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IN THE TENTH COURT OF APPEALS No. 10-10-00429-CV KEITH THOMAS, Appellant v. SUE ALLEN, Appellee From the County Court at Law Ellis County, Texas Trial Court No. 10-C-3789 MEMORANDUM OPINION Appellant has filed an “Uncontested Motion to Dismiss Appeal.” See TEX. R. APP. P. 42.1(a)(1). It states that Appellant and Appellee have entered into a settlement agreement and that Appellee does not oppose dismissal of this appeal. Dismissal of this appeal would not prevent a party from seeking relief to which it would otherwise be entitled. The motion is granted, and the appeal is dismissed.  REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Motion granted; appeal dismissed Opinion delivered and filed December 22, 2010 [CV06] Thomas v. Allen Page 2 

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED ARMANDO VIRUET, Appellant, v. Case No. 5D15-4058 SARAH G. GRACE, Appellee. ________________________________/ Opinion filed July 8, 2016 Appeal from the Circuit Court for Orange County, Heather Pinder Rodriguez, Judge. Scott E. Siverson, Orlando, for Appellant. No Appearance for Appellee. PER CURIAM We reverse the portion of the final judgment of dissolution of marriage that ordered former husband, Armando Viruet (“Appellant”), to pay $100 per month toward arrearage in child support because neither the magistrate’s report, which the trial court approved, nor the final judgment, states the amount of the arrearage. We remand for the trial court to determine the amount of child support arrearage, if any, that Appellant owes and to enter an appropriate amended final judgment specifying the amount. See Boyd v. Boyd, 168 So. 3d 302, 304 (Fla. 4th DCA 2015).  Appellant also argues that the trial court erred by denying his motions for new trial and for rehearing. In his motions, Appellant argued that he should have been afforded an opportunity to present evidence to establish that, due to the daycare facility used by the parties requiring him to prepay for the entire week, Appellant was paying all of the daycare costs, rather than only his proportional share as ordered in the final judgment. We find that the trial court did not abuse its discretion in denying Appellant’s motions, but we do so without prejudice to permit Appellant to bring the matter before the trial court should he choose to assert that Sarah G. Grace, former wife and Appellee, is not paying her court-ordered proportional share of daycare expenses. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. SAWAYA, TORPY and EDWARDS, JJ., concur. 2 

STATE OF MICHIGAN COURT OF APPEALS LASAN BELLAMY, UNPUBLISHED March 20, 2018 Petitioner-Appellant, v No. 336584 Ingham Circuit Court DEPARTMENT OF CORRECTIONS and LC No. 16-000017-AW PAROLE BOARD, Respondents-Appellees. Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ. PER CURIAM. Petitioner, Lasan Bellamy, appeals by right the trial court’s opinion and order denying his petition for mandamus, motion for summary disposition, motion for temporary restraining order, and request for a preliminary injunction, all of which were directed at respondents Michigan Department of Corrections (MDOC) and the Michigan Parole Board (the Parole Board) (collectively “respondents”). We affirm the trial court’s order. I. BASIC FACTS In March 1996, petitioner was sentenced to 12 to 30 years in prison for first-degree criminal sexual conduct. His earliest release date was October 1, 2006. Petitioner was released on parole on October 3, 2013. A condition of his parole was that petitioner reside at the Kalamazoo Probation Enhancement Program (“KPEP”) facility in Benton Harbor Michigan, a “residential sex offender placement facility.” On January 22, 2014, petitioner absconded parole, leaving KPEP without permission and removing his electronic monitoring device. After three months, petitioner turned himself in. He was re-incarcerated and pleaded guilty to eight counts of parole violation. His parole status was subsequently revoked and continued to be revoked. Petitioner filed a petition for mandamus seeking, among other things, reinstatement of his parole and an order that respondents be prohibited from conditioning future parole on a requirement that he reside in a facility such as KPEP. Respondents filed a brief arguing that the trial court lacked subject matter jurisdiction because petitioner’s petition was not in accordance with the Michigan Prison Litigation Reform Act (PLRA), MCL 600.5501 et seq. The trial court agreed with respondents and dismissed petitioner’s petition. Petitioner appealed the dismissal, and in lieu of granting leave to appeal, this Court reversed and remanded because petitioner was not required to comply with the requirements of the PLRA since his petition was not a civil -1- action concerning prison conditions. Bellamy v Dep’t of Corrections, unpublished order of the Court of Appeals, entered July 1, 2016 (Docket No. 332250), citing Hayes v Parole Bd, 312 Mich App 774, 781-782; 886 NW2d 725 (2015). Before the trial court could reinstate petitioner’s case, he submitted a motion for summary disposition and various other filings. He also requested a temporary restraining order and a preliminary injunction. The court denied petitioner’s petition for mandamus, his motion for summary disposition, and his motion for temporary restraining order and preliminary injunction. II. MANDAMUS Petitioner first argues that the trial court erred in denying his petition for mandamus. We review the denial of a writ of mandamus for an abuse of discretion. Rhode v Dep’t of Corrections, 227 Mich App 174, 178; 578 NW2d 320 (1997). Whether a defendant has a clear legal duty to perform and whether a plaintiff has a clear legal right to performance of a duty are questions of law that we review de novo. Id. We also review the proper interpretation and application of statutes de novo. Hayes v Parole Bd, 312 Mich App 774, 778; 886 NW2d 725 (2015). Petitioner argues that KPEP falls under the definition of a “community residential home” and therefore, when the Parole Board required that he reside there as a condition of his parole, it exceeded its legal authority. He argues that this entitles him to a writ of mandamus to compel respondents to reinstate his parole and alter future parole conditions. We disagree. “Mandamus is an extraordinary remedy, and its issuance is discretionary with the court.” Lee v Macomb Co Bd of Comm’rs, 235 Mich App 323, 331; 597 NW2d 545 (1999), rev’d on other grounds 464 Mich 727 (2001). “The primary purpose of the writ of mandamus is to enforce duties created by law, where the law has established no specific remedy and where, in justice and good government, there should be one.” State Bd of Ed v Houghton Lake Community Sch, 430 Mich 658, 667; 425 NW2d 80 (1988) (citation omitted). In order to obtain a writ of mandamus, the plaintiff bears the burden of showing that (1) the plaintiff has a clear legal right to the performance of a specific duty; (2) the defendant has the clear legal duty to perform the specific duty; (3) the act is ministerial; and (4) the plaintiff is without any other adequate legal or equitable remedies. Barrow v Detroit, 301 Mich App 404, 412; 836 NW2d 498 (2013). The Parole Board has authority to grant parole to qualified inmates. In re Parole of Bivings, 242 Mich App 363, 372; 619 NW2d 163 (2000). Parole is a conditional release where the paroled prisoner remains in the custody of the Department of Corrections, but is permitted to leave the confinement of prison.1 People v Clark (On Remand), 315 Mich App 219, 229; 888 1 We note that the trial court erroneously found that petitioner was not an “incarcerated individual” at the time of his parole. Parolees are still prisoners under the custody of the Department of Corrections until they are released into the community at large. MCL 791.238(1); People v Armisted, 295 Mich App 32, 39; 811 NW2d 47 (2011). -2- NW2d 309 (2016). “The purpose of a parole is to keep the prisoner in legal custody while permitting him to live beyond the prison [enclosure] so that he may have the opportunity to show that he can refrain from committing crime.” People v Holder, 483 Mich 168, 174; 767 NW2d 423 (2009). Pursuant to MCL 791.236(4), the Parole Board has the authority to impose conditions of parole and must “specifically provide proper means of supervision of the paroled prisoner.” The Parole Board may condition a parolee’s release on his or her supervised residence at a “community corrections center” or in a “community residential home.” MCL 791.236(11). But, “[a] prisoner who is convicted of a crime of violence or any assaultive crime, and whose minimum sentence imposed for the crime is 10 years or more, shall not be placed in a community residential home during any portion of his or her sentence.” MCL 791.265a(8). When interpreting a statute this Court must “discern and give effect to the Legislature’s intent.” Hayes, 312 Mich App at 778. When statutory language is unambiguous, it is presumed that the Legislature’s intent is clearly expressed and no further judicial construction is required or permitted. Id. “Further, courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” Id. at 779 (internal quotation marks omitted). This Court considers statutes in their entire context so that statutory schemes are consistent and harmonious. Id. “Statutes that address the same subject matter or share a common purpose are in pari materia and must be read collectively as one law, even when there is no reference to one another.” Id. Only limited definitions are provided for the terms “community corrections center” and “community residential home.” The statute describes a community residential home as “a location where electronic monitoring of prisoner presence is provided by the department 7 days per week, 24 hours per day.” MCL 791.265a(9)(b). This Court found in People v Sheets, 223 Mich App 651, 659-660; 567 NW2d 478 (1997), that a parolee’s residence in his wife’s apartment on 24-hour electronic monitoring “clearly” fell under the definition of a community residential home; the Court said “private residence[s]” are community residential homes under the statute. Id. at 660. In contrast, the statute defines a community corrections center as “a facility either contracted for or operated by the department in which a security staff is on duty 7 days per week, 24 hours per day.” MCL 791.256a(9)(a). In Sheets, the Court said that community corrections centers are “state correctional facilities” because they are owned or leased by the department of corrections. 223 Mich App at 660. Similarly, in People v Armisted, 295 Mich App 32, 39; 811 NW2d 47 (2011), although interpreting a different statute, this Court considered a “residential parolee reentry program” to be a community corrections center, and therefore, a “corrections facility,” because it was “designed to involuntarily restrain or confine persons committed to its jurisdiction while those persons receive certain remedial services designed to help them transition to the community at large.” 295 Mich App at 43-44. We conclude that KPEP is a “community corrections center” and not a “community residential home” as petitioner attempts to categorize it. KPEP is not a private residence. As it was described in petitioner’s order of parole, it is a “residential sex offender placement facility.” In petitioner’s own filings he described that he was “ordered to reside” there and that while there he was “without the privilege to leave or seek employment.” It is a staffed facility that is under the control, at least indirectly, by the department of corrections. MCL 791.265a(9)(a). Further, -3- it offers services and programming for parolees to prepare them to transition into the community. Armisted, 295 Mich App at 43-44. Petitioner seizes on the language “electronic monitoring,” found in the definition of community residential home but not in the definition of community corrections center, to argue that KPEP was a community residential home because he was placed on electronic tether. However, there is nothing that suggests that electronic monitoring in addition to on-site security changes the nature of a community corrections center. MCL 791.256a(9)(a). Accordingly, KPEP is properly characterized as a community corrections center. Petitioner next argues that he does not meet the “community status” criteria pursuant to MCL 791.265h, and that his placement in community residential homes and community corrections centers was therefore forbidden. Accordingly, he argues that his placement at KPEP was in error. Under MCL 791.265h(1), (1) A prisoner who does not meet the community status criteria shall not be placed in a community corrections center or community residential home. The community status criteria include all of the following requirements: * * * (c) The prisoner is not serving a sentence for conviction of a criminal sexual conduct offense [including first-degree criminal sexual conduct, MCL 750.520b.] (d) The prisoner is not classified as a very high assault risk according to the departments risk screening criteria. However, a prisoner may also obtain community status under MCL 791.265h(1)(g) [i]f the prisoner is serving a sentence for conviction of a crime of violence or an assaultive crime, as defined by rules of the department, the prisoner has less than 180 days remaining on his or her minimum sentence, and otherwise meets the community placement requirements of section 65a (citation omitted). The “community placement requirements of section 65a” state that the director of the Parole Board “may extend the limits of confinement of a prisoner when there is reasonable assurance, after consideration of all facts and circumstances, that the prisoner will not become a menace to society or to the public safety.” MCL 791.265a(1). Although subject to legislative restraints, the Parole Board has broad discretion in determining whether to grant a prisoner parole. Hopkins v Mich Parole Bd, 237 Mich App 629, 643; 604 NW2d 686 (1999). Here, petitioner was granted parole in accordance with the Parole Board’s discretion and within the confines of the legislative restraints imposed by MCL 791.265h and MCL 791.265a. First, the requirements of MCL 791.265h(1) were met. Although petitioner was serving a sentence for an assaultive crime, he had less than 180 days remaining on his minimum sentence. Next, pursuant to MCL 791.265h(1)(g), he met the requirements of MCL 265a(1), because the Parole Board’s decision to parole him stated that “[r]easonable -4- assurances exist that the prisoner will not become a menace to society or to the public safety.” Therefore, because petitioner fit the statutory criteria, and in the Parole Board’s discretion he was deemed not to be a menace to society or pose a threat to public safety, his release into a community corrections center did not violate MCL 791.265h. Finally, petitioner argues that MCL 769.2a(1)(a) supports the proposition that his placement at KPEP was erroneous. This statute mandates that a prisoner serving a sentence for first-degree criminal sexual conduct, among other listed crimes, “shall not be eligible for custodial incarceration outside a state correctional facility or county jail.” MCL 796.2a(1). However, this statute explicitly excludes “community corrections center” from the prohibition. MCL 769.2a(2). Petitioner fails to identify any statute that would prohibit the Parole Board from mandating that he reside in a community corrections center. The first requirement that must be satisfied in seeking a writ of mandamus is establishing that the petitioner “has a clear legal right to the performance of the duty sought.” Id. at 411. There is no legal right to parole in Michigan. Morales v Mich Parole Bd, 260 Mich App 29, 39; 676 NW2d 221 (2003). However, if the Parole Board, in its discretion, does grant parole it may impose conditions on that parole. MCL 791.236(4). Here, the Parole Board was within its discretion to condition petitioner’s parole on the requirement that he reside at KPEP. Accordingly, petitioner has not shown that he has a legal right to be granted parole or not to be ordered to reside at KPEP as a condition of that parole. Therefore, he cannot show that a writ of mandamus is an appropriate remedy and the trial court did not abuse its discretion in denying his petition. III. SUMMARY DISPOSITION Petitioner next argues that the trial court erred in denying his motion for summary disposition. “This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Petitioner argues that summary disposition should have been granted under MCR 2.116(C)(10) because respondents did not address his argument that KPEP was a community residential home. Summary disposition motions are appropriately granted under MCR 2.116(C)(10) when “there is no genuine issue as to any material fact.” “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors, 469 Mich 177, 183; 665 NW2d 468 (2003). A court must consider the evidence in the light most favorable to the moving party. Joseph v Auto Club Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). In respondents’ reply brief to petitioner’s motion for summary disposition, they did not specifically address whether KPEP constituted a community residential home or a community corrections center. Instead, respondents’ argument focused on the fact that petitioner did not have a clear legal right to compel the Parole Board to change conditions of his parole or reinstate his parole. Evidence of a clear legal right and a clear legal duty are requirements for a plaintiff to receive a writ of mandamus. Barrow, 301 Mich App at 412. Accordingly, petitioner was not -5- entitled to judgment as a matter of law and summary disposition for petitioner would have been inappropriate under MCR 2.116(C)(10). Second, petitioner argues that summary disposition was appropriate under MCR 2.116(C)(9) because respondents “failed to state a valid claim.” Presumably, plaintiff means they failed to state a valid defense. Petitioner appears to mean that there was no defense stated because respondents never answered the petition. Summary disposition under MCR 2.116(C)(9) is appropriate where “[t]he opposing party has failed to state a valid defense to the claim asserted against him or her.” MCR 2.116(C)(9); Domako v Rowe, 184 Mich App 137, 142; 457 NW2d 107 (1990), aff’d 438 Mich 347 (1991). However, respondents’ reply brief was the first responsive pleading filed following this Court’s reversal and remand to the trial court. Respondents were not required to state a defense before filing this response. Summary disposition would therefore not have been appropriate under MCR 2.116(C)(9). IV. FRAUD ON THE COURT Respondent also argues that the trial court erred by failing to hold a hearing on his allegations of fraud on the court. We review a trial court’s decision to hold an evidentiary hearing to determine whether there has been a fraud perpetrated on the court for an abuse of discretion. Williams v Williams, 214 Mich App 391, 399; 542 NW2d 892 (1995). Petitioner asserts that because respondents argued that the PLRA precluded his suit, they perpetrated a fraud on the court. Fraud is “a knowing misrepresentation” or “knowing concealment of a material fact” made to induce another to his or her detriment. Black’s Law Dictionary (10th ed). “A fraud is perpetrated on the court when some material fact is concealed from the court or some material misrepresentation is made to the court.” Matley v Matley (On Remand), 242 Mich App 101, 102; 617 NW2d 718 (2000). In reversing and remanding petitioner’s case to the trial court, this Court cited Hayes, 312 Mich App at 781-782, which holds that the Michigan PLRA does not exclude prisoners from seeking mandamus to force the Parole Board to consider a prisoner for parole. In Hayes, decided in 2015, the prisoner was seeking mandamus relief because the Parole Board was refusing to consider the prisoner for parole upon the completion of his minimum sentence. Id. at 782. However, petitioner is seeking mandamus for a reinstatement of parole and a change of his parole conditions. Respondents made a similar but not the same argument as the respondents did in Hayes, asserting that the PLRA precluded petitioner’s requested relief. Petitioner failed to explain how respondents made a material misrepresentation or concealed a material fact and accordingly, the court did not abuse its discretion in failing to hold a hearing to explore petitioner’s allegations of fraud on the court. V. DUE PROCESS AND FRAUDULENT MISREPRESENTATION Petitioner argues that respondents made a fraudulent material misrepresentation and violated his due process rights when they conditioned his parole on his residence at KPEP. These claims are unpreserved. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). -6-  We review the proper interpretation and application of statutes de novo. Hayes, 312 Mich App at 778. Similarly, constitutional issues are reviewed de novo as a matter of law. Thomas v Pogats, 249 Mich App 718, 724; 644 NW2d 59 (2002). However, we review unpreserved claims of error for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). The thrust of petitioner’s argument stems from his assertion that the parole condition requiring him to reside at KPEP was a “fraudulent material representation” and a violation of due process. “To prove a claim of fraudulent misrepresentation, or common-law fraud, a plaintiff must establish that: (1) the defendant made a material representation; (2) the representation was false; (3) when the representation was made, the defendant knew that it was false, or made it recklessly, without knowledge of its truth, and as a positive assertion; (4) the defendant made it with the intention that the plaintiff should act upon it; (5) the plaintiff acted in reliance upon the representation; and (6) the plaintiff thereby suffered injury.” Robert v Saffell, 280 Mich App 397, 403; 760 NW2d 715 (2008). The Parole Board has the authority to impose conditions on a prisoner’s parole. MCL 791.236. One of petitioner’s conditions was that he reside at KPEP. There is nothing false or misleading regarding this valid parole condition. Accordingly, petitioner’s argument must fail because respondents did not make any fraudulent misrepresentations. Next, petitioner argues that respondent’s “fraudulent material representations” forced him to waive his rights, be treated by a psychologist, be placed in a psychiatric treatment program, and relinquish his rights to confidentiality, therefore making his order of parole null and void. However, petitioner fails to explain how any of these conditions of prison or parole constitute fraudulent misrepresentations. This Court is not under the obligation to rationalize a petitioner’s position. Cheesman v Williams, 311 Mich App 147, 161; 874 NW2d 385 (2015) (“An appellant may not merely announce a position then leave it to this Court to discover and rationalize the basis for the appellant’s claims; nor may an appellant give an issue only cursory treatment with little or no citation of authority.”). Petitioner next asserts that he has a liberty interest protected by due process not to be subjected to “involuntary treatment that has stigmatizing consequences and mandatory behavior modifications.” Both the Michigan and the United States Constitutions guarantee that a person may not be deprived of life, liberty, or property, without the due process of law. US Const, Am XIV; Const 1963, art 1, § 17. “Whether the due process guarantee is applicable depends initially on the presence of a protected property or liberty interest.” Hanlon v Civil Serv Comm, 253 Mich App 710, 723; 660 NW2d 74 (2002) (quotation marks omitted). However, “prisoners do not shed all constitutional rights at the prison gate but lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.” Martin v Stine, 214 Mich App 403, 419; 542 NW2d 884 (1995) (quotation marks omitted), quoting Sandin v Conner, 515 US 472; 115 S Ct 2293; 132 L Ed 2d 418 (1995). Further, the possibility of parole is not an interest protected by due process, and accordingly, placing its imposition on certain conditions does not implicate due process protection. Glover v Parole Bd., 460 Mich 511, 520; 596 NW2d 598, 603 (1999) (explaining that the possibility of parole is a “mere hope” and not a benefit protected by due process). Parole is granted at the discretion of the Parole Board, and is not a -7- right. Morales, 260 Mich App at 39. Therefore, petitioner has no “right” to have his parole reinstated and his due process claims must fail because he has not shown deprivation of any constitutionally protected liberty interest. VI. ENFORCEMENT OF COURT RULES Next, petitioner asserts that the trial court violated numerous court rules in order to prejudice him. “The interpretation and application of court rules . . . presents a question of law that is reviewed de novo.” McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). We find no error. First, petitioner asserts that the trial court acted in a biased manner against him. “A trial judge is presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming the presumption.” Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). Petitioner’s bare assertion that the trial judge’s actions were a “bias tactic in favor” of respondents does not overcome the heavy burden needed to surmount the presumption of impartiality. Second, petitioner argues that the trial court allowed respondents two extra days to file a response to his petition for mandamus in order to prejudice him. Under MCR 2.108(A)(2), a respondent who is served by registered mail “must serve and file an answer or take other action permitted by law or these rules within 28 days after service.” Here, it is true that respondents filed their reply to petitioner’s petition for mandamus beyond the time limit provided by the court rules; however, it is also true that they served the filing on petitioner within the prescribed time limit and filed the reply with the court before petitioner complained of the late filing. A trial court has the “inherent power to control the movement of cases on its docket,” Banta v Serban, 370 Mich 367, 368; 121 NW2d 854 (1963), and “[t]his Court will not disturb a trial court’s exercise of that inherent power unless a party shows a clear abuse of discretion.” Persichini v Beaumont Hosp, 238 Mich App 626, 642; 607 NW2d 100 (1999). Allowing respondents an extra two days to file a response was not an abuse of the court’s discretion. Importantly, the law favors the determination of claims on the merits, Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 229; 600 NW2d 638 (1999), and the court rules “‘must be construed to prevent absurd results, injustice, or prejudice to the public interest.’” Hill v City of Warren, 276 Mich App 299, 305; 740 NW2d 706 (2007), quoting Rafferty v Markovitz, 461 Mich 265, 270; 602 NW2d 367 (1999). Mandamus is an “extraordinary remedy” and writs are issued in the trial court’s discretion. Lee, 235 Mich App at 331. Accordingly, it is logical that the trial court would choose to receive argument from both petitioner and respondents before making a ruling. Additionally, “absent a showing of prejudice resulting from noncompliance with the rules, any error is harmless.” Baker v DEC Int’l, 218 Mich App 248, 262; 553 NW2d 667 (1996), rev’d in part on other grounds 458 Mich 247, 580 NW2d 894 (1998). Petitioner fails to show how a two-day delay of filing, especially when he was in possession of the reply, prejudiced him. Third, petitioner argues that respondents failed to meet the requirements of MCR 2.111(C) and (E) because they did not number their paragraphs as petitioner did in his petition. -8- However, MCR 2.111(C) applies to responsive pleadings to complaints, not to petitions for mandamus. Fourth, petitioner argues that he submitted a motion for reconsideration that was never entered and that every letter he sends to the court’s clerk is ignored. Beyond bald assertions in his brief and affidavits filed by petitioner, there is no record of any such filing and no evidence in the Register of Actions. Furthermore, petitioner appealed the order he was seeking reconsideration on and had his case reversed and remanded. Similarly, petitioner argues that he submitted a petition for a personal protection order that was never entered; however, again he submits no proof of such an action and no evidence appears in the record. Fifth, petitioner argues that the trial court erred by not holding a hearing on his motion for a temporary restraining order. A temporary restraining order may only be entered if “it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant from the delay.” MCR 3.310(B)(1)(a). There is no requirement that the court hold a hearing on the matter. MCR 3.310. Sixth, petitioner argues that respondents did not comply with the trial court’s order to respond to his motion for summary disposition and motion for temporary restraining order and preliminary injunction within 30 days. However, the record shows that respondents filed their brief within the ordered 30 days. Furthermore, petitioner takes issue with the fact that respondents also responded to his petition for mandamus in their response, arguing that they did not have a right to do so under MCR 2.118(A)(2). However, MCR 2.118(A)(2) relates to amended pleadings; respondent’s answer to petitioner’s motion for summary disposition was not an amended pleading and therefore this rule does not apply. Finally, petitioner argues that he filed a motion for appointment of counsel, which was never entered and that he was forced to file his motion for summary disposition twice because of the court’s refusal to acknowledge his filings. However, the record shows that petitioner’s motion for appointment of counsel was entered. Similarly, petitioner’s motion for summary disposition was originally filed on July 18, 2016, and again on October 13, 2016. This double filing appears to be based on petitioner’s general unhappiness with the lack of immediate response from the trial court, not on any wrongdoing by the lower court. VII. MOTION FOR TEMPORARY RESTRAINING ORDER Petitioner argues that the trial court’s denial of his motion for a temporary restraining order was in error. We review a trial court’s decision to grant injunctive relief for an abuse of discretion. Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 110; 593 NW2d 595 (1999). A court abuses its discretion if its decision is “outside the range of reasonable and principled outcomes.” Barrow v Detroit Election Comm’n, 305 Mich App 649, 662; 854 NW2d 489 (2014). “The interpretation and application of court rules . . . presents a question of law that is reviewed de novo.” McAuley, 457 Mich at 518. “Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury.” Jeffrey v Clinton Twp, 195 Mich App 260, 263-264; 489 NW2d 211 (1992). Under the court -9- rules, a temporary restraining order may be granted, “only if it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result . . . .” MCR 3.310(B)(1)(a). This is separate from the four-part analysis required to issue a preliminary injunction. State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984). Petitioner first argues that he was entitled to an interview or a hearing before his motion was denied pursuant to MCR 3.705. However, MCR 3.705 applies to personal protection orders, not temporary restraining orders. MCR 3.705. Personal protection orders are granted in accordance with MCL 600.2950 and MCL 600.2950a. MCL 600.2950 applies to domestic personal protection orders, and MCL 600.2950a(31) specifically states that “[a] court shall not issue a personal protection order . . . if the petitioner is a prisoner.” Furthermore, there is no requirement that the court hold a hearing on a motion for a temporary restraining order. MCR 3.310. After review of petitioner’s motion for temporary restraining order, it is apparent that the trial court did not abuse its discretion in denying him relief. Petitioner’s “irreparable harm” arguments were based on his arguments, dismissed above as meritless, that his parole was illegally conditioned on his residence at KPEP and his completion of sex offender programming. Other irreparable harm was based on alleged harassment during sex offender programming and “stalking” by psychologists who were “verbally attacking” him and “stating [that he thought] he kn[ew] everything.” Further, he asserted that being required to participate in sex offender programming and psychiatric treatment in order to reobtain his previous parole status was coercion and causing him emotional distress. Finally, he argued that he was facing irreparable harm because being detained in prison “creates emotional distress and is a threat to [his] life.” Despite being unhappy with his prison conditions and his mental health treatment, petitioner did not articulate how he was suffering a real or imminent danger of irreparable injury. MCR 3.310(B)(1)(a). Accordingly, the trial court did not abuse its discretion in denying petitioner’s motion for a temporary restraining order. VIII. DAMAGES Petitioner argues that he is entitled to damages. However, because he has been denied all other relief, damages are not appropriate. IX. CONCLUSION Petitioner was not entitled to mandamus relief, summary disposition, or a temporary restraining order or preliminary injunction. We affirm the trial court’s order. /s/ David H. Sawyer /s/ Stephen L. Borrello /s/ Deborah A. Servitto -10- 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 98-3936 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Raydell Lacey, also known as Lacey, * also known as Camile, also known as * Raydell Laye Lacey, also known as * Raydell F. Lacey, * * Appellant. * ___________ Submitted: April 11, 2000 Filed: July 19, 2000 ___________ Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,1 Judge. ___________ WOLLMAN, Chief Judge. 1 The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation.  Raydell Lacey appeals from her conviction for conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 846 and from the district court’s2 denial of her motion for a mistrial. We affirm. I. On September 25, 1995, Cedar Rapids, Iowa, police officers obtained a warrant to search an apartment shared by Lacey and Kelvin Knight. Much of the information used to procure the warrant was provided by Sue Zieser Perkins (Zieser), a confidential informant who made a controlled drug buy from Lacey and provided police with additional information regarding Lacey’s alleged drug activity. Later that day, officers executed the warrant and discovered cocaine, crack cocaine, a pager, a glass tube with residue consistent with the production of crack cocaine, and other drug packaging and use paraphernalia. Lacey and Knight were charged with possession with intent to distribute cocaine and crack cocaine and conspiracy to distribute these substances. Lacey was tried before a jury in August of 1998. Among the government’s witnesses was Zieser. The government failed to inform Lacey prior to trial that Zieser was the confidential informant used to secure the September 1995 warrant, and during direct examination Zieser testified only about other drug purchases that she had made from Lacey, making no specific mention of the controlled buy. As a result, Lacey did not learn of Zieser’s cooperation with the police until a sidebar conference during Lacey’s cross-examination of Zieser. Upon learning of this information, Lacey moved for a mistrial. The court deferred ruling on Lacey’s motion and proceeded with trial. The jury convicted Lacey of conspiracy to distribute cocaine and crack cocaine but failed to 2 The Honorable Michael J. Melloy, then Chief Judge, United States District Court for the Northern District of Iowa. -2- reach a verdict on the possession with intent charge. Lacey then moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and for a new trial under Rule 33, asserting in each motion that there was insufficient evidence to support her conviction. The court denied Lacey’s motion for a mistrial and her Rule 29 and Rule 33 motions and sentenced her to 121 months’ imprisonment and eight years’ supervised release. This appeal followed. II. Lacey first contends that the district court improperly denied her motion for a mistrial. She argues that the government’s failure to disclose Zieser’s cooperation with the police hindered her ability to impeach Zieser’s credibility, thus violating her Sixth Amendment right to confrontation and warranting a declaration of mistrial. We may reverse a district court’s denial of a motion for a mistrial only if the denial was an abuse of discretion that clearly prejudiced the moving party. United States v. Van Chase, 137 F.3d 579, 583 (8th Cir. 1998). “The Confrontation Clause of the Sixth Amendment guarantees to a defendant the opportunity for effective cross-examination of witnesses against [her], including inquiry into the witnesses’ motivation and bias.” United States v. Triplett, 104 F.3d 1074, 1079 (8th Cir. 1997) (quoting United States v. Willis, 997 F.2d 407, 415 (8th Cir. 1993)). This guarantee is not without limitation, however, as district courts “retain wide latitude . . . to impose reasonable limits on cross-examination when they have concerns about harassment, prejudice, confusion of the issues, a witness’s safety, or interrogation that is repetitive or only marginally relevant.” United States v. Stewart, 122 F.3d 625, 626-27 (8th Cir. 1997). The Confrontation Clause is thus violated only “when the defendant shows ‘[s]he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.’” United States v. Boykin, 986 F.2d 270, 276 (8th Cir. 1993) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). -3-  We conclude that Lacey was not improperly prohibited from effectively cross- examining Zieser. Although the government failed to disclose Zieser’s police involvement prior to trial, once that fact was disclosed the court halted the trial and ordered the government to produce all police reports regarding Zieser’s involvement in this case and in any other drug investigation. The court then conducted an in camera review of these materials and disclosed to Lacey all information pertaining to her case, as well as all relevant information regarding Zieser’s cooperation in an unrelated investigation.3 Following this disclosure, Lacey’s counsel was given the opportunity to question Zieser regarding these matters but declined to do so. Thus, the Confrontation Clause was satisfied. See Van Arsdall, 475 U.S. at 679 (“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination . . . .” (citation omitted) (emphasis in original)); United States v. Ortega, 150 F.3d 937, 941 (8th Cir. 1998). Particularly instructive on this point is our ruling in Boykin. See 986 F.2d at 276-77. There, we held that the government’s failure to initially disclose information showing that a government witness may have perjured himself did not violate the Confrontation Clause because the defendant was eventually given the opportunity to confront the witness with this information at trial. See id. We reasoned that “[the witness’s] perjury was revealed before the trial was over, he was recalled to the witness stand, and [the defendant] ‘had the opportunity to expose to the jury the facts that would allow the jury to draw inferences regarding [the witness’s] credibility.’” Id. at 277 (quoting United States v. Simmons, 964 F.2d 763, 770 (8th Cir. 1992)). The same is true here: Lacey learned of Zieser’s police cooperation at the close of her cross-examination of Zieser and the court gave Lacey’s counsel the opportunity to recall Zieser to the stand and question her regarding these matters. Thus, Lacey cannot 3 The district court withheld the specific details of the unrelated investigation in which Zieser assisted because it found that they were not relevant to any bias or improper motivation that Zieser may have had. Lacey does not contest this ruling. -4- now claim that she was “prohibited from engaging in otherwise appropriate cross- examination designed to show a prototypical form of bias on the part of the witness.” Boykin, 986 F.2d at 276 (quoting Van Arsdall, 475 U.S. at 680). In a related argument, Lacey asserts that the government failed to tender to the district court all existing evidence regarding Lacey’s police cooperation and thus violated the disclosure requirements of Brady v. Maryland. See 373 U.S. 83, 87 (1963) (requiring government to provide defendant with evidence material to defendant’s guilt or punishment). We disagree. Brady requires the government to disclose to a defendant only evidence that is in the government’s possession or that of which the government is aware. See United States v. Turner, 104 F.3d 217, 220 (8th Cir. 1997); United States v. Jones, 34 F.3d 596, 599-600 (8th Cir. 1994). Here, there is no evidence that there exists any information regarding Lacey’s police cooperation other than that which was given to the district court at trial. Thus, the dictates of Brady were not violated. In light of the sequence of events at trial, we conclude that the district court did not abuse its discretion in denying Lacey’s motion for a mistrial. II. Lacey also contends that her conviction is not supported by sufficient evidence and thus that the district court improperly denied her Rule 29 and Rule 33 motions. We turn first to Lacey’s Rule 29 motion for judgment of acquittal. In reviewing a district court’s denial of a motion for acquittal based on the insufficiency of the evidence, we view the evidence in the light most favorable to the verdict and will reverse only if no reasonable jury could have found beyond a reasonable doubt that the defendant is guilty of the offense charged. See United States v. Scott, 91 F.3d 1058, 1061 (8th Cir. 1996). To be guilty of conspiracy, a defendant must be shown to have knowingly entered into -5- an agreement with at least one other person to violate the law. See United States v. Holloway, 128 F.3d 1254, 1257 (8th Cir. 1997). After reviewing the record, we are satisfied that there is ample evidence to support a jury finding that Lacey entered into an agreement with Knight to distribute controlled substances. A search of the residence shared by Lacey and Knight revealed more than 5 grams of crack cocaine, 53 grams of cocaine, and various items of drug trafficking paraphernalia. In addition, Zieser testified that Knight would often deliver drugs that Zieser previously had agreed via telephone to purchase from Lacey. Tally Morales and Ted Hinrichsen offered similar testimony linking Knight and Lacey together in a joint venture to distribute cocaine and crack cocaine. Lacey attacks the credibility of these witnesses, but in considering a motion for acquittal we defer to the jury’s assessment of witness credibility, and here the jury deemed them credible. See Scott, 91 F.3d at 1062; United States v. Brown, 956 F.2d 782, 785-86 (8th Cir. 1992). Thus, based on the foregoing evidence, we cannot conclude that no reasonable jury could have found Lacey guilty of conspiring to distribute cocaine and crack cocaine. Accordingly, the district court properly denied Lacey’s motion for acquittal. We turn next to Lacey’s Rule 33 motion for a new trial. A district court may grant a new trial for insufficiency of the evidence “only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” Brown, 956 F.2d at 786 (quoting United States v. Lanier, 838 F.2d 281, 284-85 (8th Cir. 1988)). In making this determination, the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses. See Brown, 956 F.2d at 786. We review the denial of a motion for a new trial for a clear and manifest abuse of discretion. See United States v. Goodson, 155 F.3d 963, 967 (8th Cir. 1998). Again, after reviewing the evidence, we find no abuse of discretion in the court’s denial of Lacey’s new trial motion. Although the testimony of Zeiser, Morales, and -6- Hinrichsen was not without flaw, the cumulative effect of this evidence, together with the contraband discovered during the search of Lacey’s and Knight’s apartment, satisfies us that no miscarriage of justice has occurred. The judgment is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -7- 

142 F.3d 512 MEDICAL RECORDS ASSOCIATES, INC., Plaintiff, Appellant,v.AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, Defendant, Appellee. No. 97-2145. United States Court of Appeals,First Circuit. Heard March 3, 1998.Decided April 30, 1998. Thomas C. Regan for appellant. James F. Kavanaugh, Jr. with whom James Gray Wagner was on brief for appellee. Before LYNCH, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges. COFFIN, Senior Circuit Judge. 1 This diversity case requires us to determine whether setting fees for copies of medical records is, under Massachusetts law, part of the "professional service" provided by a medical records processing company, thus putting it within the coverage of a professional errors and omissions insurance policy. The appellee, American Empire Surplus Lines Insurance Co. (American Empire), refused to defend and indemnify the appellant, Medical Records Associates, Inc. (MRA), in connection with a claim of overcharging. The district court concluded that the insurer acted properly because its policy does not cover billing practices. We agree, and therefore affirm the dismissal of Medical Records' case. I. Background 2 Appellant MRA is a medical records processing business. It contracts with Massachusetts hospitals and medical centers to carry out the medical facilities' statutory obligation to provide patients or their attorneys with copies of the patients' medical records upon request. See Mass. Gen. L. ch. 111, §§ 70, 70E(g). MRA charges a fee, which is paid by the recipient of the records. 3 In August 1993, MRA received a demand letter on behalf of the law firm Lubin & Meyer, P.C., and others similarly situated, claiming that MRA had overcharged for copies and also may have included improper charges on its bills, in violation of Mass. Gen. L. ch. 93A and other state statutes. MRA referred the claim to American Empire, with whom it had an errors & omissions (E & O) policy providing defense and indemnification for claims based on the company's professional activities. American Empire declined coverage based on several policy exclusions, and MRA thereafter settled the case for an unspecified sum. The company then demanded that American Empire reimburse attorney's fees and settlement costs, but the insurer again refused. This breach of contract action followed. 4 The district court concluded that the Lubin & Meyer claim fell outside the coverage provided by the American Empire policy because the alleged overbilling was not part of MRA's professional service as a medical records processing company. It viewed billing as a "ministerial act," or "routine aftereffect," associated with, but not part of, the professional service performed by MRA. It therefore granted American Empire's motion to dismiss the complaint. MRA subsequently filed this appeal. Our review of a grant of dismissal is plenary. See Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 16 (1st Cir.1998). II. Discussion 5 A professional errors and omissions insurance policy provides limited coverage, usually as a supplement to a general comprehensive liability (CGL) policy,1 for conduct undertaken in performing or rendering professional acts or services. See, e.g., Jefferson Ins. Co. v. National Union Fire Ins. Co., 42 Mass.App. 94, 677 N.E.2d 225 (1997); American Int'l Bank v. Fidelity & Deposit Co., 49 Cal.App.4th 1558, 1574, 57 Cal.Rptr.2d 567 (1996) ("the insurer who issues a policy for errors and omissions insures against a far different risk than that insured against" under a comprehensive general liability policy). See also J. Appleman, 7A Insurance Law and Practice § 4504.01, at 310 (1979) ("An errors-and-omissions policy is professional-liability insurance providing a specialized and limited type of coverage as compared to comprehensive insurance ...") Whether the American Empire policy provides coverage is determined by comparing the allegations of the underlying claim--in this case, those contained in the Lubin & Meyer demand letter--with the policy provisions. See Sterilite Corp. v. Continental Cas. Co., 17 Mass.App. 316, 318, 458 N.E.2d 338, 340 (1983). The duty to defend arises if those allegations are "reasonably susceptible" of an interpretation that they state a covered claim, see id., but there is no duty to defend or indemnify if the allegations fall "expressly outside" the policy provisions, see Timpson v. Transamerica Ins. Co., 41 Mass.App. 344, 347, 669 N.E.2d 1092, 1095 (1996). 6 The policy at issue here states that American Empire's duty to defend attaches when a suit alleges "damages from, or connected with negligent acts, errors, omissions" within the scope of the policy's coverage. The nature of the insurance afforded by the policy is described in the indemnity provision, which states that the insurer will cover: 7 Loss which the Insured shall become legally obligated to pay ... by reason of any actual or alleged negligent act, error or omission committed in the rendering or failure to render the Professional Services stated in the Declarations. 8 The Declarations attachment identifies the professional services as "Medical Records Processor," but contains no elaboration of that term. 9 The policy thus requires American Empire to provide a defense and coverage for any claim that MRA improperly "render[ed] or fail[ed] to render the Professional Services" of a medical records processor. The question for us is whether the conduct that is the subject of the demand letter--fee-setting and billing--is among those services. Guided by the relevant cases and, as the caselaw directs, "ordinary experience and common sense," see Jefferson Ins., 42 Mass.App. at 102, 677 N.E.2d at 231 (citing Roe v. Federal Ins. Co., 412 Mass. 43, 49, 587 N.E.2d 214, 217 (1992)), we conclude that it is not. 10 A widely accepted description of the coverage provided by a professional E & O policy, framed by the Nebraska Supreme Court and endorsed repeatedly by Massachusetts courts, limits the scope of such policies to activity involving "specialized" knowledge or skill: 11 The term "professional" in the context used in the policy provision means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A "professional" act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.... In determining whether a particular act is of a professional nature or a "professional service" we must look not to the title or character of the party performing the act, but to the act itself. 12 Marx v. Hartford Acc. & Indem. Co., 183 Neb. 12, 13, 157 N.W.2d 870, 872 (1968), quoted in Roe, 412 Mass. at 48, 587 N.E.2d at 217 (noting that this standard has been "widely accepted"). Thus, even tasks performed by a professional are not covered if they are "ordinary" activities "achievable by those lacking the relevant professional training and expertise," Jefferson Ins., 42 Mass.App. at 100, 677 N.E.2d at 230. 13 In Jefferson Ins., the alleged negligent conduct involved delay by the insured company's ambulance in responding to a medical emergency. The court concluded that the basis for the delay--miscommunication between the ambulance company's radio dispatcher and the ambulance attendants about an address--did not constitute professional services. The court explained:It was rather in the nature of nonspecialized, clerical or administrative activity requiring neither special learning, intellectual skill, nor professional judgment. Nothing in the record suggests that specialized training, skill, or knowledge, beyond the normal intelligence of the ordinary prudent person, is required: to receive messages from the police, to relay those messages or otherwise supply ambulances with the information necessary for emergency medical technicians to render emergency services, to follow directions, or to locate and drive to specified addresses. To the contrary, ordinary experience and common sense ... indicate that such activities require only the everyday, practical abilities of the average adult, not the art of the adept. 14 Id. at 102, 677 N.E.2d at 231. In another of the few Massachusetts cases tackling the "professional services" issue, Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. 318, 324-25, 568 N.E.2d 631, 635 (1991), the inquiry concerned the failure of a consulting company to warn employees working on a project of certain job hazards. In deciding that an exclusion in a CGL policy for damages arising out of professional services did not apply, the court concluded that the challenged activities properly were viewed as "management tasks" of a nonprofessional nature. In Roe, too, application of the Marx standard led to a holding that the challenged conduct was nonprofessional; a dental malpractice policy was found inapplicable to damages caused by a dentist's improper sexual relationship with a patient. 412 Mass. at 49, 587 N.E.2d at 218.2 15 These cases do not paint an unwavering line of demarcation between "professional" and "nonprofessional" activities. While the conduct in Roe was entirely outside the provision of dental services, in both Jefferson and Camp Dresser, the alleged negligence occurred during the performance--or non-performance--of tasks that are "inherent in the practice of the insured's profession," see USM Corp. v. First State Ins. Co., 420 Mass. 865, 867, 652 N.E.2d 613, 614 (1995). In those cases, it was the unskilled nature of the specific task--not the absence of a professional endeavor--that rendered the professional services exclusion inapplicable. It is perhaps of some significance that the latter two cases involved exclusions to CGL policies--removing professional services from the policies' otherwise comprehensive coverage--rather than professional E & O policies, in light of the well established canon that insurance policies are to be construed in favor of the insured, see Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700, 555 N.E.2d 576, 583 (1990); Charles Dowd Box Co. v. Fireman's Fund Ins. Co., 351 Mass. 113, 119-20, 218 N.E.2d 64, 68 (1966). A court applying that maxim might well be inclined to find certain conduct to be both covered by a professional E & O policy but not excluded by a CGL policy's professional liability exclusion. 16 We think the bottom line, however, is that "professional services" as covered by an E & O policy in Massachusetts embrace those activities that distinguish a particular occupation from other occupations--as evidenced by the need for specialized learning or training--and from the ordinary activities of life and business. In this case, MRA has made a valiant effort to depict its fee-setting activity as an integral part of the service it provides to medical patients and their representatives. Because MRA is required by statute to charge a "reasonable" fee for the copies it provides, and because a high cost for copies could impact the statutorily guaranteed patient access to records, MRA makes the argument that billing is a crucial component of its professional activity--distinguishing it in that respect from other types of businesses. 17 Accepting the premise that MRA's billing practices are distinctively important because of the public policy concerns reflected by the state laws governing them does not, however, lead inevitably to the conclusion that they fall within the category of professional services. Simply because a task is regulated does not make it "professional." And, while knowing how to access a patient's file, determining whether a medical file is complete, and judging who is a proper recipient of medical records are activities that reasonably may be viewed to require particularized knowledge, we fail to see how setting a price for photocopies and producing accurate invoices are other than generic business practices.3 18 In addition, at oral argument on appeal, MRA acknowledged that the hospitals could have chosen to meet their statutory obligation of providing access to patient records by paying Medical Records directly, rather than imposing the cost on the requestors. And, before the district court, Medical Records conceded that "it could retrieve, copy and provide medical records without billing for the service." These assertions reinforce our view that the billing is most sensibly seen as either a separate service provided by Medical Records for the hospitals or, as the district court found, an incidental part of the business--but not the profession--of medical records processing. As in most other businesses, the bill is an effect of the service provided, not part of the service itself. 19 MRA suggests that characterizing the fee-setting component of its business as non-professional, because it does not satisfy the standard of "special learning acquired through considerable rigorous intellectual training," see Roe, 412 Mass. at 49, 587 N.E.2d at 217, would lead to exclusion of all of its services since any error committed by MRA could be traced to a ministerial act, e.g., searching the wrong hospital's records, omitting an important report from a medical record, or retrieving the wrong patient's file. The upshot, says MRA, is that a professional E & O policy such as the one it paid for would be worthless to a medical records business. 20 We disagree that classifying some of MRA's work as nonprofessional would cast all of it into that category. For example, in an age when privacy concerns are fundamental, judgments about who may have access to medical information are both significant and, it seems to us, not always easily made. The ability to make such decisions arguably depends on "special learning" and "intellectual skill," and the risks associated with release of records to unauthorized individuals appear substantial. Even if some aspects of record-processing, such as the copying of files or setting of fees, are deemed ministerial or "ordinary," that characterization does not negate the professional nature of its core functions. 21 Also unavailing is MRA's reliance on two attorney's fee cases, Continental Cas. Co. v. Cole, 809 F.2d 891 (D.C.Cir.1987), and Lyons v. American Home Assur. Co., 354 N.W.2d 892 (Minn.App.1984), neither of which involved a dispute over the amount charged for a professional service. In Cole, a referring attorney filed suit for breach of contract and fiduciary duty against a law firm that had not, as promised, obtained his consent to a settlement, and did not share the fees it received. In Lyons, partners of a lawyer, Lyons, sued, inter alia, for breach of fiduciary duty when Lyons forewent, without consulting them, a one-third contingency fee in favor of a smaller amount. Both cases, therefore, were attorney vs. attorney actions involving judgments in dealing with clients, not client disputes centering on the administrative procedures of setting fees or generating invoices.4 22 MRA also relies heavily on Jefferson Ins. Co., 42 Mass.App. at 94, 677 N.E.2d at 225, in which both a CGL insurer and an E & O insurer claimed the other was responsible for covering their common insured, an ambulance company. The allegedly negligent conduct was the delay in arriving at the home of a stricken individual who later died; the delay, as noted above, resulted from miscommunication of an address. The trial court allocated the loss solely to the E & O insurer, ruling that the CGL policy's professional services exclusion relieved that insurer of responsibility. On appeal, the only issue raised was whether the CGL policy also covered the loss. The appeals court held that it did, concluding that "the negligent conduct complained of did not constitute professional services," id. at 101-102, 677 N.E.2d at 230-31, and thus was not within the professional liability exclusion. Because there was no appeal from the ruling that the exclusion for professional services applied, the odd result was that both insurers were held liable. 23 MRA argues that Jefferson supports its position because the professional liability policy there was deemed applicable even though the alleged negligent conduct did not involve medical services or any activity or treatment typically thought of as "professional." Other than at that superficial level, however, Jefferson provides little support for MRA. First, the appeals court never considered whether the E & O policy provided coverage for the dispatcher/driver miscommunication, as the E & O insurer's liability was not challenged on appeal. Second, although the appeals court did explicitly recognize that the two policies overlapped in coverage in the circumstances of that case, see id. at 103 n. 18, 677 N.E.2d at 231 n. 18, it did not interpret the E & O policy. Rather, it noted the trial judge's reliance on deposition testimony from the E & O insurer's underwriting manager that the policy covered "any employee acting within the scope of his duties," and the judge's view that "the essential injury alleged in the complaint arose out of the failure to render (timely) emergency care services." Id. at 97 n. 9, 677 N.E.2d at 228 n. 9. The E & O insurer's concession of coverage therefore played a significant role in Jefferson. 24 Third, on the continuum of professional services, we think an ambulance company's failure to find the correct address quickly is much closer to the core of the emergency care profession than fee-setting is to the central function of the medical records profession. Indeed, setting a price for services and sending bills are functions of every business, and not ones inherent in the processing of medical records. 25 In sum, we are persuaded that the district court properly found that the allegedly improper conduct challenged in the Lubin & Meyer letter is not within the coverage of MRA's E & O policy. The judgment of the district court is therefore AFFIRMED. 1 Such a supplement is necessary because CGL policies often include a professional services exclusion. See Jefferson Ins. Co. v. National Union Fire Ins. Co., 42 Mass.App. 94, 96, 677 N.E.2d 225, 227 (1997) 2 The court stated: "The dentist's area of professional work involved the patient's teeth, and it is obvious that the patient's dental treatment did not require any of the acts that occurred." 412 Mass. at 50, 587 N.E.2d at 218 3 Further support for the conclusion that the policy did not include billing or fee-setting among the services for which coverage was provided is found in the policy application itself. The application asked MRA to "[d]escribe in detail the profession and professional services for which coverage is desired." MRA did not include billing or fee-setting in its response. It listed only the hands-on tasks associated with obtaining and providing copies of the medical records themselves: "Process Medical Record requests for Hospitals; Photocopy said records and forward to requestors; Provide other medical record consultative and management services, as required." We note that not all of the activities listed would, in fact, qualify as professional services. Photocopying, for example, would quite clearly not satisfy the Marx standard. 4 The district court distinguished Cole and Lyons based on their policy language. The policies at issue in those cases provided coverage for claims "arising out of" professional services; the American Empire policy requires that the claimed harm be "by reason of" acts or omissions "committed in the rendering or failure to render the Professional Services." It is a closer question whether the asserted injury here "arose out of" MRA's professional records processing service than whether it was "by reason of" the professional service. The latter arguably requires a determination that the harm alleged was due to the manner in which professional services were provided; the former appears to require only a connection between the challenged conduct and the insured's provision of professional services. See New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App. 722, 726, 667 N.E.2d 295, 298 (1996) ("The usual meaning ascribed to the phrase 'arising out of' is much broader than 'caused by'...."). As the policy here employs the narrower language, and MRA does not argue that that language provides coverage for conduct other than professional services, the difference in the formulations is of no consequence to our decision

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT DANIEL L. TAYLOR, ) ) Appellant, ) v. ) WD83238 ) ) OPINION FILED: THE CURATORS OF THE ) June 2, 2020 UNIVERSITY OF MISSOURI, ) ) Respondent. ) Appeal from the Circuit Court of Boone County, Missouri The Honorable J. Hasbrouck Jacobs, Judge Before Division Two: Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja and Gary D. Witt, Judges This appeal presents a procedural scenario in which the second count in a lawsuit relating to one “claim” was dismissed by the Circuit Court of Boone County, Missouri (“trial court”). Because the trial court’s ruling does not qualify as a “final judgment” pursuant to section 512.020(5),1 Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137 (Mo. banc Jan. 14, 2020), we are required to dismiss the appeal. 1 All statutory references are to the REVISED STATUTES OF MISSOURI 2016, as supplemented.  Factual and Procedural Background2 The Curators of the University of Missouri (“Curators”) is the governing body of the University of Missouri, which operates University Hospital (“Hospital”) in Columbia, Missouri. In 2014, the Hospital provided medical care to Mr. Daniel L. Taylor (“Taylor”) following a farming accident, which resulted in the amputation of Taylor’s left hand. At the time the Hospital provided services to Taylor, he was uninsured. Taylor agreed to be personally responsible for the medical billing since he did not have any health insurance. When Taylor did not pay his medical bills, Curators asserted a hospital lien in the amount of $134,661.64. In 2015, Taylor entered into a settlement agreement with his employer’s farm liability insurer in the amount of $1,005,000. The liability insurer withheld $134,661.64 from the settlement amount to satisfy the hospital lien. In 2016, Curators filed suit against the liability insurer to foreclose the lien, resulting in the liability insurer paying the full amount of the hospital lien to Curators. In 2018, Taylor filed suit against Curators, alleging that the Hospital represented on its “Financial Assistance” website that Hospital charges for uninsured patients were “automatically discounted” 60% and physician charges were “automatically discounted” 25%. He contended that because he was uninsured when he was admitted to the Hospital in 2014, the Hospital should have applied this “uninsured discount policy” to the amount of the medical billing. Taylor alleged that Curators’ receipt of $134,661.64 from the insurer was an “overpayment” of $75,082.53. Subsequently, Taylor filed a Second Amended Petition containing two counts. In Count I, Taylor alleged that Curators “refused to honor the ‘Uninsured Patient Discount’ and refused to 2 In reviewing a judgment granting a motion to dismiss with prejudice, “[w]e assume all facts alleged in the petition are true and liberally construe all reasonable inferences in favor of the plaintiff.” Williams v. Bayer Corp., 541 S.W.3d 594, 599 (Mo. App. W.D. 2017) (citing Smith v. Humane Soc’y of United States, 519 S.W.3d 789, 798 (Mo. banc 2017)). 2 reduce the medical billing to [Taylor], thereby breaching the contractual relationship entered in by [Taylor] and [Curators].” He alleged that Curators’ suit against the liability insurer “for payment of its full hospital lien” was “in violation of the contractual agreement.” He further alleged that “[a]s a result of the overpayment, [Curators] breached its contract with [Taylor] to accept discounted payment because of [Taylor’s] uninsured status and [Taylor] is thereby damaged in the same amount as the overpayment and for attorney’s fees.” In Count II, Taylor incorporated by reference the allegations in Count I and repeated allegations regarding the hospital lien relating to Curators’ effort to successfully obtain the full amount of the hospital lien in violation of its automatic deduction agreement with its uninsured patients. In this count, however, Taylor sought a different remedy for the Curators’ alleged misdeeds, alleging that the actions of Curators were a violation of the Missouri Merchandising Practices Act (“MMPA”) due to the Curators’ “misrepresentation, unfair practices, and suppression in that the asserted lien was for the full amount of the medical billing and did not include the required automatic discount for an uninsured patient.” Taylor sought all statutorily authorized damages for the alleged MMPA violation by Curators. Curators filed a motion to dismiss Taylor’s Second Amended Petition. Curators argued that Count I for breach of contract should be dismissed because Taylor failed to plead sufficient facts to show that he entered into a contract with Curators for a discount in his medical bills. Curators argued that Count II should be dismissed because Taylor failed to plead facts establishing that an exception to sovereign immunity applied that would subject Curators to liability under the MMPA. The trial court issued a judgment of dismissal as to Count II only and purported to certify its ruling as “final” and immediately appealable pursuant to Rule 74.01(b).3 3 All rule references are to I MISSOURI COURT RULES – STATE 2019. 3  Taylor appealed from the judgment of dismissal, asserting trial court error in its application of sovereign immunity and in its statutory interpretation of the MMPA. Curators filed a Motion to Dismiss Interlocutory Appeal, alleging that the trial court’s partial dismissal did not qualify as a “final judgment” subject to interlocutory appeal. For the reasons hereinafter explained, we grant Curator’s motion and dismiss Taylor’s appeal for lack of a final judgment. Analysis Recently, the Missouri Supreme Court in Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137 (Mo. banc Jan. 14, 2020), clarified the analysis of what trial court rulings constitute “judgments” and, of those rulings, which are “final” for purposes of appeal.4 “‘The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.’” Id. at *3 (quoting First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc., 515 S.W.3d 219, 221 (Mo. banc 2017)). The statute pertinent to this case is section 512.020(5), which provides, in relevant part: Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any: .... (5) Final judgment in the case or from any special order after final judgment in the cause . . . . (Emphasis added.) For purposes of section 512.020(5), a “final judgment” must satisfy two criteria: (1) “it must be a judgment (i.e., it must fully resolve at least one claim in a lawsuit and establish all the rights and liabilities of the parties with respect to that claim)”; and (2) “it must be “[T]he question of whether a judgment is eligible for certification under Rule 74.01(b) is a question of law 4 on which the circuit court has no discretion; only the question of whether an eligible judgment should be certified under Rule 74.01(b) is left to the sound exercise of the circuit court’s discretion.” Wilson, 2020 WL 203137, at *5. 4 ‘final,’ either because it disposes of all claims (or the last claim) in a lawsuit, or because it has been certified for immediate appeal pursuant to Rule 74.01(b).” Wilson, 2020 WL 203137, at *5. As to the second step in the “final judgment” analysis: A judgment is eligible to be certified under Rule 74.01(b) only if it disposes of a “judicial unit” of claims, meaning it: (a) disposes of all claims by or against at least one party, or (b) it disposes of one or more claims that are sufficiently distinct from the claims that remain pending in the circuit court. Id. Wilson instructs us that the “final judgment” analysis is a conjunctive two-step analysis and not a disjunctive analysis. An appellant must have both a judgment and finality in order to appeal pursuant to section 512.020(5).5 Here, Taylor appeals from the trial court’s purported judgment, dismissing with prejudice Count II (MMPA claim) of Taylor’s Second Amended Petition against Curators and certifying the judgment under Rule 74.01(b) as a final judgment for purposes of appeal. Whether viewed as the failure to resolve a distinct “claim,” or as the failure to resolve a distinct “judicial unit,” the result is the same: we lack appellate jurisdiction over the circuit court’s purported judgment.6 Before analyzing the second step in the “final judgment” formula (i.e., the trial court’s Rule 74.01(b) certification), we must analyze the first step—whether the trial court’s dismissal ruling constitutes a “judgment.” As our Missouri Supreme Court has observed: There is persistent confusion surrounding the issues of what a judgment is, what form it takes, and when it is entered. The first, and most important, of these issues is definitional: a judgment is a legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim. 5 In Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137, at *8 n.7 (Mo. banc Jan. 14, 2020), the Missouri Supreme Court took care to note that the previous Supreme Court precedent of Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997), was incorrect to the extent that it stated that Rule 74.01(b) was an “exception” to the mandate that only “final judgments” are appealable. 6 We recognize that there is some confusion in the case law concerning whether the factual overlap between separate legal theories means that the legal theories constitute a single “claim,” a single “judicial unit,” or both. It is unnecessary for us to resolve that issue here, since Taylor’s appeal fails under either analysis. 5 State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019) (emphasis added). Taylor argues that the trial court’s judgment dismissing Count II is final and appealable because, even though both counts arise from the same set of facts, the remedies asserted in the two counts (breach of contract and MMPA) are different. Taylor’s argument is unavailing. “Claims are considered separate if they require proof of different facts and the application of distinguishable law, subject to the limitation that severing the claims does not run afoul of the doctrine forbidding the splitting of a cause of action.” Wilson, 2020 WL 203137, at *5 (quoting Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 451 (Mo. banc 1994)). Here, Counts I and II of Taylor’s Second Amended Petition, although seeking different remedies, arise from one set of facts, namely:  the imposition of a hospital lien for Taylor’s unpaid medical bills without an “uninsured patient discount” that Taylor alleged was “stated” on the Hospital website;  Curators’ imposition of a hospital lien for the full amount of the medical billing;  Curators’ suit against the insurer to foreclose on the hospital lien;  Curators’ receipt of insurance proceeds to cover the full amount of the hospital lien; and  Taylor’s attempt to recover the alleged “overpayment” of $75,082.53 from Curators. Consequently, the purported judgment of dismissal of Count II has not “fully resolve[d] at least one claim in a lawsuit” nor “establishe[d] all the rights and liabilities of the parties with respect to that claim.” Wilson, 2020 WL 203137, at *3. Simply put, then, the trial court’s ruling dismissing Count II cannot be designated a “judgment” in the first instance. Even if the breach of contract and MMPA counts of Taylor’s petition are considered different “claims,” they constitute part of a single “judicial unit,” and therefore would not be certifiable under Rule 74.01(b). Wilson explained that, where a dispositive ruling does not wholly resolve all claims brought by or against a particular party, it only involves a discrete “judicial unit” 6 if it “disposes of one or more claims that are sufficiently distinct from the claims that remain pending in the circuit court.” Wilson, 2020 WL 203137, at *5. As explained above, even if the breach of contract and MMPA counts were considered separate “claims,” they both arise from the same underlying set of operative facts, and constitute parts of a single “judicial unit.” Accordingly, because the October 9, 2019 judgment is not a “final judgment” subject to certification under Rule 74.01(b), we have no choice but to dismiss this appeal. Id. at *1. Conclusion This Court grants Curator’s motion to dismiss and dismisses Taylor’s appeal for lack of jurisdiction. /s/Mark D. Pfeiffer Mark D. Pfeiffer, Presiding Judge Alok Ahuja and Gary D. Witt, Judges, concur. 7 

149 F.2d 359 (1945) FIREMEN'S MUT. INS. CO. v. APONAUG MFG. CO., Inc., et al. No. 11270. Circuit Court of Appeals, Fifth Circuit. May 11, 1945. *360 *361 Ross R. Barnett, Rufus Creekmore, and H. H. Creekmore, all of Jackson, Miss., for appellants. Ben F. Cameron and Lester E. Wills, both of Meridian, Miss., Japtha F. Barbour, Sr., of Yazoo City, Miss., and Toxey Hall and Lee D. Hall, both of Columbia, Miss., for appellees. Before SIBLEY, HUTCHESON, and LEE, Circuit Judges. SIBLEY, Circuit Judge. This appeal is from a summary judgment for the defendants on a complaint brought by appellants against the appellees for damages as for a tort. The plaintiffs alleged that they were insurers against loss by fire of a cotton mill belonging to Aponaug Mfg. Co., Inc., when on Dec. 21, 1938, R. D. Sanders, its president and treasurer and sole stockholder, and exercising sole control over the corporation, in conspiracy with the mill superintendent, C. D. Kent, and one Noel McMahan, burned the mill to collect the insurance, and that $187,634 was paid on a statement of loss in that amount presented by R. D. Sanders for the Company; and that he fraudulently concealed the fact of the fraudulent fire. Judgment was prayed against all and each of the defendants. The Company's answer admitted the insurance, the fire and the collection of $187,634 on a statement of loss presented by Sanders, and that he was its president and treasurer, but denied that he was sole stockholder or exercised full control, and denied he had any authority to so conspire, or that any such conspiracy occurred. Kent answered admitting he was superintendent but denying the conspiracy, or knowledge of the insurance. Sanders denied he was sole stockholder or controlled the Company, but admitted he was president, treasurer, and a director of the Company, and a co-trustee of the stock along with two others, and that he was acting as general manager of the Company under bond, but he denied the conspiracy to burn the mill; and otherwise adopted the answer of the Company. McMahan was later made a defendant, but if served, he made no answer. No judgment was entered as to him. A jury trial was duly demanded. On the face of the pleadings therefore there were issues as to the fraud of the fire, and who were responsible for it; as to the concealment of the non-liability of the insurers when the loss was settled; and a subsidiary issue as to Sanders' ownership and control of the Company. These issues were material to the case or cases alleged. If Sanders, Kent and McMahan wilfully set fire to the mill, without the complicity of the corporation, in order to cause the insurers to pay, they committed a wrong, and would be individually liable for the injury intentionally done. The insurance would remain valid, and the corporation for its innocent stockholders and creditors could collect, and the insurers after paying would ordinarily be subrogated to the corporation's right of action against the burners of its property; and in our judgment, though subrogation is not expressly alleged in the complaint as a ground of recovery, the wilful setting of the fire and intentional injury to the insurers would give them a direct right to sue. 36 C.J.S., Fires, §§ 11, 12. Another, and more prominently stated ground of suit is based on the complicity of the insured corporation. If it set a fraudulent fire to collect its insurance, it would have no better right to the insurance money than an insured individual would; but there is the question whether the fire, even though wilfully set by someone connected with the corporation, was really set by the corporation. It seems that such act of an officer not authorized thereto by the stockholders, or the act of one but not the sole stockholder, will not be charged to the corporation to the prejudice of innocent stockholders; but if he is practically the sole stockholder, the corporate entity will be disregarded, and his fraud be held as that of the corporation. Sec. 29 Am. Jur., Insurance, § 1028, 1029. There is authority too to the effect that if the incendiary is in control of the business policies of the corporation, though not sole stockholder, the insurance is defeated by his fraud, Kimball Ice Co. v. Hartford, 4 Cir., 18 *362 F.2d 563, 52 A.L.R. 799, but we do not at present express an opinion on that point. The motions for summary judgment of course raised the question whether these issues, though in law material, were "genuine". Rule of Civil Procedure 56(e), 28 U.S.C.A. following section 723c. A pretended issue, one that no substantial evidence can be offered to maintain, is not genuine. The rule provides that the genuineness of an issue made by the pleadings may be promptly tested by summary proceedings before the judge in which ex parte affidavits may be used. In this case the defendants presented affidavits from Sanders, Kent and McMahan that there was no conspiracy, and no fraudulent fire, though it was evidently incendiary; and there was record proof that the stock of the Company was vested in three trustees under the will of J. W. Sanders, R. D. Sanders being a trustee and the beneficial owner of one-eighth of the stock. The trustees elected themselves as directors of the Company, and R. D. Sanders held the offices above stated. One trustee had died at the time of suit, but the third made affidavit that so far as he knew no one connected with the Company had anything to do with the fire or any authority to conspire to cause it. Against this the plaintiffs introduced two sworn statements made by McMahan to local police officers in 1940, that he and Kent had been hired by R. D. Sanders to burn the mill to collect the insurance, and that two efforts had failed but the third succeeded. It was proved that McMahan and Kent were indicted for the arson and McMahan was on his plea of guilty sentenced to the penitentiary. He had reiterated this account of the burning to the plaintiffs in a written statement shortly before the complaint was filed. Before the hearing his deposition was taken by the defendants and his testimony was a repudiation of these three statements, and that he knew nothing of the origin of the fire. The plaintiffs having thus lost their main witness were given time to secure other evidence. That presented included an affidavit that some time after the mill was burned Kent had told one affiant that the new automobile in which he was riding Sanders had given him, besides $5,000, for burning the mill. This affiant later gave another affidavit that Kent was quite intoxicated at the time and affiant paid no attention to what he said. There was also an affidavit from one Germany in brief that in 1938 he was friendly with Kent and through him met Sanders; Sanders asked if he wanted to make some money, that he wanted to get rid of the mill; a second time Sanders said he wanted the mill completely burned and would pay somebody $1,000 to do the job; and a third time Sanders said he had got Noel McMahan to do the work and affiant could help, but affiant declined; that the night of the fire, and just after the fire, affiant saw Kent who said he was going to celebrate with Noel, and would call Sanders up (who lived in another city) and tell him the damn job is over with; and affiant a few days later heard McMahan tell his wife to call Kent and Sanders up and tell them if they did not come and pay him out of jail he was going to tell the whole damn thing about burning the mill. A number of impeaching affidavits were filed attacking both the character and mentality of Germany, and some affidavits supporting him were also filed. A proposal was made by the plaintiffs to take his deposition in the presence of the judge that his manner and demeanor might be observed, but this was not done. Application was also made by plaintiffs to take regularly the deposition of J. C. Sanders, a brother of R. D. Sanders, who lived in Alabama and owned one-eighth of the Company's stock, and who it is claimed would testify to the full and complete control of R. D. Sanders over the Company's affairs. The taking of the deposition was opposed on a showing by certified transcript that the witness had been indicted in the District Court of the United States for the Southern District of Alabama for perjury in connection with a claim for insurance on another burned cotton mill, and that he was convicted and sentenced to the penitentiary. The judge held him an incompetent witness and ordered that his deposition be not taken. After argument and consideration the judge wrote a letter, in lieu of an opinion, in which he expressed the view that in a fraud case in Mississippi the evidence of the fraud must be more than a preponderance, but must be clear and convincing, that the testimony of Germany was unreasonable, and he had denied knowing anything about it right after the fire, and was so impeached otherwise as to be unworthy of belief; and the statements attributed to Kent would be only hearsay because made after the *363 alleged conspiracy had been consummated; so that if a verdict were rendered for the plaintiffs the court would be compelled to set it aside. Summary judgment was accordingly entered for the defendants. This judgment was erroneous. The statements of Kent were admissions of his own implication in the arson, whenever made. Likewise the three former statements of McMahan were admissions that could be used as evidence against McMahan. He would hardly have taken a penitentiary sentence on a plea of guilty if he did not burn the mill, and no motive for his burning it appears except that which he originally asserted. Germany's testimony that Sanders wanted to get rid of the mill and was trying to hire someone to burn it is monstrous, but such things have happened. It is not in a legal sense incredible, and is admissible against Sanders. There is thus some admissible evidence against each to show that each had a hand in a wilful fire, for which they may be liable in damages. The impeachment of the witness Germany is not a matter for decision on summary judgment. A jury trial had been demanded in this case, and it being a suit at common law, was a constitutional right. The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses where they contradict one another, or themselves. We do not think the judge ought on a motion for summary judgment to have considered the affidavits attacking or sustaining the character of the witness. He should not have concerned himself at this time with the question what he would do if the jury should render a verdict for plaintiffs. A judge indeed does not know what he would do in that regard until he has heard the trial in open court before the jury and has the benefit of the opinion of the jury expressed in their verdict. Only when the evidence is such that it is clear the jury would have none to go on, though they believed that unfavorable to the movant for summary judgment, can the motion be sustained and a jury trial denied. We think also that the testimony of J. C. Sanders ought to be allowed taken. He is a stockholder equally interested in the mill with R. D. Sanders and has had, it appears, fire troubles with his cotton mill. His testimony might throw light on the Company's affairs and liability. A conviction of perjury, though creating a general disqualification to testify at common law and in Mississippi, goes only to the convict's credit in a federal court, at least when the conviction is under the federal statute punishing prejury. Prior to 1909, under R. S. § 5392, a part of the punishment for perjury under the law of the United States was an incapacity to give testimony in any court of the United States. The Criminal Code, 18 U.S.C.A. § 231 and Historical Note, wholly omits that result of conviction, and expressly repealed R.S. § 5392. See Lucks v. United States, 5 Cir., 100 F.2d 908; Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406. The Rosen case asserts the general modern tendency to hear the witness and let conviction of crime affect only his credibility. The Act of 1906, 28 U.S. C.A. § 631, made the competency of witnesses in a civil case to depend on the State law, but Rule of Civil Procedure, 43 (a), modifies this, and directs the admission of all evidence that is admissible either under the statutes of the United States or the rules observed in the federal courts or the rules applied in the courts of the State where the trial is held. Where the question depends on the effect of a conviction of perjury under the perjury statute of the United States, we think that statute controls, and having been altered in 1909 so as to make the testimony of the convict admissible it ought to be admitted. We need not decide what a Mississippi court would do under the statutes of Mississippi. We may observe finally that, though it might be difficult to conclude that one who as the president and treasurer of a corporation could not sell the corporation's plant without authority from the stockholders, could as a corporate act burn it to collect insurance, yet as the treasurer he has the authority and duty to represent the corporation in collecting the insurance, and any concealments or other frauds committed by him in so doing would be attributable to it. If persons not authorized by the corporation burned its mill, that would not affect the validity of the insurance, and a failure by the treasurer to tell what he knew about it would not necessarily be a fraudulent concealment. But if he knew that the mill was burned by authority of the corporation to collect the insurance, his making claim for insurance which he knew *364 was not owing, without disclosure of the facts, would be a fraudulent concealment. We do not wish to try to settle the law of the case at this time, but only to emphasize the difference in the basis on which liability may arise on the part of the corporation, and on the part of the individual defendants. The corporation can be liable only if it by competent authority fraudulently burned its mill and then by concealment of its fraud collected insurance not really due. The individuals sued may be liable if they wilfully burned the mill, though the corporation was not a party to any plan to do it. The case is such in our opinion that it ought to be fully developed before a jury in regular course, and not disposed of by summary judgment. Judgment reversed.

218 N.W.2d 164 (1974) Verdell J. SUEDEL, Plaintiff-Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Defendant-Appellee. Civ. No. 8974. Supreme Court of North Dakota. May 20, 1974. Rehearing Denied June 4, 1974. Robert A. Alphson, Grand Forks, for plaintiff-appellant. David L. Evans, Special Asst. Atty. Gen., Bismarck, for defendant-appellee. ERICKSTAD, Chief Justice. Verdell J. Suedel, now Johnson, filed an application with the North Dakota Workmen's Compensation Bureau for the payment of benefits in connection with the death of her husband, Robert A. Suedel, in which she alleged that Robert was employed at the time of the injury which caused his death by KTYN, KNOX, Grand Forks, North Dakota; that he received this injury while in the course of employment on the 16th day of November 1971; that said injury consisted of a ruptured aneurysm which resulted from "excessive pressure of work"; that this injury resulted in his death on the 25th day of November 1971. The employer, KNOX Radio, Inc., filed a report with the Workmen's Compensation Bureau in conjunction with this claim to the effect that Mr. Suedel was employed by it as an announcer; that no accident occurred on the job; that, however, Mr. Suedel complained of headaches while on the job, and that on one day they became so severe that he asked to be relieved and was taken to the hospital by one of the staff. Apparently it was on the 16th of November 1971 that Mr. Suedel was taken to the hospital, where he remained until he *165 died on the 25th of November 1971. Subsequent to a hearing on March 7, 1973, the Workmen's Compensation Bureau, on May 7, 1973, issued its findings of fact, conclusions of law, and order denying the claim. On May 24, 1973, Mrs. Johnson took an appeal from the order of the Workmen's Compensation Bureau, in which she contended that the Bureau erred in determining that the evidence failed to prove a causal relationship between the deceased's occupation and the ruptured aneurysm which resulted in his death. The district court, on August 9, 1973, affirmed the order of the Workmen's Compensation Bureau, concluding that the Bureau's findings of fact were supported by the evidence and that its conclusions of law were in accordance with the findings and were supported by law. On appeal to this court Mrs. Johnson asserts that the trial court erred in so concluding. In Haggart v. North Dakota Workmen's Compensation Bureau, 171 N. W.2d 104 (N.D.1969), we determined the scope of review in cases such as this. In Syllabus ¶ 2 we said: "The trial de novo in the district court on the record made before an administrative agency and in the Supreme Court on an appeal from the district court in an administrative agency proceeding, as it relates to a determination of the facts, is limited to determining whether there is substantial evidence to support the administrative agency's findings of fact." Haggart v. North Dakota Workmen's Compensation Bureau, supra, 171 N.W. 2d 104 at 105. See also Ambroson v. North Dakota Workmen's Compensation Bureau, 210 N.W.2d 85 (N.D.1973), Syllabus ¶ 2. Because of the importance of the findings and conclusions of the Bureau, we set them forth at this time. "FINDINGS OF FACT "I. "That the deceased began experiencing severe headaches in July or August, 1971, and was hospitalized on November 16, 1971. "II. "That the deceased expired on November 25, 1971, and the cause of death was diagnosed as: `Massive subarchnoid hemorrhage with intracerebral hematoma, right, secondary to ruptured aneurysm anomalous, right posterior communicating artery.' "III. "That evidence adduced indicates that a condition such as that experienced by the deceased could be the result of weakness in the vessel finally getting to the point of rupture. "IV. "That leaking aneurysms do not heal but get progressively worse. "V. "That the aneurysm could have been leaking for some time and could have been the cause of deceased's headaches starting in July. "VI. "That the pain from the headaches would tend to cause stress which could raise blood pressure which in turn could cause the eventual fatal rupture. "VII. "That the deceased normally worked a 10 hour day with one 18 hour day being *166 worked on October 14, 1971, at the deceased's own request. "VIII. "That the deceased carried out his normal occupational duties during the time immediately prior to his hospitalization, and testimony indicates that the deceased enjoyed his work, was a better than average employee, and was to be promoted just prior to his death. "IX. "That enjoyable or pleasant experiences do not cause stress. "X. "That the testimony of Doctors Wallace, a psychologist, and Olmstead, an internist, was based on a hypothetical question and their knowledge of medical reports on file in this case, and not on any personal knowledge of the deceased's previous physical health nor his psychological state. "XI. "That the aneurysm itself was an underlying condition and it could have ruptured under any number of circumstances. "Based upon the above Findings of Fact, the Commissioners of the North Dakota Workmen's Compensation Bureau make the following: "CONCLUSIONS OF LAW "I. "That the evidence submitted to the Bureau fails to establish and prove a causal relationship between the deceased's ruptured aneurysm and subsequent death and his occupation. "II. "That the claimant has failed to prove that she is entitled to benefits under the North Dakota Workmen's Compensation Act as the result of the death of Robert A. Suedel on November 25, 1971." To determine whether there is substantial evidence to support the findings, we shall review the evidence submitted to the Bureau. Mrs. Verdell Johnson, formerly Verdell Suedel, hereinafter referred to as Mrs. Suedel, testified that she and Robert Suedel were married on October 29, 1966, at Petersburg, North Dakota; that prior to Mr. Suedel's employment with KNOX the Suedels lived in Minneapolis; that they moved to her father's farm in May of 1971; that Mr. Suedel's health was fine in March and April of 1971; that prior to their marriage Mr. Suedel had been involved in an automobile accident and that two or three days before they were married he had been hospitalized in "St. Mike's" Hospital; that prior to their marriage Mr. Suedel had surgery on his back; that in May and June of 1971 his health was fine; that while living with her parents at Petersburg Mr. Suedel commuted daily to Grand Forks in connection with his employment as a radio announcer for KNOX and its predecessor; that he commenced work with the radio station on the 1st of June 1971; that he worked extra hours on many days and worked all weekends; that in August she noticed that Mr. Suedel was slowly getting more rundown from working so many hours and driving back and forth; that sometime in September or October the station switched over to tapes and that this required a lot of extra work on Mr. Suedel's part in learning the new process; that in order to be at work on time he had to get up at 5:30 in the morning; that he drove 60-some miles each way; that two weeks before he became sick necessitating his hospitalization he had a terrific headache on his day off, and that on that occasion his headache was so bad *167 that he couldn't see to drive an automobile; that Mr. Suedel said the work was really hectic; that towards the last when the station acquired the new computer for tapes, Mr. Suedel was always checking and rechecking to make sure it was right; that he became forgetful; that upon arriving home after a twelve-hour day he was exhausted; that he didn't complain about being in radio, because it was his lifetime dream; that he did say that the hours were long; that he would say that maybe after a good night's sleep things would be better; that towards the last he was more nervous than usual, although he didn't seem like the nervous type; that towards the last he was a completely different man. Mr. Robert Hanson, the vice president, auditor, and accountant for KNOX, testified that he was not associated with Mr. Suedel or the company which employed Mr. Suedel until KNOX purchased the business on September 9, 1971; that the company from which KNOX purchased the station was Valley Broadcasting Company; that KNOX bought the assets of the corporation, not the corporation itself; that Mr. Suedel worked 262 hours during the month of October 1971; that Mr. Suedel was paid overtime after forty hours per week; that Mr. Suedel worked 128¾ hours for KNOX from November 1 through November 16, 1971; that Mr. Suedel worked 187 hours from September 9 through September 30 for KNOX; that during the time that Mr. Suedel was employed with KNOX the company had no program director, but that Mr. Lockhart managed that part of the station and was Mr. Suedel's supervisor. In response to an inquiry as to what were Mr. Suedel's average work hours per day, Mr. Hanson testified: "A Any one day? Well, it appears that generally his work schedule was ten hours a day. Now, there were some days—for instance, the September one, one day was a twelve-hour day and three days were six-hour days and one day was a nine-hour day, and in October there was a twelve, a nine and three-quarters and then five ten-hour days, a five-hour day, three more ten-hour days, a six-hour day and an eighteen-hour day, that being the largest one of all the time, and I understand at that time he was asked by one of the other employees to cover for him, which he did. It wasn't at our insistence or anything. "Q So in other words, he worked two shifts; his own and someone else's? "A Yes. Then on October 31st, the period ending that date, there is a five-hour day, five ten-hour days, a seven-hour day, four ten-hour days and two seven-hour days, and the last period in November, with the exception of the Saturday shift, they were all ten-hour days. "Q What was the Saturday? "A A seven and—seven and three-fourths." Dr. John Wallace of Grand Forks, North Dakota, whose formal education includes a bachelor's degree from the University of North Dakota, a master's degree from the New School for Social Research, and a doctor's degree in psychology from the University of Vienna, Austria, testified in response to a hypothetical question. The hypothetical question and other questions and the answers of the doctor follow: "Assume that Robert Suedel, age 36, was employed in the radio broadcasting work and that prior to his employment he had a history of good health without any significant complaints; that during the month of October 1971 he put in 262 hours working time for his employer in the broadcasting field; and that in November of 1971 from a period of November 1st to November 16th, at the time when he entered the hospital on November 16th, he had put in 128 hours; *168 "Assume further that during this time he showed signs of exhaustion, he showed signs of fatigue through falling asleep while waiting for supper, complaints of stress and irritation and that of being tense; and assume further that he was hospitalized from the period of November 16, 1971 until the date of his death, November 25, 1971; and assume further that he had at this time prior to his death a cerebral aneurism; and assume further that this cerebral aneurism hemorrhaged and the findings on autopsy were a massive subarachnoid hemorrhage with intracerebral hematoma on the right side and a ruptured anomalous aneurism of the right posterior communicating artery. "Now, based upon those assumed facts, can you give an opinion, based on reasonable probability, whether the conditions that were recited in the hypothetical question relating to his work and hours of work and the effect upon the individual from his hours of work, whether or not those conditions could cause, precipitate or contribute to the rupture of the aneurism? "A Yes. "Q And what is your opinion? "A My opinion is that from the studies I have made and some of the sources I have consulted, that it is highly likely that these pre-existing psychological conditions precipitated stress which eventually led to the rupturing of the blood vessels in the brain. [Emphasis added.] "Q Now, can you give this Commissioner the basis, as you did in your letter, the basis upon which you would form such an opinion? "A The basis was this: That assuming the history of long hours of work and assuming that this led to exhaustion, furthermore taking into account the coroner's report which stated in part, `Massive subarachnoid hemorrhage with cerebral hematoma secondary to ruptured anomalous aneurism of the right posterior communicating artery,' that taking these into account, plus the references I looked up in the text by Weiss and English on psychosomatic medicine, that there is a line of reasoning here which is reasonable and leads one to the professional conclusion that it is quite likely that these pre-existing conditions can lead to physical damage, which then eventually leads to death. "Q Now what were the reasonings that your authorities set forth as to forming such a conclusion or basis? "A Well, according to their research and experience—I am referring in my letter here particularly to points 3 and 4 that when you consider that stress arising from frustration and conflict-ridden situations leads to restriction and pulling of the arteries at the base of the brain and the main branches, and, point number 4, to the detention and dilation of the intercranial arteries, that these workings within the brain can then lead to the mechanical failure of the arterial system itself, and this mechanical failure statistically is correlated with death in approximately twenty-five percent of the cases which Weiss and English have through their studies predicted. [Emphasis added.] "Q Would your opinion in this case be based on reasonable probabilities? "A It is my opinion, yes, that it is based on reasonable probabilities. Twenty-five per cent is a very high level of agreement. "Q What do you mean? What does the twenty-five per cent represent? "A The total number of deaths which, so far as I understand it, of course, that Weiss and English are referring to from their samples of people whose deaths have been investigated, that the precipitating or pre-existing stress on the emotional basis played a significant role in the outcome. *169 "Q That emotional stress played a significant role in causing or precipitating their death? "A Yes." Cross-examination of Dr. Wallace disclosed that he had not known or examined Mr. Suedel during his lifetime and that his opinion was based on a report from pathologists, Dr. W. A. Wasdahl and Dr. R. Hejela, and a letter from Mr. Alphson, counsel for Mrs. Suedel, which outlined the history of the pre-existing working conditions. The pertinent paragraph of Mr. Alphson's letter reads: "I have enclosed a copy of the autopsy report which shows that he died from a ruptured aneurism. The history shows that he was a radio station announcer and that he had been working all summer long under difficult situations, lack of help, working from 7:00 A.M. to 1:00 in the morning, that he would be totally exhausted when he came home and was very nervous and restless because of his overwork and the upset conditions at the station, according to the history from his wife." [Emphasis added.] Although Dr. Wallace testified that everything that makes people unhappy causes stress, he said that that would be an oversimplified view of what causes stress, and that stress is a condition which exists in the body itself. In response to an inquiry as to whether pleasant occurrences could be considered to cause stress, he replied in the negative. Dr. Edwin Guy Olmstead, an Associate Professor of Medicine at the University of North Dakota and the Associate Director of the Mental Health Center in Grand Forks, testified that in addition to the usual medical training and degrees he had received slightly over two years of training in psychiatry at Battle Creek, Michigan. In response to the same hypothetical question asked of Dr. Wallace, and an additional question phrased by counsel for claimant in this case, Dr. Olmstead gave his view. "Now, based upon those assumed facts, will you give us an opinion which would enable you to state with reasonable medical probability whether or not those conditions that I have outlined, such as fatigue, exhaustion, long work hours, strain and stress, could cause or precipitate the rupture of a pre-existing cerebral aneurism? "A Yes; I believe they could. [Emphasis added.] "Q And would you give us your medical opinion supporting the basis for your opinion? "A Well, an aneurism of an artery is an outpocketing of the artery and it doesn't always have muscle coats, it is thin, and there are some good physical principles as to why it tends to get bigger and bigger as time goes on, but in many instances when it ruptures, it ruptures because there has been some increase in the blood pressure; it doesn't have to be very much, and things you have outlined such as stress, overwork, fatigue, are things that will cause the blood pressure to fluctuate, and if the circumstances are right, the elevation of the blood pressure will rupture the aneurism, and that would be my feeling as to why it is possible that this was the case, the basis of which you have told me. "Q And is your opinion, Doctor, based upon reasonable medical probability? "A Yes; it is based in part on experience. This is not a rare disease. It is the commonest cause of death in people under thirty-five. "Q Would you explain what is meant by a pre-existing aneurism? "A Two per cent of all post mortems that are done, regardless of what the *170 cause of death is, if a pathologist is careful, two out of every hundred will have at least one aneurism in this part of the brain. That doesn't mean that they all blow up, so two out of every hundred people carry this around. "Q Would you explain in some detail what an aneurism is and just exactly how it is formed. "A Well, an aneurism such as we are talking about here in the part of the brain called the Circle of Willis, which is the arterial supply of the brain, these aneurisms are congenital, one is born with them, and an aneurism is part of the blood vessel that doesn't have all the coats on, it outpockets, it pouches out like a balloon. It is thin and under certain types of stress, it breaks. "Q Now, when they refer to what is called intracerebral hematoma, what is that in connection with his ruptured aneurism? "A Well, when the aneurism ruptured, the blood spread out over the subarachnoid space, but also some of it penetrated into the brain substance proper because there was arterial bleeding under a fairly good head of pressure. Hematoma is really a collection of blood that escaped from the artery and compressed in the brain and it can be thought of somewhat in terms of a tumor because sometimes these are evacuated surgically." He testified in response to cross-examination that oftentimes before the final rupture the aneurysm will leak blood into the subarachnoid space and that this produces a headache. Dr. Olmstead said that prior to testifying he had reviewed the autopsy, which included a clinical summary prepared by Dr. John Lambie. The pertinent parts of that letter read: "Robert Suedel was hospitalized by me at St. Michael's Hospital from November 16th to November 25th, 1971. The patient was a thirty-six-year-old male who was admitted following onset of severe postoccipital and cervical headache while at work the morning of admission. "He was admitted for evaluation of his headaches and subsequently expired on November 25, 1971. "Patient was seen and treated by Dr. Suresh Ramnath, Neurosurgeon, during this period of time and it was felt that his headache at that time was due to a ruptured berry aneurism. "Before all studies could be completed patient suffered another hemorrhage and expired. An autopsy was performed and this showed massive subarachnoid hemorrhage with intracerebral hematoma on the right side. This was secondary to a ruptured anomalous aneurism of the right posterior communicating artery." In defining stress and its effect upon the human body, Dr. Olmstead said: "* * * I use the term `stress' in terms of either psychological or physical stress which works through what we call the sympathetic nervous system and causes an output of a hormone called adrenalin which raises the blood pressure." In response to a question as to whether the doctor thought that enjoyment of a job would reduce the stress level, he replied: "I think it would reduce the stress level if he enjoyed it; on the other hand, if he did it too long I suppose you would get yourself overly fatigued." Mr. Wayne A. "Bob" Lockhart, the operations manager for KNOX and station manager for KYTN-FM, employed Mr. Suedel and apparently supervised him during the entire period of Mr. Suedel's employment for KNOX and its predecessor. He testified that Mr. Suedel was a perfect employee; that in his opinion there isn't much to operating the equipment of a radio station; that the new equipment went *171 on the air on October 17, 1971, and that it switches back and forth automatically, but that while Mr. Suedel worked for the station, when the commercial breaks came, he had to manually turn on another recorder; that this, in effect, made it easier for Mr. Suedel, because he was in control of the machine, whereas now under the automatic feature the machine is in control. Mr. Lockhart further testified that there isn't much to operating the equipment; that he was concerned that Mr. Suedel might become bored with the work and for that reason he encouraged him to interview the news director so that he might become a newsman; that the hours of time recorded in the ledger for Mr. Suedel did not include his driving time; that Mr. Suedel received a monthly allowance at one of the gas stations in town, whereby he received gas and oil and repair work for his automobile in conjunction with driving to and from work; that Mr. Suedel informed him that it was tough on him to drive in every day from the farm and that Mr. Lockhart tried through his father-in-law to find a place in Grand Forks for Mr. Suedel and his family to live. In light of this record, can we say that the Bureau's findings are not supported by the evidence? Without attempting to characterize the medical opinions of Doctors Wallace and Olmstead, but assuming for the sake of argument that their opinions were to the effect that Mr. Suedel died as a result of a ruptured aneurysm, which rupture was caused by the stress of his work as a radio announcer, we believe that there is sufficient evidence in the record to support the Bureau's finding that the rupture of the aneurysm was not caused by the stress of his work, but was the result of an ordinary disease of life to which the general public is exposed. In light of the fact that Mr. Suedel's wife and his supervisor, Mr. Lockhart, both testified that he was doing what he always wanted to do and seemingly enjoyed the work, it is just as probable or even perhaps more probable that if stress caused the rupture of his aneurysm, the stress was due to the driving to and from work rather than to his work on the job, or to the normal activities of life, as indicated by the fact that he had one of his most severe headaches on an occasion of a day off from work. We think in fairness we should state that had the Workmen's Compensation Bureau concluded to the contrary and found that the stress of the employment caused the rupture of the aneurysm the evidence could have supported such a finding also. In other words, as we have said on other occasions, it is not our function to try the facts in the first instance; it is merely our function to review the facts to determine whether or not the findings are supported by the facts. In support of the Bureau's findings, we think it should be pointed out that the hypothetical question assumes a fact which is not supported by the facts, and that is that Suedel worked from 7 a.m. to 1 a.m. regularly. It may be that he did this on the occasion when he worked two consecutive shifts, but not otherwise. This brings us to the language of Section 65-01-02(8), N.D.C.C., which we believe is pertinent. "65-01-02. Definitions.—Whenever used in this title: * * * * * * "8. `Injury' shall mean only an injury arising in the course of employment including an injury caused by the willful act of a third person directed against an employee because of his employment, but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another, nor any injury received because of the use of narcotics or intoxicants while *172 in the course of the employment. Such term, in addition to an injury by accident, shall include: "A. Any disease which can be fairly traceable to the employment. Compensation shall not be paid, however, for any condition which existed prior to the happening of a compensable injury nor for any disability chargeable to such condition. Ordinary diseases of life to which the general public outside of the employment is exposed shall not be compensable except where the disease follows as an incident to, and in its inception is caused by a hazard to which an employee is subjected to in the course of his employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease includes impairment and effects from radiation fairly traceable to the employment. It need not have been foreseen or expected, but after it is contracted, it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence; * * *" N.D.C.C. In essence, what the Workmen's Compensation Bureau found was that Mr. Suedel died of an ordinary disease of life, to which the general public outside of employment is exposed, and that neither the rupture nor the aneurysm was incident to or had its inception with his employment. Before we conclude our opinion, however, we think it proper to discuss herein some of the authorities relied upon by Mrs. Suedel. Perhaps her most significant reference is to Larson, The Law of Workmen's Compensation. In that work, Larson discusses injuries from usual exertion or exposure. He divides that subject into three categories: Section 38.20 Category 1: Routine Exertion Causing "Breakage"; Section 38.30 Category 2: Routine Exertion Causing Injury From "Generalized Conditions"; and Section 38.40 Category 3: Routine Exposure Causing Freezing or Sunstroke. In conjunction with Category 1, we read: "A large majority of jurisdictions now hold that when usual exertion leads to something actually breaking, herniating, or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental. "So we find an overwhelming majority compensating for hernia, even when the exertion was not out of line with the usual demands of the job. Two states, Missouri and North Carolina, continue to insist upon abnormal exertion in hernia cases. Michigan and Pennsylvania, which at one time required unusual exertion in hernia claims, have produced awards in other types of cases which indicate that they would now follow the majority rule as to hernias. Ohio, which also looked for overexertion in hernia cases, has since altered its general statutory formula, and no longer requires evidence of unusual exertion. Nebraska has also amended its statute in a way that has been construed to eliminate the unusual exertion requirement in this general class of cases. "Similarly, since a so-called `slipped intervertebral disc' is a herniation or rupture, and thus mechanically comparable to an inguinal hernia, it is not surprising to find that a heavy preponderance of jurisdictions afford compensation for this type of injury without exacting proof of unusual exertion or mishap as a cause. Indiana and Maryland, and apparently Missouri, hold contra. North Carolina, here as in the inguinal hernia cases, has produced decisions pointing both ways, with the more recent holdings in each instance rejecting compensability. *173 "An overwhelming majority of jurisdictions also find adequate accidental quality in the element of `breakage' present in such injuries as cerebral hemorrhage, ruptured aneurysm, ruptured aorta, broken blood vessel, apoplexy, aortic regurgitation, hemorrhage in eye, and pulmonary hemorrhage." 1A Larson's Workmen's Compensation Law § 38.20, pp. 7-11 through 7-23. Although we have not reviewed all of the cases referred to in the footnotes to this section, we believe what is said about Nebraska is illustrative of what is taking place in this nation and indicates that there is a trend toward allowing recovery without proof of unusual exertion. An example may be found in the following quotation from Larson: "Nebraska: Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969). Claimant suffered a cerebral vascular accident after performing strenuous work. His first symptoms occurred on the job, when he felt dizzy and his right arm and leg felt numb. By the next day he could not stand up or talk very well. The court held that the amendments to § 48-151(2), R.R.S. 1943, which were enacted in 1963, eliminated the requirement of unusual exertion, and the unexpected event which occurred here, happening suddenly and violently and producing objective symptoms at the time of injury constituted an accident. * * * "The new statutory language reads as follows: "`The word accident as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen injury happening suddenly or violently, with or without human fault, and producing at the same time objective symptoms of an injury.' Neb.R.R.S.1943, Section 48-151(2), as amended by Laws 1963, c. 287, § 1, p. 862. "As examples of pre-amendment holdings, see the following: "Roccaforte v. State Furniture Co., 142 Neb. 768, 7 N.W.2d 656 (1943). Embolism in retinal artery due to lifting bench; usual-exertion test definitely rejected. [Claim denied.] "Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714 (1934). Mitral regurgitation of heart due to pushing automobile to prevent its rolling over a bank." [Claim denied.] 1A Larson's Workmen's Compensation Law § 38.20, p. 7-28. Further in support of her position, Mrs. Suedel refers us to a 1957 decision of the supreme court of Michigan, which she describes as a case representing the modern day thinking of courts. Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N. W.2d 614 (1957). In that case, Justice Black, who was one of the justices who concurred, in separate opinion, in the opinion written by Justice Smith, indicated that the case was one arising out of a strain. A brief quotation from his opinion, quoting from the record, follows: "`* * * the plaintiff leaned over to pick up a tray of cards from a tub file. The tray stuck, and then the plaintiff yanked on it, and when she yanked, the "pains flew all over" her back.' * * *" Sheppard v. Michigan National Bank, supra, 83 N.W.2d 614 at 627. Much of the discussion in the separate opinions written by Justices Smith, Black, Edwards, Dethmers, and Kelly, affirming the award, centered around the significance of 1943 amendments to the Michigan workmen's compensation law, wherein most references to the word "accidental" were removed from the law. In summary, the majority opinions seem to hold that thereafter Workmen's Compensation claims should not be found to be *174 non-compensable merely because they were non-accidental. There is one statement in Sheppard which is pertinent to the instant case, and that is contained in Justice Smith's opinion: "The determination of causation rests with the commission. We are not a super-compensation commission any more than we are a super-racing commission. Hazel Park Racing Ass'n, Inc. v. Racing Commissioner, 343 Mich. 1, dissent, 10, 71 N.W.2d 692. We urge our return to our exercise of an appellate function." Sheppard v. Michigan National Bank, supra, 83 N.W.2d 614 at 621. In North Dakota, as in Michigan, our function as an appellate court is not to determine the facts in the first instance, but merely to review the findings of the Bureau in light of the evidence submitted to the Bureau, to determine whether there is substantial evidence to support the findings of the Bureau. The trial court in reviewing the findings of the Bureau on appeal to it relied in part on Sandlie v. Workmen's Compensation Bureau, 70 N.D. 449, 295 N.W. 497 (1941). In Sandlie a claim was filed with the Bureau by an auditor employed by the North Dakota Mill and Elevator Association, wherein the auditor asserted that in the course of his employment he suffered a stroke of paralysis which totally disabled and incapacitated him. He asserted that in auditing and checking inventories of flour it was necessary for him to do heavy lifting and moving of heavy sacks of flour and that this heavy lifting caused overexertion, producing a rupture of a blood vessel, resulting in a stroke. The claim was denied by the Bureau, but upon appeal to the trial court the plaintiff's claim was allowed. In Sandlie the plaintiff had suffered from high blood pressure, or hypertension, for over ten years. In reversing the trial court and in affirming the Workmen's Compensation Bureau, the court said: "While it appears to be the generally accepted rule that the acceleration of a pre-existing condition may be considered in certain cases to be the proximate cause of the injury sustained, we can not overlook the fact that every exertion has its effect upon the physical system; and if we carry the theory to extremes, then every movement in the course of employment would accelerate the natural condition of the physical body toward disease and decay and death. There must be more than this to justify a holding that the exertion or emotional disturbance was the proximate cause in this case. "We have examined the evidence carefully and have considered it in the light of the medical testimony. We are clear that the stroke was not the result of the employment, but rather of the condition which existed prior to the employment, and was not aggravated by the employment so as to cause additional injury." Sandlie v. North Dakota Workmen's Compensation Bureau, supra, 295 N.W. 497 at 499, 500, rehearing denied 1941. [Emphasis added.] In essence, in this emphasized material this court was saying that there must be proof of unusual exertion for a claimant to recover for aggravation of a pre-existing condition such as this. The evidence in Sandlie was to the effect that the plaintiff in connection with his work was required to lift sacks of flour of various weights from 24 pounds to 98 pounds, and that in many instances he was required to raise these sacks above his head in order to pile them; that on the date he received the stroke he had engaged in an altercation with a representative of the mill and elevator of Duluth, Minnesota, in connection with the conduct of business; that this altercation caused him to become unduly excited and resulted in a stroke. *175 In light of those circumstances, which under the decisions of some States would seem to justify an award, both the Bureau and the supreme court of this State concluded that the claimant was not entitled to recover. See also McKinnon v. North Dakota Workmen's Compensation Bureau, 71 N.D. 228, 299 N.W. 856 (1941); Pace v. North Dakota Workmen's Compensation Bureau, 51 N.D. 815, 201 N.W. 348 (1924). Since the Bureau found that the rupture in the instant case was an aggravation of the pre-existing aneurysm and was not brought on by the stress of the employment, usual or unusual, and we have concluded that those findings are supported by the evidence, we leave for another day the determination of the survival of the unusual-exertion test. For the reasons stated in this opinion, the judgment of the trial court is affirmed. KNUDSON, PAULSON and TEIGEN, JJ., concur. VOGEL, Judge (dissenting). I regret that I must dissent. I simply do not find any substantial evidence to support the decision, and I believe, therefore, that the law requires a reversal. I would add a little to the facts stated. The distance from Petersburg, where the decedent and his wife lived, to Grand Forks is about 45 miles, so the decedent drove about 90 miles a day to and from work. The two hours or so consumed by the driving were in addition to the long hours worked, as set out in the majority opinion. The only medical evidence was offered by the claimant. The Bureau offered nothing, except by cross-examination. Both of the expert witnesses were highly qualified, one in psychology and the other in psychosomatic medicine. Both of them testified on the basis of hypothetical questions to which no objection was made. The questions were based entirely upon facts testified to by the widow of the decedent, time records of the employer, and the autopsy records and medical records received without objection. Dr. Wallace, the psychologist, testified that in his opinion, based upon reasonable probability, "it is highly likely that these preexisting psychological conditions precipitated stress which eventually led to the rupturing of the blood vessels in the brain," and, "The basis was this: That assuming the history of long hours of work and assuming that this led to exhaustion, furthermore taking into account the coroner's report which stated in part, `Massive subarachnoid hemorrhage with cerebral hemotoma secondary to ruptured anomalous aneurism of the right posterior communicating artery,' that taking these into account, plus the references I looked up in the text by Weiss and English on psychosomatic medicine, that there is a line of reasoning here which is reasonable and leads one to the professional conclusion that it is quite likely that these pre-existing conditions can lead to physical damage, which then eventually leads to death." Incidentally, the letter from claimant's counsel containing the inaccurate statement as to the decedent's working hours (italicized in the majority opinion) was not referred to in the hypothetical question to Dr. Wallace, nor in his answer. The letter was later brought up in cross-examination by the attorney for the Bureau after queries about the documents which had been furnished to Dr. Wallace. Dr. Olmstead testified that, based upon a reasonable medical probability, a rise in blood pressure can be caused by stress, overwork, or fatigue and can rupture a pre-existing aneurysm such as the decedent had. We have always held that aggravation or acceleration of a pre-existing condition may be an injury compensable under the *176 Workmen's Compensation Act. Pfeiffer v. North Dakota Workmen's Compensation Bureau, 57 N.D. 326, 221 N.W. 894 (1928); Pace v. North Dakota Workmen's Compensation Bureau, 51 N.D. 815, 201 N.W. 348 (1924). In Pfeiffer, the injury was due to a slight blow which, because of a pre-existing tumor, resulted in plaintiff's blindness, and in Pace, the pre-existing condition was high blood pressure and arteriosclerosis which made decedent more vulnerable to "brain hemorrhage, otherwise known as apoplexy," from which he died after working in excessive heat. The latter case is particularly pertinent to the present case, where the pre-existing condition was an aneurysm, which burst after decedent worked long hours over an extended period, and likewise caused death by a hemorrhage in the brain. Other jurisdictions have allowed awards in cases where long hours contributed to the injury or death. In J. D. Jewell, Inc. v. Peck, 116 Ga.App. 405, 157 S.E.2d 806 (1967), the decedent was overweight and hypertensive and suffered a fatal heart attack partly because of the long hours he worked. The claimant was allowed compensation. And see Bingham v. Workmen's Compensation Appeals Board, 261 Cal.App.2d 842, 68 Cal.Rptr. 410 (1968) [finding for Bureau set aside and action remanded because of error in application of law], and Georgia-Pacific Corp. v. Craig, 243 Ark. 538, 420 S.W.2d 854 (1967). In the case before us, the only basis for the Bureau's decision that the death was not compensable is that there was testimony that the decedent enjoyed his work, from which the Bureau drew the inference that he was under no strain, and therefore the death could not have been caused by strain or overwork. This is not only an "awfully over-simplified" view, as Dr. Wallace described it; it is also illogical and unreasonable. To illustrate, I would suppose that a professional football player or an astronaut enjoys his work, but no one can say that he is not under stress, either in the common sense of the term or the medical sense. But if either the football player or the astronaut should drop dead from a burst aneurysm during employment, surely no one could successfully contend that the right to claim compensation for his death would be lost solely because of the fact that he enjoyed his work. Similarly, I know that busy trial lawyers or businessmen can enjoy their work and still have strokes precipitated by the stress of their work, but surely no one could claim that the Workmen's Compensation Bureau would not be compelled to provide coverage for the hospitalization for treatment of the resulting strokes. Nor do I read Sandlie v. North Dakota Workmen's Compensation Bureau, 70 N.D. 449, 295 N.W. 497 (1941), or any other of our cases, as having adopted the "unusual-exertion test" in this State. Sandlie states that the general rule is that acceleration of a pre-existing condition may be considered to be the proximate cause, but observes that this rule should not be carried to ridiculous extremes, and holds that the claimant did not sustain the burden of proof. As I read the decision, it does not adopt the "unusual-exertion test." We should not do so now, or even "leave for another day the determination of the survival of the unusual-exertion test." A rule that never lived cannot "survive." To adopt such a rule would be, I believe, a move backward and against the modern trend and contrary to the rule in the "overwhelming majority of jurisdictions." See quotations from Larson, Workmen's Compensation Law, Section 38.20, in majority opinion. As the majority opinion points out, a large majority of the States (even including those which otherwise follow the unusual-exertion test) hold that where "usual exertion" leads to a rupture or breaking or herniating, as of an aneurysm, a recovery is allowed. It also points out that the trend is for more States to join this large majority. Why, then, should we go in the opposite direction? The majority opinion seems to be based on the belief that we are bound by language of the Sandlie case and *177 by a duty to sustain the Workmen's Compensation Bureau where there is a factual basis for its findings. But I believe that the majority misreads the Sandlie case, which really holds only that the claimant did not sustain her burden of proof, and I would hold that there is no factual basis for the decision of the Bureau in the present case. As I see it, this case offers an interesting contrast with Foss v. North Dakota Workmen's Compensation Bureau, 214 N. W.2d 519 (N.D.1974), which we decided only a short time ago. In Foss, the plaintiff simply failed to present proof of a causal connection between the employment and the death occurring in the course of employment. We held there that "a compensation award cannot be made on surmise, conjecture, or mere guess" when the medical proof is adverse to the claimant. In the same way, we should hold here that an award cannot be denied on the basis of surmise, conjecture, or mere guess when all the medical evidence is favorable to the claimant. I would reverse the judgment of the lower court, on the ground that there is no substantial evidence to support it.

857 F.2d 1465 Appeal of Muhammad (Imam'Shahid) a/k/a Chandler (Gregory) NO. 88-5212 United States Court of Appeals,Third Circuit. AUG 09, 1988 Appeal From: D.N.J., Debevoise, J. 1 AFFIRMED.

