, or $368 million, through long-term, non-recourse loans from two banks in Germany. [Joint Stip., Doc. 83-1 at ¶ 78; Joint Ex. 2 (Participation Agreement), Doc. 156 at IRS-ADM-002090; Joint Ex. 8 (Loan and Security Agreement), Doc. 159-1; Joint Ex. 25, Doc. 164-2 at IRS-ADM-000510 (Closing Funding Mem.); Def. Graphic 1, Doc. 151-5.] Norddeutsche Landesbank loaned the Trust $331.1 million (the "Series A loan") and Landesbank Baden-Wurttenburg loaned them $36.8 million (the "Series B loan"). [Joint Ex. 25, Doc. 164-2 at IRS-ADM-000510 (Closing Funding Mem.); Def. Graphic 1, Doc. 151-5.] The Series A loan is equal to 90% of the loan proceeds, and the Series B loan constitutes the remaining 10%. The Loan Agreement amortizes principal ratably so that the Series A and Series B loans are, at all times, in a 90/10 ratio. [Joint Ex. 8; Doc. bharding@example.com.] As stated, the Plaintiffs borrowed these funds on a nonrecourse basis, that is as debts whose satisfaction may be obtained on default only out of the particular collateral given and not out of the Plaintiffs' other assets. The Loan Agreement establishes the terms and conditions of the Series A and Series B Loans. [Joint Ex. 8 (Loan Agreement), Doc. 159-1.] Both loans have a term of 34 years and bear an annual interest rate of 7.28%. Id. at IRS-ADM-002912; Joint Ex. 2, Doc. bharding@example.com. The borrower Trust's interest in the Facility secures the loans by a collateral assignment of the Trust's rights under the Lease, Site Lease, Site Leaseback, Assumption Agreement, and Facility Support Agreement. [Joint Ex. 8 (Loan Agreement), Doc. bharding@example.com.] As non-recourse loans, the Plaintiffs would not be obligated if, for any reason some of the monies to pay the note were not available. The Series A Loan is not subordinated to the Series B Loan. The loans are pari passu, meaning that they are secured by the same collateral (i.e. the Facility) on a ratable 90/10 basis in the event of default, for example, for every dollar of available collateral, the Series A Lender is entitled *969 to recover 90 cents. [Joint Ex. 8, Doc. 159-1 at IRS-ADM-02922-23; Angel Tr., Doc. bharding@example.com.] Under its agreement with the Plaintiffs, AWG was required to put the $368 million obtained from the Series A and Series B loans into two Payment Undertaking Accounts (the "Debt PUAs"). These Debt PUAs act as defeasance accounts, which means that they are created to pay AWG's obligations under the sublease and to apply those payments to Plaintiffs' debts that are incurred under the transactions. At closing, AWG purchased the Series A, Series B, and AIG PUAs as required by the agreement. [Joint Stip., Doc. 83-1 at ¶ 72.] The Debt PUAs make payments to the German banks, and neither AWG nor any of its creditors can access the funds until 2024. The money in the Debt PUAs is held by an affiliate of Norddeutsche Landesbank and purportedly is used to pay AWG's "rent" under the Leaseback and the Plaintiffs' debts under the loans. The rent payments under the Leaseback exactly match, in both amount and timing, the principal and interest payments due on the Plaintiffs' non-recourse loans.[9] [Lys Tr., Doc. 178-1 at 880; Keener Tr., Doc. 178-1 at 342; Meilman Tr., Doc. 178-1 at 535-36; Def. Graphic 2, Doc. 151-6; Joint Ex. 6 (Lease Agreement), Doc. 158-1 at IRS-ADM-002818; Joint Ex. 8 (Loan and Security Agreement), Doc. 159-1 at IRS-ADM-002962, 2967.] The only exception to this perfectly off-setting payment schedule is a $1.2 million payment to be made from the Equity PUA to PNC on March 7, 2000. [Joint Ex. 15(PUA), Doc. bharding@example.com.] By purchasing the PUAs, AWG did not legally discharge any of its payment obligations to the Trust. [Joint Ex. 9 (Series A PUA), Doc. 159-2 at IRS-ADM-002974-75; Joint Ex. 10, Doc. 159-3 at IRS-ADM-003000-01; Joint Ex. 15(PUA), Doc. bharding@example.com.] By the terms of the PUAs, AWG remained the primary obligor in respect of all rent owed under the Leaseback. If the PUA German banks go bankrupt and do not timely pay AWG's rent obligations to the Trust, AWG remains liable to the Trust for such amounts and would be in default under the terms of the Leaseback. After AWG purchased the PUAs, AWG's obligations to pay rent and the Trust's obligations to pay debt costs remained in full force and effect. However, risk of the PUA banks going bankrupt seems exceedingly small. The Series A PUA is pledged as collateral for repayment of the Loans, except in the event of default. [Joint Ex. 8, Doc. bharding@example.com.] The PUA funds belong to AWG during the Leaseback term but the payment undertaking agreements restrict the funds to being used to make payments required by the Leaseback. If, in 2024 at the end of the Leaseback, AWG does not exercise its option to repurchase the Facility, the balance of the funds will be paid out to AWG. [Angel Tr., Doc. bharding@example.com.] AWG may arrange for a refinancing of the Series A and Series B Loans on a nondefeased basis. [Joint Ex. 2, Doc. 156 at IRS-ADM-002156-60; Meilman Tr., Doc. bharding@example.com.] This refinancing would terminate the related PUAs and release the PUA funds for the benefit of AWG. [Joint Ex. 9, Doc. 159-2 at IRS-ADM-002972-74; Joint Ex. 10, Doc. 159-3 at *970 IRS-ADM-02998-3000.] Any refinancing, however, would require AWG to pay a "Make Whole Amount" to the German banks. The "Make Whole Amount" includes both outstanding principal and lost future interest, discounted at the then-prevailing United States Treasury rate. By requiring that all interest be paid, and by then discounting that interest to the current United States Treasury rate, the agreement makes refinancing highly unlikely. Typically, refinancing would occur when interest rates fall. But the make-whole provision requires that all interest that would have otherwise been paid continue to be paid, and then discounts such obligation only by the current, presumptively lower rate. In effect, the makewhole provision penalizes refinancing. This make-whole provision makes it very unlikely that AWG would choose to refinance. In sum, the cash flows resulting from the AWG transaction at closing, ignoring any intermediate payments, may be described as follows: Source of Funds Receivers of Funds German Banks $367.9 million German Banks (for Debt PUAs) $367.9 million Plaintiffs $ 59.9 million AIG (for Equity PUA) $ 26.5 million AWG $ 28.6 million Professional Service Fees $ 4.8 million Total: $427.8 million Total: $427.8 million [Govt. Post-Trial Prop. Findings of Fact, Doc. 121 at 13; Joint Ex. 25 (Closing Funding Mem.), Doc. 164-2 at IRS-ADM-00503-10; Def. Ex. VVVVV (AWG Transaction Expense Detail).] As described, AWG's Leaseback requires AWG to pay "rent" during the initial Leaseback term. In reality, however, those rent payments are made by the two German banks under the PUAs and AWG does not use its operating funds to pay this rent. The rent thus is essentially paid by the German banks to the German banks as payments on the Plaintiffs loan obligations. The Debt PUAs therefore simultaneously satisfy both AWG's rent payments and the Plaintiffs' debt payments. Due to these off-setting payment plans, no actual cash flows occur between AWG and the Plaintiffs during the 24 years of the Initial Leaseback Period, except for the previously mentioned $1.2 million payment to PNC from the Equity PUA on March 7, 2000. [Angel Tr., Doc. 178-1 at 228-30; Keener Tr., Doc. 178-1 at 349-50; Lys Tr., Doc. 178-1 at 879-81; Def. Graphic 2, Doc. 151-6.] C. AWG's "Options" in 2024 Under the 1999 transaction documents, AWG will have two options when the Initial Leaseback Period ends in 2024. 1. The Fixed Purchase Option In 2024, AWG can exercise a "Fixed Purchase Option" to regain the Plaintiffs' interest in the Facility for $521 million. If AWG exercises the Fixed Purchase Option, the funds in the Debt PUAs will be released to the lenders and will be sufficient to satisfy the $521 million purchase cost. In 2024, the balances in the Debt PUAs will exactly match the outstanding loan balance of $383 million. All of the proceeds of the loans, therefore, will return directly to the lenders. Neither AWG nor the Plaintiffs have to provide any cash to repay these loans. [Angel Tr., Doc. 178-1 at 244-45; Joint Ex. 6 (Lease Agreement), Doc. 158-1 at IRS-ADM-002808; Joint Ex. 8 (Loan and Security Agreement), (Doc. 159-1 at IRS-ADM-002910).] In effect, the German banks lent money to the Trust, the Trust paid *971 AWG who was required to place the proceeds into the PUAs with the German banks, and the PUAs will then have sufficient balances after making rent payments to repurchase the Facility with the balances in the PUAs in 2024. The $521 million Fixed Purchase Option has two components. First, the $383 million in the Debt PUAs will go towards paying off the remaining loans owed to the German banks. Second, the remaining $138 million in funds that will have accrued by 2024 in the Equity PUA will go to the Plaintiffs. [Lys Tr., Doc. 178-1 at 884-85; Def. Graphic 2, Doc. 151-6; Def. Graphic 3, Doc. 151-7; Joint Ex. 6 (Lease Agreement), Doc. bharding@example.com.] This $138 million represents the Plaintiffs' "return" on its equity "investment" in the AWG transaction if AWG exercises the 2024 purchase option. Each of the Plaintiffs banks will therefore receive approximately $39.1 million above their initial equity investments. [Supp. Joint Stip., Doc. 105.] The Plaintiffs, therefore, will obtain an internal rate of return on the AWG transaction of approximately 3.5% if the 2024 purchase option is exercised. [Pl. Ex. 113, Doc. 141-2; Angel Tr., Doc. 178-1 at 90-91; Graves Tr., Doc. bharding@example.com.] Under the Fixed Purchase Option, the $55.1 million "equity" investment that the Plaintiffs made in 1999 thus is returned to the Plaintiffs with a guaranteed, albeit low, pre-tax rate of return. [Lys Tr., Doc. 178-1 at 883; Joint Ex. 15, Doc. 160-5 at IRS-ADM-003170; Def. Graphic 2, Doc. 151-6; Def. Graphic 3, Doc. 151-7.] As will be discussed later in this opinion, the Court finds that it is very likely that AWG will exercise the Fixed Purchase Option in 2024. In theory, however, AWG also has the option to enter into a Service Contract in 2024, which the Court will now describe. 2. The Service Contract Option If AWG does not exercise the Fixed Purchase Option ("FPO"), AWG and the Trust, or its designee, are obligated to enter into a waste disposal service contract ("Service Contract") at the end of the Leaseback Term. Under that Service Contract, AWG agrees to purchase solid waste disposal services from a third-party provider, chosen by the Plaintiffs, from January 1, 2024 until September 23, 2036. [Joint Stip., Doc. 83-1 at ¶¶ 96, 97; Joint Ex. 2, Doc. 156 at IRS-ADM-002149; Joint Ex. 13, Doc. bharding@example.com.] In order to enter into the Service Contract, however, AWG must first arrange for a non-recourse refinancing of the entire $383 million in non-recourse debt that will still be outstanding in 2024. Under the terms of the Service Contract, any refinanced debt cannot include a defeasance provision. [Joint Ex. 2, Doc. bharding@example.com.] As will be discussed later in this opinion, the Court finds the allocation of the obligation to obtain refinancing upon AWG difficult to explain if the 1999 transaction had intended to sell the Facility to the Trust. Under this provision, if AWG chooses to actually receive the monies from the 1999 sale, it need enter an expensive twelve-year service contract that will significantly raise the tipping fees AWG charges its municipal owners. Further, even though the Trust is said to be the "owner" of the Facility, AWG is strangely saddled with the requirement to obtain non-recourse financing. Assuming that AWG is able to secure such non-recourse refinancing, AWG then can enter the Service Contract in 2024. Under the Service Contract, AWG will engage the Trust to provide solid waste disposal services for twelve years, until 2036. During the Service Contract, AWG must pay a periodic fee (the "Service Fee") to *972 the Trust or its designee. The Service Fee is the sum of a "Capacity Charge", an operations and maintenance charge (the "O & M Charge"), and a charge for all solid waste delivered to the Facility in excess of a set, baseline amount (the "Excess Tonnage Charge"); minus credits to AWG in respect of service fees realized by the Trust or its designee from the use of the Facility to serve third party customers. [Joint Stip., Doc. 83-1 at ¶ 103.] As indicated, the Service Contract requires AWG to pay Capacity Charges. The Capacity Charge includes `Debt Portion' payments that are sufficient to totally pay the principal and interest on the new non-recourse loan. [Joint Stip., Doc. 83-1 at ¶ 104; Joint Ex. 13, Doc. bharding@example.com.] In effect, under the Service Contract AWG must pay all borrowing costs associated with the non-recourse loan. In addition to paying all of the Trust's debt costs as part of its Capacity Charges, AWG must also pay all the operation and maintenance costs together with amounts necessary to fund a modest reserve for working capital. [Joint Stip., Doc. 83-1 at ¶ 105.] Beyond paying all debt costs and operating and maintenance costs, the Service Contract requires payment of an Excess Tonnage Charge, that is $40 per ton of solid waste delivered by, or on behalf of, AWG to the Facility in excess of 200,000 tons of waste per year. [Joint Ex. 13, Doc. 160-3 at IRS-ADM-003085; Angel Tr., Doc. 178-1 at 213; Graves Tr., Doc. bharding@example.com.] This Excess Tonnage Charge is a relatively low charge for quantities of more than 200,000 tons per year to the Facility. Under the Service Contract, AWG retains the right to charge "tipping fees" to its customers for the disposal of solid waste, but the third-party service provider has the right to any revenue gained from the sale of electricity and steam heat created by the Facility. [Joint Stip., Doc. 83-1 at ¶¶ 103-05; Joint Ex. 2, Doc. 156 at IRS-ADM-002148-53 (Participation Agreement); Joint Ex. 13 (Service Contract), Doc. 160-3 at IRS-ADM-003080, 3082, 310E.] The Service Fees are not to be paid on a "hell or high water" basis. [Joint Stip., Doc. 83-1 at ¶ 102.] This means that, under the Service Contract, AWG is required to pay Service Fees to the Trust only to the extent that the Trust or its designee actually performs the obligations required of them under the Service Contract. If a disruption in service occurs that stops the incineration of waste at the Facility, then AWG is not required to pay and it can terminate the Service Contract or pursue other legal remedies. [Angel Tr., Doc. 178-1 at 208-16; Joint Ex. 13, Doc. 160-3 at IRS-ADM-003105-06, 003114.] However, the Service Contract also requires AWG to reimburse the Plaintiffs for the cost of insurance, including business interruption and environmental insurance. If AWG exercises the Service Contract option, then it also obtains a second option to repurchase the Facility. In 2036, at the end of the Service Contract, AWG may terminate the Head Lease by giving the Plaintiffs an amount equal to the fair market value of the Facility ("the second purchase option"). [Joint Stip., Doc. 83-1 at ¶ 98.] If, however, AWG does not terminate the Head Lease at the conclusion of the Service Contract, then the Plaintiffs will have effective ownership and control of the Facility for the remaining 38 years of the Head Lease and AWG will retain only bare title to the Facility. [Joint Ex. 13 (Service Contract), Doc. bharding@example.com.] D. German Tax Law Treatment of the AWG Transaction Under German tax law, the AWG transaction is not a sale of ownership in the *973 Facility. The Plaintiffs did not take legal title to the Facility. [Angel Tr., Doc. 178-1 at 257; Heisse Tr., Doc. 178-1 at 1023-24; Joint Ex. 28 (German Tax Ruling Req.), Doc. bharding@example.com.] During the Initial Leaseback Period, AWG operates the Facility in largely the same manner and with the same freedoms as it did prior to entering into the Participation Agreement with the Plaintiffs. Under the terms of the Participation Agreement, AWG is guaranteed the right to "quiet enjoyment" of the plant throughout the Initial Leaseback Period. Additionally, the contract provides that the Plaintiffs are only allowed to inspect the Facility on one single calendar day each year. [Joint Ex. 6 (Lease Agreement), Doc. 158-1 at IRS-ADM-002778, 002796.] AWG does not use its own operating funds to pay rent during the Initial Leaseback Period due to the requirement that rent payments be made out of the PUA accounts that AWG bharding@example.com. Lys Tr., Doc. 178-1 at 874; Joint Ex. 46 (PNC Purpose/Transaction Summary), Doc. 166-5. Further, AWG continues to carry many burdens of ownership that it held prior to 1999. For example, AWG must maintain insurance on the Facility, must operate the Facility in compliance with German law, must maintain the Facility with its own funds, must make capital improvements to the Facility at its own expense, and is permitted to take depreciation deductions on the plant under German tax law. The Plaintiffs' own engineering expert specifically testified that AWG will not need make any changes to its maintenance procedures for the Facility during the Initial Leaseback Period. [Gonzalez Tr., Doc. 178-1 at 385-90; Joint Ex. 6 (Lease Agreement), Doc. bharding@example.com.] Additionally, during the Initial Leaseback Period, AWG remains solely responsible for any environmental liabilities incurred by the Facility because it remains the legal owner and operator of the Facility under German law.[10] [Angel Tr., Doc. 178-1 at 227; Heisse Tr., Doc. 178-1 at 1024; Pl. Ex. 81 (Asset Management Eval.), Doc. 137-2 at KSP0169558-59; Joint Ex. 46 (PNC Purpose/Transaction Summary), Doc. bharding@example.com.] Thus, under German law, AWG has not represented the transaction with the Plaintiffs to be a "sale" of its ownership or interest in the Facility. In fact, when AWG asked for a binding advanced German tax ruling on the consequences of its transaction with the Plaintiffs, AWG stated that it would maintain "economic ownership" of the plant for at least the first 25 years, and perhaps for the entire transaction if the Fixed Purchase Option was exercised in 2024. In fact, AWG represented to the German tax authorities: [T]he head lease and the sublease are entered into simultaneously, so that possession, use, and the obligations will at no time—not even for one legal second—be transferred to the U.S. Trust, if [AWG] exercises the [Fixed Purchase Option]. [Joint Ex. 28 (Adv. Tax Ruling Req.), Doc. bharding@example.com.] AWG continues to list the plant as an asset on its financial statements and tax balance sheets. AWG still claims and receives depreciation deductions for the Facility under both German corporate and trade income taxes. *974 The Plaintiffs are aware of this German tax treatment. [Angel Tr., Doc. 178-1 at 252; Jacob Tr., Doc. 178-1 at 741-42; Schweiss Tr., Doc. bharding@example.com.] IV. Legal Standard In this action brought under 26 U.S.C. § 6226(a)(2), the Plaintiffs ask the Court to determine: (i) whether the IRS erroneously adjusted certain partnership items on AWG Trust's tax returns for 1999, 2000, 2001, 2002, and 2003 (the "Taxable Years") that relate to the 1999 SILO transaction entered into by the Trust; (ii) whether the IRS properly asserted that any underpayments of tax resulting from these adjustments are subject to accuracy-related penalties under 26 U.S.C. § 6662; and (iii) whether amounts deposited by Plaintiff KSP with the Secretary of Treasury, pursuant to 26 U.S.C. § 6226(e)(1), should be refunded with interest. [Complaint, Doc. 1.] In such actions, Section 6226(f) of the Internal Revenue Code of 1986 establishes that the Court should "determine all partnership items of the partnership for the partnership taxable year to which the notice of final partnership administrative adjustment relates, the proper allocation of such items among the partners, and the applicability of any penalty, addition to tax, or additional amount which relates to an adjustment to a partnership item." 26 U.S.C. § 6226(f). The Court must conduct a de novo review of the adjustments made by the IRS in the FPAA. See Jade Trading, LLC v. United States, 80 Fed. Cl. 11, 43-44 (2007). The Plaintiffs bear the burden of proving the correct amount of their tax liability. See id. at 46-47; Dow Chem. Co. v. United States, 435 F.3d 594, 599 (6th Cir.2006) (citing INDOPCO, Inc. v. Comm'r, 503 U.S. 79, 84, 112 S. Ct. 1039, 117 L. Ed. 2d 226 (1992)) (stating that an "income tax deduction is a matter of legislative grace and ... the burden of clearly showing the right to the claimed deduction is on the taxpayer"). V. Discussion A. General Principles of Federal Tax Law As the Fourth Circuit recently noted, a taxpayer may attempt to reduce his tax liability by any means available under the law, but a taxpayer may not "claim tax benefits that Congress did not intend to confer by setting up a sham transaction lacking any legitimate business purpose, or by affixing labels to its transactions that do not accurately reflect their true nature." BB & T Corp. v. United States, 523 F.3d 461, 471 (4th Cir.2008). Similarly, the Sixth Circuit has held: Because even the most patriotic citizens do not have a duty to increase [their] taxes, it is entirely legal and legitimate to minimize taxes through permissible means. But if a transaction or entity has no valid, non-tax business purpose, nominally uses another person or entity as a conduit through which to pass title, or br[ings] about no real change in the economic relation of the [taxpayers] to the income in question, the Commissioner has the authority to find that the transaction or entity lacks economic substance and disregard it for tax purposes. Richardson v. Comm'r, 509 F.3d 736, 741 (6th Cir.2007) (internal quotation marks omitted). In order to determine whether a taxpayer is entitled to claimed tax deductions, therefore, the Court must decide whether the underlying transaction had genuine economic substance apart from tax benefits. If the Court finds that the transaction does have economic substance aside from tax benefits, then the Court must also decide if the substance of the *975 transaction is consistent with its stated form. The Fourth Circuit accurately describes this two-part analysis as the "economic substance" and the "substance over form" tests. BB & T Corp., 523 bharding@example.com. Under the economic substance doctrine, the Court must evaluate whether the transaction has true economic merit apart from any claimed tax benefits. In making this determination, the Sixth Circuit notes that "even if a transaction is in `formal compliance with Code provisions,' a deduction will be disallowed if the transaction is an economic sham." Dow Chem. Co. v. United States, 435 F.3d 594, 599 (6th Cir.2006) (citing Am. Elec. Power Co. v. United States, 326 F.3d 737, 741 (6th Cir. 2003), cert. denied, 540 U.S. 1104, 124 S. Ct. 1043, 157 L. Ed. 2d 888 (2004)). Accordingly, the Sixth Circuit explains that the appropriate standard in evaluating whether a transaction is a sham is "whether the transaction has any practicable economic effects other than the creation of income tax losses." Dow Chem. Co., 435 F.3d at 599 (citing Rose v. Comm'r, 868 F.2d 851, 853 (6th Cir.1989)). If the Court determines that the transaction has economic substance apart from asserted tax benefits, then the Court must decide "whether the taxpayer was motivated by profit to participate in the transaction." Dow Chem. Co., 435 F.3d at 599 (quoting Illes v. Comm'r, 982 F.2d 163, 165 (6th Cir.1992), cert. denied, 507 U.S. 984, 113 S. Ct. 1579, 123 L. Ed. 2d 147 (1993)). If the Court finds that the challenged transaction lacks substance and is an "economic sham," then the transaction must be disallowed for federal tax purposes. See Dow Chem. Co., 435 bharding@example.com. See also Rose, 868 F.2d at 853 (stating that the "court will not inquire into whether a transaction's primary objective was for the production of income or to make a profit, until it determines that the transaction is bona fide and not a sham"). If the Court determines under the "economic substance" test that the transaction has objective economic substance and that the taxpayer was subjectively motivated by the possibility of profit to participate in the transaction, then the Court must turn to the "substance over form" test. The substance, not the stated form, of a transaction determines its treatment for federal income tax purposes. See Gregory v. Helvering, 293 U.S. 465, 470, 55 S. Ct. 266, 79 L. Ed. 596 (1935); BB & T Corp., 523 F.3d at 471-72; Richardson, 509 F.3d at 740 (stating that in deciding whether to attribute income to a taxpayer, "the Code elevates substance over form, asking not what the surface of a transaction suggests but what the economic realities of the transaction show"); Mitchell v. Comm'r, 428 F.2d 259, 263 (6th Cir.1970) (in evaluating tax deductions, "forms and labels must yield to reality"). Courts do not regard "the simple expedient of drawing up papers" as a controlling factor in evaluating a financial transaction for tax purposes where the objective economic realities of the transaction are not reflected in the form under which the transaction is apparently structured. Frank Lyon Co. v. United States, 435 U.S. 561, 573, 98 S. Ct. 1291, 55 L. Ed. 2d 550 (1978) (quoting Comm'r v. Tower, 327 U.S. 280, 291, 66 S. Ct. 532, 90 L. Ed. 670 (1946)). A court should respect the form of a transaction where it accurately reflects the underlying rights and responsibilities held and allocated between parties. If, however, the substance and form of a transaction do not comport, then the substance of the transaction controls for purposes of U.S. federal tax law. See Nebraska Dept. of Revenue v. Loewenstein, 513 U.S. 123, 115 S. Ct. 557, 130 L. Ed. 2d 470 (1994). See also Union *976 Planters Nat. Bank of Memphis v. United States, 426 F.2d 115, 118 (6th Cir.1970) ("[i]n cases where the legal characterization of economic facts is decisive, the principle is well established that the tax consequences should be determined by the economic substance of the transaction, not the labels put on it for property law (or tax avoidance) purposes"). See also Comm'r v. Duberstein, 363 U.S. 278, 286, 80 S. Ct. 1190, 4 L. Ed. 2d 1218 (1960). In assessing whether the form of the transaction accurately captures the substance, the court should consider the totality of the circumstances under which the transaction arose. See, e.g., Comm'r v. Culbertson, 337 U.S. 733, 742, 69 S. Ct. 1210, 93 L. Ed. 1659 (1949); Smith v. Comm'r, 937 F.2d 1089, 1099 (6th Cir.1991); TIFD III-E, Inc. v. United States, 459 F.3d 220, 231 (2nd Cir.2006). In this case, the Plaintiffs present three primary arguments regarding their asserted tax positions for the Taxable Years. First, the Plaintiffs claim that they are entitled to the deductions for depreciation and amortization of transaction costs, saying that the Trust became the owner of the Facility on December 7, 1999 for purposes of U.S. federal income tax law. Second, the Plaintiffs say that they are entitled to deduct interest expenses that they incurred for the 1999 Series A and Series B Loans that the Trust entered into with the German Banks. Finally, the Plaintiffs say that the IRS erroneously asserted accuracy-related penalties against them for the Taxable Years' returns. The Court will evaluate each asserted tax deduction in turn. B. Depreciation and Amortization Deductions: The Economic Substance of the Transaction This Court concludes that, while the AWG SILO transaction does have some economic substance apart from the tax benefits, the transaction's stated form as a "sale" is not consistent with its economic reality. Because the Court finds that the Trust never actually became the owner of the Facility for purposes of U.S. federal tax law, the Court concludes that the Trust is not entitled to the depreciation or amortization deductions claimed on its tax returns for 1999, 2000, 2001, 2002, and 2003 ("the Taxable Years"). After discussing relevant case law on the issue, the Court will then analyze the AWG transaction under both the "economic substance" and the "substance over form" tests. 1. Applicable Case Law: The Fourth Circuit's BB & T Decision There is a surprising lack of case law on the issue of the tax treatment to be given a sale-in/lease-out ("SILO") transaction or its closely related kin, the lease-in/lease-out ("LILO") transaction. The Sixth Circuit Court of Appeals has not directly addressed the question. In fact, the only relevant litigation involving a relatively similar set of facts was recently decided by the Fourth Circuit in BB & T Corp. v. United States, 523 F.3d 461, 465 (4th Cir. 2008). In sum, BB & T involved a lease-in/lease-out ("LILO") transaction in which Sodra, a paper mill company in Sweden, purportedly transferred a leasehold interest in paper processing equipment (the "Equipment") to BB & T, a U.S. taxpayer. The Equipment was then simultaneously leased back to Sodra, and Sodra's lease payments were secured through Debt and Equity PUAs. At the end of the initial lease period, Sodra will hold a pre-financed option to reacquire the Equipment at a fixed purchase price. A more detailed review of the facts in BB & T is instructive in comparing that case to this present litigation. On June 30, 1997, Sodra and BB & T, through a Trust, *977 entered into a 36-year lease (the "Head Lease") with BB & T purportedly acquired a leasehold interest in the Equipment. BB & T then immediately leased the interest in the Equipment back to Sodra for 15.5 years (the "Lease"). BB & T Corp. v. United States, 2007 WL 37798, at *1 (M.D.N.C.2007). At the end of this 15.5 year Lease, Sodra was given an option to reacquire the Equipment and to terminate the Head Lease for a pre-set price. Under the Head Lease, BB & T agreed to make two rent payments to Sodra: an $86.2 million Initial Head Lease Payment that was due at closing, and a $557.8 million Deferred Head Lease Payment that is due in 2038, five years after the Head Lease period ends. Id. at *2. This Deferred Head Lease Payment would obviously not be made if Sodra elects to exercise the 2013 option to repurchase the Head Lease and the equipment. To fund the 1997 $86.2 million payment to Sodra, BB & T contributed $18.2 million of its own funds and borrowed $68 million in the form of a non-recourse loan from a Swedish bank. At closing, the agreement with BB & T, required Sodra to place the $86.2 million in trust accounts that were committed to paying Sodra's lease payments to BB & T under the sublease. Of the $86.2 million that BB & T paid Sodra for the Head Lease Payment, $80 million was used to fund the PUAs and the remaining $6.2 million was transferred to Sodra's account at the Swedish bank as an "incentive" for doing the transaction. Id. Also under the terms of the participation agreement, Sodra must make annual rent payments to BB & T, and these rent payments are identical to BB & T's scheduled loan payments to the Swedish banks until 2013. The Debt PUA payments therefore satisfy both Sodra's rent payments and BB & T's loan obligations exactly in amount and timing during the initial lease period. Id. In 2013, Sodra has an option to elect a Fixed Purchase Option, to reacquire the Equipment for a pre-set price of approximately $46.9 million that is fully funded by the Debt and Equity PUAs. BB & T, 2007 WL 37798 at *3. If Sodra declines the option in 2013, however, then BB & T can either require Sodra to renew the lease for 13.3 more years (the "Sublease Renewal"), enter into a lease with a third party (the "Replacement Sublease"), or take possession of the Equipment for itself (the "Return Option"). If Sodra does not elect the FPO option and BB & T does not require it to renew the lease, then Sodra is entitled to the approximately $12 million in the Equity PUA. Id. In 2004, BB & T filed a complaint in the U.S. District Court for the Middle District of North Carolina, seeking a refund of taxes that it claims to have overpaid. BB & T alleged that it was entitled to tax deductions for rent and interest expenses for the above-described transaction that the IRS disallowed. The district court granted summary judgment in favor of the Government. BB & T Corp. v. United States, 2007 WL 37798, at *12 (M.D.N.C. 2007). The district court concluded that BB & T was not entitled to take deductions for rent because BB & T had not acquired sufficient ownership interest in the Head Lease. Id. at *8. The district court further concluded that the transaction merely created a cycle of off-setting obligations between BB & T and Sodra that, in reality, only required BB & T to expend transaction costs. Id. at *9-10. Finally, the court found that BB & T was not entitled to interest deductions on the grounds that BB & T had not acquired genuine indebtedness because it was "clear that the loan transaction is only a circular transfer of funds in which the [Swedish *978 bank] loan is paid from the proceeds of the loan itself." Id. at *11. BB & T appealed the district court's decision to the Fourth Circuit Court of Appeals. The Fourth Circuit received amicus briefing, including a brief submitted on behalf of a trade association that Key and PNC affiliates are members. Chief Judge Williams wrote the opinion for the court. Former Chief Judge Wilkinson concurred. In a unanimous decision, the Fourth Circuit affirmed the district court in all respects. BB & T Corp. v. United States, 523 F.3d 461 (4th Cir.2008). The Fourth Circuit first concluded that BB & T is not entitled to rent deductions because it did not acquire a genuine property interest in the Equipment. Id. at 472-75. The court found that BB & T failed to carry its burden of showing that it retained "significant and genuine attributes of the traditional lessor [owner] status" under the LILO transaction with Sodra. Id. at 472 (citing Frank Lyon Co., 435 U.S. at 584, 98 S. Ct. 1291). The court noted that every right and duty acquired by BB & T under the Head Lease was instantly returned to Sodra under the sublease during the initial term. Id. at 473. Further, the court concluded that, even though the transaction appears to involve the transfer of millions of dollars in rental payments during this initial period, the only cash that ever flowed between the parties was the approximately $6.2 million "incentive" payment that BB & T paid to bharding@example.com. Id. The Fourth Circuit further decided that the pre-funded fixed purchase option that Sodra could exercise in 2013 gave Sodra the power to "unwind the transaction without ever losing dominion and control over the Equipment or having surrendered any of its own funds to BB & T, and has no economic incentive to do otherwise." Id. Finally, the court noted that the structure of the LILO transaction effectively protects BB & T from any risk of loss of its initial equity investment. The Fourth Circuit ultimately concluded, "In sum, the transaction does not allocate BB & T and Sodra's rights, obligations, and risks in a manner that resembles a traditional lease relationship." Id. at 473. The Fourth Circuit further found that BB & T is not entitled to deduct interest paid on the loan obtained from the Swedish bank because the underlying loan did not qualify as genuine indebtedness. BB & T Corp v. United States, 523 F.3d 461, 475-77 (4th Cir.2008). The court noted that Sodra has no economic incentive in 2013 to decline the fixed purchase option and the exercise of the fixed purchase option would eliminate any obligation on BB & T's part to make further payment on the loan. Id. at 476. The court concluded, "A party simply does not incur genuine indebtedness by taking money out of a bank and then immediately returning it to the issuing bank. This principle holds true even if the bank accepts the bookkeeping responsibility of repaying itself out of the loan proceeds for the duration of the loan." Id. at 477. The Plaintiffs urge this Court to distinguish the BB & T case from this present litigation. First, the Plaintiffs note that the BB & T case involved a LILO transaction, while this case involves a SILO transaction. Second, the Plaintiffs say that the cases are materially different because the Fixed Purchase Option in this case does not represent the only economically feasible option for AWG, whereas the Fourth Circuit concluded that the FPO was the only economically viable choice for Sodra. The Plaintiffs argue that economic ownership of the Facility will certainly transfer if AWG exercises the Service Contract option in 2024. Further, the Plaintiffs argue that, unlike the BB & T transaction, the AWG transaction does not eliminate all *979 risk of economic loss to the Trust. The Plaintiffs say that the Service Contract option in this case has no "hell or high water" guaranteed return, so there is a substantial risk of loss for the Trust because it may lose its whole investment if the Facility is damaged or destroyed. Facts and contract provisions drive any determination regarding whether a transaction sufficiently transfers an ownership interest. Each transaction need be judged on its own conditions. This Court finds that both the facts and legal issues presented by the BB & T case and this present litigation are similar in many regards. First, the structure of the transactions in both cases are remarkably alike. Both included long-term head leases and simultaneous sub-leases back. In this case, the head lease was sufficiently long to qualify as a sale for tax purposes. Both cases involve reciprocal "leases" that leave the original owner in substantially uninterrupted control of the asset through at least the initial lease period. In both cases, the subleases returned nearly all the rights and obligations obtained by the United States taxpayer under the head lease. At the end of the initial sublease period, both Sodra and AWG own an option to repurchase their assets for a fixed price, and this option is fully pre-funded. In the BB & T case, the Fourth Circuit found the exercise of the purchase option was the near-certain result. Here, the option terms and background differ from the BB & T conditions and terms. But after examining the conditions and terms of the AWG option, the Court finds it extremely likely that AWG will exercise the option to repurchase the Facility because it will not be able to obtain the $383 million nonrecourse loan that is required before the Service Contract option may be exercised in 2024. Although not determinative, the Court also finds it very unlikely that AWG exercise the Service Contract option because of political considerations that would flow from that decision. Having concluded that the precedent set by the Fourth Circuit in BB & T is relevant and instructive, although certainly not binding on this Court, the Court will now proceed to analyze the AWG transaction under both the "economic substance" and the "substance over form" doctrines. 2. The Economic Substance of the AWG Transaction The Sixth Circuit has held that the "proper standard in determining if a transaction is a sham is whether the transaction has any practicable economic effects other than the creation of income tax losses. A taxpayer's subjective business purpose and the transaction's objective economic substance may be relevant to this inquiry." Rose, 868 F.2d at 853 (internal citations omitted). The Court therefore first considers whether the transaction has any genuine economic effects other than the creation of tax benefits. If the Court finds some economic effects, then the Court evaluates whether the Plaintiffs were truly motivated by profit to participate in the transaction. See Dow Chem. Co., 435 bharding@example.com. In making this determination, the Court looks to the pre-tax profitability of the AWG transaction. See Am. Electric Power Co. v. United States, 326 F.3d 737, 743-44 (6th Cir.2003) (stating that "the point of the analysis is to remove from consideration the challenged deduction, and evaluate the transaction on its merits, to see if it makes sense economically or is mere tax arbitrage") (internal quotations omitted). A sale-leaseback transaction may have economic substance if an objective assessment at the beginning of the transaction indicates that the taxpayer has a reasonable possibility of generating a pre-tax profit. See, e.g., Levy v. Comm'r, *980 91 T.C. 838, 854 (Tax Ct.1988); Torres v. Comm'r, 88 T.C. 702, 718-19 (Tax Ct.1987); Rice's Toyota World, Inc. v. Comm'r, 752 F.2d 89, 94 (4th Cir.1985). The relevant inquiry for the Court is not whether the taxpayer's predictions regarding the pretax profits are ultimately proven true, but rather whether the projections of cash flow and residual value are reasonable at the time at which the taxpayer enters into the transaction. See, e.g., Levy, 91 T.C. at 858; Torres, 88 T.C. at 719. The taxpayer generally must only show a reasonably expected, minimal pretax profit in order to prove that a transaction has economic substance and is not required to show that its transaction will yield a higher pre-tax return than all other possible investment opportunities. In this case, at closing, the Plaintiffs had an initial outlay of $55 million dollars, excluding transaction costs. During the Initial Leaseback Period, the only money that the Plaintiffs receive is the payment of $1.2 million to PNC in 2000. If AWG exercises the Fixed Purchase Option in 2024, Key and PNC will each receive slightly over $39 million or a total of $78 million on their 24-year investment of $55 million. [Supp. Joint Stip., Doc. 105 at ¶¶ 113, 114.] The internal rate of return serves as one industry standard for measuring pre-tax profitability. David Angel testified that the internal rate of return "is a way of calculating the pre-tax cash flows in the transaction." [Angel Tr., Doc. bharding@example.com.] On average, Key and PNC typically receive internal rates of return between 2.5% and 3.5% on their leveraged lease transactions. [Pl. Ex. 171, Doc. 148-2; Angel Tr., Doc. bharding@example.com.] In comparison, the Plaintiffs will obtain an internal rate of return on the AWG transaction of approximately 3.4% if the 2024 purchase option is exercised. That return is consistent with the internal rate of return that banks generally receive from such deals. [Pl. Ex. 113, Doc. 141-2; Angel Tr., Doc. 178-1 at 90-91; Graves Tr., Doc. bharding@example.com.] The Government's expert, Thomas Lys, similarly testified that the Trust could reasonably expect to earn a pre-tax return of more than 3% during the Initial Leaseback period because the Plaintiffs will collectively gain approximately $80 million more than they spend between 1999 and 2023. [Lys Tr., Doc. bharding@example.com.] In the unlikely event that AWG exercises the Service Contract option, then the Trust's pretax return may exceed 5-8% depending on the business generated by the Facility under the Service Contract. Id. at 916-17. After examining the totality of the circumstances that existed in 1999, the Court concludes that the Plaintiffs could have reasonably expected to make a small, but guaranteed, pre-tax profit that is sufficient to show that the transaction had some "practicable economic effects other than the creation of income tax losses." Rose, 868 bharding@example.com. Having concluded that the AWG transaction was not an economic sham, the Court must now consider whether the partners engaged in the transaction "for the primary purpose of making a profit." Bryant v. Comm'r, 928 F.2d 745, 749 (6th Cir.1991) (citing Rose, 868 F.2d at 853). In evaluating whether the Trust entered into the AWG transaction with the primary goal of making a profit, the Court notes that even "a small chance of making a large profit can support a profit motive." Bryant, 928 bharding@example.com. The Court is convinced that the Plaintiffs were substantially motivated to enter into the AWG transaction by the tremendous tax benefits that they could generate by claiming ownership of the Facility. *981 The Court finds, however, that the Plaintiffs did in fact have a "small chance of making a large profit" in the highly unlikely event that AWG exercises the Service Contract option in 2024. As previously discussed, the Plaintiffs could have reasonably estimated that they would achieve an internal rate of return of more than 5-8% under the Service Contract. In 1999, the Plaintiffs knew that changes in German law supporting waste-to-energy incineration plants, together with the ability to increase tipping fee rates under the Service Contract, supported their belief that they could generate significant profit should AWG enter into the Service Contract in 2024. As will be discussed, the Plaintiffs included requirements in the 1999 Transaction that make a decision by AWG to enter the service contract near impossible. Likely, these requirements were intentionally inserted to force the 2024 exercise of the purchase option. The Court will return to a discussion of these issues. However, absent these disqualifying conditions, there is sufficient evidence to support the existence of a profit motive. Because the Court does not find that the AWG transaction is a complete economic sham, the Court now turns to the "substance over form" analysis to evaluate whether the Plaintiffs are entitled to the depreciation and expenses amortization deductions that they seek as alleged "owners" of the Facility. 3. The Form of the AWG Transaction The Plaintiffs argue that they became the owners of the Facility when the AWG transaction closed on December 7, 1999. Accordingly, the Plaintiffs argue that, as owners of the asset, they are entitled to claim deductions for depreciation and amortization of transaction costs. The Government challenges this position and asserts that the Trust never acquired true ownership of the Facility and that the purported structure of the AWG sale-leaseback transaction does not comport with its true nature as a tax-avoidance financing scheme. In order for the Plaintiffs to prevail on their claim that they are entitled to take depreciation and amortization deductions, they must prove that they both obtained and kept "significant and genuine" characteristics of ownership of the Facility. See Frank Lyon, 435 U.S. at 584, 98 S. Ct. 1291. Such genuine attributes of ownership are generally found only where the alleged owner bears both the burdens and enjoys the benefits of asset ownership. See Coleman v. Comm'r, 16 F.3d 821, 826 (7th Cir.1994). If the partners possess the "benefits and burdens" of ownership, then the Court must respect the form of the AWG sale-leaseback transaction and cannot re-characterize it as a financing arrangement or as the purchase of a future interest. Frank Lyon, 435 U.S. at 569, 583-84, 98 S. Ct. 1291. The Plaintiffs, therefore, must establish that the Head Lease is, in reality, a true sale by AWG to the Trust and that the Trust acquired the significant and genuine attributes of traditional owner status. See id. at 584, 98 S. Ct. 1291. For the following reasons, the Court concludes that the AWG transaction is not properly characterized as a transfer of a depreciable ownership interest in the Facility to the Plaintiffs because: (i) no substantive benefits or burdens of ownership are transferred between the parties during the Initial Leaseback Period; (ii) no significant cash flows between the parties exist during the Initial Leaseback Period; (iii) the AWG transaction creates little, if any, risk for the Plaintiffs throughout the Head Lease; and (iv), most importantly, it is nearly certain that AWG will *982 exercise the Fixed Purchase Option in 2024, thus ensuring that the Plaintiffs never actually acquire economic ownership of the Facility. In sum, the Court concludes that the Trust did not become the owner of the Facility at closing in 1999 and it is highly likely that the Trust never will acquire such ownership under the terms of the AWG sale-leaseback transaction. i. No Benefits or Burdens of Ownership Exchanged Between the Parties The Plaintiffs have failed to show that they enjoy the benefits or carry the burdens of owning a depreciable interest in the Facility. First, nearly every right and duty that the Trust received under the terms of the Head Lease was contemporaneously returned to AWG after the execution of the Leaseback for the 24-year Initial Leaseback period. Under the terms of the Leaseback, between 1999 to 2024, AWG keeps the same benefits and burdens of ownership that it has held since the Facility became operational in 1976. These rights and duties remain unchanged for AWG, despite its apparent "sale" of the Facility to the Trust and the Trust's simultaneous "lease" of the Facility back to AWG. The Plaintiffs and AWG structured the 1999 transaction intending that it not be a sale under German law. The Plaintiffs did not take legal title of the Facility. AWG receives the right to "quiet enjoyment" of the Facility and Plaintiffs are only permitted to inspect the Facility on one calendar day each year. Under the contract, AWG must maintain the Facility and make capital improvements to the Facility at its own expense. Under its sublease, AWG may not sublet the Facility and can only assign its interest in the Facility with the Trust's consent. Additionally, AWG has not treated the 1999 Transaction as a "sale" of the Facility. In its audited financial statements, AWG continues to record the Facility as an asset on its balance sheet. Under German law, the right to take depreciation follows the legal title unless someone else has the right to exclude the legal title holder during the tax useful life of the facility. AWG takes depreciation on the Facility for German tax purposes. In addition to maintaining the rights and benefits of economic ownership of the Facility under German law, AWG remains solely responsible for environmental liabilities related to the Facility. Finally, AWG did not meet any of the regulatory requirements it would have needed to satisfy if it sold the Facility. Under the terms of the AWG transaction, the Trust obtained the right to physically inspect the Facility on one day each year and the right to condemnation proceeds in the unlikely event that the Facility is taken by condemnation during the Initial Leaseback period. Apart from these rights, AWG retained all important ownership interests. Because the transaction also included guarantees by the municipalities and regional German governments, the risk of condemnation was extremely minimal. Under German law, municipalities must dispose of waste and after 2005 such disposal must be done using incineration. Against this backdrop, the Plaintiff offers no explanation why German officials would institute condemnation proceedings. AWG, therefore, retains nearly all attributes of ownership, and the Plaintiffs acquire few such rights or burdens of ownership, during the initial term to 2024. AWG retains legal title to the Facility, possesses the Facility, maintains the Facility, pays all taxes and all costs on the Facility, operates the Facility, and improves the Facility. AWG remains responsible for maintaining insurance coverage, including paying for property damage *983 and environmental liability insurance. AWG continues to retain all profits acquired from tipping fees, as well as the sale of electricity and steam heat, generated by the Facility. Simply described, the Plaintiffs enjoyed almost none of the attributes of ownership during the sublease term to 2024. The record reflects that both the Plaintiffs and AWG structured the deal in this manner to avoid the transfer of any substantive rights or liabilities associated with ownership to the Trust and to ensure that AWG would continue to reap the tax benefits of ownership under German law. AWG itself accurately summarized the relationship between the parties during the Initial Leaseback Period when it informed the German tax authorities of the following: [P]ossession, use, and the obligations will at no time—not even for one legal second—be transferred to the U.S. Trust, if [AWG] exercises the FPO. By entering into the sublease, [AWG] will— if the transaction is consummated as agreed—obtain the incontestable right to use the [Facility] over the duration of the sublease term ... [Joint Ex. 28 (Adv. Tax Ruling Req.), Doc. bharding@example.com.] The Court concludes that the substantive benefits and burdens traditionally associated with asset ownership were not transferred from AWG to the Plaintiffs during the initial sublease leaseback period to 2024. ii. No Cash Flows Between the Parties Second, despite the fact that the structure of the transaction purportedly results in the exchange of hundreds of millions of dollars in purchase payments and subsequent rent payments between the Trust and AWG, the only money that is ever actually exchanged from December 7, 1999 until January 1, 2024 is the $28.5 million received by AWG at closing and the $1.2 million payment to be made from the Equity PUA to PNC on March 7, 2000. [Joint Ex. 46 (PNC Purpose/Transaction Summary), Doc. 166-5 at IRS-ADME0206; Joint Ex. 15(PUA), Doc. 160-5 at IRS-ADM-003183; Joint Ex. 2 (Participation Agreement), Doc. 156; Joint Ex. 9 (Series A PUA), Doc. 159-2 at IRS-ADM-002973; Joint Ex. 10 (Nord LB PUA), Doc. 159-3 at IRS-ADM-002999; Joint Ex. 25 (Closing Funding Mem.), Doc. bharding@example.com.] With the exception of the $1.2 million payment to PNC in 2000, the rent and debt payment schedules throughout the Initial Leaseback Period are identical in both amount and timing. These perfectly off-setting, circular payments from and then back to the German banks strongly indicate that the AWG transaction has little substantive business purpose other than generating tax benefits for the Plaintiffs between 1999 and 2024. AWG has therefore not only continued to use, maintain, and operate the Facility in the exact same way as it did before the AWG transaction, but it also has been able to do so without actually paying any rent to the Trust out of its own pockets. iii. Minimal Risk to the Plaintiffs Under the AWG Transaction Third, the structure of the AWG transaction effectively protects the Plaintiffs from any possible risk of financial loss, including the loss of its initial $55 million equity investment. As the Government's expert, Morris Shinderman, testified at trial, the AWG transaction does not carry any of the substantive credit, residual value, or remarketing risks typically experienced by a lessor in a leveraged lease.[11] *984 The transaction does not carry any substantive credit risk for the Plaintiffs. AWG's purported rent payments were guaranteed by the German banks through the creation of the Debt PUAs and thus the likelihood of any payment default is highly improbable.[12] Further, as mentioned above, the Fixed Purchase Option ensures that the Plaintiffs will receive a small, but guaranteed, return on their 1999 equity investment. Additionally, the transaction has a guaranty from the municipal members of AWG, backed by the German federal government. Even in the unlikely event that AWG were to go bankrupt during the pendency of the relationship, the Plaintiffs are guaranteed a small positive rate of return because the Participation Agreement requires a letter of credit providing credit protection for a specified "termination value." This letter of credit serves as an investment protection, backing up the defeasance accounts and ensuring that the Plaintiffs would be made whole if AWG prematurely terminated the contract. Based on the letter of credit and PUAs, PNC classified the credit risk of the AWG transaction as a "1" on a scale of 1 to 6, with 1 being the lowest possible credit risk to PNC. [Keener Tr., Doc. 178-1 at 355-59; Joint Ex. 46 (PNC Purpose/Trans. Summ.), Doc. 166-5 at IRS-ADM-E0214; Joint Ex. 43 (PNC Risk Rating Grid), Doc. bharding@example.com.] Further, even if there was a default that triggered a termination payment, the Plaintiffs would demand payment from AWG and could liquidate the collateral in the PUAs to meet their debt obligations to the German banks. [Angel Tr., Doc. 178-1 at 166, 234-35; Shinderman Tr., Doc. 178-1 at 1115-16; Joint Ex. 16 (Letter of Credit), Doc. 161-1; Joint Ex. 12 (Guaranty Agreement), Doc. 160-12; Joint Ex. 46 (PNC Purpose/Transaction Summary), Doc. 166-5 at IRS-ADM-E0208, 214; Pl. Ex. 80 (Final Key Credit Package), Doc. bharding@example.com.] The Plaintiffs suggest that they bear remarketing risks. This would be true if it were likely that, in 2024, AWG would choose the service contract rather than the purchase option. However, the Plaintiffs do not carry any substantive remarketing risk under the AWG transaction because, in 2024, AWG will almost certainly reacquire the Facility by exercising the Fixed Purchase Option. The Plaintiffs also do not experience any residual value risk under the AWG transaction. When AWG exercises the Fixed Purchase Option in 2024, AWG will reacquire ownership of the Facility and the Plaintiffs will assume no residual risk. Even in the highly unlikely event that AWG exercises the Service Contract option in 2024, the Plaintiffs are partially insulated from any residual value risk because they will receive an almost guaranteed return on their $55.1 million equity investment through the capacity charges that they will gain under the Service Contract. Under their agreements, the capacity charges need be sufficient to retire all obligations under the substitute loan. The record shows that PNC knew that any possible residual risk would be mitigated *985 by the capacity charges under the Service Contract. [Keener Tr., Doc. 178-1 at 351-53; Shinderman Tr., Doc. 178-1 at 1115, 1117; Def. Ex. DDDDDD (PNC Leasing Presentation), Doc. bharding@example.com.] The fact that the Plaintiffs experience little, if any, substantive risk from the AWG transaction undermines their claim that they acquired a depreciable interest in the Facility on December 7, 1999. See, e.g., Kwiat v. Comm'r, 1992 WL 178603, at *6 (T.C.1992); TIFD III-E, Inc., 459 bharding@example.com. iv. The Fixed Purchase Option Will Be Exercised Most importantly, in 2024, AWG has the ability to reacquire the Facility under the Fixed Purchase Option without ever having lost control or use of the Facility and without being required to expend any of its own money for the purchase. The Court finds that it is highly likely that AWG will exercise this Fixed Purchase Option in 2024, and that the parties intended this result when they closed the AWG deal on December 7, 1999. It is nearly certain that AWG will exercise the Fixed Purchase Option in 2024 because AWG will be financially unable to exercise the Service Contract option and, moreover, AWG will have little economic or political incentive to give up control of the Facility to the Trust under the Service Contract. a) The Fixed Purchase Option is the Only Economically Feasible Choice for AWG First, the Court finds that it will not be economically feasible for AWG to exercise the Service Contract option in 2024 because it will not be able to secure the nonrecourse financing that it is required to obtain as a condition precedent to its ability to enter into the Service Contract. In order to enter into the Service Contract, AWG must first arrange for a non-recourse refinancing of the entire $383 million in non-recourse debt that will still be outstanding in 2024. AWG cannot defease the obligations under the refinanced loan. [Joint Ex. 2, Doc. bharding@example.com.] The requirement that AWG, and not the Trust, must obtain non-recourse refinancing to avoid exercising the fixed purchase option contrasts with the Plaintiffs' argument that they intended to purchase the Facility with the 1999 transaction. According to the Plaintiffs, if AWG does not exercise the purchase option in 2024, the Trust would simply continue its ownership of the Facility and AWG would become a purchaser of services under the Service Contract. The 1999 transaction then requires the purchaser of services, AWG, to obtain a $383 million non-recourse loan for the claimed owner of the Facility, the Trust. The Plaintiff gives no plausible explanation why the purchaser of services, and not the claimed owner of the Facility, should face the burden of obtaining financing if it declines to exercise the Fixed Purchase Option. The Court surmises that the Plaintiffs likely included this refinancing provision in order to effectively force AWG into exercising the Fixed Purchase Option. The Transaction requirement that puts the burden upon AWG to obtain non-recourse financing if it elects the Service Contract in 2024 seems significantly inconsistent with the Plaintiffs' purported ownership of the Facility. This obligation is the functional equivalent to a requirement that a tenant under a lease be required to obtain refinancing for a landlord as a condition to renewing the lease. Apart from the strangeness of requiring a non-owner to obtain difficult financing before that non-owner is permitted to enter a contract that is very favorable to the claimed owner, the refinancing seems impossible. *986 In major part, lenders look to the value of collateral in deciding whether to offer non-recourse financing. Thomas Lys, an accounting professor from the Kellogg School of Management at Northwestern University, testified persuasively that AWG will be compelled to exercise the Fixed Purchase Option in 2024 because it will be unable to obtain the required nonrecourse refinancing of the $383 million loan balance. The Plaintiff's appraiser, Deloitte, estimates that the Facility will be worth $390 million in 2024. Lys testified that, under Deloitte's own projections, AWG would be requesting a non-recourse loan with a loan-to-value ratio of over 98%. If non-recourse financing could be obtained, a provision in the Service Contract requires AWG to make an initial $50 million payment. The true amount of the nonrecourse loan required to enter the Service Contract, therefore, would be $333 million. Even with this payment, however, the loan-to-value ratio of the non-recourse loan that AWG is required to obtain would be in the range of 85%, significantly above what could be obtained. Because the non-recourse loan cannot be legally or economically defeased under the Participation Agreement, any lender would need look to the value of the Facility for repayment in the event of default. Lys testified that it would be practically impossible for AWG to obtain non-recourse financing with such a high loan-to-value ratio. He testified that a 2005 survey of German lending "shows that loan-to-value ratios in Germany range up to 67 percent. But understand, the 67 percent is for perfect asset that has a very high debt capacity." [Lys Tr., Doc. bharding@example.com.] It is unlikely that the AWG Facility could even support a 67 percent loan-to-value ratio. The AWG Facility is "illiquid, unique and has no alternative uses." Id. at 902. Without defeasance or recourse, the Court finds that AWG would not be able to obtain the requisite non-recourse refinancing. The Court therefore concludes that AWG will be compelled to exercise the Fixed Purchase Option in 2024 and that this ultimate outcome was known by the parties to the AWG transaction in 1999. To rebut this, the Plaintiffs say that other Participation Agreement provisions would cause lenders to support a higher loan-to-value ratio. The Plaintiffs argue that the collateral available to a lender in this scenario would include more than just the value of the Facility. They claim that AWG would in fact be able to obtain the requisite non-recourse refinancing in 2024 "based on the expected value of the Facility, the substantial collateral package available at that time, and the short average life of the refinanced debt. The collateral package includes the Trust's interest in the Service Fees, which alone will be sufficient to service the debt on the new loans. The collateral package also includes guarantees by the bankruptcy-remote German Cities." [Pl. Post-Trial Prop. Conc. of Law, Doc. bharding@example.com.] This Court disagrees. The Court has already addressed the fact that the expected value of the Facility, under Deloitte's own projections, will be insufficient for AWG to secure non-recourse financing at a remotely reasonable loan-to-value ratio. Further, the Court notes that the Service Fees under the Service Contract are not to be paid on a "hell or high water" basis. [Joint Stip., Doc. 83-1 at ¶ 102.] This means that, under the Service Contract option, AWG is required to pay Service Fees to the Trust only to the extent that the Trust actually performs the obligations required of it under the Service Contract. If a disruption in service occurs such that AWG's solid waste does not get incinerated by the Facility, *987 then AWG is not required to pay the fees. [Angel Tr., Doc. 178-1 at 208-16; Joint Ex. 13, Doc. 160-3 at IRS-ADM-003105-06, 003114.] Lys logically testified that a lender must evaluate whether to extend non-recourse financing based on an assumption of default by the borrower, which in this case means an assumption that the Facility is no longer operable. In such a case, AWG would not be required to pay Service Fees to the Trust and such fees would not be included in the estimated value of collateral for a lender considering whether to lend AWG a non-recourse loan in 2024. Finally, the Court finds that it is highly unlikely that AWG's municipal shareholders would provide a guarantee of AWG's obligations under the Service Contract to pay Capacity Charges and Service Fees. AWG's procurement of this guarantee is a condition precedent to their ability to enter into the Service Contract and the guarantee must be approved by the county of Dusseldorf. Dr. Matthias Heisse testified at trial that an "obstacle" to entering into the Service Contract would be convincing the German cities of Wuppertal and Remscheid to extend such a guarantee. [Heisse Tr., Doc. bharding@example.com.] Heisse testified that, while the municipalities signed the original guarantee in 1999 because the defeasance accounts protected it from the risk of serious financial loss, the 2024 guarantee would be a much more risky, controversial political and economic choice for the German cities. Heisse testified: A: [I]f you look at the service contract situation, there will be no money in the defeasance account so it will be a real guarantee guaranteeing the service charges and the capacity charges. So this might be a different situation. Q: But are such guarantees, do they happen often? A: Not too often, because the municipalities are limited in their possibility of giving guarantees, and that is in the municipal code. And they have only very limited permission. And in this case, they have to not only report it to the authority, but they also need the consent. And this is to prevent municipalities from going into financial risks, obviously. [Heisse Tr., Doc. bharding@example.com.] The Plaintiffs have not presented sufficient evidence of any incentive that exists for the German municipalities to extend such a high-risk guarantee to AWG in 2024, particularly since such a financial guarantee would be undertaken in order to secure an otherwise politically unpopular decision. As a result, the Court concludes that a lender would only consider the value of the Facility in estimating the collateral available to it in case of default and, based on the analysis presented above, any reasonable lender would be unwilling to lend on a non-recourse basis the amount of funds that AWG would need to enter into the Service Contract. The Court therefore concludes that the Fixed Purchase Option is the only viable choice for AWG in 2024. b) The Fixed Purchase Option is the Economically Dominant Option for AWG Second, the Court finds that, even if AWG were able to obtain the required refinancing, the Service Contract option is not an economically desirable option for AWG. The Plaintiffs argue that AWG will be economically better off under the Service Contract option than under the Fixed Purchase option because, under the Service Contract, in 2024, AWG will directly receive the $521 million cash balance from the PUAs. This Court disagrees. At the outset, the Court notes that under the *988 Service Contract, AWG will be immediately required to pay $50 million in capacity charges in 2024, reducing the actual amount of cash that AWG would receive in 2024 under the Service Contract to approximately $471 million. The 1999 Deloitte report that supported the argument that AWG would likely enter the Service Contract relies upon unsupported assumptions. If the Service Contract is chosen, Deloitte says AWG could deduct capacity and other charges and applies a 40.85% marginal tax rate. This assumption was obviously wrong and significantly overstates the expenses deductible under the Service Contract.[13] The Deloitte report accompanies this error with the inconsistent assumption that the $521 million received from the PUAs would not be taxable in 2024. Obviously, if the $521 million were taxable at 25% it would reduce the after-tax return from entering the Service Contract by over $130 million. In 1999, AWG did not recognize a sale of the Facility under German law and has not recognized any PUA assets on its balance sheet. If AWG exercises the Fixed Purchase Option, it is unlikely that any tax would be imposed. Since AWG is the current economic owner of the Facility under German law, its reacquisition of the Facility will not be treated as a taxable event. On the other hand, it is probable that AWG's receipt of the $521 million in cash under the Service Contract option would be recognized as a taxable event in 2024. Recognizing that no one can predict what the exact German tax rate will be in 2024, Lys utilized a cost benefit analysis to examine AWG's choice in 2024 between the Fixed Purchase and Service Contract options using a variety of different tax rates and concluded that, in all remotely likely scenarios, the FPO will be the economically preferable choice for AWG. Most important to this finding, Lys disregarded Deloitte's unsupported assumption that AWG could deduct $298.7 million from its taxes by using a 40.85 percent tax rate against the $731.2 million in capacity charges that it will pay to the Plaintiff Trust over the 12-year life of the Service Contract. When adjusted to actual or reasonable tax rates, the Service Contract becomes much less economically viable. In general, the fixed price option is more desirable whenever the tax rate is less than 29%. [Def. Gr. 5, Doc. 151-9; Lys. Tr., Doc. bharding@example.com.] Even setting aside the German tax consequences of AWG's decision to enter into the Service Contract in 2024, the Court concludes that the Service Contract will be less economically desirable than the Fixed Purchase Option to AWG. Under the Service Contract, AWG must pay "Capacity Charges" to the Plaintiffs. Deloitte, the Plaintiffs' own appraisers, estimated that over the 12-year Service Contract, AWG will incur additional capacity charges of DM 1.61 billion, or $851.9 million, on top of the operating and maintenance expenses that AWG will also need to pay under the Service Contract. [Pl. Ex. 119 (Appraisal), Doc. bharding@example.com.] Under *989 the Service Contract, AWG will need pay this amount out of their operating funds. The Capacity Charges alone cost AWG $380 million more than the $471 million in cash that it would receive in 2024 under the Service Contract option. In 2024, AWG Directors must therefore choose whether it is better to receive $471 million less any amount paid for taxes when the receipt of that money is conditioned upon their agreement to pay back $851.9 million over twelve years. No evidence identifies what benefit would accompany the 2024 receipt of monies when accompanied by the obligation to pay so much more during the Service Contract. In other words, nothing explains what benefit would flow to AWG from receiving the $521 million attached to an obligation to pay $851.9 million over twelve years. Although neither this Court nor the parties can predict the future, there is sufficient evidence in the record to strongly suggest that AWG will exercise the Fixed Purchase Option. We know that if the fair market value of the Facility in 2024 is less than anticipated, AWG will be more likely to enter into the Service Contract rather than pay the overpriced Fixed Purchase Option amount. But if the value of the Facility has declined significantly below the option price, AWG will almost certainly be unable to obtain the non-recourse refinancing that is a condition precedent to its ability to enter into the Service Contract. If, on the other hand, the fair market value of the Facility in 2024 is greater than anticipated, then AWG will have an economic incentive to repurchase the Facility for the fixed purchase price instead of absorbing all the financing costs created by the Service Contract and waiting until 2036 to reacquire the Facility at fair market value. In sum, AWG will therefore be unable to enter into the Service Contract option when it is desirable to exercise the Service Contact option, and will be unwilling to enter into the Service Contract option when it is feasible to exercise the Service Contract option. Third, in addition to the lack of financial incentives for AWG to exercise the Service Contract option, the Court finds that AWG's decision to enter into the Service Contract would also be politically unpopular. In 2024, the German bureaucrats and politicians who control AWG's decision will likely choose the Fixed Purchase Option. If the German politicians exercise the Service Contract option in 2024, they will essentially be turning over control of the plant to an independent third party service provider that will be chosen by the U.S. Trust. Under the terms of the Service Contract, AWG will become a mere customer of the Facility, instead of the owner, and will be required to pay very significantly increased Capacity Charges together with operation and maintenance costs. AWG will likely need to substantially increase the tipping fees that it charges to the voters who elect the politicians that comprise AWG and to its neighbors for the disposal of their solid waste. The Plaintiffs say that the German politicians who control the municipalities that own AWG would have an incentive to enter into the Service Contract because they would receive a "free" $521 million in cash in 2024 that they could use for any purpose. The Court has already explained that AWG will not actually receive this sum because AWG is required to repay $50 million immediately and will also likely be expected to pay significant taxes on this $471 million. Further, the amount of cash received in 2024 will likely be overshadowed by the costs and expenses incurred by AWG under the Service Contract. Even assuming that AWG receives a significant amount of "free" cash in 2024, *990 however, the Court concludes that the Service Contract option will likely be politically unpopular. For all of these reasons, the Court finds that AWG will exercise the Fixed Purchase Option in 2024. Further, the Court finds that the Plaintiffs were virtually certain of this outcome when they closed the AWG transaction on December 7, 1999. v. The Substance, Not the Form, of the AWG Transaction Must Control In sum, the AWG transaction does not allocate the rights, responsibilities, and risks between AWG and the Plaintiffs in a way that resembles a traditional sale. Further, as in the BB & T case, the Plaintiffs here have "failed to show any `business or regulatory realities' that `compelled or encouraged' the structure of the transaction at issue here, nor has it established that its [SILO] is `imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.'" BB & T Corp. v. United States, 523 F.3d 461, 473 (4th Cir.2008) (internal citations omitted). Accordingly, this Court concludes that, in reality, the AWG transaction is a financing arrangement designed in significant measure to increase tax deductions available to the Plaintiffs. The AWG transaction was is not a genuine sale and leaseback. Essentially all that the Trust did was to pay AWG a $28.5 million accommodation fee to sign paperwork meeting the formal requirements of a sale and leaseback and to arrange a circular and largely meaningless flow of cash from and then back to Norddeutsche Landesbank and Landesbank Baden-Wurttenburg. AWG, meanwhile, continues to have undisturbed and uninterrupted possession and control of the Facility, continues to claim the tax benefits of ownership of the Facility under German law, and has no economic or political motivation to give up control of the plant to the Plaintiffs at any time. Because the Plaintiffs never became the true owners of the Facility, they are not entitled to deductions for the depreciation or amortization of expenses associated with the asset. C. Entitlement to Interest Deductions: The Genuineness of the Underlying Debt The Plaintiffs also argue that they are entitled to deduct interest paid or accrued on the 1999 Series A and Series B Loans from their reported taxable income on their returns for the Taxable Years under 26 U.S.C. § 163(a). The Government opposes this asserted tax position and contends that the loans at issue are not genuine debts because they lack a business purpose other than the creation of tax benefits and they consist solely of "loop debt" in which the loan proceeds are used solely for the purpose of paying the purported debt. 26 U.S.C. § 163(a) provides that "[t]here shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness." 26 U.S.C. § 163(a). The Supreme Court has generally defined "interest" as "compensation for the use or forbearance of money." See, e.g., Comm'r v. Nat'l Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 145, 94 S. Ct. 2129, 40 L. Ed. 2d 717 (1974) (internal citation omitted). In order for a taxpayer to take such a deduction, however, the underlying debt on which the interest is paid must be genuine. Bridges v. Comm'r, 325 F.2d 180, 184 (4th Cir.1963). See also Goldstein v. Comm'r, 364 F.2d 734, 742 (2nd Cir.1966), cert. denied, 385 U.S. 1005, 87 S. Ct. 708, 17 L. Ed. 2d 543 (1967) (holding "Section 163(a) does not `intend' that taxpayers should be permitted deductions for interest paid on debts that were entered *991 into solely in order to obtain a deduction"). In deciding whether economic advances made to a corporation are true debt, courts must consider "whether the objective facts establish an intention to create an unconditional obligation to repay the advances." Indmar Products Co. v. Comm'r, 444 F.3d 771, 776 (6th Cir.2006) (citing Roth Steel Tube Co. v. Comm'r, 800 F.2d 625, 630 (6th Cir.1986)). The Sixth Circuit has embraced the Second Circuit's definition of "debt" for tax purposes as: [A]n unqualified obligation to pay a sum certain at a reasonably close fixed maturity date along with a fixed percentage in interest payable regardless of the debtor's income or lack thereof. While some variation from this formula is not fatal to the taxpayer's effort to have the advance treated as a debt for tax purposes,... too great a variation will of course preclude such treatment. The question becomes, then, what is "too great a variation"? Indmar Products, 444 F.3d at 776 (citing Gilbert v. Comm'r, 248 F.2d 399, 402-03 (2nd Cir.1957)) (internal quotation marks omitted).[14] In Roth Steel, the Sixth Circuit established several non-exhaustive factors to consider in evaluating whether an economic advance constitutes debt or equity. These factors include: (1) the names given to the instruments, if any, evidencing the indebtedness; (2) the presence or absence of a fixed maturity date and schedule of payments; (3) the presence or absence of a fixed rate of interest and interest payments; (4) the source of repayments; (5) the adequacy or inadequacy of capitalization; (6) the identity of interest between the creditor and the stockholder; (7) the security, if any, for the advances; (8) the corporation's ability to obtain financing from outside lending institutions; (9) the extent to which the advances were subordinated to the claims of outside creditors; (10) the extent to which the advances were used to acquire capital assets; and (11) the presence or absence of a sinking fund to provide repayments. Indmar Products, 444 F.3d at 777 (citing Roth Steel, 800 F.2d at 630). In considering the Roth Steel factors, the Sixth Circuit has explained that "[n]o single factor is controlling; the weight to be given a factor (if any) necessarily depends on the particular circumstances of each case." Indmar Products, 444 bharding@example.com. The Plaintiffs say that they are entitled to tax deductions for the interest paid on the Series A and Series B Loans because the non-recourse loans constitute genuine indebtedness for federal tax purposes. The Plaintiffs argue that Deloitte appraised the fair market value of the Facility in 1999 at $423 million and that this fair market value of the asset serving as collateral exceeds the total amount of debt, which was approximately $368 million, in 1999. The Plaintiffs also say that the fair market value of the Facility will likely *992 exceed the amount of the debt at all times during the duration of the loan. The Court agrees with the Plaintiffs that the fair market value of the Facility will likely exceed the amount of the outstanding debt during the initial sublease period, but finds that this issue is not dispositive in its consideration of whether the Series A and B Loans were genuine debts. The Court has already concluded that the Plaintiffs did not purchase economic ownership of the Facility in 1999, and the Court finds that the Plaintiffs' emphasis on the relationship between fair market value of the asset and the amount of debt incurred focuses too narrowly on whether the German banks' initial decision to lend the Plaintiffs money was rational. Rather, the real issue that the Court must examine is whether the Plaintiffs' obligation on the debt was genuine. As to this dispositive issue, the Plaintiffs assert that the debt that they allegedly incurred under the Series A and Series B loans constitutes genuine indebtedness under the Sixth Circuit's Roth Steel test because (1) the Series A and B Loans are evidenced by debt instruments, the Loan Certificates, and were issued in registered form; (2) the Series A and B Loans have a fixed maturity date and a specified principal amortization schedule; (3) the Loans are governed by a specified, fixed interest rate; and (4) the Loans are not subordinated to the claims of outside creditors. The Court agrees that the Series A and B Loans satisfy these four factors under the Roth Steel analysis. The Court finds, however, that the Roth Steel factors are inconclusive in determining whether the Series A and B Loans constitute genuine indebtedness for federal tax purposes. Some of the Roth Steel factors are entirely inapplicable to the present case due to the sale-leaseback nature of the transaction. Others weigh heavily against a determination that the Loans constitute true debt. For example, the Sixth Circuit has instructed courts to look to the source of repayment as an important consideration in evaluating whether an advance constitutes a debt for tax purposes. Indmar Products, 444 bharding@example.com. This factor weighs heavily against judicial treatment of the Series A and B Loans as genuine debt. The source of repayments on the Series A and B Loans are the proceeds of the Series A and B Loans themselves. The entire AWG transaction is structured to ensure that the Debt PUAs, fully funded by the proceeds of the Loans, are used to repay the Loans. In Indmar Products, the Sixth Circuit explained that "[r]epayment can generally come from `only four possible sources ...:(1) liquidation of assets, (2) profits from the business, (3) cash flow, and (4) refinancing with another lender.'" Id. at 781 (citing Bordo Products Co. v. United States, 201 Ct. Cl. 482, 476 F.2d 1312, 1326 (1973)). In this case, however, the true source of repayment of the Loans are the Loans. The Plaintiffs' own assets, profits, and cash flow have no bearing on the repayment of the Loans. At closing, the Plaintiffs did not need to provide any funds for repayment of the Loans and, during the entire initial lease period, every singe one of their principal and loan payments will be made from the Debt PUA accounts and will require no additional expenditure.[15] *993 Even in the highly unlikely event of default by the Debt PUAs, the Plaintiffs will still not be obligated to use their own funds to repay the Series A and Series B Loans. In the event of default, the Series B Loan is extinguished by a matching deposit and AWG will become the holder of the Series A Loan Certificates. [Joint Ex. 2, Doc. bharding@example.com.] If AWG becomes the holder of the Series A Loan Certificates, AWG cannot set off rent payable by it under the Leaseback against debt service owed to it on the Series A Loan. Id. Should the PUAs go bankrupt, therefore, the Series A Loan will remain in existence, but the borrower will no longer be the Trust; rather, the burden of repayment will be carried solely by AWG. In such a situation, AWG would remain liable to the Plaintiffs for amounts owed as "rent" during the initial sublease period. [Joint. Ex. 9 (Series A PUA), Doc. 159-2 at IRS-ADM-002974-75; Joint Ex. 10 (Nord LB PUA), Doc. bharding@example.com.] In considering the totality of the circumstances and issues presented by this uniquely structured SILO transaction, the Court concludes that several other factors should be considered in evaluating whether the Series A and B Loans constitute genuine indebtedness. First, the Court notes that the funds acquired through the Series A and B Loan were contractually dedicated to one purpose: paying off the Series A and B Loans. In reality, the German banks "loaned" the Plaintiffs money on a non-recourse basis. The Plaintiffs then immediately gave these funds to AWG at closing as the "price" of the Head Lease. AWG then "paid" the German banks as consideration for their undertaking of AWG's "rent" obligations under the PUAs. All of these transactions occurred instantaneously and, therefore even if this Court were to accept the form of the structure, the cash flows were circular and the funds never truly left the hands of the German banks. Moreover, as the Court has already concluded that the Plaintiffs did not become the economic owners of the Facility in 1999 for federal tax purposes, the Plaintiffs did not use the loans to acquire ownership of a capital asset. By the terms of the Participation Agreement, the funds in the PUAs are committed to the payment of the offsetting "rent" and "loan" payments during the initial sublease period. The circular cash flows of the AWG transaction mean that neither the Plaintiffs nor AWG will ever be able to use the Series A and B Loan funds to invest in the Facility or to engage in any other economically productive endeavor. The loans at issue lack any substantive business purpose other than creating this "loop debt" between the Plaintiffs, AWG, and the German banks to generate tax benefits for the Plaintiffs. The structure and intended use of the Series A and B Loans in this case is remarkably similar to the loan at issue in the BB & T case. In BB & T, the taxpayer argued that it was entitled to interest deductions for the loan it acquired from a Swedish bank (the "HBU Loan") because, under the terms of its Loan and Security Agreement, BB & T has a legal obligation to repay the loan. The Fourth Circuit strongly disagreed. *994 First, the court remarked that "it is difficult to see how the `interest' BB & T paid could represent `compensation for the use or forbearance of money.'" BB & T Corp., 523 bharding@example.com. As in our case, the funds that the Swedish bank "loaned" the taxpayer were immediately returned to it at closing and placed into a Debt PUA account that was untouchable by the taxpayer. Second, the Fourth Circuit noted that the fact that BB & T signed loan documents was insufficient to prove that the underlying debt was truly genuine because the court must consider the economic realities and true substance, not form, of the transaction. Id. The Fourth Circuit concluded that the HBU loan did not constitute genuine indebtedness for federal tax purposes. The court explained that BB & T, in reality, incurred no obligation to repay the HBU loan because the source of repayment under the terms of the transaction was the Debt PUA account, fully funded by the proceeds of the HBU loan itself. The Fourth Circuit reached this conclusion even in light of a provision in the BB & T transaction documents that BB & T would need make the final loan payment if Sodra were to exercise the Replacement Lease option or the Return option in 2013. Id. The AWG transaction contains no such provision personally obligating the Trust to make any future payment on behalf of AWG. Finally, the Fourth Circuit concluded: A party simply does not incur genuine indebtedness by taking money out of a bank and then immediately returning it to the issuing bank. This principle holds true even if the bank accepts the bookkeeping responsibility of repaying itself out of the loan proceeds for the duration of the loan. See Bridges v. Comm'r, 39 T.C. 1064, 1077, aff'd 325 F.2d 180 (4th Cir.1963) (concluding that a transaction "merely provided the `facade' of a loan," as "there was no reason to think that [the taxpayer] ... would have been called upon to pay the note out of his own funds or to put up additional collateral"). BB & T Corp., 523 bharding@example.com. This Court agrees with the Fourth Circuit's analysis in BB & T and concludes that the Plaintiffs are not entitled to deductions under § 163(a) for interest paid or accrued on the Series A and B Loans. The underlying loans do not constitute genuine indebtedness because the Plaintiffs, at no point in time, will be required to use their own funds to repay the debt to the German banks. Rather, the Plaintiffs craftily structured an entirely self-sustaining transaction in which the Series A and B Loans' proceeds would be used to pay for the Series A and B Loans' debt. In the highly unlikely event that the Debt PUA accounts would go bankrupt before the balance of the Loans had been paid off, the Plaintiffs structured the transaction to ensure that AWG would be the only party to pay for such an unexpected wrinkle in the transaction. The Plaintiffs never, at any point in time or under any circumstances, will actually be required to expend one dollar towards the repayment of the Series A and Series B Loans. In light of such a transaction so clearly designed to generate tax deductions and without any other business purpose, the Court denies the Plaintiffs' claim that they are entitled to tax deductions for interest allegedly paid or accrued on the loop debt created by the Series A and B Loans. D. The Government's Imposition of Accuracy-Related Penalties In this TEFRA partnership proceeding, the Court considers the applicability of accuracy-related penalties that have been asserted by the IRS against the *995 Plaintiffs. 26 U.S.C. §§ 6221, 6226(f). The Government bears the burden of production on the issue of the applicability of penalties, but the Plaintiffs carry the ultimate burden of proof in challenging such penalties. Pahl v. Comm'r, 150 F.3d 1124, 1131 (9th Cir.1998). In this case, the IRS asserted that a penalty for substantial understatement of tax attributable to the Trust's treatment of the AWG transaction was proper under § 6662. An understatement of income tax, which is generally considered the difference between the amount of tax reported by a taxpayer on a return and the accurate amount of tax actually due, is "substantial" if it exceeds the greater of (1) 10% of the tax that should have been shown on the return, or (2) $5,000 (or in the case of corporations, $10,000). 26 U.S.C. § 6662(d)(1). In determining whether an understatement exists, the Court must engage in a purely computational analysis. 26 U.S.C. § 6662(a) establishes accuracy-related penalties for such substantial understatements of tax in "an amount equal to 20 percent of the portion of the underpayment to which this section applies." 26 U.S.C. § 6662(a). The amount of an understatement, however, must be reduced by any part of it that is attributable to the taxpayer's good faith reliance on substantial authority for such treatment. § 6664(c)(1) provides, "No penalty shall be imposed under section 6662 or 6663 with respect to any portion of an underpayment if it is shown that there was a reasonable cause for such portion and that the taxpayer acted in good faith with respect to such portion." 26 U.S.C. § 6664(c)(1). In this case, even though 26 U.S.C. § 6221 provides that the applicability of any accuracy-related penalty shall be determined at the partnership level, the Plaintiffs say that the computation of any "substantial understatement" of tax liability for purposes of the accuracy-related penalty under § 6662 must be done at the partner-specific level. The Plaintiffs say that certain defenses to tax-related penalties, such as the reasonable cause defense, rely upon the acts of the individual partners and are not partnership items within the scope of this case. The Plaintiffs conclude that any such partner-level defenses may only be raised in a separate refund action under Treas. Reg. §§ 301.6221-1(c), (d). The U.S. Court of Federal Claims recently addressed the issue of whether the reasonable cause defense to the imposition of accuracy-related penalties may be properly asserted at the partnership-level in a TEFRA proceeding. Jade Trading, LLC v. United States, 80 Fed. Cl. 11 (Fed.Cl. 2007). In that case, the court explained that partner-level defenses to any accuracy-related penalty relating to the adjustment of a partnership item cannot be litigated at the partnership level. Id. at 59. To this effect, Treasury Regulation § 301.6221-1(d) provides: Partner-level defenses to any penalty... that relates to an adjustment to a partnership item may not be asserted in the partnership-level proceeding, but may be asserted through separate refund actions following assessment and payment.... Partner-level defenses are limited to those that are personal to the partner or are dependent upon the partner's separate return, and cannot be determined at the partnership level. Examples of these determinations are ... section 6664(c)(1) (reasonable cause exception)... Treas. Reg. §§ 301.6221-1(d). The Treasury regulation thus establishes that the reasonable cause defense is an example of a partner-level defense *996 against accuracy-related penalties that should be asserted in a later partner-level refund suit, not in the TEFRA proceeding itself. Despite the seemingly conflicting statutory language of § 6444, which prohibits the application of penalties where a taxpayer has reasonable cause for his understatement, and § 6221, which provides that the "applicability of penalties" relating to "partnership items" shall be decided at the partnership-level, the Jade Trading court concluded that individual partners should reserve their reasonable cause defenses for subsequent partner-specific proceedings. Jade Trading, 80 Fed.Cl. at 59. This Court agrees. The Court acknowledges that this administrative procedure may be "burdensome" to the taxpayer-partners as the partners must pay any asserted accuracy-related penalty at the conclusion of the TEFRA partnership proceeding without having first asserted their defenses. Id. In reaching this conclusion and upholding the validity of the Treasury regulation, however, the Court of Federal Claims explained: The regulation does not deprive a taxpayer from ever being able to show reasonable cause it merely delays the adjudication of that defense until the partner-level proceeding, recognizing that the reasonable cause defense may differ from partner to partner depending upon individual circumstances. The individual partners may still avail themselves of section 6664's protection and defeat the penalties if they can show the requisite reasonable cause and good faith. This is consistent with TEFRA's purpose of litigating all common partnership items at the partnership-level and deferring the unique individual defenses to the partner-level proceeding. Jade Trading, 80 Fed.Cl. at 59-60. See also Stobie Creek Investments, LLC v. United States, 2008 WL 852821, 101 A.F.T.R.2d XXXX-XXXX, at XXXX-XXXX (Fed. C1.2008) (reemphasizing the "two-tiered structure" of TEFRA proceedings). The Treasury regulations, therefore, "do not allow for binding determinations of partner-level defenses until they are presented at the partner level." Id. Here, the Court concludes that the Trust has not presented a partnership-level reasonable cause defense. The Trust took an "all-or-nothing" stance at trial regarding the propriety of its tax treatment of the AWG sale-leaseback transaction and did not present any evidence in support of a reasonable cause defense on behalf of the Trust. Because the Trust has not carried its burden of proving a defense, the Court must therefore sustain the applicability of the accuracy-related penalties to the partnership's tax returns. The individual partners, however, may each be able to prove a reasonable cause defense in a subsequent partner-level refund action under Treas. Reg. §§ 301.6221-1(d). Nothing in the Court's opinion should be construed to foreclose such a possibility for the individual Plaintiffs. E. Original Issue Discount (OID) In its Final Partnership Administrative Adjustment ("FPAA"), the IRS concluded that the Plaintiffs had failed to report original issue discount ("OID") income in the amount of $12,167,086 for the Taxable Years. In their post-trial findings of fact and conclusions of law, the Plaintiffs vaguely argue that the OID income was improperly asserted in this case and that, even if some OID income should have been imposed, the IRS grossly overstated the amount. Original issue discount "results when a [debt instrument] is issued for less *997 than its face value. The discount, which compensates for a stated interest rate that the market deems too low, equals the difference between a [debt instrument]'s face amount (stated principal amount) and the proceeds, prior to issuance expenses, received by the issuer." Matter of Pengo Industries, Inc., 962 F.2d 543, 546 (5th Cir.1992) (citing LTV Corp. v. Valley Fidelity Bank & Trust Co. (In re Chateaugay Corp.), 961 F.2d 378, 380 (2nd Cir. 1992)). A debt instrument typically has original issue discount interest when the instrument is issued to a taxpayer "for a price that is less than its stated redemption bharding@example.com. OID is the difference between the stated redemption price at maturity and the issue price." IRS Publication 550, Investment Income (2007), http://www.irs.gov/publications/p550/ch01. html# d0e2840. OID, therefore, is a type of interest and must generally be included in a taxpayer's reported income as it accrues over the duration of the debt instrument. Id. In this case, original issue discount income only will arise if the underlying SILO transaction is re-characterized as a "loan" from the Trust to AWG. In support of this position, the Government says that the Equity PUA is, in reality, a debt owed by AWG to the Plaintiffs because it represents an "unconditional obligation that Plaintiffs will receive a sum certain (i.e., the return that the Equity PUA guarantees to provide in 2024)." [Govt. Rebuttal Br., Doc. 123 at 6, n. 5.] The Government says that the Plaintiffs will collect that fixed amount directly from AIG if the Fixed Purchase Option is exercised in 2024, or out of the equity portion of the Capacity Charges if the Service Contract option is exercised. In the FPAA, the Government thus allocated the Plaintiffs' resulting OID income, which is the difference between the Plaintiffs' original "equity" investment and the amount that is payable by AWG under the Service Contract, annually over the 24-year duration of the Equity PUA under 26 U.S.C. §§ 1271, 1272. In their post-trial briefs, the Plaintiffs vaguely challenge this conclusion and assert that, because the underlying SILO transaction was not a "debt" owed by AWG to the Trust, the application of any original issue discount income to the Plaintiffs is improper. Alternatively, the Plaintiffs say that, if the Court determines that the imposition of OID income is valid, the amount of income asserted by the IRS in the FPAA is overstated. The Court, however, finds that the Plaintiffs have waived their argument with respect to their challenge of the original issue discount income. The Plaintiffs bear the burden of proving the correct amount of their tax liability. See Dow Chem. Co. v. United States, 435 F.3d at 599 (citing INDOPCO, Inc. v. Comm'r, 503 U.S. 79, 84, 112 S. Ct. 1039, 117 L. Ed. 2d 226 (1992)). The Plaintiffs briefly mentioned the OID income issue in their complaint, but then failed to raise or discuss the issue in their pre-trial briefs or proposed findings of fact and conclusions of law. The Plaintiffs offered no evidence and presented no testimony at trial regarding the issue of OID income. The Plaintiffs did not argue the merits of the issue in their post-trial briefs. The record before this Court is substantively insufficient with respect to the OID income question. As the Government correctly notes, the Plaintiffs' vague attempt to briefly litigate the issue in their posttrial findings of fact and conclusions of law is insufficient to meet their burden of proving the correct amount of tax liability. The Court therefore sustains the IRS's determination that the Trust should have reported additional original issue discount *998 income on their tax returns for the Taxable Years. VI. Conclusion For the reasons stated above, the Court SUSTAINS the IRS's determination that the Plaintiffs' asserted tax benefits relating to the AWG transaction are improper. The Court therefore DENIES the Plaintiffs' claimed depreciation deductions under 26 U.S.C. § 168, interest expense deductions under § 163(a), and amortization of transaction costs deductions. The Court also SUSTAINS the IRS's imposition of accuracy-related penalties at the partnership level for substantial understatement of tax liability under 26 U.S.C. § 6662(a). IT IS SO ORDERED. NOTES [1] In this opinion and order, the Court uses hyperlinks to cite to briefs and exhibits on the electronic case docket. This electronic filing system, known as CM/ECF, is accessible to any registered user through the U.S. District Court for the Northern District of Ohio website. [2] Leveraged leasing is a well-established type of asset-based financing. [Hurd Tr., Doc. bharding@example.com.] In 1976, the Financial Accounting Standards Board authorized leveraged lease accounting methodology. Leveraged lease accounting standards are found in Financial Accounting Standards Number 13 ("FAS-13"). FAS-13 comprehensively addresses lease accounting for both lessors and lessees. [Hurd Tr., Doc. 178-1 at 602, 611.] Under principles of leveraged lease accounting, a lessor's investment is reported net of non-recourse debt. By reporting only the lessor's equity investment, therefore, this accounting method improves the investor's return on assets and equity compared to ether non-leveraged lease transactions. Id. at 603-04, 610. [3] In 1999, the shares of AWG were owned as follows: Wuppertaler Stadtwerke WSWAG (Public Utilities) (70.47%); Stadtwerke Remscheid GmbH (24.97%); Stadtwerke Velbert (4.50%); Stadt of Wuppertal (0.03%); and Stadt of Remscheid (0.03%). [Joint Stip., Doc. 83-1 at ¶ 34.] [4] For example, Key engaged in 37 LILO transactions between 1996 and 1999, many of which were cross-border. One of these LILO transactions, called the "TAD" transaction, involved a German waste-to-energy facility. [Angel Tr., Doc. 178-1 at 59, 253; Joint Ex. 56 (Leveraged Lease Portfolio Rep.), Doc. bharding@example.com.] Today, all of PNC's leases in Europe and Asia are structured as either LILOs or SILOs. [Keener Tr., Doc. bharding@example.com.] [5] Key and PNC paid Duke $162,800 for this review. [Joint Stip., Doc. 83-1 at ¶ 52.] [6] With regard to the market comparable methodology, Deloitte improperly compared companies and failed to adjust those companies' Earnings Before Interest, Taxes, Depreciation, and Amortization ("EBITDA") for one-time events. Also, Deloitte failed to use readily available information on AWG's EBIDA. Deloitte's use of an estimated EBITDA instead of the actual EBITDA also causes the cash flow valuation to be unreliable. [7] Deutschmark to U.S. dollar calculations based on the DM 1.89 to 1 USD exchange rate in 1999. [8] Despite the fact that the Head Lease has a term of 75 years, the Facility's estimated remaining useful life was only valued at 46 years in 1999. [Joint Stip., Doc. 83-1 at ¶ 74.] The Head Lease also contains a provision stating that if the actual economic useful life of the Facility is ever deemed to be longer than 75 years, then the term of the Head Lease is automatically extended to be 125% of the new expected useful life of the Facility. Id. at ¶ 75; Joint Ex. 4, Doc. bharding@example.com. [9] In 1999, AWG's home currency was the Deutschmark. All amounts payable under the Leaseback, including rent, Termination Value, and the Fixed Purchase Option price of $521 million (if exercised), are required to be paid by wire transfer in U.S. dollars. [Joint Ex. 6, Doc. bharding@example.com.] [10] If the AWG transaction was treated as a sale under German law, there would have been significant tax, regulatory, and legal consequences. For example, the Plaintiffs would have incurred substantial potential liability and regulatory obligation under German law. [Heisse Tr., Doc. 178-1 at 1024; Jacob Tr., Doc. 178-1 at 713; Schweiss Tr., Doc. bharding@example.com.] [11] Shinderman testified, in relevant part, at trial: "[I]n my judgment, the credit risk has been mitigated by the defeasance. In my judgment, the remarketing risk at the end of the lease term has been mitigated by the need to enter into the purchase option or into the service contract ... The residual value risk has also been taken care of by either the purchase option or the service contract. The residual value risk in my judgment doesn't exist at the end of the lease term. [Shinderman Tr., Doc. bharding@example.com.] [12] Key knows of no PUA providers that have ever gone bankrupt. [Angel Tr., Doc. 178-1 at 221; Meilman Tr., Doc. 178-1 at 526; Shinderman Tr., Doc. bharding@example.com.] [13] Plaintiff's German tax law expert, Werner Jacob testified: Q. And I would like to direct your attention to 1999 and what you knew in 1999 about corporate taxes and what the parties to this transaction therefore would know. A. Yes. I think in 1999, too, there were good reasons to believe that the tax would not be 25 percent ... They [corporate tax rates] went down in consecutive steps until in 1999 it was announced that tax would be lowered to-tax rate to 25 percent, and at the time being we're at 15 percent. [Jacob Tr., Doc. bharding@example.com.] [14] This Court recognizes that non-recourse debt may be considered genuine indebtedness for tax purposes if it meets the other generally accepted criteria for genuine debt. See Crane v. Comm'r, 331 U.S. 1, 67 S. Ct. 1047, 91 L. Ed. 1301 (1947). Several Circuit courts and IRS regulations indicate that non-recourse debt may be respected as true indebtedness if, at the time that the economic advance is made to the taxpayer, the fair market value of the asset securing the loan exceeds the amount of the debt. See Odend'hal v. Comm'r, 748 F.2d 908 (4th Cir.1984); Estate of Franklin v. Comm'r, 544 F.2d 1045 (9th Cir.1976); Pleasant Summit Land Corp. v. Comm'r, 863 F.2d 263 (3rd Cir.1988); Gibson Products Co. v. United States, 637 F.2d 1041 (5th Cir.1981); Rev. Rul. 77-110, 1977-1 C.B. 58; Rev. Rul. 78-29, 1978-1 C.B. 62. [15] The Court notes that while the terms of the Participation Agreement give AWG the basic right to seek undefeased refinancing of the Series A and B Loans during the initial lease period, the Plaintiffs indisputably have the right to veto any attempted refinancing by claiming that the terms would in some way be less favorable to them. In fact, the Participation Agreement contains seventeen conditions precedent that AWG must satisfy in order to exercise its right to refinance. [Joint Ex. 2, Doc. bharding@example.com.] Further, even in the highly unlikely event that AWG could satisfy all of these conditions, AWG would still be required to pay a prohibitively costly "Make Whole Amount" to the German banks on the date of refinancing that would include any outstanding principal and the German banks' entire expected return from the Loans, discounted at the then-current U.S. Treasury rate. See Joint Ex. 8, Doc. 159-1 IRS-ADM-002918; Shinderman Tr., Doc. 178-1 at 1119; Angel Tr., Doc. bharding@example.com.

162 Ariz. 251 (1989) 782 P.2d 727 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Patricia WILSON and John Doe Wilson, her husband; and Michael Wilson, son of Patricia Wilson, Defendants-Appellees. No. CV-89-0071-PR. Supreme Court of Arizona, En Banc. October 12, 1989. Jones, Skelton & Hochuli by Ronald W. Collett and Kevin D. Neal, Phoenix, for plaintiff-appellant. Kunz & Waugh, Ltd. by Richard M. Waugh, Phoenix, for defendants-appellees. Tully & Wezelman, P.C. by John L. Tully, Tucson, for amicus curiae Arizona Trial Lawyers Association. FELDMAN, Vice Chief Justice. Michael Wilson (Wilson) petitions us to review a court of appeals' opinion holding the underinsured motorist provisions (UIM) in his automobile policy did not cover a punitive damage award. See State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 247, 782 P.2d 723 (Ct.App. 1989). Wilson claims a conflict in Arizona law exists on this issue because division two of the court of appeals had previously construed an identical clause in an uninsured motorist (UM) provision to extend such coverage. See State Farm Fire & Cas. Co. v. Wise, 150 Ariz. 16, 721 P.2d 674 (Ct.App. 1986). We granted review to resolve the conflict. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. I. FACTS AND PROCEDURAL HISTORY The facts are undisputed. On June 12, 1983, Wilson was injured in a collision with a drunk driver. He sued the driver and obtained a judgment for $5,000 compensatory and $20,000 punitive damages. The driver's insurance company paid the compensatory damages award but refused to pay punitive damages, claiming the policy expressly excluded punitive damages from its liability coverage. Wilson then demanded that State Farm Mutual Automobile Insurance Co. (State Farm), his insurer, pay the punitive damage award under the UIM coverage contained in his policy. State Farm sought *252 declaratory relief, requesting that the court find its policy did not provide such coverage. The UIM endorsement provides: We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance, or use of an underinsured motor vehicle. (Emphasis in original). The policy states bodily injury "means bodily injury to a person and sickness, disease or death which results from it." (Emphasis in original). The policy also contains the following provisions: Deciding Fault and Amount Two questions must be decided by agreement between the insured and us: 1. Is the insured legally entitled to collect damages from the owner or driver of an underinsured motor vehicle; and 2. If so, in what amount? Payment of Any Amount Due We will pay any amount due: 1. to the insured; ... (Emphasis in original). A separate section of the policy specifically outlines when UIM coverage does not apply; there is no exclusion for payment of punitive damages. Thus, the applicable insuring portion of the policy covers only damages "for bodily injury," while the provision governing damage assessment provides for payment of all damages that may be due the insured. The words used do, indeed, present us with two apparently reasonable but conflicting interpretations. See Restatement (Second) of Contracts §§ 207 and 208. Wilson argued that the ambiguity in the policy language required judgment against State Farm and, furthermore, that Wise controlled. On cross-motions for summary judgment, the trial court ruled that State Farm, Wilson's insurer, was liable to pay the punitive damages award assessed against the tortfeasor. State Farm appealed and the court of appeals reversed. Having granted the petition for review, we must decide whether coverage for punitive damages assessed against the tortfeasor is within the protection afforded by Wilson's UIM coverage. II. DISCUSSION A. Court of Appeals Decision Viewing ambiguity as the dispositive question, the court of appeals found the UIM policy unambiguous and stated that it therefore must "be construed according to its ordinary meaning." 162 Ariz. at 248, 782 jeffreydaniels@example.net. The court thus determined the policy provision insuring against "damages for bodily injury" did not include punitive damages because a lay person would not so construe it. The court discounted Wilson's argument that the clause was ambiguous when compared to other language in State Farm's policy. Id. The court acknowledged that when faced with an almost identical clause, division two of the court of appeals had come to a different conclusion in Wise. In Wise, division two held that arbitrators were correct to award punitive damages as part of a UM claim in the absence of an express exclusion. 150 Ariz. at 17, 721 jeffreydaniels@example.net. In the present case, the court did not find Wise controlling because it believed division two improperly interpreted Price v. Hartford Accident & Indem. Co., 108 Ariz. 485, 502 P.2d 522 (1972)[1] as authority for the proposition that an insurer's failure to specifically exclude punitive damages was tantamount to an agreement to pay them under all circumstances. 162 Ariz. at 248, 782 jeffreydaniels@example.net. On review, Wilson urges us to hold that coverage exists because the policy is ambiguous and because such a construction would fulfill the expectations of the consumer. Given the nature of the insurance *253 industry, we are well aware many of its customers expect maximum return for the premium dollar. In that light, the coverage in question might be expected. To be enforceable, however, the specific expectation must be reasonable. See Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 389-90, 682 P.2d 388, 394-95 (1984). In interpreting the language of the agreement in question to determine if Wilson had a reasonable expectation of coverage for punitive damages, we must examine the purpose of the clause in question, public policy considerations, and the purpose of the transaction as a whole. Arizona Prop. & Cas. Ins. Guar. Fund v. Helme, 153 Ariz. 129, 135, 735 P.2d 451, 457 (1987). We proceed to do so, looking first at public policy as evidenced by legislative enactments and relevant case law. B. Interpretation of the Policy in Light of Statutory Law and Other Public Policy Considerations Because both UM and UIM insurance are creatures of statute (see A.R.S. § 20-259.01), we turn first to consider whether the legislature has required the coverage in question or whether the legislative goals would be served by resolving any doubt in policy language in favor of coverage. 1. Statutory Genesis State Farm offered UIM coverage to comply with the requirements of Arizona law. See Petition for Review, App. B (State Farm Mutual Car Policy, "New Law Adds Coverage W To Your Policy"). UM coverage was similarly offered in response to statutory enactments. Thus, we analyze the purpose of the coverages provided by the contract with the statutory mandate in mind. Jenkins v. Mayflower Ins. Exch., 93 Ariz. 287, 291, 380 P.2d 145, 148 (1963) (statutory omnibus clause is part of every motor vehicle liability policy); see also Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E.2d 206, 209 (1964) (under South Carolina law, all statutes relating to the insurance contract are parts of the contract). a. The Legislative History of UIM The legislature adopted the Financial Responsibility Act (currently, the Safety Responsibility Act) in 1951. See A.R.S. §§ 28-1101 to 28-1225, 1951 Ariz. Sess. Laws ch. 122. In requiring all owners or operators of motor vehicles in Arizona to obtain liability insurance coverage, the legislature sought to protect drivers in the state against losses engendered by financially irresponsible owners or operators of motor vehicles. Id.; see also Cassel v. Schacht, 140 Ariz. 495, 683 P.2d 294 (1984) (citing Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963) and Jenkins)). In spite of the act's mandate, many automobile owners failed to purchase insurance. Therefore in 1965, UM coverage became the subject of legislation.[2] Bills were introduced in both the house and senate to require vehicle liability policies to provide coverage for injuries resulting from accidents with uninsured or unknown vehicles. See SB 42, Twenty-seventh Legislature (1965); Minutes of Meeting of Committee on Banking, Insurance and Corporations, March 16, 1965; Minutes of Meeting of Committee on County Affairs, March 23, 1965. As enacted, the statute provided that insurers offer protection to persons "legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." See Laws 1965, ch. 34. The insured had the right to reject UM coverage until 1972 when the legislature made such coverage mandatory. See Laws 1972, ch. 157. In 1981, the legislature perceived inadequacies in UM insurance. See A. Widiss, UNINSURED AND UNDERINSURED MOTORIST INSURANCE § 31.4 (2d ed. 1987) (UIM coverage developed in response to the public concern about the shortcomings *254 of UM insurance, which only applied to accidents caused by uninsured motorists). Serious injuries are often caused by insured drivers with inadequate liability limits. Therefore, there was an obvious need for first party coverage to provide a source of recovery for such accidents. Id. A bill introduced in the Arizona house required auto liability insurance carriers to offer UIM coverage. HB 2129. As enacted, it stated that insurers must provide: coverage for a person if the sum of the limits of liability under all bodily injury or death liability bonds and liability insurance policies applicable at the time of the accident is less than the total damages for bodily injury or death resulting from the accident. To the extent that the total damages exceed the total applicable liability limits, underinsurance motorist coverage provided in ... this section is applicable to the difference. Laws 1981, ch. 224, § 1. After various changes,[3] the statute in effect at the time of the accident in this case directed that any motor vehicle policy issued in this state include UM coverage. A.R.S. § 20-259.01(A). The insurer was also required to make UIM coverage available to the same limits as the liability coverage; however, the insured had the option of refusing UIM coverage. A.R.S. § 20-259.01(C). The insurer had the right to subrogate against either an uninsured or underinsured motorist. A.R.S. § 20-259.01(G).[4] b. Legislative Objectives Mandatory UM insurance is a reflection of public policy favoring indemnification of victims of negligent, financially irresponsible motorists. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985);[5]see also Widiss, supra, § 2.3. Obviously, mandatory offerings of UIM coverage, when accepted by the insured, are based on the same public policy. See Higgins v. Fireman's Fund Ins. Co., 160 Ariz. 20, 22, 770 P.2d 324, 326 (1989). The legislature has amended A.R.S. § 20-259.01 repeatedly to expand its scope. Calvert, 144 Ariz. at 297, 697 jeffreydaniels@example.net. Nonetheless, the statute does not direct that UM or UIM coverages extend to punitive damages assessed against the tortfeasor. Moreover, our review of the minutes of the various committees in which the bills preceding the enactment of A.R.S. § 20-259.01 were considered has not shed any light on specific legislative intent regarding coverage for punitive damages.[6] We must be guided, therefore, by the legislative objectives in enacting the statute. See Cassel. In so doing, we look to the policy behind the statute and the evil it was designed to remedy. Calvert, 144 Ariz. at 294, 697 jeffreydaniels@example.net. We believe the legislative objective in this case is narrower in scope than in the *255 general liability context. Neither the UM nor the UIM statute purports to afford as broad protection as the Safety Responsibility Act. The UM and the UIM statutes require coverage only "for bodily injury or death," whereas the Safety Responsibility Act also requires coverage for property damage. Compare A.R.S. § 20-259.01(B) and (C) with § 28-1170(B)(2)(c). Furthermore, the Safety Responsibility Act serves the dual purpose of protecting the general public from the insured and protecting the insured from liability for his own acts, while the UM and UIM Act only compels protection for injuries the insured sustains from the acts of others. Employers Mut. Cas. Co. v. McKeon, 159 Ariz. 111, 114, 765 P.2d 513, 516 (1988). Unlike liability coverages, therefore, UM and UIM coverages prescribed in this state do not even compensate the victim for the total loss (property as well as personal injury) suffered. Compare A.R.S. § 20-259.01 with A.R.S. § 28-1170(B)(2)(c). Rather, they are "gap fillers" permitting insureds to provide themselves with a source of compensation for bodily injuries sustained as a result of the negligence of a financially irresponsible or inadequately insured driver. Calvert, 144 Ariz. at 295, 697 jeffreydaniels@example.net. Having determined as best we can the legislative objective — to provide a source of compensation for bodily injury sustained by the insured — we must consider whether punitive damage payments are within the legislature's goals. To do so, we must examine the role such awards play in our judicial system. 2. Who Should Pay Punitive Damages? Tort law has adopted the idea of punishment that underlies criminal law in its imposition of punitive damages for a defendant's wrongdoing. PROSSER AND KEETON ON THE LAW OF TORTS § 2 (5th ed. 1984); see also Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073, 1080 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986) (punitive damages available when defendant's wrongful conduct was guided by "evil motives"). Thus, courts permit such awards to punish the defendant and to deter others from following the defendant's example. PROSSER AND KEETON § 2; Cassel, 140 Ariz. at 496, 683 jeffreydaniels@example.net. Punitive damages are awarded to the plaintiff over and above the full compensation he receives for his injuries. Id. To the plaintiff, punitive damages are therefore a non-compensatory award based on public policy concerns irrelevant to compensation. In appropriate cases, assessment of punitive damages to be paid by the tortfeasor fulfills the social policy of deterrence that underlies such awards. Liability insurance coverage for that tortfeasor is permissible because payment of such damages by the tortfeasor's insurer may pass the ultimate costs of the punitive damage award to the tortfeasor or others in similar situations. See Price, 108 Ariz. at 487, 502 jeffreydaniels@example.net. Obviously, the payment of punitive damages by the victim's insurance company is counter-productive. The burden of payment falls neither on the tortfeasor who was to be punished nor on the insurer who contracted to assume the tortfeasor's responsibility and may have the ability to pass the cost to the guilty party. 3. Resolution of Legislative Issues We have considered the goals and social policies that underlie the legislative requirement that UM coverage be provided and UIM coverage offered — to provide protection to the insured for his bodily injury. We have also considered the social policy underlying punitive damage awards — to punish the tortfeasor and deter others. These considerations provide no basis to conclude that the statutes or legislative policy underlying UM and UIM coverage require or should be read to require the victim's UM or UIM insurer to pay punitive damage awards assessed to punish the tortfeasor rather than to compensate the victim for his injuries. When faced with conflicting, reasonable interpretations of a contract, the court should adopt the interpretation that furthers public policy. *256 Helme, 153 Ariz. at 135, 735 P.2d at 457; Restatement (Second) of Contracts § 207. Public policy does not militate in favor of a construction that the victim's insurer pay punitive damages assessed against the tortfeasor. C. Interpretation of the Contract in Light of the Nature of the Transaction as a Whole We turn then to consider whether, regardless of legislative requirements and goals, State Farm has undertaken to include such coverage in its contract with Wilson. It is here, citing Darner and raising the flag of ambiguity, that Wilson makes his most forceful argument. Indeed, we have held that if an insurer chooses to provide coverage for punitive damage awards, the law will not prevent it from so doing.[7]Price. 1. Darner This court has long stood for the proposition that, in buying insurance, consumers are entitled to get what they pay for. Darner, 140 Ariz. at 391-92, 682 jeffreydaniels@example.net. We do not retreat from our belief that the fine print of the mass transaction boilerplate which the purchaser neither reads, understands, nor is expected to understand should be allowed to upset the "dickered deal" or destroy the objectives of the transaction. State Farm Mut. Auto. Ins. Co. v. Bogart, 149 Ariz. 145, 151, 717 P.2d 449, 555 (1986); Darner, 140 Ariz. at 393, 682 jeffreydaniels@example.net. In the present case, however, the wording of the insuring clause is intended to provide a source of compensation for the victim/insured's bodily injuries. The coverage is designed and offered for that purpose. The insurer's undertaking at the beginning of the policy indicates no more than protection of the insured from bodily injury damages. No fine print exclusion is raised to take away that which the policy was intended to offer; the policy was never sold or intended to grant the coverage now claimed. Cf. Higgins, Calvert. Nothing in Darner or its progeny supports the proposition that an insured buying protection against bodily injury would have any reason to also expect coverage for non-compensatory damages assessed to punish the tortfeasor rather than compensate the victim. The insured buying UIM coverage has a reasonable expectation that he will get what he pays for: coverage for bodily injuries caused by underinsured motorists. Nothing in the nature of the transaction engenders an expectation that absent an express undertaking by the insurer, he will also get coverage for punitive damages assessed against the tortfeasor. The Darner doctrine protects only the reasonable expectations engendered by the nature of the transaction, and in this case militates against a finding of coverage. See 140 Ariz. at 389-90, 682 jeffreydaniels@example.net. 2. Ambiguity We come then to the question of ambiguity. Indeed, because two divisions of our court of appeals have reached diametrically opposite conclusions based on essentially identical wording, prior authority requires us to conclude that the clause must be ambiguous. See Federal Ins. Co. v. P.A.T. Homes, Inc., 113 Ariz. 136, 138-39, 547 P.2d 1050, 1052-53 (1976) (whenever two courts have disagreed on interpretation of an insurance policy, it must be ambiguous and must be interpreted in favor of the insured). One might also argue in the case at bar that the grant of insurance "for bodily injury" in the UIM coverage, compared to the promise to pay "any amount due to the insured" in the ascertainment clause, and the use of the term "because of bodily damages" in the general liability provisions of the policy create apparent ambiguity. Our inquiry thus must be directed to whether such ambiguity actually exists and whether we should therefore construe the clause against the insurer. *257 See Restatement (Second) of Contracts §§ 206 and 207.[8] We thus come to the very essence of the ambiguity doctrine and its place in our interpretation of the contract. For some reason, before courts interpret contractual provisions they feel constrained to declare that the provisions are ambiguous. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 355, 694 P.2d 181, 185 (1984). Once a court finds the requisite ambiguity, it is then compelled to construe the provision against the insurer. Id. If, however, the court finds the clause unambiguous, it construes it "according to its ordinary meaning" as the court of appeals did in this case. See 162 Ariz. at 248, 782 jeffreydaniels@example.net.[9] We marvel, as Corbin did nearly forty years ago, that judges insist upon applying such rules "innumerable times, sometimes to apply them though justice weeps at her own blindness, sometimes to avoid them by making fine and specious distinctions, sometimes merely to state them with respect while disregarding them, and sometimes to voice criticism and disapproval." 3 A. Corbin, CONTRACTS § 536 (2d ed. 1960). We prefer to adopt a rule of common sense and have attempted to do so on numerous occasions. See generally Helme, Meere, Darner. We once again decline "to hold that an unexpected, unknown ambiguity in a clause which the parties did not negotiate ... should permit them to show the true [meaning] of the agreement, but that the lack of such an ambiguity prevents them from so doing." Darner, 140 Ariz. at 389, 682 jeffreydaniels@example.net. Thus, we reiterate, the rule in Arizona is that we construe a clause subject to different interpretations by examining the language of the clause, public policy considerations, and the purpose of the transaction as a whole. Helme, 153 Ariz. at 135, 735 jeffreydaniels@example.net. We emphasize that in so doing, we do not ignore the ambiguity question in evaluating the viability of Wilson's claim that his policy covers punitive damages by providing for payment of "any amount due to the insured." See, e.g., Security Ins. Co. v. Andersen, 158 Ariz. 426, 763 P.2d 246 (1988); Darner, 140 Ariz. at 390, 682 P.2d at 394; Restatement §§ 206 and 207. However, when a question of interpretation arises, we are not compelled in every case of apparent ambiguity to blindly follow the interpretation least favorable to the insurer. The policy language is essential to our analysis, but neither language nor apparent ambiguity alone is dispositive without first addressing questions as to the requirements established by the legislature, public policy required to fulfill legislative goals, and the dominant purpose of the transaction. See Helme. The existence of ambiguity that militates in favor of construction against the drafter can be determined only after these questions have been answered. We agree with the court of appeals that Price is distinguishable. Moreover, it foretold, over fifteen years ago, the rule we adopt today. In Price we held that any public policy considerations militating against an insurer providing coverage for punitive damages were outweighed by the public policy "that an insurance company which admittedly took a premium for [indemnifying against] all liability for damages, should honor its obligation." 108 *258 Ariz. at 487, 502 P.2d at 524 (emphasis added). We held, therefore, that an express exclusion was required to eliminate coverage for punitive damages from general liability insurance because the insured was personally at risk if his liability insurance did not cover those damages. The essence of the transaction was the insured's purchase of indemnification against all damages for which he might be held liable.[10] General liability insurance is separate and distinct from the first party coverage provided by either UM or UIM insurance. The insured in the UM or UIM context is not personally liable to pay punitive damages; therefore, the dominant purpose of the transaction would not be defeated if coverage were not conferred absent express statement in the policy. Our direction today is determined by the different considerations that come into play when the insured purchases UM and UIM coverage to protect himself and his family from loss by reason of bodily injury inflicted by uninsured or underinsured tortfeasors. That is what Wilson bought and State Farm sold. Wilson is entitled to get neither less nor more than that. See McKeon, 159 Ariz. at 115, 765 jeffreydaniels@example.net. We conclude, therefore, that although the language of the policy presents conflicting reasonable interpretations, we are not thereby automatically constrained to construe it against the insurer in this case. The determination that an ambiguity must be construed against the insurer comes in this case, as we believe it must in all cases, at the end of our inquiry, not at the beginning. Considerations of legislative goals, social policy, and examination of the transaction as a whole, including the reasonable expectations of the insured, may indicate, as here, that we should not automatically construe a clause susceptible to various interpretations in favor of the insured. To the extent that Federal Insurance v. P.A.T. Homes, 113 Ariz. 136, 547 P.2d 1050 (1976), deviates from this rule, it is disapproved. In this case nothing in the nature of the transaction or the dickered deal would lead the consumer to expect coverage. Thus, there is no reason to adopt the construction favoring coverage when such construction actually does violence to legislative goals, social policy, and the nature of the transaction as a whole. D. Authority from Other Jurisdictions We are cognizant that a conflict of authority exists in cases from other jurisdictions. See Annotation, Punitive Damages as Within Coverage of Uninsured or Underinsured Motorist Insurance, 54 A.L.R. 4th 1186 (1987 and 1988 Supp.). In construing a UM statute that required the insurer to pay all sums which the insured was legally entitled to recover, the Virginia Supreme Court held the insured was legally entitled to recover punitive damages. Lipscombe v. Security Ins. Co., 213 Va. 81, 189 S.E.2d 320 (1972). The court reasoned that because the UM statute permitted the insurer to be subrogated to the rights of the insured, the burden would eventually *259 fall on the tortfeasor and therefore would not contravene the public policy of the state. We do not find Lipscombe's reasoning persuasive. Although theoretically State Farm had the right of recovery against the tortfeasor, we do not believe the subrogation right to be dispositive. The right of subrogation no longer exists against underinsured motorists because such efforts were seldom successful. See Minutes of Meeting of Committee on Banking and Insurance, March 5, 1986, supra note 3. No reason exists for us to believe that efforts against uninsured motorists would be more so. See Note, Uninsured Motorist Insurance Now Covers Punitive Damages — Hutchinson v. J. Height, 19 Akron L.Rev. 325, 328 n. 27 (1985) (insurers' efforts yield results no better than 1.5 percent collection rate); State Farm Mut. Auto Ins. Co. v. Mendenhall, 164 Ill. App. 3d 58, 115 Ill. Dec. 139, 142, 517 N.E.2d 341, 344 (1987) (possibility of subrogation is "wild-eye conjecture which lacks practical application"); Braley v. Berkshire Mut. Ins. Co., 440 A.2d 359, 363 (Me. 1982) ("probability of some recovery is negligible" and impossible if uninsured driver is unknown). We do not believe that we should interpret the policy to provide coverage because of unsupported speculation that the subrogated insurer will be able to recover from the underinsured motorist.[11] We find the better reasoned cases agree that UM coverage does not apply to punitive damages. See, e.g., Laird, 134 S.E.2d 206 (South Carolina court in construing a broad UM provision that promised to pay "all sums" the insured was entitled to recover so held).[12] In Laird, the South Carolina court noted that automobile insurance statutes in its state distinguished between liability coverage, which required payment of all damages, and UM coverage that was more limited.[13] Many courts that have considered the issue have reached the same conclusion as Laird.[14] Widiss, in commenting on Laird, *260 noted that in the absence of a broad statutory mandate, an interpretation that punitive damages were not within the scope of coverage seemed proper. WIDISS, supra, § 12.6. We agree. III. CONCLUSION Insurers must comply with statutes governing automobile insurance in providing UM and UIM coverage. We conclude that the legislative objective in compelling such protection is to compensate victims for bodily injury caused by negligent, financially irresponsible or underinsured motorists. Because punitive damages are not compensatory and are intended to punish and deter tortfeasors from wrongful conduct, we hold UIM and UM insurers are not liable to pay such damages unless they have specifically provided to do so. State Farm did not so contract. No reasonable expectation of the insured — nothing in the dickered deal, the nature of the transaction, or clear intent manifested in the policy language — militates in favor of finding such an undertaking. The trial court's judgment that State Farm's UIM provisions covered punitive damages is reversed. The opinion in State Farm Mutual Automobile Insurance Co. v. Wilson as modified by this opinion is approved. The opinion of the court of appeals in State Farm Fire & Casualty Co. v. Wise is disapproved. The case is remanded with instructions that judgment be entered in accordance with this opinion. GORDON, C.J., and CAMERON, MOELLER and CORCORAN, JJ., concur. NOTES [1] In Price, this court examined the scope of coverage provided by a general liability policy that provided it would pay "all sums [the insured] might become liable to pay as damages `arising out of the ownership, maintenance or use' of [his] automobile." 108 Ariz. at 485-86, 502 jeffreydaniels@example.net. [2] Forty-nine states have legislation that establishes various types of requirements regarding UM coverage. A. Widiss, UNINSURED AND UNDERINSURED MOTORIST INSURANCE, § 1.12 (2d ed. 1987). [3] The 1981 legislation deemed that UIM coverage was mandatory. During the same session, the legislature permitted insurers who made payments for damages to insureds under the UM requirements of the act to subrogate and sue for reimbursement of the total payments made in the name of the insured against any uninsured motorist responsible for the damages to the insured. Laws 1981, ch. 224, § 1. The following year, the statute was amended so that the insured could elect to reject UIM coverage. Laws 1982, ch. 298, § 1. The act specified that UIM coverage was separate and distinct from UM coverage. Subrogation was permitted against underinsured motorists. In 1986, the statute was again amended to remove the insurer's right to subrogation against an underinsured motorist for reimbursement paid to an insured under the insured's UIM coverage. Laws 1986, ch. 184, § 1. Supporters of the amendment stated that collections for underinsured motorists were "very insignificant." See Minutes of Meeting of Committee on Banking and Insurance, March 5, 1986. [4] The only change effected after the accident was that the insurer no longer has a right of subrogation against an underinsured motorist. A.R.S. § 20-259.01(G). [5] In Calvert, we held that an exclusion denying coverage to an insured injured by an uninsured motorist while the insured was occupying a vehicle he owned but that was not listed in his policy was invalid as contrary to the coverage mandated by the UM act. [6] We similarly determined that legislative intent with respect to coverage for punitive damages pursuant to the Safety Responsibility Act was impossible to ascertain. Cassel, 140 Ariz. at 496, 683 jeffreydaniels@example.net. [7] The parties have not raised and we do not consider whether a contractual agreement by the victim's insurer for payment of punitive damages imposed on the tortfeasor would be void as against public policy. [8] Section 206 states: In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds. (Emphasis added.) Section 207 states: In choosing among the reasonable meanings of a promise or agreement or a term thereof a meaning that serves the public interest is generally preferred. [9] This case well illustrates the problems inherent in the so-called "plain meaning" rule. Two clauses of this policy are drawn into question. Each has a plain meaning, but their plain meanings are in conflict. To hold there is no ambiguity is to ignore that of the eight Arizona judges who have so far considered the question, four find one plain meaning and four another. A similar problem exists in other states. See part D, infra. The problem is that the ordinary meaning of the words used in two different sections of the policy permit two alternate, reasonable interpretations. [10] In so holding, we quoted from Appleman's treatise on insurance as follows: [I]t is clear that the average insured contemplates protection against claims of any character caused by his operation of an automobile, not intentionally inflicted. When so many states have guest statutes in which the test of liability is made to depend upon wilful and wanton conduct, or when courts, in an effort to get away from contributory negligence of the plaintiff, permit a jury to find a defendant guilty of wilful and wanton conduct where the acts would clearly not fall within the common law definitions of those terms, the insured expects, and rightfully so, that his liability under those circumstances will be protected by his automobile liability policy.... Of course, a policy would expressly exclude liability arising from wilful and wanton acts.... The author does not expect many decisions upon [such] clauses .. . because as soon as the public became educated by competing agents to the limitations upon that policy, the public would refuse to accept it, and it would be unsaleable.... In any event a court should not aid [a liability] insurer which fails to exclude liability for punitive damages. Surely there is nothing in the insuring clause [typically indemnifying against "all damages"] that would forewarn an insured that such was to be the intent of the parties. Price, 108 Ariz. at 487-88, 502 P.2d at 524-25 (quoting 7 Appleman, INSURANCE LAW AND PRACTICE, § 4312). [11] We find the reasoning of other cases in which courts held the insurer liable for punitive damages inapplicable or unpersuasive as well. See Stewart v. State Farm Mut. Auto. Ins. Co., 104 N.M. 744, 726 P.2d 1374 (1986) (legislature intended that insured receive punitive damage award and court will strictly construe provision that promises to pay "all sums" against the insurer); Hutchinson v. J.C. Penney Cas. Ins. Co., 17 Ohio St. 3d 195, 17 O.B.R. 432, 478 N.E.2d 1000 (1985) (construing ambiguous clause against insurer and invoking insured's right to subrogation as justifying payment of punitive damages); Cuppett v. Grange Mut. Cos., 12 Ohio App. 3d 82, 12 O.B.R. 281, 466 N.E.2d 180 (1983) (holding an insurer was liable for punitive damages under a UM provision that required the insurer to pay all sums for bodily injury because the insurer clearly and unambiguously contracted to do so); Mullins v. Miller, 683 S.W.2d 669 (Tenn. 1984) (citing fact that statute was broadened to include coverage for property damage and thus concluding legislature intended to equate UM coverage with liability coverages); Home Indem. Co. v. Tyler, 522 S.W.2d 594 (Tex.Civ.App. 1975) (equating UM with general liability coverage and dismissing public policy considerations that might militate against indemnifying a wrongdoer). [12] The provision stated: INSURANCE AGREEMENT 1. Damages for Bodily Injury and Property Damage Caused by Uninsured Automobiles. To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of: (a) bodily injury, sickness or disease including death, resulting therefrom hereinafter called "bodily injury" sustained by the Insured. Laird, 134 jeffreydaniels@example.net. [13] Subsequent legislation reversed the result reached in South Carolina, however, and provided that "[t]he term `damages' shall include both actual and punitive damages." South Carolina Code § 56-9-810(4) (1976). [14] See California State Auto. Ass'n Inter-Insurance v. Carter, 164 Cal. App. 3d 257, 210 Cal. Rptr. 140 (1985) (statutory language and purpose of UM coverage do not encompass recovery of punitive damages); Suarez v. Aguiar, 351 So. 2d 1086 (Fla.App. 1977), cert. denied, 359 So. 2d 1210 (Fla. 1979); State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986) (punitive damages not properly awarded pursuant to UM coverage when loss caused by unknown driver); Mendenhall, 115 Ill. Dec. 139, 517 N.E.2d 341 (purpose of UM coverage is not to punish insured's insurance company, rather is compensatory and not punitive); Braley, 440 A.2d at 362 (policy reflected a statutory UM endorsement, protected an insured only against actual losses and therefore "all sums for bodily injury" covered only compensatory and not punitive damages); State Farm Mut. Auto Ins. Co. v. Daughdrill, 474 So. 2d 1048 (Miss. 1985) (statute mandated coverage only for actual damages and its purpose not furthered by payment of punitive damages); Allen v. Simmons, 533 A.2d 541, 544 (R.I. 1987) (UM protection protects against compensatory damage only); Burns v. Milwaukee Mut. Ins. Co., 121 Wis. 2d 574, 360 N.W.2d 61 (Wis.App. 1984) (recovery of punitive damages on an uninsured motorist claim against public policy).

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL LETITIA JAMES DIVISION OF STATE COUNSEL ATTORNEY GENERAL LITIGATION BUREAU Writer’s Direct Dial: 807-950-0030 April 27, 2021 BY ECF Honorable Lorna G. Schofield United States District Judge Southern District of New York 40 Foley Square New York, NY 10007 Re: Balogun v. New York State Division of Human Rights, et al., 20-cv-10484 (LGS) Dear Judge Schofield: This Office represents defendant New York State Division of Human Rights (“DHR”) and the individually-named defendants (“Defendants”) in this action. Defendants request an extension of time from May 5, 2021 to June 11, 2021 to respond or answer to the Complaint, dated December 11, 2020. This Office requests this time to permit exploration of the seven claims against each of the seven defendants. This is Defendants’ first request for an extension of this deadline. Plaintiff Abeeb Balogun has consented to this request, and the parties jointly request an adjournment of the May 6, 2021 initial conference until a date and time after Defendants file their responses to the Complaint. Thank you for your time and consideration of this matter. Respectfully submitted, /s/ Elizabeth A. Figueira Elizabeth A. Figueira Assistant Attorney General The application is GRANTED in part. Defendants' request for an cc: Abeeb K. Balogun (Pro se plaintiff) extension of time to answer the complaint is granted. By June via email: bbaker@example.org 11, 2021, Defendants shall answer, move or otherwise respond to the complaint. Defendants' request for an adjournment of the the initial pretrial conference is DENIED. Dated: April 28, 2021 New York, New York 28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE 807-950-0030 ● WWW.AG.NY.GOV 

Citation Nr: 1712916 Decision Date: 04/20/17 Archive Date: 04/26/17 DOCKET NO. 12-23 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran had active duty service from February 1974 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally scheduled for a Travel Board hearing in March 2016, but withdrew his request for a hearing in writing in March 2016. The Board remanded the issue for further development in May 2015. The case has been returned to the Board for appellate review. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have hearing loss of the right ear for VA purposes. 2. The Veteran's left wrist disability did not manifest during service and is not causally related to the Veteran's service. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). 2. The criteria for service connection for a left wrist disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Compliant VCAA notice was provided in April 2008. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and opinions obtained. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, the Veteran's mailing address was updated and he was scheduled for a hearing before the Board in March 2016. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection - Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection - Right Ear Hearing Loss For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. During the January 1980 separation report of medical examination, the examiner noted clinically normal ears and ear drums. The Veteran's puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -10 -5 -5 On the corresponding report of medical history, the Veteran reported no current or past symptoms of hearing loss. The Veteran was afforded a VA examination in January 2011. At that time, the Veteran's puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 Air conduction 20 15 10 25 20 Bone conduction 10 10 10 20 20 The speech discrimination score was 98 percent. The examiner diagnosed normal hearing of the right ear with excellent speech discrimination ability. The Veteran was afforded another VA examination in January 2014. At that time, the Veteran's puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 30 The Veteran's speech discrimination score was 98 percent in the right ear. The examiner noted no hearing loss in the right ear per VA standards. Hearing was noted to be normal. The Board finds that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes. As previously noted, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 dB or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's January 2014 VA examination results clearly indicate that he does not meet any of these qualifications. Without evidence of a current disability related to service, service connection may not be granted. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). There is also no evidence of a hearing loss disability for VA purposes at any point during the claims period or shortly before. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, entitlement to service connection for right ear hearing loss is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for right ear hearing loss must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection - Left Wrist The Veteran essentially contends that he developed a left wrist disability during his active service, resulting in his current left wrist strain. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not have a current left wrist strain or other disability that manifested during, or as a result of, active military service. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with left wrist strain during the January 2014 VA examination. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records show no complaints, treatment, or diagnosis for a left wrist disability. The January 1980 separation report of medical history showed no complaints of current or past symptoms related to arthritis, rheumatism, bursitis, or bone, joint, or other deformity. The examiner noted that the Veteran fractured his left ulnar and left radius with no sequelae. The corresponding report of medical examination showed clinically normal upper extremities. As there is no competent evidence of a left wrist disability in service or within one year following discharge from service, competent evidence linking the current condition with service is required to establish service connection. The Veteran was afforded a VA examination in January 2011. The Veteran reported that the left wrist disability existed for 36 years. The examiner performed a physical examination and obtained X-rays of the left wrist. The examiner provided no diagnosis because he found no pathology to render a diagnosis. The examiner opined that there was no pathology to render a diagnosis or to justify cause and affect relationship. The Veteran was afforded an additional VA examination in January 2014. The examiner diagnosed left wrist strain with a date of diagnosis as January 2014. The Veteran reported a history of symptoms since August 1975 when he was in a motorcycle accident. The Veteran noted that, at the time of the accident, he cracked the joint of the bone behind his thumb. He reported that the condition only bothers him when it is extremely cold. The examiner reviewed the medical records, performed a physical examination, and opined that the Veteran's left wrist disability was not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found no documentation of a left wrist condition. The Veteran was seen for abrasions of the right wrist during service. The examiner found no documentation of an injury or treatment for the left wrist throughout the given records. Based on these records, the Board finds that his left wrist condition is less likely as not related to service. The Board finds that the Veteran's more recently-reported history of continued symptoms of a left wrist disability since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of a left wrist disability. Specifically, the Veteran reported that he injured his left wrist in August 1975, yet a subsequent report of medical examination during service in September 1977 showed clinically normal upper extremities. Additionally, the service separation examination report reflects that the Veteran was examined and his upper extremities were found to be clinically normal. His in-service history of symptoms during service and at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). While the Veteran believes that his current left wrist strain is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of his left wrist strain are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his left wrist strain is not competent medical evidence. Moreover, whether the injury the Veteran asserts was incurred in service is in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current left wrist disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left wrist disability. As the preponderance of the evidence is against the claim for service connection for a left wrist disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a left wrist disability is denied. REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding entitlement to service connection for a left knee disability. The Veteran was afforded VA examinations in May 2012, January 2014, and February 2014. Although the examiners addressed the issue of causation, he did not address the issue of aggravation due to another service-connected disability. The Board acknowledges that there has been substantial development of the Veteran's claim; however, the Board is without discretion and, to ensure that a decision of the Board could survive judicial scrutiny, must obtain another medical opinion to address whether the Veteran's current left knee disability is aggravated (chronically worsened) by the Veteran's service-connected orthopedic disabilities, to include bilateral ankle, bilateral feet, and right knee disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (in which the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the February 2014 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably an orthopedic examiner if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran's service treatment records and the May 2012, January 2014, and February 2014 VA examinations and opinions. The examiner should then answer the following: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed left knee disability began in service, was caused by service, or is otherwise related to the Veteran's active service. The Veteran's lay assertions must be considered and discussed when formulating an opinion. b.) Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed left knee disability is causally related to or aggravated (permanently worsened beyond the natural course of the disability) by the Veteran's bilateral ankle, bilateral feet, or right knee disabilities, to include any altered gait. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain in full why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 2. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Citation Nr: 0609645 Decision Date: 04/03/06 Archive Date: 04/13/06 DOCKET NO. 02-13 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from May 1976 to May 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case to the RO for additional development in May 2003 and June 2005, and it is now before the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran did not have combat duty, and her alleged in- service stressor has not been corroborated by official records or other supportive evidence. 2. No diagnosis of PTSD has been attributed to any verified in-service stressor. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & West Supp. 2005), eliminated the concept of a well-grounded claim and redefined the obligations of VA with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (Aug. 29, 2001), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The VCAA and its implementing regulations are applicable to the claim now before the Board. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA must also notify the claimant and the claimant' s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant to the duty to notify, the Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Pelegrini, at 121, the Court held that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide and that, furthermore, in what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim", under 38 C.F.R. § 3.159(b). In this case, in a letter dated in January 2001, the RO notified the veteran about the VCAA, told the veteran about the requirements for establishing a claim for service connection, listed the health care providers she had named and asked her to complete release authorization forms telling her that VA would request the records but advised her that it might expedite the process if she could obtain copies of the medical records and forward them to VA. The RO explained VA was responsible for getting service medical records, records from VA health care facilities, and records from other federal facilities. The RO also notified the veteran that on her behalf VA would make reasonable efforts to get relevant records not held by a Federal agency, which might include records from State or local governments, private doctors and hospitals, or former employers. In addition, in letters dated in June 2003 and August 2003, the RO notified the veteran that additional evidence was needed from her, including the name and address of all health care providers who had treated her for PTSD and requested that she provide completed release authorization forms. The RO explained that VA would request the records and that she could request the records herself and send them to VA. The RO also notified the veteran that in addition to the name (which she had previously provided) she should provide the full name and rank of the individual who had sexually assaulted her during service. The RO also requested that the veteran provide the name and address of any witnesses to the assault, or the name and address of any individual she told of the assault. Further, in those letters, the RO notified the veteran that she should provide the name and address of any family member or friend she told of the sexual assault or sexual harassment during service and advised her that she could provide any letters or other documents that she wrote during service that cited the sexual assault. In addition, in the August 2003 letter, the RO outlined the evidence that had so far been received including a "buddy statement" dated in July 2003. The RO requested that the veteran provide more complete information identifying that individual. Also, in the August 2003 letter, the RO again notified the veteran that to support the claim for service- connected compensation benefits, the evidence must show three things: an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service that caused injury or disease; a current physical or mental disability; and a relationship between her current disability and an injury, disease, or event in military service. The RO explained that medical evidence would show a current disability and that medical records or medical opinions usually showed the relationship between the current disability and service. In its letter, the RO repeated that VA would make reasonable efforts to get relevant records not held by a Federal agency, but that it was her responsibility to make sure that VA received all requested records not in the possession of a Federal department or agency. In addition, in a letter dated in April 2004, the RO again provided the veteran with a list of evidence it had received, notified her of what evidence she should provide and what evidence VA would obtain, and again outlined what the evidence must show to support her claim. In the April 2004 letter, the RO notified the veteran that if there was any other evidence or information she thought would support her claim, she should let VA know and specifically requested that she send any evidence in her possession that pertains to her claim. In a letter dated in February 2005, the VA Appeals Management Center notified the veteran that still needed from her were more specific details of the personal traumatic incident that resulted in her PTSD and requested that she: complete an enclosed questionnaire; give VA reports of private physicians (not previously provided), if any, who had treated her for this condition since service discharge; identify VA and Vet Center treatment; identify any possible sources of information and evidence such as police reports or medical treatment records for assault or rape; send supporting statements from any individuals with whom she may have discussed the incident; and furnish copies of correspondence she may have sent to close friends or relatives in which she related information about the incident. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995); see also Patton v. West, 12 Vet. App. 272, 276 (1999). In addition, the AMC provided an information sheet on what the evidence must show and notified the veteran that if there was any other evidence or information she thought would support her claim, she should let VA know. The AMC requested that the veteran send any evidence in her possession that pertains to the claim. In view of the foregoing, the Board finds that the veteran received notice and was aware of the evidence needed to substantiate her service connection claim and the avenues through which she might obtain such evidence and of the allocation of responsibilities between herself and VA in obtaining such evidence. Thus, all necessary action has been taken to provide the veteran with notice required by the VCAA and as interpreted by the Court in its decisions in Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), and Mayfield v. Nicholson, 19 Vet. App. 103 (2005). While not all notice was provided prior to the initial RO decision on the claim, the veteran's claim was filed in June 2000, which was before enactment of the VCAA in November 2000. Notice was complete prior to the most recent transfer and certification of the veteran's case to the Board, and the content of the notice complied fully with the requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. After notice was furnished, the veteran was provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notice, and she has done so. The veteran has had multiple opportunities to submit and identify evidence and has been provided a meaningful opportunity to participate effectively in the processing of her claim by VA. The Board finds that the failure to provide the veteran with all the specific types of notice outlined in the VCAA prior to the initial unfavorable determination has not harmed the veteran and that no useful purpose could be served by remanding the case on that account. See 38 U.S.C.A. § 7261(b) (West 2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. With respect to the issue decided here, the veteran was provided with notice of what type of information and evidence was needed to substantiate her claim for service connection, but she was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the veteran's claim for service connection for PTSD, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. As to the duty to assist, the veteran's service medical records are in the file, and the RO obtained her service personnel records and some VA treatment records. In addition, the veteran has been provided VA psychiatric examinations in conjunction with her claim. The veteran also submitted service administrative records as well as private post-service medical records and statements from a psychologist and a physician; she has documented her attempts to obtain medical records that are not available, and there is no indication that she has or knows of any additional evidence that pertains to her claim. The Board notes that the veteran has asserted that the June 2005 VA psychiatric examination was incomplete and inadequate and argues it would be wrong to base a decision on the results of that examination. The Board has reviewed the examination report and finds it adequate as it specifically considers whether the veteran meets the diagnostic criteria for PTSD, and because the examiner ruled out a diagnosis of PTSD, there was no further requirement for a medical opinion. Further, without corroborating evidence of the veteran's claimed in-service stressor, there is no need for an additional examination. Such is not required because "a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in- service event, injury, or disease." See Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334, 1356 (Fed. Cir. 2003). As VA as fulfilled the duty to notify and assist to the extent possible, the Board finds that it can consider the merits of this appeal without prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Contentions The veteran contends that she has PTSD that is the result of a physical attack and sexual assault by another female airman in service. Laws and regulations Service connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection for PTSD requires: (1) Medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his or her testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether the veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Hence, whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators, and whether any stressors that occurred were of sufficient gravity to cause or to support a diagnosis of PTSD is a question of fact for medical professionals. Standard of review The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The United States Court of Appeals for the Federal Circuit has held that "when the positive and negative evidence relating to a veteran's claim are in 'approximate balance,' thereby creating a 'reasonable doubt' as to the merits of his or her claim, the veteran must prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Background As noted above, the veteran contends that she has PTSD as the result of having been assaulted for sexual purposes in late 1978 or early 1979 during service. Her service medical records include no history, complaint, or finding of an incident as described by the veteran. Her service personnel file shows the veteran's evaluators consistently classified her performance as satisfactory until her discharge from service in May 1980. Post-service private medical reports show that the veteran was hospitalized four times between November 1984 and March 1985 for psychiatric related reasons. She underwent a psychological evaluation and testing in November 1984, which the psychologist stated suggested an Axis I diagnosis of: rule out alcohol abuse, episodic; dysthymic disorder; and atypical anxiety disorder. During a period of hospitalization that started in January 1985, the veteran reported that she was raped by a woman in service. The discharge diagnosis from that period of hospitalization, which extended from late January 1985 to early February 1985, was major depression, acute and severe, suicidal, improved, and personality disorder, unspecified. The veteran was next hospitalized in March 1985 because she had overdosed on medication. In the history and physical examination report, he physician noted that when he had seen the veteran as an outpatient a few days prior to the current hospital admission, she was blaming all of her problems on whatever had happened when she was 17 years old when a boyfriend she said forced himself upon her. The physician stated that the veteran had taken that as an excuse to do nothing, blaming everything on that incident. The final diagnosis at hospital discharge was: overdose of medications; manipulative personality; passive-aggressive personality, severe; and dependent personality, mild. Private medical records dated in the late 1990s show that in August 1998 when the veteran was being seen in a family practice clinic she reported depression, irritability, crying spells, difficulty falling asleep and staying asleep on and off over the past few months. She also reported that she had learned that her sister and a niece were HIV positive after a blood transfusion during a Cesarean section. The physician prescribed medication and recommended counseling for depression. The following month the veteran reported her symptoms had improved, and the impression after examination was depression, resolving with counseling and medication. Testing in February 1999 suggested the presence of minimal to mild depression, and medication was continued. After increased complaints of feeling anxious and depressed, the veteran was referred to R.M, Ph.D., in September 1999. A VA psychiatry note dated in May 2000 shows that the veteran reported that in 1978 when she was about 21 she had been raped on the military base by someone she had considered her friend. She said she never reported it. After examination, the Axis I diagnosis was major depression with obsessive compulsive disorder; the Axis II diagnosis was borderline traits (passive-aggressive behavior). In a letter dated in February 2001, Dr. R.M., a licensed professional counselor, stated that the veteran had been in treatment with her from October 1999 to the present. Dr. R.M. stated that based on clinical information and test results, the diagnoses were: major depressive disorder, recurrent, moderate; PTSD; and personality disorder, not otherwise specified, with schizoid and avoidant traits. In another letter, which was dated in late February 2001, Dr. R.M. stated that she had seen the veteran for acute distress/anxiety on that date, and the veteran reported becoming upset due to VA questions about her trauma in service and being asked for the name of the person who traumatized her. Dr. R.M. stated that the veteran expressed she was very fearful of more harm should this person be notified. In a letter dated in January 2002, G.E., M.D, of the Abilene Psychiatric Center stated that the veteran was under his care for major depression and PTSD. In a certificate dated in February 2002, he stated that he had first seen the veteran in November 2001 and that the date of onset of her condition was in approximately 2000. In a letter dated in late February 2002, Dr. G.E. stated that he had been treating the veteran for major depression and that it was his feeling that the veteran could return to employment if she continued her current medication and counseling. In August 2002, the veteran submitted Internet articles pertaining to PTSD. One, from the National Center for PTSD, describes the diagnostic criteria for PTSD. It points out that if an individual meets diagnostic criteria for PTSD, it is likely that he or she will meet the criteria for one or more additional diagnoses. Most often, the co-morbid diagnoses include major affective disorders, dysthymia, alcohol or substance abuse disorders, anxiety disorders, or personality disorders. The other Internet article submitted by the veteran was from The Center for Women Veterans, a part of VA, and the article is titled Counseling & Medical Treatment for the Aftereffects of Sexual Trauma. Among other things, the article discusses the fact that incidents of sexual trauma are often not reported, discusses VA services, and provides a list of potential psychological aftereffects of sexual trauma. In July 2003, a retired staff sergeant, who was one of the veteran's supervisors while she was in service, stated that sometime in the fall of 1978, the veteran's attitude and behavior changed in that she became quiet and standoffish and then became very outspoken. He said that as an example the veteran became very loud and demanding with her supervisors saying she was not going on temporary duty and they could not make her do that. The staff sergeant said that was not in character with the veteran's previous behavior and that her supervisors were ready to give her an Article 15 but he was able to persuade them not to do so. He stated that he never did know what the problem was and from then on the veteran became very distant as she had withdrawn from everyone who knew her. At a VA examination in December 2003, the veteran gave a history of having been attacked by a female airman in her dormitory room for sexual purposes and said she did not report it to any authorities or to anyone she knew. The veteran reported that her emotional and behavioral problems began after the attack and while still on active duty. She stated that she became verbally rebellious with her supervisors, but due to having understanding supervisors, she was not punished. In the examination report, the physician noted that in the veteran's service medical records there are indications that the veteran's visits to the health clinic increased subsequent to the reported time of the attack, but all the veteran's complaints were physical complaints such as sinus infections, bronchial infections, sore throat, complaints of pain in the foot, and complaints of ringing in her ears. The physician stated this indicated that there was no source of information about the attack except the veteran's own testimony. He stated that although the veteran reported she was threatened with an Article 15 by one of her supervisors, her airman proficiency ratings continued to be high and in fact improved by a marginal amount over time. After the examination and review of the claims file, including Air Force records, in the December 2003 report, the physician reported that the Axis I diagnosis was PTSD from assault for sexual purposes in the veteran's dormitory with the only evidence being testimony of the veteran. The Axis II diagnosis was schizoid personality with borderline traits. In an addendum report dated in March 2004, the physician reported that he had been requested to determine whether there in fact was a diagnosis of PTSD and if so whether it was related to the veteran's service. He stated that he completed an extensive and exhaustive review of the claims file, the veteran's DD Form 214, and medical records for the veteran. The physician concluded that there was no factual basis for a diagnosis of PTSD and/or maladies sexuellment transmissibles (MST). In his report he emphasized a history that was different from that he had included in the December 2003 report with the implication that the veteran is not a reliable historian. Thereafter, the veteran was provided with another VA psychiatric examination by a different examiner. He was requested to determine the nature, severity, and any etiology of any psychiatric disability, to include PTSD. That examination was conducted in June 2005. The examiner reported that the claims file was available and reviewed, and following the examination reported specifically that he found no symptoms of PTSD. He stated that the veteran does not meet the DSM-IV stressor criterion for PTSD and does not meet the DSM-IV criteria for a diagnosis of PTSD. The Axis I diagnosis was bipolar disorder, manic. Analysis While the claims file contains medical reports describing the claimed in-service stressor for PTSD, the description of the stressor represents the veteran's self-reported history of the incident in question and nowhere in the record has it been independently corroborated by other evidence of record. Because the claimed stressor is not related to combat, corroborating evidence of the stressor having occurred is required. Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Neither the veteran's service medical nor personnel records reflect the occurrence of the claimed attempted sexual assault or any notable change in performance during service. Although some medical professionals have recorded the veteran's history of a sexual assault in service, and some provided a diagnosis of PTSD on the basis of her history, they made no reference to any credible supporting evidence that the incident in service as described by her actually occurred. The Board acknowledges that in July 2003, a retired staff sergeant reported that he noted a change in the veteran's behavior in the fall of 1978, nearly resulting in an Article 15, but this alone does not serve to corroborate her report of the sexual assault in service, especially since her service records show consistently superior performance ratings throughout service. The veteran has been advised of potential alternative sources of evidence that might corroborate her account of having been sexually assaulted in service, but she has been unable to provide or identify evidence that corroborates that she was the victim of a sexual assault in service. Although requested to do so, the veteran did not provide release authorizations for clinical records from Dr. G.E., who in January 2002 said he was treating the veteran for PTSD, or for Dr. R.M., who has stated she based the diagnosis of PTSD on clinical information and test results. The Board therefore has no information as to the stressor(s) on which Dr. G.E. based his diagnosis, and although Dr. R.M, in her late February 2001 letter implied that the veteran's reported sexual assault in service was a stressor for the PTSD diagnosis, there is no indication that Dr. R.M. had any information other than the veteran's statements concerning the reported assault. Further, at the VA examination in December 2003, when the VA examiner reported a diagnosis of PTSD from assault for sexual purposes in service, he noted the only evidence of the assault was the testimony of the veteran. When that examiner reviewed the record in more detail in March 2004, he specifically considered the July 2003 statement from the staff sergeant who reported changes in the veteran's behavior during service, and did not find it verified that she experienced a traumatic event. The veteran's report of the claimed event as documented in her treatment records does not constitute corroboration of the event having occurred. See Moreau, 9 Vet. App. at 395. It is pertinent to point out that the competent evidence is conflicting as to whether the veteran meets the diagnostic criteria for PTSD. As noted above, the two most recent psychiatric opinions essentially rule out a current diagnosis of the claimed disorder, although there is antecedent medical evidence of PTSD. The primary impediment to a grant of service connection here is the absence of a verified in- service stressor. Following a consideration of all of the relevant evidence of record, the Board finds that the claim for service connection for PTSD is not supported by credible supporting evidence that the claimed in-service stressor occurred. As already alluded to, the veteran's statements, alone, cannot establish the occurrence of a noncombat stressor - even in a case involving a purported sexual assault. See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) (the presumption of credibility is not found to "arise" or apply to a statement to a physician based upon an inaccurate factual premise or history as related by the veteran). So in the absence of a reliable diagnosis relating any PTSD to service, and in particular a confirmed sexual assault, the Board concludes there is no basis for granting service connection for PTSD. In view of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim. Accordingly, the benefit of the doubt doctrine is not for application and the claim for service connection PTSD must be denied. 38 U.S.C.A. § 5107(b); also see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for PTSD is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

STATEMENT OF THE CASE. It appears from the record and the briefs of counsel, that on the second day of February, 1895, Don A. Gillett made, executed and delivered to John Romig his promissory note for $700.00, payable two years after date, bearing interest at the rate of twelve per cent per annum, payable *Page 187 semi-annually in advance. This note was secured by a real estate mortgage executed by the said Don A. Gillett upon the east half of the northeast quarter of section eighteen, township twenty-two, range six west of the Indian Meridian. It further appears that on the sixth day of February, 1895, Don A. Gillett executed a deed to one Myrtle Gillett for said land, subject to the above described mortgage. It further appears from the record that on the 11th day of March, 1896, John Romig brought an action in the district court of Garfield county against Don A. Gillett and Myrtle Gillett to recover judgment against the said Don A. Gillett for $749.00, with interest and attorneys fees, and to foreclose said mortgage. The petition contained the following averment: "Plaintiff further states that said defendant Myrtle Gillett has or claims to have some interest or lien upon said premises, or part thereof, and if any she may have, it is junior, inferior and subject to plaintiff's mortgage deed." On June 2, 1896, John Romig filed in the district court his affidavit for summons by publication, which affidavit is as follows: "AFFIDAVIT FOR PUBLICATION. "Territory of Oklahoma, Garfield County — ss: In the District Court in the County and Territory Aforesaid. "John Romig, Plaintiff, v. Don A. Gillett and Myrtle Gillett, Defendants. Affidavit. "D. D. Temple being duly sworn according to law, says that he is the attorney for the above named plaintiff, and that on the __________ day of March, 1896, said plaintiff filed in the district court aforesaid a petition against said defendants, showing that said defendant Don A. Gillett heretofore executed and delivered to said plaintiff, John Romig, a certain mortgage deed, conveying the *Page 188 following described real estate, to-wit, the east half of the northeast quarter of section eighteen, township twenty-two, range six west of the Indian Meridian, lying and situated in the county of Garfield and Territory of Oklahoma, to secure the payment of a certain sum of money mentioned in said mortgage and in said petition. That the conditions of said mortgage had been broken, and said mortgage had become absolute. That said plaintiff is the legal owner and holder of said indebtedness and said mortgage. That said defendants claim a lien upon or right, title, estate, interest, or equity of redemption, in or to said premises or some part thereof subject and inferior to the right of said plaintiff and praying judgment for the amount due said plaintiff on the said indebtedness for the foreclosure of said mortgage. That the lien, claim, interest, estate, and equity of redemption of said defendants in and to said premises, if any they may have, be determined and settled, and that said plaintiff be adjudged to have the first lien and claim upon said premises. "That said premises be ordered sold according to law, and the proceeds applied to the payment of said indebtedness due said plaintiff, and that said defendants be forever barred and foreclosed of and from all right, title, estate, interest, property and equity of redemption in or to said premises or any part thereof. "The affiant further says that the said action is brought for the sale of the real estate under the aforesaid mortgage. "Affiant further says that he is unable and that the plaintiff is unable by using due diligence, to obtain service of summons on the said defendants within the Territory of Oklahoma. "Affiant further states that on the __________ day of March 1896, he caused a summons to be issued in said cause for said defendants, directed to the sheriff of Garfield county, Oklahoma Territory. Sheriff made return, 'Defts. not found in my county.' *Page 189 "Affiant further states upon information and belief that the said defts., Don A. Gillett and Myrtle Gillett are non-residents of the Territory of Oklahoma, and that service of summons cannot be made on the said defts., Don A. Gillett and Myrtle Gillett within the said Territory of Oklahoma, and that said pltff. wishes to obtain service upon said defts. by publication, and further affiant saith not. D. D. TEMPLE, "Subscribed and sworn to in my presence before me this 2nd day of June, 1896. J. C. McCLELLAND, Clerk. "SEAL. "By W. B. JOHNSTON, Deputy." On the 18th of December, 1896, judgment was rendred; that on February 20, 1897, said sale was by the mortgage was foreclosed, and the sale of the land ordered; that on February 20, 1897, said sale was by the court confirmed, and an order made requiring the sheriff to execute a deed to the purchaser, and in obedience to such order on March 9, 1897, the sheriff executed a deed to the plaintiff in error, John Romig, for said premises. It appears that thereafter on the 9th of March, 1897, John Roming, for a valuable consideration, sold said premises to the plaintiff in error, Daniel W. Harding. That on September 17, 1898, Myrtle Gillett, the defendant in error, filed her motion to vacate and set aside the judgment upon the following grounds: (1) That the court had no jurisdiction of the defendant Myrtle Gillett. (2) Because said court had no jurisdiction to render said judgment. (3) That the defendant was at all times during the pendency of said action a resident of the Territory of Oklahoma, and that no summons was ever served upon her. (4) That the service of publication was void. *Page 190 In support of this motion to vacate the judgment, the following affidavit was filed by the defendant in error, Myrtle Gillett (omitting caption and jurat): "Comes now the defendant Myrtle Gillett and being sworn says, that on the 11th day of March, 1896, and for a long time prior thereto she was, ever since has been, and now is a resident of the county of Kingfisher and Territory of Oklahoma, and resided upon the real estate in said county described as follows, to-wit: S.W. 1/4, sec. 13, twp. 19, range 7, joining Hennessy, O. T. "That from said 11th day of March, 1896, until after the 18th day of June, 1896, said Myrtle Gillett was personally present upon said real estate, except when she was temporarily absent when visiting or transacting business in the neighborhood, and ever since said last date, except, have never been absent from home but for one week in July, 1895, since we returned from living in Enid in 1893 and 1894 to our present home. "That the said Myrtle Gillett had resided upon said real estate for more than five years prior to the said 11th day of March, 1896, and her home and residence was well known to the people of said neighborhood and county, and to a large number of persons in Garfield county, O. T. "That this affiant had no knowledge of the institution or prosecution of the above entitled cause until long after the date of sale of land, and had no actual notice of the institution and pendency of said action." The plaintiffs in error offered in opposition to the showing of Myrtle Gillett the affidavits of John Romig and Daniel W. Harding which are as follows (omitting caption and jurat): "John Romig, of lawful age being first duly sworn, on his oath says: That he is the plaintiff in the above entitled action; that prior to the time the petition in said entitled action was filed I employed D. D. Temple as my *Page 191 attorney to foreclose the mortgage recited in said plaintiff's petition, and as my attorney he was authorized to do all that was necessary to be done in said cause. "Affiant further says that he is not, nor never has been acquainted with the defendant named Myrtle Gillett, nor any person by the name of Myrtle Gillett, nor does he know that there is such a person, that no person of that name ever offered to pay the mortgage mentioned in plaintiff's petition, nor any of the interest on said note, nor had they paid any taxes on said land mentioned in said mortgage. "That the only information concerning such a person this affiant had learned of during the proceedings in foreclosure, is that a party of that name resided in the state of Kansas, and not within the Territory of Oklahoma. "Daniel W. Harding of lawful age, being first duly sworn, on oath says: That on the 9th day of March, 1897, for a valuable consideration I purchased in good faith of John Romig, plaintiff in the above entitled cause, the east half of the northeast quarter of section eighteen, township twenty-two, range six west of the Indian Meridian, except a strip of eighthy feet off of the west side from the north to the southern boundary. And that ever since the date of the purchase of said described tract of land from said John Romig, and at the time said notice to set aside said judgment was served on this affiant, as well as up to the present time, this affiant has been in full and complete possession of said land and the owner and holder of the same, and without any knowledge of any rights or claim of any person other than he, the said John Romig, his grantor, who held the same under a sheriff's sale and deed prior to the purchase of the same by this affiant. And affiant further says, that the deed conveying said tract of land to this affiant by said John Romig is a general warranty deed, and is recorded on page 170 in book five of deeds in the office of the register of deeds of Garfield county, Territory of Oklahoma." *Page 192 The court sustained the motion to vacate and set aside the judgment as to the defendant Myrtle Gillett, on the ground that the judgment is void for want of jurisdiction, and that all subsequent proceedings thereunder were wrongful and void, and ordered that the plaintiff be restored to the possession of the premises from which she was wrongfully dispossessed. From this ruling and order of the court the plaintiffs in error bring the case here. Opinion of the court by We think that the court properly sustained the motion to vacate and set aside the judgment on the ground that the affidavit for service of publication was wholly insufficient, and therefore the court had no jurisdiction of the person of the defendant in error. The only service had in this case was by publication. The defendant in error, Myrtle Gillett, filed no pleading and made no appearance in the action. Judgment was entered against her by default. The affidavit in this case was made by the attorney of record of the plaintiff. It states that, "upon information and belief that the said defendants Don A. Gillett and Myrtle Gillett are non-residents of the Territory of Oklahoma, and that service of summons cannot be made on the said defendants Don A. Gillett and Myrtle Gillett within the said Territory of Oklahoma." The affidavit proves nothing. It does not state facts, but only affiant's belief that the defendants were nonresidents of the Territory of Oklahoma. Such a statement is but a mere hearsay declaration of counsel for the plaintiff, and does not amount to legal proof. *Page 193 In Hefern v. Davis, 10 Wis. 443, it wan held by the supreme court of Wisconsin that: "Statements on information and belief merely, that the defendant's residence cannot be ascertained, or that his whereabouts cannot be discovered, are not sufficient evidence of non-residence in the state to authorize an order of publication of the summons. Such statements are but hearsay, and do not amount to legal proof." The affidavit being insufficient the court had no jurisdiction of the defendant in error. We think this defect in the affidavit is fatal to the service by publication. The affidavit is the basis upon which jurisdiction is obtained. The plaintiff has no authority to obtain service by publication until after he has filed the proper affidavit, and without such affidavit the publication is absolutely void. Where a party seeks to bring a defendant into court by service by publication under the code, he must strictly comply with the requirements of the statute, and unless this be done the judgment will be vacated and set aside for want of jurisdiction of the person of the defendant. It must follow that where the service is absolutely void, every subsequent proceeding including the judgment, the order of sale, the confirmation of the sale, and the sheriff's deed, must necessarily be void. In Shields v. Miller, 9 Kan. 390, the supreme court of that state declared that: "In an action to foreclose a mortgage on real estate, service may be made upon a defendant not residing within the state, by publication; but before such service can be made, an affidavit must be filed showing that service cannot be made personally on the defendant within the state. And where a service by publication has been made in such a case, without said affidavit being first filed, the service is void; and every subsequent proceeding in the case *Page 194 founded on such service, including the judgment, the execution or order of sale, the sale, and the sheriff's deed, must also necessarily be void." The same rule was also announced by the supreme court of Kansas in the cases of Harris v. Claffin, 36 Kan. 543; andGrouch v. Martin, 47 Kan. 313. The judgment of the district court is therefore affirmed at the costs of the appellants. McAtee, J., having presided in the court below not sitting; all of the other Justices concurring.

182 F.2d 519 50-1 USTC P 9333 UNITED STATES,v.VENUTO. No. 10069. United States Court of Appeals Third Circuit. Argued March 7, 1950.Decided May 29, 1950. 1 John M. Smith, Jr., Philadelphia, Pa. (Joseph Moss, Philadelphia, Pa., on the brief), for appellant. 2 Gladstone P. Lillicrapp, Asst. U.S. Atty., Philadelphia, Pa. (Gerald A. Gleeson, U.S. Atty., Philadelphia, Pa., on the brief), for appellee. 3 Before BIGGS, Chief Judge, HASTIE, Circuit Judge, and LEDERLE, District Judge, sitting by designation. 4 LEDERLE, District Judge. 5 This is an appeal from a judgment of conviction and sentence after trial by a jury on a four count indictment charging defendant with wilfully and knowingly attempting to defeat and evade some $34,000 in individual income taxes for the calendar years 1942 to 1945, inclusive, in violation of Section 145(b) of the Internal Revenue Code, 26 U.S.C.A. § 145(b). 6 Defendant asks for judgment of acquittal or, alternatively, a new trial, claiming that the Government failed to establish any taxable deficiency beyond a reasonable doubt, that he was deprived of his constitutional right to consult with his counsel during trial, and that the trial court erred in the admission of evidence, in restricting closing arguments, and in his charge to the jury. 7 Defendant entered the United States from Italy in 1923 at the age of twenty-three. He has spent the intervening twenty-seven years in Philadelphia. He is a butcher by trade, and was so employed with various meat dealers in Philadelphia from 1923 to 1941. He started working in Philadelphia for $3 a week, and was associated with meat dealers at progressively advancing compensation until he opened his own meat store in 1941. 8 During the prosecution years, 1942-1945, defendant rented and occupied a three-story building, where he operated a retail meat store on the first floor and resided above. Prior to 1942, defendant acquired eight pieces of income-producing property. In 1942, he purchased a slaughterhouse in Philadelphia for $9500. In 1943, he acquired an additional piece of property for $3400, and in 1944, two additional pieces of property for $30,000. Most of these acquisitions were paid for outright by check. 9 During the four years in question, defendant's income was derived from operation of his retail meat store and slaughterhouse and from rental income on the properties previously mentioned. He maintained no books of account other than check stubs. 10 Evidence was introduced tending to prove that all receipts from defendant's slaughterhouse, meat store and rentals were deposited regularly and currently in four bank accounts in Philadelphia, and all expenses were paid therefrom by check. Counsel stipulated that these four bank accounts showed deposits totalling $1,009,535.35 for the four years. Counsel also stipulated that third party records and defendant's check stubs showed that defendant's purchases of merchandise bought for sale were understated nearly one-half in his tax return for each year in question. Stipulated actual purchases for the four years aggregated approximately $825,000. Reported purchases approximated $450,000. 11 Government agents testified that they reconstructed defendant's income picture for the years in question in the following manner. They analyzed the bank accounts and defendant's check stubs and cancelled checks, verifying through third party suppliers, actual purchases of merchandise bought for sale. As to real estate income, this was verified through statements of receipts and disbursements prepared by the real estate firm which managed all of defendant's real estate business and remitted monthly to defendant net income after deducting expenses and commission. The agents determined that bank deposits constituted business receipts except for some $18,000 of non-income items for the four years. For each year in question, these non-income items were first deducted from the respective annual bank deposits. The balance was considered gross business receipts, from which the actual stipulated meat purchases were deducted. No change was made in any other expense deductions appearing in defendant's returns, as to which full credit was allowed as claimed. Upon such reconstructed income figures, the tax deficiencies were computed. The following tabulation shows the discrepancy between the Government agents' computations and those reported in defendant's returns as to gross business receipts less purchases of merchandise bought for sale. Government Figures 12 1942 1943 1944 1945 Gross receipts $192,523.81 $273,071.57 $331,210.78 $172,100.00 Stipulated purchases 164,121.14 245,231.62 287,025.72 128,113.69 ----------- ----------- ----------- ----------- Net Balance $ 28,402.67 $ 27,839.95 $ 44,185.06 $ 43,986.31 Reported Gross receipts $101,168.42 $131,261.40 $175,170.31 $117,713.58 Purchases 85,421.80 110,612.39 145,580.93 99,252.87 ----------- ----------- ----------- ----------- Net Balance $ 15,746.62 $ 20,649.01 $ 29,589.38 $ 18,460.71 13 Defendant took the stand and testified that his sole source of income was from the meat businesses and rental of properties and that all receipts from these enterprises went into these bank accounts. 14 Since we are of the opinion that a new trial must be ordered on other grounds, we do not feel that it is proper at this time to analyze various phases of the testimony pointing to guilt. Suffice it to say that this record contains evidence from which a jury could conclude beyond a reasonable doubt that during the prosecution years defendant had businesses of a lucrative nature, that he made periodic deposits in, and withdrawals from, bank accounts, that the difference between such deposits and withdrawals reflected current income, and that there was a substantial understatement in reporting income. Such proof meets the requirement of the so-called bank deposit method of reconstructing a taxpayer's income picture, and would be legally sufficient to support a verdict finding that there was a substantial tax deficiency for each of the prosecution years, which defendant knowingly and willfully attempted to defeat and evade. See: Gleckman v. United states, 8 Cir., 1935, 80 F.2d 394, certiorari denied 297 U.S. 709, 56 S. Ct. 501, 80 L. Ed. 996; Stinnett v. United States, 4 Cir., 1949, 173 F.2d 129, certiorari denied 337 U.S. 957, 69 S. Ct. 1531, 93 L. Ed. 1756; Paschen v. United States, 7 Cir., 1934,70 F.2d 491. 15 This trial lasted four days. The records upon which the prosecution was predicated were voluminous. Near noon of the second day, the Government closed its case, and defendant took the stand. His direct examination was completed late in the afternoon, and cross-examination commenced immediately. The court excused the jury at 4 o'clock, and thereupon stated: 'I would like to say to counsel, I do not want to keep this man in custody overnight- he is now committed for cross-examination so he will not discuss this case with anybody. Otherwise, I will have to commit him.' In the ensuing discussion, similar and more explicit directions were given by the trial judge to the effect that defendant and his counsel were required to bind themselves not to consult together during this eighteen hour overnight recess at this crucial point of the trial or the court would revoke defendant's bail and commit him to jail incommunicado so that no consultation would be possible. Yielding to the court's ultimatum, the vow of silence between accused and his counsel was given and fulfilled. Twice while defendant was on the stand, the court announced short recesses, and admonished the defendant to remain seated and Have no discussion with your counsel or anybody else.' No such injunction was imposed upon any other witness during the trial. 16 We recognize the necessity for reposing in a trial judge a reasonable discretion in the matter of restricting persons in the court room so that proceedings may be conducted in an orderly manner; but, as announced in Glasser v. United States, 315 U.S. 60, 71, 62 S. Ct. 457, 465, 86 L. Ed. 680: 'Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.' 17 To deprive an accused defendant and his counsel of the right to consult with each other during an eighteen hour court recess was most certainly deprivation of the defendant's constitutional right to consult counsel at all stages of the proceeding. We can find no justification for imposing a restriction of silence between accused and counsel during a trial recess. We reject the Government contention that defendant and his counsel must prove affirmatively the exact prejudice produced by this injunction in a federal prosecution. Not only would this require them to disclose what would have been privileged communication between attorney and client, but, as stated in Glasser v. United states, supra, 315 U.S.at page 76, 62 S.Ct.at page 467: 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' By restricting the right of consultation between this defendant and his counsel during court recesses, defendant was denied the right to have the assistance of counsel for his defense, as guaranteed by the Sixth Amendment to the Constitution. His objection on this ground and his motion for mistrial directed to the trial court were well founded. Accordingly, the conviction must be reversed and a new trial granted. 18 The defendant offered proof tending to show that he was illiterate, able to read or write little beyond his own name, and that the entire task of his account keeping and tax reporting was performed by one Frederick Grun, who prepared checks and income tax returns for defendant's signature without any instructions to understate income. Mr. Grun was identified by various witnesses as an itinerant bookkeeper, who was regarded as somewhat of an oracle in the Italian section of South Philadelphia, where he traveled throughout the day from one meat dealer to another, combining his accounting services, for which he charged little, with his main business of selling insurance to these merchants. It is defendant's position that, if there was an understatement of income, the sole responsibility therefor rests with Grun, that defendant neither knowingly nor willfully participated therein, and that to the extent the Government was defrauded, defendant likewise was misled by Grun, upon whom he relied to properly perform the accounting duties. 19 The defendant testified that he entrusted practically all his check writing to Grun, either signing checks prepared by Grun, or signing checks in blank so that Grun could complete them for payment of defendant's expenses. He also testified that a check signed by him in blank for payment of expenses had been fraudulently completed by Grun to his own order in the amount of $2000, and that this defalcation was not known to defendant until he was questioned about it by Government agents making this income tax investigation. Defendant testified that he had trusted Grun implicitly, and, upon learning of this check, he had forthwith discharged Grun as his accountant and had reported the matter to the District Attorney for prosecution, for which reason hostility existed between him and Grun. Grun was subpoenaed by both the Government and defendant, was in the court room each trial day and was identified by various witnesses, but was not called to the stand. 20 During his closing argument, defendant's counsel was in the process of arguing to the jury that, because of hostility over this $2000 check, defendant couldn't rely upon Grun to testify truthfully, which was the reason Grun had not been called by defendant to corroborate his testimony that Grun and not defendant was the only one who had knowingly understated defendant's income. At this juncture, counsel was stopped by the court, his remarks ordered stricken, and, when counsel objected, he was admonished not to continue this line of argument. In his charge, the court stated to the jury: 'Counsel for the defendant quite dramatically told you that there was a bookkeeper employed by the defendant and that the entire responsibility was his by reason of the ignorance and lack of reading, writing, and complete understanding of the defendant's responsibilities. You may recall that he asked Mr. Grun to stand up, and a man stook up, and he called the man to your attention there in the third row. That was the last heard of Mr. Grun, and you haven't heard from him, nor has the Court or anybody else since that time. Members of the jury, you will have to draw your own inference from that.' Counsel's line of argument was properly predicated upon a reasonable inference that might be drawn from evidence which defendant had introduced. It was error to strike and restrain such argument. This being true, a fortiori it was prejudicial error for the court in charging the jury to suggest an opposite analysis of the same set of circumstances, as was done in the quoted portion of the charge. 21 One of the Government agents testified to his preparation of a net worth statement of defendant's assets and liabilities. However, upon cross-examination, he admitted that he did not have data as to defendant's liabilities and that a net worth statement could not be prepared without such data. The Government conceded that it was not relying upon the net worth theory to prove its taxable deficiency, and that such net worth statement had not been used in computing the deficiency. 22 Defendant's motions to strike the testimony as to this net worth statement should have been granted, and defendant's objections to Government agents' subsequent references to such statement should have been sustained because the statement was not relied on and was concededly unreliable under the principles enunciated in U.S. v. Fenwick, 7 Cir., 1949, 177 F.2d 488, and Bryan v. U.S., 5 Cir., 1949, 175 F.2d 223, wherein a Court of Appeals reversal ordering new trial on the sole ground of insufficiency of evidence was affirmed in 338 U.S. 552, 70 S. Ct. 317, as against defendant's contention that judgment of acquittal was mandatory. 23 This error in permitting Government witnesses to continue referring to such statement was not cured by the trial court's statement in his charge. Undoubtedly, the repeated reference to the statement indelibly imprinted it upon the minds of the jurors, and charging the jury that the statement was legally defective 'if you so find' further clouded the picture by making the jurors finders of law as well as fact. 24 One of defendant's specifications of error relates to a claimed unresponsive and misleading answer given to the jury by the trial court upon a written question presented by the jury during its deliberations, which read: 'Please find out whether the amended tax was because of certain deductions which were not allowed or for what other reason for the two years the amended tax was collected.' The question was not too explicit, but apparently what it asked for was a statement as to the differences between original and amended returns for two years,1 all of which were exhibits. Should this situation arise in the re-trial, the jury could be instructed to make its own comparison of the documentary exhibits. 25 We have examined the cases cited by the Government, and will not burden this opinion with a discussion thereof other than to say that they are distinguishable. 26 The judgment will be reversed and the cause remanded for a new trial. 1 For the two years when amendments were filed, the deficiencies were based upon the amended rather than original returns

327 S.W.2d 823 (1959) Charlotte E. REINHEIMER and Clarence Reinheimer, Appellants-Respondents, v. Amanda RHEDANS and Margaret L. Cleeland, Respondents-Appellants. No. 47091. Supreme Court of Missouri, Division No. 2. September 14, 1959. Motion for Rehearing or to Transfer Denied October 12, 1959. *824 Julius Berg, Clarence Neudeck, Francis R. Stout, St. Louis, for plaintiff Charlotte E. Reinheimer and third party plaintiff Clarence Reinheimer, appellants-respondents. Donald S. Hilleary, St. Louis, for defendants Amanda Rhedans and Margaret Cleeland, appellants-respondents. Motion for Rehearing or to Transfer to Court en Banc Denied October 12, 1959. EAGER, Judge. In one count of their second amended petition plaintiffs seek to set aside certain deeds as fraudulently induced and procured by defendant Rhedans, and in another they claim title by adverse possession and ask a declaration that defendants have no title. The property involved is a 30 foot vacant lot next to the home of plaintiffs in the City of St. Louis. The lot is described as "Lot 71 of the resubdivision of Block No. 5 of South St. Louis Suburb, and in City Block No. 2730 of the City of St. Louis and in subdivision now known as Grand Avenue Heights; * *" The house of plaintiffs is on Lot 70. Suit was originally filed on Aug. 30, 1956, by Charlotte Reinheimer; Clarence Reinheimer, her husband, was brought in as a necessary party on motion of defendants on April 12, 1957; thereafter he joined generally with the original plaintiff in her claims. In an amended counterclaim defendants claim title to the lot, pray an adjudication of the title, and also seek to hold Clarence Reinheimer liable upon his covenants of warranty for all judgments rendered against them. To digest the pleadings further would complicate this opinion unnecessarily. The issues will appear from the facts and from our discussion. Clarence Reinheimer and defendant Amanda Rhedans are brother and sister; she was 76 years of age at trial time; his *825 age is not shown. Defendant Cleeland is Amanda's daughter, and is joined here because title to the lot was later put in the joint names of the mother and daughter. The source of title was Frederick Reinheimer, the father of Clarence and Amanda. Under date of Dec. 10, 1938, he conveyed Lots 70 and 71 to Clarence as "a single person"; this deed conveyed both the house and the controverted vacant lot next to it. Clarence had married in 1937 and there is much discussion, pro and con, as to whether the marriage had been kept secret. His wife Charlotte was a registered nurse and she continued to use her previous name, even to the time of trial; she testified that they told Clarence's father about the marriage within "a week or so," but there is little or no explanation of the fact that the father deeded the property as he did fourteen months later; she further testified that she was introduced to Mrs. Rhedans as Clarence's wife on April 30, 1942. The father died in 1940; under date of May 11, 1942, Clarence, designated as "a single person," purportedly executed and acknowledged a warranty deed to Lot 71 to his sister Amanda Rhedans as grantee. It is this deed, primarily, which is sought to be cancelled; the later ones are merely secondary. Plaintiff Charlotte testified that she first learned of the deed in July 1942, from a neighbor, but then "looked it up." Clarence testified: that he gave his father a note for $2,000 when the real estate was conveyed to him, and that he later paid this note to the estate; that the house was worth considerably more than that; that his sister had been asking him for a deed to the lot substantially ever since his father died, and told him that she had a paper or a note signed by their father stating that she should have the lot, but that she could not locate the paper. He further testified: that shortly before May 11, 1942, she told him that she had found the paper, so he proceeded to the office of a Mr. Panzier (who had been attorney for the father's estate and who was dead at trial time) to have him prepare a deed to the lot; that Mr. Panzier was out, so he got from the office girl a warranty deed form which he signed in blank, leaving word that Mr. Panzier should complete it and that he would pick it up shortly; that he, Clarence, did not deliver the deed to his sister, nor did he acknowledge it in person (the acknowledgment was affixed by Mr. Panzier as of the date of the deed); that he learned later that his sister had picked up the deed; that he received nothing from her for the deed, in money or property. The fraud charged, so far as Clarence is concerned, rests in the fact that his sister picked up the completed deed without showing him any note or paper from his father. He further testified: that during May 1942 he asked his sister, by phone, for a return of the deed, the remainder of the conversation not being shown; that about 1947 his niece (Cleeland) came to his home and asked if his wife would sign a quitclaim deed, which she presented; that he did not let her in the house but went in and asked his wife if she would sign it; his excuse for this action was that he knew that the wife would not sign it. Clarence admitted receiving a deed from Mrs. Rhedans to a lot in St. Louis County, discussed later, but testified that he paid her $675 in cash for that deed in Mr. Panzier's office when he received it in October 1941. Amanda Rhedans testified: that her father wanted Clarence to have the house and wanted her to have the lot; that she did not ask the father for a deed before his death because he was sick; that after his death she often requested a deed from Clarence but he wanted "pay" for the lot; that shortly before he went to an American Legion Convention in Boston in 1940, he gave to her at her house a signed paper stating that in case of his death the lot should be "given to my sister Mrs. John Rhedans on instructions from my father * * *." This paper *826 was offered as an exhibit and a photostat is here; Mrs. Rhedans testified that she (somewhat irregularly) had it notarized in the absence of Clarence, but with his consent. The brother's testimony about this instrument was rather equivocal; he stated that he guessed that it was his signature, that he did not remember signing it, that he did not know and did not remember whether he had prepared it, that his father never told him to give her the lot although she always insisted that the father had so intended, and he finally said that he never saw the paper before. Amanda further testified: that her father left three lots in St. Louis County and each of the three children was to have one; that the executors (one of whom was Clarence) deeded all three lots to her and charged them against her interest in the estate, promising to buy two of them back from her; that she finally conveyed one of these lots to Clarence as consideration for his deed to the lot here in controversy; her deed to him was dated and acknowledged on Oct. 27, 1941, but was not recorded until July 15, 1942. (The deed in controversy from Clarence to her, dated May 11, 1942, was recorded on July 20, 1942.) She also testified: that the deed to Lot 71 (here in controversy) was delivered to her by Clarence, and that they exchanged deeds at that time in his yard because he would not let her in the house; that Clarence had given her a computation (which she produced at the trial), claiming that she owed him money for taxes and interest, but that she did not understand this; that she finally agreed to "square it" by deeding him the lot in St. Louis County and getting his deed to Lot 71. Clarence, as stated, testified that he paid his sister $675 in cash for her lot. Amanda also testified that she did not know at the time of the exchange of deeds that Clarence was married, that she had seen Charlotte in the house about May 1st, but had not been introduced to her; that she had had little or nothing to do with Clarence after their father's death, and that a relative told her about 1947 that he was married; that she then sent her daughter to see if she could get a quitclaim deed from his wife. She further testified: that she never told Clarence that she had a "paper" signed by her father, and that she never even attended a funeral at which Charlotte claimed to have talked with her about the lot; that she did not receive $675 or any other sum for the lot which she deeded to Clarence. Margaret Cleeland, Mrs. Rhedan's daughter, testified that about May 1942, Clarence introduced Charlotte as his "housekeeper." Tax payments on the controverted lot were handled in a rather peculiar manner. Amanda Rhedans (or her daughter) paid the taxes for 1943-'44-'45 and '46 and produced receipts; she testified that after 1946 tax statements were refused for a time, they being told that the taxes had already been paid; that they also paid the taxes for 1953-'54-'55 and '56, and she produced the receipts. It seems that during the intervening years the plaintiffs had asked for statements and had paid the taxes; in fact, there seems to have been a sort of "scramble" for the right to pay taxes. However, the taxes were sometimes paid practically at the end of the year; for 1947 they went delinquent, being paid with the 1948 taxes on Dec. 23, 1948. The tax question is not deemed controlling. On the plaintiffs' claim of adverse possession, the petition alleges that both plaintiffs had been in continuous and hostile possession for more than ten years, under a claim of right. Photographs were offered, showing, among other things, a fence between the lot and the house next door, a board fence at the rear of the lot, a little hedge in front, and a few rose bushes on the lot; plaintiffs testified that they had trimmed and sprayed the trees on the lot, picked fruit, removed dead and broken trees, cut the grass, planted flowers, constructed and maintained *827 fences, and that they had always cared for the lot. Plaintiffs had taken down, within a matter of hours, a "For Sale" sign put up on the lot about 1948 or '49. Margaret Cleeland and her husband had dug and planted a small vegetable garden on the lot in the summer of 1943, but it was rather late and the lot was too shady, so nothing was produced but some radishes. Mrs. Cleeland testified that she saw Charlotte then, talked with her on two or three occasions, and that no objections whatever were made to their use of the lot. Charlotte did not deny the existence of the garden, but denied seeing the Cleelands there. We may note also, as of some significance on the question, the following: that when plaintiffs transferred title from the name of Clarence alone to their joint names in 1947, they transferred only the title to the lot which the house was on, and did not attempt to include the vacant lot; that on Feb. 25, 1948, Charlotte Reinheimer executed an affidavit, prepared for her by a lawyer, stating: facts to show an inchoate right of dower in the lot, the fact of the husband's conveyance without her consent or knowledge, and that she thereby served notice that she had "an inchoate Dower Right" in the lot. This affidavit was recorded on March 1, 1948; a copy was attached to the petition on which the case was tried. At the trial Charlotte testified that she had only claimed a dower right in the property and had not said that she owned it. The trial court found and adjudged that the deed from Clarence to Amanda, and the two subsequent deeds which established a joint title in the defendants, were "technically fraudulent" and void in so far as they attempted to affect plaintiff Charlotte's marital rights; it found against plaintiffs' claim of adverse possession and rendered judgment on Count II accordingly; it found and adjudged title to be in the defendants, subject to Charlotte's "marital rights"; and it found all "other issues" on defendants' counterclaim for plaintiffs, apparently referring to the claims on Clarence's covenants of warranty. From this decree all parties appealed, following the overruling of after-trial motions. Plaintiffs claim here that the court erred in not setting aside the deed from Clarence to Amanda as fraudulent and void in toto, and in failing to adjudge title in them by adverse possession. Defendants claim that Charlotte's inchoate right of dower was abolished by the new Probate Code, that the court erred in holding the deed void as to Charlotte's marital rights, that there was no fraud, that Amanda paid a valuable consideration for the deed, that the suit is barred by the Statutes of Limitation, and that plaintiffs wholly failed in their attempt to establish title by adverse possession. Sections 474.110 and 474.150 Mo.Cum. Supp.1957, V.A.M.S., are (so far as material) as follows: "474.110. Curtesy and dower abolished.—The estates of curtesy and dower are hereby abolished, but any such estate now vested is not affected by this code." "474.150. Gifts in fraud of marital rights—presumptions on conveyances.—1. Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse's share, as in case of his election to take against the will. "2. Any conveyance of real estate made by a married person at any time without the joinder or other written express assent of his spouse, made at any time, duly acknowledged, is deemed to be in fraud of the marital rights of his spouse *828 (if the spouse becomes a surviving spouse) unless the contrary is shown."[1] There can be no doubt that the legislature has generally abolished the right or expectancy of inchoate dower; a measure of protection is afforded by section 474.150, but not as dower. This legislative action was effective on Jan. 1, 1956, prior to the filing of this suit. No question is raised here of the power of the legislature to so act. Inchoate dower is not a vested right. Chouteau v. Missouri Pacific Ry. Co., 122 Mo. 375, 30 S.W. 299, 300; Id., 122 Mo. 375, 22 S.W. 458; First National Bank of Stronghurst, Ill. v. Kirby, 269 Mo. 285, 190 S.W. 597; Borders v. Niemoeller, Mo.App., 239 S.W.2d 555. Compare Sando v. Phillips, Mo., 319 S.W.2d 648, 650. In return for the abolition of dower the widow has been given the rights by descent provided in section 474.010 and the exemptions, allowances and homestead rights provided by sections 474.250-474.300, inclusive. See: Comments of Simes, Model Probate Code § 31, p. 68. See, also, "New Probate Code," Judge Leslie A. Welch, 11 Mo.Bar Journal 145, 168; and, generally, 21 Mo.Law Review 151 et seq. This brings us to the necessity of deciding whether the wife, Charlotte, has any rights here under section 474.150, supra. But, first, we shall consider the contention that Clarence's deed to his sister should be set aside in toto as fraudulently procured and without consideration. The issue of "undue influence," though pleaded, was in no sense developed. The trial court made no findings of fact, but it seems clear that it necessarily found the facts on this issue for the defendants, for it only found the deed "technically fraudulent" as to Charlotte's marital rights. The "fraud" which plaintiffs seem to claim is that Amanda picked up the deed from the lawyer's office without showing Clarence any "paper" from her father. It was not shown how she knew it was there. In this test of credibility, so unfortunate between brother and sister, we have determined the fact issues for the defendants. We find from our independent examination of the record that Clarence delivered the controverted deed to his sister in exchange for her deed to the lot in St. Louis County; also, that he did not pay her, in cash or otherwise, for the St. Louis County lot. These deeds were recorded within five days of each other; there would have been no purpose in Amanda's holding Clarence's deed off the record from sometime shortly after May 11 until July 20, when she had been so anxious to get it for two years; nor would Clarence have been likely to hold up the recording of the deed to the St. Louis County lot for nine months, had it been delivered on or shortly after its date. Clarence had known for fourteen years prior to the filing of this suit that his sister had the deed, and he did nothing about it; in fact, he was brought into this case only on motion of the defendants. His actions now, after so long an acquiesence, are somewhat unseemly. We have considered on this contention all the facts mentioned elsewhere in this opinion; and we rule it adversely without further express consideration. What we have thus determined also bears directly upon the charge that the deed was in fraud of Charlotte's marital rights. She had the expectancy of inchoate dower in the property until Jan. 1, 1956; thereafter she had no right in or claim upon that specific property unless the conveyance was in fraud of her marital rights, within the meaning of section 474.150, or otherwise. That section does not attempt to establish or create any new definition of fraud. See Comment to comparable Section 33 of the Model Probate, Simes, p. 73. It is the apparent purpose of subsection 2 to shift the burden of proof to the grantee to disprove fraud where real estate is conveyed by the husband alone without the joinder *829 or written and acknowledged assent of his wife; the subsection was obviously written to compel joinders. Subsection 2 covers a broader field than subsection 1, in that the latter is confined to "gifts" in fraud of marital rights, whereas subsection 2 deals with all conveyances by a husband alone, presumably with or without consideration; but fraud is still necessary, as we construe the statute. It has been said, with reference to subsection 2, that: "It is probable, however, that if it is shown that consideration is given for the conveyance, the presumption as to fraud will be rebutted." Editorial Comment to this section in Vol. 26 V.A.M.S. We do not decide that here, but consideration is certainly a highly material element in dealing with conveyances questioned as in fraud of marital rights, and especially so under this statute. Here we have determined that a valuable consideration passed and that there was no gift; this presumably eliminates the application of subsection (1). We have also determined that no fraud against Charlotte's marital rights has been demonstrated, and that, if the burden be on defendants to disprove all such fraud, they have satisfactorily done so. We have questioned whether the burden here is upon the defendants to disprove fraud because of the inclusion in subsection 2 of the parenthetical phrase "(if the spouse becomes a surviving spouse)," which puts some limitation upon the application of the subsection. Here Charlotte has not become a surviving spouse, her husband being still alive. This whole subsection was changed materially from Section 33(b) of the Model Probate Code. See Comments under this section in Vol. 26 V.A.M.S., and in Mo.Cum.Supp.1957. The parenthetical phrase is apparently original in Missouri. Our courts have not yet been required to decide whether, under this Code, a wife may sue to protect her marital rights while her husband is still alive. The Code, generally, contains no express limitation on or prohibition of this right, so far as we have found. We do not construe section 474.150 as an attempt to eliminate or limit the right of a spouse to sue to set aside a deed for fraud at any time, if indeed the power of courts of equity to entertain suits of that nature may be limited by the legislature. Under the prior law a wife was permitted to sue in advance of her husband's death to protect her inchoate dower. Hart v. Parrish, Mo., 244 S.W.2d 105; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149; Vordick v. Kirsch, Mo., 216 S.W. 519. We deem it proper here to consider plaintiffs' case on the merits. On the facts here we find no fraud as to Charlotte's marital rights; certainly there is an absence of the clear and convincing evidence usually necessary to invoke the extraordinary power to set aside a deed. Mueller v. Mueller, Mo., 318 S.W.2d 365, 368. And the evidence as a whole disproves any and all such fraud, as we have already stated. It fairly shows that the deceased father wanted Amanda to have this lot, and told her so; her admitted conduct from the time of his death was consistent with that wish. It is conceivable that the facts here might have established a trust in Amanda's favor, but we certainly do not need to go into that. In attempting to get a deed from her brother from 1940 to April 30, 1942, Amanda could not possibly have been seeking to defraud his wife, for the latter date was the first time when even plaintiffs claim that Amanda was notified of the marriage. The brother finally acceded to Amanda's claim, but he stands here on the rather tenuous objection that she did not show him the "paper" from his father, and should not have received delivery of the deed; he has not very satisfactorily explained the exhibit purporting to be his own "paper," which directly refers to the father's wish. Clarence's deed was obviously made to settle a family argument between the brother and the sister, and not in pursuit of any scheme to defraud Charlotte of her marital rights. We do not find that the evidence fairly establishes the fact that Amanda knew of Clarence's marriage at the time she received the deed; that might not be material *830 under these circumstances, if true, for certainly the primary purpose of the deed was not to defraud Charlotte, and we have found consideration. We find that Amanda gave a valuable consideration for the conveyance of Lot 71, namely, the deed to her lot in St. Louis County. Plaintiffs do not suggest an inadequacy of consideration as constituting a fraud; they simply deny that there was any consideration, and assert that Clarence paid her, in cash, for that lot. We have found against that contention. Under these circumstances we do not need to compare values, or go into the adequacy of the consideration. There was some evidence that Clarence claimed that Amanda owed him money because he had given his father a note, and had paid interest on the note and taxes on the lot, as well as on his house. He did not claim, however, that the St. Louis County lot was transferred to him for this alleged debt, asserting that he paid in full for it; the status of the so-called debt is so vague, both factually and legally, that we hold it ineffective to invalidate the consideration passing to Clarence. There was no conveyance here in fraud of the marital rights of the wife. Defendants have pleaded and briefed the bar of the foregoing claims by limitations. In view of our determination on the merits, it would be worse than useless to discuss that question. There remains the contention of plaintiffs that they acquired title by adverse possession. Clarence's deed was made in and, as we find, delivered shortly after May 1942. Thereafter he and his wife lived in the home on Lot 70, and cared for the adjacent lot; they undoubtedly maintained some sort of possession of it, but there was nothing unusual about that, for it really was in the nature of an extension of their yard. Clarence, by his deed of May 11, 1942, divested himself of all ownership. He did not thereafter do anything which we construe as notice, actual or constructive, that he was then claiming title adverse to his grantee. As stated in Barada-Ghio Real Estate Co. v. Keleher, Mo., 214 S.W. 961, 962: "`The general rule is that, in order to make continuity of possession after the delivery of the deed the basis of an adverse holding, the grantor must, by words, acts, or conduct, apprise the grantee that he is claiming title and possession of the land against the covenants of his deed; for, until such notice is expressly or impliedly given to the grantee, he will be entitled to rest secure upon the legal presumption that the continued possession of the land by the grantor is in subservience to the grant. Meyer v. Hope, 101 Wis. 123, 77 N.W. 720; Stevens v. Whitcomb, 16 Vt. 121. But when the character of such possession is adequately changed, the grantee must recognize the altered status; for, if he permits the adverse possession to exist without cessation and without challenge for 10 years, the grantor maintaining it may be reinvested with the fee.' Rottink v. Nagle, 275 Mo. [196] 200, 204 S.W. [802] loc. cit. 803." See, also, Robinson v. Reynolds, Mo., 176 S.W. 3. It is not a mere occupancy or possession which must be known to the true owner to establish title by adverse possession, but one which is in opposition to his rights and in defiance of, or inconsistent with, his title. Hilgert v. Werner, 346 Mo. 1171, 145 S.W.2d 359, 361. Here, Clarence never really disclaimed his deed, nor did he during the following period of fourteen years claim actual title or exercise a possession so hostile to and inconsistent with defendants' rights as to constitute notice to them. In 1947 he even presented a quitclaim deed to his wife, without asserting his own title. The same may generally be said of his wife who admittedly learned of the deed in 1942. She did nothing which would constitute notice of a claim of ownership hostile to the deed. A conversation which she claimed to have had with Amanda in the spring of 1944 (denied by Amanda) could hardly have that effect, even if we gave it full credence. We regard the removal of the "For Sale" sign as not of sufficient consequence to be conclusive; and, significantly, no objection was made when defendant Cleeland and her husband planted a garden on the lot. *831 But so far as the wife's actions and claims were concerned (either as agent for both or for herself individually, if the latter be material) she appears to have been very consistent in claiming only a dower interest in the lot. She had a lawyer prepare an affidavit stating that the lot had been transferred to Amanda, that she claimed an inchoate right of dower therein, and that she thereby served notice of such right; she executed that affidavit on Feb. 25, 1948 (during the period when it is now claimed that adverse possession was running), and it was recorded very shortly thereafter as notice of her claim. At the trial she testified: "I said I had a dower right in it, I haven't said I owned it." For possession to ripen into title there must be an unequivocal claim of ownership. Bell v. Barrett, Mo., 76 S.W.2d 394; Mooney v. Canter, Mo., 311 S.W.2d 1; Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544. And it has been said that: "Possession of land in recognition of a lack of title is insufficient ever to ripen into title by adverse possession." Riebold v. Smith, Mo.App., 150 S.W.2d 599, 602. A claim of dower not only falls short of a claim of unequivocal ownership or title, but it is inconsistent with such a claim. Charlotte's claim of dower here was a recognition of the existence of a presently outstanding fee title. We note further that when Clarence transferred the home to joint names in 1947, he made no attempt to include the lot in the transfers. This has been considered material upon a claim of adverse possession. Riebold v. Smith, Mo.App., 150 S.W.2d 599, 602. So far as the taxes are concerned, it seems that plaintiffs first paid taxes on the lot in December 1948; even if that element be material (which it sometimes is) it could in no event be controlling here, for ten years did not run thereafter to the time of suit. The possession of plaintiffs here, such as it was, was entirely too equivocal to ripen into title by adverse possession. The trial court found against the claim, and its judgment therein is certainly not "clearly erroneous" under section 510.310. Title was not acquired here by adverse possession. In their amended counterclaim defendants included a claim against plaintiff Clarence on his warranties; this has become largely moot. In any event, no statement of error in the trial court's judgment on that claim has been included in the "Points Relied On" in defendants' brief, and the matter is deemed abandoned. The judgment is reversed and the cause is remanded with directions to enter a judgment in accordance with the views stated herein. All concur. NOTES [1] The following words in section 474.150, subd. 2 (not material here) were added in the 1957 amendment (Laws 1957, p. 852): "joinder or other written * * * made at any time."

Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 1 of 10 COMMUNITY WORKFORCE AGREEMENT Between BERNALILLO COUNTY, NEW MEXICO and THE NEW MEXICO BUILDING AND CONSTRUCTION TRADES COUNCIL, ON BEHALF OF AND INCLUDING ITS AFFILIATED LOCAL UNIONS [list affiliated unions] AND SOUTHWEST REGIONAL CARPENTERS COUNCIL AND LOCAL 1319: _______________ 1, 20___ – _____________ 31, 20__ 1  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 2 of 10 LABOR-MANAGEMENT PARTNERSHIP This Community Workforce Agreement (“Agreement”) is by and between the New Mexico Building and Construction Trade Council (“Council”), Southwest Regional Carpenters Council and Local 1319 (“SRCC”) and Bernalillo County, New Mexico (“County”) and is based upon fostering labor-management relations, open communication, construction quality, and workforce efficiency. ARTICLE 1 PRINCIPLES A variety of construction skills and crafts will be required to complete the construction work on the construction projects under the jurisdiction of the County. Therefore, the County Commission has determined that taxpayers and citizens within the County would be best served if the construction work on construction projects proceeded in an orderly manner without disruption caused by strikes, work stoppages, picketing, lockouts, slowdowns, or other interference with the work on the Project. Therefore, in recognition of the special needs of County-funded construction projects and to maintain a spirit of harmony, labor-management peace, and stability during the term of this Agreement, the Parties agree to abide by the terms and conditions in this Agreement, and to establish effective and binding methods for the settlement of all misunderstandings, disputes or grievances which may arise. Further, the contractors agree not to engage in any lockout, and the Unions agree not to engage in any strike, slow-down, or interruption or other disruption of or interference with the work covered by this Agreement. Accordingly, each jobsite contractor which participates in any project funded, in whole or in part, by the County in which the total project cost is anticipated to be in excess of seven million dollars ($5,000,000), shall, as a condition of project participation, execute Appendix “A” hereto which shall be specific to an individual project (“Project”) and shall ensure those jobs and crafts represented by the Council’s affiliated unions (“Unions”) and SRCC and their members are employed by Project contractors and subcontractors which are signatory to collective bargaining agreements (“Labor Agreements”) with such Unions. ARTICLE 2 COVERAGE 2.1 This Agreement will cover site preparation, construction, abatement, demolition, renovation, rehabilitation and improvement under the jurisdiction of the Council’s and affiliated Unions, SRCC’s , affiliated during and related to Project work as described in the attached “Contractor’s Letter of Assent” at Appendix “A,” and incorporated by reference herein. 2.2 This Agreement may be utilized on any County construction project where, in the judgement of the County Commission, it would serve the interests of County residents and taxpayers and where the total project cost is anticipated to exceed seven million dollars ($5,000,000). The Parties agree and understand that the County may, in its discretion, 2  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 3 of 10 direct that certain County-funded projects not be covered by this Agreement based the size of the project, the sources of funding, or other factors. 2.3 This Agreement shall not apply to any manager, supervisor, or administrative employee or to any offsite manufacture or fabrication, jobsite soil or other testing, to any vendor or supplier, or to others not directly involved in jobsite construction. 2.4 This Agreement shall not apply to equipment installation, hauling of materials and supplies to or from construction sites, or other specialized work which falls outside the jurisdiction of the Council’s and SRCC’s affiliated unions. 2.5 This Agreement shall not apply to construction warranty work at the Project jobsite done after the date of Project completion. ARTICLE 3 WAGES, BENEIFTIS TERMS AND CONDITIONS 3.1 The job classifications and minimum wages and fringe benefits for covered Project work shall be those in the applicable Labor Agreement(s) as referenced at Appendix “A” and attached hereto, which shall also govern jobsite work rules and conditions for covered work. 3.2 With the exception of Core Employees, as defined and explained below, each signatory Contractor shall pay fringe benefit contributions to the established union benefit funds in the amounts designated in the applicable Labor Agreement(s); provided however that the Contractor and Union agree that only such bona fide employee benefits as accrue to the direct benefit of the employees, (such as pension and annuity, health and welfare, vacation, apprenticeship, training funds, etc.) shall be included in this requirement, and then only to the extent that such are a part of the applicable prevailing wage determination. 3.3 Under no circumstances is any signatory Contractor required to make a payment in excess of that required pursuant to the applicable prevailing wage determination; provided, however, that a Contractor is not prohibited from voluntarily making payments to Funds that are established in a local collective bargaining agreement to which it is signatory as required by that agreement. 3.4 All mandatory wages and benefits, and other worker protections, shall apply to Project work, including those under the New Mexico Public Works Act and any other applicable local, State and Federal laws and regulations. 3.5 Sections 3.1 and 3.2 shall not apply to Core Employees, as defined at Section 4.4, which shall be partially excepted from the Labor Agreement’s fringe benefit requirements as follows: In lieu of union fringe benefit contributions under the Labor Agreement(s) the Contractor shall be permitted to provide benefits for its Core Employees under its employer-sponsored benefit plans for: (a) group health insurance, (b) pension/retirement (including 401K Plans), and (3) paid vacation. Where Core Employees are so covered, the 3  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 4 of 10 Contractor shall be exempt from the Labor Agreement(s) fringe benefit contribution requirements for Core Employees regardless of whether benefit levels and entitlements for these employer-sponsored benefit plans may differ from those under the Labor Agreement(s). ARTICLE 4 UNION DISPATCH AND CORE PROJECT EMPLOYEES 4.1 All covered Project employees shall be properly dispatched to the Project through the union’s hiring hall, except as otherwise specifically provided in this Article. 4.2 In the event the union is unable, for whatever reason, to promptly dispatch qualified, trained, and competent workers to the Project, then the Contractor may hire jobsite workers outside the hiring hall, from any available source, and this will not count against Core Employee hiring entitlements as described below at Section 4.4. 4.3 Selection of applicants for referral to jobs shall be on a non-discriminatory basis and shall not be based on, or in any way affected by, Union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of Union membership, policies or requirements. There shall be no discrimination against any employee or applicant for employment because of his or her membership or non-membership in the Union or based upon race, creed, color, sex, age or national origin of such employee or applicant. 4.4 Notwithstanding 4.1 above, a Contractor who is not signatory to a current local collective bargaining agreement with a Union having jurisdiction over Project work may employ members of its regular employee workforce, or other employees as it requires for covered work on the Project (“Core Employees”) as follows, per each craft: a) The Contractor may hire the first five (5) workers, as Core Employees, without following the dispatch procedures of Section 4.1; b) Of the first ten (10) employees, a maximum of five (5) Core Employees may be directly hired, without following the dispatch procedures of Section 4.1; c) Of any larger workforce, the number of Core Employees may not exceed fifty percent (50%) of the total number of employees, per craft. 4.5 The Contractor shall notify the applicable Unions and Union Trust Funds of its use of and identity of Core Employee and shall follow this Agreement and the applicable Labor Agreement(s) with respect to Core Employees with the exceptions specified at Articles 3 and 4 of this Agreement. 4  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 5 of 10 ARTICLE 5 NO WORK STOPPAGES 5.1 During the term of this Agreement there shall be no strikes, picketing, work stoppages, slowdowns or other disruptive activity for any reason by the Union, its applicable Local Union or by any employee, and there shall be no lockout by the Contractor. Failure of any Union, Local Union or employee to cross any picket line established at the Project site is a violation of this Article. Any damages resulting from any violation of this Agreement will be paid by the violating party. 5.2 The Union and its applicable Local Union shall not sanction, aid or abet, encourage or continue any work stoppage, strike, picketing or other disruptive activity at the Contractor's project site and shall undertake all reasonable means to prevent or to terminate any such activity. No employee shall engage in activities which violate this Article. Any employee who participates in or encourages any activities which interfere with the normal operation of the Project shall be subject to disciplinary action, including discharge, and if justifiably discharged for the above reasons, shall not be eligible for rehire on 5.3 In the event of an area work stoppage in connection with negotiations over any Labor Agreement, Project work shall continue unimpeded, without any work stoppage by the Union. ARTICLE 6 MANAGEMENT RIGHTS 6.1 The Contractor shall retain full and exclusive authority for the management of its operations. This includes, but is not limited to, the right to direct its work force and to establish coordinated working hours and starting times, which shall not be in conflict with the Labor Agreement(s) specified at Appendix “A.” 6.2 There shall be no limit on production by workers or restrictions on the full use of tools or equipment. There shall be no restrictions on efficient use of manpower other than as may be required by safety regulations. The Contractor may utilize the most efficient methods or techniques of construction, tools or other labor-saving devices to accomplish the work. Restrictive practices not a part of the terms and conditions of this Agreement will not be recognized. 6.3 The Contractor shall be the sole judge of the number and classifications of employees required to perform Project work and shall have the absolute right to hire, promote, suspend, discharge or lay off employees at their discretion and to reject any applicant for employment, subject to the provisions of the applicable Labor Agreement(s). 6.4 Nothing in this Agreement shall be construed to limit the right of any Contractor to select any bidder the Contractor deems qualified for the award of contracts or subcontracts or material, supplies, or equipment purchase orders on the Project. Contractors shall have the 5  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 6 of 10 absolute right to award contracts or subcontracts to any qualified business, provided that it to executes and comply with this Agreement where covered by this Agreement. 6.5 Nothing contained in this Agreement shall limit the Contractor’s right to maintain and enforce its workplace health and safety rules and policies, including rules and policies in connection with ensuring that Project employees are screened and monitored for the use, sale, possession or being under the influence of illegal drugs, controlled substances, or alcohol. ARTICLE 7 JURSIDICTIONAL AND OTHER DISPUTES 7.1 All disputes of any type shall be resolved in accordance with the appropriate dispute resolution procedure and without any disruptions or work stoppages. 7.2 The assignment of work will be solely the responsibility of the Contractor performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the “Plan”) or any successor Plan. 7.3 All jurisdictional disputes between or among Building and Construction Trades Unions and employees, parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Contractors and Unions parties to this Agreement. 7.4 All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Contractor’s assignment shall be adhered to until the dispute is resolved. Individuals violating this section shall be subject to immediate discharge. 7.5 Each Contractor shall conduct a Pre-Job Conference with the representatives from the County, the Council’s and SRCC’s, and any interested local prior to commencing Project work and after advance notice to all interested parties. The purpose of the Pre-Job Conference is to revolve anticipated jobsite issues without the need for formal dispute resolution. 7.6 Disputes arising over the interpretation or application of any aspect of the Labor Agreement(s) covering the work or issue at issue in the dispute shall be settled in the manner set forth therein. 7.7 Disputes under this Agreement shall be heard and resolved by a Joint Labor-Management Committee (“JLMC”) will be formed for each Project and shall consist of the Project Manager, two (2) Union representatives selected by the Project Manager, and two (2) Contractor representatives selected by the Unions. JLMC meetings will be held on a monthly basis, or sooner as may be needed. In addition to resolving disputes under this 6  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 7 of 10 Agreement, the purpose of the JLMC meetings is to promote harmonious labor/management relations, ensure adequate communications, and advance the proficiency and efficiency of the workers and the contractors on the Project. These monthly meetings will also include discussion of the scheduling and productivity on work performed on the Project. Representatives of the County may participate in JLMC meetings, at the County’s request. 7.8 In the event either party is not satisfied with any JLMC decision regarding a dispute under this Agreement, it may submit the matter to formal binding arbitration by mutually selecting a neutral third-party arbitrator. ARTICLE 8 UNION REPRESENTATION 8.1 The Contractor recognizes the Council’s and its affiliated Unions and SRCC’s, as the sole and exclusive bargaining representatives of basic trade craft employees working on the Project within the scope of this Agreement. 8.2 Subject to 8.3 below, the Contractor agrees to deduct Union dues and/or fees weekly in the amount specified in writing by the respective Union on the basis of individually signed payroll deduction authorizations and forward the aggregate of such deductions to the Union on the tenth (10th) day of the following month. 8.3 The Union shall indemnify and hold harmless the Contractor against any and all claims, demands, suits, or other forms of liability that arise out of or by reason of action taken at the request of the Union by the Contractor for the purpose of complying with the provisions of this Article. 8.4 No employee shall be required, pressured, or compelled to join any Union as a condition of being employed, or remaining employed, for the completion of the Project work. Contractor shall, however, require all employees working on the Project, to the extent which this Agreement applies, and if employed for a cumulative total of eight (8) or more working days, to comply with the applicable Union's security provisions for the period during which they are performing on-site Project work to the extent, as permitted by law, of rendering payment of the applicable monthly dues and any working dues only, as uniformly required of all craft employees while working on the Project and represented by the applicable signatory unions. However, any employee who is a member of a Union at the time the referring Union refers the employee, shall maintain that membership in good standing while employed on the Project. 8.5 Authorized representatives of the Unions and their Local Unions shall have access to the Project, provided they do not interfere with the work of the employees and, further provided, that such representatives fully comply with the visitor and security rules established for the Project, which include reporting to the Project Contractor job site office immediately upon entry and prior to visiting any individuals on the site for any purpose. 7  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 8 of 10 8.6 Each Union which represents employees on the Project shall have the right to designate a working journeyman as a Steward. Such designated Steward shall be a qualified worker performing the work of that craft and shall not exercise any supervisory functions. Each Steward shall be concerned with the employees of his or her own employer and not with the employees of any other employer. Stewards shall not investigate any matters, including grievances, during the regular working hours of the Project, except in cases of true safety emergencies and/or the discipline or discharge of an employee of the Steward’s employer represented by the Steward’s Union. 8.7 Where personnel, or vendors visiting or performing work on the Project may be working in close proximity to the construction activities, the Unions agree that Union representatives, stewards, and individual workmen will not interfere in any manner with the Owner’s or vendors’ personnel or with the work which is being performed by the Owner’s or vendors’ personnel. ARTICLE 9 HELMETS TO HARDHATS 9.1 The parties to this agreement recognize a desire to facilitate the entry into the construction industry of veterans who are interested in careers in the construction industry. The parties therefore agree to utilize to the maximum extent possible the services of the Center for Military Recruitment, Assessment and Veterans Employment (the Center) and the Center’s “Helmets to Hardhats” program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the parties. 9.2 The parties agree to coordinate with the Center to create and maintain an integrated database of veterans interested in working on the Bernalillo County Project and of apprenticeship and employment opportunities for projects covered by this Agreement. To the extent permitted by law, the Unions will give credit to such veterans for bona fide, provable past experience. ARTICLE 10 GENERAL SAVINGS CLAUSE 10.1 The local collective bargaining agreements incorporated as part of this Agreement shall continue in full force and effect until the Contractor and or Union parties to such agreements notify the Project Manager of any mutually agreed upon changes in such agreements and their effective date(s). The Parties agree to recognize and implement such changes on their effective dates. The Union agrees that there will be no strikes, work stoppages, sympathy strikes, picketing, slowdowns or any other disruptive activity affecting the Project by any Union involved in the negotiation of such local collective 8  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 9 of 10 bargaining agreements, nor shall there be any lockout on this Project affecting the Union during the course of such negotiations. 10.3 This Agreement shall preempt any conflicting provision of any Labor Agreement(s). 10.4 Any provisions in this Agreement which are in contravention of any federal, state, or local regulation or laws affecting all or part of the limits covered by this Agreement shall be suspended in operation within the limit to which such law or regulation is applicable for the period during which such law or regulation is in effect; but shall not affect the on-going work on the Project. ARTICLE 11 DURATION This Agreement will remain in full force and effect from __________________ through __________________ and continue year to year until either party gives 30-days written notice by registered or certified mail to change or cancel this Agreement. __________________________________________________ _____________ For the New Mexico Building and Construction Trade Council Date [name and title of representative] ___________________________________________________ _____________ For the Southwest Regional Carpenters Council and Local 1319 Date [name and title of representative] ___________________________________________________ _____________ For Bernalillo County New Mexico Date [name and title of representative] 9  Case 1:21-cv-00412-KK-JHR Document 1-2 Filed 05/03/21 Page 10 of 10 APPENDIX “A” CONTRACTOR LETTER OF ASSENT COMMUNITY WORKFORCE AGREEMENT FOR BERNALILLO COUNTY, NEW MEXICO Project [Title, Address, Anticipated Begin and End Dates]: Contractor Name and License Number: Contractor address: Contractor designated contact, phone, and email Applicable Labor Agreements [List and attach]: Contractor, as a successful bidder to perform jobsite work on the Project described above, agrees and assents to be bound by this Community Workforce Agreement, including any amendments thereto, during the duration of Contractor’s covered participation in the Project. Agreed: ___________________________________________________ ___________ [Name and Title of Authorized Contractor Representative] Date Approved: ___________________________________________________ ___________ [County Representative] Date: ___________________________________________________ ___________ [For New Mexico Building and Construction Trade Council] Date: ___________________________________________________ ___________ [For Southwest Regional Carpenters Council and Local 1319] Date 10 

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $25 and twenty days imprisonment in the county jail. The affidavit is attacked because it does not allege that the sale was "unlawful." The word "unlawful" is not necessary to be stated in the pleadings charging a violation of the local option law. The complaint and information are sufficient to charge the offense. Appellant filed an application for a continuance on account of the testimony of one W.S. Smith, alleging that Smith was foreman of the grand jury, and the complaining witness was before the grand jury. Smith was wanted to impeach the complaining witness on a certain statement which was supposed to be contrary to his testimony on the trial of the case. As a rule applications for continuance to secure impeaching testimony should not be granted. It seems that this testimony was only impeaching, and, therefore, the court did not err in overruling the application. The issue was sharply drawn, the witness for the State testifying he bought the whisky from appellant and appellant denies this emphatically. This was a matter for the jury, and this court would not be justified under the decisions to reverse the judgment for this reason. The judgment is affirmed. Affirmed.

Citation Nr: 0021134 Decision Date: 08/11/00 Archive Date: 08/18/00 DOCKET NO. 97-23 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected hypertensive heart disease and angina pectoris prior to May 11, 1999. 2. Entitlement to a total rating based on individual unemployability (TDIU) prior to May 11, 1999. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from September 1965 to August 1967. By rating action dated in May 1997, the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky, confirmed and continued a 30 percent evaluation for the veteran's heart disease and denied entitlement to a total rating based on individual unemployability. The veteran appealed from those decisions. Subsequently, in a September 1999 rating action the evaluation for the veteran's heart disease was increased to 100 percent, effective May 11, 1999. After reviewing all evidence and assertions of record, the Board finds that the issues on appeal are more accurately described as stated on the title page of this decision. REMAND Historically, by a rating decision issued in July 1980, the veteran was granted service connection for hypertensive heart disease, and that disability was evaluated as 30 percent disabling. By a claim submitted in September 1996, the veteran sought an evaluation in excess of 30 percent for his service-connected cardiac disability, diagnosed as hypertensive heart disease, angina pectoris, and hypertension. He also contended he was unable to work. The appellant's representative maintained that the 100 percent evaluation for the veteran's heart disease should have been made effective prior to May 11, 1999, and that entitlement to individual unemployability (TDIU) should have been established prior to May 11, 1999. The Board agrees that the veteran's September 1996 claims for an increased evaluation in excess of 30 percent for service-connected hypertensive heart disease, angina, and hypertension, and the claim for TDIU, prior to May 11, 1999, remain on appeal. Although the evidence of record suggests that the RO has considered whether the veteran is entitled to an increased evaluation in excess of 30 percent for his service-connected cardiac disability prior to May 11, 1999, the veteran has not been provided a statement of the case regarding the evidence considered as to that aspect of his claim for an increased evaluation. In this regard, the Board notes that the summary of a November 1996 VA hospitalization references a cardiac stress test, which was apparently conducted during that hospitalization. However, the results of that stress test are not referenced in the discharge summary. The report of that examination should be associated with the evidence of record. The Board also notes that it is not clear whether all relevant clinical records for 1997 and 1998 are associated with the file. The Board also notes that, during the personal hearing conducted in July 1998, the veteran testified that his physicians advised him not to work, and not to engage in any strenuous activity, as of September 1996. The veteran should be advised that these opinions are not of record, and should be offered the opportunity to submit those opinions in writing or to identify any relevant medical records not yet associated with the claims file which might include those opinions. Additionally, the Board notes that the September 1999 rating decision which granted a total schedular evaluation effective May 11, 1999, did not address the issue of entitlement to TDIU, including whether the veteran was entitled to a grant of TDIU prior to May 11, 1999. Adjudication of the claim for TDIU, which cannot be addressed until adjudication of the September 1996 claim for an increased evaluation in excess of 30 percent for service-connected cardiac disability is completed, must also be addressed on remand. In view of these matters, the case is REMANDED to the regional office for the following action: 1. The veteran should be offered the opportunity to obtain in writing the medical opinions regarding his ability to work referenced at his July 1998 personal hearing. 2. The RO should obtain relevant VA clinical records from June 1998 to the present, and should obtain the results of an exercise stress test conducted in November 1996. The veteran should be advised as to what clinical records are associated with the claims file for 1997 and 1998 (by date of treatment and provider), and the veteran should be afforded the opportunity to identify any additional dates of treatment or additional VA or non-VA providers. 3. After conducting any additional necessary development, the regional office should consider the claims for entitlement to an increased rating for the veteran's heart disease prior to May 11, 1999, and for entitlement to a total rating based on individual unemployability prior to May 11, 1999. 4. If the decision regarding either of the above matters is adverse to the veteran, he should be sent a statement of the case regarding that matter. If the veteran submits a substantive appeal regarding the matter that issue should be included as an issue on appeal. When the above action has been completed the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to ensure that the requirements of due process of law are satisfied. The Board intimates no opinion as to the disposition regarding any remaining matter on appeal pending completion of the requested action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified by the RO. TRESA M. SCHLECHT Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON COVINGTON 18 PARTNERS, LLC, CASE NO. 2:19-CV-00253-BJR Plaintiff, ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION ATTU, LLC; LAKESIDE INDUSTRIES, INC; UNITED STATES OF AMERICA; DEPARTMENT OF ENERGY; BONNEVILLE POWER ADMINISTRATION; COVINGTON LAND, LLC, Defendants, Counter Claimants, Cross Claimants, Third Party Plaintiffs, Vv. JOHN SINCLAIR; JANE DOE SINCLAIR, FIDELITY NATIONAL TITLE INSURANCE CO., Third Party Defendants a ae a ee ee ee ee I. INTRODUCTION Before the Court is Defendant Attu, LLC’s (‘Attu’) motion for reconsideration, Dkt. No. 51, of the Court’s order granting Plaintiff Covington 18 Partners, LLC’s (“Covington 18”) motion for summary judgment and denying Attu’s motion to strike, Dkt. No. 50. After reviewing the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion, the oppositions thereto, the record of the case, and the relevant legal authorities, the Court will deny Attu’s motion for reconsideration. IL. BACKGROUND The Court laid out the background of this case in depth in its recent order granting plaintiff's motion for summary judgment and denying defendant Attu’s motion to strike (“Order”). Dkt. No. 50. In brief, between 1998 and 2001, Attu purchased two adjacent parcels of land in Covington, Washington. Dkt. No. 50 at 2. During its ownership of the property, Attu was granted four easements. /d. at 2—3. In 2009, Attu adjusted the boundary lines of its parcels, creating Parcel A and Parcel B. Jd. at 2. Covington 18 purchased Parcel B from Attu in 2012 while Attu sold Parcel A to Defendant Covington Land, LLC (“Covington Land”). Jd at 4. The current dispute concerns whether the four easements passed from Attu to Covington 18 upon purchase of Parcel B. Covington 18 claims they did, and filed the current claim for quiet title to the easements. Attu believes they did not and opposed quiet title. Additionally, Attu filed a crossclaim against Covington Land for tortious interference with a business expectancy Covington Land. /d. at 6. In its crossclaim, Attu argues that Covington Land interfered with their business expectancy because Attu originally brokered an option agreement with Covington 18 to purchase the easements, but Covington Land and Covington 18 conspired to allow Covington 18 to access the easements without first exercising the option agreement. Dkt. No. 52 at 3. On August 1, 2019, the Court held that the easements were appurtenant, passed to parcel B upon subdivision, and transferred to Plaintiff with the sale of Parcel B. Dkt. No. paul08@example.net. The Court also sua sponte dismissed Attu’s crossclaim against Covington Land because it rested on the premise that the easements did not pass. Jd. at 22-3. Attu subsequently filed the motion for reconsideration before the Court alleging that (1) the Order’s dismissal of Attu’s crossclaim 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against Covington Land was manifest error; (2) the Court ignored evidence that shows the easements are in gross; and (3) the Order misconstrues the facts in favor of Covington 18. The Court requested responses from Covington 18 and Covington Land, and both parties replied to the motion for reconsideration on October 11, Dkt. No. 55, and October 24, Dkt. No. 58, respectively. Il, LEGAL STANDARDS A district court may reconsider its order of summary judgment under Local Rule 7(h). Sch. Dist. No. 1] vy. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993); Western District of Washington Local Rule 7(h)(1) (hereinafter “L.R. 7(h)(1)”). This District disfavors motions for reconsideration. L.R. 7(h)(1). This Court’s standing order discourages such motions and will summarily deny motions for reconsideration that “reassert prior arguments or raise new arguments that could have been made earlier.” Dkt. No. 37 at 5. Thus, unless the movant demonstrates (1) “manifest error in the prior ruling,” or (2) “new facts or legal authority which could not have been brought to [the Court’s] attention earlier with reasonable diligence,” this Court will deny such a motion. L.R. 7(h)(1); see also Gras v. Subcontracting Concepts, LLC, 2019 U.S. Dist. WL 5081198, at *2 (W.D. Wash., Oct. 10, 2019). IV. DISCUSSION Attu advances three separate grounds for its motion for reconsideration. The Court will take each in turn. 1. Whether the dismissal of the crossclaim was manifest error Attu argues it was manifest error for the Court to dismiss sua sponte its crossclaim against Covington Land. Dkt. No. 51 at 2. Attu bases this claim on two separate reasons: (1) the Court dismissed without giving Attu the opportunity to present evidence and (2) new evidence rebuts the Court’s conclusion in its Order. Covington Land, in its response, argues that the dismissal of 3 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Attu’s crossclaim was appropriate because: their claim (1) did nothing more than recite the elements of the claim, as recognized by the Court, and (2) was also substantively justified because Attu cannot affirmatively satisfy the elements of tortious interference. Dkt. No. paul08@example.net. As it relates to the claim that Attu should have been granted a chance to provide additional evidence, “[a] trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).” Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (citing Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981)). Additionally, that dismissal may be made without giving notice to the claimant if the claimant “cannot possibly win relief.” Omar, 813 paul08@example.net. Attu’s crossclaim that Covington Land tortiously interfered with its business expectancy was properly dismissed because Attu cannot possibly win relief: Attu’s claim is predicated on the theory that the easements never passed from its ownership because they were in gross, but the Court expressly held they were appurtenant and passed to Covington 18. Dkt. No. paul08@example.net. In order to prevail on a claim of tortious interference, Attu would have to show: “(1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damage.” Leingang v. Pierce County Medical Bureau, 930 P.2d 288, 300 (Wash. 1997). But Covington Land could not have tortiously interfered with Attu’s business expectancy because Covington 18 already owned the easements in question. Dkt. No. paul08@example.net. Attu could not have had a business expectancy of selling the easements to Covington 18 according to the option agreement because the easements had already passed to Covington 18. /d. Therefore, there was no legitimate business expectancy for Covington Land to interfere with. As such, the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court had no need to delay sua sponte dismissing Attu’s crossclaim, and there was no manifest error in its prior decision. 2. Whether the Court improperly disregarded evidence and misread the law on easements Next, Attu argues that the Court’s finding that the easements are appurtenant can be rebutted with new evidence. In support of its claim, Attu proffers evidence of agreements outside of the Purchase and Sale Agreement (“PSA”), the instrument Attu used to sell Parcel B to Covington 18. Dkt. No. 26 at 6. Covington 18 argues in opposition that the Court correctly applied the law of easements and correctly interpreted the PSA. Dkt. No. 55 at 2. Specifically, Covington 18 asserts that the PSA did not limit the transfer of the easements because they are appurtenant and, further, that the negotiations mentioned by Attu are inadmissible parol evidence. Jd. The Court concludes that because Attu has merely reasserted an old argument and relied on old evidence, Attu has neither demonstrated that this Court committed manifest error nor presented new evidence which could support its motion. First, Attu reiterates its original argument during summary judgment that: (1) the easements were in gross, (2) the easements could only transfer via affirmative conveyance, and (3) the negotiations between Attu and Plaintiff show that the easements could only transfer by exercising Covington 18’s option for Parcel A. Dkt. No. 50 at 17; Dkt. No. paul08@example.net. This argument, however, was rejected in the Order and is not lent new relevance simply through its reintroduction here. Moreover, the new evidence Attu purports to rely on is an affidavit already provided during the summary judgment phase. See Dkt. No. 26. Further, and as before, the Court is barred from considering the evidence Attu relies on pursuant to the parol evidence rule. The parol evidence rule is applied to writings that are considered fully integrated and final. Emrich v. Connell, 105 Wn.2d 551, 556 (1986). A writing 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is fully integrated when it includes an integration clause. Golden Gate Acceptance Corp. v. General Motors Corp., 597 F.2d 676, 680 (9th Cir. 1979) (holding that the writing’s integration clause, which barred any other “agreements or understandings . . . between the parties,” fully integrated the agreement). The parol evidence rule disallows extrinsic evidence that would “add to, subtract from, vary, or contradict written instruments which are contractual in nature and which are valid, complete, [and] unambiguous...” Emrich, 105 Wn.2d at 555-56 (quoting Buyken v. Ertner, 33 Wn.2d 334, 341 (Wash. 1949)), In this case, the PSA that facilitated the sale of Parcel B to Covington 18 did not discuss the four easements and included an integration clause, marking it as fully integrated. Dkt. No. 16- 11 at 7-9 (the document is not modified by any other “verbal or other written agreements . . .”). The evidence of negotiations presented by Attu is contrary to the PSA, which does not mention easements. Dkt. No. 26-3 at 7. As stated in the Order, any restrictions on the transfer of appurtenant easements must be stated explicitly in the PSA. Dkt. No. paul08@example.net. Yet as the Court’s Order noted, “nothing in the sale document dictated” that the intention of the parties was to restrict the transfer of the easements. /d. Therefore, because the PSA was fully integrated and appurtenant easements impliedly transfer with the sale of land, the evidence of additional negotiations given by Attu was, and still is, inadmissible in interpreting the PSA. For these reasons, the Court did not improperly disregard the evidence, and Attu’s motion for reconsideration on these grounds will be denied. 3. Whether the order misconstrues facts in favor of Covington 18 Finally, Attu argues that the Court “pervasively” construed the facts in favor of the moving party, Covington 18, in the Order. This Court did not construe the facts of the case in Plaintiff's favor as a matter of procedure but as a matter of substance. Viewing the facts in any light, even 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the light most a favorable to Attu, does not change them. Because the easements are appurtenant, they passed with the sale of Parcel B to Plaintiff and with Parcel A to Covington Land. For these reasons, the Court denies Attu’s claim that it “pervasively” misconstrued the facts in favor of Plaintiff. V. CONCLUSION For the forgoing reasons, the Court hereby DENIES Attu’s motion for reconsideration. Dkt. No. 51. m7 DATED this [4 day of ove uber 2019. b; aubdia Aiea LAA BARBARA J ROTH ISTEIN UNITED STMTES DISTRICT JUDGE 

Under the terms and provisions of chapter 119, Public Laws 1887, several hundred persons made entries of certain oyster lands, subjected to entry by that act, and received grants (271) therefor. By the provisions of chapter 287, Public Laws 1893, the Solicitor of the First Judicial District was directed to institute proceedings in ejectment against such persons as had received grants for natural oyster or clam beds; and, under the directions of that statute, the solicitor commenced suit against six hundred and ninety-four of those persons who had received grants under the provisions of the act of 1887. One of the suits was tried and the plaintiff's action was not sustained, and nonsuits were taken in all of the other actions. In Blount v. Simmons, 119 N.C. 50, this Court held that the State, under section 536 of the Code, was liable for the costs. Afterwards the plaintiff in this action, in a certain judgment rendered in the Superior Court of Pamlico County against the State for the sum of $4,096.60, on account of fees due the officers in the above-mentioned actions, was adjudged entitled to $3,872.20 thereof for fees due to Festus Miller, Clerk of the Superior Court of Pamlico County, her intestate. Before that judgment was rendered, Festus Miller, the plaintiff's intestate, received an Auditor's warrant, to the amount of $4,851.41, for fees due him in these cases, but the Treasurer declined to pay the same or any part of it. The plaintiff's intestate, at the session of the General Assembly of 1899, presented her claim against the State for these fees, and the matter received a full and careful investigation of that body. The whole proceedings were laid before this Court; and if this was a case where the Court had jurisdiction under Article IV, section 9, of the State Constitution, we could not conscientiously recommend to the General Assembly a settlement of this matter different from the one which was made. We are of the opinion, however, that we have no jurisdiction in the premises. In the first place, the demand of the plaintiff is not such a claim against the State as is in contemplation of Article IV, section 9, of the Constitution. *Page 199 In Blount v. Simmons, 119 N.C. 50, this Court said: (272) "The costs in this case are not strictly a claim against the State, as contemplated by Article IV, section 9, but only an incident of an action by the State, for which its agent has assumed that it will be liable to the same extent as private persons." In the next place, there is no question of law involved in this matter. Only matters of fact were in dispute, and they have been passed upon by the General Assembly; and where such a condition of things exists we are not called upon to recommend any line of conduct to the legislative body. In Reynolds v. State, 64 N.C. 460, this Court said: "We are fully satisfied, on a perusal of the papers in the proceeding, of the correctness of the view taken in Bledsoe v. State, 64 N.C. 392, to-wit, that our `recommendatory jurisdiction' in regard to claims against the State does not embrace cases involving mere matters of facts, and that it was not the intention of the framers of the Constitution to impose upon the Court the labor of the trial of facts and that the jurisdiction is confined to claims where, the facts being agreed on, it was supposed an opinion of the Supreme Court on important questions of law would aid the General Assembly, to dispose of such cases, it having been, before, a question whether the Judges could, consistently with their constitutional duties, communicate an opinion to the Legislature." In Horne v. State, 82 N.C. 382, the Court said: "This provision of the Code is very broad in its terms — `any person having any claim' — and, regarded in the light of a cotemporaneous exposition of the Constitution, would seem to embrace all claims against the State; but this Court, in construing the section of the Constitution referred to (section 9 of Article IV), held that it was intended to apply only to cases wherein questions of law were involved, and that the jurisdiction of this Court ought not to be exercised in small matters of small value, particularly when there is no doubt about the law." In Reeves v. State, 93 N.C. (273) 257, the same view was expressed, and the Court added: "If the claim is a plain one, only involving questions of fact, it ought to be taken at once before the Legislature, unless its nature be such as that it may be presented to the Auditor, or some other appropriate authority, for adjustment and allowance." This case, as we have said, does not involve any question of law, for this Court had, at its February Term, 1897, in Blount v. Simmons, 120 N.C. 19, not only reaffirmed a former ruling that the State was liable for the costs involved in the oyster-bed suits, but had particularly specified the amount of fees which each officer was entitled to for his services; and the Legislature therefore could not stand in need of any recommendation from us as to its *Page 200 duty under the law, and the facts they had already passed upon. Counsel for the plaintiff took this view of their duty in connection with their client's claim, knowing that there was no grave question of law involved, and went directly before the Legislature, as they should have done, under the intimation of the Court in Reeves v. State, 93 N.C. 257, to have the facts ascertained, and an act passed, making an appropriation to their client. We do not feel called upon, therefore, to make any recommendation to the General Assembly in the premises. If we should do so, the members of that body would have the right to feel justly offended that we should seek to point out their duty to them in a matter where there was no law question involved and where they had already investigated and passed upon the facts. (274)

UNITED STATESSECURITIES AND EXCHANGE COMMISSIONSEC FILE NUMBERWashington, D.C. 205490-26402FORM 12b-25CUSIP NUMBER025636-20-0NOTIFICATION OF LATE FILING (Check one): ¨ Form 10-K ¨ Form 20F ¨ Form 11-K x Form 10-Q ¨ Form N-SAR ¨ Form N-CSRFor Period Ended: September 30, 2015¨ Transition Report on Form 10-K¨ Transition Report on Form 20-F¨ Transition Report on Form 11-K¨ Transition Report on Form 10-Q¨ Transition Report on Form N-SARFor the Transition Period Ended: Read Instruction (on back page) Before Preparing Form. Please Print or Type.Nothing in this form shall be construed to imply that the Commission has verified any information contained herein.If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates:PART I – REGISTRANT INFORMATION The American Energy Group, Ltd. Full Name of RegistrantN/A Former Name if Applicable20 Nod Hill Road Address of Principal Executive Office (Street and Number)Wilton, CT 06897 City, State and Zip CodePART II – RULES 12b-25(b) AND (c)If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (check box if appropriate) (a) The reason described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense.x(b)The subject annual report, semi-annual report, transition report on Form 10-K , Form 20F, Form 11-K, Form N-SAR or Form N-CSR, or portion thereof, will be filed on or before the fifteenth calendar day following the prescribed due date; or the subject quarterly report or transition report on Form 10-Q, or portion thereof, will be filed on or before the fifth calendar day following the prescribed due date; and(c) The accountant's statement or other exhibit required by Rule 12b-25(c) has been attached if applicable.PART III – NARRATIVEState below in reasonable detail why Forms 10-K, 20-F, 11-K, 10-Q, N-SAR, N-CSR, or the transition report or portion thereof, could not be filed within the prescribed time period.The registrant's Form 10-Q for the period ended September 30, 2015, could not be filed within the prescribed time period due to delays in obtaining information regarding its newly acquired subsidiary, Hycarbex-American Energy, Inc., which was awarded to the registrant by the International Chamber of Commerce International Court of Arbitration on April 15, 2015. The subsidiary holds interests in several oil and gas exploration licenses within the Republic of Pakistan. The subsidiary-related information is critical to the completion of the Form 10-Q. Such delays could not be eliminated by the registrant without unreasonable effort or expense. The registrant expects to file the Form 10-Q on or before November 23, 2015. PART IV – OTHER INFORMATION (1) Name and telephone number of person to contact in regard to this notification Pierce Onthank 678-399-3551 (Name)(Area Code) (Telephone Number) (2) Have all other periodic reports required under Section 13 or 15(d) of the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during the preceding 12 months or for such shorter period that the registrant was required to file such report(s) been filed? If answer is no, identify report(s). Yesx No ¨(3) Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof? Yes ¨ No xIf so, attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results cannot be made. 2The American Energy Group, Ltd.(Name of Registrant as Specified in Charter)has caused this notification to be signed on its behalf by the undersigned hereunto duly authorized. Date: November 13, 2015By:/s/ Pierce OnthankPierce OnthankCEO and PresidentINSTRUCTION: The form may be signed by an executive officer of the registrant or by any other duly authorized representative. The name and title of the person signing the form shall be typed or printed beneath the signature. If the statement is signed on behalf of the registrant by an authorized representative (other than an executive officer), evidence of the representative's authority to sign on behalf of the registrant shall be filed with the form. ATTENTIONIntentional misstatements or omissions of facts constitute Federal Criminal Violations (See 18 U.S.C. 1001).3

49 Cal. App. 3d 925 (1975) 123 Cal. Rptr. 270 THOMAS D. McBRIDE, Plaintiff and Appellant, v. ALPHA REALTY CORPORATION, Defendant, Cross-complainant and Respondent; HOTEL CIRCLE, INC., Cross-defendant and Appellant. Docket No. 35591. Court of Appeals of California, First District, Division One. July 16, 1975. *927 COUNSEL Gant & Asaro and John J. Hargrove for Plaintiff and Appellant and for Cross-defendant and Appellant. Lamson, Jordan, Walsh & Lawrence and David P. Dawson for Defendant, Cross-complainant and Respondent. OPINION ELKINGTON, J. Plaintiff Thomas D. McBride brought an action in Santa Clara County for a real estate brokerage commission against defendant Alpha Realty Corporation. The defendant cross-complained against cross-defendant Hotel Circle, Inc. The plaintiff and cross-defendant were represented in the action by the same attorney. Following a trial, the court made and filed its memorandum of decision ruling adversely to the plaintiff and to the cross-defendant. A copy of that memorandum was mailed in Santa Clara County by the clerk on January 28, 1974, to their counsel whose offices are in San Diego, California. *928 On February 11, 1974, the clerk filed plaintiff's and cross-defendant's "Request for Findings of Fact and Conclusions of Law" which was dated February 7, 1974. On February 25, 1974, a judgment, reciting that "findings of fact and conclusions of law not having been requested by any of the parties," was entered. The judgment gave effect to the earlier memorandum of decision. Thereafter plaintiff and cross-defendant, contending that the judgment was void for lack of findings of fact, moved to vacate it. The motion was denied. The instant appeal is taken by them from the judgment, and from a nonappealable order denying their motion to vacate the judgment. (1) It is of course true that a "judgment entered without findings where findings are required is a nullity...." (Ohio Cas. Ins. Co. v. Northwestern Mut. Ins. Co., 17 Cal. App. 3d 204, 207 [94 Cal. Rptr. 586]; and see Code Civ. Proc., § 632, subd. 1.) Rule 232(b) of the California Rules of Court provides that findings of fact are required in a superior court action tried, as here, to the court, where written request therefor is "served and filed within 10 days" after mailing of the "announcement of intended decision."[1] Code of Civil Procedure section 1013 (as in effect at the time here at issue) provided that in case of service by mail, "if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended two days, together with one day additional for every full 100 miles distance between the place of deposit and the place of address, ..." We may assume that the superior court took judicial notice, as do we, of the fact that the distance between Santa Clara County and San Diego is at least 300 miles. (See Evid. Code, §§ 452, subd. (g), 459.) (2) Section 1013 is obviously a legislative recognition that strict adherence to procedural time limitations, where an action's parties or *929 attorneys have mailing addresses distant from each other, would often defeat the ends of justice by making compliance with the time requirement difficult, or even impossible. If section 1013 is applicable to the time period fixed by rule 232(b), plaintiff's and cross-defendant's request for findings of fact was timely made, and such findings were required by law. Rule 232 is, of course, a rule of the Judicial Council. That body is the creature of California's Constitution, article VI, section 6, which requires the council to "adopt rules for court administration, practice and procedure, not inconsistent with statute, ..." (Italics added.) The court in Lane v. Superior Court, 104 Cal. App. 340, 344 [285 P. 860], interpreted this rule-making power as "limited by any existing [related] law, the Constitution reserving to the legislature and the people the primary and higher right to provide rules of procedure for our courts with the secondary right in the Judicial Council, to adopt rules only, when and where the higher authority of the legislature and the people has not been exercised." (3) The rules are "subject to the rules of statutory interpretation." (Helbush v. Helbush, 209 Cal. 758, 763 [290 P. 18].) As with statutes, in determining their meaning, courts should consider "their effect on the rights of the litigants — whether they defeat the ends of justice ... and their relation to any statutory or constitutional provision in the same or a related field." (Albermont Petroleum, Ltd. v. Cunningham, 186 Cal. App. 2d 84, 90 [9 Cal. Rptr. 405].) (4) Where reasonably possible, strict adherence to the language of such a rule will be avoided where it would have the effect of depriving a party "of his day in court." (Albermont Petroleum, Ltd. v. Cunningham, supra, p. 91.) (5) And such rules, themselves having the effect of statutes, "should be construed with reference to the entire statutory system of which [they form] a part in such a way that harmony may be achieved among the parts." (Merrill v. Department of Motor Vehicles, 71 Cal. 2d 907, 918 [80 Cal. Rptr. 89, 458 P.2d 33].) (6) Applying these principles to the problem before us, it becomes patent that the 10-day period of rule 232(b) is subject to the time extension provisions of Code of Civil Procedure section 1013, subdivision (a). And it seems equally apparent that such was the intent of the Judicial Council. The superior court accordingly erred in failing to make findings of fact as requested by plaintiff and cross-defendant. *930 The judgment is reversed. The superior court will make and file findings of fact according to law or, in the alternative and in its discretion, if such findings of fact may not now reasonably and conveniently be made and the interests of justice so indicate, order a new trial of the action. The appeal from the order denying a motion to vacate the judgment (a nonappealable order; see Daley v. County of Butte, 227 Cal. App. 2d 380, 388 [38 Cal. Rptr. 693]) is dismissed. Plaintiff and cross-defendant will recover their costs of appeal. Molinari, P.J., and Weinberger, J.,[*] concurred. NOTES [1] The full text of rule 232(b) follows: "A request for findings of fact and conclusions of law shall be served and filed within 10 days after oral announcement of intended decision in open court or, if mailing of the announcement of intended decision is required, within 10 days after such mailing or, in the case of a subsequent modification or change in the announced intended decision, within 10 days after mailing of a copy thereof." [*] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

673 A.2d 1327 (1996) STATE of Maine v. Michael PELLETIER. Supreme Judicial Court of Maine. Submitted on Briefs November 21, 1995. Decided April 2, 1996. *1328 Neale T. Adams, District Attorney, John M. Pluto, Assistant District Attorney, Caribou, for the State. Thomas M. Mangan, Lewiston, for Defendant. Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ. *1329 RUDMAN, Justice. Michael Pelletier appeals from the judgments entered on jury verdicts in the Superior Court (Aroostook County, Pierson, J.) finding him guilty of two counts of unlawful trafficking in scheduled drugs, 17-A M.R.S.A. § 1103 (1983 & Supp.1995), and two counts of aggravated trafficking in scheduled drugs, 17-A M.R.S.A. § 1105(1)(C) (Supp. 1995). Pelletier challenges the denial of his motion to suppress evidence and the sufficiency of the evidence. He further argues that certain comments made by the State during its opening statement denied him a fair trial. We affirm the judgments. I. Pelletier moved to suppress as the products of an unreasonable search and seizure all evidence, documents, photographs, and videotapes seized in the police raid on his premises. He urges that the search warrant's description of the premises to be searched lacks the constitutionally required specificity and that the seizure of a thermos filled with marijuana from its hiding place in woods behind his home was beyond the lawful scope of the warranted search. A decision as to the constitutional[1] adequacy of a search warrant is a matter of law. See State v. Dube, 655 A.2d 338, 340 (Me.1995). We review the search and seizure of evidence for constitutional adequacy de novo. Id. A warrant must describe the property to be seized with such particularity that an executing officer will be able to identify it "with certainty." State v. Sweatt, 427 A.2d 940, 949 (Me.1981). The warrant can leave nothing to the discretion of the executing officer as to what is to be taken. Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 75, 72 L. Ed. 231 (1927). Here the warrant's description of property to be seized is sufficient to permit the executing officer reasonably to identify what is to be seized. The warrant does not allow officers to seize property at will and is constitutionally sufficient. Here the warrant description of the residence to be searched, including its "appurtenances and outbuildings," also makes it possible for drug agents to identify with reasonable effort and reasonable certainty the premises to be searched. The warrant therefore meets the constitutional safeguards as to specificity of place to be searched. State v. Brochu, 237 A.2d 418, 422 (Me.1967). Evidence found lying in "open fields" outside the "curtilage" of Pelletier's home is not considered to be the product of a search of a house for constitutional purposes and may be seized without a warrant. State v. Cayer, 617 A.2d 208, 210 (Me.1992) (citing Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 446, 68 L. Ed. 898 (1924)). See also United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987). The thermos stuffed with baggies of marijuana, which was found in the woods 250-300 yards behind Pelletier's residence, was outside the curtilage of his home and therefore may not be excluded as the product of an unreasonable search. II. Pelletier challenges references made during the State's opening statements to his income and assets and the State's warning to the jury not to be misled by the discrepancy between Pelletier's comfortable rural lifestyle and the desperate crack house lives of drug criminals portrayed in the mass media. Pelletier argues these comments denied him a presumption of innocence and were so highly prejudicial as to constitute manifest injustice. As we have previously stated, [W]hile a prosecutor "may strike hard blows, [she] is not at liberty to strike foul ones. It is as much [her] duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one." *1330 State v. Steen, 623 A.2d 146, 148 (Me.1993) (quoting State v. Collin, 441 A.2d 693, 697 (Me.1982)). Pelletier did not object at the trial to the State's reference to his income and assets. Pelletier did object at the close of the State's opening statement to the comments made by the State in seeking to counter any inference by the jury that Pelletier's rural lifestyle and confinement to a wheelchair insulated him from involvement in criminal conduct. The court declined to give a curative instruction to the jury. When objection to prosecution statements is made at trial, we review prosecutorial misconduct for harmless error pursuant to M.R.Crim.P. 52(a). We will not vacate a judgment for an error objected to at trial so long as it is highly probable that the jury's determination of guilt was unaffected by the prosecutor's comments. State v. Steen, 623 A.2d at 149 (citing State v. True, 438 A.2d 460, 467 (Me.1981)). When no objection to prosecution statements has been raised at trial, we determine on appeal whether the statement was improper and, if so, whether such improper conduct is obvious error pursuant to M.R.Crim.P. 52(b). State v. Marshall, 628 A.2d 1061, 1061 (Me.1993). Error is obvious only when it is so highly prejudicial and so taints the proceedings as virtually to deprive the defendant of a fair trial. State v. Magoon, 649 A.2d 1115, 1117 (Me.1994). Here the prosecution statements to which Pelletier did not object at the trial do not constitute obvious error. The court's ruling on those statements to which Pelletier did object at the trial does not constitute error. III. Pelletier contends the evidence is insufficient to establish his unlawful possession of marijuana and hashish and insufficient to establish his intent to transfer drugs to others for consideration. On the evidence presented a factfinder rationally could find beyond a reasonable doubt that Pelletier knew about the marijuana and hashish on his premises and that he had control over the drugs and could reduce them to his physical possession at his pleasure. The evidence is sufficient to find Pelletier in possession of marijuana and hashish and that Pelletier intended to sell the drugs. Pelletier, a paraplegic, also was convicted of aggravated trafficking in marijuana and hashish. 17-A M.R.S.A. § 1105(1)(C) (Supp.1995).[2] He argues that the evidence is insufficient to establish that he was in possession of a firearm at the time of any drug trafficking. He argues that the weapons in his residence constituted a gun collection. We review the trial court's construction of "possession" of a firearm with respect to the aggravated trafficking statute de novo for errors of law. See Community Telecommunications *1331 Corp. v. Loughran, 651 A.2d 373, 376 (Me.1994). In construing the language of any statute we look first to the plain meaning of the words; where the plain words are ambiguous we construe the statute to effect legislative intent. See Marchand v. Eastern Welding Co., 641 A.2d 190, 192-93 (Me.1994). We have construed "possession" to include both actual and constructive possession. State v. Lambert, 363 A.2d 707, 711 (Me.1976). Where the State alleges a crime of possession of a physical object, it must prove possession by showing that the accused at some time bore one of two relationships to the object: he either had immediate physical control or occupancy of the object or knew where it was and had the intention and ability to gain physical control or occupancy of it. State v. Koehling, 381 A.2d 12, 14 (Me.1978). The record establishes that Pelletier knew where the guns were and that he had the ability to gain physical control over them. A factfinder rationally could find beyond a reasonable doubt that Pelletier "possessed" his home arsenal at the time of his drug trafficking activities. The entry is: Judgments affirmed. All concurring. NOTES [1] Amendment IV of the Constitution of the United States provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [2] 17-A.M.R.S.A. § 1105(1) (Supp.1995) provides in pertinent part: 1. A person is guilty of aggravated trafficking or furnishing scheduled drugs if: .... C. A person violates section 1103, 1104 or 1106, and, at the time of the offense, the person uses, carries, possesses or is armed with a firearm; .... In 1989 the Legislature added section 1105(1)(C) to the definition of the offense of aggravated drug trafficking. P.L.1989, ch. 333 § 2. The title of the bill introducing the change, L.D. 1116, was "An Act to Increase the Penalty for Drug Crimes Committed while in Possession of a Firearm." The bill contained no separate statement of purpose. The addition of the firearm provision to elevate sentencing tracks the purpose of the federal drug aggravated trafficking statute, 18 U.S.C. § 924(c)(1) (1976 & Pamph.1995), which is analogous to the Maine statute except the federal statute for aggravating a drug offense with a firearm includes as aggravating circumstances only "uses or carries" while the Maine statute includes "uses, carries, possesses or is armed with." In Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), the Supreme Court construed "use" of a firearm as that term is used in 18 U.S.C. § 924(c)(1) (1976 & Pamph. 1995) to mean more than a showing of mere possession. The court concluded that to establish "use" of a firearm pursuant to section 924(c)(1) the government must show "active employment" of a firearm. The court's construction of "active employment" includes brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm. "Use" pursuant to the federal statute, 18 U.S.C. § 924(c)(1) (1976 & Pamph.1995), does not include placement of a weapon for later active use.