416 B.R. 325 (2009) Luis G. VÁZQUEZ LABOY and Carmen D. Garcia Calderon, Debtors. Luis G. Vázquez Laboy and Carmen D. Garcia Calderon, Plaintiffs-Appellants, v. Doral Mortgage Corporation, Doral Financial Corporation, and Edgardo Canales Idrach, d/b/a Canales Law Offices, and Angel Rolán Prado, Defendants-Appellees. BAP No. PR 08-095. Bankruptcy No. 00-00852-GAC. Adversary No. 01-00077-GAC. United States Bankruptcy Appellate Panel for the First Circuit. October 23, 2009. *327 Juan M. Suárez Cobo, Esq., and Jaime L. Velasco Bonilla II, Esq., on brief for Appellants. Giancarlo Font Garcia, Esq., on brief for Appellees, Edgardo Canales Idrach, d/b/a Canales Law Offices, and Angel Rolan Prado. Néstor M. Méndez Gómez, Esq., and Giselle Lopez Soler, Esq., on brief for Appellee, Doral Mortgage Corporation. Before HILLMAN, BOROFF, and ROSENTHAL, United States Bankruptcy Appellate Panel Judges. *328 ROSENTHAL, Bankruptcy Appellate Panel Judge. Luis G. Vázquez Laboy and Carmen D. García Calderón (the "Debtors"), filed an adversary proceeding seeking a determination that the postpetition actions of Doral Mortgage Corporation ("Doral") and others to perfect a prepetition lien violated the automatic stay. The Debtors sought an order requiring Doral to withdraw the mortgage deed and surrender the mortgage for cancellation, and $25,000 in actual damages, $75,000 in punitive damages, attorneys' fees, and costs. Although the bankruptcy court initially dismissed the adversary proceeding, it subsequently vacated that decision, concluding that Doral's postpetition actions violated the automatic stay and ordering Doral to surrender the mortgage for cancellation. The Debtors then filed a motion requesting an evidentiary hearing on damages. The bankruptcy court denied the Debtors' motion, concluding that avoidance of Doral's $25,000 lien was an adequate remedy, and that no monetary damages were warranted. The Debtors appealed, arguing that the bankruptcy court deprived them of procedural due process by denying the motion without affording them an opportunity to present evidence as to the amount of their damages, and that the bankruptcy court erred in denying monetary damages, costs, and attorneys' fees. For the reasons set forth below, we conclude that the record on appeal fails to provide a sufficient basis for reviewing the bankruptcy court's decision, and, therefore, we summarily AFFIRM. BACKGROUND Prior to this bankruptcy case, the Debtors purchased certain real property in Corozal, Puerto Rico, and presented a conveyance deed to the Registry of Property for recordation. Shortly thereafter, the Debtors borrowed $25,000 from Doral and executed a first mortgage in its favor. Appellee Angel Rolan Prado ("Rolan") was notary for the mortgage deed, and appellee Edgardo Canales Idrach, d/b/a Canales Law Offices, was Rolan's employer ("Canales" and, collectively with Rolan, the "Canales Defendants"). Although the Canales Defendants thereafter presented the mortgage deed to the Registry of Property for recordation, the mortgage was not recorded at that time due to certain defects in the conveyance deed. No action was taken to cure the defects, and the deadline to record the mortgage expired. Although Doral admits that it became aware prior to the petition date that its mortgage was unrecorded, it took no corrective action at that time. The Debtors filed a chapter 13 petition in January, 2000,[1] and the case was subsequently converted to chapter 7. On December 1, 2000, ten months after the bankruptcy filing, Doral and the Canales Defendants filed a corrected conveyance deed with the Registry of Property and again presented the mortgage deed for recordation. On August 21, 2001, the Debtors filed their adversary complaint against Doral and the Canales Defendants[2] alleging that their postpetition actions to record the *329 mortgage deed violated the automatic stay. Doral moved to dismiss the complaint and, on August 29, 2003, the bankruptcy court entered a Decision and Order concluding that the postpetition actions to perfect Doral's prepetition lien were excepted from the automatic stay pursuant to § 362(b)(3), and dismissing the adversary proceeding. In so holding, the bankruptcy court found that Doral was unaware that its mortgage was unrecorded until after the bankruptcy filing, and that its perfection would have become effective against previously acquired rights in the Property but for the Debtors' wrongful conduct in withdrawing the conveyance deed. The Debtors moved for reconsideration, and, following various proceedings that spanned several years, the bankruptcy court issued a second Decision and Order dated September 21, 2006, in which it vacated the initial Decision and Order due to manifest errors of fact and law. Specifically, the bankruptcy court concluded that it had erred in finding that Doral was not aware that its lien had not been recorded until after the bankruptcy filing, and in concluding that the Debtors' conduct in withdrawing the conveyance deed was wrongful. The bankruptcy court also concluded that it erred in its legal conclusion that the appellees' postpetition actions to perfect Doral's lien were excepted from the automatic stay pursuant to § 362(b)(3). As a result, the bankruptcy court ordered Doral to withdraw the mortgage deed and surrender it to the Debtors for cancellation. The Canales Defendants filed an untimely notice of appeal, and the appeal was dismissed for lack of jurisdiction. Thereafter, the Debtors filed a motion requesting a hearing to determine damages for the stay violation pursuant to § 362(h).[3] The Debtors also filed a motion requesting the bankruptcy court to schedule a conference "to discuss any pending matters prior to the hearing on damages," which the bankruptcy court granted. On June 22, 2007, the bankruptcy court held a "status and scheduling conference" (the "Status Conference"). On October 8, 2008, the bankruptcy court issued its third Decision and Order (the "Order") denying the Debtors' motion for an evidentiary hearing on damages. The bankruptcy court concluded that avoidance of Doral's $25,000 lien was an adequate remedy, and that no monetary damages were warranted. In so holding, the bankruptcy court stated: The present case is more like an avoidance action, in which Doral tried to perfect a lien postpetition, than a common violation of the automatic stay. The Bankruptcy Appellate Panel for the 6th Circuit explained that "the fact that avoidance and recovery are distinct suggests that avoidance need not always trigger recovery." Suhar v. Burns (In re Burns), 322 F.3d 421, 427 (6th Cir. 2003). Although in Burns, the trustee filed an adversary proceeding to avoid a mortgage lien, invoking § 547 and 550, the circumstances are similar because the trustee in Burns also requested that the court award damages. The Bankruptcy Appellate Panel for the 6th Circuit held that "the remedy of recovery is only necessary when the remedy of avoidance is inadequate." In re Burns, 322 F.3d 421, 427 (6th Cir.2003). The Appellate Panel concluded "that avoidance of a defective mortgage is an adequate remedy in and of itself." Id. *330 The bankruptcy court further concluded that "neither of the parties were frivolous in asserting their respective claims' and thus, no costs nor attorneys' fees will be awarded." The bankruptcy court entered judgment on December 17, 2008, and this appeal ensued. JURISDICTION Before addressing the merits of an appeal, the Panel must determine that it has jurisdiction, even if the issue is not raised by the litigants. See Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724 (1st Cir. BAP 1998). The Panel has jurisdiction to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New Eng. Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment," id. at 646 (citations omitted), whereas an interlocutory order "only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits." Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). Generally, bankruptcy court orders imposing or denying damages for violations of the automatic stay under § 362(h) are final appealable orders. See Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004) (citations omitted). STANDARD OF REVIEW Appellate courts reviewing an appeal from the bankruptcy court generally apply the "clearly erroneous" standard to findings of fact and de novo review to conclusions of law. See TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20, n. 8 (1st Cir. 1994). Generally, the Panel reviews a bankruptcy court's assessment of damages for violations of the automatic stay for an abuse of discretion. See Heghmann, 316 B.R. at 400 (citing Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 973 (1st Cir.1997); Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 822 (1st Cir. BAP 2002)). Judicial discretion is necessarily broad— but it is not absolute. Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them. Id. (citing Melendez Colon v. Rivera (In re Melendez Colon), 265 B.R. 639 (1st Cir. BAP 2001)). DISCUSSION I. Due Process Although this case involves the issue of damages under § 362(h), the Panel must first determine whether this appeal involves the fundamental right to due process. The Debtors argue that their due process rights were violated because they were not afforded an evidentiary hearing on their request for damages under § 362(h). The Fifth Amendment provides in pertinent part that "no person shall be. . . deprived of life, liberty, or property, without due process of law. . . ." U.S. Const. Amend. V. "The fundamental requisite of due process of law is the opportunity to be heard." Dusenbery v. United States, 534 U.S. 161, 173, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (citation omitted). *331 In order to satisfy the requirements of due process, the opportunity to be heard "need not be a full adversarial hearing but must be preceded by adequate notice and must afford [the party] a meaningful opportunity to speak in [his] own defense." Matthews v. Harney County, Or., Sch. Dist. No. 4, 819 F.2d 889, 892 (9th Cir. 1987). The essence of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). It is undisputed that the bankruptcy court never scheduled an evidentiary hearing regarding the Debtors' request for damages prior to determining that they were not entitled to damages and attorneys' fees. The Debtors argue that this case is identical to Rijos v. Banco Bilbao Vizcaya (In re Rijos), 263 B.R. 382 (1st Cir. BAP 2001), in which the Panel concluded that the bankruptcy court's failure to afford the debtors an opportunity to address the issue of damages at an evidentiary hearing violated "fundamental principles of due process." In Rijos, the Panel specifically noted that the record on appeal did not reflect that the debtors "had any notice, let alone `notice reasonably calculated under the circumstances' to apprize them that the court intended to rule on the issue of damages and attorney's fees without a hearing." Id. at 393. Doral argues that this case is distinguishable from Rijos because the bankruptcy court held several hearings in these proceedings. According to Doral, the bankruptcy court held the June 22, 2007 Status Conference specifically to address the issue of damages, and that the Debtors were afforded the opportunity to present their position at that hearing, yet they "failed to include any evidence or even offer proof of an injury caused by the alleged violation of the automatic stay." Unfortunately, the hearing transcript is not contained in the appellate record, and thus we are unable to ascertain what arguments and/or evidence were presented at the Status Conference, or whether the bankruptcy court made any oral findings or rulings at that hearing. As the appellants in this matter, the Debtors bear the burden of establishing that the Panel should reverse the Order. See Wilson v. Wells Fargo Bank, N.A. (In re Wilson), 402 B.R. 66, 69 (1st Cir. BAP 2009) (citing Mountain Peaks Fin. Servs. v. Shepard (In re Shepard), 328 B.R. 601, 603-604 (1st Cir. BAP 2005)). An appellant's failure to provide a hearing transcript is fatal to an appeal where "the Panel is unable to determine the legal foundation of the bankruptcy court's rulings, or whether the bankruptcy court made any initial oral findings and rulings." Id. (citing Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 225 n. 7 (1st Cir. BAP 2008)). "When an appellant fails to provide a record of evidence material to the point the appellant wishes to raise, and thus leaves the appellate court with an insufficient basis to make a reasoned decision, the court in its discretion may either consider the merits of the case insofar as the record permits, or may dismiss the appeal if the absence of a full record thwarts intelligent and reasoned review." Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 963 (1st Cir. 1995); see also Campos-Orrego v. Rivera, 175 F.3d 89, 93 (1st Cir.1999) (parties seeking appellate review "must furnish the court with the raw materials necessary to the due performance of the appellate task"); Moore v. Murphy, 47 F.3d 8, 10-11 (1st Cir.1995) (holding that if the record on appeal is so deficient as to preclude the appellate court from reaching a reasoned determination on merits, the appellant must bear brunt of an insufficient record); In re Abijoe Realty *332 Corp., 943 F.2d 121, 123 n. 1 (1st Cir.1991) (explaining that court would only evaluate the claims of error to extent permitted by limited record on appeal). Id. at 69-70. Here, the Debtors did not include in their appendix or in the record on appeal a transcript of the Status Conference, and there is no evidence in the record as to what occurred at that hearing. Without a transcript of the hearing, we cannot ascertain whether the Debtors were afforded the opportunity to present arguments and/or evidence on the issue of damages. Therefore, we are unable to determine whether there were any due process violations. "The responsibility for voids in the appellate record must reside with the party whose claim of error depends for its support upon any portion of the record of the proceedings below which was omitted. . . ." In re Abijoe Realty Corp., 943 F.2d 121, 123 n. 1 (1st Cir.1991); see also Torres Martinez v. Arce (In re Torres Martinez), 397 B.R. 158, 166 (1st Cir. BAP 2008) (appellants bear the burden of providing the appellate court with all transcripts necessary to address the issues raised on appeal). II. Section 362(h) and Damages for Willful Violation of the Automatic Stay The Bankruptcy Code creates a statutory remedy for individual debtors who are injured by violations of the automatic stay. Section 362(h) provides that "[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." 11 U.S.C. § 362(h). Courts within the First Circuit have concluded that the words "shall recover" indicate that "Congress intended that the award of actual damages, costs and attorney's fees be mandatory upon a finding of a willful violation of the stay." Heghmann, 316 B.R. at 405 n. 9 (emphasis added) (citing Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 589 (9th Cir. BAP 1995)). Therefore, when a creditor willfully acts after the filing of a bankruptcy petition, and without authorization from the bankruptcy court, to enforce any lien against the debtor and the action causes the debtor injury, the debtor is entitled to recover actual damages, including costs, and attorneys' fees, and, in appropriate circumstances, punitive damages. 11 U.S.C. § 362(h). However, damages are not imposed as a matter of course. Rather, the burden is on the debtor to establish by a preponderance of the evidence that he suffered actual damages as a result of the stay violation. Heghmann, 316 B.R. at 403-404; see also In re Flack, 239 B.R. 155, 163 (Bankr.S.D.Ohio 1999) (citation omitted). Accordingly, in determining whether to award damages under § 362(h), the bankruptcy court must first consider whether: (1) the actions which violated the automatic stay were willful; and (2) whether the debtor suffered an injury due to those violations. Here, the bankruptcy court concluded that avoidance of Doral's $25,000 lien was an adequate remedy, and that no monetary damages were warranted. In order for the Panel to review whether the bankruptcy court abused its discretion in so holding, the Debtor must provide the Panel with an appellate record that is adequate to show what was argued before and presented to the bankruptcy court on the damages issue. A transcript of the hearing is an essential part of the appellate record in this case, and the Debtors' failure *333 to provide the Panel with a copy of the transcript is fatal to their appeal. Without a copy of the transcript, the Panel is unable to determine the legal foundation of the bankruptcy court's rulings, or whether the bankruptcy court made any initial oral findings and rulings. Moreover, the Panel is unable to determine what evidence was before the bankruptcy court when it made its decision. Thus, the Debtors' failure to provide a copy of the transcript thwarts any attempt by this Panel to apply the abuse of discretion standard. CONCLUSION Because the record on appeal fails to provide a sufficient basis for reviewing the bankruptcy court's decision, we summarily AFFIRM the Order. NOTES [1] The Debtors' case was commenced before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub.L. No. 109-8, 119 Stat. 23. Therefore, unless otherwise noted, all references to the "Bankruptcy Code" or to statutory sections herein are to the Bankruptcy Reform Act of 1978, as amended prior to April 20, 2005, 11 U.S.C. §§ 101, et seq. [2] Rolan and Canales were not named in the original complaint, but were subsequently added as defendants in an amended complaint. [3] Section 362(h) was redesignated as § 362(k) as part of BAPCPA. However, these changes are not applicable to the present case because the Debtors filed their bankruptcy petition before BAPCPA's effective date. All citations to § 362(h) will be to the pre-BAPCPA version unless otherwise noted.

873 F.2d 1181 UNITED STATES of America, Plaintiff-Appellee,v.Jerald Wayne DICKERSON, Claimant-Appellant,v.ONE CESSNA 421 B, AIRCRAFT, Defendant. No. 87-6003. United States Court of Appeals,Ninth Circuit. Submitted Jan. 7, 1988*.Decided June 14, 1988.Second Amended Opinion April 26, 1989. Victor Sherman, Santa Monica, Cal., for claimant-appellant. James R. Sullivan, Asst. U.S. Atty., Civil Div., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before PREGERSON, CANBY and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: 1 Jerald Wayne Dickerson appeals the forfeiture of his Cessna airplane. The plane was seized by U.S. Customs agents pursuant to federal forfeiture statutes. 19 U.S.C. Sec. 1703; 21 U.S.C. Sec. 881(a)(4). The district court held that Dickerson's plane was subject to forfeiture under either statute. Under section 881(a)(4), the government must first demonstrate that there was probable cause to believe the conveyance seized was used or intended to be used in narcotics transport. We conclude that the government failed to demonstrate probable cause because it did not sufficiently demonstrate that it secured Dickerson's airplane between the time it was seized and when it was searched. We also conclude that the airplane is not subject to forfeiture under section 1703. We REVERSE. FACTS 2 On February 27, 1986, at about 6:30 a.m., U.S. Customs and Marine Corps radar operators picked up a target aircraft in Mexico heading north toward the United States. The plane crossed into the United States near Mexicali. The plane did not stop in Calexico, California, the required Airport of Entry, for transition into the United States in that area. The plane proceeded to the Hemet-Ryan Airport where it landed about 7:18 a.m. A trailing customs aircraft identified the plane as a Cessna 421 and was able to make out the FAA tail registration number (N211PH). The plane left Hemet-Ryan three minutes later, without its pilot contacting anyone. A second Customs airplane was dispatched to intercept the suspect plane. At about 8:00 a.m. the Customs planes detected the target making numerous turns and course changes in the Banning Pass area. At about 8:30 a.m., the target turned north and proceeded over the San Bernardino mountains toward Apple Valley, California. The plane circled Apple Valley Airport and appeared to be entering the Airport's traffic pattern for landing when it made an abrupt 180 turn and proceeded back into Banning Pass. For the next 30 to 45 minutes, the plane circled and turned in the Banning Pass area, flying close to the contours of the mountains. The target then left Banning Pass and flew east. It circled the Thermal Airport and on its second pass lowered its gear to land. On its final approach, while over the end of the runway, it retracted its landing gear and headed south over the Salton Sea. The plane crossed back into Mexico at approximately 9:57 a.m. 3 Radar followed the plane to the Punta Penasco airstrip in Mexico where it landed. Customs aircraft maintained a border patrol and at 11:40 a.m. the plane again appeared on radar scopes heading north to the United States. The aircraft entered the United States at about 12:00 p.m. Again, the plane did not legally enter or declare, as required, at Calexico, California. Customs aircraft briefly intercepted the plane, but lost it as it rapidly descended to less than 100 feet above ground level. The airplane landed at Holtville Airport and remained on the ground for about 15 minutes. When the plane departed Holtville, a Customs aircraft again spotted the target and pursued it to Desert Air Sky Ranch. The plane landed and was blocked by a closely following Customs aircraft. Its registration number was N211PH. Dickerson, the pilot of the plane, was arrested and the plane was searched. No narcotics nor debris of narcotics were found. Inspection of the aircraft showed that its rear seats had been removed. A carpet was found rolled up in the back of the cargo space. The cargo space behind the front seats was 12 feet long, four feet wide, and five feet high. The plane was equipped with some advanced equipment, including: state-of-the-art programmable ground to air radios and a ham radio with an "omnidirectional" antenna. Also, the plane had been fitted with an "after-market" nose fuel tank and additional fuel tanks in the wings. The fuel tanks increased the Cessna's flying time by some two and one half hours--about a 50 percent gain. The Cessna's tanks were nearly exhausted. Fuel was transferred to the plane and it was flown by Customs agents to the Thermal Airport and then to the Customs air facility at North Island Naval Air Station. On March 4, 1986, some six days after the plane was seized, the plane was inventoried and searched. "Brutus", a narcotics detection dog, was brought to the plane. The dog alerted to a section of the carpet that was now found to be unrolled in the cargo area. The dog alerted to a two foot wide square of the carpet. However, no debris of any drug was found in the carpet or on the floor of the plane. 4 At trial, a Customs agent testified that the airplane's erratic flying pattern was not normal and that planes did not normally fly at such low altitudes. The agent also testified that he had followed other aircraft exhibiting similar "evasive" maneuvers and agents had found drugs on these planes 80 to 90 per cent of the time. The agent also testified that a Cessna 421 is particularly suitable for narcotics smuggling because of its large cargo area. In addition, this particular plane, due to its extended range, was even a better vehicle for narcotics transport. It was the agent's opinion that the airplane flew as it did in order to avoid detection. He also stated the aircraft was equipped in a typical manner used by narcotics smugglers. 5 The agent admitted, however, that many of these same facts were consistent with an innocent as well as an illegal purpose. The programmable radios were tuned to standard flight service and weather information frequencies and not to frequencies of significance to smuggling activities. He also admitted that the alterations to the aircraft were done with FAA approval while smugglers normally alter their planes in a clandestine and illegal way. Also, the plane was registered to Dickerson or to a company owned by Dickerson. The agent admitted that smugglers normally register their planes to fictitious entities or people. Also, he stated that smugglers normally bring with them an off-loading crew while this plane had none. He also admitted that he never saw this plane unload any contraband. He also noted that most smuggling operations take place at night while this flight took place during daylight hours--the period of maximum visibility. 6 Brutus' handler also testified at trial. He stated that, based on his dog's alert, in his opinion a large quantity--up to 50 pounds--of marijuana had been in the plane in the prior two weeks. He also testified that he did not believe that any drugs were actually then present in the plane. He did not know who had been in the plane during the six-day period between the initial seizure and the dog search. He argued that as far as he knew, anyone who had the scent of marijuana on them could have been in the plane during that period, thus causing Brutus to alert. He also testified that the carpet was not rolled up in the back of the plane but had been laid flat. DISCUSSION 7 21 U.S.C. Sec. 881(a)(4) provides for the forfeiture of "[a]ll conveyances, including aircraft ... which are used, or are intended for use, to transport [controlled substances]...." In such a forfeiture proceeding, the government must first demonstrate that there is probable cause to believe that the plane was used or intended to be used in transporting narcotics. 8 In forfeiture proceedings, the district court's probable cause determination is reviewed de novo. United States v. $93,685.61 In U.S. Currency, 730 F.2d 571, 572 (9th Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 61 (1984). The standard of probable cause to support a seizure for forfeiture is similar to that required to obtain a search warrant. To meet its burden, the government must show that it had "reasonable grounds" to believe that the plane was used to transport drugs. United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1281-82 (9th Cir.1983). The government's belief must be based on more than mere suspicion. United States v. $5,644,540.00 In U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986); Tahuna, 702 F.2d at 1282. 9 The facts known to the government at the time of the seizure give rise to a suspicion that the plane had been used in drug-related activity. The erratic flying pattern of the aircraft, its abrupt return to Mexico, the aborted landings and quick departures from various airports without contacting anyone on the ground, its failure to land at the designated area entry airport, and perhaps the alterations to the plane's cargo area and fuel systems all point to a less than innocent activity. However, these facts give rise to no more than a mere suspicion that the plane was involved in narcotics transport. The Customs Agents' belief, based on these facts, was nothing more than an "inchoate and unparticularized suspicion or 'hunch.' " Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). However, what certainly would provide probable cause to believe that the plane was involved in drug traffic was the alert of "Brutus" the drug dog. We find, however, for reasons explained below, that the probative value of the alert must be rejected. 10 To pass the point of mere suspicion and to reach probable cause, it is necessary to demonstrate by some credible evidence the probability that the plane was in fact used to transport a controlled substance. Tahuna, 702 F.2d at 1282. The information relied on by the government must be sufficiently reliable to support the probable cause finding. Id. The evidence provided by the alert showed that at some time prior to the alert a narcotics substance was on the rug. Brutus' alert, however, took place almost a week after the initial seizure of the airplane. Both customs agents that testified at trial admitted that they did not know who had been in the plane during the six-day period. The dog handler also testified that anyone with the smell of drugs on them could have been in the plane during this period causing the dog to alert. No debris or other evidence of drugs was found anywhere in the plane. There was also evidence of tampering with the contents of the plane. When initially seized, the cargo space's carpet was rolled or bunched up in the back of the plane. When the Customs agent arrived with Brutus six days later to search the plane, the carpet had been laid flat on the floor of the airplane. 11 The government had the burden of establishing that the plane was secured during the six days that it was in its custody. Tangible evidence of crime is admissible only when shown to be in substantially the same condition as when the crime was committed. Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960); see also United States v. Godoy, 528 F.2d 281, 283 (9th Cir.1975) (per curiam). An important factor to be considered is the likelihood of intermeddlers tampering with the evidence. Gallego, 276 F.2d at 917. If there is some evidence of tampering, then the government must show that acceptable precautions were taken to maintain the evidence in its original state. United States v. Anderson, 654 F.2d 1264, 1267 (8th Cir.1981), cert. denied, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981); United States v. Lane, 591 F.2d 961, 962 (D.C.Cir.1979) (citing Gallego ). Here, there was evidence of tampering. The carpet which Brutus alerted to had been moved from its original place in the plane. Neither Customs agent could testify whether and how the plane had been secured during the six-day period the government had the plane in custody. The government could not establish that "acceptable precautions," or any precautions at all, were taken to maintain the plane or its contents in their original state. One is left with the possibility that narcotics were introduced after the plane was seized or might have been introduced before the plane was seized. Either possibility is as credible as the other. The government did not have "reasonable grounds" to believe the plane was used to transport drugs. On this state of the record, probable cause to forfeit Dickerson's plane pursuant to 21 U.S.C. Sec. 881(a)(4) has not been established. 12 We also do not find that Dickerson's plane was subject to forfeiture under 19 U.S.C. Sec. 1703. Although the Sixth Circuit has applied section 1703 to aircraft, United States v. One (1) 1966 Beechcraft Baron, No. N242BS, 788 F.2d 384 (6th Cir.1986), this circuit has not decided the issue. Assuming, without deciding, that section 1703 applies to aircraft, none of the requirements for forfeiture are met in this case. There is no evidence that Dickerson failed to display his lights or failed to comply with an order or direction of a customs official to stop his airplane. See 19 U.S.C. Sec. 1703(c). Furthermore, the government failed to establish probable cause to believe that Dickerson's airplane was fitted out for smuggling. See id. Sec. 1703(a). Although the airplane had been altered, it was done with FAA approval. These facts give rise to no more than a mere suspicion that the airplane was fitted out for smuggling. As discussed above, the government did not have "reasonable grounds" to believe that the plane was involved in smuggling activities. Thus, probable cause to believe the plane was fitted out for smuggling has not been established. On this record, probable cause to forfeit Dickerson's plane pursuant to 19 U.S.C. Sec. 1703 has not been established. CONCLUSION 13 We REVERSE the district court's decision forfeiting Dickerson's airplane. * The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

146 N.W.2d 185 (1966) Flora J. SCHMIDT, Appellant, v. Orville W. SCHMIDT, Respondent. No. 39983. Supreme Court of Minnesota. November 10, 1966. F. Gordon Wright, Minneapolis, for appellant. Albertson, Norton & Jergens, and David K. Hebert, Stillwater, for respondent. *186 OPINION KNUTSON, Chief Justice. Plaintiff and defendant were married on September 23, 1934. Two children were born as issue of the marriage but both are now of lawful age and married. In July 1960 plaintiff commenced an action for divorce which culminated in a stipulation for settlement of property rights and alimony in October 1961. On November 8, 1961, a judgment and decree were entered granting plaintiff a divorce, which provided for the payment of alimony of $150 per month. In addition plaintiff was given the right to use the house owned by the parties as tenants in common as long as she remained unmarried but was required to make monthly payments on a mortgage amounting to $76.90 per month, which amount included taxes and insurance on the house. A few shares of stock theretofore owned by the parties in joint tenancy were left unchanged. Defendant is employed by the Northwestern Bell Telephone Company in Minneapolis. He remarried in May 1962 and thereafter adopted three minor children of his newly acquired wife. In March 1964 defendant served notice of motion for a change in the judgment and decree of divorce by eliminating the payment of alimony. Substantial affidavits by the parties showing their present financial condition were submitted to the court. Lengthy interrogatories were submitted by plaintiff and answered by defendant. Defendant also took a deposition of plaintiff, and an affidavit of one of the daughters of the parties was submitted. Some time after the return date of the motion the parties mutually agreed to submit the matter without oral argument. It appeared that plaintiff had substantially improved her position. While she was in ill health at the time of the divorce, she had regained her health at the time of the motion and was gainfully employed. During the year 1964 her take-home pay was $2,214.29, whereas at the time of the divorce her earnings were almost nothing. For some unknown reason the court made no decision on this motion. While it was pending, defendant discontinued payments of alimony in July, August, and half of September and December 1964, resulting in an arrearage of $450 by 1965. Plaintiff thereupon made a motion seeking to have defendant adjudged in contempt for failure to make the required alimony payments. The motion was returnable on January 18, 1965. On January 16 defendant served upon plaintiff's attorney a countermotion again seeking to have the alimony discontinued or reduced and the arrearages forgiven. This countermotion was made returnable on the same day as plaintiff's motion involving the contempt charge, and both came on for hearing together. The court decided these motions on March 11, 1965. On plaintiff's motion the court found that "by reason of illness and circumstances beyond the control of the defendant, * * * there was no willful disobedience of the orders of this Court" and therefore defendant was not guilty of contempt. On defendant's motion the court amended the judgment and decree by reducing the alimony to the sum of $100 per month. On March 16 the court filed an amended judgment wherein it stated that the court would retain jurisdiction of the subject matter "insofar as alimony is concerned without prejudice to the rights of either party to seek modification of the alimony requirement or amendment thereof, by reason of any substantial change in the circumstances of the parties, or either of them." Neither the original nor the amended judgment referred in any way to the default by defendant in payment of alimony. In order to collect this amount plaintiff commenced an action in the municipal court of the city of Minneapolis. Shortly thereafter the district court, on April 20, 1965, issued a corrective order forgiving defendant all amounts then due, which effectively terminated the action commenced in municipal court. *187 Plaintiff now appeals from the amended judgment and the later order forgiving the defaulted payments. It is the contention of plaintiff that the court abused its discretion in reducing the alimony and in forgiving the defaulted payments although she concedes that the court's order finding the defendant not guilty of contempt was within the discretionary powers of the court and was not an abuse of discretion. Plaintiff raises several technical objections to the proceedings. Among others, she complains of the long delay by the court in determining defendant's original motion for reduction in alimony. While we can see no excuse for a delay of some 9 months in deciding a motion of this kind, we fail to see how plaintiff has been prejudiced by it. During all of this time, excepting the months when defendant was in default, he continued to pay $150 per month. Had the court acted more expeditiously the payments might conceivably have been reduced earlier than they were. Plaintiff also complains of the court's action on defendant's countermotion, which had been served only a few days before the hearing on January 18. Plaintiff appeared at this hearing and made no request for additional time to meet the claims of defendant. As a matter of fact, defendant's evidence supporting this motion was substantially the same as had been submitted in support of his original motion some 9 months previously, so it can hardly be said that the court and plaintiff were not aware of the claims of the defendant. We see no objection to hearing the countermotion at the same time as the motion to have defendant adjudged in contempt. Additionally, plaintiff contends the court abused its discretion in issuing the order on April 20, 1965, forgiving the past-due installments of alimony. Such corrective order supplying an omission from the original order is permissible under Rule 60.01, Rules of Civil Procedure. There are other technical objections which merit no discussion. Stripped to its essentials, the question before us is whether the court so far abused its discretion in reducing alimony and in granting forgiveness of past-due installments that we should interfere with it. An examination of the entire record requires a negative answer on both points. 1. The rules applicable to a proceeding of this kind are well established. The court has quite broad discretionary power to modify alimony payments when the conditions of the parties change. Here the record shows that defendant's health had materially deteriorated. He had a severe heart attack on July 3, 1964, following which he was hospitalized for 6 weeks and was unable to return to work for a long time thereafter. Prior to the heart attack he had suffered a back injury for which he was receiving medical treatment. As a result of these disabilities he has incurred medical and hospital expenses; and while his pay has continued as before, with some moderate raises since the divorce, the additional expenses accumulated to the point where the court found he was unable to make the payments. On the other hand plaintiff's condition has materially improved. She was not well enough to work at the time of the divorce, but since has regained her health and now is gainfully employed and earned in excess of $2,000 in 1964. She has the use of the house jointly owned by the parties and until shortly before these motions were heard had rented out one of the bedrooms. She can still do so. The improvement in her financial condition more than equals the reduction in alimony. We are convinced the record sustains the court's action. 2. Forgiveness of past-due installments was also within the discretionary power of the court. Hartigan v. Hartigan, 142 Minn. 274, 171 N.W. 925; Plankers v. Plankers, 178 Minn. 31, 225 N.W. 913; *188 Conklin v. Conklin, 223 Minn. 449, 27 N.W. 2d 275, 6 A.L.R.2d 1274.[1] The court in passing upon plaintiff's motion to find defendant in contempt found that defendant was unable to pay during the time he was in default due to "illness and circumstances beyond the control of the defendant." The same reason may have impelled the court to forgive the past-due installments. If the court had timely acted upon defendant's original motion, there might not have been any necessity for the default. In any event, there is evidence to sustain the exercise of the court's discretionary power to grant the forgiveness, so it must be sustained. We see no reason for interfering with the court's action. Affirmed. NOTES [1] See Bensel v. Hall, 177 Minn. 178, 225 N.W. 104, as to the nature of alimony.

176 N.W.2d 266 (1970) Benjamin S. TAYLOR, et al., Respondents, v. ALLSTATE INSURANCE COMPANY and Ian M. MacCallum, Appellants, Hardware Mutual Casualty Company and Velie Motor Co., Appellants, Heggie F. Nelson, individually and as trustee for heirs of Lilly Nelson, deceased, Respondent. Nos. 41796, 41805. Supreme Court of Minnesota. April 3, 1970. *268 Hoppe & Healy, Minneapolis, for Allstate Ins. Co. Miller & Neary, Minneapolis, for Hardware Mutual Cas. Co. Faegre & Benson, and Wright Brooks, Minneapolis, for Taylor and others. Swanson & Christoffersen, St. Paul, for Nelson. Heard before KNUTSON, C. J., and NELSON, MURPHY, OTIS, and FRANK T. GALLAGHER, JJ. OPINION NELSON, Justice. Appeals from a declaratory judgment that policies of insurance issued by Allstate Insurance Company (hereinafter referred to as Allstate) and Hardware Mutual Casualty Company (hereinafter Hardware Mutual) afforded primary coverage to Benjamin S. Taylor and his son, James A. Taylor, and that a policy issued by Aetna Casualty and Surety Company (hereinafter Aetna) afforded excess insurance; and from the trial court's order denying motions by Hardware Mutual for amended findings and by Allstate and Ian M. MacCallum for a new trial. The facts according to a stipulation of the parties and the testimony which was taken by deposition are as follows: On February 10, 1966, Benjamin S. Taylor brought his automobile to Velie Motor Company's service garage for repairs. Velie Motor Company had a practice of providing its customers with vehicles while their automobiles were in for repairs. Ian MacCallum, the foreman of the Velie body shop, furnished Benjamin Taylor with one of the "loaners" without charge, whereupon Taylor signed a Velie printed form entitled "Agreement for Loan of Courtesy Car." Taylor drove the courtesy car a short distance and upon becoming dissatisfied with its performance returned it to the shop and requested a different vehicle. MacCallum decided to allow Taylor to use his personally owned 1955 Oldsmobile as a loaner. Taylor signed another "Agreement for Loan of Courtesy Car" covering MacCallum's automobile, which included a provision that he was "[n]ot to allow or cause the vehicle to be loaned, rented, or operated by any person other than myself." On February 11, 1966, Taylor's son, James Taylor, asked and received permission from his father to use MacCallum's 1955 Oldsmobile to drive to the Navy recruiting station in Crystal, Minnesota. While returning home later that same afternoon, James Taylor was involved in an accident with an automobile owned and operated by Heggie F. Nelson, in which his wife was a passenger. Mrs. Nelson died as a result of injuries sustained in that accident. Nelson brought suit individually for personal injuries sustained, and as trustee for the heirs of his deceased wife for her death, against James Taylor, Benjamin *269 Taylor, Ian MacCallum, and Velie Motor Company. At the time of the accident, Aetna had in force and effect an automobile liability policy issued to Benjamin Taylor as named insured, describing the car he had in the Velie shop for repairs. In addition to providing coverage for its ownership, maintenance, and use by the named insured and any person using the vehicle with permission of the owner, the policy provided coverage for the use of any temporary substitute automobile, the latter coverage being "excess insurance over any other valid and collectible insurance." Hardware Mutual had in force and effect a garage liability policy issued to Velie Motor Company as named insured which insured among other things the use of any automobile for the purpose of garage operations. Allstate had in force and effect an automobile policy issued to MacCallum as named insured which provided coverage for any other person using his 1955 Oldsmobile, provided its use was with the permission of the named insured. When Hardware Mutual and Allstate denied that their policies afforded coverage for the liability of James Taylor or Benjamin Taylor and refused to defend them in the suit brought by Nelson, the Taylors and Aetna commenced a declaratory judgment action requesting the court to determine what, if any, coverage was afforded by the respective policies. The trial court determined that the Taylors were covered as additional insureds under the Allstate and Hardware Mutual policies and that both policies provided primary coverage for any legal liability that either of them had on account of the accident, while the Aetna policy provided "excess" insurance with respect to both the Allstate and Hardware Mutual policies. These appeals by Hardware Mutual, Velie Motors, Allstate, and MacCallum followed. The issues involved in these appeals are as follows: (1) Was MacCallum's automobile being driven at the time of the accident with his implied permission so as to entitle the driver, James Taylor, to coverage as an additional insured under the Allstate automobile liability policy even though the agreement under which the car was loaned to Benjamin Taylor recited that the customer was not to allow the vehicle to be operated by any person other than himself? (2) Where a garage follows the practice of loaning cars to customers while their automobiles are in its shop for repairs, and the garage foreman loans his personal automobile to a customer, no suitable garage-owned car being available at the time, has the garage liability insurer avoided being a primary insurer for an accident involving the automobile during the time it was in the customer's possession by limiting the coverage afforded to another person using an automobile for a purpose incidental to the business of the garage with an "escape" clause which is to apply where there is other valid and collectible insurance available? (3) Assuming the garage liability policy affords primary coverage for the accident, what are the applicable limits of its liability? 1. Allstate contends that when MacCallum loaned his automobile to Benjamin Taylor the permission to use the car did not extend to his son, James Taylor, especially since the father signed the agreement which included a provision that he was not to allow the vehicle to be operated by any person other than himself. There is no dispute over the fact that permission was given by Benjamin Taylor to his son to use the automobile. The ultimate issue is whether MacCallum gave his permission to James Taylor to use the automobile. It is not essential that express permission be given for use of an automobile in order to give the operator protection as an additional insured under an omnibus clause. Permission for such use may be inferred from all the facts and circumstances *270 of the case. Anderson v. Hedges Motor Co., 282 Minn. 217, 164 N.W. 2d 364; 7 Appleman, Insurance Law and Practice, § 4365. The deposition testimony presented a fact issue as to whether Benjamin Taylor was informed of any limitation being placed on the use of the 1955 Oldsmobile. He testified that he had made the Velie people aware at the time he brought his car to the garage for repairs that his family would need another automobile to use. The Velie people knew that members of Benjamin Taylor's family drove his car. Mr. Taylor also testified that he did not read the agreement which he signed and that he did not recall being told that he was not allowed to let anyone else drive the automobile. It is undisputed that he was not given a copy of the loan agreement. On the other hand, Ian MacCallum testified that he reviewed the agreement with Benjamin Taylor and specifically the clause prohibiting use of the car by anyone else. He claimed that Benjamin Taylor had ample opportunity to read the agreement and did in fact read it in his presence. MacCallum acknowledged that he knew there was a good likelihood that when a customer was loaned an automobile to use while the family car was being repaired, there would be other members of the family driving the car. Another Velie employee acknowledged that it was not his practice to stress the provision about not loaning the car to anyone else. The trial court found that Benjamin Taylor signed the agreement without reading it; that MacCallum did not tell Taylor not to let anyone else use the car; that Taylor's attention was not called to the provision in the form prohibiting anyone other than the customer from driving the car; that in loaning a car to a customer to use while the family car was being repaired, Velie and MacCallum could naturally expect other members of the customer's family to operate the car; and that at the time of the accident James Taylor was using the 1955 Oldsmobile with the permission of his father and with the implied permission of both MacCallum and Velie Motors. 2. This court has construed the term "consent" as used in the phrase "operated * * * by any person other than the owner, with the consent of the owner, express or implied" in Minn.St. 170.54 of the Safety Responsibility Act to include the situation where a bailee is a member of the bailor's immediate family or is the bailor's employee and he gives a third person permission to drive the automobile in contravention of instructions by the bailor forbidding anyone else to drive it, while the bailee remains as passenger in the vehicle. Lange v. Potter, 270 Minn. 173, 132 N.W.2d 734; Mullin v. The Fidelity & Casualty Co., 271 Minn. 551, 136 N.W.2d 613. The term "consent" in the Safety Responsibility Act has been treated by this court synonymously with the term "permission" as used in customary omnibus clauses. Allied Mutual Casualty Co. v. Nelson, 274 Minn. 297, 143 N.W.2d 635. Although in both the Lange and Mullin cases the first permittee, as passenger, was in a real sense "using" the automobile due to his "control" over the driver, the same reasoning applies in the instant situation where the first permittee was not present in the car. Although Benjamin Taylor did not have control over the actual mechanical operation of the car, he still had control over who would drive and for what purpose. We conclude that where the 1955 Oldsmobile was lent by MacCallum to Benjamin Taylor for general use, and Taylor in turn permitted its use by his son, such use is deemed to be with permission of MacCallum. It is the clear implication that Taylor was authorized to use the car as his personal car ordinarily would be used. MacCallum and Velie should have been on notice that a personal passenger automobile would be used in the way the 1955 Oldsmobile was used in this case. See, Utica Mutual Ins. Co. v. Rollason (4 Cir.) 246 F.2d 105. We believe that the trial *271 court was justified on the evidence in finding that MacCallum impliedly permitted James Taylor to use his vehicle. 3. The fact that Benjamin Taylor signed a loan agreement which contained a provision prohibiting him from allowing anyone else to use the vehicle does not change our holding. The trial court found that Taylor was not made aware of this provision, nor did he receive a copy of what he had signed. This provision was therefore legally ineffective under the circumstances of this case. See, Miller v. Macalester College, 262 Minn. 418, 115 N.W.2d 666; Financial Indemnity Co. v. Hertz Corp., 226 Cal.App. 2d 689, 38 Cal.Rptr. 249. 4. With regard to the second issue, Hardware Mutual and Velie Motors contend that since Allstate is the primary insurer of the Taylors, such primary liability activates the "escape" clause of Hardware Mutual's policy providing that it affords no coverage if there is "other valid and collectible automobile liability insurance, either primary or excess" available. The Hardware Mutual policy issued to Velie Motors had the following applicable provisions: "PART I—LIABILITY * * * * * * "Garage Operations Hazard "The ownership, maintenance or use of the premises for the purposes of a garage, and all operations necessary or incidental thereto, hereinafter called `garage operations'. "Automobile Hazards "1. All Automobiles "(a) The ownership, maintenance or use of any automobile for the purpose of garage operations, and the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the named insured and used principally in garage operations, and "(b) The ownership, maintenance or use of any automobile owned by the named insured while furnished for the use of (i) the named insured, a partner therein, an executive officer thereof or, if a resident of the same household, the spouse of any of them, or (ii) any other person or organization to whom the named insured furnishes automobiles for their regular use. * * * * * * "Persons Insured "Each of the following is an insured under Part I, except as provided below: * * * * * * "(3) With respect to the Automobile Hazard: "(a) any person while using, with the permission of the named insured, an automobile to which the insurance applies under paragraph 1(a) or 2 of the Automobile Hazards, provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, "(b) any person while using an automobile to which the insurance applies under paragraph 1(b) of the Automobile Hazards with the permission of the person or organization to whom such automobile is furnished, provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission." The policy also contained the following endorsement: "In consideration of the reduced rate of premium made applicable to the insurance under Part I, it is agreed that this policy section is amended as follows: "1. Paragraph 3 of `Persons Insured' is amended to read as follows, and Paragraphs 4 and 5 below are added, all *272 subject to exceptions (i), (ii), (iii) and (iv) as set forth in this policy section. "`(3) With respect to an automobile to which the insurance applies under paragraph 1(a) of the Automobile Hazards, any of the following persons while using such automobile with the permission of the named insured, provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission: * * * * * * "`(b) any other person, but only if no other valid and collectible automobile liability insurance, either primary or excess, with limits of liability at least equal to the minimum limits specified by the financial responsibility law of the state in which the automobile is principally garaged, is available to such person * * *. "`(4) With respect to an automobile to which the insurance applies under paragraph 1(b) of the Automobile Hazards, any person while using such automobile with the permission of the person or organization to whom such automobile is furnished, provided such person's actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * * *.'" Appellants Hardware Mutual and Velie contend that the 1955 Oldsmobile was a 1(a) automobile and as such is excluded from coverage under the "escape" clause in the endorsement. They reason that the automobile must be a 1(a) automobile due to the requirement that a vehicle must be owned by the named insured in order to be classified 1(b) and the 1955 Oldsmobile was not owned by Velie. We disagree and find that the 1955 Oldsmobile is a 1(b) automobile to which the "escape" clause is inapplicable. The first portion of paragraph 1(a) includes automobiles which are owned, maintained, or used for the purpose of garage operations. The second portion includes automobiles owned by or in charge of the named insured and used for nonbusiness purposes even though they are used principally in garage operations. The automobile involved in the instant case was owned by MacCallum personally. Consequently, it was not used "principally" in garage operations as required by the second portion of the 1(a) classification. Since the intent of the insurance company in drafting this clause in its "Automobile Hazards" section probably was to deal with automobiles which were principally used in garage operations as evidenced by the second portion of the 1(a) clause, this intent we presume was necessarily present throughout the drafting of the entire clause. Thus, the first portion of the 1(a) clause is interpreted to encompass automobiles owned, maintained, or used principally in garage operations. Again, since MacCallum's automobile was owned and used as his personal automobile, it was not owned, used, or maintained principally for garage operations and was not, therefore, a 1(a) automobile. Although the trial court did not specifically classify the 1955 Oldsmobile as 1(a) or 1(b) under the Hardware Mutual policy, its finding that Benjamin Taylor was within the class of persons to whom Velie furnished automobiles for their regular use is consistent with the latter classification. The words "owned by the named insured" are not defined in the policy. In Quaderer v. Integrity Mutual Ins. Co., 263 Minn. 383, 116 N.W.2d 605, the insurer had denied coverage under an automobile liability policy on the ground that the accident-involved car was not owned by the named insured, but by his son, and so was not an "owned automobile" within the policy meaning. When the named insured later sued for expenses he had incurred in successfully defending a lawsuit brought against him and his son on account of the accident, this court allowed him to recover *273 because the terms "owned by the named insured" and "ownership" were ambiguous in their context and could be deemed to include anyone with an insurable interest, i. e., anyone who might be held liable for damages on account of the operation of the car. Thus, where a garage loans automobiles to customers, as Velie does in this case, the words "owned by the named insured," as used in paragraph 1(b) of Automobile Hazards, we construe to include not only the automobiles which Velie legally owns and uses for loans to customers but also automobiles, such as MacCallum's, which are occasionally loaned to customers. It is significant to note that even though the 1955 Oldsmobile was technically owned by MacCallum, it was loaned to Benjamin Taylor under a Velie loan agreement. This loan arrangement further buttresses our conclusion that the accident-involved automobile was an automobile "owned by the named insured" under paragraph 1(b). Since the accident-involved vehicle was a 1(b) automobile to which the "escape" provision is inapplicable, it is unnecessary to rule on the legal effectiveness of such provision. The case of Federal Ins. Co. v. Prestemon, 278 Minn. 218, 153 N.W.2d 429, is not authority for invalidating the clause under the circumstances of the instant case since Prestemon dealt with two insurance policies which were mutually repugnant to each other—one policy containing an "excess insurance" clause and the other policy containing a "no liability" clause. The policy containing the "no liability" clause was found to provide primary coverage. In the instant case, we do not have inconsistent policies but rather a policy which provides primary coverage (Allstate) and a policy with a "no liability" provision. We reserve ruling on the legal effectiveness of this type of exculpatory clause. We point out, however, that Minnesota requires automobile liability insurance policies to contain omnibus insurance coverage. Minn.St. 170.40. Other state supreme courts have expressed a policy of not altering omnibus insurance clauses and of providing permissive users with the same coverage as the named insured. Willis v. Security Ins. Group, 104 N.J.Super. 410, 250 A.2d 158, affirmed, 53 N.J. 260, 250 A. 2d 129; American Motorists Ins. Co. v. Kaplan, 209 Va. 53, 161 S.E.2d 675. Hardware Mutual also contends that if it is to be required to share responsibility with Allstate on a pro rata basis, then the applicable limit of its liability should be placed at $10,000/$20,000/ $5,000 under a policy endorsement. This endorsement limits liability only with respect to certain persons using a 1(a) automobile. Thus, for precisely the same reasons that Hardware Mutual cannot avoid primary coverage, it cannot avoid having its pro rata liability calculated on the basis of the Hardware Mutual limits of liability, $250,000/$500,000/$100,000. After a very careful consideration of the record herein, we reach the conclusion that the findings must be sustained. Where there is evidence reasonably tending to sustain the findings of the trial court, such findings must be sustained. The function of a court of review is not to weigh the evidence as if trying the matter de novo but to determine from an examination of the record if the evidence as a whole sustains the trial court's findings, and, if so sustained, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary. Bolduc v. New York Fire Ins. Co., 244 Minn. 192, 69 N.W.2d 660. We conclude that the trial court has properly resolved the issues of this case, and the judgment is affirmed. Affirmed.

268 Cal.App.2d 47 (1968) THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JUNIOR CONLEY, Defendant and Appellant. Crim. No. 4756. California Court of Appeals. Third Dist. Dec. 9, 1968. Robert Y. Bell for Defendant and Appellant. Thomas C. Lynch, Attorney General, Edsel W. Haws, Edward A. Hinz, Jr., and Charles P. Just, Deputy Attorneys General, for Plaintiff and Respondent. FRIEDMAN, J. In October 1964 a jury in Mendocino County found defendant Conley guilty of the first degree murder of Elaine McCool and her husband, Clifton McCool. Defendant was sentenced to life imprisonment. In March 1966 *51 the judgment of conviction was reversed by the State Supreme Court. (People v. Conley, 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911].) A second trial in Mendocino County culminated in a deadlocked jury. On defendant's motion venue was changed to Tehama County and he was tried a third time in January and February 1967. The jury found him guilty of the first degree murder of both victims, and concurrent life sentences were imposed. He appeals. The statement of facts in People v. Conley, supra, 64 Cal.2d at pages 314 and 315, summarizes the evidence in detail. Suffice it to say here: Defendant was involved in an affair with Mrs. McCool, who wished to terminate it and return to her husband. After she told him she was ending the relationship, defendant indulged in several days of heavy drinking, then traded his automobile for a rifle, bought ammunition and shot both husband and wife. His blood alcohol level at the time of the shooting was high enough to indicate a possibility of impaired judgment. Psychiatric evidence pointed to a somewhat disordered personality but was characterized by conflicting claims regarding his capacity to entertain malice and to premeditate. Although he claimed to remember nothing of the shooting, several psychiatrists testified that he had been conscious of his actions. The jury found him guilty of two premeditated murders, then rejected his insanity plea. Jury Instructions Conley's first conviction was reversed by the Supreme Court for absence of a jury instruction on "nonstatutory" voluntary manslaughter. Footnote 4 of the Conley opinion (64 Cal.2d at pp. 324-326) consists of a suggested comprehensive jury instruction, defining the various kinds of murder and manslaughter as affected by evidence of diminished capacity and unconsciousness attributable to mental defect or voluntary intoxication. A portion of that instruction describes two kinds of voluntary manslaughter recognized by California law: first, the "heat of passion" or "sudden quarrel" variety expressed in Penal Code section 192, subdivision 1; second, the nonstatutory variety, where "due to diminished capacity caused by mental illness, mental defect, or intoxication, the defendant did not attain the mental state constituting malice." [1] On Conley's first appeal, on substantially identical evidence as here, the Supreme Court held that absence of the instruction on nonstatutory voluntary manslaughter required *52 reversal. A careful examination of the record of the last trial indicates omission of this very instruction. The same result--reversal--must follow here. The Attorney General urges that the trial judge gave the equivalent of this instruction by telling the jurors that they could not find defendant guilty of first or second degree murder if, by reason of diminished mental capacity, he did not harbor malice aforethought. Repeating the argument under another heading of the law, he urges the error's harmlessness. As in People v. Aubrey, 253 Cal.App.2d 912, 919 [61 Cal.Rptr. 772], this combination of instructions gave the jury an opportunity to acquit defendant if they found no malice, but none to find him guilty of nonstatutory voluntary manslaughter. Whatever deductions legal reasoning might draw from the combination of instructions, the pivotal fact is that only one kind of voluntary manslaughter was defined for the jury, that described in Penal Code section 192, subdivision 1. The jury were not informed that diminished capacity due to voluntary intoxication might reduce the killing to voluntary manslaughter. As a matter of law, the error requires reversal. [2] "The denial of the right to have a significant issue determined by the jury is in itself a miscarriage of justice within the meaning of article VI [section 13] of the Constitution and requires reversal." (People v. Conley, supra, 64 Cal.2d at pp. 319-320; see also People v. Modesto, 59 Cal.2d 722, 730 [31 Cal.Rptr. 225, 382 P.2d 33].) We turn to other claims of error which might arise on retrial. Defendant charges error in the instructions on intoxication. In substance, the trial court gave both CALJIC 78 (Rev.) and CALJIC 319 (Rev.), both of which convey the idea expressed in the first sentence of Penal Code section 22: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition." The Supreme Court has criticized such instructions where the crime charged (such as murder) involves specific intent. (People v. Ford, 60 Cal.2d 772, 796 [36 Cal.Rptr. 620, 388 P.2d 892]; People v. Spencer, 60 Cal.2d 64, 87 [31 Cal.Rptr. 782, 383 P.2d 134].) In Conley's trial the juxtaposition of these two instructions with those on diminished capacity could not but leave the jurors in a state of hopeless confusion. As pointed out in Spencer, 60 Cal.2d at page 87, jurors should not be called upon to perform the intricate analysis necessary to reconcile these instructions. *53 [3] When there is an issue of diminished capacity due to intoxication, an instruction in the language of Penal Code section 22 is not necessarily error. (People v. Sievers, 255 Cal.App.2d 34, 37 [62 Cal.Rptr. 841].) There is no need for such an instruction superimposed upon the Conley instruction framed by the Supreme Court. The basic notion of section 22--that intoxication does not exculpate but may affect specific intent--is suffused throughout the Conley instruction. A homicide case featured by a defense of diminished capacity attributable to a mixture of intoxication and mental disorder inevitably involves the jury in complex and subtly differentiated notions. If a trial judge can convey these notions to lay jurors in more simple terms than those articulated in footnote 4 of the Conley opinion, he is welcome to the attempt. If he cannot, he should give the Conley instruction with no more emendation than the evidence demands. [4] The last paragraph of the Conley instruction, dealing with a type of involuntary manslaughter, will confront the judge retrying this case with a special problem. [fn. 1] That paragraph presupposes evidence of unconsciousness due to voluntary intoxication but not mental disorder or defect. (People v. Chapman, 261 Cal.App.2d 149, 173-174 [67 Cal.Rptr. 601] (hg. den.).) It describes a partial defense to the homicide charge. Unconsciousness due to mental disorder is a complete, not a partial, defense. (People v. Wilson, 66 Cal.2d 749, 761 [59 Cal.Rptr. 156, 427 P.2d 820]; People v. Baker, 42 Cal.2d 550, 575 [268 P.2d 705].) Where there is evidence of unconsciousness involving both voluntary intoxication and mental disorder, instructions on both theories are appropriate. (People v. Baker, supra, 42 Cal.2d at pp. 573-575) On retrial there may or may not be a claim of unconsciousness. That claim may or may not be premised on evidence of mental disorder as well as voluntary intoxication. At this point the trial judge's problems become quite esoteric. He will face the task of fitting psychiatric testimony into instructions on several kinds of unconsciousness classified *54 by legal effect. [5] He must bear in mind that "an instruction that does not distinguish unconsciousness caused by voluntary intoxication from that induced by other causes is erroneous." (People v. Conley, supra, 64 Cal.2d at p. 324.) In addition to the sua sponte instruction on nonstatutory voluntary manslaughter, he encounters the alternatives of giving or withholding the involuntary manslaughter instruction embodied in the last paragraph of the Conley footnote, as well as the instruction on unconsciousness due to mental disorder. These latter alternatives involve both the judge's obligations and tactical choices for the defense. If the jury is about to be offered two kinds of voluntary manslaughter, the defendant may wish to eschew the additional option of involuntary manslaughter described in the last paragraph of the Conley instruction, preferring to rely on the theory of unconsciousness due to mental disorder. [fn. 2] On the other hand, by sua sponte omission of the last paragraph of the Conley instruction, the trial judge opens the record to attack on appeal. As this court pointed out in People v. Chapman, supra, 261 Cal.App.2d at pages 173-174, the circumstances of the trial may call for a defense request for the last paragraph of the Conley instruction and not force it upon the trial judge sua sponte. To the extent that the Supreme Court has not imposed sua sponte obligations, the judge retrying this case might well involve counsel in some of these alternatives. [6] In two instructions the trial court told the jury, in effect, that insanity was not a question in the guilt trial and that it must assume the defendant's sanity. Although abstractly correct, these instructions shared the vice of the intoxication instructions, confounding the jury's task of considering diminished capacity. Such instructions should be avoided where the defense of diminished capacity due to mental disorder is presented to the jury. If they are given, it is incumbent upon the trial judge to preserve the integrity of the diminished capacity defense by a careful explanation of the relationship between the two concepts. [fn. 3] There is a virtue in salvaging such shreds of simplicity as may be available. Defendant contends that the trial judge should have instructed the jury sua sponte on the relationship of the diminished capacity defense to the defense of legal insanity *55 by means of an instruction modeled upon that portion of the opinion in People v. Henderson, 60 Cal.2d 482, 490-491 [35 Cal.Rptr. 77, 386 P.2d 677], quoted in People v. Goedecke, 65 Cal.2d 850, 855 [56 Cal.Rptr. 625, 423 P.2d 777, 22 A.L.R.3d 1213]. [fn. 4] He urges such an instruction as a necessary feature of the bifurcated trial system. (See fn. 3.) He also argues inadequacy of the traditional concept of malice aforethought as embodied in the instructions. Again, he seeks an instruction dealing with diminished capacity caused by involuntary intoxication attributable to alcoholism, as contrasted with voluntary intoxication. [fn. 5] Such contentions challenge this court with doctrinal demands not yet voiced by the California Supreme Court. This court is more concerned with the practical demands of this prolonged litigation. In People v. Conley, supra, the Supreme Court essayed a suggested instruction illustrating that court's concept of a rational communication to the jury. The judge retrying this case would be well advised to adopt the Supreme Court's suggestion without the doctrinal extensions now urged by defendant. [7] Defendant charges error in the trial court's rejection of his request for CALJIC 303-A (New). [fn. 6] That instruction was evolved in response to People v. Wolff, supra, 61 Cal.2d at pages 821-822, which--by adding the element of mature and meaningful reflection--gave greater verbal precision to the concept of mental capacity to premeditate killing. The Wolff *56 formulation is now settled California law. (See People v. Nicolaus, 65 Cal.2d 866, 877-878 [56 Cal.Rptr. 635, 423 P.2d 787]; People v. Goedecke, supra, 65 Cal.2d at pp. 855-856.) It was justified by the evidence, and the trial court erred in rejecting it. (See People v. Stewart, 267 Cal.App.2d 366, 374 [73 Cal.Rptr. 484].) For the purpose of retrial, we point out that the suggested instruction in People v. Conley, supra, makes distinct provision for this or other appropriate instructions on deliberation and premeditation. [8] The court did not err in giving the standard instruction on flight, since there was evidence permitting the inference that defendant left the scene of the shooting to avoid arrest. (See People v. Crawford, 259 Cal.App.2d 874, 879 [66 Cal.Rptr. 527].) [9] The court gave the jury CALJIC 24 (Rev.) and CALJIC 26 (Rev.), dealing with circumstantial evidence. Contrary to defendant's claim, there is no inconsistency between these two instructions. (See People v. Goldstein, 139 Cal.App.2d 146, 151-152 [293 P.2d 495].) Although it was not error to give Number 26 before Number 24, it would have been preferable to reverse the order. [10] There is no merit to defendant's claim that the last sentence of CALJIC 26 (Rev.) is inconsistent with the remainder of that instruction. Defendant assails an instruction permitting the jury to consider his prior Oregon felony conviction. At his trial the court admitted the conviction over his objection that the record failed to show an intelligent waiver of counsel in Oregon. The trial court's action in overruling defendant's objections will be discussed infra. On retrial the court should consider the propriety of the jury instruction in the light of People v. Coffey, 67 Cal.2d 204, 218 [60 Cal.Rptr. 457, 430 P.2d 15]. Sufficiency of the Evidence [11] Defendant seeks reversal with limiting directions to the trial court, on the theory that there is no substantial evidence of premeditation and mental capacity to premeditate. Although the jury were not instructed in terms of the "mature and meaningful reflection" standard enunciated in Wolff, that standard applies as a matter of law. Hence evidentiary sufficiency must be measured by it. This is not a bizarre killing, explainable only in terms of psychotic impulses short of legal insanity. (Cf. People v. Bassett, 69 Cal.2d 122 [70 Cal.Rptr. 193, 443 P.2d 777]; People v. Wolff, supra,; People *57 v. Goedecke, supra; People v. Nicolaus, supra.) Reasonable jurors could attribute Conley's actions, however primitive, to a simple, understandable motive--he was bereaved by the loss of his paramour and decided that if he couldn't possess her, no one else would. On the day of the crime he indulged in a series of actions indicative of preparations to kill. He traded his car for a rifle, bought ammunition, tested the weapon's sights. His words matched his actions, for he twice told persons that he planned to kill the McCools. Although his heavy drinking in the days preceding the killing could be ascribed to other impulses, it was also consistent with an effort to generate courage for the fateful act. Four psychiatrists testified at the trial. All four testified to some degree of personality disorder and impaired judgment. One of these witnesses, Dr. Marshall Dunham, expressed the opinion that Conley had weighed the considerations for and against the killing, that he recognized and was willing to suffer the consequences of his act, that he did not act out of impulse. Other psychiatric testimony was weaker or contrary. Since appellate review stops with the ascertainment of substantial evidence to support the verdict, the inconsistent psychiatric testimony need not be described. From the circumstantial evidence supplied by Conley's acts and statements preceding the shooting and from the opinion evidence of Dr. Dunham, reasonable fact triers could find that defendant had the capacity to kill and did in fact kill, as a consequence of mature and meaningful reflection and premeditation. The first degree murder verdict was supported by substantial evidence. Impeachment by Prior Felony Conviction Defendant contends that the trial court erred in overruling an objection to his impeachment by evidence of a prior felony conviction in Oregon. The objection was based upon the ground that the Oregon judgment showed a waiver of counsel and plea of guilty, but contained no entries showing that the accused had been informed of his right to counsel and had intelligently waived it. [12] Decisions following Conley's last trial now demonstrate that a witness may not be impeached by evidence of a conviction obtained through the denial of his constitutional right to counsel. (People v. Coffey, supra, 67 Cal.2d 204, 218.)proceeding upon the thesis that "presuming waiver from a silent record is impermissible," Burgett v. Texas, 389 U.S. 109 [19 L.Ed.2d 319, 88 S.Ct. 258], holds that a judgment *58 reflecting the accused's appearance without counsel raises a presumption of unconstitutional denial of counsel. Where the Burgett rule applies, the prosecution must apparently go forward with proof of waiver as a constitutional foundation for evidence of the judgment. As beneficiary of the presumption, the defendant may apparently utilize the Burgett doctrine to remain silent, even though he was the only person in the courtroom who actually participated in the earlier proceeding. In this case the Oregon judgment was not completely silent. It recited a waiver of counsel, but not an intelligent and knowing one. Hence the present case poses the question whether the defendant may remain silent when the question is not one of waiver, but of its intelligent and knowing character. It is often said that in order to establish a waiver of counsel, the record must indicate that the defendant was advised of his right to counsel and to remain silent or that he knew of his rights and intelligently and knowingly waived them. (People v. Harris, 67 Cal.2d 866, 869 [64 Cal.Rptr. 313, 434 P.2d 609]; In re Smiley, 66 Cal.2d 606, 614-615 [58 Cal.Rptr. 579, 427 P.2d 179].) Such pronouncements reflect a set of realistic expectations when the record of oral proceedings upon arraignment and sentence is before the court. To impeach a defendant by evidence of a prior felony conviction, the prosecution need produce only a certified copy of the judgment, not a record of the antecedent courtroom activities. (Evid. Code, 788; Witkin, Cal. Evidence (2d ed. 1966) 1247, p. 1150.) A judgment, after all, is only a judgment, not a chronicle of the preceding courtroom events. Although not without hesitation, it may be suggested that Burgett does not permit the defendant to sit in silence in the face of a judgment reciting waiver of counsel; that, as a personal participant in the prior proceeding, he has the burden of going forward with evidence or an offer to prove the waiver's falsity or inadequacy; that only in the face of such evidence, must the prosecution fortify the judgment with proof of the waiver's adequacy. So to hold would rest on the assumption that Burgett does not jettison California case law requiring a defendant who challenges his prior conviction to supply clear allegations of nonrepresentation or nonwaiver. (People v. Coffey, supra, 67 Cal.2d at p. 215; People v. Merriam, 66 Cal.2d 390, 397 [58 Cal.Rptr. 1, 426 P.2d 161]; see also People v. Pineda, 253 Cal.App.2d 443, 479 [62 Cal.Rptr. 144].) If our thesis is correct, defendant Conley failed to establish *59 the necessary foundation for the constitutional challenge by failing to testify or offer to prove the waiver's falsity or inadequacy. [13] For the purpose of retrial, it is enough to suggest that Burgett v. Texas beclouds admissibility of the Oregon judgment unless it is preceded by extrinsic evidence of an intelligent and knowing waiver. Other Claims of Error Defendant raises an evidentiary objection to photographs of his victim's bodies, a claim made on his first appeal, rejected there and rejected here. (People v. Conley, supra, 64 Cal.2d at p. 326.) [14] There is substance to a claim that the prosecutor indulged in improper cross-examination in asking whether Conley had ever used a switch on one of Mrs. McCool's children. Unless opened by direct examination, this line of inquiry should be avoided at the retrial. (Evid. Code, 773.) [15] Dr. Dunham, one of the psychiatric witnesses, had interviewed Conley after the killing, had examined numerous documents and had testified at the earlier trials. Among the papers he saw was a written statement of the accused which the court excluded as the possible product of an inadmissible extrajudicial admission. Defendant now urges that Dr. Dunham's psychiatric opinion was based "in significant part" on the inadmissible writing, hence should have been excluded. There are two reasons for rejecting the contention. First is the general rule permitting an expert to express an opinion based upon information not itself in evidence. (Evid. Code, 801, subd. (b); People v. Chapman, supra, 261 Cal.App.2d at p. 178.) Second, even if the general rule is qualified by constitutional restrictions implicit in the "fruit of the poisonous tree" doctrine, the document in question was only cumulative of other data before Dr. Dunham indicating Conley's preparations for the killing. He assigns error in the rejection of his challenge to the jury panel, made on the ground that selection from voters' lists resulted in the exclusion of minorities and poor persons. He claims no minority status for himself. [16] Although a person outside the excluded class may conceivably have standing to challenge the systematic exclusion of that class, his conviction by a nonrepresentative jury is not a ground for reversal. (Fay v. New York, 332 U.S. 261, 287 [91 L.Ed. 2043, 2059, 67 S.Ct. 1613]; People v. White, 43 Cal.2d 740, 753 [278 P.2d 9]; see 78 Harv.L.Rev. 667.) [17] At any rate, the *60 challenge for racial, ethnic and economic discrimination was carefully investigated by the trial court and testimony taken from witnesses. The trial court found no systematic exclusion of racial or ethnic minorities; found that the panel, considered in relation to the county's relatively narrow socio-economic range, included adequate representation of wage earners as well as persons on welfare. In effect, the trial court found no factual basis for the challenge. (See People v. Carter, 56 Cal.2d 549, 569 [15 Cal.Rptr. 645, 364 P.2d 477].) This court's review of the record reveals ample justification for that finding. [18] The defense requested that representatives of the news media be excluded from the courtroom whenever legal arguments were occurring outside the jury's presence. The trial court ruled that it could not constitutionally exclude the press, but would direct the jurors to avoid all extrajudicial information touching the case. California law vests trial courts with a narrow discretion to close limited phases of a criminal trial to the public. (People v. Cash, 52 Cal.2d 841, 846 [345 P.2d 462]; Kirstowsky v. Superior Court, 143 Cal.App.2d 745 [300 P.2d 163].) In effect, the trial court refused to exercise its discretion. While technically incorrect, the court's refusal was not prejudicial. There is no claim that extrajudicial information reached any of the jurors. [19] No error occurred when the trial court permitted the prosecution, during the impanelment of jurors, to comment without emphasis on the fact that the death penalty was not in issue. (See People v. Borja, 122 Cal.App. 646, 648 [10 P.2d 477].) Other assignments of error arise from events which will not or need not characterize defendant's retrial. Judgment reversed. Pierce, P. J., and Regan, J., concurred. NOTES [fn. 1] 1. The last paragraph of the Supreme Court's Conley instruction appears in the footnote on page 326 of 64 Cal.2d and reads: "Thus, if you find that the defendant killed while unconscious as a result of voluntary intoxication and was therefore unable to formulate a specific intent to kill or to harbor malice, his killing is involuntary manslaughter. The law does not permit him to use his own vice as a shelter against the normal legal consequences of his act. An ordinary and prudent man would not, while in possession of a dangerous weapon, permit himself to reach such a state of intoxication as to be unconscious of his actions." [fn. 2] 2. Voluntary and involuntary manslaughter call for the same sentence, a maximum of 15 years. (Pen. Code, 193.) [fn. 3] 3. See People v. McDowell, 69 Cal.2d 737, 747 [73 Cal.Rptr. 1, 447 P.2d 97]. [fn. 4] 4. That part of the Henderson opinion declares: "It can no longer be doubted that the defense of mental illness not amounting to legal insanity is a 'significant issue' in any case in which it is raised by substantial evidence. Its purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M'Naughton rule. ... Under that rule a defendant is not insane in the eyes of the law if at the time of the crime he knew what he was doing and that it was wrong. ... [E]ven though a defendant be legally sane according to the M'Naughton test, if he was suffering from a mental illness that prevented his acting with malice aforethought or with premeditation and deliberation, he cannot be convicted of murder of the first degree. This policy is now firmly established in the law of California [citations] ...." [fn. 5] 5. Compare Powell v. Texas, 392 U.S. 514 [20 L.Ed.2d 1254, 88 S.Ct. 2145]; see also, comment in People v. Wolff, 61 Cal.2d 795, 814 [40 Cal.Rptr. 271, 394 P.2d 959], dealing with the somewhat analogous problem of "irresistible impulse" in California law. [fn. 6] 6. CALJIC 303-A (New) declares: "Before you may find the defendant guilty of wilful, deliberate and premeditated murder of the first degree, you must determine that at the time the crime allegedly was committed he not only had sufficient mental capacity to form the specific intent to kill but also had sufficient mental capacity to maturely and meaningfully deliberate, premeditate and reflect upon the gravity of his contemplated act and to harbor malice aforethought."

977 F.2d 569 Steve (Samuel)v.Sher (Dr.), Mailroom Officials NO. 92-1231 United States Court of Appeals,Third Circuit. Sept 11, 1992 Appeal From: E.D.Pa., Bechtle, J. 1 AFFIRMED.

64 B.R. 108 (1986) In the Matter of Terry Hindricks FAUL, and Stephanie Gay Faul, Debtors. FIRST BANK OF DEKALB COUNTY, Objecting Creditor, v. Terry Hindricks FAUL, and Stephanie Gay Faul, Respondents. Bankruptcy No. 85-00780-SJ-13. United States Bankruptcy Court, W.D. Missouri, St. Joseph Division. June 4, 1986. Robert Miner, Watkins, Boulware, Lucas & Miner, St. Joseph, Mo., for objecting creditor. Mark G. Stingley, Utz, Litvak, Thackery & Taylor, St. Joseph, Mo., for respondents. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DETERMINING RATE OF INTEREST TO BE PAID TO OBJECTING CREDITOR DENNIS J. STEWART, Chief Judge. Now before the court as a result of the hearing of March 26, 1986, in St. Joseph, Missouri, is the question of the amount of postbankruptcy interest which is to be granted the secured creditor. Prior to the hearing on the abovementioned date, the parties stipulated to the oversecured status of the objecting creditor. More specifically, they stipulated that the property on which the objecting creditor holds its valid and perfected security interest has a value of $8,000 and that the balance due against it is $4,891.88. Under such circumstances, the prior decisions of this court in Matter of Johnston, 44 B.R. 667 (Bkrtcy.W.D.Mo.1984), and Matter of Coburn, 36 B.R. 550 (Bkrtcy.W. D.Mo.1983), dictate the result. Under the rules applied and enunciated in those cases, "a secured creditor should as a matter of course be paid interest at the contract rate up to the point where the total amount of principal, interest and fees and costs equal the value of the security. Thereafter, interest should be payable only at the `market rate' or `legal rate' on the principal balance or value of the collateral, whichever is lower." Matter of Coburn, supra, at 551.[1] *109 This method of calculating postbankruptcy interest, which recognizes the "lost opportunity" interest of the creditor, or the interest against "delay in enforcement" of the secured creditor's rights, and compensates it separately, has both its proponents, see, e.g., In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984), and its critics. Among the latter is the chief hornbook on bankruptcy, which contends that the rate of postbankruptcy interest to be imposed in a chapter 13 case is only that which it takes to grant the creditor the value of its claim as of the "effective date of the plan" within the meaning of section 1325(a)(5)(B)(ii) of the Bankruptcy Code. That rate is defined by the editors of the treatise as "the discount rate which the court determines under the circumstances (including prevailing market rates of interest, the creditworthiness of the debtor, maturity, regularity of payment and other payment terms, and the nature of the collateral) best reflects the present value of the payments to be made to the holder of the subject secured claim under the chapter 13 plan. Section 506(b) has no application in this context." 2 Collier on Bankruptcy ¶ 506.05, p. 506-37 (15th ed. 1985). These statements, however, ignore not only the express provisions of the Bankruptcy Code which make § 506(b) expressly applicable in chapter 13 proceedings,[2] but also would ignore the requirement of § 1325(a)(5)(B)(ii) that a secured creditor receive as much in chapter 13 proceedings as it would have received in straight liquidation proceedings under chapter 7 proceedings. And, as this court has pointed out in Matter of Coburn, supra, and Matter of Johnston, supra, the application of § 506(b) in chapter 7 proceedings vouchsafes to an oversecured creditor that it should receive interest at the contract rate so long as the property is under distraint by the trustee until the date of sale and distribution of the proceeds to the oversecured creditor.[3] The rule contended for by the commentators would comply with the statutes which govern chapter 13 proceedings only in a case in which the affected creditor is an undersecured creditor or in a case in which an oversecured creditor has been placed on the same plane which an undersecured creditor by payment of the entirety of principal and due interest on the effective date of the plan. In such a case, it seems reasonable to permit protection of the creditor's remaining value at the "discount interest" rate, as in a chapter 7 case.[4] But when deferred periodic payments are utilized, as in the case at bar, the clear requirement of the provisions of chapter 13 are that contract interest must be allowed according to the formula stated in Matter of Coburn, supra. Accordingly, it is hereby ORDERED that the chapter 13 trustee compute interest to be awarded to the objecting creditor in accordance with the foregoing considerations. NOTES [1] "Beyond the point of equality with the value of the collateral . . . [t]he sole purpose of any award of interest . . . is to ensure that, within the meaning of § 1325(a)(5)(B)(ii) . . . the secured creditor receives through the plan the full value of its security, measured as of the effective date of the plan." 36 B.R. at 551. (Emphasis added). "[W]hen, as in chapter 13 proceedings, the interest-bearing value of the property itself is kept in the estate, it appears proper to award postbankruptcy interest at the market or legal rate to compensate the creditor for loss of this interest potential." Matter of Johnston, 44 B.R. 667, 669 (Bkrtcy.W.D.Mo.1984). Cf. In re American Mariner Industries, Inc., 734 F.2d 426, 435 (9th Cir.1984). ("To the extent that the debtor in bankruptcy can prevent the secured creditor from enforcing its rights against collateral while the debtor benefits from the creditor's money, the debtor and his unsecured creditors receive a windfall at the expense of the secured creditor.") [2] "Except as provided in section 1161 of this title, chapters 1, 3, and 5 of this title apply in a case under chapter 7, 11 or 13 of this title." Section 103(a) of the Bankruptcy Code. [3] "[W]hen the debt is secured by mortgage or real estate or collateral which yields interest or dividends during the pendency of the proceedings, in which case the income is applied to payment of the interest until the day of the sale." Littleton v. Kincaid, 179 F.2d 848, 852 (4th Cir.1950). [4] See note 1, supra.