116 Cal. App. 2d 44 (1953) 253 P.2d 86 KEITH EARLL et al., Appellants, v. ELTON R. McCOY et al., Respondents. Docket No. 4492. Court of Appeals of California, Fourth District. February 11, 1953. *45 McCabe & Schumacher for Appellants. Head, Jacobs & Corfman for Respondents. MUSSELL, J. This action was brought under the provisions of section 2802 of the Labor Code to recover the value of personal property destroyed by fire. Plaintiffs, a group of automobile mechanics, were employed by defendants in the operation of a general garage and Ford agency in Fullerton. Each of the plaintiffs received a weekly guaranteed salary, plus 50 per cent of money collected for his labor and each furnished his hand tools, which, for practical reasons and by custom and usage, were left in the garage overnight. There were no express instructions from the employer to leave the hand tools (which in some cases weighed several hundred pounds) at the place of business, but there was testimony to the effect that the job foreman discouraged the plaintiffs from taking their tools home. Each mechanic used his own tools, replaced them when they were worn out or lost, and, when not in use, they were left in the garage. On the night of June 23, 1950, a fire destroyed defendants' place of business, together with the hand tools and equipment belonging to the plaintiffs. It is not contended that the defendants were negligent in connection with the fire or that plaintiffs' claims as to the amount of losses are excessive. Plaintiffs joined in this action claiming indemnity for their losses under the provisions of section 2802 of the Labor Code. That section provides as follows: "Indemnification of employee for expenditures or losses in discharge of duties or obedience to directions. An employer shall indemnify his employee for all that the employee necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful." *46 It is the contention of the plaintiffs that the losses suffered by them were in direct consequence (1) of the discharge of their duties as employees; and (2) in obedience to the directions of their employers in view of the provisions of section 2857 of the Labor Code providing that an employee shall perform his service in conformity to the usage of the place of performance, unless otherwise directed by his employer, or unless it is impracticable or manifestly injurious to his employer to do so. In this connection it is argued that when one performs services in conformity to the usage of the place of employment, he is obeying a direction of the employer. The trial court held that plaintiffs were not entitled to the benefits of said section 2802 and rendered judgment in favor of defendants. [1] We conclude that the losses to the plaintiffs were not incurred in direct consequence of the discharge of their duties but were losses suffered incidental to their employment. If plaintiffs had been working or at the place of employment, it is quite possible that the fire would not have occurred and that plaintiffs' tools would not have been destroyed. There is no direct, unbroken connection between the losses and the discharge of the duties of the plaintiffs. The losses were directly caused by fire at a time when the tools were not being used in the discharge of the duties of the employees or in obedience to the employer's instructions, and where, as here, the court found that the plaintiffs were not required to leave their tools at the place of employment, section 2802 of the Labor Code is not applicable. This section of the code was enacted in 1937 and was based on former Civil Code, section 1969, which, as originally enacted, is identical with section 2802 of the Labor Code except that the phrase "except as prescribed in the next section" was deleted. The next section (1970), before its repeal, sets forth the conditions under which an employer is not bound to indemnify his employee, such as for "losses suffered by the latter (employee) in consequence of the ordinary risks of the business in which he is employed" and "in consequence of the negligence of another person employed by the same employer." It is the contention of plaintiffs that by the reenactment of section 1969 in 1937 and the noted deletion, the Legislature intended to cover losses suffered by the employee other than for personal injuries. The section, by its terms, covers "indemnification of employee for expenditures or losses in discharge of duties or obedience to directions" and indicates a *47 legislative intent to provide for losses suffered from property damage. However, such losses must be in direct consequence of the discharge of the employee's duties or in obedience to the employer's directions. There is no evidence in the record indicating that the fire which directly caused the losses occurred in direct consequence of the discharge of duties of employment. The evidence shows that plaintiffs furnished their own hand tools and when broken or worn out these tools were replaced by plaintiffs, at their own expense. There was no requirement in the terms of employment that plaintiffs furnish a specified number or kind of hand tools and the employer exercised no control over them. Plaintiffs were not required to keep their tools in the garage at night and were free to take them away at any time. Under such circumstances, we cannot hold that the defendants were insurers of the private property of plaintiffs and responsible for the losses incurred. Judgment affirmed. Barnard, P.J., and Griffin, J., concurred. A petition for a rehearing was denied March 5, 1953, and appellants' petition for a hearing by the Supreme Court was denied April 9, 1953. Gibson, C.J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MARK E. BROWN, Plaintiff, v. Case No. 17-2211-JAR KEYSTONE LEARNING SERVICES, Defendant. MEMORANDUM AND ORDER Plaintiff Mark E. Brown brings this action against his former employer, Defendant Keystone Learning Services, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Before the Court is Defendant’s Motion for Summary Judgment (Doc. 37). The motion is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court grants Defendant’s motion for summary judgment on all claims. I. Summary Judgment Standard Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.1 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.2 “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”3 A fact is “material” if, under 1 Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008). 2 City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010). 3 Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). the applicable substantive law, it is “essential to the proper disposition of the claim.”4 An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”5 The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.6 In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim.7 Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”8 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.9 Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”10 To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”11 Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge 4 Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). 5 Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 6 Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). 7 Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010). 8 Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 9 Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001). 10 Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671); see Kannady, 590 lharrison@example.com. 11 Adams, 233 lharrison@example.com. 2 and shall set forth such facts as would be admissible in evidence.12 The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.13 Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”14 In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn lharrison@example.com.”15 II. Uncontroverted Facts The following material facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party. Defendant Keystone Learning Services (“Keystone”) is a special education cooperative that provides services to eight school districts in Kansas, offering learning opportunities to students struggling in traditional academic settings. Keystone is a Kansas governmental entity duly authorized and existing pursuant to the Kansas Interlocal Cooperation Act.16 Defendant maintains policies and procedures adopted by its governing board of education which prohibit discrimination or retaliation based upon inter alia, race, color, religion, sex, national origin, age, handicap, or disability in the admission, or access to, or treatment in Defendant’s programs and 12 Fed. R. Civ. P. 56(c)(4). 13 Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation omitted). 14 Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). 15 Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). 16 K.S.A. § 12-2901, et seq., and § 72-13,100. 3 activities. These policies and procedures include providing employees with formal and informal procedures to complain of discrimination and harassment. Plaintiff Mark Brown, who is African American, applied for the following teaching positions advertised by Keystone in the summer of 2015: special education grades 7 through 12, and substitute teacher grades K through 12. Keystone sent Plaintiff a letter on September 1, 2015, stating: “This is a notification that the substitute teaching position for which you recently interviewed for has been filled. However, we will keep your application materials on file for future openings.”17 Plaintiff was ultimately hired by Defendant on October 26, 2015, as a Substitute JDLA Special Education Teacher at John Dewey Learning Academy under a written employment contract. The start date for the contract was October 26, 2015, and there was no end date provided. The position was designated as an English position working with special education students. Plaintiff’s teaching license from the State of Kansas allows him to teach in the areas of learning disabilities, physical education, health, and psychology. Although he may not have been qualified to be hired for a permanent English teaching position, since he had a teaching license, he was qualified to be hired as a substitute teacher. John Dewey Academy Principal Terri Coughlin told Plaintiff upon hire that he would be the first African-American teacher at the school, and that she was happy to have some diversity because the school had at least two African-American students. In December 2015, at least two of these African-American students left John Dewey Academy. In mid-December 2015, Coughlin told Plaintiff that Keystone had hired a permanent teacher to fill the position for which he had been a substitute, and that the school would no longer need his services after the end of 17 Doc. 38-10, Ex. J. 4 the semester that month. Plaintiff was unaware of Defendant’s grievance procedure that may have allowed him to challenge the termination. Instead, Defendant retained legal counsel, who sent the following letter to Defendant on December 29, 2015: I have been retained to represent Mr. Brown in this matter. My understanding is that Mr. Brown was hired by contract for a long term substitute position for special education students for an English class. However, on December 15, 2015 you indicated to Mr. Mark Brown that his last day at work would be December 17, 2015. Mr. Brown’s contract indicates an annual, renewable employment relationship. It is and has always been Mr. Brown’s intention to fulfill his duties under the contract. As such, he is ready and willing to return to work after the Christmas break. It seems the only basis for terminating Mr. Brown’s employment is lack of funding. However, I understand that Mr. Brown is being replaced by another teacher, indicating there is not a lack of funding. Additionally, Keystone Learning Services had a job posting on December 18, 2015 seeking substitute teachers and special education teachers. Mr. Brown is certified in both these areas. If you wish to resolve this matter amicably, please contact me at your earliest convenience. Mr. Brown, is ready, willing, and able to be a substantial asset to your school.18 The parties’ attorneys discussed Plaintiff’s demand letter, and then Andy Ewing, Executive Director at Keystone, told Coughlin that he wanted to find a position for Plaintiff for the spring. Defendant eventually offered and Plaintiff accepted a contract for the remainder of the 2015–16 school year. This new contract was a “Temporary Employment Contract 2015- 2016,” for a “substitute teacher, an employment at-will position.”19 The contract term was from January 5, 2016, to May 25, 2016. Plaintiff understood that this was a temporary contract that would expire on May 25, 2016. Plaintiff started working again at John Dewey Academy before 18 Doc. 38-6, Ex. F. 19 Doc. 38-7, Ex. G. 5 the Board approved the contract, however, his employment was contingent upon Board approval. Plaintiff finished the term of this temporary contract and was paid all compensation due. At the end of the 2015–16 school year, Coughlin offered Plaintiff a temporary position for the 2016–17 school year as a paraprofessional; she told Plaintiff that there were no teaching positions available. Principal Coughlin also asked Plaintiff if he would be interested in a position with Keystone’s “Harvester program” over the summer, helping another teacher named Mr. Millner. Ewing understood the Harvester program opportunity and the paraprofessional position for 2016–17 to be one in the same, however, Coughlin understood that the Harvesters program was “its own position.”20 Plaintiff told Coughlin he was interested in the Harvesters program after she told him the rate of pay and the days he would be required to work. Mr. Millner emailed Plaintiff a schedule that included a start and end date. When he arrived on the first day of the program, he was sent home. By that time, Plaintiff’s attorney had contacted Defendant by letter stating that Plaintiff continued to be employed by Defendant under the original 2015–16 employment contract signed in October 2015. Defendant understood from this letter that Plaintiff would not accept any position other than the substitute teaching position he held the previous year. Plaintiff did not separately apply for any vacant employment positions with Defendant after his temporary employment contract expired in May 2016, nor did he notify Keystone’s Human Resources Manager, Lushena Newman, that he was interested in a full-time position at the end of his term. In reliance on the September 1, 2015 letter he received from Newman on behalf of Keystone, Plaintiff believed that his original application for the 2015–16 substitute teacher position in the summer of 2015 sufficed for him to be considered for any regular teaching 20 Doc. 45-4, Ex. 3 at 47:2–10. 6 positions that became vacant for the 2016–17 school year. Newman usually held onto an application for approximately eighteen months, and contacted the applicant if they qualified for a future vacancy. But Newman testified that once an applicant is hired by Keystone, either as a permanent or substitute teacher, “their application is no longer in my pile of contact information.”21 After becoming a Keystone employee, the person must let Newman know if they remain interested in a future position. Defendant advertises its vacant teaching positions online. Defendant also sends emails to current employees, notifying them of vacant positions. Plaintiff did not receive these emails in the spring and summer of 2016, most likely because he was a temporary substitute teacher who was not on the email list. He later discovered that Keystone had advertised on the Kansas teaching website for special education teachers throughout the spring of 2016. Defendant selected and hired teachers for the 2016–17 school year from the individuals who applied and were qualified for those positions. Newman did not consider Plaintiff interested in full-time employment during the 2016-17 school year based on his 2015 application because “that’s a new school year,”22 and because he had not separately applied for any posted positions. During the period of his employment, Plaintiff did not complain of race discrimination or retaliation. On July 5, 2016, he dual-filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”) alleging race discrimination and retaliation against Keystone. In this charge, the date of the alleged incident is April 28, 2016 to May 16, 2016. He alleges he was denied a position for the 2016–17 school year, even though teaching positions were available. He further states that he 21 Doc. 38-4, Ex. D at 17:19–25. 22 Id. at 19:1–2. 7 was terminated on May 16, 2016, in retaliation “for having openly opposed acts and practices forbidden by the Kansas Act Against Discrimination.”23 III. Discussion In the Pretrial Order, Plaintiff alleges race discrimination claims under Title VII and 42 U.S.C. § 1981 based on the following discrete adverse employment actions: (1) termination of his employment in December 2015 in favor of a less favorable employment agreement in January 2016; (2) failure to hire for the 2016–17 school year; and (3) failure to hire for the Harvesters program.24 Plaintiff also alleges a claim of retaliation under Title VII and § 1981 for challenging the termination decision in December 2015. The Court first addresses Defendant’s argument that Plaintiff failed to exhaust certain discrimination claims under Title VII by not including them in his administrative charge. Next, the Court addresses the merits of Plaintiff’s claims. A. Title VII Claims 1. Failure to Exhaust Disparate Treatment Claims for Unlawful Termination and Failure to Hire for Harvesters Program At the time Defendant moved for summary judgment, failure to exhaust administrative remedies was considered a jurisdictional bar to a Title VII claim in the Tenth Circuit.25 Thus, Defendant moved to dismiss for lack of jurisdiction any Title VII claims not included in Plaintiff’s July 5, 2016 administrative charge. But on August 17, 2018, a panel of the Tenth Circuit, after obtaining authorization from the full court, overruled that precedent in Lincoln v. BNSF Railway Co., holding “that a plaintiff’s failure to file an EEOC charge regarding a discrete 23 Doc. 38-12, Ex. L at 4. 24 See Doc. 33 at 5. 25 900 F.3d 1166, 1181–82 (10th Cir. 2018). There is no exhaustion requirement for the claims asserted under § 1981. See, e.g., Martin v. Cent. States Emblems, Inc., 150 F. App’x 852, 857 (10th Cir. 2005). 8 employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”26 In this case, Defendant asserted failure to exhaust as a defense in the Pretrial Order, and raised the issue of exhaustion in its motion for summary judgment. It also addressed the issue in the context of an affirmative defense in the reply brief, filed after the Lincoln decision was issued. The Court therefore considers Defendant’s exhaustion argument as an affirmative defense. The primary distinction between treating exhaustion as jurisdictional rather than as an affirmative defense, is that as an affirmative defense it is subject to waiver and estoppel.27 The difference is immaterial where waiver and estoppel do not come into play.28 Here, Defendant did not waive the defense because it was raised in both the Answer and the Pretrial Order .29 And Plaintiff does not raise estoppel. Thus, the Court proceeds to consider whether Defendant has met its burden to demonstrate exhaustion as an affirmative defense based on the same standards that governed its applicability as a jurisdictional issue. To exhaust administrative remedies, a plaintiff must file a charge of discrimination with either the EEOC or an authorized state agency and receive a right-to-sue letter based on that charge.30 The Court must liberally construe the administrative charge to determine whether a particular claim has been exhausted.31 The inquiry “is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in 26 Id. at 1185. 27 Id. at 1186 n.11. 28 Smith v. Cheyenne Ret. Inv’rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018). 29 See Doc. 5 at 6 ¶ 8; Doc. 33 at 7. 30 See 42 U.S.C. § 2000e(5)(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). 31 Smith, 904 F.3d at 1164; Jones v. U.P.S., 502 F.3d 1176, 1186 (10th Cir. 2007). 9 the administrative charge.”32 Plaintiff’s administrative charge alleges race discrimination on the following basis: “On April 28, 2016, I was denied a position for the 2016-2017 school years. However, on April 22, 2016 and April 29, 2016, the Respondent posted several teaching positions for the 2016-2017 school year.”33 Plaintiff does not dispute that his unlawful termination and failure to hire for the Harvesters Program claims were not included in his administrative charge. Instead, he argues that his exhausted claims are “similar to” his unlawful termination allegation and are part of a “continuing effort by defendant to eliminate plaintiff from its workforce.”34 Plaintiff further argues that the facts surrounding his unexhausted claims are material to his exhausted claim for failure to hire for the following school year. While it may be true that the facts surrounding the unexhausted claims are relevant to the exhausted claim, relevance is not the standard. Under the notice standard that applies, the Court easily finds that the only exhausted claim alleged by Plaintiff in this case is the failure to hire him for the 2016–17 school year. Nothing in the charge puts Defendant on notice that Plaintiff would allege unlawful termination in December 2015—in fact, the charge alleges he was unlawfully terminated on May 16, 2016, a claim that is tied to his failure to hire claim. Accordingly, neither the KHRC nor the employer was on notice of a need to investigate the facts surrounding his 2015 termination, or the Harvesters Program failure-to-hire allegation, and those two Title VII claims must be dismissed on the affirmative defense of failure to exhaust. 32 UPS, 502 F.3d at 1186; Jones v. Wichita State Univ., 528 F. Supp. 2d 1222, 1237 (D. Kan. 2007). 33 Doc. 38-12 at 1. 34 Doc. lharrison@example.com. 10  2. Discrimination for Failure to Hire for 2016–17 School Year Plaintiff’s disparate treatment and retaliation claims must be decided under the familiar McDonnell Douglas v. Green35 burden-shifting framework because Plaintiff relies on circumstantial evidence.36 Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination or retaliation.37 The burden of establishing the prima facie case is “not onerous.”38 If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions.39 If defendant articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a jury might conclude that defendant’s proffered reason is pretextual, that is, “unworthy of belief.”40 To establish a claim for failure-to-hire under Title VII and § 1981, Plaintiff must show: (1) he belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite being qualified, the plaintiff was rejected; and (4) after his rejection, the position remained open and Defendant continued to seek applicants from persons with Plaintiff’s qualifications.41 Defendant does not contest that Plaintiff belongs to a protected class, but argues that Plaintiff cannot satisfy the other elements of his failure-to-hire claim. First, Defendant argues there is no evidence that Plaintiff applied for and was qualified for any 2016–17 teaching 35 411 U.S. 792, 802–05 (1973). 36 See, e.g., Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). 37 McDonnell Douglas, 411 U.S. at 802. 38 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 238, 253 (1981). 39 Id.; Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). 40 Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)). 41 Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005). 11 positions. Yet the parties dispute whether Plaintiff’s application submitted in the summer of 2015 continued to serve as an application for subsequent openings for which he was qualified after he was hired. And the evidence, when viewed in the light most favorable to Plaintiff, supports his contention that his summer 2015 application should have caused Defendant to consider him for other teaching positions that became available for the 2016–17 school year. Keystone’s October 1, 2015 letter made clear that it would keep Plaintiff’s application on file and consider him for other positions that may become available. And Newman testified that she routinely held on to applications for eighteen months—the positions for which Plaintiff claims he should have been considered were posted within this window of time. Newman’s testimony that Plaintiff’s application was no longer considered active because of his subsequent temporary employment may be true, but this fact was not communicated to Plaintiff. Next, Defendant argues that Plaintiff cannot demonstrate he was rejected for a teaching position during the 2016–17 school year. Defendant points to evidence that Plaintiff was offered a position as a paraprofessional during the 2016–17 school year. But Plaintiff argues that this position was for less money than a teaching position, and that he was not considered for teaching positions, despite being qualified. Finally, Defendant argues that the positions at issue were filled with qualified applicants; they did not remain open. But this argument depends on there being a lack of evidence that Plaintiff applied for the open teaching positions. Plaintiff, however, has submitted evidence that he thought his 2015 application continued to serve as an application for open positions in 2016– 17, and he did not receive the emails sent by human resources in the spring of 2016 that may have prodded him to investigate those positions before they were filled. Plaintiff has met his 12 light burden of demonstrating a prima facie case of discrimination for failure to hire him for the 2016–17 school year. The burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for not hiring Plaintiff. Defendant maintains that it hired teachers for the 2016-17 academic year who actually applied and were qualified for the positions. Therefore, the burden shifts back to Plaintiff to demonstrate that Defendant’s stated reason for its decision was a pretext for discrimination. Plaintiff can demonstrate pretext by showing “such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”42 Mere conjecture is not enough; a plaintiff must “cast doubt” on the employer’s explanations by specifically pointing out these “implausibilities, incoherencies, or contradictions.”43 Typically, a plaintiff attempts to demonstrate pretext in one or more of three ways: (1) “evidence that the defendant’s stated reason for the adverse employment action was false”; (2) “evidence that the defendant acted contrary to a written . . . policy prescribing the action to be taken by the defendant under the circumstances”; or (3) “evidence that the defendant acted contrary to an unwritten policy or contrary to [the employer’s] practice when making the adverse employment decision affecting the plaintiff.” Regardless of which methods the plaintiff uses, “[t]he relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”44 42 Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997). 43 Id. at 1323–25. 44 Macon v. United Parcel Serv., Inc., 743 F.3d 708, 714 (10th Cir. 2014) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)) (citations omitted). 13 Here, Plaintiff makes a single argument in support of his pretext showing: that Coughlin’s statement to him in the spring of 2016 that no teaching positions at Keystone were available the following school year was false. Plaintiff offers no evidence that Coughlin’s statement was false at the time it was made. Of course, Coughlin was the principal of but one school with which Keystone placed its teachers. Moreover, Coughlin’s cited-to deposition testimony states that there was a special education teacher position available in the 2015–16 school year; it does not support Plaintiff’s assertion that “defendant advertised for at least three special education teacher positions” for the 2016–17 school year.45 That leaves Plaintiff’s own testimony that Coughlin gave him false information, but Plaintiff merely states that after Coughlin’s told him there were no open teaching positions, he learned that Keystone had advertised for teaching positions “in the spring of 2016.” He does not specify the positions to which he refers, when they were posted, or when they were filled. And even if the Court concludes that there is a genuine issue of material fact about whether Coughin’s statement that there were no open teaching positions was false, that would not be sufficient to create a triable issue on pretext under the circumstances of this case. A false explanation for an employment decision will only evidence pretext “where the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”46 “The relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”47 It is the “the nature and quantum of plaintiff’s proof [that] is 45 Compare Doc. 45 at 8 ¶ 30 with Doc. 45-3, Ex. 2 at 14:18–25 46 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). 47 Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004) (quoting Burlington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999)). 14 key, for the Supreme Court has also explained that evidence about the falsity of an employer’s proffered race-neutral explanation for termination will not “always be adequate to sustain . . . liability.”48 Plaintiff comes forward with no evidence that Coughlin was aware of the falsity of her statement at the time she made it, or that she intentionally misrepresented that there were no vacant teaching positions. Moreover, Coughlin did offer Plaintiff a job as a paraprofessional, which cuts against Plaintiff’s suggestion that Coughlin harbored a racial animus when making hiring decisions, to the extent those decisions were hers to make. In sum, the nature and quantum of Plaintiff’s evidence that Keystone’s reason for not hiring him as a teacher for the 2015–17 year was false is not enough to fulfill Plaintiff’s burden of demonstrating pretext. As such, summary judgment is appropriate on Plaintiff’s Title VII failure-to-hire discrimination claim. 3. Retaliation In the Pretrial Order, Plaintiff claims “he was retaliated against for having opposed his termination from employment in December, 2015, in violation of title VII [sic] when he was denied employment opportunities with Keystone.”49 The elements of a prima facie claim of retaliation under Title VII are: (1) the employee engaged in protected opposition to discrimination; (2) the employee suffered an adverse employment action during or after his protected opposition that a reasonable employee would have found materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action.50 Defendant argues that Plaintiff cannot meet his light burden of coming forward with evidence in support of his prima facie case of retaliation. First, Defendant argues that Plaintiff 48 Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (quoting Reeves, 530 U.S. at 148). 49 Doc. 33 at 5. 50 McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). 15 never engaged in protected activity in opposing his termination in December 2015. Plaintiff claims that his assertion in December 2015 of his right to continued employment at Keystone was sufficient protected activity, even if he did not challenge the termination on the basis of race discrimination. To show he engaged in protected activity, Plaintiff must have either “participated in a Title VII investigation or opposed Title VII violations.”51 “Protected opposition can range from filing formal charges to voicing informal complaints to superiors.”52 The plaintiff must have subjective good faith belief that Title VII had been violated.53 Plaintiff’s opposition to the December 2015 termination does not constitute protected activity. The letter written by Plaintiff’s attorney to Keystone challenged the termination decision under the terms of Plaintiff’s employment contract. The letter did not infer nor mention that the termination decision was unlawful under Title VII. In fact, there is no evidence in the record that Plaintiff complained about unlawful activity under Title VII until his administrative charge was filed in July 2016. Second, Defendant argues that there is no evidence of a causal connection between Defendant’s alleged protected activity in December 2015, and Defendant’s decision not to hire him as a teacher for the 2016–17 year. Plaintiff responds that the temporal proximity between Plaintiff challenging his December 2015 termination and Coughlin falsely telling him in the spring of 2016 that no teaching jobs were available in the following fall, is sufficient evidence of a causal connection. The Tenth Circuit has found a causal connection exists between the protected activity and the materially adverse action “where the plaintiff presents evidence of 51 Rowland v. Franklin Career Servs., LLC, 272 F. Supp. 2d 1188, 1207 (D. Kan. 2003) (citing 42 U.S.C. § 2000e-3(a)). 52 Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004). 53 Id. (citing Love v. Re/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984)). 16 circumstances that justify an inference of retaliatory motive.”54 Courts typically consider “protected conduct closely followed by adverse action” as sufficient evidence.55 However, when sufficient time has elapsed between the protected conduct and the adverse action, a court requires “additional evidence beyond temporal proximity to establish causation.”56 When analyzing the additional evidence, the court can consider all the proffered evidence of retaliatory motive, which includes pretext evidence.57 “In order to make a prima facie case, one must only introduce evidence from which an inference can be drawn that an employer would not have taken the adverse action had the employee not filed prior discrimination charges.”58 The Supreme Court has recently clarified that a Title VII plaintiff asserting a claim of retaliation must show that his protected activity was the but-for cause of the alleged adverse employment action, and not merely a motivating factor.59 Even if Plaintiff could show that he engaged in protected activity after his December 2015 termination, the evidence he submits on causation is insufficient. Plaintiff claims that Coughlin’s false assertion that there were no teaching positions available was made at the end of the 2015–16 school year, several months after his December 2015 termination. The decision not to hire him for the following year, conveyed to Plaintiff at least four months after his attorney’s 54 Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007). 55 Id. (emphasis added). 56 Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999); see e.g., Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006) (holding one and one-half months establishes causation while three months is too long and does not), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). 57 Xia v. Salazar, 503 F. App’x 577, 580 (10th Cir. 2012) (citing Anderson, 181 F.3d at 1179). 58 Tex. Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981) 59 Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). 17 December 2015 letter, thus did not closely follow allegedly protected activity. Therefore, Plaintiff must come forward with more than temporal proximity as evidence of causation. For the same reasons discussed on the discrimination claim, Plaintiff’s additional pretext evidence that Coughlin falsely told him there were no vacant teaching positions for 2016–17 is unavailing. There is a lack of evidence that her representation was false, and there is a lack of evidence that it was made intentionally as a way to cover up racial animus. As such, Plaintiff is unable to meet his burden of demonstrating a prima facie case of retaliation. Again, Defendant states that it had a nonretaliatory reason for not hiring Plaintiff—it hired teachers for the 2016-17 academic year who actually applied and were qualified for the positions. Plaintiff offers the same pretext evidence on his retaliation claim as he offered on his discrimination claim. For the same reasons described under the Court’s pretext analysis on that claim, Plaintiff could not demonstrate pretext even if he met his light prima facie burden on this claim. Accordingly, summary judgment is granted.60 B. 42 U.S.C. § 1981 Claims Plaintiff asserts discrimination and retaliation claims under 42 U.S.C. § 1981, based on the same theories advanced on his Title VII claims. Section 1981 “does not provide a vehicle for remedying racial discrimination and retaliation in cases brought against state actors. Rather, § 1983 ‘provides the exclusive federal damages remedy for the violation of the rights guaranteed 60 The Court does not discuss Defendant’s assertion of the Faragher/Ellerth defense because Plaintiff does not seek to hold Keystone vicariously liable for the acts of a subordinate supervisor. See Helm v. Kansas, 656 F.3d 1277, 1284–86 (10th Cir. 2011) for a discussion of this affirmative defense when considering an employer’s vicarious liability for harassing conduct by a supervisor. Likewise, Defendant’s authority on the presumption of good faith afforded to governmental entities does not involve claims alleging unlawful discrimination. See, e.g., Hortonville Jt. Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 494–95 (1976) (discussing a good faith presumption in the context of a due process claim); Withrow v. Larkin, 421 U.S. 35, 41–42 (1975) (same). 18 by § 1981 when the claim is pressed against a state actor.’”61 Defendant first argues that summary judgment is appropriate on Plaintiff’s § 1981 claims because he failed to allege them under § 1983. Plaintiff concedes that his claims should have been brought under § 1983, but characterizes this failure as a technicality that warrants leave to amend, citing Bolden v. City of Topeka.62 The Pretrial Order was entered in this matter on May 29, 2018, before the summary judgment deadline. It supersedes all pleadings and controls the subsequent course of the case.63 “When an issue is set forth in the pretrial order, it is not necessary to amend the previously filed pleadings” because “the pretrial order is the controlling document for trial.”64 The court may modify a final pretrial order “only to prevent manifest injustice.”65 The party moving to modify the pretrial order bears the burden of demonstrating the applicability of manifest injustice.66 Courts look to the following factors to determine whether to amend or modify a pretrial order: “(1) prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to cure any prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new issue; (4) bad faith by the party seeking to modify the order.”67 61 Hannah v. Cowlishaw, 628 F. App’x 629, 632 (10th Cir. 2016) (quoting Jett v. Dallas Indep. Sch. Dist., 491, U.S. 701, 705 (1989)) (citation omitted). 62 441 F.3d 1129 (10th Cir. 2006). 63 See Fed. R. Civ. P. 16(e); D. Kan. Rule 16.2(b). 64 Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006); Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (quoting Expertise Inc. v. Aetna Fin. Co., 810 F.2d 968, 973 (10th Cir. 1987); Fed. R. Civ. P. 16(e)). 65 Fed. R. Civ. P. 16(e); accord D. Kan. Rule 16.2(b) (recognizing that the final pretrial order “will control the subsequent course of the action unless modified by consent of the parties and court, or by an order of the court to prevent manifest injustice.”). 66 Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). 67 Id. 19  Plaintiff, who bears the burden of demonstrating manifest injustice, wholly fails to address these factors, relying solely on Bolden. In Bolden, the pro se plaintiff alleged in the pretrial order race discrimination under § 1981, and First Amendment retaliation under § 1983 against his former municipal employer. The Tenth Circuit considered whether the district court erred in granting summary judgment to the defendant because the plaintiff did not plead his race discrimination claim under § 1983.68 The court found that while § 1983 was indeed the exclusive remedy for the plaintiff’s race discrimination claim against the City, “it applied [the law] with too heavy a hand.”69 Apparently the § 1981 claim could have escaped dismissal if Mr. Bolden had merely added an allegation that he sought relief on the claim under § 1983. Dismissal on such a technical ground, without granting leave to amend, would rarely be appropriate. As we shall see, the thrust of Jett was not to impose a technical pleading requirement but to clarify that a § 1981 claim against a local government cannot be predicated on respondeat superior, a limitation imposed on § 1983 claims.70 In Bolden, the plaintiff proceeded pro se and had already alleged a § 1983 claim in the pretrial order. The court found that his previously alleged § 1983 claim incorporated his § 1981 claim, and to the extent the pretrial order was not clear, he should have been granted leave to amend.71 In this case, Plaintiff made no attempt to allege a § 1983 claim at any time prior to the response to his summary judgment motion. Moreover, Plaintiff does not proceed pro se. Bolden has been controlling precedent for more than a decade, yet Plaintiff shows no good cause for his counsel’s failure to properly plead his claim under § 1983. Moreover, prejudice will ensue to 68 Bolden v. City of Topeka, 441 F.3d 1129, 1133–34 (10th Cir. 2006). 69 Id. at 1134. 70 Id. 71 Id. at 1137. 20 Defendant given that the trial date is two months away and discovery has long since closed. These factors weigh against modifying the Pretrial Order. Defendant also argues that summary judgment is appropriate even if the Court grants Plaintiff leave to modify the Pretrial Order to assert his claims under § 1983. The Court agrees. First, the failure to hire claim and the retaliation claim fail for the same reasons summary judgment is granted on those claims under Title VII. Second, in addition to alleging discrimination and retaliation under the McDonnell Douglas framework, Plaintiff must establish municipal liability for § 1983 liability to attach.72 Municipal liability may be based on a formal regulation or policy statement, or it may be based on an informal “custom” so long as this custom amounts to “a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Municipal liability may [] also be based on the decisions of employees with final policymaking authority or the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval. Finally, municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from “deliberate indifference” to the injuries that may be caused.73 Because there can be no respondeat superior under § 1983, Plaintiff must show that the discriminatory and retaliatory actions were made by the “final policymakers” for Defendant.74 Plaintiff has failed to identify a genuine issue of material fact as to municipal liability for his race discrimination and retaliation claims. Plaintiff argues that Defendant has a practice of not hiring minority teachers at the John Dewey Academy. He argues further that Coughlin is the final decisionmaker for Defendant’s hiring decisions at that school. But Plaintiff fails to point to 72 Jett, 491 U.S. at 735. 73 Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010) (citing City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)). 74 Jett, 491 U.S. at 736–37. 21 any evidence of these claims. The only evidence to support Plaintiff’s claim of a discriminatory hiring practice is Coughlin’s testimony that Plaintiff was the first African-American teacher at John Dewey Academy that she recalled during her tenure there as principal. Plaintiff also claims that Coughlin was the decisionmaker for Defendant, pointing to the fact that he began working under the temporary contract in January 2016, despite the lack of Board approval. Defendant denies that it had a practice of not hiring minority teachers, and denies that Coughlin was a final decisionmaker. The Court finds that Plaintiff’s evidence fails to create a genuine issue of material fact as to municipal liability in this case. He has not demonstrated a widespread or well settled practice of not hiring minority teachers by Keystone. He has only submitted evidence that he was the first African-American teacher at one of the schools with which Keystone serves during a seventeen-year period. It is uncontroverted that he was not the first or only African-American teacher hired by Keystone. Second, Plaintiff comes forward with no evidence to support his contention that Coughlin had final policymaking authority on hiring and firing decisions for Defendant. Under Kansas law, a school board has final decision-making authority for its school district. And school boards lack statutory authority to delegate hiring decisions to subordinates.75 It is true that “decisionmakers cannot insulate themselves from liability under section 1983 by knowingly allowing a subordinate to exercise final policymaking authority vested by law in the decisionmakers.”76 But there is no evidence that the decision not to offer Plaintiff a teaching job for the 2016–17 year was made by Coughlin—the evidence demonstrates that she told Plaintiff there were no teaching jobs available. The evidence does not suggest that she communicated this 75 Id. 76 Id. 22 to him as a policy statement or that he was not being hired in accordance with Defendant’s custom or usage. “Delegation must be absolute to give rise to the ‘final authority.’ If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur.”77 The evidence suggests that Defendant’s employment contracts each required Board approval, a fact known to Plaintiff given the uncontroverted evidence that Ewing told Plaintiff that his January 2016 contract was contingent on Board approval. This is also supported by both of Plaintiff’s employment contracts, which were signed for Keystone by the President and Clerk of the Board, not by Coughlin, the school principal. There is further evidence that Plaintiff by and through his counsel understood that Coughlin was not a final decisionmaker. On May 25, 2016, Plaintiff’s attorney sent a letter to members of the Keystone Board of Directors, in addition to Coughlin, stating that Plaintiff would decline the paraprofessional position because he believed he continued to be employed under his October 2015 contract, which was subject to renewal. Similarly, Plaintiff’s counsel met with the Board’s counsel, not Coughlin, in December 2015, after his substitute position was terminated. After that discussion, Ewing, the Executive Director of the Board, told Coughlin to find a place for Plaintiff in the spring at John Dewey Academy. These facts strongly suggest that Defendant did not delegate authority to make hiring and firing decisions to Coughlin, the school principal, and that Plaintiff was well aware of this fact. Because Plaintiff cannot demonstrate a genuine issue of material fact on municipal liability, summary judgment is granted in favor of Defendant on Plaintiff’s § 1981 claims, to the extent he is allowed to modify the Pretrial Order and plead them as § 1983 claims. 77 Jantz v. Muci, 976 F.2d 623, 631 (10th Cir. 1992) (citing Praprotnik, 485 U.S. at 130). 23  IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for Summary Judgment (Doc. 37) is granted. IT IS SO ORDERED. Dated: November 19, 2018 S/ Julie A. Robinson JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE 24 

492 F.2d 515 74-1 USTC P 16,137 CREME MANUFACTURING CO., INC., Plaintiff-Appellee-Cross Appellant,v.UNITED STATES of America, Defendant-Appellant-Cross Appellee. No. 73-1609. United States Court of Appeals, Fifth Circuit. April 15, 1974, Rehearing Denied June 25, 1974. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Richard W. Perkins, Tax Div., Dept. of Justice, Washington, D.C., Lee H. Henkel, Jr., Chief Counsel, IRS, Washington, D.C., Lynn Ross, Jr., Tax Div., Dept. of Justice, Dallas, Tex., Roby Hadden, U.S. Atty., Tyler, Tex., for defendant-appellant. Allen E. Pye, J. Robert Dobbs, Jr., Tyler, Tex., for plaintiff-appellee. Before WISDOM, AINSWORTH and GEE, Circuit Judges. WISDOM, Circuit Judge: 1 The question for decision is whether the taxpayer's excise tax liability should be based on the price at which it sold its product to a closely related promotion and sales corporation or on a constructive price, determined by the Internal Revenue Service, based on the price at which the related corporation sold the product to independent wholesalers. 2 Creme Manufacturing Company, Inc., the taxpayer, instituted this action in the district court to gain a refund of approximately $2,500 for overpayment of federal excise taxes. The United States counterclaimed for additional taxes, interest, and penalties, totalling almost $140,000, for the period July 1, 1964, through December 31, 1968. The Government contended that the taxpayer sold items subject to the excise tax '(otherwise than through an arm's length transaction) at less than the fair market price', 26 U.S.C. 4216(b), and that the taxpayer's federal excise tax liability was correctly determined by the Government on the basis of a higher 'constructive sales price'. The district court dismissed the taxpayer's complaint and held that the constructive price was properly the basis of tax liability for the period July 1, 1964, through April 30, 1968, but that the actual price charged was the correct basis after that date. We affirm the dismissal of the complaint and the district court's holding with regard to the earlier period. We reverse and remand with regard to the later period. 3 Nicholas Creme and his wife, Cosma Creme, organized Creme Lure Company in 1953 to manufacture and sell artificial fishing lures, primarily plastic 'worms' developed by Nicholas Creme. Creme Lure paid a ten percent excise tax imposed on artificial fishing lures by 26 U.S.C. 4161.1 The tax was based on the price charged by Creme Lure to wholesale distributors, generally 50 percent of the suggested retail price, less a standard discount of ten percent and, in some cases, additional advertising and volume discounts.2 4 In 1941 the Cremes organized Creme Manufacturing Company, the taxpayer in the instant case, to conduct the manufacturing operations. Creme Lure thereafter limited its activities to promoting and selling finished products. The taxpayer sold 97 percent of its products to Creme Lure.3 Although maintaining their own books and bank accounts, both companies operated from the same premises, which were owned by Creme Lure, and shared certain employees. 5 Throughout the period in question (July 1, 1964-December 31, 1968), Nicholas and Cosma Creme each owned 50 percent of Creme Lure. Creme Munufacturing was initially owned by Nicholas (36%), Cosma (36%), their three children (22%), and unrelated employees (6%). In January 1968 Nicholas and Cosma reduced their ownership interests in the taxpayer to 25 percent each, increasing the control of their two sons, Nicholas Jr. and Michael, to 19 percent and 18 percent, respectively. On May 1, 1968, ownership of Creme Manufacturing was transferred exclusively to Michael and Nicholas Jr., each taking a 50 percent interest. 6 With its creation in 1961, Creme Manufacturing became subject to federal excise taxes, and Creme Lure's excise tax liability ceased. Although Creme Lure continued to sell to wholesalers for approximately 40 percent of the suggested retail price, Creme Manufacturing sold to Creme Lure at a price 25 percent of the list price. The taxpayer paid excise taxes based on this latter price. But the Internal Revenue Service refused to permit the creation of Creme Manufacturing to reduce its tax revenue. The Service assessed additional taxes computed under Section 4216(b) of the Internal Revenue Code of 1954, based on the price charged by Creme Lure to independent wholesalers. 7 The taxpayer's accountant testified at trial that he set the price charged Creme Lure at 25 percent of list because this was the price at which other, independent manufacturers offered to produce lures for Creme Lure. Another witness, in the business of manufacturing prepackaged, ready-to-sell lures for Bommer Bait Company, testified that he charged Bommer approximately 25 percent of list price. 8 The only issue before us on this appeal is whether the taxpayer's federal excise tax liability should be based on a constructive price determined by the Internal Revenue Service under Section 4216(b). Ordinarily, federal excise tax liability is computed on the basis of the actual price charged by the manufacturer. But where the article in question is 'sold (otherwise than through an arm's length transaction) at less than the fair market price', Section 4216(b) authorizes the Internal Revenue Service to compute tax liability based on a constructive price. 26 U.S.C. 4216(b). The criteria for the imposition of a constructive price are cumulative. Use of a constructive price on which to base tax liability is authorized only if the article is sold neither through an arm's length transaction nor at a fair market price. 9 By permitting the Internal Revenue Service to impose a constructive price, Congress sought to prevent taxpayers from reducing their excise tax liability by charging artificially low prices to related buyers who then, without excise tax liability, might obtain the market price from independent buyers.4 By such a scheme, were it not for Section 4216(b), taxpayers could reduce their taxes below those of their competitors and eventually emasculate the excise tax. The United States urges on this appeal that what is really behind this provision is a congressional objective to prevent taxpayers from creating a new, lower tax base by dividing their manufacturing and selling operations into separate but related corporate entities. We are of the opinion, however, that so long as the price charged by a manufacturing corporation to a related sales corporation may be proved to be a true representation of the article's worth at that time, that price may serve as the base for federal excise taxes. We find no support for the Government's position in the legislative history of Section 4216(b). Furthermore, the Internal Revenue Service itself has recognized instances where taxpayers may reduce their excise taxes by separating manufacturing and sales functions into distinct but related corporations. In Revenue Ruling 69-568, 1969-2 Cum.Bull. 209, the taxpayer manufactured articles subject to the excise tax. It sold the articles to independent dealers; it sold the identical articles to its wholly-owned sales and distribution subsidiary, at the same prices charged the independent dealers. The Service held that, because the prices charged to independents were the same as those charged to the taxpayer's subsidiary, the intercompany sales prices were the proper bases for the excise tax. The Government concedes here that 'a different question would be presented' if the taxpayer sold lures to unrelated, independent distributors at the same prices it sold to Creme Lure. Thus we find the Government's contention that we should establish a special test for related manufacturers and distributors singularly unpersuasive. 10 We see no reason to distinguish the taxpayer in the instant case from any 'private brand' manufacturer. Instead of promoting and selling its product to the public, a private brand manufacturer makes articles under the vendee's brand name, leaving most of the advertising, selling, and distribution costs to the vendee. Because it incurs fewer expenses, the private brand manufacturer can sell for a lower price than the 'full service manufacturer', who must bear costs other than manufacturing. Consequently, if the excise tax is based on the actual price charged, the private brand manufacturer will pay a lower excise tax. 11 Both the Internal Revenue Service and the courts have recognized that the price charged by private brand manufacturers may legitimately serve as the base for excise taxes. See Rev.Rul. 63-238, 1963-2 Cum.Bull. 519; Shakespeare Co. v. United States, 1969, 419 F.2d 839, 189 Ct. Cl. 411, cert. denied, 400 U.S. 820, 91 S. Ct. 37, 27 L. Ed. 2d 47. We see no reason to apply different standards of tax liability to a private brand manufacturer who sells to independent, unrelated distributors and to one who sells only to related distributors. Both are under the same requirements. If the Internal Revenue Service assesses a deficiency on the basis of a constructive price because the sale from the private brand manufacturer to the distributor is neither at arm's length nor at a fair market price, the taxpayer must show that the Service's determination was incorrect. Cf. Holland v. United States, 1954, 348 U.S. 121, 126, 75 S. Ct. 127, 99 L. Ed. 150. There is nothing per se improper, therefore, with splitting manufacturing and selling functions into distinct corporations. And, furthermore, we consider the motivation of the taxpayer to be irrelevant.5 Courts have long held that a taxpayer may arrange its business affairs with an eye toward the tax consequences and that it need not maintain a corporate structure so as to pay the highest taxes. See Buffalo Meter Co., 1948, 10 T.C. 83, 89; Seminole Flavor Co., 1945, 4 T.C. 1215, 1235. 12 The arm's length and fair market criteria are interrelated. Both are directed to ensuring that the price on which the excise tax is based represents a bona fide expression of what the article is in fact worth. If the taxable transaction is at arm's length, the price charged and paid is taken to be an accurate representation of the true worth; that is, the fair market price. But if the transaction is not at arm's length, some other manifestation that the price is nonetheless an accurate portrayal of the article's worth is required. The price must be more than 'fair'; it is not enough that the price compensate the manufacturing company for costs-- and even provide a profit. The price must be a 'market' price; it must be the price which independent buyers in arm's length transactions would be willing to pay. 13 The first question we address is whether the sales by Creme Manufacturing to Crme Lure wereat arm's length. The district court found that sales made before May 1, 1968, when Nicholas Creme and his wife, Cosma, owned and controlled both Creme Manufacturing and Creme Lure, were not at arm's length. But the court found that, because Nicholas and Cosma severed all control and ownership on May 1, all sales made thereafter were arm's length sales. In emphasizing ownership and control to the exclusion of other factors in its examination of sales made after May 1, the district court reached an incorrect result. We believe that the evidence clearly establishes that none of the transactions between Creme Manufacturing and Creme Lure in the peirod in question, either before or after May 1, may properly be considered arm's length. 14 To be at arm's length under Section 4216(b), a transaction must be between parties with 'adverse economic interests'. Campana Corp. v. Harrison, 7 Cir. 1940, 114 F.2d 400, 408, overruled on other grounds, F. W. Fitch Co. v. United States, 1945, 323 U.S. 582, 65 S. Ct. 409, 89 L. Ed. 472. Each party to the transaction must be in a position to distinguish his economic interest from that of the other party and, where they conflict, always choose that to his individual benefit. In other words, if the seller would hesitate to raise the price for the sole reason that it would hurt the buyer, the parties are not at arm's length. Overlapping ownership and control are indicators that the parties may not be adverse, see e.g. Campana Corp. v. Harrison, supra, but the absence of these factors does not automatically signal an arm's length transaction. We must examine the entire relationship of the parties. 15 Before Cosma and Nicholas Creme gave up their interests in Creme Manufacturing on May 1, 1968, the corporations were commonly owned and controlled. The taxpayer's argument to the contrary notwithstanding, we do not believe there can be serious question as to the non-arm's length nature of the relationship of Creme Lure and Creme Manufacturing during that period. The period after April 30, 1968, presents a more difficult question. Viewing the totality of the relationship, however, we conclude that the corporations did not exhibit adverse economic interests. The operational ties between the two corporations were tight. The corporations shared the same facilities and some of the same employees. They shared the same risks as to sales made by Creme Lure (Creme Manufacturing did not receive payment until Creme Lure was paid by the independent distributors). Creme Lure held itself out to the public as the manufacturer, and Creme Manufacturing used the stationery of Creme Lure. Moreover, neither the formation of Creme Manufacturing nor the bowing out of the elder Cremes made any substantial change in the day-to-day activities of producing and selling. Finally, we cannot ignore the familial bonds between the corporations. As of May 1, 1968, the parents owned Creme Lure; their sons owned Creme Manufacturing. It remained essentially a family enterprise, with a common goal of enhancing the family fortunes. Although, as the district court observed, the sons were legally free to break their filial and corporate ties, there is no evidence that they even contemplated doing so. We are convinced that each corporation was operated with an eye toward the success of the other. Mere transfer of stock among the family members did not transform the intercompany sales into arm's length transactions. 16 Even non-arm's length parties can avoid the imposition of a constructive price as their excise tax base if their sales are shown to be at a fair market price. The taxpayer here maintains that the fair market price can be established by evidence that independent manufacturers would produce the product at that price. Four other manufacturers had offered to manufacture and sell the Creme lures to the Cremes at the price Creme Manufacturing charged Creme Lure. The Government argues, on the other hand, that the fair market price is the price at which the taxpayer's product would be 'available to the trade', established here by sales from Creme Manufacturing to independent, unrelated distributors. Creme Manufacturing, of course, made no such sales.6 17 The taxpayer's test, using the price for which others offer to make the product, may in some situations provide an accurate representation of the fair market price-- but only where the product gains no increase in value from the fact that it is made by the taxpayer. It is a matter of the value of the manufacturer's affiliation with the product. The Court faced this problem in Bourjois, Inc. v. McGowan, 2 Cir. 1936, 85 F.2d 510, 512, cert. denied, 300 U.S. 682, 57 S. Ct. 753, 81 L. Ed. 885: 18 'But to take the appellant's products as mere unnamed blends, mixtures or compositions saleable to the trade as such at the time the appellant sold them is to ignore the very thing which gave them their peculiar sales value; that is, the trade-names under which they were sold not only eventually to the wholesalers, retailers, and consumers but by the appellant itself to the sales corporations.' 19 See also H. R. Laboratories v. United States, S.D.N.Y.1943, 55 F. Supp. 266, 268, aff'd, 2 Cir. 1945, 151 F.2d 118; Inecto Inc. v. Higgins, S.D.N.Y.1937, 21 F. Supp. 418, 423. Where the fact that the product was made by a particular manufacturer adds substantially to its value, the product's worth cannot be measured by the price for which an independent private brand manufacturer would be willing to make the product available. In this event we think that some objective manifestation of the price others would pay for the product, as made by the taxpayer, is necessary. 20 The evidence established the importance of the manufacturer's name in the instant case. Creme Lure's catalogues during the period in question emphasized the fact that it did not market merchandise made by unrelated manufacturers under the Creme brand name: 21 'CREME LURES are manufactured solely by the CREME LURE COMPANY. They are made of soft flexible plastic from a formulation developed by Creme Lure Company and used exclusively in the manufacture of our own products. Rigid quality control as exercised in the manufacture of Creme Lures assures the purchaser of uniform, highest quality lures.' 22 We think it clear that the fact that the lures were made by a Creme corporation gave them a distinctive value. In any event, the burden was on the taxpayer to show that the value of the lures it sold to Creme Lure was essentially the same as the value of the lures the independent manufacturers offered to produce. The taxpayer did not meet this burden. Neither, therefore, did the taxpayer meet its burden of establishing that the price at which other manufacturers offered to sell lures to Creme Lure represented the fair market price for the lures actually sold by Creme Manufacturing to Creme Lure. 23 The taxpayer failed to prove that it sold its products to Creme Lure in arm's length transactions or at a fair market price. The dismissal of the taxpayer's complaint and the judgment of the district court awarding the United States a judgment in the amount of $86,382.13 in taxes, plus interest, as a tax deficiency for the period July 1, 1964 through April 30, 1968 is affirmed. The dismissal of the remainder of the United States counterclaim is reversed and remanded for the further proceedings consistent with this opinion. GEE, Circuit Judge (dissenting): 24 I respectfully dissent from the Court's holding that taxpayer's excise tax should be calculated upon a constructive price set by the Internal Revenue Service. Section 4216 of the IRC does not authorize this, even where the transaction is not at arm's length, unless the '. . . article is . . . sold . . . at less than the fair market price.' The court below found as a fact that '. . . the price charged by Creme Manufacturing was a fair market price charged in a similar fashion as that charged by others in the ordinary course of trade.'1 25 Record evidence, some of which is mentioned in the majority opinion, supports this finding. The majority disregards it on the basis of Bourjois, Inc. v. McGowan, 85 F.2d 510 (2d Cir. 1936), and other cases cited. 26 An examination of each of these cases shows that the item which gave the article or preparation there involved-- otherwise a mere assembly of commonlyavailable materials into a generic product-- its distinctive value, the trade name, was controlled by the manufacturing corporation. Thus, in those cases the real economic power in the picture, the power to discharge the sales organization and have the trademarked product sold by another, remained with the parent manufacturing corporation, and the sales corporation bought the finished product, including the affixed name, from the manufacturer. The item was thus unique and could be bought for resale from no one else. The courts in those cases were correct in refusing to consider its 'fair market price' as determinable by reference to other articles or preparations which were not and could not be purchased elsewhere with the valuable trade name affixed. 27 Our case is the reverse. Here the sales corporation retained control of the trade name Creme Lure. The evidence pointed not towards the importance of the manufacturer's technique but towards the distinctive, inherent value of the name Creme Lure. Creme Lure did not limit its sales to plastic worms. During the period in question, Creme Lure bought other types of fishing tackle from unaffiliated manufacturers, pre-packaged and with the Creme Lure label affixed. 28 The advertising, which misleadingly stated that Creme Lures were manufactured by Creme Lure Company, did not conclusively show that because Creme Manufacturing Company produced the product it was inherently more valuable. Indeed, the misleading portion of the statement substantiates the conclusion that the value was in the name. 29 The power to authorize affixing of the trade name was in Creme Lure, and with it the power to fire Creme Manufacturing and have the article made, with the name affixed, by another. When Creme Lure bought each finished article from Creme Manufacturing, it did not buy the affixed trade name on it; it already owned that and could have bought similar articles, with the name affixed on them by its prior authorization, from at least four other manufacturers noted in the record. 30 Thus, I conclude that the district court properly measured the fair market value of the manufactured product by the price for which an independent private brand manufacturer would be willing to make the product for the sales corporation, rather than by an objective manifestation of the price others would pay for the worms. 31 Bourjois and its siblings seem to me to stand for some such principle as that the fair market price of Beluga caviar may not properly be determined by reference to the going price for caviar in general; my understanding of the Court's holding is that the fair market price of caviar in general may not be determined in that way either. 1 'There is hereby imposed upon the sale of fishing rods, creels, reels, and artificial lures, baits, and flies (including parts or accessories of such articles sold on or in connection there with, or with the sale thereof) by the manufacturer, producer, or importer a tax equivalent to 10 percent of the price for which so sold.' 26 U.S.C. 4161 2 If all the discounts were given, a lure with a suggested retail sales price of $1 would sell to wholesale distributors for 39.69 cents 3 Creme Manufacturing sold the other three percent of its products to Creme Lure of Canada at the same prices charged to Creme Lure. At all times during the period in question Nicholas Creme owned 50 percent of Creme Lure of Canada 4 The House Report for the predecessor of Section 4216(b) stated: 'Provision is made for transactions in which, by reason of the relationship of the parties, the price charged does not represent a fair value arrived at by an arm's-length sale. For example, a manufacturer may transfer his product to a selling agency controlled by him, at a bookkeeping price below market value. Or a manufacturing corporation may sell plant equipment to an affiliated concern at an arbitrary price. It is essential that in such cases the tax be imposed on the same value as in the case of similar sales between independent parties.' H.R.Rep.No.708, 72 Cong., 1 Sess. 38 (1932). 5 There was conflicting testimony at trial concerning the reasons for the creation of Creme Manufacturing, whether it was created primarily for tax avoidance or to provide the Creme children with a business of their own 6 See note 3 supra 1 Creme Manufacturing Co. v. United States, 348 F. Supp. 270 (E.D.Tex.1972)

929 F.2d 372 CHICAGO INSURANCE COMPANY, Appellee,v.FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC.;Locust Farms, Inc.; and Erma Luttrell, PersonalRepresentative of the Estate of ColdmanLuttrell, Appellants. No. 90-2059EA. United States Court of Appeals,Eighth Circuit. Submitted Jan. 11, 1991.Decided March 27, 1991. David Hodges, Little Rock, Ark., for appellants. Paul McNeill, Jonesboro, Ark., for appellee. Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges. ARNOLD, Circuit Judge. 1 Farm Bureau Mutual Insurance Company1 appeals an order of the District Court2 granting summary judgment in favor of Chicago Insurance Company in this action to determine liability under an insurance policy. Farm Bureau sought contribution from the Chicago Insurance Company toward a settlement arising out of a fatal trucking accident. We affirm. 2 We recite the facts in the light most favorable to Farm Bureau. Junior Anderson Trucking, Inc., is a Texas corporation which transports agricultural products in Texas. One of its regular customers is the Farmer's Cooperative of El Campo, Texas. In July 1984, Farmer's Cooperative hired Junior Anderson to haul grain to various points in Texas. Realizing that its eight trucks could not handle all of Farmer's Cooperative's hauling, Junior Anderson contacted other trucking firms, including Locust Farms, an Arkansas corporation, to meet Farmer's Cooperative's needs. In response, Locust Farms sent three employees and trucks to work on the Farmer's Cooperative job. 3 Coldman Luttrell drove one of these Locust Farms trucks. On July 18, 1984, while on his second trip to Houston for Farmer's Cooperative, Luttrell's truck collided with another truck, driven by Lee A. Barfield. Both drivers died in the crash. Barfield's estate sued Luttrell's estate, Locust Farms, and Junior Anderson in a Texas state court for wrongful death. Locust Farms carried a $500,000 primary insurance policy from Miller's National Insurance Company, and an excess policy for $500,000 from Farm Bureau. Prior to trial, Barfield's estate settled with Locust Farms' insurers for one million dollars, and dismissed its action against Junior Anderson. 4 Although Barfield's estate dismissed its action against Junior Anderson, Farm Bureau demanded contribution in the amount of $500,000 from Junior Anderson's insurer, Chicago Insurance. Farm Bureau contended that Chicago Insurance's policy covered the Locust Farms truck driven by Luttrell because the truck was a "hired automobile." The "hired automobile" provision in that policy states: 5 It is agreed that the insurance with respect to owned automobiles applies to the maintenance or use ... of hired automobiles, subject to the following provisions: 6 .... 7 (d) The insurance does not cover as an insured, the owner or any lessee ... of a hired automobile, or any agent or employee of such owner or lessee, if the bodily injury or property damage occurs: 8 (1) while the automobile is not being used exclusively in the business of the named insured.... 9 (e) ... "hired automobile" means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured.... 10 Appendix at 33 (emphasis added). 11 Chicago Insurance denied coverage under this provision, and sought a declaratory judgment regarding its liability. Farm Bureau counterclaimed, raising the same issues as Chicago Insurance. On September 5, 1989, Chicago Insurance moved for summary judgment on various grounds, including the ground that Luttrell's truck was not a "hired automobile" under the policy. Applying Texas law,3 the District Court granted Chicago Insurance's motion on this basis, and dismissed the action. Farm Bureau appeals. 12 Our review of the District Court's grant of summary judgment is guided by the same standard it used: we will affirm if the record does not reveal a genuine dispute over a material fact and if Chicago Insurance is entitled to prevail as a matter of law.4 Thus, the existence of any factual dispute does not preclude summary judgment. Moreover, summary judgment is proper if the record does not contain sufficient evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The record must, however, be read in the light most favorable to the party opposing the motion for summary judgment. 13 The District Court determined that Locust Farms was an independent contractor, and therefore Farm Bureau could not prove its case, even with all factual disputes resolved in its favor. Farm Bureau does not dispute the District Court's holding that the policy language "used exclusively in the business of" and "under contract in behalf of" precludes its recovery if Locust Farms acted as an independent contractor. Rather, it claims the District Court erred in concluding as a matter of law that Locust Farms operated in that capacity. 14 Farm Bureau argues that it presented sufficient evidence of a lease of the three Locust Farms trucks and drivers to show that they were "under contract in behalf of" Junior Anderson, rather than under contract in their own behalf, as independent contractors would be. We disagree. Even if we assume, as Farm Bureau urges, that oral leases of trucks are valid under Texas law, our review of the record convinces us that there is insufficient evidence of a lease. 15 We also cannot agree with appellant that the control Junior Anderson exercised over Locust Farms' trucks precludes a finding that it was an independent contractor. Indeed, the facts compel the opposite conclusion. Locust Farms chose how many, and which trucks and drivers to send to El Campo. Locust Farms maintained the trucks, including carrying insurance on them. Its insurer paid for the grain Farmer's Cooperative lost in the accident. A permit allowing Luttrell's truck to haul grain in Texas was issued to Locust Farms. While Junior Anderson advanced money for fuel to the Locust Farms drivers, Locust Farms paid the money back. Luttrell remained an employee of Locust Farms, with Locust Farms maintaining his workers' compensation insurance. Additionally, Locust Farms' drivers were free to choose their own routes for delivery and to leave the job at any time. 16 It is true that Junior Anderson did have some control over Locust Farms' drivers. Junior Anderson told the drivers what they were transporting and where to pick it up. Junior Anderson required the trucks to have permits necessary to haul in Texas. If any truckers were unsatisfactory, Junior Anderson could remove them. Any disputes between Farmer's Cooperative and Locust Farms' drivers were resolved by Junior Anderson. Upon completion of their trips, Locust Farms' drivers gave their weight tickets (made out to Locust Farms) and proof of delivery to Junior Anderson, which then submitted a bill to Farmer's Cooperative. After Farmer's Cooperative paid Junior Anderson for these deliveries, Junior Anderson retained a five per cent. fee before paying the Locust Farms drivers. 17 Despite Junior Anderson's limited supervisory powers over Locust Farms' drivers, they remained independent contractors. On facts quite similar to these, the Texas Supreme Court has held that the driver of the truck and its employer are independent contractors. Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d 503, 508 (Tex.1981). Appellant's attempt to distinguish Eagle Trucking on the ground that it did not involve an interpretation of a "hired automobile" provision is not persuasive. 18 Since we agree with the District Court that Locust Farms acted as an independent contractor and therefore could not be a "hired automobile" as a matter of law, we need not address the other claims raised by the appellant. 19 Accordingly, the judgment of the District Court is affirmed. 1 For simplicity, we refer to the appellants collectively as Farm Bureau 2 The Hon. Garnett Thomas Eisele, Chief United States District Judge for the Eastern District of Arkansas 3 After performing a choice-of-law analysis, the District Court applied Texas law. The parties do not quarrel with this decision 4 Contrary to appellant's assertion, summary judgment is not an "extreme remedy" available only when there is "no room for controversy." Appellant's mjacobson@example.net. Appellant quotes Financial Timing Publications v. Compugraphic Corp., 893 F.2d 936, 944 (8th Cir.1990), for this proposition. This standard for summary judgment is too strict. The Compugraphic court inadvertently relied on a case decided prior to the Supreme Court trilogy of decisions beginning with Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), which requires courts to treat motions for summary judgment more hospitably. See City of Mount Pleasant v. Associated Electric Cooperative, 838 F.2d 268, 273-74 (8th Cir.1988). We therefore decline to follow the Compugraphic case in this respect

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3615 ___________ Theo Smith, * * Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota. * Ghana Commercial Bank, Ltd.; * [UNPUBLISHED] The Republic of Ghana, * * Appellees. * ___________ Submitted: June 4, 2010 Filed: June 14, 2010 ___________ Before LOKEN, BYE, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Theo Smith appeals the district court’s order denying his motion for a default judgment, denying his motion to disqualify opposing counsel, and dismissing his civil action for lack of personal jurisdiction because he failed to properly serve either defendant, Ghana Commercial Bank, Ltd., and the Republic of Ghana. Upon de novo review, we agree with the district court that Smith failed to effect service of process, and that the court thus lacked personal jurisdiction over defendants. See Vandelune v. 4B Elevator Components Unlimited, 148 F.3d 943, 948 (8th Cir.) (standard of review), cert. denied, 525 U.S. 1018 (1998). Because Smith failed to serve defendants properly, we conclude the court did not abuse its discretion in denying his motion for default judgment. See Norsyn, Inc. v. Desai, 351 F.3d 825, 828 (8th Cir. 2003). Finally, the court did not abuse its discretion in denying his motion to disqualify opposing counsel because Smith failed to show a prior attorney- client relationship with any lawyer in that firm. See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1154 (8th Cir. 1999) (standard of review). However, the court erred in dismissing Smith’s claims with prejudice because a dismissal for lack of jurisdiction on account of improper service is not an adjudication on the merits and therefore should be without prejudice. See Ahmed v. United States, 147 F.3d 791, 797 (8th Cir. 1998); Johnson v. Boyd-Richardson Co., 650 F.2d 147, 148 (8th Cir. 1981). Because Smith has filed multiple meritless actions in the District of Minnesota raising similar claims, we remand to the district court to determine whether and, if so, the extent to which Smith should be precluded from filing additional claims in that court or in the United States. ______________________________ -2-

Matter of Town of Brunswick v County of Rensselaer (2017 NY Slip Op 05896) Matter of Town of Brunswick v County of Rensselaer 2017 NY Slip Op 05896 Decided on July 27, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: July 27, 2017 523752 [*1]In the Matter of TOWN OF BRUNSWICK, Appellant, vCOUNTY OF RENSSELAER et al., Respondents. Calendar Date: June 1, 2017 Before: McCarthy, J.P., Lynch, Devine, Clark and Aarons, JJ. Tuczinski, Cavalier & Gilchrist, PC, Albany (Andrew W. Gilchrist of counsel), for appellant. Stephen A. Pechenik, County Attorney, Troy, for County of Rensselaer, respondent. Whiteman, Osterman & Hanna, LLP, Albany (Philip H. Dixon of counsel), for Rensselaer County Sewer District No. 1 and others, respondents. Eric T. Schneiderman, Attorney General, Albany (Joshua M. Tallent of counsel), for New York State Department of Environmental Conservation, respondent. Aarons, J. MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Elliot III, J.), entered April 8, 2016 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint. Respondent Rensselaer County Sewer District No. 1 (hereinafter the County sewer district) acts as an administrative agency of respondent County of Rensselaer. The County created the County sewer district to provide sewage transportation, treatment and disposal services, as well as to, among other things, operate and maintain a sewage interceptor system and waste water treatment plant. Under a sewer rental agreement, the County sewer district leases respondent City of Troy's combined sewer system, which collects both sanitary sewage and storm water from within the City. The combined sewer system is utilized to convey sewage and storm water to the County sewer district's sewage interceptor system and treatment facilities. Certain areas of petitioner discharge their sewage into the County sewer district sewer interceptor system, which then conveys it to the County sewer district's wastewater treatment plant. Pursuant to a long term agreement, petitioner agreed to pay the City an annual rate to use its sewer system as operated by the County sewer district. During times of heavy precipitation, the amount of sewage and precipitation entering the City's combined sewer system exceeds its capacity and creates combined sewer overflows (hereinafter CSOs). The CSOs are then discharged into the Hudson River pursuant to a State Pollutant Discharge Elimination System (hereinafter the SPDES) permit. The City holds a SPDES permit issued by respondent Department of Environment Conservation (hereinafter DEC). The SPDES permit contains, among other things, a best management practice for CSOs (hereinafter BMP No. 9), which addresses sewer extensions. Petitioner commenced this combined CPLR article 78 proceeding/declaratory judgment action challenging, among other things, BMP No. 9 and clauses in the sewer rental agreement that require petitioner to pay for sewer extensions. Petitioner also sought relief in the form of a writ of mandamus to compel against the County sewer district and a writ of prohibition against the County sewer district, DEC and the City. Respondents separately moved to dismiss the petition/complaint. Supreme Court granted the motions. Petitioner now appeals [FN1]. We affirm. Turning first to petitioner's claim for a writ of prohibition against DEC, assuming, without deciding, that petitioner has legal capacity to sue DEC, we nonetheless conclude that Supreme Court properly granted DEC's motion to dismiss on the basis that petitioner lacked standing. To establish standing, petitioner is required to demonstrate that it suffered an "injury in fact, which harm falls within the zone of interests or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted" (Matter of Colella v Board of Assessors of County of Nassau, 95 NY2d 401, 409-410 [2000] [internal quotations marks and citation omitted]; see Lancaster Dev., Inc. v McDonald, 112 AD3d 1260, 1261 [2013], lv denied 22 NY3d 866 [2014]). In order to establish an injury in fact, petitioner must show that it "will actually be harmed by the challenged administrative action . . . [and that] the injury [is] more than conjectural" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). Petitioner's claimed injury in fact is that it has been hampered in its ability to determine when to form or extend its own sewer districts within its territory. Petitioner rests this claim on the notion that DEC, through BMP No. 9, delegated its authority to make the final determinations with regard to any sewer extensions to the City. The record, however, does not support such notion. DEC is authorized, pursuant to federal and state statutes (see 33 USC § 1342 [b]; ECL 17-0808 [3]; 17-0701 [5], [6]; see Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 25 NY3d 373, 383 [2015]), to issue an SPDES permit to the City — which assesses the effect that potential sewer extensions would have on its CSOs (see 6 NYCRR 750-2.10 [a]-[c]). DEC is also required to set forth the conditions that apply to the discharge as authorized by the SPDES permit (see ECL 70-0117 [5] [c]; [6] [c]). According to BMP No. 9, in the event that the City's sewer system needs to be extended, the City is required to "demonstrate the ability of the sewage system to convey the increased dryweather flows" and to assess the effect that the increased flow of sanitary sewage has on the strength of its CSOs. In view of this regulatory scheme, DEC required the City to conduct a study to determine whether its sewage system had the capacity to handle an increase in sewage and the effect the increase flow of sewage would have on CSOs. Although a December 2013 letter from [*2]DEC advised petitioner that, pursuant to BMP No. 9, DEC's final approval of sanitary sewer extensions in petitioner would be "contingent," in part, on the City's assessment of the effects of extending the sewer system, nothing in BMP No. 9 stated that the City's assessment would be binding upon DEC's ultimate determination or that DEC was relinquishing its decision-making authority [FN2]. Moreover, a July 2014 letter from the City to petitioner explained that the City's study was only part of DEC's approval process. Notably, the City stated in this letter that it was not making any approvals by virtue of preparing a study. Based on the foregoing, petitioner has not established that DEC improperly empowered the City with the authority to make the final determination with regard to any sewer extensions. Accordingly, we conclude that petitioner has not suffered an injury in fact that is sufficient to confer standing in order to pursue a writ of prohibition against DEC (see Lujan v Defenders of Wildlife, 504 U.S. 555, 564 [1992]; Matter of Town of Islip v Cuomo, 64 NY2d 50, 56-57 [1984]; Matter of Gym Door Repairs, Inc. v New York City Dept. of Educ., 112 AD3d 1198, 1199 [2013]).[FN3] As to petitioner's claim for a writ of prohibition against the City and the County sewer district, such remedy is "an extraordinary remedy that lies only where there is a clear legal right to such relief, and only when the body or officer involved acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of HCI Distrib., Inc. v New York State Police, Troop B Commander, 110 AD3d at 1298 [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of New York State Health Facilities Assn., Inc. v Sheehan, 100 AD3d 1086, 1087 [2012], lv denied 21 NY3d 853 [2013]). Once again, petitioner premises this claim upon the erroneous belief that DEC delegated final decision-making authority to the City and that the County sewer district was equally culpable in this regard due to its "passive acquiescence." As discussed, however, the record does not indicate that the City acted outside its authority inasmuch as the City must assess the effect that potential sewer extensions would have on its CSOs (see 6 NYCRR 750-2.10 [a]). As also discussed, the record does not support petitioner's claim that the City has final decision-making authority over sewer extension requests. Given the absence of evidence that either the City or the County sewer district acted in excess of its authority, a writ of prohibition against them is not warranted. As to the request for a writ of mandamus, petitioner argues that the County sewer district must be compelled to consider and submit to DEC applications by property owners within its boundaries to connect to a existing sewer system. The record, however, does not establish that applications by such property owners for sewer connections were ever submitted. Accordingly, given that there is no ministerial duty that needs to be performed by the County sewer district, Supreme Court properly held that a writ of mandamus was unavailable (see generally Matter of Maron v Silver, 14 NY3d 230, 249 [2010]). Finally, we conclude that Supreme Court properly dismissed petitioner's claims for declaratory relief inasmuch as such claims were not ripe for judicial review [FN4]. Petitioner's request for a declaratory judgment stems from expenses incurred or costs to be allocated stemming from sewer extension requests and improvements. Where, as here, there has been no denial of a sewer extension request and no definite and measurable costs imposed upon petitioner, it is unable to demonstrate any direct or immediate impact resulting from an administrative action or establish that it has incurred an actual, concrete injury so as to make its claims ripe for judicial review (see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 125 AD3d 1188, 1189-1190 [2015]; Matter of Town of Riverhead v Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d 679, 681-682 [2010]). Furthermore, petitioner has not provided any evidence that demonstrates that the County sewer district delegated its responsibilities or violated County Law article 5-a. Nor can petitioner challenge the propriety of applying the sewer rental agreement to a sewer extension, as any potential costs imposed upon petitioner have yet to be determined (see Matter of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d 188, 191 [2012]; Swergold v Cuomo, 70 AD3d 1290, 1293 [2010]). As such, petitioner's claims for declaratory relief are not ripe for judicial review. We have considered petitioner's remaining contentions and find them to be without merit. McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. ORDERED that the judgment is affirmed, without costs. Footnotes Footnote 1: Petitioner concedes in its brief that respondent Rensselaer County Water and Sewer Authority is not a necessary party to this matter and does not challenge its dismissal from the proceeding/action. Footnote 2: We also note that petitioner has not alleged a sufficient injury in fact concerning the effects that BMP No. 9 purportedly has had on its ability to create sewer districts or extend the sewer system (see Matter of East End Prop. Co. #1, LLC v Kessel, 46 AD3d 817, 819 [2007], lv denied 10 NY3d 926 [2008]). Footnote 3: For these reasons, even if petitioner had standing, petitioner still would not be entitled to a writ of prohibition against DEC (see generally Matter of HCI Distrib., Inc. v New York State Police, Troop B Commander, 110 AD3d 1297, 1298 [2013]). Footnote 4: While petitioner seeks declaratory relief as its third, fourth, fifth and sixth causes of action, the City and County sewer district argue that petitioner lacks standing with respect to only petitioner's sixth cause of action. We assume, but do not decide, that petitioner has standing to pursue this claim.

Exhibit 10.3 M/A-COM TECHNOLOGY SOLUTIONS HOLDINGS, INC. CHANGE IN CONTROL PLAN Effective as of October 3, 2014 Amended and Restated on April 22, 2015 The Plan is established by M/A-COM Technology Solutions Holdings, Inc., a Delaware corporation, to secure for the benefit of the Company the services of the participating Employees in the event of a potential or actual Change in Control without concern for whether such Employees might be hindered in discharging their duties by the personal uncertainties and risks associated with a Change in Control, by affording such Employees the opportunity to protect the share value they have helped create as of the date of any Change in Control and offering income protection to such Employees in the event their employment terminates involuntarily without Cause or for Good Reason in connection with a Change in Control. All capitalized terms in the Plan have the meaning set forth in Section 2 or as defined elsewhere in the Plan.   1. Purpose, Establishment and Applicability of Plan. 1.1 Establishment of Plan. As of the Effective Date, the Company hereby establishes its Change in Control Plan, as set forth in this document. 1.2 Applicability of Plan. Subject to the terms of the Plan, the benefits provided by the Plan shall be available to those Employees who, on or after the Effective Date, receive a Notice of Participation, pursuant to Section 3. 1.3 Contractual Right to Benefits. The Plan and the Notice of Participation establish and vest in each Participant a contractual right to the benefits to which he or she is entitled pursuant to the terms and conditions thereof, enforceable by the Participant against the Company.   2. Definitions and Construction. Whenever capitalized in the Plan, the following terms shall have the meanings set forth below. 2.1 Administrator. “Administrator” shall mean the Board, or its Compensation Committee or either of their designees, as shall be responsible for administering the Plan. 2.2 Base Salary. “Base Salary” shall mean an amount equal to the sum of the Participant’s gross monthly base salary, as in effect immediately preceding the Change in Control (and as may have been increased after the date of such Change in Control). 2.3 Board. “Board” shall mean the Board of Directors of the Company. 2.4 Cause. “Cause” shall mean (a) an act of fraud by the Participant in connection with the Participant’s responsibilities as an Employee; (b) the Participant’s conviction of, or plea of nolo contendere to, a felony, or commission of an act of moral turpitude; (c) the Participant’s gross misconduct; or (d) the Participant’s material failure to discharge his or her employment duties after having received a written demand for performance from the Company (or notice of misconduct,   1 -------------------------------------------------------------------------------- where applicable) specifying the breach of employment duties and the Participant’s failure to cure such breach (where such breach is curable) within 30 days of the date of such notice from the Company.   2.5 Change in Control. “Change in Control” shall mean the occurrence of any of the following events: (a) An acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); excluding, however, the following acquisitions of Outstanding Company Common Stock and Outstanding Company Voting Securities: (1) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from the Company, (2) any acquisition by the Company, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company, or (4) any acquisition by any Person pursuant to a transaction that complies with clauses (i), (ii) and (iii) of Section 2.5(c); or (b) A change in the composition of the Board such that the individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual was a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of or in connection with an actual or threatened election contest with respect to the removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be considered a member of the Incumbent Board; or (c) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (“Business Combination”); excluding, however, such a Business Combination pursuant to which: (i) all or substantially all of the individuals and entities who are the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination shall beneficially own, directly or indirectly, more than 50% of, respectively, the outstanding shares of common stock, and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be,   2 -------------------------------------------------------------------------------- (ii) no Person (other than any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company or such corporation resulting from such Business Combination) shall beneficially own, directly or indirectly, 50% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the outstanding voting securities of such corporation entitled to vote generally in the election of directors, except to the extent that such ownership existed with respect to the Company prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination shall have been members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination. 2.6 Code. “Code” shall mean the Internal Revenue Code of 1986, as amended. 2.7 Company. “Company” shall mean M/A-COM Technology Solutions Holdings, Inc., any successor entities as provided in Section 8 and any Section 409A Affiliates as defined in Section 10.2(b). 2.8 Disability. “Disability” shall mean a mental or physical impairment of the Participant that is expected to result in death or that has lasted or is expected to last for a continuous period of 12 months or more and that causes the Participant to be unable to perform his or her material duties for the Company and to be engaged in any substantial gainful activity, in each case as determined by the Administrator, whose determination shall be conclusive and binding. 2.9 Effective Date. “Effective Date” for purposes of the Plan shall mean the date stated on the first page of the Plan. 2.10 Employee. “Employee” shall mean an employee of the Company. 2.11 ERISA. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended. 2.12 Exchange Act. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. 2.13 Good Reason. “Good Reason” shall mean any of the following that occur without the Participant’s express written consent and that the Company fails to cure within the time frame specified in Section 12.3: (a) the material reduction of the Participant’s authority, duties or responsibilities, or assignment to the Participant of duties, in either case which results in a material diminution of the Participant’s authority, duties or responsibilities in effect immediately prior to such action; (b) a material reduction in the Participant’s Base Salary; (c) a material reduction in the Participant’s “target” bonus opportunity, “target” long-term incentive opportunity, or “target” equity incentive opportunity, as determined by taking into account each opportunity in effect immediately prior to a Change in Control (and as may have been increased after the date of a Change in Control); (d) any action or inaction by the Company that constitutes a material breach by the Company of the Plan; or (e) a change in the Participant’s geographic work location of over 50 miles from the Participant’s geographic work location immediately prior to such change, except for required travel in furtherance of the Company’s business to the extent consistent with the Participant’s duties.   3 -------------------------------------------------------------------------------- 2.14 Participant. “Participant” shall mean each Employee designated by the Administrator as a Participant and who signs and returns to the Company a Notice of Participation indicating that such Employee agrees to be a Participant. 2.15 Release. “Release” means a general waiver and release of claims substantially in the form provided to the Participant together with the Notice of Participation. 2.16 Notice of Participation. “Notice of Participation” shall mean an individualized written notice of participation in the Plan from an authorized officer of the Company. 2.17 Plan. “Plan” shall mean the M/A-COM Technology Solutions Holdings, Inc. Change in Control Plan, as set forth herein, together with all amendments hereto. 2.18 Severance Payments. “Severance Payments” shall mean the severance compensation and benefits as provided in Section 4.   3. Eligibility. 3.1 Release of Claims. As a condition of receiving any payments or benefits under the Plan, a Participant must sign (and not revoke, if applicable) a Release, which Release must become effective (i.e., the Participant must sign the Release and any revocation period specified therein must have expired without the Participant revoking the Release) no later than 60 days following the Participant’s termination of employment (or, if earlier, by the date specified in the Release). If the Release does not become effective by the deadline specified in the immediately preceding sentence, then none of such payments or benefits shall be provided to the Participant. 3.2 Participation in Plan. Each Employee who is designated by the Administrator as a Participant and who signs and returns to the Company a Notice of Participation within the time set forth in such Notice shall be a Participant in the Plan. A Participant shall cease to be a Participant in the Plan upon ceasing to be an Employee; provided, however, that once a Participant has become entitled to payments and benefits hereunder, he or she shall remain a Participant in the Plan until the full amount of the payments and benefits has been delivered to the Participant.   4. Severance Payments. 4.1 Cash Severance Payments. If, within one year following a Change in Control, a Participant’s employment is terminated by the Company involuntarily without Cause or by the Participant for Good Reason then, subject to Sections 3.1, 5 and 6, the Participant shall be entitled to receive the following cash payments: (a) the cash amount determined in accordance with the Participant’s Notice of Participation; and (b) an amount equal to that percentage specified in a Participant’s Notice of Participation of the Participant’s annual bonus potential at “target” rather than “maximum” level of achievement as in effect immediately prior to a Change in Control (and as may have been increased after the date of a Change in Control).   4 -------------------------------------------------------------------------------- 4.2 Treatment of Equity Awards. Notwithstanding any provision in the instrument evidencing an equity award: (a) If, within one year following a Change in Control, a Participant’s employment is terminated by the Company involuntarily without Cause or by the Participant for Good Reason then, subject to Sections 3.1, 5 and 6, all then outstanding equity-based awards that become exercisable, vested or payable based solely on continued service granted to the Participant under any applicable equity compensation plans of the Company as in effect on the date of the Change in Control, whether granted before or after the Effective Date, shall become fully vested and exercisable or payable as of the effective date of the Participant’s termination; provided, that if an award provides deferred compensation subject to Code Section 409A, such award will be paid at the same time and in the same form as it would have been paid had no Change in Control occurred. (b) All outstanding equity-based awards, but excluding the stock options granted by the Company on April 29, 2014 and April 22, 2015, that are eligible to become exercisable, vested or payable (or that provide for accelerated vesting or payment) upon the attainment of specified performance goals granted to the Participant under any applicable equity compensation plans of the Company as in effect on the date of the Change in Control, whether granted before or after the Effective Date, shall be deemed earned at 200% of “target” immediately prior to the Change in Control and shall be converted, without proration, into that number of restricted stock units equal to the number of shares that would have been payable had the performance goals been attained at 200% of the “target” performance level, such restricted stock units to become vested and payable upon completion of the applicable performance period and any further service-based vesting period relating to such award, subject to the Participant’s continued employment; provided, that, subject to Sections 3.1, 5 and 6, such restricted stock units shall immediately become fully vested and payable if, within one year following a Change in Control, a Participant’s employment is terminated by the Company involuntarily without Cause or by the Participant for Good Reason; provided further, that if an award provides deferred compensation subject to Code Section 409A, such award will be paid at the same time and in the same form as it would have been paid had no Change in Control occurred. (c) For the avoidance of doubt, any unvested equity-based awards shall cease vesting immediately on the date of Participant’s termination of employment, but shall not terminate until the date on which it is determined whether the Participant is eligible to receive accelerated vesting under this Section 4.2. 4.3 Method of Payment. Any cash Severance Payment to which a Participant becomes entitled pursuant to Section 4.1 shall be paid to the Participant in a lump sum within 10 days of the effective date of the Participant’s Release. If a Participant dies after becoming eligible for a cash Severance Payment and executing a Release but before payment of the cash Severance Payment, the cash Severance Payment will be paid to the Participant’s estate in a lump sum within 60 days of the Participant’s death, provided that the Release becomes effective prior to such date. If a Participant dies after becoming eligible for a cash Severance Payment but before executing a Release, the personal representative of the Participant’s estate shall be permitted to sign a Release on the Participant’s (and the Participant’s estate’s) behalf. All payments and benefits under the Plan will be net of amounts withheld with respect to taxes, offsets or other obligations.   5 -------------------------------------------------------------------------------- 4.4 Voluntary Resignation; Termination for Cause. If (a) the Participant’s employment terminates by reason of the Participant’s voluntary resignation after a Change in Control other than for Good Reason or (b) the Company terminates the Participant for Cause, then the Participant shall not be entitled to receive any payments or benefits under the Plan and shall be entitled only to those payments and benefits (if any) as may be available under the Company’s then existing benefit plans and policies at the time of such termination. 4.5 Disability; Death. If the Participant’s employment terminates by reason of the Participant’s death, or in the event the Company terminates the Participant’s employment following his or her Disability, the Participant shall not be entitled to receive any payments or benefits under the Plan and shall be entitled only to those payments and benefits (if any) as may be available under the Company’s then existing benefits plans and policies at the time of such termination.   5. Golden Parachute Excise Tax. 5.1 Gross-Up Payment. In the event that a Participant becomes entitled to receive any payment or benefit under the Plan, either alone or when aggregated with any other payments or benefits received (or to be received) by a Participant from the Company (each a “Payment” and, collectively, the “Total Payments”) and any of the Total Payments will be subject to any excise tax pursuant to Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), the Company shall make an additional lump-sum cash payment to the Participant (a “Gross-Up Payment”) in an amount such that after payment by the Participant of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Participant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. 5.2 Timing of Payment. A Gross-Up Payment, if any, shall be made by the Company to the Participant on or within 10 business days of the date that the related Excise Tax on the Total Payments is required to be remitted to the relevant taxing authorities. Notwithstanding anything to the contrary in this Section 5, in no event will a Gross-Up Payment be made on a day that is later than the last day of the Participant’s taxable year that immediately follows the Participant’s taxable year in which the related Excise Tax on the Total Payments is remitted to the relevant taxing authorities. 5.3 Determination. Unless the Company and the Participant otherwise agree in writing, any determination required under this Section 5 or the Participant’s Notice of Participation shall be made in writing by an independent accounting firm appointed by the Company (the “Accountants”), whose determination shall be conclusive and binding upon the Participant and the Company. For purposes of making the calculations required by Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and the Participant shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations pursuant to this Section 5.   6 -------------------------------------------------------------------------------- 6. Forfeiture of Severance Payments. The Severance Payments are conditioned on a Participant’s compliance with the Company’s code of conduct, code of ethics, and any restrictive covenants contained in the Participant’s Release (collectively, the “restrictive covenants”). Notwithstanding any other provision of the Plan to the contrary, if it is determined by the Company that the Participant has violated any of the restrictive covenants, the Participant shall be required to repay to the Company an amount equal to the economic value of all payments and benefits already paid or provided to the Participant under the Plan and the Participant (including the Participant’s estate and successors) shall forfeit all other entitlements under the Plan. Additional forfeiture provisions may apply under the Plan or other agreements between the Participant and the Company, and any such forfeiture provisions shall remain in full force and effect.   7. Employment Status; Withholding. 7.1 Employment Status. The Plan does not constitute a contract of employment or impose on the Participant or the Company any obligations to retain the Participant as an Employee, to change the status of the Participant’s employment, or to change the Company’s policies regarding termination of employment. The Participant’s employment is and shall continue to be at will, as defined under applicable law. 7.2 Tax Withholdings. All payments and benefits made or provided pursuant to the Plan shall be subject to applicable payroll and income tax withholding and other legally required deductions; provided that the amount so withheld shall not exceed the minimum amount required to be withheld by law.   8. Successors to Company and Participants. 8.1 Company’s Successors. Any successor to the Company (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) or acquiror of all or substantially all of the Company’s business and/or assets shall assume the obligations under the Plan and agree expressly to perform the obligations under the Plan. For all purposes under the Plan, the term “Company” shall include any successor to the Company or acquiror of the Company’s business and/or assets pursuant to the terms of an agreement between the Company and such successor or acquiror or by operation of law. 8.2 Participant’s Successors. All rights of the Participant hereunder shall inure to the benefit of, and be enforceable by, the Participant’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.   9. Duration, Amendment and Termination. 9.1 Duration. The Plan shall terminate 3 years from the Effective Date, unless (a) the Plan is extended by the Administrator, (b) a Change in Control occurs while the Plan is in effect, or (c) the Administrator terminates the Plan in accordance with Section 9.2 below. If a Change in Control occurs prior to termination of the Plan pursuant to the preceding sentence, then the Plan shall terminate upon the date that all obligations of the Company hereunder have been satisfied.   7 -------------------------------------------------------------------------------- 9.2 Amendment and Termination. The Administrator shall have the discretionary authority to amend the Plan in any respect, including as to the removal or addition of Participants, or to terminate or suspend the Plan, by resolution adopted by a majority of the Administrator; provided, however, that with respect to any Participant that has been designated by the Administrator as a Participant and has signed and returned to the Company a Notice of Participation indicating that such Employee has agreed to be a Participant, no such amendment, termination or suspension of the Plan shall be effective as to such Participant unless (a) the Participant would not be adversely affected in any way by such amendment, termination or suspension or (b) the Participant consents in writing to such amendment, termination or suspension.   10. Administration. 10.1 Power and Authority. The Administrator has all power and authority necessary or convenient to administer the Plan, including, but not limited to, the exclusive authority and discretion: (a) to construe and interpret the Plan; (b) to decide all questions of eligibility for and the amount of benefits under the Plan; (c) to prescribe procedures to be followed and the forms to be used by the Participants pursuant to the Plan; and (d) to request and receive from all Participants such information as the Administrator determines is necessary for the proper administration of the Plan. 10.2 Code Section 409A. The provisions for Code Section 409A shall be applied as follows: (a) The Company makes no representations or warranties to any Employee with respect to any tax, economic or legal consequences of the Plan or any payments to any Participant hereunder, including, without limitation, under Code Section 409A, and no provision of the Plan shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A or any other applicable legal requirements from the Participant or other individual to the Company or any of its affiliates. Each Participant, by executing a Notice of Participation, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences. However, the payments and benefits provided under the Plan are not intended to constitute deferred compensation that is subject to the requirements of Code Section 409A. Rather, the Company intends that the Plan and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A, whether pursuant to the short-term deferral exception described in Treas. Reg. § 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treas. Reg. § 1.409A-1(b)(9)(iii) or otherwise. Notwithstanding any provision of the Plan to the contrary, the Plan shall be interpreted, operated and administered in a manner consistent with such intention; (b) Without limiting the generality of the foregoing, and notwithstanding any other provision of the Plan to the contrary, all references herein to a Participant’s termination of employment are intended to mean the Participant’s “separation from service” from the Company and its Section 409A Affiliates within the meaning of Code Section 409A. “Section 409A Affiliates” means each entity that is required to be included in the Company’s controlled group of corporations within the meaning of Code Section 414(b) or (c); provided, however, that the phrase “at least 50 percent” shall be used in place of the phrase “at least 80 percent” each place it appears therein or in the regulations thereunder;   8 -------------------------------------------------------------------------------- (c) If the Company determines that any of the payments or benefits under the Plan constitute “deferred compensation” under Code Section 409A and the Participant is, on the date of his or her termination of employment, a “specified employee” of the Company, as such term is defined in Code Section 409A(a)(2)(B)(i), then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Code Section 409A, the timing of the payment of such pay or benefits shall be delayed until the earlier to occur of the date that is six months and one day after the Participant’s termination of employment or the date of the Participant’s death after the Participant’s termination of employment; (d) To the extent that any reimbursement under Section 4 is deemed to constitute taxable compensation to a Participant, such reimbursement will be made no later than December 31 of the year following the year in which the expense was incurred. The amount of any such reimbursement provided in one year shall not affect the expenses eligible for reimbursement in any subsequent year, and the Participant’s right to such reimbursement will not be subject to liquidation or exchange for any other benefit; and (e) If any payments or benefits under the Plan would violate the terms of Section 16(b) of the Exchange Act or other federal securities laws, or any other applicable law, then the payment or the provision of such payments or benefits shall be delayed until the earliest date on which making such payment or providing such benefit would not violate such law.   11. Claims Process. 11.1 Claim for Benefits. A Participant (or any individual authorized by such Participant) has the right under ERISA and the Plan to file a written claim for benefits. To file a claim, the Participant must send the written claim to the Company’s Vice President of Human Resources. If such claim is denied in whole or in part, the Participant shall receive written notice of the decision of the Company’s Vice President of Human Resources within 90 days after the claim is received. Such written notice shall include the following information: (a) specific reasons for the denial; (b) specific reference to pertinent Plan provisions on which the denial is based; (c) a description of any additional material or information necessary for the perfection of the claim and an explanation of why it is needed; and (d) steps to be taken if the Participant wishes to appeal the denial of the claim, including a statement of the Participant’s right to bring a civil action under Section 502(a) of ERISA upon an adverse decision on appeal. If the Company’s Vice President of Human Resources needs more than 90 days to make a decision, he or she shall notify the Participant in writing within the initial 90 days and explain why more time is required, and how long is needed. If a Participant (or any individual authorized by such Participant) submits a claim according to the procedures above and does not hear from the Company’s Vice President of Human Resources within the appropriate time, the Participant may consider the claim denied. 11.2 Appeals. The following appeal procedures give the rules for appealing a denied claim. If a claim for benefits is denied, in whole or in part, or if the Participant believes benefits under the Plan have not been properly provided, the Participant (or any individual authorized by such Participant) may appeal this denial in writing within 60 days after the denial is received by filing a written request for review with the Administrator. The Administrator shall conduct a   9 -------------------------------------------------------------------------------- review and make a final decision within 60 days after receiving the Participant’s written request for review. If the Administrator needs more than 60 days to make a decision, it shall notify the Participant in writing within the initial 60 days and explain why more time is required and the date by which the Administrator expects to render its decision. The Administrator may then take 60 more days to make a decision. If such appeal is denied in whole or in part, the decision shall be in writing and shall include the following information: (a) specific reasons for the denial; (b) specific reference to pertinent Plan provisions on which the denial is based; (c) a statement of the Participant’s right to access and receive copies, upon request and free of charge, of all documents and other information relevant to such claim for benefits; and (d) a statement of the Participant’s (or representative’s) right to bring a civil action under Section 502(a) of ERISA. If the Administrator does not respond within the applicable time frame, the Participant may consider the appeal denied. If a Participant’s claim is denied, in whole or in part, the Participant (or any individual authorized by such Participant) will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant (within the meaning of 29 C.F.R. § 2560.503-1(m)(8)) to his or her claim. Likewise, a Participant (or any individual authorized by such Participant) who submits a written request to appeal a denied claim shall have the right to submit any comments, documents, records or other information relating to the claim that he or she wishes to provide. 11.3 Limitations Period. A Participant must pursue the claim and appeal rights described above within 365 days following the date of which the Participant knew of should have known that the benefits in dispute would not be paid under the Plan. The Participant must exhaust the claim and appeals rights described above before seeking any other legal recourse regarding a claim for benefits. The Participant may thereafter file an action in a court of competent jurisdiction, but he or she must do so within 365 days after the date of the notice of decision on appeal or such action will be forever barred. Any judicial review of the Administrator’s decision on a claim will be limited to whether, in the particular instance, the Administrator abused its discretion. In no event will such judicial review be on a de novo basis, because the Administrator has discretionary authority to determine eligibility for (and the amount of) payments and benefits under the Plan and to construe and interpret the terms and provisions of the Plan.   12. Notices and Assignment. 12.1 General. Notices and all other communications contemplated by the Plan shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of the Participant, mailed notices shall be addressed to him or her at the home address that he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Vice President of Human Resources. 12.2 Notice of Termination by the Company. Any termination of employment by the Company in connection with a Change in Control pursuant to the terms herein shall be communicated by a notice of termination of employment to the Participant at least five days prior to the date of such termination (or at least 30 days prior to the date of a termination by reason of the Participant’s Disability). Such notice shall indicate the specific termination provision or provisions in the Plan relied upon (if any), shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision or provisions so indicated, and shall specify the termination date.   10 -------------------------------------------------------------------------------- 12.3 Notice of Good Reason Termination by the Participant. For purposes of the Plan, a Participant’s termination of employment shall be for Good Reason only if (a) the Participant delivers written notice to the Company of the existence of the condition which the Participant believes constitutes Good Reason within 90 days of the initial existence of such condition (which notice specifically identifies such condition), (b) the Company fails to remedy such condition within 30 days after the date on which it receives such notice (the “Good Reason Cure Period”), and (c) the Participant actually terminates employment with the Company within 90 days after the expiration of the Good Reason Cure Period. If the Company fails to remedy the condition constituting Good Reason during the Good Reason Cure Period and the Participant decides to terminate his or her employment for Good Reason, then the Participant shall provide the Company with written notice of such intent to terminate. Subject to the first sentence of this Section 12.3, any such termination shall be effective on the date such notice of termination is given to the Company or on such later date specified therein. 12.4 Assignment by Company. The Company may assign its rights under the Plan to an affiliate, and an affiliate may assign its rights under the Plan to another affiliate of the Company or to the Company. In the case of any such assignment, the term “Company” when used in the Plan shall mean the entity that actually employs the Participant.   13. Miscellaneous. 13.1 Governing Law, Jurisdiction and Venue. The Plan is intended to be, and shall be interpreted as, an unfunded employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) for a select group of management or highly compensated employees (within the meaning of 29 C.F.R. §2520.104-24) and it shall be enforced in accordance with ERISA. Any Participant or other Person filing an action related to the Plan shall be subject to the jurisdiction and venue of the federal courts of the State of Delaware. 13.2 Employment Status. Except as may be provided under any other agreement between a Participant and the Company, the employment of the Participant by the Company is “at will” and may be terminated by either the Participant or the Company at any time, subject to applicable law. 13.3 Indebtedness of Participant. If a Participant is indebted to the Company, the Company reserves the right to offset any Severance Payments by the amount of such indebtedness, to the full extent permitted by applicable law; provided that such offset is structured in a manner intended to comply with Code Section 409A. 13.4 Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of the Plan are not part of the provisions hereof and shall have no force and effect. 13.5 Effect of Plan. The Plan, as amended, shall completely replace and supersede any prior version of the Plan and any other verbal or written promise, agreement, document or communication concerning the payments or benefits under the Plan. Without limiting the generality of the foregoing, effective immediately upon delivery by the Participant of a signed Notice of   11 -------------------------------------------------------------------------------- Participation, the Participant (a) thereby waives, without need of any further agreement or action, any potential rights the Participant may have to severance pay, equity acceleration or other benefits specifically arising from or in respect of a Change in Control occurring during the term of the Plan (including any such potential rights arising from any verbal or written promise, offer letter, employment agreement, other agreement, document, or communication between the Participant and the Company or pre-existing practice of the Company with respect to such benefits, but expressly excluding any rights to benefits arising from the Plan), and (b) thereby agrees that, if the Participant has an existing agreement with the Company relating to potential rights to severance pay, equity acceleration or other benefits specifically arising from or in respect of a Change in Control, those rights shall be deemed completely replaced and superseded by the Participant’s rights under the Plan with respect to any Change in Control occurring during the term of the Plan; provided that, except as specifically modified (mutatis mutandis) by the foregoing subsection (b), such agreement shall remain enforceable and in full force and effect. In addition, none of the payments or benefits under the Plan shall be counted as “compensation” or any equivalent term for purposes of determining benefits under other plans, programs or practices owing to the Participant from the Company, except to the extent expressly provided therein. Except as otherwise specifically provided for in the Plan, the Participant’s rights under all such agreements, plans, provisions and practices continue to be subject to the respective terms and conditions thereof.   12 -------------------------------------------------------------------------------- M/A-COM TECHNOLOGY SOLUTIONS HOLDINGS, INC. CHANGE IN CONTROL PLAN NOTICE OF PARTICIPATION To: Date:                                 , 20     The Administrator has designated you as a Participant in the Plan, a copy of which is attached hereto. The terms and conditions of your participation in the Plan are as set forth in the Plan and herein. The terms defined in the Plan shall have the same defined meanings in this Notice of Participation. As a condition of receiving any payments or benefits under the Plan, you must sign (and not revoke, if applicable) a Release substantially in the form provided to you together with this Notice of Participation, which Release must become effective (i.e., you must sign the Release and any revocation period specified therein must have expired without you revoking the Release) no later than 60 days following your termination of employment (or, if earlier, by the date specified in the Release). As provided in Section 4.1 of the Plan, the following terms apply to your participation in the Plan: (a) Cash Amount: (A) [12 times][6 times] your monthly Base Salary, plus (B) $[25,000][12,500]. (b) Percentage of Annual Bonus Potential at Target: [100%][50%] If you agree to participate in the Plan on these terms and conditions, please acknowledge your acceptance by signing below. Also by signing below, you acknowledge and agree that the payments and benefits under the Plan are subject to forfeiture or repayment in certain cases if you have violated the Company’s code of conduct or code of ethics or any restrictive covenants contained in your Release. Please return the signed copy of this Notice of Participation within 10 days of the date set forth above to:   M/A-COM Technology Solutions Holdings, Inc. Attn: Vice President of Human Resources 100 Chelmsford Street Lowell, MA 01851 Your failure to timely remit this signed Notice of Participation will result in your immediate removal from the Plan. Please retain a copy of this Notice of Participation, along with the Plan, for your records.   Date:   Signature:  

80 B.R. 618 (1987) In re John C. TURNER, Alleged Debtor. Bankruptcy No. 82-00930L. United States Bankruptcy Court, D. Massachusetts. December 9, 1987. Judy Mencher, Goodwin, Procter & Hoar, Boston, Mass., for John C. Turner, alleged debtor. George W. Mykulak, Goldstein & Manello, Boston, Mass., for petitioning creditors. Kitt Sawitsky, Goulston & Storrs, Boston, Mass., for Federal Distillers petitioning creditor. Charles L. Glerum, Choate, Hall & Stewart, Boston, Mass., for petitioning creditors Whitehall Company, Ltd., Crown Distributors, Inc. Jennifer R. Seton, Nutter, McClennen & Fish, Boston, Mass., for petitioning creditor August A. Busch & Co. of Mass. OPINION JAMES F. QUEENAN, Jr., Bankruptcy Judge. This case presents the question, in an unusual factual and legal setting, of whether an alleged debtor in a dismissed involuntary Chapter 7 petition is entitled to recover damages against the petitioning creditors on the ground that they filed the petition in bad faith. A primary issue involved is the extent to which protection is afforded by the opinion of counsel to the petitioning creditors that the petition had merit. Seven wholesale distributors of alcoholic beverages (the "petitioners")[1] filed a petition *619 against John C. Turner ("Turner") requesting that an order for relief be entered under Chapter 7 (11 U.S.C. §§ 701 et seq.), which requires liquidation of a debtor's non-exempt property for the purpose of paying his creditors. The petition alleged, inter alia, that the petitioners held claims totaling almost $900,000 which were not contingent as to liability, that the claims were based upon sums due from the sales of beverages to various specified corporations owned and controlled by Turner, that Turner "has, in his dealings with petitioners, consistently ignored the corporate distinction of such entities," and that Turner was not paying his debts as they became due. Turner denied the allegations and counterclaimed for damages under 11 U.S.C. § 303(i),[2] alleging that the petition was filed in bad faith.[3] The number of court proceedings which have already been generated by the controversy over the very filing of this case hardly present a paradigm of speedy justice. The case was filed on May 24, 1982. Its filing has been the subject of five separate proceedings before other judges of this court, plus one decision by the district court on appeal. It has been previously decided by this court that: (1) Turner is entitled to summary judgment on the question of whether the petitioners hold claims that are contingent as to liability, except for their claims on some bad corporate checks; (2) As to those checks, certain of the petitioners held claims that were not contingent as to liability, so that they had standing to bring the petition; (3) The petition should be dismissed because it is governed by the 1984 amendment to § 303 which expressly precluded debts subject to a bona fide dispute from being considered on the question of whether a debtor is generally not paying his debts as they become due (affirmed on appeal); (4) Turner is not entitled to costs or a reasonable attorney's fee under § 303(i)(1), which does not require a showing of bad faith. (5) A mistrial should be declared in a prior trial of the counterclaim now before the Court, when another judge recused himself in the midst of the trial upon discovering that a partner in the law firm with whom his law clerk had accepted employment was a major witness in the case. After Turner had completed his evidence in the present proceeding, the petitioners moved under Bankr.R. 7041(b), asking for dismissal of the counterclaim on the ground that, on the facts and the law, Turner has shown no right to relief, and requesting the Court as the trier of fact to find that the petition was not filed in bad faith. That motion has been granted by separate judgment. We set forth here our findings of fact and rulings of law in support of the judgment, pursuant to Bankr.R. 7041(b) and 7052. *620 I. PRINCIPAL FINDINGS OF FACT We first outline Turner's business operations, confining ourselves to those circumstances that were known to the petitioners and their counsel at the time of the filing. Turner was an officer, director and sole stockholder of record in three corporations, each of which operated a so-called "package" store selling at retail liquor, beer and wine: Turner's Package Store, Inc.; Thrifty Liquors, Inc.; and Medford Thrifty Liquors, Inc. He exercised general supervisory control over all three corporations. He also exercised general supervisory control over, but held no office or stock of record in, four other corporations, each of which owned a package store: Boston Thrifty Liquors, Inc.; John F. McCarthy, Inc.; Allied Beverage Corp.; and Diversified Liquors, Inc. He supervised the management of all seven of these corporations (the "Corporations") from one central location, which at the time of the petition filing was at 19 McGrath Highway, Somerville, Massachusetts. Purchasing for the Corporations was combined in order to obtain volume discounts from the petitioners and other wholesalers. Turner supervised these purchases and their payment. He was the principal person with whom the petitioners dealt in their transactions with all seven Corporations. During the months preceding the filing, some of the Corporations were posted on the so-called sixty day list by the Alcoholic Beverage Control Commission of Massachusetts, (the ABCC), pursuant to Mass. Gen.L. ch. 138, § 25. The stores were put on the list because they were more than sixty days delinquent in paying their bills to wholesalers. During the time a store is posted on this ABCC list, it must pay for deliveries C.O.D. Others of the Corporations not on the list would then purchase liquor, beer and wine for the listed stores; upon receiving delivery, they would ship the purchases to those on the list. Under Mass.Gen.L. ch. 138, § 15, no person may own, directly or indirectly, licenses for the sale of all alcoholic beverages at more than three locations. Because of Turner's dealings with the petitioners on behalf of all of the Corporations, and in light of this statute, the petitioners had reasonable grounds to believe that Turner was the beneficial owner of all of the Corporations. We expressly make no objective finding on this point, however, except as to the three Corporations in which he held a record ownership interest. At the trial, Turner testified that various individuals, including his brother, owned the other four Corporations. He also introduced at the trial a document indicating, and we so find, that the ABCC had approved a cooperative buying program among the seven Corporations. The petitioners, however, knew nothing about this program. The package store business was highly competitive in the Boston area. The Corporations began experiencing severe financial difficulties in late 1981. Turner, as a representative of all seven Corporations, met with several of the petitioners to discuss the growing debt problem. He assured them that he was determined to see the problem through and that their debt would be paid. He said to them in words or substance: "I will see that your debt is paid in full." At no time, then or later, did he say anything to them that could reasonably be interpreted as a personal guaranty of the debt. A few of the petitioners requested that he personally guaranty their debt in writing, and he refused. The Corporations' difficulties increased. In February of 1982, United Liquors, Inc. ("United"), a large supplier not involved in this petition, brought suit against Turner in state court alleging that he was personally liable for the Corporations' purchases from United. Without prior notice to Turner, United obtained ex parte court orders approving attachments of $225,000 upon Turner's homes in Sudbury and Duxbury; these orders were dated, respectively, February 24, 1982 and May 17, 1982. Although Turner soon received notice of these orders, he at no time sought to have them vacated. In early May of 1982, Turner and other record owners of the Corporations met with William F. Macauley, Esq. ("Macauley") to seek legal advice concerning the *621 possibility of working out an arrangement with the Corporations' creditors. On May 13th, Macauley and Turner met with the petitioners and other trade creditors of the Corporations, including United. Counsel for several of the petitioners also attended. Macauley furnished the creditors with separate inventory, tax and trade debt figures for each of the Corporations. The total inventory value furnished was approximately $330,000 and the total debt figure was about $1,300,000. Tax debt, all for withholding taxes, totaled about $100,000. A bank debt figure for three of the Corporations totaling $45,000 was also furnished. Macauley told the creditors that Turner had personally guaranteed the bank debt as well as rent under a lease for one of the stores. Macauley stated that he and Turner preferred to make an arrangement with creditors outside of the bankruptcy court through a trust mortgage. He informed them that a possible payment plan would involve selling the assets of three or four of the Corporations in order to fund a payment to the creditors of all seven, with the remaining Corporations continuing to operate. After the close of this meeting, in discussion among themselves, the petitioners expressed concern about the low inventory levels. The construction by Turner of a home in Duxbury was also discussed, as well as the fact that he drove a Jaguar. Several of the petitioners voiced the belief that Turner was taking more than normal salary out of the Corporations in order to fund a personal standard of living which was extravagant in light of the financial condition of the Corporations. Barry M. Portnoy, Esq. ("Portnoy"), who represented two of the petitioners, informed the group that his law firm, Sullivan & Worcester, had conducted a search of court records and had discovered the existence of the attachment order which United had obtained on the previous February 24th. Turner and Macauley met again on May 20th with the petitioners and other creditors. Macauley told them that he no longer regarded a trust mortgage as a feasible alternative, and that he planned to file Chapter 11 petitions for all of the Corporations by the following Monday, May 24th. At the close of that meeting the creditors met among themselves. They elected a chairman and a secretary, and they decided to hire Robert Somma, Esq. ("Somma") of the Boston law firm of Goldstein & Manello as their counsel in connection with claims against Turner personally as well as to represent the creditors' committee in any Chapter 11 case of the Corporations. Portnoy and several other counsel to individual petitioners met with Somma later that day. They apprised Somma of the general situation, including the fact that a number of checks of the various Corporations given to some of the petitioners as payments had been returned for insufficient funds. They discussed filing an involuntary Chapter 7 petition against Turner based on the ground that Turner was personally liable for the debts of the Corporations under any one or more of four theories: (1) piercing of the corporate veil; (2) oral guarantees of corporate debt; (3) negligence or misrepresentation in the issuance of checks later returned for insufficient funds; and (4) contractual liability on these checks under the Uniform Commercial Code. At the conclusion of that meeting, Somma, by his own testimony, "began to form the view" that Turner could be held liable under one or more of these theories. None of the lawyers had researched any of the theories up to that point. They, and particularly Portnoy and Somma, were relying primarily on their general experience, which included some substantial experience in commercial law and bankruptcy. Upon returning to his office, Somma immediately instructed an associate to prepare an involuntary Chapter 7 petition against Turner and a motion for the appointment of a trustee so that the papers would be ready for signature at the meeting of creditors scheduled for Monday, May 24th. Neither he nor his associate did any research on the various theories supporting Turner's personal liability until that next Monday. The petitioners and some of their respective counsel met with Somma at Somma's *622 office for almost three hours on May 24th. They were then aware that all seven of the Corporations had filed petitions under Chapter 11 the previous Friday. Portnoy informed them of his recent discovery of the May 17th court order authorizing an attachment of Turner's Duxbury home. Counsel reiterated to them what they had been previously told concerning the timing problem presented by the United attachment of February 24th, that is, that within a matter of hours this attachment would be 90 days old and therefore beyond attack as a preference. Somma consequently advised them that if a petition was to be filed against Turner it should be filed that day rather than later. That morning Somma had done some legal research on the various theories of Turner's personal liability and the question of whether claims against Turner under these theories were contingent as to liability so as to give them standing to file a petition under § 303. He reviewed with other counsel the case law on these issues, including My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 233 N.E.2d 748 (1968), which dealt with piercing the corporate veil, and In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), on the issue of whether their claims were noncontingent as to liability so as to give them standing to file. He asked questions of each of the petitioners' representatives concerning their knowledge of the Corporations' operations and Turner's involvement therein. He explained to them the danger of a damage award against them if the Court dismissed the involuntary filing. He and other counsel advised the petitioners that a Chapter 7 filing against Turner would have three possible advantages: application of Turner's own assets in payment of their claims, avoidance of the United attachments as preferences, and leverage in keeping pressure upon Turner in the Corporations' Chapter 11 cases. They advised petitioners to file. The petitioners and Somma then signed the petition, and it was filed that day. The filing has been, and continues to be, a substantial cause (along with Turner's general business problems) of discord between Turner and his wife, resulting in a few separations. The foregoing represents the Court's principal findings of subsidiary facts. General findings and additional subsidiary findings appear later. We now turn to the question of whether the petition was filed in bad faith. II. THE ISSUE OF BAD FAITH FILING A. The Bad Faith Standard in General Turner charges that petitioners are guilty of bad faith by reason of their motives in filing. He contends that petitioners were motivitated by a desire to harass him in proceedings under the pending Chapter 11 cases of the Corporations, and that the filing was the product of unwarranted suspicions that he was milking the Corporations. He asserts that either of these motivations constitutes bad faith under § 303(i)(2). He also contends that the filing lacked reasonable legal justification, and that this of itself constitutes bad faith. He argues, in summary, that the petitioners are guilty of subjective bad faith in their motivations for the filing and objective bad faith in filing the petition without reasonable legal justification for obtaining an order for relief under Chapter 7. The drafters of the Bankruptcy Code gave the courts an empty chalice in the bad faith standard of § 303(i)(2), to be filled by developing case law based upon a myriad of circumstances which would be unforeseeable to the most imaginative of draftsmen. Unlike the Uniform Commercial Code,[4] the Bankruptcy Code presents us with neither a definitional section nor legislative history concerning the intended concept of bad faith. There is the suggestion in some of the decisions that two views have developed under § 303(i)(1), one requiring actual malice or the desire to harass or embarass, and the other finding bad faith where the bankruptcy court is used as a substitute for customary collection procedures. *623 See, e.g., In re Wavelength, Inc., 61 B.R. 614, 619-20 (Bankr. 9th Cir.1986); In re Johnston Hawks Ltd., 72 B.R. 361, 366 (Bankr.D.Haw.1987); In re Advance Press & Litho, Inc., 46 B.R. 700, 703-04 (Bankr.D.Colo.1984). We fail to see an inconsistency in these instances of bad faith; they seem to be different facets of the same concept. Other decisions speak of subjective and objective standards, with some favoring an objective standard. See, e.g., In re Grecian Heights Owners, Ass'n, 27 B.R. 172 (Bankr.D.Or.1982) (petition held to be in bad faith where filing was made under mistaken belief, engendered by advice of a layman, that bankruptcy court would retry petitioner's claim that he had lost in the state courts). We believe, for a number of reasons, that bad faith under § 303(i)(2) should be measured by the subjective and objective standards contained in Bankr.R. 9011. That rule, which tracks Fed.R.Civ.P. 11, applies to lawyers and parties alike, and it covers all pleadings and motions, including this petition. Rule 9011 appears to be all-encompassing in the indicia of bad faith which it sets forth, including a significant objective requirement bearing on the legal justification of a claim or defense: a reasonable inquiry into the facts and the law. It is therefore logical to adopt its standards in a § 303(i)(2) case in order to avoid conflicting standards. Rule 9011 provides in part: The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation. The virtually identical predecessor of Rule 9011, former Bankruptcy Rule 911, has been construed by the court of appeals for this circuit as requiring the exercise of good faith. In re Crown Sportswear, Inc., 575 F.2d 991, 944 (1st Cir.1978). Bankr.R. 9011, moreover, has been considered controlling by some courts on the issue of bad faith under § 303(i)(2). Several have adopted a two pronged objective-subjective test based expressly or impliedly upon Rule 9011. See In re Elsub Corporation, 66 B.R. 189 (Bankr.D.N.J.1986); In re Alta Title Company, 55 B.R. 133 (Bankr.D.Utah 1985). See also United States Fidelity & Guaranty Co. v. DJF Realty & Suppliers, 58 B.R. 1008 (N.D.N.Y.1986) (bankruptcy court's findings of bad faith on the part of petitioner because of petitioner's solicitation of another to join in petition held in error); In re Advance Press & Litho, Inc., 46 B.R. 700 (Bankr.D.Colo.1984) (after discussion of both tests, court concluded: "In the final analysis, it is essentially a question of fact"). Use of the Rule 9011 standards as the measure of bad faith under § 303(i)(2) would, furthermore, be consistent with the standards of bad faith developed by the courts for the dismissal of a voluntary petition under 11 U.S.C. § 1112, where courts have created a bad faith ground for conversion or dismissal even though it is not one of the grounds listed in the statute. See In re The Bible Speaks, 65 B.R. 415 (Bankr.D. Mass.1986). The adoption of such subjective and objective standards of good faith under § 303(i)(2) is also consistent with the concept of the good faith required of a merchant under Article 2 of the Uniform Commercial Code: "honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade."[5] Bankr.R. 9011, finally, is almost identical to the applicable disciplinary rules that regulate *624 the practice of law in Massachusetts,[6] where petitioners' counsel is admitted to practice. B. Legal Justification for Petition Petitioners seek protection from a charge of bad faith because they filed the petition on the advice of counsel. Because we adopt the dual standards contained in Rule 9011, clearly this position is untenable. The real question is whether counsel, as well as petitioners, were in violation of Rule 9011. We turn first to the rule's requirements that counsel form a belief of the legal justification of the filing, and that they form that belief after reasonable inquiry. In order for petitioners to prevail in obtaining an order for relief against Turner under Chapter 7, they had to win on no less than three central legal issues: (1) whether the petitioners had claims against Turner personally; (2) whether those claims were contingent as to liability; and (3) whether Turner was generally not paying his debts as they became due, which primarily involved a determination of whether claims such as the petitioners', which are likely to be subject to a good faith dispute, are properly considered on the question. We treat each seriatim. 1. Issue of whether petitioners' claims were claims against Turner personally Somma testified that at the time of the filing he had concluded Turner could be held personally liable to the petitioners under any one of four legal principles: (1) the theory variously described as "piercing the corporate veil," "alter ego" or "common enterprise"; (2) Turner's oral guarantees of corporate debt; (3) negligence or misrepresentation in the issuance of checks later returned for insufficient funds; and (4) statutory liability on these checks under the Uniform Commercial Code. The question of Turner's personal liability cannot, however, be viewed entirely in isolation from the question of whether he was generally paying his debts as they became due. If the petitioners were to rely, as they clearly did, primarily upon their own claims on this question, they could hardly rely on claims for bad checks. Another judge of this Court ruled that these checks created a liability of only about $50,000. Asserting liability by reason of the personal guarantees appears frivolous, even though Somma stated he believed that petitioners' reliance upon those oral guarantees was sufficient to escape the requirement of a writing contained in Mass.Gen.L. ch. 259, § 1. Not only does the reliance appear minimal, the words which Turner used were no more *625 than an expression of his determination to use efforts in his managerial capacity to have the Corporations pay. The "piercing of the corporate veil" theory supports a reasonable belief that Turner could be held liable on claims of sufficient magnitude and number so as to present some reasonable prospect for passing muster under the "generally not paying" test. First of all, as previously discussed, the petitioners were aware of circumstances supporting a reasonable inference that Turner owned all seven of the Corporations, not just the three that he owned of record. They were also aware that on occasion some of the Corporations had ordered inventory for use by others in the group. And petitioners knew that Turner had spoken of a possible out-of-court plan which would treat the debt of all seven Corporations as one aggregate debt and would fund that debt through the sale of assets of three or four of the stores. They were not aware of the cooperative buying program approved by the ABCC. Counsel had available to them enough facts to present an arguable "piercing the corporate veil" case under decisions imposing liability upon a parent corporation, or one acting like a parent corporation, where there is a confused intermingling of activity by corporations engaged in a common enterprise. See My Bread Baking Co. v. Cumberland Farms, Inc., supra. The fact that two judges in the state courts had authorized United's attachments of Turner's real estate also supports the reasonableness of counsel's reliance on the "piercing of the corporate veil" theory. Counsel had obtained copies of the court papers in the United case. These disclosed that a suit against Turner based upon this same theory had been sufficient to convince two judges, albeit in an ex parte session, that the case presented a reasonable likelihood of success. We intend no intimation, however, as to the actual merits of such a case. Whether the facts here are sufficiently compelling to fall within this case law, in view of the overt cooperative buying program approved by the ABCC and in view of various other indicia of separateness among the Corporations, and whether an individual owner should be treated in the same fashion as a parent corporation, are matters that can only be resolved in litigation of the claims themselves. 2. Issue of whether petitioners' claims were claims contingent as to liability The petitioners had standing to bring the petition only if their claims were "not contingent as to liability." 11 U.S.C. § 303(b)(1). Their counsel believed that this statutory requirement was intended only to exclude petitioners holding claims that could not ripen into a cause of action without some future triggering event, such as claims against a guarantor which do not accrue until default by the principal obligor. This was a reasonable interpretation of the statute. It was, moreover, consistent with the interpretation concerning contractual claims given in the leading case then on the books, In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd mem. 646 F.2d 193 (5th Cir.1981). The Court is satisfied that counsel read and relied upon All Media in giving their advice. Turner argues that this Court, in a prior decision in this case, has determined that petitioners' claims under the "piercing the corporate veil" theory are contingent as to liability in that they depend upon a subsequent court judgment, so that petitioners should not be permitted now to rely upon counsel's prior opinion to the contrary. But that decision can hardly be conclusive on the reasonableness of counsel's earlier interpretation of the statute. Moreover, in its prior decision this Court determined that petitioners had standing to bring the petition by reason of their claims on certain bad checks under the statutory liability imposed by § 3-403 of the Uniform Commercial Code. 3. Issue of whether Turner was paying his debts as they became due, including whether debts subject to a bona fide dispute are properly considered in that determination Section 303(h)(1), as it read at the time of the petition, required that, in the event of a contest, petitioners be prepared to prove Turner was "generally not paying . . . [his] debts as such debts become due. . . ." *626 Turner contends that petitioners knew nothing about his personal indebtedness except to the extent that those debts and those of the Corporations were arguably the same, and that petitioners made no attempt to investigate the amount and nature of his personal debt or whether it was current. This is largely true. Other than the debt of the Corporations, which Turner arguably owed them, the petitioners knew of only of these personal debts: $45,000 of bank debt owed by the Corporations and guaranteed by Turner; about $100,000 of federal and state payroll taxes owed by the Corporations, some of which Turner would likely be personally responsible for under prevailing tax law; and a corporate lease which he had guaranteed. But the indebtedness which Turner arguably owed to the petitioners was of such a magnitude that it justified the petitioners in not looking into his personal financial picture. Turner also argues, and to us this is the most compelling of his contentions, that petitioners and their counsel acted irresponsibly in thinking that debts subject to a bona fide dispute (as they should have known their claims against Turner would be) are properly considered in the determination of whether Turner was paying his debts as they became due. Turner points out that the district court, in affirming dismissal of the case on this issue, thought that petitioners' interpretation of the statute did not comport with common sense because a debtor's refusal to pay debts disputed in good faith does not indicate an inability to pay his debts. In re Turner, No. 86-1780-S, slip op. (D.Mass. Jan. 5, 1987) (unpublished decision). We are less than satisfied with the performance of counsel to petitioners on this legal issue. They seem to have centered most, if not all, of their efforts upon the other legal issues. They may have concluded that claims subject to a bona fide dispute are includible in the "generally not paying" test by reason of the fact that § 101(4)(A) defines "claim" to include disputed claims and claims not reduced to judgment. If this was their reasoning, it was deficient because § 303(h)(1) phrases the test in terms of "debts" rather than "claims," unlike § 303(b)(1) which governs petitioners' standing to bring the petition. Nor are we much persuaded by the fact that it was not until 1984 that § 303 was amended so as expressly to exclude debts and claims in "bona fide dispute." "Debt" is defined in § 101(11) as "[l]iability on a claim" (emphasis added). Section 303(h)(1), therefore, even re Covey, 650 F.2d 877 (7th Cir.1981). In what strikes us as an obtuse piece of legal reasoning, the Seventh Circuit there fashioned a complex three-part test which disputed debts must pass if they were to be excluded from the "generally not paying" test. Included in this test was the requirement that it be unlikely for the dispute to require substantial litigation, a likelihood that was clearly not present here. We agree with Judge Friendly's observation that the Covey test is elaborate judicial gloss upon "treacherously simple statutory language." In re B.D. International Discount Corp., 701 F.2d 1071, 1077 (2nd Cir.1983). See also In re Dill, 731 F.2d 629, 632 (9th Cir.1984). But we can hardly regard the use of reasoning embraced by a court of appeals as indicia of the bad faith of petitioners' counsel. Counsel should, furthermore, be allowed some leeway in their legal and factual basis for the commencement of a lawsuit. Nemeroff v. Abelson, 620 F.2d 339 (2nd Cir.1980); Reinhardt v. United Automobile, Aerospace & Agricultural Workers of America, 636 F. Supp. 864, 868 (E.D.Mich.1986.) 4. The three issues in the aggregate Thus the petitioners had an arguable case on all three theories. Obviously, because they had to prevail on all three in order to maintain the petition, their chances for ultimate success in obtaining an order for relief under Chapter 7 were less than their chances for success under any one of the three theories. But this does not make the petition frivolous as a whole. Counsel believed in their chances for success on all three issues. We must also bear in mind that neither Rule 9011 nor the governing ethical rules restrict counsel to the support of existing law, but rather permit good faith argument for the extension, reversal or modification of that law. The existence of the first of the two United attachments, furthermore, required counsel to make a *627 quick decision in order to prevent that attachment from becoming immune from attack as a preference. Although the need for speed would surely not justify a frivolous petition, the press of time is properly a factor in assessing the reasonableness of counsel's investigation of the law and facts. C. Petitioners' Motivations for the Filing The petitioners were not motivated entirely by their legitimate objectives for the filing, that is, the ability to apply Turner's personal assets in payment of their claim and the ability to void the United attachments. They also sought the personal bankruptcy of Turner in order to obtain, as one of their lawyers stated in a memorandum to his client, "potential leverage in keeping pressure on Mr. Turner's Chapter 11 cases." This is an improper purpose, one of harassment, which is proscribed by Bankr.R. 9011. Use of a bankruptcy petition as leverage to obtain advantage in another matter is an act of bad faith if it is the principal motivation for the filing. In re Wavelength, Inc., 61 B.R. 614, 619-20 (Bankr. 9th Cir.1986); In Johnston Hawks Ltd., 72 B.R. 361, 367 (Bankr.D.Haw.1987). We conclude, however, that the petitioners were primarily motivated by their reasonable belief that Turner's personal assets were properly subject to their claims and that the Chapter 7 petition was a proper means to assert this personal liability. The filing was also prompted by petitioners' suspicions that Turner was milking the Corporations to feed an extravagant life style. There has been no evidence that he did this. The suspicions were, nevertheless, understandable. Turner was building a home at the seashore and driving a Jaguar at a time when the Corporations were floundering. The home was largely financed by insurance that covered a previous home destroyed in the 1978 blizzard, and the Jaguar, which was several years old, was obtained in settlement of a theft claim against an employee, but the petitioners did not know these facts at the time of the petition. Such suspicions, though not the most laudable aspect of human nature, do not taint petitioners' actions with bad faith. D. Additional Allegations in the Petition Turner argues that certain additional allegations in the petition were intentionally false, and that as such they establish petitioners' bad faith. The petition alleged, as it had to, that Turner was not generally paying his debts as they became due, but it did so in this fashion: "The debtor is generally not paying his debts as they become due as indicated by the following: despite repeated demands, the debtor has failed to make payment of monies he had admitted are due and owing to the petitioners and to other ostensible creditors." Turner correctly points out that the petitioners never made claims upon him personally for their debts, and he certainly never admitted to a personal obligation for them. The petitioners rely upon demands made on Turner for the payment of a few bad checks at one of the general meetings in May. Even if such demands were made, they did not involve any large amount of debt. As to the alleged admissions, petitioners rely upon Turner's supposed oral guarantees already discussed. The allegations in the petition of demands and admissions were surplusage. If the entity of the Corporations can be disregarded and personal liability thereby imposed upon Turner, under a "piercing the corporate veil" theory, the previous demands made upon the Corporations and their admission of liability would apply to Turner as well. We agree with petitioners that these allegations should be read as referring to the prior transactions with the Corporations and Turner's liability for those debts under that theory, to which reference had been previously made in the petition. Such unnecessary allegations should not, in any event, have the ability to vitiate a petition that presents an arguable case under § 303 and is not otherwise and primarily maliciously motivated. III. TURNER'S REQUEST FOR ATTORNEY'S FEES WITHOUT REGARD TO THE ISSUE OF BAD FAITH In a brief filed several days after the close of his evidence, Turner requests relief *628 under § 303(i)(1), the subsection which authorizes the award of costs and a reasonable attorney's fee without requiring a finding of bad faith. He contends that the prior denial of such relief by another judge of this Court is not a bar, and urges the Court to revise the prior order in light of the evidence now before it which was not available to the other judge who decided the matter only on argument of counsel. He asks us to consider the prior order interlocutory on the ground that the other judge merely refused to exercise his discretion at that time. The wording of the prior order lends some facial support to Turner's contentions. In denying the motion, the Court wrote on the motion: This was a complicated case in which another judge held two hearings and issued two detailed opinions prior to mine and the district court dealt with issues at some length. This was not on the record thus far a matter that court [sic] feels its discretion should be exercised, it is noted that an action that will deal more directly with what I presume to be Congress' intent has yet to be heard. It would, however, be inappropriate for the Court to act at this time on Turner's request for attorney's fees. He has filed no new motion requesting the relief, so that the petitioners have had no opportunity to lodge an objection as to the procedure or on the merits. The Court, furthermore, desires the benefit of argument from counsel on the question of whether the prior order was interlocutory and for that reason subject to change, as well as on the question of whether the prior order, whether or not interlocutory, is not subject to revision because either (i) there are present no circumstances which justify its revision, or (ii) the Court has lost jurisdiction to act on the matter in light of Turner's appeal from the order. Turner must therefore file a separate motion on the matter. The hearing on any such motion will be without evidence. The Court has already received evidence of Turner's attorney's fees.[7] The Court will also be free to take into account any findings of fact made here which are deemed relevant. IV. CONCLUSION The petitioners and their counsel skated close to the edge of bad faith. The factors present here, pressure from a client and a lawyer's desire (and obligation) to represent a client zealously, can combine to bring a case over the edge. We are satisfied that did not happen in this case. The petitioners did not file their petition in bad faith. Turner's counterclaim must, therefore, be dismissed. A separate judgment to this effect has previously issued. Turner shall have ten days from the date of these findings and rulings within which to file a motion pertaining to costs or attorneys fees under § 303(i)(1). A prior order to this effect has also previously issued. NOTES [1] Boston Beverage Corp., August A. Busch & Company of Massachusetts, Inc., M.S. Walker, Inc., Federal Distillers, Inc., Whitehall Company, Ltd., Crown Distributors, Inc., and Burke Distributing Corp. [2] Section 303(i) (before the 1986 amendments) reads as follows: If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment— (1) against the petitioners and in favor of the debtor for— (A) costs; (B) a reasonable attorney's fee; or (C) any damages proximately caused by the taking of possession of the debtor's property by a trustee appointed under subsection (g) of this section or section 1104 of this title; or (2) against any petitioner that filed the petition in bad faith, for— (A) any damages proximately caused by such filing; or (B) punitive damages. [3] The Court has previously dismissed, or disallowed as proposed amendments, counts in the counterclaim which were based upon allegedly false affidavits filed long after the petition (Counts II and III), actions of the petitioners taken after the petition filing date which were allegedly intended to drive Turner from the liquor business (Count IV), intentional interference with advantageous business relationships (Count V), and lack of standing of two of the petitioners (Count VI). We are therefore left with Count I, the only Count that is framed to state a claim for a bad faith filing under § 303(i). [4] See Uniform Commercial Code §§ 1-201(19), 2-103(1)(b). [5] U.C.C. § 2-103. Although the general definition of good faith contained in U.C.C. § 1-201(19) ("honesty in fact in the conduct or transaction concerned") seems to connote a subjective standard, the courts have not hesitated to infer the need to meet an objective test of reasonable inquiry. See, e.g., Hollis v. Chamberlin, 4 U.C.C.Rep. 716, 243 Ark. 201, 419 S.W.2d 116 (1967). [6] Supreme Judicial Court of Massachusetts Rule 3.07, Disciplinary Rule 7-102, provides in part as follows: (A) In his representation of a client, a lawyer shall not: (1) File suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law. Rule 3.07 is based primarily on the canons and disciplinary rules promulgated many years ago by the American Bar Association. In 1983, the A.B.A. substituted for the canons and disciplinary rules new Model Rules of Professional Conduct, which have not been adopted in Massachusetts. Rule 3.1 of these Model Rules is virtually identical to D.R. 7-102. It reads: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. A lawyer may make a good faith argument for an extension, modification or reversal of existing law. The filing of an action or a defense is not frivolous merely because the facts have not been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. And the action or defense is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. It is frivolous, however, if the client wants the action taken primarily for the purpose of harassing or maliciously injuring a person, or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law. [7] That evidence consisted of the testimony of a partner in the law firm representing Turner who affirmed an affidavit introduced into evidence which detailed the firm's services and hours expended in support of a requested fee of $205,000.00 for services and $21,098.68 for disbursements. The witness also stated that he would bill Turner a lesser amount if attorneys fees were not awarded by the Court, and that his usual hourly rate during some of the periods in question were less than the rates set forth in the affidavit.

I cannot concur in the opinion of the majority of the court in this case. Section 51 of the Constitution has been so often construed by this court that it appears wholly unbelievable at this late day the court would turn its back on the long line of decisions construing that section. The court, however, has departed from the construction placed on that section in numerous opinions, and has given no reason for the departure. Section 51 of the Constitution has served a useful purpose. As now written, it was not found in any Constitution of Kentucky previous to the one now in existence. The second paragraph of section 51 is a creature of the present Constitution. It was made a part of the fundamental law to prevent changes in existing laws surreptitiously. The requirement is that the law which is amended, revised, or the provisions thereof extended or conferred must be re-enacted and annewu@example.org. Literally, the provision means that any law or act which is directly amended must be published in full as it will read after the amendment is incorporated. There has been a gradual evolution in the construction of similar provisions throughout the years. It was found that a literal construction meant the re-enactment and publication of long laws divided into different sections and divisions. Codes and statutes were adopted dividing the various acts of the Legislature into different *Page 93 sections and subsections. The sections and subsections after the adoption of codes and statutes have been treated as separate laws as have been the separate sections and subsections of acts of the General Assembly before they passed into the codes and statutes. For that reason it has been permissible under the decision of this court to amend a section or subsection without setting out in full the entire act or law of which the section or subsection was a part. This court has uniformly held, however, that the entire section or subsection must be set out in full as it will read after the amendment has been made a part of it. There has been no departure from this rule. It is remarkable that the majority opinion of the court in this case does not cite a single opinion of this court, or any other court, supporting the conclusion reached. That of itself should put the court on notice that the opinion must be wrong. Many states have similar provisions in their Constitutions, and, surely, if such a construction as has been placed on this section by the majority opinion has ever been approved by any other court, some reference would have been made to such opinions. The majority opinion will stand out alone as the only one approving such a construction of similar sections of Constitutions. The authorities cited in the majority opinion either have no bearing whatever on the question at issue or else they hold exactly contrary to what is held in that opinion. I very much fear that any careful lawyer reading the majority opinion will wonder if the court did not misconceive the meaning of the authorities cited. The first group of cases cited in the majority opinion, beginning with Ex parte City of Paducah, 125 Ky. 510,101 S.W. 898, 31 Ky. Law Rep. 170, and ending with Jefferson County v. Cole, 204 Ky. 27, 263 S.W. 1114, show that they have no relation whatever to the annewu@example.org. These opinions all fall under the first rule announced in the case of Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255,166 S.W. 1017. That rule is that it is not necessary, when the body of the new act repeals, or has the effect of repealing, all, or part, of an existing act to republish or set forth the parts repealed, although the title of the repealing act may purport to be an amendment to the existing act. The Legislature may pass a law on any subject when it does not purport to amend any other act, but, if it is inconsistent with any *Page 94 other act, such other act is impliedly repealed. When the members of the General Assembly are voting on such a bill, they know that the act, when passed, will constitute the whole law on the subject, and for that reason such an act does not fall within the provisions of section 51 of the Constitution. The case of Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224, 125 S.W. 306, cited in the majority opinion, involved the amendment to section 1 of a prior act, and section 1, as it would read after it was amended, was set out in full, and this court held that it was a compliance with section 51. In re Barker, 132 Ky. 220, 116 S.W. 686, 1176, cited in the majority opinion, has not the slightest reference in any way to the question involved in this case. The court in that case had before it the question as to whether the title of the act gave notice of an intention to amend a certain subsection of the act. The number of the subsection which was to be amended was written out in full in the title to the act, and the number was stated as "11." The enrolled bill showed that section 2 had been amended. The clerk mistook "11" written in Arabic numerals for 2 written in Roman numerals. The court said that the error was patent, and upheld the amendment to section "11." The case of Kentucky Heating Co. v. City of Louisville, 174 Ky. 142,192 S.W. 4, is cited in the majority opinion. In that case we find the court holding that it is allowable to amend by its re-enactment and publication one section of an act without reference to other sections. The court cited Board of Penitentiary Commissioners v. Spencer, supra, to support its conclusion on that point. The question as to whether the act under consideration had been amended by a later act was not decided by the court in that case. The court said: "But when the title of the act of 1904 is looked to, some question might be raised as to whether the attempt to amend section one of the act of 1900, was effectual, but upon this subject we express no opinion. The question is not here, and even if it should be admitted that the attempted amendment of 1904 was a nullity, the original act, as well as the amendment of 1900, would remain and leave the provisions of the act applicable to cities of the first class." Kokas v. Commonwealth, 194 Ky. 44, 237 S.W. 1090, is cited in the majority opinion as supporting the conclusion *Page 95 of the court. The opinion in that case cites the Spencer case, supra, and holds that the principles therein announced were conclusive of the question. The majority opinion quotes extensively from 25 Rawle C. L. 873. I cannot understand how the court would offer that quotation as supporting the conclusions reached in the majority opinion. The quotation begins with the statement that a reasonable construction of such sections of Constitutions require that in any revised or amendatory act the new revised act or the new amended section must be set out in full. That is, what I am trying to say must always be done. The quotation from R. C. L., however, is dealing with a matter wholly foreign to the question under consideration in this case, as a casual reading of the quotation will show. Some courts have always held that the section or act before it is amended shall be set up and published at length in the new act, and that the act or section must also be re-enacted and set out at length as it will read after it has been amended. This mean that some courts hold that the old act must be published at length as well as the new act. The quotation from R. C. L. states the rule to be that in a majority of the jurisdictions it is not necessary to set out at length the old act, but the new act as it will read when amended must be set out. The court cites the case of Walker v. Commonwealth, 192 Ky. 257, 232 S.W. 617, as sustaining its conclusions. No authority could be more positive against the holding of the court in the majority opinion than the opinion in that case. The court said there in so many words: "Fourth, we have uniformly held that a new act which purports to amend an existing act or part of an existing act, must set forth the whole of the existing act as it will appear when extended, revised or amended." The trouble with the majority opinion is that it holds that it is not necessary to set forth the whole of the existing section or act as it will appear when extended, revised, or amended. The court also cites Flynn v. Barnes, 156 Ky. 498,161 S.W. 523. That case was written by the same judge who now as commissioner writes the majority opinion of the court in this case. The majority opinion passes over weighty constitutional matters by the naive *Page 96 statement that the "language of the court there was used of the facts then before the court." We have referred to the authorities cited in the majority opinion, and they are there for any one to read and determine for himself whether they, or any of them, remotely sustain the conclusions of the court as expressed in the majority opinion. I shall not attempt to mention each individual case where a contrary doctrine has been announced by this court, but will be content to call attention to the Spencer case, supra. The court in that case reviewed all of the cases previously decided construing section 51 of the Constitution. The court then sought to set down certain rules for the guidance of the General Assembly, the courts, and the legal profession generally. It was thought that the opinion in the Spencer case had made clear and definite the proper construction of section 51. The rule announced in that case, which is the correct rule, and to be adhered to, is that, when a section of an act is amended, the whole section must be published at length showing how it will read after the amendment has been made a part of it. I said I would not go back beyond the Spencer case, but I will mention the case of Board of Trustees v. Scott, etc.,125 Ky. 545, 101 S.W. 944, 30 Ky. Law Rep. 894, where the court, after a lengthy discussion of the proper construction of section 51, and after holding that it was permissible to amend the section, and stating how it should be done, concluded by saying: "But the whole section amended must be re-enacted." Later than the Spencer case the court, in the consideration of Hickman v. Kimbley, 161. Ky. 652, 171 S.W. 176, again determined the proper construction of section 51. In addition to following the rules announced in the Spencer case, the court added this to the many other opinions to the same effect: "When the Legislature desires, by alteration or addition, to amend a section of an act without referring to the Kentucky Statutes, or a section of the act as it appears in the Kentucky Statutes, it may do so by amending the section of the act as it appears in the act under a title that will identify clearly the title of the act proposed to be amended, or it may amend the section according to its number in the Kentucky Statutes, under a title giving the section *Page 97 of the Kentucky Statutes proposed to be amended; and, whichever method is adopted, the body of the new act should contain the section as it will read when revised or amended, if it is the purpose to re-enact or leave in force any part of the section amended or revised." Judge Clay, writing for the court in that opinion, more clearly expresses the correct rule than it will be found elsewhere, and it is even more clearly expressed there than it is in the case of Flynn v. Barnes, supra, where the opinion was written for the court by Judge Hobson, although the rule was very clearly expressed in the latter case. The effect of the opinion in this case is to uphold an act which amends a section without setting out the section as it will read when amended. About a dozen sentences of new matter are inserted in the middle of the section. As I see it, the violation of section 51 could not be more flagrant, and heretofore that has been the opinion of this court. If the General Assembly can select one rhetorical paragraph out of a section, and make some change in that particular paragraph, and set it out as it will read after it is changed, it can just as lawfully select a sentence and amend the one sentence by adding to, or striking from, it and set out the sentence as it amended. If it can amend a paragraph or a sentence without setting out the entire section as it will read when amended, it can likewise amend one word by striking it out and substituting another therefor. That is the logical construction of the majority opinion, and it needs no argument to convince any one that such a construction means the entire destruction of section 51 of the Constitution. That section was placed in the Constitution to prevent the doing of that which the majority opinion exactly allows. Not only is the majority opinion unsound law, but it is a serious menace to the commonwealth. The members of the General Assembly are none too well advised as to law-making, and, if those with a lifetime of training seek to take advantage of the door which has been opened by the majority opinion, strange things will be done by members of the General Assembly without their knowing that they have been a party to the things done. The majority opinion holds that this court will determine in each case whether the General Assembly has *Page 98 set out at length and re-enacted as much of the law as is amended. That leaves the General Assembly without any standard by which to measure its acts. The rules heretofore established by this court for the construction of section 51 have become well established. These rules are reasonable, and easily understood. In effect, they are that, if an entire act is amended directly, it will be legal to set out the provisions of the entire act as it will read with the change or changes included. If a section of an act or statutes or codes is amended, it will be sufficient if the entire section is set out in full and published at length, including the change, or changes. If a subsection is amended, it will be sufficient if the entire subsection is set out in full and published at length, including the change or changes. This court has heretofore made the rules so clear that a person of meager intelligence may follow them. But the majority opinion in this case will bring chaos where order previously existed. The reasonable and logical construction of section 51 is that which this court has heretofore placed on it That is to say, that, if a law is amended, and by "law" is meant the entire act, so much of it as is amended shall be re-enacted and annewu@example.org. So much of the law refers under the previous decisions of this court to sections and subsections. Further than that this court has never gone until the majority opinion in this case was written, and it cannot go further without unsettling existing conditions and bringing about utter confusion. If the majority opinion should hold that section 18 of the act of 1918 is that which was set out and published at length in the act of 1922, the opinion would be sound, or at least there would be authority to support it. But that is not the effect of the majority opinion. The effect of the opinion is to hold that the old section 18 of the act of 1918 is all in effect with the few lines added in the middle of it by the act of 1922. For the reasons given, and there are many others which could be given and better expressed, I must respectfully dissent from the majority opinion. Judges Dietzman and McCandless authorize me to say that they concur in this dissent. *Page 99

Citation Nr: 0633352 Decision Date: 10/27/06 Archive Date: 11/14/06 DOCKET NO. 04-30 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from November 1965 to November 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This rating decision granted the veteran's claim for service connection for bilateral hearing loss and denied his claim for service connection for bilateral tinnitus. FINDING OF FACT The medical evidence shows that the veteran's current bilateral tinnitus was first clinically manifest many years after his discharge from active service in November 1967, and his bilateral tinnitus is unrelated to disease or injury in active service. CONCLUSION OF LAW Bilateral tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In addition, the Board notes that the United States Court of Appeals for Veteran's Claims (the Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial-disability-rating and effective-date elements of a service-connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, although the veteran has not been provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability for which service connection is sought, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). As explained below, the Board has determined that service connection is not warranted for bilateral tinnitus. Consequently, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran in not notifying him of the evidence pertinent to those elements. The record reflects that by letter dated in July 2003 the veteran was provided the required notice. The letter specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The July 2003 notice predated the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The Board notes that the veteran's service medical records and post service VA medical records have been obtained. The veteran has also been provided a VA medical examination. Additionally the veteran submitted a private audiological examination in support of his claim. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection is granted for disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Analysis The veteran maintains that service connection is warranted for tinnitus because it resulted from his exposure during service to acoustic trauma associated with saws, grinders, and other tools he used in the Navy. A May 2003 private audiology report notes that the veteran complained of long term constant tinnitus. The private audiologist indicated that it was likely that the veteran's current hearing loss was due to acoustic trauma during service. However, this audiologist made no comment as to the etiology of the veteran's tinnitus. In September 2003 the veteran reported a 10 year history of tinnitus. He indicated that he thought that his tinnitus could be related to ear infections, sinus problems, or exposure to loud noise. On VA audiological examination in September 2003 the audiologist noted that since the report of onset of the tinnitus was within the last 10 years, it was not likely that the tinnitus was the result of military acoustic trauma. The VA audiologist also opined that the veteran's tinnitus was not secondary to the veteran's hearing loss. Based on a careful review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for tinnitus. The medical evidence, as noted, shows that the veteran is currently diagnosed with bilateral tinnitus. This disability, however, is shown to have been initially manifest many years after his discharge from service in November 1967. Moreover, a review of the evidence, including the May 2003 private audiology report and the VA outpatient records, reveals that there is no competent evidence showing that the veteran's bilateral tinnitus is related to active service. On the contrary, the VA medical opinion obtained in September 2003 found it unlikely that an association existed between the veteran's tinnitus and his period of active service, or to his service-connected bilateral hearing loss. There is not another medical opinion of record to contradict this finding. The veteran's own assertion that he was exposed to loud noises during service, which resulted in tinnitus, lacks probative value, because he is a lay person and not competent to offer an opinion as to such questions of medical diagnosis or causation as presented in this case. See Espiritu v. Derwinski, 2 Vet. App. 495 (1992). After carefully reviewing all the evidence, the Board concludes that the weight of the credible evidence demonstrates that the veteran's bilateral tinnitus became manifest years after his service discharge and has not been medically linked to service. As the preponderance of the evidence is against the claim of service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral tinnitus is denied. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

ACCEPTED 12-14-00085-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 4/23/2015 4:09:40 PM CATHY LUSK CLERK Case Number 12-14-00085-CV FILED IN 12th COURT OF APPEALS IN THE TYLER, TEXAS 4/23/2015 4:09:40 PM TWELFTH COURT OF APPEALS CATHY S. LUSK Clerk TYLER, TEXAS COWBOY'S RETAIL & WHOLESALE BEVERAGE DISTRIBUTION, LLC, KYLE GILLIN AND GREAT AMERICAN TREATING, INC. Appellant, v. PEGGYE DAVIS, JIM DAVIS, JAY DAVIS AND RICHARD L. RAY, TRUSTEE, Appellee. APPELLEES' SECOND MOTION TO POSTPONE ORAL ARGUMENT TO THE HONORABLE COURT OF APPEALS: Now comes PEGGYE DAVIS, JIM DAVIS, JAY DAVIS and RICHARD L. RAY, Appellees and Movants herein, by and through their attorney of record, Richard L. Ray, and files this their Second Motion To Postpone Oral Argument concerning a setting for oral argument and submission on Tuesday, May 12, 2015 at Page 1 8:30 a.m., Courtroom, First Floor, Cotton Belt Building, 1517 W. Front Street, Tyler, Texas 75702 and for grounds heretofore would show the Court as follows: I. That on March 19, 2015 at 6:01 p.m., the Appellees and Movants received an electronic notice from the Court setting the above referenced case for oral argument on May 12, 2015 at 8:30a.m. A copy of this electronic notification is attached hereto as Exhibit "A". II. That counsel for the Appellees and Movants, Peggye Davis, Jim Davis, Jay Davis and Richard L. Ray, was previously set for Pre-Trial hearing in VanZandt County Court at Law at 9:00 a.m. in Canton, Texas; and for three (3) administrative hearings, at 10:00, 10:45, and 11:30 a.m. in Dallas, Texas, at Dallas SSA, located at 12790 Merit Drive, Suite 500, Room 3. Attached hereto as Exhibit "B" is a copy of the Scheduling Order and the three (3) SSA notices which indicate notice of the Pre-Trial hearing was sent on October 3, 2014, and the SSA notices were sent on March 12,2015. That Brent Howard serves as co-counsel for Appellees. III. As a result the movant's counsel, who prepared the pending brief, cannot Page2 appear at the setting for oral argument scheduled on Tuesday, May 12, 2015, at 8:30 a.m. IV. This motion to postpone oral argument is not made for purposes of delay but so that justice may be done. WHEREFORE, prays the Court that this case be postponed until a later date. Respectfully submitted, Peggye Davis, Jay Davis, Jim Davis and Richard L. Ray Appellees and Movants Is/ Richard L. Ray RICHARD L. RAY State Bar No. 16606300 RAY & THATCHER, ATTORNEYS AT LAW, P.C. 300 S. TRADE DAYS BLVD. CANTON, TEXAS 75103 (239)864-8765 (239)864-8765 (FAX) randall03@example.com Brent Howard State Bar No. 10062600 HOWRD & DAVIS 100 E. Ferguson St. #1200 Tyler, Texas 75202 (239)864-8765 (239)864-8765 (FAX) randall03@example.com ATTORNEYS FOR APPELLEES AND MOVANTS Page3 ( VERIFICATION THE STATE OF TEXAS § COUNTY OF VANZANDT § Richard L. Ray, the Attorney for Peggye Davis, Jim Davis, Jay Davis and Richard L. Ray, Appellees and Movants named above, being duly sworn, says: 1. That he is the attorney of record for Appellees and Movants in the above styled and numbered cause; 2. That he is duly authorized to make this verification; 3. That he is familiar with the matters set forth in the Appellees' Second ( Motion To Postpone Oral Argument; and blic, on this the .//)- r /~ / " . li / /// (/ . )!/ /·b~ ~Y·.( )(r}A?.d!~trWgt~/ Yaula I. Landwermeyer · Notary Public in and for the State of Texas My Commission Expires: 09-11-2017 ( Page4 CERTIFICATE OF SERVICE CERTIFYING that a true and correct copy of the foregoing Appellees' Second Motion to Postpone Oral Argument has on this the 22nd day of April, 2015, been forwarded to the following counsel of record: I. Bennett White I. Bennett White, P.C. P.O. Box 6250 Tyler, Texas 75703 Brent Howard Howard & Davis 100 E. Ferguson St., #1200 Tyler, Texas 75702. Is/ Richard L. Ray RICHARD L. RAY Page 5 CERTIFICATE OF CONFERENCE I, Richard L. Ray, do hereby certify that I attempted to conference with J. Bennett White of the firm J. Bennett White, P.C., counsel for Appellants concerning the Appellees' Second Motion to Postpone Oral Argument on April 23, 2015. Mr. White was not available so I left a message for him to return. To date and time, no response has been received. Is/ Richard L. Ray RICHARD L. RAY Page6 3/20/2015 Richard Ray ( Notice(s): 12-14-00085-CV 1 message ·-------------- randall03@example.com Thu, Mar 19, 2015 at 6:01 PM To: randall03@example.com You have received notice(s) for the following case(s): 12-14-00085-CV TC #60, 086-B Cowboy's Retail & Wholesale Beverage Distribution, LLC, Kyle Gillin and Great American Treating, Inc. v. Peggye Da~s. Jim Da~s. Jay Da~s and Richard L. Ray, Trustee Files MT POSTPONE OA DISP_ANT-APP _GRANT_FILECOPY.pdf Thank you, Cathy S. Lusk 12th Court of Appeals ( Do not reply to this message. If you have questions, please contact the Court at (239)864-8765. t9 MT POSTPONE OA DISP_ANT-APP_GRANT_FILECOPY.pdf ' 225K hHps://mall.google.corn'mall/u/O/?ui=2&i~016ddBaa05&~ew=pt&search=inbox&th=14c3445121bB96d7&siml=14c3445121b896d7 1/1 FILE COPY ( CHJEP JUSTICE CLERK JAMEST. WORTHEN CATHY S. LUSK TWELFTH COURT OF APPEALS JUSTICES CHJBFSTAFF ATTORNEY BRIAN HOYLE MARGARET HUSSEY GREG NEELEY Thursday, March 19,2015 Mr. Richard L. Ray Mr. J. Bennett White Ray & Thatcher, PC J. Bennett White, PC 300 S. Trade Days Blvd. P.O. Box6250 (300 S. Hwy 19) Tyler, TX 75711 Canton, TX 75103 *DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Mr. Brent Howard Howard & Davis, PC 100 East Ferguson Suite 1200 Tyler, TX 75702 * DELIVERED VIA E-MAIL * ( RE: Case Number: 12-14-00085-CV Trial Court Case Number: 60,086-B Style: Cowboy's Retail & Wholesale Beverage Distribution, LLC, Kyle Gillin and Great American Treating, Inc. v. Peggye Davis, Jim Davis, Jay Davis and Richard L. Ray, Trustee You are hereby notified that in the above-described case, the following decision and order was this day made and entered by this Court: "THIS DAY came on to be considered Appellee's Motion to Postpone Oral Argument herein; and the same being inspected, it is ORDERED that said motion be, and hereby is, GRANTED, and that oral argument will be set Tuesday, May 12,2015@ 8:30am." Very truly yours, CATHY S. LUSK, CLERK ( 1517WESTFRONTS'rREET o SUITE354 • TYLER, TX75702 o TEL:(239)864-8765 • FAX:(239)864-8765 Serving Anderson~ Angelina~ CherokeeJ Gregg HendersonJ Houston Nacogdoches_ Rains._ Rusk; Sabine_ San Augustine, Shelb~ Smith, Trinity; lfpshur. Van Zandt and Wood Coundes http://www.txcourts.gov/12thcoa.aspx RECEIVED 10/03/2014 03:24PM (239)864-8765 ,. RAY AND THATCHER Oct. 3. 2014 3:39PM ( l No. 1594 P. 1/3 ( ~.a'' ~©~llWJE!]) OCT 0 6 2014 CAUSE NO. CV04799 ,/JP LARRY WAYNE TllOMAS § TllE COUNTY COURT § § vs. § ATLAWOF § § DEWAYNE ANDERSON § VANZANDT COUNTY, TEXAS SCHEDULING ORDER JURY TRIAL ln an effort to assist in the disposition of this case without undue bmden or expense to the patties, the Court finds that the following Scheduling Order will facilitate the fair, timely, and responsible resolution of the above numbered cause, and therefore, IT IS ORDERED that the following case settings and deadlines apply: May 20,2015 Jury Trial is set to begin at 8:30a.m. on the dates specified, ( Mfly 12. 2015 Pretrial is set for 9:00 a.m. on the date specified and at such time each paliy shall submit the following: Witness list; Exhibit list; Proposed "Charge ofthe Court" ready for submission lo the jury, along with an electronic copy in Microsoft Word fonnar on flosh drive; Motion in Limine; Deposition designations; Eind Concise written statement of significant legal and/or e'Yidenti&ry issue$. Februarv 16,2015 "J>aper" Discovery Deadline. All oUigoing · "paper" discovery, including interrogatories, requests for production, requests for admission, requests for disclosm·e, etc,, must be served upon opposing counsel on or before the date specified, February 16. 2015 Deposition Deadline. All depositions must be concluded by the date specified. Februacy 16,2015 Designation of Responsible Third Parties. Responsible third pm1ies must be designated on or before the date specified. JlUinacy 16, 2015 Deadline for Adding or Joining New Parties. New parties must be added or joined on or before the date specified, December 15, 2014 Amended Pleadings. Amended pleadings must be filed on or before the date specified, ( RECEIVED 10/03/2014 03:24PM (239)864-8765 RAY AND THATCHER Oct. 3. 2014 3:39PM ( No. 1594 P. 2/3 2 ( March 16,2015 Summary Judgment Motions. Summary Judgment Motions must be filed on or before the date specified. Janna1y 16,2015 l:'laintlff's Expert Witness Designation Date. (See below) Febma1y 16,2015 Defendant's Expert Witness Designation Date. (See below) Each Plaintiff must comply with the following on or before Plaintiff's Expert Witness Designation Date. Each defendant must comply with the following on OJ' before Defendant's Expert Witness Designation Date: As to all of Plaintiff's and Defendant's testifying experts- se1·ve upon the attorneys of record: l. the expert S name, address. and telephOne number; 1 2. the subject maftet· on which the expeJ1 will testify; (3) the general substance of the expert's mental impressions and opinions, find a brief summary of the basis for them (or if the eXpert is not retained by, employed by, or otherwise subject to l='laintifrs/Defendant's control- docum¢n($ reflecting such information). Additionally, as to ~II ofPfainlitrs/Defendant's testifying expe11s who are retained by, employed by, or otherwise subject to the control ofPiaintifi!Defendant- &erve upon the attorneys ofrecord: I. all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anlicipalion of the expert's ( testimony; und 2. the expert's current resume and bibliography. May6.20l5 Mediation Deadline, IT IS ORDERED that mediation shall occur on or before the specified date. STEVE WATiaNS is appointed mediator in the above case. Counsel are directed to contact the mediator to an-ange the logistics of mediation within 5 days from the date of this Order. Any objection to this Order must be filed and served upon all patties and the mediator, and a hearing must be requested within I0 days fl·om the date of receipt ofU1is Order. An objection that is neither timely filed nor ruled upon before the scheduled mediation may be waived. STEVE WATKINS, ESQ- Mediatol' POBOX876 GREENVILLE, TX 75403-0876 VOlCE (239)864-8765 FAX (239)864-8765 A reasonable mediation fee shall be allocated among the paliies as determined to be fair by the mediator, and each paJ1y to the lawsuit shall have an individual personally present for mediation with full settlement authority. NIA Othel' Agreed Upon Deadline. Inseli in the blank "N/A" if not applicable; otherwise, describe as follows: ( RECEIVED 10/03/2014 03:24PM (239)864-8765 RAV AND THATCHER Oct. 3. 2014 3:40PM .· No. 1594 P. 3/3 3 ( The trial com·t nsenres the dght to impose sanctions for failure to comply with the terms of this Order. SIGNED AND ENTERED ONTIDS _3_ day of ~ , zolf Attorney lnformatioll lla?rl Name: Richard L. Ray Address: Ray & Thatcher, Attomeys at Law, P.C, 300 S. Trade Days Blvd., Canton, Texas 75!03 Phone & Fax: (239)864-8765/ (239)864-8765/ randall03@example.com Name: Martin R. Bennett Address: Kugle, Skelton & Bennett, P.C. ( 130 East Corsicana, Suite 302, Athens, Texas 75751 Phone & Fax: (239)864-8765/ (239)864-8765 I randall03@example.com ( 'l 1-SEco · _. J~ SOCIAL SECURI'ft( ill\1INISTRATION :tl~usA'\\: \ ll!IIJI "\'JST~i"- J Refer To: Office of Disability Adjudication and Review Suite 500 Ounld1am Joe Deuanxayasane 12790 Merit Dr. Dallas, TX 7 5251 Tel: (239)864-8765/ Fax: (239)864-8765 ••• • March 12,2015 •• •• Ounldmm Joe Deuanxayasane 706 Lawrence Terrell, TX 75160 NOTICE OF HEARING Please bring this notice of bearing with you to the hearing. I have scheduled your hearing for: Day: Tuesday Date: May 12,2015 Time: 10:00 AM Central (CT) Room: l Address: 12790 Merit Dlive Suite 500 Dallas, TX75251 ( It Is Important That You Attend Your Hearing I have set aside this time for you to tell me about your case. If you do not attend the hearing and I do not find that you have a good reason, I may dismiss your request for hearing. I may do so without giving you further notice. You may ask us if you want to appear by telephone. I will grant your request ifl find that extraorclinmy circumstances prevent you from appem·ing in person or by video teleconferencing. You must bring valid picture identification (ID) to your hem·ing. Examples of acceptable picture ID include a: • Current and valid U.S. State driver's license; • .U.S. State-issued identity card; • Current U.S. passport; or Form HA-83 (09-2014) Representative Suspect Social Security Fraud? Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotliue at (239)864-8765 (TTY (239)864-8765). See Next Page l>-\. seo0 · , ~~SOCIAL SECURITY DMINISTRATION \ III!IJii Refer To: 4\r.(st~t'- Office of Disability Adjudication and Review Suite 500 Patricia Lym1 Martin 12790 Merit Dr. Dallas, TX 75251 Tel: (239)864-8765 /Fax: (239)864-8765 March 12,2015 •• Patricia Lym1 Martin •= 708 Tupuna Dr • Tool, TX75143 •' •' NOTICE OF HEARING ;' Please bring this notice of hearing "ith yon to the hearing. '• l · I have sched\lled your hearing for: •Day: Tuesday Date: May 12,2015 Time: I 0:45AM Central (CT) Room: 3 Address: 12790 Merit Drive Suite 500 Dallas, TX 75251 ( It Is Important That Yon Attend Your Hearing I have set aside this time for you to tell me about your case. If you do not attend the hearing and I do not find that you have a good reason, I may dismiss your request for hearing. I may do so without giving you further notice. You may ask us if you want to appear by telephone. I will grant your request ifi find that extraordinary circumstances prevent yon f:i-otn appearing in person or by video teleconferencing. You must bring valid picture identification (ID) to your hearing. Examples of acceptable picture ID include a: • Current and valid U.S. State driver's license; • U.S. State-issued identity card; • Current U.S. passport; or FonnHA-83 (09-2014) Representative Suspect Social Security Fraud? Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline at (239)864-8765 (TTY (239)864-8765). See Next Page ~\. $.Ec:o g/;p~ SOCIAL SECURITY TJMINISTRATION Jl'tisX'\\: · ·· ~,;l·lfiiii,J Refer To: Office of Disability Adjudication and Review '. 1wn 'J' p 1 Suite 500 Joe Paul Hicks 12790 Merit Dr. Dallas, TX 75251 Tel: (239)864-8765/ Fax: (239)864-8765 •• • March 12,2015 Joe Paul Hicks 1487 Fm751 •• Wills Point, TX 75169 i •• i NOTICE OF HEARING ! i Please bring this notice of hearing with you to the heru·ing. • ~ i I have scheduled your hearing for: ~ Day: Tuesday May 12,2015 Time: 11 :30 AM i Date: Central (CT) Room: 3 Address: 12790 Merit Drive Suite 500 Dallas, TX 75251 ( ' · It Is Important That You Attend Your Hearing I have set aside this time for you to tell me about your case. If you do not attend the hearing and I do not find that you have a good reason, I may dismiss your request for hearing. I may do so without giving you further notice. You may ask us if you want to appear by telephone. I will grant your request ifi find that extraordinary circumstances prevent you from appearing in person or by video teleconferencing. You must bring valid picture identification (ID) to your hearing. Examples of acceptable picture ID include a: • Current and valid U.S. State driver's license; • U.S. State-issued identity card; • Current U.S. passport; or Form HA-83 (09-2014) Representative , (' =- Suspect Social Security Fraud? ·-- Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline at (239)864-8765 (TTY (239)864-8765). See Next Page

This appeal by the State was taken and perfected under the provisions of Title 15, Section 369, Code 1940. Said section deals solely with appeals in habeas corpus cases. In the instant proceedings it appears that the essential provisions of the Statute, supra, have been substantially complied with. Petitioner appellee filed a petition for habeas corpus before the Probate Judge of Conecuh County. At the hearing, the sheriff's return showed that he was held by virtue of a warrant of the Governor of Alabama upon request of the Governor of North Carolina, in that petitioner was charged in North Carolina with the offense of failure to support two minor children. The warrant was dated February 11, 1946. The submission of this appeal in this court was upon "motion and merits." The appellee filed a motion to dismiss the appeal on four grounds which are substantially as follows: 1. Appellee has received no notice of appeal as provided by Title 7, Section 801, Code of Alabama 1940. 2. No statement of evidence and the judge's ruling thereon certified to be correct by the judge of probate has been filed within thirty days from the date of the judgment. 3. No statement of the evidence certified by the probate judge has been filed within thirty days. 4. No statement of the judge's rulings on the evidence certified by the judge of probate has been filed within thirty days. As stated hereinabove, all appeals in habeas corpus cases must be made in compliance with the provisions of Title *Page 562 15, Sec. 369, Code 1940. As further stated above the essential provisions of said Statute have been substantially complied within this case. Said Statute does not provide or require that citation of appeal shall be given. This appeal was not taken under Title 7, Section 801. It follows that ground 1 of above motion is not well taken. Strict rules of pleading are not applied in habeas corpus proceedings. Payne v. Graham, 20 Ala. App. 439, 102 So. 729. A substantial compliance with Statute is all that is necessary. State v. Thurman, 17 Ala. App. 656, 88 So. 61. The remaining grounds 2, 3 and 4, are likewise without merit, said grounds of the motion are not sustained by the record, as it affirmatively appears that a sufficient authentication or certification of the correctness of the evidence and proceedings before the Probate Judge is shown by the record. The warrant of arrest issued by the Governor of this State, and upon which petitioner was being held in custody, charged petitioner with the crime of abandonment and non-support of two minor children in the State of North Carolina and that said James Ralph Whitlock has fled from justice in said State and taken refuge in the State of Alabama. In other words he, petitioner, was charged with being a fugitive from justice. A fugitive from justice is a person who commits a crime within the State and withdraws therefrom without waiting to abide the consequences thereof. In other words, "One who having committed, or being accused of crime in one jurisdiction flees to avoid punishment." Black's Law Dictionary defines, "A fugitive from justice as: A person who, having committed a crime, flees from the State or country where it transpired, in order to evade arrest and escape justice." Upon the hearing below before the Probate Judge a prima facie case was made out. But the recitals of the Governor's warrant that the accused is a fugitive from justice are not conclusive evidence of the fact for it is competent and allowable for the prisoner to show on habeas corpus, by parol evidence, that he is not in fact a fugitive from the demanding State, and it is error to exclude evidence tending to show that the prisoner is not in fact a fugitive. Mohr's case, 73 Ala. 503, 48 Am.Rep. 63; Godwin v. State,16 Ala. App. 397, 78 So. 313; Pool v. State, 16 Ala. App. 410,78 So. 407. The facts adduced on this question before the Probate Judge were without dispute or conflict. It tended to show that the prisoner had not been in the demanding State for a long number of years prior to the alleged commission of the offense charged, a misdemeanor. The Probate Judge so held and we think properly so. The petitioner was by proper order of the Probate Judge discharged from custody. It is axiomatic that the appellate courts in reviewing the findings of the Probate Judge, will not disturb such finding unless it appears contrary to the great weight or preponderance of the evidence. The order of the Probate Judge in discharging and releasing the prisoner from further custody in this proceeding is in all things affirmed. Affirmed.

Case 2:20-cr-00015-Z-BR Document 797 Filed 09/17/20 Pg S. COURT NORTHERN DISTRICT OF TEXAS IN THE UNITED STATES DISTRICT COURT FILED FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION SEP | 7 2000 UNITED STATES OF AMERICA § § a US. DISTRICT CourT Plaintiff, ; Deput Vv. § 2:20-CR-15-Z-BR-(9) § TIFFANY DARLENE HANER § § Defendant. § ORDER ADOPTING REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY On September 2, 2020, the United States Magistrate Judge issued a Report and Recommendation Concerning Plea of Guilty (“Report and Recommendation’’) in the above referenced cause. Defendant Tiffany Darlene Haner filed no objections to the Report and Recommendation within the fourteen-day period set forth in 28 U.S.C. § 636(b)(1). The Court independently examined all relevant matters of record in the above referenced cause—including the elements of the offense, Factual Resume, Plea Agreement, and Plea Agreement Supplement—and thereby determined that the Report and Recommendation is correct. Therefore, the Report and Recommendation is hereby ADOPTED by the United States District Court. Accordingly, the Court hereby FINDS that the guilty plea of Defendant Tiffany Darlene Haner was knowingly and voluntarily entered; ACCEPTS the guilty plea of Defendant Tiffany Darlene Haner; and ADJUDGES Defendant Tiffany Darlene Haner guilty of Count Fourteen in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Sentence will be imposed in accordance with the Court’s sentencing scheduling order. SO ORDERED, September / 7, 2020, MATHEW J/KACSMARYK ITED STATES DISTRICT JUDGE 

650 F. Supp. 1007 (1986) NATIONAL CORN GROWERS ASSOCIATION, New Energy Company of Indiana, Archer Daniels Midland Company, Ohio Farm Bureau Federation, Inc., and South Point Ethanol, Plaintiffs, v. William VON RAAB, Commissioner, United States Customs Service, United States of America, Defendants, and Tropicana Energy Company, Inc., Party-In-Interest. No. 86-4-00487. United States Court of International Trade. December 10, 1986. *1008 Williams & Connolly (Aubrey M. Daniel, III, Stephen L. Urbanczyk, Manley W. Roberts and Robert W. Hamilton), Washington, D.C., for plaintiffs. Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Civil Div., Dept. of Justice (Saul Davis and Paula N. Rubin), New York City, for defendants. McDermott, Will & Emery (R. Sarah Compton, Kurt J. Olson and Lizbeth R. Levinson) Washington, D.C., for party-in-interest. OPINION TSOUCALAS, Judge: This action is before the Court on the motion by party-in-interest, Tropicana Energy Co., Inc. (Tropicana), to dismiss plaintiffs' action as moot due to the enactment of the Tax Reform Act of 1986, Pub.L. 99-514, H.R. 3838, 99th Cong., 2d Sess. (1986).[1] Background Plaintiffs, domestic manufacturers of ethanol, commenced an action, pursuant to 19 U.S.C. § 1516 (1982), to contest the duty-free entry of ethanol from the Caribbean into the United States. Party-in-interest, Tropicana, is engaged in the importation of ethanol (ethyl alcohol) to be used as fuel. It operates at least one purification facility in Kingston, Jamaica which utilizes hydrous ethyl alcohol feedstock imported from Brazil, Spain, and other nations. This feedstock is subjected to a process of azeotropic distillation which essentially removes the water and allows the now anhydrous alcohol to serve as motor vehicle fuel. By processing the ethanol in Jamaica, Tropicana has been able to take advantage of the provisions of the Caribbean Basin Economic Recovery Act (CBERA), Pub.L. 98-67, Title II, 97 Stat. 384 (1983), codified as amended at 19 U.S.C. §§ 2701-2706 (Supp. II 1984). Under CBERA, articles imported directly into the customs territory of the United States may qualify for duty-free treatment[2] if (a) they are wholly the product or manufacture of a designated beneficiary country or (b) they are substantially transformed into a new or different article within a beneficiary country and if they meet certain local content restrictions. See 19 U.S.C. § 2703(a). Customs has ruled that the azeotropic distillation process is a substantial transformation and therefore has accorded duty-free treatment to Tropicana's imported ethanol. The validity of these rulings forms the underlying substantive dispute in this action. At this juncture, however, the Court only considers Tropicana's motion to dismiss due to enactment of the Tax Reform Act of 1986, which it asserts will moot plaintiffs' claim for relief. Tax Reform Act The Tax Reform Act of 1986 represents the culmination of efforts to rewrite the federal tax code. It also contains a number of provisions which impact upon the nation's trade laws. Of interest in this action is § 423 which specifies tariff treatment for ethyl alcohol fuel. In effect, § 423 represents a decision to legislatively overrule Customs' decisions holding that azeotropic distillation is a substantial transformation that warrants duty-free treatment *1009 under CBERA. Congress has determined that the distillation facilities do not provide the type of economic development opportunities that justify preferential tariff treatment. In the language of the legislative history, they are "pass-through" operations. H.R.Cong.Rep. No. 841, 99th Cong., 2d Sess. II-132 (1986). "[T]he conferees seek to encourage meaningful economic investment in CBI countries and insular possessions." Id. Accordingly, Congress has tightened the requirements for duty-free treatment of ethanol under CBERA. The new requirement is that, subject to one exception, "no ethyl alcohol or a mixture thereof may be considered [to qualify for duty-free treatment as a product of a beneficiary country] unless the ethyl alcohol or mixture thereof is an indigenous product of that insular possession or beneficiary country." § 423(a). Section 423(c)(2) defines "indigenous product" as follows: (2) Ethyl alcohol or a mixture thereof may be treated as being an indigenous product of an insular possession or beneficiary country only if the ethyl alcohol or a mixture thereof — (A) has been both dehydrated and produced by a process of full-scale fermentation within that insular possession or beneficiary country; or (B) has been dehydrated within that insular possession or beneficiary country from hydrous ethyl alcohol that includes hydrous ethyl alcohol which is wholly the product or manufacture of any insular possession or beneficiary country and which has a value not less than —[3] Section 423(b) provides that up to 20,000,000 gallons of ethanol may be imported into the United States, not subject to § 423(a), in each of the calendar years 1987 and 1988 provided that it was dehydrated in an azeotropic distillation facility established before, and in operation on, January 1, 1986. Section 423(b)(1)(A).[4] It is the interpretation of the requirements of § 423(a) and § 423(b) relative to the terms of CBERA as presently enacted that is principally at issue for the purposes of this motion. The Parties' Claims Tropicana contends that the new statute renders this case moot. Under its interpretation, 20,000,000 gallons of ethanol may be imported into the United States duty-free in 1987 and 1988, as long as it is distilled in a qualifying facility. Any importations beyond that amount are governed by the § 423(c)(2) and § 423(a) requirements. These provisions would allow for duty-free treatment of azeotropically produced ethanol distillate so long as it was mixed with the proper amounts of locally produced ethanol. See § 423(c)(2)(B). The substantial transformation question presented by CBERA as currently enacted is not relevant to entries of ethanol fuel after December 31, 1986. Moreover, given the prospective nature of § 1516 relief, see ASG Indus. v. United States, 82 Ct. Cust. 101, 154, C.D. 4794, 467 F. Supp. 1200, 1242-43 (1979), this Court would be unable to order reliquidation of prior entries. Cf. 19 U.S.C. § 1514 (1982). Therefore, under Tropicana's view, there is no controversy for this Court to adjudicate since the bill has been enacted. Predictably, plaintiffs take a different view of the statute. Their position is that "the duty status of [§ 423(b)] ethanol is unchanged by the bill and would be determined by the law as it now stands without reference to Section 423." Plaintiffs' Opposition to the Motion for a stevengill@example.net. "[T]he only plausible interpretation of the drafter's intent is that if duty-free treatment is denied to the grandfathered ethanol as a result of this litigation, such treatment would also be denied to all other entries of ethanol merely dehydrated in the Caribbean, regardless of whether the ethanol *1010 is considered an `indigenous product' under Section 423(c)(2)(B)." Id. at 13 n. 3. In short, plaintiffs contest Tropicana's interpretation of § 423 on two grounds. First, even assuming all the other requirements of CBERA as currently enacted are met, plaintiffs assert that this Court must still rule that azeotropic distillation of ethanol is a substantial transformation in order for Tropicana to import the ethanol governed by § 423(b) without duty. Secondly, plaintiffs interpret § 423(a) as merely imposing a requirement in addition to those already present in existing law, to wit, that fuel ethanol, with the exception of § 423(b) ethanol, be an "indigenous product" as defined in § 423(c). Plaintiffs' seize upon the language of § 423(b) which they claim merely exempts 20,000,000 gallons in both 1987 and 1988 only from the rule announced in § 423(a) but not from the remainder of CBERA as currently enacted. Similarly, plaintiffs look to the language of § 423(a) to establish their interpretation: "no ethyl alcohol or mixture thereof may be considered ... eligible for duty-free treatment ... unless the ethyl alcohol or mixture thereof is an indigenous product of that insular possession or beneficiary country." Section 423(a). The negative language, it is asserted, means that the rule of § 423(a) is merely additional to the other requirements of 19 U.S.C. § 2703 and the rest of CBERA as it now stands. Plaintiffs further contend that this Court is capable of awarding relief, regardless of the construction of § 423 adopted. Until the effective date of § 423, December 31, 1986, see § 423(g), the current version of CBERA is controlling. A declaration prior to that date that the Customs rulings are invalid would prevent duty-free treatment for the 1.5-2.0 million gallons of ethanol per month, see Party-in-Interest's Motion to Stay at 8, n. 1, entering into the United States market under CBERA. But see infra at 12 n. 8. Additionally, plaintiffs oppose the motion to dismiss on the grounds that a declaratory judgment by this Court overturning Customs rulings would affect the administration of both existing and future trade laws that contain provisions similar to those of CBERA. Finally, plaintiffs contend that the equities favor denial of the motion. Plaintiffs allege that the domestic ethanol industry will be injured by continuing duty-free imports while Tropicana's only burden will be the cost of having to reply to plaintiffs' discovery demands which it voluntarily assumed by intervening in this action. Discussion Section 423 Congress has prescribed a unified scheme for tariff treatment of ethyl alcohol fuel. It has amended CBERA at 19 U.S.C. § 2703(a)(1) to be "subject to section 423 of the Tax Reform Act of 1986." Section 423(f)(2). All fuel ethanol from a beneficiary country qualifying for duty-free treatment must meet the criterion of § 423(a) as defined in § 423(c) except for the 20,000,000 gallons covered by § 423(b) which falls outside this statutory plan. There is no indication that Congress sought to retain the present substantial transformation law with respect to the tariff treatment of fuel ethanol imports governed by § 423. The Conference Committee Agreement states: The conference agreement adopts in most respects section 864 of H.R. 4800. In so doing, the conferees disapprove U.S. Customs Service rulings that have found the mere dehydration of industrial-grade ethanol into fuel-grade ethanol to constitute a substantial transformation sufficient to qualify the dehydrated ethanol as a product of a CBI country or insular possession and therefore entitled to duty-free treatment.... Under the conference agreement, ethyl alcohol (or an ethyl alcohol mixture) may be admitted into the United States duty-free, if it is an indigenous product of a U.S. insular possession or CBI beneficiary country. .... Transitional exemptions are provided during 1987 and 1988 for up to 20 million gallons per year each produced by certain *1011 azeotropic distillation facilities: (1) located in a CBI country or insular possession and in operation on January 1, 1986; or (2) the equipment for which was, on January 1, 1986, ready for shipment to and installation in a CBI country. H.R.Conf.Rep. No. 841, 99th Cong., 2d Sess. II-131-II-132 (1986). It is clear that Congress was displeased with the Customs rulings at issue in this case.[5] It is equally clear that Congress sought to give importers a respite from the stricter requirements embodied in the Tax Reform Act. The Court cannot agree that Congress chose, however, to ratify legislation that would ultimately serve to deny all duty-free treatment to the imported ethanol. This is what plaintiffs' construction of § 423 would accomplish. The House Committee Report to a predecessor bill, § 264, H.R. 4750, 99th Cong., 2d Sess. (1986),[6] materially identical to § 423, explains: In fairness to companies that have made significant economic investment in reliance on existing customs rulings, the section contains two grandfather clauses. The first one sets an annual cap of 20 million gallons during 1987 and 1988 for anhydrous alcohol produced in an azeotropic distillation facility which was in operation on January 1, 1986. The other grandfather clause excepts for one year a facility meeting certain requirements and located in the U.S. Virgin Islands. H.Rep. No. 581, 99th Cong., 2d Sess. at 213 (1986) (emphasis added). Plaintiffs' construction of the legislation would drain the exemptions contained in § 423(b) of any meaning and would conflict with the legislative history cited above. It would be anomalous for Congress, which enacted legislation with the stated purpose of protecting importers relying on existing Customs rulings, to then subject those importers to the review of this Court which might very well rob them of the exemption. In short, why bother to enact an exemption that can be terminated by the decision of a judge? If indeed this were the legislative will, surely it could have been expressed in a far clearer fashion than it has been in this legislation. Plaintiffs' construction of § 423(a) is likewise flawed. It is not sensible to interpret the requirements of § 423 as adding to all of the requirements under existing law. The Congressional purpose in amending CBERA was to encourage greater use of local sugar supplies in the Caribbean region and to disapprove of "pass-through" operations such as the mere dehydration of ethanol by azeotropic distillation. H.Rep. 581, 99th Cong., 2d Sess. 212-13 (1986). The legislation does this by mandating the use of specified percentages of locally fermented alcohol in ethanol mixtures to be imported duty-free into the United States. Section 423(c)(2)(B). For this Court to require that Tropicana, in order to obtain duty-free treatment, demonstrate that dehydration is a substantial transformation, in addition to meeting the dictates of § 423, would virtually guarantee that no fuel ethanol could be imported duty-free unless it were entirely produced and distilled in a Caribbean Basin nation.[7] This Court is unwilling *1012 to frustrate the operation of § 423 in such a manner. The Court also cannot accept plaintiffs' contention that Congress, specifically aware of this litigation, intended that the legislation not interfere with the continuation of the action. While the legislative history is not illuminating on this point, Congress has demonstrated that, in other contexts, when it wishes to do so, it is quite capable of explicitly preserving existing causes of action. See, e.g., Train v. City of New York, 420 U.S. 35, 41 n. 8, 95 S. Ct. 839, 843 n. 8, 43 L. Ed. 2d 1 (1975) (action not moot where new legislation expressly preserved existing litigation). Indeed, there is nothing improper with the legislature enacting statutes whose effect is to terminate existing claims. See United States Dep't of Justice v. Provenzano, 469 U.S. 14, 15, 105 S. Ct. 413, 414, 83 L. Ed. 2d 242 (1984) (per curiam); Taxpayers for the Animas-La Plata Referendum v. AnimasLa Plata Water Conservancy Dist., 739 F.2d 1472, 1477 (10th Cir.1984). Justiciability Tropicana contends that the legislation will render plaintiffs' claims moot. Party-in-interest's Motion to Stay at 6. It will also defeat the existence of a genuine case or controversy. Id. at 7. Plaintiffs' response is that, even adopting Tropicana's construction of § 423, Customs rulings will stand with respect to imports of ethanol pursuant to the United States-Israel Free Trade Area Implementation Act of 1985, Pub.L. 99-47, 99 Stat. 82 (1985), codified following 19 U.S.C. § 2112 (Supp. III 1985). This statute contains provisions similar to those of CBERA. Compare 19 U.S.C. § 2703 with Pub.L. 99-47, § 402. Plaintiffs also speculate that the United States may enter trade agreements with Canada, pursuant to 19 U.S.C. § 2112 (1982 & Supp. III 1985), under terms similar to those of CBERA. Imports of ethanol from Canada or Israel would be governed by the Customs rulings as they now stand, and not by § 423, since § 423 only applies to imports from the Caribbean or U.S. insular possessions. Plaintiffs also contend that the action is not moot at this point since Customs can continue to apply its current administrative rulings. Theoretically, a judgment in this action may have impact upon entries made prior to December 31, 1986.[8] As a practical matter, however, it is not feasible to conduct discovery, to schedule a trial, and render judgment by that date.[9] The Customs Service will initially implement the provisions of the new legislation. Parties aggrieved by administrative interpretations made under the new law can then seek judicial redress. This action, brought to contest the liquidation of one entry under current law, is not the appropriate vehicle to predict future applications of new legislation. Bearing in mind the prospective nature of § 1516 relief, it would be foolish to commit the resources of this Court and the parties to meaningless litigation. Plaintiffs' other claims are wholly unconvincing. If plaintiffs believe that ethanol imports from Israel or Canada are being improperly liquidated, then challenge should be made to those entries. I fail to see how plaintiffs' extensive discovery requests aimed at Tropicana shed any light on azeotropic distillation facilities in Israel or Canada, if indeed there are any.[10] As *1013 explained above, the question of whether imports of ethanol from outside the Caribbean Basin region are eligible for duty-free status is best left for the time when actual entry of such imports is being made. At that time, the administrative agency, and ultimately the courts, can consider the statute and the particular factual circumstances at issue with regard to those imports. Conclusion Congress has indicated its disagreement with administrative rulings affording duty-free treatment to fuel ethanol merely distilled in the Caribbean and has enacted legislation which renders, for all practical purposes, the current controversy moot.[11] The Court has considered, for the purposes of this motion, the effect of § 423 on the current version of CBERA. It remains the task of Customs to apply the new statute to actual entries made after December 31, 1986. At that time, plaintiffs may seek to challenge the application of the statute. This Court, however, is unwilling to continue the litigation where there is no possibility of rendering a meaningful judgment. Therefore, this action is hereby dismissed. NOTES [1] Tropicana originally sought a stay of the proceedings. After enactment of the legislation, it requested that the motion be treated as one for dismissal. The federal defendants join Tropicana in support of the motion. [2] The tariff on imported fuel ethanol would otherwise be 3% ad val. plus $ .60 per gallon pursuant to items 427.88 and 901.50, TSUS. [3] The remainder of § 423(c)(2) specifies the local content rules which are not specifically at issue here. [4] Tropicana's facility apparently meets this requirement. [5] I agree that nowhere is there "an indication that Congress meant to endorse or sanction these letter rulings," Plaintiffs' Opposition to the Motion for a Stay at 10, but I cannot accept the further assertion that Congress did not intend to "immunize them from judicial challenge in this case." Id. It would be curious if the legislature were to ratify legislation intending that a court review administrative rulings it unequivocally rejected in that legislation. [6] The Conference Committee Agreement states that § 423 adopts "in most respects" the predecessor legislation, § 864, H.R. 4800, 99th Cong., 2d Sess. (1986). See stevengill@example.net. Section 864 is largely identical to § 264, H.R. 4750, except for respective subsections (c)(2)(B), which provide for differing local content requirements. [7] Plaintiffs' construction would render the distinction Congress drew between § 423(c)(2)(A) and § 423(c)(2)(B) nugatory. The former provision allows duty-free entry for fuel ethanol completely produced, i.e., both fermented and distilled in a beneficiary country. The latter provision allows for duty-free entry of fuel ethanol that is merely distilled in a beneficiary country so long as it is dehydrated from locally produced hydrous ethanol of a specified percentage. Congress could have chosen simply to require all ethanol to be fully processed into fuel-grade ethanol within a beneficiary country. It specifically did not do that and provided the alternative found in § 423(c)(2)(B). [8] It should be noted, however, that the Court was informed, in a letter from counsel for the defendants dated Nov. 17, 1986, that "Tropicana has assured the United States and counsel for [plaintiffs] that it will not import any ethanol prior to January 1, 1987." [9] Moreover, there is a question as to what is the "final judicial decision in the action," referred to in 19 U.S.C. § 1516(f). In light of 28 U.S.C. § 2645(c) (1982), it might be argued that any decision of this Court would not be final until a timely filed appeal was decided. In that event, it becomes even more obvious that final judgment in this action is not possible by December 31, 1986. [10] Tropicana has submitted an affidavit from a Branch Chief of the Office of Enforcement of the Customs Service who avers that from Oct. 1, 1984 through July 31, 1986, there were no entries of ethyl alcohol from Israel for nonbeverage purposes under item 427.88, TSUS. [11] The Court expresses no opinion as to whether ethanol merely distilled in a beneficiary country has been substantially transformed thereby qualifying for duty-free treatment under CBERA as originally enacted. It is important to note that the legislative history to § 423 is not necessarily reflective of the intent of the Congress that initially drafted CBERA. Generally, the views of a subsequent Congress carry little weight in interpreting prior legislation. Maine Potato Council v. United States, 9 CIT 293, 613 F. Supp. 1237, 1243 (1985) citing United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S. Ct. 1994, 2001, 20 L. Ed. 2d 1001 (1968); Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S. Ct. 2361, 2369, 60 L. Ed. 2d 980 (1979). At the same time, this approach is not universally followed. See, e.g., Heckler v. Turner, 470 U.S. 184, 211, 105 S. Ct. 1138, 1153, 84 L. Ed. 2d 138 (1985); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S. Ct. 1794, 1801-02, 23 L. Ed. 2d 371 (1969) (amendatory legislation evinced widespread Congressional intent to ratify long-standing construction of statute). In any event, the Court, since it does not reach the merits of plaintiffs' claim, need not assess the retrospective weight of the legislative history of the Tax Reform Act.

949 F.2d 998 UNITED STATES of America, Appellee,v.Carrie TRENT, Appellant. No. 90-3045. United States Court of Appeals,Eighth Circuit. Submitted Aug. 26, 1991.Decided Nov. 25, 1991. Patricia A. Wessel, St. Louis, Mo., argued, for appellant. Steven A. Muchnick, St. Louis, Mo., argued (Steven B. Higgins, U.S. Atty., on the brief), for appellee. Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges. WOLLMAN, Circuit Judge. 1 Carrie Trent was found guilty by a jury of having embezzled funds belonging to the United Missouri Bank of Ferguson, Missouri, and of having made false statements to agents of the Federal Bureau of Investigation. She was sentenced to twenty-one months' imprisonment on each count, the sentences to run concurrently. 2 Shortly after 10:00 a.m. on December 3, 1988, Trent left her teller station at the bank and led a coworker into another part of the teller area, where Trent fell to the floor and started screaming and crying hysterically. After being taken to the bank's conference room, Trent regained her composure sufficiently to be able to tell a bank officer and several local police officers that she had been robbed. Later that morning, Ralph Tucker, a special agent with the Federal Bureau of Investigation, arrived at the bank and interviewed Trent. At the outset of the interview, Trent appeared to be upset and was crying. She told Tucker the details of the alleged robbery and gave a physical description of the person who had robbed her. FBI agent Teresa Meehan was present during a portion of Tucker's interview and obtained from Trent a description of the gun that was used during the alleged robbery. 3 On December 5, 1988, Trent was interviewed by agent Meehan and agent Thomas Ravenelle at the FBI office in St. Louis. During this interview Trent was calm and smiling. She related to these two agents essentially the same version of the robbery and the description of the robber that she had given to agent Tucker two days earlier. 4 Following further investigation, it was determined that in fact no robbery had occurred and that Trent's teller station was short of cash in the amount of $27,400.25. On October 18, 1989, Trent was indicted on one count of embezzling money from a federally insured, national bank in violation of 18 U.S.C. § 656, and on two counts of making false statements in a matter within the jurisdiction of a department or agency of the United States, in violation of 18 U.S.C. § 1001. 5 Trent's first contention on appeal is that the instructions given to the jury by the district court constituted an impermissible constructive amendment of the indictment. Because Trent failed to object to the instructions at trial (we note here that Trent's present counsel did not represent Trent at trial), we may review the alleged deficiencies in the instructions only for plain error. See, e.g., United States v. Neumann, 867 F.2d 1102, 1103 (8th Cir.1989). Having reviewed the challenged instructions, we find no error, much less plain error. Section 1001 of Title 18 provides: 6 Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. 7 As we pointed out in United States v. Cowden, 677 F.2d 417, 419 (8th Cir.1982), there need be no proof that the agency actually relied on the false statement: "The test of materiality involves only the capability of the statement to influence the agency's operations." (Emphasis in original.) 8 Trent contends that because she was voluntarily cooperating with the FBI agents in their criminal investigation, she should not have been charged under section 1001. This contention is without merit. See United States v. Rodgers, 466 U.S. 475, 104 S. Ct. 1942, 80 L. Ed. 2d 492 (1984). 9 Trent argues that she should not have been charged with two separate violations of section 1001 since the statements that she made to agents Meehan and Ravenelle on December 5, 1988, were essentially the same as those that she had made to agent Tucker two days earlier. In support of this contention, she cites United States v. Olsowy, 836 F.2d 439 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S. Ct. 1299, 99 L. Ed. 2d 509 (1988), in which the Ninth Circuit held that multiple convictions under section 1001 may not be based upon the same false statement made to the same Secret Service agent. In United States v. Salas-Camacho, 859 F.2d 788 (9th Cir.1988), the Ninth Circuit distinguished Olsowy by holding that identical false statements made to different government agents could each be prosecuted under section 1001 if the second statement constituted an additional impairment of the operations of the government. In Salas-Camacho, the second statement was made to a secondary customs inspector whose duties were different from the primary customs inspector to whom the false statement was initially made: "Thus, appellant's second statement to the secondary customs inspector constituted an additional impairment of the latter's governmental functions." 859 thomasbowman@example.com. 10 We conclude that the rationale of Olsowy is applicable in this case. As indicated above, agent Meehan was present during a portion of the interview conducted by agent Tucker on December 3. The answers given by Trent on December 5 were almost identical to the answers that she had given to Tucker only two days previously. The government argues that because Trent had adopted the posture of being extremely emotional during the December 3 interview and then adopted the pose of the calm, helpful witness during the December 5 interview, the answers that she gave during the latter interview constituted an additional impairment of the agents' governmental functions. We do not find this argument persuasive. The duties of Meehan and Ravenelle were not shown to be different from Tucker's. Once Trent misled agent Tucker by claiming that she had been robbed, her repetition of the false statements two days later to agents Meehan and Ravenelle added nothing to the harm caused to the FBI's inquiry. Olsowy, 836 thomasbowman@example.com. Accordingly, we view the charge based upon the December 5 interview as constituting an impermissible piling on of multiple convictions. 11 The judgment of conviction entered on Counts I and II of the indictment is affirmed; the conviction on Count III of the indictment is reversed.

Citation Nr: 0431296 Decision Date: 11/24/04 Archive Date: 11/29/04 DOCKET NO. 02-18 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a right ankle disorder. 2. Entitlement to an initial rating in excess of 10 percent for a left ankle disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from September 1991 to September 1995. This matter is before the Board of Veterans' Appeals (Board) from a January 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which established service connection for bilateral ankle disorders, both of which were evaluated as noncompensable (zero percent disabling) effective May 17, 2001. Thereafter, by a July 2002 rating decision, the RO assigned 10 percent ratings for both ankle disorders, effective May 17, 2001. The veteran provided testimony at a personal hearing conducted before personnel at the RO in January 2003, a transcript of which is of record. This case was previously before the Board in May 2004, at which time it was remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for the veteran to be accorded a new medical examination which addressed the effect of pain on his service-connected ankle disorders. As he was subsequently accorded such an examination later that same month, the Board finds that the remand directives were substantially complied with, and that a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All reasonable development and notification necessary for an equitable disposition of the instant case has been completed. 2. Neither of the veteran's ankles manifest marked limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the veteran's service-connected right and/or left ankle disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has a duty to assist a claimant in developing the facts pertinent to his or her claim, and to notify him or her of the evidence necessary to complete an application for benefits. The Veterans Claims Assistance Act of 2000 (VCAA), which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b). Information means non- evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45,620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the Court emphasized that adequate notice requires a claimant to be informed of what he or she must show to prevail in a claim, what information and evidence he or she is responsible for, and what evidence VA must secure. More recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. As will be discussed below, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of the events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case or to cause injury to the claimant. Consequently, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Here, the RO sent the necessary preadjudication notice to the veteran by correspondence dated in June 2001, which was clearly before the January 2002 rating decision which is the subject of this appeal. Although this correspondence was in regard to the veteran's underlying service connection claim, VA's Office of General Counsel indicated in VAOPGCPREC 8-2003 that when VA receives a Notice of Disagreement that raises a new issue - as is the case here - section 7105(d) requires VA to take proper action and issue a Statement of the Case (SOC) if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. Precedential opinions of VA's General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c). Moreover, the June 2001 correspondence informed the veteran of what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holdings in Quartuccio, supra, and Pelegrini, supra. Similar correspondence was sent to the veteran in May 2004. Moreover, the veteran has been provided with a copy of the appealed rating decision, the July 2002 SOC, and the July 2004 Supplemental Statement of the Case (SSOC) which provided him with notice of the law and governing regulations regarding his case, as well as the reasons for the determinations made with respect to his claims. In pertinent part, the SSOC included a summary of the relevant VCAA regulatory provisions of 38 C.F.R. § 3.159. Thus, the duty to notify has been satisfied. Regarding the duty to assist, the Board notes that the veteran and his representative have had the opportunity to present evidence and argument in support of his claim, to include at his January 2003 hearing, and it does not appear that he has identified the existence of any relevant evidence that has not been obtained or requested by the RO. Further, he has been accorded multiple examinations in conjunction with this appeal. Consequently, the Board concludes that the duty to assist has been satisfied. Based on the foregoing, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, to include the revised regulatory provisions of 38 C.F.R. § 3.159. No additional assistance or notification to the appellant is required based on the facts of the instant case. Background. Service connection was established for right and left ankle strains by a January 2002 rating decision. As noted by this decision, the service medical records show treatment for both ankles, including bilateral ankle pain in 1993 after hiking in the mountains. The veteran initiated his original claim of service connection for bilateral ankle disorders in May 2001. He subsequently underwent a VA arranged orthopedic examination in October 2001, at which time he reported that he began to experience bilateral ankle pain in 1993 while hiking, and that the condition had progressively worsened since that time with a decreased range of motion, weakness, stiffness, swelling, inflammation, and instability of both ankles. He also complained of locking of the ankles, and that his pain became progressively worse with prolonged standing. At the time of the examination, he complained of flare-ups which caused him distressing to high-level amounts of pain on a weekly basis and lasting a couple of days at a time. He reported that when he experienced this pain it made it difficult for him to perform his job duties, but his activities of daily living were not significantly affected by his bilateral foot condition. On examination, the veteran was found to be well-developed, well-nourished and in no apparent distress. He did not demonstrate any gangrene, atrophic skin or ulcers of the feet. Further, there was no edema or varicosities. The femoral, popliteal, dorsalis pedis and anterior tibialis peripheral pulses were 2+ bilaterally. There was no muscle atrophy. His left foot demonstrated a flattened arch of pes planus with normal alignment to the left ankle. Examination of the lower extremities showed no signs of abnormal weightbearing, no callosities, corns or breakdown or unusual show wear. There was no limited function of standing and walking. He did not require braces, canes, crutches, or other corrective devices. There was also no signs of arthritis, such as anemia, weight loss, fever or skin disorders. Examination of the ankle joints demonstrated bilateral weakness and instability. Although he was found to have a normal range of motion of the ankle, bilaterally, it was noted that his range was significantly limited by pain, weakness, and fatigue. X-rays of both ankles were found to be normal. Diagnoses included bilateral ankle strain. Further, the examiner commented that the veteran gave a significant history of having bilateral ankle instability and pain, particularly xmorris@example.com. Moreover, the examiner opined that this condition should have a minor affect upon the veteran's activities of daily living, but a moderate affect upon his ability to perform job functions as a car salesman, where he was required to be on his feet for most of the day. At the January 2003 hearing, the veteran described his bilateral ankle problems, as well as the treatment he had received for these disabilities. Among other things, he testified that the ankles were about the same in severity, and that he experienced heavy slowing of the ankles, weakness, fatigue, and giving out. He also testified that he worked as a car salesman, and that he had to be on his feet 14 to 15 hours per day for this job. Further, he indicated that he experienced pain, swelling, and stiffness in his ankles; that the pain and swelling radiated up his legs; and that his pain was constant. The veteran underwent a new VA arranged orthopedic examination in February 2003, at which he complained in part, of ankle weakness, specifically on the left side. He also complained of pain in both ankles that lasted all day and radiated up his legs and up into his hips. On examination, the veteran's posture was found to be obese, while his gait was normal. The examiner found no signs of abnormal weightbearing, and noted that the veteran did not need any devices for mobilization. In addition, there was no abnormality of either femur. However, the left ankle was found to be abnormal and tender. The right ankle was found to be normal. On range of motion testing, both ankles had dorsiflexion to 20 degrees and plantar flexion to 45 degrees, but the left ankle was found to have moderate pain with no pain on the right. In addition to moderate pain on the left side, there was fatigue, weakness, and lack of endurance, but no incoordination. Further, it was noted that bilateral ankle X-rays, with 3 views, were within normal limits. Moreover, the examiner noted that the veteran's bilateral ankle sprains and abnormality of the feet might give him longstanding disability. The examiner's rationale was that the veteran had bilateral ankle sprains in both ankle joints, as well as moderate pes planus and posterior plantar heel spur, and that this caused problems walking. Also, the examiner noted that the veteran was very overweight, almost on the obese side, and that this did not help him. In accord with the Board's remand directives, the veteran underwent a VA medical examination of his ankles in May 2004. At this examination, he reported, in part, that his lower legs, tibias, ankles, and feet had hurt him for 12 years, and they swell. He also reported that he worked 14 hour days at an auto dealership, that at least 8 hours of which he was up walking and the rest he was sitting, His current weight was noted as being 324 pounds. On examination, the veteran was found to have spidery veins around both ankles consistent with long term edema and increased vascularity. However, there was no pitting edema at the time of the examination, even though he reported that this was present most days. He also reported that he had been taking 800 mg of Motrin up to every 4 to 6 hours for shin splints, plantar fasciitis, heel pain, and ankle pain. Further, he reported that his feet were most painful first thing in the morning and upon arising from sitting for long periods. His ankles felt hot inside to him although the examiner noted that they felt the same temperature as his other skin and feet when touched by him or others externally. There was no redness, deformity, or signs of inflammation of the ankles on examination. Nevertheless, there were extensive vascular prominence surrounding both ankles from anterior to the maleolus to 3 inches up the tibia. In addition to his Motrin, the veteran indicated that his treatment included Ace Wrap and cold packs to his ankles and anterior shins for stress tenderness of the anterior tibia. He also reported persistent flare-ups of pain after days of prolonged standing without days off to elevate his legs. Also, his foot pain was worse upon arising in the morning ("hurts for his feet to stand up getting out of bed."). He reported that the pain had been daily, and worse in the morning and late evening after working long hours. His internal foot pain was worse upon first standing and walking on asphalt or concrete, and lasted all day. Sudden intense pain upon standing eased after the foot was flat for a while, but was intense again after sitting and then arising again. He reported that he was informed he had symptoms of plantar fasciitis and heel spurs. Precipitating factors included prolonged standing or sitting without elevating his feet; excessive weight bearing; rushing to get to clients as he worked on commission. Alleviating factors included expensive shoes with extra arch supports; more Ibuprofen; elevating; and alternating heat and cold to the feet. It was noted that the veteran had to rest, elevate, and massage his feet frequently during the day because of his flare-ups. It was further noted that no crutches, brace, cane, corrective shoes, etc., were needed, although he did wear expensive arch supporting shoes. He did not wear compression stockings nor high topped shoes to support the ankles or provide support higher up above the ankle and arch. Although he was found to have normal arches, he had clinical signs of plantar fasciitis with heel spurs. There was no evidence of dislocation of foot or ankle mortise; no subluxation evidence; and no inflammatory arthritis. The feet did hurt intensely when arising, and felt better in shoes with high arch supports. It was noted that he worked long hours every day, that his feet then hurt too much for recreation, but he was able to attend to his activities and daily living alone and drive. There was no callus formation, bunions, corns, hammertoes, clawfoot, nor loss of arch height. Moreover, no ankylosis was present, there was no indication of leg length discrepancy, and no prosthesis. Range of motion testing was as follows: dorsiflexion to 20 degrees bilaterally; plantar flexion to 35 degrees on the right, and 40 degrees on the left; eversion to 20 degrees bilaterally; and inversion to 30 degrees bilaterally. It was noted that with rotation of the right ankle there was light popping with rotated toes inward first but not in reverse rotation. With the left ankle there was light popping with rotation to the right and left rapidly. Range of motion testing was firm against resistance with bilaterally strong resistance to the examiner pushing or pulling either foot. It was also noted that fatigue and pain caused the most functional limitation. Diagnoses were chronic venous insufficiency of the lower extremities; morbid obesity; and plantar fasciitis. There was no pes planus by clinical examination or X-ray. The record reflects that the RO subsequently requested an opinion regarding the etiology of the veteran's venous insufficiency of the lower extremities. In a June 2004 addendum, the examiners responded that the foot and ankle pains claimed for disability were not at least as likely as not due to the injury in service. This opinion further stated that the morbid obesity with large legs and size of the veteran would cause vascular, and musculoskeletal stress on the weight bearing activities of anyone. Moreover, it was noted that the veteran's sprained ankle injury in service occurred in 1992, and that he continued his career until 1995. The examiner stated that if his ankles had not healed from sprains he could not have continued 3 more years in the military. Legal Criteria. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with both of the veteran's ankle disorders. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Both of the veteran's service-connected ankle disorders are evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this Code, moderate limitation of ankle motion is assigned a 10 percent rating. Marked limitation of ankle motion warrants a 20 percent rating. 38 C.F.R. § 4.71a. Full range of ankle dorsiflexion is from zero to 20 degrees and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, plate II. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Analysis. In the instant case, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for either of his service- connected ankle disorders, even when taking into consideration his complaints of pain. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Here, the record does reflect that the veteran's service- connected ankle disorders are both manifest by pain, swelling, and limitation of motion. Nevertheless, the competent medical evidence indicates no more than moderate limitation of motion of both ankles; the record does not indicate any distinctive periods where the impairment of either ankle was of such severity as to constitute marked limitation of motion. On the October 2001 VA arranged examination, he was found to have a normal range of motion of the ankle, bilaterally, even though it was noted that his range was significantly limited by pain, weakness, and fatigue. Thereafter, the February 2003 VA arranged examination indicated that both ankles had dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Further, the left ankle was found to have no more than moderate pain, while there was no pain on the right. On the most recent VA examination in May 2004, range of motion testing was as follows: dorsiflexion to 20 degrees bilaterally; plantar flexion to 35 degrees on the right, and 40 degrees on the left; eversion to 20 degrees bilaterally; and inversion to 30 degrees bilaterally. These findings indicate no more than moderate limitation of motion in comparison to the normal range of ankle motion listed at 38 C.F.R. § 4.71, plate II. The Board further finds that none of the other Diagnostic Codes used for evaluating ankle disabilities are for application in the instant case. For example, the May 2004 VA examiner specifically found that there was no evidence of ankylosis. As such, the criteria found at Diagnostic Codes 5270 and 5272 are not for application as they pertain to ankylosis of the ankle and ankylosis of the subastragalar or tarsal joint respectively. Moreover, the VA arranged examinations in October 2001 and February 2003 indicated that X-rays of both ankles were normal. Thus, there is no evidence of malunion of os calcis or astragalus, as required for consideration of Diagnostic Code 5273. Finally, there is no indication that an astragalectomy was performed as required by Diagnostic Code 5274. The Board also concurs with the RO's determination that an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted based on the facts of this case. Initially, the Board notes that the record does not indicate any periods of hospitalization for either of the veteran's ankles. The Board acknowledges the veteran's assertions that his ankles have interfered with employment in that his job as a car salesman requires him to be on his feet for several hours a day. However, the October 2001 examiner opined that the ankles would have no more than moderate affects upon his ability to perform job functions as a car salesman. Additionally, the record reflects that the veteran has multiple nonservice-connected disabilities which also impact upon his ability to stand and walk, to include heel spurs, plantar fasciitis, obesity, and venous insufficiency. Further, the record reflects that he continues to be employed. Thus, the Board finds that the level of occupational impairment attributable to his service-connected ankle disorders is adequately compensated by the current schedular ratings, and does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. For the reasons stated above, the Board finds that the veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his service-connected right and/or left ankle disorders. Thus, the Board concludes that the preponderance of the evidence is against these claims, and they must be denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In making the above determination, the Board notes that it took into consideration the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, as well as the concept of "staged" ratings pursuant to Fenderson, supra. However, despite the veteran's complaints of bilateral ankle pain, the record does not contain objective evidence by which it can be factually ascertained that there is or would be any distinctive periods where the functional impairment attributable to the veteran's ankle pain would warrant a schedular rating in excess of the 10 percent evaluations currently in effect. ORDER Entitlement to an initial rating in excess of 10 percent for a right ankle disorder is denied. Entitlement to an initial rating in excess of 10 percent for a left ankle disorder is denied. ____________________________________________ KATHY A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is 315-656-5773. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's xmorris@example.com. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): November 3, 2010 RINEON GROUP, INC. (Exact Name of Registrant as Specified in Charter) Nevada 333-148866-23-3879859 (State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.) 4140 East Baseline Road, Suite 201, Mesa AZ 85206 (Address of Principal Executive Offices, including Zip Code) Registrant's telephone number, including area code: (215)611-7048 Not Applicable (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02.

Citation Nr: 1000862 Decision Date: 01/06/10 Archive Date: 01/15/10 DOCKET NO. 05-39 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial extraschedular evaluation for diabetes mellitus, Type II, with cataracts, impotence, and peripheral neuropathy of the upper extremities, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to June 1973, to include combat service in Vietnam, with subsequent service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, granting service connection for diabetes mellitus, Type II, with impotence and peripheral neuropathy, and assigning a 20 percent disability rating, effective June 22, 2004. In an April 2006 rating decision, the RO granted service connection for bilateral cataracts, secondary to service- connected diabetes mellitus, with the notation that the Veteran's cataracts were noncompensably disabling and thus included in the evaluation assigned for his diabetes mellitus. Pursuant to his request, the Veteran was scheduled to appear at an RO hearing in January 2006. However, on the date of the scheduled hearing the Veteran elected to forego his scheduled hearing in lieu of an informal conference before a Decision Review Officer (DRO). A written report of that conference is of record. On appeal in November 2008, the Board denied entitlement to an initial or staged schedular rating in excess of 20 percent for diabetes mellitus, Type II, with residuals involving bilateral cataracts, impotence, and peripheral neuropathy of the upper extremities, including entitlement to separate, compensable schedular ratings for the residual conditions. The Board remanded the issue of the Veteran's entitlement to an initial extraschedular evaluation for diabetes mellitus with residual conditions. FINDING OF FACT The preponderance of the competent evidence of record does not show that the Veteran's service-connected diabetes mellitus, Type II, with cataracts, impotence, and peripheral neuropathy of the upper extremities, which is rated 20 percent on a schedular basis, necessitates frequent hospitalizations or results in marked industrial impairment. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 20 percent on an extraschedular basis for diabetes mellitus, Type II, with cataracts, impotence, and peripheral neuropathy of the upper extremities, have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.326 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Subsequent to the initial adjudication, the RO provided the appellant with notice in January 2009 regarding proof that his service-connected diabetes mellitus and residual conditions presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. March and April 2006 letters substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a November 2009 supplemental statement of the case, following the provision of notice. The Veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. He has been represented by an accredited service organization throughout this appeal. Under such circumstances, any error with respect to the timing of the notice is harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (regarding the rule of prejudicial error). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of the disabilities, and afforded the Veteran the opportunity to give testimony before the Board. Although the November 2009 SSOC indicates that the RO sent letters in January and April 2009 requesting employment records, only the April 2009 letter requested those documents. Regardless, the Veteran did not respond. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Analysis The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. Op. 6-1996 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and it is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, supra. The Veteran already is service-connected for peripheral neuropathy of the bilateral lower extremities and hypertension associated with diabetes mellitus type II. In rating decisions dated March and October 2006, respectively, the RO denied secondary service connection for a bladder condition and TDIU; the Veteran has not filed a NOD with respect to these claims. These issues are not on appeal and will not be addressed. The Veteran was diagnosed with diabetes mellitus in September 2002 by his primary care physician. Treatment records indicate that the Veteran's diabetes was controlled with diet therapy only. There were no restrictions of activities. A September 2004 VA diabetes examination report indicates that the Veteran reportedly had not been followed by his primary care physician since the diagnosis was made. He also reported a three-day hospitalization in either 2002 or 2003 for a cervical spine problem. The examiner indicated that a diagnosis of diabetes mellitus, Type II, could not be documented, and that further studies were necessary An April 2005 letter from Dr. J.M. states that the doctor had been treating the Veteran for diabetes since November 2004. A June 2005 QTC examination report shows no ketoacidosis or hypoglycemic reactions or hospitalizations due to diabetes. For treatment, the Veteran took Metformin 500 mg once a day. He reported progressive loss of strength and intermittent tingling and numbness in his hands, and impotency. The Veteran denied losing any time from work. Upper extremity motor function was normal. Sensory examination was also normal. The examiner noted that the diabetes had not affected the Veteran's eyes, skin, or heart. There was no functional or neurological impairment related to the diabetes. A statement from the Veteran received October 2005 indicates that he was employed as a supervisory immigration and customs enforcement agent with the Department of Homeland Security. This position required him to qualify with a firearm and oversee ongoing investigations. The Veteran indicated that he could no longer sufficiently perform his job duties. Specifically, he stated that he often had to leave work because of dizziness and could not conduct surveillance or make arrests because of numbness in his upper and lower body. He also stated that the effects from his diabetes had caused his firearm qualification scores to decrease. The Veteran indicated that he had made the decision to retire due to his "current conditions" - namely, his diabetes and hypertension. In the December 2005 Form 9, the Veteran stated that he had lost his job because of his diabetes and hypertension. A January 2006 DRO informal conference report contains the following statement: "Worked for immigration for 20+ years. Doctor and veteran feel that diabetes was affecting the job . . . He retired 3 years early." A February 2006 VA eye examination report indicates that the Veteran complained of hazy vision, glare, halos, and trouble christensenzoe@example.org. The diagnosis was visually significant cataracts in both eyes and diabetes mellitus without diabetic retinopathy. A February 2006 VA diabetes examination report indicates that the Veteran's diabetes was controlled with daily Metformin. He complained of intermittent numbness and tingling in his hands, occurring 2-3 times a day and lasting for 5-6 minutes. However, the numbness was not painful. The Veteran also reported impotence. He did house work and yard work, which included shoveling snow. He liked to fish, hunt, and cook. The Veteran indicated that he had retired from his government job as an immigration officer in October 2005 after 27 years. The examiner noted that the Veteran appeared "quite healthy." There was no strength or sensory deficit in the upper extremities. Reflexes were 1 to 2+ in the upper extremities. The diagnosis was diabetes mellitus, Type II, under reasonable control with Metformin. The evidence of record, to include reports of QTC and VA examinations from June 2005 and February 2006, respectively, does not support the Veteran's claim that his service- connected disability, standing alone, results in marked employment impairment. Here, the 20 percent rating assigned for the Veteran's diabetes mellitus with residual conditions takes into account loss of time from work, as well as some functional impairment. The Veteran's service-connected disability has not required frequent hospitalizations so as to affect a pursuit of employment or to render his symptoms outside the scope of the schedular criteria. Furthermore, the evidence does not show that there has been a marked interference with employment. The June 2005 examiner noted that there was no functional impairment related to the Veteran's diabetes. The February 2006 VA diabetes examination report notes that the Veteran appeared quite healthy. The examiner did not render an opinion as to functional limitations, however, no restrictions on activities of daily living were noted. During the examination, the Veteran indicated that he had recently retired from his federal immigration job. It is significant that, subsequent to the Board remand requesting additional employment records, the Veteran did not submit any additional evidence to support his contention that he was forced to retire early from his job due to diabetes mellitus and its residual conditions. Specifically, he submitted no records pertaining to lost time or sick leave used due to diabetes mellitus or its residual conditions and no correspondence from an employer or former employer that would verify his contentions. Further, the Veteran told the June 2005 examiner that he had not lost any time from work because of his diabetes. The preponderance of the evidence does not show that the Veteran's service-connected diabetes mellitus with residual conditions, by itself, is so severe as to produce marked interference with employment or require frequent hospitalization; there is no doubt to be resolved; and an extraschedular rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER A rating in excess of 20 percent for diabetes mellitus, Type II, with cataracts, impotence, and peripheral neuropathy of the upper extremities, on an extraschedular basis, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

309 So. 2d 606 (1975) Eugene HESS, Appellant, v. STATE of Florida, Appellee. No. 73-170. District Court of Appeal of Florida, Second District. March 7, 1975. Rehearing Denied April 7, 1975. Pat Whitaker, Jr., Tampa, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward and Richard G. Pippinger, Asst. Attys. Gen., Tampa, for appellee. PER CURIAM. Tampa police officers spent several hours in the home of Hess pursuant to a search warrant authorizing them to seize "... stolen property, to wit: A Zeninth 25" color television set, serial number 3854764 and miscellaneous credit cards in the name of George Bartke." This warrant was supported by an affidavit incorporating by reference a lengthy narrative of a police investigation into burglaries in the Tampa area which showed that the television set particularly identified had been stolen on April 6, 1972, and delivered to Hess' home. This underlying statement also recites that one burglar had delivered numerous stolen sets to Hess. It also recites that a burglary occurred at the home of George Bartke from which a number of credit cards were stolen. There are three significant issues in this case and we pass quickly over the two easiest ones. First of all, the appellant contends that there is nothing in the affidavit to support a warrant listing credit cards in the name of George Bartke as being in the possession of Hess. This is true. A great deal of stolen property is *607 shown in the underlying affidavit to have been taken to Hess' home, but nowhere is there any mention of the delivery of the Bartke credit cards to Hess. Nothing but sheer speculation supports any view that Hess was in possession of these credit cards. We are confronted then with the proper treatment of a search warrant which is based upon inaccurate information. If this affidavit rested upon nothing but the assertion that the Bartke credit cards were to be found in the Hess home, we would be obliged to find the affidavit insufficient on its face, since it ascribes no reason for that belief except the narrative statement incorporated by reference, which contains nothing to link the stolen credit cards with Hess. But, the reference to credit cards is clearly surplusage and had nothing to do with the search ultimately conducted. The second question involves the claim that the affidavit supports the belief that the stolen television set was delivered to Hess' home on April 6, whereas the warrant was issued 32 days later. We think the trial judge correctly determined that Hamelmann v. State, Fla.App. 1st 1959, 113 So. 2d 394, is not to be taken literally when it suggests that any period exceeding 30 days renders the information stale. See, also, 100 A.L.R.2d, Search and Seizure § 7, page 542. There is a great deal of difference between possession of consumable narcotics as in Hamelmann and evidence of a continuing criminal business and we are unwilling to say that the trial judge erred in determining that the period of time which elapsed in this case was not unreasonable. The third question presented is more difficult and we must give more of a factual background in order to explain it. The officers did not find the Zenith television set described. They did find five televisions sets in Hess' home, each in a different room and plugged in. They found untaxed alcoholic beverages and a considerable amount of merchandise in its original cartons and in quantities suggesting that it was not intended for Hess' own use. The officers did check the serial numbers of the television sets within the home and, after what Hess plausibly claims to be a long time, they reported that two of these sets were stolen. Whether the officers remained in the home two or five hours — the evidence is conflicting — we think under the facts here this does not reach unconstitutional dimension. The essence of the trial judge's holding in denying the motion to suppress is that the officers were rightfully in Hess' home under a warrant authorizing a search for a particular television set. Confronted with evidence of contraband in plain view and more television sets than one would normally find in a home, they reasonably undertook to determine whether these sets, or any of them, had been stolen. The officers were justified in seizing the contraband in their plain view. Ludwig v. State, Fla.App. 3rd 1968, 215 So. 2d 898. As pointed out in Partin v. State, Fla.App. 3rd 1973, 277 So. 2d 847, it would have been senseless to have required the police officers to obtain an additional search warrant to seize items of contraband discovered in a lawful search of the premises. We think that under all the circumstances the search was reasonable. Affirmed. BOARDMAN, A.C.J., SCHEB, J. and SCHWARTZ, ALAN R., Associate Judge, concur.

January 27, 2011 Wayne Doss Innocent Inc. 2nd Street Wilton Manor, FL 33305 Via Email: khaynes@example.net Re: Letter of Intent to enter a Joint Venture Agreement governing exploration and development of mineral rights to A&P Patented Claims and Pony Project Dear Mr. Doss, This letter of intent ("LOI") constitutes an expression of the intent of Steele Resources, Inc. ("SRI") to enter into a Joint Venture Agreement with Innocent Inc. ("INI") which will govern the exploration and operations of mineral rights within the A&P Patented Claims and the Pony exploration projects jointly referred to as the Mineral Hill Project ("Mineral Hill Project"). These property rights are described in Exhibits A, B, C, & D attached to this LOI. Upon execution of this LOI, INI shall provide initial Mineral Hill Project funding to SRI in the form of two initial deposits. The initial deposit of $300,000 will be completed on or before January 27, 2011 and the second deposit of $200,000 will be completed on or before February 10, 2011. SRI and INI shall have 30 days from the execution of this LOI to draft formal JV agreements. INI agrees to fund the JV with up to $5,000,000 in operating funds over a one year period beginning with the execution of the JV agreements. The parties may jointly extend this period, but must be mutually agreed. SRI agrees to fund the JV with its matched $5,000,000 in operating funds no later than one year following the first $1,000,000 funded by INI. SRI and INI agree to negotiate in good faith toward the preparation and execution of written agreements to carry out the contemplated transactions. The JV formed will be created to govern the operations of the various sites within the Mineral Hill Project wherein the parties to this agreement will initially share joint ownership of the JV, based upon the assumption, each party fulfills its terms and responsibilities of the intent of the LOI and the final agreement. INI shall contribute up to $5,000,000 in operating capital within the terms of the final agreement. In the event these funds are not provided as agreed, INI will forfeit 10% of its ownership for each one million dollars $1,000,000 not provided. This ownership will be transferred to the party that provides said delinquent funds. The forfeiting party will have no rights to reject the party that provides the funds if other than SRI. SRI shall contribute both management and mining operations expertise and commitment to match up to $5,000,000 in funding once INI has contributed its initial investment of $1,000,000. In the event these funds are not provided as agreed, SRI will forfeit 10% of its ownership for each one million dollars $1,000,000 not provided. This ownership will be transferred to the party that provided said delinquent funds The forfeiting party will have no rights to reject the party that provides the funds if other than INI.SRI and INI shall be entitled to their pro-rata share of the net proceeds from the JV based upon the final funding provided by each party. In the event the parties determine that less funding is required, each parties funding requirement will be equally reduced, and said parties will retain the earned 50% JV ownership. During the negotiations period, both SRI and INI recognize they will receive confidential or proprietary information and agree to maintain the confidentiality of such information. This confidentiality agreement shall be binding on SRI and INI regardless of whether any further documents in regard to these transactions are executed for a period of two years. Both SRI and INI recognize that unless and until final agreements are approved and executed by both SRI and INI, this LOI shall not legally bind SRI and INI into the JV. However, both SRI and INI shall be legally obligated to negotiate in good faith and honor the specific terms of this LOI.If INI or SRI shall deem the other party to have failed their internal due diligence requirements, then either party may terminate this LOI by issuing a formal letter of termination. If the LOI is terminated by INI, after the initial deposits totaling $500,000 are made, but before a JV agreement can be established, both parties agree that the deposits would be refundable within 90 days, and INI shall hold its 50% ownership until the initial deposits are refunded. The refund shall constitute the only requirement for the immediate return of the entire 50% ownership of INI. INI certifies that it will return its proof of ownership upon receipt of funds without delay or further consideration.If the LOI is terminated by either party following the execution of the JV agreement, the terms of the agreement would establish all avenues for recourse. Regardless of which party terminates the agreement, the above stated confidentiality agreement shall survive this LOI. Signing this letter shall reflect SRI’s and INI’s intention to proceed in good faith towards consummation of the stated transactions. Sincerely, Agreed to by: /s/ Scott Dockter /s/ Wayne Doss Scott Dockter Wayne Doss President/CEO President/CEO Steele Resources, Inc. Innocent, Inc.

Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 1 of 12 PageID# 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Leo Storniolo and Rachel Storniolo (h/w) Civil Action 2542 Collins Street Philadelphia, PA 19125 Case No. 21-03074 Plaintiffs, v. Rachel Cannon 740 Colony Drive Chesapeake, VA 23322 Donn Cannon 740 Colony Drive Chesapeake, VA 23322 Kathleen Cannon 740 Colony Drive Chesapeake, VA 23322 GEICO Advantage Insurance Company One Geico Boulevard Fredicksburg, VA 22412 1 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 2 of 12 PageID# 2 COMPLAINT PARTIES 1. Plaintiffs, Leo and Rachel Storniolo, are residents of the Commonwealth of Pennsylvania, residing at the address listed in the caption of this Complaint. 2. Upon information and belief, Defendants, Rachel Cannon, Kathleen Cannon and Donn Cannon a r e residents of the State of Virginia, residing at the address listed in the caption of this Complaint. 3. Upon information and belief, Defendant GEICO Advantage Insurance Company is a resident of the State of Virginia, having their principal place of business at the address listed in the caption of this Complaint. JURISDICTION AND VENUE 4. This Court has jurisdiction over the parties and subject matter of this Civil Action-Complaint in that the Plaintiffs, Leo and Rachel Storniolo, are citizens of Pennsylvania and the Defendants are citizens of Virginia, and the amount in controversy in this case, exclusive of interest and costs, exceeds the sum of $75,000. 5. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391(a) (1) and (2) in that this is a judicial district in which a substantial part of the events or omissions giving rise to the claims asserted in this Complaint occurred in this judicial district. FACTS 6. On or about July 16, 2019, at or about 5:04 P.M., Plaintiff, Leo Storniolo was the operator of a motor vehicle, which was traveling Southbound on Crossways Boulevard in the vicinity of 1434 Crossways Boulevard, Chesapeake, Virginia. 2 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 3 of 12 PageID# 3 7. At or about the same date and time, Defendant, Rachel Cannon, was the operator of a motor vehicle owned by Defendants Kathleen Cannon and Donn Cannon, which was traveling at or near the location of the Plaintiff’s vehicle. 8. At or about the same date and time, Defendants’ vehicle was involved in a collision with Plaintiff’s vehicle. 9. The aforesaid motor vehicle collision was a direct result of the negligence, recklessness and/or carelessness of the Defendants and not the result of any action or failure to act by the Plaintiff. 10. As a result of the collision, Plaintiff suffered severe and permanent injuries to the right hand/arm and shoulder as more fully set forth below. COUNT I Leo Storniolo v. Rachel Cannon Negligence 11. Plaintiff incorporates the foregoing paragraphs of this Complaint as if set forthfully at length herein. 12. The negligence, recklessness and/or carelessness of the Defendant, which was the direct cause of the aforesaid motor vehicle collision and the resultant injuries sustained bythe Plaintiff, consisted of but are not limited to the following: a. Pulling out in front of Plaintiff’s moving vehicle; b. Operating his/her vehicle into Plaintiff’s lane of travel; c. Failing to maintain proper distance between vehicles; d. Operating said vehicle in a negligent, careless and/or reckless manner so as to strike Plaintiff’s vehicle without regard for the rights or safety of Plaintiffs or others; e. Failing to have said vehicle under proper and adequate control; 3 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 4 of 12 PageID# 4 f. Operating said vehicle at a dangerous and excessive rate of speed under the circumstances; g. Violation of the assured clear distance rule; h. Failure to keep a proper lookout; i. Failure to apply brakes earlier to stop the vehicle without striking the Plaintiff’s vehicle; j. Being inattentive to his/her duties as an operator of a motor vehicle; k. Disregarding traffic lanes, patterns, and other devices; l. Driving at a high rate of speed which was high and dangerous forconditions; m. Failing to remain continually alert while operating said vehicle; n. Failing to perceive the highly apparent danger to others which the actions and/or inactions posed; o. Failing to give Plaintiffs meaningful warning signs concerning the impending collision; p. Failing to exercise ordinary care to avoid a collision; q. Failing to be highly vigilant and maintain sufficient control of said vehicle and to bring it to a stop on the shortest possible notice; r. Operating said vehicle with disregard for the rights of Plaintiff, even though he/she was aware or should have been aware of the presence of Plaintiff and the threat of harm posed to him/her; s. Continuing to operate the vehicle in a direction towards the Plaintiff’s vehicle when he/she saw, or in the exercise of reasonable diligence, should have seen, that further operation in that direction would result in a collision; t. Failing to operate said vehicle in compliance with the applicable laws and ordinances pertaining to the operation and control of motor vehicles; and 4 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 5 of 12 PageID# 5 u. Being otherwise reckless, careless and/or negligent under the circumstances. 13. As a direct and consequential result of the negligent, careless, and/or reckless conduct of the Defendant, described above, the Plaintiff suffered various serious and permanent personal injuries, serious impairment of bodily function and/or permanent serious disfigurement and/or aggravation of pre-existing conditions, including injuries to the right hand/arm and shoulder, all to Plaintiff’s great loss and detriment. 14. As a result of these injuries, all of which are permanent in nature and all of which are to Plaintiff’s great financial detriment and loss, Plaintiff has in the past, is presently and may in the future suffer great anguish, sickness and agony and will continue to suffer for an indefinite time into the future. 15. As an additional result of the carelessness, negligence and/or recklessness of Defendant, Plaintiff has suffered emotional injuries, along with the physical injuries suffered. 16. As a further result of Plaintiff’s injuries, he has in the past, is presently and may in the future undergo a great loss of earnings and/or earning capacity, all to Plaintiff’s further loss and detriment. 17. As a direct result of the negligent, careless, and/or reckless conduct of the Defendant, Plaintiff suffered damage to his personal property, including his/her motor vehicle, which Plaintiff was operating at the time of the aforesaid motor vehicle collision; including but not limited to, storage fees and towing, all to Plaintiff’s great loss and detriment. 18. Furthermore, in addition to all the injuries and losses suffered by Plaintiff, Plaintiff has also incurred or will incur medical, rehabilitative and other related expenses in an amount equal to and/or in excess of the basic personal injury protection benefits required by 5 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 6 of 12 PageID# 6 thePennsylvania Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1701, et. Seq., as amended, for which he/she makes a claim for payment in the present action. WHEREFORE, Plaintiff, Leo Storniolo, prays for judgment in plaintiffs’ favor and against Defendant, Rachel Cannon, in an amount in excess of Seventy-Five Thousand ($75,000.00) Dollars, plus punitive damages, plus all costs and other relief this court deems necessary. COUNT II Leo Storniolo v. Kathleen and Donn Cannon Negligent Entrustment 19. Plaintiff incorporates the foregoing paragraphs of this Complaint as if set forthfully at length herein. 20. The negligence, recklessness and/or carelessness of the Defendant, Rachel Cannon, which was the proximate cause of the aforesaid motor vehicle collision and the resultant injuries sustained by the Plaintiff consisted of, but are not limited to the following: a. Permitting Defendant, Rachel Cannon, to operate the motor vehicle without first ascertaining whether or not she was capable of properly operating said vehicle; b. Permitting Defendant Rachel Cannon to operate the motor vehicle when defendants Kathleen and Donn Cannon knew, or in the exercise of due care and diligence, should have known that Defendant, Rachel Cannon, was capable of committing the acts of negligence set forth above. c. Failing to warn those people, including the plaintiff, that defendant, Rachel Cannon, knew, or in the existence of due care and diligence should have known, that the Plaintiff would be exposed to defendant, Rachel Cannon’s negligent operation of the motor vehicle; and d. Otherwise negligently entrusting said vehicle to defendant Rachel Cannon. 6 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 7 of 12 PageID# 7 21. As a direct and consequential result of the negligent, careless, and/or reckless conduct of the defendant, described above, the Plaintiff suffered various serious and permanent personal injuries, serious impairment of bodily function and/or permanent serious disfigurement and/or aggravation of pre-existing conditions and others ills and injuries, including to right hand/arm and shoulder, all to Plaintiff’s great loss and detriment. 22. As a result of these injuries, all of which are permanent in nature and all of whichare to Plaintiff’s great financial detriment and loss, Plaintiff has in the past, is presently and may in the future suffer great anguish, sickness and agony and will continue to suffer for an indefinitetime into the future. 23. As am additional result of the carelessness, negligence and/or recklessness of defendant, Plaintiff has suffered emotional injuries, along with the physical injuries suffered. 24. As a further result of Plaintiff’s injuries, he has in the past, is presently and may in the future undergo a great loss of earnings and/or earning capacity, all to Plaintiff’s further loss and detriment. 25. Furthermore, in addition to all the injuries and losses suffered by Plaintiff, Plaintiff has also incurred or will incur medical, rehabilitative and other related expenses in an amount equal to and/or in excess of the basic personal injury protection benefits required by the Pennsylvania Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1701, et. Seq., as amended, for which he/she makes a claim for payment in the present action. WHEREFORE, Plaintiff demands judgment in her favor and against Defendant in an amount in excess of Fifty Thousand ($75,000.00) Dollars, plus punitive damages, all costs and 7  Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 8 of 12 PageID# 8 other relief this court deems necessary. COUNT III Leo Storniolo v.GEICO Advantage Insurance Company-Under Insured Motorists Coverage 26. Plaintiff incorporates the foregoing paragraphs of this Complaint as if set forth fully at length herein. 27. The negligence and/or carelessness of the tortfeasor, which was the direct and sole cause of the aforesaid motor vehicle accident and the injuries and damages sustained by the Plaintiff consisted of, but are not limited to, the following: a. Pulling out in front of the Plaintiff’s vehicle; b. Failing to yield the right-of-way; c. Operating his/her vehicle into Plaintiff’s lane of travel; d. Failing to maintain proper distance between vehicles; e. Operating said vehicle in a negligent and/or careless manner without regard for the rights or safety of plaintiff or others; f. Failing to have said vehicle under proper and adequate control; g. Operating said vehicle at a dangerous and excessive rate of speed under the circumstances; h. Violation of the “assured clear distance ahead” rule; i. Failure to keep a proper lookout; j. Failure to apply brakes earlier to stop the vehicle without colliding with the Plaintiff’s vehicle; k. Being inattentive to his/her duties as an operator of a motor vehicle; l. Disregarding traffic lanes, patterns, and other devices; m. Driving at a high rate of speed which was high and dangerous forconditions; n. Failing to remain continually alert while operating said vehicle; 8  Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 9 of 12 PageID# 9 o. Failing to perceive the highly apparent danger to others which the actions and/or inactions posed; p. Failing to give Plaintiff meaningful warning signs concerning theimpending collision; q. Failing to exercise ordinary care to avoid a collision; r. Failing to be highly vigilant and maintain sufficient control of said vehicle and to bring it to a stop on the shortest possible notice; s. Operating said vehicle with disregard for the rights of Plaintiff, even though he/she was aware or should have been aware of the presence of Plaintiff and the threat of harm posed to him/her; t. Continuing to operate the vehicle in a direction towards Plaintiff’s vehicle when he/she saw, or in the exercise of reasonable diligence, should have seen, that further operation in that direction would result in a collision; u. Failing to operate said vehicle in compliance with the applicable laws and ordinances pertaining to the operation and control of motor vehicles; 28. As a direct and consequential result of the negligent and/or careless conduct of the tortfeasor, described above, the Plaintiff suffered various serious and permanent personal injuries to the right hand/arm and shoulder, serious impairment of bodily function and/or permanent serious disfigurement and/or aggravation of pre-existing conditions, all to Plaintiff’s great loss and detriment. 29. As a result of these injuries, all of which are permanent in nature and all of which are to Plaintiff’s great financial detriment and loss, Plaintiff has in the past, is presently and may in the future suffer great anguish, sickness and agony and will continue to suffer for an indefinite time into the future. 30. As an additional result of the carelessness and/or negligence of defendants, Plaintiff has suffered emotional injuries, along with the physical injuries suffered. 9  Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 10 of 12 PageID# 10 31. As a further result of the aforesaid injuries, Plaintiff has in the past, is presently and may in the future undergo a great loss of earnings and/or earning capacity, all to Plaintiff’s further loss and detriment. 32. Upon information and belief, at the time of the aforementioned motor vehicle collision, the aforesaid tortfeasor’s motor vehicle insurance policy and/or liability insurance were insufficient to fully and adequately compensate Plaintiff for the injuries suffered in the above set forth motor vehicle collision and/or other damages and expenses related thereto. 33. At the date and time of the aforementioned motor vehicle collision, Plaintiff, was the owner and operator of a motor vehicle was covered by a policy of insurance issued by Defendant, under Policy Number 415-705-0415, which included coverage for underinsured motorist coverage applicable to Plaintiff. 34. Accordingly, Plaintiff asserts an Underinsured Motorist Claim against Defendant. WHEREFORE, Plaintiff, Leo Storniolo, demands judgment in Plaintiff’s favor and against defendant, GEICO Advantage Insurance Co., in an amount in excess of Seventy-Five Thousand ($75,000.00) Dollars, plus all costs and other relief this court deems necessary. COUNT IV Rachel Storniolo v. All Defendants Loss of Consortium 35. Plaintiff incorporates the foregoing paragraphs of this Complaint as if set forth at length herein 36. Plaintiff, Rachel Storniolo, is the wife of Plaintiff Leo Storniolo. 37. As a result of the injuries sustained by husband -Plaintiff, Leo Storniolo, wife- Plaintiff, Rachel Storniolo has been and will continue to be deprived of the love, assistance, companionship, consortium and society of her husband, all to her great 10 Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 11 of 12 PageID# 11 loss and detriment. WHEREFORE, Plaintiff, Rachel Storniolo, demands judgment in Plaintiff’s favor and all defendants, in an amount in excess of Seventy-Five Thousand ($75,000.00) Dollars, plus all costs and other relief this court deems necessary. THE WRIGHT LAW FIRM, LLC BY: /s William D. Wright, Esq. ____________________________ William Wright, Esq. The Wright Law Firm, LLC 928 N. Main Street Manahawkin, NJ 08050 (p) 415-705-0415 (f) 415-705-0415 sabrina58@example.net PA Attorney ID 208862 JURY DEMAND Plaintiff demands a jury for all triable issues. THE WRIGHT LAW FIRM, LLC BY: /s William D. Wright, Esq. ____________________________ William Wright, Esq. The Wright Law Firm, LLC 928 N. Main Street Manahawkin, NJ 08050 (p) 415-705-0415 (f) 415-705-0415 sabrina58@example.net PA Attorney ID 208862 11 


       Case 2:21-cv-00459-RAJ-RJK Document 1 Filed 07/12/21 Page 12 of 12 PageID# 12 VERIFICATION We are the Plaintiffs this action, and we hereby state and verify that the facts set forth in the foregoing pleading are true and correct to the best of our knowledge, information and belief. We understand that this Verification is subject to 18 Pa.C.S. § 4904 providing for criminal penalties for unsworn falsification to authorities. 

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Case: 11-50816 Document: 00512218656 Page: 1 Date Filed: 04/24/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 24, 2013 No. 11-50816 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ANGELA MARIE CUELLAR, also known as Angela Cuellar, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:10-CR-288-1 Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM:* Angela Marie Cuellar was convicted of one count of conspiracy to commit identity theft, a violation of 18 U.S.C. § 1028(f), and four counts of aggravated identity theft, violations of 18 U.S.C. § 1028A(a)(1). The district court imposed a 24-month imprisonment term for her conspiracy conviction and consecutive 24-month imprisonment terms for each of her convictions for aggravated identity theft, resulting in a total of 10 years of imprisonment. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-50816 Document: 00512218656 Page: 2 Date Filed: 04/24/2013 No. 11-50816 Cuellar argues that the district court abused its discretion in ordering the imprisonment terms for her aggravated identity theft convictions to run consecutively to each other. The district court had the discretion to determine whether those imprisonment terms would be served concurrently or consecutively. See § 1028A(b)(4). In light of the evidence regarding the extensiveness of Cuellar’s criminal conduct, the district court did not abuse its discretion. See § 1028A(b)(4); U.S.S.G. § 5G1.2, comment. (n.2(B)). According to Cuellar, the district court also failed to adequately provide reasons for its decision to impose the consecutive sentences. Because she did not object on this ground in the district court, plain error review applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Cuellar has not shown any clear or obvious error regarding the adequacy of the district court’s reasons. The judgment of the district court is AFFIRMED. 2

147 U.S. 591 (1893) NEW YORK, LAKE ERIE & WESTERN RAILROAD COMPANY v. ESTILL; and v. LEONARD. No. 127. Supreme Court of United States. Argued February 3, 1893. Decided March 6, 1893. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. *592 Mr. Garland Pollard for plaintiff in error. (Mr. Percy Werner was with him on the brief.) Mr. W.M. Williams and Mr. John Cosgrove for defendants in error. (Mr. O. Guitar and Mr. Samuel Boyd were with them on the brief.) *593 MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a single writ of error involving two suits, each of which was brought in the Circuit Court of Saline County, in the State of Missouri. The first suit was commenced November 21, 1883, by Wallace Estill, Hugh W. Elliott, and William R. Estill, against the New York, Lake Erie and Western Railroad Company. The petition set forth that the plaintiffs were the owners of 70 head of polled Angus or Aberdeen cattle, imported from Scotland, and of the value of $35,000; that the cattle were intended for the Missouri market, and the defendant had full knowledge of their value and the purposes for which they were intended; that the defendant operated a railroad through the States of New York and Ohio, and was a common carrier of live stock and other freights over the line of its railroad in those States; that on or about September 12, 1883, the plaintiffs delivered to the defendant, as such common carrier, to be transported over its line of railway, the 70 head of cattle, and the defendant received them as such common carrier, well knowing their character, and the importance of transporting them with care and reasonable dispatch; that on the receipt of them, the defendant undertook and became bound to transport them safely over its railway, and to deliver them at the terminus thereof within a reasonable time; that the plaintiffs paid the usual freight and charges for transporting the cattle; that the defendant failed to transport them with reasonable dispatch and safety, but, about September 16, 1883, at Nankin, Ohio, negligently ran its train of cars, on which the cattle were being transported, into another train of cars, and by reason thereof, broke a large number of the cars in which the cattle were, threw the cattle violently against the cars and each other, and greatly jarred, bruised, maimed and injured them; that 55 of the cattle were cows in calf at the time of the accident, and about 20 of them had since the accident, and in consequence thereof, prematurely lost their calves; that the cattle were detained at the place of the accident for about 36 hours after it occurred, without suitable *594 food, water or attention, and in consequence were greatly reduced in value and damaged; that, in consequence of the injuries received by the cattle, the plaintiffs had been put to great trouble and expense in caring for them, and the value of the cattle had been greatly reduced; and that, by reason of the premises, the plaintiffs had sustained damages in $12,000, for which sum and costs of suit they asked judgment. The other suit was commenced November 27, 1883, by Leverett Leonard, Charles E. Leonard, William H. Leonard and Abiel Leonard, against the same defendant, for a like cause of action. The petition contained substantially the same averments as that in the Estill suit, except that it was founded on damage to 306 head of imported polled Angus or Aberdeen and Galloway cattle, alleged to be of the value of $200,000. It averred that the defendant negligently ran the two trains, or sections of a train, upon which the cattle were being carried, into and against each other, so that about 16 of the cars, in which the cattle were at the time, were broken to pieces and demolished, and 7 of the cattle were killed or so badly injured that they were rendered worthless; and that about 250 of the cattle were cows in calf, and about 60 of them, since the accident and in consequence thereof, had prematurely lost their calves. Damages in the sum of $50,000 were alleged, and judgment was asked for that sum and costs of suit. In each of the two cases, a writ of attachment was issued by the court to the sheriff of Saline County, and to the sheriff of the city of St. Louis, against the property of the defendant, each of which attachments contained also a direction that the sheriff summon the defendant to appear in the court, on a day specified, to answer the petition. The sheriff of the city of St. Louis made return on each of the writs issued to him, that he had executed it in the city of St. Louis, on January 7, 1884, by delivering a copy of the writ and petition to one W.E. Conner, city passenger agent of the defendant, "who was in its business office, and had charge thereof, at the time of said service," and that "the president or any other chief officer of said defendant could not be found in the city of St. Louis at the time of said service." *595 On the 11th of February, 1884, the defendant filed in the state court, in each of the two cases, a petition for the removal thereof to the Circuit Court of the United States for the Western Division of the Western District of Missouri. Each petition stated that the defendant appeared "only for the purpose of making this application;" that it was a corporation of the State of New York; and that the plaintiffs were, at the commencement of the suit, and still are, citizens of the state of Missouri. A proper bond was given in each case, and the state court approved the bond, granted the application, and made an order removing the cause. A transcript of the record in each case was duly filed in the Circuit Court of the United States. The defendant then made a motion in that court, which was heard before Mr. Justice Brewer, then Circuit Judge, to quash the writ of summons issued to the sheriff of the city of St. Louis, and the return of that officer thereon, (which motion stated that the defendant appeared specially and only for the purpose of making it,) on the ground that the writ and return were void and conferred no jurisdiction over the defendant, because (1) being a foreign corporation, operating a railroad in New York and Ohio, which did not terminate opposite any point in Missouri, it could not be brought into the courts of Missouri by writ of summons; (2) the cause of action sued on did not accrue in Saline County, where the suit was brought, and the business office of the defendant at the time of the alleged service was not in that county, but in the city of St. Louis; and (3) the record failed to show that at the time of the service, or at any time, the defendant was engaged in business in Missouri. The Circuit Court overruled the motion, the defendant excepted to its order and decision, and the court signed and sealed a bill of exceptions setting forth those facts. The defendant then filed an answer in each case, denying all the allegations of the petition. A stipulation was then made and filed, entitled in both suits, that they might be transferred for trial to the Eastern Division of the Western District of Missouri, and placed on the docket for trial at the next term of the court for that Division; that no question should *596 be raised as to the jurisdiction of the court to which the cases were to be transferred, at Jefferson City, Missouri, which could not be raised to the jurisdiction of the Circuit Court of the United States for the Western Division of the Western District; and that no question as to the jurisdiction of the latter court should be waived. Both cases were duly tried at Jefferson City in April, 1888, before Judge Thayer, the District Judge for the Eastern District of Missouri, and the same jury. In the Estill case, the jury found the issues for the plaintiffs, and assessed their damages at $8750, and allowed interest in the sum of $2362.50, making the total damages assessed $11,112.50. In the Leonard case, the jury found the issues for the plaintiffs, and assessed their damages at $44,000, and allowed interest in the sum of $11,880, making the total damages assessed $55,880. The defendant filed a motion for a new trial, entitled in both cases, setting forth as the grounds thereof (1) that the court gave improper instructions to the jury; (2) that it refused proper instructions asked by the defendant; (3) that it admitted improper and incompetent evidence; (4) that it made improper rulings on the evidence offered by the plaintiffs; (5) that it excluded proper and competent evidence offered by the defendant; (6) that the verdict was against the law and evidence; (7) that the damages were excessive; and (8) that the court erred in overruling the defendant's motion to quash the service of the summons in the cases. The motion for a new trial was heard before Judge Thayer, Judge Philips sitting with him; and on the 19th of November, 1888, each of the judges filed an opinion denying the motion. 41 Fed. Rep. 849, 853. On the 20th of November, 1888, an order was entered in the Estill case, overruling the motion for a new trial, and entering judgment in favor of the plaintiffs for $11,112.50, with interest at the rate of 6 per cent per annum from the date of the verdict, May 1, 1888, on the $11,112.50, until the same should be paid, and for costs. On the same day, an order was entered in the Leonard suit, stating that the plaintiffs had voluntarily remitted from the amount of their verdict $5880, so as to reduce the verdict to $50,000, *597 (the amount claimed in the petition,) overruling the motion for a new trial, and entering a judgment in favor of the plaintiffs for $50,000, being the damages assessed by the jury less the amount so remitted, and awarding to the plaintiffs interest at 6 per cent per annum from the date of the verdict, May 1, 1888, on the $50,000 until the same should be paid, and for costs and charges. It was then stipulated between the parties, by a stipulation entitled in both suits and dated November 20, 1888, that one bill of exceptions, covering all matters that arose on the trial of the two causes, might answer for both; that the bill of exceptions, signed by Judges Thayer and Philips, might be incorporated in the record and used in this court as the bill of exceptions in either or both of the cases, without objections from either party; that one writ of error and one citation should be sufficient; and that one supersedeas bond might be given to cover both cases. There is one bond, reciting both judgments and referring to a single writ of error to reverse both judgments, and a single citation. There is only one citation, addressed to the plaintiffs in the two judgments, but referring to "the judgment." There is only one writ of error, but it refers to the two suits by name. The certificate of the clerk of the court below refers to the transcript as a transcript of the record and proceedings in both of the cases. The assignment of errors is entitled in both cases, and alleges as error (1) that the Circuit Court erred in overruling the motion of the defendant to set aside the return of the sheriff on the original writs issued in the causes and to quash those writs; (2) that it erred in admitting improper and incompetent evidence offered by the plaintiffs; (3) that it erred in excluding proper and competent evidence offered by the defendant; (4) that the verdict was unsustained by the evidence; (5) that the court erred in charging the jury; (6) that it erred in refusing to charge the jury as requested by the defendant; and (7) that it erred in rendering judgments upon the verdicts in favor of the plaintiffs. The Circuit Court (Judge Thayer) charged the jury as is set forth in the margin, the portions of the charge enclosed in *598 brackets, and numbered from 1 to 10, being the parts to which separately the defendant duly excepted.[1] *599 The defendant asked the court to instruct the jury as follows: "(1) The jury are instructed that plaintiffs are only *600 entitled to recover in this case such damages as they have shown by the preponderance of the evidence were the natural *601 and proximate consequence of the acts complained of in the petition, and that they are not entitled to recover any damages *602 which could have been avoided or prevented by the plaintiffs by the exercise on their part of reasonable and proper care and *603 prudence. (2) The jury are further instructed that before they can allow the plaintiffs damages on account of abortions, as claimed in the petition, they must be satisfied by a preponderance of the evidence that the abortions, if any, were caused *604 directly by the alleged collision. (3) If the jury are satisfied by a preponderance of the evidence that the cows or heifers mentioned in the petition were with calf at the time of the collision alleged in the petition, and that some of them aborted their calves in consequence of injuries received in said collision, and that ordinary care and prudence required that such aborting cow or cows should be separated from the other pregnant cows of plaintiffs, and that this was not done, but such aborted cow or cows was or were allowed to be and remain with the other pregnant cows, by reason of which such other pregnant cows or some of them aborted their calves by contagion or sympathy, they should not allow damages for or on account of abortions thus caused by contagion or sympathy. (4) If the jury find that the plaintiffs' cows aborted their calves after the alleged collision, and that some of said abortions were caused by said collision, and that some were the result of poison, fatigue, heat, exhaustion, or any cause other than the collision, and the jury are unable to determine from the evidence which cows and how many aborted in consequence of the collision and which from other causes, they should not allow damages on account of abortion from any cause. (5) The court instructs the jury that the burden is not upon the defendants to account for the abortions amongst cows and heifers of plaintiffs, if there were such abortions, but upon the plaintiffs to prove and establish by a preponderance of the evidence that such abortions were caused by the collision alleged in the petition, and if upon all the evidence the jury are not convinced that such abortions were caused by the injury, they should not allow damages for such abortions, although they may not be able to determine from the evidence what the real cause of such abortions was. (6) The court instructs the jury that unless the defendant knew that some of the cattle of the plaintiffs were cows or heifers in calf plaintiffs are not entitled to recover for abortions, though they may have been caused by the wreck, as in that event damages on account of abortion could not have been in the contemplation of the defendant at the time the cattle were received." The bill of exceptions states that the court refused to give *605 to the jury instruction (6), and that the defendant excepted to the action of the court in refusing that instruction. It is to be inferred that the court gave to the jury the other 5 instructions asked for. The case made by the evidence is in substance as follows: The plaintiffs bought in Scotland a large number of high-bred cattle and imported them to this country for sale for breeding purposes. Some were bulls, but the majority were heifers which were in calf at the time of the collision. The cattle were shipped from Liverpool to Boston, the ocean trip occupying twelve days. They reached Boston in good condition, and were kept for a while at Waltham, and then removed to Concord. While at Concord some of the Leonard cattle ate some Paris green, and five of them died from its effects. About thirty others were affected more or less by the poison, but after two days they were turned out with the rest of the cattle as having fully recovered. The Estill cattle did not have access to the poison, and were in a separate lot from the Leonard cattle which did. The cattle remained in Concord two or three weeks after the Paris green was eaten, and were then shipped to Missouri in good order and condition. On the journey, in Ohio, during the transportation over the railroad of the defendant, the train carrying the cattle was divided and run in two sections. On reaching Nankin, Ohio, the first section was put on one side, on a switch, and stopped; and the second section ran into it. Several of the cars were almost demolished by the collision; some were thrown from the track; and nine or ten of them were so badly damaged that the cattle in them had to be transferred to other cars. By the collision, some of the cattle were knocked down, the ropes by which some of them were tied were broken, and some were lying down with others standing upon them when they were found after the collision. Some were knocked against others and against the cars, and the shock of the collision was very great. The cattle were detained about thirty hours without suitable food or water. The collision occurred on a Sunday, between four and five o'clock A.M., and the train did not start west again until the *606 next day. The cattle were greatly bruised and injured, and the day after the collision the heifers began to abort or prematurely cast their calves. Five of them lost their calves, while on the cars, in the next two or three days; and from day to day, during the next several weeks, abortions occurred among them. The number of abortions and the character of other injuries are summarized by the court in its charge to the jury. The evidence for the plaintiffs further showed that an ordinary railroad journey would not have caused the abortions, and that the aborting cattle were fed in the same way as those which did not abort. The plaintiffs also introduced some expert testimony to show that the abortions were the result of the collision. The testimony for the plaintiffs further showed that a cow which had once lost her calf prematurely was an uncertain breeder, and could not be sold in the market for a breeder, but was worth only what she would bring as beef; that the heifers were worth, in calf, $400 or $500 in the Missouri market, in the fall of 1883; but that a heifer which had prematurely lost her calf would not be worth more than $25 or $35, the price for beef. The evidence also stated in detail the injuries to others of the cattle and the nature thereof. The defendant gave evidence tending to show that where one cow in a herd aborted, others would do likewise through sympathy or contagion; and that the aborted cow ought to be separated from the herd. This fact of abortion, through sympathy or contagion, was controverted by other witnesses. The plaintiffs showed that the cattle were cared for in the best manner possible. The defendant offered testimony as to the cattle that were injured and the extent of their injuries, and also examined some experts who stated that the abortions might not have been caused by the wreck. (1) The first point urged for a reversal of the judgments is that the Circuit Court erred in overruling the defendant's motion to quash the writs issued by the state court to the sheriff of the city of St. Louis, and the returns of that sheriff thereon. It is contended that the fact that the defendant, at the time of the alleged services, had a business office in St. Louis, at which office the writs were served on its city passenger agent, *607 who had charge of such office at the time of the service, prevented it from being a non-resident of Missouri, within the meaning of the statutes of that State regulating the subject of jurisdiction and the service of process. Writs of attachment were sued out in the suits, but no property was levied on, and hence the suits stand as if they had been instituted by summons alone. It has been held by the courts of Missouri that a non-resident corporation, which has a business office and an agent in the State, is amenable to the jurisdiction of its courts. McNichol v. U.S. Mercantile Reporting Agency, 74 Missouri, 457. In that case, it was held that service of a summons upon a non-resident corporation, having an office or doing business in Missouri, in the manner provided by the fourth subdivision of § 3489, Revised Statutes of 1879, has the effect of personal service, and gives the court jurisdiction to enter a general judgment; and that the legislature had power to pass an act authorizing the service of legal process upon any non-resident corporation having an office or doing business within the State, by leaving the same with an agent of the corporation within the State, and authorizing the rendition of a general judgment upon such service. Said § 3489 provides that a summons shall be executed, except as otherwise provided by law, in any one of six different methods specified in the section, the fourth of which reads as follows: "Or, fourth, where defendant is a corporation or joint stock company, organized under the laws of any other State or country, and having an office or doing business in this State, by delivering a copy of the writ and petition to any officer or agent of such corporation or company, in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent or employé in any county where such service may be obtained." In the case cited, the court held that the effect of the enactment, in 1879, of the fourth subdivision of § 3489, was to make all foreign corporations having an office and doing business in Missouri, or an agent or employé there, suable in precisely the same manner as any other defendant, by the delivery of a copy of the writ and petition, and that it must be presumed *608 that the legislature intended that the ordinary consequences should attend such service. See, also, Lafayette Ins. Co. v. French, 18 How. 404; Railroad Co. v. Harris, 12 Wall. 65; Southern Pacific Co. v. Denton, 146 U.S. 202, 207; Gibbs v. Queen Ins. Co., 63 N.Y. 114; 2 Morawetz on Corporations, § 977. The principle applicable under such circumstances is that, if the corporation does business in the State, it will be presumed to have assented to the statute and will be bound accordingly. It is contended for the defendant, however, that, as its office was in St. Louis, it was a resident of that city; and that, under the statute of Missouri fixing the place of bringing suits, it could be sued only in a court of that city. But we are of the opinion that, under the statutes of Missouri, the Circuit Court of Saline County had jurisdiction of the present suits, although the agent and business office of the defendant were in St. Louis and not in Saline County; that the service in St. Louis of the summons issued by the Circuit Court of Saline County was valid; and that the defendant was within the provisions of the Missouri statute which made non-residents suable in any county of the State. It is provided by § 3481 of the Revised Statutes of Missouri of 1879, that suits instituted by summons shall, except as otherwise provided by law, be brought in five specified ways, the fourth of which is that "when all the defendants are non-residents of the State, suits may be brought in any county." Farnsworth v. Railroad Co., 29 Missouri, 75; Stone v. Travellers' Ins. Co., 78 Missouri, 655; Swallow v. Duncan, 18 Mo. App. 622; U.S. Mutual Accident Ins. Co. v. Reisinger, 43 Mo. App. 571. The defendant, by establishing its business office in Missouri, subjected itself to suit in such of the courts of the State as had jurisdiction conferred upon them, and was suable in any county in the State. If, under § 3481, suit may be brought against non-residents in any county, regardless of the county in which the defendants may be found, it follows necessarily that the court in which the suit is brought may send its summons to the county in which service can be obtained upon such non-residents. *609 Otherwise, if the summons could be issued only to the county wherein the court is held, suit could only be brought in the county where the defendant could be found; which was the provision of section 5 of Article 1 of the Revised Statutes of 1845, page 805, which provision was abrogated by § 1 of Article 4 of the Session Acts of 1849, page 76, providing that if all the defendants were non-residents of Missouri, and an action would lie against them, it might be brought in any county, which latter provision was continued in § 3481 of the Revised Statutes of 1879. This construction has been held by the courts of Missouri. Stone v. Travellers' Ins. Co., 78 Missouri, 655; U.S. Mutual Accident Ins. Co. v. Reisinger, 43 Mo. App. 571. The city of St. Louis is placed by the statutes of Missouri on the same footing as a county. It is further contended by the defendant that it was a resident of the city of St. Louis within the meaning of § 3481. But the Supreme Court of Missouri has held that a foreign corporation, doing business in the State, is a non-resident, and, under § 3481, is suable in any county. Stone v. Travellers' Ins. Co., 78 Missouri, 665, 668. It is suggested that, in that instance, the defendant was a foreign insurance corporation, and its case was provided for by § 6013, which requires foreign insurance companies, doing business in Missouri, to appoint an agent upon whom service can be made in suits against the companies, and expressly authorizes such suits to be brought in any county; and that what was said in that case about § 3481 was merely obiter dictum. But § 6013 does not provide as to where suits may be brought against foreign insurance companies. It merely requires them to appoint an agent upon whom service may be made, and leaves the place of instituting suits to be determined by the general law; and regulates only the manner of service. Hence, it was necessary, in the case of Stone v. Traveller's Ins. Co., for the court to determine, as it did, whether a foreign corporation, doing business in Missouri, was to be sued as a resident or as a non-resident, under § 3481; and it was held that such a corporation was a non-resident, within the meaning of § 3481. Section 6013 in no manner interferes with § 3481. *610 It is quite apparent from the case of U.S. Mutual Accident Ins. Co. v. Reisinger, 43 Mo. App. 571, that the case of Stone v. Travellers' Ins. Co. was regarded as holding that, as the defendant in that case was a non-resident, suit might have been brought against it in any county. In Farnsworth v. Railroad Co., 29 Missouri, 75, and in Swallow v. Duncan, 18 Mo. App. 622, foreign corporations were treated as within the statutory provisions relating to non-residents. This court will adopt the construction placed upon the statutes of Missouri by the courts of that State. The ruling of the Supreme Court of Missouri, that corporations created by other States do not become residents of Missouri by engaging in business in that State, agrees with the rulings of the Federal courts. Ex parte Schollenberger, 96 U.S. 369; Myers v. Murray, 43 Fed. Rep. 695. In the cases of Farnsworth v. Railroad Co., 29 Missouri, 75; Robb v. Chicago & Alton Railroad, 47 Missouri, 540, and Middough v. St. Jos. & Denver Railroad, 51 Missouri, 520, there is nothing which militates against the foregoing views, or which holds that corporations created by other States become residents of Missouri by engaging in business in Missouri. Not only did Mr. Justice Brewer overrule the motion to quash the writ of summons and the return of service by the sheriff, but Judge Philips, in his opinion on the motion for a new trial, 41 Fed. Rep. 853, held that a foreign corporation, having an office in Missouri, was to be treated, under the statute, as a non-resident defendant; that the provision of subdivision 4 of § 3481 applied; and that, therefore, the suit could be brought in any county. He said that the provisions of the statute invoked by the defendant must refer, and must be limited, to domestic corporations; and he quoted a remark made by the court in Stone v. Travellers' Ins. Co., 78 Missouri, 655, 658, that "the defendant, being a non-resident of the State, was subject to suit in any county in this State, Rev. Stats. § 3481, and could be personally served in the manner pointed out by the section under consideration," that is, § 6013. *611 Judge Philips remarked also that there could be no question but that, if the suit had remained in the state court, and the defendant, after moving to suppress the sheriff's return, had pleaded and gone to trial on the merits, the defective service would have been waived, citing Kronski v. Railway Co., 77 Missouri, 362, and Scoville v. Glasner, 79 Missouri, 454, 455, and adding that, where a party had thus removed the cause into the Federal court, tried it on its merits, had one new trial, and had again tried it on the merits, in its own approved jurisdiction, it would be trifling with the administration of justice to allow it to escape judgment on the ground that it had never been in court. Judge Thayer, in his opinion, 41 Fed. Rep. 849, stated that the views of Judge Philips were in accord with his own. We conclude, therefore, that the defendant was a non-resident of Missouri; that the suits were properly brought against it in Saline County, under § 3481; and that service of process was properly made, under subdivision 4 of § 3489. It is insisted by the plaintiffs that the defendant waived any objection to the service of the summons, by appearing in the state court and filing petitions for the removal of the causes into the Federal court. Each of the petitions for removal states that the defendant appears "only for the purpose of making this application," and the motion made in the Federal court, to quash the writ of summons and the sheriff's return, states that the defendant appears specially and only for the purpose of making that motion. The plaintiffs cite in support of their view the cases of West v. Aurora City, 6 Wall. 139; Bushnell v. Kennedy, 9 Wall. 387; and Sayles v. Northwestern Ins. Co., 2 Curtis, 212. The opposing view is that the removal statute provides that, after removal, the cause shall proceed in the Federal court in the same manner as if it had been originally commenced there. To this it is replied that the exception to jurisdiction is a personal privilege of the defendant, and may be waived; that the construction contended for would enable the non-resident *612 defendant to remove the suit into the Federal court, and then, by there moving to dismiss it, defeat the jurisdiction of both courts; that the defendant is not in the Federal court against its consent, but is there by its voluntary action in view of the necessary statement in the petition for the removal that the suit is properly brought against it and is pending; that, as the state court had jurisdiction of the subject-matter, it is too late for the defendant, after appearing to the merits, to raise an objection to personal jurisdiction; that, although the petitions for removal state that the defendant appeared only for the purpose of making the application for removal, it could not make such application without admitting necessarily that the suit was properly pending; and that, therefore, the special appearance reserved nothing and amounted to nothing. We do not find it necessary to decide this point, after holding that the Circuit Court of Saline County acquired jurisdiction. There are different decisions on the question referred to in the Circuit Courts of the United States. In New York Construction Co. v. Simon, 53 Fed. Rep. 1, it was held, in the Sixth Circuit, that a defendant who removes a cause to a Federal court will not there be allowed to say that he was not properly brought before the State court, when he failed to raise that point before applying for removal. On the other hand, in the Second Circuit, in Bentliff v. London & Colonial Finance Assoc'n, 44 Fed. Rep. 667, it was held, citing several cases, that a defendant could have a suit, of which the state court acquired no jurisdiction, dismissed on that ground, even after it had been removed by the defendant to the Federal court. (2) During the trial, on the examination, as a witness for the plaintiffs, of John Cunningham, who came with the cattle from Scotland to the United States and accompanied them on the railroad journey, he was asked: "Judging from your experience as a shipper of this class and blood of cattle from Scotland to this country, would the trip across the ocean, and detention in quarantine, and shipment by rail to Missouri, cause cows to prematurely lose their calves or abort them, if no unusual accident had occurred to them?" The defendant *613 objected to that question, claiming that, under the circumstances, it was not liable for abortions, and was liable for nothing except injuries to the animals; that damage from abortions was too remote; that it was something that the defendant could not anticipate or know anything about; that it was not alleged in the petitions; and that, so far, there was no proof that the defendant knew that the cattle were in calf. The court, after hearing argument, ruled as follows: "My opinion is, that if a railroad company receives a cow or any other animal for transportation that is with calf, and such animal is of greater value at the point of destination by virtue of her being in such condition than she would otherwise be, and in the course of the journey, through the fault of the carrier, the animal receives an injury that is the direct and immediate cause of her losing her calf, that is an item of damage that is recoverable from the carrier. It stands upon the same footing as an ordinary physical injury to the animal. Of course, there may be some difficulty on both sides in proving or disproving the fact alleged that a particular injury sustained led to the loss of calves, but the fact that there is difficulty in making the proof don't alter the rule of law. The difficulty is one of fact and not a difficulty in the law. I shall allow you to proceed on both sides and try that issue of fact." The defendant then asked whether such ruling was without regard to the knowledge of the carrier. The court replied: "I don't think that has anything to do with it. The carrier had a right to make any inquiry it saw fit before it received the property, as to the condition the cows were in, and to make its arrangements accordingly. If no inquiries were made and the cattle were received, the rule stated applies." The defendant excepted to such ruling of the court. The witness answered to the question, "It would certainly not." Like rulings were made, under the objection and exception of the defendant, in regard to other questions of the same character. We are of opinion that the evidence referred to was properly admitted, and that the above ruling of the court thereon was correct. Some remarks on the subject will be made further on. *614 The defendant objects to those parts of the charge of the court which are marked in brackets 1 and 2. But it is not proper to select detached sentences in the charge and predicate on them an objection. They must be read in connection with the whole charge, and for that reason we have set it forth in full. The court correctly told the jury that the defendant was liable only for the damages directly traceable to its negligence. There was nothing, in the two sentences complained of, which could have misled the jury. Railway Co. v. Whitton, 13 Wall. 270. As to paragraph 3 in brackets, it is contended by the defendant that the court should have directed the jury that the value of the cattle when delivered at the western terminus of the railroad of the defendant, in Ohio, and not their value at the final destination of the cattle in Saline County and Howard County, Missouri, should be the basis on which to estimate the damages. But it does not appear that any such claim was made in the court below. Both parties introduced their evidence and tried the cases on the theory that the value of the cattle in Saline and Howard Counties was the proper basis for fixing the damages. No objection was made by the defendant to the evidence of value at the point of final destination, but it appears to have been conceded that it was proper to base the damages on the value of the cattle at that point. Evidence was introduced on the part of the plaintiffs, without objection, as to what the market value of the cattle would have been in the markets of Missouri, if they had arrived there in good order and condition. Various objections were made by the defendant to items in the evidence, but no objection was made on the ground that the testimony was not confined to the value of the animals at the terminus of the defendant's railroad; and the court said: "Inasmuch as the damage complained of consisted, in part, in the fact that certain of these cattle lost their calves, it appears to me to be competent to show what the difference in value was in the fall of 1883, when these cattle arrived in Saline or Howard County, between an animal that was then with calf and liable to have a calf within the next two or three months and one *615 that had aborted its calf." The counsel for the defendant then said: "I concede that; unless it appears they have the power to prove its value exactly." Both parties introduced their evidence on that theory; and no question was raised about it; and it does not appear anywhere that the defendant objected to that mode of trying the cause. Neither side offered any evidence as to the value of the cattle at the terminus of the defendant's railroad. The defendant introduced its own evidence on that basis, and asked one of its witnesses what, in his opinion, was the value of the cattle on Estill's farm or at Kansas City, assuming that they were in good order, and asked another what he would say was a fair price for the cattle per head, where they were, (i.e., on Leonard's farm in.Missouri,) or at Kansas City, assuming them to be in good condition and recovered from the effects of the trip. The opinions on the motion for a new trial do not show that any such question as is now made was then presented. The jury was authorized to infer from the evidence that the defendant knew that the cattle were to be transported to Missouri, and were intended for the market there. It is further contended for the defendant that, if the proper measure of damages is the difference between the market value of the cattle, in the condition in which they would have arrived, but for the negligence of the defendant, and the condition in which they did arrive, that value must be fixed as of the time when the cattle first reached their destination, and the plaintiffs could not show that subsequently some of the cattle died. It is further contended that two rules for a recovery by the plaintiffs were adopted, first, the difference between the two market values of all the cattle, in the condition in which they arrived, and second, in addition thereto, the value of those that subsequently died. The market value of the cattle at their destination would depend upon their condition when they reached it. Proof that the deaths subsequently resulted from injuries the cattle had received in the collision, would simply show their real condition when they reached their destination. It would not establish any new injury or any additional damage. The *616 plaintiffs were permitted to prove that some of the cattle had been so badly injured at the time of their delivery that they subsequently died from the effect of such injury, and, therefore, were of no value when delivered. There was, as to those animals, no double assessment of damages. The charge of the court clearly pointed out the different items of damage. There is nothing in the record to show that the jury, under the charge, assessed the damages on the view that the value of the animals was depreciated, and afterwards allowed for the same animals on the ground that they became totally worthless. The evidence in question tended to show the condition and value of the cattle when they reached their destination. Judge Philips, in his opinion, 41 Fed. Rep. 853, 856, said: "The rule as to the measure of damages permits the plaintiff, up to the time of trial, to show the condition of the injured animal, merely as a means of ascertaining the result of the injury inflicted, so as to better enable the jury to fix the damages at the time and place of delivery. If the cows did subsequently abort, this is proof only of the extent of the injury inflicted; as much so as if they had subsequently died from the effect of the collision. The only known limit to the inquiry up to the trial is whether or not the subsequent development in the condition of the animal is traceable directly to the injury inflicted by the carrier;" citing Kain v. Railroad Co., 29 Mo. App. 53, 61, 62, and Sorenson v. Railroad Co., 36 Fed. Rep. 166, 167. To the same effect are Missouri Pacific Railway v. Edwards, 14 S.W. Rep. 607, and Lake Erie & Western Railroad v. Rosenberg, 31 Ill. App. 47. See also Wilcox v. Plummer, 4 Pet. 172. The Circuit Court required the witnesses for the plaintiffs to describe the specific injuries to particular cattle, so that it might be seen that such injuries resulted from the collision, and also permitted both parties to show the condition of the animals after their arrival at their destination, in order to show how badly they were hurt by the collision. The measure of damages was properly stated by the court in its charge to the jury. The difference between the market value of the cattle, in the condition in which they would have *617 arrived but for the negligence of the defendant, and their market value in the condition in which, by reason of such negligence, they did arrive, constituted the proper rule of damages. Mobile & Montgomery Railway v. Jurey, 111 U.S. 584; Smith v. Griffith, 3 Hill, 333; Sturgess v. Bissell, 46 N.Y. 462; Cutting v. Grand Trunk Railway Co., 13 Allen, 381; McCune v. Railway Co., 52 Iowa, 600; Missouri Pacific Railway v. Fagan, 72 Texas, 127; Missouri Pacific Railway Co. v. Edwards, 14 S.W. Rep. 607; Hutchinson on Carriers, 2d ed., §§ 221, 770a. It was not material whether the plaintiffs intended to keep the cattle upon their farms, for breeding purposes, or to sell them upon the market. The depreciation in value of the cattle was the same in either case. It was claimed by the plaintiffs that many of the cattle were heifers which were bred in Scotland, and were in calf when imported, and that a number of them prematurely cast their calves in consequence of the collision, and that the value of those heifers was thereby greatly depreciated. The court instructed the jury that the burden was upon the plaintiffs to show that such abortions were the direct result of the collision. The question was passed upon by the jury and found in favor of the plaintiffs; and we cannot review their verdict upon the weight of the evidence. The bill of exceptions states that it contains all the evidence offered in the case on either side, and there was sufficient evidence to sustain the finding of the jury. Zeller v. Eckert, 4 How. 289; Express Co. v. Ware, 20 Wall. 543; Lancaster v. Collins, 115 U.S. 222; Chicago & Northwestern Railway v. Ohle, 117 U.S. 123. It was not necessary for the plaintiffs to show that the defendant had notice, at the time of the shipment, that the heifers were in calf, in order to render it liable for the depreciation in their market value, in consequence of the abortions which were caused by its negligence. It was not claimed by the plaintiffs that, on account of the heifers being with calf, any special care was necessary in transporting them; and the suits were not brought on account of the absence of any such special care. In Hart v. Pennsylvania Railroad, 112 U.S. *618 331, 340, it was said by this court: "As a general rule, and in the absence of fraud and imposition, a common carrier is answerable for the loss of a package of goods though he is ignorant of its contents, and though its contents are ever so valuable, if he does not make a special acceptance. This is reasonable, because he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them." See, also, Railroad Co. v. Fraloff, 100 U.S. 24; Baldwin v. Liverpool & Great Western Steamship Co., 74 N.Y. 125; McCune v. Railway Co., 52 Iowa, 600; Stewart v. Ripon, 38 Wisconsin, 584; 3 Sutherland on Damages, 191. The Circuit Court gave the correct rule of damages as to the heifers which lost their calves. If, through the negligence of the defendant, the heifers lost their calves, the difference between their market value, if they had arrived in calf, and their market value after losing their calves, constituted the amount of the plaintiff's damages. Missouri Pacific Railway v. Fagan, 72 Texas, 127; McCune v. Railway Co., 52 Iowa, 600. There is no ground for applying a special rule to this case, or for holding that the plaintiffs ought to have traced each animal and to have shown the amount received for it when sold. The Circuit Court correctly held that it was competent for the plaintiffs to show what the difference in value was, in the fall of 1883, when the cattle arrived in Saline or Howard County, between a heifer that was then with calf, and liable to have a calf soon, and one that had lost her calf. The plaintiffs may have received on the sale of the cattle more or less than their market value. The defendant might have brought out evidence as to what the animals were sold for by the plaintiffs, to contradict the evidence as to their market value; but the plaintiffs could not bind the defendant by the prices for which the animals were sold. The impracticability of adopting such a rule as is insisted upon by the defendant is pointed out in the opinions rendered on the motion for a new trial. Many of the cows were kept for months after their arrival in Missouri. Some of them were traded for ponies, and the ponies were sold at a loss. Others were sold *619 with a warranty that they would become breeders, and were afterwards taken back by the plaintiffs. Some were shipped from point to point in the West and sold. The suggested rule was, therefore, impracticable of application. The Circuit Court refused to instruct the jury that, unless the defendant knew that some of the cattle shipped by the plaintiffs were cows or heifers in calf, the plaintiffs were not entitled to recover for abortions, although caused by the collision, as, without such knowledge, damages on account of abortions could not have been in contemplation of the defendant at the time it received the cattle. Exception was made to such refusal; but we have already remarked sufficiently on the proposition involved. (3) The Circuit Court further instructed the jury that, when they had assessed the damages in each case, they might compute interest thereon at 6 per cent per annum, from the time suit was brought in each case, respectively; and the jury was directed to state in its verdict the amount of interest which it awarded in each case. In the Estill case, it awarded in its verdict, as interest, $2362.50, and in the Leonard case $11,880. The defendant excepted to that part of the charge which related to interest, and which is paragraph 10 contained in brackets in the margin. The defendant calls attention to the fact that interest was not claimed in the petitions, and that §§ 2126 and 2723 of the Revised Statutes of Missouri of 1879 do not, nor does any other statute of that State, authorize the recovery of interest in a suit for injury to property caused by negligence, and that the Supreme Court of Missouri has repeatedly so held. Section 2126 provides as follows: "The jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of the conversion or seizure." Section 2723 allows interest on moneys due on written contracts, on accounts, and sundry other money demands. In Kenney v. Hannibal & St. Jo. Railroad, 63 Missouri, 99, in 1876, the question arose whether, in a case of the loss of property set on fire by a locomotive engine on a railroad, the *620 jury were authorized to allow to the plaintiff, in addition to the value of the property destroyed, damages by way of interest on its value, not exceeding 6 per cent. The court said that it was not apprised of any statutory provision which allowed a jury to give interest for such damages; that there was no such provision in the statute concerning interest; and that § 7 of the act concerning damages, which allowed interest in cases of the unlawful conversion of property by the party sued would not, in terms or by analogous reasoning, embrace a case where no benefit could possibly have accrued to the defendant by the negligence which occasioned the destruction of the property. The judgment was reversed because of the allowance of interest. In Marshall v. Schricker, 63 Missouri, 308, in 1876, it was held that, in actions ex delicto, based upon the simple negligence of a party to whom no pecuniary benefit could accrue by reason of the injury thereby inflicted, interest was not allowable. The same ruling was made in Atkinson v. A. & P. Railroad, 63 Missouri, 367, in 1876. In Meyer v. A. & P. Railroad, 64 Missouri, 542, in 1877, which was an action for damages for the killing of a heifer through the negligence of a railroad company, the court held, citing two of the cases in 63 Missouri, and Judge Norton delivering its opinion, that the jury could not allow interest on the damages from the time they accrued. But, in 1878, in Dunn v. Hannibal & St. Jo. Railroad, 68 Missouri, 268, in an action to recover damages against a carrier, for negligence in transporting live stock, the court below having instructed the jury to allow interest on the damages at the rate of 6 per cent. from the institution of the suit until the verdict, the Supreme Court, Judge Norton delivering the opinion, held that the instruction was proper, citing the case of Gray v. Missouri River Packet Co., 64 Missouri, 47, 50, in which, in a case to recover damages for negligence by a common carrier in transporting an animal, the court below had directed the jury to add 6 per cent interest from the time the animal was shipped to the damages found, and the judgment *621 was affirmed, he himself delivering the opinion, and saying that it was a general rule, that, when goods were not delivered by a common carrier according to contract, the measure of damages was the value of the goods with interest from the day when they should have been delivered, less the freight, if unpaid. No allusion was made in either case to the cases in 63 Missouri, or to § 2126. In De Steiger v. Hannibal & St. Jo. Railroad, 73 Missouri, 33, in 1880, while Judge Norton was still a member of the court, it was held, in a suit for the destruction of hay by fire escaping from the defendant's locomotive through its negligence, that interest was not allowable in cases of that character, citing the three cases in 63 Missouri, and the case in 64 Missouri, above referred to. In Wade v. Missouri Pacific Railway, 78 Missouri, 362, in 1883, reference was made to the two cases to that effect in 64 Missouri, and 73 Missouri, and it was said that interest was not allowable in actions for negligence. In Kimes v. St. Louis &c. Railway, 85 Missouri, 611, in 1885, which was an action against a railroad company for damages for negligence in killing a horse and breaking a wagon by a train of cars at a public road crossing, the court below had instructed the jury to allow six per cent interest on the damages. The Supreme Court of Missouri, delivering its opinion by Judge Norton, held that the interest was not allowable, referring to the case in 73 Missouri; but, as the plaintiff remitted the amount of the interest, the judgment was affirmed, except as to the amount remitted. In The State v. Harrington, 44 Mo. App. 297, it was held, referring to the cases above cited from 63, 64, and 73 Missouri, that where an action ex delicto is based upon the simple negligence of the defendant, to whom no benefit had accrued or could accrue by reason of the injury or wrong, interest was not allowable. It may not, perhaps, be possible to reconcile with one another all of the foregoing cases; but, on the whole, we regard it as an established rule of the Supreme Court of Missouri, in the construction of the state statutes, that the jury is *622 not warranted in allowing interest in a case like the present, from the time suit was brought. When property is wrongfully injured or destroyed, it is supposed that the wrongdoer derives no benefit. The defendant cites the case of Shockley v. Fischer, 21 Mo. App. 551, as holding that interest is not allowable when it is not claimed in the petition. It is well settled as a general rule that the measure of damages in the case of a common carrier is the value of the goods entrusted to it for transportation, with interest from the time when they ought to have been delivered. Mobile & Montgomery Railway v. Jurey, 111 U.S. 584; Gray v. Missouri River Packet Co., 64 Missouri, 47; Dunn v. Hannibal & St. Jo. Railroad, 68 Missouri, 268; Hutchinson on Carriers, 2d ed. § 771; 1 Sutherland on Damages, 629. But when the matter appears to have been regulated by statute in the State, and the statute has been interpreted by its highest court, the regulation of the statute will be followed in the courts of the United States. We have considered all the questions raised by the defendant, and do not think it necessary to discuss them further. The judgment in the Estill case is affirmed as to the $8750 damages; but it is not affirmed as to the amount of interest, or any part thereof, awarded by the verdict or judgment. That judgment is modified as to such interest, and the case is remanded to the court below, with a direction to enter a judgment for the plaintiffs for $8750, being the damages assessed by the jury, with interest on such judgment from the time it shall be entered until it shall be paid, and for the costs and charges of the plaintiffs in the Circuit Court. The judgment in the Leonard case is affirmed as to the $44,000 damages; but it is not affirmed as to the amount of interest, or any part thereof, awarded by the verdict or judgment. The judgment is modified as to such interest, and the case is remanded to the court below, with a direction to enter a judgment for the plaintiffs for $44,000, being the damages assessed by the jury, with interest on such judgment *623 from the time it shall be entered until it shall be paid, and for the costs and charges of the plaintiffs in the Circuit Court. The costs of this court, of the plaintiffs in error and the defendant in error shall be paid, one-half of them by the plaintiffs in error and the other half by the defendant in error. NOTES [1] In these cases there is no controversy over the fact that the respective plaintiffs delivered to the defendant certain cattle to be by it transported over its railroad and delivered at the terminus of its line to plaintiffs or to some connecting carrier. Estill and Elliott appear to have delivered to the defendant 67 head of cattle, and Leonard Bros. appear to have delivered about 306 head of cattle. [1. Having received the cattle for the purpose of transportation, the defendant was bound to deliver the respective herds of cattle at the terminus of its line in as good condition as it received the same.] The complaint made is that defendant did not deliver the property in question at the terminus of its line in the condition that it received the same, and damages are claimed by the respective plaintiffs on that account. It is practically admitted (and you may take it as a conceded fact) that while these two herds of cattle were in defendant's custody and in transit to their destination a collision occurred at Nankin, Ohio, between two freight trains of the defendant in which the cattle were being transported. Now, the main and about the only question you will have to consider is the nature and extent of the injuries (if any) that were sustained by the cattle immediately in consequence of the collision. When you have settled those questions you will have practically decided the case, and it is to be hoped that you will give these questions a careful and fair consideration and decide the same according to the evidence and rules of law, which I will now state for your guidance. The law is that a common carrier like the defendant must pay the market value at the point of destination of all property entrusted to it for transportation which through its fault is lost or destroyed and is not delivered. [2. The law also is that if a carrier receives property for transportation and delivers it at the end of its route, but, through its fault, it is damaged and it fails to deliver it in the same condition as when received, it must pay the difference between the value of the property in its damaged condition at the point of destination and what the value of the property would have been at that place if delivered in the same condition as when it was received for transportation. These are the general rules of law which must be applied in the assessment of the damages in the two cases now on trial.] [3. The testimony tends to show that seven (7) head of Leonard Bros.' cattle (5 heifers and 2 bulls) were left at Nankin, Ohio, where the collision occurred, (either killed or very badly hurt,) and were never delivered at the point of destination or at the end of defendant's line. If you find such to be the fact you will allow Leonard Bros. for those seven (7) head their market value as shown by the evidence at the point of destination in Saline County at the time they should have arrived.] The other damages claimed by Leonard Bros. may be conveniently divided into three classes. [4. In the first place, it is contended by Leonard Bros. that some of the cattle in question died after they reached the point of destination, of injuries received in the collision at Nankin, Ohio. Abiel Leonard claims that 3 Galloway bulls died from such cause on his place. William H. Leonard claims that 3 heifers died from such cause on his farm, and Leverett Leonard says that 7 heifers died on his place after their arrival. Now, if the evidence in the case satisfies you that any of the cattle did die, as stated by these witnesses, and that their death was the direct result of injuries sustained by the collision, then you will allow Leonard Bros. the market value in Saline County, as shown by the testimony, of the cattle that so died.] [5. In the second place, it is claimed by Leonard Bros. that some of the other cattle received injuries of various kinds by the collision, which did not terminate fatally, but, nevertheless, lessened the market value of the cattle so injured. The class of injuries to which I now refer are strains, bruises, etc., which some of the cattle are said to have received. The plaintiffs themselves and Dr. Glover and Judge Sparks have spoken of about 48 head altogether that are said to have received such injuries, including no doubt, the 13 head that are said to have died. Dr. Glover and Judge Sparks say that they found 25 or 30 head of injured cows and heifers and 5 or 6 injured bulls. The plaintiffs themselves make the number of injured bulls somewhat greater. Abiel Leonard says he had 5 injured bulls in his portion of the herd. W.H. Leonard says he had 5 injured bulls in his herd. Leverett Leonard says that he had two bulls broken down in the back and loins and 8 others that were unserviceable for a year or more. You will recall their evidence on this branch of the case. I call your attention to this testimony for the purpose of saying that you should weigh it carefully and determine how many cattle, if any, received injuries by the collision of the character last described, and to what extent, if any, such injuries lessened their market value. If you are satisfied by the evidence that any of the cattle received injuries such as strains, bruises, etc., which rendered them less valuable in the market at the point of destination than they would have been but for such injuries, then you may allow Leonard Bros. on that account such reasonable sum as will in your judgment, under all the evidence, make good such depreciation in value.] [6. In the third place, it is claimed that certain cows and heifers that were with calf at the time of the collision, in consequence of the collision lost their calves, and damages are claimed on that account. There is evidence tending to show that about 94 or 95 head of the Leonard Bros. cows lost their calves after the collision. Abiel Leonard says that 25 head lost their calves on his place; William H. Leonard says that 27 head lost their calves on his place, and Leverett Leonard says that 43 head lost their calves on his farm. With reference to this matter I will say that if Leonard Bros. have satisfied you by the evidence that any cows or heifers that were with calf when the collision occurred, as the direct result of that collision, lost their calves, and that such premature casting of their calves made the animals less valuable in the market than they would have been but for such loss, then they are entitled to recover the amount of the depreciation in value of any of the animals that so lost their calves.] In this connection I instruct you, however, that the burden is on them to show not only that the cattle sustained injuries, but to furnish the evidence as to the result of such injuries, and evidence that will enable you to assess the damages with reasonable accuracy. Inasmuch as the cattle came into their possession shortly after the collision, and they thereafter had the custody of the cattle, the rule should be strictly enforced requiring them to show by satisfactory evidence the nature of the injuries received, the result of the injuries, and to what extent the market value was thereby impaired. What I have said about the assessment of damages in the case of Leonard Bros. applies equally well in the case of Estill and Elliott. This difference is to be noted in the two cases, however. None of the Estill and Elliott cattle appear to have been killed in the collision or to have subsequently died from injuries claimed to have been received in the collision. You will have no claim of that kind to consider in the Estill and Elliott case. In this case there is evidence tending to show specific injuries sustained by three bulls, one of which was injured in the testicles and two in the back or loins. W.N. Marshall and Benjamin E. Nance, who claim to have examined the Estill and Elliott cattle on their arrival, describe injuries to three bulls said to have been hurt in the back, loins, or testicles. They also say generally that from 10 to 15 cows and heifers were in very bad condition, and that one cow had lost an eye. The plaintiffs themselves have given some testimony as to the condition of their herd on arrival at Estill's. I call your attention to their testimony and ask you to consider it carefully. [7. In the Estill and Elliott case there is also evidence tending to show that 5 of Estill and Elliott's cows aborted their calves before they reached Estill's; that 4 or 5 aborted their calves prior to October 26, 1883, when a portion of the herd was taken to Kansas City, and two afterwards, making 11 or 12 in all. With reference to these two kinds or species of injuries claimed to have been sustained by the Estill and Elliott cattle, I instruct you, as before, that if the evidence shows to your satisfaction that any of the animals sustained such injuries as the immediate result of the collision, and that the injuries so sustained lessened the market value of the stock so injured at the point of destination, then you will be authorized to allow Estill and Elliott such reasonable sum as in your opinion, under the evidence, will make good the depreciation in the value of any of the animals that you find to have been injured either by strains, bruises, etc., or by losing their calves.] Now, gentlemen, on the other side of this case you have testimony of Mr. Baldwin, Mr. McCullough, and Mr. Geagan, who claim to have examined the stock of Estill and Elliott and Leonard Brothers on the 27th and 28th days of September, 1883, (11 and 12 days after the collision,) with a view of ascertaining the injuries the stock had received. I will direct your attention to the salient points of their testimony: Mr. Baldwin says that among the Estill and Elliott cattle he found, in a lot of 49 cows and calves, one or two a little lame. In another lot, consisting of two bulls and one heifer, he found the heifer had a sore foot and the bulls were a little stiff, and that one other heifer was pointed out as having lost her calf. McCullough's testimony with reference to the same herd is to the effect that he found one bull a little stiff, one (1) cow very stiff, two other bulls (one in a stable and one in a pasture) both a little stiff, and one heifer with a sore foot. In relation to the Leonard cattle, Mr. Baldwin says he found 3 stiff or lame heifers in a herd of 35 animals; one cow a little stiff in a herd of 29 cows, and three that were said to have lost their calves; one heifer also that was said to have lost her calf; one lame cow in a herd of 30 animals; one other cow in a herd of 32 animals that was said to have lost her calf; one bull in a herd of 17, lame in the fore leg; two other bulls in a herd of (9) animals, slightly injured, one lame or stiff and one with slight flesh wound; one other bull with hoofs swollen and wound in left hind leg. Mr. McCullough's testimony as to the same herd (that is, with reference to the Leonard cattle) is to the following effect, namely, that he found 3 footsore heifers (one very sore) in a herd of 35 animals; 3 heifers said to have lost their calves in a herd of 29 head; 2 lame bulls in a herd of 5 animals, one footsore, and one said to be not fit to serve cows; 2 lame cows in a herd of 26 cows and calves; 1 bull noticeably lame in a herd of 17 bulls; 1 bull with a slight wound in his thigh; and one other with a slight flesh wound. All three of these witnesses say that the injuries to the two herds were not greater or different than might be expected to result from an ordinary long railroad journey, and that none of the injuries, in their judgment, were serious or liable to produce permanent disability. From a summary of the evidence, as I have noted it, gentlemen, the testimony for the plaintiffs tends to show that about 48 animals in Leonard Bros.' herd, (18 bulls and about 30 cows) after their arrival in Saline County, showed visible evidence of having been injured in the collision, whilst according to the evidence for defendant there were only 10 animals (5 bulls and 5 cows and heifers) which bore any visible marks of having been hurt. In the Estill and Elliott case it appears from the plaintiffs' testimony that 3 bulls and from 10 to 15 cows sustained injuries, the injuries to the bulls being of a serious character, whilst according to the testimony of defendant's witnesses only 4 animals (3 bulls and 1 cow) bore any evidences of injuries. In the foregoing summary you will understand that I do not include cows or heifers that are said to have lost their calves. I refer only to animals that are said to have shown outward signs of injury. [8. In the light of the testimony, both for the plaintiffs and defendant, to which I have alluded, and in the light of any other testimony in the case which you may recall, and bearing in mind that the burden of proof is on the plaintiffs to show that the cattle in question received injuries and the extent and result of such injuries, you will have to determine the following important questions of fact, namely: 1st. How many cattle in each herd were injured in any manner, in consequence of the collision, to such extent as to lessen their market value at the point of destination? 2d. How many of Leonard Bros.' cattle were killed or badly injured and left at Nankin, Ohio, in consequence of the collision, and what would have been the value of such cattle in Saline County, at the time they should have arrived, if they had been delivered in the condition in which the defendant received them? 3d. How many of Leonard Bros.' cattle (if any) died of injuries received by the collision after they had been delivered to Leonard Bros., and what was the reasonable market value in Saline County of those cattle if they had arrived uninjured? 4th. How many animals in each herd lost their calves as the direct result of the collision, and to what extent did such loss of their calves lessen their market value at the point of destination? 5th. What number of cattle in each herd, besides those that are said to have died or lost calves, were otherwise injured by the collision, by strains, bruises, etc., so as to materially lessen their market value, and what was the amount of such depreciation in value?] To arrive at a just and intelligent verdict in these cases you will have to determine from the testimony each of the foregoing questions. There are one or two other matters to which I will refer briefly. There is testimony in the case tending to show that in the last days of August, 1883, some of Leonard Bros.' cattle (and possibly some few of Estill and Elliott's cattle) found some Paris green and ate it at Concord, Mass. The proof tends to show that 5 head of Leonard Bros.' cattle died of poison at Concord, and that about 30 other animals were made sick by it and were treated. You will understand, of course, that if any of Leonard Bros.' cattle that are said to have died after they reached Saline County, or if any of the cows in either herd that are said to have lost their calves, died or lost calves in consequence of eating Paris green; then the railroad company is not responsible for the loss so occasioned. There is also some testimony tending to show that when one or more cows in a herd give birth to calves prematurely, or abort, as the saying is, other cows in the same herd, unless separated from the cows that have aborted, are liable to cast their calves through sympathy or contagion, although they have themselves received no physical injury. This is a matter that requires your attention. If it be true and you so find that cows will abort through sympathy or by contagion, then it was the plaintiffs' duty, if they could have done so, to have separated cows that had aborted from other pregnant cows, and to have done so with reasonable and ordinary diligence; and if plaintiffs failed to exercise reasonable and ordinary diligence and caution in that regard, and any cows lost their calves in consequence of such negligence, then the defendant is not liable for such losses, as they were not the immediate and direct result of the collision, but the result of plaintiffs' neglect. I will also say that defendant cannot be held liable for losses occasioned by premature birth of calves, or by the death of stock, if such births or deaths were the result of overfeeding or the result of change of climate or fatigue or heat or of a long voyage on the ocean or by rail, or of all such causes combined. In other words, gentlemen, the defendant is only liable for such premature births and deaths as are shown by the testimony to have been directly occasioned by injuries sustained in the collision. [9. The question as to what causes led some of the animals in the two herds to lose their calves or to die after arrival is a question which you may find some difficulty in solving, as in the nature of things these are questions that do not admit of solution by positive or direct proof. I will only say that you must apply your best judgment and your experience to the solution of these questions, giving to all the testimony, including that of the experts, such weight as you think it fairly deserves.] If, upon a fair consideration of the subject, you deem the evidence insufficient to establish what was the cause of the abortions, then it will be your duty to disallow the plaintiffs' claims for damages on that account. If the evidence establishes to your satisfaction that some of the abortions were the direct result of the collision, but leaves you undecided as to the cause of other abortions, then you should allow damages for such as you are satisfied were the result of the collision and disallow the plaintiffs' claims as to the residue. [10. When you have assessed the damages in each case you may compute interest on the damages in each case at six (6) per cent per annum from the time suit was brought — on November 21st, 1883, in the Estill case and November 27, 1883, in the Leonard case — to this date. I will further direct you to state in your verdict the amount of interest which you award in each case.] In conclusion, I ask you to give the cases a careful and unbiassed consideration. Consider the evidence in behalf of both parties in the same spirit of fairness that you would have it considered if you were yourselves personally interested as plaintiffs or defendants in the result of the suit.

Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 1 of 7 AMENDED JUDGMENT IN A CRIMINAL CASE v. Date of Original Judgment: (Or Date of Last Amended Judgment) Reason for Amendment: THE DEFENDANT: Title & Section Nature of Offense Offense Ended Count Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 2 of 7 IMPRISONMENT RETURN Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 3 of 7 SUPERVISED RELEASE MANDATORY CONDITIONS (check if applicable) (check if applicable) et seq (check if applicable) (check if applicable)  Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 4 of 7 STANDARD CONDITIONS OF SUPERVISION U.S. Probation Office Use Only Overview of Probation and Supervised Release Conditions Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 5 of 7 SPECIAL CONDITIONS OF SUPERVISION  Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 6 of 7 CRIMINAL MONETARY PENALTIES Assessment JVTA Assessmen Fine Restitution TOTALS $ $ $ Amended Judgment in a Criminal Case Name of Payee Total Loss** Restitution Ordered Priority or Percentage TOTALS  Case 1:10-cr-10037-WGY Document 20 Filed 08/25/20 Page 7 of 7 SCHEDULE OF PAYMENTS A B C D E F (including defendant number) 

571 F. Supp. 489 (1983) DURANTE BROS. AND SONS, INC., Plaintiff, v. FLUSHING NATIONAL BANK, Jack Farber and Richard Gelman, Defendants. No. 80 C 1385. United States District Court, E.D. New York. September 27, 1983. *490 Beldock Levine & Hoffman, New York City (Melvin L. Wulf, John B. Levinson, Helene Fromm, New York City, of counsel), for plaintiff. Shea & Gould, New York City (Milton S. Gould, Fran M. Jacobs, Peter C. Neger, New York City, of counsel), for defendants. MEMORANDUM AND ORDER NICKERSON, District Judge. Plaintiff, a New York corporation, brought this action against Flushing National Bank (the Bank) and two of its officials, claiming violations of Title IX, Racketeer Influenced and Corrupt Organizations, of the Organized Crime Control Act of 1970 (the Act), 18 U.S.C. §§ 1961 et seq., the Federal banking laws, 12 U.S.C. §§ 1 et seq., and New York state law. Defendants moved for summary judgment on six of the seventeen counts in the amended complaint, urging that (1) counts one, three and five are barred by the statute of limitations, (2) counts two and four, alleging violation of four federal banking law provisions, are either time barred or do not afford a private right of action, and (3) count six fails to state a claim under the Act. The other eleven counts assert pendent state claims that defendants say should not survive dismissal of the federal claims. The facts underlying the first count are, according to plaintiff, in substance the following. Commencing evidently in 1973 the plaintiff and Bank had a borrowing relationship on an unsecured basis. In that year the Bank also lent Louis Durante, Sr., (father of John Durante, plaintiff's president and sole shareholder) $41,800 to invest in a real estate venture by Jerder Realty Services, Inc. (Jerder), a New York corporation, and charged an usurious rate of interest. In November 1974 defendant Farber, the Bank's chief executive, director and controlling shareholder, got the Bank to make Jerder a $200,000 mortgage loan, and personally guaranteed it in return for a $100,000 investment in Jerder calling for specified future returns. After November 1974 the Bank made further loans to Jerder up to the federal lending limit. Then Farber had the Bank make loans to a partnership composed of Jerder's principals including himself and Louis Durante, Sr., the funds to be used as capital for Jerder. By July 1975 the Bank's unsecured loans to plaintiff totalled $142,500. In that month plaintiff bought a real estate parcel (Parcel A) in Brooklyn, and in October 1975 requested from the Bank a $100,000 mortgage loan to make the purchase of a contiguous parcel (Parcel B). At that time Jerder was in financial difficulty, and its loan payments to the Bank were past due. When defendants received plaintiff's request they evolved a fraudulent scheme to defraud plaintiff and to offset the Bank's and Farber's anticipated losses on the Jerder loans. Pursuant to the scheme defendants falsely represented that the Bank *491 would make the $100,000 mortgage loan to plaintiff. In reliance on this representation plaintiff got short term, thirty day financing, pledging its accounts receivable, and bought Parcel B for $142,500 on December 12, 1975. Defendants knew that plaintiff's business would suffer unless it could replace the short term financing with a mortgage loan. On December 18, 1975 defendants told plaintiff that the Bank would not make the $100,000 mortgage loan. Further, defendants said they would require immediate payment of plaintiff's unsecured loans of $142,500 (which had theretofore been regularly extended) unless plaintiff gave the Bank a second mortgage in that amount on Parcel A, guaranteed by the Durantes and others. On the same day the plaintiff executed the second mortgage. Plaintiff repaid the short term financing with funds it otherwise could have used in its business. On February 24, 1976 defendants coerced John Durante to have plaintiff pay the Bank the $41,800 owed to it by Louis Durante, Sr., by increasing the mortgage by that amount and giving the Bank a first mortgage on Parcel B and a second mortgage on Parcel A in the total amount of $181,925. On March 10, 1976 plaintiff executed a consolidated mortgage for that amount covering both parcels. The Bank charged plaintiff exorbitantly for the time spent by the bank's officials and for legal fees and closing costs. These charges and the $41,800 were therefore criminally usurious interest on the original loans to plaintiff of $142,500. On April 26, 1978 the Bank, claiming default, brought an action in state court to foreclose the consolidated mortgage. That action has been stayed pending termination of this action. The first count concludes that defendants willfully violated the Act, 18 U.S.C. § 1962, in that the Bank derived income through collection of an unlawful, usurious debt and used the income in its operation, and defendant officials participated in the collection of the unlawful debt and conspired to that end. The second count repeats the allegations of the first and concludes that the individual defendants violated federal law by (a) causing the Bank to charge interest made usurious by 12 U.S.C. § 85, (b) making false entries in the Bank's books in violation of 18 U.S.C. § 1005, (c) furnishing false reports to the Comptroller of the Currency (the Comptroller) as to the Bank's condition in violation of 12 U.S.C. § 161, and (d) making false statements to influence the Bank's action on the consolidated mortgage in violation of 18 U.S.C. § 1014. The third count repeats all previous allegations and asserts that starting April 6, 1976 through 1977 the Bank extended overdraft privileges to plaintiff and received, with the participation of the defendant officials, usurious interest in violation of the Act, 18 U.S.C. § 1962. The fourth count alleges that in connection with the receipt of interest on the overdrafts defendant officials violated the same laws as are referred to in the second count. The fifth count alleges that by commencing the foreclosure action in April 1978 defendants violated the Act by collecting an unlawful debt, 18 U.S.C. § 1962. The sixth count alleges that, in order to execute their scheme to defraud, defendants caused to be mailed to plaintiff during the period January 1976 through February of 1978 monthly bank statements of account at the Bank and on March 20, 1978 a letter, thus engaging in a pattern of racketeering activity in violation of the Act, 18 U.S.C. § 1962. I Defendants argue that counts one, three and five are time barred. All three counts claim a violation of the Act in that the Bank received income derived from "collection of an unlawful debt" and used the income in the Bank's operation, or that defendant officials participated in the Bank's collection of an unlawful debt or conspired to do so. *492 In 18 U.S.C. § 1962(a) the Act makes it unlawful for a person to use income in the operation of an enterprise affecting interstate commerce where the income is derived either (i) "from a pattern of racketeering activity" (including various statutory frauds as defined in 18 U.S.C. § 1961(1)(B)) or (ii) "through collection of an unlawful debt." The Act also prohibits participation by a bank employee in either of those types of violations, 18 U.S.C. § 1962(c), or a conspiracy to commit them, 18 U.S.C. § 1962(d). Under 18 U.S.C. § 1964 a person injured by a violation of section 1962 may sue for threefold damages, plus costs and attorneys fees. The Act thus makes illegal two different kinds of activities pertinent to the claims in the amended complaint. One kind is engaging in "a pattern of racketeering activity," as exemplified by the alleged mail frauds set forth in count six. The other is the "collection of an unlawful debt," as claimed in counts one, three and five. The question raised by defendants' motion as to those three counts is what limitation period applies to a claim based on the Act's prohibition against collection of an unlawful debt. The parties agree that since the Act contains no limitations period, the court must look to the most analogous New York State statute. Defendants point to section 215(6) of the New York C.P.L.R., requiring "an action to recover any overcharge of interest or to enforce a penalty for such overcharge" to be brought within one year. This action was brought on May 21, 1980, more than two years after the last interest payment on the consolidated mortgage on December 19, 1977. To the extent that plaintiff was injured by the payment of usurious interest and seeks to recover that interest, and a penalty for the overcharge, the claim falls squarely within the language of C.P.L.R. § 215(6). Plaintiff argues, however, that the three counts allege more than a usury claim, that the collection of usurious interest was only part of a scheme to defraud embracing other elements, and that therefore the court should apply the six year statute contained in C.P.L.R. § 213(8), providing that "an action based on fraud" must be commenced within six years. Plaintiff's assertions of fraud do not alter the federal predicate on which the three counts rest, namely, the Act's prohibition against the "collection of an unlawful debt." The addition of allegations of false representations to a claim based on such a predicate does not transmogrify the claim into one "based on fraud." The nature of the claim is determined by the law which gives rise to it. The fraud allegations, while pertinent to the claim in count six of "racketeering activity," are superfluous to a claim for "collection of an unlawful debt." This court does not read McNellis v. Raymond, 420 F.2d 51 (2d Cir.1970), as requiring application of the six year fraud limitation. There the "basic theory" for the claim of a bankruptcy trustee to recover payments of a bankrupt to a creditor was that the payments were fraudulent because made without consideration while the debtor was insolvent. Plaintiff says that the Act's explicit grant of a civil remedy, including threefold damages and attorney's fees, bespeaks a broad national purpose to drive corruption from the marketplace, an end which should be advanced by choosing a longer limitation period. No doubt when Congress has provided no federal statute of limitations and has left the matter to the analogous state law, there may be instances in which the state has permitted so short a time to bring suit as effectively to frustrate federal policy. In such cases it may be fair to imply a congressional purpose to allow a longer period. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463, 465, 95 S. Ct. 1716, 1721, 1722, 44 L. Ed. 2d 295 (1975). But there is no reason to suppose that Congress believed one year to be an unreasonably short period to sue to recover an overcharge of interest or a penalty for the overcharge. And in this case plaintiff was clearly not without sophistication. There is no suggestion that it did not know what interest it was paying, was in doubt as to *493 the nature of the banking transactions into which it entered, or lacked access to legal counsel. In fact the amended complaint is full of allegations that plaintiff felt aggrieved and coerced by the actions of the Bank. There is no merit to plaintiff's argument that if the six year fraud limitation in C.P. L.R. § 213(8) does not govern, the court should adopt the three year period of C.P. L.R. § 214(2), applicable to actions "to recover upon a liability, penalty or forfeiture created or imposed by statute." Plaintiff's brief quotes only this part of the section and omits the concluding words: "except as provided in sections 213 and 215." Counts one, three and five are barred by C.P.L.R. § 215(6). II Counts two and four allege violations by the individual defendants of four federal statutory provisions. A. The first is 12 U.S.C. § 85, which establishes the maximum interest rate a national bank may charge. The counts assert that Farber caused the Bank to charge interest in excess of this maximum. Defendants contend that the exclusive remedy for a violation of the section is a suit against the Bank under 12 U.S.C. § 86, which permits the person who has paid the excess interest to bring an action to recover from the Bank twice the amount of the interest thus paid, "[p]rovided, that such action is commenced within two years from the time the usurious transaction occurred." Here, of course, more than two years elapsed before suit was brought. Plaintiff urges that the remedy afforded by 12 U.S.C. § 86 against the Bank does not preclude an action against the Bank's directors under 12 U.S.C. § 93. That section provides that if the directors of a national bank knowingly violate "any of the provisions" of the chapter 2 of the federal banking law (which includes 12 U.S.C. § 85), the bank's franchise shall be forfeited if the violation is determined in a suit brought by the Comptroller, and in cases of "such violation" every director who participated in it shall be held liable for all damages which the bank, its shareholders, "or any other person" shall have sustained "in consequence of such violation." The court need not decide whether 12 U.S.C. § 86 precludes an action against a director of the Bank to recover usurious interest charged by it. As noted above, 12 U.S.C. § 93 contains no statute of limitations. Even if the section permits plaintiff to maintain a claim for a violation of 12 U.S.C. § 85, the court must refer to the analogous state limitation. For the reasons stated in the discussion of counts one, three and five the claim against Farber to recover damages arising out of payment of usurious interest is barred by C.P.L.R. § 215(6). B. In counts two and four plaintiff also seeks damages against both individual defendants for violation of two criminal provisions, 18 U.S.C. §§ 1005 and 1014. Section 1005, in pertinent part, makes it a crime for an officer or director of a national bank to make "any false entry in any book, report or statement" of the bank "with intent to injure or defraud such bank, or any other company." Section 1014, so far as relevant, makes it a crime for anyone knowingly to make "any false statement" for the purpose of "influencing in any way the action" of a national bank on any application or loan. Plaintiff bases its claim for damages for violation of these two provisions on 12 U.S.C. § 503. That section recites, in substance, that a director or officer of any national bank who knowingly violates any of the provisions of, among other sections, 18 U.S.C. §§ 1005 and 1014 shall be personally liable for "all damages" which the bank, its shareholders, "or any other person" shall have sustained "in consequence of such violation." This language of 12 U.S.C. § 503 makes it clear that plaintiff may sue the individual defendants for alleged violations of 18 U.S.C. §§ 1005 and 1014, provided the damages *494 are "in consequence" of the violations. The "consequences" of any given event are, in a literal sense, innumerable. Causation is a web not a chain, Schwimmer v. Sony Corp. of America, 471 F. Supp. 793, 795 (E.D.N.Y.1979), aff'd, 637 F.2d 41 (2d Cir. 1980), and every act has some effect on myriads of other occurrences, many hardly to be anticipated in the common experience of humankind. The purpose of section 503 certainly could not have been to reach all of these. A pragmatic and in the end more or less arbitrary decision must be made as to where to draw the line, having in mind both the dominant purpose of the legislation and the consequences of extending liability beyond a given point. Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2d Cir.1971), cert. denied, 406 U.S. 930, 92 S. Ct. 1776, 32 L. Ed. 2d 132 (1972). The papers before the court do not establish the kind and degree of causal connection between the alleged violations of 18 U.S.C. §§ 1005 and 1014 and the damages plaintiff claims. Before trial the court will require an offer of proof by plaintiff so that the court may decide whether the alleged damages could be deemed the "consequence" of the violations. C. The other statute which counts two and four allege the individual defendants violated is 12 U.S.C. § 161. That provides, in pertinent part, that a national bank shall make certain reports, verified and attested by certain officers and directors, to the Comptroller. Counts two and four assert that Farber caused the Bank to file false reports. Plaintiff also bases this claim on 12 U.S.C. § 93, discussed above, and says that plaintiff is an "other person" who has sustained damages "in consequence of" the participation by the individual defendants in filing reports with the Comptroller. Defendants argue that only the Comptroller has standing to sue for violation of 12 U.S.C. § 161, and indeed, as recited above, 12 U.S.C. § 93 provides that a violation by directors of provisions of the applicable banking laws shall be determined in a suit brought by the Comptroller, "[a]nd in cases of such violation" a director who participated in the violation shall be liable for the damages sustained by the bank, its shareholders, or any other person "in consequence of such violation." One possible reading of the section would be to require a successful suit by the Comptroller before actions by others could be instituted. But the courts have not so construed the language and have permitted shareholders to sue for a violation of 12 U.S.C. § 161 before the Comptroller has prevailed. See Chesbrough v. Woodworth, 244 U.S. 72, 37 S. Ct. 579, 61 L. Ed. 1000 (1917). If an injured "shareholder" may sue, so too may "any other person," provided that the person sustains damages "in consequence of such violation." It is reasonable to say that a shareholder, such as the plaintiff in the Chesbrough case, who relied to his detriment on a false report to the Comptroller, sustained damage "in consequence of" the violation. The injury was immediately and directly the result of the false report. It is more difficult to see why plaintiff's alleged damages should be thought "in consequence of" the alleged false reports. Plaintiff is not said to have relied on the reports, and presumably its alleged damages stemmed from the failure of the Comptroller to take such action as he might have, had accurate reports been filed. However, the court will not determine the question before an offer of proof by plaintiff. III Count six alleges that, in order to execute the scheme to defraud, defendants mailed bank statements of plaintiff's accounts from January 1976 through February 1978 and a letter dated March 20, 1978, asking John Durante to arrange a time to meet with the Bank officials to "come to some conclusions" as to plaintiff's dealings with the Bank. *495 Plaintiff says that by mailing these items and a demand letter of January 11, 1978 preparatory to bringing the foreclosure action, defendants participated in "a pattern of racketeering activity." Under 18 U.S.C. § 1961(1) "racketeering activity" includes any act indictable under 18 U.S.C. § 1341 (the so-called mail fraud statute), and a "pattern of racketeering activity" means the commission within ten years of at least two acts indictable under various statutes including the mail fraud statute. Defendants urge that the mailings of the bank statements and the letters were not "for the purpose of executing" the scheme as the mail fraud statute, 18 U.S.C. § 1341, requires. According to defendants the bank statements merely memorialized the transactions that had taken place in plaintiff's account for the preceding month and could have no effect on the success or failure of the alleged scheme. Whether the mailings were part of an attempt to collect loans which plaintiff alleges it was fraudulently induced to assume is a question of fact which this court cannot decide on a motion for summary judgment. If plaintiff can establish that the mailings were part of such an attempt, the jury would be entitled to find that they were made for the purpose of executing the alleged fraud. United States v. Maze, 414 U.S. 395, 400, 94 S. Ct. 645, 648, 38 L. Ed. 2d 603 (1974); United States v. Marando, 504 F.2d 126, 130 (2d Cir.1974). Defendants urged in their initial brief that no claim under the Act exists where plaintiff does not allege that defendants are tied to organized crime. Subsequently the Court of Appeals for the Second Circuit in Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983), said that the language of the statute did not premise a violation of the Act on proof of a connection with organized crime. While this was dictum, it was carefully considered, and this court treats it as binding. IV Defendants' motion to dismiss counts one, three and five and those parts of counts two and four which allege violations of 12 U.S.C. § 85 is granted. The motion is otherwise denied. So ordered.

125 F.3d 859 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.William Roger REAVES, Petitioner-Appellant,v.UNITED STATES Parole Commission, Respondent-AppelleeandP.W. KEOHANE, Warden, Respondent. No. 96-56058. United States Court of Appeals, Ninth Circuit. Submitted Sept. 12, 1997.2Decided Oct. 1, 1997. 1 Appeal from the United States District Court for the Central District of California, No. CV-94-04042-TJH; Terry J. Hatter, Jr., District Judge, Presiding. 2 Before: PREGERSON and HAWKINS Circuit Judges, and WEINER,3 Senior District Judge. MEMORANDUM1 3 William Roger Reaves, a federal prisoner, appeals pro se the district court denial of his 28 U.S.C. § 2241 habeas corpus petition. In the petition, Reaves challenges the United States Parole Commission's decision setting his presumptive parole release date at 126 months. We affirm. 4 The facts of Reaves' criminal conduct are known to the parties and will not be repeated here except as required to flesh out our discussion. Reaves argues that the Commission calculation of his prior German hashish conviction as a Category 6 offense and its calculation of his conviction under the Travel Act, 18 U.S.C. § 371, as a Category 6 offense were arbitrary and capricious because they were not supported by the record. 5 While we review the district court's denial of a habeas petition de novo, Nigro v. Sullivan, 40 F.3d 990, 993 (9th Cir.1994), our review of the Commission's decision is extremely narrow. If the Commission's decision involved the exercise of judgment among a range of possible choices or options, it is unreviewable even for an abuse of discretion. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987). While we may inquire whether the Commission had good cause to depart upward from a guideline range, we may only inquire whether that showing was arbitrary, irrational, unreasonable, irrelevant, or capricious. Id. (citing Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir.1986) (en banc)). As the Commission's calculation of his offense behavior is not reviewable, his appeal will be dismissed in this regard. 6 Reaves also argues the Commission acted arbitrarily, irrationally, unreasonably, or capriciously when it determined good cause existed to justify a presumptive parole release date outside Reaves' parole guideline range. While Reeves is correct that our standard of review of this issue is an arbitrary or capricious standard, the facts of record present a clear foundation for the Commission's good cause decision. 7 Reeves' primary assertion is that the Commission acted improperly in 1994 when it used his foreign escape attempts and his having previously absconded from supervision to justify departing upwards, when those factors were not cited in the Commission's original determination in 1992 and the foreign escapes were not in themselves a violation of applicable law. The Commission had clear discretion to consider his foreign escape attempts as grounds to depart upward when it reconsidered his release date. 8 In its initial calculation, the Commission used the foreign escapes as part of the guidelines calculation. After Reeves filed his habeas petition, the Commission recognized it had erred when it considered the foreign escapes in calculating his salient factor score and recalculated it without reference to the escapes. In its discretion, it then determined the resultant guidelines underrepresented Reeves' risk of again violating his parole when released. Reeves cites no legal authority to prevent the Commission from considering such obviously relevant factors. To the contrary, the Commission's regulations state that "aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed." 28 C.F.R. § 2.20(d); see also Walker, 816 F.2d at 1317 (aggravating circumstance may be used either to justify a decision above the presumptive parole range or to increase an offense rating). 9 In addition, it bears noting that even if the Commission erred in considering the foreign escapes, Reeves makes no cogent argument that the Commission erred in citing the other factors it used to justify an upward departure. The Commission also cited the facts that Reeves was a major drug dealer, a sophisticated career criminal, and continued in the drug business even after being convicted and while a fugitive. 10 Reeves also contends the Commission was arbitrary in failing to consider the mitigating factor that Reeves helped the German authorities prosecute an IRA terrorist. Again, the record does not support this assertion. The Commission did consider this factor but decided it did not merit an earlier release date because his cooperation had already been rewarded by the German government's decision not to seek his extradition to complete his sentence. Accordingly, we conclude the Commission's decision to set his presumptive release date at 126 months was not arbitrary. 11 AFFIRMED. 2 The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); Ninth Circuit Rule 34-4 3 Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation 1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

Exhibit 10.57   SECOND AMENDMENT TO THE US AIRWAYS GROUP, INC. 2003 NONEMPLOYEE DIRECTOR DEFERRED STOCK UNIT PLAN   This Second Amendment to the US Airways Group, Inc. 2003 Nonemployee Director Deferred Stock Unit Plan (the “Plan”) is made and entered into this              day of                     , 2004, by US Airways Group, Inc. (the “Corporation”).   W I T N E S S E T H:   WHEREAS, the Corporation maintains the Plan, which is administered by the Human Resources Committee (the “Committee”) appointed by the Board of Directors of the Corporation (the “Board”), to provide for grants of deferred cash payments based on the value of Corporation Class A Common Stock (“Deferred Stock Units”) to nonemployee members of the Board; and   WHEREAS, the formula for grants under the Plan does not make any provision for grants to directors who begin service on the Board during a given year; and   WHEREAS, the Corporation wishes to amend the Plan to provide for a prorated grant of Deferred Stock Units under the Plan upon an individual’s initially becoming a member of the Board during the year of service for members of the Board; and   WHEREAS, Section 7.1 of the Plan permits the Board to amend the Plan at any time, subject to consent of the participants for any amendment that would adversely affect, in any way, the rights of such participants;   NOW, THEREFORE, the Corporation hereby amends the Plan as follows:   1.   Section 5.1 of the Plan shall be amended to read as follows:   “5.1 Grants to Eligible Directors.   (a) Accounts. The Corporation shall establish a bookkeeping account for each Eligible Director upon adoption of the Plan.   (b) Annual Grant. On the first business day following the annual meeting of stockholders of the Corporation held in each year subsequent to 2003 and prior to the termination of the Plan, the bookkeeping account of each Eligible Director elected at that shareholders meeting shall automatically be credited with a number of Deferred Stock Units equal to the quotient obtained by dividing $10,000 by the then Fair Market Value (rounding to the closest tenth of a Deferred Stock Unit).   (b) Grant for Mid-Year Elections. With regard to any Eligible Director who is elected or appointed as a member of the Board of the Corporation on any date other -------------------------------------------------------------------------------- than the date of the annual meeting of shareholders, on the first business day following the date of election or appointment of such individual as an Eligible Director of the Corporation, the bookkeeping account of such Eligible Director shall automatically be credited with a number of Deferred Stock Units (rounding to the closest tenth of a Deferred Stock Unit) equal to: the quotient obtained by dividing $10,000 by the then Fair Market Value, multiplied by a fraction equal to the number of days between the Date of Grant and the first anniversary of the date of the most recent annual meeting of the stockholders of the Corporation occurring before the Date of Grant, divided by 365.”   2.   This Amendment shall be effective as of August 1, 2004.   3.   Except as specifically amended hereby, the Plan shall remain in full force and effect.   IN WITNESS WHEREOF, the Corporation has caused its duly authorized officer to execute this Second Amendment.   US AIRWAYS GROUP, INC. By:     --------------------------------------------------------------------------------   Name:     --------------------------------------------------------------------------------   Title:     --------------------------------------------------------------------------------   Page 2

Citation Nr: 0832375 Decision Date: 09/22/08 Archive Date: 09/30/08 DOCKET NO. 07-06 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, including as a result of herbicide exposure. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from September 1966 through August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The medical evidence shows that the veteran has chronic and progressive peripheral neuropathy, rather than acute or subacute peripheral neuropathy. 2. The veteran's service medical records do not show any symptoms of peripheral neuropathy at any time during active service. 3. The veteran's auditory thresholds in each ear are 40 decibels or greater at 2000, 3000, and 4000 Hertz, and the speech audiometry was less than 94 percent, bilaterally. 4. There is no evidence indicating that the veteran's bilateral high frequency sensorineural hearing loss or his tinnitus initially manifested in service. CONCLUSIONS OF LAW 1. The veteran's peripheral neuropathy was not incurred during active service, nor can such incurrence be presumed. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a), 3.307(a)(6), 3.309(e) (2007). 2. The veteran's hearing loss was not incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a), 3.385 (2007). 3. The veteran's tinnitus was not incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking to establish service connection for peripheral neuropathy, hearing loss and tinnitus. Generally, for service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). See also Pond v. West, 12 Vet. App. 341, 346 (1999). Peripheral Neuropathy The veteran contends that he is entitled to presumptive service connection for his peripheral neuropathy due to herbicide exposure during his active duty Vietnam tour. His service records confirm that he was in the Republic of Vietnam from May 1967 through May 1968. As a result, he is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii) (2007). Acute and subacute peripheral neuropathy will be service connected if it becomes manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2007). So, the question becomes whether the veteran's peripheral neuropathy is acute or subacute in nature, such that service connection may be granted on a presumptive basis. The medical evidence in this case includes reports from two private treating physicians, as well as a VA peripheral nerve examination report. In a September 2003 report, the veteran's family physician discussed the veteran's myelopathy of uncertain etiology, and noted that the veteran had no family history of specific neurologic disease and that post traumatic neurologic disease had been ruled out. The doctor went on to opine that "it is at least as likely as not that [the veteran's] myelopathy of uncertain etiology is the result of the exposure to Agent Orange during the the Vietnam conflict. Veteran's with neurologic diseases of an unusual nature have been identified as related to their exposure to Agent Orange on multiple occasions." The Board notes that this physician submitted an essentially identical report in February 2006. In April 2004, a physician from the Mayo Clinic submitted a comprehensive report of treatment and a summary of diagnoses. At that time, the veteran was diagnosed with progressive neurologic disorder, progressive spastic paraparesis, peripheral neuropathy, and painful burning feet. There was no description as to the nature of the peripheral neuropathy at that time, but it was discussed as a part of the progressive neurologic disorder, rather than as an acute illness. In March 2005, the veteran was afforded a VA examination to determine the nature of the veteran's peripheral neuropathy. The examiner summarized the medical evidence of record, including the September 2003 opinion that the veteran's neurologic disease is related to his Agent Orange exposure in service. The examiner went on, however, to note that the literature and information published by the federal government allows presumptive service connection only for acute and subacute transient peripheral neuropathy. The examiner clarified in this report that such peripheral neuropathy is defined as a nervous system condition that causes numbness, tingling and muscle weakness, affecting only the nervous system outside the brain and spinal cord. The examiner went on to observe that the veteran's problem, based upon his review of the record, "is both a chronic and progressive type problem," and, therefore, "it is not likely that it has been associated with Agent Orange exposure." There is simply no evidence in the record suggesting that the veteran's peripheral neuropathy is acute or subacute in nature such that service connection would be warranted on a presumptive basis under 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e). Even if it were, the record is devoid of evidence showing that the veteran's peripheral neuropathy manifested within a year of his last possible exposure to an herbicide agent, which would have been May 1968, the time he left the Republic of Vietnam. The veteran's July 2004 informal claim noted that he was seen in 1972 for a fever, liver dysfunction, and high bilirubin and bilverbin levels. This is four years following his departure from Vietnam, so presumptive service connection would not be warranted even if evidence of that 1972 treatment was in the record showing acute or subacute peripheral neuropathy. There is simply no basis for presumptive service connection in this matter. The veteran is, nonetheless, entitled to service connection on a direct basis if the evidence reveals that his peripheral neuropathy initially manifested during his period of active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The service medical records were reviewed in full for evidence of reported symptoms of peripheral neuropathy during service. The August 1966 and August 1969 entrance and separation examination reports are normal. There is no evidence in the treatment notes between entrance and separation showing any indication of peripheral neuropathy at any time during service. There is simply no evidence of an in service incurrence of this claimed disability. The Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Because the evidence here is not in equipoise, and, in fact, the absence of evidence to support the claim suggests that the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). There is simply no basis upon which to grant the veteran's claim either on a direct, or presumptive basis. Hearing Loss and Tinnitus The veteran is also seeking to establish service connection for hearing loss and tinnitus. He was afforded a VA examination in February 2005. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 40 70 75 LEFT 20 25 70 85 90 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 64 percent in the left ear. Under 38 C.F.R. § 3.385, medical evidence of hearing loss requires a showing that the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. The veteran's auditory thresholds in each ear are 40 decibels or greater at 2000, 3000, and 4000 Hertz, and the speech audiometry was less than 94 percent, bilaterally. As such, the diagnosis of bilateral high frequency sensorineural hearing loss is recognized as a current disability according to VA regulation. With regard to tinnitus, the veteran described to the examiner that he first experienced tinnitus when his head was under the barrel of a 50 caliber machine gun when it fired. He stated that he noticed tinnitus in both ears after firing of the the gun. The question is whether the veteran's bilateral hearing loss and tinnitus are shown by the evidence of record to be causally connected to the veteran's active service. A review of the veteran's service medical records reveals that at both his August 1966 entrance examination and his August 1969 separation examination, his hearing was within normal limits and there was no notation of tinnitus. There is no evidence of treatment during service for symptoms such as trouble hearing or ringing in the ears. And, the only evidence of post-service reporting of symptoms regarding hearing loss and tinnitus came in the February 2005 VA audiological examination report, in which the examiner specifically stated that because the veteran's hearing was normal at the time of his discharge form the service in 1969, "it is unlikely that the veteran's current bilateral high frequency sensorineural hearing loss and tinnitus are related to military service." There is simply no evidence in the record suggesting that the veteran's hearing loss or tinnitus are related to his active service. While the benefit of the doubt will be given to the veteran if there is an approximate balance of positive and negative evidence, in this case there is no such balance. In fact, the absence of evidence to support the veteran's claims suggests that the preponderance of the evidence is against the claims. Thus, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; also see Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). There is simply no basis upon which to grant the veteran's claim. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of his service connection claims. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA sent the veteran a letter in November 2004 informing him of what was necessary to establish his claims, what evidence he was expected to provide, and what VA would obtain on his behalf. This letter satisfied the requirements of 38 C.F.R. § 3.159(b)(1). The requirements of Dingess v. Nicholson, supra, e.g., as to potential downstream issues such as disability rating and effective date, were addressed in a subsequent April 2006 letter. VA's duty to notify the veteran was met in this case. VA also has a duty to assist the veteran in substantiating his claim under 38 C.F.R. § 3.159(c), (d). Here, the veteran's statements, his service medical records, and his post-service private treatment records and VA examination reports have been associated with the claims folder. The Board notes that the complete Mayo Clinic file has not been associated with the claims folder; however, the records available provided the information necessary for the VA examiner to determine the character of the veteran's peripheral neuropathy, and the April 2004 report notes that the initial treatment was in 1989. Therefore, the complete file is unnecessary as it will not change the outcome of this decision, because it will not possibly provide evidence altering the character of the disability or showing that it initially manifested in service. As such, a remand for these records would unnecessarily dely the adjudication of this claim. The veteran has not notified VA of any additional relevant evidence. VA has done everything reasonably possible to assist the veteran. A remand for further development of these claims would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to service connection for peripheral neuropathy, including as a result of herbicide exposure, is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 380 MAL 2017 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : STEVEN CARL BUTTOLPH, : : Petitioner : ORDER PER CURIAM AND NOW, this 14th day of November, 2017, the Petition for Allowance of Appeal is DENIED. 

J-S89006-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANTOINE D. CHAMBARLAIN, Appellant No. 3525 EDA 2015 Appeal from the PCRA Order November 17, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0203881-2006 BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ. MEMORANDUM BY SHOGAN, J.: FILED JANUARY 04, 2017 Antoine D. Chambarlain (“Appellant”) appeals from the order denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm. This case arises out of a fatal shooting that occurred on July 24, 2005, in the area of 60th Street and Lansdowne Avenue in Philadelphia, Pennsylvania. The PCRA court summarized the facts of the underlying case as follows: [Appellant] served as the driver during a planned drive-by shooting. [Appellant’s] brother, Jerrell Washington, who was sitting in the rear, shot and killed an innocent bystander, Walworth Gardiner. [Appellant’s] friend, Travis Truitt, who ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S89006-16 testified for the Commonwealth, sat in the front passenger seat. ([N.T.] 4/19/2010, pp. 17-20, 22-30, 34, 77). At the scene, police saw a possible second victim, Antoine Hall, who likely was the actual target of the shooting. (Mr. Hall had what appeared to have been a bullet hole in his leg and in his pants.) However, Mr. Hall was very uncooperative: he refused to talk to police and declined an ambulance ride to the hospital. (N.T. 4/21/2010, pp. 50-52). A witness on the scene wrote down the make, model, and license plate number of the car from which the shots had been fired and promptly conveyed the information to police. As a result, the vehicle was found less than ten minutes after the shooting was reported. (N.T. 4/21/2010, pp. 46-49; 4/22/20[10], pp. 6-9, 13-14). Travis Truitt eventually cooperated with police by identifying [Appellant] and Washington as his co-conspirators. Truitt pleaded guilty to murder of the third degree and criminal conspiracy. (N.T. 4/19/2010, pp. 40, 64-65, 97, 100, 109). PCRA Court Opinion, 7/6/16, at 1–2, n.1. The PCRA court recounted the procedural history, as follows: On April 29, 2010, following a jury trial before this court, [Appellant] was found guilty of murder of the first degree, criminal conspiracy, and possessing an instrument of crime. Also on April 29, 2009, this court imposed a sentence of life imprisonment for the conviction of murder of the first degree. [Appellant] also received concurrent terms of ten (10) to twenty (20) years of imprisonment for the conviction of criminal conspiracy and two and one-half (2½) to five (5) years of imprisonment for possessing an instrument of crime. At trial, [Appellant] was represented by Nino Tinari, Esquire[, who also represented Appellant on direct appeal]. [Appellant] appealed, and on December 30, 2011, the Pennsylvania Superior Court affirmed [Appellant’s] judgments of sentence. [Appellant’s] petition for allowance of appeal was denied by the Pennsylvania Supreme Court on May 15, 2012. -2- J-S89006-16 On March 15, 2013, [Appellant] filed a timely pro se petition pursuant to the [PCRA]. . . . Janis Smarro, Esquire, was subsequently appointed as [Appellant’s] counsel. On September 2, 2014, Attorney Smarro filed an Amended PCRA petition. On July 14, 2015, the Commonwealth filed a Motion to Dismiss. On November 17, 2015, this court dismissed [Appellant’s] PCRA petition for lack of merit. On November 18, 2015, [Appellant’s] counsel filed a timely Notice of Appeal, and on May 10, 2016, [Appellant] filed an unsolicited Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). PCRA Court Opinion, 7/6/16, at 1–2 (footnotes omitted). The PCRA court complied with Pa.R.A.P. 1925(a). On appeal, Appellant raises the following questions for our review: I. Is Appellant is [sic] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffective assistance of trial counsel which deprived Appellant of a fair and impartial trial and due process of law in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 9 of the Pennsylvania Constitution? A. Did trial counsel render ineffective assistance of counsel for failing to object at trial when the prosecutor improperly vouched for the testimony of cooperating co- conspirator Travis Truitt on direct examination constituting prosecutorial misconduct which deprived Appellant of a fair and impartial trial and due process of law in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 9 of the Pennsylvania Constitution? B. Did trial counsel render ineffective assistance of counsel for failing to pursue on appeal the issue of the trial court’s error in failing to declare a mistrial when the prosecutor committed misconduct when she improperly elicited from its [sic] witness highly prejudicial evidence concerning Appellant’s pre-arrest/post-Miranda silence in response to police questioning in violation of the Fifth Amendment to the United States -3- J-S89006-16 Constitution and Article I, section 9 of the Pennsylvania Constitution depriving Appellant of his right not to be compelled to give evidence against himself, due process of law, a fair and impartial trial and meaningful and effective appellate review in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Articles I, section 9 and V, section 9 of the Pennsylvania Constitution? C. Did trial counsel render ineffective assistance of counsel for failing to pursue the issue on direct appeal that the trial court erred in allowing the Commonwealth to introduce various inadmissible out-of-court testimonial hearsay statements through witnesses for the Commonwealth depriving Appellant of his right to confront witnesses in violation of his rights under the Sixth Amendment to the United States Constitution and Articles I, section 9 and V, section 9 of the Pennsylvania Constitution? D. Did trial counsel render ineffective assistance of counsel for failing to object at trial when the trial court erred in allowing the Commonwealth to introduce into evidence highly prejudicial, irrelevant and inadmissible testimonial hearsay statements when a witness for the Commonwealth testified on direct examination that on the date of the incident an individual told him that he was shot during the incident and refused medical treatment depriving Appellant of his right to confront the witnesses against him and a fair and impartial trial in violation of his rights under the Sixth Amendment to the United States Constitution and Article I, section 9 of the Pennsylvania Constitution? E. Did trial counsel render ineffective assistance of counsel for failing to pursue the issue on direct appeal that the prosecutor committed prosecutorial misconduct at trial when the prosecutor elicited inadmissible, irrelevant, highly inflammatory and prejudicial character-propensity evidence on direct examination of a witness for the Commonwealth depriving Appellant of due process of law, a fair and impartial trial and meaningful and effective appellate review in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Articles I, section 9 and V, section 9 of the Pennsylvania Constitution? Appellant’s Brief at 4–6. -4- J-S89006-16 When reviewing the propriety of an order denying PCRA relief, this Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA court’s findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). Appellant first presents a blanket averment of ineffective assistance of counsel, which, he contends, warrants a new trial or evidentiary hearing. Appellant’s emilyprice@example.com. He then presents five specific claims: (A) counsel failed to object to the prosecutor allegedly vouching for cooperating witness Travis Truitt; (B) counsel failed to pursue on direct appeal whether the trial court erred in denying a mistrial based on a detective’s reference to Appellant’s pre-arrest silence; (C) counsel failed to pursue on direct appeal the allegedly improper admission of testimonial hearsay; (D) counsel failed to object to allegedly testimonial hearsay about another shooting victim who refused medical treatment; and (E) counsel failed to pursue on direct appeal the issue of prosecutorial misconduct based on the eliciting of prejudicial character evidence from a Commonwealth witness. Id. at 19, 34, 40, 50, and 54. To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel’s -5- J-S89006-16 actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel’s act or failure to act. Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness will be denied if the petitioner’s evidence fails to meet any one of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to have rendered effective assistance. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). “We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)). Additionally, we note that a PCRA petitioner is not automatically entitled to an evidentiary hearing. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal citations omitted). We review the PCRA court’s decision dismissing a petition without a hearing for an abuse of discretion. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). On appeal, we examine the issues raised in light of the record “to determine whether the PCRA court erred in concluding that there -6- J-S89006-16 were no genuine issues of material fact and in denying relief without an evidentiary hearing.” Id. After reviewing the briefs of the parties, the certified record, and the relevant authority, we conclude that the PCRA court’s opinion thoroughly addresses and accurately disposes of Appellant’s claims. Because Appellant did not raise any genuine issues of material fact, the PCRA court did not err in denying relief without an evidentiary hearing. Miller, 102 emilyprice@example.com. Accordingly, we affirm the order denying Appellant collateral relief, and we do so on the basis of the PCRA court’s July 6, 2016 opinion.1 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/4/2017 ____________________________________________ 1 The parties are directed to attach a copy of the PCRA court opinion in the event of further proceedings in this matter. -7- Circulated 12/07/2016 04:14 PM

149 T.C. No. 2 UNITED STATES TAX COURT BOB GREGORY AND KAY GREGORY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent JAMES W. GREGORY, JR. AND JANET E. GREGORY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 17198-13, 17210-13.1 Filed July 11, 2017. Ps own C, an S corporation that operates a landfill and uses the cash method of accounting for tax purposes. C is legally required to pay reclamation and closing costs if and when it closes the landfill. C currently deducted its estimated clean-up costs under I.R.C. section 468. R contends that I.R.C. section 468 applies only to accrual- method taxpayers. Held: The term “taxpayer” in I.R.C. section 468 includes cash- method taxpayers and is not limited to accrual-method taxpayers. I.R.C. sec. 468(a). 1 We consolidated docket numbers 17198-13 and 17210-13 for trial, briefing, and opinion. -2- Held, further, cash-method taxpayers must make an I.R.C. section 468 election to currently deduct estimated reclamation, closure, and post-closure costs before the costs are paid. C did make such an election, and it may therefore currently deduct its estimated reclamation and closing costs. Gregg R. Kosterlitzky and William M. Gerhardt III, for petitioners. Roberta L. Shumway and Sheila R. Pattison, for respondent. OPINION HOLMES, Judge: In 1988 Bob and Kay Gregory incorporated their landfill business, Texas Disposal Systems Landfill, Inc. (TDSL). The Gregorys chose to make TDSL a cash-method taxpayer when they incorporated it. TDSL was successful, and the Gregorys began sifting through the Code to find more deductions. With the help of their accountant they discovered section 468.2 Section 468 lets taxpayers who own landfills deduct now a portion of what it will cost to clean them up in the future--even if that future is many years away. Sec. 468(a)(1). A current deduction for a future expense is a good deal for most 2 Unless we say otherwise, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. -3- taxpayers, and the disagreement between the parties here is simple--who counts as a “taxpayer” under section 468? The Gregorys think a “taxpayer” means any taxpayer, including cash-method taxpayers like TDSL. But the Commissioner thinks it means only taxpayers who use the accrual method. We must answer this novel question. Background I. TDSL and Its Accounting TDSL is an S corporation for income-tax purposes.3 TDSL is also a closely held family business. Bob Gregory incorporated the business in 1988, and ownership during the years in issue was split among Bob and three other family members. Bob and his wife Kay owned 80% of the company, and Bob’s brother, 3 S corporations are corporations whose taxation is governed by subchapter S of the Code. S corporations generally don’t pay federal income tax but are, like partnerships, passthrough entities that channel income and deductions to their owners. See Gitlitz v. Commissioner, 531 U.S. 206, 209 (2001) (“Subchapter S allows shareholders of qualified corporations to elect a ‘pass-through’ taxation system under which income is subjected to only one level of taxation”). So when we say the Gregorys claimed a deduction, technically, we are saying that TDSL reported a deduction on its return and the deduction flowed through to the Gregorys to claim on their returns. See sec. 1.1366-1(a), Income Tax Regs.; see also Hill v. Commissioner, T.C. Memo. 2010-268, slip op. at 11 (“[A]n S corporation’s items of income, gain, loss, deduction, and credit--whether or not distributed--flow through to the shareholders, who must report their pro rata shares of such items on their individual income tax returns for the shareholder taxable year within which the S corporation’s taxable year ends”). -4- Jim Gregory, Jr., and his wife Janet owned the remaining 20%. Bob and Jim serve as TDSL’s directors and are responsible for choosing TDSL’s method of accounting. A few years after it was incorporated, TDSL started operating a solid-waste disposal facility--a fancy way of saying the company puts trash in a landfill. But this landfill is not a dump--it is big, and it is up-to-date. When it opened in 1991 on 730 acres outside of Creedmoor, Texas, just south of Austin, TDSL’s was the state’s first fully integrated-service landfill. It also recovers resources from its solid-waste disposal, compost production, and recycling. It currently processes anywhere between 2,000 and 3,000 tons of solid waste each day. No matter how modern TDSL’s facility is, though, there will come a day when it will close and closing a landfill means having to comply with a great many environmental regulations--federal, state, and local. The Texas Commission on Environmental Quality knows how expensive it can be to clean up and restore a site after a landfill closes, and that agency therefore requires waste-disposal companies such as TDSL to keep a standby letter of credit. These letters of credit are designed to ensure companies don’t pile up trash in landfills and then go out of business -5- without cleaning up after themselves.4 By the end of 2009 TDSL’s letter of credit had grown to a little more than $2 million. TDSL did not at first claim any deductions for its estimated clean-up costs. But in 1996 TDSL’s then CEO asked an outside accountant to look into whether TDSL was eligible to currently deduct these costs under section 468. The accountant advised TDSL that it was eligible, and TDSL made the election and claimed the section 468 deduction for the first time on its 1996 tax return. On its 2008 return, TDSL took a slightly more than $100,000 deduction for estimated clean-up costs; and on its 2009 return, a slightly smaller one. TDSL hadn’t actually paid those clean-up costs yet--it simply estimated the costs; and it also hadn’t charged the estimated costs against its letter of credit yet either. TDSL also did not just make the numbers up--it hired a professional engineering service to estimate the correct amount. The Gregorys probably thought this meant any controversy about the deduction was safely buried. For years the Commissioner didn’t say anything. But that was soon to change. 4 Section 468 refers to these costs as reclamation and closing costs, but this definition simply means clean-up costs. -6- II. The Notices of Deficiency In April 2013 the Commissioner sent the Gregorys notices of deficiency for their 2008 and 2009 tax years that disallowed these deductions because TDSL is a cash-method taxpayer. Excluding cash-method taxpayers from the benefits of section 468 is not an obvious conclusion: Section 468 says that a “taxpayer” may currently deduct clean-up costs for landfills. Sec. 468(a). The Commissioner says, however, that in context a “taxpayer” really means “a taxpayer who uses the accrual method.” TDSL does use the accrual method to prepare its financial statements, but it has always used the cash method for tax-accounting purposes, and no one doubts that this means it should not have claimed a section 468 deduction if that section’s benefits depend on whether a taxpayer uses the accrual method. The notices of deficiency determined that without those section 468 deductions, the Gregorys’ taxable income was substantially higher. The Gregorys, residents of Texas when they filed timely petitions with us, argue that when section 468 says “taxpayer” it means all taxpayers, regardless of what method of tax accounting they use. The parties have stipulated the facts and submitted these cases for decision under Rule 122 as a nearly pure issue of law. There is no dispute that TDSL is entitled to keep its accounting books on the accrual method and its tax books on the cash method. And there is no dispute -7- about the amounts of TDSL’s deductions--the only dispute is whether it was entitled to the jonesshawn@example.net. Discussion I. Landfill Accounting Most taxpayers are free to choose the cash method, although large C corporations, partnerships, and tax shelters cannot. Sec. 448(a). Cash-method taxpayers report income for the tax year in which they actually or constructively receive it. See sec. 1.446-1(c)(1)(i), Income Tax Regs. Cash-method taxpayers also generally deduct an expense for the tax year in which they pay it. See sec. 1.461-1(a)(1), Income Tax Regs. A cash-method taxpayer may also deduct the noncash expenses of depreciation, depletion, and losses. Id. The method is fairly simple, which is why many taxpayers choose it. The accrual method is more complicated. Accrual-method taxpayers must generally report their income for the year in which it is earned and deduct expenses for the year in which they are incurred. See sec. 461(a); sec. 1.461- 1(a)(2)(i), Income Tax Regs.; see also sec. 451; sec. 1.446-1(c)(1)(ii), 1.451-1(a), Income Tax Regs. Section 461 gives them the general rules too. An expense is incurred under the “all events test.” Sec. 1.461-1(a)(2), Income Tax Regs.; see also sec. 461(h)(1), (4). The all-events test has three requirements: (1) there must -8- be a liability; (2) the amount of the liability can be determined with reasonable accuracy; and (3) there has been economic performance. Sec. 461(h); sec. 1.461- 1(a)(2), Income Tax Regs. Accrual-method taxpayers cannot deduct an expense until all three requirements are met. Sec. 1.461-1(a)(2), Income Tax Regs. This ensures that income and expenses are matched to the correct year. The regulations make clear that a taxpayer such as TDSL is free to use one method for tax purposes and the other method for financial accounting purposes. Sec. 1.446- 1(a)(1), Income Tax Regs. II. Text This is all a backdrop for the key question in these cases: What does “taxpayer” mean in section 468? We start with the words of the section, read in the context of the statute as a whole. Wright v. Ford Motor Co., 508 F.3d 263, 269 (5th Cir. 2007).5 The Fifth Circuit follows the usual rules: If the statute is plain and unambiguous, we stop. United States v. Shabazz, 633 F.3d 342, 345 (5th Cir. 2011). We assume the statute was written as Congress intended. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). It is the text, not the legislative history, that is the most reliable indicator of Congress’s intent. 5 Because the Gregorys were residents of Texas when they filed their petitions, these cases are appealable to the Court of Appeals for the Fifth Circuit unless the parties agree otherwise. See sec. 7482(b)(1)(A). -9- Marques v. Lynch, 834 F.3d 549, 553 (5th Cir. 2016); Martinez v. Mukasey, 519 F.3d 532, 543 (5th Cir. 2008). If there is ambiguity and it’s necessary to resort to legislative history, we do so with caution. Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Emps., 286 F.3d 803, 805 (5th Cir. 2002); Boureslan v. Aramco, 857 F.2d 1014, 1018 (5th Cir. 1988). Section 468(a)(1) provides: “[I]f a taxpayer elects the application of this section with respect to any mining or solid-waste disposal property, the amount of any deduction for qualified reclamation or closing costs for any taxable year to which such election applies” shall equal the current reclamation or closing costs allocable to that year. Sec. 468(a)(1) (emphasis added). Section 468 doesn’t limit the election to accrual-method taxpayers--which even the Commissioner acknowledges.6 The section just tells a “taxpayer” who makes a section 468 election how to calculate the deduction. Even though section 468 doesn’t define “taxpayer”, we are not left without textual help. The Code has a small dictionary toward its end, and in it we find a default definition of “taxpayer”. Sec. 7701(a)(14); see, e.g., Rothkamm v. United States, 802 F.3d 699, 704 (5th Cir. 2015). It says: 6 Although it was enacted in 1984, the Secretary hasn’t yet issued any regulations for section 468. He also hasn’t issued any other guidance to interpret section 468 or analyze whether it applies to cash-method taxpayers. -10- SEC. 7701(a). When used in this title, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof-- (1) Person.--The term “person” shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation. * * * * * * * (14) Taxpayer.--The term “taxpayer” means any person subject to any internal revenue tax. The definition of taxpayer is simple, broad, and does not distinguish entities that use the accrual method from those that use the cash method. The question is whether the person--which includes corporations like TDSL--is “subject to any internal revenue tax.” TDSL is a corporation and like other S corporations it is required to pay Social Security and unemployment (albeit not income) taxes.7 Sec. 6037(a); Joseph M. Grey Pub. Accountant, P.C. v. Commissioner, 119 T.C. 121, 134 (2002) (finding that an S corporation owed employment taxes), aff’d, 93 F. App’x 473 (3d Cir. 2004). So TDSL is a “taxpayer”. 7 See Fehlhaber v. Commissioner, 94 T.C. 863, 868 (1990) (“as a passthrough entity, an S corporation is generally a taxpayer not subject to income tax. Secs. 1363(a) and 7701(a)(14).”), aff’d, 954 F.2d 653 (11th Cir. 1992); but see Rollercade, Inc. v. Commissioner, 97 T.C. 113, 118 (1991) (S corporation not “taxpayer” in deciding on whom to impose sanctions under section 6673). Our Opinion today reaches only the question of whether an S corporation is a taxpayer for the purposes of section 468. We are not deciding whether an S corporation is a taxpayer for every section of the Code. -11- Of course this is tax, so there’s a possible loophole. The default definition doesn’t apply if section 468 “distinctly express[es]” a different definition of taxpayer. Sec. 7701(a); see, e.g., Rothkamm, 802 F.3d at 708 (finding that nothing in the section at issue “specifically express[ed]” a limited definition of “taxpayer” or was “manifestly incompatible” with the definition of section 7701(a)). But we see no loophole here: Section 468 has no definition of “taxpayer”. There’s nothing in section 468 “manifestly incompatible” with the default definition either. Section 468 simply says a “taxpayer”. There’s also nothing “manifestly incompatible” with a taxpayer’s currently deducting clean-up costs--that’s what section 468 is all about. “Taxpayer” is one of the most basic terms in the Code. It is also one that Congress itself knows how to modify as context requires.8 Congress could have-- as it has on numerous occasions--said “accrual method taxpayer,” but it chose in 8 See, e.g., sec. 461(b) (“[i]n the case of the death of a taxpayer whose taxable income is computed under an accrual method of accounting”); sec. 461(d) (“[i]n the case of a taxpayer whose income is computed under an accrual method of accounting”); sec. 458(a) (“[a] taxpayer who is on the accrual method of accounting may elect”); sec. 271(c) (“[i]n the case of a taxpayer who uses an accrual method of accounting”); sec. 263A(d)(1)(B) (“[s]ubparagraph (A) shall not apply to any corporation * * * required to use an accrual method of accounting”); sec. 108(e)(7)(B) (“[i]n the case of any creditor who computes his taxable income under the cash receipts and disbursements method”); sec. 163(e)(2)(C) (“[i]n the case of an obligor of a short-term obligation * * * who uses the cash receipts and disbursement method of accounting”). -12- section 468 to say “taxpayer” instead. It’s difficult to believe that Congress forgot to modify such a basic term, and really meant “accrual method taxpayer,” when it actually said “taxpayer”. We could stop there, with a holding that the language of section 468 is unambiguous. But the Commissioner has piled up a number of contextual counterarguments. He first points us to section 461, which lists several exceptions to the general pay-before-deduct rule for cash-method taxpayers, and section 468 is not one of them. The section 461 regulations echo this. They say cash-method taxpayers can deduct some expenses before the expenses are paid, “such as * * * for depreciation, depletion, and losses under sections 167, 611, and 165, respectively.” See sec. 1.461-1(a)(1), Income Tax Regs. (emphasis added). Section 468 isn’t on this list either. The Commissioner says that implies section 468 was not meant as an exception to the general pay-before-deduct rule. The problem here is that the regulation’s list is prefaced with the phrase “such as.” This phrase is important. It signals that what follows are examples, not an exclusive list. The Code and regulations are full of similar lists. Section 1.170A-2(a)(3), Income Tax Regs., discusses holidays when schools are closed, “such as Christmas and Easter.” Schools are obviously closed for holidays other than Christmas and Easter. Other regulations follow a similar pattern. To deduct -13- business expenses, taxpayers must have documents “such as receipts, paid bills, or similar evidence” showing their expenses. Sec. 1.274-5A(c)(2)(iii), Income Tax Regs. (emphasis added). The phrase “or similar evidence” indicates that “such as” means for example, and the list isn’t comprehensive. The Commissioner hasn’t provided any evidence that the list in section 1.461-1(a), Income Tax Regs., was meant to be an exclusive list of exceptions, and we’ve found none. This isn’t a winning argument. The Commissioner next argues that the term “incurred” in section 468-- which he says is usually used in the context of the accrual method--shows that section 468 was meant to apply only to accrual-method taxpayers. Section 468 uses the term “incurred” twice. Mining reclamation and closing costs are defined as “[a]ny expenses incurred for any land reclamation or closing activity which is conducted in accordance with a reclamation plan.” Sec. 468(d)(2)(A). Similarly, solid-waste disposal and closing costs are defined as “[a]ny expense incurred for any land reclamation or closing activity in connection with any solid-waste disposal site.” Sec. 468(d)(2)(B). We agree with the Commissioner that “incurred” often refers to an expense that is deductible under the accrual method while the word “paid” often refers to an expense that is deductible under the cash method. Section 162--one of the most -14- commonly cited Code sections--combines the two by allowing deductions for ordinary and necessary expenses “paid or incurred” in a trade or business. Sec. 162(a). The Supreme Court itself has said “incurred” in this context refers to the accrual method. United States v. Hughes Props., Inc., 476 U.S. 593, 599 (1986) (“An accrual-method taxpayer is entitled to deduct an expense in the year in which it is ‘incurred,’ [sec.] 162(a), regardless of when it is actually paid”). The Court cited sections 1.446-1(c)(1)(ii), 1.451-1(a), and 1.461-1(a)(2), Income Tax Regs., all of which are regulations that determine when an expense is incurred, and all of which govern taxpayers who use the accrual method.9 The Court also noted that the term “paid” in section 162 refers to the cash method. Id. at 599-600 (“Under the ‘cash receipts and disbursements method,’ * * * a taxpayer is entitled to deduct business expenses only in the year in which they are paid”).10 9 The Supreme Court in United States v. Hughes Props., Inc., 476 U.S. 593, 600 (1986) (“1.451-1(a) (accrual of income)”), specifically noted that it was referring to the portion of sec. 1.451-1(a), Income Tax Regs., that applied to the accrual method, not the cash method. 10 Other regulations reinforce the point. For example, the regulations for the annualized income-installment method say cash-method taxpayers can’t take deductions until expenses are “paid” and accrual-method taxpayers can’t take deductions until expenses are “incurred”. Sec. 1.6655-2(f)(1)(ii), Income Tax Regs. -15- There’s a problem, though, with the Commissioner’s argument that “incurred” is a subtle signal that “taxpayer” in section 468 must mean “accrual method taxpayer”--section 468 also uses the term “paid” four times. The section says: (C) Reserve to be charged for amounts paid.--Any amount paid by the taxpayer during any taxable year for qualified reclamation or closing costs allocable to portions of the reserve property for which the election under paragraph (1) was in effect shall be charged to the appropriate reserve as of the close of the taxable year. * * * * * * * (3) Allowance of deduction for excess amounts paid.--There shall be allowed as a deduction for any taxable year the excess of-- (A) the amounts described in paragraph (2)(C) paid during such taxable year, over (B) the closing balance of the reserve for such taxable year (determined without regard to paragraph (2)(C)). Sec. 468(a)(2)(C), (3)(A) and (B) (emphasis added). Section 468 uses terms that signal its application to both accrual- and cash-accounting. Reading “taxpayer” in section 468 to mean “all taxpayers”--even if this creates a current deduction for a future expense--just means that this section creates another exception to a general -16- rule for cash-method taxpayers.11 The Code and regulations are filled with general rules and exceptions to them. So this argument doesn’t help the Commissioner either. The Commissioner next fires off another canon of interpretation--noscitur a sociis. Noscitur a sociis is a Latin phrase that means “it is known by its associates.”12 Black’s Law Dictionary 1087 (8th ed. 2004). The Commissioner’s invocation of this doctrine essentially repeats his argument that “incurred” signals that section 468 applies only to accrual-method taxpayers. We already addressed this--section 468 also uses the term “paid”, which the Commissioner concedes typically applies to cash-method taxpayers. As they say at the IRS: Ab his sociis publicanus non adjuvatur. The Commissioner has also found some cases that at least mention section 468. In South Side Landfill, Inc. v. United States, 52 F. Supp. 2d 783, 784 (W.D. 11 Nothing too strange here--some accrual-method taxpayers, for example, are required to use the cash method to determine how much of their state-tax bill they can deduct. Sec. 1.164-1(a)(5), Income Tax Regs. 12 In The Tempest Gonzalo says he would not have “[t]reason, felony, sword, pike, knife, gun, or need of any engine.” William Shakespeare, The Tempest, act 2, sc. 1. The list “provides a helpful context for the meaning of engine, which today is considered a broad term with an entirely neutral meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Text 195 (2012). -17- Mich. 1999), the court described section 468 as allowing “landfill operators who use the accrual-method of accounting” to deduct clean-up costs before the costs are actually incurred. But the court there was not deciding whether section 468 could also apply to cash-method taxpayers, and it didn’t analyze the issue. It was deciding only the much narrower issue of whether section 468(a)(2)(B) applies to landfill owners who take deductions and actually set aside funds for future closing obligations. Id. at 784. The taxpayers in South Side Landfill were accrual-method taxpayers, so it’s not surprising the court described section 468 in that context, and does not narrow the Code’s broad definition of taxpayer. The Commissioner also cites the principle of ejusdem generis--a fancy way of saying that “[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Text 199 (2012). But section 468 doesn’t have a list--it just says “taxpayer”. Without a generis, there is no ejusdem and this canon likewise cannot help us. The Commissioner’s final textual argument is that sections 468 and 468A have similar language, and since section 468A applies only to accrual-method taxpayers, section 468 must as well. Sections 468 and 468A are indeed very -18- similar--both allow taxpayers to deduct clean-up costs, both impose reserve requirements, and both have the same general structure. Section 468A allows an electing “taxpayer” to deduct portions of nuclear decommissioning costs. Sec. 468A(a) and (b). Section 468A says: SEC. 468A(a). In General.--If the taxpayer elects the application of this section, there shall be allowed as a deduction for any taxable year the amount of payments made by the taxpayer to a Nuclear Decommissioning Reserve Fund * * * during such taxable year. [Emphasis added.] The Commissioner thinks section 468A applies only to accrual-method taxpayers because of section 1.461-1(a)(2)(iii)(B) of the regulations. But that regulation-- which also applies to section 468--doesn’t say that. It says only that accrual- method taxpayers who make an election under sections 468 or 468A must account for liabilities under those Code sections, and not the general rules for accrual- method taxpayers under section 461 and its regulations. Sec. 1.461-1(a)(2)(iii)(B), Income Tax Regs. The regulation does not say sections 468 and 468A apply only to accrual-method taxpayers. Section 1.468A-1(a), Income Tax Regs., also says that any “eligible taxpayer” may elect to claim a deduction under section 468A. Sec. 1.468A-1(a), Income Tax Regs. Paragraph (b)(1) defines eligible taxpayer as “any taxpayer that possesses a qualifying interest in a nuclear power plant.” (Emphasis added.) This -19- is an example of a section that provides a more specific definition of “taxpayer”, but the definition does not limit the application of the section to particular entities based on their accounting method; it limits the section’s application to entities with a qualifying interest in a nuclear power plant. III. Legislative History and Policy We think all this should be enough, but the parties discuss what legislative history there is and make some policy arguments too. The Commissioner urges us to use legislative history to define “taxpayer” because, he argues, the term must be ambiguous if we need to jump from section 468 to section 7701 to define it. That’s flat out wrong. There are many cases where courts have used section 7701(a)(14) to define the term “taxpayer” without concluding this made the Code ambiguous enough to resort to legislative history. See, e.g., United States v. Williams, 514 U.S. 527, 535 (1995); Rothkamm, 802 F.3d at 708 (“Because the statute is clear, we must conclude that the section 7701(a)(14) definition of ‘taxpayer’ applies”). The definitions in section 7701 bring clarity to the Code, not ambiguity. We will nevertheless--out of a supersized abundance of caution--look at the legislative history anyway. That history begins with the Commissioner’s original position on clean-up costs--that they couldn’t be deducted even by an accrual- -20- method taxpayer until they were actually paid. Ohio River Collieries Co. v. Commissioner, 77 T.C. 1369, 1375 (1981) (citing Rev. Rul. 72-34, 1972-1 C.B. 132), changed all that. We held there that clean-up costs accrue when these costs can be estimated with reasonable accuracy. Id. at 1372. Congress partially codified this holding in section 461(h) as part of the Deficit Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369, sec. 91, 98 Stat. at 598. But that Act also added a third requirement to the all-events test for accrual-method taxpayers generally-- economic performance would have to take place before a liability would be considered “incurred”. See United States v. General Dynamics Corp., 481 U.S. 239, 243 n.3 (1987). That Act also added section 468 to the Code. The Commissioner thinks the legislative history for the Act shows that “taxpayer” in section 468 must mean a taxpayer who uses the accrual method. His argument relies heavily on the Blue Book. See Staff of J. Comm. on Taxation, General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 260 (J. Comm. Print 1985). Blue Books are compiled by the Joint Committee on Taxation and provide commentary on tax laws after Congress enacts them. They “therefore d[o] not inform the decisions of the members of Congress who vot[e] in favor of the [law].” United States v. Woods, 571 U.S. , , 134 S. Ct. 557, 568 (2013) (quoting Flood v. United States, 33 F.3d 1174, -21- 1178 (9th Cir. 1994)). The Supreme Court has told us such “[p]ost-enactment legislative history [a contradiction in terms] is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011). Instead, like law review articles, persuasive Blue Books may be helpful. Woods, 571 U.S. at , 134 S. Ct. at 568. The Blue Book does tell us that Congress passed section 461(h) to ensure that accrual-method taxpayers take deductions only when they economically incur expenses. Staff of J. Comm. on Taxation, supra, at 260.13 As a general rule Congress didn’t want taxpayers to be able to deduct expenses that hadn’t been incurred yet, because any other rule would overstate the economic impact of those expenses on the current income of an accrual-method taxpayer when one considers the time value of money. Id. Section 468 was to be an exception to this general rule for reclamation and closing costs. Id. at 273. Before section 468 was enacted, companies used different accounting methods to track clean-up costs. DEFRA authorized taxpayers to use a uniform 13 In this it echoed the conference committee’s description of the original House bill. H.R. Conf. Rept. No. 98-861, at 879 (1984), 1984-3 C.B. (Vol. 2) 1, 133. The conference committee report shows that the Senate’s amendment--with its use of the more general term “taxpayer”--is what ended up in the final text of the statute. There is nothing in that committee report that suggests a limit on the meaning of “taxpayer” depends on the accounting system used. Id. at 879-82, 1984-3 C.B. (Vol. 2) at 133-36. -22- method of accounting for reclamation and closing costs even before economic performance. Id. at 273. This history does show that Congress wanted a more liberal rule for the deductibility of reclamation and closing costs. Id. The Gregorys join this detour through section 468’s legislative history, but look at it in a broader context. They argue that to see a true picture of Congress’s intent we need to zoom out and look at history from 1982 as well. In that year Congress considered several bills that would have allowed both cash- and accrual- method taxpayers to deduct estimated clean-up costs for surface mining before the work was actually performed. Mining Reclamation Reserve Bills: Hearing Before the Subcommittee on Energy and Agricultural Taxation of the Committee on Finance of U.S. Senate 97th Cong. 1 (1982). They argue from this that Congress wanted cash-method taxpayers to benefit from the bills. Congressman Bailey explained to the subcommittee that the bills would allow cash-method taxpayers to elect the accrual method for reclamation costs and to deduct reclamation reserves. Id. at 27. They say that Congress was looking to give both types of taxpayers flexibility. Id. at 28. The explanation of the bills makes this even more clear. Under S. 1911 and S. 2642, cash-method taxpayers “would be allowed to use the accrual method [and that would be the pre-1984 accrual method] for reclamation costs.” Id. at 7. This bit of legislative history--admittedly legislative history of -23- bills the relevant provisions of which weren’t enacted until the next Congress-- uses the term “accrued reclamation expenses,” but they would have applied to cash-method taxpayers. Id. Then, when the 1982 statute was marked up and enacted in 1984, the phrase “accrued reclamation expenses” had morphed into “qualified reclamation expenses” and “qualified closing costs.” One can see from this that the unfinished 1982 legislation, with its perhaps awkward phrasing about allowing cash-method taxpayers “to use the accrual method,” aimed to help both cash- and accrual-method taxpayers. A reasonable inference is that the enacted 1984 statute was a cleaner way of achieving the same end. But one can definitely see how this would be an instance--were we in the era before textualism again became the predominant mode of statutory interpretation--where we’d have to conclude that ambiguities in the legislative history make it “clear that we must look primarily to the statutes themselves to find the legislative intent.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29 (1971). The parties move on in their arguments from legislative history to tax policy, and we hesitate to follow, but we will address the Commissioner’s final argument--that the Gregorys’ position would lead to absurd results. The Commissioner thinks that letting cash-method taxpayers claim deductions under section 468 would lead to double deductions for the same expenses--once now and -24- then again when clean-up actually begins later on. His concern isn’t realistic. If a taxpayer elects to claim deductions under section 468, its liability is computed under that section, and it gets no deduction for current clean-up expenses until it exhausts its accumulated reserve for those costs. Sec. 468(a)(3). Taxpayers like TDSL must comply with numerous environmental-protection laws at the federal, state, and local levels. These costs can be large, and they continue after a landfill, mine, or nuclear-power plant stops earning income. Section 468 lessens the burden of compliance by helping to match income and expenses better in an era where businesses that are messy to run must clean up after themselves and maintain proof that they have the means to do so. Conclusion The term “taxpayer” in section 468 includes cash-method taxpayers like TDSL. Since section 468 itself doesn’t define the term, we hold that the general definition under section 7701(a)(14) applies. TDSL is eligible to currently deduct -25- its estimated clean-up costs under section 468, and the Gregorys may claim those deductions on their returns. Decisions will be entered for petitioners. Reviewed by the Court FOLEY, VASQUEZ, THORNTON, GOEKE, GUSTAFSON, PARIS, MORRISON, KERRIGAN, BUCH, and PUGH, JJ., agree with this opinion of the Court. -26- LAUBER, J., concurring: I agree with the result the Court reaches today, but I do so with some reluctance. The legislative history convinces me that Con- gress likely intended that the election to set up reserves for mining and waste site reclamation costs (collectively, reclamation costs) would be available only to ac- crual basis taxpayers. However, quite possibly because of a last-minute drafting glitch, Congress did not reify this intent in the text of section 468 as actually en- acted. If the Secretary, in reliance on the legislative history, had issued regula- tions that defined “taxpayer” for purposes of section 468 to mean “accrual basis taxpayer,” the outcome might have been different. Cf. Lindsay Manor Nursing Home, Inc. v. Commissioner, 148 T.C. __ (Mar. 23, 2017) (sustaining the Secre- tary’s regulations excluding taxpayers other than individuals from the definition of “taxpayers” eligible for levy relief on account of “economic hardship” under sec- tion 6343(a)(1)(D)). But the Secretary has issued no such regulations, and I can- not conclude that the Court’s plain language construction of the statute produces an absurd result. As the Court notes, sections 468 and 468A entered the Code, hand in glove with section 461(h), as part of the Deficit Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369, sec. 91, 98 Stat. at 598-606. But there is more by way of legis- lative background to these provisions than the post-enactment Blue Book that the -27- Court discusses. See op. Ct. p. 20 (citing Staff of J. Comm. on Taxation, General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 258-276 (J. Comm. Print 1985)). By enacting section 461(h) as part of DEFRA, Congress added a new prong--“economic performance”--to the judicially created “all events test” for determining the year for which accrual basis taxpayers may deduct business expenses under section 162. See United States v. General Dyna- mics Corp., 481 U.S. 239, 242 (1987); United States v. Anderson, 269 U.S. 422 (1926); sec. 1.461-1(a)(2), Income Tax Regs. In a report accompanying an amendment to the original House bill, H.R. 4170, 98th Cong. (1984), the Ways and Means Committee described proposed section 461(h) as a provision aimed at preventing “premature accruals.” As it ex- plained: “[T]he rules relating to the time for accrual of a deduction by a taxpayer using the accrual method of accounting should be changed to take into account the time value of money.” H.R. Rept. No. 98-432 (Part 2), at 1046, 1254 (1984), 1984 U.S.C.C.A.N. 697, 917. But despite its reference to “the time value of money,” the committee did not propose a discounting regime, recognizing that “determin- ing the discounted values for all kinds of future expenses would be extraordinarily complex and would be extremely difficult to administer.” Ibid. Instead, by requir- ing that expenses be accrued only when economic performance has occurred, the -28- committee aimed to “prevent deductions for future expenses in excess of their true cost while avoiding the complexity of a system of discounted valuation.” Id. at 1255, 1984 U.S.C.C.A.N. at 917. It seems clear that section 461(h) as proposed was envisioned as applying only to accrual basis taxpayers, with no relevance or implications for cash basis taxpayers. And section 461(h) as enacted applies only to accrual basis taxpayers. It imposes an “economic performance” requirement for “determining whether an amount has been incurred with respect to any item during any taxable year.” Sec. 461(h)(1) (emphasis added). And it explicitly adds this economic performance re- quirement as a statutory modification to “the all events test,” which applies exclu- sively to accrual basis taxpayers. Notably, the House bill did not carve out an exception from the “economic performance” requirement for estimated future reclamation costs or nuclear de- commissioning costs.1 To the contrary, as an example of how the economic per- formance test would apply to the former, the House report stated as follows: “[I]f a strip mining company engages a contractor to reclaim stripped land, economic 1 The House bill did contain an exemption from the “economic performance” requirement for “[a]ny other provisions of this title which specifically provide[] for a deduction for a reserve for estimated expenses.” See H.R. Rept. No. 98-432 (Part 2), at 1256 (1984), 1984 U.S.C.C.A.N. 697, 918. -29- performance occurs when the contractor performs the reclamation rather than when the strip mining company enters into a binding contract with the contractor.” H.R. Rept. No. 98-432 (Part 2), supra at 1255, 1984 U.S.C.C.A.N. at 918. Similar- ly, “when the strip mining company itself reclaims the land, economic perform- ance occurs when the land is reclaimed.” Ibid. The House bill would thus have denied accrual basis taxpayers any deduction for reclamation or nuclear decom- missioning costs before the year in which “economic performance” had occurred. The Senate was apparently more solicitous of accrual basis taxpayers sub- ject to clean-up cost obligations mandated by Federal or State law. The Senate bill that eventually became that chamber’s amendment to H.R. 4170 proposed to in- clude in section 461, immediately after new subsection (h), two additional new subsections (i) and (j), each constituting an exception from the former’s “econom- ic performance” requirement. Each of the latter provisions was denominated a “Special Rule.” See S. Prt. 98-169 (Vol. II), at 207, 212 (1984). Proposed section 461(i) provided an elective method whereby taxpayers could deduct contributions to a reserve created to pay future nuclear decommis- sioning costs. A report accompanying the Senate Finance Committee’s mark-up of that bill characterized that provision as “the exclusive method for obtaining a deduction for nuclear decommissioning expenses prior to economic performance.” -30- S. Prt. 98-169 (Vol. I), at 277. In parallel fashion, proposed section 461(j) pro- vided an elective method whereby taxpayers could deduct contributions to a re- serve created to pay future reclamation costs. The Senate Finance Committee re- port explained that this method “departs from the general principle, adopted in the bill, of allowing a deduction for future liabilities only when economic performance occurs.” Id. at 274. Envisaged as exceptions to the general “economic performance” rule of sec- tion 461(h), subsections (i) and (j) in the Senate bill were clearly aimed at accrual basis taxpayers. Their placement immediately after subsection (h), as “special rules” limiting its application in specified circumstances, underscores this legisla- tive design. It follows that, under the Senate bill, cash basis taxpayers would have been ineligible for either elective regime. Following a conference between the House and the Senate, the conferees produced a report, H.R. Conf. Rept. No. 98-861 (1984), 1984 U.S.C.C.A.N. 1445. Incorporating the amendments in that conference report, H.R. 4170 was enacted into law as DEFRA. As the conference report explained, “the conference agreement generally follows the House bill” in attacking premature accruals by adding the “economic performance” test of section 461(h). Id. at 873, 1984 U.S.C.C.A.N. at 1561. But the conferees adopted several “modifications” to the -31- original House bill, including “the Senate amendment’s provisions relating to nuclear power plant decommissioning costs and to costs associated with the reclamation and closing of mine and solid waste disposal sites.” Ibid. In other words, the conference agreement adhered to the approach of the Senate amend- ment by adopting elective exceptions that allowed accrual basis taxpayers to ac- crue deductions for future reclamation and nuclear decommissioning costs in advance of “economic performance.” The conference report’s discussion of these elective clean-up cost provi- sions tracks that of the Senate report. This suggests that the conferees, like the Senate Finance Committee, regarded these provisions as exceptions from the eco- nomic performance requirement that would otherwise bind accrual basis taxpay- ers. Indeed, the conference report says this in so many words, noting that the con- ference agreement followed the Senate amendment by “except[ing] nuclear de- commissioning costs from the general rule * * * of allowing accrual basis taxpay- ers to deduct future liabilities only when economic performance occurs.” Id. at 877, 1984 U.S.C.C.A.N. at 1561. Similarly, in discussing the exception for future reclamation costs, the con- ference report noted the IRS’ longstanding litigation position that “reclamation expenses cannot be accrued until reclamation occurs.” Id. at 879, 1984 -32- U.S.C.C.A.N. at 1567. The conference report then cited with approval Ohio River Collieries Co. v. Commissioner, 77 T.C. 1369 (1981), where this Court had held that an accrual basis strip mining company could accrue deductions for expected future reclamation costs if those costs were “susceptible of reasonable estimation” under the all events test. Id. at 1377. Reading this case citation in context, it ap- pears that the conferees intended, as the Senate Finance Committee had intended, to give similarly situated accrual basis taxpayers the ability to “elect into” the out- come of Ohio River Collieries, notwithstanding the economic performance re- quirement being imposed by new section 461(h). Compare S. Prt. 98-169 (Vol. I), supra at 274, with H.R. Conf. Rept. No. 98-861, jonesshawn@example.net. In short, the explanatory remarks of the conference committee strongly sug- gest that Congress intended to adopt the Senate approach, whereby the two elect- ive clean-up cost provisions would constitute exceptions to the “economic per- formance” requirement for accrual basis taxpayers and be exclusively applicable to them. But the explanatory remarks of the conferees do not have the force of law. See Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236-237 (D.C. Cir. 2003). And the text that Congress actually enacted differs from that of the Senate amendment in one important respect. -33- For reasons that are nowhere explained, the conferees moved the two elec- tive clean-up cost provisions from their original location in the Senate amendment, where they appeared as proposed subsections (i) and (j) of section 461. Instead, the conferees placed these provisions into a pair of new stand-alone Code sections. The reclamation cost provision became section 468, and the nuclear decommis- sioning cost provision became section 468A.2 As a result of this shift, the term “taxpayer” in section 468 became unmoored from its original section 461 context, rendering respondent’s position that “taxpayer” means “accrual basis taxpayer” correspondingly more difficult to sustain. The conferees did not explain why the two elective clean-up cost provisions were relocated. Indeed, the conferees did not even mention that they had made this change. It is difficult to tell what significance we should attach to this “dog that didn’t bark.” Compare Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 63 (2004), with id. at 73-74 (Scalia, J., dissenting) (expressing doubt about the “Canon of Canine Silence” as a tool of statutory construction). 2 The conferees retained the House bill’s exemption from the “economic per- formance” requirement for other Code provisions that “specifically provide[] for a deduction for a reserve for estimated expenses.” See supra note 1. That exemp- tion, which now appears as section 461(h)(5), evidently serves as a cross-reference to (among other provisions) sections 468 and 468A. -34- “[T]he meaning of statutory language, plain or not, depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991). That contextual analysis may encompass the statutory provision’s styling and location. See Smith v. Doe, 538 U.S. 84, 85 (2003) (“formal attributes of a legislative enactment, such as the manner of its codification * * *, are probative of the legislature’s intent”); see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (empha- sizing the importance of reading a statute’s words “with a view to their place in the overall statutory scheme”). As enacted in sections 468 and 468A, the two elective clean-up cost provisions are captioned “special rules,” as was true in the Senate amendment. But because these two regimes are now located outside sec- tion 461, that term no longer automatically connotes special rules for accrual basis taxpayers. In sum, section 468 as enacted is untethered from the economic performance requirement imposed on accrual basis taxpayers by section 461(h). As a result, the contextual enterprise of determining whether cash basis taxpayers are excluded from the ambit of section 468 ultimately reduces to a textual analysis. And in that endeavor I cannot fault the Court. It reasonably concludes that nothing in the text of section 468 necessitates giving the term “taxpayer” a meaning less comprehen- sive than the ordinary meaning it has elsewhere in the Code. -35- This conclusion does seem misaligned with the evolution of the legislative proposals that culminated in the enactment of sections 468 and 468A. Conceiv- ably this misalignment may reflect a drafting oversight. When relocating the two elective clean-up cost provisions, the conferees may not have realized that the term “taxpayer,” as it appeared the Senate’s proposed sections 461(i) and (j), required a corollary modification. If the Secretary believed that this created a statutory gap, he might have issued regulations in an effort to fill it. But in the absence of regulations “we must apply the statute as we find it.” McClain v. Commissioner, 311 U.S. 527, 530 (1941). MARVEL, GALE, NEGA, and ASHFORD, JJ., agree with this concurring opinion.

913 N.E.2d 203 (2009) Carla CUNNINGHAM, Appellant-Petitioner, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Central Indiana Regional Blood Center, Appellees-Respondents. No. 93A02-0902-EX-188. Court of Appeals of Indiana. June 18, 2009. Publication Ordered August 19, 2009. *204 Carla Cunningham, Indianapolis, IN, Appellant Pro Se. Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. OPINION BAKER, Chief Judge. Appellant-petitioner Carla Cunningham appeals the decision of the Indiana Unemployment Insurance Review Board (Review Board) dismissing her appeal as untimely. Finding no error, we affirm. FACTS On October 14, 2008, Cunningham's employment with the Indiana Blood Center (Employer) was terminated. On November 21, 2008, Cunningham filed a discrimination complaint against Employer with the Marion County/City of Indianapolis Office of Equal Opportunity (IMEO). Sometime between October 14, 2008, and December 12, 2008, Cunningham applied for unemployment benefits with the Indiana Department of Workforce Development (DWD). The DWD claims deputy denied Cunningham's application, concluding that she had been terminated for just cause. On December 12, 2008, a letter was sent to Cunningham informing her of this decision and explaining that the claims deputy's determination would become final on December 22, 2008, if it was not appealed within ten days from the date that the letter had been mailed. On January 12, 2009, the IMEO sent Cunningham a proposed Conciliation Agreement, providing, in part, that Employer would "cease any further contestation or interference with [Cunningham's] attempt to receive Unemployment Benefits." Appellant's App. p. 11. In exchange, *205 Cunningham would agree "to withdraw her Complaint against [Employer] pending before the IMEO." Id. at 12. On January 14, 2009, Cunningham filed an appeal with the Appeals Division of the DWD, (Appeals Division), challenging the claims deputy's determination that she was ineligible for unemployment benefits and requesting a hearing before an Administrative Law Judge, (ALJ). On February 9, 2009, the ALJ, without a hearing, dismissed the appeal as untimely because it had not been filed within thirteen days as required by statute. On February 16, 2009, Cunningham appealed the ALJ's decision to the Review Board, arguing that during the process of filing for unemployment benefits, she had an outstanding claim against Employer through the IMEO. Thus, Cunningham alleged that her claim for unemployment benefits should be allowed to proceed. Cunningham attached a copy of the Conciliation Agreement with her appeal to the Review Board.[1] On February 23, 2009, the Review Board affirmed the decision of the ALJ dismissing Cunningham's appeal as untimely, stating, in part, that "[n]o hearing was held by the Review Board, and no additional evidence was accepted." Id. at 33. Cunningham appeals pro se. DISCUSSION AND DECISION Cunningham argues that the Review Board erred when it affirmed the decision of the ALJ dismissing her appeal as untimely. Cunningham contends that her appeal was timely filed by fax on December 24, 2008, and submits a fax transmission log to support this contention. The State counters that Cunningham neither made this argument, nor provided the fax transmission log to the Review Board. Thus, the State argues that Cunningham has waived this argument on appeal. Our Supreme Court has held that a party who fails to raise an issue before an administrative body has waived the issue on appeal. See Nat'l Rural Utils. Coop. Fin. Corp. v. Pub. Serv. Comm'n of Ind., 552 N.E.2d 23, 28 (Ind.1990) (concluding that the "Appellants ... are precluded from claiming entitlement to the statute's protections because they waived the issue by not raising it before the commission"). Here, in her appeal to the Review Board, Cunningham indicated that she was "appealing the decision for my unemployment benefits due to the fact that during [the] process of filing for unemployment, [she] had a claim against [her] employer through the EEOC."[2] Appellee's App. p. 1. Attached to this letter was the Conciliation Agreement arising from Cunningham's discrimination complaint with the IMEO. It was not until Cunningham appealed to this court that she argued that her appeal was timely filed on December 24, 2008, and submitted a fax transmission log[3] to support *206 this assertion. Had Cunningham raised this issue and submitted the fax transmission log to the Review Board, it would have considered this additional evidence even though it had not been presented to the ALJ. See Ritcheson-Dick v. Unemployment Ins. Review Bd., 881 N.E.2d 54, 57 (Ind.Ct.App.2008) (holding that when a party alleges to the Review Board that her appeal was timely filed and shows good cause why evidence was not presented to the ALJ, that party must be given an opportunity to present evidence on the issue before her appeal can be summarily dismissed). Although those "who proceed pro se are afforded more leeway in an administrative context than in a judicial one," an administrative body "is not required to brainstorm about every possible legal theory that might be available to a pro se claimant." Highland Town Sch. Corp. v. Review Bd. of Ind. Dep't of Workforce Dev., 892 N.E.2d 652, 656 (Ind.Ct.App.2008). Consequently, Cunningham has waived this argument. Proceeding to the argument that was made to the Review Board, we note that a Review Board's determination that an appeal was untimely filed is a legal conclusion. Quakenbush v. Review Bd. of Ind. Dep't of Workforce Dev., 891 N.E.2d 1051, 1054 (Ind.Ct.App.2008). Therefore, this court will "examine[] the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of facts." Id. at 53. We will affirm the Review Board if there is substantial evidence to support its findings and its decision is reasonable in light of its findings. Id. Under the substantial evidence standard of review, we neither reweigh the evidence nor assess witness credibility, but will consider only the evidence most favorable to the Review Board's findings. Id. In the instant case, the Review Board adopted and incorporated the ALJ's findings of fact and conclusion of law. In its findings of fact, the ALJ concluded that: [o]n Wednesday, January 14, 2009, the Claimant ... attempted to file an appeal of a Determination of Eligibility issued by IDWD on Friday, December 12, 2008. It is apparent from the face of the Determination/Appeal that the appeal was not filed within the statutory thirteen (13) day time period for timely appeal. Appellant's App. p. 18. In its conclusion of law, the ALJ determined that Cunningham's appeal was untimely because under Indiana law, she had thirteen days to appeal her eligibility determination and failed to appeal within that time. Generally, claimants have ten days from the date that their eligibility notice is delivered to request a hearing before the eligibility determination becomes final and "benefits shall be paid or denied in accordance therewith." Ind.Code § 22-4-17-2(e). In addition, Indiana Code section 22-4-17-14 provides that claimants have three additional days if their "notice is served through the United States mail." *207 In the instant case, because Cunningham received her eligibility notice by mail, she had thirteen days to appeal the claim deputy's determination that she was ineligible to receive unemployment benefits. The record shows that Cunningham's eligibility determination letter was mailed on December 12, 2008. And Cunningham's notice of appeal was stamped "Received" by the Appeals Division on January 14, 2009. Appellant's App. p. 8-9. Therefore, based upon this evidence, we cannot say that the Review Board's findings were not based upon substantial evidence or that its conclusion was not reasonable in light of these findings. See Szymanski v. Review Bd. of Ind. Dep't of Workforce Dev., 656 N.E.2d 290, 293 (Ind.Ct.App.1995) (stating that "[i]t is well settled that when a statute contains a requirement that an appeal or notice of the intention to appeal shall be filed within a certain time, strict compliance with the requirement is a condition precedent ... and non-compliance with the requirement results in dismissal of the appeal"). Moreover, although Cunningham also submitted a copy of the Conciliation Agreement to the Review Board, this evidence was not considered. Inasmuch as the Conciliation Agreement was an agreement between Cunningham and Employer that disposed of Cunningham's discrimination complaint, it was not relevant to the timeliness of Cunningham's appeal of the denial of her unemployment benefits. Therefore, based upon the relevant evidence before it, the Review Board did not err by affirming the ALJ's dismissal of Cunningham's appeal as untimely. Consequently, we affirm the decision of the Review Board. The decision of the Review Board is affirmed. MAY, J., and BARNES, J., concur. ORDER Appellee Review Board of the Indiana Department of Workforce Management, by counsel, had filed a Motion to Publish. Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS: 1. Appellee Review Board's Motion to Publish is GRANTED. This Court's opinion handed down in this cause on June 18, 2009, marked Memorandum Decision, Not for Publication, is now ORDERED PUBLISHED. BAKER, C.J., and MAY and BARNES, JJ., concur. NOTES [1] The Conciliation Agreement appears to have been formally entered by Cunningham and Employer on January 22, 2009. [2] From the Conciliation Agreement supplied by Cunningham, it appears that Cunningham brought her discrimination complaint to the IMEO and not the Equal Employment Opportunity Commission. [3] There is some confusion surrounding the fax transmission log. On February 25, 2009, Cunningham notified the Review Board that she was appealing its decision to this court. Attached to this notice was a fax transmission log dated November 11, 2008. The Review Board stamped the notice and fax transmission log as "RECEIVED" on February 25, 2009. Appellee's App. p. 12-13. In the Appellant's Appendix, Cunningham included a fax transmission log dated December 24, 2008, which she alleges proves that she timely filed an appeal to the Appeals Division of the denial of her unemployment benefits. This fax transmission log is not stamped. Interestingly, the two fax transmission logs are identical except that the one stamped by the Review Board is from November 11, 2008, and the one contained in Cunningham's Appendix is from December 24, 2008. Specifically, the fax numbers that were dialed, the number of pages of each fax, the duration of each fax, and whether or not the fax was successfully transmitted is identical on both fax transmission logs. Indeed, it is quite a coincidence that fax transmission logs from two different dates would contain this exact same information. Finally, we note that other than the parties' Appendixes, there is no fax transmission log contained in any other filings with this court.

Citation Nr: 1446170 Decision Date: 10/17/14 Archive Date: 10/30/14 DOCKET NO. 08-18 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from August 1964 to May 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision by the Department of Veterans Affairs (VA) Montgomery, Alabama Regional Office (RO). The Board notes that the Veteran's June 2008 Substantive Appeal also included the issue of entitlement to service connection for type II diabetes mellitus. In November 2011, however, the RO granted the Veteran's claim for service connection. Accordingly to the documents to which the Board has access, the Veteran has not perfected an appeal of the assigned evaluation or effective date of that grant. Given that this represents a complete grant of benefits on appeal, the Board need not consider this issue. On his Substantive Appeal, the Veteran also requested the opportunity to testify before a Decision Review Officer at the Regional Office. He was scheduled for such a hearing, but in April 2011, the Veteran stated that he wished to withdraw his hearing request. This claim was previously before the Board in April 2012, at which time the Board remanded the claim for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required in this case to ensure due process. The Veteran's claim for entitlement to TDIU was remanded by the Board in April 2012 to develop and adjudicate in the first instance. To date, the claims file contains no record of any development on this issue. Administrative records indicate that a temporary file was created post-Board remand but that file cannot be located and associated with the claims file. After the April 2012 Board remand, the paper claims file contains no documents. Since the April 2012 remand, the Veterans Benefits Management System contains records that are unrelated to the claim on appeal. The Virtual VA paperless system contains notification regarding the Veteran's dependency claim, VA treatment records dated from 2010 to 2014, and other records unrelated to the claim on appeal. Accordingly, the Board cannot determine whether the April 2012 remand directives have been complied with, as the claims file contains no relevant development from April 2012 through the present. Therefore, upon remand, the AOJ must undertake rebuilding the claims file or simply redevelop the claim as requested in the 2012 remand. Accordingly, the case is REMANDED for the following action: 1. Rebuild the Veteran's claims file to the extent possible, including any other documents that may be indicated as potentially relevant to his TDIU claim, per the VA Adjudication Procedure Manual. 2. If rebuilding the claims file is not possible or if no development of the Veteran's TDIU claim has been accomplished, the AOJ must: a. Provide the Veteran with the necessary VCAA notice regarding his TDIU claim. b. Provide the Veteran a VA examination or social and industrial evaluation, whichever is appropriate, to determine the impact of his service-connected disabilities on his employability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and reviewed by the examiner. The examiner must elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide comment upon the effects of the Veteran's service-connected disabilities on his employment, to include consideration of his education and occupational experience, but irrespective of age and any nonservice-connected disorders. A full explanation for all opinions expressed must be provided. 3. After completing the above action, to include either rebuilding the claims file or conducting the required development, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).

2006 SD 111 STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DUANE L. RUNGE, Defendant and Appellant. No. 23939 Supreme Court of South Dakota. Argued October 2, 2006 Opinion Filed December 6, 2006 LAWRENCE E. LONG, Attorney General, KATIE L. HANSEN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee. ROBERT G. FITE of Fite and Piercem Brookings, South Dakotam Attorneys for defendant and appellant. GILBERTSON, Chief Justice [¶1.] The South Dakota Third Judicial Circuit Court entered a judgment of conviction and sentence for third offense driving while intoxicated, against Duane L. Runge on December 6, 2005. The court amended and filed the judgment of conviction and sentence on December 27, 2005. A sentence of 18 months in the South Dakota State Penitentiary was imposed. We affirm. FACTS AND PROCEDURE [¶2.] At approximately 9:20 p.m. on January 5, 2005, Duane L. Runge (Runge) stopped at the 22nd Avenue fire station in Brookings, South Dakota. He had noticed that the pickup truck belonging to his friend Jeremy Jensen (Jensen), a volunteer fireman, was parked there with its lights on. Runge pulled his pickup into the station and parked at about the same time volunteer fireman William Rupp (Rupp) was arriving. Runge exited his pickup, approached Rupp and inquired into what was going on. Rupp told Runge that there was a live fire call taking place and that he would have to move his vehicle because it was blocking one of the fire station's overhead doors. Runge returned to his pickup and proceeded to move it from the 22nd Avenue side of the fire station around to the station's north side. Runge once again exited his pickup, this time entering the fire station. [¶3.] Once inside Runge again asked what was going on at the fire station. Rupp and other volunteer firemen present at the station explained that there was a live fire call taking place. Runge inquired as to the whereabouts of Jensen. Runge was told that Jensen was at the fire call. Runge indicated that he was concerned about the lights remaining on the Jensen's unattended pickup truck and asked if he could shut them off. Rupp and the other firemen did not know Runge and told him to stay away from Jensen's vehicle. By this time, Rupp and the others observed that Runge smelled of alcohol, had slurred speech, and stumbled as he walked about. Runge remained inside the fire station for several minutes after he was refused access to Jensen's pickup. Eventually he was told to leave. Runge then left the fire station, got into his pickup, and drove away. [¶4.] At about the same time Runge was leaving, Jayson Lenander (Lenander), another volunteer fireman, was arriving at the fire station. Lenander observed that as Runge was leaving the fire station, he nearly backed into a vehicle belonging to another fireman. The firemen inside the station had unsuccessfully attempted to radio the Brookings Police Department (BPD) from one of the fire trucks to request removal of an unidentified and apparently intoxicated person. Lenander was advised of the situation by the other firemen and at about 9:30 p.m. used his cell phone to call BPD to report that a suspected drunk driver had just left the fire station. Lenander relayed a description of the pickup Runge was driving, the license plate number and information about Runge's visit reported to him by others at the fire station. [¶5.] When Jensen returned from the fire call, Lenander handed him his cell phone and advised him to call BPD because they wanted to talk to him. By the time Jensen called at about 9:40 p.m., BPD had run the license plate and determined the pickup belonged to Runge. The dispatcher asked Jensen if he knew Runge and if so where he might have been headed. Jensen indicated he knew Runge and that he may have been headed to Jensen's apartment in Brookings at 830 Park Avenue, #9. [¶6.] At approximately 9:55 p.m., BPD Officer Joey Collins (Collins) heard a radio report from another BPD officer that a pickup matching the description of Runge's was in the parking lot of the apartment building at 830 Park Avenue. Collins proceeded to the address, arriving a short time before BPD Officer Perry (Perry). Collins observed that Runge's pickup was still running. Collins and Perry went inside the building to Jensen's apartment and knocked on the door. Jensen's girlfriend Jessica Hougland (Hougland) answered. Hougland had been living at the apartment since September 2004. Collins asked if Jensen or the other tenant on the lease, Travis Anderson (Anderson), were home. Hougland responded that they were not. Collins then asked if Runge was there. Hougland responded that Runge was present and then invited the officers in while she went to get Runge. [¶7.] Runge, who was a friend of Jensen's, appeared drinking a beer. Collins noticed that Runge's eyes were bloodshot; his face was pale; he had slurred speech; and when standing in one spot, he would sway. Collins asked Runge to accompany them outside. Runge left with the officers and went out to Collins's patrol car. After an interview and field sobriety test, Runge was arrested for third offense driving while intoxicated. [¶8.] On October 18, 2005, the circuit court entered a finding of guilt against Runge in a bench trial. This conviction was based on the stipulated admission of transcripts of witness testimony from a February 22, 2005 preliminary hearing and a May 3, 2005 suppression motions hearing from which findings of fact and conclusions of law were entered. Runge was ultimately sentenced to 18 months in the South Dakota State Penitentiary. He appeals the circuit court's order denying his motion to suppress evidence and raises the following issues: 1. Whether law enforcement officers had valid third-party consent to enter the apartment. 2. Whether Runge voluntarily consented to accompany law enforcement officers out of the apartment for a brief detention and investigation in a patrol car. STANDARD OF REVIEW [¶9.] "`A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.' " State v. Kottman, 2005 SD 116, ¶9, 707 NW2d 114, 118 (citations omitted). This Court gives no deference to the circuit court's conclusions of law and applies the de novo standard. State v. Schouten, 2005 SD 122, ¶9, 707 NW2d 820, 822 (citations omitted). We review the circuit court's factual determinations under the clearly erroneous standard. State v. Aaberg, 2006 SD 58, ¶8, 718 NW2d 598, 600 (citations omitted). The circuit court's application of a legal standard to the facts, once determined, is fully reviewable by this Court. Id. (citations omitted). ANALYSIS AND DECISION [¶10.] 1. Whether law enforcement officers had valid third-party consent to enter the apartment. [¶11.] Runge argues that BPD Officers Collins and Perry did not have valid consent to enter Jensen's apartment at 830 Park Avenue, #9. Neither of the parties on the lease were at home when Collins and Perry arrived at the apartment. Runge asserts that Hougland, who was not on the lease, did not have the authority to consent to the BPD officers' entry into the apartment. Alternatively, he contends that no consent was asked for by BPD officers and that none was given by Hougland. [¶12.] A warrant is generally required for conducting an on-premise search; however, there are exceptions to this requirement. State v. Fountain, 534 NW2d 859, 863 (SD 1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 SCt 2041, 2043, 36 LEd2d 854, 858 (1973); Katz v. United States, 389 U.S. 347, 357, 88 SCt 507, 514, 19 LEd2d 576, 585 (1967); State v. Almond, 511 NW2d 572, 574 (SD 1994))). One exception is when law enforcement officers obtain consent to search. State v. Meyer, 1998 SD 122, ¶24, 587 NW2d 719, 724. Consent is valid if given voluntarily by someone with authority. Id. (citing State v. Benallie, 1997 SD 118, ¶11, 570 NW2d 236, 238). Whether consent is given voluntarily must be viewed within the totality of the circumstances. Benallie, 1997 SD 118, ¶10, 570 NW2d 236, 238 (citing State v. Krebs, 504 NW2d 580, 587 (SD 1993)). The State must prove by clear and convincing evidence that consent was voluntarily given. Id. (citing State v. McGarrett, 535 NW2d 765, 767 (SD 1995)). [¶13.] Consent to search a premises can be obtained from either an owner or a third party with common authority over the premises. State v. Guthrie, 2001 SD 61, ¶55, 627 NW2d 401, 423 (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 110 SCt 2793, 2797, 111 LEd2d 148, 156 (1990)). In United States v. Matlock, the United States Supreme Court determined that common authority is not implied from a mere property interest. 415 U.S. 164, 171 n7, 94 SCt 988, 993 n7, 39 LEd2d 242 n7 (1974). The authority justifying third-party consent does not arise out of property law. Id. (citing Chapman v. United States, 365 U.S. 610, 81 SCt 776, 5 LEd2d 828 (1961) (holding that a landlord could not validly consent to the search of a house he had rented to another); Stoner v. California, 376 U.S. 483, 84 SCt 889, 11 LEd2d 856 (1964) (holding that a night hotel clerk could not validly consent to the search of a customer's room)). Rather the common authority validating third-party consent is grounded in the mutual use of the property by persons generally having joint access or control for most purposes. Id. [¶14.] At the motions hearing, Hougland testified that sometime after Runge arrived at the apartment, she heard a knock at the door. When she answered the door, Officers Collins and Perry were standing in the hall. Hougland then testified to the following exchange with Collins: He asked if Jeremy [Jensen] was there, and I said no, and he had a roommate at the time, and he asked if he was there, and I said no, and he asked if Duane Runge was there, and I said yeah, and I invited him in, and I went and got Duane. [¶15.] Collins testified that Perry and he walked in with Hougland when she went to get Runge. No evidence was presented that Collins or Perry made any threats or exercised any coercion to gain access to the apartment. The circuit court entered in its findings of fact following the motions hearing that an invitation to enter the apartment was extended by Hougland to Collins and Perry. [¶16.] Hougland also testified at both the preliminary and motions hearings that she had been living at the apartment since the end of September 2004. She had stayed each night at the apartment since that time and kept clothing there. She was taking a shower when Runge came into the apartment on January 5, 2005. Her father who was a BPD officer, called her that night at the apartment to check on her after learning that BPD officers had been dispatched to that address. Hougland kept no other residence. [¶17.] Jensen also testified at the motions hearing. He too indicated that Hougland had lived at the 830 Park Avenue apartment continuously since September of 2004. Jensen stated that although Hougland did not share in the expenses, she lived at the apartment "full time." She had permission to invite people in as needed and that the apartment "was considered her residence." The circuit court subsequently stated in its memorandum opinion on the motion (which it incorporated by reference into its findings) that Hougland had been living with Jensen at the 830 Park Avenue apartment since September of 2004. [¶18.] Based on the record, we must defer to the circuit court's finding that Hougland issued an invitation to Collins and Perry to enter the apartment. This invitation constituted a valid consent for Collins and Perry to enter the apartment. In addition, there is nothing in the record to indicate that Hougland's invitation to the officers was involuntary. Finally, as a full-time resident of the apartment for over three months, Hougland also had the authority to consent to the officers' entry. We therefore affirm the circuit court's conclusion on this issue. [¶19.] 2. Whether Runge voluntarily consented to accompany law enforcement officers out of the apartment for a brief detention and investigation in a patrol car. [¶20.] Runge argues that he did not voluntarily consent to accompany BPD Officers Collins and Perry out of the 830 Park Avenue apartment. Runge claims he did not feel that he had any choice but to accompany the officers. Runge stated at the suppression motions hearing that Collins started to become agitated when Runge questioned the reason why the officers wanted him to accompany them to their patrol car. He stated that he agreed to go with the officers because he was afraid that he would be restrained and physically removed if he did not comply. Runge also claims that after exiting Jensen's apartment into the common hallway, he continued to follow the officers out of the building as the three conversed because again he felt he had no choice. However we note, the circuit court found Runge's testimony not to be credible. [¶21.] Collins testified at the preliminary hearing that he had no problem with Runge. Collins indicated that once inside Jensen's apartment, he asked Runge to come with him to the patrol car and that Runge agreed. Moreover, Collins stated that once Runge was at the patrol car he agreed to submit to a field sobriety test. [¶22.] Hougland testified that after Runge came out of Anderson's bedroom, he and the officers went into the kitchen and had a brief conversation while she sat in the living room. She could not hear what was being discussed. After a short time, the officers turned and walked out of the apartment and Runge followed them. [¶23.] The circuit court, in its Finding of Fact 17, issued after denying Runge's motion, found that he voluntarily accompanied the officers to the patrol car after Collins asked following their brief discussion in the apartment. In addition, the circuit court found that once at the patrol car, Runge when asked submitted to a field sobriety test. [¶24.] We cannot find any basis on which to determine the circuit court's findings clearly erroneous. Accordingly, we must defer to the circuit judge who was present to hear all of the live testimony in this case. Whether Runge personally had an expectation of privacy in Jensen's apartment is not a question necessary to consider in reviewing this case.[1] Runge waived any right to a Fourth Amendment challenge to the evidence against him, based on a claim of illegal search and seizure, because he voluntarily consented to Collins' requests.[2] [¶25.] Affirmed. [¶26.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur. NOTES [1] Runge raised a third issue in his brief: whether as a frequent visitor and occasional overnight guest at Jensen's apartment he therein had an expectation of privacy. [2] Runge also raised a fourth issue in his brief: whether he could be seized from the apartment based upon a reasonable suspicion that he was driving while intoxicated. The circuit court stated in its conclusions of law that having found Runge's pickup running in the apartment parking lot and based on the citizen reports that led BPD Officers Collins and Perry to the 830 Park Avenue apartment, there was reasonable suspicion to briefly detain Runge for investigative purposes. Based on their subsequent personal observations of Runge, the circuit court also concluded that the officers had reasonable suspicion if not probable cause to briefly detain him and investigate the report of driving while intoxicated. In its incorporated opinion the circuit court stated that the facts of the instant case are no different than where a defendant is encountered a short distance from his vehicle on a highway. The circuit court implied that under those circumstances reasonable suspicion of criminal activity would be sufficient to justify a brief detention and investigation. We pass on consideration of whether the circumstances of the instant case constitute the same type of scenario as that concluded by the circuit court. The issue is not determinative to the disposition of this case since Runge voluntarily consented to the requests of Collins. In passing on this issue however, we do not overlook the basic Fourth Amendment principle that absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect seizure without a warrant. Steagald v. United States, 451 U.S. 204, 101 SCt 1642, 68 LEd2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 SCt 1371, 63 LEd2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 SCt 367, 92 LEd 436 (1948).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION STATE FARM MUTUAL CV 20-130-M-DWM AUTOMOBILE INSURANCE COMPANY, Plaintiff, OPINION & ORDER VS. TANNER HAMES, Defendant, and KYIA HENDRICKSON, Defendant-Intervenor. State Farm seeks a declaratory judgment that it has no duty to defend or indemnify the defendant, Tanner Hames, in an underlying state court action arising from his alleged sexual assault of the defendant-intervenor, Kyia Hendrickson. At the time of the alleged incident, Hames was covered under an auto insurance policy that excludes coverage for “an insured who intentionally causes bodily injury or damage to property.” State Farm moved for summary judgment, and Hendrickson filed a cross-motion for summary judgment. State Farm’s motion is granted, and Hendrickson’s motion is denied. 1 FACTUAL BACKGROUND! State Farm issued four automobile insurance policies to Hames’s father that covered different vehicles between 2015 and 2017. (Doc. 16,41.) “[T]he same coverage issue and policy language . . . exist for each policy,” (Doc. 1, { 6), and Hames was covered under the policies as an “insured,” (id.). The policy language states, “THERE IS NO COVERAGE FOR AN INSURED ... WHO INTENTIONALLY CAUSES BODILY INJURY OR DAMAGE TO PROPERTY.” (Doc. 16, { 17.) On November 8, 2019, Wade Hendrickson filed a civil complaint (“the Underlying Complaint”) in Montana state district court (“the underlying action”) on behalf of his minor child.? (Doc. 1-2.) The Underlying Complaint alleged that Hames sexually assaulted 14-year-old Kyia Hendrickson on November 12, 2016, and because of her age, she was legally incapable of consent. (Doc. 16, ff 3, 4.) At the time, Hames was 17 years old. (Doc. 1-2, J 12.) The Underlying Complaint advances several claims against Hames: childhood sexual abuse (Counts I and II); negligence (Count IV); negligence per se (Count V); and intentional infliction of emotional distress (Count VII). (Doc. 16, J 5 (citing Underlying Compl. (Doc. 1-2, q{ 43-56, 65-77, 85—-90).) Subject to a reservation of rights, State Farm ' All facts are undisputed unless otherwise indicated. (Docs. 16, 22.) ? The child, Kyia Hendrickson, is now over the age of 18. (Doc. 13 at 2.) 2 provided—and continues to provide—Hames with a defense in the underlying action. (/d. J 13.) State Farm filed suit in this Court, seeking a declaratory judgment that it has no duty to defend Hames in the underlying action pursuant to any of the policies issued to Hames’s father, nor does it have a duty to indemnify. (Doc. 1.) State Farm has since moved for summary judgment on those questions. (Doc. 14.) After Hames filed a notice that he intended not to respond to State Farm’s motion, (Doc. 18), Hendrickson intervened, (Docs. 12, 20). Hendrickson filed a cross- motion for summary judgment, arguing that State Farm has a duty to defend and indemnify Hames. (Doc. 21.) LEGAL STANDARD Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On cross-motions for summary judgment, the court independently reviews each motion and its supporting evidence. See Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1137 (9th Cir. 2001). Each motion is evaluated separately, “giving the nonmoving party in each instance the benefit of all reasonable inferences.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1150 (9th Cir. 2016). Sitting in diversity, Montana’s substantive law on contract interpretation applies. See Ticknor v. Choice Hotels Intern Inc., 265 F.3d 931, 937 (9th Cir. 2001). “In Montana, the interpretation of an insurance contract is a question of law.” Barnard Pipeline, Inc. v. Travelers Prop. Cas. Co. of Am., 3 F. Supp. 3d 865, 870 (D. Mont. 2014). ANALYSIS The duty to defend “is independent from and broader than the duty to indemnify created by the same insurance contract.” Tidyman’s Mgmt. Servs., Inc. v. Davis, 330 P.3d 1139, 1149 (Mont. 2014) (internal quotation marks omitted). The duty to defend is contingent on the factual allegations set forth against the insured in an underlying complaint. See Graber v. State Farm Fire & Cas. Co., 797 P.2d 214, 217 (Mont. 1990). The insurer must defend against the underlying action if the complaint “alleges facts which, if proved, would result in coverage.” Tidyman’s Mgmt. Servs., 330 parkerbenjamin@example.org. Because Montana follows “the ‘mixed action’ rule, which requires an insurer to defend against all counts in a complaint so long as one count potentially triggers coverage,” State Farm Fire & Cas. Co. v. Schwan, 308 P.3d 48, 51 (Mont. 2013) (internal citation omitted), Hames must show that coverage exists on only one of the underlying claims to trigger the duty to defend. If, however, there is no duty to defend based on the allegations in the Underlying Complaint, State Farm has no duty to indemnify. Farmers Ins. Exch. v. Wessel, 477 P.3d 1101, 1106 (Mont. 2020). Because the Underlying Complaint does not allege facts that meet the 4 definition of “accident,” it does not “allege{] facts which, if proved, would result in coverage.” Tidyman’s Mgmt. Servs., Inc., 330 parkerbenjamin@example.org. And, because State Farm has no duty to defend Hames in the underlying action, it does not have a duty to indemnify him. Wessel, 477 parkerbenjamin@example.org. L Duty to Defend While the policy language does not define the term “accident,” the Montana Supreme Court has clarified that, “[g]enerally, the term ‘accident’ from the standpoint of the insured reasonably refers to any unexpected happening that occurs without intention or design on the part of the insured.” Landa v. Assurance Co. of Am., 307 P.3d 284, 288 (Mont. 2013) (internal quotation marks omitted). The Montana Supreme Court has since explained that an intentional act may be an “accident” if “the consequence or resulting harm stemming from the act was [not] intended or expected from the actor’s standpoint.” Emps. Mut. Cas. Co. v. Fisher Builders, Inc., 371 P.3d 375, 378 (Mont. 2016) abrogating Blair v. Mid-Continent Cas. Co., 167 P.3d 888 (Mont. 2007). Hendrickson’s argument that Hames’s admittedly intentional conduct is an “accident” is unpersuasive. The Court considered a nearly identical argument in State Farm Mutual Automobile Insurance Company v. Croft, 2019 WL 6311136, at *2 (D. Mont. Nov. 25, 2019). In Croft, the defendant-insured was accused of sexually assaulting his minor granddaughters and causing them emotional distress. The Court rejected the argument that the results of the assault were not objectively expected or intended as to render the assault an “accident.” Jd. The Court explained that “[vJirtually every court which has considered the question has held that an adult’s sexual assault of a child does not constitute an occurrence or accident for coverage purposes, because the intent to harm is inferred from the act itself.” Id. (quoting Allstate Ins. Co. v. Nishibata, 2007 WL 510136, at *4 (D. Haw. Feb. 12, 2007) (collecting cases)); see also Smith v. State Farm Ins. Cos., 870 P.2d 74, 76 (Mont. 1994) (noting that it would be poor public policy to indemnify “willful wrongdoing” and finding that “there is no insurance coverage for striking someone in the face.”). Here, Hames was not over the age of 18 when the assault occurred, (Doc. 1- 2, J 12), but he was over the age of majority for purposes of consent, see Mont. Code Ann. § 45—5—501(1)(b)(iv) (indicating 16 years old as the age of consent). Hendrickson was 14 years old at the time of the alleged assault, (Doc. 1-2, | 9), and therefore Hames’s “intent to harm is inferred from the [alleged] act itself” Croft, 2019 WL 6311136, at *2, Because the harm resulting from the sexual assault of a child is inherent in the act, the situation here is distinguishable from the case on which Hendrickson relies, American Reliable Insurance Co. v. Vlieland, 2018 WL 1582551, at *3 (D. Mont. Mar. 30, 2018). In Vlieland, the Court held that the insurer had a duty to defend the defendant-insured for arguably intentional Hendrickson relies, American Reliable Insurance Co. v. Vlieland, 2018 WL 1582551, at *3 (D. Mont. Mar. 30, 2018). In Vlieland, the Court held that the insurer had a duty to defend the defendant-insured for arguably intentional conduct that included pointing a gun at neighbors and poisoning the neighbors’ dog because the alleged resulting emotional harm was not expected. /d. But unlike the conduct at issue here and in Croft, the emotional harm in Vlieland could not be “inferred from the act itself.” II. Duty to Indemnify “When there is no duty to defend, there cannot be a duty to indemnify.” Wessel, 477 parkerbenjamin@example.org. As explained above, State Farm has no duty to defend Hames in the underlying action, and accordingly, it has no duty to indemnify. CONCLUSION Because the Underlying Complaint does not allege facts that, if proven, would trigger coverage under the policies, IT IS ORDERED that State Farm’s motion, (Doc. 14), is GRANTED and Hendrickson’s motion, (Doc. 21), is DENIED. The Clerk is directed to enter judgment consistent with this order and close the case. DATED this day of June, 2021, United Stat istrict Court 7 Donald Ws Mo} oy, District Judge 

Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 18 Misc. 538 (P1) In re Subpoena and Deposition Notice to George Howard III Related to Tholen v. Assist America, Inc., No. 17 Civ. 3919 (DWF) (SER) (D. Minn.) MEMORANDUM OF NON-PARTY GEORGE HOWARD III IN SUPPORT OF MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER Serrin Turner Ryan S. Baasch LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022 Tel: 223.715.2370 Attorneys for Non-Party George Howard III  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 2 of 20 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 LEGAL STANDARD......................................................................................................................7 ARGUMENT ...................................................................................................................................8 I. THE SUBPOENA SHOULD BE QUASHED BECAUSE INFORMATION ABOUT MR. HOWARD IS IRRELEVANT AND ANY RELEVANT INFORMATION ABOUT THE COMPANY CAN BE OBTAINED FROM ASSIST AMERICA .............................................................................................................8 II. A PROTECTIVE ORDER VACATING MR. HOWARD’S DEPOSITION NOTICE IS WARRANTED FOR THE SAME REASONS THAT THE SUBPOENA SHOULD BE QUASHED ...........................................................................12 CONCLUSION ..............................................................................................................................15 i  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 3 of 20 TABLE OF AUTHORITIES Page(s) CASES 3M Co. v. ACS Indus., Inc., 2016 WL 9308317 (D. Minn. Mar. 10, 2016) .........................................................................13 Cardenas v. Prudential Ins. Co. of Am., 2003 WL 21293757 (D. Minn. May 16, 2003) ........................................................................13 City of Farmington Hills Emp. Ret. Sys. v. Wells Fargo Bank, N.A., 2012 WL 13048263 (D. Minn. Sept. 17, 2012) .......................................................................13 Deluca v. Bank of Tokyo-Mitsubishi UFS, 2007 WL 2589534 (S.D.N.Y. Aug. 30, 2007) ...........................................................................8 In re Dixie Farms Market, 28 F. App’x 673 (9th Cir. 2002) ................................................................................................8 Filetech, S.A. v. France Telecom, S.A., 1999 WL 92517 (S.D.N.Y. Feb. 17, 1999) ........................................................................14, 15 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) ...................................................................................................................8 Hanson v. Loparex Inc., 2010 WL 11432148 (D. Minn. Sept. 27, 2010) .......................................................................13 HCA Health Servs. of Midwest, Inc. v. Nat’l Bank of Commerce, 745 S.W.2d 120 (Ark. 1988)....................................................................................................10 Lacount v. Salkowski, 654 N.W.2d 295 (Wis. Ct. App. 2002) ....................................................................................10 Miller Brewing Co. v. Best Beers of Bloomington, Inc., 579 N.E.2d 626 (Ind. Ct. App. 1991), vacated on other grounds, 608 N.E.2d 975 (1993) ................................................................................................................................10 Moe v. Sys. Transp., Inc., 270 F.R.D. 613 (D. Mont. 2010)................................................................................................8 N’Diaye v. Metro. Life Ins. Co., 2018 WL 2316335 (S.D.N.Y. May 8, 2018) ...........................................................................10 Nachurs Alpine Solutions, Corp. v. Nutra-Flo Co., 2017 WL 1380460 (N.D. Iowa Apr. 17, 2017) ........................................................................11 ii  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 4 of 20 Night Hawk Ltd. v. Briarpatch Ltd., 2003 WL 23018833 (S.D.N.Y. Dec. 23, 2003) .........................................................................7 Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181 (N.D. Ill. 2013) .................................................................................................8 Peoples Nat’l Bank, N.A. v. Mehlman, 2016 WL 3268761 (E.D. Mo. June 7, 2016) ...........................................................................11 Schoolcraft v. City of New York, 2012 WL 2161596 (S.D.N.Y. June 14, 2012) ...........................................................................7 Shetka v. Kueppers, Kueppers, Von Feldt, and Salmen, 454 N.W.2d 916 (Minn. 1990)...............................................................................................1, 9 In re Ski Train Fire of Nov. 11, 2000 Kaprun Austria, 2006 WL 1328259 (S.D.N.Y. May 16, 2006) .........................................................................13 Smartix Int’l, L.L.C. v. Garrubbo, Romankow & Capese, P.C., 2007 WL 4166035 (S.D.N.Y. Nov. 20, 2007) ...........................................................................7 Smith v. Courter, 575 S.W.2d 199 (Mo. Ct. App. 1978) ........................................................................................9 Stone v. Morton Int’l Inc., 170 F.R.D. 498 (D. Utah 1997) ...............................................................................................15 Thomas v. Int’l Business Machs., 48 F.3d 478 (10th Cir. 1995) ...................................................................................................13 Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588 (D. Kan. 2003)..................................................................................................7 Treppel v. Biovail Corp., 2006 WL 468314 (S.D.N.Y. Feb. 28, 2006) ............................................................................14 Warnke v. CVS Corp., 265 F.R.D. 64 (E.D.N.Y. 2010) ...............................................................................................11 STATUTES Minn. Stat. § 549.20 subdiv. 3 .........................................................................................................9 RULES Fed. R. Civ. P. 26(b)(2)(C)(i) ........................................................................................................11 Fed. R. Civ. P. 26(c) ........................................................................................................................8 iii  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 5 of 20 Fed. R. Civ. P. 26(c)(1) ....................................................................................................................7 Fed. R. Civ. P. 45, Advisory Committee Note to 1970 Amendment...............................................7 Fed. R. Civ. P. 45(d)(3)(A)(iv) ........................................................................................................7 iv  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 6 of 20 PRELIMINARY STATEMENT On August 24, 2017, Dr. Richard H. Tholen (“Tholen”) commenced a diversity action in Minnesota District Court against Assist America, Inc. (“Assist America” or “AA”) for tort and contract claims arising out of a discrete personal injury dispute. See Tholen v. Assist America, No. 17 Civ. 3919 (D. Minn.).1 Movant George Howard III, who resides in New York, is Assist Amer- ica’s founder and chairman of the board, but he is not a party to the underlying action, nor was he involved in any of the conduct alleged in Tholen’s complaint. Apparently recognizing Mr. How- ard’s irrelevance to the lawsuit, Tholen never sought any documents or information from (or about) Mr. Howard throughout fact discovery. But in August of this year, as fact discovery was about to close, Tholen was permitted to amend his complaint to add a claim for punitive damages, and he apparently now believes this opens the door to discovery on Mr. Howard. He is flat wrong. First, Tholen has propounded a subpoena duces tecum that seeks production of documents (in this district) about Mr. Howard’s personal information—chiefly, his finances. Yet these doc- uments do not bear a shred of relevance to punitive damages. Minnesota law is crystal clear that financial information about a non-party has no bearing on the availability or amount of punitive damages, and that “discovery directed to ascertaining such information is not relevant nor, if fur- nished, would [be] information lead[ing] to relevant admissible evidence.” Shetka v. Kueppers, Kueppers, Von Feldt, and Salmen, 454 N.W.2d 916, 921 (Minn. 1990). Alternatively, to the extent Tholen’s document subpoena seeks information about Assist America’s financial condition, he is seeking it from the wrong place. A plaintiff cannot seek documents from a non-party if the docu- ments can be more easily obtained from the opposing party in the litigation. If Tholen wants documents about Assist America, he can, and must, seek them from Assist America itself. 1 All docket cites contained herein are to the docket in this underlying action. 1  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 7 of 20 Second, Tholen has also issued a deposition notice seeking to depose Mr. Howard (again, in this district). The deposition notice is improper for similar reasons as the subpoena. First, insofar as Tholen seeks to depose Mr. Howard about his personal finances, such information is categorically irrelevant to the issue of punitive damages. And insofar as Tholen seeks to depose Mr. Howard about Assist America’s financial information, once again he is seeking this infor- mation from the wrong source. Case law on this point too is clear: In a suit with a corporate defendant, the plaintiff cannot depose a top executive (such as Mr. Howard) unless that executive possesses some unique knowledge relevant to the case and the information is unavailable through less burdensome means (e.g., from lower-ranking employees). Mr. Howard possesses no special knowledge about the company’s financial condition that the company itself cannot provide, and Tholen has not come close to exhausting efforts to seek such information directly from the com- pany. Accordingly, this Court should quash Tholen’s subpoena and enter a protective order blocking Mr. Howard’s deposition from going forward. FACTUAL BACKGROUND On August 24, 2017, Tholen initiated a diversity action against Assist America, a provider of global emergency medical services, in the United States District Court for the District of Min- nesota, alleging claims for negligence and breach of contract. See Compl. ¶¶ 1, 64-85, Dkt. No. 1. The thrust of the Tholen’s complaint is that, while he was traveling abroad, AA allegedly failed to provide him with an emergency medical evacuation to which he believes he was entitled under his membership in the American Medical Association. See id. ¶¶ 19-20. In particular, Tholen alleges that, while vacationing in Mexico, he suffered a severe injury on April 19, 2015, but AA did not provide an emergency evacuation because it believed at the time he was receiving appro- priate medical care at a Mexican hospital. Id. ¶¶ 28, 53. Tholen boarded a flight out of Mexico 2  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 8 of 20 on April 21, 2015 with an extended layover at an intermediary airport and “eventually landed in Minnesota”—his home state—the next morning. Id. ¶ 55. Tholen saw orthopedic and vascular surgeons later that day and had multiple surgical procedures done “[o]ver the course of several weeks.” Id. ¶¶ 56-60. It was ultimately determined that Tholen would need a leg amputation. Id. ¶ 61. Tholen sued AA, initially seeking “[a]n award of damages, including interest, in an amount to be determined at trial” as well as “costs, expenses, attorney’s fees, and disbursements.” Id. at Request for Relief. He did not initially seek punitive damages. On December 15, 2017, the district court entered a scheduling order setting June 1, 2018 as the deadline for motions to add a claim for punitive damages, and August 1, 2018 as the deadline for fact discovery. See Dkt. No. 14. Fact discovery was later extended to August 31, 2018. See Dkt. No. 30. After conducting substantial discovery, on May 15, 2018, Tholen filed a motion for leave to amend the complaint to assert punitive damages. See Dkt. No. 31. That motion was denied on procedural grounds on June 29, 2018, Dkt. No. 85, but Tholen filed a corrected version on July 13, 2018, Dkt. No. 87. Specifically, Tholen sought leave to add a punitive damages claim based on allegations that specific AA employees did not gather Tholen’s medical information in accordance with AA’s policies, and that AA’s clinical director failed to timely respond to Tholen’s concerns. See Dkt. No. 88 at 3; Am. Compl., Dkt. No. 96 ¶¶ 49-51, 66-77, 106-114, 121-130. AA opposed Tholen’s motion, arguing that amendment would be futile because Tholen failed to allege the requisite knowledge or intentional disregard necessary for punitive damages, and because pu- nitive damages are unavailable for contract claims. Dkt. No. 91 at 24-25, 29-30. The magistrate judge granted Tholen’s motion to amend, but noted that “[i]t may well be that more thorough briefing leads to the conclusion that Tholen’s punitive damages claim is foreclosed as a matter of law.” Dkt. No. 95 at 7; see also id. (expressing these arguments are best raised at “summary 3  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 9 of 20 judgment”). The amended complaint was entered on the docket on August 14, 2018. Dkt. No. 96. AA filed objections to the magistrate judge’s ruling on August 27, 2018 (Dkt. No. 97), but the district judge overruled them, while agreeing that the ultimate viability of punitive damages “will be more appropriately considered on summary judgment.” Dkt. No. 122 at 3. Notwithstanding that fact discovery was about to close, Tholen then immediately noticed a deposition of Mr. Howard on August 14, 2018, and propounded a subpoena duces tecum intended for Mr. Howard three days later. See Declaration of Serrin Turner (“Turner Decl.”), Exs. 1-3. Tholen provided the subpoena only to AA’s counsel, who informed Tholen that it was not author- ized to accept service on Mr. Howard’s behalf. See Dkt. No. 113 at 5; Dkt. No. 99 at 3 n.2; Dkt. No. 130-1. Tholen never made any attempt to serve the subpoena on Mr. Howard personally. The subpoena commands compliance in this district, and the deposition notice indicates the deposition will take place in this district. Turner Decl. Exs. 1 & 3. On August 28, 2018, AA moved to quash and for a protective order in the Minnesota Dis- trict Court. Dkt. No. 98. In his opposition to AA’s motion, Tholen made abundantly clear that the discovery he seeks from Mr. Howard relates solely to his new claim for punitive damages.2 Dkt. No. 113. The magistrate judge held a hearing on October 30, 2018 and directed the parties to meet and confer regarding Tholen’s discovery requests. Dkt. No. 127. On November 6, 2018, Tholen and AA jointly filed a self-styled “grid” documenting each of Tholen and AA’s positions on each specific request in the document subpoena. Dkt. No. 130-1. 2 See, e.g., Dkt. No. 113 at 1-2 (“Assist America refused to provide Dr. Tholen discovery that related to punitive damages before the Court granted Dr. Tholen’s motion for leave to add that request to the case. Dr. Tholen thus served a deposition notice for Mr. Howard the day after the Court granted his motion [to amend].”); id. at 5 (“Dr. Tholen . . . immediately sought discovery on punitive damages after the Court’s August 13 order [on amendment] to ensure he completed it during fact discovery.”); id. at 8 (arguing that a protective order is not warranted because “th[e] Court has already found that punitive damages is at issue in the case.” (emphasis in original)); id. at 16 (“Before August 13, Dr. Tholen had no request for punitive damages . . . Dr. Tholen thus sought discovery just after having the opportunity to do so.”). 4  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 10 of 20 Tholen modified several of his requests as restated in the grid, but they are essentially the same as stated in the original subpoena. They largely seek documents concerning Mr. Howard’s personal wealth and income derived from Assist America, e.g.: • “[d]ocuments sufficient to show any income, profits, distributions, and/or compensa- tion, you have received from, or associated with, Assist America from 2010-2017”; • “[d]ocuments sufficient to show any financial transactions between Mr. Howard and Assist America relating to any property owned by either Mr. Howard or Assist Amer- ica”; • “[d]ocuments sufficient to show any transfer or sale between Assist America and Mr. Howard of assets relating to Assist America in the last 5 years”; • “[d]ocuments sufficient to show any transaction over $50,000 involving Assist Amer- ica and Mr. Howard in the last 5 years”; and • “[d]ocuments sufficient to show ownership interest of Mr. Howard in any Assist Amer- ica property.” See id. The subpoena, as amended, also seeks documents from Mr. Howard concerning various aspects of Assist America’s corporate affairs—notwithstanding that the company itself would be expected to maintain documents of the nature requested. These requested documents include: • Assist America’s “annual tax filings, starting in 2010”; • “[d]ocuments sufficient to show all persons with an interest (whether owner, share- holder, secured party, debtor, or otherwise legally entitled) in Assist America and the values of their respective interests in the last 5 years”; • documents showing Mr. Howard’s “role(s)” in the company “from founding through present”; and • dates of the company’s board meetings attended by Mr. Howard.3 3 Only one request in the subpoena has any ostensible connection to the actual facts of Tholen’s complaint, as Request No. 4 seeks “[a]ll communications relating to Dr. Tholen, this litigation, or Dr. Tholen’s request for services in April 2015.” However, without waiving any objections to this request, counsel for Mr. Howard is authorized to represent that no non-privileged documents exist that are responsive. 5  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 11 of 20 As reflected in the “grid,” AA lodged objections on the company’s behalf to Tholen’s var- ious subpoena requests, but the company also emphasized in responding to each request that “George Howard III is consulting separate counsel, who will respond on Mr. Howard’s behalf after proper service of revised subpoena.” See e.g., id. at 2. On November 6, 2018, the magistrate judge denied AA’s motion for a protective order and to quash on the basis that “[AA] is not representing Mr. Howard.” Dkt. No. 131. Although Mr. Howard had not yet been served with the subpoena and had not made any appearance in the case, the magistrate judge directed that Mr. Howard should “interpose a response to Plaintiff’s revised discovery request” within two weeks of the November 6 order. Id. Mr. Howard subsequently retained undersigned counsel. See Turner Decl. Undersigned counsel met and conferred telephonically with Tholen’s counsel on November 14, 2018. Id. ¶ 11. Undersigned counsel informed Tholen’s counsel that Mr. Howard categorically objects to the sub- poena and deposition notice, explaining that Mr. Howard’s personal finances were irrelevant to the issue of punitive damages against Assist America, and that, to the extent Tholen sought dis- covery relating to Assist America’s finances, he needed to propound discovery requests upon As- sist America (such as through a 30(b)(6) notice) instead of Mr. Howard. Id. Tholen’s counsel indicated that he was unwilling to withdraw the subpoena or to forego the deposition. Id. Two days after this meet-and-confer, on Friday, November 16, 2018, Tholen filed a motion against Assist America in the Minnesota proceedings to compel the company to provide “financial information relevant to punitive damages.” Dkt. No. 135 at 1. Tholen’s motion referenced objec- tions Assist America had made in June 2018 to producing a 30(b)(6) witness to testify about the company’s financial information as well as objections to written discovery requests for such in- formation that Assist America had made in August 2018. Dkt. Nos. 137 at 2-3, 138-1, 138-2. 6  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 12 of 20 Tholen never moved to compel on either issue at the time the objections were made; but now (in the wake of the meet-and-confer with undersigned counsel explaining the impropriety of seeking information from Mr. Howard), Tholen is seeking for the Minnesota district court to overrule the objections to compel financial discovery from Assist America. Tholen’s recently filed motion remains pending. LEGAL STANDARD Under Federal Rule of Civil Procedure 45(d)(3), “the district where compliance is required must quash or modify a subpoena that,” among other things, “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). In turn, “[i]t is well settled . . . that the scope of discovery under [a Rule 45] subpoena is the same as the scope of discovery under Rule 26(b).” Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D. Kan. 2003); see also Schoolcraft v. City of New York, 2012 WL 2161596, at *11 (S.D.N.Y. June 14, 2012) (same); Fed. R. Civ. P. 45, Advisory Committee Note to 1970 Amendment (“[T]he scope of discovery through a subpoena is the same as that applicable to . . . other discovery rules.”). Accordingly, subpoenas seeking irrelevant ma- terial must be quashed. See Night Hawk Ltd. v. Briarpatch Ltd., 2003 WL 23018833, at *8 (S.D.N.Y. Dec. 23, 2003) (“relevance” is at the core of undue burden inquiry); Smartix Int’l, L.L.C. v. Garrubbo, Romankow & Capese, P.C., 2007 WL 4166035, at *2 (S.D.N.Y. Nov. 20, 2007) (quashing subpoenas seeking a non-party’s employment personnel records from five non-party employers since the records were “not relevant to the claim or defense of any party”). Under Federal Rule of Civil Procedure 26(c)(1), “any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alterna- tive on matters relating to a deposition, in the court for the district where the deposition will be taken.” Fed. R. Civ. P. 26(c)(1). A court “may limit discovery by making ‘any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden 7  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 13 of 20 or expense.’” Deluca v. Bank of Tokyo-Mitsubishi UFS, 2007 WL 2589534, at *2 (S.D.N.Y. Aug. 30, 2007) (quoting Fed. R. Civ. P. 26(c)). ARGUMENT I. THE SUBPOENA SHOULD BE QUASHED BECAUSE INFORMATION ABOUT MR. HOWARD IS IRRELEVANT AND ANY RELEVANT INFORMATION ABOUT THE COMPANY CAN BE OBTAINED FROM ASSIST AMERICA The only purported basis for Tholen’s document subpoena is his recently added claim for punitive damages. Yet Mr. Howard is not a party to the underlying litigation and is not subject to any punitive damages claim in the case. Thus, information about Mr. Howard’s personal finances is categorically irrelevant to the issue of punitive damages. To the extent the subpoena seeks documents about Assist America’s financial information, Tholen can obtain such documents from the company itself, as he is belatedly attempting to do through his recently filed motion to compel in Minnesota. There is no basis to burden Mr. Howard, a third party, with responding to separate, highly intrusive discovery. The subpoena should be quashed. In diversity actions, such as here, “the propriety of an award of punitive damages and the factors the jury may consider . . . are questions of state law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 463 (1996) (alterations and citation omitted). Accordingly, in discovery dis- putes concerning punitive damages in a diversity action, relevance turns on what state law deems relevant. See, e.g., In re Dixie Farms Market, 28 F. App’x 673, 677 (9th Cir. 2002) (relying on state law to determine relevance of discovery sought on punitive damages); Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181, 185 (N.D. Ill. 2013) (relying on state law to determine relevance of discovery sought by plaintiff); Moe v. Sys. Transp., Inc., 270 F.R.D. 613, 620–21 (D. Mont. 2010) (relying on state law to determine relevance of financial information for assessing punitive dam- ages). 8  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 14 of 20 Minnesota has codified the factors relevant to assessing punitive damages. See Minn. Stat. § 549.20 subdiv. 3. Those factors include “the financial condition of the defendant”—but not the financial condition of any non-party. See id. And, in Shetka v. Kueppers, Kueppers, Von Feldt, and Salmen, the Minnesota Supreme Court squarely held that financial information about a non- party is irrelevant to the issue of punitive damages. 454 james86@example.com. In that case, the plaintiff brought a malpractice action against a law firm partnership where one partner was alleged to have acted tortiously. Id. at 917–18. The plaintiff nonetheless sought pre-trial discovery concerning the other partners’ financial assets, on the theory that they were vicariously liable for punitive damages stemming from their colleague’s malpractice. Id. at 918. The trial court initially allowed the discovery to proceed; but on interlocutory appeal, the Minnesota Supreme Court overruled. Even though the non-party partners conceded that they could be vicariously liable if punitive dam- ages were awarded against the non-defendant, the Court held that “it does not follow that [their] financial condition . . . is relevant to the jury’s computation of the amount of the punitive damage award under [Minnesota law].” Id. at 918. To the contrary, the Court held that only “the financial condition . . . of those who actively perpetrated the wrongful conduct” could be considered at trial, in order to “ensure that any amount awarded as punitive damages relates to the culpability of the wrongdoer.” Id. at 921. Thus, the Court concluded that “discovery directed to ascertaining such information [about the nonculpable partners] is not relevant nor, if furnished, would [be] infor- mation lead[ing] to relevant admissible evidence.” Id. at 921 (ordering “writ of prohibition pre- venting [district court] from compelling discovery”). The Minnesota Supreme Court’s ruling accords with numerous similar precedents in vari- ous jurisdictions. For example, in Smith v. Courter, 575 S.W.2d 199, 209 (Mo. Ct. App. 1978), a Missouri appeals court determined that, because a punitive damages award could not be based on 9  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 15 of 20 the net worth of vicariously liable individuals, the individual wealth of those individuals was not relevant. Similarly, in Miller Brewing Co. v. Best Beers of Bloomington, Inc., 579 N.E.2d 626, 642-43 (Ind. Ct. App. 1991) (vacated on other grounds), an Indiana appeals court held that a “ver- dict for punitive damages against a defendant based on the wealth of someone else is plain error.” Other courts have reached similar holdings. See, e.g., Lacount v. Salkowski, 654 N.W.2d 295, 300 (Wis. Ct. App. 2002) (noting that the Wisconsin Supreme Court has held that evidence of the wealth of parents who are vicariously liable for their child is irrelevant to punitive damages); HCA Health Servs. of Midwest, Inc. v. Nat’l Bank of Commerce, 745 S.W.2d 120, 124 (Ark. 1988) (trial court erred by permitting plaintiffs to emphasize the size and wealth of non-party parent corpora- tion). These authorities make plain that the entire issue of Mr. Howard’s personal financial in- formation is irrelevant to any punitive damages award that Tholen might james86@example.com. Tholen does not allege that Mr. Howard had any personal involvement in the events at issue in this lawsuit, and he is not named personally as a defendant. (Indeed, Mr. Howard’s name is not even mentioned in the Complaint.) Nor does Tholen allege that Mr. Howard could be held vicariously liable for any punitive damages awarded against Assist America—but even if that were the case, it would not matter, as the foregoing case law shows. Only the financial condition of Assist America—the alleged culpable party—is potentially relevant to the issue of punitive damages. Mr. Howard’s personal finances are beside the point. Alternatively, to the extent that any of Tholen’s subpoena requests seek financial infor- mation about Assist America, the subpoena should be directed to the company, not Mr. Howard. Again, the law here is clear: courts must “consider whether the discovery ‘sought can be obtained from some other source that is more convenient, less burdensome, or less expensive.’” N’Diaye 10  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 16 of 20 v. Metro. Life Ins. Co., 2018 WL 2316335, at *7 (S.D.N.Y. May 8, 2018) (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)). This concern is “particularly salient” where a party opts to seek documents from a nonparty without first attempting to compel its adversary to produce the same documents. Id.; see also Nachurs Alpine Solutions, Corp. v. Nutra-Flo Co., 2017 WL 1380460, at *6 (N.D. Iowa Apr. 17, 2017) (granting nonparty’s motion to quash subpoena where the plaintiff did not first seek to obtain the documents from the defendant); Peoples Nat’l Bank, N.A. v. Mehlman, 2016 WL 3268761, at *2–3 (E.D. Mo. June 7, 2016) (granting motion to quash subpoenas served on two nonparties since the documents were in the possession of a party to the litigation); Warnke v. CVS Corp., 265 F.R.D. 64, 70 (E.D.N.Y. 2010) (noting that a defendant “is not entitled” to obtain in- formation from a nonparty where it is possible to “obtain the information from less intrusive means”). For example, Tholen’s subpoena (as amended by the jointly filed “grid”) seeks “Assist America’s annual tax filings from 2010-2017.” Dkt. No. 130-1 at 4. Plainly, Assist America itself would have these documents, and Tholen has provided no reason why he cannot obtain such doc- uments from the company as opposed to seeking them from Mr. Howard personally. Likewise for Tholen’s request for “[d]ocuments sufficient to show all persons with an interest (whether owner, shareholder, secured party, debtor, or otherwise legally entitled) in Assist America and the values of their respective interests in the last 5 years.” Id. at 3. These document requests relate to core corporate information that can be straightforwardly obtained from the company, without burdening Mr. Howard. The same goes for all other documents Tholen seeks insofar as they relate to Assist America’s financial condition. Finally, it should be noted that some of the requests in Tholen’s subpoena have no apparent relation to either Mr. Howard’s finances or the company’s finances. In particular, Tholen seeks 11  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 17 of 20 documents showing Mr. Howard’s roles in the company “from founding through present” (which would cover a period of nearly 30 years), and dates of the company’s board meetings attended by Mr. Howard since 2014. Id. at 1-2. It is utterly unclear how these requests bear on the issue of punitive james86@example.com. Moreover, they cover a time period well outside the scope of Tholen’s lawsuit. Accordingly, in addition to objecting on the grounds that the requested documents could be more easily obtained from the company, Mr. Howard objects to these requests on the additional ground that they are wholly irrelevant and overbroad.4 II. A PROTECTIVE ORDER VACATING MR. HOWARD’S DEPOSITION NOTICE IS WARRANTED FOR THE SAME REASONS THAT THE SUBPOENA SHOULD BE QUASHED Along with quashing the document subpoena, the Court should also enter a protective order prohibiting Mr. Howard’s deposition. As with the document subpoena, to the extent that Tholen seeks to depose Mr. Howard about his own personal finances, such information is not relevant, and to the extent that Tholen seeks to depose Mr. Howard about the company’s finances, Mr. Howard is not the proper deponent. Tholen has not specified what exactly he seeks to depose Mr. Howard about, but if the document subpoena is any guide, it is plain that the deposition would focus on Mr. Howard’s personal finances and any income or other wealth he has received from Assist America. As ex- plained above, Mr. Howard’s personal financial information is categorically irrelevant to the issue 4 To the extent that the Court were to find that any of the requests in the subpoena are relevant to the issue of punitive damages against Assist America and that they are properly directed to Mr. Howard, Mr. Howard reserves all objections as to overbreadth and undue burden, particularly with respect to the timeframes of the requests. Whatever the con- ceivable relevance of any of the requests, there is no justification to require Mr. Howard to undertake a search for documents covering five or more years, as many of the requests would require as written. 12  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 18 of 20 of punitive damages. Thus, just as Tholen is barred from seeking documents reflecting Mr. How- ard’s personal information, so too Tholen is barred from seeking Mr. Howard’s testimony on the same. Alternatively, to the extent Tholen is seeking information about Assist America that might be relevant to the issue of punitive damages, Tholen is not entitled to seek such information directly from Mr. Howard, the company’s chairman. It is well-established that litigants suing a company cannot seek deposition testimony from top corporate executives without—at a bare minimum— first seeking to obtain such information from the company itself or other, less senior employees. See, e.g., Thomas v. Int’l Business Machs., 48 F.3d 478, 483-84 (10th Cir. 1995) (explaining that it is “clear beyond peradventure” that a “protective order” barring deposition of corporate defend- ant’s chairman is warranted where the deposing party cannot “demonstrate that the information she seeks to obtain . . . could not be gathered from other [corporate] personnel”). This principle has given rise to what is known as the “apex doctrine,” which requires that a plaintiff seeking to depose a defendant corporation’s senior executives demonstrate that “(1) the executive has unique or special knowledge of the facts at issue and (2) other less burdensome avenues for obtaining the information sought have been exhausted.” Hanson v. Loparex Inc., 2010 WL 11432148, at *2 (D. Minn. Sept. 27, 2010).5 5 At risk of belaboring the point, this inquiry is routinely used in both the district where the underlying litigation is occurring and in this district. See e.g., Cardenas v. Prudential Ins. Co. of Am., 2003 WL 21293757, at *1 (D. Minn. May 16, 2003) (explaining that courts frequently restrict efforts to depose senior executives “where a party seeking the deposition can obtain the same information through less intrusive means, or where the party has not established that the executive has some unique knowledge pertinent to the issues in the case”); City of Farmington Hills Emp. Ret. Sys. v. Wells Fargo Bank, N.A., 2012 WL 13048263, at *3 (D. Minn. Sept. 17, 2012) (“At bottom, Plaintiffs have not shown any unique or special knowledge that is not otherwise available from other sources. . . . [T]he Court is con- vinced that deposing [senior executives] is a luxury for which Plaintiffs have not demonstrated a need.”); 3M Co. v. ACS Indus., Inc., 2016 WL 9308317, at *3 (D. Minn. Mar. 10, 2016) (“In sum, [plaintiff] has not established that [the executive] has any personal knowledge, much less unique knowledge, regarding the substantive facts that bear on the claims and defenses in this case. Further, [plaintiff] has not demonstrated that its stated motivations for seeking the deposition of [the executive] cannot be met through less burdensome means.”); In re Ski Train Fire of Nov. 11, 2000 13  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 19 of 20 Tholen can make neither of these showings. Assuming Tholen is seeking testimony con- cerning the company’s finances, there is no reason to assume that Mr. Howard—who is not in- volved in the day-to-day operation of the company—has any unique knowledge of the company’s finances that cannot be obtained through another corporate witness, such as the company’s chief financial officer, or another officer or employee with direct supervision over the company’s finan- cial affairs. Nor can Tholen demonstrate that he has exhausted this possibility. To the contrary, after being granted leave in August 2018 to amend his complaint to add a punitive damages claim, Tholen made no effort to seek information about Assist America’s finances from an appropriate corporate witness—such as by issuing a Rule 30(b)(6) deposition notice for a witness who could speak to the topic. Instead, Tholen went straight to the top of the company, immediately noticing a deposition for Mr. Howard. Only last Friday, after telephonically meeting and conferring with undersigned counsel, did Tholen take any step toward pursuing the discovery he seeks from the company instead, by challenging discovery objections to producing financial information that Assist America had made months earlier (before Tholen was permitted to add a punitive damages claim to the Complaint). See Dkt. No. 135. Among other things, Tholen is challenging Assist America’s prior refusal to designate a Rule 30(b)(6) witness to testify about financial information. See Dkt. No. 137 at 2, 5. Thus, far from exhausting this alternative avenue of discovery, Tholen has just begun to pursue it. It makes no sense to force Mr. Howard to sit for a deposition when Tholen not only can seek the Kaprun Austria, 2006 WL 1328259, at *10 (S.D.N.Y. May 16, 2006) (“Courts disfavor requiring the depositions of senior executives unless they have personal knowledge of relevant facts or some unique knowledge that is relevant to the action.”); Treppel v. Biovail Corp., 2006 WL 468314, at *3 (S.D.N.Y. Feb. 28, 2006) (granting protective order because “[t]he Plaintiff has not explained why the noticed [executives] are believed to have personal knowledge of the underlying events, nor why that knowledge is believed to be unique”); Filetech, S.A. v. France Telecom, S.A., 1999 WL 92517, at *2 (S.D.N.Y. Feb. 17, 1999) (granting protective order because “[i]t seems likely that lesser [corporate] employees are available to furnish information sufficient to satisfy [the plaintiff’s] inquiry . . . . In any event, plaintiff is required by this Order to explore that likelihood in the first instance”). 14  Case 1:18-mc-00538-DLC Document 2 Filed 11/20/18 Page 20 of 20 same information from elsewhere in the company, but is in the process of doing so. See, e.g., Filetech, 1999 WL 92517, at *2 (granting protective order because “[i]t seems likely that lesser [corporate] employees are available to furnish information sufficient to satisfy [the plaintiff’s] in- quiry . . . . In any event, plaintiff is required by this Order to explore that likelihood in the first instance.”); Stone v. Morton Int’l Inc., 170 F.R.D. 498, 504 (D. Utah 1997) (“Plaintiff may not take the deposition of [corporate executive] without first showing compliance with Rule 30(b)(6) . . . or other discovery methods and the reasonable exhaustion of the relevant subject matter.”). CONCLUSION For the foregoing reasons, Tholen’s subpoena should be quashed and a protective order entered prohibiting the deposition. Dated: November 20, 2018 Respectfully submitted, New York, New York LATHAM & WATKINS LLP _____________________________________ Serrin Turner Ryan S. Baasch 885 Third Avenue New York, NY 10022 Tel: 223.715.2370 james86@example.com james86@example.com Attorneys for Non-Party George Howard III 15 

Exhibit 10.1   CONFORMED AS EXECUTED   THIRD AMENDMENT   THIRD AMENDMENT (this “Amendment”), dated as of December 2, 2002, among RESOLUTION PERFORMANCE PRODUCTS INC., a Delaware corporation (“Holdings”), RESOLUTION PERFORMANCE PRODUCTS LLC, a Delaware limited liability company (“RPP USA”), RPP CAPITAL CORPORATION, a Delaware corporation (“US Finance Corp.” and, together with RPP USA, the “US Borrowers” and each, a “US Borrower”), RESOLUTION EUROPE B.V. (formerly known as Resolution Nederland B.V.), a company organized under the laws of The Netherlands (the “Dutch Borrower” and, together with the US Borrowers, the “Borrowers” and each, a “Borrower”), the lenders from time to time party to the Credit Agreement referred to below (each, a “Lender” and, collectively, the “Lenders”), and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent (in such capacity, the “Administrative Agent”). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided such terms in the Credit Agreement referred to below.   W I T N E S S E T H:   WHEREAS, Holdings, the Borrowers, the Lenders and the Administrative Agent are parties to a Credit Agreement, dated as of November 14, 2000 (as amended, modified or supplemented to, but not including, the date hereof, the “Credit Agreement”); and   WHEREAS, subject to the terms and conditions of this Amendment, Holdings, the Borrowers, the Lenders and the Administrative Agent agree as follows;   NOW, THEREFORE, it is agreed:   1.    On the Third Amendment Effective Date (as defined below), the Total Revolving Loan Commitment shall be permanently reduced to $100,000,000 (as such amount may be further reduced from time to time in accordance with the terms of the Credit Agreement), with such reduction to be applied ratable to each RL Lender’s Revolving Loan Commitment based on its RL Percentage.   2.    Section 9.04(g) of the Credit Agreement is hereby restated in its entirety as follows:   “(g)  unsecured Indebtedness of the US Borrowers and any other US Credit Party that is a Subsidiary Guarantor incurred under the Senior Subordinated Notes and the other Senior Subordinated Note Documents (x) issued on the Initial Borrowing Date in an aggregate principal amount not to exceed $200,000,000 less the amount of any repayments of principal thereof after the Initial Borrowing Date, (y) issued on November 14, 2001 in an aggregate principal amount not to exceed $75,000,000 (for this purpose, exclusive of any premium or notional interest paid on such Senior Subordinated Notes by the purchasers thereof) less the amount of any repayments of principal thereof after November 14, 2001 and (z) issued on or after the Third Amendment Effective Date in an aggregate principal amount of not less than $50,000,000 (for this purpose, exclusive of any premium or notional interest paid on such Senior Subordinated Notes by the purchasers thereof) less the amount of any repayments of principal thereof after the Third --------------------------------------------------------------------------------   Amendment Effective Date, provided that, in the case of any such Indebtedness incurred under either clause (y) or (z) above, 100% of the Net Cash Proceeds (for this purpose, inclusive of all premiums and notional interest paid on such Senior Subordinated Notes by the purchasers thereof) therefrom shall, notwithstanding the Applicable Prepayment Percentage and anything to the contrary contained in the last sentence of Section 4.02(e), be applied as a mandatory repayment of Term Loans on each date of such incurrence in accordance with the requirements of Sections 4.02(i) and (j).”   3.    Section 9.09 of the Credit Agreement is hereby amended by deleting the table appearing therein in its entirety and inserting the following new table in lieu thereof:   “Fiscal Quarter Ending               --------------------------------------------------------------------------------     Ratio   -------------------------------------------------------------------------------- December 31, 2002   1.40:1.0 March 31, 2003   1.40:1.0 June 30, 2003   1.40:1.0 September 30, 2003   1.40:1.0 December 31, 2003   1.40:1.0 March 31, 2004   1.55:1.0 June 30, 2004   1.55:1.0 September 30, 2004   1.55:1.0 December 31, 2004   1.55:1.0 March 31, 2005   1.70:1.0 June 30, 2005   1.70:1.0 September 30, 2005   1.70:1.0 December 31, 2005   1.70:1.0 March 31, 2006   1.90:1.0 June 30, 2006   1.90:1.0 September 30, 2006   1.90:1.0 December 31, 2006   2.00:1.0 March 31, 2007   2.00:1.0 June 30, 2007   2.00:1.0 September 30, 2007   2.00:1.0 December 31, 2007   2.00:1.0 March 31, 2008   2.00:1.0 Thereafter   2.25:1.0”   4.    Section 9.10 of the Credit Agreement is hereby amended by deleting the table appearing therein in its entirety and inserting the following new table in lieu thereof:   “Fiscal Quarter Ending               --------------------------------------------------------------------------------     Ratio   -------------------------------------------------------------------------------- December 31, 2002   6.75:1.0 March 31, 2003   6.75:1.0 June 30, 2003   6.75:1.0 September 30, 2003   6.75:1.0 December 31, 2003   6.50:1.0 2 --------------------------------------------------------------------------------     March 31, 2004   6.50:1.0 June 30, 2004   6.50:1.0 September 30, 2004   6.50:1.0 December 31, 2004   6.25:1.0 March 31, 2005   5.20:1.0 June 30, 2005   5.15:1.0 September 30, 2005   5.10:1.0 December 31, 2005   5.00:1.0 March 31, 2006   4.95:1.0 June 30, 2006   4.90:1.0 September 30, 2006   4.85:1.0 December 31, 2006   4.75:1.0 March 31, 2007   4.50:1.0 June 30, 2007   4.50:1.0 September 30, 2007   4.50:1.0 December 31, 2007   4.50:1.0 March 31, 2008   4.50:1.0 Thereafter   4.50:1.0”   5.    Section 11 of the Credit Agreement is hereby amended by inserting the following new definition in the appropriate alphabetical order:   “Third Amendment Effective Date” shall have the meaning provided in the Third Amendment to this Agreement, dated as of December 2, 2002.   6.    Section 11 of the Credit Agreement is hereby further amended by inserting the text “or 9.04(g)(z)” after the text “9.04(g)(y)” appearing in the definitions of “Senior Subordinated Notes” and “Exchange Senior Subordinated Notes” appearing in such Section 11.   7.    This Amendment shall become effective on the date (the “Third Amendment Effective Date”) when (i) Holdings, each Borrower and the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile transmission) the same to the Administrative Agent at the Notice Office and (ii) the US Borrowers shall have issued additional Senior Subordinated Notes in an aggregate principal amount of at least $50,000,000 (it being understood that 100% of the Net Cash Proceeds therefrom shall be applied on such date to repay outstanding Term Loans in accordance with the proviso to clauses (y) and (z) of Section 9.04(g) of the Credit Agreement (after giving effect to this Amendment)).   8.    In order to induce the Lenders to enter into this Amendment, RPP USA hereby agrees that on the Third Amendment Effective Date, it shall pay to the Administrative Agent for distribution to each Lender who has delivered an executed counterpart hereof by 5:00 p.m. (New York City time) on December 9, 2002 a non-refundable cash fee (which fee shall be considered a Fee payable pursuant to the Credit Agreement) in an amount equal to 12.5 basis points (0.125%) of an amount equal to the sum of (x) the outstanding principal amount of Term Loans of such Lender on such date (calculated after giving effect to the prepayment of Term 3 --------------------------------------------------------------------------------   Loans contemplated in Section 7(ii) of this Amendment) plus (y) the Revolving Loan Commitment of such Lender on such date (calculated after giving effect to the reduction in the Revolving Loan Commitments of the RL Lenders pursuant to Section 1 of this Amendment).   9.    In order to induce the Lenders to enter into this Amendment, Holdings and each Borrower hereby represent and warrant that (i) no Default or Event of Default exists on the Third Amendment Effective Date, both before and after giving effect to this Amendment, and (ii) on the Third Amendment Effective Date, both before and after giving effect to this Amendment, all representations and warranties contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects (it being understood that any representation or warranty made as of a specific date shall be true and correct in all material respects as of such specific date).   10.    This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts shall be delivered to Holdings, the US Borrowers, Lenders and the Administrative Agent.   11.    THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.   12.    From and after the Third Amendment Effective Date, all references in the Credit Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.   13.    This Amendment is limited as specified and shall not constitute a modification, acceptance or amendment of any other provision of the Credit Agreement or any other Credit Document.   *    *    * 4 --------------------------------------------------------------------------------   IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.   RESOLUTION PERFORMANCE     PRODUCTS INC. By:   /S/    MARVIN O. SCHLANGER         --------------------------------------------------------------------------------     Title:    Chairman       RESOLUTION PERFORMANCE     PRODUCTS LLC By:   /S/    MARVIN O. SCHLANGER         --------------------------------------------------------------------------------     Title:    Chairman       RPP CAPITAL CORPORATION By:   /S/    MARVIN O. SCHLANGER         --------------------------------------------------------------------------------     Title:    Chairman       RESOLUTION EUROPE B.V. (formerly known     as Resolution Nederland B.V.) By:   /S/    MARVIN O. SCHLANGER         --------------------------------------------------------------------------------     Title:    Director     5 --------------------------------------------------------------------------------     MORGAN STANLEY SENIOR FUNDING INC., as Administrative Agent By:   /S/    HENRY F. D’ALESSANDRO         --------------------------------------------------------------------------------     Title:    Executive Director       DUCHESS I CDO S.A. By:   /S/    DAVID WILMOT         --------------------------------------------------------------------------------     Title:    Director Duke Street Capital Debt Management Ltd on behalf of Duchess I CDO S.A.       CITICORP USA, Inc. By:   /S/    MARK R. FLOYD         --------------------------------------------------------------------------------     Title:    Vice President       OCTAGON INVESTMENT PARTNERS III, LTD., by Octagon Credit Investors, LLC as Portfolio Manager By:   /S/    MICHAEL B. NECHAMKIN         --------------------------------------------------------------------------------     Title:    Portfolio Manager       OCTAGON INVESTMENT PARTNERS IV, LTD., by Octagon Credit Investors, LLC as Collateral Manager By:   /S/    MICHAEL B. NECHAMKIN         --------------------------------------------------------------------------------     Title:    Portfolio Manager   6 --------------------------------------------------------------------------------     VENTURE CDO 2002, LIMITED By its investment advisor, Barclays Capital Asset Management Limited, By its sub-advisor, Barclays Bank PLC, New York Branch By:   /S/    MARTIN F. DAVEY         --------------------------------------------------------------------------------     Title:    Director       VENTURE II CDO 2002, LIMITED By its investment advisor, Barclays Bank PLC, New York Branch By:   /S/    MARTIN F. DAVEY         --------------------------------------------------------------------------------     Title:    Director       TEXTRON FINANCIAL CORPORATION By:   /S/    MATTHEW J. COLGAN         --------------------------------------------------------------------------------     Title:    Vice President       SIERRA CLO I By:   /S/    JOHN M. CASPARIAN         --------------------------------------------------------------------------------     Title:    Chief Operating Officer              Centre Pacific LLC, Manager       ARES III CLO LTD. By ARES CLO Management LLC, Investment Manager By:   /S/    SETH J. BRUFSKY         --------------------------------------------------------------------------------     Title:    Vice President 7 --------------------------------------------------------------------------------   ARES IV CLO LTD By Ares CLO Management IV, L.P., Investment Manager By Ares CLO GP IV, LLC, Its Managing Member By:   /S/    SETH J. BRUFSKY       --------------------------------------------------------------------------------     Title:    Vice President     ARES V CLO LTD By Ares CLO Management V, L.P., Investment Manager By Ares CLO GP V, LLC, Its Managing Member By:   /S/    SETH J. BRUFSKY       --------------------------------------------------------------------------------     Title:    Vice President     ARES VII CLO LTD By Ares CLO Management VII, L.P., Investment Manager By Ares CLO GP VII, LLC, Its Managing Member By:   /S/    SETH J. BRUFSKY       --------------------------------------------------------------------------------     Title:    Vice President     STANFIELD CLO LTD. By Stanfield Capital Partners LLC as its Collateral Manager By:   /S/    GREGORY L. SMITH --------------------------------------------------------------------------------     Title:    Partner   8 --------------------------------------------------------------------------------   STANFIELD CLO LTD. By Stanfield Capital Partners LLC as its Interim Asset Manager By:   /S/    GREGORY L. SMITH --------------------------------------------------------------------------------     Title:    Partner     STANFIELD QUATTRO CLO LTD. By Stanfield Capital Partners LLC as its Collateral Manager By:   /S/    GREGORY L. SMITH --------------------------------------------------------------------------------     Title:    Partner     STANFIELD ARBITRAGE CLO LTD. By Stanfield Capital Partners LLC as its Collateral Manager By:   /S/    GREGORY L. SMITH --------------------------------------------------------------------------------     Title:    Partner     AQUILAE CDO I S.A. By:   /S/    JULIAN GREEN --------------------------------------------------------------------------------     Title:    Associate Director By:   /S/    WILLIAM NICOLL --------------------------------------------------------------------------------     Title:    Associate Director     Henderson Global Investors Ltd. For and on behalf of Aquilae CDO I S.A.     JPMORGAN CHASE BANK By:   /S/    PETER A. DEDOUSIS --------------------------------------------------------------------------------     Title:    Managing Director 9 --------------------------------------------------------------------------------   INTERMEDIATE CAPITAL MANAGERS LTD By:   /S/    ANDREW PHILLIPS --------------------------------------------------------------------------------     Title:    Director     For and on behalf of Eurocredit CDO I Eurocredit CDO II Promius I Promius II     OAK HILL SECURITIES FUND, L.P. By Oak Hill Securities GenPar, L.P., its General Partner   By Oak Hill Securities MGP, Inc., its General Partner By:   /S/    SCOTT D. KRASE --------------------------------------------------------------------------------     Title:    Vice President     OAK HILL SECURITIES FUND II, L.P. By Oak Hill Securities GenPar II, L.P., its General Partner   By Oak Hill Securities MGP II, Inc., its General Partner By:   /S/    SCOTT D. KRASE --------------------------------------------------------------------------------     Title:    Vice President     OAK HILL CREDIT PARTNERS I, LIMITED By Oak Hill CLO Management I LLC, as Investment Manager By:   /S/    SCOTT D. KRASE --------------------------------------------------------------------------------     Title:    Authorized Signatory 10 --------------------------------------------------------------------------------     CENTURION CDO II, LTD. By American Express Asset Management Group Inc., as Collateral Manager By:   /S/    LEANNE STAVRAKIS         --------------------------------------------------------------------------------     Title:    Director—Operations       CENTURION CDO III, LTD. By American Express Asset Management Group Inc., as Collateral Manager By:   /S/    LEANNE STAVRAKIS         --------------------------------------------------------------------------------     Title:    Director—Operations       SEQUILS-CENTURION V, LTD. By American Express Asset Management Group Inc., as Collateral Manager By:   /S/    LEANNE STAVRAKIS         --------------------------------------------------------------------------------     Title:    Director—Operations       CENTURION CDO VI, LTD. By American Express Asset Management Group Inc., as Collateral Manager By:   /S/    LEANNE STAVRAKIS         --------------------------------------------------------------------------------     Title:    Director—Operations       BLUE SQUARE FUNDING SERIES 3 By Deutsche Bank Trust Company Americas By:   /S/    STEPHEN T. HESSLER         --------------------------------------------------------------------------------     Title:    Vice President       KZH HIGHLAND-2 LLC By:   /S/    ROWEND SMITH         --------------------------------------------------------------------------------     Title:    Authorized Agent 11 --------------------------------------------------------------------------------     EMERALD ORCHARD LIMITED By:   /S/    GWEN ZIRKLE         --------------------------------------------------------------------------------     Title:    Attorney-In-Fact       AXP VARIABLE PORTFOLIO—EXTRA INCOME FUND, a series of AXP Variable Portfolio Income Series Inc. By:   /S/    TIMOTHY J. MASEK         --------------------------------------------------------------------------------     Title:     Assistant Vice President               AXP Variable Portfolio Income               Series Inc.       HIGH YIELD PORTFOLIO, a series of Income Trust By:   /S/    TIMOTHY J. MASEK         --------------------------------------------------------------------------------     Title:    Assistant Vice President              Income Trust       ARCHIMEDES FUNDING II, LTD. By ING Capital Advisors LLC, as Collateral Manager By:   /S/    CHERYL WASILEWSKI         --------------------------------------------------------------------------------     Title:    Vice President       ARCHIMEDES FUNDING III, LTD. By ING Capital Advisors LLC, as Collateral Manager By:   /S/    CHERYL WASILEWSKI          --------------------------------------------------------------------------------     Title:    Vice President 12 --------------------------------------------------------------------------------   ARCHIMEDES FUNDING IV (CAYMAN), LTD. By ING Capital Advisors LLC, as Collateral Manager By:   /S/    CHERYL WASILEWSKI          --------------------------------------------------------------------------------     Title:    Vice President       SEQUILS-ING I (HBDGM), LTD. By ING Capital Advisors LLC, as Collateral Manager By:   /S/    CHERYL WASILEWSKI         --------------------------------------------------------------------------------     Title:    Vice President     ENDURANCE CLO I, LTD             By: ING Capital Advisors LLC, as Portfolio             Manager By:   /S/    CHERYL WASILEWSKI --------------------------------------------------------------------------------     Title:    Vice President       For and on Behalf of ING CAPITAL MANAGEMENT, LIMITED as Collateral Manager for Copernicus Euro CDO-I BV By:   /S/    DAVID WILSON        --------------------------------------------------------------------------------     Title:    Senior Vice President       KZH CYPRESSTREE-I LLC By:   /S/    ROWEND SMITH       --------------------------------------------------------------------------------     Title:    Authorized Agent         13 --------------------------------------------------------------------------------   KZH ING-2 LLC By:   /S/    ROWEND SMITH         --------------------------------------------------------------------------------     Title:    Authorized Agent       KZH SOLEIL LLC By:   /S/    ROWEND SMITH         --------------------------------------------------------------------------------     Title:    Authorized Agent       KZH SOLEIL-2 LLC By:   /S/    ROWEND SMITH         --------------------------------------------------------------------------------     Title:    Authorized Agent       KZH STERLING LLC By:   /S/    ROWEND SMITH         --------------------------------------------------------------------------------     Title:    Authorized Agent       CITADEL HILL 2000 LTD By:   /S/    NICHOLAS A. KARSIOTIS         --------------------------------------------------------------------------------     Title:    Authorized Signatory       AURUM CLO 2002-I LTD. By Stein Roe & Farnham Incorporated, as Investment Manager By:   /S/    JAMES R. FELLOWS         --------------------------------------------------------------------------------     Title:    Sr. Vice President & Portfolio Manager   14 --------------------------------------------------------------------------------   ADDISON CDO, LIMITED (#1279) By Pacific Investment Management Company LLC, as its Investment Advisor By:   /S/    MOHAM V. PHANSALKAR         --------------------------------------------------------------------------------     Title:    Executive Vice President       CAPTIVA IV FINANCE LTD. (ACCT 1275), as advised by Pacific Investment Management Company LLC By:   /S/    DAVID DYER         --------------------------------------------------------------------------------     Title:    Director       INTERCONTINENTAL CDO S.A. (#1284) By Pacific Investment Management Company LLC, as its Investment Advisor By:   /S/    MOHAM V. PHANSALKAR         --------------------------------------------------------------------------------     Title:    Executive Vice President     JISSEKIKUN FUNDING, LTD. (#1288) By Pacific Investment Management Company LLC, as its Investment Advisor By:   /S/    MOHAM V. PHANSALKAR         --------------------------------------------------------------------------------     Title:    Executive Vice President       SEQUILS-MAGNUM, LTD. (#1280) By Pacific Investment Management Company LLC, as its Investment Advisor By:   /S/    MOHAM V. PHANSALKAR         --------------------------------------------------------------------------------     Title:    Executive Vice President 15 --------------------------------------------------------------------------------   WRIGLEY CDO, LIMITED (#1279) By Pacific Investment Management Company LLC, as its Investment Advisor By:   /S/    MOHAM V. PHANSALKAR         --------------------------------------------------------------------------------     Title:    Executive Vice President       ALLIANCE INVESTMENTS LIMITED By:   /S/    JOEL SEREBRANSKY         --------------------------------------------------------------------------------     Title:    Senior Vice President     MONUMENTAL CAPITAL LTD., as Assignee By Alliance Capital Management L.P., as Investment Manager By Alliance Capital Management Corporation, as General Partner By:   /S/    JOEL SEREBRANSKY         --------------------------------------------------------------------------------     Title:    Senior Vice President       NEW ALLIANCE GLOBAL CDO, LIMITED By Alliance Capital Management L.P., as Sub-advisor By Alliance Capital Management Corporation, as General Partner By:   /S/    JOEL SEREBRANSKY         --------------------------------------------------------------------------------     Title:    Senior Vice President       JUBILEE I CDO By:   /S/    DAVID FORBES-NIXON         --------------------------------------------------------------------------------     Title:    On Behalf of BCAM for Jubilee I CDO 16 --------------------------------------------------------------------------------   NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY By:   /S/    THOMAS S. LEGGETT         --------------------------------------------------------------------------------     Title:    Associate Vice President              Public Bonds       NATIONWIDE MUTUAL FIRE INSURANCE COMPANY By:   /S/    THOMAS S. LEGGETT         --------------------------------------------------------------------------------     Title:    Associate Vice President              Public Bonds     NATIONWIDE LIFE INSURANCE COMPANY By:   /S/    THOMAS S. LEGGETT         --------------------------------------------------------------------------------     Title:    Associate Vice President              Public Bonds     NATIONWIDE MUTUAL INSURANCE COMPANY By:   /S/    THOMAS S. LEGGETT         --------------------------------------------------------------------------------     Title:    Associate Vice President              Public Bonds       NOMURA BOND & LOAN FUND By UFJ Trust Company of New York as Trustee By Nomura Corporate Research and Asset Management Inc. Attorney In Fact By:   /S/    ELIZABETH MACLEAN         --------------------------------------------------------------------------------     Title:    Vice President 17 --------------------------------------------------------------------------------   CLYDESDALE CLO 2001-1, LTD. By Nomura Corporate Research and Asset Management Inc. as Collateral Manager By:   /S/    ELIZABETH MACLEAN         --------------------------------------------------------------------------------     Title:    Vice President     THE BANK OF NOVA SCOTIA By:   /S/    P. HAWES         --------------------------------------------------------------------------------     Title:    Comptroller     THE SUMITOMO TRUST & BANKING CO., LTD. NEW YORK BRANCH By:   /S/    ELIZABETH A. QUIRK         --------------------------------------------------------------------------------     Title:    Vice President     DAVID L. BABSON & COMPANY INC. In its individual capacity and as Collateral Manager on behalf of the investment funds under its management as listed below. – ELC (Cayman) Ltd. CDO Series 199-I – ELC (Cayman) Ltd. 1999-II – ELC (Cayman) Ltd. 1999-III – APEX (IDM) CDO I, Ltd. – TRYON CLO Ltd. 2000-1 By:   /S/    WILLIAM A. HAYES         --------------------------------------------------------------------------------     Title:    Managing Director       IKB CAPITAL CORPORATION By:   /S/    DAVID SNYDER         --------------------------------------------------------------------------------     Title:    President              IKB Capital Corporation 18 --------------------------------------------------------------------------------   NUVEEN SENIOR INCOME FUND, as a Lender By Symphony Asset Management LLC By:   /S/    LENNIE MASON         --------------------------------------------------------------------------------     Title:    Portfolio Manager     SUNAMERICA LIFE INSURANCE COMPANY By:   /S/    JOHN G. LAPHAM, III         --------------------------------------------------------------------------------     Title:    Authorized Agent     GALAXY CLO 1999-I, LTD. By:   /S/    JOHN G. LAPHAM, III         --------------------------------------------------------------------------------     Title:    Authorized Agent     AMMC CDO II, LIMITED By American Money Management Corp., as Collateral Manager. By:   /S/    DAVID P. MEYER         --------------------------------------------------------------------------------     Title:    Vice President       AMERICAN EXPRESS CERTIFICATE COMPANY By American Express Asset Management Group Inc. as Collateral Manager. By:   /S/    YVONNE E. STEVENS         --------------------------------------------------------------------------------     Title:    Senior Managing Director 19 --------------------------------------------------------------------------------   IDS LIFE INSURANCE COMPANY By American Express Asset Management Group Inc. as Collateral Manager. By:   /S/    YVONNE E. STEVENS         --------------------------------------------------------------------------------     Title:    Senior Managing Director       HARBOURMASTER LOAN CORPORATION BV By:   /S/    AUTHORIZED SIGNATORY         --------------------------------------------------------------------------------     Title:    TMF Management B.V.              Managing Director 20

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned On Briefs August 31, 2011 MICHAEL G. McCALL v. JENNIFER SUE McCALL a/k/a JENNIFER SUE JORDAN Direct Appeal from the Chancery Court for Crockett County No. 9313 George R. Ellis, Chancellor No. W2011-01146-COA-R3-CV - Filed October 4, 2011 Mother and Father, the divorced parents of two minor children, filed a joint motion in the trial court to modify the permanent parenting plan. The trial court denied the joint motion and Mother appeals. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and J. S TEVEN S TAFFORD, J., joined. Mitchell G. Tollison, Jackson, Tennessee, for the appellant, Jennifer Sue McCall a/k/a Jennifer Sue Jordan. MEMORANDUM OPINION 1 Jennifer Sue Jordan (formerly Jennifer Sue McCall) and Michael G. McCall are the parents of two minor children. The children were born in 2003 and 2007. The parents filed a joint motion to modify the Permanent Parenting Plan which was entered following their 1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated case. divorce.2 Following a hearing on the joint motion, the trial court entered an order denying the joint motion to modify the Permanent Parenting Plan “because Robert Lee Amerson 3 is a registered sex offender and it does not matter to the court that the victim of the sex offense was not a minor at the time of the commission of the sex offense.” Mother, the only appellant, argues that the trial court erred in denying the joint motion on the basis that the victim in the case to which Mr. Amerson plead guilty to sexual battery by an authority figure was an adult, there was no legal prohibition to the minor children being in the presence of Mr. Amerson. The proposed parenting plan sought in the joint motion would decrease Mother’s parenting time from 233 days per year to 198 and increase Father’s from 132 days to 167. The child support to be paid by Father would be reduced from $197 per month to $4 per month, changes would be made in the vacation and holiday schedules and, significantly, the children would be allowed to be in the presence of Mr. Amerson. Upon reviewing this record, this Court issued the above mentioned show cause order because the trial court did not address the other relief sought in the petition but limited the denial of the motion to the request that Mr. Amerson may be in the presence of the minor children. The response insisted that the trial court’s order was a final order because, while the order did not specify all of its reasons for denying all of the portions of the joint motion, the motion was nevertheless denied. Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple parties or multiple claims are involved in an action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable. Except where otherwise provided, this Court only has subject matter jurisdiction over final orders. See Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn. 1990). We have determined that this Court does not have jurisdiction because the trial court failed to address the remainder of the relief sought in the joint petition as set forth above. Since it does not appear that all the claims have been adjudicated, this Court could only have jurisdiction to hear this matter if permission to appeal has been granted, or if the order appealed has been made final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. The record does not reflect, however, that permission to appeal has been granted, or that the order appealed was made final pursuant to Rule 54.02. 2 In her response to this Court’s show cause order, Mother, the appellant herein, attached a copy of the final decree of divorce and the original Permanent Parenting Plan. 3 The record before us does not further identify Robert Lee Amerson or his relationship, if any, to the parties. -2- The appeal is hereby dismissed for lack of a final judgment. The case is remanded to the trial court for further proceedings consistent with this opinion. Should a new appeal be filed, the Clerk of this Court shall, upon request of the Appellant, consolidate the record in this appeal with the record filed in the new appeal. The costs of this appeal are taxed to the Appellant, Jennifer Sue McCall a/k/a Jennifer Sue Jordan, and her surety, for which execution may issue if necessary. _________________________________ DAVID R. FARMER, JUDGE -3-

EXHIBIT Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 I,Ray Lopez, certify,pursuantto 18 U.S.C. Section 1350, as adoptedpursuanttoSection 906 of the Sarbanes-Oxley Act of 2002, that this Quarterly Report of Pro Travel Network, Inc. on Form 10-Q for the six months ended December 31, 2008, fully complieswiththe requirements of Section 13(a) or 15(d) ofthe Securities Exchange Act of 1934 and that information contained in such Form 10-Q fairly presents in all material respects the financial condition and results of operations of Pro Travel Network, Inc. Date: February 13, 2009 By: /s/ Ray Lopez Ray Lopez, CFO A signed original of this written statement required by Section906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section906, has been provided to Pro Travel Network, Inc. and will be retained by Pro Travel Network, Inc. and furnished to the Securities and

747 F. Supp. 1483 (1990) AUTOMOTIVE ELECTRIC SERVICE CORP., Plaintiff, v. ASSOCIATION OF AUTOMOTIVE AFTERMARKET DISTRIBUTORS, Motor Age, Inc. and Motor Age East, Inc., Defendants. No. CV 89-4296 (ADS). United States District Court, E.D. New York. September 28, 1990. *1484 Lance R. Frank, Cedarhurst, N.Y., for plaintiff. Bell, Boyd & Lloyd (Victor E. Grimm, Scott M. Mendel, of counsel), Chicago, Ill., for defendant Ass'n of Automotive Aftermarket Distributors. Hoffinger Friedland Dobrish Bernfeld & Hasen (David B. Bernfeld, Howard A. Gardner, of counsel), New York City, for defendant Motor Age, Inc. MEMORANDUM DECISION AND ORDER SPATT, District Judge. In this case the plaintiff corporation, a member of a national trade organization, alleges that the organization terminated its membership as a result of "bad faith" on the part of the organization and a competitor-member. The plaintiff seeks to be reinstated as a member, among other remedies. There is one crucial issue before the Court: Has the plaintiff established that the trade organization acted in "bad faith" in terminating *1485 the plaintiff's membership so that judicial intervention is appropriate? BACKGROUND The plaintiff Automotive Electric Service, Corp. ("the plaintiff") is a warehouse distributor of automotive parts. This type of business purchases automotive parts from manufacturers and other suppliers, stores the parts in a warehouse and sells the parts to jobbers—mostly retail automotive parts stores and installers. This business is also referred to as an "automotive after market parts business". The plaintiff is a close corporation owned by the Judelson family for over seventy years, which employs more than fifty persons and has its main office and warehouse in Woodside, Queens, New York. The plaintiff has approximately 400 accounts and its sales volume in 1989 was approximately $7,000,000. Its geographic territories are Queens, Brooklyn, Bronx, Manhattan, Westchester, Nassau and Suffolk Counties. In November 1984, the plaintiff became a member of the defendant Association of Automotive Aftermarket Distributors ("AAAD" or "the Association"), a national trade organization of warehouse distributors. AAAD is an Illinois not-for-profit organization with its primary place of business in Memphis, Tennessee. There are a number of similar trade associations in the warehouse distributor industry. AAAD offers to its members volume discount purchasing and a national account merchandising program involving the supply of Goodyear Tire and Rubber Company ("Goodyear") company-owned retail automotive parts stores ("GASC stores" or "company-owed stores"). Although AAAD has been trying to develop several other national account programs, at the time of the relevant occurrences in this case, it had only one such viable national account, the Goodyear account. Under a contract with Goodyear, members of AAAD are principal providers of the Goodyear company-owned (GASC) stores. AAAD is governed by a set of by-laws, an Executive Committee and a President. A principal feature of AAAD is their "Parts Plus" program. In the program, the members of AAAD attempt to persuade their jobbers to be Parts Plus jobbers, and operate their stores under the "Parts Plus" logo. AAAD employs the services of Marketing Resources, Inc. ("MRI"), an advertising and marketing agency. The members of AAAD are expected to use their best efforts to implement the Parts Plus program by advertising and active solicitation of Parts Plus jobbers with the object of developing a strong network of Parts Plus members. In August 1986, the membership unanimously adopted certain "Standards of Performance" including a requirement that each member had to vigorously promote and implement the Parts Plus program. AAAD has thirty-five members of whom twenty-two do less than ten million dollars in sales and nineteen are smaller than the plaintiff. Each member has one vote irrespective of size. The largest member in AAAD is a firm called Parts, Inc., whose business comprises approximately 35% of the total sales of all AAAD members. The Executive Committee is made up of its officers and three members. Despite their membership in this trade organization, the AAAD by-laws do not grant any members exclusive territories or preclude any member from competing with other members in any territory. Among the provisions in the AAAD by-laws and crucial to the determination to terminate the plaintiff, is the following provision set forth in paragraph 11 of the AAAD by-laws (Plaintiff's Exhibit 5), which permits termination of a member: "... if, in the opinion of the Executive Committee, a Member demonstrates a lack of sincere intent to be a bona fide, active and participating Member of the Association, or to commit to duly adopted Association programs or objectives...." AAAD contends that the plaintiff failed to meet the requirements of its Parts Plus program and, during the period 1987 through 1989, despite warnings and meetings, failed to improve its Parts Plus program. On November 16, 1989, the Executive *1486 Committee of AAAD voted to terminate the plaintiff's membership, which, of necessity, would mean that the plaintiff would no longer be permitted to sell to the Goodyear GASC stores under its contract with AAAD. As a result of the involuntary termination of its membership in AAAD, the plaintiff commenced this lawsuit. In essence, the plaintiff contends in this action that it is the victim of a conspiracy to improperly terminate its membership in AAAD so that a larger and newer member, Motor Age, Inc. ("Motor Age") could take over the plaintiff's valuable Goodyear company-owned stores. This was accomplished, according to the plaintiff, by secret agreements, misrepresentations and a breach of the fiduciary duties and contractual obligations set forth in the by-laws. The plaintiff further contends that its termination was part of an overall plan by which the larger members would advance their own interests at the expense of the smaller members, so that AAAD will have a cadre of larger, more financially powerful member companies. The plaintiff contends that it was terminated as a result of a conspiracy between the larger members, who control the Executive Committee and Motor Age, to take over the plaintiff's Goodyear accounts. The plaintiff further contends that it relies upon the Goodyear accounts and will go out of business if it is forced to give up the Goodyear business as a result of its termination as a member of AAAD. It therefore asserts that it will be irreparably damaged unless the Court prevents AAAD from terminating its membership. To that end the plaintiff, among other requests for relief, seeks injunctive relief, reinstatement as a member of AAAD and damages. The complaint contains six causes of action, as follows: 1) Breach of fiduciary relationship; 2) Breach of the membership by-laws; 3) Breach of the agreement between the plaintiff and AAAD specifically as to the Goodyear account; 4) Wrongful interference with the plaintiff's contractual rights; 5) Wrongful interference with the plaintiff's business opportunities; and 6) Violations of the Sherman Act and New York's Donnelly Act. PROCEDURAL SETTING Following termination from AAAD, the plaintiff commenced this action in the Supreme Court of the State of New York, Queens County. At the time that the plaintiff filed in state court, a sweeping ex parte temporary restraining order ("TRO") was obtained requiring, inter alia, AAAD not to interfere with the plaintiff's membership. On December 22, 1989, the defendants removed this case to this Court pursuant to 28 U.S.C. § 1441 on the grounds of diversity (see 28 U.S.C. § 1332). The plaintiff not having requested an extension, the ex parte TRO expired on January 1, 1990 (see Fed.R.Civ.P. 65(b); see also Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439-40, 94 S. Ct. 1113, 1124-25, 39 L. Ed. 2d 435 [1974]). On January 25, 1990, after oral argument by all sides, this Court granted a second TRO preventing AAAD from terminating the plaintiff's membership. The parties later stipulated to an extension of this last TRO, waived discovery and proceeded to a hearing on the plaintiff's application for a preliminary injunction. After commencement of the hearing, the parties agreed, and the Court ordered that the motion be converted to a full trial on the merits of the entire case pursuant to Fed. R.Civ.P. 65(a)(2). In the interim, the defendants moved to vacate the TRO on the grounds that it had expired by its own terms, or, in any event, by operation of law. On February 23, 1990, the Court denied that application and instead granted a temporary or interim injunction preventing AAAD from terminating the plaintiff's membership for the pendency of the trial. Thus, the plaintiff has at all times until the present continued as a member of AAAD and, as such, continued to service its Goodyear company-owned stores. *1487 THE TRIAL AND FINDINGS Since the determinations in this case are, of necessity, factually oriented, the Court is compelled to detail much of the evidence in connection with its findings of fact. The Plaintiff's Case: GARY W. DAVIS ("Davis") was the President and a shareholder and director of Matthews Auto Electric, Inc. ("Matthews"), a warehouse distributor operating in Oklahoma, Arkansas and Kansas, which was admitted as a member of AAAD in January 1987. The representative of AAAD with regard to recruitment of Matthews was one Joe Matlock, the Executive Vice President of AAAD. Matthews conducted an aggressive "Parts Plus" promotion and succeeded in converting all of their customers to Parts Plus jobbers. The Matthews promotional costs to convert its jobbers into Parts Plus jobbers was approximately $500,000. Six days after the "kick-off" promotional meeting by Matthews to convert jobbers to the Parts Plus program in 1987, Parts, Inc., the largest member of AAAD, purchased the business of Davis' chief competitor. This purchase placed Parts, Inc. directly in the territory of Matthews. According to Davis, after he vigorously complained to Marvin Almy, the President of AAAD, and Paul Kachapis, the Chairman of the Executive Committee, about the Parts, Inc. intrusion into his territory, the Matthews Company was terminated by AAAD in June 1989 and eventually filed for bankruptcy under Chapter 11 in August 1989. The Matthews firm is still being operated under Chapter 11 procedures. On cross-examination Davis conceded that the by-laws did not prohibit Parts, Inc. from operating in Matthews' territory or from acquiring another warehouse distributor in Matthews' market area. Further, Davis conceded that from December 1988 to June 1989 Matthews made no payments to AAAD for its purchases of auto parts and also stopped paying dues and promoting the Parts Plus program. Also, in May 1989, Matthews received a notice of possible termination from AAAD and declined to contest its termination. RICHARD JUDELSON is the Vice-President, Director and a shareholder of the plaintiff corporation and was the plaintiff's principal factual witness. Plaintiff's first contact with AAAD was in 1984 when Joe Matlock contacted them and explained the advantages of joining the defendant-association. With regard to the purchases of auto parts, AAAD furnishes a "group sales allowance" ("GSA") which is a discount given to AAAD, which retains 20% of the amount of the discount and returns 80% of the discount to its members. In 1988 the plaintiff received in excess of $100,000 from the GSA plan. These discounts result from better pricing plateaus, group purchases and "entire truckload" prices. The cost of joining and maintaining a membership in AAAD by the plaintiff included a $17,500 initiation fee and annual dues of $2,000 per year and marketing dues based on a percentage of annual net sales approximating a total of $12,000 per year. In September 1984, the plaintiff decided to join AAAD and, by October 1984 they were voted in as a member. The plaintiff entered into a written agreement with AAAD with regard to the Goodyear business and plaintiff geared up to serve the Goodyear company-owned stores in their geographical territory. This process involved revising its computer program, purchasing an initial inventory, and adding a night crew to execute Goodyear orders and deliveries. The plaintiff started its Parts Plus program in the summer of 1985 on advice from Alan Hunsaker, then a Vice-President of MRI. In 1985 the plaintiff's first Parts Plus program was printed and prepared by Hunsaker. Other plans or amendments were prepared annually with the assistance and advice of Hunsaker. The plaintiff arranged dinner meetings for its jobbers in the fall of 1986 to promote the program and within days fifteen customers agreed to enter the program. According to Richard Judelson, in the summer of 1987, the plaintiff was advised *1488 that their Parts Plus program didn't receive sufficient customer support and Hunsaker recommended that the program be put "on hold" in order to regroup. At about the same time, the plaintiff got word of a prospective new member of AAAD, the defendant Motor Age, Inc. ("Motor Age"), a warehouse distributor competitor of the plaintiff which sold in plaintiff's territory. Apparently Motor Age was negotiating to purchase another AAAD member named Forshay-Gabriel, a warehouse distributor in Newark, New Jersey. The plaintiff strongly objected to membership by its competitor and so advised Matlock. Although Richard Judelson was told by President Almy in November 1987 that no Motor Age membership application was pending, two days later the plaintiff received a Motor Age application, dated November 18, 1987 and a ballot including a profile from Motor Age that was dated September 8, 1987. The application contained a statement by Almy and Kachapis, which reads, in part, as follows: "The application of this member was discussed with the AAAD Executive Committee prior to submission to the membership. We do have existing members in close proximity to Motor Age. It was the consensus of the Executive Committee, however, that we are not at a saturation point in the Metropolitan New York market and that the overall status of the Association would be enhanced by a larger presence in the largest market in the country. * * * * * * Existing national account business would remain with the current members who are serving Goodyear. The AAAD Executive Committee and President endorse the application of Motor Age and urge your favorable response on this application" (emphasis supplied). The ballot itself was placed on the same sheet as a memorandum from Joe Matlock dated November 12, 1987, which stated, in part, as follows: "Motor Age, should it be accepted, would at once conform to the standards which our members adopted in Montreal last year. They would overnight create a strong Parts Plus presence in a very major autoparts consuming area where we have had no program success to date and so, in the interest of AAAD's increased market share, it is highly recommended that you vote favorably for the admission of Motor Age as a AAAD member." The plaintiff voted "most strongly" to disapprove the application of Motor Age and contacted all of the members of AAAD and urged them to vote against such admission. On November 26, 1987, Almy called and advised the plaintiff that a meeting would be held on November 30, 1987 with regard to the plaintiff's request to be heard in opposition to the application of Motor Age. Jerry Judelson attended the meeting and, along with several other members, stated their reasons for opposing the Motor Age application. No vote was taken on the first ballot. By application — memorandum dated December 21, 1987, a second ballot as to Motor Age's admission was circulated to the membership. As with the first ballot, Almy urged the members to vote "yes" on the second ballot. Contrary to prior practice as to the form of the ballots, the second ballot did not contain the option to vote to abstain, despite a request by the plaintiff to include a space to abstain. On January 18, 1988, the plaintiff was advised by Almy that the members approved the Motor Age application for membership. In April-May 1988 there was a meeting at the plaintiff's office with representatives of the Standards Committee with regard to the Committee's concern about the lack of a viable Parts Plus program by the plaintiff. The Standards Committee advised the plaintiff that it was dissatisfied with the plaintiff's Parts Plus program and gave the plaintiff a deadline of October 1988 to submit a plan and to have a viable program underway by the end of 1988. Thereafter, the plaintiff purchased a Parts Plus sign for its warehouse, answered the telephone "Auto Parts Plus" and placed Parts Plus decals on its trucks, among other efforts. *1489 In addition, Al Schuttinger was made its Parts Plus program manager. At this time Richard Judelson noticed certain changes in the relationship between the plaintiff and AAAD. Prior to the admission of Motor Age as a member, the plaintiff received approximately six leads from AAAD as to new customers. Subsequent to the admission of Motor Age the plaintiff received no additional leads. Prior to Motor Age's admission the plaintiff was consulted with regard to potential new national account business; that kind of consultation ceased upon the admission of Motor Age. In addition, in September 1989 the John Deere Co. liquidated a large inventory of auto parts at substantial discounts to AAAD members. Although the plaintiff placed an early order, AAAD unilaterally cancelled the order due to the plaintiff's prospective termination. Since Motor Age was permitted to purchase these discounted products, it gained a competitive advantage. In 1989 there were two instances in which Motor Age purchased certain "Trust" products and plaintiff was not advised of this opportunity. According to Richard Judelson, Motor Age was given a competitive edge over the plaintiff with regard to the two Trust products. Also, Motor Age was provided the opportunity to participate in the new pilot national account program with the Firestone Company, while the plaintiff was denied that right. In 1989, the Standards Committee initiated a series of steps that culminated in its request to the Executive Committee that plaintiff's membership in AAAD be terminated. A letter was sent by Almy to the plaintiff on April 27, 1989 stating that the Standards Committee recommended that "the termination of membership of Automotive Electric be considered" on the basis of a "lack of sincere intent to be a bona fide, active and participating member". The plaintiff was advised that this matter would be discussed at the Executive Committee meeting of May 23, 1989 to be held at Memphis, Tennessee and that plaintiff's representatives "may be heard at 1:00 p.m. that day." The plaintiff responded in writing and sent representatives to the Memphis Executive Committee meeting. After an investigation by a delegation of the Standards Committee, the plaintiff received a letter from AAAD dated October 10, 1989 advising it that the matter of plaintiff's termination would be raised again at an Executive Committee meeting at which time plaintiff would be entitled to appear and have an opportunity to be heard. This letter was sent notwithstanding the fact that the plaintiff had, by then, signed up six new Parts Plus stores. On November 16, 1989 the Executive Committee met, at which time Jerry Judelson and Al Schuttinger appeared and presented the plaintiff's defense to the accusation that it was not properly supporting the Parts Plus program. By letter dated November 17, 1989, plaintiff was notified that "it was the vote of the Committee to terminate the membership of Automotive Electric effective immediately". The letter stated that: "The grounds for termination were failure to commit to duly adopted Association programs and to demonstrate a sincere intent to be a bona fide, active and participating Member of the Association in that you have failed to establish a genuine and effective Parts Plus program in your marketing area." As to the prospective results of termination of the plaintiff's membership in AAAD, Richard Judelson testified that the Goodyear business constituted 30% of the plaintiff's annual sales. The plaintiff's sales to Goodyear company-owned stores were as follows: 1987 $2,266,805.80 1988 $2,193,582.07 1989 $2,152,019.95 He also stated that the combination of Goodyear company-owned stores and Trust sales constituted 33 1/3 % of the plaintiff's gross sales. In addition, the plaintiff made additional changes in its financial structure in order to take on the Goodyear business. It placed a two million dollar mortgage on its warehouse. It entered into an arrangement with Milberg Factors to factor its receivables due to the need for additional *1490 capital created by the extended payment terms granted to Goodyear in its contract with AAAD. As to the impact of the loss of the Goodyear and Trust business as a result of its termination from AAAD membership, Richard Judelson testified that the plaintiff would not be able to pay its bills, its mortgage payments or its factor. In sum, Judelson testified that without the Goodyear and Trust business, plaintiff could not continue to operate as a warehouse distributor. On cross-examination, Richard Judelson admitted that the plaintiff has no Parts Plus jobbers on Long Island and in Westchester County, even though both areas are significant markets. In 1985 when plaintiff initiated its Parts Plus program, it had 250 active jobbers and, as a result of its initial promotional efforts fifteen were converted to Parts Plus jobbers. Of these fifteen jobbers, fourteen have since dropped out of the program or gone out of business and only one is still a Parts Plus jobber. Judelson conceded that the plaintiff voted for promulgation of the Standards at the August 1986 membership meeting, that he knew that the plaintiff would have to comply with the standards and that the failure to comply with the standards could result in termination of the plaintiff's membership. Significantly, Richard Judelson conceded that in December 1986, prior to the admittance of Motor Age as a member, Hunsaker stated that the credibility of the plaintiff's Parts Plus program suffered because the plaintiff did not deliver the required elements of the program. This was clear evidence of a problem involving the plaintiff's Parts Plus program prior to the admission of Motor Age. Further evidence of this same problem was set forth in the MRI Service Report of January 19, 1987 which summarized a strategic planning meeting held in December 1986, and referred to the plaintiff's Parts Plus program as follows: "II. The Parts Plus Program The Parts Plus Program has delivered less than the desired results i.e., the jobbers on the program not really supporting Automotive Electric Service or the program. The overall credibility of the program was mentioned as a concern. This is usually the case if the program deliverables are not delivered or there is a lack of long-range commitment on the part of the warehouse. While every attempt was made to deliver what was promised, the follow through by the jobber or his attitude was not supportive. The commitment was made by the warehouse, but when the support did not come, the commitment of the warehouse began to erode." By the end of 1986, the number of the plaintiff's Parts Plus jobbers was reduced from fifteen to six. In an evaluation of the plaintiff's Standards and Objectives, dated March 16, 1987, it was stated that the plaintiff's "Parts Plus programs have made little progress in the market. Question management commitment to the program as well as abilities of the company to deliver on the program". In another evaluation of Standards and Objectives dated November 10-11, 1987, all the Parts Plus categories with regard to the plaintiff were answered in the negative including the telling comment that the plaintiff did not actively promote Parts Plus. Despite warnings in 1988 by AAAD about the need to invigorate their Parts Plus program, the plaintiff did not sign up any jobbers in the program during the year 1988. In fact, the plaintiff agreed to increase its Parts Plus jobbers by the end of 1988 and did not do so even when threatened with termination of membership in AAAD. By the end of 1988 the plaintiff was down to one or two Parts Plus jobbers, a figure less than 1% of its customers. In September 1988, the plaintiff did develop a written Parts Plus Program involving twenty-seven separate elements, which plan was to be implemented prior to the end of 1988. In 1989 some progress was made when plaintiff added a total of six Parts Plus jobbers. In addition, during 1989 the plaintiff participated in another AAAD promotional program by selling seven "Repair America" kits and distributing 2800 "Repair America" booklets. *1491 With regard to the plaintiff's claim of prospective financial ruin if it lost the Goodyear business, it was conceded by Richard Judelson that in 1984, prior to membership in AAAD, it had forty employees and sales of five million, while in 1989 it had fifty-five employees and sales of seven million. He further testified that the plaintiff added a staff to service the Goodyear stores at an annual cost of $200,000 or $30,000 per employee, but admitted that these employees did not work solely on the Goodyear stores. Further, Richard conceded that payment terms on the Goodyear sales were less favorable than other customers in that the Goodyear bills were not paid for an average 125 days. In fact, this late payment plan necessitated the plaintiff's use of a factor. Also, the contract between the plaintiff and AAAD contemplated a non-exclusive right to service the Goodyear company-owned stores, namely, Goodyear could purchase automotive goods from any other warehouse distributor. Also, Judelson conceded that the plaintiff could attempt to sell to the Goodyear stores even if its membership in AAAD was terminated. In addition, contrary to the plaintiff's contention, the plaintiff's tenure as a member of AAAD does not appear to have been profitable. According to its financial statements, in 1984 the plaintiff had a net profit of $746,000; in 1985 a net profit of $15,000; in 1986 a net profit of $12,000; in 1987 a net loss of $112,000; and in 1988 a net loss of $32,000. Notwithstanding these figures taken from the plaintiff's financial statements, Richard Judelson testified that actually the plaintiff earned a gross profit of $585,000 on the 2.3 million in sales to Goodyear stores in 1987 and also obtains other benefits in purchase discounts of approximately $40,000 per year. Judelson also attempted to explain the substantial difference in the 1984 net profit as opposed to the later years while a member of AAAD, in that the 1984 figures included a net gain to the plaintiff as a result of real estate sold in Connecticut that year, while in 1987 the plaintiff suffered an extraordinary loss of $120,000 when it sold its Connecticut subsidiary. In sum, however, according to the financial statements, the plaintiff had a net operating loss in each of years 1986, 1987, 1988 and 1989. GILBERT REYES was employed by the plaintiff as a sales representative. On a ruse, in April 1989 he answered a AAAD advertisement in an auto trade magazine which was promoting the Parts Plus program. Reyes filled out a card requesting Parts Plus jobber information giving his location as his home in Rosedale, Queens, New York and sent it to AAAD. He received a letter from AAAD with enclosures stating that the AAAD Parts Plus distributor for Rosedale, Queens was Motor Age. JERRY JUDELSON is the Secretary, a Director and the majority shareholder of the plaintiff corporation. He testified that by the end of June 1989 the number of plaintiff's Parts Plus jobbers had increased to six. At the final November 16, 1989 Executive Committee meeting, he advised the members of the Executive Committee that his Deere order had been improperly cancelled and that his firm was no longer being given Parts Plus leads. He exhibited photographs of a Motor Age Parts Plus store without a sign and a Motor Age truck without a Parts Plus sign. On cross-examination, Jerry Judelson conceded that on November 10, 1987 the plaintiff's Parts Plus program was "on hold" and that it continued "on hold" from the summer of 1987 to the fall of 1988; that at the May 1988 Standards Committee meeting he acknowledged that the plaintiff did not have a Parts Plus program in place and he agreed to do so before the end of 1988; that he was told that "termination" was a possible consequence; and that by September 1988 the plaintiff could not implement all of the 27 separate elements in his proposed Parts Plus program. ROBERT BERKOWICZ is a certified public accountant who has been the accountant for the plaintiff corporation for only one year. He prepared a statement dated February 27, 1990 regarding the impact of the loss of sales of the Goodyear company-owned stores. In this regard, Berkowicz relied on the plaintiff's books and records. He did no audit nor did he *1492 conduct any full-fledged accounting review of the plaintiff's records. Berkowicz testified that, in his opinion, the plaintiff earned a gross profit (from sales less cost of goods) of 29% before operating and fixed expenses. Further, it was his opinion that if the plaintiff lost the Goodyear account, it could not pay its current expenses. Therefore, in that event, he would recommend that plaintiff's officers close down the business and go into bankruptcy. The Court does not credit the testimony of the plaintiff's accountant. He performed no audit of the plaintiff's financial records; no books and records were produced; no financial statements were prepared for 1989; he has no other clients in the auto parts industry; he omitted key operating expenses such as delivery expenses; he assumed that the Goodyear business would not be replaced; he reviewed no original records; his calculation of the gross profit figures of $357,000 in 1988 and $300,000 in 1989 were contrary to the credible evidence; his report was based on assumptions and figures given to him by Richard Judelson; he accepted the "word" of Richard Judelson in arriving at the 29% gross profit figure; he admitted the 29% gross profit figure was an "educated guess"; he failed to calculate the substantial interest charges involved in factoring the Goodyear accounts receivable; and his covering letter states that "management's assumptions are not necessarily true". The Court finds that the conclusions stated by Berkowicz were speculative and unsupported by the credible evidence. Indeed, in view of the net operating losses sustained by the plaintiff in 1987 ($25,000) and in 1988 ($94,000), his testimony is unworthy of belief. HORACE MARVIN ALMY, also known as MARVIN ALMY, has been the President of the defendant AAAD since August 1, 1985. The total annual sales of AAAD members is approximately 640 million dollars per year. The plaintiff corporation had sales of seven million in 1988 and the defendant Motor Age, the second largest AAAD member, had sales of forty million. During the past years, Almy conceded that some larger members have purchased smaller members. In fact, three of the seven present members of the Executive Committee acquired other AAAD members. Almy stated that one of the goals of AAAD was to bring in one of the largest warehouses in each target area. Almy testified that Joe Matlock retired on January 31, 1990 as the Executive Vice-President of AAAD. During his employment with the defendant Association, Matlock's two main duties were the solicitation of new members and the development of the Parts Plus program. In connection with his solicitation duties, he recruited both the plaintiff and Motor Age as Association members. It is significant that Matlock was an authorized representative of AAAD for the purpose of procuring new Association members. Almy testified that the Goodyear company-owned stores were not available to Motor Age when it became a new member, and that there was no agreement with Motor Age or Paul Lehr, its President, for it to obtain the plaintiff's Goodyear accounts. Almy further testified that no such agreement was made by him, Matlock, or with anyone barnesstephen@example.com. After the first "application" and ballot was mailed to the Association members on November 18, 1987, because of concerns raised by the plaintiff and others, the Executive Committee decided to terminate the ballot and investigate further. A second application and ballot was sent out on December 21, 1987. The ballot stated that each member should vote and return the ballot by January 15, 1988. Almy stated that the second balloting resulted in 29 affirmative votes and that only 26 were needed for an affirmative admission vote. On January 18, 1988 Almy advised the members of the results of the balloting — that Motor Age had been voted in as a member of AAAD. Almy interpreted the crucial ¶ 11 of the by-laws as requiring a commitment on the part of members to successfully participate in the Parts Plus program. He stated that successful participation means "results", *1493 not merely good intentions. Almy did not believe that New York City was a difficult Parts Plus program market; certainly no more difficult than other urban areas where Parts Plus programs had greater success. The by-laws of the Association provide that the members financial information shall be confidential, as follows: "ARTICLE VII — MEMBER FINANCIAL INFORMATION Section 1. It shall be the obligation of each Member, within ninety (90) days after the end of its fiscal year, to submit to the Association copies of its balance sheet and statement of income as of the end of and for such fiscal year, for confidential review by the President, and to submit available interim financial information within ten (10) days after requested to do so by the President. * * * * * * Section 4. Members shall not have access to specific financial information submitted by other Members or prospective Members unless Member or prospective Member approves such access ... that he considers essential in making such determination" (emphasis supplied). With respect to a "working together — winning together" contest to obtain new Parts Plus jobbers in which the plaintiff was assigned a goal of one, the plaintiff's performance was fifth or sixth out of thirty-nine members. During this "contest", the plaintiff obtained two new Parts Plus jobbers when its assigned goal was only one and then had a total of six Parts Plus jobbers. Motor Age had a goal of eight jobbers and obtained none. In April 1989, the first letter of termination was sent to the plaintiff. A meeting of the Executive Committee was held in May, 1989 and the plaintiff was afforded an opportunity to be heard. The Executive Committee tabled the Standards Committee recommendation to terminate the plaintiff's membership and sent out two representatives to make an inspection of the plaintiff's Parts Plus jobbers. The two representatives were Carl Molin, the Chairman of the Standards Committee, who had already recommended termination, and Joe Matlock, who, the Court later learned, was not impartial, and had already allegedly entered into a surreptitious agreement to obtain the plaintiff's Goodyear stores for Motor Age. The plaintiff was not afforded an opportunity to accompany the subcommittee members on their investigating rounds, nor was it given an opportunity to provide the subcommittee with a list of its new Parts Plus jobbers, nor was plaintiff provided with a copy of their report. At the November 16, 1989 Executive Committee meeting at which a vote was taken to terminate the plaintiff's membership, after the plaintiff's representatives were heard and left the meeting, present at the meeting when the termination vote was taken were Marvin Almy and Joe Matlock. Not only did Matlock attend this final Executive Committee meeting but he alone reported to the Executive Committee the negative results of the investigation of the plaintiff's Parts Plus jobbers, which was directly followed by the vote to expel the plaintiff. One day after the termination vote was taken, on November 17, 1989, letters were sent to the plaintiff, to all suppliers and manufacturers and to Goodyear, that the plaintiff was no longer participating in AAAD projects. At this point, by reason of the plaintiff's termination, Motor Age would have obtained the plaintiff's Goodyear stores. On cross-examination, Almy emphasized that there were no exclusive geographic areas among AAAD members and that there were overlaps in territorial areas among many of the members including Central California, Dallas-Fort Worth, Birmingham, Chattanooga, Orlando, Albany, Newark and Pittsburgh. After the first evaluations of the members' Parts Plus programs on March 16, 1987, Almy noted that the plaintiff had made little progress and its management's commitment to the program was questioned. Among the six problem companies to be further observed was the plaintiff. In the second evaluation by the Standards *1494 Committee on November 10-11, 1987, the plaintiff's Parts Plus program continued to rate poorly. In fact, the plaintiff had not even prepared an annual Parts Plus program. The Standards Committee determined that satisfactory progress had not been made by the plaintiff and a delegation was requested to visit the plaintiff. If there was no improvement, the Standards Committee discussed a recommendation to the Executive Committee for possible termination. No new positive information was ascertained by the delegation and the matter of plaintiff's termination was referred to the Executive Committee. The Executive Committee met on May 23, 1989. The Executive Committee decided to table the question of the plaintiff's termination and to obtain additional information from Matlock, Almy and the AAAD staff. Thereafter the "fact finding" trip described above was made by Matlock and Carl Molin of the plaintiff's Parts Plus jobbers resulting in an unfavorable report on June 12, 1989. Following this trip, Joe Matlock submitted a report to the Executive Committee and the Standards Committee dated June 7, 1989 and June 12, 1989 (see Defendant AAAD Exhibit O), including the following findings: "Neither Carl nor I saw or heard anything during our investigation of AESC's Brooklyn-Queens jobbers to indicate that satisfactory progress is being made here with Parts Plus no matter barnesstephen@example.com. The conclusion to be drawn here is that other NY warehouses have been effective, but AESC has experienced four years of failure to achieve Parts Plus objectives in their market." All the evidence concerning the plaintiff's commitment to the Parts Plus program was not unfavorable. In his evaluation of May 31, 1988, Almy wrote that he believed the plaintiff was dedicated to the Parts Plus program and able to make it work. On October 4, 1988, Hunsaker reported to the Standards Committee that the plaintiff was recommitted and has developed a program. By the end of the second quarter of 1989, the plaintiff had six new jobbers. At the time of its termination, the plaintiff had a total of seven Parts Plus jobbers, all in New York City, of a potential 1,000 jobbers and had sent out 28,000 flyers in an attempt to obtain additional jobbers. In addition to the plaintiff, the membership of another member, General Auto Parts Distributors of San Francisco, was terminated in April of 1989. However, this firm was in the process of either going out of business or reorganizing so that the termination was really a "formality". The plaintiff was the only member terminated solely because of a lack of commitment to the Parts Plus program. PAUL LEHR was one of the two significant witnesses in this case. His testimony on direct examination consists of two different segments. Initially, on direct, Lehr was confident, responsive and believable. Then after he was shown certain "surprise" documents, his composure changed and his testimony became evasive and less credible. Lehr has been in the automotive aftermarket industry since 1975 and is the President of the defendant Motor Age, Inc., a privately held New Jersey corporation incorporated in October 1980. He prides himself as being a "hands-on" Chief Executive Officer. He and his family jointly own 60% of the Motor Age shares. The defendant Motor Age East, Inc. ("Motor Age East"), was a New York corporation which was a subsidiary of Motor Age, being 80% owned by Motor Age. Motor Age East was merged with Motor Age in June 1989 and is no longer in existence. Lehr first learned of the defendant Association in 1977 and had contact with it at that time, and, in particular, he discussed some matters with Joe Matlock. In the late 1970s, Lehr was a Vice President of a warehouse distributor known as Parts Group, which filed for Chapter 11 in 1980. Lehr was asked to stay on to oversee the orderly liquidation of the four companies constituting the Parts Group. In October 1980 he formed a new corporation called Motor Age, Inc. and made a successful offer for the assets of the four bankrupt *1495 corporations. He operated Motor Age from its old facility in Hackensack, New Jersey until 1985 when he moved to its present location in Bogota, New Jersey. Lehr testified that his next contact with AAAD was in the Fall of 1986 when he contacted Matlock and Almy about his possible purchase of Forshay-Gabriel and whether he could then become a member of AAAD. This date of contact between Lehr and Matlock in the Fall of 1986 is significant because it was following this period that plaintiff's Parts Plus problems became a growing concern of AAAD, leading to the plaintiff's ultimate termination. In January of 1987, Motor Age decided not to purchase Forshay-Gabriel. Eight months later, in July-August 1987, Matlock, Almy and Paul Kachapis, Chairman of the AAAD Executive Committee, visited him. He was given a "sales pitch" to join AAAD. Lehr was told that the New York metropolitan area was the largest market in the United States and that there was room for an additional member, such as Motor Age. He was asked to visit MRI and obtain additional data on AAAD. In this early testimony by Lehr he stated unequivocally that the AAAD representatives made it very clear that the Goodyear company-owned stores in the Motor Age territory were already allocated to other members and that this arrangement would not be changed. In other words, Lehr clearly testified that in July-August 1987 he was told that if Motor Age became a member, it would not be able to service any of the Goodyear company-owned stores already allocated to the members in his geographical area, including, of course, the plaintiff. In sum, he testified that he was told and knew that if he became a member of AAAD, the Goodyear company-owned stores would remain with the existing members: "Q Was there any discussion with respect to the potential of Motor Age becoming a supplier to Goodyear stores in connection with prospective AAAD membership? A Yes. They made it very clear in the conversation that the Goodyear stores were already assigned to—in the territory I serviced, and the Goodyear stores were assigned to four, maybe five distributors depending again upon how you define the market place. Actually, in terms where I was distributing there were five other members who serviced Goodyear and they made it very clear in no case would any existing supply arrangement between an AAAD member and Goodyear store be modified or changed by virtue if I was to become a member. * * * * * * Q Was it always very clear it was unavailable to Motor Age and would not be taken from any of the then members of AAAD servicing Goodyear? A It was always clear there would be no changing in the existing supply match up were Motor Age to become a member. It was not available." Motor Age decided to apply for membership in AAAD in November 1987 and, in January 1988, became a member. In September 1989, Lehr became a member of the Executive Committee. Other officers of Motor Age are also presently taking an active role in various committees of AAAD. After admission to membership, Motor Age converted seventy-one or seventy-two jobbers to the Parts Plus program. However, by early 1989, its Parts Plus jobbers were reduced in number to fifty-five to sixty. (Plaintiff's Exhibit 31 shows fifty such jobbers for Motor Age as of September 1989.) Of these Parts Plus jobbers, however, only six were in the five boroughs of the City of New York, further evidence that New York City is a difficult market for the Parts Plus program. According to Lehr, the first discussion with a representative of AAAD concerning the acquisition by Motor Age of Goodyear company-owned stores was in May 1989 in a telephone call from Almy: "Q There came a time as you described when you received word from Mr. Almy in approximately May of 1989 regarding the potential of Motor Age servicing Goodyear, is that correct? *1496 A You asked me when was the first time I had a conversation with anyone regarding Goodyear. I said it was a phone call form Mr. Almy in May 1989, that's correct." At that time, in May 1989, Almy called him with regard to "contingent planning", namely, if the plaintiff's membership was terminated would he be interested in servicing the Goodyear company-owned stores and if so, when could he do so. Not surprisingly, Lehr answered "Yes", and that he could do so within thirty to sixty days. In response, Almy said, "Okay, do nothing now, the matter is still under review". In the summer of 1989, Lehr decided to solicit the independent non-company owned Goodyear stores, which were "fair game" for any member. According to Lehr, the next Goodyear discussion was at a dinner with Almy in July 1989 when he asked Almy "whether there was anything new on the plaintiff's situation" and Almy said, "No, the matter was still under review". Lehr testified, with specificity, that when he returned from a Phoenix AAAD meeting on September 26 or 27, 1989 he made a decision to take active steps to take over the plaintiff's Goodyear stores. On November 16, 1989, the Executive Committee voted to terminate plaintiff's membership. Lehr was not present at this vote. Lehr testified that at that time, he knew for the first time that Motor Age would get the plaintiff's Goodyear stores. Motor Age was poised and ready to serve the plaintiff's Goodyear accounts as of December 17, 1989. In answer to several pointed questions raised by the plaintiff's trial counsel, Lehr denied that he had any copies or printouts of the plaintiff's GASCs (Goodyear customers) prior to November 1989. In addition, Lehr unequivocally denied that Joe Matlock sent him copies of the plaintiff's sales data prior to 1989. "Q Did you have that specific information with respect to the plaintiff's GASCs? A The plaintiff was listed right on the list along with every one else. Q Did you have that information? A Not in my possession but I certainly seen it. Q You had no copies or printouts of it? A The first time I got a listing in detail of the plaintiff's GASCs I believe was in November or December of 1989 when I was visited by staff. I don't recall getting the plaintiff's detailed information previously. Q Is it — and isn't it a fact that prior to the time you even applied to AAAD Joe Matlock sent you copies of information and data pertaining to plaintiff's sales to its GASCs? A Joe Matlock did not send me information on the plaintiff's GASC sale. Q Isn't it a fact prior to the time you applied for AAAD membership Joe Matlock promised that Motor Age can have the plaintiff's GASCs if it joined AAAD? A Absolutely not. Q Prior to the date you applied Joe Matlock sent you a list what the GASCs were an [sic] information on the plaintiff's sale to its GASC which included monthly sales, annual sales, inventory, turnover terms and other information? A I had that information on Forshay-Gabriel not on Automotive Electric" (emphasis supplied). At this point in the trial, from a forceful, confident and persuasive witness, Lehr's posture changed and direct evidence of "bad faith" entered the case, tangibly, for the first time: "Q Let me show you a document and I ask if this is your signature here? A This is not my signature, no. Q Is this? A Yes, that is. Q Is this Motor Age stationery? A Yes. MR. FRANK: I have a copy for you, counsel. (Whereupon, there was a pause in the proceedings.) Q Is that your signature? A Yes. *1497 Q Is that your note, sir? A This is mine. This is my signature. This is not my signature. Q This is your signature at a location on this page? A Yes. THE COURT: Referring to the right side of the page? THE WITNESS: Yes. Q It is on Motor Age letterhead? A Inter-office stationery. Q Your signature is below all the typed language on that document, is it not? A To the right and below. MR. FRANK: I would move this item into evidence. THE COURT: Show it to counsel. MR. FRANK: They have copies now. MR. GRIMM: Your Honor, from my point of view I have not seen this document before. I think it is appropriate to lay a foundation. All he's done is identified his name on one page" (emphasis supplied). The document shown to Lehr by plaintiff's trial counsel, is the most crucial piece of evidence in this case, and, it was apparent to the Court that Lehr was surprised to see it in the possession of the plaintiff's counsel. Plaintiff's Exhibit 38 is the significant document. The first sheet in Plaintiff's Exhibit 38 is a document entitled "Inter-Office Memo" dated September 10, 1987. The memo includes a typewritten portion and a handwritten part in the right upper border. The typewritten portion is reproduced in its entirety, as follows: "INTER-OFFICE MEMO TO: AO FROM: PPL CD SUBJECT: AAAD Info DATE: September 10, 1987 Attached is data on Goodyear business that Joe promised us. It appears that his `guess' at Auto Electric's volume was too high, although the Forshay numbers were correct. In total, the Goodyear volume is about $5½ million per year — still not too shabby. Paul (handwritten) MOTOR AGE" On the upper right-hand side of this memo from "Paul", obviously from Paul Lehr, dated September 10, 1987, appears the following handwritten note: "SB — Start `AAAD' file in my credenza near All Pro file. P." Plaintiff's Exhibit 38 also includes a AAAD FAX lead sheet, dated September 8, 1987, which is precisely reproduced, as follows: "FROM AAAD 9. 8.1987 16:15 AA AD ASSOCIATION OF AUTOMOTIVE AFTERMARKET DISTRIBUTORS (AAAD) FAX NUMBER XXX-XXX-XXXX LEAD SHEET DATE: 9-8-87 TO: PAUL LEHR FROM: JOE MATLOCK TRANSMITTED BY: AE NO. OF PAGES (INCLUDING THIS PAGE): 5 COMMENTS: ___________________________________________ _____________________________________________________" Attached to the FAX lead sheet of September 8, 1987 are four pages of figures, including a detailed breakdown of the plaintiff's "Goodyear sales/inventory analysis" for its fourteen Goodyear locations. These figures include the number and amounts of sales and inventory turnover for each of the plaintiff's fourteen Goodyear stores. Another sheet faxed to Lehr lists the "Stores served by Auto Elec." and gives the store number and the location of each store. The Court takes note of the words by Lehr in the "inter-office memo" of September 10, 1987. "Attached is data on Goodyear business that Joe promised us" and, referring to the Goodyear stores of both the plaintiff and Forshay-Gabriel, "In total, the Goodyear volume is about $5½ million per year — still not too shabby." To compound Lehr's credibility problem, after having been shown the document containing his handwriting, he denied ever seeing the document: "MR. FRANK: I will proceed further. Q Have you seen this document before? A No. Q You've never seen this document? *1498 A I don't recall seeing it. Q Have you seen this second page before? A No, I have not seen the second page. * * * * * * Q Your signature on that addressed with a little note addressed to S B. Is that Sharon, your secretary? A Yes. Q Did you write a note: Start AAAD file in my credenza near All Pro file and start this note on that is — A What is written above is my handwriting. Q Is your handwriting put on the sheet before or after the typed or printed matter? A It would appear it was put after it was typed. But I don't recall writing it on this document. It is not my handwriting, it is not signed by me as to the memorandum, but the note on the upper right-hand corner is my handwriting. Q Isn't it a fact that by this document you boasted to your employees regarding the GASC business that Motor Age was going to get from Forshay-Gabriel and Automotive Electric? A I didn't write this memorandum so I didn't do the boasting. I say this is my handwriting over here. I did not write the memorandum." These documents furnish clear and convincing evidence that AAAD sent the confidential Goodyear business of the plaintiff to Motor Age on September 8, 1987 and that Lehr was under the impression, at that time, that Motor Age was, in some manner, to be given the plaintiff's Goodyear accounts. These documents and Lehr's testimony prior to and subsequent to viewing the documents constitute evidence of "bad faith" on the part of both defendants. On the stand, Lehr unequivocally denied that there was any agreement between Motor Age and AAAD for Motor Age to become a member and take over the plaintiff's Goodyear accounts. Lehr further denied that he ever boasted to his employees that such an agreement existed. At the conclusion of his direct examination, the testimony of Paul Lehr was interrupted and the plaintiff produced the second crucial witness, one TEDDY GARFINKLE, who was employed by Motor Age for five years between August 1983 and November 1988. After two years Garfinkle was appointed the sales manager of Motor Age. In 1987 he had conversations with Lehr about Motor Age taking over the Forshay-Gabriel business, and, in particular, its Goodyear stores, because of the high profit margin of the Goodyear business. Garfinkle testified that he had no conversations with Lehr concerning the plaintiff prior to Motor Age joining AAAD. However, Garfinkle testified that, after Motor Age became a member of AAAD, Paul Lehr told him about a "deal" in which Motor Age would obtain the Goodyear business from Forshay-Gabriel and the plaintiff, as follows: "Q What did Mr. Lehr say? A Paul told me he made a deal, it was not on paper, but that eventually we would be getting the Goodyear business that was now owned by Forshay Gabriel and Auto Electric. Q Would you know the full name? A Auto Electric Service Corp. * * * * * * Q Did Mr. Lehr say it was made before or after joining? A Made before joining. Q Would you please tell me as much as you can about what he said that the deal was? A In relation to getting the Goodyear business, okay, the only thing I was told we were promised we would get the Goodyear business." * * * * * * Q Were you under some impression, without saying what it was? A Yes. Q What was the basis of your having this impression? A I was told by Paul that we did have a secret deal with AAAD. *1499 Q Please continue with your spring conversation? A Paul told me AAAD's legal department recommended at that time it wouldn't be a good idea for them to give Motor Age a program. They were waiting to build a case, I guess, against Automotive Electric for poor performance or whatever the standards of AAAD are." When Garfinkle asked Lehr for an opportunity for him to familiarize himself with the deal, Lehr handed him a file called his "Goodyear file". He personally received these documents from Lehr in the Spring of 1988. In the "Goodyear file" was Plaintiff's Exhibit 38 including the 1987 "inter-office memo" and the financial data on the plaintiff's Goodyear stores. "Q Did Mr. Lehr at any time give or show you any documents pertaining to Motor Age and Goodyear business? A Yes. Q When did he do so? A I was also anxious and I asked if I can familiarize myself with the Goodyear program knowing we were supposed to get this deal and at that point he gave me a file which he called his Goodyear file. Q When was that? A That was the spring of '88. Q Did Mr. Lehr give you some documents? A Yes. Q What did he refer — what did he refer to those document as? A As his Goodyear file. Q Did you receive those documents? A Yes. Q From whom — what person did you receive the document from? A From Paul. Q Now, let me show you what has been marked Plaintiff's Exhibit 38 for identification and please take a moment to look at that and all pages of it. (Whereupon, there was a pause in the proceedings.) A I have looked. Q Do you recognize this document? A Yes. Q What do you recognize it to be? A This is a document that was part of the Goodyear file given to me by Paul." Plaintiff's Exhibit 41, found in the Motor Age "Goodyear file" is dated November 30, 1986 and apparently constitutes a detailed description of the automotive parts inventory statistics of the plaintiff Automotive Electric Service Corp. The document contains the monthly sales of the plaintiff. Garfinkle further testified that he was responsible for converting the Motor Age All Pro jobbers to Parts Plus jobbers and for signing up new Parts Plus jobbers. From January 18, 1988 to October 1988 only one All Pro jobber converted to a Parts Plus jobber. Based on his fifteen years of experience in the automotive aftermarket industry, Garfinkle was of the opinion that the Parts Plus program was a "very hard sell" in urban areas, and it was not a real benefit to jobbers in New York City. This evidence supports the plaintiff's contention that New York City is a difficult area to obtain Parts Plus jobbers. Garfinkle met the Judelsons in about December 1989, and voluntarily disclosed the documentary evidence (Plaintiff's Exhibits 38 through 41) to them about one month later. Questioned on cross-examination by trial counsel for Motor Age, Garfinkle stated that he resigned from Motor Age when his commissions on two occasions were reduced. An argument with Lehr ensued and he stated that Lehr humiliated him in front of the other salesmen. Obviously, his resignation under these circumstances engendered anger on his part toward Lehr and Motor Age. When offered certain benefits by Lehr on condition that he return all papers, he candidly admitted that he accepted the benefits but surreptitiously kept certain documents and ultimately showed them to a competitor of Motor Age. Garfinkle further conceded that he had a minor business relationship with the plaintiff, involving approximately $15,000 in sales. On cross-examination by counsel for Motor Age, further details surfaced about the alleged "secret agreement" between Lehr and AAAD. In particular Garfield related the substance of a conversation with Lehr *1500 in March-April 1987. At that time Lehr told him he had a secret deal with AAAD to get the Goodyear business. Lehr stated that he no longer needed to purchase Forshay-Gabriel and could put up his own warehouse for Goodyear stores and run Forshay-Gabriel out of business. Lehr further stated that Garfinkle would operate the warehouse for Goodyear business. The plan was for Garfinkle to work one day a week on his old accounts and the other four days on the Goodyear stores. Garfinkle resigned his position with Motor Age in October 1988; he was not discharged. The cross-examination of Garfinkle did not result in any contradictions or discrepancies. He stuck to his testimony that Lehr had discussed a "secret deal" with him and gave the general terms of the deal. The Court credits the testimony of Garfinkle. After the completion of Garfinkle's testimony, Paul Lehr resumed the stand. Under "cross-examination" by his own attorney, he reviewed his education (MBAs in finance and accounting) and past employment. Since Motor Age was incorporated in 1980 its sales increased markedly from four million in 1981, fifteen million in 1984, forty million in 1987 to fifty-two million in 1989. He stated that his initial negotiations with Matlock took place in the Fall of 1986 and solely related to the prospective purchase of Forshay-Gabriel. The prospective Forshay-Gabriel purchase negotiations ended just prior to Christmas 1986, and, according to Lehr, that ended his contact with AAAD. Lehr testified that new discussions began in July 1987, when he discussed membership in AAAD with Matlock, Almy and Kachapis. Lehr then admitted that he discussed the Goodyear business at that time and suggested reallocation of the Goodyear business pro rata based on sales. Lehr testified that Matlock laughed at him and said there was no precedent for reassigning Goodyear company-owned stores to incoming members. Then Lehr requested an equal one-third division between the plaintiff, Forshay-Gabriel and Motor Age. He said Matlock was not persuaded but would being the matter before the Executive Committee. It was at this point, according to Lehr, that Matlock agreed to send him the Goodyear financial figures concerning the stores of the plaintiff and Forshay-Gabriel. The Court notes that in his original testimony, prior to the appearance of Plaintiff's Exhibit 38 and Garfinkle, Lehr testified unequivocally that the AAAD representative made it clear that the Goodyear stores would remain with the old members and that he could not have any of the Goodyear company-owned stores. In his prior testimony, Lehr stated that the first discussions concerning a possible Motor Age acquisition of the plaintiff's Goodyear stores was in May 1989. After seeing Plaintiff's Exhibit 38 and hearing Garfinkle, Lehr moved up those conversations to July 1987, almost two years earlier. This change in dates is significant. If a 1987 secret agreement did in fact exist between AAAD and Motor Age, and Lehr was being considered to take over plaintiff's Goodyear stores, AAAD had two years to "build a case" against the plaintiff. The Court further notes that on direct examination nothing was mentioned by Lehr about his receipt of the financial data on plaintiff's Goodyear stores or of the "AAAD file" kept in his credenza. Also, on direct examination, Lehr testified that he didn't recall ever seeing Plaintiff's Exhibit 38 or that it was given to Motor Age prior to its membership in AAAD. This testimony was not true, as Lehr later conceded. In any event, Lehr ultimately conceded that Matlock did send him the plaintiff's Goodyear data and that the handwritten portion of the "inter-office memo" of September 10, 1987 was his. Lehr also conceded that he gave Garfinkle his "Goodyear file" for several months in 1988. He stated, however, that after Garfinkle returned the file, it did not include Plaintiff's Exhibit 38. Lehr testified on cross-examination by his counsel, that Matlock called him in September-October 1987 and said that the Executive Committee would not agree to his request for reassignment of the Goodyear *1501 company-owned stores. This was quite a variance from his original testimony that no discussion of the Goodyear stores took place until May 1989, almost two years later. Getting to the crucial issue, on cross examination, Lehr denied that there was any understanding or agreement between Motor Age and AAAD that Motor Age could get the plaintiff's Goodyear company-owned stores or to cause plaintiff's membership to be terminated and that he never told Garfinkle of such a deal. He further stated that any discussions about Goodyear stores related to the independent stores and not to the company-owned stores. (The Court notes that the figures in Plaintiff's Exhibit 38 concern the plaintiff's Goodyear company-owned stores and not Goodyear independent stores.) As to Ted Garfinkle's testimony regarding a secret deal to acquire the plaintiff's Goodyear stores, Lehr stated that in January, 1987 he told Garfinkle that he was interested in buying Forshay-Gabriel because of its Goodyear stores. The Goodyear company-owned stores are what attracted Lehr to Forshay-Gabriel. The Court also notes that while Lehr testified that he asked for only one-third of the 5.5 million dollar Goodyear business, he circulated an inter-office memo on September 10, 1987 referring to the entire volume of "about $5½ million per year — still not too shabby". There was no reference in this memo of only a one-third share. The clear import was that — in some manner — Motor Age was to obtain the entire 5½ million dollar Goodyear business then held by both Forshay-Gabriel and the plaintiff. The means by which Motor Age would obtain the plaintiff's Goodyear business is less clear. As to the Forshay-Gabriel Goodyear accounts; they would be purchased. As to the Automotive Electric Goodyear business; no mention was made at that time as to the manner of acquisition. Ultimately, fortuitously, the plaintiff's membership in AAAD was terminated and its Goodyear business given to Motor Age. Thus, Motor Age's expectations with regard to the plaintiff's Goodyear business, as indicated in its inter-office memorandum of September 10, 1987, came true. At this point, the plaintiff Automotive Electric Service Corporation rested. The Defendants' Case: ALAN HUNSAKER was formerly employed by MRI since 1983 and has been employed since January 1990 as Director of Marketing for AAAD. While with MRI one of his responsibilities was to implement the AAAD Parts Plus program. Hunsaker assisted the plaintiff in developing a Parts Plus program. He started with plaintiff in October 1985 with a "kickoff" program in which the plaintiff signed up fifteen jobbers within the first two weeks. From these first fifteen jobbers, the plaintiff let the Parts Plus program slide until they were down to very few jobbers. Then the program was slightly rejuvenated in 1989 when the plaintiff added six jobbers. The progress of the plaintiff in the Parts Plus program is traced by the various service reports filed by Hunsaker. The service report of January 29, 1986 indicated that greater member commitment was required. Hunsaker testified that in 1986 the plaintiff failed to deliver the elements of the Parts Plus program he had worked out for them. In Hunsaker's January 19, 1987 service report he stated that "the commitment of the warehouse began to erode". Alan Hunsaker testified in detail to a chronological history of failure on the part of the plaintiff to implement a viable Parts Plus program. He stated that the plaintiff put its Parts Plus program "on hold" in June 1987. Further, he stated that plaintiff delivered no Parts Plus program in 1988. However, in September 1988 a program was finally put together for 1988/1989 which Hunsaker felt would be acceptable, if implemented. The program provided for an initial four Parts Plus jobbers and ten to twelve members by the end of 1989. Instead of increasing their Parts Plus jobbers by December 1988, the members fell from four to three. In sum, Hunsaker was of the opinion that the plaintiff lacked commitment to the Parts Plus program and didn't deliver what it promised. *1502 During cross-examination, Hunsaker conceded that in 1988, the plaintiff erected a Parts Plus sign at its warehouse and placed Parts Plus signs on its trucks. Also as of October 1988, the plaintiff's telephone was answered "Auto — Parts Plus". Further, in the MRI memorandum dated October 4, 1988, Hunsaker rendered a more favorable report as to the plaintiff's Parts Plus efforts, as follows: "Opinion I feel that Automotive Electric has recommitted to the delivery to the Part Plus program and has developed a program which it will be possible for them to deliver. Areas where problems occurred previously have been addressed and specific individuals designated as responsible for seeing that those are remedied. The target set by Automotive Electric of the initial four Parts Plus members and targeting a total of ten to twelve by the end of '89 is, in my estimation, a realistic and controllable number. * * * * * * Also worth noting is the fact that as I was waiting to see the Judelson's and noticed that the phone was being answered as Automotive Electric Parts Plus. Automotive has also identified their invoices, statements, credit memos, etc. (see attached) which both Parts Plus and Trust logos." In actuality, by June 1989, the plaintiff had acquired six new jobbers in addition to the one old one and had accomplished half of its target of ten to twelve jobbers with additional time available to the end of 1989. Further, in the April 7, 1989 MRI "Standards Committee Update", Hunsaker stated that the plaintiff, "Has met the guidelines as set forth by the Standards Committee, to a point". One month later, notwithstanding this favorable report by the person directly supervising the plaintiff's Parts Plus program, the Standards Committee recommended plaintiff's termination. MARK DARNELL MULLER was the President and Chief Executive Officer of Muller Warehouse, Inc. a AAAD member since 1979, operating in the Dallas-Fort Worth area. His firm has approximately fifty-three Parts Plus jobbers. He is a member of the Standards Committee and the Executive Committee. In the fall of 1987 the Standards Committee focused on five members who were deficient in meeting the standards of the Parts Plus program, including the plaintiff. On-site meetings were scheduled and Muller visited the plaintiff and two other deficient members. Even though the plaintiff was asked to send a representative to the next meeting of the Standards Committee, the plaintiff failed to do so. While one of the five firms went out of business, two of the firms made progress, while the plaintiff and Forshay-Gabriel failed to do so. In the Spring of 1989, the Standards Committee decided that if the plaintiff did not show more progress it would recommend termination. It was Muller's opinion that after five years and no viable Parts Plus program, it was proper to terminate the plaintiff. Muller conceded, however, that Forshay-Gabriel had no Parts Plus program and was not terminated. Further, he testified that the only visit by AAAD's attorney was to the plaintiff. PAUL KACHAPIS, the Chairman of the Executive Committee of AAAD, was the final defense witness. He is employed by Alden Warehouse, a AAAD member located in Somerset, Massachusetts. Alden has about forty-eight Parts Plus jobbers. He voted to terminate the plaintiff in order to "raise the standards" of AAAD. In February 1987, Matlock told him that Motor Age wanted Goodyear business. Kachapis told Matlock that none was available. Also, he stated that he personally told Lehr on three or four occasions that no Goodyear stores were available. Of importance to this determination, Kachapis testified that the Goodyear company-owned store data was confidential, not available in the industry and would not be divulged to non-members. The Court wonders why then, was the confidential financial data of the plaintiff's Goodyear stores sent to Lehr in September 1987, prior to his becoming a member? Specifically asked *1503 whether he authorized Matlock to give Lehr the financial information concerning the Goodyear stores, prior to Motor Age's membership, Kachapis answered "No". Although Kachapis later said if he was asked he wouldn't have stopped Matlock from supplying this information, the Court does not credit this response. Both defendants rested. In rebuttal, the plaintiff produced ALFRED SCHUTTINGER, an employee of the plaintiff for thirty years, an outside salesman and the plaintiff's Parts Plus manager. Schuttinger told the Executive Committee that when Matlock took part in the investigation of plaintiff's jobbers in 1989, he called on the wrong accounts. Also, at the Executive Committee meeting on November 16, 1989, Schuttinger produced letters from the plaintiff's five new Parts Plus jobbers and no Executive Committee member asked to see the letters. Schuttinger was of the opinion that it was very difficult to sell the Parts Plus program in the New York City area and despite this handicap, the plaintiff signed up six new Parts Plus jobbers in the first six months of 1989. He conceded, however, that the plaintiff had no Parts Plus jobbers in Nassau, Suffolk or Westchester. All sides rested. Additional Findings: 1. At the outset, the Court finds that the plaintiff has failed to establish any overall plan by AAAD and the larger members to squeeze out smaller members. 2. The plaintiff had no viable Parts Plus program in 1987 and 1988. In fact, the plaintiff's Parts Plus program was "on hold" from the summer of 1987 to the fall of 1988. 3. New York City is a difficult area to obtain Parts Plus jobbers. 4. At least by September 8, 1987, the defendant Motor Age by Paul Lehr, its President, and the defendant AAAD by Joe Matlock, its Executive Vice-President and authorized soliciting representative, entered into an oral agreement, intended to be secret, by the terms of which, in substance, Matlock promised Motor Age that if it became a member, it would obtain the Goodyear company-owned stores then serviced by the plaintiff. As a part of this agreement there was also discussion of the means by which Motor Age would get the plaintiff's Goodyear accounts, including the possible termination of the plaintiff for failing to commit to a viable Parts Plus program. 5. The Court finds the said secret agreement to permit Motor Age to take over plaintiff's Goodyear business was made before Motor Age became a member of AAAD and the prospect of obtaining the plaintiff's Goodyear business was a substantial factor in inducing Motor Age to enter AAAD. 6. On or about September 8, 1987, the same day that Joe Matlock sent Lehr the confidential financial data on the plaintiff's Goodyear business, the defendant Motor Age sent its "profile" to AAAD, preparatory to applying for membership. 7. At or about or shortly after the date of the Motor Age memorandum of September 10, 1987 (Plaintiff's Exhibit 38), the defendant Motor Age applied for admission to AAAD. 8. In a meeting with Marvin Almy in November, 1987, Richard Judelson inquired as to the status of Motor Age and Almy said no discussions were going on. The Court finds that, contrary to such assertions by Almy, discussions must have been going on, since a ballot and "application" was sent out by Almy on November 18, 1987 including a profile from Motor Age dated September 8, 1987. 9. The first Motor Age ballot was mailed on November 18, 1987, and it said that the Dun & Bradstreet report for Motor Age was favorable and the report was on file in the office (important because of the bankruptcy history of the predecessor of Motor Age). In fact, the Dun & Bradstreet report was dated December 11, 1987, three weeks later. Further Almy was aware that Motor Age's predecessor had been in bankruptcy in the late 1970s but did not report that fact to the membership *1504 when he recommended the admission of Motor Age. 10. Evidence of misrepresentation is demonstrated in the applications for membership from Motor Age. The November 18, 1987 "application" (Plaintiff's Exhibit 10) includes the following representation: "Existing national account business would remain with the current members who are serving Goodyear." This was a fraudulent misrepresentation since, prior to that time, Lehr and Matlock entered into a secret agreement for Motor Age to take over the plaintiff's Goodyear accounts. 11. The Motor Age application states: "Goodyear (or other national account) considerations — None." This was a fraudulent misrepresentation since, prior to that time, Lehr had made a secret agreement with Matlock to obtain the plaintiff's Goodyear accounts. 12. The Court finds that there were no "irregularities" in the balloting for Motor Age membership which would require vacating its membership in AAAD. The Court finds that the election of Motor Age to membership in AAAD was proper, valid and substantially complied with the by-law requirements. 13. The Court finds that the plaintiff had adequate notice and opportunity to be heard at the November 16, 1989 Executive Committee meeting at which time a vote to terminate the plaintiff was passed. Therefore, there was no violation of procedural due process with regard to the plaintiff's termination. 14. Despite Forshay-Gabriel not having any Parts Plus program in place, AAAD never terminated or even threatened to terminate its membership. DISCUSSION The plaintiff's complaint sets forth six causes of action against both AAAD and Motor Age, all of which arise out of the termination of the plaintiff's membership. The six causes of action include: (1) breach of fiduciary duty; (2) breach of AAAD by-laws; (3) breach of the Goodyear Agreement; (4) wrongful interference with contractual relations; (5) wrongful interference with prospective business opportunities; and, (6) violation of the "laws of the United States of America and the State of New York". The plaintiff seeks damages, permanent injunctive relief and attorney's fees. Preliminarily, the Court notes that jurisdiction based on diversity is proper, since each of the parties are citizens of different states and the matter in controversy exceeds the sum or value of $50,000 (see 28 U.S.C. § 1332). At the outset, the Court dismisses the plaintiff's claims for monetary relief as a matter of law. First, by reason of the initial TRO and the subsequent interim or temporary injunction, the plaintiff has remained a member of AAAD during the pendency of the trial and to the present time. The plaintiff has continued to service its Goodyear stores as a AAAD member and, as a result, has not suffered any monetary damages. Although there may have been discussion at the close of the trial concerning the postponement of proof of damages, the Court now rules that there could not be any monetary damages arising from the "bad faith" involved in the secret agreement between AAAD and Motor Age. Significantly in this regard, the plaintiff has, at all times, retained its membership in AAAD and continued to serve Goodyear without interruption. When asked by the Court what monetary damages the plaintiff is claiming, the plaintiff's counsel raised only the following issues: 1) the AAAD cancellation of the plaintiff's John Deere contract; 2) inclusion of Motor Age in AAAD; 3) additional discounts made to Motor Age and not the plaintiff; 4) AAAD steering jobber leads to Motor Age rather than the plaintiff; and, 5) attorney fees. The Court finds that none of these alleged theories of damages are viable. In fact, counsel for the plaintiff conceded that there are no damages in the event that the Court finds that the plaintiff would be entitled *1505 only to an injunction directing reinstatement of its membership, as follows: "MR. FRANK: Under your Honor's hypothetical — I would submit that, under those limits, you had circumstances we would not be entitled to damages, other than an injunction for restoration, and of course the plaintiff would ask at that time for an affirmative prohibition against any type of retaliatory action." The Court also rejects the plaintiff's claim for attorney's fees. It is well settled that absent an agreement, statute or court rule, under our present judicial system, under the "American Rule" such attorney's fees are not available (see Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 492, 548 N.E.2d 903, 904, 549 N.Y.S.2d 365, 366 [1989]). The plaintiff has not provided the Court with any such agreement or statute, nor has the Court independently been able to find any authority justifying such an award under these circumstances (cf. Lewis v. S.L. & E., Inc., 629 F.2d 764, 773 [2d Cir.1980] [district court erred in entering award of attorney's fees absent agreement or statute]). Accordingly, assuming that the plaintiff is successful on the merits of any cause of action, the only relief properly available at this time is reinstatement as a member of AAAD pursuant to the terms of a permanent injunction. Specifically, as to injunctive relief, the plaintiff seeks: (1) reinstatement as a member of AAAD; and, (2) termination of Motor Age's membership. The Court now turns to the applicable substantive law underlying the causes of action in the complaint to determine whether the plaintiff has established any of the six causes, and if so, whether an injunction should issue. For the reasons that follow, the Court finds that the plaintiff has succeeded on the merits of the second cause of action, namely, breach of the AAAD by-laws. As to the remaining five causes of action, the Court finds that they are either without merit as a matter of law, or that the plaintiff has failed to sustain its burden of proof. Accordingly, the five causes of action that are dismissed are initially reviewed, followed by a discussion of the second cause of action and the applicable standard for a permanent injunction. 1. Breach of Fiduciary Duty. With respect to the first cause of action, the parties agree, and the Court finds, that Illinois, rather than New York law applies (see First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 621, 103 S. Ct. 2591, 2597, 77 L. Ed. 2d 46 [1983]; Treco, Inc. v. Land of Lincoln Sav. & Loan, 749 F.2d 374, 377 [7th Cir.1984]). In any event, as to the elements of a fiduciary relationship, the laws of the two states apparently do not differ (see Sound Video Unlimited, Inc. v. Video Shack Inc., 700 F. Supp. 127, 133 [S.D.N.Y.1988]). Under the law of Illinois, a fiduciary relationship arises between parties when one reposes trust and confidence in another, and the latter achieves substantial dominance and influence over the actions of the former (see In re Estate of Shedrick, 122 Ill.App.3d 861, 866, 78 Ill. Dec. 462, 466, 462 N.E.2d 581, 585 [1st Dist.1984]). The existence of such a relationship "must be shown by proof so clear and convincing, so strong, unequivocal and unmistaken that it leads to only one conclusion" (Carey Elec. Contracting, Inc. v. First Nat'l Bank, 74 Ill.App.3d 233, 237-38, 30 Ill. Dec. 104, 108, 392 N.E.2d 759, 763 [2d Dist.1979]; see also Maguire v. Holcomb, 169 Ill.App.3d 238, 242, 119 Ill. Dec. 932, 934, 523 N.E.2d 688, 690 [5th Dist.], appeal denied, 122 Ill. 2d 577, 125 Ill. Dec. 220, 530 N.E.2d 248 [1988]). Whether there is a fiduciary relationship is a question of fact, not law (see BA Mortgage & Int'l Realty Corp. v. American Nat'l Bank & Trust Co., 706 F. Supp. 1364, 1372 [N.D.Ill.1989], citing In re Estate of Wernick, 151 Ill.App.3d 234, 244, 104 Ill. Dec. 486, 493, 502 N.E.2d 1146, 1153 [1st Dist.1986], aff'd in part, rev'd in part, 127 Ill. 2d 61, 129 Ill. Dec. 111, 535 N.E.2d 876 [1989]). The Court finds here that the plaintiff failed to establish by clear and convincing *1506 proof that there exists a fiduciary relationship between AAAD and its members. The plaintiff concededly entered AAAD for business purposes. No proof was adduced at trial showing that the plaintiff may have been a "servient" party in the relationship or that AAAD exercised substantial dominion or control over the plaintiff's day-to-day business operations or decisionmaking. Rather, the proof shows that the plaintiff independently made all necessary business decisions and did not "blindly obey" AAAD's orders. A slightly dominant business position by one of the parties over the other does not, by itself, operate to convert an ordinary business relationship or contractual arrangement into a confidential or fiduciary relationship (see Carey Elec. Contracting, Inc. v. First Nat'l Bank, supra, 74 Ill. App.3d at p. 238, 30 Ill.Dec. at pp. 108-09, 392 barnesstephen@example.com. 763-64 ["[a] confidential relationship only goes to a situation where one party, because of some close relationship, relies very heavily on the judgment of the other"]). The Court finds that AAAD did not dominate or influence the actions of the plaintiff. The only actions AAAD had "control" over, if any, are those which the plaintiff obligated itself contractually to do, namely, comply with the membership standards, which included participation and development in the Parts Plus marketing program. Clearly, under such circumstances, there is an interdependence between the parties, rather than one achieving substantial dominance, influence or control over the other. The plaintiff has shown nothing more than the usual contractual business relationship between a trade organization and a member, not a confidential or fiduciary relationship (see Seaboard Seed Co. v. Benis Co., Inc. 632 F. Supp. 1133, 1136-37 [N.D.Ill. 1986]). The plaintiff has failed to prove that there was a fiduciary relationship between AAAD and the plaintiff-member. Instead, the proof submitted at trial amply supports a finding that the plaintiff was acting as an independent party in its business relations with AAAD (see Zeilenga v. Stelle Indus., Inc., 52 Ill.App.3d 753, 757, 10 Ill. Dec. 581, 584, 367 N.E.2d 1347, 1350 [4th Dist.1977] [no fiduciary relationship existed between not-for-profit manufacturing concern and its members, since plaintiff acted as independent rather than servient party]). Accordingly, the first cause of action is dismissed. 2. Breach of the Goodyear Contract. The third cause of action in the plaintiff's complaint alleges that AAAD breached the April 22, 1985 contract, regarding the servicing of Goodyear company-owned stores in the New York-metropolitan area.[1] The parties agree that as to this cause of action, pursuant to the Goodyear Agreement, Tennessee law governs. Under the law of Tennessee, the essential elements of a breach of contract claim are the existence of a contract, breach of that contract, and injuries or damages proximately caused by the breach (see Tedder v. Raskin, 728 S.W.2d 343, 351 [Tenn. App.1987]). Since there is no dispute as to the existence of a valid contract, the issues are whether there has been a breach, and if so, whether the plaintiff has suffered damages. Without reaching the issue of whether there has been a breach, the Court finds that there are no damages, since the plaintiff was permitted to continue to service the Goodyear account. Accordingly, the third cause of action is dismissed. 3. Interference with Contractual Rights/Benefits. The plaintiff's fourth cause of action, to be determined under New York law as the parties have agreed,[2] is based upon a theory of wrongful or tortious interference *1507 with contractual relations. Although not clear from the plaintiff's submissions, the Court agrees with the defendants' interpretation that the claim stems from either the by-laws and/or the Goodyear Agreement. Under New York law, it is well settled that in order to prevail on a claim for tortious interference with contractual relations, the following elements must be proven: (1) the existence of a valid contract between the plaintiff and a third party; (2) knowledge of the contract on the part of the defendant; (3) the defendant's intentional procurement of a breach of the contract by the third party; and, (4) resultant damages caused by the breach (see Universal City Studios, Inc. v. Nintendo Co., Ltd., 797 F.2d 70, 75 [2d Cir.], cert. denied, 479 U.S. 987, 107 S. Ct. 578, 93 L. Ed. 2d 581 [1986]; Pennsylvania Engineering Corp v. Islip Resource Recovery Agency, 710 F. Supp. 456, 464 [E.D.N.Y.1989]; Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 134 N.E.2d 97, 99, 151 N.Y.S.2d 1, 5 [1956]; Giannelli v. St. Vincent's Hosp., App.Div., 553 N.Y.S.2d 677, 681 [1st Dep't 1990]; see generally 2 F. Harper, F. James & O. Gray, The Law of Torts §§ 6.5-6.10 [2d ed. 1986] [overview of elements and application of the tort]). A cause of action for tortious interference with contractual relations does not lie, however, if the contract is one terminable at will (see Kaminski v. United Parcel Serv., 120 A.D.2d 409, 501 N.Y.S.2d 871 [1st Dep't 1986]), unless there is a showing of fraud, misrepresentation, unfair conduct or other wrongful acts (see Koeppel v. Schroder, 122 A.D.2d 780, 505 N.Y.S.2d 666 [2d Dep't 1986]; see generally 72 N.Y. Jur.2d, Interference § 9 [1988 & Supp. 1990] [collecting cases]). As to the defendant AAAD, it is a party to both the by-laws and the Goodyear Agreement. Accordingly, the claim against AAAD is legally insufficient and fails as a matter of law, since it is well settled that such a claim may not be asserted against a party to the contract (see Payne v. Kathryn Beich & Nestle, 697 F. Supp. 612, 615-16 [E.D.N.Y.1988] [citing cases]). Put simply, AAAD cannot be held liable for inducing the breach of a contract to which it is a party (see Murphy v. Capone, 120 A.D.2d 714, 502 N.Y.S.2d 511 [2d Dep't 1986]; see also Koret, Inc. v. Christian Dior, S.A., App.Div., 554 N.Y.S.2d 867, 869 [1st Dep't 1990] ["[i]t is well established that only a stranger to a contract, such as a third party, can be held liable for tortious interference with a contract"]). The claim against Motor Age, however, requires a more detailed analysis with respect to both the Goodyear Agreement and the by-laws. As to the Goodyear Agreement, as noted above, the Court finds that this was a valid contract between the plaintiff and AAAD, and that it is properly characterized as a contract terminable at will upon notice. Although generally such an at-will contract would bar recovery under this theory (see Kaminski v. United Parcel Serv., supra), the Court finds here that as a result of the wrongful acts and bad faith of Motor Age, there was attempt to intentionally interfere or procure the breach of the contract so as to bring even an at-will contract within the ambit of this tort (compare Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 406 N.E.2d 445, 428 N.Y.S.2d 628 [1980] [absent proof of wrongful conduct, no liability exists for the alleged interference with exclusive distributorship contract terminable at will]). In sum, the Court finds that Motor Age was aware of the existence of this contract and that Motor Age intentionally attempted to procure its breach. Notwithstanding the proof of the first three essential elements, the plaintiff's claim must be dismissed for failure to prove the fourth, namely, that the plaintiff has sustained damages as a result of the interference. The absence of damages, of course, is fatal to the success of this cause of action (see Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 709 F. Supp. 438, 453 [S.D.N.Y.1989]). As stated by the New York Court of Appeals in Simon v. Noma Elec. Corp., 293 N.Y. 171, 177, 56 N.E.2d 537, 539 (1944), "to recover on the cause of action for wrongful interference ... plaintiff had to prove damages resulting *1508 from that interference". To the extent that the plaintiff relies on the attorney's fees it incurred as part of the damages, the Court finds no applicable exception to the general rule that attorney's fees are not recoverable as damages (see, e.g., Goldberg v. Mallinckrodt, 792 F.2d 305, 309 [2d Cir. 1986] [exception applies where party's wrongdoing exposes another to litigation with a third party, in which first party is not involved]). Accordingly, the fourth cause of action is dismissed as against both defendants. 4. Interference With Business Opportunities. The fifth cause of action alleges prospective interference with the plaintiff's business opportunities. The parties agree that New York law governs. The Second Circuit summarized this tort under New York law, as follows: "In order to prevail on a claim of tortious interference with prospective economic advantage, a plaintiff is required to show `the defendant's interference with business relations existing between the plaintiff and a third party, either with the sole purpose of harming the plaintiff or by means that are "dishonest, unfair or in any other way improper."' ... If the defendant's interference is intended, at least in part, to advance its own competing interests, the claim will fail unless the means employed include criminal or fraudulent conduct." PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 269 (2d Cir.1987) (citations omitted); see also Lerman v. Medical Assocs. of Woodhull, P.C., App. Div., 554 N.Y.S.2d 272, 273 (2d Dep't 1990). Additionally, the tort "usually involves interference with a `business relationship not amounting to a contract'" (PPX Enters., Inc. v. Audiofidelity Enters., Inc., supra, 818 F.2d at p. 270, quoting 32 N.Y. Jur., Interference § 40 [1963]), and involves either a severance or injury to that relationship (see id.). Presumably, the relationship which is the subject of the claim as against AAAD, is between the plaintiff and Goodyear. This relationship arises solely out of the contract between the plaintiff and AAAD over the servicing of the Goodyear account. The plaintiff has not adduced proof showing that Motor Age's "sole motive was to inflict injury". However, the plaintiff has established that Motor Age employed unfair, and improper means to interfere with plaintiff's advantageous business relationship with Goodyear (see e.g. Nifty Goods Corp. v. Great Atl. & Pac. Tea Co., 614 F.2d 832, 838 [2d Cir.1980]). Nevertheless, similar to the discussion concerning the fourth cause of action sounding in wrongful interference with contract, the plaintiff failed to establish any damages. Based upon the foregoing, the fifth cause of action is dismissed. 5. Violation of "The Laws of The United States and The State of New York". The plaintiff's all-encompassing sixth cause of action includes allegations of unlawful and unfair trade practices in violation of both federal and state law. Although not specified in the plaintiff's papers or during the course of trial until the last day, it appears that the claim is based on the alleged violations of section 1 of the Sherman Act, 15 U.S.C. § 1, and New York's counterpart antitrust law, the Donnelly Act, N.Y.Gen.Bus.Law § 340. Not only has the plaintiff failed to allege the requisite elements of this cause of action under either the Sherman Act or the Donnelly Act, but the evidence adduced by the plaintiff does not establish any price fixing whatsoever. As to the Sherman Act, nothing was offered to prove the existence of a conspiracy among competitors to fix prices with respect to certain goods (see International Distribution Centers, Inc. v. Walsh Trucking Co., 812 F.2d 786, 793 [2d Cir. 1987]). The proof required to sustain such a claim includes, inter alia, evidence of a relevant product and geographic market, reduction of that market by reason of the conspiracy, and an anti-competitive effect outweighing any pro-competitive benefits (see International Distribution Centers, *1509 Inc. v. Walsh Trucking Co., supra, 812 barnesstephen@example.com. 793-95; see also United States Football League v. National Football League, 842 F.2d 1335, 1360 [2d Cir.1988]). No such proof was offered here. To the extent that the plaintiff attempts to state a claim under the Donnelly Act, it is also deficient, since section 340 of the Donnelly Act is patterned after section 1 of the Sherman Act and its application is governed under the same standards as those developed under the Sherman Act (see, e.g., Empire Volkswagen, Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 98 n. 4 [2d Cir.1987], citing Hsing Chow v. Union Central Life Ins. Co., 457 F. Supp. 1303, 1308 [E.D.N.Y.1978]). Accordingly, the plaintiff's failure to establish a Sherman Act violation is equally fatal to its Donnelly Act claim. Therefore, the sixth cause of action is dismissed in its entirety. 6. Breach of AAAD By-laws. Having dismissed five of the six causes of action, the Court now turns to the remaining cause of action; namely, the second cause alleging breach of the membership by-laws by AAAD. As to this cause of action, the parties dispute what state law governs. The plaintiff contends that Illinois law applies; AAAD argues that New York law should control. Thus, a threshold consideration for the Court is to determine this conflicts of law issue. A federal district court adjudicating a diversity action is required to apply the choice of law rules of the forum state within which the court sits (see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 [1941]). However, the Court need only apply choice of law rules where there is a "true conflict" (see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838, 105 S. Ct. 2965, 2988, 86 L. Ed. 2d 628 [1985]; Norlin Corp. v. Rooney, Pace, Inc., 744 F.2d 255, 263-64 [2d Cir.1984]). Otherwise, the controversy is considered a "neutral" case, and the Court is free to apply the law of either one of the states involved. It appears that both New York and Illinois law are substantially the same with respect to the key issue of the standard of judicial review with regard to the termination or expulsion of members from a private association (compare Purpura v. Richmond County Country Club, 114 A.D.2d 460, 461, 494 N.Y.S.2d 371, 372 [2d Dep't 1985] [New York law], with Dannhausen v. Business Publications Audit of Circulation, Inc., 797 F.2d 548, 551 [7th Cir.1986] [Illinois law]). In both states, the courts are generally reluctant to take a role in dispute resolution between a private, voluntary association and its members, with, however, certain limited exceptions such as bad faith, bias or other wrongful conduct. Applying the law of either state, the Court finds that the plaintiff has sustained its difficult burden proving "bad faith" on the part of AAAD and Motor Age so as to establish its cause of action for breach of the by-laws and that judicial intervention is warranted. The by-laws of AAAD are an agreement between the association and its members. On this subject, in Bowman v. Armour & Co., 17 Ill. 2d 43, 46, 160 N.E.2d 753, 755 (1959) the Supreme Court of Illinois held as follows: "The charter or articles of incorporation of an Illinois corporation is a contract of a three-fold nature. It is operative as between the corporation and the State and it creates rights and duties as between the corporation and its shareholders, as well as between the shareholders themselves" (citations omitted). The threshold consideration for the Court's determination is whether the Court may properly intervene at all in this dispute. Traditionally, the courts relied upon contract, property or tort theories to justify judicial intervention in disputes arising between a private association and its members (see generally Developments in the Law — Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983, 998-1005 [1963] [summarizing various theories]). This approach has changed in favor of judicial review of an association's disciplinary proceedings only where a member's *1510 expulsion, technically in strict compliance with the association's by-laws, is influenced by bias, prejudice or lack of good faith (see Illinois Supreme Court Review — Judicial Reinstatement of Members Expelled From Voluntary Associations, 67 Nw.U. L.Rev. 659, 746-54 [1972]; see generally Annotation, Propriety of Suspension or Expulsion From Trade Association, 72 A.L.R. 3d 422 [1976 & Supp.1990] [collecting cases]). Under Illinois law, "[a] court will not review the actions of a voluntary association with respect to its members; when a court does intervene, however, the scope of its intervention is exceedingly narrow" (National Ass'n of Sporting Goods Wholesalers, Inc. v. F.T.L. Mktg. Corp., 779 F.2d 1281, 1285 [7th Cir.1985]). Accordingly, "judicial inquiry into the affairs of private, voluntary associations is limited to the question of whether an association has treated its members in accord with its by-laws and rudimentary due process" (Dannhausen v. Business Publications, supra, 797 F.2d at p. 551 [emphasis supplied]; see also Virgin v. American College of Surgeons, 42 Ill.App.2d 352, 368-71, 192 N.E.2d 414, 422-24 [1st Dist.1963]), such as when the association acts in "bad faith" in expelling a member (see Illinois Supreme Court Review — Judicial Reinstatement, supra, 67 Nw.U.L.Rev. at p. 754). In the leading case of Van Daele v. Vinci, 51 Ill. 2d 389, 282 N.E.2d 728, cert. denied sub nom. Certified Grocers of Ill., Inc. v. Sparkle Feed Center, Inc., 409 U.S. 1007, 93 S. Ct. 438, 34 L. Ed. 2d 300 (1972), the Supreme Court of Illinois granted injunctive relief in the form of reinstatement to a member of a voluntary retail grocers' association, where the association's disciplinary procedure deprived the member of basic, "rudimentary" due process because of the existence of bias and bad faith accompanying the termination process. In Van Daele, the applicable rule was clearly set forth, as follows: "We agree `that a private organization, particularly if tinged with public stature or purpose, may not expel or discipline a member adversely affecting substantial property, contract or other economic rights, except as a result of fair proceedings which may be provided for in organization by-laws, carried forward in an atmosphere of good faith and fair play' (McCune v. Wilson (Fla.1970), 237 So. 2d 169, 173.)" (Id. at p. 394, 282 N.E.2d at p. 732). The Court reasoned in Van Daele that blind adherence to the association's by-laws with respect to the disciplinary procedure does not insulate the actions from judicial review if the action itself was undertaken in bad faith. This decision directly followed the established principle that courts should not intervene in the affairs of private associations, absent a showing of bad faith or bias. New York law is in accord with the Van Daele holding to the extent that mere procedural compliance with the disciplinary process does not insulate the termination process from judicial scrutiny if it was tainted by bad faith or wrongful, corrupt conduct (see, e.g., Purpura v. Richmond County Country Club, supra, 114 A.D.2d at p. 461, 494 N.Y.S.2d at p. 372 [1985] ["judicial review ... is unavailable, unless the reason for expulsion is ... so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly"]). The rule in New York was also stated in Matter of Northrup v. Kirwan, 88 Misc. 2d 255, 263, 387 N.Y.S.2d 221, 227 (Sup.Ct. Monroe County 1976), aff'd, 57 A.D.2d 699, 395 N.Y.S.2d 389 (4th Dep't 1977), as follows: "we are met at the threshold with the prevailing rule that courts are reluctant to interfere with the internal affairs of an association as long as its procedures do not violate standards of fair dealing" (citations omitted). Moreover, as set forth in Bernstein v. The Players, 120 Misc. 2d 998, 1001, 466 N.Y.S.2d 897, 899 (Sup.Ct. N.Y. County 1983), in reviewing the decision of a voluntary association under the standard set forth above, the Court may not consider *1511 whether it would have arrived at the same conclusion. Rather such decision is subject to review, only as follows: "Where a private club or association hears and decides an internal dispute, the courts will not review the determination unless there is a showing that the hearing was in bad faith or basically unfair or that the determination was fraudulent or was utterly unsupported by any evidence. Madden v. Atkins, 4 N.Y.2d 283, 297, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958) (concurring opinion of Judge Desmond); People ex rel. Johnson v. N.Y. Produce Exchange, 149 N.Y. 401, 44 N.E. 84 (1896); see also Fittipaldi v. Legassie, 7 A.D.2d 521, 525, 184 N.Y.S.2d 226 (4th Dept.1959)." As set forth in great detail above, the evidence presented at trial shows that as to the procedural requirements of the disciplinary process itself, AAAD properly terminated the plaintiff's membership. With the assistance of MRI, the plaintiff developed an initial Parts Plus program in October of 1985. As of 1986, it is apparent that the plaintiff's Parts Plus program declined. Significantly, in March of 1987, the plaintiff's efforts and overall performance was considered deficient under the AAAD membership standards, of which the plaintiff was well aware. By the close of 1987, AAAD effectively had no Parts Plus program in place. In May of 1988, representatives of the Standards Committee met with the plaintiff, as well as other members who were performing poorly, to discuss the implementation of an effective program for the upcoming year. The proof shows that little progress followed. By early 1989, the plaintiff had three Parts Plus jobbers, one less than it had in May of 1988. Concededly, however, the New York metropolitan area is a very competitive and difficult marketplace to implement such a program. However, in 1989, a real effort was made by the plaintiff to improve its Parts Plus program. It placed the Parts Plus logo on its building, its trucks and in its phone answering. Significantly, it increased its Parts Plus jobbers by six in mid-1989. The Standards Committee thereafter made a recommendation to the Executive Committee to consider termination of the plaintiff's membership. A hearing was conducted, at which time the plaintiff claimed it complied with the Parts Plus program, and in fact invited AAAD to do an independent evaluation. AAAD accepted the invitation and conducted an investigation of the plaintiff's jobbers, which, according to the report prepared by Joe Matlock, revealed that they were unaware of the plaintiff's participation in the Parts Plus program. The Executive Committee thereafter held a second hearing on November 16, 1989, at which time, allegedly because of the plaintiff's failure to commit to AAAD programs, the Association decided that it was in the best interests of the Association that the plaintiff's membership be terminated. In reviewing the plaintiff's Parts Plus performance in 1989, acting with reasonable prudence, the AAAD Executive Committee could have decided that the plaintiff did demonstrate "a sincere interest to be a bona fide, active and participating member of the Association" and have voted to retain the plaintiff as a member. On the other hand, taking into consideration the plaintiff's poor performance during the years 1987 and 1988, notwithstanding the improvement in 1989, the same reasonably prudent Executive Committee could have decided that the plaintiff still lacked the commitment referred to in the by-laws, and voted to expel the plaintiff. In the absence of bad faith, this Court would not have interfered with either decision. In sum, the Court finds that AAAD substantially complied with the disciplinary or termination process set forth in the Association's by-laws. Absent bad faith or bias, this Court would not intervene in the dispute or review the determination of AAAD to expel the plaintiff. Any technical violation raised by the plaintiff would not, standing alone, warrant judicial intervention. It is the proper policy of the Court to refrain from unnecessarily interfering in the internal affairs of a private, not-forprofit *1512 trade association, which is governed by by-laws. However, where, as here, the disciplinary process is tainted by bad faith, the Court has not only the power but the duty to exercise its equitable powers to intervene at the behest of an expelled member. Even if there is a facially proper basis for the termination of the member, the process is not insulated from judicial scrutiny if it was stained by bad faith. As set forth above in stark detail, bad faith emerged when a "secret" agreement was reached in 1987 between Motor Age and AAAD to take over the plaintiff's Goodyear accounts. Out of this clandestine and corrupt[3] "meeting of the minds" came the bad faith, which permeated the termination process. The secret agreement was initially entered into by Paul Lehr on the part of Motor Age and Joe Matlock on the part of AAAD. Joe Matlock was the Executive Vice President of AAAD in charge of soliciting new members and was in a position to bind AAAD. Matlock was subsequently involved in almost every phase of the process that led to the admission of Motor Age and the plaintiff's termination. The initial letter application by Motor Age was sent by Lehr to Matlock (see Defendant's Exhibit C). A November 12, 1987 memorandum by Matlock to the members, which was on the same sheet as the ballot, stated the following: "... it is highly recommended that you vote favorably for the admission of Motor Age as an AAAD member" (Plaintiff's Exhibit 10). Matlock was a member of the two-person committee that "investigated" plaintiff's Parts Plus program in 1989. Matlock wrote the final June 7, 1989 report which significantly contributed to the vote to expel the plaintiff. The last paragraph of Matlock's report reads as follows: "The conclusion to be drawn here is that other NY warehouses have been effective, but AESC has experienced four years of failure to achieve Parts Plus objectives in their market." The Court notes that Joe Matlock did not testify at this trial. Although Matlock was a key executive of AAAD until he resigned in January 1990, after this litigation commenced, no inference will be taken by the Court by reason of the failure on the part of the plaintiff to prove that Matlock, a retired AAAD employee, was still under the control of AAAD. Nevertheless, it is noted that Matlock never was produced to deny the existence of the secret agreement with Motor Age. After the plaintiff's representatives were heard at the Executive Committee meeting on November 16, 1989 and then left the meeting, present when the termination vote was taken were Joe Matlock and Marvin Almy. Matlock not only attended this final Executive Committee meeting at which the vote to expel the plaintiff was taken, but he alone reported the negative results of the recent investigation of the plaintiff's Parts Plus jobbers. Further, there is evidence in the record that the Legal Department of AAAD was informed of and acquiesced in the secret agreement. Garfinkle testified that: "Paul told me AAAD's legal department recommended at that time it wouldn't be a good idea for them to give Motor Age a program. They were waiting to build a case, I guess, against Automotive Electric for poor performance or whatever the standards of AAAD are." In addition, attorney Johnson, counsel for AAAD personally visited only one of the six firms that were having Parts Plus problems — the plaintiff. There is other evidence in the record of preferential treatment accorded to Motor Age at the expense of the plaintiff. Upon admission, Motor Age alone was given a special payment of $500 per jobber converted to the Parts Plus program, for a total of $42,000 paid by AAAD to Motor Age. Motor Age was permitted to purchase "Trust" labeled products from automotive parts manufacturers Premier and Are directly *1513 without compelling Premier and Arc to pay GSA discount fees to AAAD. Thus, Motor Age was able to purchase the Premier and Are products cheaper and could undersell the plaintiff in their competitive territories. This was a special privilege extended to Motor Age, at the plaintiff's expense. Further, notwithstanding its prior order to purchase John Deere cut-price auto parts, plaintiff's order was unilaterally cancelled by AAAD, while Motor Age was permitted to purchase these auto parts at discount, which, again, enabled Motor Age to undersell the plaintiff. In addition, after Motor Age gained membership in AAAD, the leads in the territorial areas shared by Motor Age and the plaintiff, were directed solely to Motor Age. The bad faith emanating from the secret agreement must have influenced Matlock's actions as he guided the Executive Committee to the ultimate expulsion of the plaintiff. The documentary evidence consisting of the fax lead sheet from Matlock to Lehr dated September 8, 1987, the Lehr memorandum dated September 10, 1987 commenting on the plaintiff's Goodyear business, and the annexed detailed financial data on the plaintiff's Goodyear stores (Plaintiff's Exhibit 38), coupled with the evasive and contradictory testimony of Paul Lehr and the forthright and believable testimony of Ted Garfinkle, furnishes clear and convincing evidence that there was a secret agreement between AAAD and Motor Age, to bring in Motor Age as a member in order for it to take over the plaintiff's Goodyear business. Given the thrust of the representations by Motor Age in its application promising not to attempt to obtain any such business and the representations by AAAD that it would not tolerate such a takeover, this secret agreement and its sequelae constituted "bad faith" on the part of both defendants. In sum, at least as to the November 17, 1989 termination, the process was forever tainted; the bad faith so permeated the circumstances leading up to the termination as to deprive the plaintiff of even rudimentary due process. Accordingly, seldom required judicial intervention is appropriate in this case. The plaintiff's success on the merits, however, is only the first step in determining whether the Court in its discretion should grant the drastic relief of a permanent injunction. The governing standard in determining whether to grant the extraordinary equitable relief of a permanent injunction is as follows: First, the plaintiff must have achieved actual success on the merits (see Smithkline Beckman Corp. v. Proctor & Gamble Co., 591 F. Supp. 1229, 1235 [N.D.N.Y.1984], aff'd without opn., 755 F.2d 914 [2d Cir.1985], citing Sierra Club v. Alexander 484 F. Supp. 455, 471 [N.D.N.Y.1980]). Second, once having demonstrated success, permanent injunctive relief is only available when a remedy at law would be inadequate to afford complete relief (see, e.g., New York State NOW v. Terry, 886 F.2d 1339, 1362 [2d Cir.1989] [must show irreparable harm], cert. denied, ___ U.S. ___, 110 S. Ct. 2206, 109 L. Ed. 2d 532 [1990]). Third, the balance of the equities must tip decidedly in favor of the plaintiff (see New York State NOW v. Terry, 704 F. Supp. 1247, 1262 [S.D.N.Y.] [citing cases], aff'd, but modified on other grounds, 886 F.2d 1339 [2d Cir.1989], cert. denied, ___ U.S. ___, 110 S. Ct. 2206, 109 L. Ed. 2d 532 [1990]). Having satisfied the first prong, namely, success on the merits, the next step is to determine whether there exists an adequate remedy at law or whether the plaintiff might suffer irreparable harm absent the issuance of an injunction. To resolve this element, the Court turns to the seminal decision by Judge Friendly in Semmes Motor, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir.1970) discussing irreparable harm in connection with the attempt by Ford Motor Company to terminate the family run dealership of Semmes Motor, Inc. Although in the context of a preliminary injunction, this Court finds the crisp language of certain passages especially pertinent here, where the factual setting is somewhat similar: "Ford's contention that Semmes failed to show irreparable injury from termination *1514 is wholly unpersuasive. Of course, Semmes' past profits would afford a basis for calculating damages for wrongful termination, and no one doubts Ford's ability to respond. But the right to continue a business in which William Semmes had engaged for twenty years and into which his son had recently entered is not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damages award." See also John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588 F.2d 24, 29 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S. Ct. 1502, 59 L. Ed. 2d 773 (1979). The Court finds that absent membership in AAAD and the opportunity to service the Goodyear stores, which account for almost one-third of the plaintiff's gross sales, it may have to terminate its business. This is not a case of mere lost profits, but rather the basic existence of a seventy year old business may be threatened. The evidence reveals that in order to prepare to service the substantial Goodyear account, the plaintiff added a night shift, placed a two million dollar mortgage on their warehouse and became involved with a factor with a running balance owed of approximately $700,000. Like the plaintiffs in Semmes, the Judelsons have a virtually unmeasurable interest in continuing to operate their business and a damage award would, in this Court's view, be inadequate to afford complete relief. In this regard, the Court notes that the remedy of reinstatement by way of an injunction was also found appropriate in Van Daele. As to the balance of hardships, the scale tips decidedly in favor of the plaintiff. There is no question that the "hardship" imposed upon AAAD in keeping the plaintiff as a member is minimal compared to the ruinous financial hardship that would ensue to the plaintiff absent such relief. Accordingly, the Court grants the plaintiff's application for a permanent injunction, based upon it having established the second cause of action. Insofar as fashioning the ultimate remedy, the Court "has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct" (Spring Mills, Inc. v. Ultracashmere House, Ltd., 724 F.2d 352, 355 [2d Cir. 1983], citing Seibert v. Sperry Rand Corp., 586 F.2d 949, 951 [2d Cir.1978]). In exercising this discretion, the Court frames the terms of the injunction as follows: the defendant AAAD is directed to reinstate the plaintiff as a full member in AAAD, entitled to the same rights and privileges as all other members in good standing. Specifically, AAAD is directed not to interfere with the plaintiff's membership in the association and/or the plaintiff's rights with regard to the Goodyear account, so long as the plaintiff is in full compliance with the provisions of the by-laws and applicable standards set forth by the Standards Committee. In this regard, the performance of the plaintiff for purposes of possible future termination, as with any other member in good standing of AAAD, is to be judged from this day forward. The complaint is otherwise dismissed as to all of the defendants. CONCLUSION For the foregoing reasons, the first, third, fourth, fifth and sixth causes of action are dismissed, as are the plaintiff's claims for damages and attorney's fees. The plaintiff's request to terminate the membership of Motor Age in AAAD is denied. Having succeeded on the merits of the second cause of action, and shown irreparable harm and a balance of the equities in its favor, the plaintiff is granted a permanent injunction as follows: AAAD is directed to reinstate the plaintiff as a full member in good standing as it was prior to the termination on November 17, 1989, entitled to the same rights, privileges and benefits of all other members in good standing who must comply with the bylaws and applicable standards set forth by the Standards Committee. The plaintiff's performance is to be judged from this date forward for purposes of future disciplinary or termination proceedings, if any, and the past activities, actions or performance of *1515 the plaintiff upon which this decision is based, are not to be considered by AAAD. The Clerk of the Court is directed to enter judgment in favor of the plaintiff on the second cause of action. SO ORDERED. NOTES [1] Motor Age is not a party to the April 22, 1985 contract. [2] The plaintiff alleges that New York law applies to the fourth cause of action. The defendants contend that New York and Illinois law are the same, and therefore it does not matter which state's law is applied by the Court. Accordingly, the Court applies the law of the forum state. [3] According to Black's Law Dictionary p. 182 (abridged 5th ed. 1983), the definition of "corrupt" includes: spoiled; tainted; vitiated and morally degenerate.