194 F.Supp.2d 378 (2002) SAUDI BASIC INDUSTRIES CORPORATION, Individually And in the Name of, and On Behalf of, Al-Jubail Petrochemical Company, A Partnership, Plaintiff, v. EXXONMOBIL CORPORATION, Defendant. Exxonmobil Corporation, Exxon Chemical Arabia, Inc., and Mobil Yanbu Petrochemical Company, Inc., Plaintiffs, v. Saudi Basic Industries Corporation, Defendant. Civil Action Nos. 98-4897(WHW), 00-3841(WHW). United States District Court, D. New Jersey. April 3, 2002. *379 *380 *381 *382 *383 Jeffrey E. Lorell, Saiber, Schlesinger, Satz & Goldstein, LLC, Newark, NJ, Kenneth R. Adamo, Michael W. Vary, Leozino Agozzino, Jones, Day, Reavis & Pogue, Cleveland, OH, Cheryl L. Farine, Hudak & Shunk Co., L.P.A., Akron, OH, for Plaintiffs. Elizabeth Sher, Pitney, Hardin, Kipp & Szuch, LLP, Morristown, NJ, James Quinn, Weil, Gotshal & Manges, LLP, New York City, David C. Weiner, Charna E. Sherman, Andrew S. Pollis, David J. Michalski, Hahn, Loeser & Parks, LLP, Cleveland, OH, K.C. Johnson, ExxonMobil Corporation, Houston, TX, for Defendant. AMENDED OPINION WALLS, District Judge. This is a complicated dispute concerning the alleged misuse of a patent and alleged overcharges of royalties to a partnership. In the first lawsuit, Civil Action No. 98-4897(WHW) ("NJ-I"), Plaintiff Saudi Basic Industries ("SABIC") moves to clarify or reform a March 10, 2000 Stipulation where it agreed not to practice a technology that is the subject of a patent dispute. SABIC also moves pursuant to Rule 12(c) for partial judgment on the pleadings to strike Defendant ExxonMobil's ("Exxon") defenses of unclean hands and setoff. Exxon cross-moves to dismiss the Complaint pursuant to Rule 19 for SABIC's failure to join necessary and indispensable parties. The motion for clarification or reformation of the March 10 Stipulation is denied; the motion for partial judgment on the pleadings pursuant to Rule 12(c) is also denied. Exxon's cross-motion to dismiss pursuant to Rule 19 is denied; SABIC is not required to join either ECAI or KEMYA as an indispensable party. In the second lawsuit, Civil Action No. 00-3841(WHW) ("NJ-II"), SABIC moves to dismiss the complaint of Exxon based on the Foreign Sovereign Immunities Act, as well as on other jurisdictional grounds. Exxon moves to consolidate the NJ-I and NJ-II actions into a single lawsuit. The motion to dismiss is denied; the motion to consolidate is granted. FACTS AND PROCEDURAL BACKGROUND The claims asserted in this action have their origin in the late 1970's. Because of *384 the number of parties, at the outset it is useful to list them and their relationships to each other: SABIC is a Saudi Arabian corporation, owned 70% by the Saudi government and 30% by private investors, with its principal place of business in Saudi Arabia. Exxon is a New Jersey corporation with its principal place of business in Texas. Exxon Chemical Arabia, Inc. ("ECAI"), a Delaware Corporation with its principal place of business in Texas, is a wholly-owned subsidiary of Exxon Overseas Corporation, which itself is a whollyowned subsidiary of Exxon. KEMYA is a 50/50 limited liability partnership formed between SABIC and ECAI under Saudi Arabian law to manufacture polyethylene. Mobil-Yanbu ("Yanbu") is a Delaware corporation with its principal place of business in Delaware. In the 1970's, SABIC approached a number of potential partners about the possibility of forming joint ventures in Saudi Arabia to manufacture polyethylene. The negotiations culminated in the formations of two joint ventures in 1980; one with Yanbu, the other with ECAI. Exxon is not a direct party to either of these agreements. The first joint venture was formed by SABIC and Yanbu on April 19, 1980, and created the Saudi-Yanbu Petrochemical Co. ("YANPET"). The second joint venture was entered into by SABIC and ECAI on April 26, 1980, and established the Al-Jubail Petrochemical Co. ("KEMYA"). Both YANPET and KEMYA are limited liability partnerships existing under the laws of Saudi Arabia, and in the business of manufacturing polyethylene in Saudi Arabia. Exxon asserts that both joint venture agreements provide that the agreements, including their Annexes[1] "when executed", constitute the "`whole agreement' between the Partners ..." (Joint Venture Agreement, Art. 18.1 (emphasis added)) So, according to Exxon, the December 22, 1980 Service Agreement that is the subject of the NJ-I action, is expressly incorporated into the joint venture agreements, creating a "single package" of rights and obligations. This overall scheme required participation by Exxon and Mobil (not just ECAI and Yanbu), and Exxon argues that all parties understood that Exxon and Mobil (now "Exxon") were intended to benefit from the joint venture agreements. SABIC strongly refutes this version of the facts and asserts that the Service Agreement and Joint Venture Agreements constitute separate agreements. NJ-I Action By its amended complaint, SABIC seeks a declaration that KEMYA has ownership rights in proprietary information, including trade secrets and U.S. Patent No. 5,352,749, by virtue of a December 22, 1980 Service Agreement between KEMYA and Exxon. Pursuant to the Service Agreement, Exxon, acting through its unincorporated division Exxon Chemical Company ("ECC"), agreed to provide certain services to KEMYA from time to time, including engineering, administrative, and technical services related to construction of a petrochemical plant at Al-Jubail in Saudi Arabia. (Am.Compl. ถ 11.) Under the Agreement, processes or patents developed as a result of services provided under the agreement were deemed the property of KEMYA, subject to royalty-free licenses *385 given to Exxon and its affiliates. The Agreement is governed by Saudi Arabian law. In 1991, in an attempt to expand the capacity of its Al-Jubail petrochemical facility in Saudi Arabia, KEMYA requested that Exxon conduct a study of the plant reactors' ultimate capacity ("the URC study"). (Am.Compl.ถถ 19-21.) In connection with that request, Exxon was given access to proprietary information belonging to KEMYA. Id. ถ 22. SABIC alleges that such access occurred "well prior to the filing of the last of the patent applications that led to the '749 patent." The URC study was completed by July 1991. SABIC claims that Exxon has improperly withheld the results of the URC study, as well as other aspects of KEMYA's operations, and violated the '749 patent. Further, SABIC alleges that in March 1992, Exxon filed an application for a patent concerning the subject matter of the URC study without authorization. In October 1994, the U.S. Patent and Trademark Office issued the '749 patent, entitled "Process for Polymerizing Monomers in Fluidized Beds," to the holding company Exxon Chemical Patents, Inc. ("ECPI") as assignee. That patent describes a method to increase polyethylene production through a process known as "Super Condensed Mode Technology" ("SCM-T"). SABIC charges that Exxon illegally licensed or otherwise conveyed rights in the '749 patent and other KEMYA trade secrets without permission. In the NJ-I action, SABIC brings suit on behalf of KEMYA for breach of the Service Agreement and implied covenants, specific performance (delivery of the '749 patent and related trade secrets), misappropriation of trade secrets, conversion, tortious interference with prospective economic advantage, unfair competition, and unjust enrichment. SABIC has not joined the other partner, ECAI, as a plaintiff because in its view, ECAI as a subsidiary of Exxon, would not sue its related corporation. SABIC claims that Exxon expressly acknowledged SABIC and KEMYA's right to contest Exxon's claim of ownership to the technology at issue here. (Am.Compl., Ex. A.) The NJ-I complaint alleges that SCM-T belongs to KEMYA, and that it was wrongfully misappropriated by Exxon. Exxon disputes this argument, and avers that it had a right to practice SCM-T. (Answer ถ 10.) The NJ-II Action โ€” Unipol License On or about September 28, 1980, SABIC entered into an agreement with Union Carbide Corp. ("UCC"), to have the exclusive sublicense for a gas-phase process to manufacture polyethylene in Saudi Arabia. This technology is referred to as Unipolฎ process. In exchange for its exclusive license, SABIC pays UCC, among other things, a running royalty. (Del.Compl., ถ 10.) SABIC entered into two sublicense agreements with YANPET and KEMYA, effective October 15, 1980, which gave those partnerships the right to use Unipol process in their respective plants to manufacture polyethylene. Under the sublicense agreements, both partnerships were required to pay SABIC a running royalty. In NJ-II, Plaintiffs Exxon, Yanbu and ECAI claim that SABIC overcharged the partnerships by collecting royalties at a higher rate than agreed upon (the "royalty overcharges"). The Delaware Action On July 24, 2000, SABIC filed a complaint against Yanbu and ECAI in the Superior Court of Delaware (Civil Action No. OOC-07-161-VAB) ("Delaware action"). SABIC's complaint seeks declaratory relief against these defendants solely on the issue of whether the royalty charges were proper under the joint venture *386 agreements. As said, in NJ-II, Yanbu and ECAI have accused SABIC of "over-charging" both partnerships for royalties in violation of the joint venture agreements. DISCUSSION SABIC and Exxon sharply disagree as to the nature of their overall contractual arrangements. As mentioned, they entered into a joint venture agreement in April 1980. The parties agree on this basic point, but disagree on everything that follows. According to Exxon, the joint venture agreement served as an overall operating agreement for the parties, incorporating any future agreements or amendments. SABIC denies this and argues that the April 26, 1980 Joint Venture Agreement, the subject of NJ-II, and the December 22, 1980 Service Agreement, the subject of NJ-I, are separate and distinct and should not be joined in the same action. The Court now sets forth the most plausible nature of the parties contractual relationship, for that determination guides much of the analysis to follow. The April 1980 Joint Venture Agreement entered into by SABIC and ECAI described the parties' multiple responsibilities for the partnership arrangement to manufacture polyethylene in Saudi Arabia. The Court agrees with Exxon and finds that the Joint Venture Agreement provided the overall contractual arrangement between the parties. This view is enforced by Article 18.1 of the Joint Venture Agreement,[2] which clearly states that the Joint Venture Agreement includes "[a]nnexes hereto, when executed" which constitute the "whole agreement" between the parties. The Joint Venture Agreement supersedes any other agreement or correspondence between the parties. Because the December 22, 1980 Service Agreement is "Annex VI" to the April 26, 1980 Joint Venture Agreement, it becomes part of the whole agreement between the parties. (Dec. 22, 1980 Service Agreement ถ 10.1.) With this in mind, the Court now analyzes each of the six motions brought by the parties in the NJ-I and NJ-II cases. 1. MOTION TO CLARIFY OR REFORM THE MARCH 10, 2000 STIPULATION SABIC seeks to clarify, and if necessary, reform the March 10, 2000 Stipulation ("March Stipulation") wherein it agreed not to practice SCM-T. SABIC seeks permission for its affiliated plants to operate at the lower range of the supercondensed mode, namely an allowable usage of up to 22 wt.% condensed phase when manufacturing polyethylene. The March 10, 2000 Stipulation The March Stipulation arose from SABIC's motion to dismiss Count IV of Exxon's Amended Counterclaims: Exxon accused SABIC of breaching its fiduciary duty to KEMYA by encouraging certain SABIC affiliates, including SHARQ, to use SCM-T. SABIC moved to dismiss, and contended that it had not conveyed SCM-T information to affiliates, and that none, including SHARQ, had any intention of using SCM-T without proper authorization. Exxon agreed to a dismissal of Count IV's counterclaims based on SABIC's representations in the March 10, 2000 Stipulation which was signed as an Order of this Court on April 3, 2000.[3] *387 Univation Agreements In April 1997, Exxon and UCC had formed a 50/50 joint venture, Univation, to commercialize, license and enforce SCM-T patents held by Exxon. The parties expressly agreed that SABIC could operate its recycle gas phase at or below 22 wt.%. (Agozzino Decl., Ex. A ถ 12.02.) Schedule 12.02 identifies "SABIC" as the exempt licensee. (Id. at Schedule 12.02.) According to SABIC, its management was unaware of the Univation Agreements and the fact that SABIC and its affiliates had been formally granted the right to practice "up to" 22 wt.% condensed. (Dr. Al-Ubaid Decl., ถถ 12, 13). SABIC contends that as a result of this agreement, Exxon and UCC had covenanted between themselves and for Univation, that a limited portion of SCM-T patent rights (up to 22 wt.% condensed) would not be enforced by Univation against SABIC and its affiliates. SABIC's management later learned of the existence of these agreements. Exxon contends that the Univation Agreements are immaterial to the present dispute and were produced long before the March Stipulation. According to Exxon, SABIC knew of the Univation Agreements before the Stipulation, and cannot now claim ignorance. In addition, "before summer", Dr. Al-Ubaid of SABIC knew of SHARQ's plans to practice over 17.4 wt.%. (Exxon Mem. In Opp'n to Mot. to Clarify ("Exxon Br.") at 8, citing 10/28/00 AlUbaid Dep. at 666.) However, SABIC did not notify Exxon or the Court of the breach of the March Stipulation. Exxon argues that the Univation Agreements, despite assertions by SABIC, do not permit SABIC or SHARQ to operate between 17.4 and 22 wt.% condensed. Exxon argues: (1) that Schedule 12.02 of the Univation Agreements does not make any reference to SABIC's affiliates; (2) ถ 12.02 of the Univation Agreements does not apply to SCM-T information at or below 22 wt.%; (3) nothing in the Univation Agreements (or in the law) supports SABIC's interpretation that SABIC or SHARQ is a third-party beneficiary; (4) ถ 12.02 of the Agreements is neither a license nor a covenant not to sue. According to Exxon, the Univation Agreements are agreements between Univation and UCC and provide that Univation will not enforce the SCM-T patents in certain situations. Permission to Use SCM-T up to 22 wt.% Despite this Court's April 3, 2000 Order, SHARQ switched to higher condensed phase operations to cool its recycle gas. SHARQ decided to run plant tests up to 22 wt.% condensed as permitted by the Univation Agreements (but forbidden by the April 3 Order). SABIC claims that it did not know of SHARQ's plans until after the April 3 Order was executed. SABIC then sought permission from KEMYA for SHARQ to operate at 22 wt.% because of its concern that KEMYA might be declared the owner of SCM-T instead of Exxon. Mr. Alaudah, the president of KEMYA, gave such permission (in exchange for a royalty) pending the outcome of this case. (See Exxon's Decl. of Elizabeth J. Sher ("Sher Decl."), Ex. P.) Based on that permission, on August 1, 2000, SHARQ began running tests at levels *388 up to 22 wt.%. The tests were apparently successful, because SHARQ started operating regularly at these levels. (Al-Ubaid Decl. ถ 20). SABIC argues that the sole purpose of the March Stipulation was to preclude any basis for an accusation that SABIC had made or was planning to make some unauthorized use of SCM-T information transferred improperly from KEMYA. SABIC argues that the phrase "until ownership rights thereto are established" was included because SABIC did not then envision any possibility of such authorization being obtained until the litigation was resolved. SABIC believes that it has fully complied with the March 10 Stipulation and this Court's April 3 Order by obtaining contractual authority from everyone who could be an owner of the technology. SABIC states that no SCM-T information has been transferred to SHARQ. As a result, SABIC seeks to reform or clarify the Stipulation to reflect SHARQ's right to practice SCM-T information up to 22 wt.% condensed. The March Stipulation and April 3 Order are silent about SHARQ's right to practice up to 22 wt.% condensed. At that time, SHARQ had informed SABIC that it did not intend to practice over 17.4 wt.% condensed. SABIC now cites a "business need" to practice SCM-T up to 22 wt.% condensed, and seeks a clarification and reformation of the stipulation to reflect this. Exxon's Argument Exxon argues that the March Stipulation should not be clarified or reformed for several reasons. First, Exxon says that SABIC was and is violating the March Stipulation by allowing its affiliate, SHARQ, to practice SCM-T information before ownership is determined. Exxon also argues that SABIC's argument that the Univation Agreements allowed other parties to use the technology only matters if SABIC loses this case, because if KEMYA owns SCM-T Information as SABIC contends in this lawsuit, then Univation or any other entity could not grant permission to use the technology. Exxon alleges that in seeking "permission" for SHARQ to operate up to 22 wt.% condensed, SABIC engaged in improper exparte contacts with Mr. Alaudah. This was the subject of a series of submissions and hearings in August and September 2000 before Special Master Weiss on the subject of breach of the parties' agreement to avoid exparte contacts about the litigation with KEMYA employees. Exxon says that throughout these proceedings, SABIC failed to disclose its contacts with Mr. Alaudah and its imminent plans to practice SCM-T. SABIC has defended SHARQ's secret contacts with Mr. Alaudah, claiming that such contacts were "not related to the litigation," even though it now places these communications before the Court as evidence to justify the relief it seeks. 1. The March Stipulation Prohibits SHARQ's Use of SCM-T Information and Is Enforceable. The March Stipulation is clear on its face as to the representations of SABIC: "... neither SABIC, SHARQ, YANPET, Petrokemya, nor any SABIC affiliate (other than KEMYA) will use or practice the SCM-T Information until the ownership rights thereto are established and the owner expressly authorizes such use." (March 10, 2000 Stip., 2) This Court disagrees with SABIC's assertion that the March Stipulation is ambiguous with regard to SHARQ's right to practice SCM-T Information. SABIC's arguments that the Univation Agreements create rights for SABIC and its affiliates with regard to the SCM-T information are problematic for several reasons. First, there is little reason to believe that the Univation Agreements *389 were not available for review by SABIC before SABIC and Exxon entered into the March Stipulation. The documents were produced to SABIC four months before the March Stipulation. The Protective Order did not prevent a business designee from having access to these agreements. (See Sher Aff., Ex. E.) Therefore, this Court finds that SABIC's proclaimed ignorance of the terms within the Univation Agreements is unreasonable and suspect. Also, it is unclear whether Schedule 12.02 of the Univation Agreements granted SHARQ rights to practice SCM-T information. Schedule 12.02 of the Agreement does not explicitly include SABIC's affiliates and SABIC has not asserted a compelling reason to find that the contract should be interpreted to include its affiliates. Last, assuming that the Univation Agreements afforded rights to SHARQ to practice SCM-T information, Section 12.02 of these agreements was a statement of present intent between UCC and Exxon. There was nothing to preclude these two parties from amending the terms of the agreements so as to allow Univation to enforce the patents against SABIC.[4] This Court does not find the March Stipulation to conflict with the terms of the Univation Agreements. By the March Stipulation, SABIC agreed that SABIC and its affiliates would not use or practice the SCM-T Information until ownership rights were established and the owner expressly authorized such use. Exxon and UCC's earlier agreement not to enforce patent rights against SABIC does not relieve SABIC of its obligations under the March Stipulation. This Court finds that the March Stipulation is an unambiguous and enforceable agreement. 2. SABIC has failed to Demonstrate Permission. SABIC has also failed to demonstrate permission for use of the SCM-T information. KEMYA's ownership is far from certain. It is unclear that the President of KEMYA, Mr. Alaudah's, grant of permission to SHARQ for use of the SCM-T information was proper. Exxon argues that the documents governing KEMYA's operations require Board approval for any offer to sell or dispose of property of the Partnership. Mr. Alaudah, president of KEMYA, did not disclose his discussions with SABIC to the other partner, and in doing so, failed to follow KEMYA's approval processes. This Court finds that SHARQ did not receive proper permission to practice the SCM-T information. 3. No Justification to Clarify or Reform the Stipulation There is substantial reason to deny clarification or reformation of the stipulation: SABIC's motion offers no legal basis to justify reformation. Contract law generally allows reformation only where necessary "to express the agreement [the parties intended.]" Restatement (Second) of Contracts ง 155 (1979). While "mutual mistake" can justify reformation, unilateral mistake cannot. See In Re Resorts International, 181 F.3d 505, 512 (3d Cir.1999) ("`unilateral mistake of a fact unknown to the other party is not ordinarily grounds for avoidance of a contract.'"); *390 see also Coca-Cola Bottling Co. of Elizabethtown, Inc. v. Coca-Cola Co., 988 F.2d 386, 404 (3d Cir.1993), cert. denied, 510 U.S. 908, 114 S.Ct. 289, 126 L.Ed.2d 239 (1993) (same). SABIC has neither raised the issue of mutual mistake, nor pled any facts of mutual mistake about the meaning of the March 10, 2000 Stipulation. Although there is an exception to the general principle denying relief for unilateral mistake when the non-mistaken party "`knows or has reason to know of the unilateral mistake'", In re Allegheny International, Inc., 954 F.2d 167, 180 (3d Cir.1992) (citations omitted), here SABIC has not pled any facts of its "unilateral mistake", much less Exxon's knowledge of any unilateral mistake. Moreover, modification of a consent order "should not ordinarily be granted `where a party relies on events that actually were anticipated at the time it entered into a decree.'" Building & Constr. Trades Council of Philadelphia & Vicinity, AFL CIO v. NLRB, 64 F.3d 880, 886 (3d Cir.1995)(quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 385, 112 S.Ct. 748, 760, 116 L.Ed.2d 867 (1992)). This Court denies SABIC's motion to clarify or reform the March 2000 Stipulation because legal justification is absent. Unilateral mistake is not a basis for reformation of an Order. Since August 1, 2000, SABIC has been violating the April 3 Order by allowing SHARQ to practice SCM-T at levels of 22 wt.% condensed. A "business need" even if substantiated, is not a sufficient reason to ignore a Court Order. Because SABIC's motion is denied, Exxon's motion for expedited discovery on this issue is mooted. 2. SABIC's RULE 12(c) MOTIONS TO STRIKE "UNCLEAN HANDS" AND "SET OFF" DEFENSES In the second of its NJ-I motions, SABIC moves to strike, pursuant to Fed. R. Civ. P 12(c), Exxon's unclean hands and "set-off" defenses because these defenses are allegedly based on a separate agreement. A. Standard of Review A motion for judgment on the pleadings under Rule 12(c) is appropriate when the moving party establishes on the face of the pleadings that it is entitled to judgment as a matter of law. Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir.1988); Soc'y Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980). The motion must be denied "`unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Ilan-Gat Eng'rs, Ltd. v. Shelter Sys. Corp., 879 F.Supp. 416, 419 (D.N.J.1994)(quoting Hayes v. Cmty. Gen'l Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir.1991)). The movant carries the heavy burden of establishing beyond doubt that "no relief can be granted under any set of facts that could be proved." Taj Mahal Travel, Inc. v. Delta Airlines, 164 F.3d 186, 189 (3d Cir. 1998); Inst. for Scientific Info., Inc. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir.1991) In reviewing a 12(c) motion, the court must accept the nonmovant's allegations as true and view the facts and inferences in the light most favorable to the nonmoving party. Jablonski, 863 F.2d at 289-90; Ilan-Gat Eng'rs., 879 F.Supp. at 419. B. Arguments Exxon first argues that because SABIC is relying on matters outside the pleadings, the summary judgment standard should be applied. However, because in motions for judgment on the pleadings, the Court may consider the pleadings and *391 any written instruments attached as exhibits, there is no need for conversion. Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.1998). The Court may also consider any documents referred to in the pleadings, including any undisputedly authentic documents that the claim or defense is based upon. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993); In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n. 9 (3d Cir.1993). Because SABIC has relied on the contents of Exxon's pleadings, together with the documents expressly referenced therein, these motions will be analyzed under Rule 12(c). 1. The Unclean Hands Defense Relates to the Joint Venture Agreement. Under general principles of equity, "`[a party] who comes into equity must be with clean hands." Heuer v. Heuer, 152 N.J. 226, 238, 704 A.2d 913 (1998). Where a party has unclean hands with regard to the transaction at issue, the party cannot invoke the equitable powers of the Court. See id. SABIC relies on the argument that Exxon's "unclean hands" defense arises out of two separate agreements between different sets of parties, with the crux of the NJ-I lawsuit being Exxon's alleged breach of the December 22, 1980 Service Agreement. In response, Exxon asserts that SABIC acted with "unclean hands" in allegedly overcharging KEMYA for royalty payments based on the October 15, 1980 agreement ("royalty overcharges"[5]). SABIC says that Exxon cannot do this because the agreements described above are separate agreements. As discussed above, this Court has determined that the NJ-I and NJ-II actions arise from one overall agreement. From that, the Court agrees with Exxon that SABIC has not met the high burden of establishing that relief could not be granted under any set of facts. SABIC's argument that the unclean hands defense should be stricken because it relates to a separate agreement is rejected. 2. Unclean Hands Defense Must Relate to Subject Matter of Complaint. The unclean hands defense must relate closely to the subject matter of the complaint. In re New Valley Corp., 181 F.3d 517, 525 (3d Cir.1999)("the alleged inequitable conduct must be connected, i.e. have a relationship to the matters before the court for resolution"), cert. denied, 528 U.S. 1138, 120 S.Ct. 983, 145 L.Ed.2d 933 (2000). Properly viewed, the equitable maxim of unclean hands is a tool for the court, rather than a defense for the accused. Sears, Roebuck & Co. v. Sears plc, 744 F.Supp. 1297, 1309 (D.Del.1990) ("In actuality, a defendant's claim of unclean hands ... is not a defense at all. When presented with a claim of unclean hands, the court is primarily concerned with protecting its own integrity ...") The doctrine only comes into play when it is evident from the pleadings that the allegedly improper conduct is directly related to the conduct about which plaintiff complains, because only in such circumstances is the Court's equitable power implicated. New Valley, 181 F.3d at 525. *392 SABIC asserts that the contractual provision upon which Exxon bases its defense is separate, distinct and independent of the breach of contract claim raised by SABIC. When a party's equitable defense is not based upon a purported breach of a contractual provision at issue, such a defense may not serve to bar plaintiff's claims. See Laborers' Int'l Union of North Am. v. Foster Wheeler Corp., 26 F.3d 375 (3d Cir.1994) (suit to compel arbitration under pre-hire agreement not barred by unclean hands because unclean hands premised on breach of different contractual provision). However, this Court finds that there is a close enough relationship between the inequitable conduct and the claims in the lawsuit to give Exxon the opportunity to assert the defense. SABIC has not met its heavy burden of establishing beyond doubt that, "no relief can be granted under any set of facts that could be proved." Taj Mahal Travel, 164 F.3d at 189. The Court has already found that the Service Agreement and Unipol Agreement are part of the overall Joint Venture Agreement. The allegation by Exxon that SABIC has overcharged the joint venture in violation of the Joint Venture Agreement is conduct related to the breach of the same Joint Venture Agreement. SABIC's alleged unclean hands in overcharging the joint venture in NJ-II are directly relevant to its effort in NJ-I to invoke this Court's equitable powers and enforce obligations supposedly owed by Exxon. This alleged conduct by SABIC could be considered unconscionable conduct that permeates the transaction as a whole. See Shell Oil v. Marinello, 120 N.J.Super. 357, 392, 294 A.2d 253 (N.J.Super.L.1972) ("It is the effect of the inequitable conduct on the total transaction which is determinative whether the [unclean hands defense] shall or shall not be applied."). 3. Unclean Hands Defense Must Relate to the Party Alleged to Have Committed Wrongdoing. SABIC's additional argument as to why the unclean hands defense should be stricken is that KEMYA is the real party in interest and the unclean hands defense is against SABIC. Because the unclean hands defense must relate to the party seeking that equitable relief, SABIC alleges that the unclean hands defense is improper. Exxon argues that because SABIC is suing on behalf of KEMYA, there are no other partners against whom to assert the unclean hands defense. Even if KEMYA is innocent, SABIC's unclean hands would prevent it from suing derivatively on KEMYA's behalf. See Gaudiosi v. Mellon, 269 F.2d 873, 882 (3d Cir.1959); Recchion v. Kirby, 637 F.Supp. 1309, 1315-16 (W.D.Pa.1986) (holding that a shareholder with unclean hands cannot sue derivatively). If SABIC as a derivative shareholder suing on behalf of KEMYA is found to have unclean hands, the Court finds that this wrongful conduct would bar SABIC from bringing the claims at issue. This view is well-established in case law. Recchion applied the doctrine of unclean hands to prevent plaintiff shareholder in a derivative action from complaining about the very conduct which he facilitated. The close connection between the plaintiff's own wrongful conduct and the wrongful conduct which was the basis of the derivative suit allowed the unclean hands defense to go forward. Id. at 1315-16. Similarly, in Gaudiosi, in a derivative action for equitable relief related to a disputed proxy contest, the wrongful conduct of one of the contestants in intimidating the other stockholders abstain from voting their shares allowed an unclean hands defense. Gaudiosi, 269 F.2d at 882. *393 4. Exxon's Standing to Assert the Royalty Overcharge Claim as Its Unclean Hands Defense SABIC's final argument in support of its motion to strike the unclean hands defense is that Exxon lacks standing to assert the royalty overcharge claim because it is neither a party nor a third-party beneficiary of the Joint Venture Agreement between SABIC and ECAI. The Court dismisses this argument for the reasons expressed in the following discussion of the setoff defense. C. Setoff Defense SABIC incorporates its previous New Valley argument that the lack of a close nexus between the defense and the complaint requires dismissal of the "setoff" defense and offers other arguments. Setoff is a procedural device to allow a party to reduce the amount owed to an opposing party by the value of the opponent's cross-obligations to that party. U.S. v. York, 909 F.Supp. 4, 9 (D.D.C. 1995). "[A] party can have ... setoff rights only against one asserting claims against himself." Nashville Lodging Co. v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C.Cir.1995). The common law right of setoff is permissive, not mandatory. See In re Monongahela Rye Liquors, 141 F.2d 864, 869 (3d Cir.1944). It cannot be invoked when the general principles of equity would not justify it. York, 909 F.Supp. at 8. The right to a setoff depends on the existence of mutual debts between the parties to the litigation. Id. at 9.; see also, In Matter of Bevill, Bresler & Schulman, 896 F.2d 54, 57-58 (3d Cir.1990) ("The right of setoff depends on the existence of mutual debts and claims between creditor and debtor."). In other words, direct privity of contract is required before any setoff may be claimed. York, 909 F.Supp. at 9. 1. SABIC's Arguments a. Privity Required for "Setoff" Defense According to SABIC, Exxon lacks standing to assert a setoff for the alleged royalty overcharges, losses and damages suffered indirectly by ECAI, because Exxon was neither a party to the Univation Agreement, nor to the Joint Venture Agreement. The overcharges, even if proved, cannot create any obligation by SABIC to pay Exxon. In this situation, a setoff is barred. Capuano v. U.S., 955 F.2d 1427, 1430 (11th Cir.1992) ("It goes without saying that neither party may offset moneys in its hands belonging to some other party."). b. Disagreement About Exxon's Third Party Beneficiary Status SABIC also argues that Exxon lacks standing to assert "setoff" because it was not an intended third-party beneficiary of the KEMYA joint venture. For Exxon to have standing, it must demonstrate that it was an intended third-party beneficiary of the KEMYA joint venture. Grant v. Coca-Cola Bottling Co., 780 F.Supp. 246, 248-49 (D.N.J.1991) ("[i]n order to qualify as a third-party beneficiary, the claimant must show that the contract was `made for the benefit of [that] party within the intent and contemplation of the contracting parties'") (citations omitted). It must be more than "mere knowledge" that some third-party may incidentally benefit; rather, it must be a "motivating factor." See Grant, 780 F.Supp. at 249. According to SABIC, not only has Exxon failed to plead the required facts, but has failed to demonstrate any basis for its standing to assert a setoff based on the alleged royalty overcharge, except to assert its corporate parent status of ECAI, the true party in interest. However, ECAI, says SABIC, is an independent corporation, *394 created under Delaware law, and a wholly owned subsidiary of Exxon Overseas Corp., an independent corporation, which is in turn a subsidiary of ExxonMobil. Exxon disputes this, and claims that it owns 100% of both companies, and therefore is the true "party-in interest." Although Exxon is a grandparent company of ECAI, the corporate relationship, in and of itself, is not enough to confer standing. As a matter of law, Exxon as a distant parent to ECAI cannot demonstrate that it is an intended beneficiary because any benefit it receives as a parent (such as profits earned by the subsidiary) is indirect and incidental. See Dow Corning v. Chem. Design, Inc., 3 F.Supp.2d 361, 365-66 (W.D.N.Y.1998). If Exxon cannot prosecute the royalty overcharge claim directly, it cannot do so indirectly by an affirmative defense or setoff. Consequently if SABIC has overcharged KEMYA, any refund is owed to KEMYA, not to Exxon, a non-party to the Unipol transaction upon which the royalty overcharge claims are based. Such are the arguments of SABIC. 2. Exxon's Argument: SABIC has not met its burden Exxon counters that SABIC's motion for partial judgment on the pleadings to dismiss Exxon's setoff defense must be denied absent a showing that Exxon can prove no set of facts that would sustain the defense. Although Exxon asserts that it was an intended third-party beneficiary, it does not directly answer SABIC's charge that a grandparent is not a third-party beneficiary per se. See In re Bacigalupi, Inc., 60 B.R. 442, 446 (9th Cir.BAP 1986) (stating that a setoff claim `cannot fail for lack of mutuality' where complaint in other acts alleges third-party beneficiary status) Exxon avers that its allegations as a third-party beneficiary suffice for purposes of this motion. See Ilan-Gat Eng'rs, 879 F.Supp. at 419. Exxon has expressly pled its third-party status (NJ-II Compl. ถ 28), and argues that this suffices for its designation as a third-party beneficiary. See Caldwell Trucking PRP Group v. Spaulding Composites Co., 890 F.Supp. 1247, 1252 (D.N.J.1995) (considering pleadings filed in other courts for purposes of 12(b)(6) motion). Exxon argues that even beyond the pleadings, the facts demonstrate that it is a third-party beneficiary because the agreement names Exxon, and operates to its benefit. See ESI, Inc. v. Coastal Corp., 61 F.Supp.2d 35, 73-74 (S.D.N.Y.1999) (holding that, although defendant was not a signatory to joint venture agreement, plaintiff could bring breach of contract claim against defendant where defendant participated in contract negotiations and drafting and had obligations related to joint venture). Finally, Exxon argues that any questions of fact as to Exxon's third-party status cannot be resolved on a 12(c) motion, or a motion for summary judgment. See Pension Fund-Mid Jersey Trucking Indus.-Local 701 v. Omni Funding Group, 731 F.Supp. 161, 171 (D.N.J.1990) (denying motion for summary judgment in view of issues of fact of "whether parties were intended beneficiaries of contract"); see also Consolidated Rail Corp. v. Portlight, Inc., 188 F.3d 93, 98 (3d Cir.1999) (denying 12(c) motion where pleadings contained no information on the factual question, and the factual record was still undeveloped). 3. Conclusion The Court finds that for purposes of this motion, Exxon's allegations of its third-party beneficiary status must be accepted and finds that Exxon has sufficiently pled its third-party status. This Court agrees with Exxon and finds that a question of fact as to Exxon's third-party status *395 cannot be resolved on a 12(c) motion for summary judgment. It is sufficient now for Exxon to have plead its third-party beneficiary status. The Court denies SABIC's Rule 12(c) motion. 3. EXXON'S MOTION TO DISMISS PURSUANT TO RULE 19 In the third NJ-I motion, SABIC purports to bring derivative claims on behalf of KEMYA asserting that Exxon is obligated under contract and tort law to assign the rights of SCM-T information to KEMYA. Yet, SABIC has failed to name ECAI, the other partner in KEMYA, as a defendant. Exxon disputes SABIC's right to sue derivatively on KEMYA's behalf, and has preserved its defenses related to SABIC's failure to name either KEMYA or ECAI as indispensable parties. Exxon now moves to dismiss SABIC's derivative claims pursuant to Fed.R.Civ.P. 19 for failure to join a necessary and indispensable party. Alternatively, Exxon requests that this Court grant SABIC a 14-day leave to cure its defective pleading by adding ECAI as a defendant. Rule 19 sets out separate tests for determining whether a party is "necessary"[6] and "indispensable."[7] If the court finds that a party is a "necessary one," it should direct the plaintiff to amend its complaint to add the person. Failure to comply with such an order may result in dismissal of the plaintiff's action. See Window Glass Cutters League of Am., AFL/CIO v. Am. St. Gobain Corp., 428 F.2d 353, 354 (3d Cir.1970); Rainville Co. v. Consupak, Inc., 407 F.Supp. 221, 225 (D.N.J.1976). When joinder is not feasible, the action must be dismissed if the unnamed person is "indispensable." Courts which analyze joinder fully consider each factor listed in Rules 19(a) and 19(b) to determine whether joinder or dismissal is required. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 741, 19 L.Ed.2d 936 (1968). Exxon complains that SABIC has not named either ECAI or KEMYA as a defendant. SABIC responds that Exxon and ECAI are effectively the same entity because Exxon stands in ECAI's shoes. SABIC alleges that its failure to add ECAI is justified by the futility of asking ECAI to "sue its parent or otherwise take action contrary to Exxon's interests." (First Am. Compl. ถ 9). In derivative actions, a plaintiff should name the real party in interest to prevent the risk of dismissal.[8] Cases have *396 applied the same rule to partnerships and have dismissed derivative claims when the partnership was an absent party. See Bankston v. Burch, 27 F.3d 164, 167 (5th Cir.1994) ("the partnership is ... an indispensable party without whom the lawsuit should not go forward."). In the Third Circuit, however, the rule has been modified such that "at least in certain cases, it is possible that a partnership's interest can be effectively represented in litigation by participation of its partners." HB General Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1193 (3d Cir.1996). In general, federal courts are extremely reluctant to grant motions to dismiss based on nonjoinder, and dismissal will be ordered only when the defect cannot be cured and serious prejudice or inefficiency will result. See Provident Tradesmens Bank & Trust, 390 U.S. at 118, 88 S.Ct. at 743 ("To say that a court `must' dismiss in the absence of an indispensable party and that it `cannot proceed' without him puts the matter the wrong way around: a court does not know whether a particular person is `indispensable' until it had examined the situation to determine whether it can proceed without him."). With that in mind, the Court will determine whether ECAI or KEMYA are necessary and indispensable parties. A. Is Either ECAI or KEMYA[9] a "Necessary Party" under Rule 19(a)? SABIC argues that KEMYA is not a necessary party because it meets none of the criteria of Rule 19(a): first, Kemya is not a party in whose absence "complete relief cannot be accorded." Fed.R.Civ.P. 19(a)(1). A decision in favor of SABIC (acting derivatively) for KEMYA would restore the misappropriated asset to KEMYA, and end this dispute. Alternatively, a decision in favor of Exxon would end the dispute by binding SABIC, KEMYA, and ECAI. KEMYA cannot file another claim without SABIC's express authorization, and a binding decision upon SABIC precludes this possibility. Also, ECAI is the only other partner, and it will not take action against its parent. Ono v. Itoyama, 884 F.Supp. 892, 899 (D.N.J. 1995) ("The Court may presume a 50% shareholder would not agree to initiate litigation against himself."). In SABIC's view, there can be complete relief without naming ECAI or KEMYA as defendants. This Court agrees with SABIC's argument. Next, SABIC argues that the absent party's ability to protect its interest is not prejudiced. Federal Rule of Civil Procedure 19(a)(2) is intended to either allow an absent party to protect its interests in the event they differ from the parties already in the litigation, or to ensure that the existing parties adequately represent interests of the absent party. Also, joinder is not required when the party, even if joined, could not protect its own interests. Exxon's control over ECAI, coupled with the absence of any other partner to act on KEMYA's behalf, thwarts KEMYA's ability to act independently, so KEMYA is not prejudiced by its absence. Rule 19(a)(2)(ii) provides that when non-joinder of the absent party could subject the other parties to "multiple, double, *397 or otherwise inconsistent lawsuits", joinder is necessary. Hagstrom v. Breutman, 572 F.Supp. 692, 701 (N.D.Ill.1983). It should be noted that Rule 19 protects only against inconsistent obligations, not inconsistent adjudications. See RPR & Assoc. v. O'Brien/Atkins Assoc., P.A., 921 F.Supp. 1457, 1464 (M.D.N.C.1995). The Third Circuit agrees that Rule 19 is not triggered merely by inconsistent adjudications. See Field v. Volkswagenwerk AG, 626 F.2d 293, 301-02 (3d Cir.1980). (The mere risk that a defendant who has successfully defended against a party may be found liable to another plaintiff in a subsequent action does not necessitate joinder of all of the parties in one action.) SABIC argues that there is no scenario under which ECAI could be exposed to inconsistent obligations: There are only two partners in KEMYA, ECAI (owned and controlled by Exxon) and SABIC. Because KEMYA cannot act without SABIC's express authorization, there is no risk of multiple lawsuits or inconsistent obligations. Exxon counters that SABIC does not represent KEMYA's interests. Exxon points to three instances when SABIC's and KEMYA's interests have conflicted. First, SABIC offers SCM-T as a major advance over Unipolฎ technology, and asserts that it would have the automatic right to freely use and sublicense SCM-T, if it is determined to be owned by KEMYA. This conflicts with the spirit of the Unipol Agreement between SABIC and KEMYA, which allows KEMYA to license its major advances to SABIC and UCC, without allowing SABIC to sublicense them further. (SABIC/KEMYA UCC License XI.9, Sher Aff. Exh. C). SABIC is advancing a position that conflicts with KEMYA's interests, says Exxon. Second, SABIC earlier conceded that SHARQ, its half-owned affiliate, and a direct competitor of KEMYA, is currently using SCM-T, in violation of the March Stipulation that "neither SABIC, SHARQ, YANPET, PetroKEMYA, nor any SABIC affiliate (other than KEMYA) will use or practice the SCM-T information until ownership rights are established." According to Exxon, SABIC's violation demonstrates that it has acted, and will continue to act against KEMYA's interests. Third, SABIC's alleged overcharging of the KEMYA partnership and efforts to prevent Exxon from litigating the overcharge claims represent another example that SABIC has compromised KEMYA's interests. Exxon argues that KEMYA's interests will not be adequately protected unless either ECAI or KEMYA is joined. The Court agrees with SABIC that complete relief could be accorded to the parties without KEMYA's presence and that KEMYA lacks interests that would leave the parties subject to inconsistent obligations. But, this Court finds that KEMYA does have independent interests with regard to its licensing relationships, as Exxon describes, that would make it a necessary party under Rule 19(a), "if feasible." B. Under Rule 19(b), All Indispensable Parties Must be Joined SABIC does not agree that KEMYA and ECAI are necessary parties, so in its view, no further inquiry under Rule 19(b) is necessary. See Janney Montgomery Scott v. Shepard Niles Inc., 11 F.3d 399, 405 (3d Cir.1993). ("A holding that joinder is compulsory under Rule 19(a) is a necessary predicate to a district court's discretionary determination under Rule 19(b) that the party is indispensable."). SABIC points out that even if ECAI is deemed "necessary," not all necessary parties are indispensable. RPR & Assoc., 921 F.Supp. at 1463. The practical effect here is that if the Court finds ECAI or KEMYA *398 to be indispensable, their addition would destroy diversity jurisdiction and require the dismissal of this case. When a necessary party who should be joined cannot be joined, the Court must analyze the factors in Rule 19(b) to determine whether to proceed without the absent party, or to dismiss the action.[10] If the merits can be determined without prejudice to the rights of the necessary but absent parties, a court of equity will strain hard to reach that result. See Bourdieu v. Pacific Western Oil. Co., 299 U.S. 65, 70, 57 S.Ct. 51, 53, 81 L.Ed. 42 (1936) reh'g denied, 299 U.S. 622, 57 S.Ct. 228, 81 L.Ed. 458 (1936). "In determining whether a party is indispensable, the court must consider the practical potential for prejudice in the context of the particular factual setting...." RPR & Assoc., 921 F.Supp. at 1463, citing Provident Tradesmens Bank & Trust Co., 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936. SABIC suggests that the Rule 19(b) factors establish that KEMYA is not "indispensable." First, a decision on SABIC's derivative claim will not prejudice KEMYA or expose Exxon to multiple claims. Second, even if there were some conceivable risk to Exxon, there are measures by which such perceived risk can be averted or lessened. Fed.R.Civ.P. 19, Advisory Comment at 121. As example, injunctive relief could fully protect Exxon against risk of a later suit by SABIC. Third, a judgment rendered in KEMYA's absence would adequately resolve the dispute as to all parties, including KEMYA, on whose behalf the action was filed. Finally, neither SABIC nor KEMYA will have an adequate remedy if the action is dismissed for nonjoinder. H.B. General Corp., cited above, is instructive. That case addressed whether one partner in a limited partnership would be prejudiced by the absence of the partnership entity, because it could file its own identical claims against the defendant, thereby exposing it to multiple suits or inconsistent obligations. The Court initially determined that the partnership was a necessary party because of independent interests that it held. However, the Court, relying on pragmatic considerations, concluded that because there were only three partners, and there were no partners absent which might have an interest in suing the defendant, a decision against the plaintiffs fully protected the defendant, and no joinder was necessary. Here, SABIC is the only partner able to prosecute the partnership's claims against Exxon. If SABIC loses on the merits, injunctive relief fully protects Exxon against further claims by SABIC on behalf of KEMYA. As SABIC argues, SABIC's derivative claim will not be prejudicial to KEMYA's interests or expose Exxon to multiple suits. Also, neither SABIC nor KEMYA has an adequate remedy if this action is dismissed for nonjoinder because of KEMYA Board deadlock. In light of these practical considerations, this Court finds that KEMYA is not an indispensable party in the context of Rule 19(b). C. Waiver of Any Contention that KEMYA is an Indispensable Party SABIC argues that Exxon has waived any contention that KEMYA is an indispensable party. SABIC interprets Exxon's counsel's representation in open court, "[w]e don't take the position that *399 KEMYA is an indispensable party," as waiving the Rule 19 claim (Comprehensive Lorell Decl. Ex. N). Exxon denies that this one statement constitutes waiver. It admits that counsel made the statement only because SABIC treated Exxon and ECAI as the same party. After SABIC reversed itself, and asserted that Exxon cannot represent ECAI's interests, it became clear that either ECAI or KEMYA must be joined. Even though Exxon's counsel said what he said, the Federal Rules expressly declare that a party cannot waive the defense of failure to join an indispensable party.[11] "[A]n objection based on the absence of an indispensable party can be raised at any time, even by an appellate court ..." Travelers Indem. Co. v. Household Int'l, Inc., 775 F.Supp. 518, 529 (D.Conn.1991). An Illinois case advanced by SABIC, National Acceptance Co. v. Wechsler, 489 F.Supp. 642, 645 (N.D.Ill.1980), is not helpful because the court held that the party seeking joinder had contractually waived its right to join myriad other parties. Id. at 645. Exxon has never contractually agreed to waive its right to bring this motion. There has been no waiver of Exxon's joinder claim. D. Joinder and Diversity Jurisdiction The Court surmises that SABIC does not seek to join ECAI or KEMYA because such joinder would destroy diversity jurisdiction โ€”KEMYA and Exxon are Texas residents. SABIC responds that even though both KEMYA and Exxon are Texas residents, courts have a duty in diversity cases to realign the parties according to their interests. See Develop. Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 159 (3d Cir.1995) (Describing a "fundamental principle of federal jurisdiction that `[i]n determining the alignment of parties for jurisdictional purposes, the courts have a `duty' to look beyond the pleadings and arrange the parties according to their sides in the dispute.'") (quoting Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941)). Because KEMYA's interest is to seek enforcement of the Service Agreementโ€”which SABIC contends on KEMYA's behalf that Exxon has breachedโ€”KEMYA should be aligned with SABIC as a plaintiff.[12] Exxon concedes that adding either ECAI or KEMYA will destroy diversity because a partnership is deemed a citizen of each state where its partners are individual citizens. Carden v. Arkoma Assocs., 494 U.S. 185, 195, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990); HB General, 95 F.3d at 1190 ("for diversity jurisdiction purposes, a limited partnership is considered a citizen of each state in which its partners ... are citizens"). KEMYA is a citizen of Saudi Arabia, where SABIC is incorporated, and of Texas, where ECAI has its principal place of business. Joinder of KEMYA would destroy diversity because both KEMYA and Exxon are citizens of Texas. See VMS/PCA LP v. PCA Partners LP, 727 F.Supp. 1167, 1169 (N.D.Ill. 1989). When joinder of a partnership to a derivative suit is not feasible due to *400 diversity requirements, the suit must be dismissed unless all partners are joined as parties to the suit. HB General, 95 F.3d at 1193. However, applying the Rule 19(b) factors here, the Court finds that neither KEMYA nor ECAI is an indispensable party because this Court in equity finds that any judgment rendered in the party's absence will be adequate and not prejudicial to such absent parties since each is represented by 50% partners SABIC and Exxon (as grandparent to ECAI) in this lawsuit. Furthermore, SABIC will not have an adequate remedy if this action is dismissed for non-joinder. Neither ECAI or KEMYA will be considered and added as indispensable parties. Diversity jurisdiction remains. 4. SABIC's MOTION TO DISMISS THE NJ-II COMPLAINT UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA) In NJ-II, SABIC moves to dismiss the complaint claiming immunity as a foreign state under the Foreign Sovereign Immunities Act, 28 U.S.C. ง 1602 et. seq., lack of personal jurisdiction and improper venue. Alternatively, SABIC argues that the court should abstain from exercising jurisdiction even if jurisdiction exists. Further, SABIC asks the Court to dismiss ExxonMobil as a third-party plaintiff because it lacks standing to assert the third-party beneficiary claims. In the event that the complaint survives, SABIC contends that the jury demand should be stricken. A. Standard of Review Unlike a motion to dismiss for failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(6), in a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), no presumption of truthfulness attaches to the allegations in the complaint and the court may consider matters outside the pleadings such as affidavits and other material properly before the court. Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In a Rule 12(b)(1) motion, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. "[T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Id. at 891. The plaintiff must not only demonstrate that a controversy existed at the time it filed suit but that it continues to exist throughout the litigation. Spectronics Corp. v. H.B. Fuller Co., 940 F.2d 631, 635 (Fed.Cir.1991). A motion to dismiss for lack of subject matter jurisdiction predicated on the legal insufficiency of a claim may be granted if the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991)(quoting Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). B. Subject Matter Jurisdiction SABIC contends that this court lacks subject matter jurisdiction under both of the grounds that Exxon asserts. SABIC argues that this Court lacks diversity jurisdiction under 28 U.S.C. ง 1332 and original jurisdiction under 28 U.S.C. ง 1330, the Foreign Sovereign Immunities Act. 1. Diversity Jurisdiction As SABIC argues, diversity jurisdiction does not exist in this case. Section 1332 confers diversity jurisdiction upon "a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States." It is undisputed *401 that SABIC, an entity of which approximately 70% is owned by the Kingdom of Saudi Arabia (Al-Ubaid Decl. ถ 3), qualifies as a "foreign state" under the definition of 1603(a).[13] However, because SABIC is not the party plaintiff, Section 1332 would not confer jurisdiction. (Compl. ถ 5). See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 437 n. 5, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (1976 amendments to ง 1332 eliminated diversity jurisdiction over "foreign state" defendants). As explained by the Supreme Court in Argentine Republic, "`[s]ince jurisdiction in actions against foreign states is comprehensively treated by the new section 1330, a similar jurisdictional basis under section 1332 becomes superfluous.'" Id. (citing H.R.Rep., at 14, S.Rep., at 13, U.S.Code Cong. & Admin. News 1976, p. 6613). 2. Original Jurisdiction Under the FSIA SABIC further argues that this Court lacks original jurisdiction over this matter because of immunities SABIC claims under the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. 1602 et. seq. The FSIA "establishes a comprehensive framework for determining whether a court in this country, state or federal, may exercise jurisdiction over a foreign state." Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610, 112 S.Ct. 2160, 2164, 119 L.Ed.2d 394 (1992). The FSIA grants district courts subject matter jurisdiction over actions against "foreign states" pursuant to 28 U.S.C. ง 1330(a), which provides that "district courts shall have original jurisdiction without regard to the amount in controversy of any nonjury civil action against a foreign state" as to any claim for which "the foreign state is not entitled to immunity under sections 1605-1607 of this title...." The FSIA provides the "sole basis" for obtaining jurisdiction over a foreign sovereign in U.S. state and federal courts. Id. Section 1604 of the FSIA provides that a foreign state shall be immune from the jurisdiction of U.S. federal and state courts, unless one of several statutory exceptions applies. 28 U.S.C. ง 1604. When immunity under the FSIA is contested, the following burden-shifting analysis should be applied: [O]nce the defendant presents a prima facie case that it is a foreign sovereign, the plaintiff has the burden of going forward with showing that, under exceptions to the FSIA, immunity should not be granted, Baglab Ltd. v. Johnson Matthey Bankers Ltd., 665 F.Supp. 289, 293-4 (S.D.N.Y.1987), although the ultimate burden of persuasion remains with the alleged foreign sovereign. Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n. 6 (5th Cir.1989). Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari, 12 F.3d 317 (2d Cir.1993) (quoting Cargill Int'l S.A. v. M/T PAVEL DYBENKO, 991 F.2d 1012, 1016 (2d Cir.1993)); see also Voest-Alpine Trading USA Corp. v. China New York Branch, 142 F.3d 887, 896 (5th Cir.1998). As stated, it is undisputed that SABIC is a "foreign state" as defined by the FSIA. 28 U.S.C. ง 1603(a). This Court will examine the applicability of exceptions to jurisdictional immunity under the FSIA. 3. Exceptions to Immunity Section 1605 contains the disputed exceptions to sovereign immunity, commonly *402 known as the "waiver" and the "commercial activities" exceptions: (a) A foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any caseโ€” (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by a foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States ... 28 U.S.C. ง 1605(a)(1)-(2). a. Waiver Exception is Narrowly Construed. As quoted, 28 U.S.C. ง 1605(a)(1) provides that a foreign state shall not be immune from suit if the foreign state "... waived its immunity either explicitly or by implication ...." (emphasis added). Here there was no express waiver of immunity. See Aquinda v. Texaco, 175 F.R.D. 50, 52 (S.D.N.Y.1997), vacated on other ground sub. nom. Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998) (To establish express waiver, there must be a "clear, complete, unambiguous and unmistakable" manifestation of a sovereign's intent to waive its immunity.); see also Libra Bank Ltd. v. Banco Nacional De Costa Rica, S.A., 676 F.2d 47, 49 (2d Cir.1982). At issue here is whether there was an implied waiver of immunity. Implied waiver has generally been limited to three categories: (1) when the foreign state has agreed to arbitration in another country; (2) when a foreign state has agreed that the law of a particular country shall govern a contract; or (3) when a foreign state has filed a responsive pleading in an action without raising the defense of sovereign immunity. Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1291, n. 24 (11th Cir.1999)(emphasis added). "The courts, loath to broaden the scope of the implied waiver provision, rarely have found that an action that does not fit one of the above three examples constitutes an implicit waiver." Id. Exxon first argues that SABIC waived its immunity with its filing of the Delaware action that involved claims based on the same issues here, whether SABIC overcharged KEMYA and YANPET in breach of the Joint Venture Agreements. Relying on Matter of Rio Grande Transp., Inc., 516 F.Supp. 1155, 1159 (S.D.N.Y. 1981), SABIC argues that the mere filing of the Delaware action does not waive SABIC's immunity from suit elsewhere. According to SABIC, if Yanbu and ECAI wish to assert affirmative claims "arising out of the transaction or occurrence" as the subject matter of the Delaware action, they may only do so under 28 U.S.C. ง 1607(b). 28 U.S.C. ง 1607(b) provides that foreign states cannot assert immunity with respect to any counterclaim "arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state." On that basis, SABIC asserts that Delaware is the only forum in the United States where Unipol royalty claims may be litigated. Exxon counters that SABIC has waived its immunity under Section 1605(a)(1) because nothing in the statute supports SABIC's view that it *403 can waive sovereign immunity on a state-by-state basis. This Court agrees with Exxon that SABIC cannot waive sovereign immunity on a state-by-state basis. SABIC points to no authority to support the assertion that only Delaware would have subject matter jurisdiction over this matter because of SABIC's waiver of immunity. Moreover, in In re Oil Spill by Amoco Cadiz [Republic of France v. Standard Oil Co.], 491 F.Supp. 161(N.D.Ill.1979), the district court rejected a foreign state's argument that the mere filing of a complaint does not constitute waiver, and found that defendant had waived by implication its foreign state immunity to third-party claims under section 1605(a)(1). Id. at 167-168. There was an implied waiver because the foreign state had "[invoked] the jurisdiction of the United States to adjudicate claims which arose [outside the U.S.]" and because the claims at issue were based on the same transactions or occurrences as claims previously filed in U.S. courts by the foreign state. Id. And, as Exxon argues, the case offered by SABIC, In the Matter of Rio Grande Transp., Inc., 516 F.Supp. 1155 (S.D.N.Y. 1981), is not applicable because it involved a unique procedural rule that required the foreign state to file a conditional claim within six months of the plaintiff's claims. The foreign state defendant filed a conditional claim clearly asserting that the claim was to be considered only if its sovereign immunity defense was rejected. Here SABIC voluntarily began actions in two U.S. courts, and in the Delaware state action, seeks declaratory relief on the overcharge issue, the subject here. Exxon also argues that SABIC waived its immunity by filing the NJ-I action. See 28 U.S.C. 1607(b); Matter of Rio Grande Transport, Inc., 516 F.Supp. 1155, 1159 (S.D.N.Y.1981). According to SABIC, the filing of the NJ-I action alleging patent misappropriation does not serve to waive SABIC's immunity from suit on subjects which do not arise out of the occurrence of that patent misappropriation. And SABIC argues that the only claims that Exxon (not Yanbu or ECAI) may file against SABIC in New Jersey are narrow counterclaims which are statutorily limited and circumscribed.[14] This Court has already determined that the NJ-I, NJ-II and the Delaware action are based upon breaches of one overall agreement. Based on that determination, the filing of the NJ-I action waives SABIC's immunity from suit on the claims in NJ-II and the Delaware courts. In the NJ-I action, Exxon asserted various counterclaims. However, SABIC never raised sovereign immunity in response to such counterclaims, and expressly conceded jurisdiction under 28 U.S.C. ง 1332 thereby evincing an intent to waive any sovereign immunity. This Court concludes that failure to raise sovereign immunity in the first responsive pleading constitutes an implied waiver. See Aquamar, 179 F.3d at 1291 ("Congress in enacting the FSIA, contemplated that a private attorney representing a foreign state could waive sovereign immunity implicitly by filing, on behalf of the state, a responsive pleading that did not raise the defense," citing H.R.Rep. No. 94-1487, at 18 (1976)). *404 Because SABIC has repeatedly invoked the protection of U.S. courts, including this Court, for claims against Exxon on the very same agreements among the very same parties, this Court determines that immunity under the FSIA has been waived by implication. b. "Commercial Activity" Exception Exxon contends that the first and third clauses of Section 1605(a)(2) apply and defeat any jurisdictional immunity that SABIC has under the FSIA. Section 1605(a)(2) provides that a foreign state shall not be immune in any action based upon: a commercial activity carried on in the United States by a foreign state; or upon an act performed in the [U.S.] in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the U.S. in connection with a commercial activity of the foreign state elsewhere and ... causes a direct effect in the [U.S.]. 28 U.S.C. ง 1605(a)(2). As written, Section 1605(a)(2) provides that a foreign state shall not be immune from the jurisdiction of the United States in any case in which the action is based upon "a commercial activity carried on in the United States by the foreign state." Under Section 1603(e), the "commercial activity carried on in the United States by a foreign state" means "commercial activity carried on by such state and having substantial contact with the United States." 28 U.S.C. ง 1603(e). "Commercial activity" is defined as "either a regular course of commercial conduct or a particular commercial transaction or act," "the commercial character [of which] shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." 28 U.S.C. ง 1603(d). This Court must determine whether SABIC's cause of action here was "based upon" commercial activity that had "substantial contact" with the United States. Exxon states that its breach of contract and fiduciary duty claims are based upon the following commercial activity in the U.S. by SABIC: (1) SABIC contracted with UCC, an American corporation, for exclusive rights to Unipol technology in Saudi Arabia; (2) the payments under this contract with UCC were made in New York for technology that SABIC had passed along to KEMYA and YANPET at a higher cost; (3) the failures to disclose had occurred during multiple KEMYA and YANPET Board Meetings that occurred in the U.S.; (4) payments from KEMYA and YANPET to SABIC for their rights to use Unipol technology were routed through banks in the United States en route to SABIC's accounts in Saudi Arabia. SABIC counterargues that the commercial activity upon which Exxon relies is not a necessary element of their claim for breach of contract and fiduciary duty claims and does not meet the "based upon" requirement under the Act. (Al-Ubaid Decl. ถถ 6-7). The Supreme Court in Saudi Arabia v. Nelson, 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993), described "based upon" as "read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case." 507 U.S. at 357, 113 S.Ct at 1477. "[A] claim is `based upon' events in the United States if those events establish a legal element of the claim." Santos v. Compagnie Nationale Air France, 934 F.2d 890, 893 (7th Cir.1991). This Court agrees with SABIC that Exxon's claims are not based upon commercial activity alleged to have occurred in the U.S. Exxon is claiming that SABIC had breached the Joint Venture Agreements and its fiduciary duty in overcharging royalties under two license agreements *405 at a cost in excess of what was agreed upon under the Joint Venture Agreements. These two license agreements and the Joint Venture Agreements were all executed under, and are governed by, Saudi Arabia law. According to SABIC and undisputed, "[t]he costs incurred by SABIC to acquire and license the technology to KEMYA and YANPET were incurred in Saudi Arabia, and the payments SABIC received from both partnerships came to its bank in Saudi Arabia." (SABIC Reply Br. at 17.) SABIC's failure to disclose the overcharge practice to their ECAI and Mobil Yanbu counterparts at KEMYA and YANPET board meetings that occurred within the United States does not constitute an "act" that occurred within the United States. See Chemarketing Indust., Inc. v. C.V.G., No. 97 CIV. 1791, 1998 WL 199937 at *3 (S.D.N.Y April 23, 1998)(failure to open a letter of credit cannot constitute an act that occurred in the United States). Further, the facts that UCC was an American corporation and that SABIC directed payments to UCC to New York are related to (as argued below, with respect to personal jurisdiction) but are not the activities upon which Exxon's legal claim is based. That YANPET and KEMYA's payments to SABIC were routed through the United States do not constitute substantial contact with the U.S. as required by the exception. Exxon next argues that any immunity that SABIC has under the FSIA is defeated by the exception found in the third clause of Section 1605(a)(2): a foreign state shall not be immune in any case in which the action is based "upon an act outside the territory of the [U.S.] in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the [U.S.]" 28 U.S.C. ง 1605(a)(emphasis added). This clause requires the following elements to be satisfied to avoid immunity under the FSIA: "(1) an act outside the [U.S.] (2) in connection with commercial activity outside the [U.S.] (3) that causes a direct effect in the [U.S.]." Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 894 (5th Cir.1998). Exxon claims that the direct effect exception applies because SABIC entered into and breached Joint Venture Agreements with two American corporations, ECAI and Yanbu, causing Plaintiffs and Exxon, a third-party beneficiary, great financial loss. Exxon argues that if any money is owed, such is owed directly to ECAI and Yanbu. SABIC does not contest that the complaint is based upon SABIC's acts with regard to these alleged overcharge practices and that these acts were in connection with commercial activity outside the U.S. However, in SABIC's view, mere economic loss to an American plaintiff arising from a breach of performance occurring outside the U.S. is not a "direct effect." See Dominican Energy Ltd., Inc. v. Dominican Republic, 903 F.Supp. 1507, 1515 (M.D.Fla.1995). According to SABIC, the financial loss to ECAI and Yanbu was not direct because SABIC overcharged KEMYA and YANPET, not ECAI and Yanbu. Exxon counters that the contractual obligations at issue are directly owed to ECAI and Yanbu and that the technicalities of corporate structure cannot be used to negate direct effect. Also, Exxon argues that SABIC's assertion that "mere economic loss" to an American plaintiff does not satisfy the "direct effect" requirement conflicts with many cases in which courts have found that economic injury to U.S. entities constituted a "direct effect" in the U.S. See, e.g., Voest-Alpine, 142 F.3d at 897 ("we hold that a financial loss incurred in the United States by an American plaintiff, if it is an immediate consequence of the defendant's activity, constitutes *406 a direct effect sufficient to support jurisdiction under the third clause of the commercial activity exception" (emphasis added)); Ampac, 797 F.Supp. at 977 (finding that based on allegation in complaint that American Defendants would suffer injury to business reputation and lose profits in the U.S., that the "harm alleged follows as an `immediate consequence' of Defendants' activities".) The Second Circuit in Texas Trading has noted: Unlike a natural person, a corporate entity is intangible; it cannot be burned or crushed. It can only suffer financial loss. Accordingly, the relevant inquiry under the direct effect clause when plaintiff is a corporation is whether the corporation has suffered a `direct' financial loss. 647 F.2d at 312; see also Tifa Ltd. v. Republic of Ghana, 692 F.Supp. 393, 403 (D.N.J.1988) (finding direct effect due to plaintiff's financial loss from non-payment for goods, even though the money owed by the Ghanaian government was to be paid in Ghana through an intermediary Ghanaian corporation); Crimson Semiconductor, Inc. v. Electronum, 629 F.Supp. 903, 907 (S.D.N.Y.1986) (finding exception applied "because the breach had a `direct effect' in the United States, namely, a financial loss suffered by the beneficiary of the contract, a New York corporation."). Also, with regard to the "direct effect" exception, the leading case, Weltover, 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394, "teaches that the effect in the United States need only be slight." Id. at 618, 112 S.Ct. at 2168; Ampac Group, Inc. v. Republic of Honduras, 797 F.Supp. 973, 977 (S.D.Fla.1992). The effect need not be "substantial" and "foreseeable." Weltover, 504 U.S. at 618, 112 S.Ct. at 2168. Rather, an effect "is `direct' if it follows as an immediate consequence of the defendants' ... activity.'" Id. (emphasis added); see also Ampac, 797 F.Supp. at 977. The facts of Weltover illustrate how slight the effect could be to constitute "direct effect." The Weltover bond holders brought a breach of contract action against the Republic of Argentina and its central bank arising out of Argentina's unilateral extension of the time for payment on the bonds issued as part of a currency stabilization plan. Id. at 609-10, 112 S.Ct. at 2163-2164. The District Court denied Argentina's motion to dismiss for lack of subject matter jurisdiction, and held that Argentina was not immune under the FSIA. The Court of Appeals affirmed. The Supreme Court defined "commercial activity" that is an exception to immunity under the FSIA: "[W]hen a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are "commercial" within the meaning of the FSIA." Id. at 614, 112 S.Ct. at 2166. Employing that definition, the Court found that Argentina was engaging in "commercial activity" when it unilaterally issued its bonds. Id. at 617, 112 S.Ct. at 2167. The Supreme Court also addressed whether Argentina's activities had a "direct effect" in the United States: Because the holders of the bonds could designate New York as one of several locations as the place of repayment, the rescheduling of those obligations necessarily had a "direct effect" in the United States." Id. at 619, 112 S.Ct. at 2168. This Court finds that contrary to SABIC's assertion, there is no requirement of a "legally significant act in the U.S. beyond a financial loss" to satisfy the direct effect requirement. Voest-Alpine, 142 F.3d at 894 (refusing to ascribe a "legally significant act" requirement to the direct effect test); see generally, Weltover, 504 U.S. at 618, 112 S.Ct. at 2168. This Court concludes *407 that ECAI, Yanbu, and Exxon's financial loss suffices for "direct effect" such that the commercial activity exception applies, abrogating SABIC's foreign sovereign immunity. B. Personal Jurisdiction SABIC further argues that Exxon's complaint should be dismissed because this Court lacks personal jurisdiction. 1. Consent to Personal Jurisdiction This Court finds that SABIC consented to personal jurisdiction in New Jersey when it filed the NJ-I action in 1998. As discussed, NJ-I is based on claims arising from the same overall transaction as the matter here. It follows then that SABIC's initiation of litigation in this forum state on claims arising out of the same transaction surrenders any objection to personal jurisdiction by SABIC. Gen'l Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20, 23 (1st Cir.1991) (By availing itself of the benefits of the New Hampshire courts by instigating a lawsuit against the plaintiff, "it is inevitable that [the defendant] surrendered any jurisdictional objections to claims that [the plaintiff] wished to assert against it in consequence of the same transaction or arising out of the same nucleus of operative facts."); see generally, Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649 (1938) (rejecting plaintiff's jurisdictional objections to counterclaims filed by defendant, the court held: "The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence.") SABIC refers to Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450 n. 8 (8th Cir.1977), Whistler Corp. v. Solar Elecs., Inc., 684 F.Supp. 1126,1131 (D.Mass.1988), and Sullivan v. Rilling, No. 94 c 539, 1996 WL 26840 *5 (N.D.Ill. Jan. 22, 1996) to support its proposition that, "as a matter of law, the filing and prosecution of a lawsuit does not constitute the requisite minimum contacts to establish personal jurisdiction." (SABIC's Mem. In Support of Mot. at 22.) However, unlike our situation here and there in General Contracting, the cases offered by SABIC do not deal with a former suit initiated by the defendant on claims arising out of a common transactional core. Because of this Court's conclusion that SABIC has consented to personal jurisdiction in this forum, a long arm analysis is unnecessary. That said, in further support of the existence of personal jurisdiction, this Court will conduct the analysis. 2. Minimum Contacts a. Standard Pursuant to Federal Rule of Civil Procedure 4(e), federal "district courts have personal jurisdiction over non-resident defendants to the extent authorized under the law of the forum state in which the district court sits." Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28, 31 (3d Cir.1993). New Jersey's long arm statute provides for personal jurisdiction as far as permitted by the Fourteenth Amendment to the United States Constitution. See N.J. Court Rule 4:4-4(c); Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir.1992); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir.1981). The question of whether this Court has jurisdiction over the defendant is determined by federal constitutional law. See Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir.1990). The Fourteenth Amendment permits a state to exercise jurisdiction over an out-of-state defendant only when "the defendant purposefully avails itself of the privilege *408 of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). It is the plaintiff's burden to prove that the defendant has purposefully availed himself of the forum state. See Burke v. Quartey, 969 F.Supp. 921, 924 (D.N.J.1997). To prove purposeful availment, a plaintiff may rely upon a defendant's specific contacts with the forum state. Personal jurisdiction pursuant to such contacts is known as specific jurisdiction. Specific jurisdiction is invoked when a claim is "relate[d] to" or "arises out of" the defendant's contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211 (3rd Cir.1984). A court must first determine whether the defendant had the minimum contacts with the forum necessary for the defendant to have "reasonably anticipate[d] being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) (citations omitted). What constitutes minimum contacts varies with the "quality and nature of the defendant's activity." Hanson, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d 1283. In assessing the sufficiency of minimum contacts for personal jurisdiction, the court must focus on "`the relationship among the defendant, the forum and the litigation.'" Keeton v. Hustler, 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984) (citations omitted). Otherwise stated, there must be at least "a single deliberate contact" with the forum state that relates to the cause of action. United States Golf Ass'n v. United States Amateur Golf Ass'n, 690 F.Supp. 317, 320 (D.N.J.1988). The unilateral acts of the plaintiff, however, will not amount to minimum contacts. Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872; Hanson, 357 U.S. at 253, 78 S.Ct. at 1239-40. Second, assuming minimum contacts have been established, a court may inquire whether "the assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Burger King, 471 U.S. at 476, 105 S.Ct at 2184 (quoting Int'l Shoe Comp. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945)); Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d 197, 201 (3d Cir.1998). Even if a non-resident has sufficient minimum contacts with the forum, the exercise of jurisdiction must still comport with "traditional notions of fair play and substantial justice." Int'l Shoe Co., 326 U.S. at 316, 66 S.Ct at 158. To determine the fairness and reasonableness of the forum's exercise of jurisdiction, it is necessary to consider the "burden on the defendant, the interests of the forum state and the plaintiff's interest in obtaining relief." Asahi Metal Indus. Co., v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987). The Asahi Court cautioned that "[t]he unique burdens placed upon who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long-arm of personal jurisdiction over national borders." Id. at 114, 107 S.Ct at 1033. 28 U.S.C. 1330(b) provides: "Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction [when one of the exceptions to foreign sovereign immunity in งง 1605-1607 applies] where service has been made under section 1608 of this title." This Court has established *409 through its discussion of the waiver and commercial activity exceptions under ง 1605 that subject matter jurisdiction exists. As long as proper service has been made (an issue not in dispute) and the requirements of due process satisfied, this Court has personal jurisdiction. See Weltover v. Republic of Argentina, 753 F.Supp. 1201, 1207 (S.D.N.Y.1991). A foreign state is entitled to the same constitutional due process protection as natural persons. Walpex v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F.Supp. 383, 390 (S.D.N.Y.1989) (citing Texas Trading, 647 F.2d at 307); Unidyne Corporation v. Aerolineas Argentinas, 640 F.Supp. 354, 360 (E.D.Va.1985). Instead of requiring "minimum contacts" with a state, the analysis of minimum contacts with a foreign sovereign is nationwide. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490, 103 S.Ct. 1962, 1969, 76 L.Ed.2d 81 (1983); Texas Trading, 647 F.2d at 314; Ruiz v. Transportes Aereos Militares Ecuadorianos, 103 F.R.D. 458, 459-460 (1984). Furthermore, statutory personal jurisdiction for a foreign state is not limited to specific jurisdiction but general jurisdiction as well. See Walpex, 712 F.Supp. at 390. b. Analysis A court has specific jurisdiction over a defendant when that defendant has "purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that `arise out of or relate to' those activities.'" Burger King Corp., 471 U.S. at 472, 105 S.Ct. at 2182, 85 L.Ed.2d 528. The Court finds that SABIC is subject to specific jurisdiction based on its contacts in this country that are related to the activities upon which this litigation is based. SABIC sent representatives to the U.S. Board meetings of KEMYA and YANPET where the alleged failure to disclose the overcharges occurred. (Sher Aff. ถ 13). By SABIC's instructions, some of the payments from KEMYA and YANPET to SABIC under the SABIC-KEMYA sublicense passed through United States banks. Also, SABIC's payments to UCC, an American Corporation, under the Unipol Agreement took place in New York (Sher Aff., ถถ 5-6). As Exxon argues, evidence of payments by SABIC to UCC is related to the claims here because the alleged overcharges result from the differential between KEMYA and YANPET's payments to SABIC and SABIC's payments to the UCC. Further, Exxon alleges in the First Amended Complaint that some of the discussions between SABIC, Exxon, Mobil, ECAI and/or Mobil Yanbu before the Joint Venture Agreements took place in the U.S. For personal jurisdiction to comport with "fair play and substantial justice," it must be reasonable to require the defendant to defend the suit in the forum state. See World-Wide Volkswagen, Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct at 564. To determine reasonableness, a court considers the following factors: the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering substantive social policies. Id. Only in "rare cases [do the] `minimum requirements inherent in the concept of `fair play and substantial justice' ... defeat the reasonableness of jurisdiction even [though] the defendant has purposefully engaged in forum activities.'" Asahi Metal Indust. Co., Ltd. v. Superior Court of Cal., Solano County, 480 U.S. at 116, 107 S.Ct at 1034 (quoting Burger King, 471 U.S. at 477-478, 105 S.Ct at 2184-2185.). *410 Not only did SABIC engage in deliberate activities in the United States related to the claims here, but SABIC also purposefully availed itself of the protection of the U.S. laws by filing the NJ-I and Delaware actions. Consequently, SABIC could reasonably anticipate being hauled into Court, especially since it was SABIC who originally hauled Exxon into this district court. Based upon the fact that SABIC is litigating two other lawsuits in the United States, one of which is in this forum, this Court concludes that it is not overly burdensome for SABIC to litigate this matter here. Because NJ-I and NJ-II involve claims related to an overall agreement, this Court has determined that the most efficient and convenient resolution of this matter would be to keep NJ-II in this forum and consolidate it with the NJ-I action (as further explained in this opinion). For these reasons, this Court finds that the personal jurisdiction of the matter comports with "fair play and substantial justice." From allegations in the First Amended Complaint ("FAC"), this Court opines that further jurisdictional discovery may uncover evidence of SABIC's "continuous and systematic" contacts with the U.S. to support general jurisdiction. (FAC ถ 13.) However, this Court finds that further discovery on this ground is unnecessary because of this Court's determination that personal jurisdiction exists through SABIC's consent to personal jurisdiction and because of this Court's specific jurisdiction over this matter. C. Venue SABIC also urges that Plaintiffs' complaint be dismissed for improper venue. 28 U.S.C. ง 1391(f), which governs venue in actions against foreign states, provides: A civil action against a foreign state as defined in ง 1603(a) of this title may be broughtโ€” (1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; (2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under ง 1605(b) of this title; (3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in ง 1603(b); or (4) in the [U.S.] District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof. SABIC argues that venue is improper in New Jersey because no events relating to plaintiffs' claims occurred here; there is no vessel or cargo here, and SABIC is neither licensed to conduct, nor does it conduct any business in New Jersey. SABIC argues that the only proper venue is the District of Columbia under ง 1391(f)(4) because a transfer to cure improper venue may be made only "to any district or division in which [the case] could have been brought." 28 U.S.C. ง 1406(a). Exxon retorts that venue is proper because SABIC is doing business in New Jersey. As quoted above, subsection (3) of 28 U.S.C. ง 1391(f) states that venue is proper if the foreign state is "in any judicial district in which the agency or instrumentality is licensed to do business or is doing business ..." (emphasis added.) SABIC's 1999 Annual Report demonstrates that it has a facility in Wayne, New Jersey, through which it presumably distributes goods. (FAC, ถถ 13, 15; see Sher. Aff., ถ 7, Ex. A). According to the FAC, SABIC has regularly sent its employees to *411 technology exchange meetings at UCC's Bound Brook, New Jersey facility and has frequently communicated with UCC personnel there. (FAC, ถ 15) SABIC has also contracted with New Jersey corporations, including Exxon for various projects (Id., ถถ 1, 13). Exxon also argues that SABIC waived its right to object to venue when it filed the NJ-I action in this Court in 1998. Harris Corp. v. Nat'l Iranian Radio & Television, 691 F.2d 1344, 1349 (11th Cir. 1982); see also H.R.Rep. No. 94-1487, at 32 (1976) reprinted in 1976 U.S.C.C.A.N. 6604, 6631. SABIC reminds us that "doing business" has been defined in this district as "`engaging in transactions there to such an extent and of such a nature that the state in which the district is located could require the corporation to qualify to `do business' there'". Vivadent (USA), Inc. v. Darby Dental Supply Co., Inc., 655 F.Supp. 1359, 1362 (D.N.J.1987) (quoting Johnson Creative Arts v. Wool Masters, 743 F.2d 947, 954 (1st Cir.1984)). SABIC argues that its activities in New Jersey are not of the extent to which New Jersey would require it to qualify to "do business" here. First, it should be noted that the Vivadent and Johnson consider "doing business" as applied in section 1391(c), which relates to foreign corporations rather than a foreign state as defined under the FSIA. Second, it should be recognized that a new section 1391(c) was adopted in 1988 which changed the requirement to "any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C.A. ง 1391(c), as amended by Act of Nov. 19, 1988, Pub.L. 100-702, ง 1013, 102 Stat. 4624, 4669. And, this Court does not agree with the test proposed by SABIC of "doing business" for reasons well-articulated by Wright, Miller and Cooper: The licensing standard that the First Circuit chose ... has literally nothing to do with place of suit or protection against an inconvenient forum. The rules on when a state may require a foreign corporation to qualify if it wishes to do business there are derived from the Commerce Clause. One of the consequences of the licensing standard the First Circuit has adopted is that a corporation will never be found to be `doing business' for purposes of ง 1391(c) it is doing a wholly interstate business within the state. This will prevent ง 1391(c) from being used in many cases involving extensive activity by a corporation within the district. 15 Federal Practice and Procedure, ง 3811 at 121 (footnotes omitted). This Court finds that the business activity described by Exxon is sufficient to meet the "doing business" requirement under ง 1391(f). Additionally, because SABIC chose to litigate NJ-I here, the "underlying venue principles of fairness and convenience" are served by retaining venue in the matter. Eason v. Linden Avionics, Inc., 706 F.Supp. 311, 327 (D.N.J.1989). Venue is proper in this district; this Court has jurisdiction over SABIC. SABIC's motions to dismiss based on a lack of subject matter jurisdiction, personal jurisdiction and improper venue are denied. Exxon's separate motion for discovery to establish the jurisdictional issues has been rendered moot. D. Abstention SABIC next argues that under the abstention doctrine to avoid concurrent litigation, this Court should abstain from hearing the NJ-II action because it is allegedly duplicative and wastes judicial resources. Some background is necessary: SABIC filed the NJ-I action alleging patent misappropriation *412 in this Court in 1998. In July 2000, it filed a lawsuit in Delaware state court involving the same parties, but seeking declaratory relief that the royalty charges to Yanbu and ECAI were proper under the Joint Venture Agreements. Exxon filed the NJ-II action in August 2000, only a few weeks after the Delaware Action, claiming that the royalty charges violated the Joint Venture Agreements by allegedly overcharging Yanbu and ECAI millions of dollars. SABIC's premise for its abstention argument is that these are all different, unrelated lawsuits, and that abstention is desirable to allow the Delaware Action to proceed. However, this Court has already found that the claims and defenses in the NJ-I, II and Delaware actions are all part of the same overall agreement, such that they should be heard together. Nevertheless, SABIC wants this Court to abstain in favor of allowing the Delaware action to proceed for reasons of alleged "sound judicial administration." For the reasons that follow, this Court will not abstain. 1. Colorado River Abstention In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Supreme Court held that abstention is justified only when "exceptional" circumstances support a federal district court's decision to abstain out of deference to parallel state-court litigation. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. Colorado River and its progeny emphasize that the mere duplicativeness of parallel state and federal litigation is insufficient to justify abstention on the part of a federal district court. "`[Generally] ... the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction.'" Id. at 817, 96 S.Ct. 1236 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762, 767 (1910)). Rather, "the task is to ascertain whether there exist `exceptional' circumstances, the `clearest of justifications,' that can suffice under Colorado River to justify the surrender of that jurisdiction." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 25-26, 103 S.Ct. 927, 942, 74 L.Ed.2d 765 (1983). Colorado River identified four factors a federal court should consider when determining whether to abstain from jurisdiction: (1) whether one court first obtained in rem (or quasi in rem) jurisdiction over property involved in that litigation; (2) "inconvenience of the federal forum"; (3) "desirability of avoiding piecemeal litigation"; and (4) "the order in which jurisdiction is obtained by the concurrent forums." Colorado River, 424 U.S. at 818-819, 96 S.Ct. at 1247. Moses Cone added two additional factors to consider: (1) whether federal or state law applies; and (2) adequacy of state court proceeding. Moses Cone, 460 U.S at 23-27, 103 S.Ct. at 941-942. In considering these factors: "the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly case from case, depending on the particular setting of the case." Id. at 16, 103 S.Ct. 927. There is no dispute that this matter parallels the action filed in Delaware. Generally, pending actions in state and federal court are "parallel" when the cases involve "the same parties and claims." Ryan v. Johnson, 115 F.3d 193, 196 (3d Cir.1997). Here the NJ-II and Delaware actions involve the same parties (Yanbu and ECAI), and involve identical claimsโ€” *413 adjudication of whether SABIC has overcharged Yanbu and ECAI in their royalty payments, in violation of Art. 6.3 of the respective Joint Venture Agreements and whether SABIC has properly charged KEMYA and YANPET under each of their Unipol sublicenses for the use of Unipolฎ process. Although NJ-II and the Delaware action are parallel, the Colorado River factors discussed below require this Court not to abstain. a. Jurisdiction over Property Neither of the actions involves in rem or quasi in rem jurisdiction over property; this factor is inapplicable. Allied Nut and Bolt, Inc., v. NSS Indus., 920 F.Supp. 626, 631 (E.D.Pa.1996). b. Inconvenience of the Forum SABIC points out that Yanbu is a Delaware corporation and maintains its principal place of business in Wilmington, Delaware. Also, ECAI is a Delaware corporation, with its principal place of business in Texas. According to SABIC, neither Yanbu or ECAI is inconvenienced by the need to litigate in Delaware. Indeed, Delaware was the only forum where SABIC could sue both of these parties, because neither was amenable to suit in New Jersey. Also, Yanbu and ECAI must respond by filing a compulsory counterclaim in Delaware. See Del. Sup.Ct. R. Civ. P. 13 ("[a] pleading shall state as a compulsory counterclaim any claim which at the time of ... the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim ..."). Thus, the case is properly in Delaware, says SABIC. Exxon counters that the New Jersey forum is more convenient than any other forum, including Delaware, because SABIC initiated the NJ-I action here first. Also, SABIC has no connection to Delaware, Exxon is incorporated in New Jersey, and no relevant events took place in Delaware. Further, no witnesses or evidence are found in Delaware. This Court finds that the New Jersey forum is not inconvenient for the parties involved and that this factor weighs in favor of this Court not abstaining. c. Desirability of Avoiding Piecemeal Litigation SABIC claims that the desire to avoid piecemeal litigation here warrants abstention. According to SABIC, if both the New Jersey and Delaware actions proceed to litigate the same issues between the same parties, there will be needless and wasteful duplication of efforts, and possibly inconsistent rulings: abstention by staying or dismissing the second filed "reactive" suit is appropriate. "[I]t is evident that the `avoidance of piecemeal litigation' factor is met ... only when there is evidence of a strong federal policy that all claims should be tried in state courts." Ryan, 115 F.3d at 197-8; see also, Colorado River, 424 U.S. at 819-20, 96 S.Ct. at 1247-1248. (factor was met with evidence of clear federal policy that recognizes the availability of comprehensive state systems for adjudication of water rights); Moses Cone, 460 U.S. at 19-20, 103 S.Ct at 939 (factor not met because Federal Arbitration Act did not have clear policy against piecemeal litigation). This Court finds no clear federal policy here that would give rise to abstention. "The presence of garden-variety state law issues has not, in this circuit, been considered sufficient evidence of congressional policy to consolidate multiple lawsuits for unified resolution in the state courts." Ryan, 115 F.3d at 198. Moreover, because there is another closely-related matter being litigated in this forum (NJ-I), *414 this Court finds that greater judicial economy is served by adjudicating these cases in this forum rather than in Delaware. This Court finds that this factor does not weigh in favor of abstention. SABIC further argues that circumstances show there is an overriding federal policy to limit piecemeal litigation against foreign states under the FSIA. As discussed, this Court has found that SABIC is not entitled to sovereign immunity under the FSIA. Moreover, even if the FSIA was enacted to protect foreign states like SABIC, there is no indication that the statute demonstrates a preference for state adjudication of claims against foreign states. There are no "exceptional circumstances" favoring abstention with regard to this factor. d. Order in Which State and Federal Courts Obtained Jurisdiction This Court first obtained jurisdiction through SABIC's filing of the NJ-I action in 1998. The Delaware action was filed on July 24, 2000. Pre-trial discovery has begun. The NJ II action was filed in this Court by Exxon on August 3, 2000.[15] Discovery has not yet taken place. SABIC argues that the filing of the Delaware action before the filing of the matter here gives this Court reason to abstain. SABIC's argument is rejected because the NJ-I action was filed before the Delaware action. This Court finds that this factor weighs against abstention. e. Source of Law that Governs The law of Saudi Arabia applies to all of the agreements. (See Compl., ถ 22). This factor is neutral as to whether the matter should be litigated in New Jersey or in Delaware. See Allied Nut & Bolt, 920 F.Supp. at 632. f. Adequacy of State Court Proceedings All of the claims, except Exxon's third-party beneficiary claim are in the Delaware action. Delaware Rule of Civil Procedure 13 requires ECAI and Yanbu to plead all compulsory counterclaims in the Delaware action. SABIC says that the Delaware action is adequate to protect the rights of all parties and to provide complete relief. See Allied Nut and Bolt, 920 F.Supp. at 632. This Court agrees that the state proceedings are adequate. 2. Conclusion However, when weighing all of the Colorado River factors, this Court will not abstain because it does not find "exceptional circumstances" that would "justify the surrender" of federal jurisdiction. Moses Cone, 460 U.S. at 25-26, 103 S.Ct. at 942. Rather, SABIC essentially argues for this Court's abstention in this case because there are parallel state proceedings. As described, the mere existence of parallel state proceedings does not justify abstention under Colorado River. E. Third-party Beneficiary Claims Exxon asserts third-party beneficiary claims on behalf of ECAI, for breach of the Joint Venture Agreement from the alleged royalty overcharges. Exxon claims to be an "intended third-party beneficiary" of these Joint Venture Agreements. (See Compl., ถ 28). SABIC argues that a parent corporation cannot, as a matter of law, assert third-party beneficiary *415 status arising solely out of a contract between its subsidiary and another person. A third-party cannot sue under a contract to which it is not a party unless it establishes that the contract was directly " `made for the benefit of [that] party within the intent and contemplation of the contracting parties.'" Grant v. Coca-Cola Bottling Co., 780 F.Supp. 246, 248-49 (D.N.J.1991)(quoting First Nat'l State Bank of New Jersey v. Commonwealth Fed'l Sav. and Loan Assoc., 610 F.2d 164, 170 (3d Cir.1979)). Without such contractual intent and direct benefit, the third-party is merely an incidental beneficiary lacking standing to sue. Broadway Maint. Corp. v. Rutgers, 90 N.J. 253, 259, 447 A.2d 906 (1982). Also, a parent corporation is prohibited from claiming third-party beneficiary status under a contract entered into by its subsidiary. Indeed, such claims are routinely dismissed because the purported "benefit" the parent corporation derives is incidental. See Dow Corning Corp. v. Chem. Design, Inc., 3 F.Supp.2d 361, 365-66 (W.D.N.Y.1998). SABIC urges that Exxon's claim of third-party beneficiary status be dismissed. Any alleged overcharge of royalties under the Unipol sublicenses would go to the KEMYA and YANPET, not Exxon. Exxon responds that contrary to SABIC's assertion, it has never alleged that its status as a third-party beneficiary depends, in whole or in part, on its status as the ultimate parent company of either ECAI or Yanbu. Exxon has alleged that it is a third-party beneficiary of the Joint Venture Agreements; that is sufficient at this stage in the litigation. See Fed. R.Civ.P. 12(b)(6), 8(a). There is no heightened pleading standard for third-party beneficiary claims. Exxon says that the allegation in ถ 28 of the first amended complaint suffices. This Court agrees. In addition, Exxon (through its predecessors Exxon and Mobil) was deeply involved in the KEMYA and YANPET ventures since before their inception. While ECAI and Yanbu actually signed the Joint Venture Agreements, Exxon and Mobil representatives were involved in the preformation negotiations. Exxon and Mobil signed various agreements annexed to the Joint Venture Agreements, including the Exxon-KEMYA Service Agreement. The Court finds that Exxon may maintain its third-party beneficiary claims. F. Jury Demand is Stricken Finally, SABIC argues that if any portion of plaintiffs' complaint survives, the jury demand is barred by 28 U.S.C. ง 1330, and should be stricken. If jurisdiction is found under Section 1330, the Court's jurisdiction is limited solely to non-jury civil actions. 28 U.S.C. ง 1330(a). As noted earlier, SABIC is a foreign state, defined by 28 U.S.C. ง 1603(a) and as pled by plaintiffs. (Compl., ถ 5). Whenever a plaintiff asserts jurisdiction under Section 1330 and simultaneously makes a demand for jury trial, courts uniformly grant motions to strike jury demands. Universal Consol. Cos., Inc. v. Bank of China, 35 F.3d 243, 245 (6th Cir. 1994). The jury demand is stricken because of Section 1330 jurisdiction. 5. MOTION TO CONSOLIDATE NJ-I AND NJ-II Exxon moves to consolidate the NJ-I and NJ-II actions. This Court has already determined that alleged breaches by SABIC and Exxon were based on an "overall agreement" that links all three actions (NJ-I, NJ-II, Delaware Action). Fed.R.Civ.P. 42 provides: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders *416 concerning proceedings therein as may tend to avoid unnecessary costs or delay. Courts in this district have held that Rule 42 does not "demand that actions be identical before they may be consolidated." In re Cendant Corp. Litig., 182 F.R.D. 476, 478 (D.N.J.1998). Rule 42 only requires a "common question of law or fact." Id.; see also 8 Moore's Federal Practice, ง 42.10 at 42-8 (Matthew Bender, 3d. ed.1997) ("[t]he articulated standard for consolidating two or more cases is simply that they involve a `common question of law or fact.' ") "Common questions of law and fact do not have to predominate." Id. at ง 42-10. The Court enjoys broad discretion in determining whether to consolidate under Rule 42. See e.g., Blake v. Farrell Lines, Inc., 417 F.2d 264, 266 (3d Cir.1969) (affirming consolidation even where overlapping facts resulted in jury trial as to issues of equity). In exercising this discretion, a court should weigh "the interests of judicial economy against the potential for new delays, expense, confusion or prejudice." Easton & Co. v. Mutual Benefit Life Ins. Co., 1992 WL 448794, at *4 (D.N.J. Nov.4, 1992). This Court exercises its discretion and consolidates the NJ I and II actions. This Court has already held that the NJ-I and II actions arise from the overall Joint Venture Agreement that included the Service Agreement and the Unipol Agreement, the subject of the NJ-I and NJ-II actions respectively. Common questions of law and fact predominate. The interests of judicial economy and avoidance of potential confusion and prejudice favor consolidation. CONCLUSION With respect to the NJ-I motions, the motion for clarification or reformation of the March 10 Stipulation and the motion for partial judgment on the pleadings to strike Exxon's unclean hands and setoff defenses are denied. Exxon's cross-motion to dismiss pursuant to Rule 19 is denied; SABIC is not required to join either ECAI or KEMYA because they are not indispensable parties. With respect to the NJ-II motions, SABIC is not entitled to immunity under FSIA because of its implied waiver to immunity. In addition, the "commercial activity" exception to immunity applies because SABIC's activities had a "direct effect" in the United States pursuant to 28 U.S.C. 1605(a)(2). This Court has determined that personal jurisdiction exists because of SABIC's consent to personal jurisdiction and its minimum contacts with this jurisdiction. There is sufficient evidence that SABIC was "doing business" in New Jersey and therefore, venue is proper in this District. Abstention is denied under Colorado River because the balance of factors does not meet the exceptional circumstances standard to defeat federal jurisdiction. SABIC's motion to dismiss Exxon's claim of third-party beneficiary status is denied. The jury demand is stricken because SABIC is a foreign sovereign. Finally, the NJ-I and II actions are consolidated. ORDER This dispute concerns the alleged misuse of a patent and alleged overcharges of royalties to a partnership. In Civil Action No. 98-4897(WHW) ("NJ-I"), Plaintiff Saudi Basic Industries ("SABIC") moves to clarify or reform a March 10, 2000 Stipulation and moves pursuant to Rule 12(c) for partial judgment on the pleadings to strike Defendant ExxonMobil's ("Exxon") defenses of unclean hands and set-off. Exxon cross-moves to dismiss the complaint pursuant to Rule 19 for SABIC's failure to join necessary and indispensable parties. *417 In Civil Action No. 00-3841(WHW) ("NJ-II"), Defendant SABIC moves to dismiss the complaint based on immunity under the Foreign Sovereign Immunities Act, as well as on other jurisdictional grounds. Also, Defendant SABIC moves to dismiss ExxonMobil as a party plaintiff because of lack of standing to assert third-party beneficiary claims and moves to strike the jury demand because of this Court's jurisdiction under 28 U.S.C. ง 1330. Plaintiffs Exxon, Exxon Chemical Arabia, Inc. and Mobil Yanbu Petrochemical Company, Inc. move to consolidate the NJ-I and NJ-II actions into a single lawsuit. For the reasons given in the accompanying Opinion, and for good cause shown, It is on this __ day of April, 2002: ORDERED that the motion for clarification or reformation of the March 10 Stipulation is denied; IT IS FURTHER ORDERED that the motion for partial judgment on the pleadings pursuant to Rule 12(c) is also denied; IT IS FURTHER ORDERED that Exxon's cross-motion to dismiss pursuant to Rule 19 is denied; IT IS FURTHER ORDERED that SABIC's motion to dismiss for lack of jurisdiction and venue is denied; IT IS FURTHER ORDERED that SABIC's motion to dismiss Exxon's claim of thirdparty beneficiary status is denied; IT IS FURTHER ORDERED that the jury demand be stricken; IT IS FURTHER ORDERED that the Exxon's motion to consolidate is granted. NOTES [1] The December 22, 1980 Service Agreement is an annex to the Joint Venture Agreement. Clause 10.1 of the Service Agreement provides: "The Agreement shall continue its force as long as the Joint Venture Agreement (to which this Agreement is Annex VI) continues in full force and effect, or until a termination pursuant to Clause 11.1 of this Agreement." (emphasis added) [2] See Joint Venture Agreement Between Saudi Basic Industries Corporation and Exxon Chemical Arabia, Inc., Art. 18.1, "This Joint Venture Agreement, including the Annexes hereto, when executed, constitute the whole agreement between the Partners as to the matters herein set out and accordingly supersedes any previous agreement or correspondence between the Partners and any other related letters/agreements." (emphasis added) [3] In the March 10, 2000 Stipulation (later the April 3, 2000 Order), SABIC represented to Exxon that, "[n]either SABIC, SHARQ, Yanpet ... nor any SABIC affiliate (other than KEMYA) have used or practiced SCM-T Information. SABIC further represents that neither SABIC, SHARQ, Yanpet ... nor any other SABIC affiliate (other than KEMYA) will use or practice the SCM-T Information until the ownership rights thereto are established and the owner expressly authorizes such use...." Whether the Stipulation should have been signed as an Order of the Court is the subject of a separate motion. [4] SABIC argues that SABIC and its affiliates are third-party beneficiaries to these agreements. The question of whether SABIC and its affiliates were intended beneficiaries by the contracting parties will not be explored in this opinion. It is enough that the contracting parties had the ability to change the terms of the agreement according to their present intent and that the March Stipulation does not conflict with the terms of the Univation Formation Agreement to determine this motion. [5] The royalty overcharge claims are the subject of two other actions. One, pending before this Court, ExxonMobil Corp. v. SABIC, (00-3841), is the subject of a motion to dismiss for lack of jurisdiction. The other is pending before the Superior Court of Delaware, Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co. (Civil Action No. OOC-07-161-VAB) which Exxon seeks to dismiss. [6] See Fed.R.Civ.P. 19(a): A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction ... shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded ... (2) the person claims an interest ... and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations ... (emphasis added) [7] See Fed.R.Civ.P. 19(b): If a person described in subdivision (a)(1)-(2) ... cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, ... the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. [8] See 7 Charles Alan Wright, et. al., Federal Practice and Procedure ง 1615, at 230-31 (2d. Ed.1986) ("the corporation on whose behalf a derivative action is brought is a necessary party upon which any decision is binding."); see also Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (quote) [9] For purposes of this motion, the reader should assume that arguments regarding the addition of KEMYA as a party would also apply to arguments for adding ECAI as a party. This Court will not continue to reference both throughout this motion. [10] Courts are reluctant to grant motions to dismiss based on nonjoinder, and do so only when the material defect cannot be cured and serious prejudice or inefficiency will result. See RPR & Assoc., 921 F.Supp. at 1463, citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968). [11] See Fed.R.Civ.P. 12(h), Advisory Comm. Notes to 1966 Amendment ("It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver ... the more substantial defenses of ... failure to join an indispensable party under Rule 19 ... are expressly preserved against waiver....") [12] See Duffey v. Wheeler, 820 F.2d 1161 (11th Cir.1987) (In a derivative action brought by one of two shareholders in a close corporation, court allowed corporation to be aligned with plaintiff, reversing lower court decision that corporation be named a nominal defendant.). [13] See 28 U.S.C. ง 1603(a) and (b). ("An `agency or instrumentality of a foreign state means any entity ... (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof ...'") [14] 28 U.S.C. ง 1607 provides: "In any action brought by a foreign state ... in a court of the [U.S.] or of a state, the foreign state shall not be accorded immunity with respect to any counterclaimโ€”(a) for which a foreign state would not be entitled to immunity under section 1605 ... had such claim been brought in a separate action against a foreign state; or (b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or (c) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state." [15] SABIC neglects to mention that the overcharge issue was already being litigated in the NJ-I action when SABIC filed the Delaware action. In fact, SABIC had already agreed to a consent order that would have required it to respond to overcharge discovery. Instead of responding, SABIC filed the Delaware Action. (Exxon Br. 25, n. 25).

J-A20020-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.K. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.J.K. : : Appellant : No. 539 MDA 2017 Appeal from the Order February 27, 2017 In the Court of Common Pleas of Wyoming County Civil Division at No(s): 2014-1172 BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 26, 2017 J.J.K. (“Father”) appeals from the order entered1 on February 27, 2017, in the Court of Common Pleas of Wyoming County, which denied his 1 Father’s notice of appeal states that he “appeals to … [this Court] … from the Order entered in this matter on the 24th of February, 2017….” Notice of Appeal, filed 3/27/17. In its opinion, the trial court asserts Father’s appeal is untimely. See Trial Court Opinion, 4/7/17, at 1. It is not. “[N]o order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). The entry of an order and the specific date of entry is defined in Rule 108(b): “The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). Rule 236(b) requires that “[t]he prothonotary shall note in the docket the giving of the notice….” “Thus, pursuant to the express terms of the rules, an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (citations omitted). See also G. Ronald Darlington, et al., Pennsylvania Appellate Practice § 108:10, Volume 20 (2016-2017 ed.). “[T]his is a bright-line rule, to be interpreted strictly.” In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007). “The procedural requirements reflected in the J-A20020-17 petition for contempt and modified the parties’ child custody award. We affirm in part, vacate in part, and remand. rules serve to promote clarity, certainty and ease of determination, so that an appellate court will immediately know whether an appeal was perfected in a timely manner, thus eliminating the need for a case-by-case factual determination.” Frazier, 735 A.2d at 115 (citation omitted). The Court of Common Pleas of Wayne County’s docket entries do not comply with Rule 236(b). The order at issue was docketed on February 27, 2017. But there is no indication in the docket entries when the Prothonotary provided notice to the parties. Typed beneath the trial judge’s signature on the order on the left hand margin of the page are counsels’ names, presumably as a carbon copy. Somehow, Father received notice of the order. Our Supreme Court has cautioned, however, that the fact “that the parties may have received notice of the order does not alter the formal date of its entry and the associated commencement of the period allowed for appeal for purposes of the rules.” Id. As explained above, the appeal period in this case was never formally triggered. See Frazier; In re: L.M. It would, however, be a waste of judicial resources to remand this matter now solely for the proper filing and notation of Rule 236(b) notice. Accordingly, in the interest of judicial economy, we will regard as done what should have been done and address this appeal on the merits. See id., at 509 (addressing appeal on merits where notice of appeal was filed well after entry of the order where the docket did not show providing of notice). But we caution the Prothonotary of the Court of Common Pleas of Wayne County to comply with Rule 236(b). Otherwise, the Prothonotary is docketing orders without triggering appeal periods. And that is simply unacceptable. We direct the Honorable Russell D. Shurtleff, P.J., to provide a copy of this decision to Edward “Ned” Sandercock, Prothonotary of the Court of Common Pleas of Wayne County. In any event, assuming for the sake of argument that the order was properly entered on February 24, 2017, the date the trial court uses, Father’s notice of appeal would have been timely filed. Thirty days after February 24, 2017, was Sunday, March 26, 2017. Thus, Father’s notice of appeal would have been due on Monday, March 27, 2017. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, . . . such day shall be omitted from the computation.”) -2- J-A20020-17 We summarize the relevant factual and procedural history of this matter as follows. J.K. (“Mother”) commenced the underlying custody proceedings by filing a complaint in divorce on October 3, 2014, which included a count requesting legal and primary physical custody of the parties’ minor children, O.K., a female born in March 2004, and J.K., a male born in March 2006 (collectively, “the Children”). After several continuances, the parties appeared before the trial court for a custody conference on March 22, 2016. Following the conference, the court issued an agreed-upon custody order, awarding shared legal custody of the Children to both parties, and awarding primary physical custody to Mother. The order awarded Father partial physical custody on alternating Saturdays from 9:00 a.m. to 9:00 p.m., or from 12:00 p.m. to 9:00 p.m. if Father worked during the preceding Friday evening. In addition, during the school year, the order awarded Father partial physical custody one day per week from after school until 7:00 p.m., and every Sunday from after church until 6:00 p.m. The parties appeared for a second custody conference before the trial court on November 1, 2016. Following the conference, the trial court entered an additional order, directing that Father must provide the court with an updated medical report, as well as a safety and suitability study of his new residence. The order further directed that, once Father complied with these requirements, he and Mother could enter into a custody stipulation modifying the terms of the March 22, 2016 custody order. -3- J-A20020-17 On December 12, 2016, Mother filed a petition for special relief, in which she averred that Father failed to comply with the November 1, 2016 order, in that he had not obtained a safety and suitability study of his residence. Mother further averred that she and Father had agreed to an informal modification of the custody schedule, whereby Father’s custody periods were shortened to five hours per day, and that Father now was refusing to comply with the informal modification. In response, the trial court issued an order on December 20, 2016, suspending Father’s partial physical custody of the Children pending receipt of the safety and suitability study. On January 9, 2017, the trial court issued another order indicating it had received the safety and suitability study of Father’s residence, and directing the parties to advise the court within ten days whether they were able to arrive at a custody stipulation. On January 17, 2017, Father filed a petition for contempt, averring that Mother was preventing him from having phone contact with the Children, and from exercising his periods of partial physical custody pursuant to the March 22, 2016 order. On February 1, 2017, Father filed a petition for modification of custody order, averring the parties had failed to arrive at a custody stipulation. The parties appeared for another custody conference on February 24, 2017. Following the conference, the trial court issued the order complained of on appeal in which it denied Father’s petition for contempt and modified -4- J-A20020-17 the parties’ custody award. Specifically, the order awarded Father partial physical custody “on his off weekends” from 8:00 p.m. on Friday until the start of school on Monday, or until 5:00 p.m. on Monday if there is no school. The order further directed that Father’s periods of partial physical custody would begin at 12:00 p.m. on Saturday if Father worked during the preceding Friday evening. In addition, the order awarded Father partial physical custody each week on either Wednesday or Thursday, depending on his work schedule, from 3:00 p.m. until 7:00 p.m. Father timely filed a notice of appeal on March 27, 2017, along with a concise statement of errors complained of on appeal. Father raises three issues for our review. Given our disposition, we need only address the first issue: “Did the trial court abuse its discretion or commit an error of law where it appears from a review of the record that there is no evidence to support the court’s findings?” Father’s Brief, at 4. We address this issue pursuant to the following standard of review. In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. -5- J-A20020-17 V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted). “When a trial court orders a form of custody, the best interest of the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted). The factors to be considered by a court when awarding a form of custody are set forth at 23 Pa.C.S.A. § 5328(a)(1)-(16). A trial court must consider each of the § 5328(a) factors when awarding a form of custody. See id. Similarly, if a court modifies a form of custody, or is asked to modify a form of custody, the § 5328(a) factors must be considered.2 See id., at 406. Because custody decisions must be supported by competent evidence of record, a court may not conduct its analysis of the § 5328(a) factors absent an evidentiary hearing. See V.B., 55 A.3d at 1197. However, it is not necessary for a court to consider the § 5328(a) factors, or to conduct an evidentiary hearing, when the record reveals that the court entered the subject custody order upon agreement by both parties. See Pa.R.C.P. 1915.7 (“If an agreement for custody is reached and the parties desire a consent order to be entered, they shall note their agreement upon the record or shall submit to the court a proposed order bearing the written consent of the parties or their counsel.”) 2 A trial court need not analyze the § 5328(a) factors if it is not considering a change to the parties’ form of custody, but merely is considering “a discrete custody-related issue,” such as “a dispute over a custody-exchange location; which youth sports the children should play; or whether a parent should be required to have children’s toys, beds, or other things in his or her house.” S.W.D., 96 A.3d at 402-403 (footnote omitted). -6- J-A20020-17 Here, Father argues that the trial court erred or abused its discretion by modifying the parties’ custody schedule without conducting an evidentiary hearing. See Father’s Brief, at 8-13. Father states that no transcript of the February 24, 2017 custody conference exists. See id., at 6, 11-12. However, Father contends that his counsel informed the court that the parties had not reached an agreement as to custody, and that Father wished to be heard. See id., at 6, 14. Father avers that the court informed his counsel that it would only be available for an hour that day, and that no hearing was possible. See id. As a result, Father asserts, he “accepted the Court granting him immediate physical custody of his children rather than the alternative of not seeing the children, and waiting two (2) or three (3) months for hearing at which he could finally present testimony.” Id., at 14. He had no choice, he claims, but to accept whatever custody time was offered to him, and that his acceptance should not excuse the lack of evidentiary support for the court’s findings. See id., at 15-19. In its opinion, the trial court addressed Father’s claim as follows. This matter came before this Court for Custody Conference on February 24, 2017. After meeting in chambers and counsel for the parties indicating they had reached an agreement, this Court issued an Order on the record. At no time did counsel for [Father] object to the Court’s Order. Furthermore, at no time did counsel for [Father] request that testimony be placed on the record. [Father] then filed an untimely appeal on March 27, 2017 with the Pennsylvania Superior Court. Because counsel for [Father] never placed any objection on the record nor asked for his client to be heard following a custody conference in chambers during which custody was discussed and -7- J-A20020-17 agreed upon, this Court is unaware of the basis for [Father’s] untimely appeal. Should [Father] desire a modification of this Court’s February 24, 2017 Order, he should file the appropriate Petition with this Court. Trial Court Opinion, 4/7/17, at 1 (section headings omitted). Despite Father’s claim that no transcript of the February 24, 2017 custody conference exists, the certified record on appeal does, in fact, contain that transcript.3 We have read the transcript in its entirety. During the custody conference, the trial court and the parties reached an agreement regarding Father’s petition for contempt. Specifically, the parties agreed that Father would withdraw his petition for contempt and grant Mother possession of the marital residence in their divorce proceedings, in exchange for Mother withdrawing her Protection From Abuse (“PFA”) action against Father. See N.T., 2/24/17, at 4-6. The following discussion then took place. [By the court:] Then, we’ll move onto the custody matter. I understand we were not in agreement with the custody. First of all, the petition for contempt is being-being [sic] vacated. Is that correct? [Counsel for Father:] 3 Curiously, Father included a copy of the February 24, 2017 transcript in his reproduced record. Unlike the transcript contained in the certified record, the cover page of the transcript in Father’s reproduced record indicates that the proceeding took place on December 29, 2016. It is clear the transcript in question is the transcript of the February 24, 2017 proceeding, because the court mentions the date several times. See, e.g., Reproduced Record at 26a (“And now, this 24th day of February, 2017. . . .”) -8- J-A20020-17 Yes, that’s part of the consideration, your honor, for the withdrawal of the extension of the PFA, which means the PFA would now be dismissed. [By the court:] Very good. We’ll do a separate order, which will then cover the custody. Again, 1172 of 2014, and now this 24 th day of February, this matter came before the court for petition for contempt of a custody order. Upon motion of the moving counsel and concurrence by opposing counsel, it is ordered that said petition for contempt be and is hereby vacated. It is further ordered-and we do have a prior custody order in place. Is that correct? [Counsel for Mother:] Correct, your honor, March 22, 2016. [Counsel for Father:] Right. [By the court:] It is further ordered that this court’s custody ordered [sic] dated March 22, 2016 shall be amended as follows: . . . . *** [By the court:] Alright, we’ll leave it at 8:00 then. [Counsel for Mother], anything further? [Counsel for Mother:] In terms of the custody, your honor, no, I do not believe, based on our discussion in chambers, and then just the parties would file for a review should we need to discuss anything further? [By the court:] -9- J-A20020-17 And that is your right to do that, either party, at any time, but essentially, what has occurred here is I placed a burden, counsel, on the two of you. We need to get this divorce moving. It is-it’s a 2014 case. It’s now 2017. That’s why I’ve got a 60- day window. Either settle it or we’ll go in front of a master and let the master decide it, but we need to get it done. It’s dragging, and by this dragging, it’s unhealthy not only for the children, but for both parties so we’ll get it moving. [Counsel for Father:] Thank you. [By the court:] And we’ll note for your clients that there was not agreement between counsel and that this court has inserted its own opinion with respect to areas that weren’t in agreement. [Counsel for Father:] Thank you, judge. [Counsel for Mother:] Thank you, your honor. Id., at 6-11 (emphasis added). The transcript reveals that the parties did not reach an agreement regarding custody during the February 24, 2017 custody conference. Because the parties did not reach an agreement, the trial court was not permitted to modify the parties’ custody schedule absent an analysis of the § 5328(a) factors. See S.W.D., 96 A.3d at 406. Further, the court could not engage in its analysis of the § 5328(a) factors absent an evidentiary hearing. See V.B., 55 A.3d at 1197. Without a hearing, the court’s findings - 10 - J-A20020-17 as to the § 5328(a) factors, and its conclusion as to what custody arrangement would serve the best interests of the Children, would be mere conjecture. Accordingly, we agree with Father that the court abused its discretion by modifying the parties’ custody schedule in its February 27, 2017 order. For the foregoing reasons, we vacate the portion of the trial court’s order modifying the parties’ custody schedule, and we remand this matter for the court to either conduct an evidentiary hearing, or to enter a custody order that has been agreed upon by both parties. The portion of the order concerning the contempt petition is affirmed; it was not challenged in this appeal. Order affirmed in part and vacated in part. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. President Judge Emeritus Ford Elliott joins the memorandum. President Judge Gantman concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/26/2017 - 11 - 

977 S.W.2d 137 (1998) Leon Jerome JOHNSON, Appellant, v. The STATE of Texas, Appellee. No. 872-97. Court of Criminal Appeals of Texas, En Banc. September 30, 1998. Eleanor Barnes, Houston, for appellant. Jim Vollers, Special Prosecutor, Matthew Paul, State's Attorney, Austin, for State. Before the court en banc. OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. A jury convicted Appellant of attempted capital murder and assessed punishment at ninety-nine years of confinement and a $10,000 fine. On appeal, Appellant contended the trial court erred in denying his motion for a jury shuffle.[1] The State asserted that Appellant's attorney had previously received a shuffle and that counsel's acquiescence to that shuffle waived any claim about its propriety. The Court of Appeals reversed the judgment and remanded the case for a new trial, holding that the trial court erred in denying the requested shuffle. Johnson v. State, 944 S.W.2d 739 (Tex.App.—Corpus Christi 1997). We granted the State's petition for discretionary review, which raises nine grounds claiming error in the Court of Appeals' decision. The following occurred at trial: PROSECUTOR: Your Honor, in all due respect, we need on the record that the defense counsel has asked for a shuffle prior to the jury being seated, because she has a right to have them seated. THE COURT: I know. She said she doesn't want them seated that way. PROSECUTOR: I understand. After the venire was seated, sworn, and qualified, the following took place at the bench: DEFENSE COUNSEL: Your Honor, I'm asking that the jury be shuffled again. We only have one—the Defendant is black. We only have one black venireman who is called for jury duty. He is seated in the very back and it will be impossible for him to even be considered for—you know, to *138 get on this jury panel. I'm asking that either we reshuffle the jury or that we dismiss the jury array and call a new array of prospective jurors. THE COURT: All right. The panel was shuffled at the request of the Defendant and the Defendant is now asking for a second shuffle? DEFENSE COUNSEL: Yes, Your Honor. THE COURT: Which will be denied. DEFENSE COUNSEL: Your Honor, would you please note my exception for the record because I was asked if I wanted the jury members to come in in the order that they had already been placed on the list and I said I was going to be asking for a shuffle, and the Judge ... I mean at the time that they came in you only qualified the jury. It was not a situation where we were getting ready to actually voir dire the jury or that they had actually been seated. THE COURT: Mr. Bell [prosecutor]? PROSECUTOR: Yes, Your Honor. THE COURT: Go ahead. I want him to hear this. DEFENSE COUNSEL: Okay. Initially I was asked did I want the jury panel to come in in the order they had already been written down in, the order they had been selected, or did I want them to come in in another manner. I said it didn't matter because I was going to ask for a shuffle in that the jury was only being qualified at that particular time. And what I'm saying is there is only one black venireman who was called for jury duty. He is sitting in the very back. It would be impossible for him to be considered. You know, even if we do all our strikes, he would probably, in all probability, not be selected for the jury, and I am saying that I'm asking for another shuffle, or in the alternative, to dismiss this array totally and bring another array of jurors. PROSECUTOR: First response is that that is not what counsel said in the first instance. What counsel said is—counsel was asked do you want the jury to come in and be seated before you request a shuffle. Counsel said no, that's not necessary, because irrespective of how they look when they're seated, I'm going to ask for a shuffle. DEFENSE COUNSEL: I said I'm going to ask, right, I'm going to ask for a shuffle. PROSECUTOR: Let me finish. So counsel then asked for a shuffle. She is only entitled to one shuffle. The Defendant is entitled to one shuffle. That shuffle's been made. She's not entitled to keep shuffling until she gets the people where she wants them. The State would object to any reshuffling. That shuffle has been done. The only question before this Court, and I think the record is clear, is that counsel waived the right to have the jury brought in and seated before she requested a shuffle and specifically stated on the record that's not necessary because whatever they look like, I'm going to request a shuffle. She's had her shuffle and she's not entitled to two shuffles. DEFENSE COUNSEL: Well, then, Your Honor, I'm also asking that this jury array be dismissed and that a new one be brought. My client is black. There was only one black person called for—you know, selected or who was sent notices to appear for jury duty, and he would be at a disadvantage at this point, and I'm asking that the whole array be dismissed and another one be called. THE COURT: Motion denied. The Court of Appeals set out general propositions of law concerning jury shuffles. A shuffle cannot take place until it is determined precisely which persons will constitute the jury panel for the case. Johnson, 944 S.W.2d at 741, citing Yanez v. State, 677 S.W.2d 62, 68 (Tex.Cr.App.1984). The parties have the right to view the entire venire in proper sequence before having the names shuffled, and a defendant cannot be deemed to have exercised his right to a jury shuffle without having had the opportunity to present the motion for a shuffle to the judge. Johnson, 944 S.W.2d at 741, citing Davis v. State, 782 S.W.2d 211, 214 (Tex.Cr.App.1989). Jury shuffles are to be performed in the courtroom. Johnson, 944 S.W.2d at 741, citing Stark v. State, 657 S.W.2d 115, 116 (Tex. Cr.App.1983). A defendant has a right to a *139 "reshuffle" if the original shuffle was caused by someone other than the State, such as the trial judge or court personnel. Johnson, 944 S.W.2d at 741, citing Wilkerson v. State, 681 S.W.2d 29, 30 (Tex.Cr.App.1984). A shuffle conducted by a court clerk prior to the seating of the panel does not satisfy the defendant's right to a shuffle. Johnson, 944 S.W.2d at 741, citing Stark, 657 S.W.2d at 116. When the trial court grants a defendant's written motion requesting that a shuffle be performed in a particular manner, and the defendant does not object to that procedure, he may not complain on appeal about the denial of his right to a jury shuffle. Johnson, 944 S.W.2d at 741, citing Valdez v. State, 472 S.W.2d 754, 757 (Tex.Cr.App. 1971). The Court of Appeals then reviewed the facts surrounding the shuffling of the venire and reached the following conclusions. Appellant did not file a written pretrial motion asking that the jury be shuffled prior to the seating or qualification of the jury. Counsel was asked whether she wanted the jury to enter the courtroom in the order in which their names appeared on the list. Counsel expressed indifference because she planned to move for a shuffle after qualification. Counsel did not waive Appellant's right to view the panel seated before requesting a shuffle, as the State contended. Instead, she attempted to preserve that right. Some reordering of the jury occurred, by Appellant's acquiescence, but a bona fide shuffle cannot occur until it is determined which persons will constitute the jury panel. The reordering, or shuffling, that occurred preceded qualification. It is not clear whether that reordering was done in the courtroom. The trial court erred in denying the motion for a reshuffle of the jury, because the initial shuffle was legally incompetent. Johnson, 944 S.W.2d at 742. The State argues that the Court of Appeals erred in holding that the initial reordering of the jury was legally incompetent. The State also contends that the court erred in holding that Appellant did not forfeit or waive any complaint about the procedural irregularities of that initial reordering. Appellant counters that the initial reordering was not done at the request of the State or defense counsel, so it was a sua sponte shuffle, which does not prevent a defendant from requesting a subsequent shuffle. Appellant asserts he did not invite error and that he only asked the trial court for one shuffle, which was denied. We agree with the State. Complaints about jury shuffle error must be preserved. Sanders v. State, 942 S.W.2d 3, 5 (Tex.Cr.App.1997); Powell v. State, 897 S.W.2d 307, 310 (Tex.Cr.App.1994). To prevail on appeal, a defendant must raise a specific objection about the jury shuffle at trial. James v. State, 772 S.W.2d 84, 96 (Tex.Cr.App.1989). If Art. 35.11 has not been followed, and a defendant requested the improper procedure, appellate review of the impropriety is precluded. Valdez, 472 S.W.2d at 757. Although in Valdez the appellant filed a written motion requesting the jury shuffle be done in a manner he later complained of on appeal, our holding that error was not preserved did not depend on the fact that the request was made in a written motion, as the Court of Appeals seems to have concluded in its analysis in the present case. Our holding was based on the fact that it was done at Valdez' request, regardless of whether the request was in writing. Moreover, nothing in this Court's opinions cited by the Court of Appeals suggests that a jury shuffle done improperly at a defendant's behest is void, contrary to the Court of Appeals' apparent conclusion in Appellant's case. The trial judge was informed that Appellant asked for a shuffle before the venire was seated. Defense counsel asked that the jury be shuffled again, because counsel was unhappy with the result of the first reordering. The judge asked if the panel had been shuffled at Appellant's request and if Appellant was asking for a second shuffle. Appellant's attorney answered affirmatively. In the discussion that followed, Appellant's attorney never argued that there were procedural irregularities in the jury shuffle or reordering. Defense counsel explained what happened and stated that the panel was only coming into the courtroom to be qualified and that the panel had not yet been seated at that time. The prosecuting attorney informed *140 the judge that defense counsel said that regardless of the seating order, counsel was going to ask for a shuffle. Appellant's attorney did not disagree with this observation and affirmed that she said she was going to ask for a shuffle. The prosecutor summarized that counsel asked for a shuffle and that shuffle was made, so Appellant was not entitled to another shuffle. Defense counsel's response addressed the result of that shuffle. Appellant's counsel did not object or argue to the trial court that the initial reordering of the jury was not a proper shuffle, nor did defense counsel argue that she was not given the opportunity to see the venire before asking for a shuffle. Appellant's complaints focused on the result of the first shuffle—not on the procedures employed. This case is somewhat similar to James, 772 S.W.2d at 94-6. In James, a number of veniremembers had been qualified, and more veniremembers were added to the panel. The judge asked if either party desired a shuffle. The State asked for a shuffle, and the defendant asked that if there was to be a shuffle, the previously qualified veniremembers should be included. The State then withdrew its request for a full shuffle, but the State announced it had no objection to a shuffle of the added veniremembers only, if that was what the defendant wanted. The judge denied the defendant's request for a full shuffle and ordered a partial shuffle, excluding the previously qualified veniremembers. On appeal, the appellant complained that this shuffle was improper because it was not done at the request of either party. We determined that neither party had a pending request for a partial shuffle when the trial judge ordered the shuffle. Id. at 96. However, we stated that this was ascertained only after a careful reading of the record. Ibid. We observed that the trial judge could have reasonably believed from the bench conference that either the appellant or the State, or both, wanted a partial shuffle. Ibid. We concluded that, absent a specific objection, the trial judge best effectuated what he could have reasonably believed to be the appellant's desire for some sort of shuffle, without wasting the jury qualification that had already been done. Ibid. Consequently, the point of error was overruled. Ibid. In the present case, given defense counsel's affirmative response to the trial court's inquiry about whether the panel had already been shuffled at Appellant's request and whether Appellant was asking for another shuffle, Appellant's failure to raise any objections to the reordering or shuffle that was done previously, and Appellant's reason for a second shuffle, the trial judge could have reasonably concluded that Appellant was not entitled to the shuffle he was seeking. The trial court did not err in denying Appellant's request for a shuffle, and the Court of Appeals erred in holding otherwise. Sanders, 942 S.W.2d 3; Powell; 897 S.W.2d 307; James; 772 S.W.2d 84; Valdez; 472 S.W.2d 754. The judgment of the Court of Appeals is reversed, and this case is remanded to that court to address Appellant's remaining points of error. NOTES [1] Article 35.11, V.A.C.C.P.

54 Mich. App. 456 (1974) 221 N.W.2d 187 PEOPLE v. GOINS Docket No. 18269. Michigan Court of Appeals. Decided July 24, 1974. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William C. Buhl, Prosecuting Attorney, for the people. Francis Zebot, Assistant State Appellate Defender, for defendant. Before: ALLEN, P.J., and T.M. BURNS and R.L. SMITH,[*] JJ. T.M. BURNS, J. An understanding of the chronology of events in the instant case is necessary for a proper consideration of defendant's questions on appeal. On May 17, 1971, defendant Eugene Goins was arraigned on a two-count information charging him with sale of marijuana, MCLA 335.152; MSA 18.1122, and carrying a concealed weapon without a license, MCLA 750.227; MSA 28.424. He stood mute, and the court entered a plea of not guilty on his behalf. *458 On July 1, 1971, the information was amended to add a third count, possession of marijuana, MCLA 335.153; MSA 18.1123. On July 6, 1971, defendant's plea of guilty was accepted on counts II and III of the amended information. He pled not guilty to count I (sale), and that count was subsequently quashed. On August 30, 1971, defendant was sentenced to 2-1/2 to 5 years on count II (carrying a concealed weapon and 2-1/2 to 10 years on count III (possession). On April 26, 1972, the trial court vacated defendant's conviction and sentence for possession of marijuana (count III) pursuant to People v Sinclair, 387 Mich 91; 194 NW2d 878 (1972). On May 5, 1972, the trial court vacated defendant's plea-based conviction and sentence for carrying a concealed weapon (count II) on the basis of a violation of People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). At the same time the court granted the prosecutor's motion to reinstate count I (sale). On July 13, 1972, the prosecution filed a supplemental information pursuant to MCLA 769.10; MSA 28.1082 and MCLA 769.13; MSA 28.1085, charging sale of marijuana and carrying a concealed weapon as "second felonies", thereby increasing the possible maximum sentences on those charges by fifty percent. On July 19, 1972, defendant was arraigned on counts I and II and the supplemental information and he pled not guilty to count I (sale) and the supplemental information on that charge, and guilty to count II (carrying concealed weapon) and the supplemental information on that charge, acknowledging the existence of a 1956 conviction for breaking and entering. Count I (sale) and its appended supplemental information were quashed. *459 On September 5, 1972, defendant was sentenced to 2-1/2 to 7-1/2 years in Jackson prison. On June 22, 1973, the prosecution moved to strike the conviction on the supplemental information as a result of the decision in People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), and on July 12, 1973, the trial court entered an order amending defendant's sentence to 2-1/2 to 5 years in prison. Defendant first contends that after his plea of guilty to possession of marijuana was set aside, the prosecutor's reinstatement of the sale charge was improper because such action contravenes the policy expressed in People v McMiller, supra. In McMiller, our Supreme Court held that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction. The Court enumerated two overriding policy considerations when it stated at p 432: "Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant's right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule." Applying these considerations to the case at bar, we are of the opinion that the trial court erred in allowing the prosecutor to reinstate the sale charge after defendant's guilty plea to possession had been set aside. We are aware that in People v McGreevy, 52 Mich App 52; 216 NW2d 623 (1973), the Court declined to apply McMiller retroactively. However, McGreevy is distinguishable on its facts, since there a guilty plea to a lesser offense had been set *460 aside, the defendant had been recharged with the greater offense and had again pled guilty to the lesser offense. In this case defendant did not again plead guilty to the lesser offense, but instead pled guilty to an unrelated offense. Therefore, McGreevy is not controlling and we conclude that the holding in McMiller applies to defendant's case, thereby precluding his retrial on the sale charge. Since we hold that it was improper to reinstate the sale charge against the defendant, we find it unnecessary to consider defendant's equal protection challenge to the statute under which the sale charge was reinstated. Defendant next claims that his plea of guilty to carrying a concealed weapon and the supplemental information on that charge was coerced by the improper reinstatement of the sale charge. Defendant argues that his plea was involuntary because he had no choice. He either had to plead guilty to the charge of carrying a concealed weapon or be faced with further prosecution and an increase in sentence via the supplemental information for sale of marijuana charged in contravention of the policy of McMiller. Defendant thus asserts that the only way he could extricate himself from the threat of the improper sale charge was to plead guilty to the concealed weapon charge. We agree. Defendant requested an evidentiary hearing before the trial court to determine whether his plea of guilty to carrying a concealed weapon and the supplemental information was coerced by the reinstated charge of sale of marijuana. Although this motion is still pending in the Van Buren Circuit Court, since such a hearing has not been held, we assume for our purposes that the motion has been denied. The motion should have been granted for if such hearing had been held, we would then have *461 before us a proper record from which we could determine the question of the involuntariness of defendant's plea. However, due to the circumstances of this case, we find remand for an evidentiary hearing unnecessary, since we are of the opinion that defendant's guilty plea should be vacated and that he should be granted a new trial on the charge of carrying a concealed weapon. We do so because we feel that with the improper sale charge now eliminated, an evidentiary hearing into the question of the involuntariness of defendant's plea would serve no useful purpose. Instead defendant is entitled to a new trial where the possibility of coercion would be nonexistent. We are aware that the Kindell[1] line of cases hold that even where a plea is induced by a desire to avoid the possibility of conviction on the greater offense, that is not a ground for vacating the plea on the ground of involuntariness. However, Kindell and its progeny are distinguishable on two grounds. First, in those cases the defendants were properly charged as to the greater offense, and thus their assertions that they were thereby coerced to pleading to the lesser offense were held to be meritless. But in the instant case, as we have already stated, defendant was improperly charged with a greater offense and we believe his claim of coercion to have merit. Second, in Kindell and its progeny, the defendants pled guilty to a charge which was a lesser included offense of the greater crime charged. Here the defendant's plea was to an offense totally unrelated to the greater sale of *462 marijuana charge. Therefore, the Kindell line of cases is not controlling. Since our previous discussion effectively disposes of this case, we find it unnecessary to deal with defendant's remaining allegations of error. A careful review of the record in regard to those issues discloses no prejudicial error. Reversed and remanded for a new trial on the charge of carrying a concealed weapon. All concurred. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969); People v Jackson, 20 Mich App 414; 174 NW2d 9 (1969); People v Sumlin, 32 Mich App 1; 188 NW2d 144 (1971); People v Grades, 35 Mich App 383; 192 NW2d 655 (1971).

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 18, 2009 No. 08-31062 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. VERNON CROSSLEY, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:08-CR-43-1 Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Vernon Crossley has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Crossley has filed a response. The record is insufficiently developed to allow consideration at this time of Crossley’s claims of ineffective assistance of counsel; such claims generally “cannot be resolved on direct appeal when [they have] not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  No. 08-31062 United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel’s brief, and Crossley’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. 2 

993 F.2d 881 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.Russo BAILEY, Plaintiff-Appellant,v.Warren ZIMMER; Robin Oeltjenbruns; James Lendsay;Kristeen Mccollough; University of CaliforniaRegents, Defendants-Appellees. No. 92-55888. United States Court of Appeals, Ninth Circuit. Submitted April 27, 1993.*Decided May 6, 1993. Before BROWNING, KOZINSKI and RYMER, Circuit Judges. 1 MEMORANDUM** 2 Russo Bailey appeals pro se the district court's dismissal of his civil rights action on the ground that it was barred by the doctrine of res judicata. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. 3 We review de novo the district court's determination that an action is barred by the doctrine of res judicata. Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir.1988). 4 The doctrine of res judicata encompasses the doctrines of issue preclusion and claim preclusion. Id. "Claim preclusion treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same claim or cause of action." Id. (quotation omitted). Claim preclusion bars relitigation of all claims that were previously available to the parties, whether or not the claims were actually asserted and adjudicated in the prior action. Id. at 322. 5 Here, Bailey filed this action under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the Regents of the University of California and four University of California police officers violated his constitutional rights. Specifically, Bailey alleged that on four separate occasions, defendants wrongfully cited him for parking and motor vehicle violations. Bailey alleged defendants falsely arrested him, used excessive force, and deprived him of liberty, property, and equal protection of the laws in violation of the first, fifth, seventh, and fourteenth amendments. Bailey had previously filed an action under 42 U.S.C. § 1983 against the same parties, based on the same four incidents, raising identical claims. See Bailey v. Zimmer, No. CV-90-1121-G(IEG) (S.D.Cal. June 20, 1991). The district court dismissed that action with prejudice for lack of jurisdiction and for failure to state a claim. See id. 6 Although a dismissal for lack of jurisdiction generally is not a decision on the merits for res judicata purposes, see Fed.R.Civ.P. 41(b), a dismissal for failure to state a claim is an adjudication on the merits, see id. Accordingly, the district court's decision in No. 90-1121-G(IEG) operates as a final decision on the merits. See id. Therefore, because Bailey's present action involves the same parties and is based on the same claims as his prior action, he is barred from relitigating those claims. See Robi, 838 F.2d at 322. Thus, the district court did not err by dismissing the present action under the doctrine of res judicata.1 7 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 To the extent that Bailey requests sanctions on appeal in his reply brief we deny his request

(2008) Angelo GREGORY-RIVAS, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants. Civil Action No. 06-00563(HHK). United States District Court, District of Columbia. September 8, 2008. MEMORANDUM OPINION HENRY H. KENNEDY, JR., District Judge. Angelo Gregory-Rivas ("Rivas"), a high school graduate of a District of Columbia Public School, brings this action against the District of Columbia and the superintendent of the District of Columbia Public School system (collectively "DCPS"), under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Rivas challenges a hearing officer's determination that he was not entitled to compensatory education and asserts that the hearing officer neglected to address whether DCPS committed a procedural violation of IDEA. Presently before the court are the parties' cross-motions for summary judgment [## 8, 11]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that Rivas' motion for summary judgment must be denied and that DCPS' cross-motion for summary judgment must be granted. I. BACKGROUND A. Statutory Framework Congress enacted IDEA to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education." 20 U.S.C. § 1400(d)(1)(A). IDEA requires states to "ensure that the rights of children with disabilities and parents of such children are protected." Id. § 1400(d)(1)(B). To receive funding under IDEA, states and the District of Columbia must ensure that "[a]ll children with disabilities residing in the State ... regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated." 34 C.F.R. § 300.111(a)(1)(i). IDEA's free appropriate public education ("FAPE") provision entitles each disabled student to an individualized education program ("IEP") and educational services tailored to the unique needs of each disabled child. See 20 U.S.C. § 1414(d)(2)(A) ("At the beginning of each school year, each [state] shall have in effect, for each child with a disability in [its] jurisdiction, an individualized education program."); 34 C.F.R. § 300.323(a). Parents who disagree with the school's provision of a FAPE to their child may request an administrative hearing before an impartial hearing officer. 20 U.S.C. § 1415(f)(1)(a). The hearing officer's determination may be challenged in federal district court by an "aggrieved party." 20 U.S.C. § 1415(i)(2). B. Factual Background Angelo Gregory-Rivas graduated from Wilson Senior High School in June 2005. For at least three years before his graduation, he was identified as a special education student. Rivas contends that during his last two years at Wilson, he was denied access to a FAPE and not afforded the protections to which he was entitled as a student with a disability. Rivas submitted a total of three requests for administrative due process hearings on DCPS' failure to comply with IDEA. Each time, Rivas sought to have his IEP updated and sought compensatory education to redress DCPS' alleged failure to provide him with a FAPE. DCPS twice entered into settlement agreements with Rivas. Therefore, the administrative due process hearings originally sought by Rivas were not held. According to Rivas, however, DCPS did not honor the terms of either settlement agreement. Thus, because DCPS allegedly continued to deny him access to a FAPE, Rivas filed a third request for an administrative due process hearing. This time, the parties did not settle and proceeded to an administrative due process hearing in August 2005 before Hearing Officer Coles B. Ruff, Jr. ("HO Ruff"). HO Ruff concluded that DCPS had violated the terms of the second settlement agreement, entered into with Rivas in February 2005, by failing to discuss compensatory education at the multidisciplinary team ("MDT") meeting. HO Ruff ruled that Rivas' right to compensatory education services was not terminated by his graduation from high school, A.R. at 44[1], and ordered DCPS to convene a MDT meeting within thirty days "to discuss and determine the amount of compensatory education the student is due and develop a compensatory education plan." Id. at 45. DCPS failed to hold the MDT meeting within 30 days as had been ordered by HO Ruff and Rivas promptly responded by filing a fourth request for an administrative due process hearing. In this request, Rivas alleged that DCPS: (1) failed to comply with HO Ruff's order to convene a MDT meeting within thirty days; and (2) failed to provide Rivas with the compensatory education to which he was entitled. A due process hearing was scheduled for December 1, 2005. One day before the hearing, on November 30, 2005, a MDT meeting was convened and the MDT concluded that Rivas was not entitled to compensatory education. A.R. at 139. The next day, on December 1, Hearing Officer Terry Banks ("HO Banks") dismissed Rivas' complaint. HO Banks determined that HO Ruff's determination did not mandate that Rivas receive compensatory education services but instead only mandated that the MDT meet to "`discuss and determine the amount of compensatory education the student is due,' leaving open the possibility that none was due." A.R. at 4. HO Banks also found that Rivas had not made the showing necessary to justify an award of compensatory education. Id. at 5-6. HO Banks did not address the issue of whether DCPS had violated IDEA by failing to hold a MDT meeting within 30 days of HO Ruff's decision as ordered. Dissatisfied with this result, Rivas filed suit in this court. II. ANALYSIS Rivas moves for summary judgment arguing that HO Banks: (1) erred when he reexamined the determination that HO Ruff assertedly made that Rivas was entitled to compensatory education; (2) erred in deciding that Rivas was not entitled to compensatory education; and (3) neglected to determine whether DCPS' failure to hold a timely MDT meeting violated HO Ruff's determination.[2] DCPS opposes Rivas' motion and cross-moves for summary judgment, maintaining that HO Banks properly decided not to award compensatory education to Rivas and that any noncompliance with HO Ruff's determination was moot. For the reasons that follow, the court concludes that DCPS is correct. A. Legal Standard When reviewing a hearing officer's determination in an IDEA case, a district court shall review the administrative record, hear additional evidence presented at the request of the parties, and, based "on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). In reviewing the determination, the district court must give the hearing officer's ruling "due weight." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (holding that this provision "carries with it the implied requirement that due weight shall be given to [the administrative] proceedings."). The "due weight" standard of review does not rise to the level of de novo review, however, and "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Id. at 206, 102 S.Ct. 3034. Instead, the court initially presumes that the hearing officer was correct and the party challenging the hearing officer's determination bears "the burden of persuading the court that the hearing officer was wrong." Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1988). Thus, while the standard employed by the district court to review the hearing officer's determination is "less deferential than that applied under the traditional substantial evidence test used in ordinary administrative review cases," Scorah v. District of Columbia, 322 F.Supp.2d 12, 18 (D.D.C.2004), provided that the basis for the officer's conclusion is clear and supported by "sufficiently reasoned, specific findings," the hearing officer's determination should not be upset. Kerkam v. Superintendent, D.C. Pub. Sch., 931 F.2d 84, 87-88 (D.C.Cir.1991). B. Rivas' Entitlement to Compensatory Education Was Properly Before HO Banks Rivas first argues that HO Banks erred when he addressed whether Rivas was entitled to compensatory education services. According to Rivas, he already had been awarded compensatory education services by HO Ruff four months earlier. Under the "law of the case" doctrine, Rivas argues, a hearing officer is precluded from adjudicating an issue that has already been decided by another hearing officer.[3] DCPS rejoins that HO Ruff, as HO Banks found, only required DCPS to meet and discuss whether Rivas was entitled to compensatory education. The relevant language in HO Ruff's order reads: "[w]ithin thirty (30) calendar days of the issuance of this Order DCPS shall convene a MDT meeting to discuss and determine the amount of compensatory education the student is due and develop a compensatory education plan." A.R. at 45. HO Banks concluded that this language required DCPS to "`discuss and determine the amount of compensatory education that the student is due,' leaving open the possibility that none was due." A.R. at 5. HO Banks noted that HO Ruff's order "did not specify that [Rivas] receive compensatory education services" and rejected Rivas' argument that the language in this order required DCPS to award Rivas such services. Another factor in HO Bank's determination that HO Ruff did not find that Rivas was entitled to compensatory education services was the significance HO Banks found in the D.C. Circuit's decision in Reid v. District of Columbia, 401 F.3d 516, 526 (D.C.Cir.2005). HO Banks determined, correctly, that Reid prevents a hearing officer from determining that a student is entitled to compensatory education services but then delegating the authority for deciding the type and amount of those services to a MDT. A.R. at 5. Thus, HO Banks rejected Rivas' proposed interpretation of HO Ruff's decision because it would have involved an illegal delegation of power. Rivas argues that HO Banks was wrong because HO Ruff's order represents "the obvious recognition by the Hearing Officer of serial failure(s) of the defendants in the appropriate and timely implementation of Angelo's IEP." Pl.'s Opp'n to the Defs.' Cross Mot. for Summ. J. And Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") 7. This argument is unavailing for several reasons. First, Rivas neither identifies which part of HO Ruff's order evidences this "obvious recognition" nor points to any other part of the administrative record that justifies a conclusion different from the one reached by HO Banks. Furthermore, nowhere in HO Ruff's decision is the issue of DCPS' alleged "serial failure" to implement Rivas' IEP discussed. In contrast, one of the two conclusions of law reached by HO Ruff specifically addresses DCPS' failure to discuss compensatory education at a MDT meeting. Finally, Rivas fails to show how HO Banks' reliance on Reid and conclusion that Rivas' proposed interpretation would require an illegal delegation of a hearing officer's power and responsibility was wrong. Accordingly, Rivas' argument that HO Banks reached an unsupported or incorrect decision regarding whether compensatory education services were awarded by HO Ruff is not persuasive. C. HO Banks Did Not Err in Denying Rivas Compensatory Education Rivas next argues that if compensatory education services were not awarded by HO Ruff then HO Banks erred in not awarding them to Rivas at the December due process hearing. DCPS contends that HO Banks properly concluded that Rivas was not denied a FAPE and was not entitled to compensatory education services. Again, DCPS' position has merit. HO Banks first reviewed the MDT's decision not to award compensatory education services to Rivas and concluded that the team's decision was not in error. The MDT determined that Rivas was not entitled to compensatory education services because he "elected not to attend counseling services" and because he chose to "take regular education electives to assure his timely graduation" instead of taking available specialized education courses. A.R. at 5-6. HO Banks provided three reasons for upholding the MDT's decision. First, Rivas' transcript demonstrated his "ability to perform adequately in general education courses." Id. at 6. Second, as a nineteen year-old, Rivas had the legal authority under D.C. law to choose to take general education electives to fulfill his graduation requirements instead of special education courses. Id. Third, Rivas graduated with passing grades in both general education and special education courses. Id. HO Banks next explained that Rivas had failed to demonstrate that he was entitled to compensatory education services under the standard set forth in Reid. Id. HO Banks stated that Rivas failed to show a denial of FAPE or "that he suffered any educational harm" from the denial of compensatory education services. Id. Rivas did not show the educational level he would have progressed to but for DCPS' alleged violation or that the desired compensatory education services would bring Rivas to that educational level. Id. Furthermore, the administrative record reflects that HO Banks clearly identified Reid's requirements during the administrative due process hearing and offered Rivas the chance to remedy the shortcomings in his presentation. See, e.g. A.R. at 223 ("You've never shown us there was a harm."); id. at 227 ("under "Reed" [sic] there's a showing that Petitioner has to make. You didn't make it... [t]here's no witness, no documentation that this violation caused him to need 2,000 hours of comp-ed."). Rivas did not provide any additional information to show his entitlement to an award of compensatory education services. Thus, HO Banks determined that Rivas failed to "meet his burden of proving that compensatory education services were warranted." Id. at 7. Rivas now argues that HO Banks applied the wrong legal standard and erred in denying Rivas compensatory education on the grounds that Rivas was ineligible as a high school graduate. Neither of Rivas' arguments are persuasive. With respect to his contention that HO Banks applied the wrong legal standard, Rivas argues that the standard employed by HO Banks "does not find traction within the four corners of Reid." Pl.'s Mot. 10. While it is not entirely clear what Rivas means by this assertion, HO Banks clearly was aware of pertinent standards and employed them. Reid, in pertinent part states, "[i]n every case, however, the inquiry must be fact-specific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Reid, 401 F.3d at 524. Thus, according to Reid, once a violation of IDEA has occurred, in order to craft an appropriate remedy, there must be a showing of the educational benefits denied to the student as a result of the school's failure to comply with IDEA. Pursuant to this language in Reid, which HO Banks quoted in his decision, HO Banks required that Rivas establish the type and amount of compensatory services owed to him by DCPS in order to compensate for the services he was denied by DCPS. See A.R. at 5-6, 222-228. Because Rivas failed to make this showing, HO Banks concluded that any award of compensatory education services would be arbitrary. HO Banks' conclusion and reliance on Reid was justified and documented in the record. Rivas also argues that HO Banks erroneously determined that Rivas' graduation from high school rendered him ineligible for compensatory education services. Rivas contends that a student's graduation does "not relieve DCPS of its statutory responsibility" under IDEA. Pl.'s Mot. 10-11. Rivas' argument is without merit. First, Rivas' eligibility for compensatory education services had already been conclusively resolved at the August hearing and was not contested by DCPS at the December hearing. A.R. at 43-44 ("The Hearing Officer is convinced after review of the case law presented by student's counsel that the student's right to compensatory education are [sic] not terminated by his graduation from high school."). In fact, HO Banks never questioned Rivas' eligibility to receive compensatory education services. Instead, HO Banks examined whether Rivas was entitled to receive them. HO Banks decided not to award Rivas compensatory education services because Rivas failed to meet his burden of establishing a need for these services and because Rivas had not been denied a FAPE. See A.R. at 6-7. Although HO Banks considered the fact that Rivas had graduated with passing grades in determining whether Rivas was entitled to receive services, HO Banks never reexamined Rivas' eligibility to received these services. See A.R. at 6-7. D. DCPS' Failure to Hold a Timely MDT Meeting is Non-Actionable Under IDEA Rivas next argues that HO Banks erred when he failed to find that DCPS violated HO Ruff's order by not holding a MDT meeting within 30 days of the August hearing. DCPS concedes that the required MDT meeting was not held until November 30, 2005 but argues that HO Banks was correct in not finding DCPS in violation because the delay was non-actionable under IDEA. DCPS is correct. "[A]n IDEA claim is viable only if those procedural violations affected the student's substantive rights." Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C.Cir.2006). The procedural violation must "result in loss of educational opportunity or seriously deprive parents of their participation rights" in order to qualify as an actionable claim under IDEA. Id. (quoting C.M. v. Bd. of Educ., 128 Fed.Appx. 876, 881 (3d Cir. 2005)). Provided that the "disabled child received (or was offered) a FAPE in spite of a technical violation of the IDEA, the school district has fulfilled its statutory obligations." MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 534 (4th Cir.2002). HO Banks was aware of HO Ruff's order and also aware that DCPS did not convene a MDT meeting until November 30. A.R. at 5. HO Banks was also aware that Rivas failed to make a required showing of harm as a result of DCPS' alleged violations of IDEA. A.R. at 223, 224 ("I haven't heard anything as to why, as to what level of harm he suffered, as a direct result of this particular violation."). Thus, as Rivas failed to make the requisite showing of harm, DCPS' delay in convening the MDT meeting was non-actionable and HO Banks correctly did not find DCPS in violation of IDEA. III. CONCLUSION For the foregoing reasons, the Court finds that Rivas' motion for summary judgment [#8] must be DENIED and DCPS' cross-motion for summary judgment [# 11] must be GRANTED. An appropriate order accompanies this memorandum. NOTES [1] "A.R." refers to "Administrative Record." [2] The parties have cross-moved for summary judgment under Fed.R.Civ.P. 56, which provides for entry of summary judgment "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In an IDEA case, when neither party requests that the district court hear additional evidence prior to ruling on a motion for summary judgment, the motion will be construed as a "procedural vehicle for asking [a] judge to decide the case on the basis of the administrative record." Herbin v. District of Columbia, 362 F.Supp.2d 254, 258 (D.D.C. 2005) (internal quotations and citations omitted); accord Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). [3] The "`[l]aw-of-the-case doctrine' refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases." Crocker v. Piedmont Aviation, Inc. 49 F.3d 735, 739 (D.C.Cir.1995). Rivas' argument that this doctrine applies in the context of IDEA administrative hearings suffers from several problems. First, Rivas does not offer any authority, and this court is not aware of any, establishing that this doctrine applies in the context of IDEA administrative hearings. In fact, what little authority exists on the topic suggests the opposite. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 94 (2d Cir.2005). Second, even if the doctrine were applicable in the IDEA administrative hearing context, it is well-settled that the doctrine is prudential and not mandatory. Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C.Cir.1990).