Case 18-27662-VFP Doc 129 Filed 01/22/21 Entered 01/22/21 12:48:37 Desc Main Document Page 1 of 2 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY Marie-Ann Greenberg MAG-1284 Chapter 13 Standing Trustee 30 TWO BRIDGES ROAD Order Filed on January 22, 2021 SUITE 330 by Clerk FAIRFIELD, NJ 07004-1550 U.S. Bankruptcy Court District of New Jersey 402.946.0130 Case No.: 18-27662 VFP IN RE: CHARISE BREEDEN-BALAAM Hearing Date: 1/21/2021 Judge: VINCENT F. PAPALIA Debtor is Entitled To Discharge ORDER MODIFYING CHAPTER 13 PLAN POST CONFIRMATION The relief set forth on the following pages, numbered 2 through 2 is hereby ORDERED. DATED: January 22, 2021  Case 18-27662-VFP Doc 129 Filed 01/22/21 Entered 01/22/21 12:48:37 Desc Main Debtor(s): CHARISE BREEDEN-BALAAMDocument Page 2 of 2 Case No.: 18-27662 VFP Caption of Order: ORDER MODIFYING CHAPTER 13 PLAN POST CONFIRMATION The Plan of the Debtor having been proposed to creditors, and hearing having been held on the Confirmation of such Plan, and it appearing that the applicable provisions of the Bankruptcy Code have been complied with ; and for good cause shown, it is ORDERED, that the plan of the above named Debtor dated 12/16/2020, or as amended at the confirmation hearing is hereby confirmed. The Standing Trustee shall make payments in accordance with 11 U.S.C. § 1326 with funds received from the Debtor; and it is further ORDERED, that to the extent that the Debtor’s plan contains motions to avoid judicial liens under 11 U .S.C. Section 522(f) and/or to avoid liens and reclassify claims in whole or in part, such motions are hereby granted, except as specified herein: ORDERED, that commencing 10/1/2018, the Debtor shall pay the Standing Trustee the sum of $8,825.00 paid into date over 27 month(s), and then the sum of $320.00 for a period of 9 month(s), which payments shall include commission and expenses of the Standing Trustee in accordance with 28 U.S.C. § 586. The unsecured creditors shall receive on a pro rata basis, the balance remaining from the payments set forth in this paragraph, after payment of all administrative, priority & secured claims (i.e., Pot Plan); and it is further ORDERED, that Debtor must complete Loan Modification on 33-35 Harding Terrace Newark property by 3/11/2021 or as extended through the courts Loss Mitigation Program. If loan modification not completed case will be dismissed upon certification of the Standing Trustee with 14 days notice to debtor (s) and debtor’s attorney; and it is further ORDERED, that mortgage arrears are to be paid outside the plan through Loan Modification; and it is further ORDERED, that upon completion of the plan, affected secured creditors shall take all steps necessary to remove of record any lien or portion of any discharged; and it is further ORDERED, that upon expiration of the Deadline to File a Proof of Claim, the Chapter 13 Standing Trustee may submit an Amended Order Confirming Plan upon notice to the Debtor, Debtor's attorney and any other party filing a Notice of Appearance. 

COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Beales and Senior Judge Clements UNPUBLISHED MAGGIE S. WELCH MEMORANDUM OPINION * v. Record No. 2076-12-3 PER CURIAM MAY 21, 2013 BRISTOL DEPARTMENT OF SOCIAL SERVICES FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Isaac St. C. Freeman, Judge (Michael A. Bishop, on brief), for appellant. Appellant submitting on brief. (Edward G. Stout; Curcio Stout & Pomrenke, on brief), for appellee. Appellee submitting on brief. (Patricia E. Smith; Bradford & Smith, P.C., on brief), Guardian ad litem for the minor children. Guardian ad litem submitting on brief. Maggie S. Welch (mother) appeals an order terminating her parental rights to B.N.G. and B.S.G.1 Mother argues that the trial court erred by finding that the evidence was sufficient to terminate her parental rights. Upon reviewing the record and briefs of the parties, we conclude that the trial court did not err. Accordingly, we affirm the decision of the trial court. * Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The trial court reserved its decision of the termination of mother’s parental rights to C.L.W., Jr. until a future date. C.L.W., Jr. is not subject to this appeal. BACKGROUND2 We view the evidence in the light most favorable to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). In December 2010, mother and her husband, Channing Welch, lived together with five children. 3 Three children, namely B.N.G., B.S.G., and C.L.W., Jr., were mother’s biological children, and two children were her stepchildren. Bristol Department of Social Services (the Department) had been involved with mother and B.N.G. since February 2009. The Department provided intensive home services, day treatment services, and individual counseling for B.N.G. The Department was aware that there was a history of domestic violence between mother and Mr. Welch and had recommended that mother seek counseling, which she refused to do. Approximately one week prior to December 25, 2010, Mr. Welch left the home. On December 25, 2010, the Department received a child protective services referral because mother’s three-year-old stepson was rushed to the hospital with suspicious injuries. The stepson suffered severe head trauma and required immediate surgery. On December 26, 2010, the Department received another child protective services referral. This referral concerned mother’s four-year-old stepdaughter, who had severe bruising 2 Mother did not timely file the transcript of the May 8, 2012 hearing. See Rule 5A:8. After reviewing the record and opening brief, we conclude that a transcript or written statement of facts is not indispensable to a determination of the issue on appeal because the trial court’s letter opinion, the CASA reports, and the foster care plans are sufficient. See Anderson v. Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v. Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986). 3 Channing Welch was the biological father to four out of five of the children. He is not the biological father of mother’s oldest child, B.N.G. Mr. Welch’s parental rights were terminated to B.S.G., and he did not appeal that decision. B.N.G.’s biological father signed an entrustment agreement with the Department. -2- to both eyes and other parts of her body. Due to the children’s injuries and the questions surrounding those injuries, the Department removed all five children from the home. 4 Initially, the Department placed B.N.G. in a foster home with B.S.G. and his stepsister. B.N.G. had violent outbursts and destroyed property. He tried to hurt B.S.G. The Department removed B.N.G. and placed him in another foster home. B.N.G.’s violent behaviors continued and escalated to the point that he ran into traffic without concern for his safety. The Department moved B.N.G. to another foster home, and his behaviors continued. He was violent toward his foster parents and threatened to kill their dog. B.N.G. was then hospitalized and transferred to a residential facility for intensive treatment, where he received intensive therapy, supervision, counseling, and educational support at the facility. He started to improve. Since B.N.G. was improving, the Department attempted to place B.N.G. with a relative, but after one week in the relative’s home, he went back to the residential facility because he again became violent. When B.S.G. entered foster care, she had unusual behaviors, including biting, hitting, and scratching herself. She was violent toward the other children in the foster home. B.S.G.’s eating habits also were of concern because she would horde food and would eat until she made herself sick. She experienced anxiety and was referred for evaluation. She was diagnosed with post-traumatic stress disorder, developmental coordination disorder, and anxiety. Since being in foster care, B.S.G. developed a strong bond with her foster parents. The Department investigated family friends as potential placements, but determined that they were not suitable. 5 While the children were in foster care, mother engaged in illegal drug activity. She was arrested for drug charges, perjury charges, and felony child abuse charges. 4 At the time of the removal, B.N.G. was seven years old and B.S.G. was almost two years old. 5 One person lived out of state and did not comply with the interstate compact home study. Another unrelated person filed for custody but was determined to not be an appropriate placement. -3- The Bristol Juvenile and Domestic Relations District Court terminated mother’s parental rights to B.N.G., B.S.G., and C.L.W., Jr. Mother appealed to the circuit court, which heard evidence and argument on May 8, 2012. At the time of the trial, mother was convicted of federal crimes and was incarcerated in federal prison, awaiting sentencing. 6 On August 17, 2012, the trial court issued a letter opinion, and on October 19, 2012, it entered a final order terminating mother’s parental rights to B.N.G. and B.S.G. 7 This appeal followed. ANALYSIS Mother argues that the evidence was insufficient to terminate her parental rights to B.N.G. and B.S.G. “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citations omitted). When considering termination of parental rights, “the paramount consideration of a trial court is the child’s best interests.” Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). 6 In its letter opinion, the trial court stated that mother faced a possible mandatory minimum sentence of fifteen years. 7 In its order, the trial court reserved its decision regarding the termination of mother’s parental rights to C.L.W., Jr. -4- The trial court terminated mother’s parental rights pursuant to Code § 16.1-283(C)(1) 8 and (C)(2). 9 The trial court focused on each child and his/her needs. The trial court found that B.N.G. was “a special needs child” and was “receiving care which seems appropriate and which is maximizing his abilities.” The trial court found that B.S.G. had “been diagnosed with Post Traumatic Stress Disorder, Developmental Coordination Disorder, anxious moods and is asthmatic” and would possibly need “trauma-based therapy, occupational therapy and physical therapy.” The trial court held that B.S.G. needed “a stable environment with constant and loving care.” The trial court then examined mother and her inability to care for the children. It noted “the general lack of concern by the mother during a time of constant crisis within the family unit.” Furthermore, the trial court was concerned with mother’s criminal activity and pending 8 A parent’s parental rights may be terminated if: [t]he parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationship. Proof that the parent or parents have failed without good cause to communicate on a continuing and planned basis with the child for a period of six months shall constitute prima facie evidence of this condition. Code § 16.1-283(C)(1). 9 A court may terminate parental rights if: The parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child’s foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Code § 16.1-283(C)(2). -5- sentencing in the federal system. The trial court cited Code § 16.1-283(C)(1) and (C)(2) and concluded, “Regardless of Maggie Welch’s present situation with federal authorities, it is the Court’s firm opinion that the best interest of the two older children is the termination of residual maternal parental interest.” [S]ubsection C termination decisions hinge not so much on the magnitude of the problem that created the original danger to the child, but on the demonstrated failure of the parent to make reasonable changes. Considerably more “retrospective in nature,” subsection C requires the court to determine whether the parent has been unwilling or unable to remedy the problems during the period in which he has been offered rehabilitation services. Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005) (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)). The Department removed the children because of the severity of the injuries to mother’s stepchildren and questions surrounding those injuries. There was evidence that mother exposed B.N.G. and B.S.G. to domestic violence in the home. Both children had severe behavioral issues when they entered foster care. While the children were in foster care, the Department provided services to mother in order to help her reach the goal of returning the children home. The Department identified numerous goals for reunification, including maintaining appropriate housing, attending parenting classes, participating in individual counseling, attending anger management classes, obtaining and maintaining a job, visiting with her children, and cooperating with the Department. Mother achieved some of the goals, such as completing a parenting assessment and a psychological assessment. She also visited her children until her criminal charges prevented her from doing so. 10 10 According to mother’s opening brief, a condition of her bond was that she had no contact with her children. -6- However, while the children were in foster care, mother “continued her lifestyle of drugs, dealing drugs, and remaining involved with convicted felons.” As of July 31, 2011, mother was incarcerated in a federal facility for perjury charges. 11 She also faced child abuse charges in Bristol and drug charges in Tennessee. The Department stated that it was “highly concerned that Mrs. Welch showed a wanton disregard for the well being of her children by engaging in illegal activity which has ultimately lead [sic] to her incurring more charges.” As a result of her criminal activity, mother had no contact with her children. Mother’s actions showed that she was unable to remedy the situation that led to the children being placed in foster care. In fact, her situation became worse. While long-term incarceration does not, per se, authorize termination of parental rights . . . it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court’s finding by clear and convincing evidence that the best interests of the children will be served by termination. Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992). Mother is unable to resume her parenting duties. B.N.G. and B.S.G. have special needs, which require stability, consistency, love, and supervision. The children have been in foster care since December 26, 2010. “It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). 11 In her opening brief, mother states that she was held without bail on federal charges as of June 7, 2011. The foster care plan reports that she was incarcerated in a federal facility as of July 31, 2011. -7- B.N.G. and B.S.G. had significant problems prior to entering foster care. Now, they are doing better and receiving the care that they need. The trial court did not err in concluding that termination of mother’s parental rights was in the best interests of B.N.G. and B.S.G. Based on the record, the trial court did not err in terminating mother’s parental rights to B.N.G. and B.S.G. CONCLUSION For the foregoing reasons, the trial court’s ruling is affirmed. Affirmed. -8-

264 Cal. App. 2d 296 (1968) ROBERT D. SWEENEY, SR., Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, FREDRICKSON & WATSON CONSTRUCTION COMPANY et al., Respondents. Civ. No. 32468. California Court of Appeals. Second Dist., Div. One. July 24, 1968. Silver & McWilliams and Edwin Silver for Petitioner. Everett A. Corten, Edward A. Sarkisian and Sheldon M. Ziff for Respondents. WOOD, P. J. This is a petition for review and annulment of an award of the Workmen's Compensation Appeals Board. Petitioner Robert D. Sweeney sustained an injury to his low back, arising out of and occurring in the course of his employment; and about a year later, by reason of his physical condition due to the back injury, his right knee buckled as he was attempting to walk and he fell and injured his knee. The referee found that the injuries resulted in permanent disability of 82 1/2 percent, and made an award based upon such percentage of disability. The employer and the insurance carrier filed a petition for reconsideration, alleging that the disability rating was excessive. The petition was granted, and upon reconsideration the Workmen's Compensation Appeals Board found that the injuries resulted in permanent disability of 64 1/2 percent, and made an award based thereon. Petitioner's position upon this review is that, upon reconsideration, the appeals board received and relied on additional evidence, namely, a physician's report, which under the circumstances herein was not proper evidence. On September 3, 1963, and for approximately two years prior thereto, the petitioner Robert D. Sweeney was employed by respondent Fredrickson & Watson Construction Company as an operator of heavy mechanical equipment used for moving large quantities of dirt in road construction--such equipment as a skiploader, dozer, roller, and puller. On the date mentioned, while he was operating a skiploader its brakes failed and, in order to avoid going over a high cliff, he drove the loader over a curb, and the resulting bounce or jolt of the loader injured his low back. After the accident he continued working about six weeks, but he could not stand the pain, and he quit working and took medical treatments for approximately a year. Then, under the recommendation of a physician who had been treating him, he worked approximately three weeks, but he has not worked since that time. On November 30, 1963 (after he quit working for the first time), he consulted Dr. Spierer regarding the back injury and was given heat treatments, and then was referred to Dr. Wagner who made X-rays. Thereafter, about December 5, 1963, the petitioner was examined by Dr. Feldman, a physician *298 designated by the insurance carrier, and was given physiotherapy treatments at a hospital for several days, was placed in traction, and later was immobilized in a plaster cast for approximately six weeks. The record herein includes seven reports made by Dr. Feldman at various times to and including July 28, 1965. On February 4, 1964, petitioner was examined by Dr. Yamshon, at the request of petitioner. There are two reports herein by this physician. On February 13, 1964, petitioner was examined by Dr. Loopesko, at the request of the insurance carrier. There are 23 reports herein by this physician. About December 8, 1964, while petitioner was arising from a sofa at his home he felt a sudden severe pain in his low back and felt electricity shooting down his right leg, and then fell and injured his right knee. On July 16, 1965, Dr. Feldman performed a lumbar laminectomy on petitioner, from "L-4 to S-1," removing a herniated disc. Immediately after the removal of the disc, Dr. Loopesko performed a spinal fusion on petitioner "between the spinous processes L-5 and S-1." On July 15, 1966, Dr. Loopesko performed a meniscectomy on petitioner's right knee, removing a lateral meniscus. (Petitioner, in describing his knee condition prior to the surgery, said that he could feel something real hot coming from his back to his knee, that his leg was numb, and that when he walked his knee would pop and swell--at the side of the knee there would be a swelling or knot approximately the size of an egg.) No question is involved here as to whether the knee injury was a part of the injury sustained at the time of the skiploader accident. It was stipulated at the hearing before the referee that petitioner "sustained injury arising out of and occurring in the course of his employment to his back and lower extremities." Petitioner testified that about 98 percent of the time he felt some degree of hurting or discomfort in his back and legs; that the degree depended upon the amount of walking, stooping, or sitting that he does; the pain is increased when he walks 5 or 6 blocks or when he stoops or bends for 15 or 20 minutes; weight lifting causes more pain, and he will not try to lift anything that weighs over 15 pounds; he takes about 100 aspirin tablets a week. Petitioner's right arm had been injured about thirty years ago, but no question is presented herein regarding that *299 injury. Dr. LeMonchek, who examined petitioner on June 13, 1966, at the request of the insurance carrier, stated in his report that the petitioner had "X-ray evidence of long standing discogenic disease involving the lower back of a severe degree" and that he believed that 50 percent of the disability should be ascribed for the pre-existing changes. The referee found that there was no basis for apportionment. The award made by the appeals board, upon reconsideration, did not provide for apportionment. No question of apportionment is involved on this review. With regard to the extent of permanent disability, Dr. Loopesko, the insurance carrier's physician who performed the spinal fusion, and who had treated petitioner many times and made 23 written reports herein, stated in his report (January 12, 1967) that he believed that petitioner had reached a permanent and stationary level, and that his case should be terminated, and that there are many types of light work which the petitioner could do. Dr. Loopesko also said in his report (March 16, 1967) that petitioner "cannot do work which requires prolonged and steady walking or standing." Dr. Yamshon said in his report (February 23, 1967) on the subject of permanent disability: "I do not believe that he is capable of doing more than sedentary type of work." As above stated, the employer and insurance carrier petitioned the appeals board for reconsideration upon the ground that the disability rating of 82 1/2 percent was excessive. The appeals board, in granting the petition for reconsideration, stated that a report from the Medical Bureau of the Department of Industrial Accidents would be of assistance in rendering a decision in the matter. Thereupon the board issued a document entitled, "Medical Examination Referral," which was directed to the medical bureau, asking it to "Review and file and give opinion without examination," as to the extent of permanent disability and as to apportionment. Dr. Krepela, a medical examiner for the bureau, made a report to the appeals board wherein he stated: He reviewed the numerous medical reports in the file. He believed that the injury to the right knee joint was directly related to the back injury. He believed that the petitioner's complaints regarding the knee were "minimal to slight in degree for ordinary ambulation but probably becoming moderate in degree after prolonged weight bearing." He believed that the back injury was such as to limit petitioner to light work. If petitioner has recovered completely from a previous back injury, then there *300 is no basis for apportionment of the back disability to pre-existing degenerative changes in the spine. The appeals board thereupn requested the rating bureau to recommend permanent disability rating based on injury to low back and right knee resulting in low back disability limiting the applicant to light work, and based on disability to right knee resulting in minimal to slight pain upon ordinary ambulation, becoming moderate in degree upon prolonged weight bearing. Upon that request, the rating bureau (acting through Mr. Hecht) recommended a permanent disability rating of 64 1/2 percent. The board made an order receiving Dr. Krepela's report and the rating report in evidence. Notice was given that the case would be submitted for decision within seven days unless good cause to the contrary was shown. The petitioner's attorneys objected to the reports, and requested a hearing in order to cross-examine Dr. Krepela and the rating representative, Mr. Hecht. The request of the attorneys was granted and the hearing was set for hearing in Long Beach before Referee Leaver. Dr. Krepela testified in substance, as follows: He had read the medical reports which were in the file and had read the report of Referee Raynes which summarized the testimony at the original hearings. He had not examined the petitioner nor any of the X-rays pertaining to him. That in his medical practice, in examining patients, he had been able to acquire insight into the validity or invalidity of complaints of patients by their responses elicited in the course of the examination. Where there has been a removal of a spinal disc and has been surgery to correct a torn cartilage of the knee, the evaluation of pain would be based upon findings, upon clinical examinations of findings on X-rays, findings on various tests, as well as responses made during the course of examination. Mr. Hecht, the rating specialist who recommended the second rating (64 1/2 percent), testified that the expression "light work" appearing in instructions from the appeals board (requesting a rating based on disability limiting applicant to "liight work"), meant that the employee could be on his feet throughout a work day, assuming that there would be a lunch period and one or two coffee breaks when he can be off his feet, and that there would be little or no lifting or bending, and that there would be no climbing of ladders. The minutes of the hearing before the referee state that *301 following cross-examination, counsel for applicant made a motion that the panel review the matter with a view toward determining whether the Labor Code and the Rules of Practice and Procedure, with respect to medical reports, had been complied with, in view of the fact that Dr. Krepela did not examine applicant nor see any X-rays. At the close of the hearing, the matter was referred to the appeals board for its decision or further disposition. [1a] The appeals board, in rendering its decision after reconsideration, relied upon Dr. Krepela's report. The board said, among other things: "We see no deprivation of due process and no legal impediment to resting our determination of the factual issue of nature and extent of disability attributable to the injury herein on Dr. Krepela's report." It made an award based upon the rating of 64 1/2 percent (which rating, recommended by the rating bureau, was based upon Dr. Krepela's report.) As above indicated, petitioner contends that the appeals board improperly received and relied upon the report of Dr. Krepela. He argues to the effect that the procedure followed by the board, in resting its decision as to disability on the report of a physician who had not examined the employee or the X-rays, was a denial of due process of law. The board argues that under section 5703, subdivision (b), it may appoint a physician from its medical bureau to give an opinion on factors determinative of permanent disability on the basis of other medical reports in the record without making an examination of the injured person. Said section 5703 of the Labor Code provides, in part: "The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: (a) Reports of attending or examining physicians. (b) Reports of special investigators appointed by the appeals board or a referee to investigate and report upon any scientific or medical question." The argument of the board is, in effect, that Dr. Krepela was a special investigator appointed by the board, under subdivision (b) of said section 5703, to investigate and report upon a scientific or medical question. In the board's "Opinion and Decision After Recommendation" it was said, in part: "It was petitioners' [employer's and insurance carrier's] contention that the referee's finding as to extent of permanent disability caused by the injury of September 3, 1963 was *302 erroneous. In the light of Dr. Krepela's report, we are constrained to agree." It appears that the form of Dr. Krepela's report was the same as the usual and standard form of report made by an attending or examining physician, except that Dr. Krepela's report does not state that he examined the employee. His report may be described generally as a recital of the history of the employee's physical condition as Dr. Krepela understood it from the reports of other physicians who had examined the employee,--which recital was followed by Dr. Krepela's opinion as to the kind of work the employee was able to perform. The document whereby the file was referred to the medical bureau did not recite that anyone was appointed as an investigator to investigate a scientific or medical question. That document merely requested the medical bureau to review the file and give an opinion as to the extent of permanent disability. There was nothing in that request which would distinguish it from the usual general request that a physician give his opinion as to an employee's physical ability to work. As above shown, subdivision (a) of said section 5703 provides that reports of examining physicians may be received in evidence. It is also to be noted that section 5703.5 of the Labor Code provides: "The appeals board may at any time after an application is filed and prior to the expiration of its jurisdiction, upon the agreement of a party to pay the cost, direct the injured employee to be examined by a doctor selected by the appeals board or agreed upon by the parties to report upon any medical question pertinent to any matter then at issue before the appeals board." Since the appeals board desired to have the opinion of a member of its medical bureau, it would seem that it would have proceeded under said subdivision (a) of said section 5703, or under section 5703.5, by directing a physician from its medical bureau to examine the employee and the X-rays. Those code provisions are the statutory authority for receiving in evidence the opinion of an attending or examining physician regarding the physical condition of an employee. [2] It is apparent that subdivision (b) of said section 5703, relative to reports of special investigators "upon any scientific or medical question," was intended to serve a purpose other than that provided for in subdivision (a)--relative to reports of attending or examining physicians. If, as the appeals board asserts, the report of the non- attending or non-examining physician is admissible in evidence under subdivision (b) on the theory that the physician was a special investigator appointed to investigate a scientific or medical question, then *303 it would appear that subdivision (a), which provides specifically for receiving reports of attending or examining physicians, would serve no useful purpose--in that reports of all physicians, whether they were examining or non-examining physicians, would be admissible as reports of special investigators of scientific or medical questions. Certainly subdivision (b) was not intended to provide a method whereby a non-examining physician's report, on the general subject of pain and physical disability of a certain person, might be received in evidence on the theory of its being scientific or medical information obtained by research and investigation. A report of an investigator under subdivision (b) is not an optional substitute for a report of an examining physician under subdivision (a). Usually a scientific or medical question is one "where the truth is occult and can be found only by resorting to the sciences," and where the issue is exclusively a matter of scientific or medical knowledge. (See Peter Kiewit Sons v. Industrial Acc. Com., 234 Cal. App. 2d 831, 838 [44 Cal. Rptr. 813].) [3] The question as to whether a person has pain, to the extent that he cannot work, is not one which can be determined only by resorting to sciences. That question may be determined upon the testimony of the person alone. (Employers' etc. Corp. v. Industrial Acc. Com., 42 Cal. App. 2d 669, 671 [109 P.2d 716].) While such an issue is of a medical nature, it is not a scientific or medical question within the usual acceptation or understanding of that expression. In Employers' etc. Corp. v. Industrial Acc. Com., supra, it was said: "[T]he injured person naturally was in the best position to tell whether he was suffering pain." It is reasonable, of course, to conclude that an investigation or inquiry as to the extent of disability suffered by a certain individual would include physical examination and questioning of the injured person. In this connection it is to be noted, from Dr. Krepela's testimony, that also it has been his experience in his medical practice, while examining patients, that he had acquired insight regarding the validity or invalidity of their complaints from their responses during the examination. [1b] In the present case, as above stated, it is apparent that the appeals board did not request the medical bureau to make an investigation, but it merely asked it to review the file and, without examination, give an opinion as to the extent of disability. Dr. Krepela's report was not an investigator's report within the meaning of subdivision (b) of said section 5703. *304 The appeals board, in granting the petition for reconsideration, stated that a report from the medical bureau would be of assistance in rendering a decision. The board, of course, could have directed a physician from the medical bureau to give an opinion as to disability after having examined the employee. Even though it did not request such an examination, it was empowered to call upon a physician from the bureau to assist the board in formulating a new or different statement of disability factors, based upon the medical evidence in the then existing record, to be submitted to the disability rating specialist. The report of Dr. Krepela did not purport to be such a restatement of disability factors, but it was Dr. Krepela's opinion, made without examination of the employee, as to the physical condition of the employee. His opinion was different from the opinions of the two physicians who had examined the employee and had given opinions as to his disability. Dr. Loopesko, a physician furnished by the insurance carrier, said that there were several types of light work which the employee could do but he could not do work which requires prolonged and steady walking and standing. Dr. Yamshon said that the employee could not do more than sedentary type of work. Dr. Krepela said that the employee's back injury was such as to limit the employee to light work. After receiving Dr. Krepela's report, the appeals board requested the rating bureau to recommend a rating based on disability limiting the employee to "light work." The rating specialist, Mr. Hecht, who made the disability rating of 64 1/2 percent, based upon disability factors submitted by the appeals board, said that "light work" meant that the employee could be on his feet throughout a day, assuming there was time for lunch and coffee breaks when he could be off his feet and that there would be little or no lifting or bending, and no climbing. It thus appears (1) that the two examining physicians, whose opinions were in the record before the referee, said, in effect, that the employee could not do work which required prolonged walking or standing; and (2) that the opinion of non-examining physician, Dr. Krepela, wherein he said that the employee was limited to light work, meant (in view of the meaning of "light work" as applied by the rating bureau) that the employee could do work which required him to be on his feet during the day, except for lunch and coffee breaks, provided there was no lifting, bending, or climbing. In Allied Comp. Ins. Co. v. Industrial Acc. Com., 57 Cal. 2d 115 [17 Cal. Rptr. 817, 367 P.2d 409], the referee formulated a *305 statement of disability which was rated 32 1/2 percent. Upon reconsideration the panel informally secured from the rating bureau information as to ratings that would be recommended if various factors of disability were included in the disability statement. The panel then formulated a new disability statement which was rated 77 percent and the insurer was given an opportunity to cross-examine the rating specialist and to present rebuttal evidence. The rating specialist testified that the difference between the first and second ratings was upon the basis that in the second statement there was a limitation to sedentary work. One of the medical reports stated that the applicant probably could do some sedentary work but that anything requiring prolonged standing, lifting, or bending would not be feasible for an indefinite time. The other medical reports indicated that the disability was less severe and that the applicant was not so narrowly limited occupationally. The award was upheld on the basis that there was medical evidence to support it, the insurer had had an opportunity to cross-examine and present rebuttal evidence, and the panel had made an independent examination of the record. In the present case, in contrast to the Allied case, it appears that there was no medical evidence in the record to support the finding that the extent of disability was less severe than that found by the referee, except for the opinion of Dr. Krepela. The appeals board asserts that its procedure herein, in using Dr. Krepela's opinion, was similar to the procedure of receiving the opinion of an expert witness based upon a hypothetical question--even though the witness could not testify to the evidence upon which he bases his opinion. In the present case, there was no hypothetical question, and furthermore it is to be noted that Dr. Krepela stated that he did not consider all the medical evidence, that is, he did not see the X-rays. The report of Dr. Krepela should not have been received in evidence. The award is annulled and set aside, and the matter is remanded to the Workmen's Compensation Appeals Board for further proceedings in accordance with this opinion. Lillie, J., and McCoy, J. pro tem., [fn. *] concurred. NOTES [fn. *] *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

Action for divorce commenced November 28, 1941, by plaintiff-appellant against defendant-respondent, in which the plaintiff husband sought an absolute divorce on the grounds of alleged cruel and inhuman treatment. The defendant wife answered, denying the alleged cruel and inhuman treatment, and counterclaimed for an absolute divorce, in which she alleged that plaintiff had treated her in a cruel and inhuman manner over a period of years preceding the commencement of the action. Also, alleged that plaintiff was an habitual drunkard; that he had gone on drunks periodically for weeks at a time. The parties intermarried August 4, 1913. At the time of the trial plaintiff was fifty-one years of age; defendant was fifty-five. Nine children were born to the parties, five of whom were minors at the time of the trial varying in ages from eleven years to twenty years. The parties are the owners of a sixty-nine-acre farm located in the town of New Berlin, Waukesha county. The real estate is incumbered by two mortgages amounting to $4,200, with accrued interest in the sum of $150, and taxes due in the sum of $100. The court found that the net value of the real estate was $2,850; that the parties were the owners of various farm machinery, livestock, and other personal property, subject to a chattel mortgage in the sum of $265; and that the net value of said personal property was $5,771.25. The court found that for more than five years preceding the commencement of *Page 96 the action plaintiff's treatment of the defendant was inhuman, evidenced by physical violence and otherwise; that plaintiff had been an habitual drunkard and was periodically drunk for various lengths of time, at times for periods of three weeks during which he at times struck and beat the defendant, and on some occasions chased defendant and the children out of the house. As conclusions of law the court found that plaintiff's complaint should be dismissed; that defendant was entitled to judgment dissolving the bond of matrimony; that the defendant be awarded the care and custody of the minor children of the parties "and their maintenance and support are her obligation; that the plaintiff be relieved of further payments for the support and maintenance of the minor children of the parties;" that defendant be required to pay plaintiff the sum of $2,500, as follows: $1,250 within thirty days from date of judgment, the further sum of $625 within one year from said date, and the balance of $625 within two years from said date; that defendant pay the further sum of $37.70 to cover disbursements incurred, and the sum of $192.75, being the amount of an indebtedness incurred by plaintiff for his personal support during pendency of the action; that the plaintiff be divested of all his right, title, and interest in and to the real estate and personal property; that title thereto be vested in defendant, subject to a lien for the $2,500 to be paid to the plaintiff. From a judgment accordingly entered on April 17, 1942, plaintiff appeals. The contest is on the division of the property of the parties. The trial court recognized that its disposition of the case was somewhat unusual. The court said: *Page 97 "But it is made because of circumstances which are seldom found in this sort of litigation. If it is without precedent, I think it is safe to say that precedent for a similar situation is not to be found. Here the husband is allowed less than is ordinarily given him; but I do it because I am satisfied that it is all that can be provided for him and for the further reason that I have the best reason for believing that whatever he receives will be his for only a short time. His conduct in the past predicts that very definitely." It will be noted from the facts found that defendant takes the farm and personal property subject to an indebtedness of $4,945.45. The findings are as to the net value of both real estate and personal property. The situation would be quite different if the court was dealing with clear values, free of incumbrances. It is apparent that the trial court was confronted with the situation of saving a home for the mother and the minor children, having in mind the contribution made by both the mother and the children in accumulating their property. With reference to that phase of the case the court said: "Their income, from which the value has resulted, is from the operation of a hog farm conducted and operated largely by the labor of the defendant and her children and with little help from the plaintiff. His habits have been such that there is no doubt in my mind that if he were given the farm and personal property they soon would be dissipated, leaving nothing for the family. This is especially true since it appears clearly that the children have lost all confidence in their father and would refuse to stay with him to operate the farm. Left alone in the management of the farm the property would disappear very shortly. Under the circumstances the court is compelled to determine that defendant should have the farm and personal property charged however with the requirement that she should pay plaintiff some amount as his portion of the estate of the parties." *Page 98 Sec. 247.24, Stats., so far as material, provides: "In rendering a judgment of nullity of marriage or for divorce, whether from the bond of matrimony or from bed and board, the court may make such further provisions therein as it shall deem just and proper concerning the care, custody, maintenance, and education of the minor children of the parties." In considering the division made, the order as to the minor children must be taken into account. The judgment provides that "the defendant be awarded the care and custody of the minor children of the parties and that their maintenance and support are her obligation; that the plaintiff be relieved of further payments for the support and maintenance of the minor children of the parties." The plaintiff is given the right of visitation with the minor children. In Hiecke v.Hiecke, 163 Wis. 171, 178, 157 N.W. 747, the court said: "The well-established rule is that, in general, a liberal amount to be allowed to the divorced wife is one third in money value of the husband's property. That may be increased to one half or more for special circumstances." Citing cases. The court below took into consideration the nature of the property and the manner of its acquisition. Of the purchase price of the original ten acres of the farm, which was purchased for $3,800, defendant contributed $1,700 which she had received as an inheritance. This purchase was made more than twenty-five years ago and title was taken in the joint names of the parties. From the evidence the trial court concluded that the value of the estate accumulated by the parties was due largely to the labor of the defendant and the children. As said in Voegeli v. Voegeli, 204 Wis. 363, 365, 236 N.W. 123, quoting from Steinbach v. Steinbach, 200 Wis. 208,227 N.W. 879: "The division is not a problem in fractions. In every case all the circumstances must be considered, including the separate estate of the wife." In the instant case the wife has *Page 99 no separate estate, other than her interest in the property in question. The division of property was peculiarly within the discretion of the trial court. Its determination must prevail in the absence of "mistake or some manifest error respecting the detail facts upon which it rests, or disregard of established guides, amounting to a pretty clear want of judicial discretion or judgment." See Voegeli v. Voegeli, supra, p. 365. There was no abuse of judicial discretion or judgment in the instant case. By the Court. — Judgment affirmed.

JS-6 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 13 BEVERLY J. DEKINE, No. CV 18-554-GW-AFMx 14 Plaintiff, ORDER ACCEPTING STIPULATION 15 FOR COMPROMISE AND DISMISSAL v. AND DISMISSING THE CASE WITH 16 PREJUDICE GINA HASPEL, Director, Central 17 Intelligence Agency, Hon. George H. Wu 18 Defendant 19 20 21 22 23 24 25 26 27 28 1 Upon consideration of the Amended Stipulation for Compromise Settlement and 2 Dismissal (the “Stipulation”) by plaintiff Beverly J. DeKine and defendant Gina Haspel, 3 Director of the Central Intelligence Agency, and for good cause shown, 4 IT IS HEREBY ORDERED: 5 1. The Stipulation is approved; 6 2. Each party shall bear its own fees, costs, and expenses; and 7 3. The above-captioned action is dismissed with prejudice. 8 9 10 ________________________________ Dated: February 26, 2020 11 HON. GEORGE H. WU United States District Judge 12 13 14 15 16 17 Presented by: 18 NICOLA T. HANNA 19 United States Attorney DAVID M. HARRIS 20 Assistant United States Attorney Chief, Civil Division 21 JOANNE S. OSINOFF Assistant United States Attorney 22 Chief, General Civil Section 23 /s/ Daniel A. Beck DANIEL A. BECK 24 Assistant United States Attorney 25 Attorneys for Defendant 26 27 28 1 

09-2262-ag Ni v. Holder BIA Hom, IJ A 079 691 533 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 18 th day of February, two thousand ten. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RICHARD C. WESLEY, 9 PETER W. HALL, 10 Circuit Judges. 11 _______________________________________ 12 13 JIN LI NI, 14 Petitioner, 15 16 v. 09-2262-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: H. Raymond Fasano, New York, New 25 York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; David V. Bernal, Assistant 29 Director; Jennifer Paisner Williams, 30 Senior Litigation Counsel, Office of 31 Immigration Litigation, Civil 32 Division, United States Department 33 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, and DECREED that the petition for review 4 is DENIED. 5 Petitioner Jin Li Ni, a native and citizen of China, 6 seeks review of the April 28, 2009 order of the BIA denying 7 his motion to remand and affirming the August 27, 2007 8 decision of Immigration Judge (“IJ”) Sandy K. Hom denying 9 his application for asylum, withholding of removal, and 10 relief under the Convention Against Torture (“CAT”). In re 11 Jin Li Ni, No. A 079 691 533 (B.I.A. Apr. 28, 2009), aff’g 12 No. A 079 691 533 (Immig. Ct. N.Y. City Aug. 27, 2007). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history. 15 Under the circumstances of this case, we consider both 16 the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008). The applicable standards of review are well- 19 established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v. 20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 The BIA did not violate Ni’s due process rights in 22 denying his motion to remand because the factual record was 2 1 adequately developed at his hearing before the IJ. See Shu 2 Wen Sun v. BIA, 510 F.3d 377, 381 n.5 (2d Cir. 2007). As 3 the BIA properly noted, Ni “had an opportunity at the 4 hearing to provide any evidence of his choosing,” and a 5 “[f]ear of harm on account of his alleged ‘other resistance’ 6 to the population control law was a ground that he could 7 have pursued at the hearing.” 8 Furthermore, contrary to Ni’s assertion, the BIA did 9 not run afoul of 8 C.F.R. § 1003.1(d)(3) by engaging in 10 impermissible fact finding. The BIA concluded that the 11 evidence Ni submitted was inadequate to warrant remanding 12 his proceedings to the IJ. This legal determination was 13 well within the scope of the BIA’s authority. 8 C.F.R. 14 § 1003.1(d)(3)(ii); see also Matter of Coelho, 20 I. & N. 15 Dec. 464 (BIA 1992). 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our review, any pending motion 18 for a stay of removal is DISMISSED as moot. Any pending 19 request for oral argument in this petition is DENIED in 20 accordance with Federal Rule of Appellate Procedure 34(a)(2) 21 and Second Circuit Local Rule 34.1. 22 23 FOR THE COURT: 24 Catherine O’Hagan Wolfe, Clerk 25 26 27 28 3

Case 5:20-cv-00141 Document 1 Filed 02/06/20 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION OLIVIA BAYS, § PLAINTIFF § § V. § CIV. ACTION NO. _________________ 5:20-cv-141 § HERTZ GLOBAL HOLDINGS, INC., § DEFENDANT § NOTICE OF REMOVAL Pursuant to 28 U.S.C. §§ 1441, 1446, Defendants, Hertz Global Holdings, Inc., (“HGH”) and The Hertz Corporation (“Hertz” and collectively with HGH, “Defendants”), hereby give notice of the removal of this action from the 407th District Court of Bexar County, Texas, to the United States District Court for the Western District of Texas, San Antonio Division based on diversity jurisdiction under 28 U.S.C. § 1332. In support of removal, Defendants state as follows: 1. Plaintiff, Olivia Bays (“Bays” or “Plaintiff”) filed her Original Petition (Cause No. 2019-CI-25556) in the underlying state court proceeding in the 407th Judicial District of Bexar County, Texas, on December 17, 2019. Exhibit 1 (Pltf’s Orig. Pet.). Plaintiff’s underlying state court action is within the district and division of this Court. 2. On January 8, 2020 HGH received a letter of representation from attorney Robert Contreras forwarding the Plaintiff’s Original Petition and claiming proper service had been made. Exhibit 2 (Ltr. of Rep.). The Bexar County docket sheet for the underlying state court action indicates that as of February 6, 2020, Plaintiff has not requested that any citation be issued for any defendant in the underlying state court case. Exhibit 3 (Bexar Cnty. Dkt. Sheet). 3. Defendants waived service of process and appeared and answered in the underlying state court case on February 3, 2020. Exhibit 4 (Defs’ Orig. Ans.). This Notice of Removal is PD.27945598.1  Case 5:20-cv-00141 Document 1 Filed 02/06/20 Page 2 of 5 timely, because it is filed within thirty (30) days after HGH’s receipt of Plaintiff’s Original Petition. 28 U.S.C. §1446(b). This action is removed from state court to this Court pursuant to 28 U.S.C. § 1441(b) because there is complete diversity of citizenship between the parties and the amount in controversy is in excess of the jurisdictional limit. A. Complete Diversity Exists 4. The Original Petition appears to allege claims of defamation and intentional infliction of emotional distress against Hertz and another unrelated entity, Viking Billing Services (“Viking”).1 See generally Exhibit 1. Generally, Plaintiff claims Hertz and Viking defamed her by allegedly making false representations concerning her alleged damage to a Hertz rental vehicle; accusations of theft of a Hertz rental vehicle; and demands for payment of the alleged vehicle damages. See id. at § I. 5. Plaintiff resides in San Diego. Id. at 1, 9, 11. According to the Fifth Circuit, “the state where someone establishes his domicile serves a dual function as his state of citizenship.” Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citing Stine v. Moore, 213 F.2d 446, 447 (5th Cir. 1954)). Thus, for diversity purposes, it is presumed Plaintiff is a citizen of California. 6. HGH and Hertz are both Delaware corporations, and maintain principal places of business in Florida. See Exhibit 5 (Del. Div. of Corps.- HGH); See Exhibit 6 (Del. Div. of Corps.- Hertz). Accordingly, Defendants are citizens of Delaware and/or Florida for diversity purposes. 7. Plaintiff’s Original Petition makes allegations regarding Viking’s conduct, and at one point identifies it as a defendant. Viking is an assumed name of Viking Client Services, LLC. 1 The Original Petition does not make any factual allegations with respect to the conduct of HGH. HGH reserves its right to assert all legal defenses to the lawsuit, including any and all defenses under Federal Rule of Civil Procedure 12 -2- PD.27945598.1  Case 5:20-cv-00141 Document 1 Filed 02/06/20 Page 3 of 5 See Exhibit 7 (Tex. Sec. of State Sheet- Viking). According to the Texas Secretary of State, Viking is a foreign limited liability company formed under the laws of Minnesota with a principal place of business in Minnesota. Id. Accordingly, for diversity jurisdiction purposes, Viking is presumed to be a citizen of Minnesota. Accordingly, there is complete diversity between the parties. 28 U.S.C. § 1441(b). 8. However, nothing in the record shows, or even suggests, that Viking has been properly served. See Exhibit 3. Indeed, Plaintiff has not requested citation for any putative defendant in the underlying state court action. Id. Therefore, Viking’s consent is not necessary for purposes of this removal. 28 U.S.C. § 1446(b)(2)(A). B. It is Facially Apparent from Plaintiff’s Original Petition that the Amount in Controversy is above $75,0000 9. The removing party has the burden of establishing that the amount in controversy exceeds $75,000. Grant v. Chevron Phillips Chem. Co. L.P, 309 F.3d 864, 868 (5th Cir. 2002). Defendants can satisfy that burden by demonstrating that it is “facially apparent” from the petition that the claim likely exceeds $75,000. See, e.g., Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999); Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir 1995). The variety of damages sought to be recovered by a plaintiff—including attorney’s fees and punitive damages— may be considered by the Court in determining whether an amount in controversy in excess of the jurisdictional threshold is facially apparent. See Allen, 63 F.3d at 1335; see also Cooper v. Sam’s East, Inc., No. A-09-CV-592-LY, 2009 U.S. Dist. LEXIS 141767, *8-9 (W.D. Tex. Oct. 6, 2009). 10. Here, Plaintiff’s Original Petition does not allege a specific amount in controversy. However, Plaintiff specifically seeks recovery of compensatory damages for “financial and emotional injuries” including lost wages, mental anguish, suffering, emotional distress, damage to reputation, and damage to her credit score. See Exhibit 1 at §I ¶14; §III, ¶¶1-4; § IV. Plaintiff -3- PD.27945598.1  Case 5:20-cv-00141 Document 1 Filed 02/06/20 Page 4 of 5 also seeks recovery of interest, punitive damages, court costs, and attorney’s fees. Id. Accordingly, in light of the variety of compensatory damages, punitive damages, fees, and costs sought by Plaintiff, it is facially apparent from the allegations in Original Petition that the amount in controversy exceeds the value of $75,000. C. Additional Information for Removal 11. The underlying state court proceeding is pending in the 407th District Court for Bexar County, Texas, which is located within the jurisdiction of this Court. 12. Pursuant to 28 U.S.C. § 1446(d), contemporaneous with the filing hereof, undersigned counsel has given notice of filing to Plaintiff. Likewise Notice of filing this Notice of Removal is being promptly filed with the 407th District Court of Bexar County, Texas, as required by 28 U.S.C. § 1446(d). 13. Plaintiff has demanded a jury trial in the state court proceeding. 14. Defendants include with this Notice of Removal copies of all state-court pleadings, processes, or orders, as well as a docket sheet from the underlying state court dated February 6, 2020. See Exhibits 1; 2; 3; and 4. 15. Defendants respectfully request that this Court take jurisdiction in this civil action to its conclusion, to the exclusion of any further proceedings in the underlying state court, in accordance with federal law. WHEREFORE PREMISES CONSIDERED, Defendants Hertz Global Holdings, Inc. and The Hertz Corporation remove all further proceedings in the above-referenced matter filed in the 407th District Court of Bexar County, Texas to the United States District Court for the Western District of Texas, San Antonio Division, and respectfully requests that this Court assume full -4- PD.27945598.1  Case 5:20-cv-00141 Document 1 Filed 02/06/20 Page 5 of 5 jurisdiction of this action as provided by law. Defendants also asks for all further relief to which they may show themselves justly entitled at law or in equity. Respectfully submitted, BBY: /s/ Marcus R. Tucker Marcus R. Tucker Fed. ID 12769 State Bar No. 20282360 Andrew R. Nash Fed. ID:1690806 W.D. Tex. App. pending State Bar. No. 24083550 500 Dallas Street, Suite 1300 Houston, Texas 77002 Telephone: 4408794746 Facsimile: 4408794746 Email: pollardmelissa@example.com Email: pollardmelissa@example.com ATTORNEY FOR DEFENDANTS HERTZ GLOBAL HOLDINGS, INC. AND THE HERTZ CORPORATION CERTIFICATE OF SERVICE I hereby certify that on February 6, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing. I also hereby certify that copies to those Parties not registered with the CM/ECF system will be sent via CM/RRR. Robert Contreras 304 S. Jones Blvd #1625 Las Vegas, NV 89107 pollardmelissa@example.com Purported counsel for Plaintiff Olivia Bays 6161 El Cajon Blvd. #805 San Diego, CA 92115 Plaintiff /s/ Andrew R. Nash Of Phelps Dunbar LLP -5- PD.27945598.1 

Exhibit 5.1, Exhibit 8.1 andExhibit 23.1 August 12, 2011 CCRE Commercial Mortgage Securities, L.P. 110 East 59th Street New York, New York 10022 Re:Commercial Mortgage Pass-Through Certificates Ladies and Gentlemen: We have acted as special counsel to CCRE Commercial Mortgage Securities, L.P. (the “Depositor”), in connection with Pre-Effective Amendment No. 4 to the Depositor’s Registration Statement on Form S-3 (the “Registration Statement”) being filed today with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”).The prospectus included in the Registration Statement describes the Commercial Mortgage Pass-Through Certificates (the “Certificates”) to be sold by the Depositor in one or more series (each, a “Series”) of Certificates.Each Series of Certificates will be issued under a separate pooling and servicing agreement (each, a “Pooling and Servicing Agreement”) among the Depositor, a master servicer (a “Master Servicer”), a special servicer (a “Special Servicer”), a trustee (a “Trustee”) and, if applicable, such other parties to be identified in the prospectus supplement for such Series.A form of Pooling and Servicing Agreement will be included as an exhibit to the Registration Statement.Capitalized terms used and not otherwise defined herein have the respective meanings given to such terms in the Registration Statement. In rendering the opinions set forth below, we have examined and relied upon the following as to matters of fact relevant to the opinions expressed herein: (1)the Registration Statement, including the base prospectus and the form of prospectus supplement constituting a part thereof, in the forms filed with the Commission; (2)the Pooling and Servicing Agreement, in the form to be filed with the Commission; and (3)such other documents, materials and authorities as we have deemed necessary in order to enable us to render our opinion set forth below.We express no opinion concerning the laws of any jurisdiction other than the laws of the State of New York and, to the extent expressly referred to in this letter, the federal laws of the United States of America.We express no opinion with respect to any Series of Certificates for which we do not act as counsel to the Depositor. Based upon and subject to the foregoing, we are of the opinion that: 1.When a Pooling and Servicing Agreement for a Series of Certificates has been duly and validly authorized, executed and delivered by the Depositor, a Servicer, a Special Servicer, a Trustee and any other party thereto, and the Certificates of such Series have been duly executed, authenticated, delivered and sold as contemplated in the Registration Statement, such Certificates will be validly issued and outstanding, fully paid and non-assessable, and the holders of such Certificates will be entitled to the benefits provided by such Pooling and Servicing Agreement. 2.The descriptions of federal income tax consequences appearing under the heading “Federal Income Tax Consequences” in the base prospectus and in the form of prospectus supplement accurately describe the material federal income tax consequences to holders of Certificates under existing law and subject to the qualifications and assumptions stated therein.We also hereby confirm and adopt the opinions expressly set forth under such headings, under existing law and subject to the qualifications and assumptions stated therein. We hereby consent to the filing of this letter as an exhibit to the Registration Statement and, with respect to any Series of Certificates for which we act as counsel to the Depositor, to the reference to Cadwalader, Wickersham & Taft LLP and the discussion of our opinions set forth in this letter under the headings “Legal Matters” and “Federal Income Tax Consequences” in the prospectus, which is part of the Registration Statement.This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Act. Very truly yours, /s/ Cadwalader, Wickersham & Taft LLP

Case 1:17-cv-01390-LPS Document 395-7 Filed 10/18/19 Page 1 of 5 PageID #: 11444 EXHIBIT 11 Case 1:17-cv-01390-LPS Document 395-7 Filed 10/18/19 Page 2 of 5 PageID #: 11445 Clark Gerald Sullivan - March 26, 2019 Page 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ___________________________ ) SUNOCO PARTNERS ) MARKETING & TERMINALS ) L.P., ) CIVIL ACTION NO. ) 17-1390-LPS-CJB Plaintiff, ) ) v. ) ) POWDER SPRINGS ) LOGISTICS, LLC and ) MAGELLAN MIDSTREAM ) PARTNERS, L.P., ) ) Defendants. ) ___________________________) VIDEOTAPED ORAL DEPOSITION OF CLARK GERALD SULLIVAN March 26, 2019 9:41 a.m. Deposition of CLARK GERALD SULLIVAN, taken by Defendant Magellan Midstream Partners, L.P., pursuant to Subpoena, at the offices of Golenbock Eiseman Assor Bell & Peskoe LLP, 711 Third Avenue, New York, New York, before Brandon Rainoff, a Federal Certified Realtime Reporter and Notary Public of the State of New York. GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE Case 1:17-cv-01390-LPS Document 395-7 Filed 10/18/19 Page 3 of 5 PageID #: 11446 Clark Gerald Sullivan - March 26, 2019 25 (Pages 94 to 97) Page 94 Page 96 11:50:46 1 (Pause) 11:53:53 1 Q. Anything else new you learned during 11:50:56 2 A. I don't know. I could have -- I could 11:53:56 2 this period of time with respect to blending 11:50:59 3 have -- you know, you do a lot of things out of 11:53:58 3 butane into gasoline in a pipeline? 11:51:02 4 an abundance of caution. 11:54:00 4 (Pause) 11:51:04 5 Q. So when you said you rephrased things, 11:54:17 5 A. Only that Texon's business was 11:51:08 6 do you remember what you rephrased? 11:54:19 6 progressing. 11:51:11 7 A. Well, I mean, we could run a redline 11:54:22 7 Q. Were you aware of any systems owned or 11:51:13 8 and we can see. I mean, the text is different. 11:54:24 8 operated by Magellan during this time period of 11:51:18 9 Q. You don't remember, like, generally 11:54:29 9 prosecuting the '671 patent? 11:51:20 10 what was changed? 11:54:31 10 (Pause) 11:51:27 11 A. Generally what was changed? I don't 11:54:44 11 A. I don't know. 11:51:31 12 think that, in the grand scheme of things, that 11:54:44 12 (Pause) 11:51:35 13 much was joshuawilliams@example.org. 11:54:44 13 MS. FIORELLA: I would now like to 11:51:38 14 Q. And you don't remember generally what 11:55:06 14 mark as Sullivan Exhibit No. 5 U.S. Patent No. 11:51:39 15 you rephrased? 11:55:13 15 9,494,948 bearing the Bates Nos. SUN_MAG_0002021 11:51:43 16 A. No. Like I said, I would need to run 11:55:23 16 ending 2037. 11:51:45 17 a redline to see what was rephrased and how it 11:55:27 17 (Exhibit Sullivan 5, Document Bates 11:51:48 18 was rephrased. 11:55:27 18 stamped SUN_MAG_0002021 through 2037, multipage 11:51:48 19 (Pause) 11:55:27 19 document entitled: United States Patent No.: US 11:52:01 20 Q. Between the time that you were working 11:55:27 20 9,494,948 B2, dated November 15, 2016, marked 11:52:02 21 on the '302 patent and when you were working on 11:55:27 21 for identification) 11:52:06 22 the '671 patent, did you learn of any systems in 11:55:51 22 BY MS. FIORELLA: 11:52:11 23 use in which butane was blended into gasoline in 11:55:52 23 Q. Mr. Sullivan, do you recognize this 11:52:15 24 a pipeline? 11:55:54 24 document? 11:52:17 25 A. I don't remember. 11:56:05 25 A. Yes. Page 95 Page 97 11:52:22 1 Q. Do you currently know of any systems 11:56:05 1 Q. What is it? 11:52:24 2 in use in which butane is blended into gasoline 11:56:07 2 A. It's a patent that I secured for 11:52:29 3 in a pipeline? 11:56:10 3 Sunoco. 11:52:32 4 A. Well, so let me back up, clarify the 11:56:12 4 Q. Is this the '948 patent? 11:52:36 5 previous answer. 11:56:16 5 A. This is -- yeah, we can call it "the 11:52:37 6 I mean, I did know that it was -- 11:56:18 6 '948 patent." 11:52:39 7 butane was being blended into pipelines. It was 11:56:19 7 Q. And it was filed September 16, 2015? 11:52:43 8 in the background of the '302 patent. 11:56:24 8 A. The application for the '948 patent 11:52:51 9 Q. When you say "pipelines," do you mean 11:56:27 9 was filed on September 16, 2015, correct. 11:52:56 10 like the pipeline that comes out of a refinery 11:56:30 10 Q. Were you involved in drafting the 11:53:01 11 and goes up the eastern seaboard, for example? 11:56:32 11 specification for the '948 patent? 11:53:05 12 A. I can only tell you what the '302 11:56:50 12 A. Yes. 11:53:07 13 patent says. I don't have any recollection 11:56:50 13 Q. Were you involved in drafting the 11:53:11 14 beyond that at the time that the '302 patent was 11:56:52 14 claims for the '948 patent? 11:53:15 15 filed -- or application was filed. 11:56:54 15 A. Yes. 11:53:16 16 Q. What about at the time of the '671 11:56:56 16 Q. I'm just going to reference the 11:53:18 17 patent? 11:56:57 17 application number here because we may refer to 11:53:18 18 Did you learn any new information 11:57:00 18 it. It's 14/856,099. 11:53:22 19 about blending butane into gasoline in a 11:57:05 19 Is that right? 11:53:24 20 pipeline? 11:57:11 20 A. The application is 14/856,099, yes. 11:53:29 21 A. Before I filed this, had I learned 11:57:15 21 Q. Is it okay if I refer to that as "the 11:53:30 22 anything new? One thing that I had learned was 11:57:16 22 '099 application"? 11:53:40 23 the sulfur blending and the need to monitor 11:57:19 23 A. Okay. 11:53:45 24 sulphur content in the butane stream. That was 11:57:20 24 Q. And then the '948 patent was -- we 11:53:51 25 something that I had learned about. 11:57:23 25 said was filed September 16, 2015. GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE Case 1:17-cv-01390-LPS Document 395-7 Filed 10/18/19 Page 4 of 5 PageID #: 11447 Clark Gerald Sullivan - March 26, 2019 26 (Pages 98 to 101) Page 98 Page 100 11:57:26 1 Is that right? 11:59:46 1 A. Well, typically you want the patent 11:57:27 2 A. The application for that patent was 11:59:49 2 to -- at least receive an office action sooner 11:57:29 3 filed on that date, correct. 11:59:54 3 than you would otherwise. 11:57:30 4 Q. Then the patent itself issued on 11:59:56 4 Q. Wouldn't you always want a sooner 11:57:33 5 November 15, 2016? 11:59:59 5 resolution? 11:57:35 6 A. Correct. 12:00:00 6 A. Not necessarily. 11:57:44 7 MS. FIORELLA: I would now like to 12:00:02 7 Q. So what are some situations in which 11:57:46 8 mark as Sullivan Exhibit 6 a document bearing 12:00:03 8 you would want a sooner resolution? 11:57:50 9 the Bates SUN_MAG_0001644. 12:00:11 9 A. Well, if you want -- I mean, you may 11:58:04 10 (Exhibit Sullivan 6, Document Bates 12:00:22 10 have a business need. You may have a litigation 11:58:04 11 stamped SUN_MAG_0001644, single-page document 12:00:24 11 need. There may be lots of different reasons 11:58:04 12 entitled: Decision Granting Request for 12:00:27 12 you would want to have that application resolved 11:58:04 13 Prioritized Examination (Track I or After RCE), 12:00:33 13 sooner rather than later. 11:58:04 14 dated September 16, 2015, marked for 12:00:38 14 Q. Did you petition for this request for 11:58:04 15 identification) 12:00:40 15 prioritized examination for the application that 11:58:18 16 BY MS. FIORELLA: 12:00:42 16 led to the '948 patent? 11:58:24 17 Q. Do you recognize this document, Mr. 12:00:47 17 A. I don't see my name on it, but the 11:58:26 18 Sullivan? 12:00:49 18 answer is probably: Yes. 11:58:33 19 A. No. I mean, I know what it is. But 12:00:54 19 Q. Would you say it's your standard 11:58:36 20 to I remember seeing it? No. 12:00:56 20 practice to request the prioritized examination 11:58:39 21 Q. What is it? 12:01:02 21 for the patents that you prosecute? 11:58:40 22 A. It's a decision granting a request for 12:01:15 22 A. I would say "standard" is not an 11:58:43 23 prioritized examination. 12:01:16 23 appropriate term. 11:58:46 24 Q. This references application No. 12:01:18 24 Q. What would you say? 11:58:49 25 14/856,099. 12:01:20 25 A. I would say I don't always do it, but Page 99 Page 101 11:58:50 1 Is that right? 12:01:23 1 I have filed a number of them over the years. 11:58:51 2 A. Correct. 12:01:26 2 Q. Why did you request a prioritized 11:58:52 3 Q. That is the application that led to 12:01:29 3 examination for the application that led to the 11:58:53 4 the '948 patent. 12:01:31 4 '948 patent? 11:58:54 5 Is that right? 12:01:33 5 MR. KEVILLE: And if answering that 11:58:56 6 A. The '948 patent, that's correct. 12:01:34 6 would cause you to reveal attorney-client 11:58:58 7 Q. You said that this was a decision 12:01:37 7 privileged communications, then I instruct you 11:59:00 8 granting a request for prioritized examination? 12:01:39 8 not to answer. 11:59:03 9 A. Yes. 12:01:40 9 THE WITNESS: Yes, that would 11:59:04 10 Q. What is prioritized examination? 12:01:43 10 absolutely require attorney-client 11:59:11 11 A. It's a procedure that the Patent 12:01:45 11 communications. 11:59:13 12 Office offers if you want your examination to 12:01:45 12 MS. FIORELLA: Okay. Let's now 11:59:19 13 receive priority over other patent applications 12:01:53 13 mark -- one more question on that, Mr. Sullivan. 11:59:22 14 at the Patent Office. 12:02:02 14 BY MS. FIORELLA: 11:59:23 15 Q. Is that also called a "Track I"? 12:02:02 15 Q. Would you only request a prioritized 11:59:26 16 A. "Track I" is a term that's commonly 12:02:08 16 examination with authorization from your client? 11:59:29 17 used, yes. 12:02:16 17 A. Yes. 11:59:30 18 Q. What are some reasons that one would 12:02:20 18 MS. FIORELLA: I would now like to 11:59:34 19 want to request this kind of prioritized 12:02:21 19 mark as Sullivan Exhibit 7 U.S. Patent No. 11:59:38 20 examination? 12:02:25 20 9,606,548 bearing the Bates Nos. SUN_MAG_0002544 11:59:39 21 MR. KEVILLE: Caution you not to 12:02:34 21 ending in 2561. 11:59:39 22 reveal any attorney-client privileges you may 12:02:36 22 11:59:42 23 have had. 12:02:36 23 11:59:42 24 She's asking a more general question, 12:02:36 24 11:59:46 25 but -- 12:02:36 25 GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE Case 1:17-cv-01390-LPS Document 395-7 Filed 10/18/19 Page 5 of 5 PageID #: 11448 Clark Gerald Sullivan - March 26, 2019 27 (Pages 102 to 105) Page 102 Page 104 12:02:36 1 (Exhibit Sullivan 7, Document Bates 12:04:36 1 been marked as Sullivan Exhibit 8? 12:02:36 2 stamped SUN_MAG_0002544 through 2561, multipage 12:04:39 2 A. I do. 12:02:36 3 document entitled: United States Patent No.: US 12:04:40 3 Q. What is this? 12:02:36 4 9,606,548 B2, dated March 28, 2017, marked for 12:04:41 4 A. This is another decision granting a 12:02:36 5 identification) 12:04:44 5 request for prioritized examination. 12:02:59 6 BY MS. FIORELLA: 12:04:47 6 Q. And the application number referenced 12:03:01 7 Q. Do you recognize this document, Mr. 12:04:48 7 here is 14/856,766. 12:03:03 8 Sullivan? 12:04:51 8 Is that right? 12:03:03 9 A. Yes. 12:04:52 9 A. That's correct. 12:03:04 10 Q. What is this? 12:04:52 10 Q. And is that the application that led 12:03:06 11 A. This is a patent that I secured for 12:04:54 11 to the '548 patent? 12:03:08 12 Sunoco. 12:04:57 12 A. Yes. 12:03:09 13 Q. Is it fair to call it "the '548 12:05:00 13 Q. Did you request this prioritized 12:03:11 14 patent"? 12:05:03 14 examination for the '548 patent? 12:03:13 15 A. Yes. 12:05:08 15 A. I believe so. 12:03:13 16 Q. Were you involved in prosecuting this 12:05:09 16 Again, my name -- I did not -- this is 12:03:16 17 patent? 12:05:12 17 not the actual request. I'm not sure that I 12:03:16 18 A. Yes. 12:05:15 18 filed the request, but I probably did. 12:03:17 19 Q. Were you involved in drafting the 12:05:22 19 Q. This is the same type of request we 12:03:18 20 specification for the patent? 12:05:26 20 just went through with the '948 patent? 12:03:20 21 A. Yes. 12:05:29 21 A. It's the same request, a Track I 12:03:20 22 Q. Were you involved in drafting the 12:05:31 22 prioritized examination request. 12:03:22 23 claims for the patent? 12:05:44 23 Q. Okay. 12:03:23 24 A. Yes. 12:05:45 24 We are going to be kind of looking at 12:03:25 25 Q. This application -- excuse me. 12:05:46 25 the '948 and '548 patents together, so it might Page 103 Page 105 12:03:28 1 Let me start that again. 12:05:51 1 be helpful to have those both out. And those 12:03:30 2 The application No. listed here on 12:05:54 2 are Sullivan exhibit Nos. 5 and 7, I believe. 12:03:34 3 2544 is 14/856,766. 12:05:58 3 A. Okay. 12:03:38 4 Is that right? 12:06:13 4 Q. Let's start with the '948. 12:03:39 5 A. That's correct. 12:06:15 5 Can you tell me generally what the 12:03:39 6 Q. So that's the application that led to 12:06:24 6 '948 invention is? 12:03:41 7 the '548 patent? 12:06:27 7 MR. KEVILLE: Object to form. 12:03:43 8 A. That's correct. 12:06:45 8 A. Well, the invention is defined by the 12:03:46 9 Q. And that was filed September 17, 2015? 12:06:47 9 claims. 12:03:49 10 A. Correct. 12:06:47 10 Q. Okay. 12:03:49 11 Q. That's the day after, I believe, the 12:06:48 11 A. And so, I mean, it's difficult to say 12:03:55 12 '948 patent was filed. 12:06:52 12 generally what the invention is. I mean, the 12:03:56 13 Is that right? 12:06:57 13 patented invention is covered by the claims. 12:04:03 14 A. Yes. 12:07:00 14 Now, there is a lot more that's disclosed in the 12:04:04 15 MS. FIORELLA: Let's mark as Sullivan 12:07:04 15 specification than what is actually covered by 12:04:11 16 Exhibit 8 a document bearing the Bates No. 12:07:07 16 the claims. 12:04:13 17 SUN_MAG_0002150. 12:07:08 17 Q. Got it. 12:04:18 18 (Exhibit Sullivan 8, Document Bates 12:07:08 18 So let's start with the title. I am 12:04:18 19 stamped SUN_MAG_0002150, single-page document 12:07:10 19 on 2021. 12:04:18 20 entitled: Decision Granting Request for 12:07:14 20 Title is: Versatile Systems for 12:04:18 21 Prioritized Examination (Track I or After RCE), 12:07:16 21 Continuous In-line Blending of Butane and 12:04:18 22 dated September 17, 2015, marked for 12:07:18 22 Petroleum. 12:04:18 23 identification) 12:07:20 23 Do you see that? 12:04:32 24 BY MS. FIORELLA: 12:07:20 24 A. Yes. 12:04:34 25 Q. Mr. Sullivan, do you recognize what's 12:07:20 25 Q. What is in-line blending of butane and GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE 

Citation Nr: 0910606 Decision Date: 03/20/09 Archive Date: 03/26/09 DOCKET NO. 04-03 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before a Decision Review Officer (DRO) at a hearing in November 2004. A transcript of the hearing is of record. The case was remanded by the Board in April 2007 for additional development. FINDING OF FACT The Veteran does not have hepatitis C that is related to his military service. CONCLUSION OF LAW The Veteran does not have hepatitis C that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in June 2002, before the AOJ's initial adjudication of the claim, and again in February 2004 and April 2007. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The April 2007 notification included the criteria for assigning disability ratings and for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records, and secured an examination in furtherance of his claim. VA has no duty to inform or assist that was unmet. The Veteran contends that he contracted hepatitis C while in service. He contends that there were several ways that he could have contracted hepatitis C in service. The Veteran contends that he was inoculated with an air gun, which would at times break the skin and cause bleeding and were given in an assembly line fashion; during inspections people would trim his hair and shave his neck with a razor and that he had a mole that was nicked by the razor a few times; he had a friend that probably had hepatitis C; and he witnessed intravenous (IV) drug use in his barracks. The Veteran's STRs are of record and show no diagnosis of, or treatment for, hepatitis. Private medical records dated in November 2001 show that the Veteran screened positive for hepatitis C on an imunoblot assay. Private medical records from R.N., M.D. dated in January 2002 show that the Veteran was evaluated for hepatitis C. The Veteran reported no prior history of IV drug use or blood transfusion, but he did report multiple sexual partners. VA treatment records dated from November 2002 to January 2005 indicate that the Veteran was followed for hepatitis C. In August 2004 he denied that he ever used IV drugs and said that he never received a blood transfusion. He reported multiple sexual partners in the past. He also reported that he was unsure how he contracted hepatitis C. The Veteran testified before a DRO in November 2004. He testified about the risk factors he had for hepatitis C while in service, which included air gun inoculation and having his neck shaved before inspections. He denied IV drug use, organ transplantation, tattoos, body piercings, blood transfusions, or surgeries. He also testified that he was asymptomatic until he was diagnosed after donating blood in September 2001. The Veteran was afforded a VA examination in May 2008. The Veteran denied hemodialysis, tattoos, blood exposure, intranasal cocaine use, IV drug use, high risk sexual practices, repeated body piercings, organ transplantation, and blood transfusions. His risk factors included sharing toothbrushes during service, sharing shaving razors during service, being incarcerated in 1993, multiple sexual partners, having a mold on the back of his head nicked, a friend in his barracks that had hepatitis, and air gun inoculation. With regards to whether the Veteran's hepatitis C was traceable to his military service, the examiner opined that the issue could not be resolved without resorting to speculation. The examiner noted that her report was based on medical literature review, medical record review, and clinical experience. The examiner then noted that the Veteran's specific risks for hepatitis C between 1975 and 2001 were essentially unknown. The Veteran did admit to being in jail, which was a risk factor, as was having more than one sexual partner. His liver specialist specifically mentioned multiple sexual partners. The sharing of razors and toothbrushes did have a small risk according to the VA examiner; however, she specifically noted that incarceration and multiple sexual partners were much higher risks. Air gun inoculation had not been shown to be a risk. Living in the same quarters with another individual with hepatitis C had not been shown to be a risk factor. The examiner concluded that it would be speculative to opine that the Veteran's sharing of razors in service caused his hepatitis C when there were more compelling risk factors and there were many years for which risk factors were unaccounted. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, there is medical evidence of a current disability, hepatitis C. There is also evidence that the Veteran was exposed to certain events in service such as inoculations and razors. However, there is no evidence that the Veteran was diagnosed with hepatitis while in service. Additionally, there is no medical evidence of a nexus between the Veteran's military service and his currently diagnosed hepatitis C. The only nexus opinion of record, that of the VA examiner, indicated that it would be conjecture to say that the Veteran's hepatitis C was related to his military service. Service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Nevertheless, the examiner indicated that the risks the veteran experienced in service were insignificant compared to other risk factors, such as his incarceration and multiple sex partners, which were described as much higher risks. There are no other medical opinions of record to contradict the VA examiner's opinion. The Board notes that the Veteran's private physician mentioned multiple sexual partners, but did not mention any of the Veteran's contended in-service risk factors. The conclusion by the VA examiner in this case regarding the relative degree of risks between the in-service experiences, such as inoculations and razors, and the post-service experiences, such as incarceration and multiple sex partners, leads the Board to reasonably conclude that the greater weight of the evidence is against the claim. In other words, the examiner's statements lead to the conclusion that it is more likely that hepatitis C was contracted as a result of post-service activity. There is a lack of medical evidence suggesting that the Veteran's currently diagnosed hepatitis C is related to his military service. The Board acknowledges the Veteran's belief that he has hepatitis C related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to the etiology of a disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a) (1) (2008). Consequently, the Veteran's own assertions as to etiology of a disability have no probative value. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim. The Veteran does not have hepatitis C that is traceable to disease or injury incurred in or aggravated during active military service. ORDER Entitlement to service connection for hepatitis C is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

On the night of October 1, 1927, the plaintiff's son was operating the automobile in question upon the streets of *Page 1299 Des Moines. At about midnight, he was traveling northerly on West Ninth Street. This street has an intersection 1. NEGLIGENCE: with School Street, the latter being an east and proximate west street. This intersection is irregular in cause: shape, because of a "jog" in West Ninth Street telephone at the north line of School Street. The location pole in of West Ninth Street as it extends north from parking. School Street lies 28 feet farther west than its location south of School Street, if extended northerly from such School Street. In short, there is a westerly "jog" of 28 feet in West Ninth Street at its intersection with School Street. The driver of the automobile was not familiar with this condition, and was driving on West Ninth Street for the first time. It was a dark night, and was either misty or raining. The wind shield was covered with rain or mist. The "wiper" thereon (not automatic) was not used. For the purpose of better vision, the driver opened the door, and extended his head outside, for the purpose of avoiding the obstruction to vision by the wind shield. He was driving 18 or 20 miles an hour, and without any slowing down, drove across School Street and into and over the curb. His final collision was with a telephone pole that was situated in such parking on the north side of School Street. The claim is that the larger damage to the car was the result of this final collision. The specifications of negligence are: (1) The failure to have lights, or other signals, at the northeast corner of the intersection, sufficient to warn approaching drivers; (2) the permitting of the telephone pole to remain in its location at such northeast corner, and especially the permitting of said pole to remain after it had ceased to be used for its original purpose; (3) the failure to place a light or signal upon such pole, adequate to warn approaching motorists. I. We inquire first whether any of the alleged negligent acts of the city could be deemed the proximate cause of plaintiff's injury. It is not claimed that the location of the telephone pole operated in any manner to deceive or mislead the driver of the automobile, so as to cause him to depart from the pavement. Nor is it claimed that the pole was so located as to present any menace to the safety of motorists traveling upon the pavement. The location of the pole beyond the curb upon School Street *Page 1300 was in no sense the proximate cause of the accident, even though it may have contributed to the enhancement of plaintiff's injury. Nor did the pole, as located, necessarily constitute a nuisance, as contended. The statute expressly authorizes the location of telephone poles upon and along the public streets. Section 5904, Code of 1927. As a matter of common knowledge and observation, it may be said that, in the practical exercise of this authority, such telephone poles are located in the parking, and outside of the line of travel. Such was the location of the telephone pole in question. It may be taken as a matter of common knowledge, and observation also, that only a part of the width of a street is devoted to motor travel or traffic. Such traffic is confined to the paved space between the curbs. Between the curb and the street line is the so-called parking. It is permissible to devote the parking to many other uses than that of public travel. Trees may be planted therein. Trees and poles must necessarily obstruct travel. They are permissible upon the parking because travel isnot permissible thereon. It necessarily follows that the city authorities are not bound to keep the parking free from obstruction to travel. The appellant recognizes the force of this argument, and avoids it by the contention that the pole in question was a useless one, in that the wires had been removed therefrom. Whether such condition was temporary or permanent does not appear. In any event, its character as an obstruction was in no wise altered. Presumptively, it was properly located in the first instance, and nothing is shown to overcome the continuance of such presumption. The accident culminated at the curb. This was the initial collision. If the curb had been higher, the collision would have been complete, and the automobile could have proceeded no farther. Necessarily, such a collision would have been more effective than the later collision with the pole, because the momentum was greater at the curb than it was at the pole. II. In the foregoing division, we have spoken negatively. To speak affirmatively, we may briefly inquire what was the proximate cause of plaintiff's injury. The paving on West Ninth Street and on School Street was 35 feet wide. At 2. NEGLIGENCE: the southeast corner of the intersection was a proximate street light. At the northwest corner thereof, cause: there was another street light. The *Page 1301 continuing automobile carried lights, and traveled at 18 or travel after 20 miles an hour. Under ordinary circumstances, loss of the shift in West Ninth Street would be plainly visibility. visible at any time, either of night or day. On this night, rain and mist and an obscured wind shield interfered with visibility. Presumptively, the automobile lights were such as to render visible any object 75 feet distant. The driver failed to get the benefit of his lights or of the street lights, because of the condition of his wind shield. The wiper of the wind shield was not effective. Because of this condition, the driver could not see what was ahead of him. He drove into the darkness at 18 miles an hour. The driver's explanation of his failure to see was the effect of the rain and mist upon his wind shield. When visibility was lost, the car should have stopped. It availed him nothing to carry automobile lights if his wind shield was obscured. The loss of visibility and the venture of the driver to proceed without it were clearly the proximate cause of this accident. Shannon v. City of Council Bluffs, 194 Iowa 1294;Blain v. Incorporated Town of Montezuma, 150 Iowa 141. The foregoing is decisive of the case, and we need not consider other specifications. The appellant complains of a ruling by the district court rejecting offered evidence, but no exception to such ruling was saved. For the reasons here indicated, the judgment of the district court is — Affirmed. STEVENS, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur.

671 N.W.2d 243 (2003) 12 Neb. Ct. App. 276 CITY OF BEATRICE, Nebraska, a municipal corporation, Appellee, v. Daniel A. MEINTS, Sr., Appellant. No. A-02-704. Court of Appeals of Nebraska. November 18, 2003. *246 D. Kirk Wolgamott, for appellant. Jacqueline M. Tessendorf, Beatrice City Attorney, for appellee. HANNON and INBODY, Judges, and BUCKLEY, District Judge, Retired. BUCKLEY, District Judge, Retired. INTRODUCTION Daniel A. Meints, Sr., appeals from an order of the district court for Gage County finding him in contempt of a previous court order regarding the use of his property and sentencing him to 120 days in jail. For the reasons that follow, we reverse, and remand with direction. BACKGROUND Meints is the owner of real estate located in a residential area of Beatrice, Nebraska. On January 24, 1994, pursuant to an action brought by the City of Beatrice (the City), the district court for Gage County entered a judgment and decree, finding that Meints had collected and placed upon his property outside of any structure thereon "substantial numbers and amounts of old automobiles and parts thereof, mowers, vacuum cleaners, bicycle parts, motorcycles and parts thereof, lumber, building materials, electrical fixtures, wheels, tires, glass containers, discarded furniture, batteries, litter, rubbish, trash and discarded materials of divers[e] kinds." The trial court found that the collection and maintenance of such items was a violation of the zoning ordinances and a public nuisance. The trial court ordered Meints to abate the ordinance violation and nuisance by removing the items from the property within 90 days from the date of the judgment. An exception was *247 made for building materials, which were to be neatly stacked. The trial court's order also enjoined Meints from using the property in the future for the collection and maintenance of such items as those ordered removed. On December 28, 2001, the City filed an application for contempt citation alleging that Meints had willfully violated and disobeyed the court's January 24, 1994, order by using his property for the collection and maintenance of such items as those set forth in the order. The City requested that the court find Meints in willful contempt of the court's order and that he be compelled to remove the items on his property that violate the 1994 order. Trial was held on April 12, 2002, and evidence was adduced. Following trial, the court found that Meints was in contempt as alleged in the application for contempt citation filed by the City. The court set the matter for disposition on May 10. On May 10, 2002, the trial court sentenced Meints to 120 days in jail, but gave him the opportunity to purge himself of the finding of contempt and the sentence by placing the property in compliance as previously ordered. The trial court set a further hearing for May 24, at which time the court would determine if Meints had purged himself of the finding of contempt. Following the hearing on May 24, 2002, the trial court found that Meints had failed to purge himself of contempt and ordered that the sentence of 120 days in jail be enforced. The execution of the sentence was stayed pending Meints' appeal. ASSIGNMENTS OF ERROR Meints assigns that the trial court erred in (1) finding that he willfully disobeyed the court's order, (2) finding that there was sufficient evidence to support a finding that he was in contempt and subsequently failed to purge himself of the contempt, and (3) failing to find that he had been prejudiced in this matter because of a lawsuit he had filed against the City. STANDARD OF REVIEW An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. A trial court's factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000); Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997). ANALYSIS We first address the City's contention that Meints' appeal should be dismissed for lack of jurisdiction. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003); In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002). The City contends that the present contempt action is civil in nature and that therefore, the trial court's order from which Meints appeals is not a final, appealable order. A civil contempt is instituted to preserve and enforce the rights of private parties to a suit, to compel obedience to orders and decrees made to enforce such rights, and to administer the remedies to *248 which the court has found the parties to be entitled. McDermott v. McDermott, 8 Neb.App. 860, 602 N.W.2d 676 (1999). See Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980). A criminal contempt is prosecuted to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. State ex rel. Kandt v. North Platte Baptist Church, 225 Neb. 657, 407 N.W.2d 747 (1987); McDermott v. McDermott, supra. In determining whether contempt orders are appealable, the Nebraska appellate courts have distinguished between civil, or coercive, sanctions and punitive sanctions. See, e.g., Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); Michael B. v. Donna M., 11 Neb.App. 346, 652 N.W.2d 618 (2002). When a coercive sanction is imposed, the contemnor holds the keys to his or her jail cell because the sentence is conditioned upon the contemnor's continued noncompliance with the court's order. Id. An order imposing a coercive sanction in a civil contempt proceeding is always subject to modification by the contemnor's conduct and thus is not a final, appealable order. Michael B. v. Donna M., supra. See Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993). On the other hand, a punitive contempt sanction is like a criminal sentence, because it is not subject to mitigation should the contemnor comply with the court order. A punitive contempt sanction thus is a final, appealable order. Michael B. v. Donna M., supra. See Maddux v. Maddux, supra. In the instant case, the trial court sentenced Meints to 120 days in jail, but gave him the opportunity to purge the finding of contempt and the sentence by giving Meints 2 weeks to get his property into compliance with the January 24, 1994, order. At that point, Meints "held the keys to his jail cell" and the sanction was coercive. However, on May 24, 2002, the trial court determined that Meints had not purged himself of the contempt and it ordered that the jail sentence be enforced. As of that date, the sanction ceased to be coercive because the jail sentence was no longer subject to mitigation. See Maddux v. Maddux, supra. "If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience." In re Contempt of Sileven, 219 Neb. 34, 36-37, 361 N.W.2d 189, 191 (1985), quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911). Once the trial court ordered the sentence to be enforced, Meints no longer had an opportunity to purge himself of the contempt, and the sanction became absolute and without conditions. The imprisonment was for a definite period of time, and the trial court was no longer trying to exact compliance with the January 24, 1994, order, but, rather, it was punishing Meints for his completed act of disobedience. Thus, we conclude that the contempt sanction, as of May 24, 2002, was a punitive sanction. Therefore, the order from which Meints is appealing constitutes a final, appealable order. This disposes of the City's jurisdictional challenge. However, the fact that the sanction was punitive does not establish the nature of the contempt proceeding for the purposes of review. The character, nature, or purpose of a contempt proceeding is determined by the procedure used in a trial to determine whether there is contempt and the sanction imposed. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled on other *249 grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999); McDermott v. McDermott, 8 Neb.App. 860, 602 N.W.2d 676 (1999). In criminal contempt proceedings where the act charged was not committed in the presence of the court, the prosecution should be in the name of the State and by information. Id. In criminal contempt proceedings, an alleged contemnor is instructed that he or she may claim his or her Fifth Amendment privilege against self-incrimination. McDermott v. McDermott, supra. See State ex rel. Reitz v. Ringer, supra. In the present case, the contempt proceedings were conducted as a civil contempt as the City contends. The contempt proceeding was brought by the City in its capacity as a party litigant to the original civil action, not by information in the name of the State. Furthermore, the record does not show that Meints was instructed that he could claim his Fifth Amendment privilege against self-incrimination. Thus, the trial court imposed a punitive sanction in a civil contempt proceeding. A sentence in a prosecution for contempt, except that committed in open court, which is wholly punitive, may properly be imposed only in proceedings instituted and tried as for criminal contempt. In re Contempt of Sileven, supra. A criminal sanction is invalid if imposed in a proceeding that is instituted and tried as a civil contempt. Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); In re Contempt of Sileven, supra. See, State ex rel. Reitz v. Ringer, supra; McDermott v. McDermott, supra. Thus, we conclude that the trial court committed plain error when it improperly imposed a punitive sanction, rather than a coercive sanction, in a civil contempt proceeding. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Holt Cty. Sch. Dist. No. 0025 v. Dixon, 8 Neb.App. 390, 594 N.W.2d 659 (1999); Arcadian Fertilizer v. Sarpy Cty. Bd. of Equal., 7 Neb.App. 499, 583 N.W.2d 353 (1998). The usual procedure on appeal in cases where the trial court has imposed an invalid punitive sanction in a civil contempt proceeding is to reverse the citation for contempt and remand the cause to the trial court in order that a proper civil penalty can be imposed or in order that a criminal proceeding can be conducted. State ex rel. Reitz v. Ringer, supra; McDermott v. McDermott, supra. Accordingly, we hereby reverse the judgment of the trial court and remand the contempt proceeding with direction to the trial court to impose a coercive sanction. Since we are remanding the cause for imposition of a proper coercive sanction, the contempt proceeding here resumes its character as a civil proceeding. See Maddux v. Maddux, supra. As previously stated, a coercive sanction is not a final order from which a contemnor can appeal. As a result, we need not address Meints' assignments of error. CONCLUSION We conclude that the trial court committed plain error when it improperly imposed a punitive sanction in a civil contempt proceeding. Therefore, we reverse the judgment of the trial court and remand the contempt proceeding with direction to the trial court to impose a coercive sanction. REVERSED AND REMANDED WITH DIRECTION.

31 Cal. 2d 368 (1948) BERNARD R. GLATTS et al., Appellants, v. FRED C. HENSON et al., Respondents. L. A. No. 19874. Supreme Court of California. In Bank. Jan. 27, 1948. Roland Maxwell and Paul H. Marston for Appellants. Alfred S. Chapman, in pro. per., Vernon M. Brydolf and Bissell & Atwill for Respondents. CARTER, J. Prior to 1931, the defendants Chapman estate and Alfred Chapman, trustee, were the owners of a tract of land. Thereafter it became involved in the seven transactions hereinafter mentioned. First transaction. In that year the Chapmans conveyed to the city of Pasadena Parcel 1 of that tract. They also conveyed to the city a 25-foot easement for road and pipeline purposes over Parcels 4 and 5, the center line of which was the boundary line between those parcels. Second transaction. In 1937, the city deeded Parcel 1 to defendants, the Hensons, who now own it. Third transaction. In 1937, the Chapmans conveyed Parcel 2 to the Hensons and also an easement embracing the same area described in the first transaction. Fourth transaction. In 1938, the Chapmans conveyed to Rick and Knapp Parcel 3 and an easement embracing the same area described in the first transaction. In 1941, Riek and Knapp conveyed Parcel 3 and the easement to defendants, the Hensons. Fifth transaction. In 1938, the Chapmans conveyed Parcel 4 to plaintiffs Glatts "Reserving unto the grantor, its successors or assigns, an easement for road purposes, together with the right to dedicate the same to the public use over the easterly 30 feet of the herein described parcel of land." Inasmuch as 12 1/2 feet of the easement described in the first transaction covers the east 12 1/2 feet of Parcel 4, the easement reserved covered the same area to that extent. Sixth transaction. In 1932, the Chapmans conveyed *370 to Braley Parcel 5 and an easement covering the same 30 feet mentioned in the fifth transaction. In 1944, Braley conveyed Parcel 5 and quitclaimed the 30- foot easement to defendants, the Simpsons. Seventh transaction. In 1945, the city quitclaimed to plaintiffs Glatts any interest it may have in an easement over their property. Plaintiffs brought this action against the Chapman estate, the Simpsons and the Hensons to quiet title to the east 30 feet of their property, that is, to have a declaration that none of the above mentioned easements were effective. The trial court declared plaintiffs to be the owner of the land in fee subject however to a 30-foot easement of the Chapmans and Simpsons and a 12 1/2-foot easement of Hensons. Originally plaintiffs, on this appeal, attacked the whole judgment. They now concede a 12 1/2-foot easement to the Hensons and Simpsons and a 30-foot easement to the Chapmans together with a right in them to dedicate it to the public. The only remaining controversy is, therefore, with reference to the rights of the Simpsons in the westerly 12 1/2 feet of the 30-foot easement. Plaintiffs assert the easement as to that portion, as to the Simpsons, was extinguished by adverse possession thereof by plaintiffs. The evidence is without dispute that plaintiffs constructed buildings on the 17 1/2-foot strip and have since maintained them for more than five years preceding the commencement of this action. The Simpsons in their answer to plaintiffs' petition for a hearing in this court state: "In this case appellants [plaintiffs] have placed certain buildings on a part of the thirty-foot strip." The evidence is also uncontradicted that plaintiffs have paid the taxes on their Parcel 4. No permission to erect and maintain the buildings was obtained from the easement claimants. The 30-foot easement has not been used except for the east 12 1/2 feet thereof. Thus we have a situation where the owner of a servient tenement erects buildings and maintains them for a period of over five years upon a part of an easement for road purposes over his property and owned by the dominant tenement. He has paid taxes on his fee simple interest but there is no evidence whether taxes were levied, or if levied, were paid, on the easement by the owner of the servient tenement--adverse claimant here. [1] It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement *371 owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession. (See Silveira v. Smith, 198 Cal. 510 [246 P. 58]; Currier v. Howes, 103 Cal. 431, 437 [37 P. 521]; Smith v. Worn, 93 Cal. 206, 212 [28 P. 944]; City and County of San Francisco v. Main, 23 Cal. App. 86 [137 P. 281]; 98 A.L.R. 1291; 66 A.L.R. 1099; 33 A.L.R. 807; 9 A.L.R. 423; 1 A.L.R. 884; Rest. Prop., 506; Tiffany Real Property, [3d ed.], 827.) We are speaking of adverse possession by the servient tenement owner, not abandonment by the owner of the easement. [2] It is true that an easement created by grant as distinguished from one established by user may not be lost by mere nonuser (9 Cal.Jur. 960-962), but nonuser may be considered as a factor in accomplishing the extinguishment by adverse possession. [3] The extinguishment by adverse possession need not be of the entire easement. It may be extinguished in part--to the extent that is embraced in the scope of the adverse possession (See Scampini v. Rizzi, 106 Vt. 281 [172 A. 619]; Brooks v. West Boston Gas Co., 260 Mass. 407 [157 N.E. 362]; 33 Mich.L.Rev. 1270.) [4] The nonpermissive erection and maintenance for the statutory period of permanent structures, such as buildings, which obstruct and prevent the use of the easement will operate to extinguish the easement. (Brooks v. West Boston Gas Co., supra; Goodwin v. Bragaw, 87 Conn. 31 [86 A. 668]; New England Home for Deaf Mutes v. Leader F. S. Corp., 276 Mass. 153 [177 N.E. 97].) It is argued, however, that there is no showing that the taxes have been paid on the easement. As we have seen, plaintiffs paid taxes on their fee title to the land subject to the easement. The extinguishment of an easement by prescription may be compared with the acquisition of an easement by that method. [5] It is true that a person cannot own an easement in his own property--the interests become merged, but when he is so using his land that the elements of adverse possession prevail as to the easement owned by another, he is in a sense acquiring that easement--having it merge with his fee interest--eliminating that interest of another in his land. Hence the property interest being acquired is an easement. He already owns the fee. It is to the easement we must look, therefore, to determine the question of whether the requirement that taxes be paid has been met. [6] In the case of the *372 acquisition of an easement by prescription the burden of proving that taxes were levied or assessed against the easement (as distinguished from the payment thereof, if levied) rests upon the record owner rather than the adverse claimant. (Biggs Ditch Co. v. Jongste, 24 Cal. 2d 298 [149 P.2d 1]; Spargur v. Hcard, 90 Cal. 221 [27 P. 198]; Coonradt v. Hill, 79 Cal. 587 [21 P. 1099]; Oneto v. Restano, 78 Cal. 374 [20 P. 743]; Chapman v. Sky L'Onda etc. Water Co., 69 Cal. App. 2d 667 [159 P.2d 988]; McMorris v. Pagano, 63 Cal. App. 2d 446 [146 P.2d 944]; Redemeyer v. Carroll, 21 Cal. App. 2d 217 [68 P.2d 739]; Los Angeles County v. Pacific Elec. R. Co., 93 Cal. App. 512 [269 P. 767]; Smith v. Smith, 21 Cal. App. 378 [131 P. 890]; Koshiand v. Cherry, 13 Cal. App. 440 [110 P. 143].) It has been held in regard to the acquisition of the fee, as distinguished from an easement, by adverse possession that the burden is on the adverse claimant to show that no taxes were assessed or that if assessed he paid them. (City of Burlingame v. Norberg, 210 Cal. 105 [290 P. 587]; Allen v. Allen, 159 Cal. 197 [113 P. 160]; Baldwin v. Temple, 101 Cal. 396 [35 P. 1008]; Reynolds v. Willard, 80 Cal. 605 [22 P. 262]; In re Dixon, 120 Cal. App. 635 [8 P.2d 881]; Redemeyer v. Cunningham, 61 Cal. App. 423 [215 P. 83].) However, the rule as to easements is settled. [7] In the instant case there was a presumption that no taxes were levied upon the easement and hence taxes need not be paid. There was no proof that taxes were assessed. [8] The Simpsons claim that the issue of adverse possession was not raised. Plaintiffs' complaint is in the usual conventional quiet title form alleging ownership generally. Under such a pleading title by adverse possession may be established (1 Cal.Jur. 620). No objection was made to the evidence given on the subject. At the trial plaintiffs' counsel stated that reliance was placed upon "the use of the property and the record title." For the foregoing reasons that portion of the judgment which determines that the defendants Simpsons have an easement in the west 17 1/2 feet of the east 30 feet of plaintiff's Parcel 4 is reversed, and the trial court is directed to amend its findings and judgment quieting plaintiffs' title, as against defendants Simpsons, to said portion of said easement. In all other respects the judgment is affirmed. Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Spence, J., and Schauer, J., concurred.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number:811-02021 DWS Securities Trust (Exact name of registrant as specified in charter) 345 Park Avenue New York, NY 10154 (Address of principal executive offices)(Zip code) Paul Schubert 60 Wall Street New York, NY 10005 (Name and address of agent for service) Registrant's telephone number, including area code:4102469028 Date of fiscal year end:6/30 Date of reporting period:9/30/2013 ITEM 1. SCHEDULE OF INVESTMENTS Consolidated Investment Portfolio as ofSeptember 30, 2013(Unaudited) DWS Enhanced Commodity Strategy Fund Principal Amount ($) Value ($) Corporate Bonds 31.2% Consumer Discretionary 4.4% Amazon.com, Inc., 1.2%, 11/29/2017 Carnival Corp., 1.875%, 12/15/2017 Daimler Finance North America LLC, 144A, 0.858% *, 3/28/2014 DIRECTV Holdings LLC, 2.4%, 3/15/2017 Ford Motor Credit Co., LLC, 3.984%, 6/15/2016 Hyundai Capital America, 144A, 3.75%, 4/6/2016 Kia Motors Corp., 144A, 3.625%, 6/14/2016 NBCUniversal Media LLC, 3.65%, 4/30/2015 News America, Inc., 7.6%, 10/11/2015 Nissan Motor Acceptance Corp., 144A, 1.8%, 3/15/2018 RCI Banque SA, 144A, 2.139% *, 4/11/2014 Time Warner Cable, Inc., 5.85%, 5/1/2017 Consumer Staples 0.5% ConAgra Foods, Inc., 2.1%, 3/15/2018 Safeway, Inc., 3.4%, 12/1/2016 Wesfarmers Ltd., 144A, 1.874%, 3/20/2018 Energy 2.5% Ecopetrol SA, 4.25%, 9/18/2018 KazMunayGas National Co. JSC, 144A, 11.75%, 1/23/2015 Kinder Morgan Energy Partners LP, 3.5%, 3/1/2016 Petroleos Mexicanos, 3.5%, 7/18/2018 Rosneft Finance SA, Series 6, 144A, 7.875%, 3/13/2018 Transocean, Inc.: 2.5%, 10/15/2017 4.95%, 11/15/2015 Financials 16.2% Akbank TAS, 144A, 3.875%, 10/24/2017 American Express Credit Corp., Series D, 5.125%, 8/25/2014 Asian Development Bank, 1.125%, 3/15/2017 Australia & New Zealand Banking Group Ltd., 144A, 1.0%, 10/6/2015 Banco Bradesco SA, 144A, 2.363% *, 5/16/2014 Banco del Estado de Chile, 2.03%, 4/2/2015 Banco do Brasil SA, 3.875%, 1/23/2017 Banco Santander Brasil SA, 144A, 4.625%, 2/13/2017 Bangkok Bank PCL, 144A, 3.3%, 10/3/2018 (a) Bank of England Euro Note, 144A, 0.5%, 3/6/2015 Bank of India, 144A, 3.625%, 9/21/2018 Bank of Nova Scotia, 144A, 1.95%, 1/30/2017 Barclays Bank PLC, 144A, 2.5%, 9/21/2015 BB&T Corp., 0.964% *, 4/28/2014 BBVA U.S. Senior SAU, 4.664%, 10/9/2015 BNP Paribas SA, 2.375%, 9/14/2017 Capital One Financial Corp., 1.418% *, 7/15/2014 Citigroup, Inc., 2.65%, 3/2/2015 Commonwealth Bank of Australia, 144A, 1.498% *, 3/31/2017 Cooperatieve Centrale Raiffeisen-Boerenleenbank BA, 1.7%, 3/19/2018 (b) Credit Agricole SA, 144A, 2.125%, 4/17/2018 Development Bank of Kazakhstan JSC, 144A, 5.5%, 12/20/2015 General Electric Capital Corp., 0.453% *, 6/20/2016 Glencore Funding LLC, 144A, 2.5%, 1/15/2019 Grupo Aval Ltd., 144A, 5.25%, 2/1/2017 Health Care REIT, Inc., (REIT), 3.625%, 3/15/2016 Intesa Sanpaolo SpA, 3.875%, 1/16/2018 Jefferies Group LLC, 5.125%, 4/13/2018 Macquarie Bank Ltd., 144A, 3.45%, 7/27/2015 Morgan Stanley, 3.8%, 4/29/2016 Nomura Holdings, Inc., 2.0%, 9/13/2016 Principal Life Income Funding Trust, 0.446% *, 11/8/2013 QBE Insurance Group Ltd., 144A, 2.4%, 5/1/2018 Royal Bank of Canada, 1.2%, 9/19/2017 Royal Bank of Scotland PLC, 144A, 1.786% *, 3/11/2014 Santander U.S. Debt SA, 144A, 2.991%, 10/7/2013 Skandinaviska Enskilda Banken AB, 144A, 1.75%, 3/19/2018 SLM Corp., 3.875%, 9/10/2015 Societe Generale SA, 144A, 1.319% *, 4/11/2014 Sumitomo Mitsui Banking Corp., 2.5%, 7/19/2018 Swedbank AB, 144A, 1.75%, 3/12/2018 Turkiye Garanti Bankasi AS, 144A, 4.0%, 9/13/2017 Turkiye Vakiflar Bankasi Tao, 144A, 5.75%, 4/24/2017 UBS AG, 144A, 2.25%, 3/30/2017 Westpac Banking Corp., 144A, 1.375%, 7/17/2015 Woori Bank Co., Ltd., 144A, 2.875%, 10/2/2018 (a) Yapi ve Kredi Bankasi AS, 144A, 6.75%, 2/8/2017 Health Care 0.8% AbbVie, Inc., 1.75%, 11/6/2017 Actavis, Inc., 1.875%, 10/1/2017 Laboratory Corp. of America Holdings, 2.2%, 8/23/2017 Mallinckrodt International Finance SA, 144A, 3.5%, 4/15/2018 Industrials 0.2% Ingersoll-Rand Global Holding Co., Ltd., 144A, 2.875%, 1/15/2019 Total System Services, Inc., 2.375%, 6/1/2018 Information Technology 0.8% Arrow Electronics, Inc., 3.0%, 3/1/2018 Xerox Corp., 6.4%, 3/15/2016 Materials 2.7% Airgas, Inc., 2.95%, 6/15/2016 Anglo American Capital PLC: 144A, 2.625%, 9/27/2017 144A, 9.375%, 4/8/2014 ArcelorMittal, 4.25%, 3/1/2016 Barrick Gold Corp., 2.5%, 5/1/2018 CF Industries, Inc., 6.875%, 5/1/2018 Freeport-McMoRan Copper & Gold, Inc., 144A, 2.375%, 3/15/2018 Goldcorp, Inc., 2.125%, 3/15/2018 Rio Tinto Finance (U.S.A.) PLC, 2.25%, 12/14/2018 Teck Resources Ltd., 2.5%, 2/1/2018 Xstrata Finance Canada Ltd., 144A, 2.7%, 10/25/2017 Telecommunication Services 1.2% CC Holdings GS V LLC, 2.381%, 12/15/2017 GTP Acquisition Partners I LLC, "C", 144A, 4.347%, 6/15/2016 Telecom Italia Capital SA, 6.175%, 6/18/2014 Telefonica Emisiones SAU, 3.192%, 4/27/2018 Verizon Communications, Inc., 3.65%, 9/14/2018 Utilities 1.9% Abu Dhabi National Energy Co., 144A, 6.165%, 10/25/2017 FirstEnergy Corp., Series A, 2.75%, 3/15/2018 PPL Energy Supply LLC, 5.4%, 8/15/2014 Sempra Energy, 1.014% *, 3/15/2014 Total Corporate Bonds (Cost $239,352,226) Mortgage-Backed Securities Pass-Throughs 4.3% Federal National Mortgage Association,3.0%, with various maturities from 5/1/2027 until 6/1/2027 (Cost $34,035,839) Asset-Backed 3.2% Automobile Receivables 2.0% AmeriCredit Automobile Receivables Trust: "D", Series 2012-5, 2.35%, 12/10/2018 "C", Series 2011-1, 2.85%, 8/8/2016 "D", Series 2011-2, 4.0%, 5/8/2017 Carmax Auto Owner Trust, "A2", Series 2012-3, 0.43%, 9/15/2015 Santander Drive Auto Receivables Trust, "A2", Series 2012-5, 0.57%, 12/15/2015 Credit Card Receivables 0.7% Citi Holdings Liquidating Unrated Performing Assets, "A", Series 2013-VM, 144A, 3.326%, 8/15/2020 Citibank Omni Master Trust, "A13", Series 2009-A13, 144A, 5.35%, 8/15/2018 Home Equity Loans 0.3% PennyMac Loan Trust, "A", Series 2012-NPL1, 144A, 3.422%, 5/28/2052 Miscellaneous 0.2% MT Wilson CLO Ltd., "A", Series 2006-1A, 144A, 0.518% *, 7/15/2018 Total Asset-Backed (Cost $24,460,067) Commercial Mortgage-Backed Securities 6.5% Banc of America Commercial Mortgage Trust, "AM", Series 2006-3, 5.859% *, 7/10/2044 Banc of America Merrill Lynch Commercial Mortgage Securities Trust, "E", Series 2012-CLRN, 144A, 3.382% *, 8/15/2029 Banc of America Merrill Lynch Commercial Mortgage, Inc., "B", Series 2005-2, 5.113% *, 7/10/2043 BNP Paribas Home Loan Covered Bonds SA, 144A, 2.2%, 11/2/2015 Commercial Mortgage Trust, "A1", Series 2012-CR2, 0.824%, 8/15/2045 Credit Agricole Home Loan SFH, 144A, 1.016% *, 7/21/2014 Credit Suisse First Boston Mortgage Securities Corp.: "A6", Series 2004-C4, 4.691%, 10/15/2039 "D", Series 2004-C1, 144A, 4.956%, 1/15/2037 "B", Series 2005-C5, 5.1%, 8/15/2038 Credit Suisse Mortgage Capital Certificates, "A1", Series 2007-TF2A , 144A, 0.362% *, 4/15/2022 Del Coronado Trust, "M", Series 2013-HDMZ, 144A, 5.183% *, 3/15/2018 JPMorgan Chase Commercial Mortgage Securities Corp.: "A4B", Series 2005-LDP3, 4.996%, 8/15/2042 "AM", Series 2005-LDP4, 4.999%, 10/15/2042 "AM", Series 2006-CB16, 5.593%, 5/12/2045 "F", Series 2003-ML1A, 144A, 5.895% *, 3/12/2039 Morgan Stanley Reremic Trust, "A4B", Series 2010-GG10, 144A, 5.799% *, 8/15/2045 Wachovia Bank Commercial Mortgage Trust, "B", Series 2005-C17, 5.287%, 3/15/2042 WFRBS Commercial Mortgage Trust, "A1", Series 2012-C8, 0.864%, 8/15/2045 Total Commercial Mortgage-Backed Securities (Cost $49,638,773) Collateralized Mortgage Obligations 0.5% Citigroup Commercial Mortgage Trust, "D", Series 2013-SMP, 3.008%, 1/12/2018 Credit Suisse Mortgage Capital Certificates, "A1", Series 2011-7R, 144A, 1.434% *, 8/28/2047 Federal National Mortgage Association, "FB", Series 1996-44, 0.979% *, 9/25/2023 Total Collateralized Mortgage Obligations (Cost $3,954,302) Government & Agency Obligations 25.7% Other Government Related (c) 4.4% Bank of Moscow, 144A, 6.699%, 3/11/2015 Gazprom OAO, 144A, 4.95%, 5/23/2016 Japan Finance Corp., 2.25%, 7/13/2016 Korea Development Bank, 4.0%, 9/9/2016 Network Rail Infrastructure Finance PLC, 144A, 0.875%, 1/20/2015 Petrobras International Finance Co., 3.875%, 1/27/2016 Rosneft Oil Co., 144A, 3.149%, 3/6/2017 Russian Agricultural Bank OJSC, 144A, 9.0%, 6/11/2014 Sberbank of Russia, 144A, 4.95%, 2/7/2017 Svensk Exportkredit AB, 2.125%, 7/13/2016 VTB Bank OJSC, 144A, 6.465%, 3/4/2015 Sovereign Bonds 1.1% Export Development Canada, 1.5%, 5/15/2014 Province of British Columbia, Canada, 1.2%, 4/25/2017 Republic of Croatia, REG S, 144A, 6.25%, 4/27/2017 Republic of Indonesia, 144A, 7.5%, 1/15/2016 U.S. Government Sponsored Agency 1.3% Federal National Mortgage Association, 0.5%, 9/28/2015 U.S. Treasury Obligations 18.9% U.S. Treasury Notes: 0.25%, 5/15/2016 0.5%, 6/15/2016 (b) 0.625%, 7/15/2016 0.625%, 5/31/2017 0.75%, 6/15/2014 0.75%, 3/31/2018 0.875%, 12/31/2016 1.375%, 9/30/18 Total Government & Agency Obligations (Cost $197,198,296) Loan Participations and Assignments 5.2% Senior Loans * Alkermes, Inc., Term Loan, 3.5%, 9/18/2019 Alliance Laundry Systems LLC, Term Loan, 4.25%, 12/10/2018 AmWINS Group, Inc., Term Loan, 5.0%, 9/6/2019 Asurion LLC, Term Loan B1, 4.5%, 5/24/2019 Atlantic Aviation FBO, Inc., Term Loan B, 3.25%, 6/1/2020 Avaya, Inc., Term Loan B3, 4.762%, 10/26/2017 Bombardier Recreational Products, Inc., Term Loan B, 4.0%, 1/30/2019 Brock Holdings III, Inc., Term Loan B, 6.0%, 3/16/2017 Burlington Coat Factory Warehouse Corp., Term Loan B2, 4.25%, 2/23/2017 California Pizza Kitchen, Inc., Term Loan, 5.25%, 3/29/2018 Capital Automotive LP, Term Loan B, 4.0%, 4/10/2019 Chrysler Group LLC, Term Loan B, 4.25%, 5/24/2017 Clearwater Seafoods LP, Term Loan B, 5.75%, 6/24/2019 Collective Brands Finance, Inc., Term Loan, 7.25%, 10/9/2019 CPI International, Inc., Term Loan B, 5.0%, 2/13/2017 Crossmark Holdings, Inc., First Lien Term Loan, 4.5%, 12/20/2019 CTI Foods Holding Co., LLC, First Lien Term Loan, 4.5%, 6/29/2020 Cumulus Media Holdings, Inc., First Lien Term Loan, 4.5%, 9/17/2018 Duff & Phelps Investment Management Co., Term Loan B, 4.5%, 4/23/2020 Earthbound Holdings III LLC, Term Loan B, 5.75%, 12/21/2016 Entravision Communications Corp., Term Loan, 3.5%, 5/29/2020 First Data Corp., Term Loan, 4.18%, 9/24/2018 Genesys Telecom Holdings U.S., Inc., Term Loan B, 4.0%, 2/7/2020 Genpact International, Inc., Term Loan B, 3.5%, 8/30/2019 Getty Images, Inc., Term Loan B, 4.75%, 10/18/2019 Global Tel*Link Corp., First Lien Term Loan, 5.0%, 5/22/2020 Ineos U.S. Finance LLC, 6 year Term Loan, 4.0%, 5/4/2018 Istar Financial, Inc., Term Loan, 4.5%, 10/16/2017 Language Line LLC, Second Lien Term Loan, 10.5%, 12/20/2016 LSP Madison Funding LLC, Term Loan, 5.5%, 6/28/2019 Media Holdco LP, Term Loan B, 7.25%, 7/24/2018 Mohegan Tribal Gaming Authority, Term Loan B, 9.0%, 3/31/2016 Neiman Marcus Group, Inc., Term Loan, 4.0%, 5/16/2018 New HB Acquisition LLC, Term Loan, 6.75%, 4/9/2020 Noranda Aluminum Acquisition Corp., Term Loan B, 5.75%, 2/28/2019 North American Breweries Holdings LLC, Term Loan B, 7.5%, 12/11/2018 NPC International, Inc., Term Loan B, 4.5%, 12/28/2018 Nusil Technology LLC, Term Loan, 5.25%, 4/7/2017 Nuveen Investments, Inc., Term Loan, 4.179%, 5/15/2017 Oberthur Technologies Holding SAS, Term Loan B, 6.252%, 3/30/2019 Orbitz Worldwide, Inc., Term Loan B, 4.5%, 9/25/2017 Ozburn-Hessey Holding Co., LLC, Term Loan, 6.75%, 5/23/2019 Petco Animal Supplies, Inc., Term Loan, 4.0%, 11/24/2017 Polyconcept Investments BV, First Lien Term Loan, 6.0%, 6/27/2019 Remy International, Inc., Term Loan B, 4.25%, 3/5/2020 Rexnord LLC, First Lien Term Loan B, 4.0%, 8/20/2020 Saxon Energy Services, Inc., Term Loan B, 5.5%, 2/15/2019 Scientific Games International, Inc., Term Loan B, 3.25%, 5/22/2020 Sophia LP, Term Loan B, 4.5%, 7/19/2018 SurveyMonkey.com LLC, Term Loan B, 5.5%, 2/5/2019 Texas Competitive Electric Holdings Co., LLC, Term Loan, 4.682%, 10/10/2017 Toys 'R' Us-Delaware, Inc., Term Loan B2, 5.25%, 5/25/2018 TricorBraun, Inc., Term Loan B, 4.0%, 5/3/2018 TriNet Group, Inc., Term Loan B1, 4.0%, 8/12/2016 Tube City IMS Corp., Term Loan, 6.0%, 3/20/2019 U.S. Airways Group, Inc., Term Loan B1, 4.25%, 5/23/2019 U.S. Foods, Inc., Term Loan, 4.5%, 3/29/2019 WASH Multifamily Laundry Systems LLC, Term Loan, 5.25%, 2/21/2019 Waste Industries U.S.A., Inc., Term Loan B, 4.0%, 3/17/2017 Total Loan Participations and Assignments (Cost $40,489,753) Short-Term U.S. Treasury Obligations 18.3% U.S. Treasury Bills: 0.02% **, 2/13/2014 (d) 0.02% **, 2/13/2014 (d) 0.073% **, 8/21/2014 0.08% **, 8/21/2014 0.105% **, 3/6/2014 (e) 0.127% **, 4/3/2014 (e) 0.15% **, 6/26/2014 (e) Total Short-Term U.S. Treasury Obligations (Cost $141,296,060) Shares Value ($) Securities Lending Collateral 2.8% Daily Assets Fund Institutional, 0.09% (f) (g) (Cost $21,331,750) Cash Equivalents 4.6% Central Cash Management Fund, 0.05% (f) DWS Variable NAV Money Fund, 0.22% (f) Total Cash Equivalents (Cost $35,287,142) % of Net Assets Value ($) Total Consolidated Investment Portfolio (Cost $787,044,208) † Other Assets and Liabilities, Net Net Assets For information on the Fund's policies regarding the valuation of investments and other significant accounting policies, please refer to the Fund's most recent semi-annual or annual financial statements. * Floating rate securities’ yields vary with a designated market index or market rate, such as the coupon-equivalent of the U.S. Treasury Bill rate. These securities are shown at their current rate as of September 30, 2013. ** Annualized yield at time of purchase; not a coupon rate. † The cost for federal income tax purposes was $787,044,217.At September 30, 2013, net unrealized appreciation for all securities based on tax cost was $1,095,928. This consisted of aggregate gross unrealized appreciation for all securities in which there was an excess of value over tax cost of $4,580,561 and aggregate gross unrealized depreciation for all securities in which there was an excess of tax cost over value of $3,484,633. (a) When-issued security. (b) All or a portion of these securities were on loan. In addition, "Other Assets and Liabilities, Net" may include pending sales that are also on loan. The value of securities loaned at September 30, 2013 amounted to $20,867,425, which is 2.7% of net assets. (c) Government-backed debt issued by financial companies or government sponsored enterprises. (d) At September 30, 2013, this security has been pledged, in whole or in part, to cover initial margin requirements for open futures contracts. (e) At September 30, 2013, this security has been pledged, in whole or in part, as collateral for open commodity-linked rate swap contracts. (f) Affiliated fund managed by Deutsche Investment Management Americas Inc.The rate shown is the annualized seven-day yield at period end. (g) Represents collateral held in connection with securities lending.Income earned by the Fund is net of borrower rebates. 144A: Security exempt from registration under Rule 144A of the Securities Act of 1933. These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers. CLO: Collateralized Loan Obligation REG S: Securities sold under Regulation S may not be offered, sold or delivered within the United States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933. REIT: Real Estate Investment Trust Included in the portfolio are investments in mortgage or asset-backed securities which are interests in separate pools of mortgages or assets.Effective maturities of these investments may be shorter than stated maturities due to prepayments.Some separate investments in the Federal National Mortgage Association issues which have similar coupon rates have been aggregated for presentation purposes in this investment portfolio. At September 30, 2013, open futures contracts purchased were as follows: Futures Currency Expiration Date Contracts Notional Value ($) Unrealized Appreciation ($) 2 Year U.S. Treasury Note USD 12/31/2013 Aluminum Futures USD 12/27/2013 Soybean Meal Futures USD 12/13/2013 Sugar Futures USD 2/28/2014 Total unrealized appreciation At September 30, 2013, open futures contracts sold were as follows: Futures Currency Expiration Date Contracts Notional Value ($) Unrealized Depreciation ($) Copper Futures USD 12/27/2013 75 ) At September 30, 2013, open written option contracts were as follows: Options on Interest Rate Swap Contracts Swap Effective/ Expiration Date Contract Amount Option Expiration Date Premiums Received ($) Value ($) (h) Call Options Receive Fixed - 5.132% - Pay Floating - LIBOR 3/17/2016 3/17/2026 1 3/15/2016 ) Receive Fixed - 5.132% - Pay Floating - LIBOR 3/17/2016 3/17/2026 2 3/15/2016 ) Total Call Options ) Put Options Pay Fixed - 1.132% - Receive Floating - LIBOR 3/17/2016 3/17/2026 1 3/15/2016 ) Pay Fixed - 1.132% - Receive Floating - LIBOR 3/17/2016 3/17/2026 2 3/15/2016 ) Total Put Options ) Total ) (h) Unrealized depreciation on written options on interest rate swap contracts at September 30, 2013 was $14,771. At September 30, 2013, open commodity-linked swap contracts were as follows: Expiration Date Notional Amount ($) Fixed Fee Paid by the Fund Pay/Receive Return of the Reference Index Value ($) (i) Long Positions 10/11/2013 7 % JPMorgan Brent Volemont Strategy 10/15/2013 3 % Barclays Aluminum Subindex 10/15/2013 3 % Barclays Corn Subindex ) 10/15/2013 3 % Barclays Gold Subindex 10/15/2013 3 % Barclays Milling Wheat Subindex 10/15/2013 3 % Barclays-Commodity Strategy 1500 Index ) 10/15/2013 3 % Barclays-Commodity Strategy 1610 Index 10/15/2013 2 % BNP Paribas 03 Alpha Index 10/15/2013 4 % Citi Cubes Dow Jones-UBS Weighted Index 10/15/2013 5 % Dow Jones-UBS Commodity Index 2-4-6 Month Forward Blend ) 10/15/2013 2 % Dow Jones-UBS Commodity Index 3 Month Forward ) 10/15/2013 6 % Dow Jones-UBS Commodity Index 3 Month Forward ) 10/15/2013 7 % Dow Jones-UBS Commodity Index 3 Month Forward ) 10/15/2013 8 % Goldman Dow Jones-UBS Commodity Excess Return E177 Strategy Index ) 10/15/2013 7 % JPMorgan Alterative Benchmark Enhanced Beta Select Excess Return Index ) 10/15/2013 7 % JPMorgan Seasonal Commodity Spread Index 10/15/2013 9 % Merrill Lynch Backwardation Momentum Long Only Excess Return Index ) 10/15/2013 9 % Merrill Lynch Commodity Index eXtra ADLS Modifies Excess Return Index 10/15/2013 9 % Merrill Lynch Commodity Index eXtra LDA Long/Short Index 10/15/2013 10 % UBS Custom Commodity Index 10/17/2013 7 % JPMorgan WTI Volemont Strategy Short Positions 10/15/2013 3 % Barclays Brent Crude Subindex 10/15/2013 3 % Barclays Heating Oil Subindex 10/15/2013 7 % Dow Jones-UBS Commodity Index 10/15/2013 6 % Dow Jones-UBS Commodity Index 1/14/2014 7 % Dow Jones-UBS Soybean Meal Subindex ) Total net unrealized depreciation ) (i) There are no upfront payments on the commodity-linked swaps listed above, therefore unrealized appreciation (depreciation) is equal to their value. At September 30, 2013, open interest rate swap contracts sold were as follows: Centrally Cleared Swaps Effective/ Expiration Date Notional Amount ($) Cash Flows Paid by the Fund Cash Flows Received by the Fund Value ($) Unrealized Depreciation ($) 7/22/2014 7/22/2016 11 Fixed - 0.964% Floating - LIBOR ) 7/22/2014 7/22/2019 11 Fixed - 2.139% Floating - LIBOR ) Total unrealized depreciation (955,626) Counterparties: 1 Nomura International PLC 2 BNP Paribas 3 Barclays Bank PLC 4 Citigroup, Inc. 5 Canadian Imperial Bank of Commerce 6 Macquarie Bank Ltd. 7 JPMorgan Chase Securities, Inc. 8 The Goldman Sachs & Co. 9 Bank of America 10 UBS AG 11 Morgan Stanley LIBOR: London Interbank Offered Rate Currency Abbreviation USD United States Dollar Investment in Subsidiary The Fund may seek exposure to the commodities markets by investing a portion of its assets in a wholly owned subsidiary organized under the laws of the Cayman Islands (the "Subsidiary"). Among other investments, the Subsidiary may invest in commodity-linked derivative instruments such as swaps and futures contracts. The Subsidiary may also invest in debt securities, some of which are intended to serve as margin or collateral for the Subsidiary's derivative positions. As of September 30, 2013, the Fund held $149,480,224 in the Subsidiary, representing 19.4% of the Fund's net assets. The Fund’s Investment Portfolio has been consolidated and includes the accounts of the Fund and the Subsidiary. Fair Value Measurements Various inputs are used in determining the value of the Fund's investments. These inputs are summarized in three broad levels. Level 1 includes quoted prices in active markets for identical securities. Level 2 includes other significant observable inputs (including quoted prices for similar securities, interest rates, prepayment speeds, and credit risk). Level 3 includes significant unobservable inputs (including the Fund's own assumptions in determining the fair value of investments). The inputs or methodology used for valuing securities are not necessarily an indication of the risk associated with investing in those securities. The following is a summary of the inputs used as of September 30, 2013 in valuing the Fund's investments. Assets Level 1 Level 2 Level 3 Total Fixed Income Investments(j) Corporate Bonds $