Case: 17-50149 Document: 00514501516 Page: 1 Date Filed: 06/05/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-50149 June 5, 2018 Lyle W. Cayce TAMMY R. FABIAN, Clerk Plaintiff - Appellant v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 5:15-01139 Before SMITH, WIENER, and WILLETT, Circuit Judges. PER CURIAM:* Plaintiff–Appellant Tammy Fabian brought this action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (“the Act”), to obtain judicial review of the Commissioner of Social Security’s administrative decision that Fabian was not entitled to disabled adult child (DAC) insurance benefits under Title II of the Act. The district court affirmed the Commissioner’s decision. On appeal, Fabian contends that (1) the Commissioner’s decision is not supported * 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: 17-50149 Document: 00514501516 Page: 2 Date Filed: 06/05/2018 No. 17-50149 by substantial evidence, and (2) the Commissioner violated her Due Process rights by applying the incorrect federal regulation to her case. We conclude that the Commissioner’s decision is supported by substantial evidence, so we affirm. I. Background Before considering the merits of Fabian’s claims, we review the factual and procedural history of this case. Fabian is a fifty-three year old woman who suffers from panic attacks, PTSD, depression, and agoraphobia. She claims that these issues stem from an accident when she was two years old which caused a “severe, disfiguring, painful and disabling injury” to her left arm. Fabian filed an application for disability benefits based on her mental health issues when she was twenty-eight years old and has received disability benefits since that date. 1 In March 2006, Fabian applied for DAC benefits under Title II of the Social Security Act, seeking disability benefits for the time between when she was two until she was twenty-two years old. 2 To qualify for DAC benefits, Fabian must demonstrate that she was disabled before 1986, viz., that prior to 1986, she was unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 3 Fabian asserted that her disabilities began when she was injured at age two and were exacerbated by a childhood of emotional abuse and neglect. Her current application, however, seeks retroactive DAC benefits for 1966–1986, 1 from the alleged onset of her disability until she turned twenty-two. An adult disabled before age 22 may be eligible for disabled adult child benefits if 2 her parent is deceased or receives retirement or disability benefits. Such benefits are paid based on the parent’s Social Security earnings record. See 20 C.F.R. § 404.350(a). 3 42 U.S.C. § 423(d)(1)(A). 2  Case: 17-50149 Document: 00514501516 Page: 3 Date Filed: 06/05/2018 No. 17-50149 Fabian explained that immediately after her childhood injury she began showing symptoms of PTSD, depression, and anxiety, and was “messed up for the rest of her life.” Fabian stated that she was “barely” able to attend school as a child and teenager and that she was unable to maintain employment, all as the result of her “severe chronic PTSD.” Fabian admitted that “there are no medical records prior to age 22,” but explained that she “may have been/was most probably told by a doctor of the diagnosis.” Despite the absence of medical records during the relevant time period, Fabian claimed that supplemental evidence, such as her testimony and that of her aunt, school records, and medical records after the relevant time period, lead to the “logical conclusion[]” that she was disabled before she reached twenty-two years of age. Fabian submitted medical records that demonstrate she underwent cosmetic reconstructive surgery to her arm at age twenty-eight and has undergone psychological treatment since that time. In 2008, the Commissioner denied Fabian’s application, noting there was no evidence that she was disabled before the age of twenty-two. The SSA reopened the case in 2009 and then again denied Fabian’s application that same year. Fabian appealed to the SSA Appeals Council and eventually filed three separate suits against the SSA Commissioner. In January 2015, ALJ Gazda held an administrative hearing and affirmed the Commissioner’s decision. The ALJ determined that substantial evidence supported the Commissioner’s finding that Fabian was not disabled before the age of twenty- two. Fabian appealed that decision in district court. After the parties consented to proceed before a magistrate judge, that judge affirmed the Commissioner’s decision. Fabian now appeals. II. Standard of Review We review the district court’s decision de novo, but our review of the Commissioner’s decision is limited to “(1) whether the decision is supported by 3  Case: 17-50149 Document: 00514501516 Page: 4 Date Filed: 06/05/2018 No. 17-50149 substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard.” 4 Substantial evidence is “more than a mere scintilla and less than a preponderance,” 5 and “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 6 In applying this standard, we may not “re-weigh the evidence, try the questions de novo, or substitute our judgment for the Commissioner’s, even if we believe the evidence weighs against the Commissioner’s decision.” 7 III. Analysis A claimant may be eligible for DAC benefits if she is 18 years old or older and has “a disability that began before [she] became 22 years old.” 8 The claimant has the burden of proving that she suffered from a disability during the relevant time period. 9 A claimant is “disabled” under the Social Security Act if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 10 The Commissioner uses a five- step process to determine if a claimant was disabled during the relevant time period: (1) whether the claimant performed substantial gainful activity; (2) whether the claimant had a severe impairment; (3) whether the impairment meets or equals an impairment listed in the relevant regulations; (4) whether the impairment prevented the claimant from doing past relevant work; and (5) 4 Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). 5 Id. (quoting Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)). 6Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 7 Masterson, 309 F.3d at 272. 8 20 C.F.R. § 404.350(a)(5); Stringer v. Astrue, 465 F. App’x 361, 362–63 (5th Cir. 2012). 9 Perez, 415 F.3d at 461. 10 42 U.S.C. § 423(d)(1)(A). 4  Case: 17-50149 Document: 00514501516 Page: 5 Date Filed: 06/05/2018 No. 17-50149 whether the impairment prevented the claimant from performing any other substantial gainful activity. 11 If at any step the Commissioner determines that the claimant was not disabled, the inquiry ends. 12 At step one of the disability inquiry, the Commissioner determined that Fabian did not engage in any substantial gainful activity during the relevant time period. At step two, he determined that there were no medical signs or laboratory findings to substantiate a disability during the relevant time period. Because he determined at that step that Fabian was not disabled, the inquiry ended and her application for DAC benefits was denied. 13 Fabian asserts that the Commissioner’s finding that she was not disabled before age twenty-two is not supported by the substantial evidence. In particular, Fabian contends that the Commissioner erred in disregarding lay testimony from Fabian and her aunt regarding her childhood disabilities, failing to consider her school attendance record, and failing to adequately consider the testimony of her treating physician. At the time of the administrative hearing, the relevant federal regulation provided that a disability “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant’s] statement of symptoms.” 14 This court has recognized, however, that when medical records for the relevant time 11 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 12 Morgan v. Colvin, 803 F.3d 773, 776 (5th Cir. 2015). 13 See id. 14 20 C.F.R. § 404.1508 (2015). This regulation was revised effective March 27, 2017. In this case, however, we apply the 2015 regulation as it was in effect at the time of the ALJ’s determination. See, e.g., Young v. Berryhill, 689 F. App’x 819, 821 n.3 (5th Cir. 2017). 5  Case: 17-50149 Document: 00514501516 Page: 6 Date Filed: 06/05/2018 No. 17-50149 period are not available, “properly corroborated retrospective medical diagnoses can be used to establish disability onset dates.” 15 Such opinions, however, “must refer clearly to the relevant period of disability and not simply express an opinion to the claimant’s current status. Records describing a claimant’s current condition cannot be used to support a retrospective diagnosis of disability absent evidence of an actual disability during the time of insured status.” 16 Here, the Commissioner evaluated the reports from each of Fabian’s treating physicians. None of those physicians, however, had treated or evaluated Fabian during the relevant time period. The Commissioner specifically noted that those doctors only opined about Fabian’s current condition and were not willing to speculate regarding her condition before the age of twenty-two. The treating physicians’ testimony regarding Fabian’s current condition does not establish a retrospective diagnosis. 17 The Commissioner also noted that those physicians who did have an opportunity to review “the entire longitudinal history” of Fabian’s medical file did not conclude that she was disabled during the relevant time period. Based on this evidence, and contrary to Fabian’s assertion, the Commissioner did not fail to consider the opinions of her treating physicians. Instead, he reviewed that evidence in light of the record as a whole and concluded that the treating physicians’ testimony failed to establish that Fabian was disabled before age twenty-two. Next, Fabian insists that the Commissioner failed to consider nonmedical evidence, including school records and lay testimony from herself 15 Likes v. Callahan, 112 F.3d 189, 191 (5th Cir. 1997). 16 McLendon v. Barnhart, 184 F. App’x 430, 432 (5th Cir. 2006) (per curiam). 17 See id. 6  Case: 17-50149 Document: 00514501516 Page: 7 Date Filed: 06/05/2018 No. 17-50149 and her aunt, when determining if she was disabled. First, the regulation in place at the time of Fabian’s claim states that when determining whether a claimant has a severe impairment—step two in the disability determination— the Commissioner “will not consider your age, education, and work experience.” 18 Thus, evidence of Fabian’s school attendance, or lack thereof, cannot establish that she was severely impaired. Second, Fabian is correct that “information may be obtained from family members, friends, and former employers regarding the course of the claimant’s condition” 19; however, such testimony is not necessarily sufficient to establish a medically determinable impairment. 20 Here, the Commissioner evaluated Fabian’s and her aunt’s testimony, yet ultimately determined that the evidence as a whole failed to establish Fabian’s pre-age twenty-two disability. As the Commissioner noted, Fabian testified that she did not receive any mental health treatment as a child. She admitted that her arm injury healed and that she attended school until she got married. She did not seek medical treatment for her arm until 18 20 C.F.R. § 404.1520(c). Fabian also argues that the Commissioner erroneously applied the incorrect federal regulation, because 20 C.F.R. § 404.1520(c)—preventing consideration of education and work experience at step two of the disability analysis—was not effective until March 2017. She contends that these regulations are not retroactive, so the Commissioner’s decision violated her constitutional right to Due Process. But this regulation became effective August 24, 2012; so Fabian’s argument is unavailing. See 20 C.F.R. § 404.1520(c). 19 Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990) (emphasis added). 20 See, e.g., Vella v. Astrue, 634 F. Supp. 2d 410, 418 (S.D.N.Y. 2009), aff’d sub nom. Vella v. Comm’r of Soc. Sec., 394 F. App’x 755 (2d Cir. 2010) (holding that substantial evidence supported Commissioner’s finding that claimant was not disabled before age 22 when claimant failed to provide “objective medical evidence” of a disability in the relevant time period, and instead “relied entirely on his own testimony and his friend’s and family’s statements in proving his disability.”); Turner v. Apfel, 11 F. App’x 439, 440–41 (6th Cir. 2001) (holding that evidence such as school records, mental health evaluations, arrest records, and records of hospitalizations after the relevant time period were insufficient to establish a childhood disability); Duraku v. Barnhart, No. 01 CV 310 (JG), 2002 WL 31956008, at *4 (E.D.N.Y. Dec. 10, 2002) (explaining that a claimant’s own testimony that she was disabled before age 22, without “objective support” was insufficient to establish her claim for DAC benefits). 7  Case: 17-50149 Document: 00514501516 Page: 8 Date Filed: 06/05/2018 No. 17-50149 age twenty-eight, and even then underwent surgery only for cosmetic purposes. Based on this evidence, the Commissioner determined that Fabian failed to establish she was severely impaired before age twenty-two. Because the Commissioner’s decision was based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” his decision was supported by substantial evidence. 21 Fabian is essentially asking us to re-evaluate all of the evidence in her case and to reach a result different from the conclusion that the Commissioner reached when evaluating her claim. Our review, however, is limited. We may not “re-weigh the evidence, try the questions de novo, or substitute our judgment for the Commissioner’s, even if we believe the evidence weighs against the Commissioner’s decision.” 22 Because the Commissioner’s conclusions are based on credible evidence, we must affirm his decision. 23 IV. Conclusion The Commissioner applied the correct legal standard in evaluating Fabian’s claim for DAC benefits, and his decision that she failed to establish a disability during the relevant time is supported by substantial evidence. We therefore AFFIRM. 21 See Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co., 305 U.S. at 229). 22 Masterson, 309 F.3d at 272 (5th Cir. 2002). 23 See id. (“We affirm the Commissioner’s findings whenever supported by substantial evidence.”). 8 

512 F.2d 1155 Israel LOPEZ LOPEZ, Plaintiff-Appellee,v.SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellant. No. 74-1085. United States Court of Appeals, First Circuit. Argued Feb. 3, 1975.Decided March 13, 1975. Morton Hollander, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U. S. Atty., San Juan, P. R., Stephen F. Eilperin, and Stanton R. Koppel, Attys., Dept. of Justice, Washington, D. C., were on brief, for defendant-appellant. Hector Reichard, Aguadilla, P. R., for plaintiff-appellee. Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. 1 The Secretary of Health, Education and Welfare has filed an appeal from the district court's remand order in an action brought by a Social Security claimant to review the Secretary's denial of Social Security disability benefits. 42 U.S.C. §§ 405(g), 423(d)(1). We have noted a threshold question of appealability, but upon further consideration are persuaded the matter is properly before us either on appeal, see, e. g., Cohen v. Perales, 412 F.2d 44, 48-49 (5th Cir. 1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), or under authority of the All Writs Act, 28 U.S.C. § 1651. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); 9 Moore's Federal Practice 312-13. We accordingly proceed to the merits. 2 Lopez filed a claim for Social Security Disability Insurance Benefits in 1971, stating that he could no longer work as his left kidney had been removed and his right was damaged and caused him constant pain. The Social Security Administration, after interviewing and examining him and reviewing his medical records, denied his claim initially and on reconsideration. Lopez then requested and was granted a hearing, at which time a hearing examiner considered all the evidence de novo. The hearing examiner, after examining the medical evidence and hearing the testimony of Lopez and a vocational expert, ruled that while he could no longer work as a cement mason, he could still do jobs of a light and sedentary nature. Finding that such jobs existed in significant numbers in the Puerto Rico economy,1 the hearing examiner ruled that Lopez had not shown himself to be disabled within the meaning of the Act. 42 U.S.C. § 423(d). Upon Lopez' request for review, the Appeals Council of the Social Security Administration upheld the hearing examiner's decision, the decision then becoming the final decision of the Secretary. 3 In overruling the decision of the Secretary, the district court apparently accepted the hearing examiner's finding that Lopez could perform light and sedentary tasks but nevertheless held that "the Secretary failed to sustain the burden of showing that there is employment available which plaintiff is able to perform ...." The court made plain its belief that it was incumbent upon the Secretary to establish that claimants such as Lopez, poorly skilled and residing in an area of high unemployment, have a realistic opportunity of being hired for those positions the Social Security Administration finds them competent to perform. Otherwise they are to be deemed disabled for purposes of the Act. In reaching this conclusion the district court erroneously relied upon a line of cases, interpreting "disability" before Congress added statutory language restricting the definition of that term. With the Social Security Amendments of 1967 Congress clearly foreclosed such prior interpretations. Pub.L.No. 90-248 § 158(b), 81 Stat. 821 (1968). The current law requires that 4 "an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 5 42 U.S.C. § 423(d)(2) (emphasis supplied). Nothing could be more clear. Considerations derived from local hiring practices, employer preferences for physically superior workers, and the claimant's actual chances of being hired are irrelevant in determining disability, and must be disregarded. Cf. H.R.Rep. No. 544, 90th Cong., 1st Sess., 29-30 (1967); S.Rep. No. 744, 90th Cong., 1st Sess., 48-49 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834. As this court has previously stated, the statutory scheme is not an "ancillary unemployment compensation device". Reyes-Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969). It is not necessary that the Secretary demonstrate that a particular claimant would actually be hired, or even that there is a realistic chance of his being so. It is sufficient that he show that there are specific jobs in the national economy which a claimant is capable of performing. "Disability" as provided in the Act, although defined by reference to concepts similar to employability, is actually a term of art looking to the physical and mental capacity to engage in certain activities, regardless of whether the opportunity for any such activity actually exists. 6 Every Circuit considering the question has reached the same result as that reiterated here,2 and we are doing no more than amplify principles we discussed as recently as last year. Hernandez v. Weinberger, 493 F.2d 1120, 1122 (1st Cir. 1974). 7 Since the district court's order remanding to the Secretary was premised upon an incorrect legal standard, it is hereby vacated. We cannot determine whether the district court found the Secretary's decision, considered apart from questions of actual employability, supported by substantial evidence. We therefore direct the district court, applying now the appropriate statutory standard, to determine whether or not the Secretary's decision that Lopez was not disabled is supported by substantial evidence. 8 So ordered. 1 The Act requires that to be disabled claimants must be unable to engage in "substantial gainful work ... which exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A) (emphasis supplied) 2 Torske v. Richardson, 484 F.2d 59 (9th Cir. 1973), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); Chavies v. Finch, 443 F.2d 356 (9th Cir. 1971); Whiten v. Finch, 437 F.2d 73 (4th Cir. 1971); Gentile v. Finch, 423 F.2d 244 (3d Cir. 1970); Martin v. Finch, 415 F.2d 793 (5th Cir. 1969); Wright v. Gardner, 403 F.2d 646 (7th Cir. 1968); Mullins v. Gardner, 396 F.2d 139 (6th Cir. 1968)

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-1672 No. 04-1745 ___________ St. John’s Mercy Medical Center, * * Plaintiff - Appellee/ * Cross Appellant, * * Appeals from the United States v. * District Court for the * Eastern District of Missouri. John Delfino, M.D., * * Defendant - Appellant/ * Cross Appellee. * ___________ Submitted: January 12, 2005 Filed: July 12, 2005 ___________ Before LOKEN, Chief Judge, HANSEN and MURPHY, Circuit Judges. ___________ LOKEN, Chief Judge. Oral surgeon John Delfino appeals the portion of a judgment that partially vacates a favorable arbitration award. St. John’s Mercy Medical Center (“St. John’s”) cross-appeals the portion that confirms the remainder of the award. The issue in both appeals is whether the arbitrator’s decision evidences manifest disregard for law. Applying the deferential standard of review mandated by the Federal Arbitration Act, 9 U.S.C. § 10, we confirm the arbitrator’s award in its entirety.  I. An employment agreement between St. John’s and Delfino provided that St. John’s would indemnify Delfino for “defense costs . . . arising out of . . . professional services and obligations . . . described in this Agreement.” Another St. John’s physician, Arthur Misischia, served as Delfino’s assistant director. Delfino and Misischia entered into a separate agreement relating to their private practice. In 1993, St. John’s terminated Misischia, and Delfino terminated the separate agreement. Misischia sued St. John’s, Delfino, and Delfino’s personal corporation, Delfino, P.C., alleging various tort claims, including a claim of fraud against Delfino and Delfino, P.C. relating to the separate agreement. In October 1995, St. John’s General Counsel wrote a letter “to reflect the understandings” reached at a meeting between St. John’s and Delfino: St. John’s accepted Delfino’s tender of his defense; St. John’s agreed to indemnify Delfino (but not Delfino, P.C.) for all of Misischia’s claims except the fraud claim; St. John’s would control the defense and retain counsel to represent Delfino; and Delfino would cooperate in the defense. St. John’s retained a law firm to represent Delfino; Delfino retained the law firm of Lewis, Rice & Fingersh, L.C. (“Lewis, Rice”) to separately represent Delfino and Delfino, P.C. on the unindemnified claims. Two years later, when Delfino and St. John’s parted company, they entered into an Employment Separation and Release Agreement providing that St. John’s would defend and indemnify Delfino in the pending Misischia case in accordance with the General Counsel’s letter. The Agreement provided that it was governed by Missouri law and that all disputes “shall be settled exclusively by binding arbitration” under the arbitration rules of the American Health Lawyers Association. The state trial court dismissed all of Misischia’s claims against St. John’s on the eve of trial. St. John’s informed Delfino that it would not pay Delfino’s legal expenses in defending the remaining claims because he was now “unindemnified.” -2- Delfino retained Lewis, Rice to defend Delfino and Delfino, P.C. at trial. The jury found in favor of Misischia on the fraud claim. Delfino demanded that St. John’s pay nearly $1,500,000 in sundry fees and expenses, including all of Lewis, Rice’s fees for its defense of Delfino and Delfino P.C. St. John’s refused to pay, and the matter proceeded to arbitration. The arbitrator concluded that St. John’s breached its duty to defend by refusing to reimburse Delfino for defense costs incurred after St. John’s was dismissed one month before trial. The arbitrator awarded Delfino $215,480.82 for fees paid to Lewis, Rice for services prior to the breach, and $359,861.55 for fees paid for Lewis, Rice services after the breach. The latter amount reflected a 25% discount to account for post-breach work performed exclusively on the unindemnified fraud claim. Thus, the total award was $575,342.37. St. John’s urged the arbitrator to reduce the award by $215,480.82, arguing that reimbursing Delfino for legal services prior to St. John’s breach was inconsistent with the arbitrator’s ruling that Delfino was not entitled to reimbursement for his defense of unindemnified claims. The arbitrator refused to modify the award, explaining: [St. John’s] makes an excellent point . . . . [St. John’s] must take responsibility, however, for its termination of its indemnification approximately one month before the scheduled trial date. . . . Had Lewis, Rice not been engaged and involved in the litigation previously, it would have been necessary for that firm to go back and relearn all of the events which had transpired previously in the lawsuit. St. John’s then petitioned the district court to vacate the award under the Federal Arbitration Act. Delfino moved to confirm. St. John’s argued that the arbitrator manifestly disregarded the law by awarding damages for expenses incurred prior to the breach. Applying Missouri law, the district court agreed, concluding that the arbitrator had violated “one of the most bedrock principles of contract law,” namely, that the purpose of contract damages “is to restore the plaintiff to the position he would have enjoyed had the defendant not breached the contract.” Therefore, the -3- district court vacated that portion of the award. However, the court rejected St. John’s contention that the arbitrator manifestly disregarded the law by awarding Delfino damages for post-breach expenses paid by Delfino, P.C. and confirmed the award of $359,861.55 for Lewis, Rice’s post-breach services. Both parties appeal. II. Our review of an arbitration award under the Federal Arbitration Act is exceedingly limited and deferential. Section 10(a) of the Act provides four statutory grounds for vacating an award, none of which is at issue in this case. In addition, drawing on dicta in two Supreme Court cases, this court and most other circuits have said that an award may be vacated if it “evidences manifest disregard for law.” Kiernan v. Piper Jaffray Cos., 137 F.3d 588, 594 (8th Cir. 1998) (quotation omitted). However, while we have frequently referred to this doctrine, we have emphasized that it is “extremely narrow.” Hoffman v. Cargill, Inc., 236 F.3d 458, 461 (8th Cir. 2001). In the only reported decision where we granted relief on this ground, we held that, “[w]here an arbitration panel cites relevant law, then proceeds to ignore it, it is said to evidence a manifest disregard for the law.” Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060, 1069 (8th Cir. 2003). That holding states the limits of the doctrine in this circuit. Thus, St. John’s “bears the burden of proving that the arbitrators were fully aware of the existence of a clearly defined governing legal principle, but refused to apply it, in effect, ignoring it.” Stark v. Sandberg, Phoenix & Von Gontard, 381 F.3d 793, 802 (8th Cir. 2004).1 1 Other circuits have likewise emphasized that manifest disregard is “a doctrine of last resort” reserved for “those exceedingly rare instances where some egregious impropriety on the part of the arbitrators is apparent, but where none of the provisions of the FAA apply.” Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004). For a useful debate over whether the doctrine should be further restricted or abandoned entirely, see the two opinions in George Watts & Son, Inc. v. Tiffany and Co., 248 F.3d 577 (7th Cir. 2001). -4-  St. John’s argues, and the district court agreed, that the arbitrator’s award evidences manifest disregard for the “controlling legal principle” that “only those costs and expenses that occur because of a breach can be recovered as damages for a breach.” We emphatically disagree. In the first place, the arbitrator did not cite this relevant law and then ignore it, so the manifest disregard doctrine as defined by this court does not apply. St. John’s argues that we should expand the doctrine to include an award that violates a legal principles that is “so obvious and readily identifiable that a lawyer of twenty years experience should know it without having to be told.” We refuse to do so, mindful of the strong federal policy favoring certainty and finality in arbitration. Moreover, even if the arbitrator’s decision had noted this principle of contract law, his award does not reflect its manifest disregard. The arbitrator found that the timing of St. John’s breach -- one month before trial -- increased the damages caused by the breach. St. John’s does not, and could not, challenge that logical finding. The arbitrator then measured this incremental damage by the fees charged by Lewis, Rice prior to the breach, finding this to be a reasonable estimate of the fees a new lawyer hired after the breach would have charged to become sufficiently familiar with the protracted Misischia litigation to effectively try the case. The arbitrator’s task was to resolve a dispute over St. John’s contractual duty to reimburse Delfino for all “costs,” as broadly defined in the Separation Agreement, arising out of “the Misischia Matter.” It was clearly within his remedial authority to estimate in this manner the incremental damages caused by the untimely nature of the breach. See Rule 6.06 of the American Health Lawyers Association arbitration rules (“arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the arbitration agreement of the parties”). As the Supreme Court emphasized in a related context: where it is contemplated that the arbitrator will determine remedies for contract violations he finds, courts have no authority to disagree with his -5-  honest judgment in that respect . . . . [A]s long as the arbitrator is even arguably acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). The district court erred in substituting its remedial judgment for that of the arbitrator. In the cross appeal, St. John’s argues that the entire award must be vacated because it evidences manifest disregard for the principle of Missouri corporate law that a shareholder has no “standing” to recover damages suffered solely by the corporation. This argument is, in a word, frivolous -- so contrary to arbitration law, corporate law, contract law, the governing agreements, and common sense that it warrants no further discussion. For the foregoing reasons, the judgment of the district court is reversed in part and the case is remanded with directions to enter an order confirming the arbitrator’s award in its entirety. ______________________________ -6- 

514 F.2d 382 In-Cho CHUNG, Appellant in No. 74-1875,v.Lawrence PARK, Individually and as President of MansfieldState College, etal., Appellants in No. 74-1876. Nos. 74-1875, 74-1876. United States Court of Appeals,Third Circuit. Argued March 3, 1975.Decided April 11, 1975. Martin M. Fine, Fine, Eisenbeis & Felix, Williamsport, Pa., for appellant in No. 74-1875 and cross-appellee in No. 74-1876. Robert F. Nagel, Deputy Atty. Gen., Commonwealth of Pennsylvania, Harrisburg, Pa., for appellees in No. 74-1875 and cross-appellants in No. 74-1876. Before ADAMS, ROSENN and WEIS, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. 1 The principal issue on this appeal is whether Dr. In-Cho Chung, a professor at Mansfield State College, was denied procedural due process when his employment was terminated (1) without his being afforded a hearing prior to the decision by the administration that termination was warranted, and (2) by imposing the burden of proof on Dr. Chung, in the hearing that was afforded, to show that the decision to terminate was unreasonable, arbitrary or capricious. 2 Dr. Chung was employed as a biology professor at Mansfield State College for five academic years, between September 1967 and June 1972. Before the end of each year he was offered and accepted a position for the following year.1 On December 6, 1971, Dr. Park, the president of the college, recommended to the board of trustees that Dr. Chung's contract not be renewed for the 1972 school year, and notified Dr. Chung of the following reasons for the decision: 3 1. Those most knowledgeable about Dr. Chung's teaching record and his contributions to the biology department had not given him favorable recommendations; 4 2. There was significant concern among the students about the quality of Dr. Chung's teaching; 5 3. The department could not assign him his full share of teaching responsibilities; and 6 4. Dr. Chung had refused to cooperate with the department and his colleagues in efforts to identify and resolve the above problems. 7 After receiving notification of termination, Dr. Chung, through counsel, negotiated with the State Attorney General's Office and eventually agreed to submit the issue of the validity of his termination to a neutral arbitration panel. Detailed specifications for the hearing were agreed upon by counsel for Dr. Chung and the Attorney General's Office.2 8 Prior to the hearing Dr. Chung was more fully notified of the reasons for his termination when he was provided with copies of all documents relied on by the college in reaching its decision to terminate. 9 It was explicitly agreed by Chung's attorney and the Attorney General that the issue before the arbitration panel would be: "Was the action taken by the administration at Mansfield State College on December 6, 1971 not to grant continuing employment status to the complainant, arbitrary, capricious, or discriminatory?"The hearing panel was composed of three individuals whose impartiality has not been questioned, including two professors teaching at colleges other than Mansfield and a local attorney who served as chairman. Dr. Chung was vigorously represented at the hearing by counsel, who was permitted to cross-examine the adverse witnesses, to challenge evidence presented by the college, and to present any written evidence or oral testimony he wished. A transcript of the eight-day hearing was prepared and provided to Dr. Chung. After presentation of the evidence the panel received briefs and proposed findings of fact, and then wrote an opinion. 10 The panel found, in substance, that: (1) the evidence clearly supported the conclusion that the reasons stated in the President's letter had factual bases; (2) Dr. Chung had failed to produce evidence indicating any bias, prejudice, or discrimination against him; and (3) the record clearly indicated that many persons associated with the college went to extreme lengths to identify and seek solutions for Dr. Chung's teaching problems, but that Dr. Chung's lack of cooperation intensified as time went on so that Dr. Park had only one choice to discharge the plaintiff. 11 Dr. Chung sought review of the panel's decision in the District Court for the Middle District of Pennsylvania.3 The district court held that Dr. Chung had gained tenure after his third year of employment, but that the hearing provided to Dr. Chung fully satisfied the college's tenure regulations and the requirements of due process.4 Accordingly, the district court entered judgment for defendants. 12 On appeal Dr. Chung contends (1) that the procedures followed by the college in terminating his employment did not accord with those outlined in the college tenure regulations, and that such irregularity constituted a breach of his contract; and (2) that he was denied due process by the procedure followed by the college. 13 The Commonwealth filed a cross-appeal, contending that the district court erred in holding that Dr. Chung had tenure and in failing to hold that the defendant had a valid defense of sovereign immunity. A. DR. CHUNG'S CONTRACTUAL RIGHTS 14 Even assuming, arguendo, that Dr. Chung did have tenure and was contractually entitled to a hearing which scrupulously complied with the procedures outlined in the college tenure regulations, we cannot say that the district court erred in finding that Dr. Chung waived any contractual rights to which he was entitled. Under Pennsylvania law, contractual rights may be waived by a subsequent agreement between the parties. Betterman v. American Stores Co., 367 Pa. 193, 80 A.2d 66, cert. denied 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951). The district court's finding that the parties had reached such a subsequent agreement when, after extensive negotiations, they specifically stipulated to the hearing procedures actually employed, is not clearly erroneous.5 In any event, the district court found, as a fact, that the hearing satisfied the college's tenure regulations. B. DR. CHUNG'S DUE PROCESS RIGHTS 15 Dr. Chung's principal contention on appeal is that the hearing before the arbitration panel failed to satisfy the requirements of due process.6 The Supreme Court has indicated that in pre-termination hearings,7 such as the one provided in this case, the person being deprived of his "property interest" is entitled to minimum procedural safeguards which are adapted to the particular characteristics of the interests involved and the limited nature of the controversy. These safeguards may include: (1) written notice of the grounds for termination; (2) disclosure of the evidence supporting termination; (3) the right to confront and cross-examine adverse witnesses; (4) an opportunity to be heard in person and to present witnesses and documentary evidence; (5) a neutral and detached hearing body; and (6) a written statement by the fact finders as to the evidence relied upon. See Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). 16 Whether or not Dr. Chung was entitled, under the circumstances here, to this panoply of protective devices, he was, in fact, afforded all of these safeguards in his termination hearing. He argues, however, that he is entitled to more protection than these procedures provided him, under the concept that a hearing must be held at a meaningful time and in a meaningful manner in order to satisfy due process. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). 17 More particularly, Dr. Chung asserts that the college made the decision to terminate before giving him a hearing and then placed the burden of proof on him to show that the decision of the administration to terminate was arbitrary, capricious or discriminatory. This procedure, Dr. Chung contends, does not comport with due process according to the rule of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). He would have us hold that due process in the present case required that a hearing be held before any decision to terminate was reached by the administration, and that the burden of proof at such a hearing should have been on the administration to show that the decision to terminate was justified. 18 Due process does not impose such strictures on professorial pre-termination proceedings. Unlike some legal rules, due process is protean in nature. The determination of what process is due depends on appropriate accommodation of the competing interests involved. Goss v. Lopez, --- U.S. ---, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). 19 Thus, we must here weigh the professor's interest in avoiding an unreasonable termination against the college's interest in having an efficient process for identifying and ridding itself of incompetent faculty members. In accommodating these interests we are cognizant of the Supreme Court's admonition that: 20 Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities. 21 Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). 22 To determine what process is due we have reviewed the guidelines enunciated in Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), but have found nothing in these cases which suggests that Dr. Chung was entitled to have a hearing prior to a decision by the college to terminate, or to have the college bear the burden of proof at the hearing that was actually held after the decision to terminate. 23 Indeed, Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), states that the function of the hearing procedure is to inform the professor of the grounds for his non-retention and to allow him to challenge their sufficiency. Thus Sindermann suggests that a post-decision hearing in which a professor has the burden of proof is adequate to satisfy due process. Moreover, the administration of the internal affairs of a college and especially the determination of professional competency is a matter peculiarly within the discretion of a college administration. 24 Due process should not be employed to insure that this exercise of discretion is "wise" but only that it is not unreasonable, arbitrary or capricious.8 If the procedure used by the college is adequate to prevent unreasonable, arbitrary or capricious termination decisions, it satisfies due process.9 The procedure used in this case was sufficient for these purposes.10 Dr. Chung was fully informed of the grounds for his termination prior to the hearing, and had a full opportunity to prove to a neutral arbitration panel that the termination was unreasonable, arbitrary or capricious, but failed to do so. 25 Accordingly, the judgment of the district court will be affirmed.11 1 On January 12, 1970, the president of the college offered a fourth probationary year to Dr. Chung, but notified him that some students had complained they had difficulty understanding him; that there were disappointingly small enrollments in his classes; and that a tenure decision was being delayed because a new chairman was being appointed for the biology department 2 The agreed specifications provided that: (a) The hearing would be public. (b) Admissibility of evidence would be within the discretion of the panel chairman subject to general considerations of relevancy and materiality. (c) A written transcript would be kept. (d) Both parties would present written evidence or oral testimony and would have the right to cross-examine. (e) Both parties would be represented by counsel. (f) The panel would submit a written statement of its findings of fact and conclusions. (g) The complainant would have the right to appeal the decision of the hearing panel pursuant to the Pennsylvania Administrative Agency Law, 71 P.S. § 1710.1 et seq. (h) The initial burden would rest on the complainant to establish a prima facie case of arbitrariness, caprice, or discrimination. (i) The college would be required to present written evidence to support its decision after the complainant established his prima facie case. (j) The burden of persuasion would rest on the complainant to establish his case by a preponderance of the evidence. 3 Although Dr. Chung did not seek review in the Pennsylvania Court of Common Pleas, he could have done so pursuant to the Pennsylvania Administrative Agency Law, Pa.Stat.Ann., tit. 71, § 1710.1 et seq. Indeed, his agreement with the Attorney General specifically so provided 4 Pennsylvania law is controlling on the contract issue, which was within the pendent jurisdiction of the district court. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) 5 See Fed.R.Civ.P. 52(a) 6 In deciding the due process claim, we assume, without deciding, that Dr. Chung had tenure. Although courts traditionally avoid constitutional questions whenever possible, resolution of the state contract law question here would not enable us to avoid deciding a constitutional question, for even were we to determine that Dr. Chung did not have tenure, we would nevertheless still have to address the difficult constitutional question not briefed by the parties whether Dr. Chung had an expectancy of continued employment which amounted to a sufficient property interest to entitle him to procedural due process protection. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) 7 A pre-termination hearing is not a hearing held prior to any decision to terminate, as Dr. Chung suggests, but rather a hearing held prior to a termination of benefits. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). In the present case, any hearing held prior to the end of the academic year would be a pre-termination hearing 8 We recognize that in some situations the standard of review employed here might be inadequate. See, e. g., Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 297 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Those situations, however, are distinguishable from the present case, because they involved a different type of interest and a different type of decision making. Here we are not dealing with a decision whether Dr. Chung satisfied a specific set of statutory or administrative conditions which would have entitled him to continuing employment. Rather, we are concerned with an exercise of discretion by the college administration as to whether Dr. Chung was competent to perform the duties of a professor. By its nature this type of decision cannot be adjudged as correct or erroneous, but only as reasonable or unreasonable. Moreover, Dr. Chung's property interest here would not seem to be of the same critical magnitude as the liberty involved in Morrisey or the sole available means of subsistence involved in Goldberg. The difference in the nature of the interests implicated affects the procedural requisites for the hearing. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) 9 Johnson v. Board of Regents, 377 F.Supp. 227, 239 (W.D.Wis.1974); see Moynahan Properties, Inc. v. Lancaster Village Cooperative, Inc., 496 F.2d 1114, 1118 (7th Cir. 1974) 10 The district court also determined that "the conclusion of the hearing panel would have supported the termination of a tenured-professor at Mansfield State College." 11 The district court held that the appellees, by their general appearance, waived the defense of sovereign immunity. In light of our decision we do not reach the waiver issue

235 B.R. 231 (1999) In re Stephen L. VECCHITTO, Debtor. Martin W. Hoffman, Trustee, Plaintiff, v. Stephen L. Vecchitto, Vecchitto, Schnidman, Macca & Company, P.C., Defendants. Bankruptcy No. 93-22346. Adversary No. 95-2187. United States Bankruptcy Court, D. Connecticut. March 30, 1999. *232 *233 Martin W. Hoffman, Hank D. Hoffman, and Walter J. Onacewicz, Law Offices of Martin W. Hoffman, West Hartford, CT, for Trustee-Plaintiff. David A. Netburn, Michael D. O'Connell, and Julia B. Morris, O'Connell, Flaherty & Attmore, LLC., Hartford, CT, for Defendants. MEMORANDUM OF DECISION ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. ISSUE The dominant issue in this adversary proceeding is the proper value to be placed upon 220 shares of stock of a closely-held corporation. Martin W. Hoffman, Esq., trustee ("the trustee") in the Chapter 7 case of Stephen L. Vecchitto, the debtor ("the debtor"), on July 12, 1995, filed a three-count complaint against the debtor, a certified public accountant, and against Vecchitto, Schnidman, Macca & Company, P.C. ("VSM"), a corporate firm of licensed certified public accountants. In Count I, the trustee contends that the debtor's estate included as an asset 220 shares of stock in a corporate firm of licensed certified public accountants known as Vecchitto, Macca & Glotzer, P.C. ("VMG"); that in his schedules, the debtor listed the stock as having no value and claimed the stock as an exemption to the value of $3,808; that the trustee has objected to the exemption claim; and that the stock has a value of at least $242,000 to be turned over to the trustee.[1] In Count II, the trustee alleges that, post-petition, VMG sold its assets to VSM, and the debtor received a 30% stock interest in VSM, which interest became property of the debtor's estate and should be turned over to the trustee. Count III asserts that the sale of VMG's assets to VSM was a post-petition avoidable transfer and their value is recoverable from the defendants. The complaint seeks a judgment against the debtor and VSM for $242,000 or the value of the debtor's interest in VMG or VSM and the avoidance of the transfer of the debtor's interest in VMG to VSM. The defendants deny any liability to the trustee, contending that the stock had no value and, thus, all of the counts of the complaint must fail. A hearing on the complaint concluded on December 30, 1998, after which the parties submitted their memoranda of law. II. BACKGROUND A. When the debtor filed his Chapter 7 bankruptcy case on June 14, 1993, he was employed as an accountant by VMG. He testified that the filing of the bankruptcy petition was caused by real estate investments which were rendered valueless by the then recent downturn in the Hartford real estate market. He scheduled as an asset 220 shares of stock in VMG. Carmen Macca, CPA ("Macca"), VMG's corporate secretary, held the remaining 780 shares of VMG stock. VMG, on September 1, 1993, sold most of its assets, in an arm's length transaction with Schnidman & Company P.C. to merge their accounting practices, to the defendant, VSM, a newly-formed entity.[2] Macca executed a *234 corporate resolution representing that a two-thirds vote of VMG shareholders affirmed the sale. The sale price for VMG's account receivables and equipment was $200,050, to be paid by VSM's assumption of two VMG bank debts totaling $190,486 and the payment of $9,564 cash to VMG. VMG used the cash to pay other existing VMG obligations. No party noticed the trustee of this sale. The debtor testified that he invested $10,000 in VSM and received 30% of VSM's stock. Three years later, on September 1, 1996, the debtor left VSM's employ and received $10,000 for his stock interest. At the same time, he signed a non-competition agreement with VSM which runs to August 30, 2001. The total compensation to be paid the debtor under this agreement is $225,000, payable in 48 monthly installments after an initial payment of $18,500. B. On or about January 1, 1988, the debtor and Macca, as the sole VMG shareholders, entered into a Shareholders' Agreement ("Agreement") "to restrict the transfer of the stock of the Corporation by the Shareholders in such a manner so as to provide for an orderly disposition of the stock of any Shareholder who voluntarily ceases to be an employee of the Corporation, dies, becomes disabled, retires or desires to dispose of his stock." Agreement at 1. Paragraph 2.1 of the Agreement provided: If a Shareholder shall resign, retire or otherwise terminate his employment as an employee of the Corporation, other than by death or disability, the other Shareholder shall have the option to purchase all or any part of the Stock owned by such Shareholder (the "Resigning Shareholder"). The other Shareholder shall have sixty (60) days after such resignation, retirement, or other termination of employment to exercise such option and purchase all or any part of the Stock, owned by the Resigning Shareholder. The Corporation shall redeem, within thirty (30) days after the expiration of such sixty (60) day period, all of the Stock owned by the Resigning Shareholder which has not been purchased by the other Shareholder. Paragraph 2.2, of the Agreement provided: The purchase price of the stock to be purchased or redeemed pursuant to this Article 2 shall be equal to the Adjusted Net Book Value of the Corporation, as hereinafter defined, multiplied by a percentage determined under Section 2.4, and multiplied by a fraction, the numerator of which is the total number of shares of the Stock to be purchased and the denominator of which is the total number of the issued and outstanding shares of the common stock of the Corporation as of the date of such purchase. The Agreement does not contain any mandatory non-competition agreement to be executed by the departing stockholder, and the Agreement terminated on VMG's bankruptcy, receivership, corporate liquidation or dissolution. At the time of the filing of his petition, the debtor was 36 years old and capable of continuing in his practice as, in fact, he did during the next three years. The trustee presented Alec R. Bobrow, CPA, ("Bobrow") to testify as a duly-qualified expert on the fair market value of the debtor's 220 shares of VMG stock as of June 14, 1993, the date of the Chapter 7 filing. Bobrow valued the 220 shares of stock at $397,825. Bobrow's written appraisal ("Bobrow Appraisal"), received into evidence, defined "fair market value" as "that price, stated in money or money's worth, at which an asset would change hands between a willing seller and a willing buyer, neither being under a compulsion to act, and both having full knowledge of all relevant facts." (Bobrow Appraisal at 1.) Bobrow acknowledged that "traditionally" *235 there are three principal approaches to be employed to determine fair market value: (1) component asset-based valuation, (2) cash-flow-based valuation and (3) market formula-based valuation. (Bobrow Appraisal at 2.) Bobrow purposely used none of the three "traditional" methods, but relied solely on the formula and methodology described in the Agreement to calculate the stock's fair market value. He readily conceded that none of the triggering events under Par. 2.2 of the Agreement had occurred on June 14, 1993 or thereafter — namely, the debtor had neither resigned, retired nor terminated his employment with VMG. His conclusion was that if stockholders have entered into a stock-purchase agreement, "[n]eedless to say, [such agreement], if binding on the parties, will serve as the basis for valuation." (Bobrow Appraisal at 2.) The defendants do not contest that Bobrow used the appropriate calculations contained in the Agreement to arrive at his valuation, if the Agreement controls. The debtor testified that even if the Agreement provisions were to control, VMG had no means to satisfy such obligation. The defendants presented Walter C. King, CPA, ("King"), as their duly-qualified stock valuation expert witness. King, using the same definition of fair market value as Bobrow in his written appraisal ("King Appraisal"), received into evidence, valued the VMG shares of stock at zero after considering a market-value approach, an adjusted net-asset approach and an income-valuation approach. He rejected the use of the Agreement as a means of establishing fair market value because the Agreement mandated neither purchase of the debtor's stock upon his filing a bankruptcy petition nor purchase from the bankruptcy trustee. (King Appraisal at 16.) King also rejected the market-value approach because of the absence of a non-competition agreement to prevent the debtor from soliciting clients. Under the income-valuation approach, which values a business "in one lump sum, including tangible and intangible assets by applying a capitalization rate to representation earnings," King determined that VMG had no value after deducting salaries. (King Appraisal at 11.) Likewise, the adjusted net-asset method, which "substitutes market values for balance sheet carrying amounts and arrives at the fair market value of the adjusted net assets", resulted in VMG showing a deficit so that the value of shares was zero. (King Appraisal at 14.) III. CONTENTIONS OF THE PARTIES The trustee contends that, on the date the bankruptcy petition was filed, the terms of the Agreement fixed the value of the debtor's VMG stock at $397,825. Since the debtor exempted only $3,808 of the stock's value, the trustee seeks to recover the balance of $394,017 for the benefit of the bankruptcy estate, or, alternatively, the value of the debtor's interest in VSM, claiming that it constituted proceeds, product, offspring, rents, or profits of the debtor's stock in VMG. The defendants do not dispute the accuracy of Bobrow's calculations under the formulas of the Agreement. They contend, however, that such calculations are irrelevant to the issue before the court — the determination of the fair market value of the debtor's VMG stock on the petition date — because the terms of the Agreement would have applied only if the debtor had retired, resigned, or otherwise terminated his employment with VMG while the Agreement was in effect, and that he did not do so. The defendants contend that, under any of the generally accepted methods of valuation, the fair market value of the VMG stock on the petition date was zero. IV. DISCUSSION A. RELEVANCE OF THE AGREEMENT The trustee's reliance on the formulas contained in the Agreement is misplaced. *236 Shareholder agreements which impose, under certain circumstances, obligations on a shareholder to sell and ultimately on the corporation to buy shares are executory contracts[3] for purposes of the Bankruptcy Code. See In re Parkwood Realty Corp., 157 B.R. 687, 689 (Bankr.W.D.Wash.1993) (holding that stockholder agreement is an executory contract). Section 365(d)(1)[4] gives the Chapter 7 trustee 60 days after the order for relief is entered in which to assume or reject executory contracts; at the end of that 60-day period, all executory contracts not assumed by the trustee are deemed rejected. This automatic rejection "constitutes a breach of such contract ... immediately before the date of the filing of the petition." 11 U.S.C. § 365(g). The provisions of the Agreement, therefore, are deemed not to have been in effect on the valuation date of June 14, 1993. The debtor's bankruptcy petition (Exhibit 12) indicates that he did not schedule the Agreement as an executory contract. The debtor's failure to schedule the Agreement does not toll the running of the 60-day period, see, e.g., Cheadle v. Appleatchee Riders Ass'n (In re Lovitt), 757 F.2d 1035, 1041 (9th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 145, 88 L.Ed.2d 120 (1985) (holding that, under the Bankruptcy Act, trustee has an affirmative duty to investigate for unscheduled executory contracts and that the statutory presumption of rejection of such contracts not assumed within 60 days is conclusive); Carrico v. Tompkins (In re Tompkins), 95 B.R. 722, 724 (9th Cir. BAP 1989) (quoting Lovitt and adopting its holding in a Chapter 7 case under the Bankruptcy Code); Affordable Efficiencies, Inc. v. Bane (In re Bane), 228 B.R. 835, 840 (Bankr.W.D.Va. 1998) (same). The trustee, apparently, became aware of the existence of the Agreement well before the commencement of this proceeding. The court concludes that the trustee has not established that the formulas of the Agreement, and Bobrow's calculations based on those formulas, are relevant to the value of the debtor's VMG stock on the date the bankruptcy petition was filed; it, therefore, rejects Bobrow's testimony as to the value of the stock. In addition, the trustee presented no credible evidence to support use of the Agreement as a proxy for the fair market value of the debtor's VMG stock. B. FAIR MARKET VALUE The reports of both expert witnesses utilized the same definition of fair market value. Both experts agreed as to the three approaches generally used to determine the fair market value of an asset, in this instance, the debtor's stock in VMG. See supra part II.B. Having relied exclusively on the formulas in the Agreement, Bobrow testified that he made no attempt to determine the fair market value of the stock on any of the traditional bases. King testified as to market value under each of the three approaches, based on VMG's financial statements for the last full calendar year preceding the filing of the debtor's bankruptcy petition.[5] *237 1. Market-Value Approach As previously noted, King rejected this method for valuing the stock. He testified that the debtor was a "rainmaker" and that when such a person leaves a firm without a non-compete agreement, it leaves the firm's client base completely vulnerable; he concluded that, under these circumstances, the probability that the clients of a departing shareholder would follow him elsewhere was so substantial that, in his opinion, the unprotected client base was of inconsequential value to VMG. Although King's report included market value calculations based on comparisons with the sales of several closely-held accounting firms, he rejected the use of such data because the firms were not sufficiently comparable to VMG, VMG held no non-compete agreements, had litigation pending against it, was under investigation, and had experienced declining revenues. 2. Adjusted Net-Asset Approach Having concluded, under the facts presented, especially the absence of a non-compete agreement, that the value of VMG's client base was negligible, King used the fair market value of VMG's other assets — accounts receivable, furniture, fixtures, and equipment — and liabilities — estimated settlement value of threatened litigation, and payoff value of debt — to determine that, as of June 14, 1993, VMG had a negative net worth. Although some of the litigation pending when the bankruptcy petition was filed in 1993 has subsequently settled, King's determination of fair market value correctly utilized the estimated settlement value as of June 14, 1993, rather than the amounts for which the suits actually settled years later. The fair market value of the stock on June 14, 1993 is the price a buyer would be willing to pay to acquire it on that date; it is, therefore, properly determined prospectively as of that date, without the benefit of later hindsight. 3. Income-Valuation Approach Under this approach, the fair market value of the company is equal to the present value of VMG's expected net-income stream. King calculated (a) a cash-flow multiple, taking into account his assumptions about various risks — including those based on company size, expected growth, and the type of business, and multiplied it by (b) VMG's representative earnings, its expected net income "normalized" by substituting industry averages for the actual amounts of the principals' salaries. King based his estimate of VMG's representative earnings on its average normalized earnings for 1989-91. Although figures were available for 1992 and a portion of 1993, King noted that those amounts were distorted as a result of adjustments regarding the disposition of assets and cessation of business. He testified that, in his judgment, the earnings for 1989-91, reduced by 25% to take into account pre-petition erosion of VMG's client base, were more indicative of expected future earnings. Because the representative earnings were not sufficient to provide the two principals with salaries equal to the industry average, the net income was zero. The present value of the net income, the fair market value of VMG, was, therefore, also zero, as was the value of the debtor's 22% share of VMG. C. VALUE OF GOODWILL The court finds King's expert opinion that the debtor's stock had no market value supported by credible testimony. The trustee relies on In re Prince, 85 F.3d 314 (7th Cir.1996), to discredit King's opinion. Prince involved a Chapter 11 debtor *238 who was the sole shareholder of a professional corporation through which he operated his practice as an orthodontist. In Prince, the only issue was whether, in the absence of a non-compete agreement, the valuation of the debtor's stock on the date of plan confirmation should exclude, as a matter of law, any component for goodwill. Prince, 85 F.3d at 317 ("[T]he bankruptcy court found virtually every issue of fact in this case to be undisputed and distilled the valuation down to one issue of law: whether Dr. Prince's personal goodwill should be included in the calculation of the stock's value.") (emphasis added). The court held that goodwill was not excluded as a matter of law; that the amount of goodwill to be included depended upon the probability that the debtor would leave his own firm to compete with it, taking his patient base with him. However, the court was "not asked on appeal to review the district court's application of law to the facts because the factual consequences hinging upon whether Dr. Prince's goodwill is treated as part of the stock value are undisputed. Both parties agree that if Dr. Prince's goodwill is excluded ... the worth of the stock is limited to the ... physical assets. On the other hand, assuming that Dr. Prince's goodwill is properly included in the stock value, the Princes do not assert error in the bankruptcy court's numerical computation of the goodwill's value." Prince, 85 F.3d at 319. In the present proceeding, goodwill is not being excluded as a matter of law. Rather, the question is one of fact: what value, if any, to place on the goodwill asset of a professional corporation when nothing prevents either or both of the shareholders from leaving to compete with it, taking their client bases with them. King testified that, in his opinion, the absence of a covenant not-to-compete put VMG at substantial risk of losing its client base. Based on his assessment of this risk, King valued VMG's client base as zero under his market-based and asset-based calculations, and, in his income-based valuation, he reduced the three-year average earnings utilized by 25% to account for erosion of the client base. The court finds no conflict between the valuations based on King's opinions of the risks associated with the lack of non-compete agreements and the holding of Prince. The Prince court discussed the need to take into account the probability that the shareholder would leave to compete and the impact such action would have on the expected future earnings of the firm. The possibility of a shareholder competing "affected the value of the stock: the higher the probability of him competing, the lower the expected future cash flows to the stock." Prince, 85 F.3d at 321. V. CONCLUSION The court finds that the value of the debtor's VMG stock on the bankruptcy petition date, was zero, or, in any event, less than the $3,808 exemption claimed by the debtor. Since the stock was fully exempt, the court concludes that the trustee is not entitled to any of the recoveries he seeks. The action will be dismissed with prejudice, and judgment will enter for the defendants. JUDGMENT This action came on for trial before the Court, Honorable Robert L. Krechevsky, U.S. Bankruptcy Judge, presiding, and the issues having been duly tried, and the Court having issued a memorandum of even date, it is ORDERED, ADJUDGED AND DECREED that the plaintiff take nothing, and that the action be dismissed on the merits. NOTES [1] On October 22, 1993, the trustee filed an objection to the debtor's amended claim of exemption of the stock "as to any amount in excess of the statutory amounts allowed." On November 11, 1993, when the trustee's objection came on for hearing, counsel for the trustee appeared and requested that the hearing be marked off the calendar. No further action on the objection appears of record, although the trustee in his post-trial brief makes the following statement: "Pursuant to an oral order of this Court, the Trustee's objection to exemption was merged with this law suit." (Trustee Brief at 3.) [2] The principals of VSM, all CPAs, and their initial stock ownership were as follows: John Schnidman 35% Debtor 30% William Schuck 10% Macca 20% Bruce Del Conte 5% [3] An executory contract is "a contract on which performance remains due to some extent on both sides." Eastern Air Lines, Inc. v. Ins. Co. of the State of Pennsylvania (In re Ionosphere Clubs, Inc.), 85 F.3d 992, 998 (2d Cir.1996) (citations and internal quotation marks omitted). [4] Section 365 provides, in relevant part: (d)(1) In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected. 11 U.S.C. § 365(d)(1). [5] The trustee argues that King should have used VMG's May 31, 1993 internal financial statements, rather than the December 31, 1992 figures. King testified that he tended to be wary of interim financial statements, prepared primarily for internal use, of closelyheld businesses; that a number of significant adjustments are made only at the end of the year, and that the internal figures relied on the book, rather than market, value of several assets, including the accounts receivable. Because the year-end figures were those relied upon in the preparation of the company's tax returns, King testified that he had more confidence in their accuracy, and the court credits this testimony.

2017 IL App (3d) 160022 Opinion filed February 17, 2017 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2017 MARTHA E. PALMER, MICHELE L. ) Appeal from the Circuit Court GREEN, LUANN L. CLARK, JOEL L. ) of the 10th Judicial Circuit, WATKINS, MATTHEW B. WATKINS, ) Marshall County, Illinois. JENNIFER L. MCCARTHY, ASHLEY ) WATKINS, JOHN W. WATKINS, MARY J. ) CARLSON, RICHARD L. WATKINS, ) ROSE M. MURPHY, RONALD P. ) WATKINS, DANIEL B. WATKINS, ) ROBERT J. WATKINS, ALBERT K. ) WATKINS, JAMES L. WATKINS, ) STEPHEN N. WATKINS, JO GREENSLET ) JONES, JANE MARIE GREENSLET, ) Appeal No. 3-16-0022 KENNETH A. GREENSLET, and ) Circuit No. 14-MR-34 JOHN M.GREENSLET, ) ) Plaintiffs-Appellees, ) ) v. ) ) CHRIS E. MELLEN, PAUL H. MELLEN, ) DENNIS L. MELLEN, CYNTHIA A. ) PARRY, and DAVID L. MELLEN, ) Honorable ) Michael P. McCuskey, Defendants-Appellants. ) Judge, Presiding. _____________________________________________________________________________ JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices O’Brien and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________ OPINION ¶1 Plaintiffs, Martha E. Palmer and other relatives, filed a complaint seeking dissolution of a family land trust and partnership against the remaining partners, Chris E. Mellen and his siblings. The trial court granted summary judgment in favor of plaintiffs. On appeal, defendants argue that the trial court erred in (1) ruling, as a matter of law, that the partnership should be dissolved, (2) ignoring provisions of the partnership agreement, (3) denying their motion to strike plaintiffs’ affidavits, and (4) ordering the trust property sold at public auction by a named auctioneer. We affirm. ¶2 In 1977, Albert Leslie Watkins and Rose Frances Watkins (grantors), as husband and wife, formed the “Watkins Enterprises Land Trust/Partnership Agreement.” Albert passed away a few months after the partnership agreement was created, and Rose died in 1989. Under the terms of the agreement, 1112 shares were initially issued to Albert and Rose’s children and their then-living grandchildren. Their children have since distributed portions of their shares to their descendents. The partnership’s primary asset is 450 acres of land, of which 280 acres are tillable and 120 acres are covered in trees and include a cabin. ¶3 The partnership agreement provides that “[w]hen two or more Persons own Shares, a Partnership shall thereupon be created and be governed, except as otherwise provided in this Agreement, by the Partnership Act.” Article 2 of the partnership agreement defines the business of the partnership as “farming and related activities.” Article 9 describes the termination process and states that the partnership “shall terminate upon the first to occur of the bankruptcy, receivership or dissolution of the partnership, or the written agreement of all the Shareholders.” ¶4 The trustee of the partnership is assigned certain duties under article 11 of the agreement. Specifically, section 11.08 states: 2  “The Trustee shall have the following powers and discretions and, except to the extent inconsistent herewith, any others that may be granted by law: (a) To sell any portion of the Property for cash or on credit, at public or private sales; to exchange any portion of the Property for other property; to grant options to purchase or acquire any portion of the Property and to determine the prices and terms of sales, exchanges and options.” ¶5 Currently, there are 26 partners under the trust and partnership agreement. Plaintiffs comprise 21 of the 26 partners and collectively hold 926.67 shares in the partnership (83.33%). Defendants, the remaining 5 partners, hold 185.33 shares (16.67%). Plaintiffs include two of the grantors’ three living children, Martha E. Palmer and Joel L. Watkins, 23 grandchildren, and one great-grandchild. The five defendants are all children of the grantors’ third child, Georga Mellen. The trustee of the partnership is plaintiff Robert J. Watkins, who is also a partner. According to the terms of the agreement, the partnership is governed by a management committee made up of five partners, including defendant Chris Mellen. ¶6 In 2012, several partners indicated to the trustee that they would like to be “bought out” by the partnership, but the partnership did not have sufficient funds to purchase the partners’ shares. On July 3, 2012, four of the five members of the partnership’s management committee voted in favor of selling the property at public auction in an attempt to raise funds for the buyout and to allow any interested partner an equal right to purchase the property. Chris Mellen voted against the sale and requested, instead, that the property be appraised. ¶ 7 Three appraisals were then completed. They indicated that the entire 450 acres, including the cabin, were valued at (1) $2,634,000, (2) $3,160,000, and (3) $3,256,000. The appraisals also 3  provided subdivided parcel reports that valued the pasture and timber areas at (1) $3960 per acre, (2) $3075 per acre, and (3) $3412 per acre. ¶8 Shortly thereafter, Chris Mellen and Paul Mellen made several offers to purchase the timbered portions of the property or, in the alternative, the entire parcel. The first offer to purchase the entire parcel proposed a purchase price based on the average of the three appraisals, $3,016,666, minus the average value of the cabin and 50% of the closing costs for 2012. The second offer did not include a reduction for 50% of the 2012 closing costs. All of their offers were rejected by the partners. ¶9 In the summer of 2013, Trustee Watkins began making plans to sell the partnership property. He contacted Doug Hensley, a local real estate agent and auctioneer, and asked him to work on a proposal for public auction. ¶ 10 On November 21, 2014, plaintiffs filed a complaint seeking judicial dissolution of the partnership and supervision of the partnership’s winding up. In the complaint, plaintiffs alleged that the partnership’s economic purpose has been unreasonably frustrated and that defendants had engaged in conduct making it impracticable to continue carrying on partnership business. As such, plaintiffs requested dissolution and a sale of the partnership real estate on the open market under section 801(5) of the Uniform Partnership Act (1997) (Act) (805 ILCS 206/801(5) (West 2014)). Defendants moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2014)). ¶ 11 Plaintiffs filed a motion for summary judgment. Attached to the summary judgment motion were numerous affidavits submitted by plaintiffs as partners. The affidavits stated that defendants Chris Mellen and Paul Mellen had verbally and physically intimidated and threatened individual plaintiffs, were vocally aggressive at committee meetings, and refused to participate in 4  partnership meetings. The affidavits further averred that all five defendants had failed to respond to any correspondence from the partnership to participate in the business of the partnership. ¶ 12 The trial court denied defendants’ motion to dismiss. Defendants then filed an answer to the complaint and a response to plaintiffs’ motion for summary judgment. In their responsive pleading, defendants argued that the partnership agreement required the written consent of all the partners, except for ministerial acts, and that before the real estate could be sold, all of the partners had to agree that a public sale was appropriate. They also filed a motion to strike the affidavits attached to plaintiffs’ summary judgment motion, which was denied. Both parties subsequently filed supplemental affidavits in support of their summary judgment pleadings. ¶ 13 Following arguments by counsel, the trial court granted summary judgment in favor of plaintiffs. The trial court found that the value of the partnership real estate was decreasing to the prejudice of the parties and that it was in the best interests of the partners to sell the property. In reaching its decision, the court noted that relationships among the partners had irreparably deteriorated and that defendants Chris Mellen and Paul Mellen had engaged in conduct related to the partnership business that made it “not reasonably practicable” to carry on the business in partnership with them. The court ruled that the events requiring dissolution under section 801(5) of the Act had occurred, finding that (1) the economic purpose of the partnership was likely to be unreasonably frustrated, (2) partners had engaged in conduct related to the partnership business that made it not reasonably practicable to carry on the business in partnership with that partner, and (3) it was not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement. ¶ 14 The trial court ordered that the partnership be dissolved pursuant to section 801(5) of the Act and that the winding up of the business be subject to judicial supervision as requested under 5  section 803(a). The court further ordered that the land trust property be sold at public auction “by Gorsuch-Hensley Real Estate and Auction, Inc., or by an alternative suitable auctioneer or agent selected by the Trustee of the Partnership and approved by the Court.” ¶ 15 ANALYSIS ¶ 16 I ¶ 17 Defendants argue that the trial court erred in dissolving the partnership under section 801(5) of the Act at the summary judgment stage. They claim that the trial court erred in finding that defendants engaged in conduct related to the partnership making it not reasonably practicable to carry on business with other partners or in conformity with the land trust agreement under sections 801(5)(ii) and (iii). They also maintain that dissolution was inappropriate under section 801(5)(i) because the economic purpose of the business partnership is still profitable. ¶ 18 Section 801 of the Uniform Partnership Act provides: “Events causing dissolution and winding up of partnership business. A partnership is dissolved, and its business must be wound up, only upon the occurrence of any of the following events: *** (5) on application by a partner, a judicial determination that: (i) the economic purpose of the partnership is likely to be unreasonably frustrated; (ii) another partner has engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with that partner; or 6  (iii) it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement[.]” 805 ILCS 206/801(5) (West 2014). ¶ 19 The Uniform Partnership Act was enacted in Illinois in 2002. See Pub. Act 92-740, art.VIII, § 801 (eff. Jan. 1, 2003). Prior to the Act, the partnership statute provided that: “(1) On application by or for a partner the court shall order a dissolution whenever: *** (c) a partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business, (d) a partner willfully or persistently commits a breach of the partnership or agreement, or otherwise so conducts himself in matter relating to the partnership business that is not reasonably practicable to carry on the business in partnership with him[.]” 805 ILCS 205/32(1) (West 2000). ¶ 20 While there are few cases interpreting section 801(5) of the current act, there are a number of cases interpreting similar provisions found in section 32(1). Courts interpreting the pre-2002 statute have held that where the relations among partners had deteriorated to such an extent that the partners no longer functioned in partnership with each other, the partnership should be dissolved. See Tembrina v. Simos, 208 Ill. App. 3d 652, 658 (1991); Susman v. Cypress Venture, 114 Ill. App. 3d 668, 675 (1982). In Tembrina, the court ordered the dissolution of the partnership. In doing so, the court stated that it was apparent that animosity existed between the partners and that they were unwilling to cooperate with each other. The appellate court also took note of the actions of one partner in causing the partnership property to 7  be conveyed into his individual name and failing to pay real estate taxes. Tembrina, 208 Ill. App. 3d at 658; see also Susman, 114 Ill. App. 3d at 675 (when relationship existing between partners renders it impracticable for them to conduct business beneficially, dissolution is proper). ¶ 21 Courts in other jurisdictions have also interpreted provisions identical to the language of the Act and have reached similar conclusions. In Kirksey v. Grohmann, 2008 SD 76, 754 N.W.2d 825, plaintiffs sought dissolution under the state’s partnership statute and the South Dakota Supreme Court discussed what it meant to be “reasonably practicable.” Id. ¶¶ 13-17. The court recognized that while forced dissolution is a drastic remedy, it is appropriate where the economic purpose of the company is reasonably frustrated and it is not reasonably practicable to carry on the partnership business. In that case, four sisters inherited their family’s ranch. They formed a limited liability company conveying interest in the property to the company in exchange for equal ownership. Two sisters leased the property at a rate set in the operating agreement, which had fallen below market value. As a result, the two other sisters wanted to raise rent prices. The sisters could not communicate regarding the company except through legal counsel, and they refused to reach an agreement. Id. ¶¶ 7-8. ¶ 22 The court determined that it was not reasonably practicable to carry on company business, defining “reasonably practicable” under its plain and ordinary usage as “capable of being done logically and in a reasonable, feasible manner.” Id. ¶ 15. It noted that the sisters did not trust or cooperate with each other and were unable to conduct business efficiently. The court agreed that the company business of ranching could carry on despite the sisters’ dissension but that the unequal distribution of financial gain and the inability to agree on a company vote meant that “the operation of the company cannot be a reasonable and practicable operation of a business.” Id. ¶ 27. The court reiterated that the standard set forth was one of reasonable 8  practicability, not impossibility. It concluded that dissolution and the winding up of company business was an appropriate remedy given the unrelenting impasse the company faced. Id. ¶ 26. ¶ 23 Similarly, in Brennan v. Brennan Associates, 977 A.2d 107 (Conn. 2009), the Connecticut Supreme Court considered a demand for judicial dissociation of a partner from a partnership based on language parallel to that in sections 801(5)(ii) and (iii). Id. at 120. Two partners no longer trusted the third partner, who was the majority shareholder following the death of the fourth partner. The court found that the mistrust was justified and was relevant in determining whether the acrimony in the partnership was so pervasive that dissociation was warranted. Id. at 119-20. The court held that “an irreparable deterioration of a relationship between partners is a valid basis to order dissolution” and, therefore, was a valid basis for the alternative remedy of dissociation. Id. at 120. ¶ 24 Here, defendants refused to agree to the sale of the property and will not directly communicate with plaintiffs. It has become impracticable for plaintiffs to carry on the partnership with them. Under the terms of the partnership agreement, a unanimous vote is required for a decision to dissolve, and the partners are unable to reach a unanimous decision. Moreover, it is undisputed that defendants have harassed individual plaintiffs, refused to correspond regarding partnership business, and refused to participate in necessary meetings and voting procedures. It is also undisputed that personal and professional relationships between defendants and plaintiffs have suffered irreversible damage. Defendants’ tactics have deprived the majority of the partners of realizing any benefit from the partnership. ¶ 25 Under these circumstances, there is no genuine issue of fact that (1) the partners have engaged in conduct relating to the partnership that has made it not reasonably practicable to carry on the business in partnership and (2) it is not otherwise reasonably practicable to carry on the 9  land trust business in conformity with the family’s partnership agreement. Section 801(5) of the Act clearly denotes that a judicial determination of only one factor is required to support an order dissolving a partnership. See 805 ILCS 206/801(5)(i)-(iii) (West 2014); Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006) (use of the word “or” is disjunctive and denotes different alternatives). Accordingly, the trial court did not err in granting summary judgment in favor of plaintiffs and dissolving the partnership under section 801(5). ¶ 26 II ¶ 27 Defendants also argue that the trial court’s order dissolving the partnership impermissibly circumvented the language of the agreement. They claim the agreement provides that plaintiffs can transfer shares back to the partnership as a buyout if they wish to leave the partnership and the agreement does not contemplate the sale of partnership property unless the partners unanimously consent. ¶ 28 Partnership agreements may be used to govern relations among and between the partners in derogation of the Act. However, the statute lists several nonwaivable provisions that cannot be varied or altered by a partnership agreement, including the requirement to wind up the partnership business as specified in section 801(5). 805 ILCS 206/103(b) (West 2014); see generally 1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill. App. 3d 863, 868 (2009) (partnership agreement, stating that general partner could engage in “whatever activities” he chose, did not contract away the fiduciary duty general partner owed limited partners under the Act). ¶ 29 Here, the plain language of the partnership agreement demonstrates that defendants’ arguments must fail. No provision in the partnership agreement allows a partner to voluntarily tender his or her shares back to the partnership or to the other partners in exchange for their value 10  unless that partner receives a bona fide purchase offer for the shares from a person who is not a descendent of the grantors or a partner dies. Article 7 of the partnership agreement provided that if a partner receives an offer to purchase his shares from someone other than a descendent of the grantors, the right of first refusal provision applies. In the event of an interested buyer, the partner must transmit an offer to both the partnership and the other partners first as provided in section 7.01 of the agreement. Article 7 also provides for the purchase of partnership shares upon the occurrence of a “trigger event,” defined as “the death of a [p]artner.” Article 8 describes the procedure to determine the purchase price of shares sold under the agreement. It does not provide a partner with the right to force a sale of his shares to the partnership or to the other partners. Thus, nothing in the agreement gives plaintiffs the ability to force the partnership or the remaining partners to “buy out” their shares. ¶ 30 Even if the agreement contained a buyout provision or a provision for dissolving the business and selling the land trust property, certain provisions of the Act cannot be varied or altered by any partnership agreement, including dissolving the partnership and the winding up of partnership business as specified in sections 801(4), (5), or (6). See 805 ILCS 206/801(5), 103(b)(7) (West 2014). Thus, the terms of the agreement do not prevent the partners from filing a petition to judicially dissolve the partnership under section 801(5) of the Act or the court from entering a dissolution order where a provision in section 801(5) has been met. ¶ 31 III ¶ 32 Defendants next contend that the trial court erred in denying their motion to strike plaintiffs’ affidavits submitted in support of plaintiffs’ motion for summary judgment. Defendants argue that the affidavits fail to comply with Illinois Supreme Court Rule 191 (eff. 11  Jan. 4, 2013), which requires that such affidavits set forth with particularity the facts upon which the affiant relied, and should have been stricken by the trial court. ¶ 33 Illinois Supreme Court Rule 191 provides in relevant part: “Affidavits in support of *** a motion for summary judgment under section 2-1005 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all documents upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). In general, this court reviews a circuit court's decision on a motion to strike an affidavit for an abuse of discretion, but when the motion “was made in conjunction with the court's ruling on a motion for summary judgment,” we employ a de novo standard of review with respect to the motion to strike. Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001). ¶ 34 Here, we find no error in the trial court’s denial of defendants’ motion to strike plaintiffs’ affidavits. Plaintiffs’ affidavits established several material facts that were undisputed. They set forth averments containing specific examples of tenuous situations between the partners. They also provided facts regarding partnership procedures and committee meetings and plaintiffs’ failed attempts to correspond with defendants. All of the affidavits established that there had been an irreparable deterioration of the relationship between plaintiffs and defendants as partners. The trial court’s denial of the motion to strike is affirmed. ¶ 35 IV 12 ¶ 36 Last, defendants claim that the trial court erred in ordering that the real estate be sold at public auction and naming the auctioneer sua sponte. ¶ 37 On application of a partner, the court may, “for good cause shown,” order judicial supervision of liquidation of the partnership or, as the statute provides, the “winding up” of partnership business. 805 ILCS 206/803(a) (West 2014). In this case, the trial court found that good cause had been shown for judicial supervision and ordered that the partnership property be sold at public auction by Gorsuch-Hensley Real Estate and Auction. Defendants do not challenge the trial court’s finding of good cause. Accordingly, we find that the trial court’s supervision of the winding up of business was proper and that its order directing the sale of partnership property was appropriate. See 805 ILCS 206/803(a) (West 2014). ¶ 38 Defendants also argue that the court erred in specifically naming an individual auctioneer. The affidavit of Doug Hensley, the auctioneer assigned by the court, demonstrated that his firm had prepared marketing materials for the auction in 2013 and had entered into a prior contract with the partnership to conduct the auction. Appointing an auctioneer who was familiar with the property is financially advantageous to the partnership and its assets. See Higgins v. Higgins, 72 Ill. App. 2d 179, 190-91 (1966) (economic conditions and financial benefits are important factors in decisions liquidating partnership property). Under the circumstances, we find that the trial court did not abuse its discretion in appointing Hensley as the auctioneer, or in the alternative, providing the trustee with the power to select another suitable auctioneer. ¶ 39 CONCLUSION ¶ 40 The judgment of the circuit court of Marshall County is affirmed. ¶ 41 Affirmed. 13 

254 Ga. 610 (1985) 331 S.E.2d 521 WARD v. THE STATE. 42248. Supreme Court of Georgia. Decided June 19, 1985. Rehearing Denied July 23, 1985. Thomas R. Moran, Hugh E. Smith, Jr., for appellant. Lewis R. Slaton, District Attorney, Margaret V. Lines, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee. WELTNER, Justice. Clearance Ward shot and killed Vernon Knight with a handgun. He was convicted of murder, possession of a firearm by a convicted felon, possession of a pistol without a license, and carrying a concealed weapon.[1] At trial, Ward admitted shooting Knight after an argument over money. There was one eyewitness to the homicide, who testified at the trial. 1. Ward contends that the trial court erred in failing sua sponte to sever for trial the two felony counts of the indictment (possession of a firearm by a felon and murder). In Poteat v. State, 251 Ga. 87, 90 (303 SE2d 452) (1983), we stated: "`The right to a severance . . . arises only upon appropriate *611 motion. No motion to sever having been made in the trial court, the contention is without merit.'" The court's failure to order severance was not error.[2] 2. Ward contends that the court erred in failing to instruct the jury on the issue of retreat, as his sole defense was justification. The court gave Ward's requested charges on justification. There was no request for a charge on retreat, and Ward made no exception or reservation to the charge. The prosecutor did not question Ward as to why he did not quit the scene of the argument. As the issue of retreat was not raised by the evidence, there was no error. Compare Johnson v. State, 253 Ga. 37 (315 SE2d 871) (1984). 3. The evidence supports the verdict under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Judgment affirmed. All the Justices concur. NOTES [1] The murder was committed on January 5, 1984. Ward was convicted on September 6, 1984. His motion for new trial was filed September 21, 1984, and amended, heard and denied on February 8, 1985. The transcript was filed on December 3, 1984. A notice of appeal was filed on February 28, 1985. The case was docketed in this court on April 17, 1985, and submitted on May 31, 1985. [2] As to some aspects of severance in a similar circumstance, see Stone v. State, 253 Ga. 433 (321 SE2d 723) (1984) and Head v. State, 253 Ga. 429 (322 SE2d 228) (1984).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-7618 CARLOS RAFAEL CALLEJA, Defendant-Appellant.  Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CR-86-28, CA-00-639-7) Submitted: January 11, 2001 Decided: January 24, 2001 Before NIEMEYER, WILLIAMS, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. COUNSEL Carlos Rafael Calleja, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. CALLEJA OPINION PER CURIAM: Carlos R. Calleja seeks to appeal the district court’s order denying his motion filed under former Rule 35(a) of the Federal Rules of Criminal Procedure, which the district court construed as a motion under 28 U.S.C.A. § 2255 (West Supp. 2000), and the order denying his motion for reconsideration. We dismiss the appeal from the denial of the § 2255 motion because the appeal was untimely filed. The dis- trict court entered its order denying § 2255 relief on August 11, 2000. Calleja’s notice of appeal was filed on November 9, 2000. Because Calleja did not file his notice of appeal within the sixty-day appeal period provided by Fed. R. App. P. 4(a)(1), and the district court did not extend or reopen the appeal period under Fed. R. App. P. 4(a)(5), (6), we dismiss this portion of the appeal for lack of jurisdiction. With regard to Calleja’s motion for reconsideration, we find that although the district court considered the motion as one filed under Fed. R. Civ. P. 59(e), it should have been construed as one filed under Fed. R. Civ. P. 60(b), because the motion was filed more than ten days after entry of judgment. Fed. R. Civ. P. 59(e), 60; CNF Con- structors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 400 (4th Cir. 1995). Where, as here, the motion seeks "reconsideration of legal issues already addressed in an earlier ruling, the motion ‘is not autho- rized by Rule 60(b).’" CNF Constructors, Inc., 57 F.3d at 401 & n.2 (quoting United States v. Williams, 674 F.2d 310, 313 (4th Cir. 1982)). The district court therefore did not abuse its discretion in denying the motion. Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997) (stating standard of review). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 

Order Michigan Supreme Court Lansing, Michigan February 7, 2011 Robert P. Young, Jr., Chief Justice 141807 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra, Plaintiff-Appellee, Justices v SC: 141807 COA: 299314 Monroe CC: 08-037259-FH LONNIE ROBERTS RATLIFF, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the August 26, 2010 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. ZAHRA, J., did not participate because he was on the Court of Appeals panel. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. February 7, 2011 _________________________________________ y0131 Clerk 

400 So.2d 536 (1981) C.A. DAVIS, INC., and Insurance Company of North America, Appellants, v. CITY OF MIAMI, Etc., et al., Appellees. No. 80-693. District Court of Appeal of Florida, Third District. June 23, 1981. Rehearing Denied July 24, 1981. *537 Horton, Perse & Ginsberg and Edward A. Perse; Welbaum, Zook, Jones & Williams and W. Frank Greenleaf, Miami, for appellants. Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin, Miami, for appellees. Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ. BARKDULL, Judge. Plaintiff and counter-defendant, C.A. Davis, Inc., and counter-defendant, Insurance Company of North America [INA], appeal from a final judgment entered in favor of the defendant/counterclaimant, City of Miami [City]. A cross appeal has also been filed by the City. *538 This appeal concerns a contract between the City and Davis, under which Davis was to landscape and to place new tiles on the sidewalk along Flagler Street in downtown Miami. Under the contract, the City provided Davis with the "best available records" showing the "... locations or grades of underground structures, utilities, foundations ..." in the area. However, Davis was to "... bear all losses resulting to him on account of ... existing underground installations being different from what he anticipated ...".[1] One hundred-eighty days was specified under the contract for completion of the project, and time was said to be of the essence. Davis contends that, from the beginning, it was impeded and delayed in its work, due mainly to utility installations and building foundation problems which were improperly detailed or omitted on the plans supplied to it by the City. Furthermore, Davis contends that the City hid behind the contract provision (which placed the burden for such problems on Davis), even though the City had knowledge of the problems. Finally, Davis argues that the tiles selected by the City would not stay down properly, although they were laid according to contract specifications. In the face of these problems and with only a portion of the contract completed, Davis walked off the job. Davis had been paid at various stages for those portions it had completed prior to walking off the job. Thereafter, by use of new (different) tiles, another contractor completed the project. Davis sued the City for breach of contract in failing to provide adequate plans and specifications and in failing to cooperate, thereby hindering Davis' performance. Davis sought the balance due on the contract, damages for delay, and compensation for work performed beyond that *539 required by the contract. The City filed a general denial, counterclaiming against Davis and its surety, INA, for breach of contract; specifically the cost of completion.[2] The City defended and failed a counterclaim seeking damages for delay, in accordance with the provisions of the contract.[3] A jury verdict was entered adverse to the plaintiff and for the defendant and counter-plaintiff, City, against Davis but was silent as to the surety. Subsequently, a final judgment was rendered on the verdict in favor of the counter-plaintiff and against the counter-defendants, Davis and its surety.[4] This appeal ensued. The appellant, Davis, contends: (1) That it was error to rule that the contract precluded Davis from introducing evidence concerning delays and costs resulting from underground obstruction encountered during the project; it was also error to deny Davis' requested instruction on this issue. (2) That it was error to hold that Davis, alone, had a duty to secure utility company cooperation with regard to underground obstructions encountered on the project, and it was error to refuse Davis' requested jury instruction concerning the City's duty to cooperate in Davis' performance of the contract. (3) That it was error not to allow evidence that the City did not properly mitigate its cost of completion and other damages. The appellant, INA, contends that it was error to enter a judgment against it, where that party was neither mentioned in the jury instructions nor on the jury verdict form. We affirm as to the main appeal and reverse as to the cross appeal for the reasons hereinafter stated. It was proper to hold that Davis could not claim damages for delay due to inaccuracies in the plans, where such damages and delays were not properly presented and proved. The law in Florida is that so long as a public authority does not willfully or knowingly delay job progress it will avoid liability under a "no damage for delay" clause. See: McIntire v. Green-Tree Communities, Inc., 318 So.2d 197 (Fla.2d DCA 1975). Davis was unable to present evidence showing any specific delay caused by the City; the court correctly refused to instruct the jury on Davis' claims for delayed damages. See: Luster v. Moore, 78 So.2d 87 (Fla. 1955), for the proposition that a jury instruction on a particular theory of the case will not be given where there is no competent evidence to support it. Furthermore, the cases cited by Davis are inapplicable because in none of them did the court discuss the validity or effect of a "no damages for delay" clause. In the present case, unlike the cases cited by Davis, there was no implied warranty with regard to the plans nor was there any misrepresentation in the plans. The court correctly refused to instruct the jury on the City's duty to cooperate where there had been no evidence that the City had failed to cooperate. The evidence before the court demonstrated that the City repeatedly and routinely cooperated in an effort to keep the project going. In fact, the City had no implied duty to do Davis' work, but only a duty not to hinder or impede that work. See: Casale v. Carrigan and Boland, Inc., 288 So.2d 299 (Fla. 4th DCA 1974). The court correctly refused to allow Davis to present evidence concerning the quality of the tile or concerning the tile installation by the successor contractor. Davis, as the defaulting contractor, may not claim that the City spent too much to complete the project absent *540 evidence of waste, extravagance or lack of good faith. See: R.K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87 (Fla.3d DCA 1969). The court correctly ruled that INA was liable, as a matter of law, to pay the City for the damage it suffered as a result of Davis' work and it correctly entered a judgment against INA. INA neither requested a jury instruction regarding its liability nor objected to the special verdict form (omitting its name) which was presented to the jury. Therefore, INA may not now be heard to complain that the verdict was improper or that judgment should not have been entered against it. See: Tidwell v. Toca, 362 So.2d 85 (Fla.3d DCA 1978). As to the cross appeal, it was error to prevent the City from amending its counterclaim, specifically to state its claim for delay, some seven months prior to the trial and where such an amendment would have caused no prejudice or surprise to Davis. Later, at trial, when the evidence supporting the claim was admitted without objection, leave to amend should have been given freely. See: Fla.R.Civ.P. 1.190(a) and (e). When Davis failed to object to evidence presented on this subject, the issue was thereby tried by implied consent and the jury should have considered it. See: Free Bond, Inc. v. Comaza International, Inc., 281 So.2d 61 (Fla.3d DCA 1973). The final judgment under review in the appeal taken by Davis and INA be and the same is hereby affirmed. So much of the final judgment as relates to the counterclaim by the City be and the same is hereby reversed, and the cause remanded for a new trial solely on the issue of the damages, if any, that the City suffered under the penalty provisions of the contract. In this context, a subsequent jury or finder of the fact may be informed of the amount the City has already recovered under the judgment herein. Affirmed in part, reversed in part, with directions. NOTES [1] CONDITIONS-SEC. 5-1 The locations or grades of underground structures, utilities, foundations, etc., as shown on the Plans, are taken from the best available records. The City shall not be held accountable for inaccuracies or omissions in the locations or grades of existing underground structures, utilities, foundations, etc. No claim is to be made by the Contractor for damage on account of the proximity to, leaking from or delay caused by underground structures, utilities, foundations, etc. GENERAL CONDITIONS-SEC. 6-9 The Contractor shall take into account all contingent work which has to be done by other parties arising from any cause whatsoever and shall not plead his want of knowledge or said contingent work as an excuse for delay in his work, or for non-performance. GENERAL CONDITIONS 7-2 RESPONSIBILITY OF THE CONTRACTOR. 7-2.1 PROSECUTION OF THE WORK. The Contractor shall be responsible for the good condition of the Work until his release from his obligations. He shall bear all losses resulting to him on account of the amount or character of the Work, the character of the ground or existing underground installation being different from what he anticipated, or on account of the weather or the elements. SPECIAL PROVISIONS 2.24 COVER OVER EXISTING UNDERGROUND STRUCTURES. All underground information shown on the Plans is as complete and accurate as can be shown from the existing records. Certain structures may not be located precisely as shown, or may be omitted entirely. Caution shall be exercised by the Contractor in grading operations, as some existing underground utilities have a minimum cover. The Contractor shall be responsible for replacing any underground facility broken or dislocated during construction for which sufficient underground information has been shown on the plans. CONSTRUCTION METHODS 400 LOCATION OF UTILITIES AND CONTROLS EXERCISED. 400-1 Utility Control and Protection: The Contractor shall notify each utility company at least two weeks prior to the start of construction to arrange with each utility for positive underground locations, relocation if required, or support and protection of its utility, where that utility may be in conflict with the proposed construction. Moving any water mains or valves for the convenience of the Contractor shall be negotiated and paid for by the Contractor. The Contractor shall schedule his work in such a manner that he will not be delayed by the utility companies' relocating, protecting or supporting their facilities. No compensation shall be made for such loss of time. All underground information shown on the Plans is as complete and accurate as can be determined from existing records. However, because of conflicting and sometimes erroneous information, certain structures may not be located precisely as shown, or may be omitted entirely from the Plans." [2] Based on the cost incident to laying the originally selected tiles, not the cost of laying the subsequently selected tiles which were laid by the successor contractor. [3] Penalty of $100.00 per day for delay. [4] At the time of the charge conference, the City requested an instruction that if the jury returned a verdict in favor of the counter-plaintiff it should render a verdict against both the contractor (Davis) and its surety (INA). A colloquy occurred and the trial court indicated that such an instruction was not necessary; that if there was a verdict against Davis because of the terms of the surety undertaking, it would also be against INA. All parties acquiesced in this statement by the court.

450 F.2d 257 MISCO LEASING, INC., Plaintiff-Appellant,v.James H. VAUGHN et al., Defendants-Appellee. No. 71-1142. United States Court of Appeals,Tenth Circuit. Oct. 26, 1971. Richard W. Stavely, Wichita, Kan., for plaintiff-appellant. Timothy E. McKee, Wichita, Kan. (Jochems, Sargent & Blaes, Wichita, Kan., on the brief), for defendants-appellee. Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. 1 The question presented is whether Kansas process under its long arm statute is valid against an Oklahoma resident who executed a guaranty of payment contract in Oklahoma in connection with payments which were to have been made by an Oklahoma lessee of equipment leased by a Kansas lessor. 2 The complaint was filed by plaintiff-appellant, Misco Leasing, Inc.1 , on December 6, 1967. It sought judgment against the named defendants herein, the two Vaughns and Keller, upon their written guaranty of rental payments under a separate lease for three ice machines. Mr. Ice, Inc., an Oklahoma concern, was the intermediary in placing the business with Oklahoma Resorts, Inc., which was the lessee. Defendant Keller and the Vaughns were shareholders of Mr. Ice, Inc. Because of this connection they guaranteed the payments. The allegation in the complaint was that both the lease agreement and the written guaranty connected with it were made and delivered within Kansas and were Kansas contracts and, thus, that valid personal service could be made on the defendants under the Kansas long arm statute on the basis that they had transacted business within Kansas. 3 The service on the defendant-appellee, Keller, was in Oklahoma City on December 20, 1967, by a deputy U.S. Marshal. Keller did not file any responsive pleading, and so on February 1, 1968, judgment was entered against him for the full amount of the demand. Subsequently, an effort was made to execute on the judgment in Oklahoma and supplemental proceedings were carried out there. Keller appeared in the Oklahoma court and conceded that he had signed the guaranty and had offered to settle the obligation. Finally, on August 5, 1970, Keller filed the present motion to vacate the judgment for lack of personal jurisdiction. This motion was granted on November 3, 1970. 4 The lease agreement called for delivery of three ice vending machines to Oklahoma Resorts, Inc. of Checotah, Oklahoma. Rental payments were to be made under this lease by Oklahoma Resorts directly to plaintiff, Misco, in Wichita and the lease was by its terms to be governed by the law of Kansas. The lease was signed by Oklahoma Resorts on July 6, 1966, in Oklahoma. The trial court found that it was "executed and accepted in the state of Oklahoma by the lessee, Oklahoma Resorts, Inc." The guaranty agreement was signed in Oklahoma City, but stated on its face that it was dated at Wichita, Kansas. 5 The trial court found that the plaintiff prepared the guaranty agreement in its office in Wichita and forwarded the same to a Mr. Hugh Farr in Oklahoma City with instructions that he obtain the signatures of the guarantors. Farr went to the office of Mr. Ice, Inc. and obtained the signatures in accordance with his instructions. Appellant considers Farr an independent contractor authorized only to solicit and submit proposals to Misco. The trial court found that while Farr was not an employee of plaintiff he nevertheless acted for the plaintiff's predecessor and that he was not the agent of appellee, Keller, and also found that Keller was never present in Kansas in connection with the guaranty in suit. The court gave little weight to the fact that the guaranty stated that it was executed by the guarantors in Kansas since they had actually signed it in Oklahoma City. 6 The trial court concluded that defendant had not been shown to have transacted any business in Kansas within the meaning of Rule 4(e), Federal Rules of Civil Procedure as applied to the Kansas long arm statute, K.S.A. Sec. 60-308,2 and as construed by the Kansas Supreme Court in Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968); Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968); and White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578 (1969).3 Criteria for resolving this issue are set forth in Goldthwaite: 7 ***** 8 * * * 9 ***** 10 * * * 11 ***** 12 * * * 13 * * * (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. * * * (Emphasis supplied.)4 460 P.2d at 582. 14 Since Keller had no physical contact with Kansas, and since there was no contact through an agent, jurisdiction is wholly dependent on his execution of the guaranty contract in Oklahoma. This is insufficient basis for holding that he transacted business so as to be subject to the operation of the long arm statute. 15 The provision that the basic lease was to be governed by Kansas law does not constitute a personal submission to Kansas jurisdiction on the part of Keller.5 The fact that the lease rentals were payable in Kansas also fails to furnish a contact whereby it can be said that Keller has submitted to the jurisdiction of Kansas.6 16 Appellant advances the following additional points: 17 1. That the defendant is barred from relief under Federal Rule of Civil Procedure 60(b) (4) because he did not move to vacate the judgment within a reasonable time after its entry. 18 2. That he ratified the judgment by indicating his desire to settle. 19 3. That he is barred or estopped from raising jurisdictional defects which the trial court resolved against his codefendants. 20 As to point 1, it does not appear that the motion under Rule 60(b) must be filed within any particular time limit if the judgment is indeed a nullity due to a complete lack of personal jurisdiction over the defendant. The cases say that a void judgment acquires no validity as the result of laches on the part of the adverse party.7 We are not asked to consider whether under any particular circumstances a movant under Rule 60(b) may be estopped or precluded from filing such a motion. 21 We disagree that there was a ratification arising from an effort of the defendant to settle the claim for a percentage of its value. An admission against interest does not serve to confer jurisdiction. See Land Manufacturing, Inc. v. Highland Park State Bank, 205 Kan. 526, 470 P.2d 782, 784 (1970). 22 Appellant's final point that defendant is barred or estopped because judgments were entered against his codefendants needs slight comment. The short answer is that defendant is not bound by that determination because the facts and circumstances were different and, secondly, he was not before the court. 23 The judgment is affirmed. 1 Successor of Intercontinental Leasing, Inc 2 (b) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: (1) The transaction of any business within this state; (4) Contracting to insure any person, property or risk located within this state at the time of contracting; 3 In Woodring v. Hall, supra, process was served on a Texas resident based upon loans made to him in Kansas by a Kansas resident for the purpose of meeting his expenses at the University of Kansas College of Medicine. In sustaining jurisdiction the Kansas court emphasized the repeated contacts with Kansas In Tilley, an effort was made to obtain jurisdiction over a Lafayette, Colorado truck dealer following the collapse of a wheel in Kansas. The court held that the defendant had not transacted any business in Kansas justifying assertion of jurisdiction. White v. Goldthwaite, supra, is similar to the case at bar. Here process was served on an Oklahoma resident based upon her agreement to repay a loan by a Kansas resident for the purchase price on a stock option. Defendant had initiated her contacts with the plaintiff at his office in Oklahoma City, notwithstanding that the defendant's agent had gone to Wichita in connection with the payment of a related loan. It was held that the contact was legally insufficient. 4 In concluding that Keller was not within these criteria the court (Judge Brown) reasoned that: "In the instant case, the Court has found that the lease agreement which was guaranteed involved equipment which was delivered and accepted by the lessee in the State of Oklahoma; that the lease agreement itself was delivered, executed and accepted by the lessee in Oklahoma; and that the guaranty agreement in question was delivered, accepted, and executed by Keller in the State of Oklahoma, by and through the solicitation and activities of Hugh Farr, acting for the plaintiff. The Court is unable to find that Keller had any 'substantial connection' with the State of Kansas simply because rental payments under the lease were to be mailed to Kansas, and there is a total absence of any evidence that Keller 'purposely' did any act or consummated any transaction in Kansas which would subject him to jurisdiction under K.S.A. Sec. 60-308." 5 White v. Goldthwaite, supra; Agrashell, Inc. v. Bernard Sirotta Company, 344 F.2d 583, 588 (2d Cir. 1965) 6 Fourth Northwestern National Bank of Minneapolis v. Hilson Industries, 264 Minn. 110, 117 N.W.2d 732, 736 (1962); see also Conn v. Whitmore, 9 Utah 2d 250, 342 P.2d 871 (1959) 7 Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir. 1969); Austin v. Smith, 114 U.S.App.D.C. 97, 312 F.2d 337, 343 (D.C.Cir. 1962); Marquette Corporation v. Priester, 234 F.Supp. 799, 802 (E.D.S.C.1964)

THE ATTORNEY GENERAL OIFTEXA~ Hon. Joe U. Lovelaae Opinion RO. v-844. County Attorney Cam County Re: The legality of possess- Linden, Texas ing not more than one quart of liquor In Texas without papent of Texas tax. Dear sir: Your letter and brief requesting an opfnlon Ia set out, In part, a8 follows: “In Deoeaber o? 1948 the defendant use legally arrested and was found to have in his porsersion one full pint and one partial pint of whiskey whlah bore no Texas atamp and no valid evldenoe was affixed thereto whloh ahow- ed that the stamp had been paid. The evidence showed that the whimkey was bought la Arkan- sas, in compllanoerlth their laws, and was brought into Texas for the personal use of the defendant. “Is there a conflict between &Male 666- 23a, Sea. 4 (P.C,) and Article 666-17, Sec. 12 P.C. on the one aide, and Artiale 666-17 t18) tP.C.) on the other side? “If there Is a oonfllct between the Stat- utes enumerated In the above paragraph, did Articles 666-17, Sea. 18, P.C., repeal, bg lb plloation, Article 666-23a, Sea. 4, P.C.? To arrive at a proper determinationof these questions It must always be remembered that the Texas Liquor Control Aat as a whole presents a broad plan for the regulation of liquor. ArtSale 666-17, paragraph (18), V.P .C*, Is quoted as follows: Bon. Joe W. Lovelaoe, page 2 (v-844) "It shall be,unlawfuYfor'any person to Import, or to transport Into thfs Sty&e from any plaoe outslde~theStsrte~any~llquer, In exoews of,one (1) quart, in containersto whioh have not been affixed proper staiktax : .;$m;gd,F&sana;nte;d P located wlthzn,'thestate boun&ar$es,un- ens the same shall be~oonslgned~t the hold- er of a Wholesaler'sPermit authorkag the sale of such liquor and at his plaoe of busi- ness.* Article 666-23a, paragraph 4, V.P.C. provides: "It Is provided that any person may bring Into this State not more than one quart the required State tax atamps." It is apparent that the above quoted sect$ona of the Texas Liquor Control Act apply to different faot situations. Paragraph (18) of Artlole 666-17 applies to a pereon importing or transportinginto this State any Uzuo$ in excess of one quart, while paragraph 4, Artl- -23a, applies to any person bringing into this State not more than one quart of liquor for his own per- mmal use. Therefore, the two seotionn are not in con- ill t Sinae there Is no confllot, Article 666-17 (18) doe; iot repeal paragraph 4, Art&e 666~23a. In Role8 v. State, 132 S.W.2d 881, (Tex. Crln. 1939) the Court aft1 d the judgment of the trial court by which Roles was ozicted for having possession of Wh;h:t; in a pint container to which no stamp tax was This case specificallydistinguishesthe hold- ing In iorton v. State, 105 S.W.2d 669, (Tex. Crla. 1937) which stood for the pro$obitlonthat a person could bring a tax-exempt quart or less Into the State. In the Roles decision, Judge Rawklas said: *It appears that appellant was trans- porting the liquor from Louisiana Into Texas. Our State's attorney ealla attention to Hor- ton v. State, 132 Tex. Cr. R. 488, 105 S.W. 2d 669, suggestingthat our holding there might be regarded as against eustalnlng the Hon. Joe Ii.Lovelaae, page 3 (v-844) oonvlctlonhere unless a change In the stat- ute be mentioned. The holding in Horton's case was based on a provlslon In Seotion 4 of Ar;;rgt* V$q~;~s 2?:xi6FjC. (Ads 44th Leg- . The provlslon was omItted fr&'~ald Section 4 under the Aots of the 45th Legislature. . . . Attention la called to the ohange In the 'Texas Liquor Control Aat’ so any apparent oonfllet with the holding here and in Horton*8 case, supra, may be dispelled." The facts in the Boles case are slmllar to the fat&B set out In your requexnaacly, that the defend-t possessed one pint of liquor for hls personal use aad without the payment of tax. Therefore, under this au- thority, while a person may bring into this State not more than one quart of liquor for his own personal use, if sueh person falls to pay the requlred tax, he has vl- olated the Texas Liquor Control Aot; to tit, possesslng lllloit beverage. There Is no conflict between Artiole 666-17 (18) V.P.C. and Artlole 666-238 (4) V.P.C. inasmuch as Article 666-17 (18) ap- plies only when the amount of liquor im- ported into this State Is In excess of one quart and Article 666~23a (4) applies only where the amount Is one quart or less and Is being used for personal use. A person who brings into this State one qu& of liquor or less for his own personal use, and does not pay the required tax, violates the Texas Liquor Control Act, to wit: possessing il- licit beverage. Roles v. State, 132 S.Y.2d 881 (Tex. Crlm. 1939). Yours very truly, ATTORIVRY QRHRRAL OF TEXAS ATl’ORItRY QRNERAL John Reeves JR:lg:bh AfiiBistanf 

103 Ga. App. 739 (1961) 120 S.E.2d 673 CLARKE v. THE STATE. 38791. Court of Appeals of Georgia. Decided May 24, 1961. Frank A. Bowers, for plaintiff in error. Paul Webb, Solicitor-General, Thomas R. Luck, Jr., Eugene L. Tiller, Assistant Solicitors-General, contra. JORDAN, Judge. The defendant was tried and convicted in the Superior Court of Fulton County for the offense of receiving stolen goods under Code §§ 26-2621. His motion for new trial on the general and special grounds was denied and he excepts to that judgment. Held: 1. Before a conviction can be had for the offense of receiving stolen goods under Code §§ 26-2620 and 26-2621, every fact essential to the conviction of the principal thief, whether he be known or unknown, must be proved, as well as that the party on trial received the stolen goods with knowledge that they were stolen. Ford v. State, 162 Ga. 422 (3) (134 S. E. 95); Stripland v. State, 114 Ga. 843 (2) (40 S. E. 993); Ford v. State, 35 Ga. App. 655 (134 S. E. 353); Belton v. State, 21 Ga. App. 792 (95 S. E. 299); Wright v. State, 1 Ga. App. 158 (2) (57 S. E. 1050). 2. Before one can be convicted of receiving stolen goods it must appear from the evidence that he knew the property was stolen at the time he received it. This knowledge may generally be inferred from circumstances which would excite the suspicions of an ordinarily prudent man. Licette v. *740 State, 75 Ga. 253; Cobb v. State, 76 Ga. 664; Von Sprecken v. State, 70 Ga. App. 222 (28 S. E. 2d 341). 3. However, the mere fact that, recently after the commission of the offense, the stolen goods are found in the possession of the defendant does not authorize the jury to infer that the accused was guilty of receiving said stolen goods knowingly. "Upon proof alone of recent possession of stolen goods, the law does not put the burden upon the possessor of stolen goods of proving that he was not guilty of receiving the goods knowingly . . . . This rule . . . would only apply to the sufficiency of the evidence which would authorize the jury to infer the guilt of the principal thief . . . but would not apply to the sufficiency of the proof which would authorize an inference of the guilt of . . . the person alleged to have knowingly received the stolen goods." Bird v. State, 72 Ga. App. 843, 844 (4) (35 S. E. 2d 483). See also Suggs v. State, 59 Ga. App. 394 (1 S. E. 2d 39); Chambers v. State, 94 Ga. App. 531 (95 S. E. 2d 326). 4. Assuming but not deciding that the evidence was sufficient to show that the goods in the instant case were stolen as alleged in the indictment, the evidence as to the guilt of the defendant for the offense of receiving said stolen goods authorized a finding of nothing more than the fact that the defendant had possession of part of the goods shortly after the commission of the alleged offense. While this may be sufficient to raise an inference that the defendant did receive the goods, it is not sufficient under the authorities cited in division 3 of this opinion to authorize the finding that the defendant was guilty of receiving stolen goods knowingly. Accordingly, the evidence neither showing guilty knowledge on the part of the defendant nor any circumstances from which the jury could do more than surmise the existence of such guilty knowledge on his part, the verdict was without evidence to support it and contrary to law; and the trial court erred in denying the motion for new trial on the general grounds. 5. Since the error complained of in special ground 4 (failure to prove venue) is not likely to recur on the subsequent trial of this case, that ground will not be passed upon. The remaining special grounds were not argued and are therefore considered abandoned. *741 Judgment reversed. Townsend, P. J., and Frankum, J., concur.

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT TELETRACKING TECHNOLOGIES, INC., : No. 355 WAL 2015 : Petitioner : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : FRANK J. GORI, MARK JULIANO, GENE : NACEY, LORRAINE NACEY, STEPHEN : P. NASH, BRIAN E. SCHULIGER, : INSIGHT VENTURE MANAGEMENT, : L.L.C. AND INSIGHT TTT, LLC., : : Respondents : ORDER PER CURIAM AND NOW, this 22nd day of December, 2015, the Petition for Allowance of Appeal is DENIED. 

535 U.S. 909 PAZ-ZAMORAv.UNITED STATES. No. 01-8003. Supreme Court of the United States. March 4, 2002. 1 C. A. 4th Cir. Certiorari denied. Reported below: 21 Fed. Appx. 108.

407 F.Supp.2d 41 (2005) PANNONIA FARMS, INC., Plaintiff, v. RE/MAX INTERNATIONAL, INC., et al., Defendants. No. Civ. 01-1697(RJL). United States District Court, District of Columbia. March 21, 2005. *42 *43 Bernard C. Dietz, Washington, DC, for Plaintiff. Elizabeth B. Sandza, Leboeuf, Lamb, Greene & Macrae, L.L.P., Jon Lellenberg, Randolph D. Moss, Wilmer Cutler Pickering LLP, Thomas P. Olson, Wilmer, Cutler & Pickering Hale & Dorr, John M. Collins, Washington, DC, John R. Posthumus, Greenberg Traurig, LLP, Denver, CO, for Defendants. MEMORANDUM OPINION AND ORDER LEON, District Judge. [# 7, # 8, # 24, # 26, # 27] Before the Court are Defendant Re/Max International, Inc.'s ("Re/Max") and Jon Lellenberg's motions to dismiss, supplemental motions to dismiss, and motion for attorneys' fees. Pannonia Farms, the plaintiff, allegedly holds the exclusive rights to nine of the Sherlock Holmes stories written by Sir Arthur Conan Doyle, which still enjoy copyright protection. Compl. ¶¶ 4, 8. Not unexpectedly, the ownership of those rights is determined by a lengthy chain of title, during which the rights have changed hands many times. Id. ¶¶ 10-14. In its complaint seeking relief from violations of the copyright and trademark laws, Pannonia Farms based its exclusive rights in the Sir Arthur Conan Doyle works on a transfer made to it by Star Container Entertainment ("Star Container") in 1986. Compl. ¶¶ 4, 14. The preliminary, but overarching, issue in this case is whether Pannonia Farms has a sufficient ownership interest in Sir Arthur Conan Doyle's works to have standing to sue for intellectual property violations. Defendants argue that a recent decision,[1] by the United States District Court for the Southern District of New York, holding that Pannonia Farms lacks standing to sue for violations of intellectual property rights, collaterally estops the plaintiff from bringing the action in this case. The Court agrees, and there being no basic unfairness to the plaintiff in applying that holding here, GRANTS the defendants' supplemental motions to dismiss. ANALYSIS Under Federal Rule of Civil Procedure 12(b)(6), a district court should dismiss a complaint for failure to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts consistent with the complaint's allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C.Cir.1997). All well-pleaded allegations are presumed to be true. Warren v. D.C., 353 F.3d 36, 39 (D.C.Cir.2004). Under the doctrine of collateral estoppel, however, it is elementary that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in *44 subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). Our Circuit Court has established a three-part test to determine whether a prior judgment is preclusive: First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case. Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination. Yamaha Corp. v. United States, 961 F.2d 245, 254 (D.C.Cir.1992) (internal citations omitted). For the following reasons, the Court finds that this test is satisfied and collateral estoppel applies. Applying the first prong of the Yamaha test, the Court readily concludes that the issue before this Court, whether Pannonia Farms has standing to sue for violations of its intellectual property rights in the nine remaining Sherlock Holmes stories that still have copyright protection, was previously contested by the plaintiff and submitted for judgment in a federal district court in New York. That court determined, in Pannonia I, and affirmed in Pannonia II, that Pannonia Farms did not have standing to bring a suit against USA Cable because Pannonia Farms was bound by a 1990 Settlement Agreement between its president,[2] Andrea Reynolds, Andre Milos, Ms. Reynold's father, and Sheldon Reynolds, which provided that after the 1985 conveyance from Lady Duncan to Star Container "no enforceable assignments by any of the foregoing names mentioned in this paragraph [including Andrea Reynolds] was made thereafter." Pannonia I, 2004 WL 1276842, *2-3. The New York federal court considered the parties' arguments and rejected Pannonia Farms's contentions that: (1) it acquired ownership rights to Sir Arthur Conan Doyle's works in a 1986 transfer of rights from Star Container to Pannonia Farms; and (2) it was not a party to the Settlement. Id. at *5-6. Indeed, the court specifically held that Andrea Reynold's assent to the settlement agreement implicated Pannonia Farms, even though it was not a signatory to the agreement. Id. at *6. Moreover, Judge Buchwald concluded that because the Settlement Agreement "plainly extinguished" the 1986 assignment to Pannonia Farms, the corporation lacked standing because it did not own the copyrights, trademarks, and related rights. Id. Thus, the standing issue in this case is identical to the issue already contested, submitted, and decided by the New York federal court. Accordingly, the first element of the Yamaha test is satisfied. The satisfaction of the second requirement is equally clear. The issue of standing was "actually and necessarily" determined by a court of competent jurisdiction in the Southern District of New York. In Pannonia I, the court examined the 1990 Settlement Agreement thoroughly and found that Pannonia Farms lacked standing because the parties included the qualifying *45 language, "no enforceable assignment," in the agreement, which meant that either at least one party knew of the transfer from Star Container to Pannonia Farms or that "the parties contemplated the possibility that a conveyance about which they were unaware may have occurred," both of which indicated that any transfers after 1985 were unenforceable. Id. at *5. Pannonia Farms argues that the New York federal court "did not address the trademark issues relying on its finding that Pannonia Farms . . . was not a proper party plaintiff." Opp. to Lellenberg Supp. Mot. to Dismiss at 2. In Pannonia I, however, the court ruled "as a matter of law" that Pannonia Farms does not "own[] the copyrights, trademarks and related rights in the works of Sir Doyle." Pannonia I, 2004 WL 1276842, at *6 n. 15 (emphasis added). This Court finds that the Southern District of New York federal court thoroughly investigated the effect of the 1990 Settlement Agreement on Pannonia Farms's ownership interests in Pannonia I, and reconsidered the issue in Pannonia II. Therefore, a court of competent jurisdiction did actually and necessarily determine the standing issue, thus satisfying the second prong of the Yamaha test. Finally, the third prong of the Yamaha test is satisfied because precluding Pannonia from bringing this suit is fair. This case is one in a series of cases in which Pannonia Farms and its president have repeatedly attempted to recover for violations of intellectual property rights. First, in Plunket v. Doyle, No. 99-11006, 2001 WL 175252 (S.D.N.Y. Feb. 22, 2001), Andrea Plunket sued the heirs of the Sir Arthur Conan Doyle Estate for copyright infringement and unfair competition and sought a declaratory judgment as to the rights in question. Id. at *1. That Court dismissed the case, with leave to file an amended complaint, because Plunket failed to join those parties who may have been adversely affected by the Court's ruling on the chain of title. Id. at *7. In 2003, Pannonia Farms filed another lawsuit in the Southern District of New York claiming that a cable company violated intellectual property rights for televising a movie, which featured the Sherlock Holmes and Dr. Watson characters. Pannonia I, 2004 WL 1276842, at *1. Finding that Pannonia Farms did not have standing to sue, that court found "it was wholly unreasonable" for the plaintiff to expect the court to revise a fourteen-year-old state court order. Pannonia I, 2004 WL 1276842, at *7. As is obvious, Pannonia Farms has had every opportunity to pursue and litigate this very issue in court and has lost every time. The decisions in Pannonia I and Pannonia II therefore preclude Pannonia Farms from relitigating the standing issue in this action and the defendants' motions to dismiss based on collateral estoppel are GRANTED. ATTORNEYS' FEES & RULE 11 SANCTIONS Re/Max seeks attorneys' fees pursuant to 17 U.S.C. § 505 and 15 U.S.C. § 1117, as well as Rule 11 Sanctions. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the motion for attorneys' fees. The decision whether to award attorneys' fees in an action under the Copyright Act is within the sound discretion of the Court. Fogerty v. Fantasy, Inc., 510 U.S. 517, 523-24, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). Section 505 provides that; In any civil action under [Title 17 — Copyrights], the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, *46 the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. 17 U.S.C. § 505. In determining whether such an award is appropriate, the Court may consider the following factors: "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023; see also Harrison Music Corp. v. Tesfaye, 293 F.Supp.2d 80, 84 (D.D.C. 2003). After the New York federal court's decision in Pannonia I, Re/Max sent a letter to counsel for Pannonia Farms asking it to withdraw or dismiss the complaint because "its [sic] collaterally estopped from claiming ownership of [the rights in the works of Sir Arthur Conan Doyle]." Re/Max Supp. Mot. to Dismiss Ex. A. Pannonia Farms stated that it was willing to amend its complaint to remove the copyright claims, but insisted that the trademark claims remained. Id. Ex. B. But, the New York federal court held that Pannonia did not "own[] the copyrights, trademarks and related rights in the works of Sir Doyle." Pannonia I, 2004 WL 1276842, at *6. Therefore, it was objectively unreasonable for Pannonia Farms to continue to pursue any of the intellectual property claims after the New York federal court found that it did not have any ownership interests. Accordingly, the Court awards attorneys' fees to Re/Max for its preparation and litigation of the Supplemental Motion to Dismiss Based on Collateral Estoppel. Re/Max also seeks attorneys fees under the Lanham Act, which provides: [w]hen a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 1125(a) or (d) of this title, or a willful violation under section 1125(c) of this title, shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled . . . to recover the costs of this action. . . . The court in exceptional cases may award reasonable attorney fees to the prevailing party. 15 U.S.C. § 1117(a)(3) (emphasis added). Since this Court's decision to dismiss this case is based on plaintiff's lack of standing, a violation under the Lanham Act has not been established and attorneys fees are inappropriate. Finally, Rule 11 provides that "[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation." Fed. R.Civ.P. 11(c). Sanctions may be initiated by a party's motion or on the Court's own initiative. Id. Re/Max includes its motion for Rule 11 sanctions in its supplemental motion to dismiss and motion for attorneys' fees. Re/Max, therefore, did not comply with the requirement in Rule 11 that a motion for Rule 11 sanctions be "made separately from other motions or requests." Id. 11(c)(1)(A). And, while the plaintiff's refusal to withdraw its complaint may constitute sanctionable conduct, the Court declines to impose Rule 11 sanctions sua sponte. ORDER For the reasons set forth above, it is this 21st day of March, 2005 hereby ORDERED that the Defendant Jon Lellenberg's Supplemental Motion to Dismiss Based on Collateral Estoppel [# 24] is GRANTED, and it is further *47 ORDERED that the Defendant Re/Max International, Inc.'s Supplemental Motion to Dismiss Based on Collateral Estoppel and Motion for Attorneys' Fees [# 26, # 27] is GRANTED IN PART AND DENIED IN PART, and it is further ORDERED that Defendant Jon Lellenberg's Motion to Dismiss [# 7] is DENIED as moot, and it is further ORDERED that Defendant Re/Max International, Inc.'s Motion to Dismiss [# 8] is DENIED as moot. SO ORDERED. NOTES [1] Pannonia Farms, Inc. v. USA Cable, No. 03-7841, 2004 WL 1276842 (S.D.N.Y. June 8, 2004) ("Pannonia I"). The same court denied the plaintiff's motion for reconsideration in Pannonia Farms, Inc. v. USA Cable, No. 03-7841, 2004 WL 1794504 (S.D.N.Y. Aug. 10, 2004) ("Pannonia II"). [2] Although Andrea Reynolds (aka Andrea Plunkett) signed the agreement in her individual capacity, the New York federal court found that because she was President of Pannonia Farms at the time of the agreement, Pannonia Farms also assented to the terms of the settlement agreement. Pannonia I, 2004 WL 1276842, at *6. The court held that bringing the action against USA Cable, "a stranger to the Settlement, . . . without joinder of the parties to the Settlement, is not the forum for Pannonia to avoid the Settlement's consequences." Id.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 19, 2016 Session STATE OF TENNESSEE v. JAMES E. FERRELL Appeal from the Circuit Court for Warren County No. 15-CR-772 Larry B. Stanley, Jr., Judge ___________________________________ No. M2016-01157-CCA-R3-CD – Filed January 11, 2017 ___________________________________ The Defendant, James E. Ferrell, was issued a citation for operating a vehicle while unrestrained by a safety belt, a Class C misdemeanor. He was found guilty and assessed a fine for the violation in General Sessions Court, and he appealed to the Circuit Court, which imposed a judgment of conviction and a fine. The Defendant alleges in this appeal that the Circuit Court did not have jurisdiction over the offense because there was no warrant issued in the case. We conclude that the Circuit Court had jurisdiction based upon the issued citation and affirm the conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined. James E. Ferrell, Morrison, Tennessee, pro se. Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Justin Walling, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION On July 25, 2015, the Defendant1 was issued a citation for failing to use a safety belt while operating a vehicle, in violation of Tennessee Code Annotated section 55-9- 1 Although the Defendant styles himself a “Third Party Intervener,” he comes to this court as a defendant accused of failure to abide by the laws of this State, and we accordingly refer to him as “the Defendant” in this opinion. 603(a)(1) (2015). The Defendant attempted to seek monetary damages against the State in a “counterclaim,” which was dismissed in General Sessions Court as barred by sovereign immunity. The Defendant was found guilty and fined ten dollars in General Sessions Court. The Defendant timely appealed to the Circuit Court and moved to dismiss the charge on the basis that the Circuit Court lacked subject matter jurisdiction. The Circuit Court held a hearing at which Trooper Josh Sparkman testified that he observed the Defendant driving on the highway in Warren County not wearing a seatbelt, stopped the Defendant, and issued him a citation. The record reveals that the Defendant was driving a Ford Ranger. The Circuit Court found beyond a reasonable doubt that the Defendant had violated the seatbelt law, and it imposed a ten-dollar fine on the Defendant. See State v. Kirk, 392 S.W.3d 622, 624 (Tenn. Crim. App. 2011) (holding that an appeal from a general sessions court to a circuit court abrogates the judgment of the general sessions court and requires a new judgment after an independent review). The Defendant appeals his Circuit Court conviction, arguing that the trial court did not have jurisdiction because there was no warrant in the record. “Subject matter jurisdiction involves the court’s lawful authority to adjudicate a controversy brought before it.” Johnson v. Hopkins, 432 S.W.3d 840, 843 (Tenn. 2013). We review a question of jurisdiction de novo. Id. at 844. Circuit courts have original jurisdiction of crimes unless otherwise provided by statute. T.C.A. §§ 16-10-102, 40-1- 108. The Defendant was convicted by the Circuit Court of a misdemeanor offense under Tennessee Code Annotated section 55-9-603(a)(1) (2015), which makes it an offense to operate a passenger motor vehicle in forward motion when not restrained by a safety belt. The Defendant cites to Tennessee Code Annotated section 55-10-305 to support his argument that the trial court had no jurisdiction without a warrant. The statute provides: No judge shall try any case except upon warrant duly prepared in the form required by law, which shall be preserved with the other papers pertaining to the judge’s office, and no such judge shall collect any fine or cost imposed in any case involving a violation of chapters 8 and 9 of this title, parts 1-5 of this chapter and § 55-12-139, until that judge has completed the entries pertaining to the case in a docket kept for the making of the judge’s records. T.C.A. § 55-10-305. An arrest generally requires a warrant supported by an affidavit of complaint which is in writing, made on oath before a magistrate, and alleges the essential facts constituting the offense. See Tenn. R. Crim. P. 3; Tenn. R. Crim. P. 4; State v. -2- Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008); State v. Burtis, 664 S.W.2d 305, 308 (Tenn. Crim. App. 1983); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979). A prosecution may also be commenced on an affidavit of complaint. Tenn. R. Crim. P. 5(a)(2) (“An affidavit of complaint shall be filed promptly when a person, arrested without a warrant, is brought before a magistrate.”); State v. Ferrante, 269 S.W.3d 908, 912 (Tenn. 2008) (noting that the Rule clearly contemplates that an arrestee may be taken before a magistrate to initiate charges through the filing of an affidavit of complaint); State v. Best, 614 S.W.2d 791, 795 (Tenn. 1981) (holding that when a person is arrested without a warrant, he must be taken before a magistrate so that “formal charges can be lodged … by the filing of an affidavit of complaint”). The Defendant was not arrested for violating the seatbelt law but was merely issued a citation. Under the statute mandating the use of seatbelts, “[a] law enforcement officer observing a violation of this section shall issue a citation to the violator, but shall not arrest or take into custody any person solely for a violation of this section.” T.C.A. § 55-9-603(f)(1). Accordingly, the Defendant’s traffic offense is governed by Tennessee Code Annotated section 55-10-207, which regulates traffic citations. A traffic citation is “a written citation or an electronic citation prepared by a law enforcement officer … with the intent the citation shall be filed, electronically or otherwise, with a court having jurisdiction over the alleged offense.” T.C.A. § 55-10-207(a); see also T.C.A. § 40-7-118 (governing citations). For certain offenses, including a violation of the seatbelt law, the statute requires the issuance of a citation in lieu of arrest. T.C.A. § 55-10-207 (b)(1). Pursuant to the statute: Whenever a traffic citation has been prepared, accepted, and the original citation delivered to the court as provided herein, the original citation delivered to the court shall constitute a complaint to which the person cited must answer and the officer issuing the citation shall not be required to file any other affidavit of complaint with the court. T.C.A. § 55-10-207(d) (emphasis added). Accordingly, the Defendant’s traffic arrest did not require the trial court to proceed upon a separate warrant; instead the citation itself was sufficient as an affidavit of complaint in the form required by law. See T.C.A. § 55- 10-305. The State correctly notes that the Defendant has unsuccessfully raised this same issue appealing a previous seatbelt violation. See State v. James Everett Ferrell, No. M2011-00870-CCA-R3-CD, 2012 WL 2411903, at *1 (Tenn. Crim. App. June 27, 2012). In his previous appeal, the Defendant received a traffic citation for failure to wear his safety belt, and he raised the same argument on appeal. Id. This court concluded that the Defendant failed to provide an adequate appellate record or adequate citations to -3- authority, but that, “in any event,” no warrant was required under the statute governing traffic citations. Id. at *1-2. We come to the same conclusion that the citation issued dispensed with the warrant requirement. CONCLUSION The trial court had jurisdiction to enter the judgment of conviction, and we affirm the judgment of the trial court. ____________________________________ JOHN EVERETT WILLIAMS, JUDGE -4- 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 04/10/2020 08:07 AM CDT - 279 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 In re Interest of Taeson D., a child under 18 years of age. State of Nebraska, appellee, v. Samuel T., appellant. ___ N.W.2d ___ Filed March 13, 2020. No. S-19-382. 1. Parental Rights: Due Process. Whether a parent who is incarcerated or otherwise confined in custody has been afforded procedural due proc­ess for a hearing to terminate parental rights is within the discre- tion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. 2. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclu- sion independent of the juvenile court’s findings. 3. Parental Rights: Due Process. An incarcerated parent’s physical pres- ence is not necessary at a hearing to terminate parental rights, provided that the parent has been afforded procedural due process. 4. ____: ____. The initiative is properly placed on the parent or the par- ent’s attorney to notify the court of the parent’s incarceration and to request to appear telephonically at the hearing to terminate paren- tal rights. 5. Juvenile Courts: Parental Rights: Due Process. The juvenile court has discretion to determine how an incarcerated parent may meaning- fully participate in the hearing on the termination of his or her parental rights consistent with due process. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Affirmed. Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.  - 280 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 Pat Condon, Lancaster County Attorney, Mary Norrie, and Danielle M. Kerr for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Samuel T. appeals the termination of his parental rights to his minor child, Taeson D. During the pendency of these proceedings, Samuel became incarcerated in South Carolina, serving a 30-year sentence. Following a termination hearing at which Samuel was represented by counsel but not present, the separate juvenile court of Lancaster County determined that (1) Samuel substantially neglected to give Taeson neces- sary parental care; (2) Taeson was a juvenile as described by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) and reasonable efforts have failed to correct conditions; (3) Taeson was in an out-of-home placement for 15 or more months of the most recent 22 months; (4) it was in the best interests of Taeson to terminate Samuel’s parental rights; and (5) Samuel was unfit to parent Taeson. The juvenile court terminated Samuel’s parental rights to Taeson on three statutory bases as more fully described below. Samuel appeals. He claims that his proce- dural due process rights were violated and that the juvenile court erred when it terminated his parental rights to Taeson. We affirm. FACTS Taeson was born in July 2017. The Nebraska Department of Health and Human Services (DHHS) took custody of Taeson at the hospital shortly after his birth because his biological mother had admitted to methamphetamine use during pregnancy and the meconium fluid had tested positive for methamphetamine. Taeson’s biological mother relinquished her parental rights in late 2018. Taeson was placed with Lachrisha T., Samuel’s adult daughter, who has cared for Taeson since birth.  - 281 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 Samuel was present at the hospital for Taeson’s birth. Samuel and the child apparently had almost no further contact after this point. Samuel became incarcerated in November 2017 on what the record suggests was a drug-related offense. In December 2017, a paternity test showed that Samuel was the biological father of Taeson. Candace Sturgeon, a caseworker with DHHS, unsuccessfully attempted to contact Samuel through Lachrisha and other means. Sturgeon eventu- ally located Samuel through a DHHS computer system search and visited him at the jail in Saline County, Nebraska, in June 2018. She testified at the termination hearing that she informed Samuel that the result of the paternity test he had taken showed he was Taeson’s biological father. According to Sturgeon, Samuel stated that he had assumed he probably was Taeson’s father, that he was aware Taeson was living with Lachrisha, and that he had personally recommended that Taeson be placed with her after the child was removed from his biological mother’s care. According to Sturgeon, Samuel had indicated he sup- ported Lachrisha’s potentially adopting Taeson. According to Sturgeon, Samuel stated “something to the effect of well I obviously am not an option since I’m going to be in prison for 30 years, so I understand that.” Sturgeon testified that she advised Samuel that he needed to keep her updated on his whereabouts, because it would be very difficult for her to know where he was if he was transferred. Samuel asked Lachrisha to bring the child to county jail one time, but before arrangements could be made, Samuel was transferred to federal prison in South Carolina on a 30-year sentence. After the transfer, Samuel did not communicate with Sturgeon or DHHS to update them on his whereabouts or to contact Taeson. Sturgeon testified that she made largely unsuc- cessful efforts to contact Samuel multiple ways at least once a month. Turner attended a paternity hearing on June 6, 2018, at which he was declared Taeson’s legal father. In October 2018,  - 282 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 the State moved to terminate Samuel’s and the biological mother’s parental rights. The motion to terminate alleged three grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016), which states: The court may terminate all parental rights between the parents or the mother of a juvenile born out of wed- lock and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that one or more of the following condi- tions exist: .... (2) The parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection; .... (6) Following a determination that the juvenile is one as described in subdivision (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination; (7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months. On November 19, 2018, Samuel was served in prison in South Carolina with a copy of the motion to terminate his parental rights and a summons to appear before the court for a hearing on the matter. In December, Samuel denied the allega- tions in the motion to terminate and the termination hearing was continued. In December 2018, Sturgeon left a message with a case- worker at the South Carolina prison and Samuel called her back. During that telephone call, Sturgeon explained to Samuel that the State was moving to terminate his parental rights. Samuel stated that he did not want his parental rights  - 283 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 terminated and that he no longer approved of Taeson’s being placed with Lachrisha. He explained that Lachrisha was not “put[ting] any money on his books” and had stopped commu- nicating with him. Samuel stated that he hoped he would be successful in the appeal of his criminal conviction and that his intent was to win his appeal and parent Taeson. Sturgeon testified that Samuel did not make further contact with DHHS after December 2018. At the time of the termina- tion hearing in March 2019, Samuel had been in prison in South Carolina for 8 months. Taken as a whole, the testimony showed that Samuel had not attempted to be involved in Taeson’s life either before or after his incarceration. Samuel had not requested photographs of Taeson and had not contacted him after his birth. Sturgeon explained that the service DHHS typically offers to parents who are incarcerated is visitation with the child; however, it is very difficult to offer services if someone is placed out of state and it is impossible to offer serv­ices to someone that DHHS is unable to contact. She testi- fied that, in her view, Samuel’s parental rights should be termi- nated even if he wins his appeal on his criminal case because it is unclear how long it would take him to work through a case with DHHS and ensure he could care for a child. The termination hearing was held on March 13, 2019. The child was represented by a guardian ad litem, and counsel appeared for the State. Samuel was represented throughout the termination hearing by an attorney. Samuel did not appear physically or telephoni- cally. The juvenile court recognized that Samuel denied the allegations in the motion to terminate. Samuel’s counsel was asked to address Samuel’s nonappearance, and Samuel’s coun- sel stated as follows: Well, Your Honor, he’s incarcerated in North [sic] Carolina penitentiary system. I’ve had communication with him be [sic] email on and off throughout the last six weeks or so. I know that he does object to what — having his rights terminated. I’ve also tried to communicate with  - 284 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 him regarding relinquishment, which he’s been unable to or unwilling to sign a relinquishment, and so you know, I can’t imagine the Court is going to continue this out for 30 years ’til he can put himself in a place where he can parent, so I see no other alternative but moving for- ward today. Following the hearing, the juvenile court filed an order which found that the allegations of the motion for termina- tion of parental rights were true by clear and convincing evi- dence. The court enumerated its findings that (1) regarding § 43-292(2), Samuel substantially neglected to give Taeson necessary parental care; (2) regarding § 43-292(6), Taeson was a juvenile as described by § 43-247(3)(a) and reason- able efforts have failed to correct conditions; (3) regarding § 43-292(7), Taeson was in an out-of-home placement for 15 or more months of the most recent 22 months; (4) it was in the best interests of Taeson to terminate Samuel’s parental rights; and (5) Samuel was unfit to parent Taeson now and in the future. The juvenile court terminated Samuel’s parental rights to Taeson. Samuel appeals. ASSIGNMENTS OF ERROR On appeal, Samuel claims, summarized and restated, that (1) he was denied procedural due process rights at the termina- tion hearing and (2) the juvenile court erred when it terminated his parental rights because DHHS had failed to make reason- able efforts to reunite him and Taeson. STANDARDS OF REVIEW [1] Whether a parent who is incarcerated or otherwise con- fined in custody has been afforded procedural due process for a hearing to terminate parental rights is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. See In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).  - 285 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 [2] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion indepen- dent of the juvenile court’s findings. See In re Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020). ANALYSIS Due Process. Samuel, who was incarcerated in South Carolina, had his parental rights to Taeson terminated at a hearing at which he was represented by counsel; he was not physically present nor did he participate telephonically. In Samuel’s brief, he contends that he was denied due process generally because he did not appear “in some fashion,” brief for appellant at 12, and, in par- ticular, he was denied a “telephonic or video hearing,” brief for appellant at 9. We determine that under the facts of this case, Samuel was not denied due process. [3] It is settled in Nebraska, and Samuel agrees, that an incarcerated parent’s physical presence is not necessary at a hearing to terminate parental rights, provided that the parent has been afforded procedural due process. See, In re Interest of Mainor T. & Estela T., supra; In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). The fundamental requirement of due process is the opportunity to be heard “‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We have explained that a juvenile court must consider several factors in determining whether to allow a parent’s attendance, which fac- tors are as follows: the delay resulting from prospective parental attendance, the need for disposition of the proceeding within the immediate future, the elapsed time during which the proceeding has been pending before the juvenile court, the expense to the State if the State will be required to provide transportation for the parent, the inconvenience or detriment to parties or witnesses, the potential danger or security risk which may occur as a result of the parent’s  - 286 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 release from custody or confinement to attend the hear- ing, the reasonable availability of the parent’s testimony through a means other than parental attendance at the hearing, and the best interests of the parent’s child or children in reference to the parent’s prospective physical attendance at the termination hearing. In re Interest of L.V., 240 Neb. at 416, 482 N.W.2d at 258-59. [4] With respect to the participation of the incarcerated par- ent, we have stated that in most situations, in order to trigger the requirements of In re Interest of L.V., the initiative is prop- erly placed on the parent or the parent’s attorney to notify the court of the parent’s incarceration and to request attendance. See In re Interest of Mainor T. & Estela T., supra. We logi- cally apply this principle to an incarcerated parent’s request to appear telephonically. In the present case, no such request was made and, to the contrary as seen in the material quoted above, such appearance was waived. [5] We are aware of jurisdictions which require juvenile courts to either give incarcerated parents the opportunity to participate by telephone in the entire hearing, e.g., In Interest of M.D., 921 N.W.2d 229 (Iowa 2018) (amended Mar. 5, 2019), or offer an alternative procedure by which the incarcerated parent may review a transcript of the record of the evidence presented against him or her and testify later at a bifurcated hearing. See, E.J.S. v. Dept. of Health & Soc. Serv., 754 P.2d 749 (Alaska 1988); In re Randy Scott B., 511 A.2d 450 (Me. 1986). However, in light of a juvenile court’s relative inabil- ity to compel an out-of-state correctional facility to allow an incarcerated parent to participate in an entire hearing, we decline to require juvenile courts to follow a rigid procedure of telephonic participation for the entire hearing in all cases. Like several other jurisdictions that have thoroughly considered the issue, we leave it to the juvenile courts’ discretion to determine how an incarcerated parent may meaningfully participate in the hearing on the termination of his or her parental rights consist­ ent with due process. See, In re C.G., 954 N.E.2d 910 (Ind.  - 287 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 2011) (cases collected); In re D.C.S.H.C., 733 N.W.2d 902 (N.D. 2007); State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529 S.E.2d 865 (2000). In this case, Samuel was aware that Taeson was adjudicated as a juvenile under § 43-247(3)(a). Samuel received notice of the termination hearing, filed a pleading denying the allega- tions, and was represented by counsel throughout the termi- nation proceeding. Compare In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012) (concluding due process violated for inmate who was neither present nor represented by counsel at termination hearing). The record shows that Samuel had been communicating with counsel and that Samuel’s counsel cross-examined the witness and had the opportunity to present evidence, which he declined. Samuel did not request to be present or telephonically participate at the ter- mination hearing and did not request a continuance. The hear- ing on parental termination had already been continued twice, and the juvenile court properly exercised its discretion when it conducted the hearing with Samuel’s interests represented by counsel. Samuel was not denied procedural due process under the circumstances. Termination. Samuel contends that the juvenile court erred when it termi- nated his parental rights under § 43-292(6) because the State did not make reasonable efforts to reunite him with Taeson. See Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018) and § 43-292(6). We reject this assignment of error. The juvenile court found sufficient evidence existed under § 43-292(2), (6), and (7) to support a termination of Samuel’s parental rights. We have held that any one of the bases for ter- mination of parental rights codified by § 43-292 can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).  - 288 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 Samuel has not raised a challenge to the sufficiency of the evidence establishing that under § 43-292(2), he substantially and continuously or repeatedly neglected and refused to give Taeson necessary parental care and protection, or that under § 43-292(7), Taeson had been in an out-of-home placement for 15 or more months of the most recent 22 months. Each of these subsections is a statutory basis for termination. See In re Interest of Sir Messiah T. et al., supra. We find support in the record establishing grounds for termination under § 43-292(2) and (7). In addition, the evidence demonstrates that termination of Samuel’s parental rights is in the best interests of Taeson. At the time of the proceedings, Samuel had virtually no relation- ship with Taeson and there was no evidence that Samuel had taken steps to establish a relationship. Samuel was sentenced on a drug-related offense to be incarcerated for the entirety of Taeson’s juvenile years. Further, the juvenile court’s finding that Samuel was unfit was supported by the record. Because the State needed to prove only one basis for termi- nation, and did so here, we need not further analyze Samuel’s claim that the State made insufficient efforts to preserve and reunify the family under § 42-292(6). See In re Interest of Sir Messiah T. et al., supra. CONCLUSION The juvenile court did not deny Samuel procedural due process, and it did not err when it determined that terminat- ing Samuel’s parental rights to Taeson was appropriate under § 43-292(2) and (7) and was in the best interests of Taeson. Accordingly, we affirm. Affirmed. 

948 P.2d 991 (1997) STATE of Alaska, Appellant, v. William BURDEN, Appellee. No. A-6184. Court of Appeals of Alaska. December 12, 1997. *992 Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Jill E. Farrell, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellee. Before COATS, C.J., and MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice.[*] OPINION MANNHEIMER, Judge. William Burden acted as the go-between in a cocaine sale; he was indicted for third-degree misconduct involving a controlled substance (delivery of cocaine), AS 11.71.030(a)(1). Following his indictment, Burden sought dismissal of the charge. Burden pointed out that, although a purchaser of illegal drugs can be prosecuted for possession, Alaska law specifically precludes the State from charging the purchaser with sale or delivery (a higher degree of crime) under the theory that the purchaser acted as the accomplice of the seller. See AS 11.16.120(b)(2), discussed in more detail below. Burden asserted that, even though he acted as a go-between in the sale of the cocaine, he was working as the agent of the purchasers, not the seller. Thus, Burden concluded, while he might be prosecuted for possession (as the accomplice of the purchasers), he could not be prosecuted for sale or delivery. The superior court adopted Burden's argument and dismissed the indictment. Having reviewed the applicable law, we conclude that it does not matter whether Burden was acting as the agent of the purchasers or the seller; either circumstance will support Burden's indictment for delivering cocaine. We therefore reverse the superior court's decision and direct the superior court to reinstate the indictment. American common law recognized a doctrine of statutory construction that limited the scope of accomplice and co-conspirator liability: unless a criminal statute explicitly provided otherwise, a person who cooperated in the commission of a criminal offense could not be prosecuted as an accomplice or a co-conspirator if the person's activities in aid of the offense were "an inseparable incident" of the offense. See Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206 (1932) (holding that a woman who agreed to be transported across state lines to engage in unlawful sexual intercourse could not be prosecuted for conspiracy to violate the Mann Act). The Alaska legislature has codified this common-law rule of construction in AS 11.16.120(b)(2): Except as otherwise provided by a provision of law defining an offense, a person is not legally accountable for the conduct of another constituting an offense if ... (2) the offense is so defined that the person's conduct is inevitably incidental to its commission. See also the commentary to AS 11.16.120(b)(2), which is found in 1978 Senate Journal, Supp. No. 47 (June 12), p. 4.[1] Burden correctly points out that the Alaska Supreme Court has interpreted this doctrine to prohibit drug purchasers from being prosecuted or convicted as accomplices to the sale. *993 See Howard v. State, 496 P.2d 657, 660 (Alaska 1972). In the past, several courts extended the "inevitably incidental" doctrine to insulate not only the purchaser of drugs but also any other person acting on the purchaser's behalf. Under this expanded interpretation, generally referred to as the "procuring agent" or "purchasing agent" defense, a person who acted on behalf of the purchaser in arranging or accomplishing a sale of illegal drugs could not be prosecuted as an accomplice to the sale (although the person could be charged as an accomplice to the purchaser's act of possession). See, for example, Long v. State, 260 Ark. 417, 542 S.W.2d 742, 743 (1976); State v. Baldwin, 867 S.W.2d 358, 360 (Tenn.Cr.App. 1993), and State v. Walker, 82 Wash.2d 851, 514 P.2d 919, 922 (1973). Not all courts extended the doctrine this far — apparently because it is not self-evident that an illegal sale of drugs "inevitably" includes a go-between. California, for example, held that "one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty ... as an aider and abettor to the seller." People v. Edwards, 39 Cal.3d 107, 216 Cal. Rptr. 397, 401 n. 5, 702 P.2d 555, 559 n. 5 (1985); People v. Cattaneo, 217 Cal. App.3d 1577, 266 Cal. Rptr. 710, 713-15 (1990). Accord, State v. Baltier, 109 Ariz. 96, 505 P.2d 556, 557 (1973); People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578, 580 (1959); State v. Allen, 292 A.2d 167, 170-72 (Me. 1972). The Alaska courts have never decided whether a "procuring agent" or "purchasing agent" defense applies to drug prosecutions in this state. However, in two cases — McReynolds v. State, 739 P.2d 175, 178 (Alaska App. 1987), and Wagers v. State, 810 P.2d 172, 176 (Alaska App. 1991) — this court suggested that the defense was available: that a person acting as the agent for a drug purchaser could not be prosecuted for sale of drugs under a complicity theory. Burden urges us to now squarely hold that the agent of a drug purchaser can not be prosecuted as an accomplice to the sale. Under Alaska's pre-1982 drug laws, Burden's case would present a close question. However, in 1982 the Alaska Legislature rewrote this state's drug laws to conform to the Uniform Controlled Substances Act. See 1982 SLA, chapter 45, section 2; Dawson v. State, 894 P.2d 672, 674 (Alaska App. 1995). Alaska law no longer defines the illegal transfer of controlled substances in terms of "sale"; instead, the prohibited act is "delivery". For example, Burden was charged under AS 11.71.030(a)(1). The pertinent portion of this statute prohibits a person from "deliver[ing] any amount of [cocaine]" or from possessing cocaine "with intent to ... deliver". The terms "deliver" and "delivery" are defined in AS 11.71.900(6): "[D]eliver" or "delivery" means the actual, constructive, or attempted transfer [of a controlled substance] from one person to another ... whether or not there is an agency relationship [between these persons]. This definition is identical to the one found in the Uniform Controlled Substances Act (see Uniform Laws Annotated (1988), vol. 9, part II, p. 11), and it mirrors the corresponding definition under federal drug law, 21 U.S.C. § 802(8). The real question presented by Burden's case is whether, given this statutory definition of "delivery", the "procuring agent" defense is available in prosecutions under AS 11.71. We hold that this defense is not available. As explained above, the doctrine that exempts drug purchasers from accomplice liability for their participation in the sale of drugs is ultimately a rule of statutory interpretation. The legislative commentary to AS 11.16.120(b)(2) (see footnote 1) explicitly states that this statute does not forbid the legislature from holding purchasers or their agents criminally liable for an illegal sale of drugs. Rather, AS 11.16.120(b)(2) merely requires that, if the legislature desires to expand accomplice liability in this area, it must enact a statute that declares this purpose. We conclude that the Alaska Legislature's decision to define third-degree controlled substance misconduct in terms of "delivery" rather than "sale" constitutes a declaration that the agents of cocaine purchasers may be charged (under a complicity theory) with third-degree controlled substance misconduct. Even before the Alaska Legislature enacted our current drug laws in 1982, federal *994 appellate courts had repeatedly held that Congress's decision to define federal drug offenses in terms of "delivery" had eliminated the "procuring agent" defense — since the definition of "delivery" now explicitly included transfers even when an agency relationship existed between the transferor and transferee. As the Ninth Circuit declared, Under [21 U.S.C. § 802], "distribute" means "to deliver ... a controlled substance" [, and] "[d]eliver" means "the ... transfer of a controlled substance, whether or not there exists an agency relationship." 21 U.S.C. § 802(8) (emphasis added). Thus, by its terms, the new statute excludes the "procuring agent" defense in toto. United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir.1973). See also United States v. Collins, 552 F.2d 243, 245-46 (8th Cir.1977); United States v. Pierce, 498 F.2d 712, 713 (D.C. Cir.1974); United States v. Redwood, 492 F.2d 216 (3rd Cir.1974); United States v. Masullo, 489 F.2d 217, 220-21 (2nd Cir.1973); United States v. Pruitt, 487 F.2d 1241, 1243-45 (8th Cir.1973); United States v. Johnson, 481 F.2d 645, 646 (5th Cir.1973); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir.1973). State courts construing similar statutes (statutes based upon the Uniform Controlled Substances Act) are essentially unanimous in reaching the same conclusion: when a drug offense is defined in terms of "delivery" (using a definition of "delivery" derived from the Uniform Controlled Substances Act), the "procuring agent" or "purchasing agent" defense is no longer available; a person acting as the agent of the purchaser can be charged as an accomplice to the delivery. See McKissick v. State, 522 So.2d 3, 4 (Ala.Cr.App. 1987); People v. Cattaneo, 217 Cal. App.3d 1577, 266 Cal. Rptr. 710, 713-15 & 713 n. 2 (1990); People v. Dinkel, 189 Colo. 404, 541 P.2d 898, 900 (1975); State v. Kelsey, 58 Haw. 234, 566 P.2d 1370, 1373 (1977); State v. Sharp, 104 Idaho 691, 662 P.2d 1135, 1139 (1983); People v. Williams, 54 Mich. App. 448, 221 N.W.2d 204, 205-06 (1974); Hindman v. State, 647 P.2d 456, 458 (Okla. Crim. App. 1982); Harwood v. State, 543 P.2d 761, 763-64 (Okla. Crim. App. 1975); State v. Baldwin, 867 S.W.2d 358, 360 (Tenn.Cr.App. 1993); Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200, 202 (1973); State v. Grace, 61 Wash. App. 787, 812 P.2d 865, 867-68 (1991); State v. Sherman, 15 Wash. App. 168, 547 P.2d 1234, 1236 (1976); State v. Hecht, 116 Wis.2d 605, 342 N.W.2d 721, 725-28 (1984). We have found only one decision contra: State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977). Thus, the overwhelming weight of authority supports the State's position in this appeal: that the 1982 revision of Alaska's drug laws eliminated the "procuring agent" or "purchasing agent" defense. Burden cites no cases to the contrary (not even Lott). Having considered these authorities, we now hold that, under the definition of "delivery" found in AS 11.71.900(6), a person who acts as a go-between or facilitator for an illegal drug transaction can be prosecuted and convicted as an accomplice to the delivery even though he or she is acting on behalf of the purchaser. The superior court's order dismissing the indictment is REVERSED. This case is remanded to the superior court with directions to reinstate the indictment against Burden. NOTES [*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a). [1] This commentary reads, in full: [Subsection (b)(2)] requires the legislature to decide whether the conduct inevitably incidental to a crime should be made criminal; for example, is the purchaser of sexual services guilty of prostitution? The Code does not prohibit the criminalization of such conduct[;] it merely provides that liability does not occur unless a statute specifically provides that it does.

59 B.R. 340 (1986) HOLYWELL CORPORATION, Miami Center Limited Partnership, Miami Center Corporation, Chopin Associates, Theodore B. Gould, Appellants, v. The BANK OF NEW YORK, Appellee. No. 85-3225-CIV, Bankruptcy Nos. 84-01590-BKC-TCB to 84-01594-BKC-TCB. United States District Court, S.D. Florida, Miami Division. March 20, 1986. *341 Raymond C. Bergan, Williams & Connolly, Washington, D.C., Fred H. Kent, Jr., Betsy C. Cox, Kent, Watts & Durden, Jacksonville, Fla., for appellants. Vance E. Salter, Steel, Hector & Davis, S. Harvey Ziegler, Kirkpatrick & Lockhart, Miami, Fla., Thomas F. Noone, Emmet, Marvin & Martin, New York City, for appellee. ORDER AFFIRMING CONFIRMATION ORDER AND PLAN ARONOVITZ, District Judge. I. THE NATURE OF THE APPEAL THIS APPEAL involves, as appellants, five (5) related debtors who simultaneously filed Chapter 11 proceedings in the United States Bankruptcy Court, submitting almost identical Plans of Reorganization; and, as appellee, the principal creditor, the Bank of New York, a mortgage lien-holder for the subject real property development. Appellants appeal from two (2) Orders of the Bankruptcy Judge, intertwined and interdependent: *342 A. An Order approving the substantive consolidation of the debtors' estates (Court Paper ["CP"] 840); and, B. The trial court's Order confirming the Plan of Reorganization proposed by the appellee here, the Bank of New York, the major creditor of the debtors' estates (CP 906). These appeals are taken from the Order approving Substantive Consolidation of the debtors' estates and the Order Confirming the appellee's Plan of Reorganization. II. THE PARTIES AND THEIR RESPECTIVE INTERESTS The debtors are as follows: 1. Holywell Corporation ("Holywell") is a Delaware corporation, incorporated in 1976, which, together with its subsidiaries, owns, operates, and provides a full range of services for commercial real estate. Theodore B. Gould is the sole stockholder of Holywell. 2. Miami Center Limited Partnership ("MCLP") is a Florida limited partnership which was formed in 1979. The general partners are Theodore B. Gould and Miami Center Corporation. There are numerous limited partners, which include Theodore B. Gould and Holywell. MCLP leased the land from Chopin Associates and then constructed the Miami Center Project on that land. 3. Miami Center Corporation ("MCC"), a Florida corporation, was incorporated in 1979. MCC is a subsidiary of Holywell. Holywell, in turn, is the principal stockholder of MCC. 4. Chopin Associates ("Chopin"), a Florida partnership composed of Theodore B. Gould and MCC, was formed in 1979 and is the owner of the land underlying the Miami Center. 5. Theodore B. Gould ("Gould") is the sole stockholder, a director and president of Holywell, the president and a director of MCC, a general partner of MCLP, and a partner of Chopin Associates. The Bank of New York (the "Bank") was the construction lender for the Miami Center Project. Construction of the Miami Center Project commenced in 1980. Chopin purchased the land and, together with MCLP, obtained a construction loan from the Bank of New York on March 23, 1980 in the initial amount of $112,500,000. Chopin's mortgage was $23,000,000. Gould, in addition to his interest in the Miami Center Project, also acquired four blocks of land, still vacant, adjacent to the Miami Center Project. That vacant land is not involved in these bankruptcy proceedings. Gould then entered into a joint venture in May 1981 with Olympia and York Florida Equity Corporation ("O & Y"), called the Miami Center Joint Venture ("MCJV"), which provided for the development of those blocks and further provided that O & Y would loan to MCJV $7,775,000. These funds were used by MCJV to acquire furniture, fixtures, and equipment ("FF & E") which were leased to MCLP for use in the Pavillon Hotel and Podium, which are part of the bankruptcy estate. The MCJV-MCLP leases of FF & E were referred to by the parties and the Bank and in the proceedings below as Lease "A" and Lease "B". MCJV is solvent and has not filed under the Bankruptcy Code. MCLP also leased additional FF & E, including electronic and telephone equipment, from two subsidiaries of Holywell, Holywell Telecommunications Company ("Holywell Telecommunications") and Holywell Leasing Company ("Holywell Leasing") (the "C" and "D" Leases, respectively) on February 1, 1983. Holywell and Gould supplied capital to Holywell Leasing and Holywell Telecommunications in the amount of $7,718,466 to purchase the FF & E which was leased by Holywell Telecommunications and Holywell Leasing to MCLP. Like MCJV, Holywell Telecommunications and Holywell Leasing are solvent companies and have not filed under the Bankruptcy Code. The appellants are five (5) related or affiliated debtors which voluntarily sought *343 reorganization under the Bankruptcy Code. The debtors developed the Miami Center Project in downtown Miami. Only Phase I of that project was built. Phase I consists of an office building, a hotel, retail space connecting them, and a parking garage. The project failed financially, and several hundred creditors are still owed money by the debtors for goods and services. The appellee Bank was the construction lender for the project, and was owed more than $240,000,000. Total claims against the debtors exceed $350,000,000. Over 400 creditors have or had an interest in these proceedings, of which at least 200 represent wage-earner claims. Since the confirmation of the appellee's proposed plan of reorganization by the Bankruptcy Court's Confirmation Order (which Order is the subject of this appeal), the Liquidating Trustee has paid, or has reserved funds to pay, all creditors in Classes 1 through 6, as those classifications were drawn under the Plan.[1] The amount paid out to claimants or "reserved" for payment by the Liquidating Trustee thus far is approximately $14 million, leaving approximately $8.9 million dollars remaining in the consolidated debtors' estates to pay the remaining creditors' claims. III. PROCEDURAL HISTORY The Chapter 11 proceedings, which culminated in the Order of Confirmation from which this appeal is taken, were initiated through the filing of voluntary petitions under Chapter 11 by each of the five debtors/appellants who are parties to this appeal. The voluntary petitions for reorganization were filed by the debtors on August 22, 1984, less than a month after the appellee had initiated foreclosure proceedings in state court upon declaring the debtors' mortgage loans on the Miami Center to be in default. In the course of Chapter 11 reorganization proceedings, both the debtors and the Bank of New York filed competing reorganization plans. The five debtors each submitted a separately filed plan, but the content of the five debtors' plans was virtually identical. (The details of the competing plans are discussed in Part IV of this opinion, infra.) The various creditors' committees and individual creditors, upon consideration of the competing plans, overwhelmingly approved the Plan of the appellee, the Bank of New York, and rejected the debtors' Plans. The Bank's Plan was subsequently confirmed by the Bankruptcy Court (CP 906). The debtors then sought, unsuccessfully, to stay the implementation of the confirmed Plan, pending appeal to the United States District Court. When the Bankruptcy Court conditioned the issuance of such a stay upon the posting of a supersedeas bond in the amount of $140 million dollars (CP 1013), the debtors filed an emergency motion in the United States District Court seeking relief from the bond requirement. That Court, by the Order of Chief Judge James Lawrence King, reduced the amount required to obtain a stay of the Bankruptcy Court's order to $50 million dollars (Docket Number ["DN"] 4). Unable to post this reduced bond, the debtors finally sought relief from Judge King's order by filing an appeal in the Eleventh Circuit Court of Appeals. The appeals court dismissed the debtors' appeal on the basis of lack of jurisdiction on October 9, 1985. On October 10, 1985, pursuant to the confirmed Plan of Reorganization, the Miami Center property was sold to the appellee's designee for $255.6 million dollars.[2] Prior to the sale of the Miami Center Project, on October 1, 1985, the debtors initiated the instant appeal to this Court from the Confirmation Order entered below. This Court received extensive briefs *344 as well as the parties' designated record on appeal, and heard oral argument by counsel for the debtors and for the Bank on December 5, 1985. During the course of this appeal, and prior to the hearing noted above, the appellee filed a motion to dismiss this appeal on the ground of mootness. Having considered the issues presented by the appeal, the record before it, and the appellee's motion to dismiss, this Court entered its Order of Remand and Denial of Motion to Dismiss (DN 35) on December 30, 1985. In that Order, this Court denied the appellee's motion to dismiss on the ground that the Court retained the capacity to grant effective relief to the appellants herein in the event that they should prevail on the merits in this appeal. Upon the subsequent motion of the appellee, the Court certified the question of mootness and the propriety of its Order denying the motion to dismiss pursuant to Title 28 U.S.C. § 1292 (DN 44), and the appellee filed its interlocutory appeal in the Eleventh Circuit Court of Appeals. Under date of March 17, 1986, the Eleventh Circuit DENIED permission to appeal pursuant to 28 U.S.C. § 1292(b). By the same Order of Remand and Denial of Motion to Dismiss, this Court remanded the substantive appeal to the Bankruptcy Court for the entry, by that court, of explicit findings of fact and conclusions of law upon which this Court could properly base its appellate review. This remand was necessitated by the determination that the Confirmation Order entered by the Bankruptcy Court was not sufficiently supported by such findings and conclusions. On remand, the Bankruptcy Court held an evidentiary hearing on all matters requested by the parties. Additional evidence was adduced on the following requested matters, to-wit: A. The Value of the Miami Center Project; B. The Value or "Cost/Benefit" of the District Court Action; and, C. The Calculation of the Bank's Lien. On January 29, 1986, the Bankruptcy Court concluded its proceedings on remand, having solicited from all parties their proposed findings of fact and conclusions of law as well as the objections of each party to the submissions of opposing parties. The Bankruptcy Court thereupon entered its Order on Remand, in which it adopted in toto and unaltered, the proposed findings of fact and conclusions of law submitted by the appellee, the Bank of New York.[3] Thus, the initial Confirmation Order, as amended by the adoption of these findings of fact and conclusions of law, constitutes the basis of the debtors' substantive appeal. *345 IV. THE COMPETING PLANS OF REORGANIZATION The debtors' plans (CP 466-470) differed substantially from that submitted by the Bank of New York and later confirmed by the Bankruptcy Court. The debtors' plans would have depended for their success upon the consummation of an "option" for the sale of all property owned by the debtors as part of the Miami Center property to the Hadid Investment Group, Inc. (See, e.g., the Amended Plan of Reorganization filed by the Miami Center Corporation, CP 468, Exhibit A.). The plan(s) further provided, in pertinent part, for a classification scheme by which, inter alia, the claims of the Bank of New York under its mortgage liens would be equitably subordinated, pursuant to Title 11 U.S.C. § 510(c), to Class 5, which is subordinate to administrative claims, tax claims and mechanics liens, inter alia. The claims of affiliated (with the debtors) creditors would be relegated to the lowest class (Class 10), and would include claims by one debtor/appellant against another. Lastly, the proposed plans of the debtors explicitly reserved their rights to pursue claims which were the subject of litigation in other forums. One such case is a civil action filed by the debtors against the Bank of New York (Case No. 85-0228-Civ-HOEVELER) in the United States District Court for the Southern District of Florida, which complaint alleges fraud, usury, breach of contract, and claims under the federal RICO statutes. As noted above, the plans submitted by the debtors received little support from the creditors[4], and were found by the court not to have met the standard for confirmation established by Title 11 U.S.C. § 1129.[5] The plan submitted by the Bank of New York, adopted by the requisite number of creditors, and finally confirmed by the Bankruptcy Court, contained the following major provisions: — The Bank would acquire the entire Miami Center Project property, including the FF & E for $255,600,000. The acquisition would be funded through the net amount already owed to the appellee by the debtors (approximately $240,000,000) to which would be added, as cash collateral, the proceeds of the sale by the debtors of certain realty owned by them in Washington, D.C. ($32,000,000). This latter sum of $32,000,000 has been held and maintained as additional collateral by the Bank pursuant to Judge Britton's order of December 31, 1984 (CP 303). The proceeds of closing would also produce approximately $11.4 million dollars in cash available for use under the Plan. — A Liquidating Trustee would be appointed to oversee the operations of the Miami Center in place of the debtors in possession, and to effectuate the terms of the Plan as directed by the Bankruptcy Court. This Liquidating Trustee would be required, by the terms of the Plan, to effect the dismissal of the debtors' civil action before Judge Hoeveler, discussed previously. — The Bank would set aside $15,000,000, backed by surety bonds, to pay the claims of two creditors which had leased FF & E to MCLP, namely, O & Y and MCJV (the partnership comprised of Olympia & York Florida Equity Corporation and debtor Theodore Gould). — The claims of Miami Center Joint Venture, Holywell Telecommunications and Holywell Leasing, affiliated creditors who had leased the FF & E to the Miami Center owners, would be equitably subordinated to, or given a classification junior to, those of other creditors *346 on the ground that these were "insider" claims. — The estates of the five debtors would be combined through substantive consolidation. The Bank's proposed plan of reorganization was confirmed on August 8, 1985 by the Bankruptcy Court's Confirmation Order (CP 906) and was implemented upon the dismissal of the debtors' appeal by the Eleventh Circuit Court of Appeals on October 9, 1985. V. PRESENT STATUS AS TO CONSUMMATION OF THE PLAN BY THE LIQUIDATING TRUSTEE The United States Bankruptcy Judge noted the following in his Findings at Paragraph 57 (Page 33 of Order on Remand): "The Court has now also had the unusual opportunity to observe the substantial consummation of the Plan under evaluation (after the debtors failed to post the appeal bond upon which a stay was conditioned). The fairness, feasibility, and propriety of the Plan have been verified by the following, as reported by the parties and the Liquidating Trustee: (a) All Class 1 administrative claims have been paid or reserved for; (b) The Project was sold on October 10, 1985, resulting in the satisfaction in full of the claim of the class 2 creditor (the Bank) and the termination of interest (accruing at over $2 million per month) and negative cash flow from operations; (c) The Class 3 creditor has been paid in full; (d) Undisputed claims in Classes 4 through 6 have been paid in full, and funds have been reserved for all disputed claims; (e) Several disputed claims have been compromised, saving the estates millions of dollars as against the amount claimed; and, (f) There remain sufficient funds for the satisfaction in full or in part of the claims of the Gould-affiliated claimants (although the exact amount cannot yet be determined because so many of the claims are unliquidated). No stay is in effect, and the confirmed plan has been consummated. The debtors' property passed to the Liquidating Trustee, and the debtors were discharged under Code Section 1141. . . . ". VI. STANDARD OF REVIEW It is settled beyond dispute that a district court, in deciding an appeal from a bankruptcy court's ruling, must accord substantial deference to the trial court's findings of fact, reversing these only when they are "clearly erroneous". Matter of Missionary Baptist Foundation of America, 712 F.2d 206, 209 (5th Cir.1983); Bankruptcy Rule 8013. Conclusions of law, however, are freely reviewable by the district court. Matter of Multiponics, 622 F.2d 709, 713 (5th Cir.1980). VII. ISSUES ON APPEAL In their appeal from the Bankruptcy Court's Confirmation Order, the debtors/appellants raised seven distinct objections to the confirmed plan. In the course of the extensive briefing and oral argument in which counsel for the parties have participated, it has become evident to this Court, and acknowledged by counsel, that two of the issues raised in this appeal predominate: A. The Substantive Consolidation of the Debtors' Estates; and, B. The Equitable Subordination (or improper classification) of the claims of various creditors who were affiliated with the debtors. A. Substantive Consolidation This Court is keenly aware of the seemingly harsh results which may be produced by substantive consolidation if the Bankruptcy Court invokes it inappropriately or contrary to law. Consequently, this phase of the appeal has been studiously examined. *347 The Bankruptcy Court, by its order of July 23, 1985 (CP 840) ordered the substantive consolidation of the debtors' estates. This ruling was reinforced by that court in its Confirmation Order entered August 8, 1985 (CP 906). The effect of substantive consolidation upon the debtors in this Chapter 11 proceeding is more than merely procedural; it entails the combination of the assets and liabilities of the individual debtors and the elimination of inter-debtor claims, excepting those incurred under the authorization of the Bankruptcy Court.[6]See generally 5 Collier on Bankruptcy, § 1106 (15th Edition). Substantive consolidation is within the power of a bankruptcy court by virtue of its general equitable power to issue those orders necessary to effectuate the provisions of the Bankruptcy Code. In re Richton International Corp., 12 B.R. 555, 557 (S.D.N.Y. 1981), citing Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939). In order to justify the imposition of substantive consolidation upon debtors in a Chapter 11 proceeding, it is incumbent upon the proponent of consolidation to show that the creditors will suffer greater prejudice in the absence of consolidation than the debtors (and any objecting creditors) will suffer from its imposition. In re Snider Brothers, 18 B.R. 230, 238 (D.Mass. 1982). As an aid to (but not as a substitute for) making this determination of the balance of equities for and against substantive consolidation, many courts employ a seven-part objective inquiry into the interrelationships of the entities to be consolidated. These seven factors (not all of which must be found to support consolidation) are: (1) The presence or absence of consolidated financial statements; (2) The unity of interests and ownership between various corporate entities; (3) The existence of parent and intercorporate guarantees on loans; (4) The degree of difficulty in segregating and ascertaining individual assets and liabilities; (5) The existence of transfers of assets without formal observance of corporate formalities; (6) The commingling of assets and business functions; (7) The profitability of consolidation at a single physical location. In Re Donut Queen, 41 B.R. 706, 709 (Bktcy.E.D.N.Y.1984). In its Order of Remand to the Bankruptcy Court, this Court instructed the court below in its findings of facts and conclusions of law to address, inter alia, the Donut Queen factors, and to enter specific findings and conclusions thereupon. Having closely reviewed the findings of fact and conclusions of law entered by the Bankruptcy Court, and having considered the briefs and oral argument of counsel for the parties, the pertinent portions of the record on appeal, and the applicable law, it is the conclusion of this Court that the order imposing substantive consolidation upon the estates of the five debtors, and that portion of the Confirmation Order which adopts this ruling, was proper and correct as a matter of law and was based on sufficient factual findings which were not, themselves, clearly erroneous. In Paragraphs # 30 to 41 of its Order on Remand, the court below entered findings of fact in support of its rulings on substantive consolidation. A review of these findings in comparison to the Donut Queen factors reveals that there exists in this record strong and convincing evidence to show the existence of at least five of the seven factors enumerated in that decision: 1. The presence of consolidated financial statements (inapplicable to debtors Holywell and Miami Center Corp.); *348 2. The unity of interests and ownership between the various corporate entities; 3. The existence of cross-claimants of guarantees on loans to other debtors; 4. . . . ; 5. . . . ; 6. The commingling of assets and business functions; 7. The profitability of consolidating the debtors in one location. As to the two remaining factors (the degree of difficulty in segregating individual assets and the transfer of assets absent corporate formalities), no explicit findings of fact were entered in the court's Order on Remand. The Bankruptcy Court's findings on five of the seven Donut Queen factors constitute a factual basis for its decision to order substantive consolidation in this case. This Court, however, must go further than merely evaluating the correctness of these factual findings. It must assess the propriety of imposing substantive consolidation as a matter of law. In this aspect of its review, this Court will affirm those conclusions of law entered below which correctly apply the law. Where the Bankruptcy Court has erred in its conclusions, this Court will conduct a de novo review of the legal issues presented in this appeal. Therefore, this Court rules that the Bankruptcy Court correctly determined, as a matter of law, that substantive consolidation was proper in this case. At Paragraph 67 of its Order on Remand, that court applied the standard of In Re Snider, supra, to the record facts in determining that greater prejudice would ensue to the proponents of substantive consolidation if that remedy were denied than would be suffered by the debtors through its imposition. Furthermore, the court's determination of the effect of the five objective factors (¶ Nos. 64 (a), (b), (f) and (g)) as proper grounds for consolidation coincides with this Court's result upon review of the record and the applicable law. For the foregoing reasons, this Court AFFIRMS that portion of the Confirmation Order (CP 906), and the separate Order on Substantive Consolidation (CP 840), approving the substantive consolidation of the estates of the five debtors/appellants which are parties to the instant appeal. In Paragraph 66 of the Bankruptcy Judge's Order on Remand (Page 40), it is stated: "66. The debtors have claimed prejudice, but have not proven it. . . . The debtors never demonstrated prejudice as an unavoidable consequence of substantive consolidation. . . . ". The burden of demonstrating prejudice more properly should have been placed upon the creditor/appellee. However, this Court has reexamined, in its totality, the entire record herein and by de novo consideration, has determined that there was ample evidence to demonstrate that, in fact, appellee had carried the burden of showing no prejudice to the appellants, notwithstanding the Bankruptcy Court's findings that the debtors never demonstrated prejudice. Accordingly, the determination of the Snider principles have been appropriately applied and the burden is found to have been carried by appellee. B. Equitable Subordination/Junior Classification The second key element of the plan of reorganization confirmed by the Bankruptcy Court's Confirmation Order is the equitable subordination (or, as appellee chooses to characterize it, the junior classification) of certain creditor's claims, otherwise eligible for a higher priority, on the ground that they represented "insider" claims. The claims so subordinated include those of Miami Center Joint Venture and Olympia & York (Class 7) and the claims of the affiliated creditors which are the subsidiaries of debtor Holywell Corporation (Class 8). A third category of claims affected by the "equitable subordination" aspect of the confirmed reorganization plan are certain, so-called "super-priority" loans which were made by various debtors to MCLP with the express authorization of the Bankruptcy *349 Court to supply necessary funds for the operation of the Miami Center during Bankruptcy Court proceedings, or to satisfy pressing tax obligations. The Court has been especially sensitive to the equitable subordination aspect of this appeal and has therefore taken the utmost care in scrutinizing the record, the findings and conclusions relevent to this issue, and the treatment accorded this measure by the competing plans. After careful analysis of all the briefs and oral arguments received by the Court, it has become clear that appellants are really complaining about three sets of claims which were subjected to junior classification as a result of the Bankruptcy Court's rulings: 1.) The lease claims of Olympia & York and Miami Center Joint Venture (the "A and B leases") arising from their leases of furniture, fixtures and equipment (FF & E) to Miami Center Limited Partnership (MCLP). 2.) The lease claims of affiliated creditors Holywell Telecommunications Company and Holywell Leasing Company (the "C and D leases") for FF & E leased to MCLP. 3.) The claims of debtors Gould and Holywell and of affiliated creditor Twin Development Corporation under their "super-priority loans" to MCLP. Since each of these categories of subordinated claims involves a distinct group of creditors, the Court deems it appropriate to consider each in turn.[7] (1) The Lease Claims of Creditors — Olympia & York and Miami Center Joint Venture Miami Center Joint Venture and Olympia & York entered into certain lease agreements (the "A" and "B" Leases) whereby these entities leased furniture, fixtures and equipment to MCLP which were installed in the Miami Center. The validity of these leases (i.e., the fact and ruling that they are "true leases" as opposed to mere financing devices) was determined by the Bankruptcy Court in the course of an adverserial proceeding. (See Memorandum Decision dated June 24, 1985 — CP 781.) The claims of O & Y and MCJV under these leases were explicitly subordinated to the claims of the nonaffiliated creditors (Class 6) by being placed under the confirmed plan in Class 7. From the Bankruptcy Court's orders declaring the leases as "true leases" and subordinating the creditors claims under those leases, the respective parties in interest have taken appeals to the District Court. These appeals, which are currently pending before the Honorable C. Clyde Atkins, Senior U.S. District Judge, are: — Case No. 85-3230-CIV-ATKINS: An appeal by creditors O & Y and MCJV from the Confirmation Order of the Bankruptcy Court, specifically objecting to the subordination of their lease claims under the confirmed plan. — Case No. 85-3430-CIV-ATKINS: An appeal by the Bank of New York from the Memorandum Decision of the Bankruptcy Court (CP 781) which determined the "A" and "B" leases to be "true leases". The appellants in the instant appeal have raised the objections of those creditors as a method of attacking the validity of the overall reorganization plan. However, the issue of whether the claims of O & Y and MCJV have been wrongly subordinated (or classified) is one which the debtors/appellants in the instant appeal lack standing to assert because they are not parties actually injured by this classification. R.T. Vanderbilt Co. v. OSHA Rev. Comm., 708 F.2d 570, 574 (11th Cir.1983). This issue is properly *350 presented in the appeal before Judge Atkins, brought by the parties which are directly affected by the challenged ruling, and is therefore not a proper matter for adjudication by this Court. It is possible that as a result of Judge Atkins' ruling, the classification of this claim which Judge Atkins may grant, could possibly affect the Plan overall — but this is purely a contingency which may never occur and if it did, the Bankruptcy Judge would still be vested with jurisdiction to review the matter to ascertain a change or different classification as directed by Judge Atkins. On the other hand, Judge Atkins' ruling may require no change in classification. (2) The Lease Claims of Affiliated Creditors — Holywell Telecommunications Company and Holywell Leasing Company For the same reasons discussed above with regard to the "A" and "B" Lease claims, the appeals filed by creditors Holywell Telecommunications Company (HTC) and Holywell Leasing Company (HLC) and assigned to the Hon. James W. Kehoe (Case No. 85-3431-CIV-KEHOE) are matters for which the appellants before this Court lack standing. One of these leases affects the telephonic equipment installed in The Project by lease arrangement, and the other affects certain electronics and telecommunications equipment, including television cable. Clearly here, and with regard to the "C" and "D" leases, these matters involve parties other than the debtors and who are truly the parties in interest (affiliated creditors). It should be noted that it is not, and has never been, the purpose of this Court to interfere in any way with the matters pending before these judges. In particular, as concerns the appeals before Judge Atkins, the determination of the validity of the "A and B" leases and the proper classification of the creditors' claims thereunder are matters not properly before this Court, so the instant order shall not affect those ongoing appeals. (3) The So-called "Super-priority Loans" A third aspect of the proceedings in the Bankruptcy Court which the appellants contend had the effect of subordinating (or eliminating) claims deserving higher priority was the apparent elimination of a "super-priority" assigned, by orders entered in the Bankruptcy Court, to loans made to Miami Center Limited Partnership with the express authorization of the Bankruptcy Court. In their briefs to this Court, appellants have identified three such loans.[8] The confirmed Plan of Reorganization did not address the classification of these "super-priority" loans directly. It is the appellants' contention that the portion of the plan which provided for the substantive consolidation of the debtors' estates had the effect of eliminating these inter-debtor claims. The appellee counters that it is immaterial whether these claims were, in fact, subordinated (to Class 8) or retained their "superpriority" status immediately junior to the Bank's mortgage lien, since any payment from one creditor to another leaves those funds in the combined pool *351 which remains reachable by all the creditors of any debtor (likewise an effect of the substantive consolidation provision of the Confirmation Order). The ultimate disposition of these "super-priority" liens is a pending matter yet to be decided by the Bankruptcy Court, and is therefore a matter not within the scope of the Confirmation Order which is the subject of this appeal. Because the record is silent as to how (and whether) these liens were subordinated or eliminated, it is incumbent upon the Bankruptcy Court to resolve these questions after further adjudication. If the treatment accorded to these loans materially and adversely affects the rights of any party in interest, the terms of the Bank's Plan expressly permit any such party to assert a claim for relief from the consolidation provision [Article XIII, page 40, of the Plan; Debtors' initial appendix, page 090]. Under Article XIV(e) of the Plan [Id., page 091], the Bankruptcy Court would have continuing jurisdiction to hear and determine any dispute regarding the appropriate treatment of these loan claims. C. Other Issues Presented on Appeal In addition to the two main elements of the confirmed Plan of Reorganization from which this appeal is taken, there have been raised several other aspects of the plan which, the appellants contend, warrant reversal. (1) The Authorization to the Liquidating Trustee to Dismiss a Pending Lawsuit Filed by the Debtors Since the inception of this appeal, the appellants have urged this Court to reverse the Confirmation Order on the ground that the confirmed plan called for the voluntary dismissal by the Liquidating Trustee of a civil action filed by the debtors (the District Court action, [See page 9-10, supra.]) On appeal, the debtors/appellants contend that the Bankruptcy Court was without authority to order the dismissal of that action, and that in doing so it unconstitutionally ousted the District Court from its proper jurisdiction. In the first instance, the lawsuit was a chose in action which was part of the debtors' estate. 11 U.S.C. § 541(a)(1). As such, it was within the power of the Bankruptcy Court to order its dismissal through the liquidating trustee. In re Tidwell, 19 B.R. 846 (E.D.Va.1982). Secondly, as a separate and independent ground for upholding this aspect of the plan, the Court notes that, upon the remand of this cause and upon the request of the appellants, the Bankruptcy Court performed a cost/benefit analysis of the value of this lawsuit to the debtors' estates, and concluded that its value was nil. This determination provides additional support for the inclusion in the confirmed plan of reorganization of the directive to the liquidating trustee to dismiss the District Court action. As a further basis for this ruling, evidence adduced at a post-remand hearing held on January 18, 1986 showed that certain releases previously signed by the debtors effectively barred them from pursuing their civil action under principles of collateral estoppel. The Bankruptcy Court was within the scope of its authority in making this determination, as the debtors' right to pursue this action was a matter concerning the administration of the estates, and/or a counterclaim by the estate against persons filing claims against the estate, and/or confirmations of Plans, and/or other proceedings affecting the liquidation of the assets of the estate, etc., and therefore constituted a "core proceeding". 28 U.S.C. § 157(b)(2)(A), (C), (L), and (O). (2) The Valuation of the Property In The Debtors' Estates Appellants have objected throughout this appeal to the valuation assigned by the Bankruptcy Court, through confirmation of the Bank's plan, to the realty, improvements and FF & E which constitute *352 the Miami Center property. The appellee has contended throughout that the valuation contained in the confirmed plan is the correct one; i.e., $255,600,000. (Order on Remand, ¶ No. 51). The value proposed by the appellants for the property is $275,000,000. The Bankruptcy Court devoted a portion of its January 18, 1985 post-remand hearing to the issue of valuation, and heard testimony from appraisers hired by both sides who essentially defended the appraisals cited above. On the basis of such testimony, as well as the formal appraisals upon which its initial determination was made, the Bankruptcy Court confirmed the original valuation figure of $255,600,000. This Court has reviewed the record evidence and has received written as well as oral argument on this issue. In light of such review, this Court concludes that the finding of the Bankruptcy Court as to the value of the Miami Center property was not clearly erroneous, and therefore will not be disturbed as a result of this Court's action. (3) The Priority of Claims Based On Mechanics' Liens In their initial brief on appeal, the debtors/appellants challenged the classification of certain claims filed by mechanics and materialmen who had furnished the Miami Center. In addition to the fact that the appellants in the instant appeal lack standing to raise those objections, events have occurred through the implementation of the confirmed plan of reorganization which render this issue on appeal moot; i.e., that all of these Class 4 claims have been paid by the liquidating trustee. (4) Unfair Classification of Certain Unsecured Creditors This previously asserted issue on appeal suffers from the identical infirmities discussed at paragraph (3), supra. First, the creditors allegedly injured by this mis-classification are not parties to this appeal. Second, the liquidating trustee has likewise paid out all of these Class 6 claims (or reserved the funds to do so) which were the subject of this objection to the plan. (5) Amendment to the Plan of Reorganization Without Issuance of Disclosure Statements or Hearing In the last of their original issues on appeal, the debtors objected to the fact that late modifications to the Bank's Reorganization Plan were adopted shortly before entry of the Confirmation Order. These modifications (CP 564, 614, 709c, and 854) consisted of stipulations and amendments to the plan as filed. The purpose of these modifications was to provide for a trustee's certificate to repay the Bank of New York for any outlay required to acquire the FF & E which was the subject of the "A" and "B" leases. The Bankruptcy Court concluded (Order on Remand, ¶ No. 81) that these modifications did not prejudice the debtors, and that since the plan had been approved by the requisite number of creditors, disclosure to those classes which had rejected the plan was not required by 11 U.S.C. § 1127. This Court agrees with the Bankruptcy Court's conclusion that the adoption of amendments to the plan of reorganization subsequently confirmed by that court did not violate the applicable provision of the Bankruptcy Code, did not prejudice these appellants, and therefore does not constitute a basis for reversing the Confirmation Order. VIII. CONCLUSION Having painstakingly reviewed the record in this appeal, the voluminous briefs, appendices and other submissions of counsel for the parties, having heard extended oral argument again on the merits of the appeal on March 10, 1986, having considered the Order on Remand entered by the Bankruptcy Court, the entire record herein, and being otherwise fully advised in the premises, it is ORDERED and ADJUDGED that the Confirmation Order entered by the Bankruptcy Court on August 8, 1985, as amended by the entry of that court's Order on *353 Remand on January 29, 1986, is hereby AFFIRMED; and thereupon, the Order approving Substantive Consolidation is likewise AFFIRMED. AFFIRMED. NOTES [1] See Part IV., supra. [2] The purchase price of $255,600,000 was funded by the Bank through elimination of its mortgage liens, the waiver of interest owed by the debtors thereon, and the application of certain cash collateral (approximately $30,000,000) derived from the sale by the debtors of certain real estate holdings near Washington, D.C. The closing also resulted in the Bank paying over to the Trustee approximately $11.4 million dollars cash at closing. [3] The appellants in their Brief Following Order on Remand have severely chided the Bankruptcy Judge, and the appellee, for the manner in which the findings of fact and conclusions of law were adopted in this case. Specifically, the appellants take issue with the decision by Judge Britton to adopt verbatim, without any deletion or addition, the proposed findings and conclusions submitted by the appellee while rejecting totally those proposed by appellants. This Court is well aware of the censure which this practice often elicits, and which the Court of Appeals for this Circuit has clearly expressed. Cabriolet Porsche-Audi, Inc. v. American Honda Motor Company, 773 F.2d 1193, 1198 n. 2 (11th Cir.1985) (disapproving the practice of verbatim adoption of findings and conclusions prepared by one party to the litigation). This Court does not condone the practice followed by the Bankruptcy Judge in this case. It is the Court's belief that a trial judge should not accept in toto the findings and/or conclusions proposed by a party to litigation without an independent analysis in which the judge augments or replaces the proposed findings with his own. Notwithstanding this admonition, the Court is also aware of the United States Supreme Court's ruling in Anderson v. Bessemer City, 470 U.S. ___, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). There, while disapproving of the practice of adopting unchanged the proposed findings and conclusions of a party, the Court noted that such findings "nevertheless . . . are those of the Court and may be reversed only if clearly erroneous." 105 S.Ct. at 1511. Thus, whether this Court approves of the procedure followed by Judge Britton upon remand in this appeal is not determinative. In light of the ruling in Anderson, but with a clear appreciation of the admonition of the Eleventh Circuit in Cabriolet Porsche-Audi, this Court has given close scrutiny to the findings of fact adopted below, but within the scope allowed such review by the "clearly erroneous" standard of Bankruptcy Rule 8013. [4] See the Confirmation Order entered by Judge Britton 54 BR 41, (CP 906). At page 2 of that order, the Bankruptcy Court set out the results of the creditor voting on the respective plans: Debtors' Plans BONY Plan Holywell 97% Rejection 15% Rejection MCLP 80% " 10% " MCC 99% " 10% " Chopin 99% " 0.1% " Gould 80% " 12% " [5] Confirmation Order (CP 906), at 5. [6] Certain inter-debtor loans were specifically allowed by the Bankruptcy Court during the conduct of the Chapter 11 proceedings below to enable the debtors in possession to continue operation at the Miami Center. The so-called "super-priority" loans are discussed more fully at Part VII.B(3), infra. [7] If this aspect of the confirmed Plan (i.e., equitable subordination or classification) rested solely on a review of the subordination of claims which the appellants herein had standing to pursue, this Court would be required to analyze the findings and conclusions relevant to subordination under the standard of Matter of Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977). Such an analysis is not required here, however. For reasons that are set out more fully herein, none of these three subordinated claims are in a procedural posture such that these appellants may properly raise them in the context of the instant appeal. [8] The existence of the three authorized loans to Miami Center Limited Partnership from debtor Holywell Corporation, from debtor Theodore Gould, and jointly by Gould, Holywell and Twin Development Corporation is not disputed by either party. Although larger amounts were authorized to be loaned to MCLP than were actually released from the cash collateral fund from which the loan proceeds derived, the record reflects the following actual transfers of funds: Holywell to MCLP : $1,419,921.99 Gould to MCLP : $2,489,507.78 Twin Development, et al. : $ 615,757.91 _____________ $4,525,187.68 The "super-priority" which attached to these loans was a protection granted by the Bankruptcy Court's orders to preserve the priority (subject to the Bank's liens) of the claims of creditors of the individual debtors (i.e. Gould and Holywell). The significance of this "priority" was diminished by the substantive consolidation of the five debtors' estates, whereby creditors of Gould and/or Holywell could reach the assets of MCLP, the recipient of these loan proceeds. See Page 23, infra, with regard to further or future actions open before the United States Bankruptcy Court regarding these loans.

614 A.2d 395 (1992) NEWPORT SAND AND GRAVEL COMPANY v. MILLER CONCRETE CONSTRUCTION, INC., et al. No. 90-540. Supreme Court of Vermont. August 14, 1992. *396 Frank H. Olmstead of Sachs & Desmeules, Norwich, for plaintiff-appellee Newport Sand & Gravel. Richard L. Brock of Cheney, Brock & Saudek, P.C., Montpelier, for plaintiff-appellee Capitol Steel & Supply Co. Timothy L. Taylor and William H. Meub of Keyser, Crowley & Meub, P.C., Rutland, for defendant-appellant Simpson Const., Inc. Tavian M. Mayer of Mayer & Berk, South Royalton, for defendant-appellant Royalton Town School Dist. Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ. JOHNSON, Justice. The issue in this appeal is whether and to what extent the contractors' lien statute, 9 V.S.A. §§ 1921-1928, protects suppliers of construction materials when they supply materials to subcontractors of general contractors. On motions for summary judgment, the superior court held that suppliers of subcontractors are entitled to a lien against the owner of property benefited by the provision of the materials and that the extent of protection is judged by the amount owed by the owner to the general contractor at the time the notice of lien is received. The court also awarded statutory interest running from the date the complaint was filed. We affirm. The facts are unremarkable. Defendant Royalton Town School District contracted with defendant Simpson Construction, Inc. to build an addition to one of its schools. Simpson acted as general contractor for the project. It subcontracted with defendant Miller Concrete Construction, Inc. to do the concrete work. Miller Concrete arranged to have plaintiff Newport Sand & Gravel, Inc. Supply the materials. Newport fulfilled its obligations under the contract, but Miller failed to pay it in the amount of $24,500. Newport filed a notice of lien against the District on December 11, 1987, under 9 V.S.A. § 1921. At that time, the District owed Simpson, the general contractor, over $900,000. On February 26, 1988, Newport brought suit against the District and Miller to enforce the lien. It also obtained a writ of attachment against the District, but Simpson intervened and posted a surety bond, obviating the need to serve and record the attachment. In fact, Simpson defended the action, with little or no participation from the District, because the District *397 released the remaining contract funds to Simpson after it posted the surety bond. Miller filed bankruptcy, but obtained relief from the automatic stay to participate in discovery. Although there is no dispute that Miller owed Newport $24,500, there is a substantial dispute between Simpson and its subcontractor, Miller, about monies due from Simpson to Miller. Simpson claims it owes Miller only $11,875, and contends that if Newport is entitled to a lien at all, it is limited by the amount remaining on Simpson's contract with Miller and not by the $900,000 owing from the District to Simpson at the time the lien was filed. The first issue, then, is whether Newport, as a supplier of construction materials to subcontractor Miller, may claim the protection of the lien statute. The contractors' lien for labor or material provides: (b) A person who by virtue of a contract or agreement, either in writing or parol, with an agent, contractor or subcontractor of the owner thereof, performs labor or furnishes materials for erecting, repairing, moving or altering such improvements shall have a lien, to secure the payment of the same upon such improvements and the lot of land upon which the same stand, by giving notice in writing to such owner or his or her agent having charge of such property that he or she shall claim a lien for labor or material. Such lien shall extend to the portions of the contract price remaining unpaid at the time such notice is received. 9 V.S.A. § 1921(b). Although the present statute was amended as recently as 1986, Goodro v. Tarkey, 112 Vt. 212, 214, 22 A.2d 509, 510 (1941), there has been some form of mechanics' or materialmens' lien statute in Vermont since 1849. 1849, No. 21, § 3. The lien is purely a creature of statute, and, therefore, cases from other jurisdictions, and even Vermont cases decided prior to the present statute, have limited application. T.A. Haigh Lumber Co. v. Drinkwine, 130 Vt. 120, 126, 287 A.2d 560, 563 (1972). Notwithstanding the diversity of mechanics' lien statutes, their general intent is to provide limited protection for suppliers to construction projects by giving them a tool to secure payment for their products, which is, presumably, part of the contract price received by the general contractor from the owner. See Seaman v. Climate Control Corp., 181 Conn. 592, 597, 436 A.2d 271, 275 (1980). By giving suppliers and others who benefit the project an in rem right against the owner, the statute overcomes the lack of privity between the suppliers and the owner, since the suppliers typically deal with the general contractor or the subcontractors. Stratton v. Inspiration Consol. Copper, 140 Ariz. 528, 531, 683 P.2d 327, 330 (Ct.App.1984); Seaman, 181 Conn. at 596, 436 A.2d at 274. Simpson's argument focuses on the statutory language. It states that because Newport supplied Miller, which it describes as a subcontractor of the "general," and not "of the owner," as required by the statute, Newport is not entitled to a lien. Simpson contends that although Miller would be allowed a lien, as a subcontractor, Miller's suppliers would not. Simpson's interpretation is internally inconsistent, mischaracterizes the relationship of Miller to the owner, and defeats the purpose of the statute. If Miller is only a subcontractor of the general contractor, then, under Simpson's theory, Miller should not be entitled to a lien because it is not also a subcontractor of the owner. Under Simpson's theory, Miller should be allowed to recover only if it contracts, as a subcontractor, directly with the owner. If it did so, however, it would be a contractor and not a subcontractor, and would not be covered by the statute. More importantly, Miller is a subcontractor "of the owner." A subcontractor is "[o]ne who takes portion of a contract from [a] principal contractor." Black's Law Dictionary 1277 (5th ed. 1979). One can be a subcontractor of the owner only if there is an owner's general contract in the first place. The obvious purpose of the use of the word "subcontractor" in the statute is to cover precisely the factual situation before *398 the Court. The general contractor secures the job and subcontracts major portions of it. Suppliers provide materials to the subcontractors so that the "subs" can perform their part of the work to be done under the general contract. Here, Simpson asked Miller to do the concrete work, and Miller obtained supplies for that portion of the job from Newport. Simpson's interpretation also defeats the purpose of the statute by cutting off protection for suppliers who are more than one step removed from the owner. But the Legislature intended, by the express terms of the statute, to extend the protection of a lien to "persons" who "furnish materials" pursuant to "contract or agreement" with an agent, contractor, or subcontractor of the owner. Suppliers of subcontractors are, necessarily, more than one step removed from the owner. The plain wording of the statute includes them. See Addison County Community Action v. City of Vergennes, 152 Vt. 161, 165, 565 A.2d 233, 235 (1989). Simpson's second argument is that, even if Newport is entitled to a lien under the statute, the lien should be measured by Simpson's contract with Miller, as the party with whom Newport contracted. Again, this interpretation ignores the plain meaning and intent of the statute. The last sentence of § 1921(b) states, "Such lien shall extend to the portions of the contract price remaining unpaid at the time such notice is received." The contract referred to in this sentence is the owner's contract because the in rem claim extends to the property of the owner, not the general contractor. Notice is required to be given to the owner, not the general contractor. The statutory scheme is designed to put the owner on notice that materials have been supplied to its benefit, and the supplier's bill remains unpaid. The owner can then segregate funds from the amounts still owing on the contract price to the general contractor to pay the supplier. Our cases imply that the amount due to the general contractor from the owner at the time a lien is filed is the amount by which we limit a supplier's lien. See T.A. Haigh Lumber Co. v. Drinkwine, 130 Vt. at 129, 287 A.2d at 565 (mechanic's lien denied supplier because no money due from owner to general contractor when notice filed); Cote v. Bloomfield, 128 Vt. 306, 311, 262 A.2d 467, 471 (1970) (obligation of owner under mechanic's lien was only as to sum of money due under general contract after offsets for failure of general to complete work). These cases were decided under a version of the statute that contained the same language in issue here. Simpson offers a number of policy considerations, rather than textual support, to advance its argument that we should interpret the statute differently. These arguments are more appropriately presented to the Legislature than to this Court because we find the meaning of the statute to be plain on its face. Finally, Simpson argues that the trial court erred in awarding interest on the amount owed, $24,500, from the date the complaint was filed, in the amount of $9,260.15, and in granting an additional attachment for such interest post-judgment. Simpson contends that interest was improper because the District released the balance of the contract price to Simpson after Simpson provided security for Newport's potential judgment against the District. Therefore, there were no contract funds remaining at the time the superior court awarded interest, with the result that the District is liable for more than the contract price, a concept antithetical to the lien statute. We disagree. Prejudgment interest may be awarded as damages for detention of money due for breach or default. This interest is awarded as of right when the principal sum recovered is liquidated or capable of ready ascertainment and may be awarded in the court's discretion for other forms of damage. Reporter's Notes V.R.C.P. 54(a), 1981 amendment. See VanVelsor v. Dzewaltowski, 136 Vt. 103, 106, 385 A.2d 1102, 1104 (1978); Vermont Structural Steel Corp. v. Brickman, 131 Vt. 144, 147, 300 A.2d 629, 631 (1973). Interest ordinarily runs from the time of *399 maturity or demand for payment or the time of default, which may be the date when the action is commenced. VanVelsor, 136 Vt. at 106, 385 A.2d at 1104-05. Other jurisdictions have permitted suppliers to recover interest from owners in actions to foreclose mechanics' liens, as part of the general law on interest. In General Electric Supply Co. v. Southern New England Tel. Co., 185 Conn. 583, 606, 441 A.2d 581, 592 (1981), the Connecticut Supreme Court held that the allowance of interest is primarily an equitable determination within the discretion of the trial court; hence, the trial court had properly awarded interest to holders of mechanics' liens where the owner as well as the general contractor possessed the means of expeditiously resolving the lienors' claims. In Mid-West Engineering & Constr. Co. v. Campagna, 421 S.W.2d 229, 233 (Mo.1967), the Missouri Supreme Court observed that a mechanics' lien law should be construed as favorably to mechanics and suppliers as its terms will permit. The court concluded that it is fair to include interest in the amount charged to an owner who is not in privity with the lienor because the owner can prevent construction from commencing or, at least, continuing under circumstances that might generate mechanics' liens against the owner's property. Id. In the present case, we consider the award of interest to be a matter within the discretion of the trial court, and conclude that such discretion was not abused. There was no dispute over the amount Newport was owed on its invoice for the concrete supplied. Therefore, the amount of the claim was a readily ascertainable, liquidated sum. The District possessed the means of expeditiously resolving Newport's claim by paying the undisputed amount. Instead, it allowed Simpson to post a bond in the amount of the lien and take over the litigation so that Simpson could litigate the operation of the mechanics' lien statute. Simpson hoped to reduce the amount legitimately owed to Newport, an issue in which the District was wholly uninterested, because it had paid Simpson the remaining funds due on the general contract. The District acted at its peril. Simpson, in control of all of the contract funds, now seeks to avoid a judgment that Newport is entitled to interest on monies Simpson effectively withheld while litigating the legal issues discussed herein. Simpson's curious logic would reward Simpson and the District for releasing the balance of the contract funds prematurely, while punishing Newport, which met all of its obligations under its contract. The District merits no rewards in this case, either. It is charged with knowledge that interest may be awarded both pre- and post-judgment, as are other litigants. It therefore cannot be exempt from interest on the ground that it unwisely released the balance of the contract funds to Simpson after it had notice of the claim. For the same reason, the District cannot be exempt from interest on the ground that Newport failed to give notice of the potential for recovery of interest when it gave notice of the principal amount of its lien. The mechanics' lien statute requires only that the lienor give notice of its claim for labor or material. 9 V.S.A. § 1921(b). Moreover, carving an exception for mechanics' liens from the general rules on interest encourages collusion between owner and general contractor. The owner and general contractor could delay payment, enjoy the use of the money, and avoid interest by having the owner disburse all remaining contract funds to the general contractor prior to judgment. The intent of 9 V.S.A. § 1921(b), which is to provide suppliers with a method of accessing funds still available under the general contract, would be frustrated. Allowing interest in appropriate cases places no special burden on owners. Vigilant owners are unlikely to have to estimate interest costs resulting from lengthy litigation over suppliers' liens because they will act quickly to resolve disputes. If they must do so, they will certainly present strong grounds to a trial court for denying interest on the equitable basis that the amount due is in dispute and incapable of being readily determined. *400 Thus, we conclude that the protection that 9 V.S.A. § 1921(b) affords to suppliers includes the recovery of interest, in the court's discretion, as long as the amount owing on the general contract when the owner receives notice of the lien is sufficient to cover the judgment. Affirmed. ALLEN, Chief Justice, concurring and dissenting. I concur with the majority's resolution of the first two arguments raised but dissent from the affirmance of the interest award. I believe that the award of interest under the facts of this case was an abuse of discretion. In its notice of lien, plaintiff stated the amount it was claiming but did not indicate whether interest was included or would be claimed. In seeking an attachment pursuant to 9 V.S.A. § 1924, plaintiff presented evidence that it was likely to recover the sum of $25,349.77 and that interest was likely to accrue in the amount of at least $500. A writ of attachment was issued in the amount of $25,400, but it was never served, and the property was never attached or foreclosed pursuant to the lien statutes, presumably because the general contractor posted a bond in the amount of $25,400 conditioned for the payment of any judgment by plaintiff against the school district. The request for the subsequent writ of attachment issued in February of 1991 for the interest accrued and additional interest should have been denied because it was untimely under 9 V.S.A. § 1924. Filter Equipment Co. v. IBM, 142 Vt. 499, 502-03, 458 A.2d 1091, 1092-93 (1983). The acceptance of the bond by plaintiff, evidenced by its failure to pursue the enforcement of the lien in accordance with the statutory requirements, limited the exposure of the school district to the penal amount of the bond. While plaintiff argues that it should not be penalized for initially asking too little for post-judgment interest, the school district should not be penalized because it did. Its exposure was fixed by the original judgment, and it should have been free to release monies due over that amount to the general contractor pursuant to the contract.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-7679 DONDI A. JOHNSON, Petitioner - Appellant, versus RONALD F. MOATS; ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-95- 1374-AMD) Submitted: February 12, 1998 Decided: March 4, 1998 Before MURNAGHAN and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Dondi A. Johnson, Appellant Pro Se. Ann Norman Bosse, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant filed an untimely notice of appeal. We dismiss the appeal for lack of jurisdiction. The time periods for filing notices of appeal are governed by Fed. R. App. P. 4. These periods are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Parties to civil actions have thirty days within which to file in the district court notices of appeal from judgments or final orders. Fed. R. App. P. 4(a)(1). The only exceptions to the appeal period are when the district court extends the time to appeal under Fed. R. App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6). The district court entered its order on August 11, 1997; Appellant's notice of appeal was filed on November 10, 1997. Ap- pellant's failure to file a timely notice of appeal or to obtain either an extension or a reopening of the appeal period leaves this court without jurisdiction to consider the merits of Appellant's appeal. We therefore deny a certificate of probable cause and dis- miss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

6 F.3d 780 National Corporation-Manufacturer of Collapsible Tubes, Inc.v.A.M.E. International, Inc. NO. 92-5631 United States Court of Appeals,Third Circuit. Aug 12, 1993 1 Appeal From: D.N.J. 2 REVERSED IN PART.

660 F.Supp.2d 882 (2009) ABBOTT LABORATORIES and Central Glass Company Ltd., Plaintiffs, v. BAXTER HEALTHCARE CORP., Defendant. No. 04 C 836. United States District Court, N.D. Illinois, Eastern Division. September 17, 2009. *883 Edward L. Foote, James Franklin Herbison, Peggy M. Balesteri, R. Mark McCareins, Raymond C. Perkins, Winston & Strawn LLP, Timothy M. Schaum, Daspin & Aument LLP, Chicago, IL, Lara Marie Levitan, Abbott Laboratories, Abbott Park, IL, for Plaintiffs. David T. Pritikin, Hugh Allen Abrams, Marc Andrew Cavan, Russell E. Cass, William Hans Baumgartner, Jr., Sidley Austin LLP, Chicago, IL, Thomas S. Borecki, Baxter Healthcare Corporation, Deerfield, IL, for Defendant. *884 MEMORANDUM OPINION AND ORDER RONALD A. GUZMAN, District Judge. Abbott Laboratories and Central Glass Company Ltd. (collectively hereinafter "Abbott") have sued Baxter Healthcare Corp. ("Baxter") for alleged infringement of U.S. Patent No. 6,677,492 ("the '492 Patent"). In turn, Baxter has moved for summary judgment on non-infringement. For the following reasons, the Court grants Baxter's motion. Facts This action stems from an Abbreviated New Drug Application ("ANDA") filed by Baxter in 2000 that sought approval to sell the drug sevoflurane in aluminum containers lined with an epoxyphenolic layer. Sevoflurane is a general anesthetic that is administered to patients by inhalation. For many years, Abbott enjoyed a considerable sevoflurane market share. However, after its initial presentation in the market, Abbott discovered that pure sevoflurane has the potential to degrade in the presence of Lewis acids. Among the byproducts of this degradation reaction is hydrofluoric acid—a solution that is extremely hazardous to the human body. After researching possible solutions to this problem, Abbott discovered that the reaction could be prevented by coating the interior of its glass sevoflurane container with a Lewis acid inhibitor such as water. Abbott applied for a patent for this method and ultimately obtained one on January 13, 2004 in the form of the '492 Patent entitled "Fluoroether Compositions and Methods for Inhibiting Their Degradation in the Presence of a Lewis Acid." (App. Def.'s Mot. Summ. J., Ex. D, '492 Patent at A293.) Claim 1 of the '492 Patent reads: A method for storing a quantity of sevoflurane, the method comprising the steps of: providing a container defining an interior space, said container having an interior wall adjacent said interior space[] defined by said container; providing a quantity of sevoflurane; coating said interior wall of said container with a Lewis acid inhibitor, placing said quantity of sevoflurane in said interior space defined by said container. (Id. at A304 (emphasis added).) Discussion "An infringement analysis involves two steps. First, the court determines the scope and meaning of the patent claims asserted, and then the properly construed claims are compared to the allegedly infringing device." Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir. 1998) (citations omitted). Therefore, the Court must first construe Claim 1 of the '492 Patent at issue, the independent claim upon which each of the remaining '492 Patent claims depends. (See App. Def.'s Mot. Summ. J., Ex. D, '492 Patent at A304.) The parties disagree about the proper construction of the Claim 1 limitation, "coating said interior wall of said container with a Lewis acid inhibitor." (See Pls.' Resp. Def.'s Mot. Summ. J. 9; Reply Mem. Supp. Def.'s Mot. Summ. J. 5-7.) Specifically, the parties are at odds over the correct interpretation of one term: the verb "coating." (See Pls.' Resp. Def.'s Mot. Summ. J. 9; Def.'s Reply Mem. Supp. Mot. Summ. J. 5-7.) Claim construction is a question of law to be decided by a judge. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 391, 116 S.Ct. 1384, 134 L.Ed.2d *885 577 (1996). When interpreting a patent claim term, "[courts] indulge a heavy presumption that a claim term carries its ordinary and customary meaning." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (quotation omitted). However, courts must look to the specification, as "[t]he patentee may have acted as his own lexicographer and imbued the claim terms with a particular meaning or 'disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction.'" E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed.Cir.2003) (quoting Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204 (Fed.Cir.2002)). "[I]n determining whether a statement by a patentee was intended to be lexicographic, it is important to determine whether the statement was designed to define the claim term or to describe a preferred embodiment." Id. Thus, when construing the term "coating," the Court must first establish the ordinary and customary meaning of the term and then determine whether Abbott attempted to define "coating" in the specification, or if it simply intended to bring forth a preferred embodiment. When construing a claim, "dictionary definitions may establish a claim term's ordinary meaning." CCS Fitness, 288 F.3d at 1366. Merriam-Webster's Dictionary defines the verb "coat" as meaning "to cover or spread with a finishing, protecting, or enclosing layer." Merriam-Webster's Collegiate Dictionary 235 (11th ed. 2004). Baxter provides no evidence of an ordinary and customary meaning contrary to the dictionary definition, whereas Abbott contends that the Court should construe "coating" to mean "covering the surface of the object." (Pl.'s Resp. Def.'s Mot. Summ. J. 12.) The Court construes the term "coating" according to its ordinary and customary meaning: "covering or spreading with a finishing, protecting, or enclosing layer." Baxter objects to such a construction and argues that a reading of the '492 Patent's specification requires the Court to construe "coating" to mean "rinsing or washing." (Def.'s Reply Mem. Supp. Mot. Summ. J. 5.) Baxter points to the '492 Patent's "Detailed Description of the Invention," which states, "a container, such as a glass bottle, is first washed or rinsed with the Lewis acid inhibitor and then filled with the fluoroether compound," and "small quantities of the composition containing appropriate amounts of the Lewis acid inhibitor can be used to wash or rinse containers to neutralize any Lewis acids that might be present in the container." (App. Def.'s Mot. Summ. J., Ex. D, '492 Patent, col. 5, lines 34-37, col. 5, line 66-col. 6, line 2; see Def.'s Reply Mem. Supp. Mot. Summ. J. 5.) However, to overcome the presumption that the ordinary meaning of "coating" applies, the '492 Patent's specification must establish that the patentee sought to define "coating" as "washing or rinsing" explicitly and did not merely set out to define a preferred embodiment. See E-Pass, 343 F.3d at 1369. A reading of the specification establishes clearly that the patentee did not intend to act as its own lexicographer by using the "washing or rinsing" language. First, in the sentence directly preceding the first instance of such language in the "Detailed Description," the patentee specifically states that "[t]he composition of the present invention can be prepared in several ways," implying that "washing or rinsing" is only one of several possible embodiments of the patented method. (App. Def.'s Mot. Summ. J., Ex. D, '492 Patent, col. 5, lines 34-35.) Second, three paragraphs later in the "Detailed Description," the patentee teaches that "small quantities of the composition ... can be used to wash *886 or rinse containers...." (Id. at col. 5, line 66-col. 6, line 1) (emphasis added). Given this language, the Court finds that the patentee did not give a lexicographic effect to the "washing and rinsing" language but, rather, sought to describe several preferred embodiments of the patented method. Baxter contends that this plain-meaning interpretation would render the '492 Patent invalid for failing to comply with the written description requirement of 35 U.S.C. § 112, paragraph 1, which states: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same. 35 U.S.C. § 112, ¶ 1 (2009). Baxter merely argues that because nothing in the original 1997 parent application or the issued '492 Patent indicates that the inventors had possession of any kind of solid, non-soluble Lewis acid inhibitor, a plain-meaning construction of Claim 1 would render the '492 Patent invalid for failure to satisfy the written description requirement. (Def's Reply Mem. Supp. Mot. Summ. J. 13.) The Court disagrees. It is undisputed that the patentee intended a lexicographic effect when it stated in the '492 Patent's specification, "[a]s used herein, `Lewis acid inhibitor' refers to any compound that interacts with the empty orbital of a Lewis acid thereby blocking the potential reaction sites of the acid." (Id. at col. 4, lines 51-54) Therefore, the Court construes Claim 1's "coating said interior wall of said container with a Lewis acid inhibitor" limitation to mean "to cover or spread the interior of the container with a finishing, protecting, or enclosing layer composed of any compound that interacts with the empty orbital of a Lewis acid." Accordingly, a plain-meaning construction of coating does not necessarily require Claim 1 to encompass solid Lewis acid inhibitors. Rather, Claim 1's breadth, after this Court's construction, encompasses those Lewis acid inhibitors that interact with the empty electron orbital of a Lewis acid, regardless of the inhibitor's state of matter. Because Baxter has failed to establish by clear and convincing evidence that the '492 Patent does not satisfy the written description of section 112, the Court rejects Baxter's arguments that the '492 Patent is invalid. Next, the Court must compare the allegedly infringing container in Baxter's ANDA to Claim 1 of the '492 Patent as construed above to determine whether summary judgment on the issue of noninfringement is warranted. See Cybor Corp., 138 F.3d at 1454; Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1467 (Fed.Cir.1990) (stating that the presumption of validity of issued patents pursuant to 35 U.S.C. § 282 stands unless the movant presents clear and convincing evidence to the contrary). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[A] 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 record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party carries this burden, "[Rule 56] requires the nonmoving party to go beyond the pleadings *887 and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (quotations omitted). The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Baxter has moved for summary judgment on the issue of noninfringement under both literal infringement and doctrine of equivalents theories. (See Def.'s Reply Mem. Supp. Mot. Summ. J. 9-10.) Unlike claim construction, "[a] determination of non-infringement, either literal or under the doctrine of equivalents, is a question of fact." Miken Composites, L.L.C. v. Wilson Sporting Goods Co., 515 F.3d 1331, 1336 (Fed.Cir.2008). "Those determinations are questions of fact, and on summary judgment, the issue is whether there is no genuine issue of material fact regarding infringement." In re Gabapentin Patent Litig., 503 F.3d 1254, 1259 (Fed.Cir.2007). "Literal infringement requires that each and every claim limitation be present in the accused product." Abraxis Bioscience, Inc. v. Mayne Pharma (USA) Inc., 467 F.3d 1370, 1378 (Fed.Cir.2006). For the following reasons, having compared Baxter's allegedly infringing method of coating its container to that claimed in the '492 Patent, the Court finds that no genuine issue of material fact exists regarding literal infringement. Baxter's aluminum container contains an internal epoxyphenolic liner. (See Pls.' LR 56.1(b)(3)(A) Stmt. ¶ 17.) As established in previous litigation between the parties, this internal liner is "dispensed through a spray nozzle" depositing the "internal lacquer on the base and the side walls of the open [container]." (Def.'s Resp. Pl.'s Mot. Summ. J., Ex. G, Chupak Dep., SA46, lines 5-14.) The entire cylindrical container is covered with the lacquer, as "the guns spray the bottoms and the side walls." (Id. at SA51.) After the liquid liner is applied in this fashion, the liner is "cured in a curing oven," transforming the applied lacquer into a permanent solid form. (Id. at SA50.) Therefore, because it constitutes an application of a solid liner that encloses the inside of Baxter's aluminum container, there exists no genuine issue of material fact concerning whether Baxter's method covers or spreads the interior of Baxter's container with a finishing, protecting, or enclosing layer as construed in Claim 1 of the '492 Patent. However, to prevail in the present action, Abbott must also establish that Baxter's epoxyphenolic liner is a Lewis acid inhibitor, i.e., a compound that interacts with the empty orbital of a Lewis acid via covalent bonding or complexing, wherein electrons are shared between atoms or molecules to render the resulting bonded molecule inert and unavailable for subsequent Lewis acid interaction. See In re Gabapentin, 503 F.3d at 1262. Claim 1 of the '492 Patent mandates that the coating step of an infringing method must apply a Lewis acid inhibitor, i.e., any compound that interacts with the empty electron orbital of a Lewis acid. (See App. Def.'s Mot. Summ. J., Ex. D, '492 Patent at A293.) Abbott argues that the deposition of Dr. Ralph A. Lessor from a 2001 action between the parties raises a genuine issue of material fact as to whether the epoxyphenolic liner acts as a Lewis acid inhibitor. (Pls.' Resp. Def.'s Mot. Summ. J. 3). In the deposition, Lessor stated that, because the molecular structure of the epoxyphenolic *888 liner utilized in Baxter's container contains a phenol group, the liner has the ability to complex with a Lewis acid. (See Pls.' Resp. Def.'s Mot. Summ. J., Ex. I, Lessor Dep. at SA 67:9-16.) However, after establishing the theoretical possibility that such complexing could occur, Lessor also downplayed the likelihood of such phenol/Lewis acid interaction in Baxter's container: Q: Is it your understanding that phenols have the ability to complex with a Lewis acid? [Lessor.] They do have that ability. Q. Is there any reason why the epoxyphenolic resin of the Baxter aluminum container cannot complex with a Lewis acid? [Lessor.] Well, it's not soluble in the sevoflurane. (Id. at SA67:14-21). Further, Lessor's testimony fails to state that any testing was conducted to reinforce the soundness of his theory that Baxter's liner could complex with Lewis acids. Therefore, Lessor's assertion that Baxter's liner could act as a Lewis acid inhibitor is based solely on scientific theory. Similarly, Abbott points to the 2001 trial testimony of Dr. Charles Rogers, Abbott's polymer science expert, in an attempt to establish a genuine issue of material fact concerning the Lewis acid-inhibiting nature of Baxter's liner. (See Pls.' Resp. Def.'s Mot. Summ. J. 4.) Rogers testified that, because the liner contained hydroxy groups and it was, in his opinion, well-established that hydroxy groups have the ability to complex with Lewis acids, the purported fact that the epoxyphenolic liner would act as a Lewis acid inhibitor should be given more weight than mere scientific theory typically affords. (See App. Def.'s Mot. Summ. J., Ex. A, Am. Bench Op. at A34.) However, Rogers, like Lessor, failed to offer any empirical data from testing to establish the validity of this theory. (See id.) "[I]n determining whether a claim in a patent has been infringed, the scientific theories utilized must establish the presence of the limitations recited in the claim." Zenith Labs., Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418, 1423 (Fed.Cir.1994). For example, in the infringement action In re Gabapentin, the plaintiff, Warner Lambert, had discovered that under certain conditions the active ingredient in one if its drugs tended to form a lactum, which rendered the drug unstable. 503 F.3d at 1257. In an effort to cure this deficiency, Warner Lambert developed and patented a method of ensuring that the drug remained stable. Id. Claim 7 of the In re Gabapentin patent-at-issue included a limitation that the active ingredient in the drug contain "less than 20 ppm of an anion of a mineral acid." Id. at 1258 (emphasis in original). Therefore, in order to prove infringement, Warner Lambert was required to show that the samples of the allegedly infringing drug contained less than 20 parts per million of an anion of a mineral acid. See id. at 1262. Warner Lambert offered results from pH tests conducted on the samples, which established that the samples could contain between 7 and 17 parts per million anions. Id. at 1261. Because "pH testing can indicate whether a sample contains less than 20 ppm of acidic chloride by measuring the pH, or acidity, of the solution and comparing it against a sample with a known amount of acid," the In re Gabapentin court held that Warner Lambert had raised a genuine issue of material fact for trial, and denied the defendant's summary judgment motion on the issue of noninfringement. Id. at 1262. However, unlike Warner Lambert, by failing to offer any test results that establish whether Baxter's epoxyphenolic liner *889 acts as a Lewis acid inhibitor, Abbott has not raised a genuine issue of material fact for trial on the issue of literal infringement. Buttressing this determination is Rogers' testimony from the 2001 action, wherein he stated that he tried three times to back his opinion with test data, but two of the tests were inconclusive and the third was stopped prematurely at the request of Abbott's attorneys. (See App. Def.'s Mot. Summ. J., Ex. A, Am. Bench Op. at A34-A35.) Additionally, no evidence on the present record indicates that Abbott has conducted any further tests to date. Clearly, this is insufficient to create a triable issue. Therefore, Abbott has failed to present evidence to establish that Baxter's liner is in fact a Lewis acid inhibitor as defined by the '492 Patent's specification. Consequently, by failing to present any test results to legitimatize its experts' scientific theories, Abbott has not raised a genuine issue of material fact for trial regarding the Lewis acid inhibitor claim limitation, or literal infringement of the '492 Patent. The infringement inquiry, however, does not stop at literal infringement, because "[t]he scope of a patent is not limited to its literal terms but instead embraces all equivalents to the claims described." Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 732, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002). The doctrine of equivalents holds that: `[T]he substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.' Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 35, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) (quoting Union Paper-Bag Mach. Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935 (1878)). Baxter argues, however, that Abbott is barred from relying on a doctrine of equivalents theory because prosecution history estoppel applies. The doctrine of prosecution history estoppel holds that when a "patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, he may not argue that the surrendered territory comprised unforeseen subject matter that should be deemed equivalent to the literal claims of the issued patent." Festo, 535 U.S. at 733-34, 122 S.Ct. 1831. "Prosecution history estoppel... is a question of law." Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1251 (Fed.Cir.2000). The Court finds that prosecution history estoppel does not bar Abbott from asserting that Baxter's epoxyphenolic liner is an equivalent to the Lewis acid inhibitor limitation of Claim 1. Originally, the claims of patent application 10/190,271 (which eventually issued as the '492 Patent) were drawn to, for example, "[a]n anesthetic composition comprising a fluoroether compound having an alpha fluoroether moiety..." and "[a] method of stabilizing a fluoroether compound having an alpha fluoroether moiety ...." (See App. Def.'s Mot. Summ. J., Ex. E, '492 Patent File Wrapper at A337, A358.) The examiner rejected all of the original claims for indefiniteness, finding that the terms "alpha fluoroether moiety" and "fluoroether compound" did not "particularly point[] out and distinctly claim[] the subject matter which the applicant regards as his invention" as required by 35 U.S.C. § 112. (Id. at A351.) Further, the examiner rejected all of the original claims due to obvious-type double patenting. (Id. at A352.) Abbott then canceled all of the original application's claims *890 and replaced them with the claims that eventually issued in the '492 Patent, which are drawn to completely different subject matter, namely, "[a] method of storing a quantity of sevoflurane." (Id. at A358.) Because the '492 Patent's amended claims are drawn to completely different subject matter than the claims as originally filed, the Court finds that the amendment was not a "narrowing amendment," and that prosecution history estoppel does not apply to the "coating" step at issue. See Festo, 535 U.S. at 737, 122 S.Ct. 1831 ("Though prosecution history estoppel can bar a patentee from challenging a wide range of alleged equivalents made or distributed by competitors, its reach requires an examination of the subject matter surrendered by the narrowing amendment."). Comparing the relative scopes of the "anesthetic composition" claims of the original application to the "method of storing a quantity of sevoflurane" claims of the '492 Patent would be an impossible inquiry, akin to comparing apples and oranges. Therefore, although Abbott did indeed amend its application, Abbott did not surrender patent coverage drawn to equivalents of "coating said interior wall of said container with a Lewis acid inhibitor." Because prosecution history does not apply, the Court must conduct a doctrine of equivalents inquiry to determine if there exists a genuine issue of material fact as to whether Baxter's container with the epoxyphenolic liner "[(1)] do[es] the same work [(2)] in substantially the same way, and [(3)] accomplishes] substantially the same result" as the method claimed in the '492 Patent. See Warner-Jenkinson, 520 U.S. at 35, 117 S.Ct. 1040. As discussed above, no genuine issue of material fact exists as to whether Baxter's container accomplishes substantially the same result as the '492 Patent, i.e., prevents sevoflurane degradation by coating the container with a compound that interacts with the empty electron orbital of a Lewis acid. Thus, the Court's inquiry will focus on whether Baxter's container does substantially the same work in substantially the same way as claimed in the '492 Patent. See id. Again, because Abbott has not brought forth evidence that the epoxyphenolic liner chemically reacts in any way with available Lewis acids, no genuine issue of material fact exists concerning whether Baxter's container does substantially the same work in substantially the same way as claimed in the '492 Patent. Although Abbott contends that the testimony and depositions of Lessor and Rogers raise a genuine issue of material fact as to this issue, as the Court has explained above, this argument falls short due to the lack of test data on record. (See Pls.' Resp. Def.'s Mot. Summ. J. 3-4.) Though the Baxter liner does in fact inhibit Lewis acid degradation, it does so by forming a physical barrier between the aluminum surface and the sevoflurane, not by interacting chemically with the empty electron orbital of present Lewis acids as claimed in the '492 Patent. (See App. Def.'s Mot. Summ. J., Ex. A, Am. Bench Op. at A37.) Therefore, by simply serving as a buffer layer for mechanical separation, Baxter's liner does not do the same work in substantially the same way as claimed in the '492 Patent. Abbott, by relying simply on untested scientific theory, has done no more than establish a metaphysical doubt as to the simple mechanical blocking function of Baxter's liner. Therefore, there exists no genuine issue of material fact for trial concerning infringement by the doctrine of equivalents. Conclusion The Court grants defendants' motion for summary judgment [doc. no. 52]. This *891 case is hereby terminated and all other motions are stricken as moot. SO ORDERED.

559 F.2d 1220 Lucasv.Matthews No. 76-2039 United States Court of Appeals, Sixth Circuit 7/19/77 S.D.Ohio AFFIRMED

881 N.E.2d 97 (2008) AGT, Inc. v. City of Lafayette No. 79A04-0606-CV-322. In the Court of Appeals of Indiana. February 12, 2008. NAJAM, J. Unpublished memorandum decision. Affirmed. MATHIAS, J. Concurs. BRADFORD, J. Concurs.

232 S.C. 215 (1957) 101 S.E.2d 283 K.C. NASH, Plaintiff-Appellant-Respondent, v. Etson GARDNER and Hattie Gardner, Defendants-Appellants-Respondents. 17372 Supreme Court of South Carolina. December 30, 1957. *216 Messrs. McEachin, Townsend & Zeigler, of Florence, for Appellant-Respondent. Messrs. Tison & Tison, of Hartsville, for Respondents-Appellants. *217 Messrs. McEachin, Townsend & Zeigler, of Florence, for Plaintiff-Respondent. McEachin, Townsend & Zeigler, of Florence, for Plaintiff-Appellant, in Reply. Messrs. Tison & Tison, of Hartsville, for Respondents-Appellants, in Reply. December 30, 1957. STUKES, Chief Justice. This action is between owners of adjoining lands in Darlington County, much of which is in Lynches River swamp. Their respective titles are derived from a common source, *218 W.H. Gardner, who in the year 1890 obtained deed from Segars for 163 acres, more or less, described by corners and boundaries, but no distances; and deed from his father in 1900 for 360 acres, more or less, on the east side of Lynches River, described by bounds and with reference to a plat which is lost. The complaint alleged the ownership by plaintiff of an undivided 35/36 interest, and the defendant Hattie Gardner 1/36 interest, in the home place, pasture and swamp of W.H. Gardner, deceased, containing approximately 700 acres; and the possession by the defendant Etson Gardner of the adjoining tract which was described as in the Segars deed of 1890, ante. It was further alleged that Etson wrongfully claimed portions of plaintiff's land, trespassed upon it, prevented survey of the boundary, thereby creating cloud upon plaintiff's title for which he has no remedy at law; damages were alleged and demanded for the trespasses, injunction prayed and that the court order a survey of the boundary. The answer contained a description of the boundaries of the Segars tract as claimed by the defendant Etson Gardner and alleged that they were shown to plaintiff before his purchase and he acquiesced and agreed thereto. Trespasses by plaintiff on Etson's land were alleged, damages demanded, and that the boundary line be established as claimed. There were other defensive allegations, with which the appeals to this court are not concerned. Likewise, the court dismissed the cross-demands of the parties for damages, from which neither has appealed. Under Circuit Court Rule 36 and with the consent of the parties, the court appointed T.E. Wilson, C.E., to make survey and plat of the property. Mr. Wilson's plat dated March 7, 1956, was returned. It shows total acreage of 971.2, including two parcels separately surveyed and represented upon the plat, 128 acres (marsh land) and 69 acres (upland), which are on the boundaries of the respective tracts of the parties and are in dispute. Mr. Wilson was assisted *219 in the survey by his son who is also a surveyor; both of them testified. There was a consent order of reference to the master to take the testimony, which was reported to the court on May 12, 1956. Arguments were heard on July 17, 1956. Before decision and on October 3, 1956, counsel for the defendants moved for an order allowing the defendant Etson Gardner to interpose the defense of res judicata and also for an order to reopen the case for the purpose of taking additional testimony. Argument was heard on the motions on October 13, 1956. On January 11, 1957, counsel for the defendants by letter to the court submitted affidavits for consideration in the motion to reopen. It was agreed by counsel that the court should order the sale in partition of the land owned by plaintiff and defendant Hattie Gardner because a partition suit between these parties was pending, which appears to be the action in which decision on appeal is reported as Nash v. Gardner, 226 S.C. 165, 84 S.E. (2d) 375. By decree dated May 1, 1957, the court denied the defendants' motion to reopen and amend and found in plaintiff's favor as to one of the disputed tracts of land and in the defendant Etson Gardner's favor as to the other. Plaintiff and defendants appealed. Upon consideration of the evidence we are of opinion that the judgment of the trial court is in accord with the preponderance of it. The opinion of the surveyors, in which that of one of them was weakened on cross examination, was not followed by the court with respect to the 128-acre disputed tract; but there a main corner in controversy was shown to plaintiff by Etson before plaintiff's purchase of the land, in connection with his prior purchase of timber, and he assented to it. Richardson v. Register, 227 S.C. 81, 87 S.E. (2d) 40, and cases there cited. There was considerable other evidence tending to establish this corner (S on the plat) as it was found by the court. On the other hand, in the disposition of the disputed 69 acres the view of the surveyors prevailed over the testimony of Etson and his lay witnesses. *220 The weight of the evidence (particularly the surveyors' testimony and the description in the Segars deed of 1890) concerning the location of it is clearer than that relating to the other disputed tract. We think that, under the evidence, the court correctly disposed of both of them, and the decree thereabout will be affirmed. There may be appropriately repeated the comment in the opinion on appeal in prior litigation between the parties, Gardner v. Nash, 225 S.C. 303, 82 S.E. (2d) 123, that the trial judge lives in Darlington County and knows the parties and probably at least the most of the witnesses, which enabled him to better evaluate the testimony. Nevertheless, the case has been difficult to decide — made so by the meagre information concerning the boundaries of the lands, both of record and on the ground. The old marks and monuments of some of the corners of the lines have been obliterated and lost. This may be explained by the ravages of time during the long period when both tracts were owned by W.H. Gardner, and it was then of no importance to preserve evidence of the dividing lines; nor was it of importance after his death in 1926 until about 1942, when his children kept the lands together for the benefit of their mother for her lifetime. Each claimant has been found to own far more acreage than his muniments of title call for, which is doubtless due to the fact that until comparatively recently swamp lands were generally considered to be of insufficient value to warrant the expense of surveying and marking, let alone of re-surveying and renewing and replacing line marks and monuments, all of which is within common knowledge. Another probable cause of the apparent neglect of W.H. Gardner in this particular is that he was illiterate. He executed his will by mark instead of signature; it appears in the opinion in Nash v. Gardner, supra, 226 S.C. 165, 84 S.E. (2d) 375. And the testimony of his sons in this case indicates that they are of little education. We have considered the appeals as in equity. The case was so treated by counsel in the court below and was so *221 tried and decided by the court. Undoubtedly, equitable issues arose upon the pleadings and there was no effort by the parties to separate for trial any legal issues. Little v. Little, 215 S.C. 52, 53 S.E. (2d) 884; Austin-Griffith, Inc., v. Goldberg, 224 S.C. 372, 79 S.E. (2d) 447, 42 A.L.R. (2d) 1123. This accords with plaintiff's contention on appeal; and affirmance of the factual findings of the trial court renders academic the position of defendants which is stated in one of their briefs on appeal, as follows: "The case being at law, and a jury trial having been waived, findings of fact by the circuit judge are conclusive." The proposed defense of res judicata was properly rejected. It had reference to the case of Etson Gardner v. Nash, whose roles are reversed here, appeal in which is reported in 225 S.C. 303, 82 S.E. (2d) 123, supra. It was a successful action to set aside a judicial sale of the land of Etson Gardner in which Nash, the present plaintiff, was found guilty of fraud and of having chilled the bidding. It need only be noted that it was a different cause of action from this and no issue relating to the boundaries of the land was, or could have been, involved in it. Johnston-Crews Co. v. Folk, 118 S.C. 470, 111 S.E. 15; Lyerly v. Yeadon, 199 S.C. 363, 19 S.E. (2d) 648; 30 Am. Jur. 914 et seq., Sec. 172. Likewise there was no reversible error in the refusal to reopen the trial to admit the additional evidence which was proffered by the defendant Etson Gardner. It was cumulative, as found by the trial court. Moreover, the affidavit of the single proposed witness was not offered at the time of the motion, but long after. Callison v. Charleston & W.C. Ry. Co., 106 S.C. 123, 90 S.E. 260. Certainly, no abuse of discretion has been made to appear. There remains for decision only plaintiff's appeal from the apportionment between the parties of the costs of the action. It was adjudged that they should be taxed 34/36 against plaintiff, 1/36 against Etson Gardner and 1/36 against Hattie Gardner. No reason was assigned *222 by the court for the apportionment and plaintiff excepts, contending by his exception 17 that half of the costs should be borne by Etson, 35/36 (sic) by plaintiff and 1/36 by Hattie. (His complaint is plain enough, but his fractions are bad.) Defendants argue in support of the unusual taxation the respective values of the 128-acre and the 69-acre tracts; but there is in the record no evidence of the comparative values. The 128-acre tract appears on the plat to be all wooded and is designated "marsh land", while the 69 acres appear to be about half cultivated land and presumably of greater value per acre than marsh land. The allowance of costs in equity cases is within the power of the court. Sec. 10-1601, Code of 1952, and cases cited in the footnotes. But it is to be exercised with discretion and must be based upon reason. Cauthen v. Cauthen, 81 S.C. 313, 62 S.E. 319; Ex parte Miller, 192 S.C. 164, 5 S.E. (2d) 865. The record here indicates no sound reason for the action of the trial court but, on the contrary, that it was arbitrary. Equalization of the burden of costs appears from all that is before us to be more equitable. Resort may be properly had to the maxim, equality is equity. Accordingly, error is apparent on the record and the taxation will be modified and the costs, including the costs and disbursements on appeal (there is no prevailing party), will be taxed one-half against Etson Gardner, and one-half against plaintiff and Hattie Gardner together in the proportion between them of their cotenancy, which is plaintiff 35/36 and Hattie 1/36; but the costs of the sale for partition between plaintiff and Hattie shall be paid from the proceeds of the sale. The judgment is modified with respect to the taxation of the costs; in all other respects it is affirmed. Modified and remanded. TAYLOR, OXNER, LEGGE and MOSS, JJ., concur.