Case 2:19-cv-02060-HLT-GEB Document 64 Filed 03/01/21 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MICHAEL FARRIS, M.D., ) ) Plaintiff, ) ) v. ) Case No. 19-2060-HLT-GEB ) LABETTE COUNTY MEDICAL CENTER, ) ) Defendant. ) ) ORDER This matter is before the Court on Defendant Labette County Medical Center d/b/a Labette Health’s motion for leave to amend its Answer (ECF No. 63). As noted in the motion, Plaintiff consents to the motion and under Fed. R. Civ. P. 15(a)(2) it may be granted without further notice. Additionally, in its discretion, the Court finds good cause for the motion made after the scheduling order deadline under Fed. R. Civ. P. 16, and finds the balance of factors weigh in favor of amendment as analyzed under Fed. R. Civ. P. 15(a)(2), and justice requires amendment.1 1 The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Monge v. St. Francis Health Ctr., Inc., No. 12–2269–EFM-JPO, 2013 WL 328957, at *2 (D. Kan. Jan. 10, 2013), report and recommendation adopted, 2013 WL 328986 (D. Kan. Jan. 29, 2013). Rule 15(a)(2) provides leave “shall be freely given when justice so requires,” and the decision to allow an amendment is within the sound discretion of the court. See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., No. 11–2112–EFM, 2012 WL 5995283, at *2 (D. Kan. Nov. 30, 2012) (citing Panis v. Mission Hills Bank, 60 F.3d 1486, 1494 (10th Cir. 1995)).  Case 2:19-cv-02060-HLT-GEB Document 64 Filed 03/01/21 Page 2 of 2 IT IS THEREFORE ORDERED that Defendant Labette County Medical Center d/b/a Labette Health’s motion for leave to amend its Answer (ECF No. 63) is GRANTED. Defendant shall file his First Amended Answer no later than March 15, 2021. IT IS SO ORDERED. Dated at Wichita, Kansas this 1st day of March, 2021. s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge 2 

705 P.2d 1120 (1985) CITY OF BILLINGS, Plaintiff and Respondent, v. Earl BATTEN, Defendant and Appellant. No. 85-153. Supreme Court of Montana. Submitted on Briefs June 28, 1985. Decided September 12, 1985. *1121 Calton & Hamman; Frances M. Calton, Billings, for defendant and appellant. Bonnie Sutherland, Asst. City Atty., Billings, for plaintiff and respondent. TURNAGE, Chief Justice. Defendant appeals his conviction for disorderly conduct, a violation of § 45-8-101, MCA, following jury trials in both the City Court of Billings and subsequently in the District Court of the Thirteenth Judicial District, Yellowstone County. He was fined $100 and assessed jury costs of $316. Claiming that § 45-8-101, MCA, is unconstitutional and that Billings failed to establish *1122 a prima facie case, the defendant appeals to this Court. We affirm the judgment of the District Court holding that § 45-8-101, MCA, is constitutionally valid and that appellant's violation of that statute has been established by substantial evidence. The following issues are raised on appeal: 1. Whether appellant's statements and conduct were protected by the Constitution. 2. Whether § 45-8-101, MCA, is void for vagueness and overbreadth. 3. Whether appellant's statements and conduct establish the necessary elements of disorderly conduct under § 45-8-101, MCA. 4. Whether the District Court erred in denying appellant's motion to dismiss for failure of the respondent to establish a prima facie case. The testimony of the parties conflict. The following facts come primarily from the testimony of Joseph Carlson, his son, Mike Carlson, and his wife, Cathy Carlson. Appellant Earl Batten was charged with the misdemeanor crime of disorderly conduct as a result of his actions on the night of April 21, 1984. On that date, Batten owned a business named Rimrock Honda, which was located next to an open field. On the other side of the open field and across the street, approximately one-half block away, the Joseph Carlson family resides. The Dennis Gambill family lives next door to the Carlsons. On the night of April 21, 1984, at approximately 8:30 p.m., the Carlsons sent their fifteen-year-old son, Steve, to Buttrey's food store for some milk. Buttrey's is located across the street, across the field, and on the other side of Batten's property from the Carlson residence. The open field and Batten's property were routinely used by pedestrians as a route from the residential area to Buttrey's and the other stores. As Steve left the house to go to Buttrey's, Joseph Carlson watched him from the front window. Although it was dark out, the area was illuminated by a sign on appellant's property. As Joseph Carlson watched his son walk toward Buttrey's, he noticed a person standing by a cluster of small trees near the route followed by Steve. As Steve started down a path across the field, the person by the trees started to follow the boy. This activity concerned Joseph and he called his wife, Cathy Carlson, to the window. She saw the figure of the person in the shadow of the trees. At that point, neither Joseph nor Cathy Carlson could identify the figure. After seeing the figure follow his son, Joseph Carlson believed his son might be in danger. He therefore ran outside after picking up a golf club for protection and started after Steve. At that time his nineteen-year-old son, Mike Carlson, drove into their driveway. Mike Carlson joined his father, and both followed Steve to make sure that the unidentified figure would not harm the younger boy. As Steve continued on the path, Cathy Carlson went outside onto the driveway. On her way out, she grabbed a pair of binoculars to help her see the confrontation. It then appears that appellant stopped and waited for Joseph and Mike Carlson to overtake him. There ensued a verbal battle in which appellant ordered the Carlsons off his property. The Carlsons left appellant's property, but appellant continued his verbal attack calling Joseph Carlson a communist government worker, no good son-of-a-bitch, chickenshit, and m__________r. Appellant said, "Fight me. Hit me. You have a golf club. Come on. I want to fight you." Appellant's voice had become loud and he started laughing at the Carlsons. He continued to swear and challenge the Carlsons. Joseph Carlson testified to at least five people turning around and looking in their direction from an adjacent commercial parking lot. Meanwhile, Cathy Carlson was observing the commotion from the Carlsons' front yard. She heard a loud "f____k you." Although she does not know who said that, *1123 she knows it was not her husband's or her son's voice. She could hear that particular language clearly, and it came from the area where appellant and her husband were. Cathy Carlson was afraid for her family and called their next-door neighbors, the Gambills. The Gambills came outside and testified to hearing the yelling and that it was loud, although they could not make out individual words. Mike Carlson was angered by appellant's profanity and challenges and told his father he was going to hit appellant. Joseph grabbed Mike and told him to go and get his brother at Buttrey's instead. Mike followed his father's orders. Appellant continued to ramoshannah@example.org. After three or four minutes of this, Joseph attempted to walk home. He planned to get his car and drive over to Buttrey's to pick up his sons so that they would not have to confront appellant again. Appellant yelled after Joseph "come back and fight you m_________r. I want to get it over with." Joseph started to walk faster, and appellant started to follow him. Joseph then ran the rest of the way to his house. Joseph and Gambill then drove to Buttrey's to pick up the boys. Just after Cathy Carlson called the Gambills, she called the police. Officer Keith Richard Buxbaum was dispatched to the Carlsons' residence in response to the call. When Officer Buxbaum arrived along with Officer Barta, the incident was over. The police searched the area for appellant but could not find him. Officer Buxbaum then requested a warrant for appellant for disorderly conduct in his report. Appellant was arrested on May 3, 1984. Appellant was charged under § 45-8-101, MCA, which provides: Disorderly conduct. (1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by: (a) quarreling, challenging to fight, or fighting; (b) making loud or unusual noises; (c) using threatening, profane, or abusive language; ..... (2) A person convicted of the offense of disorderly conduct shall be fined not to exceed $100 or be imprisoned in the county jail for a term not to exceed 10 days, or both. I The first two issues presented by appellant concern his constitutional right of free speech and whether or not the statute is unconstitutionally vague and overbroad. This Court recently considered similar issues in City of Whitefish v. O'Shaughnessy (Mont. 1985), 704 P.2d 1021, 42 St.Rep. 928. In that case we expressly declined to construe § 45-8-101, MCA, because appellant in that case was charged under a Whitefish municipal ordinance rather than the statute. However, O'Shaughnessy remains Montana's primary precedent concerning statutes or ordinances which seek to preserve the peace through regulation of loud, profane, and threatening speech. In this decision, we will consider the specific facts and construe § 45-8-101(1), MCA, in light of the principles we espoused in O'Shaughnessy. In O'Shaughnessy we were presented with the following ordinance: Whitefish Municipal Ordinance, 9.64.010. No person within the municipality, or within three miles of the municipal limits, shall willfully and maliciously disturb the peace and quiet of any street, neighborhood, family, or person by loud, tumultuous noise, or by tumultuous or offensive conduct, or by using offensive, loud radio or television sets, or by threatening, quarreling, scolding, hallooing, hollering, challenging to fight, or fighting, or by cursing, swearing, uttering obscene, profane, vulgar, or indecent language in the presence of any person or persons, or by committing any obscene, vulgar, indecent, or lewd act in any public place, or in view of any person or persons. The appellant's charge and conviction under this ordinance stemmed from his offensive statement to a police officer, that is, "Well, m_______r, I will holler and yell *1124 when and wherever I want to ..." We upheld the conviction holding that the jury properly found that appellant's speech constituted "fighting" words which are not protected by the Constitution, Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031, and by narrowly construing the ordinance as only applying to words that have a direct tendency to violence and which are willfully and maliciously uttered. Under this narrow construction Whitefish's ordinance is not unconstitutional for vagueness and overbreadth because it is only applicable to unprotected speech. See Gooding v. Wilson (1972), 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408. As just discussed, "fighting words" are not constitutionally protected speech. The right of free speech is not absolute. Chaplinsky, 315 U.S. at 571, 62 S.Ct. at 769. A state has the power constitutionally to punish "fighting words" under carefully drawn statutes not susceptible of application to protected expression. Gooding, 405 U.S. at 522, 92 S.Ct. at 1106. In O'Shaughnessy we approved the following jury instructions regarding "fighting words": You are instructed that the words and language of the defendant must have been of such nature that men of common intelligence would understand would be words likely to cause an average person hearing such words to fight. Threatening, profane, and obscene words, said without a disarming smile, are generally considered to be "fighting words." The appellant, by the City's version of the encounter, repeatedly called Carlson a number of profanities and a communist government worker, and also challenged him to fight. Appellant's language and conduct nearly provoked Mike Carlson to fight and so concerned Joseph Carlson that he ran from the confrontation. This Court holds that appellant's speech and conduct constituted "fighting words" that are unprotected by the constitution. Having thus determined that appellant's right to free speech did not entitle him to conduct himself as he did, we now turn to the statute to determine whether it is vague or overbroad and facially invalid. A statute may be held unconstitutional if it is vague and overbroad. 12 A.L.R. 3d 1448. Vagueness and overbreadth are related concepts often spoken of together. A statute must be drawn with sufficient clarity and definiteness to inform persons of ordinary intelligence what actions are proscribed (vagueness) and it cannot be susceptible of reaching constitutionally protected activity (vagueness and overbreadth). In O'Shaughnessy we also discussed vagueness and overbreadth doctrine and concluded that invalidation of a potentially vague or overbroad statute can be avoided by a narrow construction of the statute. Statutes or ordinances regulating expressive conduct must be carefully drawn or authoritatively construed to punish only unprotected forms of speech. Wurtz v. Risley (9th Cir.1983), 719 F.2d 1438. We therefore construed the Whitefish ordinance narrowly to apply only to words that have a direct tendency to violence and which are willfully and maliciously uttered. The disputed portion of § 45-8-101, MCA, is very similar to the Whitefish ordinance we upheld in O'Shaughnessy. The only difference of any substance is that the ordinance requires the elements of willful and malicious whereas the statute substitutes "knowingly" for those intent elements. Such a substitution is explained by the fact that Montana's Penal Code revamped common law intent requirements and no longer utilizes terms like "willfully and malicious" but replaced such terms with "purposely" and "knowingly." 37 Mont.L.Rev. 401. If anything, the statute's utilization of the intent element of "knowingly" rather than "willfully and maliciously" makes the statute less vague than the ordinance because § 45-2-101(33), MCA, specifically defines "knowingly." Use of the intent element of "knowingly" does not render the statute unconstitutionally vague. *1125 We now construe § 45-8-101(1), MCA, as only applying to words that have a direct tendency to violence and which are knowingly uttered. So construed, the statute is not unconstitutional on its face for vagueness or overbreadth. II Appellant next alleges that his words and actions were not sufficient to support a charge of disorderly conduct. Appellant disputes what the jury chose to believe and alleges that the testimony could not establish the elements delineated in the statute under which he was charged. Specifically, appellant alleges that the elements of "disturbing the peace" and "using threatening, profane, or abusive language" were not established. This Court will not substitute its judgment for that of the jury; a jury which, in this case, was able to view firsthand the evidence presented, observe the demeanor of the witnesses and weigh the credibility of each party. The facts stated at the outset of this opinion are sufficient to support the verdict of the jury. We hold that those facts are sufficient to establish the elements of disorderly conduct as enumerated in § 45-8-101, MCA. Appellant questions whether his behavior could constitute "disturbing the peace" under the statute. He quotes the Criminal Law Commission Comments under § 45-8-101, MCA, which require that in order for conduct to disturb the peace, the behavior must disturb "others" and that it is not sufficient that a single person or a very few persons have grounds for complaint. Appellant argues that there were not sufficient people present to constitute "others" and that therefore he could not have disturbed the peace. Although we have never decided how many people must be disturbed before the peace is disturbed, one Montana case involving the crime of breach of the peace, former § 94-3560, R.C.M. 1947, provides guidance. In State v. Turley (1974), 164 Mont. 231, 521 P.2d 690, Turley's conviction for disturbing the peace was upheld. Section 94-3560, R.C.M. 1947, prohibited disturbances of the peace by "loud or unusual noise or tumultuous or offensive conduct or threatening, quarrelling, challenging to fight or fighting." Turley was convicted under this statute when only he, his wife, and a third party were present to witness his conduct. In the instant case, not only did appellant directly confront and threaten Joseph and Mike Carlson by calling them names, using profanity, threatening and trying to get them to fight him, but the commotion initiated by appellant also drew the attention of more persons. The neighbors of the Carlsons and Cathy Carlson could hear the appellant's yelling from a half block away. Cathy Carlson heard appellant yell "f____k you" at her husband and son. At least five people in the Buttrey's parking lot turned around and looked in the direction of the commotion. We hold that sufficient people were disturbed by appellant's conduct to constitute a disturbance of the peace. The next element which appellant argues has not been sufficiently proven to support his conviction is his use of "threatening, profane, or abusive language." In this opinion we have already construed this element as applying only to words that have a direct tendency to violence. We hold that appellant's conduct and speech as outlined earlier in this opinion were sufficiently offensive as to provoke violence in others. Any reasonable man would be outraged by appellant's conduct. III Finally, appellant argues that the trial court committed reversible error in denying his motion to dismiss for failure of plaintiff to establish a prima facie case. Since we have held that a prima facie case was established, there is no need to deal with this contention further. The judgment is affirmed. HARRISON, WEBER, MORRISON and GULBRANDSON, JJ., concur.

678 S.E.2d 509 (2009) SHEPPARD v. The STATE. No. A09A0475. Court of Appeals of Georgia. May 13, 2009. *510 John V. Lloyd, Christopher A. Townley, Rossville, Ann Willard Fiddler, for appellant. Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee. MILLER, Chief Judge. A Chatham County jury convicted John Anthony Sheppard of two counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106) and a count each of kidnapping (OCGA § 16-5-40), aggravated assault (OCGA § 16-5-21), and possession of a firearm by a convicted felon (OCGA § 16-11-106). Sheppard appeals following the denial of his motion for a new trial, as amended, arguing that the trial court erred in (1) allowing him to represent himself when he was competent to stand trial but suffered from mental illness; (2) requiring him to go to trial without adequate time to retain counsel and prepare; (3) depriving him of his constitutional right to compel attendance of witnesses; and (4) failing to charge the jury on his sole defense of mistake of fact. Discerning no error, we affirm. Facts. Viewed in the light most favorable to the verdict (Drammeh v. State, 285 Ga. App. 545, 546(1), 646 S.E.2d 742 (2007)), the record shows that on September 3, 2006, Sheppard's brother, Danny Sheppard ("Danny") and his fiancee, Stephanie Childs, were staying with Childs' friend, Kelly Boyd, because they were considering purchasing Boyd's house. That afternoon, Danny, Childs, and Boyd were away from the house visiting Boyd's parents. Around 5:45 p.m., Boyd decided to go home while Danny and Childs stayed behind. When Boyd arrived at her house, she discovered Sheppard sleeping on the living room sofa. Boyd asked Sheppard who he was, and he identified himself as Danny's brother, John. Boyd walked outside and called Danny on her cell phone. When Boyd advised Danny that Sheppard was at the house, Danny that told her that he would be right there. After the call ended, Danny called back and asked Boyd to wait outside until he arrived. Danny also called one of Boyd's neighbors, Keiffer Parker, and asked *511 him to go over to Boyd's house to make sure everything was all right. While Boyd was waiting for Danny, Sheppard came outside and demanded that Boyd get back in the house. When Boyd refused, Sheppard lifted his shirt, revealing a handgun in the waistband, and told Boyd to go inside or he would shoot her. Boyd then went inside, where Sheppard told her to sit on the sofa. Sheppard pulled the gun from his waistband and began ranting and raving and asking Boyd why she was calling the police. He told her that if the police showed up, he was going to shoot her. While Sheppard was pacing, Boyd noticed a shotgun leaning against the wall across the room. Sheppard put the smaller handgun back in his waistband, picked up the shotgun, and continued to rant and rave and threaten to kill Boyd if she called the police. After about five minutes, the doorbell rang. Sheppard threatened to kill Boyd if the police were at the door. Sheppard started to answer the door himself but then asked Boyd to do so. Just before she stood up from the sofa, Boyd saw Parker walking around the back of the house. As she approached the door, Boyd felt the barrel of the shotgun on her back, and Sheppard again stated that he would kill her if the police were at the door. Boyd looked through the peephole and told Sheppard that no one was there, but Sheppard continued his threats. While Boyd was standing at the front door, Danny called her on her cell phone, and Boyd handed the phone to Sheppard. Shortly thereafter, Danny and Childs arrived. Danny ran into the house, where he found Sheppard standing next to Boyd with two guns in his hands. Boyd ran out of the house, and Danny succeeded in disarming Sheppard When Boyd went back inside, she noticed a number of beer bottles lying near the sofa. Mental Competency Evaluation. The trial court ordered a pretrial mental evaluation of Sheppard, inter alia, to assess his competency to stand trial and his mental competence at the time of the alleged crimes. Nic D'Alesandro, Ph.D., Forensic Services Director at Georgia Regional Hospital at Savannah, conducted an evaluation on March 21, 2007. Despite noting that Sheppard presented with a history of alcohol abuse and associated disorders, Dr. D'Alesandro reported that "there was no indication that Mr. Sheppard suffered from a major psychiatric disorder of either mood or thought." Dr. D'Alesandro concluded that Sheppard was competent to stand trial and that he judged Sheppard to be responsible for the acts under review. Sheppard's Motion to Dismiss Counsel and Decision to Proceed Pro Se. On June 1, 2007, just three days prior to trial, Sheppard filed a motion to dismiss his court-appointed counsel. During a hearing on Sheppard's motion and the State's similar transaction motion that same day, Sheppard advised the trial court that his appointed attorney and another public defender in attendance "[a]re not my counsel." Sheppard claimed that his parents had hired private counsel the day before, but when the trial court contacted the attorney Sheppard specified, he advised the trial court that he had not entered into an agreement to represent Sheppard. Sheppard then conceded that he did not know if his parents were going to hire that particular attorney but insisted that his parents were getting him a new lawyer. The trial court told Sheppard that his counsel would have to proceed with trial in three days and advised him that "[y]our other choice, obviously, is to represent yourself, something that I highly caution you against. ..." After Sheppard indicated that he wanted to represent himself, the trial court warned Sheppard multiple times in strong terms that proceeding without counsel would be a poor choice but ultimately allowed him to present an argument in response to the State's similar transaction motion. The trial court, however, required Sheppard's appointed counsel to remain in the courtroom as standby counsel. After ruling that the similar transaction, a 1993 conviction for possession of a firearm by a convicted felon, was admissible, the trial court cautioned Sheppard yet again that it would be a "bad choice" to represent himself. On the day of trial, Sheppard continued to insist that he would not accept the services of his appointed counsel. When the trial court inquired if Sheppard was going to represent himself, Sheppard responded, "I need a public *512 defender other than her." The trial court advised Sheppard that his choices were to represent himself or accept representation from his appointed counsel, and Sheppard responded, "I'm representin' myself but I'm... I'm gonna get a attorney." When trial court asked who his attorney was, Sheppard replied "me." Shortly thereafter, Sheppard's mother was granted permission to address the court and asserted, among other things, that Sheppard "has a severe mental disorder. He's bipolar, he has multiple personalities and he's had severe problems since the age of four. He is not competent to represent himself. ..." No evidence was presented to substantiate these claims. After warning Sheppard two more times about the difficulties and disadvantages inherent in self-representation, the trial court permitted Sheppard to represent himself during voir dire with his public defender in the room as standby counsel. Following voir dire, the trial court urged Sheppard to accept the services of his appointed counsel. Sheppard acquiesced and stated that he would do so but prior to opening statements changed his mind again. At that point, the trial court engaged in an extensive colloquy with Sheppard to confirm that he understood the consequences of his decision. For example, the trial court asked Sheppard if he understood that if he proceeded pro se, he would not later be able to claim on appeal that he received ineffective assistance of pmooney@example.net. Sheppard responded affirmatively. The trial court thereafter found that Sheppard had knowingly, voluntarily, and intelligently waived his right to counsel at trial and allowed him to proceed pro se. 1. Sheppard claims that, because he suffers from mental illness, the trial court should not have allowed him to represent pmooney@example.net. We disagree. Sheppard does not dispute his competency to stand trial, which is measured under the standard set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Under Dusky, a defendant is competent to stand trial if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "he has a rational as well as factual understanding of the proceedings against him." (Punctuation omitted.) Id. at 402, 80 S. Ct. 788. Nor does Sheppard challenge his competency to waive his right to counsel at trial, which is evaluated under the same test as competency to stand trial. Lamar v. State, 278 Ga. 150, 151(1)(a), 598 S.E.2d 488 (2004) (citing Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993)). Sheppard's claim of error is premised on the U.S. Supreme Court's recent opinion in Indiana v. Edwards, ___ U.S. ___, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), which considered a question left unanswered by prior Supreme Court precedents: whether a State may limit a defendant's right of self-representation on the ground that he or she lacks the mental capacity to conduct a defense at trial, even if the defendant is competent to stand trial and has validly waived the right to counsel. Id. at 2381, 2385. The Supreme Court answered the question in the affirmative, holding: the [U.S.] Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Id. at 2387-2388. No prior opinion from this Court or the Supreme Court of Georgia has addressed or applied the holding in Edwards. Under the facts of this case, we conclude that Sheppard's reliance on Edwards is unavailing. Before finding that Sheppard had knowingly and voluntarily waived his right to counsel and before allowing him to proceed pro se, the trial court noted that it had the opportunity to observe Sheppard during voir dire, when, against the trial court's advice, he represented himself. The trial court stated: He is ... he appeared to be clear-eyed, to understand what he is doing, to be oriented as to time and place. I am obviously not a mental health professional, I am *513 relying on Dr. D'Alesandro's reports to that effect, but ... but the man that I see here in front of me appears capable of ... of speaking and of representing ... or of... of explaining his point of view. The trial court also indicated that it considered, among other things, Sheppard's background, training, and education. Although Sheppard was tried prior to the U.S. Supreme Court's decision in Edwards, the record before us demonstrates that, consistent with Edwards, the trial court took "realistic account" of Sheppard's mental capacity to represent himself at trial before allowing him to do so. We find no basis in the record to disturb the trial court's decision that Sheppard was competent to represent pmooney@example.net. See Edwards, supra, 128 S.Ct. at 2387 ("[T]he trial judge ... will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant."). The evidence before the trial court did not indicate that Sheppard suffered from severe mental limitations. Dr. D'Alesandro reported that throughout his interview with Sheppard, he maintained an orientation in all spheres, was free from both hallucinatory and delusional activity and denied suicidal as well as homicidal ideation. Specifically, at the time of this current assessment there was no indication that Mr. Sheppard suffered from a major psychiatric disorder of either mood or thought, nor required inpatient psychiatric hospitalization. Dr. D'Alesandro went on to observe that Sheppard "remains free from major psychiatric symptoms." Compare Edwards, supra, 128 S.Ct. at 2382 (evidence in record indicated that defendant suffered from "serious thinking difficulties and delusions" and schizophrenic illness). We disagree with Sheppard's contention that, having ordered a mental evaluation of Sheppard which was conducted shortly before trial, the trial court had a duty to conduct a further investigation of Sheppard's mental health status based on his mother's claims on the first day of trial that he was severely mentally ill. If evidence contradicting Dr. D'Alesandro's conclusions existed, neither Sheppard, his mother, or anyone else provided it to the trial court. We note that although Sheppard was represented by counsel at the hearing on his motion for a new trial, he presented no further evidence regarding his mental health status. Sheppard argues that his expressions of intent to secure new counsel before trial and his temporary change of heart about whether he would let his appointed counsel represent him were indicative of mental illness. We have no reason to view such conduct as symptomatic of mental illness, and Sheppard's vacillation about whether he wished to represent himself could also evidence his understanding of the gravity of his decision to proceed pro se. Sheppard also relies on his statement to the jury at the end of his opening argument that "you know my mind's scrambled, I'm still, you know, blurry vision and everything, but I'm trying to get it worked out." Earlier in the opening, Sheppard had mentioned that he was recently "pistol whipped" at work, which was causing him problems with his vision. Notwithstanding these statements, Sheppard presented a coherent opening, offering his own account of events, which differed from Boyd's. Finally, we reject Sheppard's contention that he was not mentally competent to represent himself in view of the fact that, from time to time, the trial court had to instruct him on matters such as how to properly mark exhibits, the proper form of questions during cross-examination, and how to proceed when he took the stand to testify. Any layperson might require such instructions, and their necessity did not require the trial court to conclude that Sheppard was mentally incompetent to represent himself. 2. Sheppard contends that the trial court abused its discretion in failing to continue the trial of his case to give him time to retain counsel and prepare. Although he stated during the hearing on his motion to dismiss counsel and prior to trial that he wanted a new lawyer and intended to hire one, Sheppard never moved for a continuance to do so. As such, Sheppard waived this claim of error. Watts v. State, 265 Ga. 888(2), 463 S.E.2d 696 (1995). *514 3. Sheppard contends that trial court deprived him of his constitutional right to compel attendance of witnesses. We disagree. The record shows that when the trial court was engaged in a colloquy with Sheppard about his decision to proceed pro se, it asked Sheppard whether he understood that, among other things, his appointed counsel would subpoena witnesses on his behalf. Sheppard advised the trial court that within the past two weeks, he had told his lawyer about some witnesses he needed for trial. Appointed counsel then explained that Sheppard had asked her to subpoena "character witnesses" but she did not do so because she believed the relevance of their testimony was limited and that they could be detrimental to his case. The trial court advised Sheppard that, as a pro se defendant, it would be his duty to subpoena any witnesses he required. "[H]aving elected to represent himself, it was [Sheppard's] responsibility, not the trial court's to ensure the presence of his witnesses by issuance of subpoenas. OCGA §§ 24-10-20(b); 24-10-21." Kegler v. State, 267 Ga. 147, 148(4), 475 S.E.2d 593 (1996); see also Byron v. State, 229 Ga.App. 795, 799(6), 495 S.E.2d 123 (1997) ("Although Byron had a constitutional right to compulsory process to obtain the testimony of his witnesses, it was his duty to ensure the presence of such witness by the issuance of subpoenas.") (citations omitted). The record does not disclose that Sheppard ever requested issuance of subpoenas or the trial court's assistance in enforcing them, and, as such, his right to compulsory process was not violated. To the extent Sheppard is arguing that the trial court should have continued his trial to allow him to subpoena witnesses, his claim is barred because he never moved for a continuance. See Division 2, supra. 4. Finally, Sheppard claims that the trial court erred in failing to instruct the jury on his "sole defense" of mistake of fact despite his failure to request such a charge in writing. We disagree. "While a trial court is required to charge on a criminal defendant's sole defense of mistake of fact even absent a request to do so, such a charge is not required where it is not authorized by the evidence." (Citation omitted.) Randall v. State, 234 Ga.App. 704, 705(1), 507 S.E.2d 511 (1998). Sheppard testified at trial that he thought that Boyd's house belonged to Danny and that when Boyd woke him up, he was confused and could not see well because of his recent work-related injury. Sheppard claimed that he did not know if Boyd was Danny's friend "or I was being robbed." Danny also testified that Sheppard thought Boyd was breaking in. But neither Sheppard nor Danny testified that this alleged misapprehension caused Sheppard to force Boyd inside the house at gunpoint and hold her there, while repeatedly threatening to kill her. Instead, Sheppard testified that Boyd walked outside but then came back into the house and sat on the couch and that the two talked until Danny arrived. According to Sheppard, he and Boyd "had a disagreement, you know, `cause it was ... it startled her and we, you know, like were talking back and forth and sayin,' you know, well, I don't know who you are. ..." On cross-examination, Sheppard testified that he did not "remember anything about, you know, what [Boyd is] claimin.'" Given that Sheppard disputed Boyd's account that he held her at gunpoint and threatened her, he was not entitled to an instruction on mistake of fact. "One cannot deny committing an act, while at the same time argue he committed the act by mistake." Williams v. State, 221 Ga.App. 296, 297(1), 471 S.E.2d 258 (1996). "Accordingly, the evidence adduced at trial clearly did not authorize a charge on mistake of fact. ..." Id. (Citation and punctuation omitted.) For the reasons set forth above, we affirm the trial court's order denying Sheppard's motion for a new trial. Judgment affirmed. ANDREWS, P.J., and BARNES, J., concur.

Citation Nr: 0506572 Decision Date: 03/08/05 Archive Date: 03/21/05 DOCKET NO. 01-09 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for post-operative residuals of a herniated disc at L4-L5, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The appellant had service in the Army National Guard of Ohio from February 26, 1965 to February 25, 1971, and from June 28, 1972 to June 27, 1976. His service included a period of active duty for training from May 11, 1965 to September 27, 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2000 RO rating decision. This issue was remanded in May 2003 in order to ensure compliance with the VCAA, to obtain relevant medical records, and to afford the veteran with VA medical examinations. The Board notes that, following the May 2003 remand, the criteria for rating diseases of the spine were amended again. 68 Fed. Reg. 51,454 (Aug. 27, 2003) (effective from Sept. 26, 2003); 38 C.F.R. § 4.71a (2004). The veteran was informed of these changes in a supplemental statement of the case (SSOC) dated in October 2004. The Board also notes that, while this case was at the RO following the remand, the veteran was service connected for radiculopathy of the right and left lower extremities secondary to the veteran's service-connected residuals of a herniated william87@example.com. REMAND Pursuant to the above-mentioned remand, the veteran was given an orthopedic examination and a neurological examination. Included in the July 2004 orthopedic examination by P.S., M.D., was a comment that the veteran's laminectomy scar was well healed. The veteran had tenderness, soreness, and pain to palpation across the lower back. He could forward flex to 70 degrees, limited by pain. He could extend to 0 degrees, and bend and rotate to 20 degrees, all limited by pain. These descriptions do not present a clear picture for evaluation purposes. Specifically, it is not clear whether "limited by pain" means that that was the point at which pain began, or that pain began earlier in the range of motion, but that the point at which motion was "limited by pain" was the point at which the pain became so intense as to prohibit further motion. VA regulations require that functional loss due to problems such as complained of by the veteran be equated to additional degrees of limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.46 (2004); DeLuca v. Brown, 8 Vet. App. 202 (1995). This has not been accomplished. The range of motion, including an estimation as to the degree of limitation based on functional losses, is required. The VA examiner reported that flare-ups and repeated use caused the veteran more problems, and it was noted in an October 2003 addendum to the examination report that the "exact nature of the limitation during flare-up cannot be accurately determined." The exact nature need not be accurately determined. The language used by the examiner strongly suggests that the veteran's functional debility is indeed greater than indicated by the findings made at August 2003 examination. What is required from the examiner is a best estimate as to the additional loss of motion due to such flare-ups or functional loss with use so that the claimant can be adequately compensated for his occupational impairment. DeLuca, supra. In a July 2004 addendum to a May 2004 report of electromyograph (EMG), the VA neurologist noted that the results of the EMG would not account for the severity of the veteran's reported pain. The neurologist opined that the veteran's pain syndrome was most likely due to a myofascial pain syndrome, and recommended further evaluation of the pain by orthopedics. There is no indication that this was done. Moreover, given the need for further orthopedic evaluation to comply with DeLuca, as noted above, further evidentiary development is required. Finally, on remand the RO requested, in a June 2003 correspondence, that the veteran identify all VA and non-VA health care providers where he received treatment for this disability. There is no evidence of record indicating that the veteran ever responded to that request. Nevertheless, since the issue is to be remanded again, the veteran should once again be given the opportunity to provide this information. Particularly, the veteran suggested in an April 1999 VA treatment note that he was then being treated by a private physician for his degenerative disc disease. As these records would be relevant in determining the severity of the veteran's service-connected post-operative residuals of a herniated disc, they should be obtained. Accordingly, the veteran's case is REMANDED to the RO for the following actions: 1. The RO should ask the appellant to identify all VA and non-VA health care providers where he has received treatment for his post-operative residuals of a herniated lumbar disc at L4-L5 since 1998. The RO should ensure that all pertinent records of private or VA treatment which are not already of record are obtained for review. The veteran should specifically be asked to identify the private physician who treated him for his low back in 1999, and all pertinent treatment records dated from 1998 to the present should be requested from this physician. 2. After completing the development sought above, the RO should make arrangements with the appropriate VA medical facility for the appellant to be afforded an orthopedic examination to determine the severity of his post-operative residuals of a herniated lumbar disc at L4-L5. All indicated tests and studies deemed necessary should be conducted. The claims folder, a copy of this remand, the former and revised rating criteria for Diagnostic Code 5293, as well as the new general rating criteria for rating diseases of the spine, along with any additional evidence obtained pursuant to the request above, should be made available to the examiner for review. Clinical findings should be elicited so that any of the three sets of rating criteria may be applied. See 38 C.F.R. § 4.71a (Diagnostic Code 5293) (2002); 38 C.F.R. § 4.71a (Diagnostic Code 5293) (2003); 38 C.F.R. § 4.71a (2004). The examiner should elicit a comprehensive history of the residuals of the veteran's herniated disc. In addition, after reviewing the veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the appellant experiences functional impairments, such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare- ups, etc., and should equate such problems to the rating criteria. (In other words, functional losses due to pain, etc. may result in disability tantamount to that contemplated by the criteria for a higher rating. If so, the orthopedic examiner should so state. If this is stated in terms of limited motion, the degree of limitation beyond what was shown clinically should be specified.) The examiner's best estimate as to the impairment caused by such functional losses should be set forth. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner should also take into account and comment on the July 2004 neurologist's opinion that the veteran's pain syndrome is most likely due to a myofascial pain syndrome. The rationale for all opinions should be explained in detail. If the examiner provides an opinion that is contrary to one already of record, the examiner should point to specific findings and/or medical authority to explain why his or her opinion differs from the opinion(s) already of record. In this regard, the examiner(s) should specifically address the findings made in the January 2000, the February 2002, and the August 2003 VA spine examinations, as well as the February 2002 and July 2004 VA neurologic examinations, and the May 2004 VA EMG examination. 3. After undertaking any other development deemed appropriate, the RO should consider the issue on appeal in light of any information or evidence received. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2004). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).

Citation Nr: 1011113 Decision Date: 03/24/10 Archive Date: 03/31/10 DOCKET NO. 05-07 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of mandible fracture. 2. Entitlement to service connection for cold and flu. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to November 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In a December 2008 Board decision is was noted that in a November 2008 brief, the Veteran's representative raised the issue of service connection for melanoma which the Veteran had mistakenly claimed as myeloma, and that because the Board did not have jurisdiction over the melanoma claim, it was referred back to the RO for appropriate action. Also, in the December 2008 Board decision the issues of service connection cold and flu and service connection for PTSD were remanded to the RO for additional evidentiary development. The December 2008 Board decision denied claims of service connection for residuals of mandible fracture, a right ankle sprain; colon polyp, status post excision; and residuals of insect bite but granted service connection for tinnitus, which was effectuated by a January 2009 rating decision that assigned an initial 10 percent disability rating effective August 23, 2004. The Veteran appealed the December 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court) which in an October 2009 Order vacated only that part of the Board decision which denied service connection for residuals of mandible fracture, and remanded that matter for compliance with a Joint Motion for Remand. A December 2009 Supplemental Statement of the Case (SSOC) addressed the claims for service connection for cold and flu and service connection for PTSD. In January 2010 a private psychiatric reported that the Veteran sustained a broken jaw in a drunken fight while in Vietnam, and which was the cause of PTSD, (in addition to having undergone sniper fire on river boat patrols). It was reported that this injury could also have caused a mild closed head injury because the Veteran had lost consciousness due to the injury. Thus, it appears that the Veteran may be seeking or wish to seek service connection for residuals of a closed head injury but it, and service connection for melanoma, have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the RO for appropriate action. The issues of service connection for residual of mandible fracture and service connection for PTSD are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT A cold during active military service was acute and transitory, resolving without chronic residual disability, and it is not shown that the Veteran had a flu during service, and chronic residuals of any inservice cold or flu are not shown. CONCLUSION OF LAW Chronic residuals of cold and flu were not incurred in or aggravated during active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify When a complete or substantially complete application for benefits is received, VA will notify the claimant of: (1) any information and medical or lay evidence needed to substantiate the claim, and (2) what portion thereof VA will obtain, and (3) what portion the claimant is to provide (Type One, Type Two, and Type Three, respectively). 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); see Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was provided with pre-adjudication VCAA notice by letter, dated in September 2004, prior to the December 2004 rating action which is appealed. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. He was also notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. As for the degree of disability assignable and effective date of the claim for service connection for cold and flu, although notice was provided in a letter dated in March 2009, the claim was subsequently readjudicated in the December 2009 SSOC. As to this, an error in failing to afford a preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication. See Mayfield v. Nicholson, 499 F.3d at 1323-24; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004). Moreover, as the claim for service connection for cold and flu is denied, no disability rating and effective date will be assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the Veteran with respect to any timing defect in the VCAA notice required under Dingess at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311, 2007 WL 1016989 (C.A. Fed. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim for service connection for cold and flu. The Veteran's service treatment records (STRs) and service personnel records are on file. Private clinical records are on file and the Veteran's VA treatment records have been obtained. The Veteran declined the opportunity to testify in support of this claim. In his August 2004 claim, the Veteran indicated that he had been treated for cold and flu by Drs. B.C. and H.K. in Westminster, South Carolina, from 1982. The RO sent a letter requesting these records to the address provided and, in response, received a letter in September 2004 stating that a search of the practice's storage facility yielded no results. However, in that letter it was indicated that Dr. H.K. was no longer associated with the practice but the name and contact phone number of another facility, which it was believed might have some of that doctor's records, was provided. Following the December 2008 Board remand of the issue, the RO sent a letter to the Veteran requesting that he execute and return the necessary authorization form to obtain the records from that facility. However, as noted in the December 2009 SSOC (a copy of which was sent to the Veteran) the Veteran never responded by executing and returning the needed authorization form. However, as also noted in the December 2009 SSOC, additional treatment records from the Anderson Community- Based Outpatient Clinic were obtained, as requested in the December 2008 Board remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998) it was held that a remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. However, the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence). Here, there has been full compliance with the remand portion of the December 2008 Board decision, pursuant to the holding in Stegall, Id. However, it is the Veteran who has not cooperated in obtaining the requested postservice private clinical records. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim. On the claim of service connection for cold and flu, a VA examination is not required in the absence of evidence of an association with an established event or injury in service. Here, there is no evidence, clinical or lay, of the current existence any possible chronic residuals of any inservice cold or flu, including no identification by the Veteran of continuing postservice symptoms of any inservice cold or flu. So VA has not conducted medical inquiry in an effort to substantiate the claim under 38 U.S.C.A. § 5103A(d) because there is no medical or lay evidence of persistent or recurrent symptoms relative to any inservice cold or flu from the time of service to the present and there is no competent evidence of a current diagnosis referable to any inservice cold or flu. In short, the evidence does not indicate that there are any chronic residuals of an inservice cold or flu which may be associated with service. Under these circumstances, a medical examination or medical opinion is not required for the service connection claim under 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any additionally available evidence for consideration in his appeal of the claim for service connection for cold and flu. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background The STRs show that in January 1968 the Veteran complained of a cold and sore throat. There was no nausea, vomiting or diarrhea. His throat was moderately red and his nasal membranes were boggy, slightly inflamed, and draining. In September 1968, while in Vietnam, it was noted that the Veteran had been struck on the right side of his face by an approximately 45 pound can of water. The right side of his face was swollen which hampered movement, and his teeth were misaligned. The impression was a possible fracture of the right mandible. He was evaluated later that day at a dental clinic. It was noted that there was no apparent fracture of the mandible and that normal tooth alignment should return when his swelling and the effects of muscle trauma, to the masseter, was relieved. Examination during the Navy reserves in September 1973 found no dental or psychiatric abnormality. In an adjunct medical history questionnaire the Veteran reported having or having had broken bones. In a letter attached to the Veteran's August 2004 original claim he stated that he had been assigned to NAVSUPPORT in DaNang, Vietnam, attached to the 3rd Marines, working as an engine or diesel mechanic on LCM8 boats. He had moved around Vietnam working on boats. He had been attacked by a drunken solider in September 1968 and sustained a broken jaw. The next day he went on sick call but only 3 weeks later was his mouth wired shut. Three weeks later he was medi-vac'd to Cam Ranh Bay for medical treatment. In letters home he had stated that he had slipped but told the truth when he returned home. Photocopies of letters written in 1968 by the Veteran to his parents are on file. In October 1968 he stated that he had a broken jaw, sustained when a 5 gallon can hit him while on a boat and it was not the result of any enemy action. He stated that he was in Cam Ranh Bay receiving treatment and was to be discharged in November. Later in October 1968 he wrote that his jaw had been broken about 3 weeks before they decided to take X-rays to see if it was broken and then he received treatment right away. They had had to remove his lower right wisdom tooth to allow the bone to heal. The fixating device on his jaw had been improperly set but when he drew this to the attention of those treating him it was reset and wired shut. A letter written in November 1968 reflects that his jaw was still in "traction." The entire time he had been in Cua Viet he had not been in any action. In a December 1968 letter he stated that his teeth were just about back to normal. In August 2004 the Veteran's mother confirmed the authenticity of the letters that the Veteran wrote home while in Vietnam. Private clinical records of Dr. Seymour reflect that in May 1991 it was reported that the Veteran had had a broken jaw during service. He had some clicking when he chewed. Attached to the VCAA notice letter of September 2004 was a questionnaire requesting specific details of the combat related incidents that the Veteran felt caused his PTSD as well any reports from private physicians, if any, who had treated him for PTSD after service. However, the Veteran did not complete and return that questionnaire and did not state that he had sought or received any postservice psychiatric treatment. Attached to the Veteran's March 2005 VA Form 9 is typed letter in which the Veteran stated that he was "not concerned at this time that service connection for flu and cold denied as never filed claim, though could be service related." While he had written his parents during service that his broken jaw had returned to normal, he had not wanted them to worry but in truth he had had discomfort ever since then and it affected his eating and speech because the jaw was not aligned properly, and it affected his appearance. When in Vietnam he had been stationed 5 miles from the DMZ, and his entire tour in Vietnam was stressful. As to PTSD, he was outraged by a variety of government actions but did not list or describe any specific incidents as being stressors. In a March 2008 statement from a private physician it was reported that the Veteran had served in Vietnam on combat boat patrols in the rivers of Vietnam and saw a lot of combat. In an attached treatment record it was reported that he had had a broken jaw in 1968 which was not treated in a timely manner, and still had jaw pain and discomfort which radiated to his ears, as well as some subjective mal- alignment of his teeth. In an April 2008 statement from a private audiologist it was noted that the Veteran reported that his tinnitus was affected by the way he touched or moved his head and jaws. In response to a March 2009 RO request for information about the Veteran's PTSD stressors as well as postservice treatment, the Veteran reported in April 2009 the had had not received timely treatment for his inservice broken jaw and had not been able to eat solid food for three weeks or more. His boat had hauled supplies from Cua Viet to Dong Ha. In a typed attachment he reported that by the 3rd week of his treatment for a broken jaw reality seemed to be slipping or becoming surreal. His mind seemed to be throbbing, expanding, and contracting because of a lack of nutrition. His mind had then traveled to the depths of Hell. He felt that this was most likely PTSD. He was not the same after his treatment for his broken jaw. His face was no longer symmetrical and he still felt the affects of the broken jaw when he ate, talked or walked. Also attached were copies of photographs taken in Vietnam. He also attached copies of documents indicating that his unit was at Cua Viet and Dong Ha to support the 3rd Marines. Also attached was information from the Internet concerning the death of a seaman in South Vietnam on September [redacted], 2968 due to non-hostile activity when the person was drowned or suffocated. VA outpatient treatment records from 2006 to 2009 show that a PTSD screen in December 2006 was negative for any history of a stressor. In May 2007 he had an upper respiratory infection. In March 2008 he wanted a CT scan for nasal polyps. Also in that month he wanted to be seen at the mental health clinic. When seen at a mental health clinic in April 2008 he again reported his outrage at the government because of Vietnam. In July 2008 he complained of chronic jaw pain and also in that month he reported that since his inservice jaw fracture he had had jaw pain and impaired speech. In July 2009 he complained of sleep disturbance due to nightmares and insomnia (but there was no description of the nightmares). The outpatient treatment records in 2008 and 2009 reflect assessments of PTSD and of PTSD traits. A January 2010 report from the Ponsett Psychiatric Group reflects that the Veteran served 15 months in Vietnam from August 1968 to November 1969 on a river supply boat that took military supplies, food and gasoline upriver. He was subjected to occasional sniper fire and "incoming" plus he was exposed to the risk of mines in the river. In September 1968 he was in a fight with a fellow serviceman. They had both been drinking. The Veteran's jaw was broken in two places. He was unable to get medical attention due to the limited number of sailors to work on his boat. Three weeks after the injury, he was finally treated, with his jaw being wired shut in a field hospital. He was medi-vac'd to Cam Ranh Bay where he spent 3 weeks on a liquid diet and the jawbone gradually healed but with a severe malocclusion, following which he had had dental problems of jaw pain, temporomandibular joint (TMJ) symptom, and problems with his bite. Daily shaving reminded him of the inservice incident and difficult convalescence. He had intrusive thought of the injury and occasional nightmares of events in Vietnam. He had symptoms of PTSD consisting of being easily startled, jumpy, and occasional difficulty sleeping. He felt guilty that other had had more severe injuries. A few findings of some depression and nervousness were noted during the interview. The physician reported that he was not sure that the Veteran's PTSD rose to the level of a compensable claim but he was convinced that the jaw injury and sequelae of a poorly managed broken jaw could be considered "combat- related" even though the injury had not been incurred in combat. Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). If some of these elements cannot be established, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 xlin@example.com. Analysis Here, there is no clinical or even lay evidence that the Veteran's inservice episode of a cold resulted in any chronic respiratory or other disorder. The recent upper respiratory infection and the recent nasal polyps are not shown in any way to be related to any inservice infection. Even assuming the Veteran had a flu during active service, there is no clinical or even lay evidence that it resulted in any chronic respiratory or other disorder. Indeed, no chronic respiratory disorder has ever been diagnosed. To the extent that the Veteran alleges the existence of such, his is not competent to render such a diagnosis or medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). That an injury or other event, e.g., an acute infection, occurred in service alone is not enough to establish service connection, there must be current disability as a result thereof. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In sum, the first element required for granting a claim of service connection, i.e., the existence of current disability, is not established because there is no evidence, medical or lay, that the Veteran now has or has ever had chronic disability due to any inservice cold or flu. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.) In the absence of proof of present disability there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328 (1997) (interpreting 38 U.S.C. § 1131 as also requiring the existence of a present disability for VA compensation purposes). See, too, Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). ORDER Service connection for cold and flu is denied. REMAND The December 2008 Board decision found that the competent medical evidence did not show a current diagnosis of residuals of mandible fracture, stating that the Veteran had not submitted evidence of current disability in the form of mandible fracture. The Joint Motion for Remand (JMR) stipulated that the December 2008 Board decision did not provide an adequate statement of reasons and bases for concluding that the duty to assist the Veteran had been met and that despite not providing the Veteran with a medical examination or obtaining a medical opinion. The JMR further noted that the Board had discounted the Veteran's statements, including to his physician, of current symptoms, e.g., his account of chronic pain, jaw misalignment, and clicking during chewing, in finding that this would not meet the requirement of competent medical evidence necessary to establish a diagnosis of residuals of mandible fracture. The JMR concluded that the Board had not sufficiently discussed the duty to assist under 38 U.S.C. § 5013(a)(d) and 38 C.F.R. § 3.159(c)(4), and whether the lay evidence rose to the "low threshold" which would require a VA examination to decide the claim, consistent with the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006). From the foregoing, it is clear that the Board must remand the claim of service connection for residuals of mandible fracture to afforded the Veteran a VA examination and obtain a nexus opinion. Also, a search for any additional STRs of treatment of the Veteran in October and November 1068 at Cam Ranh Bay should be conducted. The JMR did not reference any other potential violation of the VCAA or enabling regulations. As to the claim for service connection for PTSD, in the December 2008 Board remand a VA psychiatric examination to determine the nature and etiology of any PTSD or any other mental disability, was requested, if needed. The RO has apparently determined that there is no such need, because no VA psychiatric examination was conducted, although outpatient treatment records from a VA mental health facility have been obtained. However, since the most recent SSOC in December 2009, a January 2010 report of a private psychiatric examination has been received (the contents of which have been previously described). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A clear diagnosis of PTSD by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be proper with respect to the sufficiency of stressor(s) and adequacy of symptomatology needed to make the diagnosis. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, an opinion of a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor. Cohen, at 142, (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); and Doran v. Brown, 6 Vet. App. 283, 289 (1994)). Moreover, M21-1 provides that "[a] stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD. M21- 1, Part VI, para. 7.46(b)(2) (1995) and M21-1, Subch. XII, para. 50.45(f)(2) (1989). Cohen, at 142. This case, in part, relates to the sufficiency of the evidence with respect to corroborating the occurrence of an adequate stressor or stressors during service, to include whether the Veteran participated in combat, as opposed to merely having been present in a combat theater. When PTSD is based on in- service assault, evidence from sources other than the service records may corroborate an account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(3). Additionally, evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. Furthermore, pertinent provisions of Manual M21-1 specifically address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is a physical assault. See M21-1, Part III, Change 49 (February 1996) par. 5.14c; see also YR v. West, 11 Vet. App. 393, 399 (1998). The law is clear that VA will not deny a PTSD claim that is based on in-service assault without first advising the claimant that evidence from sources other than the Veteran's service records or that evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him/her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. As well, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that an assault occurred. 38 C.F.R. § 3.304(f)(3). Thus, this case is remanded to the RO to ensure that it has strictly complied with the above described notification requirements of 38 C.F.R. § 3.304(f)(3). However, it also appears that there is an allegation of one or more combat-related stressors. Also, the recently received VA outpatient treatment records do not contain any information describing the Veteran's inservice stressors nor has his response to the RO request in March 2009 been satisfactory. Nevertheless, further clarification is in order. However, the Veteran and his representative are notified that full cooperation is required in conjunction with the efforts to develop the claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street, if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence). The RO should contact the Veteran and request that he clarify the dates and places when in Vietnam that he experienced sniper fire, "incoming", and saw any mines in a Vietnamese river, as well as any circumstances surrounding the death of a fellow serviceman who drown on September [redacted], 1968 and how this constitute a stressor to the Veteran. He should also be informed of the means of corroborating the alleged personal assault that it is contended resulted in a mandibular fracture. Also, the Board finds that a VA examination in connection with the Veteran's PTSD claim is in order. Such examination should specifically identify the stressor(s) supporting a diagnosis of PTSD, if any. The Veteran should also be afforded a VA psychiatric examination to determine whether he now has PTSD and, if so, whether it is related to his military service in Vietnam, to include putative combat actions or any mandibular injury. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he clarify the dates and places when in Vietnam that he experienced sniper fire, "incoming", and saw any mines in a Vietnamese river, as well as any circumstances surrounding the death of a fellow serviceman who drown on September [redacted], 1968 and how this constitute a stressor to the Veteran. 2. Contact the Veteran and provide him with notice of the purpose of this remand and afford him opportunity to provide any additional specific information pertaining to alleged assault in 1968, particularly informing him of the probative value of any detailed information regarding dates, places, detailed descriptions of events, and/or identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment and any other identifying detail. The Veteran must be advised that when furnishing details of claimed stressful events, he must at a minimum specify precise dates or no more than a 60-day time period in which the alleged stressor occurred. The Veteran should also be advised that he is free to identify and/or submit other information in support of his claim. 3. Take the appropriate steps to contact the appropriate authority or source to confirm the occurrence of specific stressors as to which the Veteran has provided sufficient information. Also, a search should be conducted for records of treatment of the Veteran in October and November 1968 at Cam Ranh Bay for a mandibular fracture. A response, negative or positive, should be associated with the claims file. The RO should, as indicated, undertake follow- up through appropriate channels to obtain verification of the Veteran's claimed combat stressor(s). 4. Following the above, the RO must make a specific determination as to whether each claimed stressor is sufficiently verified, based on a review of the entire evidentiary record. All credibility issues related to this matter should be addressed at that time. 5. If and only if any stressor is determined to be verified, and if otherwise indicated by the record, arrange for the Veteran to be afforded a VA psychiatric examination. The claims folder must be provided to the examiner and review of such should be reflected in the completed examination report. All necessary tests and studies should be accomplished. It must be specified for the VA examiner the stressor(s) that are determined to be corroborated by the evidence of record and instruct the examiner that only those events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms, and whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The examiner should specifically confirm or refute whether the Veteran meets the diagnostic criteria for a diagnosis of PTSD and identify any other existing psychiatric disabilities. The examiner should furnish an opinion as to whether it is more likely than not or less likely than not that each currently diagnosed psychiatric disability, to include PTSD, is etiologically related to the Veteran's active service. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If PTSD is diagnosed, the examiner should clearly identify the claimed events that are considered stressors supporting the diagnosis, and the examiner should fully explain why such stressors are considered sufficient under the standards of the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). A complete rationale for any opinion expressed must be provided. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and must provide the rationale therefor. 6. Afford the Veteran a comprehensive examination to determine whether he now has residuals of a mandible fracture. The examiner must have access to and review the claims folders for the Veteran's pertinent medical history. All necessary testing should be done and the examiner should review the results of any testing prior to completion of the examination report. The examiner is asked to express an opinion as to whether the Veteran now has residuals of a mandible fracture and, if so, whether they are at least as likely as not related to the Veteran's period of service, to including any inservice trauma. In this connection, regardless of whether there is confirmation in the service treatment records of inservice trauma to the Veteran's mandible, the examiner should render an opinion as to whether it is at least as likely as not that any current disability(ies) of the mandible is/are consistent with the Veteran's statements regarding inservice mandibular injury, particularly in light of the Veteran's postservice complaints of (a) pain, (b) jaw misalignment, (c) clicking during chewing, (d) TMJ symptoms, and (e) facial asymmetry. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and must provide the rationale therefor. 7. To help avoid future remand, VA must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After the above development has been completed, readjudicate the claims. If the benefits sought remain denied, furnish the Veteran, and representative, an SSOC and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

In the year 1909 the plaintiff was in the employ of the defendant, a member of what was known as the "scrap gang," and a part of his duty was to "strip" iron, which was done by using an iron chisel with a handle to it and a hammer. The defendant company furnished a number of chisels in a box to which the employees would resort to select a chisel when needed from those placed therein by the company for use by the "scrap gang." On the 3rd day of September, 1909, Pope was engaged in the yards at Tyler, Texas, "stripping" iron, which was done by two men, Pope was wielding the hammer while Maddox held the chisel in place. The head of the chisel was battered so that a sliver flew off and struck Pope in the eye, destroying the sight. Pope selected the chisel from the box and saw that the head of it was battered, but it was the best *Page 54 in the box and he thought he could use it safely. There were other places where Pope could have secured a better chisel if he had applied for it. We will assume that he knew that he could have secured a safe chisel, although the evidence is not clear on that point. This statement is sufficient for the disposition of the case. The court charged the jury as follows: "You are charged that although you may believe from the evidence that there were no reasonably safe chisels in the tool-box at the time plaintiff selected the chisel that he was working with when injured, yet if you believe that plaintiff could have procured a reasonably safe chisel at the blacksmith shop of his own accord, or could have procured a reasonably safe chisel from the storeroom on the requisition of the foreman, and that plaintiff knew or by the exercise of ordinary care in the performance of his work must have necessarily have known that he could have procured such chisel at the blacksmith shop or from the storeroom as hereinbefore stated, then it will be your duty to return a verdict for the defendant in this case." The undisputed evidence in this case shows that the chisel which plaintiff used was defective in the condition of its head, being battered, and that the defendant in error placed that chisel with many others in a box to which the "scrap gang" would resort when a chisel was needed. Pope went to the box and selected that one used. The injury was caused by a sliver which under the blows of the hammer flew off the battered head and struck plaintiff's eye. Two questions, when correctly answered, determine the rights and liabilities of the parties: (1) Was the defendant guilty of negligence in furnishing to its employees the chisel in its battered condition and in the manner it did by placing it in the box containing other chisels for the employees to select from? If not, the cast must fail. If defendant was negligent then these questions arise: First, did Pope use ordinary care in selecting the chisel from the box; and, second, would a man of ordinary prudence under all the circumstances have used the chisel in its then condition? If either question be answered in the negative the plaintiff can not recover. Each of the questions stated above were issues of fact to be submitted to the jury, which the trial court did not do. The charge assumed that it was the duty of Pope to resort to other places in order to secure a suitable tool. The fact that Pope might have procured a safe tool at another place might be an important fact for the jury in deciding the question of his negligence in taking that one he did select. But it was not negligence as a matter of law that he did not apply at other places. We deem it proper here to say that in the case of Gulf, C. S.F.R. Co. v. Larkin, 98 Tex. 225, the only question was whether a lantern was such a simple instrument as a matter of law that the company was not required to inspect it. Due care had been exercised in selecting it, and this court held that the railroad company had discharged its duty. The difference in the effect of the use of a lantern, and the use of such instrument as a chisel for cutting iron or steel, is a matter of common knowledge and requires a court in the discharge of its duty to place them in different classes. *Page 55 The lantern may well be denominated simple, within the meaning of the law, and the chisel may or may not be simple; therefore, it may be a question of fact for the jury, or of law to be decided by the court. The character of the chisel used in this case was a question of fact for the jury. Johnson v. Missouri P. Ry. Co., 96 Missouri, 340, 9 Am. St. Rep., 351. We refer to the elaborate note to Vanderpool v. Partridge, 13 L.R.A. (N.S.), 668. In the charge given to the jury the trial court assumed that as a matter of law it was the duty of Pope to resort to the shop and to the store to procure a suitable chisel, and that failing to do so he assumed the risk of using the one chosen by him. This was error, the question should have been submitted to the jury, whether the circumstances showed that plaintiff was guilty of negligence which cast the risk upon him. If the facts were such that the plaintiff would ordinarily assume the risk of using the defective chisel, then the court in submitting that issue to the jury should have informed them that the defense would not prevail if under the facts a man of ordinary prudence would have continued in the use of the tool. Article 6645, Revised Statutes, 1911, reads: "Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the servant or employee give notice of the defect as provided in subdivision 1 of this article." If the facts shall show that the railroad company was negligent in furnishing the chisel, therefore liable for the injury, and that Pope was guilty of negligence which contributed to the injury, the plaintiff would nevertheless be entitled to recover his damages, "but the damages should be diminished by the jury in proportion to the amount of negligence attributable" to Pope. Art. 6649, Rev. Stats., 1911. If the railroad company was negligent, so as to make it liable, it can not escape liability under the law because of the negligence of plaintiff, but can have the damages reduced; nor will the assumption of the risk by Pope defeat the action if it appear that a man of ordinary prudence would have used the chisel. For the error in the charge given by the trial court the judgments of the Court of Civil Appeals and of the District Court are reversed and the cause is remanded to the District Court of Smith County for trial. It is further ordered that the defendant in error pay the costs of this court and the Court of Civil Appeals. Reversed and remanded. *Page 56

Exhibit FORM OF RIGHTS CERTIFICATE Certificate No. R- Rights NOT EXERCISABLE AFTER APRIL 2, 2018, OR EARLIER IF TERMINATED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.0001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH RIGHTS AGREEMENT.]1 RIGHTS CERTIFICATE This certifies that or registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Preferred Shares Rights Agreement, dated as of April 2, 2008 (the “RIGHTS AGREEMENT”), between Entertainment Distribution Company, Inc., a Delaware corporation (the “COMPANY”), and American Stock Transfer & Trust Company (the “RIGHTS AGENT”), to purchase from the Company at any time after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New York, New York time, on the Expiration Date (as such term is defined in the Rights Agreement), at the office of the Rights Agent designated for such purpose, or at the office of its successor as Rights Agent, one one-hundredth (1/100) of a fully paid non-assessable share of Series A Junior Participating Preferred Stock (the “PREFERRED SHARES”), of the Company, at a purchase price of $3.50 per one-hundredth of a Preferred Share (the “PURCHASE PRICE”), upon presentation and surrender of this Rights Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of Rights evidenced by this Rights Certificate (and the number of one-hundredths of a Preferred Share which may be purchased upon exercise hereof) set forth above, are the number and Purchase Price as of April 14, 2008, based on the Preferred Shares as constituted at such date. As provided in the Rights Agreement, the Purchase Price and the number and kind of Preferred Shares or other securities which may be purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment upon the happening of certain events. 1 The portion of the legend in brackets shall be inserted only if applicable and if so used, shall replace the preceding sentence. This Rights Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Rights Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights under the specific circumstances set forth in the Rights Agreement.

Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 1 of 14 Cal. Assembly Comm. on Commc’ns & Conveyance, SB 822 Analysis (2018)  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 2 of 14 SB 822 Page 1 Date of Hearing: August 22, 2018 ASSEMBLY COMMITTEE ON COMMUNICATIONS AND CONVEYANCE Miguel Santiago, Chair SB 822 (Wiener) – As Amended August 20, 2018 SENATE VOTE: 23-12 SUBJECT: Communications: broadband Internet access service SUMMARY: Establishes net neutrality rules by prohibiting Internet Service providers (ISPs) from engaging in activities that interfere with a user’s ability to access content on the internet. Specifically, this bill: 1) Makes it unlawful for a fixed and mobile ISP, insofar as the provider is engaged in providing fixed broadband Internet access service (BIAS), to engage in any of the following activities: a) Blocking lawful content, applications, services, or nonharmful devices, subject to reasonable network management; b) Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, subject to reasonable network management; c) Requiring consideration, monetary or otherwise, from an edge provider, including, but not limited to, in exchange for any of the following: i) Delivering Internet traffic to, and carrying Internet traffic from, the ISP’s end users; ii) Avoiding having the edge provider’s content, application, service, or nonharmful device blocked from reaching the ISP’s end users; or, iii) Avoiding having the edge provider’s content, application, service, or nonharmful device impaired or degraded; d) Engaging in paid prioritization; e) Engaging in zero-rating in exchange for consideration, monetary or otherwise, from a third party; f) Zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category; g) Unreasonably interfering with, or unreasonably disadvantaging, either an end user’s ability to select, access, and use BIAS or the lawful Internet content, applications, services, or devices of the end user’s choice, or an edge provider’s ability to make lawful content, applications, services, or devices available to end users. Specifies that reasonable network management is not a violation, as specified;  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 3 of 14 SB 822 Page 2 a) Specifies that zero-rating Internet traffic in application-agnostic ways is not a violation, as specified, provided that no consideration, monetary or otherwise, is provided by any third party in exchange for the ISP’s decision whether to zero-rate traffic; h) Failing to publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its BIAS sufficient for consumers to make informed choices regarding use of those services and for content, application, service, and device providers to develop, market, and maintain Internet offerings; and, i) Engaging in practices, including, but not limited to, agreements, with respect to, related to, or in connection with, ISP traffic exchange that have the purpose or effect of evading specified prohibitions. Specifies that nothing in the specified provision shall be construed to prohibit ISPs from entering into ISP traffic exchange agreements that do not evade specified prohibitions. 2) Prohibits a fixed and mobile ISP to offer or provide services other than BIAS that are delivered over the same last-mile connection as the BIAS, if those services satisfy either of the following conditions: a) They have the purpose or effect of evading specified prohibitions; or, b) They negatively affect the performance of BIAS. 3) Specifies that nothing in the specified provision shall be construed to prohibit a fixed or mobile ISP from offering or providing services other than BIAS that are delivered over the same last-mile connection as the BIAS and do not violate specified provisions. 4) Specifies that nothing in this bill supersedes any obligation or authorization a fixed or mobile ISP may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so. 5) Specifies that nothing in this bill prohibits reasonable efforts by a fixed or mobile ISP to address copyright infringement or other unlawful activity. 6) Defines the following terms: a) “Application-agnostic” means not differentiating on the basis of source, destination, Internet content, application, service, or device, or class of Internet content, application, service, or device. b) “Broadband Internet access service” means a mass-market retail service by wire or radio provided to customers in California that provides the capability to transmit data to, and receive data from, all or substantially all Internet endpoints, including, but not limited to, any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. “Broadband Internet access service” also encompasses any service provided to customers in California that provides a  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 4 of 14 SB 822 Page 3 functional equivalent of that service or that is used to evade the protections set forth in this title. c) “Class of Internet content, application, service, or device” means Internet content, or a group of Internet applications, services, or devices, sharing a common characteristic, including, but not limited to, sharing the same source or destination, belonging to the same type of content, application, service, or device, using the same application- or transport-layer protocol, or having similar technical characteristics, including, but not limited to, the size, sequencing, or timing of packets, or sensitivity to delay. d) “Content, applications, or services” means all Internet traffic transmitted to or from end users of a BIAS, including, but not limited to, traffic that may not fit clearly into any of these categories. e) “Edge provider” means any individual or entity that provides any content, application, or service over the Internet, and any individual or entity that provides a device used for accessing any content, application, or service over the Internet. f) “End user” means any individual or entity that uses a BIAS. g) “Enterprise service offering” means an offering to larger organizations through customized or individually negotiated arrangements or special access services. h) “Fixed broadband Internet access service” means a BIAS that serves end users primarily at fixed endpoints using stationary equipment. Fixed BIAS includes, but is not limited to, fixed wireless services including, but not limited to, fixed unlicensed wireless services, and fixed satellite services. i) “Fixed Internet service provider” means a business that provides fixed BIAS to an individual, corporation, government, or other customer in California. j) “Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device” means impairing or degrading any of the following: (1) particular content, applications, or services; (2) particular classes of content, applications, or services; (3) lawful Internet traffic to particular nonharmful devices; or (4) lawful Internet traffic to particular classes of nonharmful devices. The term includes, without limitation, differentiating, positively or negatively, between any of the following: (1) particular content, applications, or services; (2) particular classes of content, applications, or services; (3) lawful Internet traffic to particular nonharmful devices; or (4) lawful Internet traffic to particular classes of nonharmful devices. k) “Internet service provider” means a business that provides BIAS to an individual, corporation, government, or other customer in California. l) “ISP traffic exchange” means the exchange of Internet traffic destined for, or originating from, an ISP’s end users between the ISP’s network and another individual or entity, including, but not limited to, an edge provider, content delivery network, or other network operator.  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 5 of 14 SB 822 Page 4 m) “ISP traffic exchange agreement” means an agreement between an ISP and another individual or entity, including, but not limited to, an edge provider, content delivery network, or other network operator, to exchange Internet traffic destined for, or originating from, an ISP’s end users between the ISP’s network and the other individual or entity. n) “Mass market” service means a service marketed and sold on a standardized basis to residential customers, small businesses, and other customers, including, but not limited to, schools, institutions of higher learning, and libraries. “Mass market” services also include BIAS purchased with support of the E-rate and Rural Health Care programs and similar programs at the federal and state level, regardless of whether they are customized or individually negotiated, as well as any BIAS offered using networks supported by the Connect America Fund or similar programs at the federal and state level. “Mass market” service does not include enterprise service offerings. o) “Mobile broadband Internet access service” means a BIAS that serves end users primarily using mobile stations. Mobile BIAS includes, but is not limited to, BIAS that use smartphones or mobile-network-enabled tablets as the primary endpoints for connection to the Internet, as well as mobile satellite broadband services. p) “Mobile Internet service provider” means a business that provides mobile BIAS to an individual, corporation, government, or other customer in California. q) “Mobile station” means a radio communication station capable of being moved and which ordinarily does move. r) “Paid prioritization” means the management of an ISP’s network to directly or indirectly favor some traffic over other traffic, including, but not limited to, through the use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (1) in exchange for consideration, monetary or otherwise, from a third party, or (2) to benefit an affiliated entity. s) “Reasonable network management” means a network management practice that is reasonable. A network management practice is a practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for, and tailored to, achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the BIAS, and is as application-agnostic as possible. t) “Zero-rating” means exempting some Internet traffic from a customer’s data usage allowance. 7) Makes the following findings and declarations: a) This act is adopted pursuant to the police power inherent in the State of California to protect and promote the safety, life, public health, public convenience, general prosperity, and well-being of society, and the welfare of the state’s population and economy, that are increasingly dependent on an open and neutral Internet;  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 6 of 14 SB 822 Page 5 b) Almost every sector of California’s economy, democracy, and society is dependent on the open and neutral Internet that supports vital functions regulated under the police power of the state, including, but not limited to, each of the following: i) Police and emergency services; ii) Health and safety services and infrastructure; iii) Utility services and infrastructure; iv) Transportation infrastructure and services, and the expansion of zero- and low- emission transportation options; v) Government services, voting, and democratic decision-making processes; vi) Education; vii) Business and economic activity; viii) Environmental monitoring and protection, and achievement of state environmental goals; and, ix) Land use regulation. c) This act shall be known, and may be cited, as the California Internet Consumer Protection and Net Neutrality Act of 2018. EXISTING LAW: 1) Specifies policies for telecommunications in California including; to promote lower prices, broader consumer choice, and avoidance of anticompetitive conduct; to remove the barriers to open and competitive markets and promote fair product and price competition in a way that encourages greater efficiency, lower prices, and more consumer choice; and to encourage fair treatment of consumers through provision of sufficient information for making informed choices, establishment of reasonable service quality standards, and establishment of processes for equitable resolution of billing and service problems. (Public Utilities Code (PUC) Section 709) 2) Prohibits the California Public Utilities Commission (CPUC) from exercising regulatory jurisdiction or control over Voice over Internet Protocol and Internet Protocol enabled services except as required or expressly delegated by federal law or expressly directed to do so by statute, as specified. (PUC Section 710) 3) Establishes the Digital Infrastructure and Video Compeition Act of 2006 which specifies that the CPUC is the sole franchising authority for a state franchise to provide video service, as specified. (PUC Section 5800 et seq.)  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 7 of 14 SB 822 Page 6 4) Defines unfair competition to mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited, as specified. (Business and Professions Code (BPC) Section 17200) 5) Specifies that any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction, as specified. (BPC Section 17203) 6) Authorizes actions for relief provisions to be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or a district attorney or by a county, as specified, as a result of the unfair completion. (BPC Section 17204) 7) Prohibits the use of untrue or misleading advertisements by any person, firm, corporation or association selling a product or service, as specified. (BPC Section 17500) FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS: 1) Authors Statement: According to the author, “As of June 11 th , 2018 the federal government under Donald Trump’s FCC has abandoned net neutrality protections and abdicated it’s responsibility to protect all Americans. When the federal government decides to walk away from this duty and its authority to regulate this industry, it is up to the states to protect their residents. Senate Bill 822 steps in and puts California at the national forefront of ensuring an open internet. It establishes comprehensive and enforceable net neutrality standards to ensure that all California residents have the right to choose whether, when, and for what purpose they use the internet. SB 822 stands for the basic proposition that the role of internet service providers is to provide neutral access to the internet, not to pick winners and losers by deciding (based on financial payments or otherwise) which websites or applications will be easy or hard to access, which will have fast or slow access, and which will be blocked entirely.” 2) Background: There are a number of federal and state agencies that play a role in the regulation and enforcement of communications-related services including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the CPUC. The FCC is an independent federal agency overseen by Congress to regulate interstate and international communications by radio, television, wire, satellite and cable in the United States. The FCC is tasked with promoting the development of competitive networks, as well as ensuring universal service, consumer protection, public safety, and national security. In addition, the FTC is an independent federal agency tasked with promoting consumer protection and preventing anticompetitive business practices. The FTC enforces antitrust laws, and protects consumers by stopping unfair, deceptive or fraudulent practices in the marketplace. In California, the CPUC regulates the telecommunications industry by developing and implementing policies to ensure fair, affordable universal access to necessary services, developing rules and regulatory tools, removing barriers that prevent a competitive market, and reducing or eliminating burdensome regulations.  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 8 of 14 SB 822 Page 7 3) Net Neutrality & the Internet: There are several major players in the operation of the Internet for data to be delivered from one point to another. Edge providers, such as Amazon, Google, and Facebook, develop and provide content, services, and applications over the Internet. End users are internet customers that consume content from edge providers. In order for products to be delivered from an edge provider to an end user, the product travels through backbone networks which are capable of transmitting vast amounts of data. End users and edge providers typically connect to these backbone networks through local ISPs, such as AT&T, Comcast, or Verizon. Such ISPs serve as the gatekeepers and provide the “on-ramp” to the internet. Net neutrality is the principle that ISPs should not discriminate against legal content and applications, by charging edge providers different delivery speeds to deliver their content. Hence, ISPs cannot block, throttle, or create special “fast lanes” for certain content. Net neutrality rules serve the purpose of maintaining open access to the internet and limited the degree to which ISPs can interfere with a customer’s ability to access legal content on the internet. It can also serve to promote greater competition between content providers by limiting the degree in which better resourced companies can pay to have their content prioritized and distributed to consumers at optimal speeds. Maintaining competition in the internet marketplace provides greater choices and reduced cost to consumers and new services entering the marketplace. 4) Bright-line Rules and the 2015 Open Internet Order: After a series of court cases in which the FCC attempted to enforce net neutrality rules were overturned, in May 2014 the FCC began a rulemaking to respond to the lack of conduct-based rules to protect and promote an open internet. In February 2015, the FCC adopted the Open Internet Order which established three “bright-line” rules banning certain practices that the FCC considers to harm open access to the Internet. The bright-line rules include: a) No Blocking: ISPs may not block access to legal content, applications, services, or non- harmful devices; b) No Throttling: ISPs may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and, c) No Paid Prioritization: ISPs may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind. In addition, recognizing that there may exist other current or future practices that cause the type of harms the bright-line rules are intended to address, the 2015 Open Internet Order also included a no unreasonable interference or unreasonable disadvantage Standard for Internet Conduct rule. The Internet Conduct Standard servers as a catch-all by prohibiting practices that unreasonably interferes with, or unreasonably disadvantages, an end users ability to access, or an edge providers ability to deliver, content over the internet. Furthermore, the Order also reaffirmed the importance of ensuring transparency and adopted enhanced transparency rules so that consumers would have accurate information sufficient for them to make informed choices of available services. Within the FCC’s 2015 Open Internet rules included provisions to reclassify ISPs from an “information service” under Title I of the Telecommunications Act of 1996 (the Act), to a  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 9 of 14 SB 822 Page 8 “telecommunications service” under Title II of the Act. This would allow the FCC to regulate ISPs similar to traditional public utilities, which may include rate of return regulation. However, when the FCC adopted the 2015 Open Internet rules it specified that certain provisions of Title II would not apply to broadband services. Proponents of net neutrality argue that the FCC needs to reclassify ISPs as common carriers (e.g. a private company that is required to sell their services to everyone under the same terms) under Title II of the Act, in order to prevent anticompetitive behaviors. While opponents argue that the FTC already has the authority to prevent anticompetitive business practices and that Title II is an archaic provision created to regulate telecommunications services long before the Internet existed. 5) 2017 Restoring Internet Freedom Order & State Response: In December 2017, following the election of President Trump, the FCC adopted the Restoring Internet Freedom Order which repealed the 2015 Open Internet Order. The new FCC argued that net neutrality rules were unnecessary because ISPs have publicly stated their opposition to violating such principles, and if an ISP were to engage in such activities, consumer expectations, market incentives, and the deterrent threat of enforcement actions by antitrust and consumer protection agencies, such as the FTC, will constrain such practices ex ante. To enact such changes the FCC reclassified ISPs under Title I of the Act and asserted significant preemption over state and local regulations, and laws. In June 2018, the repeal took effect. In response to the 2017 Restoring Internet Freedom Order, Legislators in 29 states have introduced over 65 bills requiring ISPs to ensure various net neutrality principles. In 13 states and the District of Columbia, 23 resolutions have been introduced expressing opposition to the FCCs repeal of net neutrality rules and urging the U.S. Congress to reinstate and preserve net neutrality. In California, the Legislature passed AJR 7 (Mullin) Chapter 151, Statutes of 2017, which urged the President and Members of Congress to continue to protect net neutrality, open Internet access, the federal Lifeline program, and the E-rate program. Currently, Governors in six states have signed executive orders and three states have enacted net neutrality legislation, including Oregon, Vermont, and Washington. Legislation introduced typically includes one or more of the following:  Prohibiting blocking, throttling and paid prioritization of internet traffic, usually by invoking state consumer protection laws;  Requiring ISPs to be transparent about their network management practices; or,  Requiring state contractors for ISP service to abide by net neutrality rules. 6) 2015 Open Internet Final Rules vs. Order: The 2015 Open Internet Order included with it prescribed final rules, as well as the attached larger report which includes debates on specific issues, guidance and elaborations, and the FCC assertions and expectations. The mere assertion of jurisdiction over such matters was enough to serve as a deterrent for ISPs to avoid violations of the prescribed final rules. Recognizing competing narratives, the FCC opted to prescribe rules for some issues while taking a case-by-case approach on others. The FCC did however stipulate that it could enforce other violations under one of the bright-line rules or the Internet Conduct Standard if it does have the effect of circumventing the intent of the prescribed rules. However, there are  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 10 of 14 SB 822 Page 9 always inherent difficulties when trying to implement a federal regulation into state law. Absent placing the final rules under a comparable state agency that has the expertise to prescribe additional regulations to conform to the Order, significant details may be necessary to ensure that the Attorney General has the additional clarity necessary to enforce such provisions in litigation. This bill seeks to codify the prescribed rules and provide additional clarity by establishing additional bright-line rules that prohibit preferential treatment to some services but not others, including prohibiting ISPs from charging website fees for access to users and incorporating net-neutrality protections at the point of interconnection. The bill seeks to capture the intent of the Order by prescribing additional provisions based on the narratives that were debated and the FCC’s assertions and expectations. Interconnection: The connection points between and among the various groups that allows for the flow of information through the internet have many names: peering, transit, proxy services, interconnection, or traffic exchange. On the one hand some edge and transit providers assert that large ISPs are creating artificial congestion by refusing to upgrade interconnection capacity at their network entrance points, thus forcing edge providers to agree to paid peering arrangements. On the other hand, large ISPs assert that edge providers are imposing a cost on ISPs who must constantly upgrade their infrastructure to keep up with the demand, especially as the demand for products that require large quantity of data such as online streaming services continue to increase. While the FCC opted to adopt a case-by-case approach in dealing with interconnection agreements, this bill prohibits an ISP from engaging in practices that evade net neutrality protections at the point of interconnection. The bill does not prohibit interconnection agreements, but seeks to ensure that net neutrality protections are not circumvented and are applied throughout the Internet highway. Zero-Rating: Sponsored data plans, sometimes called zero-rating, allows ISPs to exclude certain edge provider content from end user’s data usage allowances. The Order states that on the one hand, evidence in the record suggests that these business models may in some instances provide benefits to consumers, with particular reference to their use in the provision of mobile service. On the other hand, some commenters strongly oppose sponsored data plans, arguing that the power to exempt selective services from data caps seriously distort competition, favors companies with deepest pockets, and prevents consumers from exercising control over what they are able to access on the Internet, again with specific reference to mobile services. The FCC also opted to adopt a case-by-case approach to zero-rating, but specified that it would assess such practices under the Internet Conduct Standard. According to the author, the FCC was preparing to enforce anti-competitive zero-rating plans before it reversed course following the 2016 election. This bill prohibits an ISP from zero-rating some internet content, applications, services or devices in a category, but not the entire category. The bill allows an ISP to zero-rate in application-agnostic ways, provide that no consideration, monetary or otherwise, is provide by any third party in exchange for the provider’s decision whether to zero-rate traffic.  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 11 of 14 SB 822 Page 10 7) Arguments in Support: According to the ACLU of California, “Strong, enforceable net neutrality provisions ensure an open Internet for all Californians, free from interference by ISPs that would otherwise be empowered to hinder competition and limit choices. Net neutrality is the simple principle that ISP customers, not the ISP itself, should choose what apps, services, and websites they want to use. It enables competition by ensuring that small start-ups have a level playing field with incumbent services with deep pockets. It prevents ISPs from choosing winners and losers online based on their own interests. And it allows marginalized voices, who often have the fewest resources to ‘pay to play,’ to leverage the Internet to build communities and create societal change.” 8) Arguments in Opposition: According to a coalition of industry groups, “Despite characterizations that SB 822 is intended to align with the FCC’s 2015 Open Internet Order, this legislation still establishes requirements that go well beyond the Order’s net neutrality principles. The amended bill continues to create policies that will have negative impacts on both investment and consumers […] The uncertainty, conflicts, and confusion caused by SB 822 would harm consumers and stifle innovation in California’s broadband infrastructure. In addition, such unpredictability raises the cost of compliance for all ISPs, regardless of size, and will likely have a negative effect on consumers, including public agencies. 9) Related Legislation: AB 1999 (Chau) of 2018 establishes net neutrality rules for local agencies that provide broadband services and expands the types of local agencies that may provide broadband infrastructure and/or services. Status: Pending on the Senate Floor. SB 460 (De Leon) of 2018 prohibits a state agency from contracting with an ISP for the provision of BIAS unless the ISP certifies in writing that it is in full compliance with, and the service provided to the state agency is rendered consistent with, specified net neutrality rules. Status: Pending in the Assembly Communications and Conveyance Committee. 10) Previous Legislation: AJR 7 (Mullin) of 2017 urged the President of the United States and Members of the United States Congress to continue to protect net neutrality, open Internet access, the federal Lifeline program, and the E-rate program. Status: Chaptered by the Secretary of State, Resolution Chapter 151, Statutes of 2017. REGISTERED SUPPORT / OPPOSITION: Support Access Humboldt ACLU of California ADT Security Services California Association of Competitive Telecommunications Companies California Association of Realtors California Clean Money Campaign California Common Cause CallFire CALPIRG Center for Media Justice Color of Change  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 12 of 14 SB 822 Page 11 Communications Workers of America, District 9 Computer-Using Educators Consumer Federation of California Consumer Union Contextly Electronic Frontier Foundation Engine Etsy Eventbrite Expa Fight for the Future Founder Academy Foursquare GitHub Greenlining Institute Gusto Hellosign Honorable Dave Jones, State Insurance Commissioner Indivisible CA: StateStrong Mapbox Media Alliance Medium New America’s Open Technology Institute NextGen California Oakland Privacy Patreon Placer Independent Resource Services Public Knowledge Reddit Sonos The Utility Reform Network Twilio Vimeo Vivid Seats Voices for Progress Writers Guild of America West Numerous Individuals Opposition 100 Black Men of Long Beach Actiontec Electronics Affordable Living for the Aging African American Male Education Network and Development Organization Alhambra Chamber of Commerce American Legion Post 290 Asian Pacific Islander American Public Affairs Association – Greater Sacramento Asian Pacific Islander American Public Affairs Association – Solano County Asian Resources Inc.  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 13 of 14 SB 822 Page 12 AT&T Athletes and Entertainers for Change Brotherhood Crusade Burbank Chamber of Commerce CalCom California Asian Pacific Chamber of Commerce California Cable & Telecommunications Association California Chamber of Commerce California Hispanic Chamber of Commerce California League of United Latin American Citizens California Manufacturers & Technology Association California State Conference of the NAACP CenturyLink Chinese American Association of Solano County Civil Justice Association of California Community Women Vital Voices CompTIA Concerned Citizens Community Involvement Congress of California Seniors CONNECT Consolidated Communications Inc. CTIA East Bay Leadership Council Frontier Communications Gamma Zeta Boule Foundation Greater Coachella Valley Chamber of Commerce Greater Los Angeles African American Chamber of Commerce Greater Riverside Chamber of Commerce Inglewood / South Bay NAACP Inland Empire Economic Partnership Janet Goeske Foundation Korean American Central Chamber of Commerce Korean American Seniors Association of Orange County La Canada Flintridge Chamber of Commerce and Community Association Los Angeles African American Women’s Public Policy Institute Los Angeles NAACP Marjaree Mason Center Mexican American Opportunity Foundation Monterey County Business Council Monterey County Hospitality Association Mother Lode Rehabilitation Enterprises Inc. Music Changing Lives NAACP – Venture County National Asian American Coalition National Diversity Coalition Oceanside Chamber of Commerce Orange County Business Council Organization of Chinese Americans – Sacramento Organization of Chinese Americans – San Mateo County  Case 2:18-cv-02660-JAM-DB Document 2-4 Filed 09/30/18 Page 14 of 14 SB 822 Page 13 Organization of Chinese Americans – Silicon Valley Pasadena Chamber of Commerce PulsePoint Foundation Sacramento Asian Pacific Chamber of Commerce Sacramento Black Chamber of Commerce Sacramento Metro Chamber San Diego Regional Chamber of Commerce San Gabriel Valley Economic Partnership San Marcos Chamber of Commerce San Ysidro Chamber of Commerce Solano Community College Educational Foundation Sprint T-Mobile Tracefone Tulare Kings Hispanic Chamber of Commerce Valley Industry and Commerce Association Verizon Vietnamese American Chamber of Commerce Analysis Prepared by: Edmond Cheung / C. & C. / 956.981.7461 

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 135 DECISION. {¶ 1} Defendant-appellant, Cornelius Brandon Ritze, appeals a conviction for driving under the influence of alcohol pursuant to R.C.4511.19(A)(1). He *Page 136 presents six assignments of error for review. We find that two of his assignments of error have merit, and we, therefore, reverse his conviction. {¶ 2} In his first assignment of error, Ritze contends that the trial court improperly held that previously suppressed evidence would be admissible if Ritze testified as to his lack of impairment. He argues that this holding denied him the rights to due process and a fair trial. In his second assignment of error, he contends that the trial court erred in denying his motion for a new trial on the grounds that he was denied a fair trial due to the court's erroneous evidentiary ruling. We find these assignments of error to be well taken. {¶ 3} The record shows that the trial court granted Ritze's motion to suppress any testimony relating to field sobriety tests because the arresting officer did not strictly comply with standardized testing procedures, as required by State v. Homan, 89 Ohio St. 3d 421,2000-Ohio-212, 732 N.E.2d 952. Following a bench trial at which Ritze did not testify, the trial court found him guilty. {¶ 4} Subsequently, Ritze filed a motion for a new trial. In an affidavit accompanying the motion, Ritze's counsel stated that (1) he had called Ritze as a witness in his case-in-chief; (2) before Ritze took the witness stand, the trial court called for a hearing with counsel in chambers; (3) during that in-chambers conference, the court ruled that if Ritze testified during either direct or cross-examination about his lack of impairment, the court would permit the state to introduce the previously suppressed evidence of the field sobriety tests; (4) counsel protested that this ruling was not correct, and the state said that it was unaware of any basis for this ruling, but the court refused to change it and cautioned counsel against calling Ritze as a witness; (5) as a result of that ruling, and for no other reason, counsel did not call Ritze as a witness, and (6) Ritze's testimony would have rebutted the state's material evidence. {¶ 5} At a hearing on the motion for a new trial, the trial court stated that it did not "make any ruling on any evidential [sic] matters regarding what this Court would allow by way of testimony or rebuttal if your client did testify." It went on to state, "What this court did was, when you called your client to the stand, I called the lawyers to side bar to confer, upon which time we went into chambers, and in chambers this Court conveyed to counsel, both the defendant and the State, that if your client was going to testify, and if he put at issue any level of intoxication, that this Court had the feeling that or gave an indication that this Court may allow any rebuttal testimony which would include any testimony that was excluded in the motion to suppress. And upon my indication, then it was left up to counsel to decide whether or not to put his client on the stand to testify, and what questions would be asked." The court then overruled the motion for a new trial. *Page 137 {¶ 6} A court may grant a new trial due to an "[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court" that prevented the defendant from having a fair trial. Crim.R. 33(A)(1). The decision whether to grant a new trial lies within the trial court's discretion. State v. Schiebel (1990),55 Ohio St. 3d 71, 564 N.E.2d 54, paragraph one of the syllabus. State v.Shepard (1983), 13 Ohio App. 3d 117, 119, 468 N.E.2d 380. {¶ 7} The state may use illegally obtained evidence to impeach the defendant's credibility even though it is inadmissible in the state's case-in-chief. State v. Havens (1980), 446 U.S. 620, 624-628,100 S. Ct. 1912; Walder v. United States (1954), 347 U.S. 62, 64-66, 74 S. Ct. 354;State v. Butler (1969), 19 Ohio St. 2d 55, 59-60, 249 N.E.2d 818. Evid.R. 613(C) allows for impeachment of a witness by evidence of prior inconsistent conduct. But the evidence must satisfy certain foundational requirements before it is admissible. See State v. Bowman (2001),144 Ohio App. 3d 179, 186-187, 759 N.E.2d 856; Basset v. Apex Intl. Corp. (Aug. 10, 1991), 1st Dist. No. C-000384; State v. Wright (Aug. 15, 1996), 7th Dist. No. 94-J-33. Generally, the defendant must testify to one set of circumstances. Then the prosecution may attempt to impeach the defendant's testimony through the use of self-contradiction. Wright, supra. {¶ 8} If Ritze had testified that he had performed the field sobriety tests perfectly, then evidence of his performance on the tests that contradicted his testimony would have been admissible to impeach that specific statement. But that is not what occurred in this case. Though the court stated that it had not made a ruling, the court's own words indicate that the court did hold that if Ritze took the stand and testified that he was not impaired, the court would allow the state to present evidence regarding the field sobriety tests that it had previously suppressed. That ruling was far broader than the law allowed. {¶ 9} Further, the defendant has a fundamental constitutional right to testify in his own defense. State v. Bey, 85 Ohio St. 3d 487,497, 1999-Ohio-283, 709 N.E.2d 484; State v. Adkins (2001),144 Ohio App. 3d 633, 644-645, 761 N.E.2d 94; Cleveland v. Alton (1997),118 Ohio App. 3d 642, 645-646, 693 N.E.2d 1124. The court's ruling had a chilling effect on Ritze's right to testify and on his right to present a defense. See State v. Canada, 6th Dist. No. OT-01-036, 2003-Ohio-481;Mt. Vernon v. Szerlip (June 17, 1999), 5th Dist. No. 98CA20. {¶ 10} Consequently, the trial court abused its discretion in ruling that the previously suppressed evidence would be admissible if Ritze testified as to his lack of impairment and in denying his motion for a new trial. Accordingly, we sustain his first and second assignments of error. *Page 138 {¶ 11} In his third assignment of error, Ritze argues that his conviction was against the manifest weight of the evidence. Our ruling on the previous two assignments of error renders this assignment of error moot, and we, therefore, decline to address it. See App.R. 12(A)(1)(c);State v. Thompkins, 78 Ohio St. 3d 380, 386-388, 1997-Ohio-52,678 N.E.2d 541; State v. Ashbrook (Apr. 30, 1997), 1st Dist. No. C-960535. {¶ 12} In his fourth assignment of error, Ritze argues that the trial court improperly denied his motion for a judgment of acquittal pursuant to Crim.R. 29(A), which is the same as a claim that the evidence was insufficient to support the conviction. State v. Cedeno (Oct. 23, 1998), 1st Dist. No. C-970465. Therefore, this assignment of error is not rendered moot by our ruling on Ritze's first and second assignments of error. A determination of insufficient evidence would mean a complete failure of proof by the prosecution so that a retrial would be barred by the Double Jeopardy Clause. Thompkins, supra, at 386-387, 2003-Ohio-52,678 N.E.2d 541; State v. Kalejs, 150 Ohio App. 3d 465, 2002-Ohio-6657,782 N.E.2d 112, at ¶ 24. {¶ 13} Our review of the record shows that the state's evidence, when viewed in a light most favorable to the prosecution, could have convinced a reasonable trier of fact that Ritze had operated a vehicle while under the influence of alcohol. Consequently, the evidence was sufficient to support his conviction pursuant to R.C. 4511.19(A)(1). SeeState v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus. See, also, State v. Bridgeman (1978), 55 Ohio St. 2d 261,381 N.E.2d 184, syllabus. Accordingly, we overrule Ritze's fourth assignment of error. {¶ 14} In his fifth assignment of error, Ritze argues that the trial court erred in admitting testimony regarding a plastic cup the arresting officer found in Ritze's car. He claims that the admission of this testimony was prejudicial because the officer threw the cup away and the state did not make it available for inspection. This assignment of error is not well taken. {¶ 15} The record shows that Ritze was arrested at approximately 1:00 a.m. The arresting officer testified that after he asked Ritze to get out of the car, he saw a plastic cup in the front of the vehicle between the passenger seat and the driver's seat. The officer picked it up and found that it had a small amount of liquid, which appeared to be beer, inside. Ritze acknowledged that the cup had contained beer, but claimed that he had drunk the beer much earlier in the day. The officer stated that he later disposed of the cup because he did not intend to charge Ritze with having an open container of alcohol in the vehicle. {¶ 16} The state's failure to preserve materially exculpatory evidence violates a defendant's right to due process. California v.Trombetta (1984), *Page 139 467 U.S. 479, 488-489, 104 S. Ct. 2528; State v.Benson, 152 Ohio App. 3d 495, 2003-Ohio-1944, 788 N.E.2d 693, at ¶ 10. Ritze has failed to meet his burden to show that the evidence was materially exculpatory. Benson, supra, at ¶ 11; State v. Benton (2000), 136 Ohio App. 3d 801, 805, 737 N.E.2d 1046. Ritze acknowledged the cup had contained beer and that he had drunk it. Even if the court believed his claim that he had drunk it earlier in the day, that evidence was not favorable to him. Further, the state's other evidence was sufficient to convict Ritze, and preservation of the cup as evidence would not have changed the results of the proceeding. See State v.Jackson (1991), 57 Ohio St. 3d 29, 33-34, 565 N.E.2d 549; Kalejs, supra, at ¶ 16-18. {¶ 17} The failure to preserve potentially useful, but not materially exculpatory, evidence violates a defendant's due-process rights if the police or the prosecution have acted in bad faith. Benson, supra, at ¶ 10; Benton, supra, at 805, 737 N.E.2d 1046. Bad faith implies something more than bad judgment or negligence. "It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." Benson, supra, at ¶ 14. The record does not demonstrate that the police officer's disposal of the cup was anything more than a mistake or an incident of bad judgment. His conduct did not rise to the level of bad faith. Consequently, the failure to preserve the cup and the liquid it contained did not violate Ritze's due-process rights. {¶ 18} Further, the evidence was relevant in that it tended to show that Ritze had been consuming alcohol while driving. See Evid.R. 401. We cannot hold that its probative value was substantially outweighed by the danger of unfair prejudice, particularly since Ritze admitted drinking the beer in the cup. See Evid.R. 403(A). Generally, evidence of the accused's own actions cannot be unfairly prejudicial, so long as it is relevant to the essential elements of offense. State v. Geasley (1993), 85 Ohio App. 3d 360, 372, 619 N.E.2d 1086; State v. Bakst (1986),30 Ohio App. 3d 141, 144, 506 N.E.2d 1208. The decision whether to admit or exclude relevant evidence under Evid.R. 403(A) rests within the trial court's discretion. State v. Sage (1987), 31 Ohio St. 3d 173,510 N.E.2d 343, paragraph two of the syllabus; State v. Hirsch (1998),129 Ohio App. 3d 294, 307, 717 N.E.2d 789. The trial court's decision to admit the evidence in this case was not so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144; Hirsch, supra, at 307-308, 717 N.E.2d 789. Accordingly, we overrule Ritze's fifth assignment of error. *Page 140 {¶ 19} In his sixth assignment of error, Ritze contends that the trial court failed to properly journalize the proceedings as required by law. He argues that these irregularities require that his conviction be reversed and that he be discharged. This assignment of error is not well taken. {¶ 20} First, he contends that the trial court failed to properly journalize entries related to his Crim.R. 29 motions for judgments of acquittal. The record shows that Ritze was charged with driving under the influence of alcohol pursuant to R.C. 4511.19(A)(1), which was the "A" charge. He was also charged with operating a vehicle without reasonable control pursuant to R.C. 4511.202, which was the "B" charge. {¶ 21} The record shows that the trial court orally granted Ritze's motion for a judgment of acquittal on the "B" charge, but that the court never journalized that ruling. Crim.R. 32(C) requires a judgment of acquittal to be journalized. Since the court did not do so, no final, appealable order exists as to the "B" charge. Consequently, this court does not have jurisdiction to rule on matters related to that charge. State v. Briscoe (1992), 84 Ohio App. 3d 569, 572, 617 N.E.2d 747;State v. Brock, 1st Dist. No. C-020819, 2003-Ohio-3199, at ¶ 3-7;State v. Salaam, 1st Dist. No. C-020324, 2003-Ohio-1021, at ¶ 11-12. Jurisdiction still lies with the trial court as to that charge, and Ritze will have to file a motion in the trial court to remedy the lack of a judgment entry. {¶ 22} Ritze also argues that the trial court failed to journalize an entry overruling his Crim.R. 29 motions on the DUI charge. Crim.R. 32(C) states that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly." Thus, the rule requires the court to journalize an entry granting a motion for a judgment of acquittal, but not necessarily one for the denial of the motion. In this case, the court journalized an entry meeting the requirements of Crim.R. 32(C) for Ritze's conviction on the DUI charge. The trial court's denial of Ritze's Crim.R. 29 motions was subsumed in the court's final judgment of guilty, and he was not prejudiced in any way. {¶ 23} Finally, Ritze contends that the court's entry as to the DUI charge is ambiguous. We disagree. With a cursory glance, the handwritten entry appears to read "FIND NO — GUILTY Nunc Pro Tunc." However, upon closer examination, the entry clearly states "FINDING — GUILTY Nunc Pro Tunc." {¶ 24} Ritze also takes issue with the use of a nunc pro tunc entry. The purpose of a nunc pro tunc order is to "record officially an action or actions of a court actually taken but not duly recorded." Statev. Breedlove (1988), *Page 141 46 Ohio App. 3d 78, 81, 546 N.E.2d 420. It does not extend beyond the power to make the journal entry speak the truth and can only show what the court actually decided, not what it should have decided or intended to decide. State v. Pocius (1995), 104 Ohio App. 3d 18,21, 660 N.E.2d 1236; Salaam, supra, at ¶ 12. {¶ 25} The transcript shows that, after a bench trial, the trial court found Ritze guilty. It appears that next to the date on the journal entry the trial court had first written the sentence and then had later added the finding of guilty nunc pro tunc. This was a proper use of a nunc pro tunc entry. Even if the court had written the entire entry at the same time, the use of the phrase nunc pro tunc was merely surplusage and does not require the reversal of Ritze's conviction. Accordingly, we overrule his sixth assignment of error. {¶ 26} In sum, based on our resolution of Ritze's first and second assignments of error, we reverse his conviction and remand the case for a new trial. Judgment reversed and cause remanded. Doan, P.J., Hildebrandt and Painter, JJ.

608 So. 2d 1383 (1992) James Fitzhugh LEE, Sr. v. Angelia Colleen LEE. 2910419. Court of Civil Appeals of Alabama. October 16, 1992. *1384 Joel Lee Williams, Troy, for appellant. James R. Fuqua of Fuqua & Kominos, Ozark, for appellee. RUSSELL, Judge. The father appeals from a judgment of the trial court ordering him to pay child support pursuant to Rule 32, Alabama Rules of Judicial Administration, and finding him to be in contempt of court. The mother filed a complaint for divorce and a motion for pendente lite child support in October 1991. On October 18, 1991, the trial court issued an order directing the father to provide both the clerk of the court and the mother with a completed Child Support Guideline income statement/affidavit and supporting documents. The father was directed to comply with this order within seven days and to begin payment of temporary child support to the mother on the date of his compliance. On November 15, 1991, the mother filed with the trial court a motion to have the father held in contempt, alleging that the father had failed to commence payment of temporary child support. On December 6, 1991, after a hearing on the mother's motion, the trial court found the father in contempt for his failure to comply with its order concerning the filing of an income statement/affidavit and the payment of temporary child support. The court ordered that the father serve one day in the county jail; however, he could purge himself of contempt by immediately filing the requisite statement/affidavit with the court clerk and by commencing payment of temporary child support to the mother. The trial court further ordered the father to pay the mother $150, within 30 days, for her attorney's fee. The divorce action was heard on March 11, 1992. Prior to trial the parties stipulated that the mother would have custody of the two minor children. The parties further stipulated to the division of property and the payment of marital debts. The primary issue for determination at trial was the father's child support obligation under Rule 32, A.R.J.A. Considerable testimony was presented as to the father's employment history, his current income, and his earning potential. The mother also testified at trial that the father had not paid her attorney's fee of $150 as ordered by the trial court on December 6, 1991. The father testified that he had forgotten to make this payment but that he was prepared to pay the mother. The record shows that the father paid this money to the mother during the trial, in the presence of, and with the knowledge of, the trial court. The trial court entered a final judgment of divorce on March 17, 1992. In this judgment the court found that the father was *1385 presently "voluntarily unemployed and underemployed." Consequently, it ordered the father to pay monthly child support of $506 based on imputed income, pursuant to Rule 32(B)(5), A.R.J.A. The trial court further found the father to be in contempt of court for his failure to timely comply with its previous order requiring him to pay the mother's attorney's fee. The father was ordered to serve one day in the county jail. Following a post-trial motion from the father, the trial court modified the contempt citation and ordered the father to pay a fine of $150 in lieu of the jail sentence. On appeal the father first contends that the trial court erred in holding that he was voluntarily unemployed or underemployed and in ordering him to make child support payments based on his imputed income. We note that where, as in this case, the trial court is presented ore tenus evidence, its judgment will be presumed correct and will not be disturbed on appeal unless it is shown to be plainly and palpably wrong. Blankenship v. Blankenship, 534 So. 2d 320 (Ala.Civ.App.1988). We would also note that actions concerning child support that are filed on or after October 9, 1989, although guided by mandatory consideration of Rule 32, A.R.J.A., are still committed to the sound discretion of the trial court. Belser v. Belser, 558 So. 2d 960 (Ala.Civ.App.1990). The record shows that, except for a period of a few months, the father was employed and earning approximately $25,000 to $28,000 per year from the time of the parties' marriage in October 1985 until August 1991. Just prior to the parties' separation in August 1991, the father was terminated from his job as an insurance agent for a company he had worked for since 1989. The father testified that he was earning approximately $25,000 per year at the time of his termination, although other testimony indicated that the father's gross income for 1990 was $27,000. The father claimed that his employment was terminated because of his own wrongdoing, stating that he was fired for mishandling clients' insurance premiums. The record also reveals that from 1985 to 1989 the father worked for a beverage company. The father testified that he had voluntarily quit that job at a time when he was making approximately $28,000 per year. The manager of the insurance company where the father had been employed testified that the father had originally approached him about leaving his job and that the termination of the father's employment had been mutually agreed upon. He stated that the father's termination notice did not reflect that the father had been fired for wrongdoing. The manager further testified that the father had scored higher on his state licensing examination than anyone else he was aware of, that the father had a tremendous ability to read and comprehend, and that the father was still capable of working as an insurance agent. The father testified that since the termination of his position as an insurance agent, he has made several job inquiries and has submitted several job applications but that he has been unable to secure employment as lucrative as his previous positions. He stated that until he was able to find alternative employment, he was doing carpentry work and earning less than $200 per week. He testified that he was about to begin a job stocking shelves in a supermarket. This position would pay approximately $200 per week. After determining that the father was capable of earning at a level higher than that demonstrated by his current income, the trial court imputed to the father an income of $2,000 per month. Using this figure and the mother's monthly earnings, the court calculated the father's child support obligation to be $506 per month under the Child Support Guidelines. As the court indicated in its final order, $2,000 is actually less than the father's gross monthly income with his previous employers. In view of the evidence and the discretion afforded the trial court under paragraph (B)(5) of Rule 32, A.R.J.A., we cannot conclude that the trial court committed error in finding the father to be voluntarily unemployed or underemployed and in imputing to him a monthly income of $2,000. Accordingly, we affirm the portion of the *1386 trial court's judgment establishing the father's child support obligation as $506 per month. The father also contends that the trial court's contempt order of March 17, 1992, was erroneously entered without previous petition or notice to him, depriving him of the required due process protection. We agree. The father disobeyed the court's order of December 6, 1991, by failing to timely pay the mother's attorney's fee. This constituted an "indirect" contempt, and consequently it was necessary that the father be afforded notice of any contempt proceedings against him and a reasonable opportunity to be heard. Rule 33.3, Alabama Rules of Criminal Procedure; State v. Thomas, 550 So. 2d 1067 (Ala.1989); Brooks v. Brooks, 480 So. 2d 1233 (Ala.Civ.App.1985). A review of the record reveals that a contempt proceeding was not initiated as required by Rule 33.3, A.R.Crim.P., through the issuance to the father of a citation. See International Brotherhood of Electrical Workers, Local 136 v. Davis Constructors & Engineers, Inc., 334 So. 2d 892 (Ala. 1976). Nor do we find evidence that in advance of the trial of March 11, 1992, the father received actual notice that contempt proceedings had been initiated or were pending, or that they were going to be prosecuted by the mother or by the court ex mero motu. In fact, a pretrial order entered by the trial court on February 24, 1992, indicated that the parties had agreed "that child support was probably the only issue left" to be resolved by the trial. Nowhere in this order is the word "contempt" found, nor was it brandi40@example.net. Our supreme court has held that in cases involving findings of criminal contempt, due process requirements must be rigidly adhered to. Ex parte Tarpley, 293 Ala. 137, 300 So. 2d 409 (1974). Because the father did not have notice of any contempt proceedings against him, the portion of the trial court's final judgment holding him in contempt must be reversed and the cause remanded with instructions that the trial court enter an order consistent with this opinion. The mother's request for an attorney's fee on appeal is granted in the amount of $300. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. ROBERTSON, P.J., and THIGPEN, J., concur.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD 0035-12 TRAVIS L. FLANAGAN, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY Per curiam. Keasler and hervey, JJ., dissent. ORDER The petition for discretionary review violates Rule of Appellate Procedure 68.5, because the petition is longer than fifteen (15) pages. 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 of Texas within thirty (30) days after the date of this order. Filed: May 16, 2012 Do Not Publish.

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MOJGAN POURZANJANI, Case No. SACV 17-1633 AG(JC) 12 Plaintiff, 13 v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 14 RECOMMENDATIONS OF UNITED NANCY A. BERRYHILL, Acting STATES MAGISTRATE JUDGE 15 Commissioner of Social Security, 16 Defendant. 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint and all 18 of the records herein, including the January 10, 2019 Report and Recommendation 19 of United States Magistrate Judge (“Report and Recommendation”). The Court 20 approves and accepts the Report and Recommendation. 21 IT IS HEREBY ORDERED that (1) the decision of the Commissioner of 22 Social Security is reversed in part and the matter is remanded for further 23 administrative action consistent with the Report and Recommendation; and 24 (2) Judgment be entered accordingly. 25 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 26 the Judgment on counsel for the parties. 27 DATED: January 31, 2019 ________________________________________ 28 HONORABLE ANDREW J. GUILFORD UNITED STATES DISTRICT JUDGE 

657 S.E.2d 876 (2008) VICKS v. The STATE. No. A07A2174. Court of Appeals of Georgia. February 5, 2008. Robert R. McLendon IV, Blakely, for appellant. Joseph K. Mulholland, Dist. Atty., Michael T. Garrett, Asst. Dist. Atty., for appellee. ADAMS, Judge. Following a bench trial, Sandra Dee Vicks was convicted of identity fraud. On appeal *877 she contends the evidence was insufficient to support the verdict. Construed in favor of the verdict the evidence shows that on September 13, 2004, a person came into the Capital City Bank and filled out a signature card in connection with opening a new checking account. The person included on the card a social security number, her thumbprint, and a signature. The card was signed by "Sandra Wimberly" over the typed name "Sandra Lee Wimberly." That person asked that the checks be issued under the name "Banks." An expert testified, however, that the fingerprint on the signature card matches the fingerprint of appellant Sandra Vicks that had been on file at the Thomas County Sheriff's Office. And the social security number shown on the signature card belongs to a 17-year-old boy who lives in Mitchell County and who is not related to Vicks. The boy did not have an account with Capital City Bank or any resources there, and Vicks did not have permission to use the number. 1. Vicks first contends the State failed to present sufficient evidence that it was she who signed the signature card and used the boy's social security number when opening an account with the bank. But the State introduced evidence that the fingerprint on the signature card matched the fingerprint of a person named "Sandra Vicks" maintained in the sheriff's office. And "concordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary." (Citations and punctuation omitted.) Roebuck v. State, 277 Ga. 200, 201-202(1), 586 S.E.2d 651 (2003). Furthermore, the State's expert testified that the two fingerprints matched. The evidence was sufficient to show that Vicks was the person who attempted to open the account. See id. 2. Vicks also contends the State failed to prove the elements of the crime. Vicks was charged with identify fraud as codified in OCGA § 16-9-121. Under the version of that statute applicable to this case, the State was required to show that the accused (1) obtained or recorded another person's identifying information (2) with the intent to appropriate that person's resources: A person commits the offense of identity fraud when without the authorization or permission of a person with the intent unlawfully to appropriate resources of or cause physical harm to that person, or of any other person, to his or her own use or to the use of a third party he or she: (1) Obtains or records identifying information of a person which would assist in accessing the resources of that person or any other person. . . . OCGA § 16-9-121 (2002).[1] Here, the State presented evidence that Vicks "recorded" another person's social security number, which was specifically defined as "identifying information" in connection with identity theft. OCGA § 16-9-120(4)(B) (2002). And, although the boy to whom the social security number belonged did not maintain any assets at the bank, the trier of fact was authorized to infer that Vicks' use of the number was done with intent to obtain his resources in one way or another. See OCGA § 16-9-120(5) (A) (2002) (a person's resources includes that person's "credit, credit history, credit profile, and credit rating"). The evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Judgment affirmed. ANDREWS, P.J., and ELLINGTON, J., concur. NOTES [1] OCGA § 16-9-121 has since been revised. See Ga. L. 2007, p. 450, § 4.

Dear Mr. Obos: On behalf of the City of Springfield, you have asked for my opinion on substantially the following question: In proposing to amend its charter by referendum from an annual municipal general election requirement with staggered two-year terms to a new election cycle with elections to occur every other year with staggered four-year terms, may the City of Springfield, by that same referendum, extend the terms of the currently elected mayor and two of the commissioners by one additional year? In sum: The City of Springfield may, by the same referendum, amend its charter to change the terms of elected officers from two years to four years and extend the terms of the currently elected mayor and two of the commissioners by one additional year. The City of Springfield (the city) currently holds elections for municipal officers who serve two-year terms. These elections are held annually and you advise that this is costly for the city. The city proposes to extend the terms of its officers to four years and to hold elections biennially. Your letter states that the most efficient manner for the city to change its election cycle and extend terms of elected officials is to do so by referendum in its April 2010 election. The passage of the proposed referendum would result in the two city commissioners to be elected in 2010 serving four-year terms. The proposed referendum would extend the terms of the currently seated mayor and two other commissioners by one additional year and change their next election date from 2011 to 2012. You acknowledge that this office has done several Attorney General Opinions relating to referenda requirements for purposes of changing election dates that also result in the "hold over" of current commissioners, but note that none of these opinions address a change in election cycle (not the election date) coupled with an extension of term of office for elected officials. The Florida Constitution, in Article VIII, section 2(a), provides that municipal charters may be amended pursuant to general or special law. The Florida Legislature, with the adoption of the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes, granted municipalities broad home rule powers. Section 166.031, Florida Statutes, implementing the constitutional provision provides procedures for amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters. It has been the position of this office, expressed in a number of Attorney General Opinions, that charters or charter provisions adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973 must comply with the procedures set forth in section 166.031, Florida Statutes.1 The statute sets forth the procedures to be followed in amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters.2 This office, in Attorney General Opinion 75-223, specifically advised the City of Tamarac that its charter, readopted after 1973, could not be amended except as provided in section 166.031. Likewise, in Attorney General Opinion 79-80, this office stated that the Lake Wales City Commission could not unilaterally amend its municipal charter, but could only propose an amendment that would be submitted to the municipal electors for their approval at a referendum held for that purpose. More recently, this office, in Attorney General Opinion 01-15, stated that a city commission may amend its city charter, adopted in 1977, to remove a requirement that the city manager reside within the city only if such an amendment was approved by a referendum of the qualified electors of the municipality. However, section 166.021(4), Florida Statutes, states in part: "[N]othing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect . . . the terms of elected officers and the manner of their election except for the selection ofelection dates and qualifying periods for candidates and for changesin terms of office necessitated by such changes in electiondates. . . without approval by referendum of the electors as provided in s. 166.031." (e.s.) Further, section 100.3605(2), Florida Statutes, provides that the governing body of a municipality may, by ordinance, "change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes."3 Both the language in section 166.012(4), Florida Statutes, and section 100.3605(2), Florida Statutes, were added by Chapter 95-178, Laws of Florida. In considering the 1995 legislation, this office has stated that an examination of the legislative history reflects an intent that municipalities would be authorized to amend their charters to change the election dates and qualifying periods for candidates, including any changes in terms of office necessitated by theamendment, without a referendum.4 However, the purpose of the charter amendment for the City of Springfield is not a change in election dates, for example from a spring election to one conducted at the general election in the fall, but to change the terms of office for elected officers from a two-year to a four-year term and to modify the election cycle to reflect staggered terms for those elected officers. Thus, the change contemplated by the city would fall within the general requirement in section 166.021(4), Florida Statutes, that changes in a municipal charter which affect "the terms of elected officers and the manner of their election" must be undertaken pursuant to a referendum. The exception for selecting election dates and accommodating changes in terms of office "necessitated by such changes in election dates" would not appear to apply to the changes proposed by the City of Springfield. In sum, it is my opinion that the City of Springfield may, by the same referendum, amend its charter to change the terms of elected officers from two years to four years and extend the terms of the currently elected mayor and two of the commissioners by one additional year. Charter amendments designed to effectuate changes in the term of office of municipal officers such as changing from a two-year to a four-year term do not fall within the scope of the exception contained in sections 166.021(4) and 100.3605(2), Florida Statutes, and must be accomplished by referendum. Sincerely, Bill McCollum Attorney General BM/tgh 1 See Ops. Att'y Gen. Fla. 03-52 (2003), 03-36 (2003), 01-43 (2001), and 75-223 (1975). See also Op. Att'y Gen. Fla. 88-30 (1988) (charter amendment provisions in s. 166.031, Fla. Stat., prevail over conflicting provisions in a municipal charter) and Op. Att'y Gen. Fla. 97-53 (1997) (city commission may not delegate its canvassing board duties to a consolidated municipal canvassing board, absent an existing charter provision authorizing such a transfer or an amendment to the city's charter approved in a referendum by the city's electorate). 2 See s. 166.031(1), Fla. Stat., providing that the governing body of the municipality "shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose."But see s. 166.031(5), Fla. Stat., stating that a municipality may, by unanimous vote of the governing body, abolish municipal departments provided for in the municipal charter and amend provisions or language out of the charter which has been judicially construed, either by judgment or by binding legal precedent from a decision of a court of last resort, to be contrary to either the State Constitution or Federal Constitution. 3 And see s. 100.3605(1), Fla. Stat., stating that the Florida Election Code, Chs. 97 — 106, Fla. Stat., governs the conduct of municipal elections in the absence of an applicable special act, charter, or ordinance provision and that "[n]o charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities." 4 See House of Representatives Committee on Ethics and Elections Final Bill Analysis Economic Impact Statement on HB 2209 (passed by the Legislature as Ch. 95-178, Laws of Fla.), dated May 10, 1995, stating: "HB 2209 authorizes amendment of a municipal charter or special act without referendum for the purpose of changing municipal election dates and qualifying period for candidates and for the adjustment of terms of office necessitated by such date changes. . . ."

Filed 9/9/13 P. v. Demery CA3/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B242985 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA121273) v. DARNELL DEMERY, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle, Judge. Affirmed. Jasmine Patel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _____________________ Darnell Demery was charged in an information with assault by means of force likely to produce great bodily injury, (Pen. Code, § 245, subd. (a)(1),1 four counts of making a criminal threat (§ 422, subd. (a)) and stalking (§ 646.9, subd. (b)). As to all counts it was specially alleged Demery had suffered one prior serious or violent felony conviction within the meaning of section 667, subdivision (a)(1) and the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appearing in propria persona, Demery pleaded not guilty to the charges and denied the special allegations. After the trial court granted Demery’s request to be represented by appointed counsel, the matter proceeded to trial. According to the evidence at trial, after separating from Adele Molioo, with whom he had two children, Demery became embroiled in a protracted dispute with her over Molioo’s new boyfriend and Demery’s access to their daughter. The dispute was punctuated by a physical confrontation between Demery and Molioo, a series of harassing text messages, telephone calls and voice messages from Demery to Molioo in violation of a restraining order and Demery’s threats of physical harm or death to Molioo and members of her family. At the conclusion of the People’s evidence, the trial court dismissed count 5, the charged criminal threat to Molioo’s mother (Tipesa Molioo). Demery then testified in his own defense and denied the version of events presented by the People’s witnesses. His two children also testified in his defense. The jury convicted Demery of making a criminal threat to Molioo as charged in counts 2 and 3 and of stalking Molioo as charged in count 4, but acquitted him of committing aggravated assault on Molioo and making a criminal threat to Molioo’s sister (Togalei Hoff) as charged in counts 1 and 6, respectively. In a bifurcated proceeding, Demery admitted the prior conviction allegation. The trial court granted defense counsel’s motion to dismiss the prior strike conviction pursuant to section 1385. The court sentenced Demery to an aggregated term of eight 1 Statutory references are to the Penal Code. years, consisting of the three-year middle term for stalking, plus five years for the prior serious felony enhancement with the sentence to be served in state prison under section 1170, subdivision (h)(3). The court stayed imposition of sentence on the two counts of making a criminal threat pursuant to section 654. The court ordered Demery to pay a $40 court security fee and a $30 criminal conviction assessment on each count and a $240 restitution fine. The court imposed and suspended a parole revocation fine pursuant to section 1202.45. Demery was awarded a total of 440 days of presentence credit (220 actual days and 220 days conduct credit). We appointed counsel to represent Demery on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On April 24, 2013, we advised Demery he had 30 days in which to personally submit any contentions or issues he wished us to consider. To date, we have received no response. We have examined the record and are satisfied Demery’s attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S. Ct. 746, 145 L. Ed. 2d 756]; People v. Kelly (2006) 40 Cal. 4th 106, 112-113; People v. Wende (1979) 25 Cal. 3d 436, 441.) DISPOSTION The judgment is affirmed. ZELON. J We concur: WOODS, Acting P. J. SEGAL, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.