Order issued August 14, 2014 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-00615-CV ——————————— BRENT DIRDEN, CHRISTOPHER ST. MARY, DONNA T. MOORE, DAVID B. MOORE, PROVIDENT FUNDING ASSOCIATES, LP D/B/A PROVIDENT HOME LOANS, Appellants V. BRENHAM READY MIX, INC., Appellee On Appeal from the 155th District Court Waller County, Texas Trial Court Cause No. 09-12-20105 MEMORANDUM ORDER Appellants Brent Dirden and Christopher St. Mary have filed a motion to dismiss the appeal. No opinion has issued, and no party has filed a response to the motion. See TEX. R. APP. P. 10.1(b), 10.3, 42.1(c).  Accordingly, we grant the motion and dismiss the appeals of Brent Dirden and Christopher St. Mary. See TEX. R. APP. P. 42.1(a)(1). The appeals of Donna T. Moore, David B. Moore, and Provident Funding Associates, LP d/b/a Provident Home Loans remain pending. PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Keyes. 2 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-30672 Conference Calendar JOSEPH HERCULE, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CV-285 -------------------- December 12, 2002 Before JOLLY, JONES, and WIENER, Circuit Judges. PER CURIAM:* Joseph Hercule, federal prisoner # 44389-004, appeals from the denial of his 28 U.S.C. § 2241 petition wherein he sought to vacate his conviction. Hercule was sentenced to a total of 168 months’ imprisonment following his conviction for various offenses, including car-jacking, in violation of 18 U.S.C. § 2119. Hercule argues that the district court erred in determining that his Jones v. United States, 526 U.S. 227 (1999) claim did * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 02-30672 -2- not meet the criteria for bringing a claim pursuant to the “savings clause” of 28 U.S.C. § 2255. “[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which established that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Hercule argues that his claim falls under the “savings clause” because his indictment failed to charge all of the elements of an offense under 18 U.S.C. § 2119. Hercule, however, cannot satisfy either prong of the Reyes-Requena analysis. He cannot satisfy the first prong of the Reyes-Requena analysis because he cannot show that he has been convicted of a non- existent offense. See id. Moreover, he cannot satisfy the second prong of the Reyes-Requena analysis because his Jones claim was not foreclosed at the time he filed first 28 U.S.C. § 2255 motion. Accordingly, Hercule has not shown that the district court erred in dismissing his petition. AFFIRMED. 

USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1294 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORIZONS HOTEL CORPORATION D/B/A CARIB INN OF SAN JUAN, Respondent. ____________________ No. 94-1303 HORIZONS HOTEL CORPORATION D/B/A CARIB INN OF SAN JUAN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ____________________ ON APPLICATION FOR ENFORCEMENT AND PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD ____________________ Before Torruella, Chief Judge, ___________ Campbell, Senior Circuit Judge, ____________________ and Boyle,* Senior District Judge. _____________________ _____________________ ____________________ * Of the District of Rhode Island, sitting by designation. Luis F. Padilla for Horizons Hotel Corporation. _______________ David Habenstreit, Attorney, National Labor Relations Board, _________________ with whom Frederick L. Feinstein, General Counsel, Linda Sher, _______________________ __________ Acting Associate General Counsel, Aileen A. Armstrong, Deputy ____________________ Associate General Counsel, and Linda Dreeben, Supervisory _______________ Attorney, were on brief for National Labor Relations Board. ____________________ March 3, 1995 ____________________ -2- BOYLE, Senior District Judge. This case presents BOYLE, Senior District Judge _______________________ issues concerning a final order of the National Labor Relations Board (the Board) which concluded that Horizons Hotel Corporation d/b/a Carib Inn of San Juan (Horizons) engaged in unfair labor practices in violation of 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act), 29 U.S.C. 158(a)(1), (3), (5). The claims of unfair labor practices arose in part from the conduct of a bankruptcy trustee who was in possession of the hotel at the time Horizons purchased it. The Board petitions us under 10(e) of the Act, 29 U.S.C. 160(e), to enforce its order, which adopted with modification the opinion and recommended order of the administrative law judge (ALJ). 312 N.L.R.B. No. 200 (Nov. 22, 1993). Horizons petitions us under 10(f) of the Act, 29 U.S.C. 160(f), to review and vacate the Board's order, asserting the following: the Board lacked jurisdiction to act in this case; the conclusions of the ALJ and the Board are contrary to law; and the factual determinations of the ALJ, adopted by the Board, are not supported by substantial evidence. We conclude that the Board's order adopting the ALJ's opinion and proposed order is without error and is to be enforced as it stands. See 29 U.S.C. 160(e), (f). ___ I. STANDARD OF REVIEW I. STANDARD OF REVIEW The appropriate standard of review is provided in 10(e) of the Act, 29 U.S.C. 160(e): "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be -3- conclusive." Thus, a finding of the Board that the Act has been violated is upheld "as long as the finding is supported by substantial evidence . . . even if we would have reached a different conclusion." 3-E Co., Inc. v. NLRB, 26 F.3d 1, 3 (1st _____________ ____ Cir. 1994)(citing 29 U.S.C. 160(e)). In reviewing a Board decision, great weight is afforded the credibility determinations of the ALJ, as he or she had the opportunity to observe the witnesses testify, see id.; Holyoke Visiting Nurses Ass'n v. ___ __ ______________________________ NLRB, 11 F.3d 302, 308 (1st Cir. 1993); therefore, credibility ____ determinations are disturbed only where it is apparent that the ALJ "overstepped the bounds of reason." 3-E Co., Inc., 26 F.3d _____________ at 3; Holyoke Visiting Nurses Ass'n, 11 F.3d at 308 (citing NLRB _____________________________ ____ v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1242 (1st Cir. _____________________________ 1982)). II. BACKGROUND II. BACKGROUND The record supports the ALJ's finding of the following facts, adopted by the Board. See 3-E Co., Inc., 26 F.3d at 2 ___ _____________ (citing Cumberland Farms, Inc. v. NLRB, 984 F.2d 556, 558 (1st ______________________ ____ Cir. 1993)). A. Hotel in Bankruptcy: November 1981 - May 14, 1986 A. Hotel in Bankruptcy: November 1981 - May 14, 1986 In 1981, the Carib Inn hotel and casino in San Juan, Puerto Rico, was owned by the Carib Inn of San Juan Corporation (Carib Inn Corporation). In November 1981, Carib Inn Corporation filed a petition for bankruptcy in the U.S. Bankruptcy Court for the District of Puerto Rico under chapter 11 of Title 11, 11 U.S.C. 1101, et seq. The chapter 11 proceeding was converted ________ -4- to a chapter 7, 11 U.S.C. 701 et seq., proceeding in November _______ 1985. On November 21, 1985, the Bankruptcy Court appointed H ctor Rodr guez-Estrada (Rodr guez) trustee under 29 U.S.C. 1104. As trustee, Rodr guez was ordered to liquidate the assets of the bankruptcy estate. At all relevant times, employees of the hotel's service and casino units1 were represented by Uni n de Trabajadores de la Industria Gastron mica de Puerto Rico, Local 610, Hotel Employees and Restaurant Employees International Union, AFL-CIO (the Union). The service- and casino-unit employees were employed under the terms of a collective bargaining agreement.2 In November or December 1985, Horizons considered the prospect of purchasing the Carib Inn. Horizons submitted a bid for the bankruptcy estate in February 1986. Prior to the bid, Horizons's president, Benito Fern ndez, spent time at the hotel, investigating its operation and its physical grounds. At some point, Fern ndez began to occupy an office at the hotel. The office was located next to that of Rodr guez. Fern ndez and Rodr guez shared a secretary. On April 3, Rodr guez met with Ileana Qui ones, general manager of Professional Employment Center (PEC), a local ____________________ 1 For a list of the employment positions within the service and casino units, see ALJ's Decision and Proposed Order, appended to In re: Horizons Hotel Corp., et al, 312 N.L.R.B. No. 200 (Nov. ___________________________________ 22, 1993). 2 On March 20, 1986, Rodr guez terminated the collective bargaining agreement pursuant to 11 U.S.C. 365. The propriety of this action is not in question. -5- employment agency. At the meeting, Rodr guez told Qui ones that PEC's services were needed because the hotel was operating under new management which sought to hire new employees. He asked her if there was a possibility that employees hired through PEC would be union workers. She responded that they would not. Rodr guez told Qui ones that he would consider retaining PEC if she could guarantee him that there would be no risk of a union at the hotel. He requested that Qui ones indicate in writing that there was no possibility of a union presence. The following day, April 4, 1986, Qui ones sent a letter to Rodr guez. The letter was addressed as follows: "Sr. H ctor M. Rodr guez-Estrada[,] Horizons Hotel" -- Qui ones was of the belief that Rodr guez was employed as a manager of Horizons. A summary of the items discussed at the previous day's meeting was included with the letter. The first item listed was as follows: "1. There is no possibility for a Union." On May 12 or 13, 1986, Frankie Rosado-Garc a (Rosado), a waiter in one of the hotel's restaurants, and a union steward, while on duty, served the Union's president, who was seated at a table. After Rosado waited on him, Rodr guez, who was present in the restaurant, approached Rosado, and said: "[A-ha] . . . you betrayed me." Rosado later went to Rodr guez' office to question him about the comment. Rodr guez asked Rosado if the Union's president had come "to stop the hotel." He then told Rosado that if the Union continued to bother him, he would fire all union employees. On another occasion in May, Rodr guez told Rosado -6- that the Union was not backing the hotel employees. He said that the Union had failed to collect from the Federal court money owed to the employees. He further stated that there was no union in Puerto Rico that would defend the employees. B. Sale of the Hotel: May 14, 1986 - May 31, 1986 B. Sale of the Hotel: May 14, 1986 - May 31, 1986 On May 14, 1986, a deed was executed whereby Horizons purchased the Carib Inn from Rodr guez. The deed provided that possession of the hotel property would be turned over to Horizons on May 31, 1986. On May 19, 1986, Rodr guez hired Juan Rafael G mez (G mez) as resident manager. That day, Rodr guez circulated a memorandum (May 19 memorandum) announcing the same. Fern ndez had signed the memorandum, expressly indicating his approval of G mez' hiring. On May 21, 1986, Rodr guez circulated a memorandum (May 21 memorandum) to all employees of the Carib Inn, notifying them that Horizons would assume control of the hotel on June 1, 1986, and that all employees would be terminated on May 31, 1986. The memorandum advised the employees that they could apply for positions with Horizons by submitting applications at a recruiting office set up by Horizons in a nearby condominium. The recruiting office would accept applications for two days only. Later that day, May 21, F lix Ram rez, the Union's general steward, and Valent n Hern ndez, the Union's secretary and treasurer, went to Rodr guez' office to discuss with him the -7- memorandum. Rodr guez threatened not to meet with them. He told them that he didn't have to talk with them because they no longer represented the hotel's employees. He stated: "[T]he Union is out," and "Horizons has nothing to do with the Union." Rodr guez finally agreed to meet with them, however, after Hern ndez threatened to report his conduct to the Secretary of Labor for the Commonwealth of Puerto Rico. During the meeting, however, Rodr guez told Ram rez and Hern ndez that they should discuss with G mez any concerns they may have concerning hotel administration. Prior to the May 21 memorandum, PEC had begun soliciting applications for positions at the hotel. Qui ones understood that PEC was to be responsible for hiring Horizons's new employees. It advertised in a local newspaper and collected applications and relevant information on potential employees. It conducted interviews and informed Rodr guez of appealing candidates. Rodr guez, however, advised Qui ones that PEC would do no independent hiring, but rather would hire only those individuals whom it was instructed to hire. Horizons's recruiting program, announced in the May 21 memorandum, was carried out. A representative of PEC was present throughout. Several days after the program, Rodr guez provided G mez a list of individuals to interview. Interviews were thereafter conducted at the hotel. A representative of PEC was present during the interviews. Not one employee of the Carib Inn was interviewed. At one point, Rodr guez told a Carib Inn -8- employee that he had been authorized to hire new employees for Horizons. C. Transfer of Control: June 1, 1986 C. Transfer of Control: June 1, 1986 On June 1, 1986, Horizons assumed possession of the hotel property. Since that date, Horizons has continued the business operations previously conducted by Rodr guez as trustee, and by the Carib Inn Corporation, using substantially the same facilities and equipment, and providing the same services, with the exception of the casino, which ceased operation on June 23, 1986. After the transfer of possession, no service-unit employees previously employed at the hotel were employed by Horizons, with the exception of several former unit employees hired in a supervisory or managerial capacity. See 312 N.L.R.B. ___ No. 200 n.2. Fourteen of Horizons's twenty-four casino unit employees, however, were previously employed at the hotel. At no time did Horizons negotiate or enter into a bargaining agreement with the Union. On June 1, 1986, Horizons hired Rodr guez as a consultant. He later became Horizons's general manager. The Bankruptcy Court confirmed the sale of the Carib Inn to Horizons by order dated June 6, 1986. D. The Present Action D. The Present Action The Union pursued claims against Horizons in August 1986. The Board issued a complaint and notice of hearing on September 30, 1987; an amended complaint and notice of hearing -9- was issued on December 21, 1987. The amended complaint includes the following allegations: that Horizons interfered with, restrained, and coerced employees in the exercise of their rights in violation of 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), by creating the impression of surveillance of employees' union activities, threatening employees with discharge because of their union activities, and attempting to denigrate the Union in the eyes of employees; that Horizons refused to hire former service unit employees in violation of 8(a)(3) of the Act, 29 U.S.C. 8(a)(3); and that Horizons refused to bargain collectively with representatives of the Union in violation of 8(a)(5) of the Act, 29 U.S.C. 158(a)(5). The amended complaint alleges that much of the improper conduct was carried out by Rodr guez, acting as an agent of Horizons. An ALJ conducted hearings on various dates from March 1989 through March 1991. The decision and proposed order issued on January 15, 1993. The ALJ concluded that Horizons violated 8(a)(1), (3), and (5) of the Act, 29 U.S.C. 158(a)(1), (3), (5). The Board, with modification, adopted the ALJ's rulings, findings, and conclusions. In re: Horizons Hotel Corp., et al, ___________________________________ 312 N.L.R.B. No. 200 (Nov. 22, 1993). It amended the ALJ's proposed remedy and order, and ordered the following: that Horizons cease and desist from engaging in unfair labor practices; that it offer positions of employment to the 65 former hotel employees who were not hired by Horizons in violation of the Act; that it bargain collectively with the -10- Union on request; that, on request, it cancel any changes in employment conditions which may have been instituted since it purchased the Carib Inn; that, in the event the casino resumes operation, it bargain with the Union concerning casino employees, and it offer positions to those identified former casino employees who were not hired; and that it preserve records and publish notice of the order. Both the Board and Horizons petition this Court to act. The Board petitions us to enter an order enforcing its order. Horizons petitions us to review and vacate the Board's opinion and order. As grounds, Horizons asserts that exclusive jurisdiction over this matter lies with the bankruptcy court, because much of the allegedly improper conduct was committed by a bankruptcy trustee. Horizons further asserts that as a matter of law it cannot be held accountable for any improper conduct of Rodr guez, the bankruptcy trustee. Finally, Horizons argues that there is insufficient evidence to support the findings that Rodr guez was an agent of Horizons, and that Horizons violated 8(a)(1), (3), and (5) of the Act, 29 U.S.C. 158(a)(1), (3), (5). We examine the issues. III. JURISDICTION III. JURISDICTION Horizons asserts that, because this action concerns conduct of a bankruptcy trustee, it is within the exclusive jurisdiction of the bankruptcy court. In so arguing, it characterizes the present action as a "suit[] against the -11- trustee." Horizons's argument is without merit. The issue was determined in In re: Carib-Inn of San Juan Corp., 905 F.2d 561 ____________________________________ (1st Cir. 1990), a related action commenced by Horizons in the bankruptcy court to enjoin the Board from pursuing the present case. In Carib-Inn, we concluded that the Board had exclusive _________ jurisdiction to determine the merits of the present case, as "[t]he [Board's] complaint . . . is directed solely at Horizons and seeks no remedy against the bankruptcy estate." Id. at 562. __ The cases cited by Horizons are inapposite. See Baron v. ___ _____ Barbour, 104 U.S. 126, 128, 131 (1881)(court of the District of _______ Columbia has no jurisdiction to entertain suit against receiver appointed by a court of the State of Virginia without leave of the appointing court); Leonard v. Vrooman, 383 F.2d 556, 560 _______ _______ (9th Cir. 1967), cert. denied, 390 U.S. 925 (1968)(bankruptcy ____________ court has no jurisdiction to enjoin state action against trustee in bankruptcy for illegally seizing and possessing plaintiff's real property); Vass v. Conron Bros. Co., 59 F.2d 969, 970 (2d ____ _________________ Cir. 1932)(bankruptcy court may enjoin action in state court against receiver in bankruptcy where not commenced with leave of the appointing court); In re: Campbell, 13 B.R. 974, 976 _________________ (D.Idaho 1981)(permission of the bankruptcy court is a prerequisite for state-court action against trustee in bankruptcy for acts done within his authority as trustee). Each concerns an action against a trustee or receiver in bankruptcy; the present case is not an action against the trustee in bankruptcy, Rodr guez, but rather against the purchaser of a bankruptcy -12- estate, Horizons. The Board acted within its jurisdiction under 10 of the Act, 29 U.S.C. 160, in pursuing the present claims, and under 10(e) and (f), 29 U.S.C. 160(e), (f), this Court has jurisdiction "of the proceeding and the question determined therein," and has the power "to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board." -13- IV. ANALYSIS IV. ANALYSIS A. Rodr guez As Agent of Horizons A. Rodr guez As Agent of Horizons ______________________________ Horizons presents two objections to the ALJ's determination, adopted by the Board, that Rodr guez, the trustee in bankruptcy, acted as agent for Horizons prior to June 1, 1986, the date on which possession of the Carib Inn was transferred to Horizons. First, Horizons argues that as a matter of law, as purchaser of a bankruptcy estate it cannot be held accountable for the conduct of the bankruptcy trustee, Rodr guez, which occurred prior to the transfer of the estate. Second, it argues that the finding that Rodr guez was acting as agent for Horizons is not supported by substantial evidence. The Act guarantees employees the right "to self- organize, to form, join, or assist labor organizations, to bargain collectively . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. 157. The Act precludes employers from conducting unfair labor practices, as that term is defined in 8 of the Act, 29 U.S.C. 158. Employers may be liable for the unfair labor practices of their agents. See ___ International Ass'n of Machinists v. NLRB, 311 U.S. 72, 80 ___________________________________ ____ (1940); 3- Co., Inc., 26 F.3d at 3-4; NLRB v. Uni n Nacional de ____________ ____ _________________ Trabajadores, 540 F.2d 1, 8-9 (1st Cir. 1976), cert. denied, 429 ____________ ____________ U.S. 1039 (1977). Agents for whose unlawful conduct employers are responsible need not be employees. See Cagle's, Inc. v. ______________ NLRB, 588 F.2d 943, 947-49 (5th Cir. 1979); Uni n Nacional, 540 ____ ______________ -14- F.2d at 8-9. An employer need not have actually authorized or subsequently ratified the conduct of its agent for it to be liable. 29 U.S.C. 152(13). Rather, an employer is liable for the unlawful conduct of its agent when, under all the circumstances, employees could reasonably believe that the agent was acting for and on behalf of management. See American Press, ___ _______________ Inc. v. NLRB, 833 F.2d 621, 625 (6th Cir. 1987)(citation ____ ____ omitted); Uni n Nacional, 540 F.2d at 8-9. ______________ Horizons contends that as a matter of law, a trustee in bankruptcy cannot be deemed an agent of the purchaser of the estate for whose unlawful conduct the purchase is liable. Horizons argues that the trustee's duties to the bankruptcy estate, and the transfer of the property "free and clear" of encumbrances, preclude the possibility. Horizons points to no authority whatever to support its contention. We find its argument unpersuasive. That Rodr guez may have been duty bound to act for the benefit of the bankruptcy estate is irrelevant and has no bearing on whether he acted on behalf of Horizons. Cf. __ Cagle's, Inc., 588 F.2d at 947 (private employer liable for the _____________ conduct of city chamber of commerce director). The fact that Horizons purchased the hotel "free and clear" of liens and encumbrances and that it did not expressly assume liability for the conduct of any prior owner of the estate is also irrelevant. See In Re: Carib Inn, 905 F.2d at 563-64. Horizons is not here ___ ________________ being held responsible simply for the conduct or liability of a -15- prior owner; it is being held responsible for its own unlawful acts, which were carried out through its agent, Rodr guez, who happened to control the property prior to the transfer of its possession to Horizons. Horizons next argues that the finding that Rodr guez acted as its agent is not supported by substantial evidence. On the record before us, we are satisfied that the ALJ's determination, adopted by the Board, that Rodr guez acted as agent for Horizons is supported by substantial evidence. Rodr guez occupied an office in the hotel next to that of Fern ndez, Horizons's president, and the two shared a secretary; Rodr guez solicited the services of PEC, an employment agency, to recruit employees for Horizons; the May 19 memorandum indicated that Rodr guez acted with the approval of Fern ndez when he hired G mez as resident manager; Rodr guez announced to union representatives that Horizons "has nothing to do with the Union"; he told an employee that he was responsible for determining whom Horizons would hire; and he provided to G mez a list of applicants to interview for positions with Horizons. On the basis of these facts, it is clear that employees of the Carib Inn could reasonably have believed that Rodr guez was acting for and on behalf of Horizons. Furthermore, Horizons never disavowed Rodr guez' conduct; On the contrary, Horizons hired Rodr guez after possession of the hotel was transferred on June 1. Substantial evidence on the record as a whole supports the ALJ's finding, adopted by the Board, that Rodr guez was -16- acting as an agent of Horizons prior to the transfer of the Carib Inn on June 1. See 3-E Co., Inc., 26 F.3d at 3. ___ _____________ B. Violations of the Act B. Violations of the Act _____________________ 1. Section 8(a)(1), 29 U.S.C. 158(a)(1) 1. Section 8(a)(1), 29 U.S.C. 158(a)(1) The Board determined that certain statements of Rodr guez, attributable to Horizons, violated 8(a)(1) of the Act, 29 U.S.C. 158(a)(1). Horizons asserts that the finding is not supported by substantial evidence. Section 8(a)(1) of the Act, 29 U.S.C. 158(a), provides that it is an unfair labor practice for an employer to "interfere with, restrain, or coerce" employees in the exercise of their rights guaranteed by the Act. "An employer violates 8(a)(1) by coercively interrogating employees about their union activities or sentiments, or about the activities or sentiments of others, and by either directly or indirectly threatening employees." 3-E Co., Inc., 26 F.3d at 3 (citing Cumberland ______________ __________ Farms, Inc., 984 F.2d at 559; NLRB v. Otis Hospital, 545 F.2d ___________ ____ _____________ 252, 256 (1st Cir. 1976)). When examining assertedly violative conduct, courts must be mindful that "[i]t is the coercive tendency of employer statements, not their actual effect, that constitutes a violation of the Act." NLRB v. Marine Optical, ____ ________________ Inc., 671 F.2d 11, 18 (1st Cir. 1982)(citations omitted). The ____ Board's inference of coercive tendency will not be disturbed if reasonable, even if susceptible of an alternative interpretation. Id. (citations omitted). __ The Board's determination that Horizons violated -17- 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), is supported by substantial evidence and stands without error. Rodr guez told a hotel employee, Rosado, that he (Rosado) had betrayed him by talking to the Union's president; he then questioned Rosado about his conversation. Thereafter, he told Rosado that all hotel employees would be fired if the Union continued to bother him. These statements are reasonably interpreted as coercive interrogation and direct threats. Considered in context, the statements could reasonably have interfered with or coerced hotel employees in the exercise of their organizational rights. See 3- ___ __ E Co., Inc., 26 F.3d at 3; Cumberland Farms, Inc., 984 F.2d at ___________ _______________________ 559. 2. Sections 8(a)(3) and (1), 29 U.S.C. 158(a)(1), 2. Sections 8(a)(3) and (1), 29 U.S.C. 158(a)(1), (3) (3) The Board, in adopting the findings of the ALJ, found that Horizons's refusal to hire all but several of the hotel's former service-unit employees violated 8(a)(3) and (1) of the Act, 29 U.S.C. 158(a)(1), (3). Horizons argues that this determination is not supported by substantial evidence, and is therefore erroneous. Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), declares that it is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization." Where an employer violates 8(a)(3) of the Act, 29 U.S.C. 8(a)(3), by discriminating in its hiring practices to -18- discourage a union presence, it necessarily violates 8(a)(1) of the Act, 29 U.S.C. 8(a)(1), which disallows employers to "interfere with, restrain, or coerce" employees in the exercise of their organizational rights. See, e.g., American Press, Inc., ___ ____ ____________________ 833 F.2d at 624; NLRB v. Horizon Air Services, Inc., 761 F.2d 22, ____ __________________________ 26-28 (1st Cir. 1985); Kallman v. NLRB, 640 F.2d 1094, 1100 (9th _______ ____ Cir. 1981). Generally, a successor employer has the right to operate its business as it wishes. See Elastic Nut Shop Div. of ___ ________________________ Harvard Ind. v. NLRB, 921 F.2d 1275, 1279 (D.C. Cir. 1990)(citing ____________ ____ NLRB v. Burns International Security Services, Inc., 406 U.S. ____ _____________________________________________ 272, 287-88 (1972)). Within this prerogative is the successor's freedom to hire its own work force: "'nothing in the federal labor laws "requires that an employer . . . who purchases the assets of a business be obligated to hire all of the employees of the predecessor . . . ."'" Id. (quoting Howard Johnson Co. v. __ ___________________ Detroit Local Executive Board, 417 U.S. 249, 261 (1974)(citation _____________________________ omitted)). The successor employer may not, however, discriminate against union employees in its hiring. See Fall River Dyeing & ___ ____________________ Finishing Corp. v. NLRB, 482 U.S. 27, 40 (1987)(citations ________________ ____ omitted). Thus, where a successor employer refuses to hire its predecessor's employees because of their union affiliation, it may violate 8(a)(3), 29 U.S.C. 158(a)(3). The test is as follows: If it is proved that the former employees' protected conduct was a substantial or motivating factor for the -19- successor's refusal to hire, the refusal to hire violates 8(a)(3), 29 U.S.C. 158(a)(3), unless the successor proves by a ______ preponderance of the evidence that it "would have taken the same action for wholly permissible reasons." NLRB v. Transportation ____ ______________ Management Corp., 462 U.S. 393, 399 (1983). See also Elastic ________________ ________ _______ Stop Nut Div. of Harvard Ind., 921 F.2d at 1280; Horizon Air _______________________________ ___________ Services, Inc., 761 F.2d at 27. "[I]f the employer [refuses to ______________ hire] an employee for having engaged in union activities and has no other basis for the discharge, or if the reasons that [it] proffers are pretextual, the employer commits an unfair labor practice." Transportation Management Corp., 462 U.S. at 398. _______________________________ In the present case, the Board determined that the General Counsel sustained its burden of proving that the hotel's former service-unit employees' union affiliation was the substantial or motivating factor in Horizons's refusal to hire them. This determination is supported by substantial evidence: Rodr guez, Horizons's agent, indicated to Qui ones that Horizons would utilize PEC's services only on the condition that there be no risk of a union at the hotel; Qui ones responded with a letter confirming that "[t]here is no possibility for a Union"; Rodr guez told a Carib Inn union employee that all union employees would be fired if the Union continued to bother him; Rodr guez told union leaders that "Horizons has nothing to do with the Union"; not one union-affiliated former employee who submitted an application with Horizons was interviewed; with the exception of several individuals who were offered supervisory or -20- managerial positions, no former service-unit employees were hired by Horizons. The Board disqualified as a pretext Horizons's proffered lawful reason for refusing to hire the former employees. This determination also is supported by substantial evidence. Horizons asserted at the administrative proceedings that the former employees were not hired because many of them were not needed, and because they were not competent employees. Fern ndez testified that the former employee's unfitness was determined after he personally observed them, and that their incompetence is evidenced by the fact that the hotel had gone into bankruptcy. The Board, adopting the ALJ's findings, discredited Fern ndez' testimony and rejected Horizons's proffered justification, noting that Horizons submitted no evidence tending to prove that Fern ndez personally observed each former employee, and that it failed to prove its contention that the service employees caused the hotel's bankruptcy. The Board concluded that Horizons's retention of PEC for recruiting services, and its solicitation of applications from former service-unit employees, was conduct intended as a smoke screen to conceal its scheme to keep the Union out of the Carib Inn. Again, this conclusion is well supported by substantial evidence. The Board, in adopting the ALJ's findings, concluded that Horizons violated 8(a)(3) and (1) of the Act, 29 U.S.C. 8(a)(1), (3). This determination is supported by substantial evidence and stands without error. -21- 3. Sections 8(a)(5) and (1), 29 U.S.C. 158(a)(1), 3. Sections 8(a)(5) and (1), 29 U.S.C. 158(a)(1), (5) (5) The Board determined, in adopting the findings of the ALJ, that Horizons violated 8(a)(5) and (1) of the Act, 29 U.S.C. 8(a)(1), (5), by refusing to bargain collectively with the Union, which represented employees of the service and casino units. Horizons asserts that this finding is in error, unsupported by substantial evidence. Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5), provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." Where an employer violates 8(a)(5) of the Act, 29 U.S.C. 8(a)(5), by refusing to bargain collectively, it necessarily violates 8(a)(1) of the Act, 29 U.S.C. 8(a)(1), which disallows employers to "interfere with, restrain, or coerce" employees in the exercise of their organizational rights. See, e.g., Fall River Dyeing & Finishing Corp., 482 U.S. at 34 & ___ ____ ___________________________________ n.2. Under 8(a)(5), 29 U.S.C. 158(a)(5), "an employer is obligated to bargain with the union representing its predecessor's employees if: (1) the new employer is a 'successor' to the old . . . and (2) a majority of the successor's employees previously were employed by the predecessor." Asseo v. Centro M dico Del Turabo, 900 F.2d 445, _____ ________________________ 450-51 (1st Cir. 1990)(citing Fall River Dying & Finishing Corp., __________________________________ 482 U.S. at 43-52). If these two criteria are satisfied, "a rebuttable presumption of majority status arises, leading to a -22- consequent duty to bargain in good faith." Id. at 451. __ Where a successor employer's unlawful hiring practices preclude the possibility of a majority status in its work force, however, the successor violates the Act by refusing to bargain collectively with the union that had represented the predecessor's employees. Elastic Stop Nut Div. of Harvard Ind., _____________________________________ 921 F.2d at 1282. Thus, with regard to the former union employees of the hotel's service unit, our affirmance of the Board's determination that Horizons violated 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), by refusing to hire them because of their union affiliation compels affirmance of the determination that Horizons violated 8(a)(5), 29 U.S.C. 158(a)(5), as a duty to bargain with the employees' union representatives arose from the violation of 8(a)(3). See Elastic Stop Nut Div. of ___ _________________________ Harvard Ind., 921 F.2d at 1282. ____________ With regard to the hotel's casino-unit employees, the Board's finding of a violation of 8(a)(5), 29 U.S.C. 158(a)(5), is supported by substantial evidence. The Board, in adopting the ALJ's findings, found that the casino continued operations after transfer of possession of the hotel to Horizons on June 1, and that Horizons operated the casino through June 23, 1986. The Board determined that, with respect to casino operations, Horizons was a successor employer. Fourteen of Horizons's twenty-four casino-unit employees were former union employees of the hotel's casino unit. The fact that greater than one-half of the employees in -23- Horizons's casino unit had been union employees of Horizons's predecessor raises a rebuttable presumption that there existed in the casino unit a "majority status." See Asseo, 900 F.2d at 450- ___ _____ 51. Horizons does not assert that it was able to overcome this presumption. Horizons therefore had a duty to bargain with representatives of the former casino-unit employees. Its failure to do so violated 8(a)(5) and (1) of the Act, 29 U.S.C. 158(a)(1), (5). C. The Board's Order C. The Board's Order _________________ Horizons argues that the portion of the Board's order requiring it to "cancel, on request by the Union, any changes in wages and benefits that [Horizons] made when it began operations" is "inappropriate." After a review of the record, we conclude that the Board's order was a reasonable remedy fashioned to address Horizons's violations of 8(a)(1), (3) and (5) of the Act, 29 U.S.C. 158(a)(1), (3), (5). See Horizon Air Services, ___ _____________________ Inc., 761 F.2d at 32-33 (citations omitted)("We respect the ____ Board's special competence and expertise in fashioning remedies. And, where the Board's design is planned out with due regard to supportable findings, sensible reasoning, and an accurate view of the governing law, there is no room for judicial intervention."). V. CONCLUSION V. CONCLUSION The ALJ's findings, adopted by the Board, are supported by substantial evidence on the record as a whole and stand without error. Horizons's request for review is denied, and the ______ Board's request for enforcement of its order is granted. _______ -24-

NUMBER 13-15-00378-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ JOSE GUADALUPE REYES, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________ On appeal from the 206th District Court of Hidalgo County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion Per Curiam Appellant, Jose Guadalupe Reyes, attempted to perfect an appeal from a conviction for indecency with a child. We dismiss the appeal for want of jurisdiction. Sentence in this matter was imposed on July 10, 2015. No motion for new trial was filed. Notice of appeal was filed on August 13, 2015. On August 14, 2015, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court’s directive. Appellant has not responded to this notice. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). The time within which to file the notice may be enlarged if, within fifteen days after the deadline for filing the notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See id. 26.3. Although the notice of appeal herein was filed within the 15-day time period for filing a motion for extension of time to file notice of appeal, no such motion for extension of time was filed. See id. This Court's appellate jurisdiction in a criminal case is invoked by a timely filed notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). “When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction.” Olivo, 918 S.W.2d at 522. Absent a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the merits of the appeal in a criminal case and can take no action other than to dismiss the appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals; however, the availability of that remedy is beyond the jurisdiction of this Court. See TEX. CODE CRIM. 2 PROC. ANN. art. 11.07, § 3(a) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999). The appeal is DISMISSED FOR WANT OF JURISDICTION. PER CURIAM Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of September, 2015. 3 

Opinion issued April 16, 2004 In The Court of Appeals For The First District of Texas NO. 01–04–00144–CV ABIODUN HENRI LAGOYE AND JOHNNY H. GEE, Appellants V. ETAN MIRWISS, Appellee On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2002-37638 MEMORANDUM OPINIONAppellants Abiodun Henri Lagoye and Johnny H. Gee have neither established indigence, nor paid all the required fees. See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent), 20.1 (listing requirements for establishing indigence); see also Tex. Gov’t Code Ann. §§ 51.207, 51.941(a), 101.041 (Vernon Supp. 2004) (listing fees in court of appeals); Fees Civ. Cases B(1), (3) (listing fees in court of appeals). After being notified that this appeal was subject to dismissal, appellants Abiodun Henri Lagoye and Johnny H. Gee did not adequately respond. See Tex. R. App. P. 5 (allowing enforcement of rule); 42.3(c) (allowing involuntary dismissal of case).           The appeal is dismissed for nonpayment of all required fees. All pending motions are denied. PER CURIAM Panel consists of Justices Taft, Higley, and Bland.

845 F.2d 1014 128 L.R.R.M. (BNA) 2567 National Labor Relations Boardv.Eatontown Senior Care Center, Inc., Health Care Housekeeping Systems NOS. 87-3568, 87-3607 United States Court of Appeals,Third Circuit. MAR 01, 1988 1 Appeal From: N.L.R.B. 2 ORDER ENFORCED.

MARY'S OPINION HEADING                                                 NO. 12-05-00206-CR   IN THE COURT OF APPEALS   TWELFTH COURT OF APPEALS DISTRICT   TYLER, TEXAS TIMOTHY WHITLOCK,      §                      APPEAL FROM THE 241ST APPELLANT   V.        §                      JUDICIAL DISTRICT COURT OF   THE STATE OF TEXAS, APPELLEE   §                      SMITH COUNTY, TEXAS                                                                                                                                                             MEMORANDUM OPINION             A jury convicted Appellant of the third degree felony of tampering with physical evidence.  Appellant pleaded true to the two enhancement allegations contained in the indictment, and the jury assessed his punishment at imprisonment for forty years.  Appellant presents two issues challenging the legal and factual sufficiency of the evidence to support his conviction.  We affirm.   Background             Arp City Marshal, Stacy Langlinais, stopped Appellant for a speeding violation.  When she questioned Appellant about his ability to pay an outstanding traffic warrant, he reached in his pocket, and something fell from his pocket that appeared to the officer to be a marijuana cigarette.  When she asked “[w]hat is that,” Appellant responded, “Oh my God,” snatched up the item from the ground, and ate it.  Appellant began to vomit, and Langlinais called EMS (Emergency Medical Services), but Appellant refused treatment.  Langlinais examined the vomit, but could not distinguish the object that Appellant had just eaten.  While being transported between the jail and court by  Smith County Transport Officer April Ishee, Appellant volunteered the following: “Man, I was drunk.  A joint fell on the ground.  I bent down, picked it up, and ate it.  I ate half a joint.”  Ishee testified that she did not ask Appellant any questions and that Appellant simply volunteered the statement.             Appellant did not testify.  At the punishment phase, the State presented evidence that Appellant had three prior felony convictions and eight prior misdemeanor convictions.   Legal and Factual Sufficiency             In his two issues, Appellant contends the evidence is legally and factually insufficient to support his conviction. Standard of Review             The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  In the relatively recent case of Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.   There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?  However, there are two ways in which the evidence may be insufficient.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Second, there may be both evidence supporting the verdict and evidence contrary to the verdict.  Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand.  This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.  Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.     Id. at 484-85. Applicable Law             Subsection 37.09(a)(1) of the Texas Penal Code provides, in part, as follows:   (a) A person commits an offense, if, knowing that an investigation or official proceeding is pending or in progress, he:   (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; . . .     Tex. Pen. Code Ann. § 37.09(a)(1) (Vernon 2003).             The statute requires that the defendant know that an investigation is “pending” or “in progress” when he or she alters, destroys, or conceals the evidence.  As used in the statute, the terms “pending” and “in progress” are not synonymous.  Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d).  “Pending” means “impending or about to take place.  Id.; see also Model Penal Code § 241.7. Discussion             It is undisputed that Appellant destroyed or concealed a marijuana cigarette by swallowing it.  The question remaining is did Appellant act knowing that an investigation was pending or in progress.  Appellant contends that at the time he ingested the marijuana, the officer’s investigation concerned only a speeding violation and an outstanding warrant for running a stop sign and that the marijuana he ate was not relevant to any investigation then pending or in progress.  We disagree.             After he was stopped for speeding and after the subsequent discovery of the outstanding traffic warrant, Appellant reached in his right front pocket.  Officer Langlinais testified that when Appellant withdrew his hand from his pocket, she noticed an object fall to the ground that she believed was a marijuana cigarette.  She told the jury that at that time the focus of her investigation shifted to Appellant’s possible possession of marijuana.  She immediately shined her flashlight on the “joint” and asked, “What was that?”  Appellant said, “Oh my God,” scooped the cigarette off the ground, and ate it.  Very shortly thereafter, Appellant began to choke and then vomited on the roadside.             Appellant maintains the facts in his case are similar to those in Pannell v. State, 7 S.W.3d 222, 223 (Tex. App.–Dallas 1999, pet. ref’d), and that the resolution of the question of his knowledge that an investigation for possession of marijuana was pending or in progress is governed by the holding in that case.  In Pannell, a police officer attempted to stop the defendant for speeding in a school zone.  Id. at 223.  When the officer turned on his emergency lights, he saw Pannell throw what he thought was a cigarette out of the window and then observed Pannell empty the contents of a baggie out of the car window.  Id.  When Pannell stopped his car, he admitted to the officer that he had thrown a marijuana cigarette out of his car window and that the plastic bag he emptied had contained marijuana.  Id.  The court of appeals reversed Pannell’s conviction for destroying evidence, reasoning that when Pannell threw the marijuana from his car, the officer was investigating only a speeding violation.  Id. at 224.  Because there was then no investigation pending or in progress in which the marijuana would have served as evidence, there was no evidence that Pannell destroyed the marijuana knowing that an investigation was pending or in progress.  Id.             In this case, Officer Langlinais’s investigation of Appellant’s traffic violation was complete.  There is abundant evidence that from the moment Officer Langlinais saw the joint fall from Appellant’s pocket, Appellant realized her investigation related to his possession of marijuana.  When she questioned him about the cigarette, he quickly picked up the evidence relevant to the investigation and ate it.             Measured against the appropriate standards of review, the evidence is both legally and factually sufficient to support Appellant’s conviction.  Appellant’s first and second issues are overruled.   Disposition             The judgment is affirmed.                                                                                                       BILL BASS                                                                                                                 Justice     Opinion delivered June 21, 2006. Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.         (DO NOT PUBLISH)

In the United States Court of Federal Claims No. 11-770V (Pro Se) (Filed Under Seal: April 9, 2019 | Reissued: April 26, 2019)* KeyWords: Motion for Relief from HEATHER ROGERO and WALTER A. Judgment; RCFC 60(b); RCFC 60(d)(3). ROGERO, Il. Friend of W.R., a minor, Petitioners, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, ) ) ) ) ) ) v. ) ) ) ) ) Respondent. ) ) Heather Rogero and Waller A. Rogero, Mountain Home, AR, pro se. Voris E. Johnson, Jr., Senior Trial Attorney, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, With whom Were Catharine E. Reeves, Deputy Director, C. Salvatore D ’Alessio, Acting Director, and Joseph H. Hunt, Assistant Attorney General, for Respondent. OPINION AND ORDER KAPLAN, Judge. Before the Court are two submissions received from pro se Petitioners Heather and Walter A. Rogero (“the Rogeros”) in connection With this vaccine case concerning their son, W.R. First, the Court received on March 6, 2019 a submission styled alternatively as a motion for enlargement of pages, to correct the docket, for a supplemental pleading, and/or order of Withdrawal (“motion to correct”). In substance, this document takes issue With the Court’s decision to construe a March 4, 2019 motion which Was styled as “Petitioner’s Motion Under RCFC 59” (“the Rule 59 motion”) as a motion for relief from judgment under Rule 60 of the Rules of the Court of F ederal Claims (“RCFC”). E Docket No. 220.' * This opinion Was previously issued under seal on April 9, 2019. The parties Were given the opportunity to propose redactions on or before April 23, 2019. Because the only proposed redactions did not comply With Vaccine Rule 18(b), the Court reissues this opinion and order in its entirety. l Although it Was construed as a motion filed pursuant to Rule 60, the Court Will refer to the self- styled Rule 59 motion as “the Rule 59 motion” in order to avoid confusion With the Rule 60 motion received on March 21 , 2019. The Clerk of the Court shall file this document under seal on the docket for this case. For the reasons set forth below, the motion shall be DENIED-IN-PART to the extent it requests correction or withdrawal of the Court’s previous order. The motion will also be DENIED as moot to the extent it seeks permission to file a successive Rule 60 motion, because the Rogeros do not need the Court’s approval on this front. Finally, the motion shall be GRANTED-IN- PART to the extent that it seeks permission to exceed applicable page limits. Second, the Court is in receipt of the Rogeros’ “Combined Redaction Response and RCFC 60 Motion for Relief of Judgment Pursuant to 60(b) & (d) Grounds” (“the Rule 60 motion”) with an attached appendix and explanatory letter. The Clerk of the Court shall also file this submission under seal on the docket. For the reasons discussed below, this Rule 60 motion shall be DENIED. In addition, because the Rogeros have not requested any redactions permitted by the governing rules, the Court’s previous opinion (Docket No. 222) shall be reissued in full as a public document. DISCUSSION I. The Rogeros’ Objection and Motion to Correct as to the Court’s March 4, 2019 Opinion and Order In the March 6 submission that is currently before the Court, the Rogeros object to the Court’s decision to construe their Rule 59 motion as a motion filed under RCFC 60. The Rogeros explain that they deliberately filed their March 4, 2019 motion under Rule 59 and intended to reserve their right to later seek relief pursuant to Rule 60. They therefore request that the Court allow an enlargement of pages, correct the docket, allow a supplemental pleading, and/or allow them to withdraw their previous motion. The Court treated the Rogeros’ Rule 59 motion as a motion under RCFC 60 because the time for filing a Rule 59 motion seeking reconsideration of this Court’s January 12, 2018 decision was expired. The Court has the discretion to treat an untimely Rule 59 motion as a motion for relief from judgment under Rule 60(b). § Piotrowski v. United States, No. 13- 760C, 2015 WL 1651610, at *2 (Fed. Cl. Apr. 10, 2015) (citing Mendez v. United States No. 11-160C, 2014 WL 2772590, at *1 (Fed. Cl. June 18, 2014), affd_, No. 2014-5116, 2015 WL 106585 (Fed. Cir. Jan. 8, 2015) (treating an untimely Rule 59(a) motion as a Rule 60(b) motion); Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991) (stating that an untimely Rule 59(e) motion is properly considered a Rule 60(b) motion under the Federal Rules of Civil Procedure)). The Rogeros appear to believe that their previous Rule 59 motion was timely, however, because it was filed within twenty-eight days after the mandate was issued by the Federal Circuit in the Rogeros’ appeal. §§ Motion to Correct at 3-4. But as the Court explained in its previous order, the Rogeros’ time to file a Rule 59 motion with respect to any ruling of Qi§ Court elapsed on February 9, 2018, which was twenty-eight days after this Court entered judgment on January 12, 2018. Docket No. 222 at l. The Rogeros cannot file a timely Rule 59 motion in this Court now (and could not have when they filed their previous Motion) on the basis of the mandate issued in the Federal Circuit, because this Court “lacks the authority to afford relief from a judgment or order of the court of appeals.” lg at 4 n.2. And although the Rogeros accurately state in their later-filed Rule 60 motion that the entry denoting the mandate of the Federal Circuit references a “judgment,” relief as to th_at judgment would have to come from the Federal Circuit through a petition for rehearing or the Supreme Court of the United States through a petition for a writ of certiorari.2 The motion to correct is also animated by the Rogeros’ stated intent to preserve their right to file a future Rule 60 motion, which they have now done. § Motion to Correct at 5-6. But the Court’s decision to construe the Rogeros’ previous motion as one brought under Rule 60 rather than Rule 59 does not prevent them from filing a subsequent Rule 60 motion. Mora v. Sec’v of Health & Human Servs., 673 F. App’x 991, 997 (Fed. Cir. 2016) (“[A] litigant can bring successive Rule 60(b) motions.”). In other words, the relief the Rogeros have requested is unnecessary to preserve their right to file such a motion. Accordingly, because the Court permissibly construed the Rogeros’ Rule 59 motion as one filed under Rule 60, the motion to correct is DENIED-IN-PART to the extent that it requests that the Court correct the docket and/or withdraw its previous order. The motion is GRANTED-IN-PART to the extent the Rogeros requested to file additional pages with their subsequently filed Rule 60 motion. Finally, the motion to correct is DENIED as moot to the extent the Rogeros have requested permission to file a successive Rule 60 motion, because case law clearly affords them this right without the Court’s approval. II. The Rogeros’ Rule 60 Motion The Court has reviewed and carefully considered the Rogeros’ lengthy Rule 60 motion, which was received on March 21 , 2019. Although the Rogeros have couched their objections in the language of RCFC 60, in substance they are asking the Court to revisit the merits of the Special Master’s decision because they continue to believe that it was unfair and incorrect. For the reasons set forth below, the Rogero’s arguments do not provide an adequate basis for granting their motion for relief under Rule 60. As previously set forth in the Court’s March 4 order, RCFC 60(b) states that the Court “may relieve a party . . . from a final judgment, order, or proceeding” for any of six enumerated reasons: (l) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under RCFC 59(b); (3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) The judgment is void; 2 The Rogeros did, in fact, file a petition for rehearing in the F ederal Circuit that was denied on January 18, 2019. Accordingly, they have the right to file a petition for a writ of certiorari with the Supreme Court until April 18, 2019. § Sup. Ct. R. 13. (5) The judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) Any other reason that justifies relief. RCFC 60(b). “As a remedial provision, Rule 60(b) is to be ‘1iberally construed for the purpose of doing substantial justice.”’ Patton v. Sec’v of Dep’t of Health & Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994) (citing 7 J ames W. Moore & Jo Desha Lucas, Moore’s Federal Practice 1111 60.18[8], 60.19 (2d ed. 1993)). At the same time, “[t]he United States Supreme Court has ‘cautioned that the Rule should only be applied in extraordinary circumstances.”’ Perry v. United States, 558 F. App’x 1004, 1006 (Fed. Cir. 2014) (quoting Lilieberg v. Health Servs. Acquisition m, 486 U.S. 847, 864 (1988)) (alterations omitted). Therefore, in ruling on a motion under RCFC 60(b), a court must strike “a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done.” Hutchins v. Zoll Med. Ep_., 492 F.3d 1377, 1386 (Fed. Cir. 2007) (quoting 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2851 (2d ed. 1995)). As noted in the Court’s March 4 order, motions seeking relief under RCFC 60(b)(1), (2), or (3) must be filed within one year from the date of the judgment at issue. RCFC 60(0)(1). Because the Rogeros filed their motion more than one year after the Court denied their motion for review on January 11, 2018, they may not rely on RCFC 60(b)(1), (2), or (3). Under RCFC 60(c)(1), a motion based on Rule 60(b)(4) or (6) must be filed within a “reasonable” time. L3 Here, the Rogeros’ motion to vacate this Court’s judgment and remand to the Special Master was not filed within a reasonable time. To the contrary, it was filed more than a year after this Court’s decision and after the Rogeros had already unsuccessfully pursued relief in the court of appeals, including an unsuccessful petition for rehearing. ln any event, even assuming that the Court were to find that the Rogeros’ motion under RCFC 60(b)(4) and (b)(6) was filed within a reasonable time period, it lacks merit. First, the Supreme Court has defined a “void” judgment for purposes of Fed. R. Civ. P. 60(b)(4) as “one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010).4 “The list of such infirmities is exceedingly short.” Ld. A judgment is not void “simply because it is or may have been erroneous.” Ld. (quotations and citations omitted). “lnstead, Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” § at 271 (citations omitted); see also Brovhill Fumiture Indus., Inc. v. Craftmaster Fumiture Corp., 12 F.3d 1080, 1084 (Fed. Cir. 1993) (“[l]t is well established that a judgment is void for 3 The Rogeros have not claimed that Rule 60(b)(5) can be invoked as an avenue for relief. 4 The language of Fed. R. Civ. P. 60(b) is essentially identical to that of RCFC 60(b). purposes of 60(b)(4) only when the court that rendered the judgment lacked jurisdiction or failed to act in accordance with due process of law.”). In their motion, the Rogeros repeatedly assert that they seek relief based on due process process principles They contend that Special Master Hastings failed to comprehend or accurately describe their legal theory or to give adequate consideration to their proffered evidence. They also accuse the Court, the Special Master and the government of “misrepresenting” various facts and principles of law with which they disagree. These kinds of arguments, however, do not support a claim under RCFC 60(b)(4) because they do not show that the Rogeros suffered “a violation of due process that deprive[d them] of notice or the opportunity to be heard.” United Student Aid Funds. Inc., 559 U.S. at 271. The Rogeros had ample opportunity to be heard when the case was before the Special Master, and while they are dissatisfied with the results, it is clear to the Court that the Special Master gave careful consideration to their arguments In addition, the Rogeros pursued two rounds of review of the Special Master’s decision, one before this Court and one in the court of appeals. The Rogeros also contend that Special Master Hastings’s alleged errors constitute a “manifest injustice” and warrant relief under Rule 60(b)(6). “A movant is entitled to relief under Rule 60(b)(6)_the ‘catch-all’ provision-if ‘such action is appropriate to accomplish justice’ and only iri ‘extraordinary circumstances.”’ CEATS. lnc. v. Cont’l Airlines, Inc., 755 F.3d 1356, 1361 (Fed. Cir. 2014); see also Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002) (“Rule 60(b)(6) is available only in extraordinary circumstances and only when the basis for relief does not fall within any of the other subsections of Rule 60(b).”). Although the Court has no doubt that the Rogeros’ circumstances have involved significant hardships and difficulties, their arguments do not support the existence of the kind of “extraordinary circumstances” required to obtain relief under RCFC 60(b)(6). Instead, they are seeking to relitigate claims that the Special Master_whose decision was affirmed by both this Court and the court of appeals_already decided lacked merit. To the extent that the Rogeros also argue that relief is appropriate under RCFC 60(d)(3) based on “fraud on the court,” they misapprehend the nature of this ground. Because RCFC 60 also contains a fraud-related provision at (b)(3), courts narrowly construe the “fraud on the court” provision found at (d)(3). E Broyhill, 12 F.3d at 1085. “Fraud on the court is typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged.” Gravelle v. Kaba llco Corp., _ F. App’x -, 2018 WL 6444470, at *2 (Fed. Cir. Dec. 10, 2018) (internal citation, quotations, and alterations omitted). The Rogeros have not made any allegations sufficient to invoke this provision. In sum, and as the Court has noted previously, the Rogeros have presented their case to Special Master Hastings in a six-day hearing and in voluminous briefs, have requested and received review of the Special Master’s decision in this Court, and have also had their case reviewed_and petition for rehearing denied_by the court of appeals. Rule 60 relief is not available as a means to relitigate claims that have already been decided; if it were, then no decision would ever be final. Accordingly, the Rogeros’ second Rule 60 motion must be DENIED. III. The Rogeros Have Not Proposed Redactions The Court’s March 4 opinion and order was issued under seal, and requested redactions Were due from the parties by March 18, 2019. § Docket Text for Entry No. 222. Although the Rogeros styled their Rule 60 motion as a combined motion and “Redaction Response,” the only redactions proposed therein are alterations to the Court’s previous order, changing the language to match the Rogeros’ precise characterizations of their claims, legal theories, and view of the case. Because the Rogeros have not proposed redactions consistent with the provisions of Vaccine Rule 18(b), the entire opinion and order shall be made public. § Vaccine Rule 18(b)(2). CONCLUSION The Clerk shall file all of the Rogeros’ recent submissions under seal on the docket for this case. To the extent the Rogeros have moved to Vacate or otherwise amend the Court’s March 4 opinion and order, their motion is DENIED-IN-PART. To the extent they have requested additional pages for their Rule 60 motion, their motion is GRANTED-IN-PART. And to the extent the Rogeros have requested the Court’s permission to file their second Rule 60 motion, the request is DENIED as moot because the Court’s permission is not required. For the reasons discussed above, the Rogeros’ second Rule 60 motion is DENIED. IT IS SO ORDERED. S/ @'T\l }/{/ ELAINE D. KAPLAN Judge

REL: 10/31/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2014-2015 ____________________ 1131282 ____________________ Ex parte Stanford Pritchett PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Stanford Pritchett v. State of Alabama) (Marengo Circuit Court, CC-7-112; Court of Criminal Appeals, CR-13-0438) STUART, Justice. 1131282 WRIT DENIED. NO OPINION. Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. Main, J., recuses himself.* *Justice Main was a member of the Court of Criminal Appeals when that court considered an earlier appeal in this case. 2 1131282 MOORE, Chief Justice (dissenting). The trial court in this case denied Stanford Pritchett's motion to withdraw his guilty plea. Because, in my view, the Court of Criminal Appeals' unpublished memorandum affirming the trial court's judgment, Pritchett v. State (No. CR-13- 0438, June 6, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table), conflicts with the Alabama Rules of Criminal Procedure and with our precedent on the requirements for a guilty-plea colloquy, I respectfully dissent from the denial of Pritchett's petition for a writ of certiorari. Facts Pritchett was charged with murder made capital because it was committed by shooting into a vehicle; he pleaded guilty to a lesser-included charge of murder and agreed to a negotiated sentence of 23 years. During his plea hearing the trial judge did not mention or review the explanation-of-rights form with Pritchett or ask if he understood the rights he was waiving by pleading guilty (except for the right to appeal). The trial judge also did not review with Pritchett the maximum sentence or minimum sentence for the crime to which he was pleading guilty. The "Request for Guilty Plea" form Pritchett submitted 3 1131282 listed the sentencing range for the offense of murder as being from 10 to 99 years' imprisonment or life imprisonment. In fact, the range was 20 to 99 years' imprisonment because of an applicable firearm enhancement. § 13A-5-6(a)(4), Ala. Code 1975. Acting pro se, Pritchett moved to withdraw his guilty plea. The trial court denied his motion. The Court of Criminal Appeals affirmed its denial by an unpublished memorandum. Pritchett v. State (No. CR-09-1050, Dec. 3, 2010), 92 So. 3d 816 (Ala. Crim. App. 2010) (table). This Court reversed the Court of Criminal Appeals' judgment on the ground that Pritchett was not represented by counsel in the proceedings on his motion for withdrawal of the plea. Ex parte Pritchett, 117 So. 3d 356 (Ala. 2012). On remand, the trial court held a hearing during which Pritchett's counsel raised the issue of the court's failure to discuss with Pritchett the minimum/maximum sentencing range. The trial court again denied Pritchett's motion to withdraw his guilty plea. The Court of Criminal Appeals again affirmed, by unpublished memorandum, and Pritchett petitioned this Court for certiorari review. Discussion 4 1131282 Explaining its most recent affirmance of the denial of Pritchett's motion to withdraw his guilty plea, the Court of Criminal Appeals stated in its unpublished memorandum: "Pritchett filed in the circuit court a request to enter a guilty plea, which he and his attorneys signed, that clearly states the sentencing range for murder. Further, Pritchett pleaded guilty pursuant to a negotiated agreement and received the sentence upon which he agreed." Neither of these reasons is persuasive. "What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). Drawing on Boykin, this Court has held that "a defendant, prior to pleading guilty, must be advised on the record of the maximum and minimum potential punishment for his crime." Carter v. State, 291 Ala. 83, 85, 277 So. 2d 896, 898 (1973) (emphasis added). Although at one time the Court of Criminal Appeals noted that the submission of "a written explanation of rights signed by appellant was more than 5 1131282 adequate to satisfy the requirements of Boykin," Ireland v. State, 47 Ala. App. 65, 66, 250 So. 2d 602, 603 (Ala. Crim. App. 1971), "a signed Ireland form is, alone, insufficient to establish the voluntariness of a plea." Waddle v. State, 784 So. 2d 367, 370 (Ala. Crim. App. 2000). Effective January 1, 1991, the Alabama Supreme Court adopted the Alabama Rules of Criminal Procedure. Rule 14.4 of those Rules reads as follows, in pertinent part: "In all other cases [i.e., cases other than minor- misdemeanor cases], except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of: "(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands: "(i) The nature of the charge and the material elements of the offense to which the plea is offered; "(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions ...." Rule 14.4(a), Ala. R. Crim. P. (emphasis added). "The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has 6 1131282 had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or Form C-44A, as the case may be." Rule 14.4(d), Ala. R. Crim. P. The trial court, though it engaged in a colloquy with Pritchett, did not discuss with him the maximum and minimum penalties for the crime of murder, nor did it mention or discuss the CR-51 (Ireland) form that is used in non-habitual- offender felony cases.1 The "Request for Guilty Plea" form introduced at the hearing on Pritchett's motion to withdraw his guilty plea, and cited by the Court of Criminal Appeals, is not one of the forms identified in Rule 14.4(d), Ala. R. Crim. P., as acceptable for use in conjunction with a guilty- plea colloquy. In any event, that form contained incorrect information and thus misinformed Pritchett that he faced a minimum sentence of 10 years if convicted, rather than a minimum sentence of 20 years. For a defendant's decision to plead guilty to be intelligent and voluntary, the defendant must know the correct 1 The CR-51 form introduced into evidence at the hearing on Pritchett's motion to withdraw his guilty plea was a blank form with no particularized information written on it and no signatures. According to the Court of Criminal Appeals, the record of Pritchett's previous appeal contains an Ireland form indicating that the minimum sentence for murder is 10 years. 7 1131282 minimum sentence he or she will face by pleading guilty. "When an accused who pleads guilty does so on the basis of misinformation as to the range of punishment the guilty plea is involuntary." Handley v. State, 686 So. 2d 540, 541 (Ala. Crim. App. 1996). Furthermore, the trial judge did not personally address Pritchett regarding either the "Request for Guilty Plea" form or Form CR-51 as Rule 14.4(d) requires. The Committee Comments to Rule 14.4 state: "Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala. App. 65, 250 So. 2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge ... specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. ... This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out in Rule 14.4(a)(1) and (2)." (Emphasis added.) The Court of Criminal Appeals' holding in its unpublished memorandum in this case that the "Request for Guilty Plea" form, standing alone, satisfied the requirement that the plea be voluntary was negated as long ago as 1973 in Carter. Rule 14.4, in effect since 1991, embodies the principle that 8 1131282 without a colloquy to review a true Ireland form stating all the rights the defendant is forgoing by pleading guilty, a guilty plea is not voluntary. Furthermore, the unsupported statement of the Court of Criminal Appeals that the trial court did not have to inform Pritchett of the minimum and maximum sentences because he had agreed to a negotiated plea finds no recognition in the Alabama Rules of Criminal Procedure or in prior cases. Surely the information that the minimum sentence, if the defendant is found guilty, is 20 years, as opposed to 10 years, is necessary for a defendant to make a knowing and intelligent decision either to plead guilty or to go to trial.2 Recently the Court of Criminal Appeals recognized this principle in a case Pritchett cites frequently in his petition for certiorari review. See Williams v. State, [Ms. CR-13-0436, May 2, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014) (holding 2 The Court of Criminal Appeals also argued that Pritchett did not object to the trial court's failure to inform him of the firearm enhancement. This objection, however, is included in Pritchett's objection to the failure to inform him of the correct sentencing range. See Anderson v. State, 668 So. 2d 159, 159 (Ala. Crim. App. 1995) (equating a failure to inform a defendant of a sentencing enhancement with a failure to inform him of "the correct minimum and maximum possible sentences he could receive"). 9 1131282 that a guilty plea was involuntary where the defendant was not informed that a firearm enhancement would increase the minimum sentence by 10 years). Because informing Pritchett of the maximum and minimum possible sentences was "an absolute constitutional prerequisite to acceptance of a guilty plea," Carter, 291 Ala. at 85, 277 So. 2d at 897, I believe Pritchett's petition has merit. "The law in Alabama is clear that the trial court's failure to correctly advise a defendant of the minimum and maximum sentences before accepting his guilty plea renders that guilty plea involuntary." White v. State, 888 So. 2d 1288, 1290 (Ala. Crim. App. 2004). That the sentence imposed (23 years) was within the legal range does not control. "It does not matter that his sentence was legal. 'The accused's right to know the possible sentence he faces is absolute.'" Bozeman v. State, 686 So. 2d 556, 559 (Ala. Crim. App. 1996) (quoting Henry v. State, 639 So. 2d 583, 584 (Ala. Crim. App. 1994)). Conclusion I would grant Pritchett's petition for a writ of certiorari (1) to examine the apparent conflict between the Court of Criminal Appeals' decision in this case and prior 10 1131282 decisions and (2) to maintain uniformity in our cases applying Rule 14.4. 11 

338 F.Supp. 1304 (1972) UNITED STATES of America, Plaintiff, v. Thomas Marcelino ESPINOZA, Defendant. Crim. No. 12247. United States District Court, S. D. California. March 2, 1972. *1305 Harry D. Steward, U. S. Atty., Catherine A. Chandler, Asst. U. S. Atty., San Diego, Cal., for plaintiff. James M. Gattey, San Diego, Cal., for defendant. MEMORANDUM DECISION AND ORDER GORDON THOMPSON, Jr., District Judge. Defendant herein has moved the Court for an order suppressing certain physical evidence consisting of approximately four grams of heroin hydrochloride emitted from the stomach of the defendant at approximately 12:55 A.M. on the morning of October 11, 1971. This evidence was seized as a result of a warrantless arrest and search occurring on October 10, 1971, at approximately 10:50 P.M., as the defendant entered the United States from Mexico on foot at the port of entry at San Ysidro, California. An evidentiary hearing was conducted on February 7, 1972, at the conclusion of which the matter was taken under submission by the Court. Thereafter, on February 9, 1972, the defendant, his counsel, and the United States Government, desiring to waive a trial by jury in this matter, executed the jury waiver which this Court approved after orally inquiring of the defendant, his counsel and Government counsel, of their desire so to do. Thereafter, the case was submitted on the facts elicited at the hearing on the motion to suppress evidence, together with a written stipulation executed by the defendant, defense counsel and the Government, and the matter was thereafter submitted to the Court for determination as to the guilt or innocence of this defendant. FACTS The evidence established at the hearing on the motion to suppress revealed that Agents Walters and Holleron received information from a reliable informant that a Mexican male by the name of Thomas Espinoza, described as wearing *1306 hornrim glasses and a blue coat, would be entering the United States from Mexico on foot at the port of entry at San Ysidro, California, carrying a quantity of heroin in his stomach. Inspector Walters testified that on October 10, 1971, at approximately 9:30 in the evening, he was present at the port at the pedestrian gate entrance when he observed defendant Espinoza and overheard him give a negative declaration as he attempted to enter the United States in the pedestrian lane. Defendant, who was known to Agent Walters, was then questioned as to what he was bringing from Mexico. His declaration was that he was bringing tortillas only. Agent Walters testified that the defendant appeared to be in an extremely nervous condition, shuffling about, and in his opinion, under the influence of something. Inspector Walters observed that the defendant was "well-tracked" and was a user of narcotics. Subsequently, a personal search of the defendant was conducted with negative results. Agent Holleron, who has been a Senior Special Agent with the Treasury Department, Bureau of Customs, for a period of about 13 years, testified that at approximately 10:00 P.M. that same evening he had a conversation with the defendant at the port of entry at San Ysidro in the presence of Special Agent Dominic Aragona, and after advising defendant Espinoza of his rights, defendant stated that he was a user of narcotics and had taken his last fix about two weeks prior to that date. Agent Holleron testified that in his opinion the puncture wounds which appeared on the arms and hands of the defendant were less than two weeks old, were reddened, that the defendant appeared somewhat nervous, his eyes being pin-pointed, and that based thereon, Agent Holleron formed the opinion that the defendant was under the influence of a drug or narcotic and had a "shot" more recently than two weeks prior. Agent Holleron further testified that Espinoza was the subject of a look-out based upon information received from a reliable informant who named Thomas Espinoza and who stated that he would come across the border at San Ysidro from Mexico carrying narcotics within his body. Agent Holleron testified that he could recall at least ten cases that the same informant had made for Customs, that in each of those cases the information proved to be reliable, resulted in arrests of the individuals involved, and in the majority of cases the information related to body cavity concealment of narcotics. Agent Holleron testified that in his opinion the information on this occasion received from an informant named by the Supervisory Customs Inspector was reliable. Agent Holleron further testified that after a conversation with the defendant which lasted approximately 20 minutes, he was taken to the office of Dr. Paul Salerno for an examination; that Dr. Salerno was asked to perform a routine-type examination of defendant, checking his heartbeat, blood pressure, reflexes, arms, and eyes, to determine whether the defendant was under the influence of narcotics at that time. After conducting the examination requested by Agent Holleron, the testimony reflects that Dr. Salerno informed Agent Holleron that, in his opinion, defendant Espinoza was under the influence of a narcotic. Agent Holleron testified that he and Agent Aragona asked Dr. Salerno to conduct a body probe, which he did. The rectal probe proved to be negative and the agents then requested Dr. Salerno to perform an emetic-type probe, which was done. Dr. Salerno testified that on October 10, 1971, at approximately 10:50 P.M., defendant was brought to his office in the custody of Agents Holleron and Aragona, and that Agent Holleron initially requested that he conduct a physical examination of Espinoza to ascertain the condition of the needle marks found on defendant's arms and whether the individual was under the influence of a narcotic drug. Dr. Salerno testified that his investigation revealed both old and recent venous scarring of Espinoza's *1307 right arm, that the left arm showed scarring over the upper forearm, that the lower forearm and lateral wrist showed a two-inch scar, venous segment, with seven recently-made needle marks, that the blood pressure was 140 over 95, that the pulse rate was 130 per minute, that the pupils of the eyes were abnormally constricted with impaired responses to changes in illumination, that the pupillary diameter was two millimeters in the light and four millimeters in the darkness, and that the deep tendon reflexes of the lower extremities were abnormally hyperactive. Dr. Salerno, based upon said examination, stated that he formed the opinion that the defendant was "under the primary influence of a narcotic drug" and that he had also taken an amphetamine-type drug which tended to elevate the blood pressure and pulse rate and to some degree counteract the physiological effects of the narcotic drug on the body. The needle marks, according to Dr. Salerno, were made within the past several days, but not more than a week previous. Dr. Salerno further testified that after he had examined the defendant and stated his opinion to the agents that then and only then did the customs agents ask that he conduct both a rectal probe and an examination to determine the contents of the defendant's stomach, which he did. He further testified that the rectal probe was performed in a medically-approved manner with negative results. Thereafter defendant was given a six-ounce 10% saline solution to induce vomiting. The doctor testified that the defendant agreed to swallow the solution, followed by an additional ten ounces of plain water in order to clear his stomach. The evidence shows that Dr. Salerno informed the defendant prior to the defendant's consent to swallowing the saline solution that the alternative would be the pumping of the stomach. After approximately 45 minutes, Dr. Salerno observed vomiting action, accompanied by re-swallowing maneuvers. The defendant was then requested to use a wooden tongue depressor in order to facilitate and encourage the vomiting. Subsequently, when defendant would remove the depresser in order to re-swallow the material expelled from the stomach, Dr. Salerno aided him in the use of the tongue depresser which resulted, according to the testimony, in a regurgitation from defendant's stomach of three rubber latex enclosed packets, later determined to be the heroin hydrochloride. Dr. Salerno testified that the only time that the defendant was handcuffed during the one hour and 55 minutes that he was present in the doctor's office was when he was brought in and when he was taken out, that he was not handcuffed during the interim and was cooperative throughout, displaying no anger or other untoward emotion. Dr. Salerno reiterated under cross-examination on several occasions that the body cavity searches of the rectum and stomach were made at the request and direction of Agents Holleron and Aragona. Further evidence was introduced on the day of trial by way of stipulation that the substance brought into the United States by the defendant concealed in his stomach on or about October 10, 1971, was four grams of heroin. The defendant offered no evidence either at the hearing on the motion to suppress nor at the court trial which followed. MOTION TO SUPPRESS Personal Search of Defendant: The initial detention and questioning of the defendant as he approached the International Border from Mexico on foot, and when first observed by Inspector Walters, has as its basis the statutory authority of 19 U.S.C. § 482.[1] *1308 It is not unreasonable for immigration and/or customs officers to detain, on mere suspicion, an entrant in order to conduct a routine investigation and a search of his luggage, vehicle, and personal effects. Henderson v. United States, 390 F.2d 805 (9th Cir. 1967). It must be remembered, however, that the Fourth Amendment rights of the individual extend to persons crossing the borders of this country. This is so because the Fourth Amendment protects people not places. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). In order to justify an intrusion into that reasonable expectation of privacy, there must be some justification for initiating a search. This justification may be reasonably anticipated when one approaches and attempts to cross an international border from a foreign country into the United States. Such routine inspections and detentions are not deemed unreasonable searches. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It must be remembered that "border searches" must be reasonable under all the circumstances. One approaching an international border does not normally contemplate that his Fourth Amendment right of privacy would be invaded to the extent that he would be required to expose to view his nude body or to subject his body cavities to search even under the most medically-approved circumstances. In order to justify what is commonly known as a personal or "strip search" initiated by customs officials at the port of entry, they must have "at least a real suspicion directed specifically to the person to be searched." United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970). That case defined "real suspicion" as "subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law." 421 F. 2d at 879. That court also stated that the "objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment." Id. It was there indicated that subjective good faith alone on the part of customs officials, unsupported by such facts, would do violence to the protections afforded individuals under the Fourth Amendment. Applying those standards to the case at bar, it is clear that Inspector Walters, as he observed defendant attempt to enter the United States from Mexico, had sufficient information upon which to detain the defendant and to question him relative to what, if anything, he was bringing into the United States. This is so because the defendant was the subject of a look-out based upon information received by customs officials of which Inspector Walters was aware. Inspector Walters testified that he had searched Espinoza on several prior occasions and was present in the customs office when he had seen the defendant patted down by other inspectors. After escorting him to the baggage room and patting him down for weapons, Inspector Walters noticed that defendant was shuffling around and appeared to be under the influence in that he was more nervous than he had ever noticed before. On observation of defendant's arms, Inspector Walters observed that he was "well-tracked" and that to his knowledge defendant was a user of narcotics. *1309 Without question and based upon these facts, Inspector Walters not only had subjective suspicion based upon the information previously received as to this defendant, but that the information was supported overwhelmingly by the objective, articulable facts. Certainly there existed at this point "at least a real suspicion, directed specifically to the person to be searched." Guadalupe-Garza, supra. Accordingly, the personal search of the defendant was justified by a real suspicion, directed specifically to defendant, that he was carrying contraband. Body Cavity Search: While many cases have indicated that visual inspection of the surface of the body in the anal area and elsewhere is permissible in a skin search, the intrusion into the body cavity must satisfy a more stringent test than that required for the so-called personal or skin search. Prior to such a search there must be a "clear indication" or "plain suggestion" of the presence of contraband concealed in the cavity. Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966). Therein it was stated: While we know of no accepted meaning of that term [clear indication] in law or as a word of art, it can be readily defined. "Indication" is defined as "an indicating; suggestion." "Clear" is defined as "free from doubt;" "free from limitation;" "plain." While Rivas requires that there must exist facts creating a "clear indication," or a "plain suggestion," of the smuggling, it is not necessary that those facts reach the dignity of, nor be the equivalent of, "probable cause" which is necessary for an arrest and search at a place other than a border. Rivas held that a "clear indication" existed when a convicted registered user of narcotics crossed the border under the influence of narcotics, as indicated by his eyes, an extremely nervous manner, and recent needle marks on both arms. The court stated that it is "required as a fact of life to recognize that many people crossing the border, desiring to smuggle goods, and more particularly narcotics, do, and unless stopped, will continue to utilize body cavities, including any of an adequate size that will make such smuggling economically profitable." 368 F.2d at 710. The threshold question, then, is did the customs officials have a "clear indication" that smuggling was taking place by use of the body cavity of defendant, thus justifying a search of the defendant as he crossed the border; or, did the search violate the Fourth Amendment rights of the defendant herein? The Court finds that the customs officials did have a "clear indication" or "plain suggestion" that the body cavity of the defendant concealed contraband. The information given Agents Walters and Holleron which caused the defendant to be the subject of a look-out not only was detailed and reliable, but proved precisely accurate in every respect within the ambit of their perception short of the actual body cavity intrusion. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The objective, articulable facts observed by the officers confirmed the information received. In order to confirm the information relative to the defendant's stomach, the customs officials, acting out of an abundance of caution, transported the defendant to the offices of Dr. Salerno where the latter performed a medical examination to determine whether or not the information received and the observations made by the customs officials were accurate. This examination was conducted at the request of the customs officials. Having confirmed by medical diagnosis their own observations and the information previously received, the customs officers requested and instructed Dr. Salerno to perform a body probe, including first a rectal probe, then followed by the administering of an emetic. This is not a Rochin situation with its physical assault on the defendant, both *1310 before the stomach pumping and at the time of its occurrence. It was the physical assault in Rochin which caused the reversal. Here the evidence shows a technical physical assault but no degrading or shameful physical assault upon the person in the sense the Supreme Court found in Rochin v. California, 342 U.S. 165, 72 S.Ct. 1205, 96 L.Ed. 183 (1952). Defendant argues at length that the motion to suppress should be sustained on the authority of Huguez v. United States, 406 F.2d 366 (9th Cir. 1968). The thrust of defendant's argument is that Dr. Salerno, acting in the capacity in which he was in this case, lacked a "clear indication" or "plain suggestion" of the presence of the contraband concealed in the cavity, because he did not have the prior information relayed to the customs officers from the reliable informant at the time he conducted the probe. With that proposition, this Court disagrees. Huguez is readily distinguishable from the case at bar in several respects: First: In Huguez, the customs officers who escorted the defendants therein to the baggage area (not a medical room) were not possessed of the information which would give rise to a "clear indication" of contraband concealed in the body cavity. In this case Agents Holleron and Aragona had such information. Second: There was no confirmation of the previously acquired information in the Huguez case, while in the present case the confirmation of the information previously received from the reliable informant was in abundance both by the objective, articulable facts perceived by the customs officers and the defendant's own admission that he was a user of narcotics and had had his last fix about two weeks prior. Third: The body cavity probe was conducted at the office of Dr. Salerno and not in an unhygienically, unsterilized baggage room at the port of entry. Fourth: Here the examination was conducted at the specific request and direction of the customs agents only after medical confirmation of their own observations and the defendant's admissions, while in Huguez it was the doctor who made the request to probe the body cavity. Fifth: In Huguez, there was a substantial and excessive use of force in the probing of the body cavity; there was no such evidence in this case. It seems to the Court that this case parallels the Rivas case in substantially all of the facts and circumstances known to the customs officers which gave rise to the "clear indication" or "plain suggestion" that the defendant was smuggling contraband into the United States in a body cavity. Added thereto is the information from a reliable informant, the accuracy of which is indisputable, which included the fact that the defendant was carrying the contraband in his stomach. Additionally, the defendant admitted to being a narcotics user and having "fixed" approximately two weeks prior to his border crossing. At this point it can clearly be said that not only was there a "clear indication" of contraband being smuggled across the border, but in fact probable cause existed for the defendant's arrest even before the body cavity probe began. Draper v. United States, supra. Certainly if there was probable cause to arrest, there was "clear indication" and "plain suggestion" that defendant was carrying narcotics within his body, thus allowing the body cavity search. In the opinion of this Court had the customs officials acted in any other manner than they did in an effort to secure the contraband from the body cavity of the defendant, they would have acted unreasonably and in dereliction of their duty. There was not here present a violation of the Fourth Amendment rights of the defendant. Accordingly, the motion to suppress is denied. *1311 VERDICT OF THE COURT Based upon a review of the facts set forth above, it is the verdict of the Court that the defendant, THOMAS MARCELINO ESPINOZA, is guilty as charged of the illegal importation of a controlled substance in violation of 21 U.S.C. §§ 952, 960, and 963. NOTES [1] "Any of the officers or persons authorized to board or search vessels may stop, search, and examine, ... any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, ... and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, ... which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced in the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial."

981 F.2d 1251 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Charles F. RIDDLE, Administrator of Estate for CharlesRiddle, Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UnitedStates Department of Labor, Respondent. No. 92-1217. United States Court of Appeals,Fourth Circuit. Submitted: October 7, 1992Decided: December 15, 1992 On Petition for Review of an Order of the Benefits Review Board. (89-3826-BLA) Charles F. Riddle, Petitioner, Pro Se. Patricia May Nece, Russell Alan Shultis, United States Department of Labor, Washington, D.C., for Respondent. Ben. Rev. Bd. Affirmed. Before MURNAGHAN, WILKINSON, and LUTTIG, Circuit Judges. PER CURIAM: OPINION 1 Charles F. Riddle seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of a waiver of recoupment of black lung benefits awarded pursuant to 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1992). Our review of the record discloses that the Board's decision is based upon substantial evidence and that this appeal is without merit. Accordingly, we affirm on the reasoning of the Board. Riddle v. Director, Office of Workers' Compensation Programs, No. 89-3826-BLA (Benefits Review Board, Dec. 27, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED

723 F.Supp.2d 11 (2010) GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER, et al. Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and Robin Keegan, Executive Director of the Louisiana Recovery Authority, Defendants. Civil Action 08-01938(HHK). United States District Court, District of Columbia. August 16, 2010. *12 Danielle Yvette Conley, Wilmer Hale, Jenny R. Yang, Joseph Marc Sellers, Peter Romer-Friedman, Cohen Milstein Sellers & Toll, PLLC, Washington, DC, Damon T. Hewitt, Debo P. Adegbile, Renika C. Moore, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Plaintiffs. Allen J. Krouse, III, Renee G. Culotta, Suzanne M. Risey, Frilot L.L.C., New Orleans, LA, James D. Todd, Jr., U.S. Department of Justice, Washington, DC, for Defendants. MEMORANDUM OPINION AND ORDER HENRY H. KENNEDY, JR., District Judge. Before the Court are plaintiffs' "Second Motion for a Temporary Restraining Order and Preliminary Injunction" [#62] and the "Motion to Stay Proceedings Pending Appeal" of defendant Robin Keegan, Executive Director of the Louisiana Recovery Authority [#70]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that Keegan's motion should be denied and plaintiffs' motion should be granted. I The background of this case is set out in the Court's memorandum opinion explaining the reasons for its denial of plaintiffs' first motion for a temporary restraining order ("TRO") and preliminary injunction. See Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep't of Hous. and Urban Dev., 723 F.Supp.2d 1, 2-5, 2010 WL 2718164, at *1-2 (July 6, 2010). The Court will not repeat that background here except to briefly summarize that Keegan's agency is tasked with distributing funds appropriated by Congress to individuals whose homes were damaged by Hurricanes Rita and Katrina. Plaintiffs assert that the formula by which she does so under a portion of the program called Option 1 has a discriminatory impact on African-American homeowners in New Orleans, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. After the Court denied plaintiffs' motion for a TRO and preliminary injunction, plaintiffs filed an interlocutory appeal to the Court of Appeals for the D.C. Circuit. That appeal is pending. On July 21, 2010, plaintiffs filed a second motion for a TRO, seeking to enjoin Keegan from disbursing initial Road Home Program awards to Option 1 applicants using a formula that takes into account the pre-storm value of an individual's home. Keegan opposes this motion and also seeks a stay of this case pending appellate review. II A. Motion to Stay The Court first addresses Keegan's motion to stay. Keegan seeks a stay because, she asserts, the issues raised in plaintiffs' second motion for a TRO are identical to those now before the D.C. Circuit on appeal. The Court disagrees. Although the two motions are closely related, the second motion seeks different relief than did the *13 first. Accordingly, the D.C. Circuit will review the Court's resolution of whether the broad relief plaintiffs initially sought was warranted; the Court here addresses whether the narrow relief they seek now is appropriate. Therefore, the Court will not stay this case. B. Second Motion for a TRO and Preliminary Injunction This court may issue a preliminary injunction only when the movant demonstrates: (1) "a substantial likelihood of success on the merits"; (2) "that it would suffer irreparable injury if the injunction is not granted"; (3) "that an injunction would not substantially injure other interested parties"; and (4) "that the public interest would be furthered by the injunction." Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)). "These factors interrelate on a sliding scale and must be balanced against each other." Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir.1998). 1. Likelihood of Success on the Merits The Court explained in its previous opinion that plaintiffs are likely able to make out a prima facie case that the formula used to calculate awards under Option 1 of the Road Home Program violates the Fair Housing Act. See Greater New Orleans, 723 F.Supp.2d at 5, 2010 WL 2718164, at *3. Nevertheless, the Court determined that plaintiffs did not have a likelihood of success on the merits of their case because, under a line of cases expanding upon Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court does not have jurisdiction to provide the retroactive relief—specifically, correction of awards already disbursed—plaintiffs ultimately sought. See id. at 6-7, at *4-6. Plaintiffs' current motion, however, only seeks an injunction that would allow them ultimately to obtain the limited relief the Court explained in a Clarification of an earlier order, issued June 4, 2010[#52], it has jurisdiction to provide. Specifically, they ask that Keegan be enjoined from disbursing future, initial Road Home Program awards under Option 1 based on a formula that takes into account the pre-storm value of the applicant's home. In this way, plaintiffs seek to preserve the claims of those individuals who have not yet received awards. Keegan disputes the Court's determination that plaintiffs have submitted evidence sufficient to show that they would likely be able to make out a prima facie case of racially discriminatory impact. But the Court finds no reason to reconsider its ruling as to that issue, especially where Keegan has still provided neither evidence contradicting plaintiffs' contentions nor an explanation of the reason for taking pre-storm home values into account. Because plaintiffs will likely be able to show after discovery that the Option 1 formula is unlawful and in the absence of an impediment to success where plaintiffs ultimately seek only prospective relief, the Court concludes that plaintiffs have a likelihood of prevailing on the merits of their Fair Housing Act claim as to Option 1 awards that have not yet been distributed. 2. Irreparable injury For the reasons explained in this Court's prior rulings and as referenced above, only individuals who are entitled to but have not yet received initial Option 1 grants may bring suit on the theories plaintiffs advance. As Keegan continues to distribute awards, homeowners who receive them lose their ability to challenge what plaintiffs allege is a racially discriminatory formula. Accordingly, the Court finds that prospective Road Home Program recipients *14 would face irreparable injury were it not to grant the injunction sought. 3. Substantial injury to other parties The Court acknowledges that granting plaintiffs' motion may delay the distribution of awards to some homeowners, and for that reason, this factor weighs against doing so. The Court notes, however, that plaintiffs seek narrow relief—their proposed order specifically provides that Keegan "may continue to calculate and disburse grant awards in a manner that does not utilize the pre-storm value of the beneficiary's home as a criterion," Pls.' 2d Mot. for TRO, Proposed Order at 1—so the injunction need not delay all Option 1 awards and will not interfere with the administration of any other portion of the Road Home Program. 4. Public interest As noted in the Court's previous opinion, it is in the public interest to remedy housing discrimination as well as to promptly disburse funds for the purpose of helping those severely harmed by hurricanes that occurred years ago. This factor therefore does not weigh strongly on the side of either party's position. 5. Conclusion Having weighed the factors that must be considered when determining whether to grant injunctive relief, the Court concludes that it is appropriate to grant the injunction plaintiffs seek here. Plaintiffs are likely to succeed on the merits of their Fair Housing Act claim as to the Option 1 awards not yet disbursed, individuals who have not received awards will suffer irreparable injury to their ability to bring such claims if they receive awards based on the allegedly discriminatory formula, and neither the interests of third parties nor the public interest outweigh the reasons to grant the injunction. III For the foregoing reasons, it is this 16th day of August 2010, hereby ORDERED that Keegan's motion for a stay pending appellate review [#70] is DENIED; and it is further ORDERED that plaintiffs' motion for a second TRO and preliminary injunction [#62] is GRANTED. Accordingly, Keegan, or any successor officer, is prohibited from disbursing any award under the Road Home Program using the pre-storm value of the home as a criterion for calculating the amount of such award. Under the terms of this order, Keegan may continue to calculate and disburse Road Home Program funds in a manner that does not take into account the pre-storm value of the recipient's home. This injunction shall remain in effect until the Court issues a decision on the merits or orders otherwise.

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941 A.2d 718 (2007) J.F., Appellant v. D.B., Appellee. Superior Court of Pennsylvania. Submitted September 4, 2007. Filed January 3, 2008. *719 Melissa H. Shirey, Erie, for appellant. Joseph P. Martone, Erie, for appellee. BEFORE: MUSMANNO, LALLGREEN and ANTHONY[*], JJ. OPINION BY ANTHONY, J.: ¶ 1 Appellant, J.F., appeals from the March 27, 2007 order entered in the Court of Common Pleas of Erie County denying his request for the reimbursement of child support payments made to Appellee, D.B., for the care of Appellant's three minor sons. Upon review, we affirm. The relevant facts and procedural history follow. ¶ 2 Appellant and his paramour, E.D., contacted a private surrogacy agency after the couple learned that E.D. could not conceive any additional children. In 2002, the agency matched the couple with Appellee, a married resident of Pennsylvania, and an egg donor, a single woman residing in Texas. In August of 2002, Appellant, Appellee, Appellee's husband, and the egg donor executed a surrogacy contract, which provided, inter alia, that Appellee would serve as the gestational carrier. Pursuant to this agreement, three of egg donor's eggs were fertilized in vitro with Appellant's sperm and were implanted into Appellee. Within four weeks, the parties learned that Appellee was pregnant with triplets. ¶ 3 On November 19, 2003, Appellee gave birth to triplets at Hamot Medical Center after thirty-five weeks of gestation. Due to this early delivery, the babies had minor medical problems, which required their placement into Hamot's neonatal intensive care unit. Over the next several days, Appellee expressed concern about Appellant's infrequent visits to the hospital and concluded that he and his paramour were unfit to parent the children. Appellee decided to take the children home with her, and on November 27, 2003, Hamot discharged the triplets to Appellee and her husband without Appellant's consent. *720 ¶ 4 When efforts to contact Appellee failed, Appellant filed a Complaint for Custody and a Motion for Emergency Special Relief against Appellee. Promptly thereafter, a consent order was filed awarding temporary legal and physical custody of the triplets to Appellee, granting visitation to Appellant, and preserving Appellant's right to assert that Appellee lacked standing to pursue custody. Appellee filed an answer and counterclaim for custody. Appellant filed preliminary objections to the answer claiming that Appellee lacked standing to seek custody. On. April 2, 2004, after a number of hearings, the trial court determined that Appellee had standing to pursue custody and child support. The trial court held two additional custody hearings, and on January 7, 2005, the trial court entered an order directing the parties to share legal custody and awarding primary physical custody to Appellee. The trial court granted Appellant partial physical custody/visitation and directed Appellant to pay child support. ¶ 5 Appellant filed a timely appeal. Therein, Appellant raised a number of challenges to the trial court's order including: (1) the trial court erred when it determined that Appellee possessed standing to pursue custody; (2) the trial court erred in finding that Appellee had standing to pursue child support; and (3) the trial court erred when it found that awarding custody to Appellee was in the children's best interests. J.F. v. D.B., 897 A.2d 1261 (Pa.Super.2006). Upon review, our Court concluded that the trial court erred when it determined that Appellee had standing to pursue custody. Id. As such, our Court vacated the order of the trial court that awarded primary physical custody and child support to Appellee and directed that the trial court award Appellant full physical and legal custody of his biological children. Id. ¶ 6 On May 24, 2006, Appellant filed a Complaint for Support in which he sought to recover all child support paid to Appellee. The trial court ordered both parties to appear at a support conference, and on July 18, 2006, the support officer remanded the case to the trial court for testimony on this issue. The trial court held a hearing on this complaint on February 27, 2007. On March 27, 2007, the trial court denied the relief requested by Appellant. Appellant filed a timely notice of appeal and a timely concise statement of matters complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. ¶ 7 In his brief, Appellant raises two issues for our review: [1.] The trial court erred in finding that, after the Superior Court vacated an order awarding child support to a gestational surrogate upon a finding that the gestational surrogate lacked standing to pursue an action for custody of the children, the biological father cannot recover from the gestational surrogate child support payments he was compelled to make pursuant to the vacated order awarding child support. [2.] The trial court erred in finding that a gestational surrogate, whom the Superior Court has ruled lacked standing to pursue custody of the children because she obtained physical custody of the children in defiance of the biological father's wishes and the parent/child relationship, nevertheless has standing to pursue an action for and receive child support. Appellant's Brief, at 3. ¶ 8 Preliminarily, we observe: When evaluating a support order, this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion *721 afforded the trial court absent an abuse of discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. In addition, we note that the duty to support one's child is absolute, and the purpose of child support is to promote the child's best interests. Bulgarelli v. Bulgarelli, 2007 PA Super 295, 115, 934 A.2d 107 (quotations omitted). ¶ 9 In his first issue, Appellant argues that the trial court erred when it concluded that Appellant could not recover the child support payments that he made pursuant to the vacated trial court order. Appellant's Brief, at 9. Appellant maintains that the Superior Court's vacation of the order entirely annulled it, thereby requiring the trial court to return the parties to the positions that they would have occupied had the trial court never entered the support order. id. Upon review, we do not find that the trial court committed an error of law: ¶ 10 Initially, we agree with Appellant that "[w]here a judgment is vacated or set aside (or stricken from the record) by valid order or judgment, it is entirely destroyed and the rights of the parties are left as though no such judgment had ever been entered." Fitzpatrick v. Fitzpatrick, 811 A.2d 1043, 1045 (Pa.Super.2002); see also In re Higbee's Estate, 372 Pa. 233, 237, 93 A.2d 467, 469 (1953) (stating "[w]hen the judgment was taken off, the action stood as before judgment was entered . . ."). We disagree, however, with the suggestion that the full repayment of support would place Appellant in the position that he would have been in had the trial court never entered the order. ¶ 11 It is well settled that a parent has an absolute duty to support his children and that this obligation is not dependent upon a person having custody of a child. Reinert v. Reinert, 926 A.2d 539, 542 (Pa.Super.2007); Kauffman v. Truett, 771 A.2d 36, 39 (Pa.Super.2001). Moreover, the right to child support belongs to the children. Kesler v. Weniger, 744 A.2d 794, 796 (Pa.Super.2000). In our view, Appellant's payment of support did not unjustly enrich Appellee.[1] Rather, Appellant fulfilled a financial obligation to his three minor sons that would have existed if the trial court had never awarded physical custody and support to Appellee. ¶ 12 We find the circumstances in Elkin v. Williams, 755 A.2d 695 (Pa.Super.2000) and Cook v. Gill, 663 S.W.2d 789 (Mo.App. 1984) entirely distinguishable. In Elkin, Ms. Williams filed an appeal after the trial court ordered her to pay child support to a family friend who permitted Ms. Williams' eighteen-year-old son to reside with her. Upon review, our Court determined that Ms. Williams' son was not a "child" or a "minor" and, as a consequence, the family friend lacked standing to file a support action. We also noted that Ms. Williams owed no duty of support to her son as he left her home on his own accord. As such, we vacated the order of support, dismissed the support complaint for lack of standing, and directed that Ms. Williams be reimbursed *722 for any monies paid as a result of the support order. ¶ 13 In Cook, Ms. Cook sought full restitution for all child support paid pursuant to a vacated court order. The Missouri Court of Appeals had vacated the child support order because Mr. Gill failed to demonstrate that the children's expenses had increased. See In re Marriage of Cook, 636 S.W.2d 419 (1982). Nevertheless, the trial court denied the request for restitution. On appeal, the Court of Appeals determined that Ms. Cook should receive full restitution from Mr. Gill "of all benefits acquired under the judgment during the pendency of the appeal." Cook, 663 S.W.2d at 790. Unlike the appellants in Elkin and Cook, however, Appellant did not confer any benefit upon his children to which they were not entitled. Therefore, his first issue fails. ¶ 14 In his second issue, Appellant contends that the trial court, erred when it determined that Appellee had standing to pursue an action for child support. Appellant's Brief, at 14. Specifically, Appellant argues that Appellee should not have standing to seek child support where she placed herself in the position of caring for the children against Appellant's wishes. Id. at 16. Upon review, we do not find that the trial court erred. ¶ 15 Pursuant to Section 4341(b) of the Domestic Relations Code, "[a]ny person caring for a child shall have standing to commence or continue an action for support of that child regardless of whether a court order has been issued granting that person custody of the child." 23 Pa.C.S.A. § 4341(b); see also Pa.R.C.P. 1910.3 (stating an action for child support "shall be brought . . . on behalf of a minor child by a person caring for the child regardless of whether a court order has been issued granting that person custody of the child"). In the instant case, Appellant does not dispute that Appellee cared for the children from November 27, 2003 until April 21, 2006. Appellant's Brief, at 16. Instead, Appellant argues that our Court should ignore the plain language of the statute and carve out an exception in those instances where the person caring for the child does so in defiance of a parent's wishes. This we may not do. See 1 Pa. C.S.A. § 1921(b) (stating "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit"). ¶ 16 Additionally, our Court's decision in Seder v. Seder, 841 A.2d 1074 (Pa.Super.2004) does not compel reversal. In that case, our Court considered whether Mr. Seder had standing to pursue child support where the trial court awarded him primary physical custody of his child but his wife kept the child in Jordan in defiance of the court's order. Upon review, our Court concluded that Mr. Seder possessed standing under Rule 1910.3(b) of the Pennsylvania Rules of Civil Procedure. Seder did not address the pivotal question in the instant case, namely, whether the party caring for children in defiance of the parent's wishes may pursue support. ¶ 17 Finally, we must address Appellant's concern that any decision to affirm the trial court's order would contravene sound policy. Appellant's Reply Brief, at 4. Specifically, Appellant argues: To deny [Appellant] . . . the ability to recover the funds, would send the message to individuals in [Appellant's] . position that they should not comply with a child support order pending appeal because they cannot recover the money once it has been paid, despite the child support order being vacated. Individuals such as [Appellant] . . . would be in a better position to not pay the child support pending the appeal because the *723 obligation to pay would be relieved once the order is vacated. Furthermore, it sends the message to other gestational surrogates that if they take action similar to that of [Appellee] . . ., with regards to children to whom they have no legitimate rights, while the custody case winds its way through the legal system, they can collect and retain tens of thousands of dollars in money they were never entitled to receive. This is certainly not the message this Court should send. Id. ¶ 18 Foremost, we disagree with the proposition that our decision will encourage support payors to avoid their support obligations during the pendency of the appeal. Apart from a parent's moral obligation to support his/her own children, Appellant acknowledges that, if he had acted in defiance of the existing order, "he would have been subjected to numerous enforcement provisions, including attachment of his assets, civil contempt of court proceedings, entry of a judgment that could be enforced against his real or personal property, and incarceration." Appellant's Brief, at 12, citing Pa.R.C.P. 1910.23, 1910.24, 1910.25, 1910.25-5. Furthermore, we reject the contention that our action will persuade gestational carriers to take custody of children so they can collect and retain support money. As discussed supra, this argument is premised on the notion that the gestational carrier is the actual beneficiary of the support dollars. Also, as our Court has clarified that a gestational carrier, who acts in defiance of the parent's wishes, lacks standing to seek custody, see J.F., supra, we suspect that fewer gestational carriers in this Commonwealth will be placed in the position of caring for the children. For all of the foregoing reasons, Appellant's second issue fails. ¶ 19 Order affirmed. Jurisdiction relinquished. ¶ 20 LALLY-GREEN, J., files a Concurring Statement. CONCURRING STATEMENT BY LALLY-GREEN, J.: ¶ 1 "While the analysis of the esteemed majority is thorough and well-reasoned, I respectfully concur. ¶ 2 This case involves a third party gestational carrier, Appellee, who unilaterally took triplets home from the hospital after their birth in flagrant defiance of the wishes of Appellant, the biological father. Following extensive litigation over custody, the trial court initially ordered shared legal custody of the children, primary physical custody to the gestational carrier, and child support. In an appeal from that order, this Court held that the gestational carrier lacked standing to pursue custody or child support and vacated the orders. J.F. v. D.B., 897 A.2d 1261 (Pa.Super.2006). ¶ 3 Appellant then filed a complaint seeking to recover all child support payments he made to Appellee pursuant to the vacated order. The trial court denied Appellant's motion for restitution. The esteemed majority would affirm because the support payments Appellant made satisfied Appellant's legal and moral duty as a parent to provide financial support for his children. The majority reasoned that, regardless of the void support order, Appellant had a duty to support the triplets and, therefore, he could not recover the support he had paid pursuant to the vacated support order. ¶ 4 Appellant argues that he has no duty to support the children under the void *724 (vacated) support order.[2] I agree. Yet, I also agree with the majority that Appellant has a moral and a statutory duty to reasonably support his children. ¶ 5 Thus, the question becomes what is the reasonable amount of support in unique circumstances such as these when no authority existed for the original support order. Appellant claims he is entitled to a reimbursement of the whole amount he had paid in support to Appellee. He does not argue that he paid an unreasonable amount in support. He does not argue that Appellee improperly used the support monies and should reimburse Appellant for the amount of improper use. ¶ 6 The majority is correct that Appellant is not entitled to a return of the entire amount. On the other hand, a claim of "unreasonableness" or "inappropriate use" should be permitted in circumstances such as these should the facts support such claims. Here, Appellant points to no such facts that would support such claims. ¶ 7 For the foregoing reasons, I respectfully concur. NOTES [*] Retired Senior Judge assigned to The Superior Court. [1] The certified record does not contain any evidence that Appellee and/or her husband misallocated the support payments. Although Appellant mentions that Appellee "provided no accounting, no receipts, [and] no testimony" to demonstrate that she used the money to support the children, see Appellants Brief, at 18, Appellant has not cited any case law in support of his assertion that Appellee bore this burden. [2] The cases that deal with a parent seeking reimbursement for child support payments made pursuant to a vacated order do not involve an improper taking of the father's children by a surrogate. Here, the surrogate mother took the triplets without parental or legal or judicial authorization. In a sense, she kidnapped them. The court had no authority to issue those orders and, thus, they were void. Thus, the case law that might apply in other vacated support order cases does not apply here: Likewise, the applicability of the Divorce Code to this situation is in doubt, since Appellant and Appellee were never married and never held themselves out as being married.

Case: 15-10845 Date Filed: 06/14/2016 Page: 1 of 24 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-10845 ________________________ D.C. Docket No. 9:13-cv-80605-KLR TODD PIOCH, Plaintiff - Counter Defendant - Appellee Cross Appellant, versus IBEX ENGINEERING SERVICES, INC., a Florida profit corporation, Defendant - Counter Claimant - Appellant Cross Appellee. ________________________ Appeals from the United States District Court for the Southern District of Florida ________________________ (June 14, 2016) Before MARCUS, JORDAN, and WALKER, ∗ Circuit Judges. ∗ Honorable John M. Walker, Jr., Circuit Judge for the United States Court of Appeals for the Second Circuit, sitting by designation.  Case: 15-10845 Date Filed: 06/14/2016 Page: 2 of 24 JORDAN, Circuit Judge: The Fair Labor Standards Act, 29 U.S.C. § 201 et seq., generally requires employers to pay minimum wages and overtime compensation to their employees, but some employees are exempt from its coverage. The exemption at issue in this appeal—the so-called computer employee exemption—provides that the FLSA does not cover an hourly computer software engineer who performs certain duties and who “is compensated at a rate of not less than $27.63 an hour.” 29 U.S.C. § 213(a)(17). The main question we address is whether an hourly computer employee who is otherwise exempt under § 213(a)(17) becomes “non-exempt” during his last three weeks of work if the employer withholds his final paycheck. We conclude that the answer to that question is no, and therefore affirm the district court’s dismissal of the employee’s FLSA claim. We also hold, however, that the district court erred in granting summary judgment to the employee on the employer’s state-law counterclaim for unjust enrichment. I For almost 10 years, Todd Pioch worked for IBEX Engineering Services as a computer software and hardware engineer. IBEX hired Mr. Pioch because of his extensive computer skills and software experience and paid him on an hourly basis at a starting rate of $50 and a final rate of $85.40 per hour. Like many hourly employees, Mr. Pioch’s hours varied from week to week. Mr. Pioch regularly 2  Case: 15-10845 Date Filed: 06/14/2016 Page: 3 of 24 worked over 40 hours in a workweek and was paid his regular hourly rate, but not overtime, for the extra hours. From 2003 to 2004, Mr. Pioch worked for IBEX in Nevada. During this time, Mr. Pioch lived with his girlfriend in a home on Bow Creek Court in Las Vegas. In early 2005, Mr. Pioch accepted an offer from IBEX to work with one of its clients, Florida Power and Light, in Juno Beach, Florida. The offer letter explained that Mr. Pioch would be eligible for a per diem allowance for travel to and from work. Significantly, however, IBEX’s per diem policy applied only to employees residing more than 50 miles from their workplace. After his transfer, Mr. Pioch purchased a home in West Palm Beach, Florida, and that home was within 50 miles of FPL’s Juno Beach facility. During his assignment with FPL in Florida, Mr. Pioch worked on 49 separate projects and his duties were similar for each of the projects—testing, verifying, and validating computer software and hardware for the company. Mr. Pioch received per diem payments from IBEX from the time of his 2005 transfer from Nevada through 2013. In 2012, FPL conducted an audit on several engineers, including Mr. Pioch, who were collecting per diem payments. The FPL audit raised concerns about Mr. Pioch’s per diem payments from 2005 through 2009—a four-year period for which 3  Case: 15-10845 Date Filed: 06/14/2016 Page: 4 of 24 Mr. Pioch admitted that he listed the Bow Creek Court home in Las Vegas (rather than his West Palm Beach home) as his permanent address.1 Following his resignation from IBEX in 2013, Mr. Pioch sued the company under the FLSA, asserting minimum wage and overtime claims. See 29 U.S.C. §§ 206, 207. IBEX admitted that it had withheld Mr. Pioch’s final three weeks of pay as a result of the FPL audit and its belief that Mr. Pioch had improperly collected $147,230 in per diem payments. In response to Mr. Pioch’s FLSA claims, IBEX raised as an affirmative defense that Mr. Pioch was an exempt employee under the Act. IBEX also asserted state-law counterclaims for fraud and unjust enrichment relating to the disputed per diem payments. Following discovery, IBEX moved for summary judgment on Mr. Pioch’s FLSA claims, arguing that he was an exempt hourly computer employee under 29 U.S.C. § 213(a)(17). Mr. Pioch opposed IBEX’s motion and moved for summary judgment himself on IBEX’s counterclaim for unjust enrichment and for partial summary judgment on the unpaid wages for his final three weeks of work, which totaled $13,367.20. The district court heard arguments on the parties’ cross-motions for summary judgment and ruled (1) that the undisputed facts established that Mr. 1 From 2009 to 2013, Mr. Pioch listed his West Palm Beach home as his permanent address, and worked in another facility in Port St. Lucie that was more than 50 miles from that home. That time period, therefore, is not relevant to IBEX’s counterclaim for unjust enrichment. 4  Case: 15-10845 Date Filed: 06/14/2016 Page: 5 of 24 Pioch was exempt from FLSA coverage as a matter of law under § 213(a)(17); and (2) that IBEX’s unjust enrichment counterclaim failed because Mr. Pioch’s per diem payments constituted wages that are not recoverable by an employee in an FLSA action.2 Both parties appealed. In its appeal, IBEX challenges the district court’s grant of summary judgment in favor of Mr. Pioch on its state-law counterclaim for unjust enrichment. IBEX maintains that its counterclaim is not barred by the FLSA, and that the district court should have at most declined to exercise supplemental jurisdiction. In his cross-appeal, Mr. Pioch argues that IBEX’s withholding of his final paycheck rendered him non-exempt during his last three weeks of work, thereby entitling him to $13,367.20 under the FLSA. II We conduct plenary review of a district court’s summary judgment order, viewing the record and drawing all factual inferences in the light most favorable to the non-moving party. See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014). Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 2 Mr. Pioch did not move for summary judgment on IBEX’s fraud counterclaim. The district court ultimately granted Mr. Pioch’s motion to dismiss that counterclaim, declining to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c). 5  Case: 15-10845 Date Filed: 06/14/2016 Page: 6 of 24 477 U.S. 317, 322 (1986). “If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks and citations omitted). III Congress enacted the FLSA in 1938 as a remedial scheme designed to address “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202. As a part of President Roosevelt’s New Deal and its emphasis on economic recovery, the FLSA was designed to eliminate substandard labor conditions in part by imposing a minimum wage and requiring overtime pay for employees. See 29 U.S.C. §§ 206, 207; ELLEN C. KEARNS ET AL., THE FAIR LABOR STANDARDS ACT 1-12 (3d ed. 2015). “In other words, the [Act] was designed to aid the unprotected, unorganized, and lowest paid of the nation’s working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir. 2004) (internal quotation marks and citation omitted). The FLSA imposes a minimum wage for covered employees and requires employers to pay overtime of at least one and one-half times the regular rate to employees working more than 40 hours a week. See 29 U.S.C. §§ 206, 207(a)(1). 6  Case: 15-10845 Date Filed: 06/14/2016 Page: 7 of 24 Congress, however, removed certain employees from FLSA coverage. See generally 29 U.S.C. § 213. Whether an employee meets the criteria for an FLSA exemption, although based on the underlying facts, is ultimately a legal question. See Evans v. McClain of Ga., Inc., 131 F.3d 957, 965–66 (11th Cir. 1997). The employer bears the burden of establishing that an employee is exempt, and we construe exemptions narrowly against the employer. See id. at 965. The Supreme Court has cautioned that “extend[ing] an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.” A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945). A We begin with the text of the FLSA and its corresponding regulations. Computer employees may be exempt from the minimum wage and overtime compensation requirements under two different provisions of the Act. See 29 C.F.R. § 541.400(a) (explaining eligibility for exemption under 29 U.S.C. § 213(a)(1) or 29 U.S.C. § 213(a)(17)). Originally, computer employees were analyzed generally under § 213(a)(1). But in 1996, Congress enacted a more specific exemption in § 213(a)(17) which clarified the “duties” requirements by codifying most of the regulatory language for computer employees. See Pub. L. 7  Case: 15-10845 Date Filed: 06/14/2016 Page: 8 of 24 No. 104-188, § 2105, 110 Stat. 1755, 1929 (1996); KEARNS ET AL., THE FAIR LABOR STANDARDS ACT, at 5-145. The more specific exemption applies to computer employees who perform certain duties, and “in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour.” § 213(a)(17)(A)- (D). In 2004, the Department of Labor tried to simplify the exemptions for computer employees by placing them into one regulatory provision. See 29 C.F.R. § 541.400(b). See also Bergquist v. Fid. Info. Servs., Inc., 399 F. Supp. 2d 1320, 1329–30 (M.D. Fla. 2005) (providing an in-depth analysis of the pre-2004 and post-2004 regulations), aff’d, 197 F. App’x 813 (11th Cir. 2006). As revised, the regulations create an interesting scenario. Although a computer employee is evaluated under two different FLSA statutory exemptions, only one of those statutory provisions, § 213(a)(1), grants the Secretary of Labor authority to promulgate regulations on its application. As a result, we have little regulatory guidance for interpreting the more specific exemption for hourly employees under § 213(a)(17). See 69 Fed. Reg. 22,122, 22,159 (Apr. 23, 2004) (to be codified at 29 C.F.R. pt. 541 and recognizing that § 213(a)(17) has a “unique legislative and regulatory history”). In applying the FLSA’s computer employee exemption to Mr. Pioch, an hourly employee, the district court was presented with evidence establishing that 8  Case: 15-10845 Date Filed: 06/14/2016 Page: 9 of 24 he met the “duties” requirements under § 213(a)(17)(A)-(C). Though the parties dispute the legal significance of the evidence, they do not dispute the underlying facts that the district court used to determine that Mr. Pioch was exempt. Significantly, Mr. Pioch does not contest the district court’s ruling that he was exempt from FLSA coverage under § 213(a)(17) for the vast majority of his period of employment with IBEX. He argues only that he ceased being exempt during his final three weeks of work because IBEX failed to pay him for those weeks. In other words, Mr. Pioch asserts that even if he was exempt from the FLSA’s overtime compensation requirements, the § 213(a)(17) computer employee exemption does not prevent him from using the FLSA’s minimum wage provision to recover his final three weeks of pay—at his final hourly rate of $85.40 per hour—from IBEX. 3 B The narrow issue, then, is whether an employee—who is paid by the hour and who is generally exempt from the FLSA under the § 213(a)(17) computer employee exemption—can be considered non-exempt during a three-week period for which his employer withheld a final paycheck. This is an issue of first impression in our Circuit and, to our knowledge, in the country. 3 Mr. Pioch does not explain why, if he is seeking minimum wage recovery under the FLSA, he is entitled to recover his hourly rate, which far exceeds the minimum wage. 9  Case: 15-10845 Date Filed: 06/14/2016 Page: 10 of 24 Fortunately, we do not write on a completely blank slate. Three Circuits, including our own, have addressed whether the failure to pay an otherwise-exempt salaried employee during a period of time renders that employee non-exempt for FLSA claims during that time period. See Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843 (6th Cir. 2012); Nicholson v. World Bus. Network, Inc., 105 F.3d 1361 (11th Cir. 1997); Donovan v. Agnew, 712 F.2d 1509 (1st Cir. 1983). In Nicholson, we considered whether two managerial employees, whose employer had failed to pay them their negotiated salaries, could assert both an FLSA claim and a breach of contract claim. See 105 F.3d at 1362–63. In separate findings, the district court and a jury by special verdict had concluded that each employee met the criteria for exempt administrative employees under § 213(a)(1) of the Act. See id. The employees appealed, arguing that the exemption required a minimum weekly salary and that they could not have been exempt as a matter of law “because they never received a dime . . . .” Id. at 1362. As a practical matter, we considered this “an unusual interpretation of the FLSA, one that would convert an entire category of state contract law actions into federal labor suits.” Id. In determining whether the Nicholson employees were paid on a salary basis, as required under the § 213(a)(1) exemption, we looked to what an employee was promised rather than what he actually received. See id. at 1365. We first turned to the plain language of the Department of Labor regulation defining the 10  Case: 15-10845 Date Filed: 06/14/2016 Page: 11 of 24 salary-basis test which, at the time, stated “it must be that ‘under his employment agreement he regularly receives each pay period . . . a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction’ . . . .” See id. (quoting 29 C.F.R. § 541.118(a) (1973)) (emphasis in original). Recognizing that the regulations at the time were “somewhat contradictory and opaque,” we then considered congressional intent. See id. We concluded that focusing on what was owed pursuant to an agreement also reflected “the protective stance toward poorer and powerless workers that Congress took in the FLSA.” Id. Using a hypothetical, we illustrated how following the Nicholson employees’ logic could allow an exempt chief executive officer to assert an FLSA claim—rather than a breach of contract claim—against an employer to recover an unpaid salary. See id. We therefore affirmed the findings that both employees were exempt, as a matter of law, as administrative employees. See id. at 1362. The First Circuit had taken a similar approach in Donovan, which was decided in 1983. In that case, the Secretary of Labor sued an employer for minimum wages and overtime payments under the FLSA on behalf of eight managerial employees. See 712 F.2d at 1510. The parties stipulated that the employees were exempt under § 213(a)(1) until their final two to three weeks. See id. at 1516. The district court considered whether the employees could invoke the FLSA’s minimum wage protections during the time period when their employer 11  Case: 15-10845 Date Filed: 06/14/2016 Page: 12 of 24 failed to pay their salaries (right before closing its plant). See id. at 1510. The district court held that the employer’s nonpayment did not affect the employees’ exempt status. See id. The First Circuit affirmed, reasoning that the employees were guaranteed at least $155 per week, the salary-level requirement at that time under 29 C.F.R. § 541.1(f) (1975), and that no precedent instructed that the FLSA should cover “exempt employees whose contractual salaries are not paid.” Id. at 1517. The rationale of Nicholson and Donovan, if carried over to exempt employees who are paid by the hour, supports the district court’s grant of summary judgment in favor of IBEX on Mr. Pioch’s FLSA minimum wage claim. But Mr. Pioch directs us to the Sixth Circuit’s opinion in Orton, which he says supports his position. In Orton, an executive vice-president sued his employer for wages under the FLSA for a five-month period during which he worked, but was not paid his $125,000 annual salary. See 668 F.3d at 845. The district court concluded that the employee was an exempt salaried employee under § 213(a)(1) who had “no claim under the FLSA for back wages.” Id. at 847. Applying the salary-basis test, the district court granted the employer’s motion to dismiss because the employee failed to establish that his “base salary was subject to reduction because of variations in the quality or quantity of the work performed [and] . . . [t]he 12  Case: 15-10845 Date Filed: 06/14/2016 Page: 13 of 24 withholding of compensation for several months, if true, would be insufficient . . . to convert a position from salary to hourly.” Id. at 846. The Sixth Circuit in Orton reversed the district court’s ruling for two reasons. First, the district court’s holding rested on outdated, pre-2004 Department of Labor regulations, and “employment agreements are no longer the relevant starting point for whether an employee is paid on a salary basis.” Id. at 848 (distinguishing our analysis in Nicholson by examining the revised regulations defining the salary-basis test). Second, the district court had improperly placed the burden on the employee, rather than the employer, to establish the exemption. See id. Notably, the Sixth Circuit clarified that it “review[ed] only the district court’s conclusions on the salary-basis test.” Id. at 847. Like Nicholson and Donovan, Orton dealt with employees paid on a salary basis. But Orton, as we explain, does not help Mr. Pioch here. We agree with the Sixth Circuit and Mr. Pioch that the removal of the phrase “under his employment agreement” in the revised Department of Labor regulations cuts against our interpretation of the salary-basis test in Nicholson and the First Circuit’s similar interpretation in Donovan. The salary-basis test, however, is just one of three tests for analyzing a salaried employee’s exempt status under § 213(a)(1). The current relevant Department of Labor regulations for this provision are found in 29 C.F.R. § 541.100 et seq., and each one requires (1) a salary-level 13  Case: 15-10845 Date Filed: 06/14/2016 Page: 14 of 24 test; (2) a salary-basis test; and (3) a “duties” test. See 29 C.F.R. §§ 541.600, 541.602, 541.700. “Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Because there is no test like the salary-basis test for hourly computer employees under § 213(a)(17)—the exemption at issue here—Orton is of limited assistance. C For almost 10 years, Mr. Pioch’s hourly rate was higher—two to three times higher—than the $27.63 hourly rate required for exemption under § 213(a)(17)(D). Mr. Pioch nonetheless argues that he was not exempt during his final three weeks because he was not paid at all. We disagree. Outside of the salary-basis test context, Nicholson and Donovan provide some guidance for interpreting Congress’ intent for the FLSA and its exemptions for highly paid employees. Like the salaried employees in Donovan, Mr. Pioch has failed to provide us with a compelling reason to hold that his exempt status under the FLSA terminated during the three-week period that IBEX did not pay him. The FLSA, after all, is not a vehicle for litigating breach of contract disputes between employers and employees. See Donovan, 712 F.2d at 1517 (declining to extend Congress’ FLSA protection “to highly salaried employees whenever their employment contracts are breached”). And we do not think that Orton completely 14  Case: 15-10845 Date Filed: 06/14/2016 Page: 15 of 24 undermines our analysis of the FLSA in Nicholson. We continue to believe that “[t]o read the FLSA blindly, without appreciation for the social goals Congress sought, would also do violence to the FLSA’s spirit.” Nicholson, 105 F.3d at 1364. See also Gregory v. First Title Of Am., Inc., 555 F.3d 1300, 1307 (11th Cir. 2009) (applying the FLSA’s outside salesman exemption and recognizing the difficulty of “narrowly constru[ing] the exemption without diminishing the spirit of its parent legislation”). What Mr. Pioch is essentially trying to do is assert a state-law breach of contract claim, for his agreed-to hourly rate, through the FLSA. Another way of thinking about this scenario is to follow the lead of Orton and look only to what Mr. Pioch was paid until his final three weeks. During his employment with IBEX, Mr. Pioch’s starting rate was $50 per hour and his final rate was $85.40 per hour. Setting overtime considerations aside, Mr. Pioch’s final hourly rate amounted to $3,416 for a 40-hour work week. That weekly amount knocks the statutory minimum of $455 per week for salaried employees out of the park. See 29 C.F.R. § 541.400(b) (providing salary level for a § 213(a)(1) exempt employee). Moreover, it is three times higher than the $1,105.20 an exempt hourly computer employee would make working 40 hours while receiving the statutory minimum of $27.63 per hour. See § 213(a)(17)(D). Mr. Pioch presented evidence to the district court about his hourly earnings before his final three weeks with IBEX, and that evidence shows he made over 15  Case: 15-10845 Date Filed: 06/14/2016 Page: 16 of 24 $180,000 during his last year of work. We recognize that the FLSA is generally applied on a weekly basis, but the Department of Labor has discussed a benchmark for yearly salaries calculated for 40-hour workweeks. Salaried computer employees under the § 213(a)(1) exemption must make at least $23,660 per year. See 69 Fed. Reg. 22,122, 22,123 (Apr. 23, 2004) (to be codified at 29 C.F.R. pt. 541). Hourly computer employees under § 213(a)(17) working 40 hours will make at least $57,470 per year based on the statutory minimum. See id. at 22,164 n.12. Again, even without receiving his final three weeks of pay, Mr. Pioch’s earnings for his final year are well above the benchmark salaries contemplated for both salaried and hourly exempt computer employees under the FLSA. We find some support for our position in the Supreme Court’s decision in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012). In Christopher, two pharmaceutical sales representatives sued under the FLSA for overtime compensation, and their employer argued that they were exempt as “outside salesmen” under § 213(a)(1). Id. at 2164. Like salaried computer employees, outside salesmen are grouped into the more general § 213(a)(1) exemption to the FLSA. Much of the Court’s rationale in Christopher is inapplicable here, but because computer employees are analyzed under both § 213(a)(1) and § 213(a)(17), we find the Christopher majority’s brief discussion of the purpose of the § 213(a)(1) exemption persuasive. See 132 S. Ct. at 2173. 16  Case: 15-10845 Date Filed: 06/14/2016 Page: 17 of 24 The Supreme Court recognized in Christopher that the § 213(a)(1) “exemption is premised on the belief that exempt employees ‘typically earned salaries well above the minimum wage’ and enjoyed other benefits that ‘se[t] them apart from the nonexempt workers entitled to overtime pay.’” Id. at 2173 (citing the Preamble to the Department of Labor’s pt. 541 regulations). The Court reasoned that the salaried employees in Christopher—“each of whom earned an average of more than $70,000 per year and spent between 10 and 20 hours outside normal business hours each week performing work related to . . . his assigned sales territory—[were] hardly the kind of employees that the FLSA was intended to protect.” Id. at 2173. IBEX paid Mr. Pioch hourly rates that were considerably higher than both the § 206(a)(1) minimum wage of $7.25 per hour and the hourly rate that Congress expressly requires under § 213(a)(17)(D) to qualify as exempt. See KEARNS ET AL., THE FAIR LABOR STANDARDS ACT, at 5-145 (noting that Congress froze the exemption hourly rate at $27.63 per hour in 1996). As the Supreme Court reasoned in Christopher (when it considered employees earning more than $70,000 per year), we do not believe that Mr. Pioch, a highly-paid hourly employee typically earning over six figures a year, is the type of employee that the FLSA’s wage requirements were designed to protect. Mr. Pioch therefore cannot use the FLSA as the vehicle for recovery of his hourly salary. We agree with the district 17  Case: 15-10845 Date Filed: 06/14/2016 Page: 18 of 24 court that an hourly computer employee’s exempt status under § 213(a)(17) does not evaporate simply because the employer withholds a final paycheck. IV Despite holding that Mr. Pioch was exempt under (and therefore not covered by) the FLSA, the district court ruled that IBEX’s unjust enrichment counterclaim failed on the merits as a matter of law because it was really a claim for wages that are not recoverable by an employer in an FLSA action. The district court acknowledged (and Mr. Pioch conceded) that IBEX presented evidence that Mr. Pioch improperly collected $147,230 in per diem payments by misleading IBEX for a number of years about the location of his permanent residence. This evidence would likely have been sufficient to get the unjust enrichment claim to a jury. See generally Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090, 1100 (Fla. 3d DCA 2014) (“The elements of a claim for unjust enrichment are: (1) plaintiff conferred a benefit on the defendant; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.”). IBEX argues that, after concluding that Mr. Pioch was exempt from the FLSA, the district court should have (at most) dismissed its state-law counterclaim for unjust enrichment without prejudice under 28 U.S.C. § 1367(c). We agree with IBEX. 18  Case: 15-10845 Date Filed: 06/14/2016 Page: 19 of 24 A We start with the district court’s holding that Mr. Pioch’s per diem payments were “wages” that are not recoverable by an employer in an FLSA action. The district court first looked to whether the disputed per diem payments were wages by examining federal law and the facts presented by the parties at summary judgment. After ruling that Mr. Pioch’s per diem payments were indeed wages, the district court, relying on Gagnon v. United Technologies, Inc., 607 F.3d 1036 (5th Cir. 2010), reasoned that an employer is not permitted to assert counterclaims to recover “wages” from its employee in an FLSA case.4 As an initial matter, the district court did not account for the fact that Mr. Pioch no longer had viable claims under the FLSA. The district court ruled— correctly, as we now hold—that Mr. Pioch was exempt from the FLSA’s coverage. As IBEX aptly points out, Mr. Pioch was not entitled to FLSA wages paid “free and clear” because he was exempt. See Arriaga v. Fla. Pac. Farms, LLC, 305 F.3d 1228, 1235 (11th Cir. 2002) (explaining that FLSA wages must be paid “free and clear” of improper deductions under 29 C.F.R. § 531.35). And if Mr. Pioch was not entitled to recover anything under the FLSA, it is not clear to us why IBEX’s unjust enrichment counterclaim would be barred. 4 The district court did not rule, as Mr. Pioch had argued, that IBEX’s unjust enrichment counterclaim was barred by Florida’s two-year statute of limitations under Fla. Stat. § 95.11(4)(c). 19  Case: 15-10845 Date Filed: 06/14/2016 Page: 20 of 24 We recognize that some courts, including our own, have been hesitant to allow employers to assert state-law counterclaims against employees in FLSA cases. See, e.g., Martin v. PepsiAmericas, Inc., 628 F.3d 738, 743 (5th Cir. 2010); Donovan v. Pointon, 717 F.2d 1320, 1323 (10th Cir. 1983); Brennan v. Heard, 491 F.2d 1, 4 (5th Cir. 1974), abrogated on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988). In Brennan, for example, the former Fifth Circuit reasoned that “[t]he only economic feud contemplated by the FLSA involves the employer’s obedience to minimum wage and overtime standards [and that] [t]o clutter [FLSA] proceedings with the minutiae of other employer- employee relationships would be antithetical to the purpose of the Act.” Brennan, 491 F.2d at 4. Similarly, the Tenth Circuit ruled in Pointon that an employer could not set-off its employee’s FLSA recovery through a counterclaim (though it could sue the employee in state court) because that would delay and interfere with the process of bringing the employer into compliance with the FLSA’s overtime requirements. See Pointon, 717 F.2d at 1323. The current Fifth Circuit later recognized an employer’s ability to set-off an employee’s recovery in FLSA cases, but narrowed set-off recovery to money “[that] can be considered wages that the employer pre-paid to the plaintiff- employee.” Martin, 628 F.3d at 742. Cf. Singer v. City of Waco, 324 F.3d 813, 828 n.9 (5th Cir. 2003) (interpreting Brennan and clarifying that an employer’s set- 20  Case: 15-10845 Date Filed: 06/14/2016 Page: 21 of 24 off recovery cannot cause an employee’s FLSA recovery to fall below the statutory minimum wage). It does not seem to us, however, that those concerns carry over to a situation like the one here where an employee is exempt from the FLSA’s coverage and therefore cannot recover anything under the Act. We also think that the district court’s reliance on the Fifth Circuit’s decision in Gagnon was misplaced, as that case is both factually distinguishable and legally insufficient to answer the question posed here. In Gagnon, a skilled aircraft painter was paid an hourly rate of $5.50 per hour, an overtime rate of $20 per hour, and a “per diem” rate of $12.50 per hour. See Gagnon, 607 F.3d at 1039. He sued his employer under the FLSA, alleging that the payment scheme reduced the amount of overtime compensation he should have received. See id. at 1040. The district court ruled in favor of the painter, concluding that the “per diem” should have been included in his regular rate of pay for purposes of calculating overtime compensation. See id. at 1040–41. The painter’s per diem payments were troubling because they were paid hourly, bore no rational relationship to living or travel expenses, and the combined regular rate and per diem payments was suspiciously close to the “prevailing wage for similarly skilled craftsmen.” See id. at 1039–41. The Fifth Circuit reasoned that the employer manipulated the overtime rate of the painter by designating a portion of his “wages as ‘straight time’ and a portion as ‘per diem.’” Id. at 1041. 21  Case: 15-10845 Date Filed: 06/14/2016 Page: 22 of 24 On those facts, the Fifth Circuit ruled that the employee’s hourly per diem payments were part of “his regular rate for the purpose of determining overtime pay due under the FLSA.” Id. at 1042. The employer in Gagnon asserted counterclaims for breach of contract and fraud against the employee and challenged the per diem it had paid “[because] he lived less than ten miles from the worksite.” Id. at 1041–42. Significantly, however, the district court in Gagnon did not address the employer’s state-law counterclaims. See id. at 1042–43. The Fifth Circuit affirmed the district court’s decision not to address the counterclaims, but it went a step further, stating that its conclusion that “the hourly per diem wages must be included in base pay would seem to eviscerate” the employer’s breach of contract and fraud counterclaims. Id. at 1042. This language in Gagnon does not mean that IBEX’s counterclaim was legally barred in a case where no FLSA claim remained. Unlike the painter in Gagnon, who had a viable FLSA overtime claim, Mr. Pioch was exempt from FLSA overtime protection and was paid a set daily amount (the per diem) that reflected his expected expenses for distant travel. Mr. Pioch’s per diem payments also did not change based on the hours he worked, and there is no concern here that IBEX used per diem payments to avoid paying overtime. Mr. Pioch fails to explain how, in light of these factual differences, Gagnon requires dismissal, on the merits, of IBEX’s unjust enrichment counterclaim. We therefore 22  Case: 15-10845 Date Filed: 06/14/2016 Page: 23 of 24 hold that, if an employee who sues under the FLSA is not covered by (or is exempt under) the Act, there is no bar to the employer asserting a state-law counterclaim against the employee. B If there is a valid merit-based ground for ruling in favor of Mr. Pioch on IBEX’s unjust enrichment counterclaim, we can of course affirm. See, e.g., Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012) (noting that we can affirm a grant of summary judgment on any ground supported by the record, including grounds on which the district court did not rely). Mr. Pioch argues that, under Florida law, IBEX’s counterclaim was time-barred under Fla. Stat. § 95.11(4)(c) (imposing a two-year statute of limitations for actions “to recover wages or overtime or damages or penalties concerning payment of wages and overtime”). The district court acknowledged that Mr. Pioch had made this argument, but it did not base its summary-judgment ruling on statute of limitations grounds. We exercise our discretion and decline to decide whether IBEX sought to recover “wages” from Mr. Pioch as that term is defined under Florida law. On remand, we note that the district court has two options. The district court can decline to exercise supplemental jurisdiction over the unjust enrichment counterclaim (as it did with respect to IBEX’s fraud counterclaim). Or it can 23  Case: 15-10845 Date Filed: 06/14/2016 Page: 24 of 24 decide, in the first instance, whether IBEX’s attempt to recover per diem payments was unequivocally a claim to recover wages that is now time-barred under Florida law. 5 V We affirm the district court’s grant of summary judgment in favor of IBEX as to Mr. Pioch’s FLSA claim, and reverse the entry of summary judgment in favor of Mr. Pioch as to IBEX’s state-law counterclaim for unjust enrichment. The case is remanded to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 5 Mr. Pioch contends that “any claim for wages—no matter the legal theory under which it is brought—is subject to the [two-year] statute of limitations under what is now [§] 95.11(4)(c).” Appellee’s Reply Br. at 4. But the two cases cited by Mr. Pioch in support of this argument involve an employee’s attempt to recover wages from an employer. See Blackburn v. Bartsocas, 978 So. 2d 820, 821–22 (Fla. 4th DCA 2008) (reversing jury verdict in favor of employee on unjust enrichment claim because it was actually a claim for wages); Ultimate Makeover Salon & Spa, Inc. v. DiFrancesco, 41 So. 3d 335, 337 (Fla. 4th DCA 2010) (discussing the trial court’s determination that the employee’s claims, including one for unjust enrichment, were wage claims). 24 

Order filed June 26, 2015. In The Fourteenth Court of Appeals ____________ NO. 14-15-00440-CV ____________ IN THE INTEREST OF N.N.F., A CHILD On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2013-06707J ORDER This is an accelerated appeal from a judgment in a suit in which the termination of the parent-child relationship is at issue. Appellant's brief was due June 22, 2015. No brief has been filed. Appeals in parental termination cases and child protection cases are to be brought to final disposition within 180 days of the date the notice of appeal is filed. See Tex. R. Jud. Admin. 6.2(a) (effective May 1, 2012). This accelerated schedule requires greater compliance with briefing deadlines. Therefore we order appellant’s appointed counsel Lana Shadwick, to file appellant’s brief no later than July 9, 2015. If the brief is not filed by that date, counsel may be required to show cause why he should not be held in contempt of court. In addition, the court may require appointment of new counsel due to the failure to timely file appellant’s brief. PER CURIAM 

653 F.2d 99 Kim Lee HUBBARD, Appellant,v.Glen R. JEFFES, Superintendent of S.C.I. at Dallas andAttorney General of Commonwealth of Pa., Appellees. No. 80-1369. United States Court of Appeals,Third Circuit. Argued Oct. 17, 1980.Decided July 7, 1981. Richard S. Watt, Haverford, Pa., (Argued), Gerber, Gerber & Shields, Norristown, Pa., Peter T. Campana, Williamsport, Pa., for appellant. Robert F. Banks (Argued), First Asst. Dist. Atty., Kenneth D. Brown, Dist. Atty., Williamsport, Pa., for appellees. Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. 1 Kim Lee Hubbard appeals from a denial of his petition for federal habeas corpus. He was convicted in the Lycoming County Court of Common Pleas, Criminal Division, of second degree murder. The Pennsylvania Supreme Court twice upheld the conviction, after direct appeals in which Hubbard contended that the admission of certain evidence transgressed his Fourth Amendment rights, that the evidence at trial was insufficient to support the conviction, and that his trial and post-trial counsel had been ineffective.1 Hubbard once again advances these contentions in the current petition. Specifically, he claims that because the police neglected to read him the Miranda warnings before requesting the items, he did not voluntarily consent to the seizure of his boots and car. Thus, he argues, the admission of evidence obtained from this "seizure" violated the standards of voluntariness required by the Fourth Amendment.2 Additionally, Hubbard asserts that his trial counsel was ineffective in failing to make a timely suppression motion and in not interposing objections to allegedly inflammatory closing remarks by the prosecutor. Finally, Hubbard challenges the assistance rendered by post-trial counsel on the ground that he did not raise in post-trial motions the issue of trial counsel's performance. 2 We conclude that the state court afforded Hubbard an adequate opportunity to present his Fourth Amendment claim, and that his other contentions are without merit. Accordingly, we affirm the district court's denial of the habeas petition. I. 3 The following facts were adduced in the state court. Jennifer Hill, a twelve-year-old friend of Hubbard's sister, spent the night of October 18, 1973 at the Hubbard home. She was last seen alive at approximately 4:30 on the afternoon of October 19, shortly after leaving the Hubbard residence, entering a metallic green car. Her body was found ten days later in a nearby cornfield. An autopsy identified the cause of death as manual strangulation, and placed the time of death between 4:30 and 8:00 p. m. on October 19. A search of the cornfield revealed a boot-heel mark under the victim's body, and two tire marks embedded in a mound of clay near the entrance to the field. 4 On October 31, two police officers and the district attorney went to the Hubbard residence to question members of the family. No family member was a suspect at the time. Mrs. Hubbard called the school where her son was a student and asked that he return home. When he arrived at the Hubbard home, the officers requested him to wait in another room until they finished speaking with his parents. According to petitioner's testimony, the police then questioned him for approximately thirty to forty-five minutes out of his parents' presence. Hubbard testified that he was not fearful during this questioning, and that he voluntarily cooperated with the police. He also stated at trial that the officers told him he was free to leave the room or to end the questioning at any time. 5 The officers then asked Hubbard if he owned a pair of boots and a car. Hubbard responded affirmatively and the police asked permission to inspect and to retain possession of these items. The state court found that "it was the uncontradicted testimony of the officers that they twice advised Hubbard that he had a right to refuse to consent to the requested inspection." 472 Pa. 259, 372 A.2d 687, 694 (1977). Hubbard nevertheless turned over his boots and drove one officer back to Borough Hall and surrendered his car to him. 6 Subsequent police investigation revealed that the heel mark under Jennifer Hill's body was made by one of the boots given to the police by Hubbard, and that the tire marks near the scene matched the tires on Hubbard's car. These two items of information became a principal element in the case against Hubbard. 7 At trial, one police officer asserted that Hubbard had been given the Miranda warnings prior to being questioned in his home. However, the other officer, Sgt. Peterson, denied that they read the Miranda rights, because Hubbard "was not a suspect" at the time. Upon hearing Sgt. Peterson's recollection, Hubbard's counsel moved to suppress the physical evidence turned over during the interview at the Hubbard home, arguing that the absence of Miranda warnings had rendered Hubbard's consent involuntary under the Fourth Amendment. In the alternative he moved for a suppression hearing. The trial court denied the motion, ruling that it was not timely under Pa.R.Crim.P. 323(b), which requires motions to suppress evidence to be made before trial. 8 In a post-trial opinion, the trial judge considered the merits of the Fourth Amendment claim. He made a factual finding that Hubbard had "voluntarily surrendered his boots and car for examination." The trial judge then ruled that "Miranda warnings are not a prerequisite to a voluntary surrender of evidence," citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Schneckloth holds that, in distinction to the waiver standards that govern custodial interrogations, a knowing and intelligent waiver of the right to refuse a request to search is not a prerequisite to finding a voluntary consent to a search or seizure. The case indicates, however, that knowledge of the right to refuse consent bears on the question of voluntariness. 9 The Pennsylvania Supreme Court affirmed the denial of the suppression motion. It reiterated that the pre-trial filing requirement of Pa.R.Crim.P. 323(b) permits only two exceptions. Untimely suppression motions are allowed 1) where the opportunity to make an application to suppress did not previously exist, or 2) where "the interests of justice require." 372 A.2d at 693. 10 The Pennsylvania Supreme Court rejected Hubbard's argument that the opportunity to make an application did not exist until his lawyer learned, at trial, that no Miranda warnings had been given at the home. Counsel was aware of all the facts pertaining to the interview, the court reasoned, and he therefore had the opportunity before trial to determine whether a suppression motion was advisable. 11 Reaching the merits, the Pennsylvania Supreme Court then concluded that the interests of justice did not require relaxation of the pre-trial rule in this situation, because Hubbard's constitutional objection was not well-founded. Determining that Hubbard was not in custody at the time, that he was aware of his right to withhold consent, and that his consent was voluntary, the court held that under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Fourth Amendment had not been violated. II. 12 Our latitude in reviewing the state court proceedings is limited. 28 U.S.C. § 2254(d) directs that the factual findings of both the trial court and the Pennsylvania Supreme Court "shall be presumed to be correct." See Sumner v. Mata, --- U.S. ---- 101 S.Ct. 764, 67 L.Ed.2d ---- (U.S.1981). Sumner holds that a habeas petitioner, in order to overcome state court factual determinations, must demonstrate "by convincing evidence" that the state proceeding was inadequate or the determinations clearly erroneous. We may also be precluded by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), from reexamining the merits of Hubbard's Fourth Amendment claim. In Stone v. Powell the Court held that when a state prisoner raises a Fourth Amendment violation in a habeas petition, a federal court may not consider the merits of the claim if the state tribunal had afforded the petitioner "an opportunity for a full and fair litigation" of his claim. Id. at 494, 96 S.Ct. 3052, 49 L.Ed.2d 1067. 13 We agree with the Pennsylvania Supreme Court that Hubbard had a full and fair opportunity to present his claim to the state courts. His counsel was aware of the interview and of the need to make suppression motions before the commencement of trial. He could have reviewed statements Hubbard made to the police that might have acknowledged receipt of the warnings. He could have questioned Hubbard or his parents about whether Miranda warnings were given. Counsel had all the resources at his command to investigate and present a Fourth Amendment claim at the proper time. The failure to do so was not brought about by any restriction of the opportunity by the state courts. 14 An additional reason supports the conclusion that Hubbard enjoyed the opportunity contemplated in Stone v. Powell. Despite denying the request to conduct a suppression hearing in the middle of the trial, the trial court permitted counsel to explore at trial the questions of Hubbard's custody and the voluntariness of his consent to the seizure. Moreover, the Supreme Court in Schneckloth v. Bustamonte, supra, declared that the voluntariness of consent to a search is a factual question to be determined from the particular circumstances. The trial judge specifically found that Hubbard had voluntarily relinquished his boots and car. Since Hubbard has offered no evidence to demonstrate that the findings were clearly erroneous or that the state proceedings amounted to a denial of due process, the Supreme Court's decision in Sumner v. Mata, supra, makes it clear that we are bound by the finding of voluntariness. 15 In the course of deciding whether the circumstances fell within an exception to Pa.R.Crim.P. 323(b), the Pennsylvania Supreme Court considered the merits of Hubbard's suppression motion,3 and also held that the failure to give Miranda warnings did not nullify the voluntariness of Hubbard's consent. Under these circumstances, where Hubbard had ample occasion to develop relevant evidence and received a ruling on the merits, he had a full and fair opportunity to advance his Fourth Amendment claim in the state court system. 16 Furthermore, on the merits, Hubbard's Fourth Amendment argument rests on a flawed premise. The absence of Miranda warnings does not vitiate consent to a seizure of personal property, because the Miranda protections are addressed to constitutional rights that are distinct from Fourth Amendment rights. Solicitude for individual privacy is the central thrust of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Privacy rights must be balanced, however, against the interest of the community "in encouraging consent (to a search), for the resulting search may yield necessary evidence of the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense." Schneckloth, supra, 412 U.S. at 243, 93 S.Ct. at 2056. Inasmuch as the integrity of the fact-finding process may be enhanced by admitting evidence recovered from a search or seizure, the Supreme Court has not required a stringent standard for measuring voluntariness in the Fourth Amendment context. As the Court noted in Schneckloth, in refusing to impose the "knowing and intelligent waiver" standard, "almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." 412 U.S. at 237, 93 S.Ct. at 2052. The Miranda rights implicate the reliability of the truth determining process, because they apply in an inherently coercive situation and they protect the right to counsel and the privilege against self-incrimination. Knowledge of the right to be assisted by counsel and to remain silent, however, has little bearing on the voluntariness of a consent to a search. So long as the "waiver" of the right to refuse consent need not be knowing and intelligent, the person whose consent is sought need not be made aware of the full panoply of constitutional protections available to a criminal suspect who is undergoing custodial interrogation. Consequently, the absence of Miranda warnings is not dispositive of whether a person voluntarily consented to a search. III. 17 Hubbard's challenges to the effectiveness of counsel are without merit. The Pennsylvania Supreme Court concluded that trial counsel might have been amiss in not ascertaining the facts that would have formed a predicate for the suppression motion. However, the court held that this did not constitute ineffective assistance, because a timely motion would have been unavailing for the reason that the Fourth Amendment claim was without merit. 372 A.2d at 698. We concur in this conclusion. It follows that post-trial counsel was not ineffective in neglecting to assert trial counsel's alleged mishandling of the suppression motion. IV. 18 We also accept the Pennsylvania court's finding that trial counsel's failure to object to allegedly improper closing comments by the prosecutor "was born of a reasonable, calculated, and apparently successful trial strategy." 402 A.2d at 1001. Trial counsel testified that he anticipated that the prosecutor would become shrill and alienate the jury, thereby diminishing the likelihood that the government would gain a conviction for first degree murder. The course chosen by counsel was reasonably designed to effectuate his client's interests, and indeed, the jury failed to return the verdict urged by the prosecution, and convicted Hubbard only of murder in the second degree. Since trial counsel was not ineffective, a fortiori post-trial counsel did not render inadequate assistance when he declined to raise trial counsel's failure to object to the prosecutor's summation as a ground for post-trial relief. V. 19 For the foregoing reasons, the judgment of the district court dismissing the petition for a writ of habeas corpus will be affirmed. 20 GIBBONS, Circuit Judge, concurring. 21 I would hold that the fifth amendment issue involving the testimonial nature of Kim Lee Hubbard's acknowledgment that the disputed items belonged to him was presented in the state courts and thus proper for our consideration. However, because the majority holds that the fifth amendment issue was not clearly raised in state court, I, too, do not reach this issue at this time. I agree with the majority's disposition of Hubbard's fourth amendment claim, but anticipate seeing this case again. 1 In the first appeal, the Supreme Court vacated the judgment of sentence and remanded for consideration of the effectiveness of appellant's post-trial counsel. 472 Pa. 259, 372 A.2d 687 (1977). Following an evidentiary hearing, the lower court held that post-trial counsel had rendered effective assistance, and reinstated the judgment of sentence. In his second appeal, Hubbard challenged the trial court's finding that counsel had not been ineffective, and the Supreme Court affirmed. 485 Pa. 353, 402 A.2d 999 (1979) 2 Although the alleged failure to give Miranda warnings is an element of Hubbard's argument, this appeal presents only a Fourth Amendment issue concerning the voluntariness of Hubbard's consent. We do not address any Fifth Amendment Miranda problems that may arguably lurk in the record. Hubbard asserted no Fifth Amendment claims in the state court, and the parties did not press such claims in the district court or on this appeal. Moreover, had Hubbard raised a Fifth Amendment claim for the first time in his habeas petition, we could not consider it without a demonstration that he exhausted state court remedies, or in the absence of a showing of cause for the failure to raise the claim below and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) 3 The "lack of opportunity" exception to Rule 323(b) is similar to the Stone v. Powell standard permitting federal courts to review Fourth Amendment claims when the petitioner lacked a full, fair opportunity to air these claims before state tribunals. This parallel substantiates our conclusion that Hubbard had an opportunity, within the meaning of Stone v. Powell, to present his Fourth Amendment claim to the Pennsylvania trial court

ORIGI[{At llntbt@nitt! 9itatts @ourt otftlprul @lufins No. 15-388G Fifed: December2,2015 FILED DEC - 2 ?015 :* * * * ,1. '* :1. * * * * :i * * * * * * i U,S. COURT OF MESSIAH MIZEL, EX REL. KAMAL- FEDERAL CLAIMS JALAL: JAMES, Plaintiff, Pro Se Plaintiff; In Forma PauPeris; v, Lack of Subject Matter Jurisdiction. UNITED STATES, Defendant. * * :1. *,1. * * * :l * * :i * * *,* * * Messiah Aziz El, Ex Rel' Kamal'Jalal: James, pro se, Freehold, NJ' Albert s. larossi, Trial Attorney, commercial Litigation Branch, civil Division, united States Department of Justice, washington, D.C., for defendant. with him were Robert E. Kirschman, Jr., Director, commercial Litigation Branch, and Benjamin c. Mizer, Principal Deputy Assistant Attorney General, civil Division, washington, D.C. ORDER HORN. J. FINDINGS OF FACT filed a complaint2 PIq se plaintiff Messiah Aziz El, "Ex. Rel Kamal-Jalal: James"r in Court of Federal Claims alleging "deprivation of Petitioner's the -UniiJd States 1 The caption for the complaint filed in this court on April 17,2015lists "Messiah Aziz El' Ex. Rel. Kamal-Jalal: James" as the plaintiff. In the first line of the complaint, however, ;Crystat Gabri El, Ex. Rel Crystal-Gabrielle: Hawkins'' is also indicated as a plaintiff' The United onty signature on the complaintwas Messiah Aziz El. Rule 11(a) of the Rules of.the StaleJCourt of Federat Claims (RCFC) (2015) requires every pleading be signed by a farty personally if the party is unrepresented, G1ve1 that neither "Kamal James" nor lCry"tbf GaOri El," if they are two additional individuals, signed the.complaint, this court does not consider eithei as a plaintiff in the above captioned case because they did not comply with RCFC 1 1 (a). Accordingly, Mr. El is considered the only plaintiff in this action. ln its submissions to the court, defe-ndant refers to plaintiff as "Kamal James," which may be his legal name. 2 Plaintiff has filed at least two other complaints in federal court. In March 2013, Mr' El fileJ a complaint in the United States District court for the District of New Jersey, which Constitutional and Internationally secured rights without due process of law" by "the United States through action by the UNITED STATES DISTRICT COURT under U.S.C. 18(United States Code), prohibiting, life, liberty and property of the Petitioner."3 In his complaint, plaintiff alleges that he "is a natural person, in propria persona sui juris, under the laws of the indigenous community Washitaw Dedugdahmoundya Nation State and under the laws of the United States of America Republic," and thus he is "entitled to all protections enumerated within the United States Constitution. Specifically the Fifth Amendment right of due process, to be heard before a court of competent jurisdiction. . . ." As relief, plaintiff seeks "an award of due process under the Fifth Amendment to the Constitution of the United States for the rights reserved by the Petitioner" and "an award of monetary damages under the Fifth Amendment of the Constitution of the United States." Defendant asserts that, in February 2015, plaintiff was convicted of conspiracy to defraud the United States in violation of 18 U.S.C. S 286 (2012), multiple counts of submitting false, fictitious, and fraudulent claims to the United States, and three counts of mail fraud in violation of 18 U.S.C. S 1341 (2012) in the United States District Courtfor the District of New Jersey. Plaintiff does not contest these assertions. The allegations contained in the complaint currently before this court appear to arise from the criminal proceedings involving plaintiffs arrest and eventual conviction. Plaintiff is currently incarcerated in the Monmouth County Correctional Institution in Freehold, New Jersey. Plaintiff's confused and disorganized complaint alleges that the United States violated his Fifth Amendment right to due process by improperly exercising personal and subject matter jurisdiction over him. Plaintiff argues that the United States District Court of the District of New Jersey did not have jurisdiction for several reasons, including that the judges were "defacto" judges "operating under color of law," the United States Supreme Court is the only court with original ju risd iction when the United States is a party, and, "[n]o injured party has been produced and therefore no lawful claim under common- law exists." Plaintiff further argues that his due process rights were violated when he was arrested by agents "acting on a warrant issued by an un-constitutional Judge Defacto. . ."4 Plaintiff argues that the 'UNITED STATES DISTRICT COURT has entered was dismissed for failure to state a claim upon which relief may be granted. See El v. New Jersev, 2:13-cv-01431 (D.N.J. 2013). Shortly thereafter, Mr. El filed another complaint in the same court, which also was dismissed for failure to state a claim upon which relief may be granted. See El v. New Jersev, 2:13-cv-03481 (D.N.J. 2013). 3 Capitalization, grammar, punctuation, emphasis, and other errors are quoted in this Order as they appear in plaintiffs submissions. a To the extent that plaintiff is asserting a claim for false arrest, such a claim alleges a tort, and this court lacks jurisdiction over such claims. See Keene Coro. v. United States, 5OB U.S. 200,214 (1993); Rick's Mushroom Serv., Inc. v. United States,521 F.3d 1338, 1343 (Fed. Cir. 2008) reh'o and reh'q en banc denied (Fed. Cir. 2004), cert. denied' 545 U.S. 1127 (2005); Gadd v. United States,232F.3d 915 (Fed. Cir. 2000); Brown v' United sham pleas of not guilty on behalf of the Petitioner without authorization, trial has commenced and Petitioner has been found guilty through colorable proceedings." Plaintiff contends that he, objected to the Personal and Subject Matter jurisdiction of the UNITED STATES DISTRICT COURT on several occasions throughout these colorable proceedings and all constitutional claims, statements and arguments have been ignored or denied by (defacto) Judges. . . Plaintiff contends that "[t]he UNITED STATES DISTRICT COURT officers, have all intentions on proceeding under color law and disregarding their obligations to the United States Constitution of the Republic and the Petitioner's rights that are secured therein." Plaintiff also alleges that "Defendant has failed to provide the requested oaths of office" that plaintiff requested defendant produce. As relief, plaintiff seeks a judgment from this court: 1. Declaring that the actions of the Defendant in exercising authority under 28 U.S.C. 3231 to prohibit all beneficial uses of the "personal rights" constitute a taking of private property for public use in violation of Petitioner's rights under the Fifth Amendment to the United States Constitution of the Republic. 2. Declaring that the foregoing actions of Defendant under 28 U.S.C. 3231 constitute a deprivation of Petitioner's property without due process of law in violation of Petitioner's rights under the Fifth Amendment to the United States Constitution; 3. awarding Petitioner the amount of $250,000 (silver specie or currency of the UNITED STATES), representing just compensation for these actions of Defendant, as well as reasonable attorney fees, expenses, and all cost ofthese proceedings... Defendant filed a motion to dismiss for lack of subject matter jurisdiction on June 26,2015, to which Plaintiff responded, followed by Defendant filing a reply in support of its motion and a further response by plaintiff. DlscussloN The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 5'19, 520-21 (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings States, 105 F.3d 621, 623 (Fed. Cir.) reh'q denied (Fed. Cir. 1997). The Tucker Act specifically excludes actions sounding in tort from this court's jurisdiction. See 28 U.S.C. S 14e1(aX1) (2012). drafted by lawyers"), reh'q denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Huqhes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429 U.S. 97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Mafthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir.2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff d, 603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t]here is no duty on the part of the trial court to create a claim which [the plaintiffl has not spelled out in his [or her] pleading.""'Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations in original) (quoting Scoqin v. United States,33 Fed. Cl.2B5,293 (1995) (quoting Clark v. Nat'l Travelers Life lns. Co. , 5'18 F .2d 1 167, 1 169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, aff d,443 F. App'x 542 (Fed. Cir.2011); Minehan v. United States, 75 Fed. C|.249,253 (2007). "While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States,93 Fed. Cl. 163, 165 (2010) (citing Huohes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v. United States, 119 Fed. Cl. 133, 139 (2014) ("lwlhile the court may excuse ambiguities in a pro se plaintiffls complaint, the court 'does not excuse [a complaint's] failures."' (quoting Henke v. United States,60 F.3d 795,799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed. Cl. 290,292 (2013) ("Although plaintiff's pleadings are held to a less stringent standard, such leniency 'with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed. Cl. at 253)). It is well established that "'subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived."' Arbauqh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011l'; see also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented."); Hertz Corp. v. Friend, 559 U.S. 77,94 (2010) ("Courts have an independent obligation to determine whether subjeclmatter jurisdiction exists, even when no party challenges it." (citing &Ug-hr-Y-&-H-Q.eIS., 546 U.S. at 514)); Special Devices. Inc. v. OEA. lnc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Druq Stores N.W.. Inc., 918 F 2d 160, 161 (Fed. Cir. 1990)); View Enq'o. lnc. v. RoboticVision Svs.. lnc., 115 F.3d 962' 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy." Sebelius v. Auburn Reo'l Med. Ctr., 133 S. Ct.817,824 (2013); see also Arbauqh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal court lacks subjecf matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cr.2012\ ("An objection to a court's subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv.. lnc. v. United States, 521 F.3d at 1346 ("[A]ny party may challenge, orthe court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506; &,lde[y.,--U-nj!edsta!S, 379 F.3d 1344, 1354 (Fed. Cir.); and Fannino. Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. CL71,76, appeal dismissed,425 F. App'x 902 (Fed. Cr. 2011). ln fact, "[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where . neither party has raised this issue." Metabolite Labs., lnc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods.. lnc. v. Mead Corp., 134 F.3d 1481,1485 (Fed. Cir.), reh'o denied and en banc suqqestion declined (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'q and reh'q en banc denied (Fed. Cir. 2004), cert. qranted in pa1! sub. nom Lab. Coro. of Am. Holdinqs v. Metabolite Labs., lnc., 546 U.S. 975 (2005), cert dismissed as improvidentlv qranted, 548 U.S. 124 (2006); see also Avid ldentification Svs., Inc. v. Crvstal lmport Corp.,603 F.3d 967,971 (Fed. Cir.) ("This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue."), reh'q and reh'q en banc denied, 6'|4 F.3d 1330 (Fed' Cir. 2010), cert. denied, 131 S. Ct.909 (2011). Pursuantto RCFC 8(aX1) and the Federal Rules of civil Procedure, a plaintiff need only state in the complaint "a short and plain statement of the grounds for the court's jurisdiction," and "a short and plain statement of the claim showing that the pleader is entitled to relief." RCFC 8(aX1), (2) (2015): Fed. R. Civ. P. B(a)(1)' (2) (2015); see also Ashcroftv. lqbal,556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v. Twomblv' 550 U.S. sn+, sss-sl ,570 (2007)). "Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed." Hollev v. United states, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'o denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States,97 Fed. C;.203,2O8(2011); Gonzalez-McCaullev lnv. Grp., lnc. v. United states, 93 Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted irfeiences of fact do not suffice to support a claim." Bradlev v. Chiron Corp., 136 F.3d 1317,1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp.' 501 F.3d 1354' 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure S 1286 (3d ed.2004)). "A plaintiffs factual allegations must 'raise a right to relief above the speculative level' and cross 'the line from conceivable to plausible."'Three S Consulting v. United States, 104 Fed. Cl. 510' 523 (2012) (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed. Cir.;, ien;q denieO (Fed. Cir. 2014). As stated in Ashcroft v. lqbal, "[a] pleading,that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' 550 u.s. at 555. Nor does a complaint suffice if it tenders'naked assertion[s]' devoid of 'further factual enhancement."' Ashcroft v. lqbal, 556 U S. at 678 (quoting Egll Atl. Corp. v. Twomblv, 550 U.S. at 555).  The Tucker Act grants jurisdiction to this court as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. S 1a91(aX1). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287, 289-90 (2009); United States v. Mitchell, 463 U.S. 206,216 (1983); see also Greenlee Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en bancdenied (Fed. Cir. 2007), cert. denied, 552 U.S. 11a2 QO08); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999). "Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v. White Mountain Apache Tribe, 537 U.S. 465,472 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. v. United States, 521 F.3d at 1343 ("[P]laintiff must . . . identify a substantive source of law that creates the right to recovery of money damages against the United States."); Golden v. United States, 118 Fed. Cl.764,768 (2014). In Ontario Power Generation, lnc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote: The underlying monetary claims are of three types. . . . First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act's waiver. Second, the Tucker Act's waiver encompasses claims where "the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum." Eastoort S.S. lCorp. v. United States, 178 Ct. Cl. 599,605-06'1 372F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in which 'the Government has the citizen's money in its pocket"' (quoting Clappv. United States,127 Ct. Cl.505, 117 F. Supp.576,580 (1954)... . Third, the Court of Federal Claims has jurisdiction over those claims where "money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007 Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the "particular provision of law relied upon grants the claimant, expressly or by implication, a right to  be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S. 1392,1 401-02 [1976] ("Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation- does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis 'in itself . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly refened to as claims brought under a "money-mandating" statute. Ontario PowerGeneration, Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004); see alsoTwp. of Saddle Brookv. United States, 104 Fed. Cl. 101, 106(2012)' To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon "'can fairly be interpreted as mandating compensation by the Federal Government."' United States v. Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U 5. 392' 400 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v. Mitchell,463 U.S. at 217; Blueport Co., LLC v. United States' 533 F.3d 1374' 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply a1 iurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.9., statutes or contracts)."). "'lf the statute is not money-mandating, the court of Federal claims lacks jurisdiction, and the dismissal should be for lack of subject matter lurisdiction."' Jan's Helicopter serv., lnc. v. Fed. AviationAdmin.,52S F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee.Cjtlv'-Ariz. v. United States, 487 F .3d at 876); Fisher v. United States , 402 F .3d 1167 , 1173 (Fed. Cir. 2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553' 565-66 (2009). In his complaint, plaintiff asserted violations of his constitutional right to due orocess under the Fifth Amendment to the United States Constitution. Plaintiff alleges that this court has jurisdiction to hear his claims pursuant to the Tucker Act, 28 U.S.C. s 1491(a). Defendant argues, however, that "the Tucker Act does not, by itself, create a right to money damages against the united states," and that "the substantive right to money damages must extend from the constitutional provision, statute, contract, or regulation giving rise to the claim." Defendant contends that plaintiff "has failed to plead a iubstantive source of law that creates a right to recover money damages from the Government," because it is well established that the Due Process clause of the Fifth Amendment does not mandate the payment of money, and, thus, does not provide a cause of action under the Tucker Act. 7  Regarding plaintiff's claim for due process under the Fifth Amendment, the Federal Circuit has held that this court does not possess jurisdiction to consider claims arising under the Due Process Clauses of the Fifth and Fourteenth Amendments. See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act." (citing LeBlancv. United States,50 F.3d 1025, 1028 (Fed. Cir. 1995))), cert. denied, 134S. Ct. 259 (20'13); In re United States,463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecausethe Due Process Clause is not money-mandating, it may not provide the basis for jurisdiction under the Tucker Act."), reh'q and reh'q en banc denied (Fed. Cir. 2006) cert. denied sub nom. Scholl v. United States, 552 U.S. 9a0 (2007);Acadia Tech., Inc. & Global Win Tech., Ltd. v. United States,458 F.3d 1327,1334 (Fed. Cir. 2006); Crockerv. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (citing LeBlancv. United States,50 F.3d at 1028) (no jurisdiction over a due process violation underthe Fifth and Fourteenth Amendments); Collins v. United States, 67 F.3d 284,288 (Fed. Cir.) ("[T]he due process clause does not obligate the government to pay money damages.'), rc"h-g denied (Fed. Cir. 1995); Mullenberq v. United States,857 F.2d770,773 (Fed. Cir. 1988) (finding that the Due Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987) (noting that the Fifth Amendment Due Process clause does not include language mandating the payment of money damages); Harperv. United States, 104 Fed. C|.287,291 n.5 (2012); Hampel v. United.States' 97 Fed. Cl. 235,238,aff'd,429 F. App'x 995 (Fed. Ctt.2011), cert. denied, 132 S. Ct. 1105 (2012); McCullouqh v. United States,76 Fed. Cl. 1,4 (2006), appeal dismissed,236 F. App'x 615 (Fed. Cir.), reh'q denied (Fed. Cir.), cert. denied, 552 U S. 1050 (2007) ("[N]either the Fifth Amendment Due Process Clause nor the Privileges and lmmunities Clause provides a basis for jurisdiction in this court because the Fifth Amendment is not a source that mandates the payment of money to plaintiff."). Due process claims "must be heard in District court." Kam-Almaz v. united states, 96 Fed. ct. 84, 89 (2011) (citing Acadia Tech.. lnc. & Global win Tech., Ltd. v. united States, 458 F.3d at 1334), alf'd,682 F.3d 1364 (Fed. Cir.2012); see also Hampel v. United States, 97 Fed. Cl. at 238. Therefore, to the extent that plaintiff is attempting to allege Due Process violations, no such cause of action can be brought in this court. In addition to monetary damages, plaintiff asks this court to declare that, [T]he actions of the Defendant in exercising authority under 28 U.S.C. 3231 io prohibit all beneficial uses of the "personal rights" constitute a taking of private property for public use in violation of Petitioner's rights under the Fifth Amendment to the United States Constitution of the Republic. . . [and] that the foregoing actions of Defendant under 28 U S'C. 3231 constitute a deprivation of Petitioner's property without due process of law in violation of Petitioner's rights under the Fifth Amendment to the United States Constitution. . .  Plaintiffls allegations in no way can be considered a taking in violation of the Fifth Amendment to the United States Constitution. The Takings Clause of the Fifth Amendment to the United States Constitution provides in pertinent part: "nor shall private property be taken for public use without just compensation." U.S. Const. amend. V. The purpose of this Fifth Amendment provision is to prevent the government from "'forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."' Palazzolo v. Rhode lsland, 533 U.S. 606, 618 (2001) (quoting Armstronq v. United States, 364 U.S.40,49 (1960)); see also Penn Central Transp. Co. v. Citv of New York, 438 U.S. 104,123-24, reh'q denied, 439 U.S. 883 (1978); Linqle v. Chevron U.S.A. lnc., 544 U.S. 528, 536 (2005); E. Enters. v. Apfel, 524 U.S. 498,522 (1998); Rose Acre Farm. Inc. v. United States, 559 F.3d 1260,1266 (Fed. Cir.), reh'q en bancdenied (Fed. Cir.2009), cert. denied, 130 S. Ct. 1501 (2010); Janowskvv. United States, 133 F.3d 888,892 (Fed. Cir. 1998); Resource Invs., lnc. v. United States, 85 Fed. C'.447,469-70 (2009); Pumpellv v. Green Bav & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179 (1871\ (citing to principles which establish that "private property may be taken for public uses when public necessity or utility requires" and that there is a "clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified."). A plaintiff must show that the government took a private property interest for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 81 1 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762(2010):Gahaqanv.UnitedStates,72Fed. Cl. 157, 162(2006). "Theissueofwhether a taking has occurred is a question of law based on factual underpinnings." Huntleiqh USA Corp v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008) (citations omitted). The Federal Circuit has established a two-part test to determine whether governmental actions amount to taking of private property under the Fifth Amendment. See Klamath lrr. Dist. v. United States,635 F.3d 505,511 (Fed. Cir. 2011); Am. Pelaqic Fishinq Co. v. United States,379 F.3d 1363, 1372 (Fed. Cir.) (citing M & J Coal Co. v. United States , 47 F .3d 1148, 1153-54 (Fed. Cir. 1995)), reh'q en banc denied, (2004). A court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged taking. Then, the court must determine whether the government action is a "'compensable taking of that property interest."' Huntleiqh USA Corp v. United States, 525 F.3d at'1377 (quoting Am. Pelaqic Fishinq Co.. L.P. v. United States, 379 F.3d a| 1372). A plaintiff alleging a taking must have a legally cognizable property interest, such as the right of possession, use or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,435 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373 (19a5)); CRV Enters., lnc. v. United States,626 F.3d 1241,1249 (Fed. Cir. 2010), cert. denied, 131 S. Ct.2459 (201 1); KarukTribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh'o denied and en banc suqqestion denied (Fed. Cir. 2OO0), cert. denied, 532 U.S. 941 (2OO1). "|t is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation." Am. Pelaoic Fishinq Co. v. United States, 379 F.3d al 1372 (quoting Wvatt v. United States , 27'l F .3d 1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077 (2002) and citing Cavin v. United States, 956 F.2d 1131,1134 (Fed. Cir. 1992)). Therefore, "[i]f the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end." Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1372 (citing Maritrans lnc. v. United States , 342 F.3d 1344, 1352 (Fed. Cir. 2003) and M & J Coal, 47 F.3d at 1 154). The court does not address the second step "without first identifying a cognizable property interest." Air Peqasus of D.C., lnc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1381 and Conti v. United States,291 F.3d 1334, 1340 (Fed. Cn.2002), cert. denied,537 U.S. 1112 (2003)), reh'o denied and reh'o en banc denied (Fed. Cir. 2005). Only if there is to be a next step, "after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest." Huntleiqh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelaqic Fishinq Co. v. United States, 379 F.3d at 1372). To the extent plaintiff alleges that a violation of due process is a taking, plaintiff has not alleged a property interest subject to a constitutional taking claim nor has plaintiff alleged any cognizable taking. Moreover, the Federal Circuit has explained that the Court of Federal Claims "does not have general equity jurisdiction to grant injunctive relief." Shemonskv v. United States, 21 5 F.3d 1340 (Fed. Cir. 1999) (upholding decision of the Court of Federal Claims that the court's jurisdiction did not extend to injunctive or declaratory relief); see also Bank of Guam v. United States, 578 F.3d 1318, 1331 (Fed. Cir.) reh'q and reh'q en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Martinez v. United States, 333 F'3d 1295, 1303 (Fed. Cir.2003); Choate v. United States,60 F.3d 840 (Fed. Cir. 1995) (holding that "[t]he Tucker Act does not provide a means by which the Court of Federal Claims may grant injunctive or declaratory relief where the suit does not involve a pre- award protestorthe application of section 7428 of lhe Internal Revenue Code"). As stated by the Federal Circuit: The Court of Federal Claims has never been granted general authority to issue declaratory judgments, and to hold that the Court of Federal Claims may issue a declaratory judgment in this case, unrelated to any money claim pending before it, would effectively override Congress's decision not to make the Declaratory Judgment Act applicable to the Court of Federal Claims. Nat'l AirTraffic Controllers Ass'n v. United States, 160 F.3d 714,716-17 (Fed. Cir.1998); see also United States v. Tohono O'Odham Nation,563 U.S.307 (2011) (The United States Court of Federal Claims "has no general power to provide equitable relief against the Government or its officers."). Moreover, in an action brought under 28 U.S.C. "as an incident of and S 1491(a), this court can only provide declaratory or injunctive relief collateral to" a judgment for money damages. 28 U.S.C. S 1a92(a)(2); see also Tavlor v' United states, 1 1 3 Fed. cl. 17 1, 173 (2013) (holding that the Tucker Act does not provide independent jurisdiction over claims for injunctive relief in contractual dispute cases). For example, in a case brought under the Tucker Act that did not involve a pre-award protest, once the Court of Federal Claims determined that it did not have jurisdiction to hear a plaintiffs claims for money damages, it necessarily followed that the court did not have authority to hear that plaintiffs claims for injunctive relief. See Kanemoto v. Reno, 41 10 F.3d 641, 645 (Fed. Cir. 1994); see also Tavlor v. United States, 113 Fed. Cl. at 173. Accordingly, plaintiff s demands for declaratory relief are dismissed for lack of jurisdiction. Plaintiff also contends in his complaint that the New Jersey District Court did not have subject matter or personal jurisdiction over him. To the extent that plaintiff is alleging that the New Jersey Diskict Court erred in exercising jurisdiction in the criminal action brought against him, such allegations also do not establish jurisdiction in this court. The Court of Federal Claims does not have authority to review decisions issued by judges of the United States District Courts. See Vereda, LTDA. v. United States,271 F.3d 1367, 1375 (Fed. Cir.2001); Joshua v. United States, 17 F.3d 378,379 (Fed Cir. 1994); see also Cooper v. United States, 104 Fed. Cl. 306, 312 (2012) (holding that "this court does not have jurisdiction over [plaintiffs] claims because the court may review neither criminal matters, northe decisions of district courts.") (internal citations omitted); Mendes v. United States, 88 Fed. Cl. 759,762, appeal dismissed ,375 F. App'x 4 (Fed. Cir' 2009); Huffed v. united states, 87 Fed. Cl. 696, 702 (2009) (holding that the united states court of feOerat Claims lacked jurisdiction over claims arising from the violation of a criminal statute); Matthews v. United states,72 Fed. cl. 274,282 (finding that the court lacked jurisdiction -lr/cCullouqhto consider plaintiffs criminal claims), recons. denied, 73 Fed. Cl. 524 (2006); v. United States, 76 Fed. Cl. at 4 (finding that the court lacked jurisdiction to consider platntiffb criminal claims). Therefore, this court lacks jurisdiction over any of plaintiff s claims. when filing his complaint, plaintiff also filed a motion to proceed .in forma pauperis. According to hislomplaint, plaintiff is an inmate at the Monmouth County Correctional Institutiori in Freehold, New Jersey. In order to provide access to this court to those who cannot pay the filing fees mandated in this court by RCFC 77.1(c) (2015), the statute at 2g U.S.C.-S 1g1S(2012) permits a court to allow plaintiffs to file a complaint without payment oifees or security, under specific circumstances. The standard in 28 U.S.C. pay such fees or give security b iglSt"ltr) for jn forma pauperis eligibility is "unable to iherefor.'; Determination of what constitutes "unable to pay" or unable to "give security paUperis is left to therefor," and therefore, whether to allow a plaintiff to proceed in forma the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, eg, Rowiand v. Cal. Men's Colonv, 506 U.S. 194' 217-18 (1993); Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011) when the person submitting a request to proceed i1 forma oauperig is a prisoner, 2g U.S.C. S 191 5iaX2) requires tnit ttre prisoner submit, along with the affidavit required by subsection (aX1), a certified copy of: [T]hetrustfundaccountstatement(orinstitutiona|equiva|ent)forthe brisone, for the 6_month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined 28 U.S.C. S 191 5(aX2); see also Matthews v. United states , 72 Fed. cl. at 277. In the affidavit required under 28 U.S.C. S 1 915(aX1 ), a prisoner must further "state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress." 11 28 U.S.C. S 1915(aXl). In the above-captioned case, plaintiff submitted the required information and certification with his request to proceed in forma oauperis. Although Mr. El's income level may qualifo him for in forma oauoeris status, as discussed above, his complaint is being dismissed for lack of jurisdiction. CONCLUSION For all the reasons discussed above, plaintiffs complaint is DlsilllssED. The Clerk of the Court shall enter JUDGMENT consistent with this Order. IT IS SO ORDERED. lLrral* /MARIAN BLANK HORN 12 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2663 ___________ Tyrone A. Davis, * * Plaintiff - Appellant, * * Appeal from the United v. * States District Court for * the District of Nebraska. * Dr. Stephen G. Lemar, Tracey M. * (UNPUBLISHED) Curry, and Otha Serrell, * * Defendants - Appellees. * ___________ Submitted: January 14, 2003 Filed: January 27, 2003 ___________ Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,1 District Judge. ___________ PER CURIAM. Tyrone A. Davis suffered an injury to his knee when another inmate accidentally fell onto him in the exercise yard of the Nebraska State Penitentiary, and he underwent knee surgery some four months later. Davis brought a civil rights action under 42 U.S.C. § 1983 against appellees, Stephen G. Lemar, Tracey Curry, 1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. and Otha Serrell, for violating his Eighth Amendment right to be free from cruel and unusual punishment. Davis alleged appellees were deliberately indifferent to his medical needs by failing to diagnose his injury earlier and by delaying treatment of it. The district court2 granted summary judgment to appellees after thoroughly discussing the record and concluding that Davis had not made a showing of deliberate indifference or that his Eighth Amendment rights had been violated. After hearing oral argument and reviewing the record, we affirm on the basis of the district court’s opinion. 8th Cir. R. 47B. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. 2 The Honorable Richard G. Kopf, Chief Judge, United States District Court for the District of Nebraska. -2- 

591 F.2d 101 U. S.v.Dow*** No. 78-5457 United States Court of Appeals, Fifth Circuit 2/23/79 1 S.D.Tex. AFFIRMED * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 ** Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966

482 F.2d 220 1973-1 Trade Cases 74,564 Aubrey D. HANSON d/b/a Hanson Paint & Glass Company,Plaintiff-Appellee,v.PITTSBURGH PLATE GLASS INDUSTRIES, INC., Formerly PittsburghPlate Glass Company, Defendant-Appellant. No. 72-2136. United States Court of Appeals,Fifth Circuit. June 25, 1973.Rehearing Denied Aug. 14, 1973. Tom S. Milam, Lubbock, Tex., Smead, Roberts, Harbour, Smith, Harris & French, Longview, Tex., John P. S. O'Connor, Cyrus V. Anderson, Pittsburgh, Pa., for defendant-appellant. Scott Baldwin, Carl R. Roth, Marshall, Tex., for plaintiff-appellee. Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges. AINSWORTH, Circuit Judge: 1 In this Robinson-Patman price discrimination action, defendant Pittsburgh Plate Glass Company1 appeals from a judgment in favor of plaintiff Aubrey D. Hanson. We hold that the district court erred in denying defendant's motions for a directed verdict and for judgment notwithstanding the verdict, and reverse. 2 Hanson entered the glass industry at the age of 22 when he worked for PPG as a glass cutter in Shreveport, Louisiana, in 1927. Three years later he became a PPG salesman in Northwestern Louisiana, Eastern Texas, Southeastern Oklahoma, and Southwestern Arkansas. In 1946, he established an independent glass retail business in Marshall, Texas. The business made an average profit of $12,892 for the years 1948 to 1955, but then sustained losses in each succeeding year except for small profits of $613 in 1958 and $204 in 1964. 3 Hanson's financial problems began when a new glass retailer, Martex Glass Company, opened in 1952 as a direct competitor in Marshall.2 Martex became a recognized distributor of Shatterproof Glass Corporation, entitling it to greater discounts than were generally available to Hanson. For example, Shatterproof offered its auto glass to Martex at a discount of about 68 per cent. PPG offered auto glass to Hanson at a discount of about 55 per cent. Another glass distributor, Safelite Glass Corporation, undersold PPG by offering auto glass to all retailers at a discount of about 60 per cent. When Hanson's business began to decrease, PPG reassessed the situation in an effort to rebuild its volume of sales. PPG decided to approach Martex and offer it the lowest PPG published price, namely, the discount currently available in Marshall only to Hanson. But Martex declined and explained that the glass could be purchased at a lower price from other sources. As a result, on May 4, 1964, the PPG district manager in Shreveport authorized its salesman to "meet the prices being quoted by Safelite Glass Corporation of Dallas, Texas, to Martex Glass Company of Marshall, Texas." However, PPG continued to follow its own published list in selling to Hanson. Hanson continued to buy from PPG but purchased most of his inventory from Safelite and other suppliers. 4 Hanson's debts with various creditors increased as his business declined. He was indebted to the bank, did not pay his rent for five or six months, and postdated his checks. After Hanson fell behind on his account for an amount in excess of $1,000, Safelite discontinued its business with him in 1965. By 1968, Hanson also owed substantial sums to his other suppliers, PPG and Binswanger Glass Company. 5 Hanson closed his business and then filed suit against PPG on April 10, 1968, alleging that defendant treated Hanson's competitors more favorably than it treated Hanson, thus violating section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. Sec. 13 (1971). Plaintiff alleged that his "flourishing and profitable business" was destroyed and that he lost past and future profits estimated at $220,000. Plaintiff sought treble damages and reasonable attorneys' fees as provided by section 4 of the Clayton Act, 15 U.S.C. Sec. 15 (1971). Defendant counterclaimed on Hanson's overdue note dated February 3, 1965, payable to PPG for $23,983.59 plus interest and attorneys' fees. The district court granted summary judgment on PPG's counterclaim for $29,111.45, together with $7,277.86 as attorneys' fees. 6 Plaintiff's claim was tried before a jury. After a trial that lasted several days, with testimony of numerous witnesses and receipt in evidence of over 10,000 exhibits, defendant moved for a directed verdict under Rule 50(a), Federal Rules of Civil Procedure. The district judge denied the motion, and the jury returned a verdict in favor of Hanson for $148,000. PPG filed a motion for judgment notwithstanding the verdict under Rule 50(b), which was also denied. The district judge trebled the verdict of $148,000 to a total of $444,000, and added an allowance of $80,000 for attorneys' fees. Only PPG appeals so the propriety of the summary judgment against Hanson on the counterclaim is not contested. 7 Plaintiff grounds his action under the provisions of section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, which forbids "any person . . . to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them." 15 U.S.C. Sec. 13(a) (1971). There are three possible defenses available to defendant PPG under the circumstances of this case. First, section 2(a)3 expressly permits justification for price differentials due to "differing methods" of manufacture. Second, section 2(a)4 permits another cost justification5 when "differing . . . quantities" are purchased. Third, section 2(b)6 provides a defense if the seller lowered its price "in good faith to meet an equally low price of a competitor." 8 In assessing whether the defendant carried its burden of defending its price differentials, see Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827, 92 L.Ed. 1196 (1948), to such an extent as to warrant a directed verdict, we are guided by the standard of review enunciated in Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374 (en banc): 9 On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover's case -but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. 10 We find that there is no conflict in substantial evidence and, accordingly, we are compelled to reverse. 11 Aside from a full transcript of the trial, together with all the exhibits, we have the benefit of a well-organized presentation of the facts submitted in the briefs of both parties which was not available to the jury or district court. Thus we have given unusually close and careful attention to the record herein. 12 During the trial plaintiff introduced numerous exhibits in an effort to show that the prices charged by PPG to Hanson were higher than those charged by PPG to competitors of Hanson. Plaintiff's counsel showed his exhibits to the jury on a projector, thereby saving the time of handing each exhibit from juror to juror. Plaintiff's counsel then interrupted the review of exhibits with a series of questions to Hanson about the history of Hanson's dealings with his customers. The defense responded with its own testimony, price lists, and invoices of sales by PPG's competitors. After studying the record we believe it was highly unlikely that the jury or district judge could have fully assimilated the material as presented. During oral argument of this case on appeal, we requested that counsel for plaintiff make a list in a supplemental brief of each transaction supporting his allegations of price discrimination. Counsel for defendant then agreed to review each transaction and justify any price differences between PPG's invoices to Hanson and to his competitors in a reply brief. 13 Plaintiff's counsel prepared a "Chart of Comparable Sales"7 to show in PPG's sales to Hanson the invoice number, date, item, and percentage of discount, which was then compared to discounts PPG gave to Hanson's competitors. Defendant responded to each instance of alleged price discrimination by producing folders of invoices categorically arranged by type of item sold. In addition, defendant supplied summaries by date of the price lists used by PPG and its competitors, such as Safelite, Autoglass Company, and Carlite. 14 After reviewing this material we find that the three defenses justify all of the instances of price differentials except a few which are de minimis.8 15 We illustrate how each defense applies to certain transactions as follows: As to the first defense pertaining to price differentials due to "differing methods" of manufacture, the documentation shows that sales listed by Hanson in support of his contention of price differentials actually involved items where there was justification for the difference based on higher cost of manufacture. Hanson thus lists a purchase from PPG dated April 15, 1964, of 1/8-inch Factrolite at a price of 62 cents per foot and Geldmeier's purchase from PPG at 35 cents per foot. But reference to the invoices shows that Hanson purchased specially cut size whereas Geldmeier purchased a standard stock size. Both sales by PPG to Hanson and to Geldmeier followed PPG's published price. The different price reflects the added cost of specially cutting the items and is therefore justified under section 2(a). See Sylvania Elec. Prod., Inc., 51 F.T.C. 282 (1954), reprinted in 2 S. Oppenheim & G. Weston, The Lawyers' Robinson-Patman Act Sourcebook 921 (1971). See generally P. Areeda, Antitrust Analysis 685 (1967); E. Kintner, An Antitrust Primer 68-70 (1964); F. Rowe, Price Discrimination Under the Robinson-Patman Act 281-82 (1962). 16 As to the second defense which related to cost justification when differing quantities are purchased, Hanson compared PPG sales without indicating that Hanson bought less on these occasions than his competitor purchased from PPG. Volume discounts are typical for this industry.9 Any lower price given to Hanson's competitor followed a price list granting volume discounts. As an illustration, Hanson's chart compared his purchase of a 1/4-inch thick mirror on June 18, 1965, with Magnolia's purchase on January 20, 1965, demonstrating that PPG charged Hanson $1.10 per square foot and Magnolia $1 per square foot. Yet the chart failed to compare the volume involved in each purchase. Hanson purchased one mirror of about 41 square feet whereas Magnolia purchased eleven mirrors totaling 429 square feet. PPG's published price list shows a charge of $1.10 per square foot for a purchase of less than 400 square feet, a charge of $1 per square foot for a purchase of more than 400 square feet, and a charge of 95cents per square foot for a purchase of 850 square feet. What PPG charged Hanson and Magnolia conforms exactly to the price list. Magnolia got a lower price by purchasing a sufficient quantity to be eligible for a 10cents per square foot savings. We recognize the difficulty of justifying quantity discounts. See United States v. Borden Co., 370 U.S. 460, 82 S.Ct. 1309, 8 L.Ed. 2d 627 (1962); Automatic Canteen Co. v. Federal Trade Comm'n, 346 U.S. 61, 68, 73 S.Ct. 1017, 1021-1022, 97 L.Ed. 1454 (1953). See generally P. Areeda, Antitrust Analysis 686 (1967); F. Rowe, Price Discrimination, ch. 10 (1962); Lovett, A Crossroads for the Robinson-Patman Act, 45 Tul.L.Rev. 1, 11-14 (1970). But this case differs in principle from the leading case of Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 42, 68 S.Ct. 822, 826, 92 L.Ed. 1196 (1948), where the quantity discounts were "equally available to all, but functionally they are not." PPG's price schedules did not require a purchase of such large quantities as to make the discounts functionally unavailable to Hanson. The discounts were graduated with such small increments that they appear to reflect only the differences in the cost of manufacturing, selling, and delivering items in larger volume. 17 As to the third defense relating to price differentials to meet competition, in the instances where PPG gave some customers a price differing from the price available to Hanson, PPG met the price offered to the customers by competitors of PPG. Thus PPG followed its own published price list in sales of windshields to Hanson but followed Safelite's published price list in sales of windshields to Martex.10 18 The meeting of competition defense provided in section 2(b) has been interpreted to be an absolute defense, Standard Oil Co. v. Federal Trade Comm'n, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239 (1951); Jones v. Borden Co., 5 Cir., 1970, 430 F.2d 568, 572, and applies despite the incidence of damage to nonfavored purchasers. Federal Trade Comm'n v. Sun Oil Co., 371 U.S. 505, 519-520, 83 S.Ct. 358, 367, 9 L.Ed.2d 466 (1963); see C. Austin, Price Discrimination 97 (1959). We believe that a "reasonable and prudent" man would conclude that PPG adopted Safelite's price list as a reasonable method of meeting the lower price of its competitor, thereby satisfying the test enunciated in Callaway Mills Co. v. Federal Trade Comm'n, 5 Cir., 1966, 362 F.2d 435, 442. See also Jones v. Borden Co., 5 Cir., 1970, 430 F.2d 568, 572; Surprise Brassiere Co. v. Federal Trade Comm'n, 5 Cir., 1969, 406 F.2d 711, 715. 19 Hanson's counsel argued to the jury, however, that PPG did not verify its competitors' offers until after the lawsuit was filed.11 We note in the record, however, several letters between PPG's salesman and district manager discussing the need to meet competition from Safelite. There is also other evidence to confirm that PPG acted in good faith to meet competition. Safelite made its prices available to many retailers in the area, so its prices were not secret.12 A representative of Hanson's competitor, Ray Lawson of Martex, testified that the lower prices they received from PPG came after a discussion of prices being offered by PPG's competitors. 20 Hanson contends that it was indicative of PPG's "predatory intent" that PPG called on Hanson's customers and offered them greater discounts than were given to Hanson. But these discounts conform to the competitive prices offered by PPG's competition. Furthermore, the customers Hanson mentioned were volume purchasers, such as automobile dealers, who reasonably might be expected to deal directly with a manufacturer. When Hanson resigned from PPG in 1946 to establish an independent business, he did not retain an exclusive right to deal with customers in the area of Eastern Texas. He had been the PPG salesman in the area prior to 1946, and, after he left, PPG replaced him with another salesman. Even though there may be some doubt whether the defense of meeting competition is available when used to gain new customers as opposed to retaining old ones, no such distinction is apparent in the statute, and accordingly we follow the reasoning of the decision by the Seventh Circuit in Sunshine Biscuits, Inc. v. F.T.C., 1952, 306 F.2d 48,13 and find that PPG engaged in reasonable competitive tactics. See generally Hampton v. Graff Vending Co., 5 Cir., 1973, 478 F.2d 527, 537. 21 Our review of the case convinces us that there is no conflict in substantial evidence, and that a verdict should have been directed for defendant. PPG does not dispute plaintiff's evidence, but relies on the defenses provided for by the Clayton Act itself (as amended). The differences in prices charged by PPG are in each instance fully supported by one of these defenses and by evidence in which there is no substantial conflict. 22 Finally, the evidence does not support Hanson's argument that he went out of business due to PPG's pricing policies during the relevant period14 from 1964 to 1968. Hanson's purchases from PPG during the four-year period never exceeded 26 per cent of his total purchases in any single calendar year and were as low as 1 per cent in one year. These purchases are summarized as follows: 23 Nevertheless, competitive injury may be inferred when one set of customers buys at substantially lower prices than other customers. Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 47, 68 S. Ct. 822, 828-829, 92 L.Ed. 1196 (1948). In the present case, any inferred competitive injury is negated by the fact that Hanson had available comparable products from other suppliers at prices equivalent to the prices PPG gave to Hanson's competitors. See Admiral Corp., FTC Dkt., CCH Trade Reg. Rep. p 17,230, p. 22,304 at p. 22,309 (1965), reprinted in S. Oppenheim & G. Weston, The Lawyer's Robinson-Patman Act Sourcebook 256, 262 (1971). See also Borden Co. v. F.T.C., 5 Cir., 1967, 381 F.2d 175, 180. 24 A review of Hanson's profits for the period 1948 through 196815 belies the conclusion that PPG drove him out of business by its pricing policies during the statutory period from 1964 to 1968. During most of the last thirteen years he consistently operated at a loss. It had been eight years prior to the start of the statutory period since Hanson made a substantial profit. His business, therefore, was not, as he contends, "flourishing and profitable" at the time PPG began giving his nearest competitor, Martex, the greater discounts. 25 The actual causes of Hanson's failure appear to be the new competition after 1952, the fire that partially destroyed the building in 1963 when he had inadequate insurance to cover his loss, and Safelite's refusal to deal with him after 1965 when he did not pay his debt. None of these causes can be attributed to the actions of PPG. 26 Reversed. 1 Since suit was filed, the name of the company has been changed to P.P.G. Industries, Incorporated 2 Another problem was a fire in 1963 which destroyed part of the building Hanson rented. He did not have adequate insurance to cover his loss 3 The defense is based on the following language in 15 U.S.C. Sec. 13(a) (1971): . . . Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods . . . in which such commodities are to such purchasers sold or delivered . . . . 4 The defense is based on the following language in 15 U.S.C. Sec. 13(a) (1971): . . . Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing . . . quantities in which such commodities are to such purchasers sold or delivered. 5 "Cost justification" is a term of art frequently employed by commentators to denote section 2(a) defenses for price differentials which reflect differences in the cost of supplying different purchasers. See, e. g., P. Areeda, Antitrust Analysis 684 (1967); D. Baum, The Robinson-Patman Act 22 (1964); A. Stickells, Antitrust Laws 477-78 (1972) 6 The defense is based on the following language in 15 U.S.C. Sec. 13(b) (1971): . . . Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. 7 This "Chart of Comparable Sales" was essentially the same as Exhibit A in plaintiff's original appellate brief. At oral argument, after counsel for plaintiff called Exhibit A the "critical exhibit as far as plaintiff is concerned," this Court asked, "Do you stand or fall on whether the proof in Exhibit A stands or falls?" Counsel answered, "I will come close to saying, yes sir." Then he went on to say that the exhibit represents the "bulwark" of purchases in years 1964 and 1965 by Hanson from PPG 8 Several sales by PPG to Binswanger Glass Company of Shreveport, Louisiana, are in the de minimis category. Binswanger was a competitor of PPG, so PPG had no interest in making sales in large quantities at low prices to Binswanger, thereby minimizing any potential harm to Hanson or to the public. The quantity of such sales was small, apparently only occurring as a courtesy which one distributor extended to the other when one had need of an item not in stock. These de minimis sales do not violate section 2(a), since the section applies only where "the effect of such discrimination may be substantially to lessen competition." (Emphasis added.) See Skinner v. United States Steel Corp., 5 Cir., 1956, 233 F.2d 762, 764 9 The importance of this factor is reflected in our recent opinion in Hampton v. Graff Vending Co., 478 F.2d 527, 537 10 Using the example of automobile glass earlier referred to, we note that PPG's published price list gave discounts of the following amounts depending on the quantity of windshields purchased: 52 60% discount for 1 part 55 00% discount for 2 parts 56 80% discount for 3 parts 58 00% discount for 4 to 11 parts 59 80% discount for 12 to 23 parts 61 00% discount for 24 or over parts Safelite, however, offered the following published discounts on windshields, which were greater and resulted in lower prices: 60% discount for 1 to 2 parts 61% discount for 3 to 5 parts 62% discount for 6 to 23 parts 63% discount for 24 or more parts To further illustrate what the proof showed, and applying the above discounts, we have examined a number of PPG sales of windshields listed in plaintiff's brief and have added a column indicating the volume purchased, as follows: Hanson Invoice (PPG) Date Volume Discount ------- ------- ------ -------- 01659 4/13/64 1 52.60% 01534 4/16/64 2 55.00% 01579 4/16/64 1 52.60% 02079 4/22/64 1 52.60% 04010 5/28/64 1 55.00% 04365 6/ 4/64 2 55.00% 06135 7/ 6/64 1 52.60% 07625 7/31 64 1 Martex Invoice (PPG) Date Volume Discount ------- ------- ------ -------- 04505 6/ 8/64 11 62.00% 05856 6/30/64 6 62.00% 07527 7/29/64 2 60.00% It is thus clear that PPG's charges to Hanson followed the PPG published price list (shown above), and its charges to Martex met Safelite's published price list (shown above). The only exception is an invoice to Hanson, number 04010, where PPG gave Hanson a greater discount than was warranted by the volume purchased. 11 In a case denying the defense due to inadequate efforts to verify the competitor's prices, the Supreme Court concluded that "the statute at least requires the seller, who knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor." Federal Trade Comm'n v. A. E. Staley Mfg. Co., 324 U.S. 746, 759-760, 65 S.Ct. 971, 977, 89 L.Ed. 567 (1945) 12 Hanson himself on October 1, 1964, ordered six windshields from Safelite, of which five were delivered and one backordered, at Safelite's discount of 62 per cent 13 Accord, National Dairy Prod. Corp. v. Federal Trade Comm'n, 7 Cir., 1968, 395 F.2d 517, 524 n. 3, contra, Standard Motor Prod., Inc., v. Federal Trade Comm'n, 2 Cir., 1959, 265 F.2d 674, 677. See generally 4 J. von Kalinowski, Antitrust Laws and Trade Regulation, p. 32-73 (1970): "The better rule is that of the Seventh Circuit." 14 According to 15 U.S.C. Sec. 15(b) (1971), "Any action to enforce any cause of action . . . of this title shall be forever barred unless commenced within four years after the cause of action accrued." See generally A. Stickells, Antitrust Laws 644 (1972) Hanson's Purchases Hanson's From PPG As Per- Purchases Hanson's centage of Hanson's From All Purchases Purchases From All Year Suppliers From PPG Suppliers 1968 $ 6,777 $ 442 6 % 1967 5,227 39 1 % 1966 7,626 192 2 % 1965 18,795 3,493 18 % 1964 17,589 4,573 26 % (Apr.Dec.) 15 The 1948-1968 profits are as follows: Hanson's Year Profit 1968 (undetermined loss) 1967 (undetermined loss) 1966 ($4,930) 1965 ($ 132) 1964 $ 204 1963 ($13,759) 1962 ($2,128) 1961 ($15,452) 1960 ($6,437) 1959 N. A. 1958 $ 613 1957 ($8,080) 1956 ($2,874) 1955 $5,437 1954 $6,299 1953 $13,259 1952 $11,246 1951 $6,568 1950 $25,095 1949 $21,047 1948 $14,185

202 F.2d 752 Stanley Dale SYDOW, Appellant,v.UNITED STATES of America. No. 14730. United States Court of Appeals Eighth Circuit. Feb. 4, 1953. PER CURIAM. 1 Appeal from District Court dismissed, on motion of appellee and motion of appellant pro se. 2 Fyke Farmer, Nashville, Tenn., and Thomas P. Kelley, Omaha, Neb., for appellant. 3 Joseph T. Votava, U.S. Atty., and Edward J. Tangney, Asst. U.S. Atty., Omaha, Neb., for appellee.

785 P.2d 1160 (1990) Mardell PALMER, Appellant (Plaintiff), v. BOARD OF TRUSTEES OF CROOK COUNTY SCHOOL DISTRICT NO. 1, Appellee (Defendant). No. 89-78. Supreme Court of Wyoming. January 12, 1990. *1161 James L. Edwards of Stevens, Edwards & Hallock, Gillette, for appellant. Mark L. Hughes of Hughes & Dumbrill, Sundance, for appellee. Tracy J. Copenhaver of Copenhaver, Kath & Kitchen, Powell, filed an amicus curiae brief on behalf of the Wyoming School Boards Ass'n. Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ. GOLDEN, Justice. Appellant Mardell Palmer (Palmer) challenges the district court's judgment affirming her termination and seeks reinstatement as a continuing contract teacher in Crook County School District No. 1 (District). She asserts that the School District Board of Trustees (Board) acted arbitrarily, capriciously and illegally in terminating her employment pursuant to the Board's Reduction in Professional Staff Work Force (RIF) policy. Appellant raises the following issues on appeal: I. Did the administration attempt to realign the classes and courses to be taught in accordance with the reduction in force (RIF) policy and not infringe on the right of the appellant as a continuing contract teacher? II. Did the Crook County School Board properly implement the District RIF policy? III. Did the Board of Trustees conduct themselves in an arbitrary and capricious manner toward the appellant through either their notice and conduct at the April 7, 1988, meeting, or their findings of fact and conclusions of law? In contrast, the District frames the issue on appeal in the context of the scope of judicial review pursuant to W.S. 16-3-114(c)(ii) (Oct. 1982 Repl.). Appellee identifies the issue as: I. Was the decision of the District Court and the Board of Trustees of Crook County School District No. 1 to terminate the contract of Mardell Palmer: a. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; b. Contrary to constitutional right, power, privilege or immunity; c. In excess of statutory jurisdiction, authority or limitations or lacking statutory right; d. Without observance of procedure required by law; or e. Unsupported by substantial evidence? Finally, in an amicus brief submitted on behalf of the District by the Wyoming School Boards Association, two issues are addressed: I. Does a teacher by virtue of acquiring continuing contract status have the right to require the Board of Trustees to realign teachers and curriculum so as to create a position for her when such realignment would be contrary to the Board's determination of what is in the best interests of the students? II. Did the Board of Trustees of Crook County School District No. 1 properly implement the RIF policy and procedures, including requirements for notice to the teacher, and was the determination of the Board arbitrary, capricious or unsupported by substantial evidence? We affirm. FACTS Palmer taught physical education and general science at Sundance High School for seven consecutive years until the end of the 1987-88 school year. In March, 1988, she became aware that the District, faced with financial concerns and a declining enrollment, was considering implementing its RIF policy by eliminating several staff positions, including her own combination physical education/science position. On April 7, 1988, Palmer, accompanied by counsel, attended a special meeting of the Board where they discussed the proposed RIF with the Board. The Board also heard comments from several individuals on behalf of Palmer and received petitions supporting *1162 her continued employment. Despite these factors, the Board accepted a recommendation from the District Superintendent to implement the RIF policy. In addition to Palmer's position as a physical education/science teacher, the Board voted to eliminate five and one-half other teaching positions in the District. All teachers in the District received notice of the Board's action to implement the RIF policy following the April 7 special meeting. Palmer received written notice of recommendation of her termination on or about April 12, 1988. The notice, dated April 11, 1988, contained three reasons for the Board's reduction in the teaching staff: (1) limited financial resources of the District; (2) decreased enrollment; and (3) other events beyond the control of the Board. On April 15, 1988, Palmer requested a hearing before the Board pursuant to W.S. 21-7-108 (July 1986 Repl.); the Board granted Palmer's request and conducted a hearing on June 22, 1988. Discovery of additional evidence necessitated a supplemental hearing held on October 3, 1988. Following both hearings, the Board voted to terminate Palmer's employment with the District effective at the end of the 1987-88 school year. Pursuant to W.R.A.P. 12 and W.S. 16-3-114, Palmer petitioned the district court for review of the Board's administrative action, and on October 12, 1988, the district court heard oral arguments and reviewed the record. The court concluded that the Board had authority under W.S. 21-7-111(a)(iv) (Cum.Supp. 1988)[1] to terminate a continuing contract teacher due to limited financial resources and decreased enrollment. The court recognized the limited scope of judicial review of discretionary administrative actions supported by substantial evidence. On February 28, 1989, the district court entered an order affirming the Board's action terminating Palmer. This appeal followed. Having reviewed the record and briefs, we recognize two issues for decision. First, we must consider whether the District satisfied procedural notice requirements; and second, we must determine whether the Board's decision to terminate Palmer was supported by substantial evidence. The standard of judicial review for administrative actions is governed by W.R.A.P. 12.09, W.S. 16-3-114(c)[2] and Wyoming case law. We apply the same standard of judicial review previously applied by the district court in this case. In determining whether an agency decision is arbitrary, capricious, or an abuse of discretion, a court must review the record taken as a whole and ascertain whether the decision is supported by the evidence contained in the record. Holding's Little America v. Board of County Commissioners of Laramie County, 670 P.2d 699, 703-04 (Wyo. 1983); and Toavs v. State By & Through Real Estate Commission, 635 P.2d 1172, 1174 (Wyo. 1981). We are not bound to accept any of the conclusions reached in the district court, but are obligated to review the appeal as if it came directly to the court from the Board. Sellers v. Wyoming Board of Psychologist Examiners, 739 P.2d 125, 126 (Wyo. 1987). Deference is owed to the Board's administrative determination, not that of the district court's decision. Zezas Ranch, Inc. v. Board of Control, 714 P.2d 759, 764 (Wyo. 1986). Palmer argues that the Board abused its discretion by making its decision *1163 without a sufficient factual basis. W.S. 16-3-114(c)(ii)(E) establishes that administrative actions mut be supported by "substantial evidence" or be reversed on judicial review. On several occasions this court has defined the "substantial evidence" test in the school board administrative context. In Shenefield v. Sheridan County School District No. 1, 544 P.2d 870, 874 (Wyo. 1976) (quoting Howard v. Lindmier, 67 Wyo. 78, 214 P.2d 737, 740 (1950)), the court defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See also Ririe v. Board of Trustees of School District No. One, Crook County, Wyoming, 674 P.2d 214, 228 (Wyo. 1983); and Board of Trustees, Laramie County School District No. 1 v. Spiegel, 549 P.2d 1161, 1178 (Wyo. 1976). The weight to be given the evidence and the credibility of witnesses is to be determined by the finder of fact (the Board in this case) and not the reviewing court. The burden is on the appellant to demonstrate that the Board's decision is not supported by substantial evidence. Westates Construction Co. v. Sheridan County School District No. 2, Board of Trustees, 719 P.2d 1366, 1372 (Wyo. 1986). PROCEDURAL NOTICE REQUIREMENTS Palmer contends that the District's published notice of the April 7, 1988 special board meeting was inaccurate in that the notice printed in the local newspaper and the copies of the meeting agenda distributed to Board members failed to state that reduction in the professional staff work force would be discussed at the meeting. The District counters Palmer's claim with evidence of compliance with W.S. 16-4-404(b) (Oct. 1982 Repl.).[3] The District argues that express notice of "hiring professional staff," in conjunction with Palmer's constructive notice of the purpose of the meeting and community awareness of topics to be discussed satisfies the statutory notice requirement. Palmer's procedural argument fails since the record establishes that the District met the requirements of the law, and in any case, Palmer did not suffer as a result of the alleged improper notice. While it is questionable whether "hiring professional staff" is synonymous with "reduction in force," there is no doubt that the business to be transacted at the special meeting dealt with personnel decisions. Palmer was informed of the purpose of the special meeting by other means, and both she and her counsel attended and participated in the meeting. Members of the community appeared on behalf of Palmer and offered positive verbal and written support of Palmer's qualifications. Following the April 7 meeting, Palmer received written notice of recommendation of her termination. She requested and received an extensive hearing before the Board pursuant to W.S. 21-7-108. Adequate notice is a requisite element of administrative agency action. Here, Palmer received all the notice required by law, and could not demonstrate any prejudice or harm from the alleged inadequate notice. SUBSTANTIAL EVIDENCE We next consider whether the Board acted arbitrarily or capriciously by terminating Palmer's employment as a continuing contract teacher without sufficient facts before it to support its decision. It is well established that this court will not substitute its judgment for that of administrative agencies, including school districts, if the record establishes that the agency decision is supported by substantial evidence. Westates, 719 P.2d at 1372. The record establishes that the Board voted to terminate Palmer based on evidence of financial exigency and declining enrollment. *1164 It is the role of an elected school board to consider all of the circumstances impinging on the efficient operation of the school district and to exercise its discretion to ensure the best possible education for students. In the spring of 1988, the Board was faced with a projected decline in revenues, coupled with overstaffing resulting from a decline in student population. This was presented to the Board together with the superintendent's RIF recommendation at the April 7, 1988 Board meeting. The recommendation to RIF Palmer (among others) was based on elimination of classes which she taught. The recommendation was presented in more detail in the form of exhibits and testimony by the superintendent of schools and the director of curriculum at the June 22, 1988 hearing. The record was supplemented at the October 3, 1988 hearing. Palmer argues that enrollment actually increased, there were alternate methods for reorganizing the district staff, that the district had adequate financial resources, and that the board erred in its factual findings. However, the district court correctly noted that whether this decision was the "best" under the circumstances is not the test. The record contains relevant evidence that reasonably supports the Board's decision. A decline in revenues required economic choices, and realignment of classes to best meet student needs suggested retaining all mathematics teachers and reducing the number of science teachers. Consequently, we hold that the Board's decision as to Palmer is supported by substantial evidence. There is no evidence before us that the Board acted arbitrarily or capriciously in any other respect. Palmer received a fair and complete hearing before the Board voted to terminate her employment. The Board acted under authority of W.S. 21-7-111(a)(iv) and within the letter of its RIF policy. Despite the allegation in Palmer's brief, we found no evidence in the record of a pretextual termination or retaliation. Finally, we emphasize that Wyoming statutes do not demand, and we do not impose, a requirement that school boards realign teaching duties premised on seniority. Cf. Strand v. Special School District, 392 N.W.2d 881, 886 (Minn. 1986). We find that the Board did not act arbitrarily or capriciously or abuse its discretion. Appellant Mardell Palmer received adequate notice of the April 7, 1988 special board meeting. Further, the Board's action was supported by substantial evidence. These findings dispose of all the issues raised by the appeal. The decision of the district court is affirmed. NOTES [1] W.S. 21-7-111(a)(iv), states: (a) Nothing in this article shall prohibit: * * * * * * (iv) The termination of the contract of a teacher at the end of current school year because of a decrease in the size of faculty due to decreased enrollment or other event beyond the control of the board * * *. [2] W.S. 16-3-114(c)(ii) states that the court shall set aside agency action, findings and conclusions found to be: (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) Contrary to constitutional right, power, privilege or immunity; (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right; (D) Without observance of procedure required by law; or (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute. [3] W.S. 16-4-404(b) states: (b) Special meetings may be called by the presiding officer of a governing body by giving notice of the meeting to each member of the governing body and to each newspaper of general circulation, radio or television station requesting the notice. The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at a special meeting.

[Cite as State v. Ruppert, 2013-Ohio-4878.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA10 : vs. : : DECISION AND JUDGMENT CHARLES D. RUPPERT, : ENTRY : Defendant-Appellant. : Released: 10/30/13 _____________________________________________________________ APPEARANCES: David A. Sams, West Jefferson, Ohio, for Appellant. Paul G. Bertram, III, Marietta City Law Director, and Catherine Ingram Reynolds, Marietta City Assistant Law Director, Marietta, Ohio, for Appellee. _____________________________________________________________ McFarland, P.J. {¶ 1} Charles Douglas Ruppert appeals from his conviction in the Marietta Municipal Court, for the offense of operating a motor vehicle with a prohibited blood-alcohol concentration in violation of R.C. 4511.19(A)(1)(h). Appellant contends: (1) the trial court erred by finding that Appellant operated his vehicle within three hours of the time of his breathalyzer test; and, (2) the verdict of guilty was based on insufficient evidence and was otherwise against the manifest weight of the evidence. Washington App. No. 13CA10 2 After reviewing the record, we find there was competent credible circumstantial evidence to support the trial court’s finding Appellant’s breath test was conducted within the three-hour time limit as required by R.C. 4511.19(D)(1)(b). As such, we find the motion to suppress was properly overruled. Accordingly, we overrule Appellant’s first assignment of error. Further, we find Appellant’s conviction was based on sufficient evidence and was not otherwise against the manifest weight of the evidence. Therefore, we also overrule Appellant’s second assignment of error. FACTS {¶ 2} Deputy Jeremiah K. McConnell of the Washington County Sheriff’s Department charged Appellant with operating a motor vehicle with a prohibited concentration of alcohol, a violation of R.C. 4511.19(A)(1)(h). The charge arose from circumstances involving Appellant which occurred on October 25, 2012. Appellant subsequently appeared in Marietta Municipal Court and pled not guilty. Eventually, Appellant filed a motion to suppress the results of his breath test for the reason that the BAC Datamaster test was not performed within the required three-hour period. The trial court held a hearing on Appellant’s motion. {¶ 3} Theresa Ann Everson of Belpre, Ohio, was the State’s first witness at the suppression hearing. Ms. Everson testified she was at home Washington App. No. 13CA10 3 on October 25, 2012, sleeping, and she was awakened by her two puppies barking and then a call for help. Ms. Everson got up to let the animals out, and five minutes later, they came running back. Then she heard the call for help again. Everson went to her bedroom and looked out her window, to see a person standing about 50 feet from her window. Once Everson realized the person was asking for help, she dialed the sheriff’s office with her cell phone. She then called 911 and contacted a dispatcher, advising that she was home alone and a man was outside her window. Everson identified Appellant in the courtroom. {¶ 4} Everson estimated if the sheriff’s department recorded her phone call at 5:56 a.m., then she probably was awakened by the noise around 20 minutes earlier, or approximately 5:30 a.m. She testified the time from when she first heard the puppies barking to the point in time when she made contact with dispatch was no more than 30 minutes. On cross- examination, Everson admitted she never looked at a clock, she was “kind of guessing.” Everson described Appellant as appearing drunk by his walking or staggering. Everson later testified in redirect that her puppies did not react when cars came into her driveway, but they did react when someone came onto the porch. Washington App. No. 13CA10 4 {¶ 5} Deputy McConnell testified that he was dispatched to Theresa Everson’s home in Dunham Township at 5:56 a.m. due to a report of a suspicious male at the house. It was a cold, frosty morning. He arrived a few minutes after 6:00 a.m. McConnell testified the Everson home sits atop a small hill. When he pulled to the front of the house, he observed a male walking towards him with his hands in the air. McConnell exited his vehicle. Appellant advised McConnell he was lost. McConnell described Appellant as disoriented, confused, staggering, with a strong smell of alcohol. {¶ 6} Appellant advised Deputy McConnell he was not sure what had happened. He had been in his car, a red Monte Carlo, and the next thing he knew, he was in the woods or a field. McConnell commenced searching for Appellant’s vehicle. He found tire tracks around Everson’s house and eventually found Appellant’s car parked down the hill, in a wooded area, covered in dust. McConnell estimated the car to be 50 or 60 yards from the house, “down over the hill, a pretty good ways.” It took him approximately five minutes to locate Appellant’s car. {¶ 7} McConnell conducted field sobriety tests and determined Appellant was under the influence of drugs or alcohol. Appellant was Washington App. No. 13CA10 5 arrested and taken to the Washington County Jail. While there, Appellant took a breath test, administered by Deputy Kevin Carr. The result was .174. {¶ 8} On cross-examination, McConnell testified the BMV 2255 form he completed lists the “violation” time as 5:56 a.m. McConnell explained that was the time he received the call, not the time the accident occurred. McConnell testified the time of test was listed as 8:10 a.m. McConnell acknowledged that the time listed on the BAC ticket, 8:15 a.m., would be the more accurate test time. McConnell admitted he had no idea the time the accident actually occurred, except that it would have been prior to 5:56 a.m. On redirect, Deputy McConnell testified the hood of the car was still warm. {¶ 9} Deputy Carr testified he administered the breath test at the Washington County Jail. He is certified to operate the Datamaster BAC machine. Carr identified State’s Exhibit B, a “subject test form” for use with the breath machine. Carr testified he completed the checklist on the form. He identified a photocopy of the evidence ticket printed by the breath test machine. The ticket demonstrated the machine was working properly at 8:14 a.m. Appellant’s test result was completed at 8:15 a.m. The machine was again verified as working accurately at 8:16 a.m. Washington App. No. 13CA10 6 {¶ 10} In closing, Appellant’s counsel argued due to the various facts of the case, set forth above, there was simply no way to determine when Appellant’s accident actually occurred and therefore, the test should be suppressed. The trial court found that the test was performed at 8:15 a.m. and for the test not to be suppressed, the last operation of the vehicle had to have occurred at 5:15 or later. The trial court observed: “There is nothing that clear in this case. We have the lay witness’s testimony that she placed the call at 5:56. She was awaked by her dogs, the puppies barking, were outside for about five minutes, and she believes the time that elapses was at the most [Inaudible]. So that would be that the last operation was somewhere between no earlier than 5:15 and no later than maybe about 5:30. The deputy added that the engine was or the hood was warm. It was a cold morning and that there was frost. The reasonable inference from that is that the recent operation would have been prior to six o’clock, when he felt the hood, because he arrived at six o’clock. The Court is going to find that operation was within three hours.” {¶ 11} On March 15, 2013, Appellant pled no contest to a violation of R.C. 4511.19(A)(1)(h). He was sentenced to $575.00 fine and costs, 33 days in jail, and a one-year license suspension. Appellant now brings this appeal, setting forth two assignments of error for our review. Appellant’s jail sentence has been stayed pending this appeal. ASSIGNMENT OF ERROR ONE I. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT-APPELLANT HAD OPERATED HIS VEHICLE Washington App. No. 13CA10 7 WITHIN 3 HOURS OF THE TIME OF THE BREATHALYZER TEST. STANDARD OF REVIEW {¶ 12} Our review of a decision on a motion to suppress “presents mixed questions of law and fact.” State v. McNamara, 124 Ohio App.3d 706 710, 707 N.E.2d 539 (1997), citing United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court is in the best position to evaluate witness credibility. State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995). Accordingly, we must uphold the trial court’s findings of fact if competent, credible evidence in the record supports them. Id. We then conduct a de novo review of the trial court’s application of the law to the facts. State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034 (1995); State v. Fields, 4th Dist. No. 99CA11, 1999 WL 1125120 (Nov. 29, 1999). LEGAL ANALYSIS {¶ 13} R.C. 4511.19(A)(1)(A) provides: “No person shall operate any vehicle * * * within this state, if at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them. *** Washington App. No. 13CA10 8 (h) The person has a concentration of seventeen- hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.” {¶ 14} Additionally, R.C. 4511.19(D)(1)(b)1 provides: “In a criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the alleged violation.” {¶ 15} Appellant pled no contest to a violation of R.C. 4511.19(A)(1)(h). In his first assignment of error, Appellant contends under the unique facts of his case, the trial court erred by finding compliance with R.C. 4511. 19(D)(1)(b). Appellant points out Theresa Everson did not observe Appellant wreck his vehicle and did not look at the clock or 1 R.C. 4511.19(D) has been amended. Previously, it allowed bodily substances to be collected up to only two hours after an alleged OVI violation. Most of the cases to be discussed infra involved considerations of this issue when the two-hour rule was in effect. Washington App. No. 13CA10 9 otherwise mark the time. Appellant highlights the fact there was no testimony presented to indicate how long a hood would stay warm after operation of the engine ceased. {¶ 16} Appellant directs our attention to State v. Cessna, 11th Dist. Trumbull App. No. 2853, 1980 WL 352340 (Dec. 30, 1980), and State v. Hennen, 7th Dist., Belmont App. No. 86-B-2, 1986 WL 13579, (Dec. 2, 1986), cases wherein the appellate courts held that the two-hour time period for obtaining Breathalyzer tests was not affirmatively established by the evidence. In Cessna, the appellate court’s brief opinion emphasized that the only evidence remotely relating to the time of the violation was the arresting officer’s testimony as to when he received a call to go to the scene of an accident, but nothing in the State’s case indicated when the accident occurred. {¶ 17} In Hennen, the defendant was convicted of operating a motor vehicle in violation of R.C. 4511.19(A)(3). He was given a Breathalyzer test and tested .162. The evidence demonstrated Hennen was in a one-car crash during the early morning hours of June 30, 1985. The state patrol was notified at 4:32 a.m., and a trooper was dispatched to the scene. The trooper testified the Breathalyzer test was conducted at 5:31 a.m. As to the timing of the accident, the trooper testified he “felt he was within the two hour limit.” Washington App. No. 13CA10 10 The trooper also relied on the fact that at the scene, the tire marks appeared fresh. However, the trooper was asked to explain the difference between a 15-minute tire mark and a 30-minute tire mark, and admitted he did not know. On cross-examination, the trooper acknowledged that Hennen’s last operation of his vehicle could have been “within the last four or five hours.” In its decision, the appellate court concluded: “The only conclusion that can be drawn from [Trooper Walker’s] testimony in this case is that maybe the appellant was operating his motor vehicle within the two hour limit and maybe he wasn’t operating the motor vehicle within the two hour limit. This certainly does not amount to an affirmative establishment of the time factor.” {¶ 18} Appellee State of Ohio counters that the trial court reasonably inferred from the evidence presented that the breath test occurred within three hours of Appellant’s operation. Appellee directs our attention to State v. Fowler, 2nd Dist. Clark No. 99-CA-57, 2000 WL 353150, (Apr. 7, 2000), and State v. Shaffer, 4th Dist. Pickaway No. 01CA21, 2002-Ohio-4167, (Aug. 12, 2002). {¶ 19} In Fowler, an officer was dispatched to the scene of an accident at 4:36 p.m. A breathalyzer was ultimately administered to the defendant at 5:48 p.m. In affirming the judgment of conviction, the second district court of appeals noted: Washington App. No. 13CA10 11 “(1) The officer stated that he believed the accident occurred at 4:35 p.m.; (2) the officer observed that the defendant’s vehicle was still warm when he arrived; (3) the officer stated that the defendant’ vehicle had apparently just been driven because it was sitting in the middle of the intersection; (4) the officer interviewed witnesses to determine the time of the accident; (5) the other drivers involved in the accident stated that the accident had occurred within a minute or two; and (6) the witnesses stated that the accident occurred around 4:35 p.m. Additionally, the court noted that the accident occurred on a busy road and that any accident would have been reported within a short period of time.” {¶ 20} In Shaffer, we concluded the trial court did not abuse its discretion by deciding to admit alcohol test results into evidence, noting that the evidence the trial court had before it was sufficient, but not overwhelming. There, the defendant’s own statement indicated she notified the authorities very shortly after the accident occurred. {¶ 21} Additionally we have reviewed the decisions in State v. Hutson, 1st Dist. Nos. C-060274, C-060275, and C-060276, 2007-Ohio- 1178, 2007 WL 779127; State v. Lester, 12th Dist. No. CA-2009-07-093, 2012-Ohio-41, 2010 WL 58929; and State v. Shuck, 4th Dist. No. 09CA12, 2010-Ohio-2058, 2010 WL 1857347. In Hutson, the appellate court held that the state produced sufficient circumstantial evidence to establish Hutson had been operating his car at 2:45 a.m., within the two-hour time period. There, an independent witness testified he awoke at 2:45 a.m., looked out his window, and saw Hutson’s car crashed on his front lawn. Given the gravity Washington App. No. 13CA10 12 of the car accident and the proximity of the crash to the witness’s home, the appeals court held the trial court reasonably inferred that the sound of the accident awakened the witness. {¶ 22} In Lester, the defendant challenged the trial court’s factual findings that the breathalyzer test was administered within the statutory time limit. At the suppression hearing, the trooper involved testified he was dispatched to a single car accident at 9:21 p.m. and arrived at the scene 20 minutes later. The trooper testified upon arrival, he noticed “fresh marks going off the road,” the defendant seated in the driver’s seat of his car, and even though the vehicle was not running and it was a cold winter evening “it was warm inside the vehicle.” The trooper testified while he was unable to pinpoint the exact time of the accident, it was inconceivable that defendant’s vehicle was in the ditch for several hours without being reported. Id. at ¶ 9. Another trooper testified that when he arrived at the scene, the defendant “never acted like he’d been there a tremendous amount of time,” and after speaking with him, got the impression the accident had just occurred. Id. at ¶ 10. The appeals court held there was competent and credible evidence that the breathalyzer test was administered within three hours of the alleged violation. The appeals court agreed with the trial court, that there was simply no evidence, circumstantial or otherwise, to indicate anything other than the Washington App. No. 13CA10 13 accident occurred “right before the state troopers arrived.” Lester, supra at ¶ 12. {¶ 23} In State v. Shuck, this court also upheld the trial court’s finding of fact that Shuck’s accident occurred at 5:05 a.m. and he was tested within the three-hour time limit imposed by statute. At suppression, Shuck and the prosecution presented contrasting timelines for the accident. Shuck testified as to phone calls he made the morning of the accident, at 4:39 a.m., 4:43 a.m., and 5:08 a.m. Shuck claimed he made the 4:39 a.m. call immediately after the accident occurred, at least 20 minutes prior to 5:00 a.m. Shuck’s BAC test was administered at 7:51 a.m. {¶ 24} The prosecution relied on the testimony of an independent witness. The witness heard the accident as he was getting ready to leave for work, and testified the time was around 5:10 a.m. The witness testified he knew this because he had to be at work at 6:00 a.m. and for the past six years, he had left for work at approximately 5:10 a.m. The witness further testified on the accident date, he was getting ready to open his door and leave for work when the accident occurred. After briefly speaking to Shuck, the witness drove on to work, arriving at the usual time. {¶ 25} These determinations are fact-driven and each situation is unique, as Appellant points out. In the case sub judice, we agree with the Washington App. No. 13CA10 14 trial court’s conclusion that Appellant’s last operation of this motor vehicle was within the three-hour time period. The sheriff’s department recorded Everson’s call at 5:56 a.m. Everson testified she was probably awakened at approximately 5:30 a.m. Deputy McConnell testified the accident occurred sometime before 5:56 a.m., when he was dispatched to the scene. McConnell encountered Appellant in Everson’s yard. Deputy McConnell testified Appellant told him about the crash and what type of car they were looking for. Approximately five minutes later, when Appellant and McConnell found the car, McConnell testified the hood of the car was warm, despite its being a frosty morning. {¶ 26} Appellant’s car was found in a wooded area some distance from the Everson house. Deputy McConnell testified Appellant stated he “wasn’t sure what happened,” and “the next thing he knew, he was in the woods or field.” The last operation of Appellant’s vehicle had to have been no earlier than 5:15 a.m. to be within the three-hour rule. Even if there was some delay before Appellant straggled to the Everson yard, it is inconceivable that the hood of Appellant’s car would have remained warm on a frosty morning, if the delay was not a brief one. We note Appellant supplied no witnesses to dispute the testimony of Everson and the deputy. Washington App. No. 13CA10 15 {¶ 27} We find there was competent credible evidence from which the trial court inferred the operation of Appellant’s vehicle occurred within three hours as required. The trial court did not err in overruling the motion to suppress and making its finding that the breath test was administered within three hours. Accordingly, we overrule the first assignment of error. ASSIGNMENT OF ERROR TWO II.THE VERDICT OF GUILTY WAS BASED ON INSUFFICIENT EVIDENCE AND WAS OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. STANDARD OF REVIEW {¶ 28} An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v. Dennison, 4th Dist. No. 06CA48, 2007-Ohio-4623, 2007 WL 2570736, ¶ 9. See, e.g. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991), paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). Washington App. No. 13CA10 16 {¶ 29} A sufficiency of the evidence challenge tests whether the state’s case is legally adequate to satisfy the requirement that it contain prima facie evidence of all elements of the charged offense. See State v. Martin, 20 Ohio App. 3d 172, 175 485 N.E. 2d 717 (1983), and Carter v. Estell (C.A. 5, 1982), 691 F. 2d 777, 778. It is a test of legal adequacy, rather than a test of rational persuasiveness. Dennison, supra at ¶ 10. {¶ 30} The sufficiency of the evidence test “raises a question of law and does not allow us to weigh the evidence,” Hollis, at ¶ 21; State v. Smith, 4th Dist. No. 06CA7, 2007-Ohio-502, 2007 WL 355274, at ¶ 34, citing State v. Martin, 20 Ohio App. 3d 172, 175, 484 N.E. 2d 717 (1983). Instead, the sufficiency of the evidence test “gives full play to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Smith, at ¶ 34, citing State v. Thomas, 70 Ohio St. 2d 79, 79-80, 434 N.E. 2d 1356 (1982); State v. De Hass, 10 Ohio St. 2d 230, 227 N.E. 2d 212 (1967), paragraph one of the syllabus. {¶ 31} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must view the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction Washington App. No. 13CA10 17 must be reversed. Dennison, supra, at ¶ 11; State v. Thompkins, supra, at 387, citing State v. Martin, supra, at 175. A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Johnson, 58 Ohio St. 3d 40, 41, 567 N.E. 2d 266 (1991); State v. Eskridge, 38 Ohio St. 3d 56, 526 N.E. 2d 304 (1988), paragraph two of the syllabus. We realize that the evidence may pass a sufficiency analysis and yet fail under a manifest weight of the evidence test. Dennison, supra, at ¶ 15. See Brooker, supra at ¶ 16, citing Thompkins, supra. LEGAL ANALYSIS {¶ 32} Under the second assignment of error, Appellant argues that the three-hour requirement of R.C. 4511.19(D)(1)(b) was the evidentiary foundation of the State’s case. Appellant submits because there was non- compliance with R.C. 4511.19(D)(1)(b), there was insufficient evidence to support his conviction for a violation of R.C. 4511.19(A)(1)(h), or, in the alternative, his conviction was against the manifest weight of the evidence. We disagree with these arguments. {¶ 33} Appellant pled no contest to a violation of R.C.4511.19(A)(1)(h). The breath test obtained by Deputy McConnell revealed a prohibited blood alcohol concentration of .174. The Washington App. No. 13CA10 18 circumstances surrounding the obtaining of Appellant’s breath test are also the evidentiary foundation for admission of the breath test at the heart of the State’s case. We have found the breath test was conducted within the three- hour requirement of 4511.19(D)(1)(b). {¶ 34} We further find Appellant’s conviction was not against the manifest weight of the evidence. We have reviewed the entire record, weighed the evidence and the reasonable inferences to be drawn from the evidence, and considered the credibility of the witnesses. In doing so, we cannot find the trier of fact clearly lost its way and created a manifest miscarriage of justice. Based on the above, we overrule Appellant’s second assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. Washington App. No. 13CA10 19 Hoover, J., dissenting: {¶ 35} I respectfully dissent from the principal opinion. The main issue presented in this appeal is whether the State of Ohio complied with the three-hour requirement in administering the breath test to the appellant. I would sustain appellant's first assignment of error by concluding that the State of Ohio did not meet its burden of proof in demonstrating compliance with the three-hour requirement. I would reverse the judgment of the trial court and remand the case for further proceedings, including issuance of an entry granting appellant's motion to suppress. {¶ 36} In this case, the appellant entered a no contest plea to a violation of R.C. 4511.19(A)(1)(h). The appellant accepted the facts that were stated on the record as true. The pertinent parts of the transcript of the change of plea hearing read as follows: THE COURT: Do you want to give a brief recitation of the facts in support of the no contest plea? MS. REYNOLDS: Certainly, Your Honor. On October 25th of 2012, the Defendant crashed on the property of Theresa Everson, which is located on Everson Road, 367 Everson Road, in Dunham Township, Washington County, Ohio. Deputy McConnell was called to the scene by Ms. Everson, who was alerted to the Defendant being crashed Washington App. No. 13CA10 20 because he came up to her property. He had crashed down into a wooded area that borders her home. After the sheriff's department investigated, made contact with him, he was taken in for breath testing and tested .174 on the BAC DataMaster. MS. LANDAKER: Yeah, I believe he was wandering around, and eventually when the officer showed up, he approached the car with his hands in the air, and that's how the initial contact happened. THE COURT: Yes, much more came out during- MS. LANDAKER: During the Motion to Suppress, yeah. THE COURT: -the Motion to Suppress, I believe, if I recall right, there were little dogs that alerted her with barking and everything else. She called 911, the odor of alcohol, and the hood was warm, and the real question is, whether or not the operation was within three hours of the breath test. MS. LANDAKER: That's correct. THE COURT: And that will all be explored. The Court does find the statement is adequate to support the no contest. *** {¶ 37} Our standard of review of a trial court's decision on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Washington App. No. 13CA10 21 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we must accept the trial court's findings of fact if they are supported by competent credible evidence. Id. Therefore, accepting those facts as true, we must "independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. {¶ 38} "R.C. 4511.19(D)(1)(b) provides that the court may admit evidence as shown by a chemical analysis of a bodily substance 'withdrawn within three hours of the time of the alleged violation.' The rationale for this requirement is to have a sample closely related in time as (circumstantial) evidence of the concentration at the time of operation. If the sample is taken within that time, no expert testimony is required to relate back to the time of operation. A later test may still be admissible with expert testimony to calculate, by retrograde extrapolation, the concentration at the time of operation. Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988); State v. Hassler, 115 Ohio St.3d 322, 875 N.E.2d 46 (2007). Thus, the reason for the rule is the relevance and reliability of the chemical test result." Washington App. No. 13CA10 22 State v. Crace, 168 Ohio Misc.2d 13, 2012-Ohio-2090, 968 N.E.2d 76, ¶ 10 (M.C.). {¶ 39} "'The state has the burden to establish that the test was done in accordance with established law to the extent the defendant takes issue with its legality.'” State v. Mausling, 11th Dist. Geauga No. 2005-G-2626, 2006-Ohio-1270, ¶ 33, fn.3, State v. Golec, 11th Dist. No.1977, 1989 Ohio App. LEXIS 873, * 4-5, (Mar. 17, 1989), in turn citing State v. Gasser, 5 Ohio App.3d 217, 451 N.E.2d 249 (3rd Dist. 1980). {¶ 40} Here, Ruppert challenged the State's compliance with the three-hour requirement in his motion to suppress. {¶ 41} It is difficult to find that competent credible evidence existed in this case demonstrating the State's compliance with the three-hour requirement. On cross-examination, the arresting officer, Deputy Sheriff Jeremiah Keith McConnell, was questioned about the time of the occurrence of the accident. Deputy McConnell testified that he was dispatched at 5:56 a.m. to Theresa Ann Everson's home because of a suspicious male around the house. The transcript of the hearing on the motion to suppress reads as follows: Q. [Appellant's attorney] Okay. And again, you have no idea what time the accident actually occurred, correct? Washington App. No. 13CA10 23 A. [Deputy McConnell] Correct. {¶ 42} In addition, Ms. Everson, testified that she was "just kind of guessing" when she was asked if she ever looked at a clock or if she was just guessing about the times. Ms. Everson testified that she was not real sure what time she saw the appellant standing out by her building. Ms. Everson did not testify regarding the time of the last operation of appellant's vehicle. {¶ 43} The State of Ohio's last witness, Deputy Kevin Carr, was the officer who administered the breath test. Deputy Carr testified that he administered the breath test at 8:15 a.m. Deputy Carr provided no testimony regarding the time of the last operation of appellant's vehicle. Since the breath test was administered at 8:15 a.m., the last operation of the vehicle by appellant had to have been 5:15 a.m. or after. {¶ 44} The principal opinion cites to State v. Fowler, 2nd Dist. Clark No. 99-CA-57, 2000 WL 353150 (Apr. 7, 2000). In Fowler, the Second District Court of Appeals affirmed the judgment of conviction. However, this case is distinguishable from Fowler in that four other persons were involved in the Fowler crash. Those persons stated that the crash occurred at 4:35 p.m. The Fowler accident occurred on a busy road and any accident would have been reported within a short period of time. In addition, Ms. Washington App. No. 13CA10 24 Fowler was found in the vehicle blocking traffic at the scene of the crash by the arresting officer. {¶ 45} The principal opinion also relies upon this Court's decision in State v. Shaffer, 4th Dist. Pickaway No. 01CA21, 2002-Ohio-4167. In Shaffer, this Court affirmed the decision of the trial court denying Ms. Shaffer's motion to suppress. However, Shaffer is also distinguishable from this case. In Shaffer, Ms. Shaffer actually called 911 herself after she had collided with a tractor trailer. Ms. Shaffer had signed a voluntary statement also. In that statement, Ms. Shaffer stated that "* * * [t]here was smoke and I feared that the car was on fire in the engine. I pulled Amanda out of the driver's side and laid her on the ground. I called 911 from my cell phone and waited for help." Id. at ¶ 7. The 911 call was received at 2:11 a.m. and the breath test was administered at 3:18 a.m. Id. at ¶ 10. This Court found that "the trial court could properly infer from appellant's own statement that she notified the authorities very shortly after the accident occurred." Id. at ¶ 23. {¶ 46} In this case, the appellant was involved in a single car crash in a wooded area with no passenger and no witnesses to the accident. Ms. Everson called 911 to report the suspicious male walking around her property, not to report a car accident. It is unknown how long appellant was Washington App. No. 13CA10 25 walking around before the Everson's dogs began barking. Upon the arrival of Deputy McConnell, the disoriented and confused appellant was not in his vehicle; rather, he was staggering around Ms. Everson's property. These facts are very different from those in the Fowler and Shaffer cases; and it cannot be said that the evidence affirmatively establishes that the Breathalyzer test was administered within the three-hour time period. {¶ 47} Because I would sustain the appellant's first assignment of error, I would find appellant's second assignment of error moot. I would reverse the judgment of the trial court and remand for proceedings consistent with this opinion. Washington App. No. 13CA10 26 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, J.: Concurs in Judgment Only as to Assignment of Error I; Concurs in Judgment and Opinion as to Assignment of Error II. Hoover, J: Dissents with Dissenting Opinion. For the Court, BY: _________________________ Matthew W. McFarland Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 

121 P.3d 285 (2005) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robin M. JOHNSON, Defendant-Appellant. No. 03CA2339. Colorado Court of Appeals, Div. IV. April 7, 2005. Rehearing Denied May 12, 2005. Certiorari Granted October 11, 2005. *286 John W. Suthers, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Robin M. Johnson, Pro Se. GRAHAM, J. Defendant, Robin M. Johnson, appeals the trial court's order denying her Crim. P. 35 motions. We reverse the order, vacate defendant's sentence, and remand for resentencing. Defendant pled guilty to one felony theft count in each of two cases, resulting in her conviction of a class 3 and a class 4 felony. The presumptive range of sentencing for a class 3 felony is four to twelve years with five years of mandatory parole. The presumptive range of sentencing for a class 4 felony is two to six years with three years of mandatory parole. Section 18-1.3-401(1)(a)(V)(A), C.R.S.2004. Following revocation of defendant's community corrections sentence, the trial court resentenced her to an aggravated term of twenty-four years in the Department of Corrections (DOC). The sentence was aggravated pursuant to § 18-1.3-401(6), C.R.S.2004, for reasons other than the fact of prior convictions. In her first postconviction motion, defendant asserted her conviction and sentence must be vacated because she received ineffective assistance of counsel. Defendant also filed a motion asserting that the trial court did not make findings of aggravation and that the sentence was an abuse of discretion. The trial court denied the motions, and this appeal followed. I. Recently, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which applied and explained a rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi was decided prior to defendant's sentencing. Blakely was decided after she was sentenced and while her appeal was pending. In light of Blakely's explanation of Apprendi and its likely retroactive application to the date of Apprendi, we asked the parties to file supplemental briefs on the application of that case to this appeal. A. We first conclude, as a threshold matter, that Blakely applies retroactively to the date that Apprendi established its new rule. *287 In People v. Bradbury, 68 P.3d 494 (Colo. App.2002), a division of this court concluded that Apprendi did not apply retroactively because it "established a new rule" and "imposed a new obligation" upon trial courts. People v. Bradbury, supra, 68 P.3d at 497. We adopt the reasoning in Bradbury and conclude that because Apprendi established a new rule which had the effect of overriding a widespread practice of allowing judges to decide facts used to aggravate sentences, Blakely's interpretation of that rule must necessarily apply retroactively to the date the rule was established. Writing for the majority in Blakely, Justice Scalia clearly limited the holding back to the date of Apprendi when he wrote: "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 542 U.S. at 303-05, 124 S.Ct. at 2537. Because Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced. We note at least two federal cases which have held that Blakely does not apply retroactively to collateral attacks against convictions. See, e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir.2004); United States v. Stoltz, 325 F.Supp.2d 982, 987 (D.Minn.2004). In concluding that retroactive application should be made here, we nevertheless do not apply Blakely to collateral attacks against convictions unless those convictions post-dated Apprendi. People v. Dunlap, 124 P.3d 780, 2004 WL 2002439 (Colo.App. No. 01CA1082, Sept. 9, 2004). B. We discern from defendant's pro se supplemental brief a contention that the trial court abused its discretion in sentencing her without making proper findings to support an aggravated sentence. She also argues that she "is unaware of agreeing to any aggravating circumstances, and the People have failed to show proof of any aggravating circumstances." The record supports the former contention. Blakely provides that a judge may not sentence a defendant above the statutory maximum on the basis of facts other than prior convictions unless those facts are "reflected in the jury verdict or admitted by the defendant" and the "statutory maximum" is the sentence the court may impose "without any additional findings." Blakely v. Washington, supra, 542 U.S. at 303-05, 124 S.Ct. at 2537 (emphasis in original). To justify the imposition of a discretionary aggravated range sentence pursuant to § 18-1.3-401(6), the trial court is required to make findings of extraordinary aggravating circumstances. Under Apprendi, as explained in Blakely, such a sentence violates the Sixth Amendment right to trial by jury unless the facts found by the trial court to support the sentence are reflected in the jury verdict, are admitted by the defendant for purposes of sentencing, or involve the defendant's prior criminal convictions. See People v. Moon, 121 P.3d 218, 2004 WL 2503424 (Colo.App. No. 03CA1107, Oct. 21, 2004); see also People v. Solis-Martinez, 121 P.3d 215, 2004 WL 2002525 (Colo.App. No. 03CA1365, Sept. 9, 2004). A defendant may waive her Apprendi rights, if she "either stipulates to the relevant facts or consents to judicial factfinding." Blakely v. Washington, supra, 542 U.S. at 310, 124 S.Ct. at 2541. Here, defendant agreed to a fifteen-to twenty-five-year term in community corrections, or to an alternative fifteen- to twenty-five-year sentence to the DOC if she was not accepted to a community corrections program. She did not admit to any specific aggravators or agree to judicial factfinding regarding those aggravators. The People argue that because defendant agreed to a range which was wholly within the aggravated range, she in effect stipulated to the factors necessary to aggravate her sentence or, at the very least, waived her right to a jury determination of aggravating factors. In this particular circumstance we do not agree. By the time defendant entered her guilty plea, several divisions of this court had held that Apprendi did not apply to a trial court's imposition of an aggravated *288 range sentence under § 18-1.3-401(b). See People v. Allen, 78 P.3d 751 (Colo.App.2001); see also People v. Trujillo, 75 P.3d 1133 (Colo.App.2003); People v. Harrison, 58 P.3d 1103 (Colo.App.2002); People v. Ramos, 53 P.3d 1178 (Colo.App.2002); People v. Martinez, 32 P.3d 520 (Colo.App.2001). The Colorado Supreme Court did not review any of these decisions on certiorari. Thus, given the state of Colorado law post-Apprendi but pre-Blakely, defendant could not have knowingly and voluntarily waived her right to a jury determination of aggravating factors. In dealing with the aftermath of Blakely, courts in other jurisdictions have reached the same conclusions. See, e.g., Strong v. State, 817 N.E.2d 256 (Ind.Ct.App.2004), aff'd on reh'g, 820 N.E.2d 688 (Ind.Ct.App.2005); State v. Fairbanks, 688 N.W.2d 333 (Minn.Ct.App.2004)(review granted Jan. 20, 2005). We therefore conclude that the sentence imposed here is unconstitutional and cannot stand. In so concluding, we note that defendant's stipulation to a factual basis for the two felonies does not require a different result. A defendant's admission of a factual basis for the guilty plea is not the equivalent of either an admission that the same facts constitute aggravating factors for sentencing purposes or a consent to judicial factfinding. See Blakely v. Washington, supra (noting that the sentencing judge cannot impose an aggravated sentence solely on the basis of facts admitted in the guilty plea because the judge must consider factors other than those used in computing a sentence within the standard or statutory maximum range). II. In light of our conclusion, we see no need to reach the remaining issues posed in defendant's appeal. The order is reversed, the sentence is vacated, and the case is remanded for resentencing. Judge ROY and Judge WEBB concur.

942 F.2d 1473 ESTATE OF William F. McALLISTER, Deceased; SharonMcAllister; Sean McAllister; and LoriMcAllister, individually, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 90-35184. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 12, 1991.Decided Aug. 28, 1991. L.E. Ashcroft, Rhoten, Speerstra, Rinehart & Ashcroft, Salem, Or., for plaintiffs-appellants. Steven Bransdorfer, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before GOODWIN, THOMPSON and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 The estate and heirs of William McAllister appeal from the district court's dismissal of their wrongful-death action under the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We must affirm. 2 * On New Year's Eve five years ago, Private Leon Tarver attacked, stabbed, and killed Lieutenant Colonel William McAllister near the Post Exchange ("PX") on the premises of the Presidio in San Francisco, California.1 "It is undisputed that [Lieutenant Colonel] McAllister was off duty and not under [the] compulsion of [military] orders at the time of his death. He was not performing any military duties, was on personal business, and [was] in the process of leaving the base." Estate of McAllister v. United States, No. 89-6150 at 3 (D.Or. Dec. 6, 1989) (magistrate's findings and recommendation), adopted by No. 89-6150 (D.Or. Dec. 28, 1989) (order of dismissal). 3 At the time of the killing, Private Tarver, on the other hand, was under the government's care and supervision as a patient of the Letterman Army Hospital on the Presidio grounds. Tarver, who had been diagnosed while serving in Germany as a paranoid schizophrenic with potentially dangerous tendencies, had been assigned to the Letterman Hospital for treatment and evaluation in March 1986. Three months later, the Army reassigned Tarver to active duty in South Korea, but he was again diagnosed as schizophrenic and potentially dangerous and was transferred back to the Letterman Hospital in October 1986, where he remained through the date of the murder. 4 Charging the Army with medical malpractice in its supervision of Private Tarver, the estate and heirs of Lt. Col. McAllister filed suit under the Federal Tort Claims Act ("FTCA") on April 25, 1989. The government subsequently filed a motion to dismiss for lack of subject matter jurisdiction pursuant to the Feres doctrine, and the district court granted that motion upon the recommendation of a federal magistrate on December 28, 1989. The estate and heirs then filed this timely appeal. II 5 The presence or absence of subject matter jurisdiction under the FTCA, 28 U.S.C. §§ 1346(b), 2671-80, is a question of law reviewable de novo. See Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988). In the process of reviewing that question, the court must "review independently the question whether the Feres doctrine is applicable to the facts reflected in the record." McGowan v. Scoggins, 890 F.2d 128, 129 (9th Cir.1989); see also Persons v. United States, 925 F.2d 292, 294 (9th Cir.1991) (quoting same). III 6 * The FTCA provides in relevant part that: 7 The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.... 8 28 U.S.C. § 2674 (1988). As a specific exception to this general waiver of sovereign immunity, the Act provides that the government shall not be liable for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. § 2680(j) (emphasis added). Notwithstanding the explicit terms of this latter provision, the Supreme Court has determined that the military exception to the Act's waiver of immunity is considerably broader than this provision suggests. Upholding decisions to dismiss an action by the heirs of a soldier who had perished by fire in the barracks of an Army camp "while on active duty in service of the United States," the Court unanimously held in 1950 that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 137, 146, 71 S.Ct. at 155, 159 (emphasis added). 9 The Court reached the same conclusion in two other cases that were consolidated and decided along with Feres: Jefferson v. United States and United States v. Griggs. Like the present case, both of these cases involved allegations of medical malpractice by Army doctors. In Jefferson, a soldier who had received an abdominal operation in an Army hospital brought suit on his own behalf when, "eight months later, in the course of another operation after [he had been] discharged, a towel 30 inches long by 18 inches wide, marked 'Medical Department U.S. Army' was discovered and removed from his stomach." Id. at 137, 71 S.Ct. at 155. In Griggs, the executrix of a soldier's estate alleged that "while on active duty [the soldier had] met death because of negligent and unskillful medical treatment by army surgeons." Id. In the Court's view, "[t]he common fact underlying the three cases [was] that each claimant, while on active duty and not on furlough, [had] sustained injury due to negligence of others in the armed forces." Id. at 138, 71 S.Ct. at 156. Under such circumstances and in light of the fact that Congress created separate statutory schemes to compensate for the deaths and injuries of armed services personnel, the Court concluded that there could be no government liability under the FTCA. See id. at 144, 71 S.Ct. at 158. 10 The Feres doctrine, as the rule of these three cases has come to be known, is highly controversial. It has been criticized "by countless courts and commentators," including this court. Persons, 925 F.2d at 295. Some have found fault with the Court's creation of a judicial exception to a clear statutory pronouncement and the unfairness that the rule has often produced. See, e.g., United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 2074, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting and joined by Brennan, Marshall, and Stevens, JJ.) ("Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received.") (citation omitted); id. at 703, 107 S.Ct. at 2075 (urging Court to "limit our clearly wrong decision in Feres and confine the unfairness and irrationality that decision has bred"); Atkinson, 825 F.2d at 206; id. at 206-07 (Noonan, J., concurring); Atkinson, 804 F.2d 561 (9th Cir.1986), withdrawn by, 825 F.2d 202. Others have found fault with the essential vagueness and ambiguity of the doctrine itself. See, e.g., Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987) (per curiam) (noting the "somewhat elusive 'incident to service' standard"), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (noting that "the basis for the exception has recently become the subject of some confusion"), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Persons, 925 F.2d at 295 (citing Millang and Monaco and noting that "it is entirely unclear which of the doctrine's original justifications survive"). A comparison of reasoning with outcomes in cases that have applied the doctrine validates these concerns: the results have not flowed easily from the doctrine's purported rationales. 11 Nonetheless, the Feres doctrine remains the law of the land, and we must undertake to apply it. B 12 In the Feres case itself, the Supreme Court enunciated two rationales for the "intramilitary immunity" exception to the FTCA's waiver. Twenty-seven years later, the Court enunciated a third. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). As we recently explained in Persons, these three rationales are: 13 "(1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems [for military personnel and their families]; and (3) the fear of damaging the military disciplinary structure." 14 925 F.2d at 294-95 (quoting Atkinson, 825 F.2d at 204). 15 In United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), however, the Supreme Court stated that "[t]he Feres doctrine cannot be reduced to a few bright-line rules," thereby eviscerating any hope that a simple application of these three rationales to the facts at hand might produce the proper result. Id. 473 U.S. at 57, 105 S.Ct. at 3042. The Shearer Court explained that: 16 Although the Court in Feres based its decision on several grounds, "[i]n the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.' " 17 Id. (quoting United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1857, 10 L.Ed.2d 805 (1963) (quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954))). The Shearer Court went on to explain that the first two rationales--the only two mentioned in the Feres opinion itself--were "no longer controlling," leaving only the military-discipline rationale as a reason for invoking the Feres bar. Id. 473 U.S. at 58 n. 4, 105 S.Ct. at 3043 n. 4; see also Persons, 925 F.2d at 295 (citing Shearer and noting same). 18 Only two years later, however, the Supreme Court appeared to reverse course in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), reasserting the relevance and validity of all three purported rationales over the vociferous dissent of four Justices who were inclined to abandon the doctrine altogether. See id. at 684 n. 2, 688-691, 107 S.Ct. at 2065 n. 2, 2067-69. Precisely how a court should apply the Feres doctrine to the facts of a given case, therefore, remains unclear. A reconciliation of prior pronouncements on the subject is not possible.2 IV 19 When presented with conflicting messages from the Supreme Court, lower courts have typically resorted to comparing fact patterns in previous cases with that in the case before them in an effort to produce the most appropriate outcome. Although intellectually unsatisfying, a comparison of fact patterns to outcomes in cases that have applied the Feres doctrine compels the conclusion that the rule bars the appellants' action here. 20 * As an initial matter, we must consider the decisions in Jefferson and Griggs, the two companion cases that accompanied Feres. There, the Supreme Court held that the Feres rationales barred claims of medical malpractice when the treatment complained of was provided by military surgeons. Feres, 340 U.S. at 137, 146, 71 S.Ct. at 155, 159. Because appellants seek to escape operation of the Feres doctrine by characterizing their claim as a medical malpractice claim, reference to Jefferson and Griggs alone suffices to repudiate that distinction. 21 Appellants purport to differentiate Jefferson, Griggs, and Feres by relying upon Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), which the Supreme Court decided one year earlier. There, the Court held that "members of the United States armed forces can recover under th[e Federal Tort Claims] Act for injuries not incident to their service." Id. at 50, 69 S.Ct. at 919 (emphasis added). In Brooks, two brothers who were members of the armed services were struck by a military-owned vehicle driven by a civilian employee of the Army while they were out on furlough and driving along a public highway. The Court held that the subsequent tort suit could proceed. When the Court decided Jefferson, Griggs, and Feres one year later, it did not overrule Brooks; rather, as appellants point out, the Court distinguished the earlier case: 22 The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission. A government owned and operated vehicle collided with him. Brooks' father, riding in the same car, recovered for his injuries and the Government did not further contest the judgment but contended that there could be no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks' relationship while on leave was not analogous to that of a soldier injured while performing his duties under orders. 23 Feres, 340 U.S. at 146, 71 S.Ct. at 159. Arguing that McAllister was similarly off duty and under the compulsion of no military orders at the time of his death, appellants contend that their case is more like Brooks than it is like Jefferson or Griggs. 24 If the evolution of the Feres doctrine had stopped in 1950, appellants would have the better argument. Subsequent cases, however, have expanded greatly the factual circumstances under which the conduct of military personnel will be deemed "incident to service." As the government correctly points out, the facts in this case are strikingly analogous to the facts in Shearer, where the Supreme Court also found a Feres-based bar to suit. When he was off duty and away from his base, United States Army Private Vernon Shearer was kidnapped and murdered by another serviceman, Private Andrew Heard. Shearer's mother, as administratrix of his estate, brought suit against the United States under the FTCA. She alleged that the Army's negligence had caused her son's death. Prior to the murder, Heard had served in Germany, where he had been convicted of manslaughter by a German court and sentenced to a four-year prison term. After Heard served his term, the Army transferred him to Fort Bliss, where he eventually killed Private Shearer. In her suit, Mrs. Shearer alleged that the Army had been fully aware of Heard's dangerous nature and had been negligent in failing to control him and in failing to warn others about him. Shearer, 473 U.S. at 53-54, 105 S.Ct. at 3040-41. The Supreme Court, however, ordered dismissal of the suit, holding that allowing the action to proceed would infringe impermissibly upon the military's command and disciplinary decisions with respect to its personnel. Id. at 58-59, 105 S.Ct. at 3043-44.3 25 The present facts are also substantially similar to the facts in Persons, where this court very recently found a Feres-based bar to suit. In Persons, the estate and heirs of a naval officer brought suit against the government alleging medical malpractice on the part of the physicians and staff of a military hospital. The decedent had presented himself to the hospital's emergency room with "seven deep slash marks on each of his wrists [that] bore witness to his deeply distressed emotional state and attested to his attempted suicide." 925 F.2d at 294. Apparently, "[a]fter a few hours, and without being admitted to the hospital for observation, he was released. Some three months later, on December 23, 1987, Kelly Persons committed suicide." Id. The claimants contended that the hospital's doctors had been negligent in failing to provide Persons with adequate counseling or treatment. Admitting its reluctance but acknowledging its obligation, this court affirmed dismissal of the claims pursuant to Feres. Id. at 299.4 26 We must do the same. There is no meaningful difference between the facts in Persons, where a serviceman's mental disorder and the alleged negligence of a military hospital in treating it resulted in the death of that serviceman by suicide, and the facts in the case before us, where a serviceman's mental disorder and the alleged negligence of a military hospital in treating it resulted in the death of another serviceman at the hands of the first. 27 Appellants, however, argue otherwise. They purport to distinguish Persons on the basis of the fact that in Persons the decedent serviceman was himself the alleged victim of medical malpractice, whereas here the decedent serviceman was the victim of a failure to control a second, mentally disturbed serviceman. Because McAllister was not the army hospital patient himself, they point out, the nexus between the victim and the various benefits and obligations "incident to military service" is more strained in this case. 28 This argument has intuitive appeal, and if the legal slate were clean, it might carry the day. Unfortunately for appellants, however, this factual distinction cannot overcome the breadth of the Feres rule as it has been applied in prior decisions. In Millang, for example, this court held that the Feres doctrine barred an action by an officer who was run over by a military police vehicle while off duty and attending a picnic. The court found that the accident arose out of activity incident to service because Millang's presence at and use of the picnic area hinged on his military status and because the tortious driver was an officer acting subject to military command. 817 F.2d at 534-35. Similarly, in Bon v. United States, 802 F.2d 1092 (9th Cir.1986), this court held that Feres barred a claim by a servicewoman who, while paddling a canoe rented from a naval facility, was struck and injured by a motor boat operated by another service member. The court found the motor boat operator's status as a member of the military "subject to discipline" relevant to its decision. Id. at 1095. Given Millang and Bon, the difference between Persons and the present appeal cannot alter the outcome. B 29 Even putting Shearer and Persons aside, virtually every other significant precedent suggests that the Feres doctrine bars appellants' suit. For example, in Atkinson, this court held that a servicewoman could not pursue a claim for allegedly negligent prenatal care received at a military hospital while she was on active-duty status. The court explained that even though the lawsuit did not implicate concerns of military discipline or encroach upon " 'complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,' " the broad reach of the Feres doctrine nonetheless precluded the action. Atkinson, 825 F.2d at 205 (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973)). Similarly, in Veillette v. United States, 615 F.2d 505 (9th Cir.1980), this court held that the parents of an Air Force serviceman who had been treated at a naval hospital after an off-duty motorcycle accident could not sue the government for the alleged negligence of the hospital's doctors and employees. In the court's view, it was immaterial that Veillette had been off duty at the time of the accident; that he had been a member of the Air Force and not a member of the Navy; and that the treating naval hospital attended to both civilian and military personnel. As the court explained, "allegations of medical malpractice, the basis of two of the claims rejected in Feres, have consistently been held to fall within the bounds of the doctrine when the plaintiff was a serviceman on active duty at the time of the alleged malpractice." 615 F.2d at 507 (citing numerous cases); see also Persons, 925 F.2d at 296 ("In this Circuit, Atkinson ... and Veillette ... are controlling."). C 30 Regardless of the merits of the Feres doctrine or the persuasiveness of its rationales, there is no doubt that it provides a broad blanket of immunity to protect the government against allegations of negligence in military contexts: 31 For all the complexity of the evolution of the doctrine, ... what is not unclear and escapes all current confusion is its overall trend. From Brooks, 337 U.S. 49 [69 S.Ct. 918], the first Supreme Court case addressing an FTCA suit brought by a service person, to United States v. Johnson, supra, jurisprudence has been guided by an increasing sense of awe for things military. As a result, practically any suit that "implicates the military judgments and decisions," id. [481 U.S.] at 691 [107 S.Ct. at 2069], runs the risk of colliding with Feres. 32 Id. at 295 (emphasis in original). As the Sixth Circuit has observed: 33 Review of the [ ] Supreme Court precedents makes it clear that in recent years the Court has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military, without regard to the location of the event, the status (military or civilian) of the tortfeasor, or any nexus between the injury-producing event and the essential defense/combat purpose of the military activity from which it arose. 34 Major v. United States, 835 F.2d 641, 644-45 (6th Cir.1987) (emphasis in original), cert. denied, 487 U.S. 1218, 108 S.Ct. 2871, 101 L.Ed.2d 906 (1988); see Johnson, 481 U.S. 681, 107 S.Ct. 2063 (1987) (Feres doctrine barred heirs of Coast Guard pilot from maintaining wrongful death action based on negligence of civilian air traffic controllers); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (logic of Feres barred Army officer who was secretly administered doses of LSD from maintaining a Bivens action against the Army); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (logic of Feres bars enlisted military personnel from maintaining Bivens actions against their superior officers). Indeed, appellants have not been able to cite a single Supreme Court case in support of their position since Brooks, and we are aware of no such case. V 35 In light of the foregoing, we must affirm. In so doing, we follow a long tradition of reluctantly acknowledging the enormous breadth of a troubled doctrine. See, e.g., Persons, 925 F.2d at 299 ("Seemingly manacled by precedent, this Circuit has repeatedly expressed its strong reservations [about the Feres doctrine] before ultimately overcoming them.") (citing Atkinson, 825 F.2d at 206 (grudgingly reversing a prior decision in light of Johnson ), Monaco, 661 F.2d at 134 (confessing that "[t]he result in this case disturbs us ... If developed doctrine did not bind us we might be inclined to make an exception ... Unfortunately, we are bound"), and Veillette, 615 F.2d at 506 ("Reluctantly, we affirm")). 36 AFFIRMED. 1 "Because this case involves an appeal from an order dismissing for want of jurisdiction, we accept as true the factual allegations contained in appellants' complaint. Broudy v. United States, 661 F.2d 125, 126 n. 1 (9th Cir.1981)." Persons v. United States, 925 F.2d 292, 294 n. 1 (9th Cir.1991) 2 For an exhaustive analysis of the "evolution" of this troubled doctrine, see McGowan v. Scoggins, 890 F.2d 128, 129-36 (9th Cir.1989) 3 In its brief, the government has set forth an instructive comparison between the language in Mrs. Shearer's complaint and the language in appellants' complaint. The critical passages are nearly identical: Respondent's complaint strikes at the core of [the Feres ] concerns. In particular, respondent alleges that Private Shearer's superiors in the Army "negligently and carelessly failed to exert a reasonably sufficient control over Andrew Heard, ... failed to warn other persons that he was at large, [and] negligently and carelessly failed to ... remove Andrew Heard from active military duty." This allegation goes directly to the "management" of the military; it calls into question basic choices about the discipline, supervision, and control of a serviceman. Shearer, 473 U.S. at 58, 105 S.Ct. at 3043 (footnotes and citation omitted). The direct and proximate cause of the death of the decedent was the negligence of the defendant, the Department of the Army and its agents and employees[,] in carelessly, wrongfully and negligently failing to properly supervise, control and treat said Private Tarver and in failing to otherwise protect the decedent, William F. McAllister, from said Private Leon Tarver when defendant, it's [sic] employees and agents knew or should have known that Private Tarver posed a foreseeable risk of harm to the public. The supervision, control and treatment of said Private Leon Tarver did not require defendants, employees, and agents to exercise complex, subtle, and professional judgment as to composition, training[,] equipping and controlling of a military force. Estate of McAllister v. United States, Complaint at p 10. 4 The court in Persons affirmed dismissal of the medical malpractice claims only to the extent that those claims related to the treatment of the decedent. The court reversed and reinstated a claim that the government had been negligent in failing to provide psychological counseling to the decedent's family in the aftermath of his suicide. The court held that Feres did not bar this latter claim. See 925 F.2d at 297-99. Appellants have not alleged such a claim in their complaint here

Case: 18-15072 Date Filed: 07/30/2020 Page: 1 of 19 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-15072 Non-Argument Calendar ________________________ D.C. Docket No. 5:17-cr-00026-MTT-CHW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAAC J. CULVER, III, Defendant-Appellant. ________________________ No. 18-15073 Non-Argument Calendar ________________________ D.C. Docket No. 5:17-cr-00026-MTT-CHW-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus  Case: 18-15072 Date Filed: 07/30/2020 Page: 2 of 19 PROGRESSIVE CONSULTING TECHNOLOGIES, INC., Defendant-Appellant. ________________________ Appeals from the United States District Court for the Middle District of Georgia ________________________ (July 30, 2020) Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Isaac Culver appeals his convictions and 87-month sentence for conspiracy to commit mail and wire fraud, mail and wire fraud, and money laundering. His appeal was consolidated with that of his company, Progressive Consulting Technologies, Inc. (“Progressive”). Progressive was convicted of the same offenses and sentenced to 5-years probation and a $500,000 fine. In their consolidated appeal, Culver and Progressive (“Appellants”) first argue that insufficient evidence supported their conspiracy and substantive convictions for mail and wire fraud, because the government failed to show any intentional scheme to defraud. Second, they argue that insufficient evidence supported their convictions for conspiracy to commit money laundering because the government failed to prove concealment. Finally, Culver argues that the district court improperly applied a two-level sophisticated means enhancement in calculating his 2  Case: 18-15072 Date Filed: 07/30/2020 Page: 3 of 19 guideline sentence. After careful review, we affirm Appellants’ convictions and Culver’s sentence. I. In 2012, the Bibb County School District decided to upgrade the school system’s technology infrastructure. In June of that year, the School District published a Request for Qualifications (an “RFQ”) for an entity to fill the upgrade project’s Technical Project Manager role. The School District looked for a firm capable of providing “technical project management and network management support.” The School District wanted a firm to oversee the purchase and installation of the technology upgrades, rather than a firm to complete the installation itself. The RFQ was the first step in the process for an applicant to become the project manager. Relevant here, another step required applicants to submit letters of recommendation from companies with whom they had recently worked. In July 2012, Culver, on behalf of Progressive, completed an RFQ outlining Progressive’s qualifications. As part of its submission package, Progressive included a letter from Allen Stephen, CEO of CompTech, Inc., a federal contracting firm located in Dayton, Ohio. However, Culver actually wrote the recommendation letter and at Culver’s direction, Stephen put Culver’s letter on CompTech stationary. At trial, evidence was introduced that Culver knew the 3  Case: 18-15072 Date Filed: 07/30/2020 Page: 4 of 19 assertions contained in the letter were “totally made up.” Stephen also acknowledged that some assertions made in the letter were entirely false.1 Progressive was ultimately selected to serve as the project manager for the upgrade. The “Services Agreement” reflects the terms of the parties’ agreement. It states that as project manager, Progressive would “[i]nstall, relocate, configure, modify and test routers, switches, and servers”; assist with “infrastructure deployments and technical hardware refresh, renovation, and transition initiatives”; and “[e]valuate and recommend new and evolving networking technologies.” Appellants recommended the School District use the NComputing L300 device as part of its technology upgrade and the School Board approved the purchase. Culver was involved with the purchase of these devices. However, the School District believed the devices were purchased from CompTech, because Culver was directing CompTech to invoice the School District. The School District paid CompTech $3,768,000, but CompTech wired $2,151,750 of that amount back to Progressive so that Progressive could pay for the NComputing devices. In a separate transaction, CompTech wired $1,537,990 in profit to Progressive and kept the remaining $78,260 for itself. Out of the over $1.5 million wired to Progressive, Progressive wrote several checks payable to Culver. The 1 For example, Progressive and CompTech never worked together on the project Culver described in the letter. And, despite the letter’s claim that CompTech had an office in Atlanta, CompTech did not. 4  Case: 18-15072 Date Filed: 07/30/2020 Page: 5 of 19 School District did not know that CompTech was sending money back to Progressive as part of the purchase. In March 2013, the School District contacted CompTech to ask when the NComputing devices would be installed. Stephen, however, never intended CompTech to perform the installation because he believed Progressive was doing it. When Stephen contacted Culver about this issue, Culver sent Stephen information about the equipment and deployment and directed Stephen to respond to the School District’s inquiries. At some point during the spring of 2013, the School District began to question how the technical upgrade was being managed. On April 17, 2013, Culver sent Stephen a letter advising him that the School was putting together a timeline and record of payments to vendors for 2012. Culver again directed Stephen how to respond on behalf of CompTech. Culver told Stephen to say that in order to get the School District a discount on the NComputing devices, Progressive asked CompTech to purchase the devices and take a small profit “as a pass through for using CompTech’s GSA schedule.” Then on April 22, 2013, Culver sent Stephen a “heads up” email, letting Stephen know that he should tell the School District that CompTech was doing the install of the NComputing devices, and that CompTech had two “employees.” None of this information was true. 5  Case: 18-15072 Date Filed: 07/30/2020 Page: 6 of 19 Eventually, the School District shut down the technology upgrade project. Only 300 of the 15,000 NComputing devices purchased were installed. The School District deemed the rest of the devices “unusable” because key components, like monitors and keyboards, were not purchased. In June 2017, the government indicted Progressive and Culver based on their roles in this scheme. A jury found them guilty of conspiracy to commit mail and wire fraud, mail and wire fraud, and money laundering. Culver was sentenced to a term of 87-months imprisonment and Progressive was sentenced to 5-years probation and a $500,000 fine. This appeal followed. II. We review de novo whether sufficient evidence supported a jury’s guilty verdict. United States v. Foster, 878 F.3d 1297, 1303–04 (11th Cir. 2018). In doing so, we view the evidence in the light most favorable to the prosecution and resolve all reasonable inferences and credibility evaluations in favor of the verdict. Id. at 1304. In considering the sufficiency of the evidence, our only task is to determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. United States v. Feldman, 931 F.3d 1245, 1258 (11th Cir. 2019). The jury’s guilty verdict must be affirmed unless there is no reasonable construction of the evidence from which the jury could have found the defendant guilty beyond a reasonable doubt. Foster, 878 6  Case: 18-15072 Date Filed: 07/30/2020 Page: 7 of 19 F.3d at 1304. A jury is free to choose among reasonable constructions of the evidence, so it is unnecessary that the evidence exclude every reasonable theory of innocence or be wholly inconsistent with every conclusion except that of guilt. Id. It is not enough for a defendant to put forth a reasonable hypothesis of innocence, as the issue is not whether a jury reasonably could have acquitted, but whether it reasonably could have found guilt beyond a reasonable doubt. United States v. Beckles, 565 F.3d 832, 840–41 (11th Cir. 2009). Credibility determinations are also left to the jury. United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (per curiam). A jury is entitled to believe as much or as little of a witness’s testimony as it finds credible. United States v. Matthews, 431 F.3d 1296, 1312 (11th Cir. 2005) (per curiam). If the jury does not believe a defendant’s testimony, the jury may take it as evidence that “the opposite of his testimony is true.” United States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (quotation marks omitted). That said, we turn to Culver and Progressive’s two sufficiency-of-the- evidence arguments. A. MAIL AND WIRE FRAUD A conviction for wire fraud requires that the government prove beyond a reasonable doubt that the defendants (1) participated in a scheme or artifice to defraud, (2) with intent to defraud, and (3) used, or caused the use of, interstate 7  Case: 18-15072 Date Filed: 07/30/2020 Page: 8 of 19 wire transmissions for the purpose of executing the scheme or artifice to defraud. United States v. Machado, 886 F.3d 1070, 1082–83 (11th Cir. 2018). Mail and wire fraud “are analytically identical save for the method of execution.” United States v. Bradley, 644 F.3d 1213, 1238 (11th Cir. 2011); see also 18 U.S.C. §§ 1341, 1343. Courts have construed the phrase “scheme to defraud” broadly. United States v. Pendergraft, 297 F.3d 1198, 1208 (11th Cir. 2002). The word “defraud” means “the deprivation of something of value by trick, deceit, chicane, or overreaching.” Id. (quotation marks omitted). To establish a scheme to defraud, the government must offer “proof of a material misrepresentation, or the omission or concealment of a material fact calculated to deceive another out of money or property.” Bradley, 644 F.3d at 1238 (quotation marks omitted). In addition, the government must prove the defendant’s intent to defraud. Id. at 1239. “To gauge a defendant’s intent to commit a fraudulent scheme . . . we must determine whether the defendant attempted to obtain, by deceptive means, something to which he was not entitled.” Id. at 1240. An intent to defraud for purposes of mail and wire fraud may be inferred from the defendant’s conduct. United States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009). “Evidence that a defendant personally profited from a fraud may provide circumstantial evidence of 8  Case: 18-15072 Date Filed: 07/30/2020 Page: 9 of 19 an intent to participate in that fraud.” United States v. Naranjo, 634 F.3d 1198, 1207 (11th Cir. 2011). Appellants’ sufficiency argument rests on United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016), which held that mere deception is insufficient to constitute a “scheme to defraud.” Id. at 1313–14. In Takhalov, this Court reversed a wire fraud conviction because the district court refused to give an instruction to the jury that the defendants intended to defraud their victims. Id. at 1315–16, 1325. In that case, the government presented evidence to establish that the defendants tricked men into coming into the defendants’ nightclubs by paying women (B-girls) to lure them into their clubs. Id. at 1310. Once inside, club employees “would pour vodka in the men’s beer to get them drunker, misrepresent the prices of drinks, hide menus, cover up prices, and even forge the men’s signatures on credit-card receipts.” Id. The defendants asked the district court to instruct the jury that “[f]ailure to disclose the financial arrangement between the B- girls and the Bar, in and of itself, is not sufficient to convict a defendant of any offense[.]” Id. at 1314 (alterations in original) (quotation marks omitted). On appeal, this Court held that the district court should have charged the jury that in order to find a scheme to defraud, it had to find both deception about the nature of the transaction and an intent to harm. Id. at 1312–16. 9  Case: 18-15072 Date Filed: 07/30/2020 Page: 10 of 19 Here, Appellants argue that although there was sufficient evidence that they deceived the school district, the evidence was not sufficient to prove their intent to defraud. Appellants claim there was no evidence of intent to misrepresent the price or fees charged and no evidence that they misrepresented the characteristics or quality of the devices. However, Appellants’ Takhalov-based arguments are not persuasive. There was sufficient evidence here to support Culver’s and Progressive’s conspiracy and substantive wire and mail fraud convictions. Progressive, through its agents, “constructed an elaborate scheme that allowed them to reap inflated profits” and left the School District “with almost nothing for its $3,768,000.00 investment.” R. Doc. 202 at 3. Witnesses testified that Appellants deceived the School District into hiring Progressive as the project manager because Progressive fabricated a recommendation letter from CompTech. There was also testimony that Appellants used CompTech as a pass-through for the purchase of the devices to hide the fact that Progressive was acting as a vendor. This is relevant because under the agreement with the School District, Progressive was to provide product management services, and when Progressive acted as a vendor, it created a conflict of interest. Based on this evidence, the jury could reasonably infer that Appellants made misrepresentations to the School District in an “attempt[] to obtain, by 10  Case: 18-15072 Date Filed: 07/30/2020 Page: 11 of 19 deceptive means, something to which [they were] not entitled.” Bradley, 644 F.3d at 1240. Appellants also argue that any misrepresentations they made did not affect the essential nature of the parties’ bargain and therefore were not material. Because fraud requires a false statement of “material” fact, Appellants argue this evidence was not sufficient to prove mail and wire fraud. See Maxwell, 579 F.3d at 1299 (“A scheme to defraud requires proof of a material misrepresentation . . . calculated to deceive another out of money or property.”). This Court addressed a similar situation in Maxwell. There, the defendant acquired state and federal contracts to perform work as minority contractors, even though they were not minorities. Id. at 1291. The defendant argued that, although various contracts he signed had explicit provisions requiring the work to be performed by a minority contractor, he did not deprive the victims of money or property because they received the work they sought. Id. at 1302. A panel of this Court rejected the defendant’s argument, noting that the mail and wire fraud statutes “also seek to punish the intent to obtain money or property from a victim by means of fraud and deceit.” Id. Appellants argue that Maxwell is distinguishable because the contract in that case “contained explicit provisions that only minority businesses could apply,” whereas Progressive’s agreement with the School District “did not include any 11  Case: 18-15072 Date Filed: 07/30/2020 Page: 12 of 19 provision preventing them from acting as the vendor for the NComputing transaction and/or to provide conflict-free advice.” Br. of Appellants at 31. But this fact does not distinguish Appellants’ case. A misrepresentation need not be a term included in the parties’ agreement for it to be material. Rather, a misrepresentation is material if it has “a natural tendency to influence, or is capable of influencing, the decision maker to whom it is addressed.” Maxwell, 579 F.3d at 1299 (alteration adopted) (quotation marks omitted). A jury could reasonably find that Appellants’ fabricated recommendation letter and misrepresentations about CompTech’s role influenced the School District in purchasing the NComputing devices. We therefore affirm the jury’s verdict as to the mail and wire fraud convictions. B. MONEY LAUNDERING We next examine the sufficiency of the evidence supporting Appellants’ convictions on the money laundering counts under 18 U.S.C. § 1956(a)(1)(B)(i). Section 1956(a)(1)(B)(i) is sometimes referred to as the “concealment” provision of the money laundering statute. United States v. Majors, 196 F.3d 1206, 1211 (11th Cir. 1999). This section “was designed to punish defendants who thereafter take the additional step of attempting to legitimize their proceeds so that observers think their money is derived from legal enterprises.” Id. at 1212. 12  Case: 18-15072 Date Filed: 07/30/2020 Page: 13 of 19 In this case, the government had to prove to the jury that: (1) Appellants conducted or attempted to conduct a financial transaction; (2) the transaction involved the proceeds of a statutorily specified unlawful activity; (3) Appellants knew the proceeds were from some form of illegal activity; and (4) they knew a purpose of the transaction was to conceal or disguise the nature, location, source, ownership, or control of the illegal proceeds. United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002) (citing § 1956(a)(1)(B)(i)). Appellants challenge the sufficiency of the evidence only as to the fourth element. Specifically, Appellants argue the government’s evidence was insufficient to prove the existence of “any transaction that was designed to conceal the nature, location, source, ownership, or control of any illegal proceeds” as required under the concealment provision in § 1956(a)(1)(B)(i). Appellants say they did not disguise any transaction with aliases, fake addresses, complicated or unnecessary transactions, or engage in any other concealment efforts, so the government’s evidence did not show the “animating purpose” of the transaction made it more difficult for law enforcement to trace the funds at issue. Br. of Appellants at 33. In determining whether there was a purpose of concealment, this Court looks to whether there is evidence of: [S]tatements by a defendant probative of intent to conceal; unusual secrecy surrounding the transaction; structuring the transaction in a way to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of the transaction; using 13  Case: 18-15072 Date Filed: 07/30/2020 Page: 14 of 19 third parties to conceal the real owner; a series of unusual financial moves cumulating in the transaction; or expert testimony on practices of criminals. United States v. Blankenship, 382 F.3d 1110, 1130 (11th Cir. 2004) (alteration adopted) (quoting Majors, 196 F.3d at 1213 n.18). In Blankenship, the defendant deposited illegitimate funds into his business account, and then transferred those funds into bank accounts in his own name. Id. at 1128–29. We held the evidence was insufficient to show concealment because (1) the money was in accounts in the defendant’s name, and (2) the accounts were private so the defendant “could not reasonably have anticipated” receiving a “marginal increase in secrecy” by moving the money between those accounts. Id. By comparison, in Majors, defendants deposited illegitimate funds in business accounts of two corporations, transferred those funds to other, legitimate third-party corporations, and then transferred those funds from the legitimate corporations directly into their own pockets. Majors, 196 F.3d at 1214. This Court held that evidence was sufficient to prove money laundering because, in the light most favorable to the government, it supported the jury’s finding that the defendants “had a specific intent to structure their financial transactions so as to conceal or disguise the true nature and source of the transfer of funds between corporations and, ultimately, to them.” Id. Appellants say this case is different because they funneled funds through CompTech only for the purpose of defrauding the School District, not to conceal 14  Case: 18-15072 Date Filed: 07/30/2020 Page: 15 of 19 the funds themselves. Although the evidence introduced at trial shows that Appellants funneled the purchase of NComputing devices through CompTech to deceive the School District, there was other evidence in the record that showed concealment of the funds. For instance, investigators had to examine CompTech’s account statements in order to discover the fact that, after Progressive paid NComputing, it retained a profit from the funds paid by the school district for the NComputing devices. In addition, Progressive instructed CompTech to wire the funds from the NComputing devices in two separate transactions in two separate amounts. Based on this evidence, a rational juror could—and did—conclude that Appellants’ use of CompTech as a third party, and directions to wire funds of $2,151,750 and $1,537,990 in two separate transactions, was intended to conceal the illegitimate proceeds of their fraud. See Blankenship, 382 F.3d at 1130 (looking to “secrecy surrounding the transaction,” “depositing illegal profits in the bank account of a legitimate business,” and “using third parties to conceal the real owner”). In sum, and taking the evidence in a light most favorable to the government, Culver and Progressive’s transfer of money in two amounts through a third-party company constituted sufficient evidence to show that a purpose of the transaction was to conceal or disguise the source, ownership, or control of the illegal proceeds. 15  Case: 18-15072 Date Filed: 07/30/2020 Page: 16 of 19 We therefore affirm Appellants’ convictions for conspiracy to commit money laundering. III. Culver also argues that the district court miscalculated the Sentencing Guidelines range by erroneously finding his conduct fell within the “sophisticated means” enhancement. See U.S. Sentencing Guidelines § 2B1.1(b)(10)(C). He says Appellants’ scheme “was neither complex nor intricate,” as is required to increase a sentence based on a sophisticated-means offense. Br. of Appellants at 37. We review for clear error the district court’s findings of fact related to the imposition of sentencing enhancements, including a finding that the defendant used sophisticated means. United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010). When reviewing for clear error, we will not disturb a district court’s findings “unless we are left with a definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted). After careful review, we hold that the district court did not clearly err in applying the sophisticated-means enhancement. The Sentencing Guidelines provide for a two-point enhancement of a defendant’s offense level if the “offense . . . involved sophisticated means.” USSG § 2B1.1(b)(10)(C). The sophisticated means enhancement should only be applied 16  Case: 18-15072 Date Filed: 07/30/2020 Page: 17 of 19 to “especially complex or especially intricate offense conduct pertaining to the execution or concealment of” the scheme. Id. § 2B1.1(b)(10) cmt. n.9(B). “Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means.” Id. There is no requirement that each of a defendant’s individual actions be sophisticated in order to impose the enhancement. Ghertler, 605 F.3d at 1267. Rather, it is enough if the totality of the scheme was sophisticated. Id. We cannot say the district court clearly erred in finding that Culver used sophisticated means to perpetrate or conceal his fraudulent scheme because his offense conduct could be viewed as “especially complex or . . . intricate.” See USSG § 2B1.1(b)(10) cmt. n.9(B). Here, the district court found that increasing Culver’s sentence was warranted because of the “significan[ce]” of Culver’s attempts to cover up his conduct by directing CompTech to communicate with the School District. The district court also found (albeit when discussing a separate ground for increasing Culver’s sentence) that the scheme continued for an extended period of time; Appellants “us[ed] deception to get the contract to become the project manager”; and Appellants engaged in a well-documented cover-up “as the School District began to ask questions.” 17  Case: 18-15072 Date Filed: 07/30/2020 Page: 18 of 19 Like in Ghertler, it may be true that “aspects of [Culver’s] scheme were not sophisticated,” but under our deferential standard of review, the totality of his activities spanning July 2012 through April 2013 is sufficient to support the district court’s finding that Culver used sophisticated means. 605 F.3d at 1268; see United States v. Feaster, 798 F.3d 1374, 1381 (11th Cir. 2015) (“Regardless of whether the defendant undertook affirmative acts of concealment, the scheme itself may be designed in a sophisticated way that makes it unlikely to be detected, allowing it to continue for an extended period and to impose larger losses.”). These activities included: providing a fabricated reference letter to obtain a government contract; using false invoices to hide Progressive’s role as a profiting vendor; sending a deceptive email, copying the School District, that gave the appearance of a fake arm’s length negotiation; and feeding CompTech responses to the School District’s inquiries. In short, Culver’s offenses “involved repetitive, coordinated conduct designed to allow him to execute his fraud and evade detection.” United States v. Bane, 720 F.3d 818, 826–27 (11th Cir. 2013) (affirming imposition of a longer sentence when offense involved multiple corporations, required employees to create a paper trail to mask the fraud, and involved steps to conceal the offense). Thus, although Culver did not attempt to conceal his role in the fraud through false identities or fictitious entities, the totality of his activities carried out over the course of his relationship with the School District were sufficiently 18  Case: 18-15072 Date Filed: 07/30/2020 Page: 19 of 19 complex to support finding that he used sophisticated means. See Ghertler, 605 F.3d at 1267–68. We therefore affirm the district court’s application of the sophisticated-means enhancement and Culver’s 87-month sentence. AFFIRMED. 19 

23 B.R. 392 (1982) In the Matter of Oliver PLUNKETT, Monica Plunkett, Debtors. QUARLES HOUSE APARTMENTS, Plaintiff, v. Oliver PLUNKETT, Monica Plunkett, Thomas Korb, Interim Trustee, Defendants. QUARLES HOUSE APARTMENTS, Plaintiff, v. Oliver PLUNKETT, Monica Plunkett, Ralph Anzivino, Trustee, Defendants. Bankruptcy No. 82-01119, Adv. Nos. 82-0481, 82-0674. United States Bankruptcy Court, E.D. Wisconsin. September 27, 1982. *393 Harry W. Theuerkauf, Keith R. Varner, Milwaukee, Wis., for plaintiff. Donald A. Schoenfeld, Habush, Habush & Davis, James Shellow, Shellow, Shellow & Glynn, Milwaukee, Wis., for debtors/defendants. David A. Erne, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, Wis., for trustee Anzivino. Richard E. Braun, Whyte & Hirschboeck, Milwaukee, Wis., for Unsecured Creditors' Committee. Stephen E. Kravit, Godfrey & Kahn, Milwaukee, Wis., for Continental Bank. MEMORANDUM DECISION C.N. CLEVERT, Bankruptcy Judge. The narrow issue before the court, on the Trustee's motion for partial summary judgment, is whether, as of the date of the filing of his Chapter 11 petition, Oliver Plunkett's right to manage the Quarles House Apartments and to receive 6% of the annual gross rental as a management fee, in accordance with the Quarles House Apartments partnership agreement, constituted property of the estate under 11 U.S.C. § 541. For the purpose of this motion, the parties have stipulated to the facts. The relevant facts are as follows: The plaintiff, Quarles House Apartments ("Quarles House"), is a Wisconsin general partnership, organized on or about June 1, 1978, for the purpose of purchasing, owning and operating income producing property, including the Quarles House Apartments, located at 1570 North Prospect Avenue, Milwaukee, Wisconsin. Section 5.01[1] of the partnership agreement designated Oliver Plunkett ("Plunkett"), the debtor, as the managing partner of the Quarles House and gave him "full charge and control of the management, conduct and operation of the ordinary affairs of the Partnership business". The provision further entitled him to receive a management fee equal to 6% of the annual gross rental income, which amounted to $31,320 in 1981. From June of 1978, Plunkett acted as managing partner of the Quarles House and was acting in that capacity on April 15, 1982, the date that he and his wife filed a joint Chapter 11 petition. On April 20, 1982, five days after the filing of the petition, at a meeting of investors of the Quarles House, 73.56% of the investors voted to remove Oliver Plunkett as managing partner. The legal effect of the vote to remove him is the ultimate issue presented by this motion. 11 U.S.C. § 541 provides, in pertinent part: (a) The commencement of a cause under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property *394 (1) . . . all legal or equitable interests of the debtor in property as of the commencement of the case. The broad language of the statute reflects Congress' intent to expand the scope of "property of the estate" to eliminate substantial litigation which arose under § 70 of the Bankruptcy Act of 1898: The bill makes significant changes in what constitutes property of the estate. Current law is a complicated melange of references to State law, and does little to further the bankruptcy policy of distribution of the debtor's property to his creditor in satisfaction of his debts. . . . The bill determines what is property of the estate by a simple reference to what interests in property the debtor has at the commencement of the case. This includes all interests, such as interests in real or personal property, tangible and intangible property, choses in action, causes of action, rights such as copyrights, trade-marks, patents and processes, contingent interests and future interests, whether or not transferable by the debtor. . . . These changes will bring anything of value that the debtors have into the estate. The exemption section will permit an individual debtor to take out of the estate that property that is necessary for a fresh start and for the support of himself and his dependents. Certain restrictions on the transferability of property will prevent the trustee from realizing on some items of property of the estate. But on the whole, the trustee will be able to bring all property together for a coherent evaluation of its value and transferability, and then to dispose of it for the benefit of the debtor's creditors. H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 175-176 (September 8, 1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6136. Following the intended comprehensive approach to property of the estate, courts interpreting § 541 have generally protected a debtor's contractual right as an asset of the estate.[2] By its very nature and terms, the managing agreement between Plunkett and the other general partners of Quarles House constituted a contract, a necessary element of a partnership under Wisconsin law.[3] Absent any evidence that the Partnership Agreement is unenforceable, this court must conclude that the contractual provision in dispute was valid and enforceable. Any rights, benefits or duties flowing from this provision, therefore, constituted property of the estate of the debtor within the meaning of 11 U.S.C. § 541 as of April 15, 1982. Accordingly, the trustee's motion for partial summary judgment is hereby granted and Oliver Plunkett's right to manage the ordinary affairs of the Quarles House Apartments and receive a management fee equal to 6% of the annual gross rental income from the Quarles House Apartments, in accordance with § 5.01 of the Quarles House partnership agreement dated June 1, 1978, is hereby held to be property of the joint Chapter 11 estate of Oliver and Monica Plunkett, as defined by 11 U.S.C. § 541(a). NOTES [1] Section 5.01. Managing Partner. For convenience and for the efficient management of Partnership affairs, and not in derogation of any managerial rights which the other Partners may have, Oliver Plunkett shall be the Managing Partner under this Agreement, and he shall have full charge and control of the management, conduct and operation of the ordinary affairs of the Partnership business. The Managing Partner shall promptly take all action which may be necessary or appropriate for the purchase and development of the project in accordance with the provisions of this Agreement and applicable laws and regulations. The Managing Partner shall devote to the Partnership such time as may be necessary for the proper performance of his duties. The Managing Partner shall cause the Partnership to obtain and keep in force insurance of such types, including fire and extended coverage in public liability insurance, in such amounts, on such terms and with such carriers as will in his judgment adequately protect the Partnership and its property. The Managing Partner shall be entitled to a management fee equal to 6% of the annual gross rental income. [2] See, In re Adana Mortgage Bankers, Inc., 12 B.R. 989, 7 B.C.D. (CRR) 1085 (Bkrtcy.N.D.Ga. 1980) (the debtor's right to hold and service mortgages under an agreement with Government National Mortgage Association was property of the estate); Varisco v. Oroweat (In re Varisco), 16 B.R. 634, 8 B.C.D. (CRR) 772, Bankr.L.Rep. (CCH), ¶ 68528 (Bkrtcy.M.D.Fla. 1981) (the debtor's exclusive right under a franchise agreement to distribute baked goods constituted property of the estate). [3] Sander v. Newman, 174 Wis. 321, 327-328, 181 N.W. 822 (1921); see, also, Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis.2d 349, 359, 286 N.W.2d 831 (1980).

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) Katrina L. Robinson, ) ) Plaintiff, ) ) v. ) civil Acri@n N@. 12 0 ) 073 President Barack Obama et al., ) ) Defendants. ) ) MEMORANDUM OPINION This matter is before the Court on review of plaintiff s motion for a temporary restraining order ("TRC)"), which is accompanied by her complaint and application for leave to proceed in forma pauperis The Court will grant the z`n_forma pauperis application, deny the TRO motion, and dismiss the case pursuant to 28 U.S.C. § l9l5(e)(2)(B), which requires dismissal of a complaint that is found to be frivolous. Plaintiff is a resident of Richmond, Virginia, who is suing President Barack Obama and Pastor Tony Smith of Baltimore, Maryland. See Compl. Caption. She alleges that Smith "has presented to numerous Police Departments and Media Outlets an Executive Order to force the Plaintiff (Katrina Robinson) a public prostitute." Compl. at l (parenthesis in original). According to plaintiff, "[t]he latest presentation" was at a shelter in San Antonio, Texas. Id. Plaintiff seems to claim that as a result of the alleged executive order, she is under surveillance by the FBI and "a group of people from Baltimore, MD" who allegedly is "promoting me as a prostitute across state lines." Id. She alleges that Smith “claims to have permission from the white house to publish naked pictures, false media to TV stations, offer satellite TV’s [sic] for o public viewing and false newspaper articles (including Camden Yards, Walmart, and H.E.B. markets). Id. (parenthesis in original). In addition, plaintiff alleges that "[f]ootage is being distributed in several regions: MD, NC, TX, to judges, media and online[,] [and that] a Facebook group [is] dedicated to this effort.” Id. She seeks, among other relief, "all documents issued by the President, his cabinet, or administration with my name identified as the person of interest . . . .," and "[a]ll documents distributed by Pastor Tony Smith, his membership, or business affiliates with my name identified as the person of interest . . . ." Ia’. at 2. ln the TRO motion, plaintiff seeks an order directing defendants to "cease" from issuing executive orders and "memorandum [sic] developed & implemented by the President naming me as person of interest[,]" and any "accompanying orders given to militia, FBI Agents, or Secret Service Agents [,] [and the Richmond, Virginia, police department] to have me restrained or restricted or arrested." TR() Mot. at l. A complaint may be dismissed under 28 U.S.C. § l9l5(e)(2) as frivolous when, as found here, it describes fantastic or delusional scenarios, or contains "fanciful factual allegation[s]." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see Best v. Kelly, 39 F.3d 328, 330-31 (D.C. Cir. l994). Furthermore, a complaint must be dismissed when, as also found here, it is so "patently insubstantial" as to deprive the Court of subject matter jurisdiction. Tooley v. Napolitano, 586 F.3d 1006, l0l0 (D.C. Cir. 2009); accord Cala’well v. Kagan, 777 F. Supp.Zd 177, 178 (D.D.C. 201 l). Because the complaint is frivolous, no basis exists for issuing a TRO. Accordingly, a separate order denying plaintiffs TRO motion and dismissing the case accompanies this Memorandum Opinion. y /“ / § Un` dSt ?/IF trictJudge Date: January l_/\_, 2012 ' ‘/}(p/.,LL,?

546 F.2d 570 1976-2 Trade Cases 61,184 CHARLOTTE TELECASTERS, INC., and North Carolina Cable, Inc.,Appellants,Television Presentations, Inc., Plaintiff,v.JEFFERSON-PILOT CORPORATION et al., Appellees. No. 75-2326. United States Court of Appeals,Fourth Circuit. Argued June 9, 1976.Decided Dec. 10, 1976. Jerry S. Cohen, Washington, D. C. (Michael D. Hausfeld, Herbert E. Milstein, Washington, D. C., Jerry W. Whitley, Charlotte, N. C., on brief), for appellants. William L. Stocks, Greensboro, N. C. (Welch Jordan, Janet L. Covey, Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), for appellees. Before HAYNSWORTH, Chief Circuit Judge, and BUTZNER and WIDENER, Circuit Judges. BUTZNER, Circuit Judge: 1 Charlotte Telecasters, Inc., and Television Presentations, Inc., (Telecasters) appeal the summary judgment dismissing their antitrust claim against Jefferson-Pilot Corp., Jefferson Standard Broadcast Co., and Jefferson-Carolina Corp. (Jefferson). Telecasters charged that Jefferson conspired with members of the city council of Charlotte, North Carolina, to obtain a television franchise, and to prevent the award of a franchise to the applicant in which Telecasters had an interest.1 The district court ruled that Telecasters' claim was barred by the statute of limitations, and, alternatively, that Jefferson did not violate Section 1 of the Sherman Act, 15 U.S.C. § 1.2 Since we find that the claim was barred by the statute of limitations, we do not consider whether summary judgment was appropriate on the merits. 2 * On January 16, 1967, the city council enacted an ordinance authorizing non-exclusive franchises for cable television. The council awarded franchises to Jefferson and another applicant on March 20, 1967, and confirmed these awards on April 3, 1967. Although Telecasters did not receive a franchise, it was told, at the March meeting, that additional franchises might be considered in the future. On August 7, 1967, Telecasters asked the council to reconsider its application. The council, however took no further action. 3 Telecasters commenced this action on September 7, 1971. Section 4B of the Clayton Act, 15 U.S.C. § 15b, provides that an action to enforce the antitrust laws "shall be forever barred unless commenced within four years after the cause of action accrued." A cause of action generally accrues each time the defendant commits an act that injures the plaintiff's business. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Accordingly, this action would ordinarily be barred unless an act injurious to Telecasters' business occurred after September 7, 1967. 4 Telecasters contends that the defendants were engaged in a continuing conspiracy to prevent it from obtaining a franchise. It argues that the cause of action did not accrue until the council had had a reasonable time at least thirty days to consider its request of August 7, 1967, and that the council's silence was an overt act of refusal. On the other hand, Jefferson claims that the alleged violation consisted of a single act which injured Telecasters. Under its theory, the cause of action accrued when the council confirmed the awards to Telecasters' competitors on April 3, 1967. 5 In deciding the date from which the cause of action accrued, we must determine whether the injury alleged by Telecasters was caused by a single or a continuing violation of the Act. Distinguishing between the two, the Supreme Court has held that a single violation necessarily occurs "within some specific and limited time span," whereas continuing violations "inflict continuing and accumulating harm." Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n.15, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231 (1968). For this reason, exclusion from participation in an industry constitutes a continuing conspiracy, unless the exclusion is final in its impact. Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 126-27 (5th Cir. 1975); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264, 1270 (9th Cir. 1975). Thus, each refusal to deal gives rise to a claim under the antitrust laws. Pioneer Co. v. Talon, Inc., 462 F.2d 1106, 1108-09 (8th Cir. 1972). Nevertheless, even when the plaintiff charges a continual refusal to deal, the statute of limitations commences to run from the last overt act causing injury to the plaintiff's business. Poster Exchange,517 F.2d at 128. 6 In this case, Telecasters was not excluded from participation in the cable television industry by a single act of the alleged conspirators at one specific time. Since the council adopted a non-exclusive ordinance and left open the possibility of granting additional franchises, Telecasters has properly alleged a continuing conspiracy. However, the last overt act of the alleged conspiracy was the council's consideration of Telecasters' request on August 7, 1967. On that occasion, the mayor responded that the council would "leave it as it is." His additional comment that the council "will give some thought to what (Telecasters' spokesman) has said today" did not promise action in the future. The council's silence after the meeting, therefore, does not constitute an overt act. Cf. Poster Exchange, 517 F.2d at 128. Since no overt act occurred within the four years preceding the filing of the complaint, the action is barred unless it falls within one of the exceptions to the statute of limitations. II 7 Claiming that its loss of future profits could not be ascertained in 1967, Telecasters asserts that it is entitled to rely on the exception to the statute of limitations created by Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-42, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). In Zenith, the Court held that a cause of action for future damages does not accrue until the damages become reasonably ascertainable and, therefore, capable of proof. However, Zenith did not prescribe new standards for determining whether damages are too speculative to permit recovery. The principal cases explaining the criteria for ascertaining whether damages are speculative remain Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946) and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562-66, 51 S.Ct. 248, 75 L.Ed. 544 (1931). These cases teach that when the defendant's wrong has been proven, "the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, 'juries are allowed to act upon probable and inferential, as well as direct and positive proof.' " 327 U.S. at 264, 66 S.Ct. at 580. Tested by these principles, we believe that Telecasters' damages could have been ascertained in September, 1967, with sufficient certainty to sustain a verdict. 8 Telecasters concedes that its future profits would depend on the number of subscribers to its cable television system. It argues that the subscriptions could not be estimated accurately until 1969 when Jefferson's success in signing subscribers could be evaluated. 9 We are not persuaded by Telecasters' argument. Telecasters' application to the council early in 1967 included its projection of subscribers and gross receipts for the first five years of operation under a franchise. These projections indicate that after the fourth year, its system would serve 29,000 to 30,000 subscribers, and the gross receipts would stabilize at approximately $1,740,000 to $1,800,000. These projections appear sufficient to enable a jury to make a just and reasonable award of damages. Telecasters introduced no proof that cast doubt on its projections or indicated that they were speculative. Since the projections were designed to induce the council to award a franchise, the district court could conclude, in the absence of evidence to the contrary, that they were rationally based on valid assumptions. Under these circumstances, we conclude that the damages which Telecasters sought were not too speculative to prevent the cause of action from accruing at the time of the last overt act, August 7, 1967. Cf. Woods Exploration & Producing Co. v. Aluminum Co. of America, 509 F.2d 784, 792 (5th Cir. 1975); Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 234 (6th Cir. 1974). III 10 Telecasters also seeks application of the familiar rule that fraudulent concealment tolls a federal statute of limitations. See Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946). In Weinberger v. Retail Credit Co., 498 F.2d 552, 555 (4th Cir. 1974), we emphasized, however, that merely intoning the word "fraudulently" is not sufficient to avoid the statute. We stated that the elements of this counterpoise are "(1) fraudulent concealment by the party raising the statute together with (2) the other party's failure to discover the facts which are the basis of his cause of action despite (3) the exercise of due diligence on his part." Since this means of avoiding the statute was created by courts of equity, we adopted their requirement that the facts necessary to show these elements should be distinctly pleaded. Cf. Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 88 (2d Cir. 1961). In Stearns v. Page, 48 U.S. (7 How.) 818, 829, 12 L.Ed. 928 (1849), the Court explained the reasons for these essential allegations as follows: 11 "A complainant, (to avoid the statute of limitations,) must state in his bill distinctly the particular act of fraud, misrepresentation, or concealment, must specify how, when, and in what manner, it was perpetrated. The charges must be definite and reasonably certain, capable of proof, and clearly proved. . . . And especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see, whether, by the exercise of ordinary diligence, the discovery might not have been before made." 12 Telecasters has made no averment of fraudulent concealment. We have no doubt that the district court would have excused its initial omission, and allowed it to respond to Jefferson's plea of the statute. But Telecasters sought no leave to amend. Obviously, Telecasters had acquired information about its cause of action by September 7, 1971, when it filed its complaint, but it has not shown, by amendment to its pleadings, by affidavit, or otherwise, when and how it got this knowledge. It emphasizes that it learned additional facts after the suit was filed, but this information simply serves to corroborate the charge of conspiracy that had already been made, rather than to support Telecasters' claim that it was ignorant of the facts necessary to institute its suit.3 Moreover, Telecasters has introduced no evidence from which the district court could infer that it exercised diligence to learn the facts before the statute barred its claim. At most, its claim is a plea of ignorance, but this is insufficient to avoid the statute. Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 234 (6th Cir. 1974). 13 We affirm the judgment of the district court on the ground that the action is barred by the statute of limitations. 1 The applicant was North Carolina Cable, Inc., which, though a party to the proceedings in the district court, has not appealed. Telecasters claims that it was interested in the application as a joint venturer, and, for simplicity, we will refer to Telecasters as the applicant 2 The district court directed the entry of a final judgment as to this single claim of the multi-claim complaint pursuant to Fed.R.Civ.P. 54(b) 3 Indeed, for aught that appears in this record, Telecasters may have known on August 7, 1967, of the facts that led it to believe that Jefferson and members of the council had conspired to violate the antitrust laws. On that date, a spokesman for Telecasters told the city council that Telecasters could bring a legal action, but that it preferred to have the council grant it a franchise "without going into a federal court." It has never explained what proceeding it contemplated, other than an action for violation of the antitrust laws, although it bears the burden of proof on the issue of fraudulent concealment. Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 233 (6th Cir. 1974)

479 So.2d 1277 (1985) Wesley McCain HUGHSTON v. Shellie Robin IVEY. Civ. 4925. Court of Civil Appeals of Alabama. October 16, 1985. Rehearing Denied November 20, 1985. B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, for appellant. No Brief for appellee. EDWARD N. SCRUGGS, Retired Circuit Judge. This is a child custody modification case. When the parties were divorced in January 1982, the final judgment of the Circuit Court of Talladega County approved an agreement of the parties whereby the mother was granted custody of their only child, Adam. In June 1983, custody was changed to the father by an agreement which was ratified and confirmed by the trial court. The wife filed the present proceedings *1278 in early 1985, seeking the child's custody because of an alleged material change in the circumstances. After a contested trial, a judgment was rendered which found that there had been a material change in the mother's circumstances and, no evidence having been introduced that the mother was an unfit person to have Adam's custody, it was ordered that the parents alternate as to the boy's custody each six months. The father appealed from that judgment and ably argues the adequacy of the evidence to support the custody modification judgment. The mother has not favored this court with a brief. We detail the pertinent evidence upon the issue in question. At the time the father was granted custody, the mother was employed by the Talladega Sheriff's Department, and she lived in the City of Talladega. The child was kept by the maternal grandmother while the mother worked; but, after serious surgery was performed upon the maternal grandfather in May 1983, the grandmother could not look after both the grandson and her ill husband, who was not able to go back to his employment until July 1983. The mother had no one to keep the child while she was on her job and, by agreement of the parties, the custody change to the father was made in June 1983. The son was almost two years of age at that time. The mother filed for bankruptcy two months before she signed the 1983 custody agreement. After the father obtained Adam's custody, the mother lost her employment and, when her unemployment compensation benefits expired, she moved back home with her parents because she could not find another job. In May 1984, the mother married Mr. Ivey, who is also from the Talladega area. For several months they lived near Talladega, but they moved to Ft. Walton, Florida, around May 1, 1985. Mr. Ivey has permanent office employment with a construction business as a project manager, where he earns about $26,000 per year, not including fringe benefits. They rent a very adequate home in Ft. Walton. The mother does not work and has no plans to seek employment. Consequently, she is at home all day and is available to provide personal, full-time care for Adam, along with the seven-year-old daughter of her new husband. Ft. Walton is a five-hour drive from Talladega for the Iveys, but the mother missed few, if any, every-other-weekend visits with her son. When her visitations end, Adam objects to going home to his father. The boy and Mr. Ivey have a good relationship. Mr. Ivey is willing to support Adam while he is in his wife's custody, at which time Adam will become a dependent insured by the stepfather's health insurance policy. When the father first had custody, he and the boy lived with the paternal grandmother in Talladega. The child has a close relationship with the paternal grandmother. Because the father and that grandmother were each employed, the child attended a nursery school from about 8:00 A.M. until around 4:30 P.M. Adam did well in that school and established friendships with the other children. At the time of the hearing in May 1985, the father's employment was from 6:30 A.M. until 4:30 or 5:30 P.M. on Monday through Friday of each week. He earns about $16,000 yearly. The father recently remarried and has an adequate home for Adam. This is his present wife's first marriage. She is an elementary school teacher and assists Adam in his intellectual growth. The boy is a dependent under both the father's and stepmother's health policies. No question was made by the evidence as to either parent's fitness to have custody of the boy, and no issue was raised as to the integrity, character or habits of either new spouse. No adverse evidence was presented as to the manner in which the father administered to the needs of the child or as to Adam's environment while he was in his father's custody. When the trial court hears the evidence ore tenus in a child custody modification case, as it did here, we presume that the trial court was correct and reverse only for an abuse of discretion or where *1279 the judgment is so unsupported by the evidence as to be palpably wrong. Matter of Young, 456 So.2d 823 (Ala.Civ.App. 1984.) When a noncustodial parent attempts to modify a judgment which granted custody to the other parent, the noncustodial parent bears the affirmative burden of proving that a change of custody would materially promote the best interests of the child. Ex parte McClendon, 455 So. 863 (Ala.1984); Clayton v. Pair, 457 So.2d 420 (Ala.Civ.App.1984). The petitioning parent must show that the positive good brought about by modifying the judgment more than offsets the inherently disruptive effect of uprooting the child. McClendon, supra; Clayton, supra. Where a child custody award has been made to the father and the mother later filed modification proceedings, it is insufficient for the mother to show that she has remarried, reformed her lifestyle and improved her financial condition; but she bears the burden of reasonably satisfying the trial court from the evidence and reasonable inferences therefrom that the child's best interest will be promoted by a change in custody. McClendon, supra. Here, there was evidence of a favorable material change in the mother's circumstances. She worked and had no one to look after Adam for a period of time after surgery was performed upon the maternal grandfather. Custody was changed to the father on that account. That agreed modification was for the benefit of the child and did not occur because of the mother's fault or unfitness. Both of the parties have fine new spouses. The mother is presently able to administer to Adam's needs on a full-time basis in an adequate home where he will be loved and cared for. While both parties are fit parents and either would provide him with a nurturing, loving home, the mother has shown that, since she agreed to give up the custody of Adam, her circumstances have improved and that she is able to provide for her son, not only in the same or equal manner that the father and stepmother have been providing for him but in an improved manner, since Adam must attend a nursery school while the father and his wife both work and since the mother is now able to devote her time and talents to the rearing of Adam on a full-time basis. Such constitutes adequate proof that Adam's interests are promoted by the change, i.e., such evidence was sufficient to overcome the disruptive effect caused by uprooting the child. Adam's custody is now split equally between his parents, and he will have the opportunity of again intimately knowing both of them. While the present custody arrangement will probably need altering when Adam becomes of mandatory school age, we do not deem that the present custody arrangement constitutes an abuse of the trial court's discretion under the facts and circumstances of this particular case. In short, the mother met the evidentiary requirements as imposed by McClendon, supra. Accordingly, any change of custody rested in the discretion of the trial court. We find no abuse thereof and affirm. The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court. AFFIRMED. All the Judges concur.

Filed 2/22/19; Certified for Publication 3/4/19 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE ERIC PREVEN, B287559 Petitioner and Appellant, (Los Angeles County Super. Ct. No. BS166039) v. CITY OF LOS ANGELES et al., Respondents. APPEAL from a judgment of the Superior Court of Los Angeles, John P. Doyle, Judge. Affirmed in part, reversed in part. Paul Nicholas Boylan, for Petitioner and Appellant. Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, and Paul L. Winnemore, Deputy City Attorney, for Respondents. __________________ This appeal concerns the statutory interpretation of one of the public comment requirements of California’s open meeting law, the Ralph M. Brown Act, Government Code section 54950 et seq. Appellant Eric Preven exercised 1 his opportunity to address a meeting of the Los Angeles City Council’s Planning and Land Use Management Committee (PLUM). He was then denied the opportunity to address the full city council when it held a special meeting the next day to discuss, among other things, the recommendation arrived at by the PLUM committee. Asserting the City of Los Angeles’s (City) refusal to let him address the special city council meeting was part of a larger pattern of Brown Act violations, Preven sent a cease and desist demand letter to the City. When the City failed to respond to that letter, he filed a petition for a writ of mandate and complaint for declaratory relief to enforce the Brown Act. He further brought a second claim based on the California Public Records Act. ((CPRA); § 6250 et seq.) In response to the petition, the City argued the Brown Act requires only the opportunity to address a special meeting of a legislative body before it takes action. Since Preven spoke before the special city council meeting at the PLUM committee meeting, the City asserted it could bar Preven from addressing the full council on the same topic. The trial court agreed, sustained the City’s demurrer without leave to amend, and entered a judgment of dismissal. For the reasons set forth below, we find Preven has stated a claim for a writ of mandate and declaratory relief with regard to the Brown Act. We accordingly reverse the judgment of dismissal as to that count. Given Preven’s concession that he is not suing to enforce the CPRA, and did not 1 All statutory references are to the Government Code. 2 make any request for records pursuant to it, we affirm the trial court’s dismissal of the CPRA count as duplicative of his Brown Act claim. BACKGROUND When “ ‘reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we . . . assume the truth of all facts properly pleaded’ ” in the operative petition, “ ‘as well as those [facts] that are judicially noticeable.’ ” (Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749, 753.) On December 15, 2015, the PLUM committee held an open meeting. That committee consists of five members of the fifteen-member city council. Agenda item 5 for the meeting concerned a recommendation to the full city council on a proposed real estate development near Preven’s residence. The committee listened to comment from members of the public, including Preven, and voted unanimously to make a report and recommendation of approval to the full city council. The following day, December 16, 2015, a special meeting of the city council was held to decide (among other things) whether to approve the recommendation of the PLUM committee on the real estate development. Preven knew this special meeting was scheduled to take place when he attended the December 15th PLUM committee meeting. Preven attended the December 16th special meeting, and requested an opportunity to address the city council, including the ten council members who were not part of the five- member PLUM committee. His request was denied on the grounds that he and others had the opportunity to comment on the real estate development agenda item at the PLUM committee meeting the previous day. 3  On September 14, 2016, Preven delivered a cease and desist demand letter to the City Clerk. In it, he asserted the City had violated the Brown 2 Act by preventing him from speaking at the December 16, 2015 meeting, and that the City had engaged in similar improper conduct at subsequent special city council meetings in May and June 2016. The City did not respond to that letter within 60 days, or at any time afterwards. DISCUSSION “[W]e review the [operative petition] de novo to determine whether it alleges facts stating a cause of action under any legal theory.” (Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1290; see also Jacobs v. Regents of University of California (2017) 13 Cal.App.5th 17, 24 [de novo review of petition for writ of mandate involving statutory guaranty], Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 954−955 [issues of statutory interpretation reviewed de novo].) A. The Brown Act “The purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation.” (Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116.) As a remedial statute, we construe the Brown Act liberally to accomplish its purpose, and “suppress the mischief at which it is directed.” (International Longshoremen’s & Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 294.) 1. Regular Versus Special Meetings 2 The sending of such a demand letter is required prior to pursuing litigation under the Brown Act to permit the legislative body the opportunity to commit not to repeat the actions alleged to be in violation of the Act. (§ 54960.2.) 4  The Brown Act distinguishes between regular and special meetings of a legislative body. Legislative bodies must determine a regular time and place for holding their meetings. (§ 54954, subd. (a).) Regular meetings must be preceded by 72 hours’ notice, including an agenda with “a brief general description of each item of business to be transacted or discussed at the meeting.” (§ 54954.2.) While legislative discussion and action is generally restricted to items listed on the agenda, section 54954.2, subdivision (b) permits certain exceptions to this general rule. The scope of permissible public comment at a regular meeting includes “any item of interest to the public . . . that is within the subject matter jurisdiction of the legislative body.” (§ 54954.3, subd. (a) (54954.3(a)).) The public’s opportunity to address the legislative body must take place “before or during the legislative body’s consideration” of the item at issue. (Ibid.) However, the legislative body does need not provide an opportunity for public comment at a regular meeting: “on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.” (§ 54953.3(a).) The parties refer to this as the “committee exception,” and we likewise use that terminology for ease of reference. Special meetings, on the other hand, may be called at any time by the presiding officer or a majority of the members of a legislative body no less than 24 hours in advance of the meeting, and upon certain specified notice requirements including notice of “the business to be transacted or discussed.” 5 (§ 54956, subd. (a).) The agenda posting exceptions listed in section 54954.2, subdivision (b) do not apply to special meetings, and no business beyond that set forth in the notice “shall be considered” at a special meeting. (§ 54956, subd. (a).) The scope of public comment is similarly delimited to items noticed for the special meeting. Instead of being able to address any item of interest within the legislative body’s subject matter jurisdiction, the public has a right to address a special meeting on “any item that has been described in the notice for the meeting.” (§ 54954.3(a).) As with general meetings, the public must be given the opportunity to address the legislative body “before or during consideration” of the agenda item. (Ibid.) 2. The Trial Court’s Ruling In sustaining the City’s demurrer, the trial court held that the Brown Act does not establish different public participation rules for special meetings and regular meetings, especially where an individual already had an opportunity to address a committee on the item in question. After granting leave to amend and considering additional legislative history submitted by the parties, the court found the committee exception in section 54954.3(a) applies to both regular and special meetings. The court further reasoned that Preven had the opportunity to address the PLUM committee before the special city council meeting, and therefore he did not have a right to be heard again on the same item at the special meeting. 3. The Committee Exception Does Not Apply to Special Meetings The trial court’s holding that the committee exception in section 54954.3(a) applies to special meetings was error. Indeed, before us, the City concedes the committee exception applies only to regular meetings. “Under general settled canons of statutory construction, we ascertain the 6 Legislature’s intent in order to effectuate the law’s purpose.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572.) We “ ‘look first to the words of the statute, “because they generally provide the most reliable indicator of legislative intent.” ’ ” (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250.) It is a general rule of statutory construction that modifying phrases are to be applied to the words immediately preceding them. (People v. Corey (1978) 21 Cal.3d 738, 742.) The full language of section 54954.3(a) has three sentences, which are separated below for ease of reference: “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. “However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. “Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.” The plain language of section 54954.3(a) specifies that the committee exception applies to only to regular meetings. “ ‘If the statutory language is 7 clear and unambiguous, our inquiry ends.’ ” (Kirby, supra, 53 Cal.4th at p. 1250.) The sentence setting forth the committee exception comes after the first sentence discussing regular meetings, and begins with “However . . . .” This indicates the second sentence is modifying the first sentence. (Corey, supra, 21 Cal.3d at p. 742.) The sentence setting forth the committee exception also comes before the third sentence discussing special meetings, and the third sentence does not refer to the second sentence or any committee exception. 4. “Before” Cannot Be Read to Create a Committee Exception for Special Meetings Instead of arguing section 54954.3(a)’s committee exception applies to special meetings, the City claims it complied with the Brown Act because section 54954.3(a) requires the opportunity for public comment “before . . . consideration” of the special meeting agenda item, and Preven was given the opportunity to comment before the special city council meeting at the PLUM committee meeting the preceding day. We do not agree that section 54954.3(a)’s language requiring the opportunity for public comment “before . . . consideration” by a legislative body at a special meeting can be construed so broadly. A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary. “ ‘[A] construction that renders a word surplusage should be avoided.’ ” (People v. Arias (2008) 45 Cal.4th 169, 180.) Construing the phrase requiring the public be allowed to address a special meeting “before . . . consideration of that item” to create what would in effect be a committee exception for special meetings renders the committee exception language already in section 54954.3(a) superfluous. Section 8 54954.3(a) requires that any public comments—whether at a regular or special meeting—occur “before or during” the legislative body’s consideration of that item. If public comment “before” a regular or special meeting includes a prior committee meeting, the committee exception language for regular meetings would be superfluous and unnecessary. As a fallback, the City tries to analogize the facts here to one continuous meeting over several days, citing Chaffee v. San Francisco Library Commission (2004) 115 Cal.App.4th 461, 468. In Chaffee, the court found that when a legislative body’s meeting spans more than one day, the legislative body needs to provide only a single general public comment period rather than comment periods on multiple days. (Id. at p. 468.) That analogy is inapt. Chafee involved a hearing of the same legislative body with the same members involved in one meeting that took more than one day. Here, in contrast, there was a meeting of the PLUM committee involving five members of the city council. That meeting started and ended on December 15, 2015. It was followed the next day by a separate and distinct meeting of the full city council—including 10 members not present at the committee meeting. 5. The Legislative History Indicates that the Word “Before” in Section 54954.3(a) Does Not Refer to Prior, Separate Committee Meetings Given the potential ambiguity in section 54954.3(a) over whether the required opportunity for public comment “before” a legislative body takes action at a special meeting includes comment at a prior separate meeting, or is limited to the timing of public comment within the special meeting itself, we also consider the legislative history of section 54954.3(a). (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) When examining legislative history, it 9 is appropriate to consider the timing and historical context of the Legislature’s actions. (MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration (2018) 28 Cal.App.5th 635, 652.) a. Regular Meeting Provisions: 1953−1991 As originally enacted in 1953, the Brown Act did not require the opportunity for public comment at either regular or special meetings. (Stats. 1953, ch. 1588, § 1.) In 1986, the Act was amended to include a public comment requirement for regular meetings. The Legislature also created an exception to such public comment at regular meetings of a city council or board of supervisors where the public had previously addressed a committee of the council or board on the agenda item. (Stats. 1986, ch. 641, § 6.) In 1991—after the enactment of the committee exception for regular meetings—the Act was amended to require public comment at regular meetings of all legislative bodies (including city council and board of supervisor meetings) occur “before or during” consideration by the legislative body or committee of the item. (Stats. 1991, ch. 66, § 1.) As shown by this chronology, the “before” language for regular meetings was enacted five years after the committee exception. As with the structure of section 54954.3(a) itself, the statute’s provenance indicates that the “before” language was not designed to limit comment based on speech at a separate prior meeting. After all, at the time the “before” language was included in section 54954.3(a), that provision already had a committee exception, which addressed when comments could be limited based on prior meetings. The 1991 amendment was not designed to further limit public comment, but rather to make sure that public comments were in fact heard and considered. By requiring public comments “before or during” any legislative consideration at a regular or committee meeting, the 1991 “before” 10 language made sure public comments within a particular meeting (either a committee or regular meeting) were heard by the legislative body in that meeting before it considered an item and took action. b. Special Meeting Provisions: 1993−1994 It was not until 1993 that the Legislature required an opportunity for public comment at special meetings of legislative bodies. (Stats. 1993, ch. 1136 (Assem. Bill No. 1426) § 9; ch. 1137 (Sen. Bill No. 36) § 9.) In that year, the Legislature added a sentence at the end of section 54954.3(a) stating “Every notice for a special meeting at which action is proposed to be taken on an item shall provide an opportunity for members of the public to directly address the legislative body concerning that item prior to action on the item.” (Ibid.) Preven submitted evidence below indicating one suggested amendment to the 1993 Senate Bill included a committee exception for special meetings, which the Legislature ultimately did not include. The available legislative history provides no indication as to why this proposed committee exception for special meetings was not included in the final bill. This draft amendment, however, does highlight the obvious point that if the Legislature wanted to create a committee-like exception for special meetings, it knew how to say so clearly. That fact that the Legislature chose not to do so is evidence of its intent not to create the type of exception urged by the City. (People v. Tilbury (1991) 54 Cal.3d 56, 61−63.) Finally, in 1994, the special meeting language in section 54954.3(a) was amended into its current form to parallel more closely the first sentence of 11 that section requiring public comment at regular meetings occur “before or during” consideration by the legislative body. (Stats. 1994, ch. 32, § 9.) 3 c. Conclusion This legislative history shows that section 54954.3(a)’s current requirement that the public be allowed to address a special meeting “before or during” consideration of an agenda item has the same meaning as similar “before or during” language did when it was enacted in 1991 for general meetings. The “before or during” language concerns the timing of comments within a particular meeting, and does operate to restrict comment based on a prior distinct meeting. The City argues this construction would lead to absurd results by leading to different public participation rules for special and regular meetings. We see no such absurdity. Both the statute as well as its legislative history show that the Legislature has purposefully made a number of distinctions between regular and special meetings. The notice requirements are different—72 hours for regular meetings, 24 hours for special meetings. The scope of permissible comment at the meetings is different—“any item of interest to the public . . . within the subject matter jurisdiction of the legislative body” for regular meetings, compared to only those items “described in the notice” for special meetings. There is a committee exception for regular meetings, and no committee exception for special meeting. To the extent the Brown Act’s public comment rules are 3 The changes from the 1993 language were as follows: Every notice for a special meeting at which action is proposed to be taken on an item shall provide an opportunity for members of the public to directly address the legislative body concerning any_that item prior to action on the itemthat has been described in the notice for the meeting before or during consideration of that item. 12 incongruous as between regular and special meetings preceded by a committee meeting, it is the province of the Legislature, and not this court, to bring them more in harmony. Given the plain language of the statute, and its legislative history, we find the Brown Act does not permit limiting comment at special city council meetings based on comments at prior, distinct committee meetings. Preven adequately alleged a claim that he was improperly denied the opportunity to comment on the agenda item at a special meeting. Preven also adequately alleged a pattern of conduct by the City at special city council meetings in violation of the Brown Act. He therefore stated a claim in his amended petition for a writ of mandate and complaint for declaratory relief under the Brown Act. B. Preven Failed to State a Claim Under the CPRA In addition to his Brown Act claim, Preven brought a second cause of action for declaratory relief and a writ of mandate under the CPRA to enforce his right to address the city council. Preven concedes that he is not suing to enforce the CPRA, and did not make a request for records pursuant to the statute. The City’s demurrer was sustained without leave to amend based on the CPRA claim being duplicative of the Brown Act claim. When a demurrer is sustained without leave to amend, we look to see “whether there is a reasonable possibility that the defect can be cured by amendment.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) Given Preven’s acknowledgment that he is not seeking to enforce the CPRA, there is no reasonable possibility the defects in his second cause of action under the CPRA can be cured. The trial court did not abuse its discretion in sustaining the demurrer to the CPRA cause of action without leave to amend. 13  DISPOSITION The judgment of dismissal is reversed. The matter is remanded for further proceedings consistent with this opinion. The parties are to bear their own costs on appeal. WEINGART, J. * We concur: CHANEY, J., Acting P. J. BENDIX, J. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 14 Filed 3/4/19 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE ERIC PREVEN, B287559 Petitioner and Appellant, (Super. Ct. L.A. County No. BS166039) v. CITY OF LOS ANGELES et al., ORDER CERTIFYING OPINION FOR PUBLICATION Defendants and Respondents. THE COURT*: Good cause appearing, it is ordered that the opinion in the above entitled matter, filed February 22, 2019, be published in the official reports. _____________________________________________________________________ ________________________ _____________________ _____________________ *CHANEY, Acting P. J. BENDIX, J. WEINGART, J.** ** Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6800 MARVIN J. COVINGTON, Plaintiff - Appellant, v. STATE OF NORTH CAROLINA, Rick Jackson Warden, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (3:09-cv-00020-GCM) Submitted: September 10, 2009 Decided: September 15, 2009 Before KING, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Marvin J. Covington, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin J. Covington seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Covington has not made the requisite showing. Accordingly, we deny Covington’s motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

USCA1 Opinion Can't open 92-2417

[Cite as State ex rel. Newcomb v. Thalheimer, 2018-Ohio-1525.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT The State ex rel. Jeffrey Newcomb, : Relator, : v. : No. 17AP-689 Trace Thalheimer : (REGULAR CALENDAR) (Ohio Adult Parole Authority), : Respondent. : D E C I S I O N Rendered on April 19, 2018 On brief: Jeffrey Newcomb, pro se. On brief: Michael DeWine, Attorney General, and Ina Avalon, for respondent. IN MANDAMUS ON RESPONDENT'S MOTION TO DISMISS LUPER SCHUSTER, J. {¶ 1} Relator Jeffrey Newcomb has filed an original action requesting this court issue a writ of mandamus ordering Respondent Trace Thalheimer of the Ohio Adult Parole Authority to respond to his public records request. Respondent subsequently filed a motion to dismiss arguing relator failed to comply with R.C. 2969.25. {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending this court dismiss relator's request for a writ of mandamus. No objections have been filed to that decision. No. 17AP-689 2 {¶ 3} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law. In accordance with the magistrate's decision, we grant respondent's motion and dismiss this action. Motion to dismiss granted; action dismissed. BROWN, P.J., and SADLER, J., concur. No. 17AP-689 3 APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT The State ex rel. Jeffrey Newcomb, : Relator, : v. : No. 17AP-689 Trace Thalheimer : (REGULAR CALENDAR) (Ohio Adult Parole Authority), : Respondent. : MAGISTRATE'S DECISION Rendered on December 8, 2017 Jeffrey Newcomb, pro se. Michael DeWine, Attorney General, and Ina Avalon, for respondent. IN MANDAMUS ON RESPONDENT'S MOTION TO DISMISS {¶ 4} Relator, Jeffrey Newcomb, has filed this original action requesting this court issue a writ of mandamus ordering Trace Thalheimer of the Ohio Adult Parole Authority, to respond to his public records request. Findings of Fact: {¶ 5} 1. Relator is an inmate currently incarcerated at North Central Correctional Institution. {¶ 6} 2. On September 27, 2017, relator filed this petition for a writ of mandamus. No. 17AP-689 4 {¶ 7} 3. At the time he filed his complaint, relator filed an affidavit of indigency and attached thereto a certified copy of the amount in his inmate account for the months February 1 through July 22, 2017. {¶ 8} 4. On October 23, 2017, respondent filed a motion to dismiss on grounds that relator had failed to comply with the mandatory requirements of R.C. 2969.25(C). {¶ 9} 5. Relator has not filed a response to respondent's motion to dismiss. {¶ 10} 6. The matter is currently before the magistrate on motion. Conclusions of Law: {¶ 11} For the reasons that follow, it is this magistrate's decision that this court should grant respondent's motion and dismiss relator's mandamus action. {¶ 12} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish between paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and paying the fees pursuant to periodic deductions from the inmate's account maintained by the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on grounds of indigency must file an affidavit that includes: (1) a statement of the amount in the inmate's account for each of the preceding six months as certified by the institutional cashier, and (2) a statement of all other cash and things of value owned by the inmate. {¶ 13} Compliance with the provisions of R.C. 2969.25 is mandatory and failure to satisfy the statutory requirements is grounds for dismissal of the action. State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998); State ex rel. Alford v. Winters, 80 Ohio St.3d 285 (1997). {¶ 14} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina County which had dismissed the complaint of George D. Pamer, an inmate at Mansfield Correctional Institution, for his failure to comply with the requirements of R.C. 2969.25(C). Specifically, the court stated: 1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges the inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's account (excluding the ten dollars) is forwarded to the clerk each month until the fees are paid. No. 17AP-689 5 Pamer's cashier statement did not set forth the account balance for the month immediately preceding his mandamus complaint - August 2005. See R.C. 2969.25(C)(1), which requires an inmate filing a civil action against a government employee seeking waiver of prepayment of court filing fees to file a "statement that sets forth the balance in the inmate account for each of the preceding six months, as certified by the institutional cashier." Pamer's failure to comply with R.C. 2969.25(C)(1) warranted dismissal of the complaint. State ex rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5. In addition, nothing in R.C. 2969.25 required the court of appeals to afford Pamer the opportunity to pay the requisite filing fee before dismissing the case when Pamer expressly requested waiver of prepayment of those fees. Finally, because Pamer did not prevail and did not establish his indigency, the court of appeals did not abuse its discretion in ordering him to pay the costs of the proceeding. See State ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d 164; Civ.R. 54(D). Id. at ¶ 5-7. {¶ 15} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008- Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals which had dismissed the complaint filed by William L. Ridenour because of his failure to comply with R.C. 2969.25(C). In that case, Ridenour had filed a motion for reconsideration attaching a statement setting forth his inmate account balance for the six months preceding the filing of his complaint; however, the statement was not certified by the institutional cashier. {¶ 16} In affirming the judgment of the appellate court, the Supreme Court stated: "The requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate's action to dismissal." State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio- 2262, 788 N.E.2d 634, ¶ 5. Ridenour failed to comply with R.C. 2969.25(C)(1), which requires an inmate filing a civil action against a government employee seeking waiver of prepayment of court filing fees to file with the complaint a "statement that sets forth the balance in the inmate account No. 17AP-689 6 of the inmate for each of the preceding six months, as certified by the institutional cashier." Moreover, although Ridenour claims that the court erred in failing to grant him leave to amend his complaint to comply with R.C. 2969.25(C)(1), he never filed a motion to amend his complaint. Instead, he filed a motion for reconsideration, which was "a nullity because his mandamus action was filed originally in the court of appeals, rendering App.R. 26(A) inapplicable." State ex rel. Washington v. Crush, 106 Ohio St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5. Id. at ¶ 5-6. {¶ 17} Just as Pamer's cashier statement did not set forth the account balance for the month immediately preceding the filing of his mandamus complaint, relator's cashier statement here likewise did not set forth the account balance for the month immediately preceding the filing of his mandamus complaint: August 2017. {¶ 18} Inasmuch as compliance with the provisions of R.C. 2969.25 is mandatory, relator's failure to satisfy the statutory requirements constitutes grounds for dismissal of the action. Further, pursuant to the above-cited authority, inasmuch as relator did not prevail and did not establish indigency, this court should order relator to pay the costs of the proceedings. /S/ MAGISTRATE STEPHANIE BISCA NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b). 

98 Ariz. 221 (1965) 403 P.2d 535 Frank CONTRERAS, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Eric Lundeen, Inc., and Klaas Bros., Inc., Respondents. No. 8053. Supreme Court of Arizona, In Division. June 23, 1965. *222 Hirsch, Van Slyke, Richter & Ollason, Tucson, for petitioner. Chris T. Johnston, Phoenix, for respondent The Industrial Commission of Arizona, Richard J. Daniels, Frank E. Murphy, Jr., Robert A. Slonaker and Edgar M. Delaney, Phoenix, of counsel. LOCKWOOD, Chief Justice. On October 10, 1962, the Industrial Commission entered its findings to the effect that the above applicant was able to return to his usual occupation on August 15, 1962, and terminated any temporary disability payment from that date. Petitioner filed a notice of protest and a petition for rehearing. On March 11, 1963, after rehearing held on February 11, 1963, the Commission entered an order affirming the Commission's action of October 10, 1962. Pursuant to A.R.S. § 23-951 the Commission's order of March 11, 1963, stated that any party aggrieved by the order might, within thirty (30) days after the rendition of the order *223 "apply to the Supreme Court of the State of Arizona for a Writ of Certiorari to review the lawfulness of said order * * *." Section A of A.R.S. § 23-951 states: "Within thirty days after an application for a rehearing is denied, or if the application is granted, within thirty days after rendition of the decision on a rehearing, any party affected thereby may apply to the supreme court for a writ of certiorari to review the lawfulness of the award." On May 31, 1963 the petitioner filed a Petition and Application for Readjustment or Reopening of the Claim. On July 16, 1963 the Commission denied the reopening of the petitioner's claim. On July 25, 1963 petitioner filed a Notice of Protest and Petition and Application for a Rehearing. On August 9, 1963 the Commission issued an "Order Denying Rehearing and Affirming Previous Findings and Award." Petitioner filed his petition for writ of certiorari on August 29, 1963. The Commission argues that this Court lacks jurisdiction to entertain the petitioner's application for a writ of certiorari because the petitioner failed to file a petition for such writ within thirty days after the Commission's order of March 11, 1963, pursuant to the rehearing. We have repeatedly held that the thirty days limitation in A.R.S. § 23-951 for making application for a writ of certiorari is jurisdictional, and the petitioner's right to review in this Court is lost by failure to file within that time. Villanueva v. Phelps Dodge Corporation, 82 Ariz. 248, 311 P.2d 843; Harambasic v. Barrett & Hilp & Macco Corp., 58 Ariz. 319, 119 P.2d 932; Di Paolo v. Calumet & Arizona Mining Co., 36 Ariz. 347, 285 P. 680. Petitioner's reply brief acknowledges that the decision upon rehearing by the Commission was dated March 11, 1963 and that that decision allowed thirty days from March 11, 1963 for an aggrieved party to apply to this Court for a writ of certiorari pursuant to A.R.S. § 23-951. However the petitioner claims that the Commission is estopped from asserting the procedural bar created by A.R.S. § 23-951 against the petitioner because of a series of correspondence in 1963, initiated by the petitioner three days after the order of March 11, 1963. On March 14th petitioner's attorney wrote to the Commission, acknowledging receipt of the decision on rehearing, and stating: "I checked my file and if my records are correct, he is only claiming compensation from the date he was cut off, which I believe was August 15, 1962, till the date he went back to work *224 which is February 8, 1963. "It seems like such a small amount to make a Supreme Court case out of. "I respectfully request that you reconsider Dr. Cortner's testimony in relation to his actually being disabled during this period, and that the only treatment was no treatment at all. I believe the results speak for themselves. He is now able to earn a living, however, the five months that he did not work, has literally bankrupted him." On April 8th the Commission by its Claims Compensation Supervisor responded to the letter of March 14th as follows: "Mr. Frank Contreras' case including your letter of March 14, 1963, was carefully reviewed. There is no justification from a medical point of view for payment of compensation from August 15, 1962 through February 8, 1963. Our records show that Dr. J.W. Cortner released Mr. Contreras for regular work on August 15, 1962 and the consultants who examined him on October 1, 1962 verified the fact that Mr. Contreras could remain on regular work status. "From the testimony at the hearing held February 11, 1963, Doctor Cortner was of the opinion that Mr. Contreras was ready to return to work even though claimant felt he was not able. "At the request of the attending physician, group consultatin [sic] will be scheduled to determine present status of Mr. Contreras' back condition relating to his accident of June 25, 1962 and further handling of this case." (Emphasis ours.) At no time between the period of March 11th when the order was handed down, and April 8th did the petitioner file a petition for writ of certiorari to this court. On April 10th petitioner's attorney answered the Commission's letter of April 8th. This was on the thirtieth day after the Commission's order on rehearing, by which time, pursuant to A.R.S. § 23-951 the petition for writ of certiorari should have been filed with this court. This letter to the Commission stated: "I am in receipt of your letter of April 8, 1963 and as a result of the last paragraph, I am assuming that there will be no necessity for me to abide by the last paragraph of the Order dated March 11, 1963 wherein I had thirty days to apply to the Supreme Court for a writ of certiorari. I am assuming that the Commission is going to hold further hearings and consultation and that until such time as the consultations and further hearings are held that there will be no necessity to file anything further to keep the case alive." *225 Seven days later, on April 17th the Commission responded to the petitioner as follows: "So there will be no misunderstanding on the processing of Mr. Frank Contreras' case, we would like to review recent actions. "As you know, on October 11, 1962 the Commission issued its order terminating temporary compensation as of August 14, 1962 because Mr. Contreras was released to return to regular work by Dr. J.W. Cortner. Mr. Contreras filed petition and Application for rehearing on November 7, 1962, and subsequently hearing was held on February 11, 1963. On March 11, 1963 Decision Upon Rehearing and Order Affirming Previous Record of Commission's Action was issued. Since the thirty days set out have elapsed, we assume you have not applied to the Supreme Court for a Writ of Certiorari. "Group consultation is being scheduled to determine present status of Mr. Contreras' condition relating to his accident of June 25, 1962; to determine further medical handling of this case; or, if condition is stationary, to determine final evaluation and disposition. The consultation is not being held to determine Mr. Contreras' working ability subsequent to August 14, 1962." Again, on May 6th the Commission wrote to the petitioner's attorney stating: "Since the thirty day period has elapsed we assume you have not applied to the Supreme Court for a Writ of Certiorari. "We have made arrangements for Mr. Frank Contreras to be seen in group consultation in Tucson on May 13, 1963." On May 8th the petitioner's attorney sent the following letter to the Commission: "Please reread my letter of April 10, 1963, directed to you. Read it carefully, then please explain your letter to me of May 6, 1963. I'm sure you are not attempting to confuse me but I assure you that you have." On May 10th the Commission responded as follows: "We wish to apologize if our recent letters were confusing. To review the case, Mr. Frank Contreras protested Record of Commission's Action issued October 11, 1962, in which payment of compensation for temporary disability was terminated as of August 14, 1962, because the attending physician felt he was able to return to regular work. Formal hearing was held for that purpose. "Subsequently, on March 11, 1963, Decision Upon Rehearing and Order *226 Affirming Previous Record of Commission's Action was issued. Of course, this meant compensation for temporary disability is not payable subsequent to August 14, 1962. "It is to be noted that the Decision issued March 11, 1963 contained a thirty day clause, in which time any aggrieved party could apply to the Supreme Court of the State of Arizona for a Writ of Certiorari. Then we received your letter dated March 14, 1963. "The Commission again reviewed this case, and it was felt that compensation for the period set out in your letter, namely, from August 15, 1962 to February 8, 1963, is not payable, because the attending physician, Dr. J.W. Cortner, was of the opinion Mr. Contreras was ready to return to work even though he felt he was not able. "Coincidentally, we received a report from Doctor Cortner in which he recommended group consultation be held. Therefore, arrangements have been made for examination by a board of consultants on May 13, 1963. The consultation is being held to determine medical handling of the case and is not ordered to determine claimant's working ability from August 15, 1962 to February 8, 1963, or for anything to do with disposition of Mr. Contreras' petition for rehearing. "In my letter of April 18, [sic] 1963, mention was made of the group consultation merely on an information basis. It was not intended to infer that the consultation would in any way change the Commission's Decision Upon Rehearing. "If our explanation is not entirely clear, it is suggested that you contact our Legal Department, preferably Mr. Lorin Shelley." On May 14th the plaintiff's attorney replied as follows: "Thank you for your letter of May 10, 1963. "I agree with paragraph 3 of your letter that the Decision contained a 30 day clause. However, I point out to you that in your letter of April 8, 1963, to which I responded left little doubt in my mind that the case would be left open. I quote from your letter: "`At the request of the attending physician, group consultation will be scheduled to determine present status of Mr. Contreras' back condition relating to his accident of June 25, 1962, and further handling of this case.' "This is the position I shall have to take under the circumstances. Possibly the question will become moot after the consultation by a reopening of the case. *227 "I want to correct a date in your next to last paragraph. The letter was dated April 8, 1963, not April 18, 1963." As long ago as 1935 in Lilly White v. Coleman, 46 Ariz. 523, 52 P.2d 1157 this court stated the elements of equitable estoppel as follows: "The essential elements of an equitable estoppel may be stated as follows: (1) There must be a false representation or concealment of material facts; (2) it must have been made with knowledge, actual or constructive, of the facts; (3) the party to whom it was made must have been without knowledge of or the duty of inquiring further as to the real facts; (4) it must have been made with the intention it should be acted upon; and (5) the party to whom it was made must have relied on or acted on it to his prejudice. There can be no estoppel if any of these elements are absent." (Italics in original.) See also Knight v. Rice, 83 Ariz. 379, 321 P.2d 1037; Valley National Bank v. Battles, 62 Ariz. 204, 156 P.2d 244; and City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837. In this case since the petition for writ of certiorari was filed more than five months after the March 11th order, and since there was no false representation or concealment of material facts by the Commission in any of the letters sent to the petitioner in response to the petitioner's original letter of March 14, 1963, in which the petitioner said that the whole matter seemed "like such a small amount to make a Supreme Court case out of * * *", and since the petitioner cannot claim lack of knowledge of A.R.S. § 23-951 nor lack of knowledge that the order of March 11, 1963, contained the thirty day clause, the petitioner cannot assert the claim that all of the essentials of estoppel were present. The petitioner may not create an estoppel of the effect of the statute by his own delay in compliance therewith. For the above reasons we hold that this Court has no jurisdiction to entertain the petition for writ of certiorari. Order quashing writ of certiorari. UDALL and McFARLAND, JJ., concur.

584 N.E.2d 270 (1991) 222 Ill. App.3d 585 165 Ill.Dec. 91 In re PATRICIA S., Theresa F. and Harold Mitchell F., Anthony E., and Andrea L., Minors, Appellants (The People of the State of Illinois, Petitioner-Appellee, Barbara L., Danny E., and Jimmy S., Respondents). No. 1-90-2098. Appellate Court of Illinois, First District, Second Division. November 26, 1991. *271 Office of the Cook County Public Guardian, Chicago (Patrick T. Murphy, Michael G. Dsida, and Kathleen G. Kennedy, of counsel), for appellants. Jack O'Malley, State's Attorney, County of Cook, Chicago (Renee Goldfarb and Susan S. Wigoda, of counsel), for petitioner-appellee. Justice DiVITO delivered the opinion of the court: The State's Attorney, on behalf of the Illinois Department of Children and Family Services (DCFS), filed petitions for adjudication of wardship in the interest of the minors involved in this case on the basis of alleged neglect by their mother. Prior to ruling at two temporary custody proceedings, the circuit court declined to conduct a hearing to determine whether DCFS had made reasonable efforts to prevent or eliminate the need to remove the children from their home (Ill.Rev.Stat.1989, ch. 37, par. 802-10(2)), stating its belief that such reasonable efforts findings need not be made before minors are taken from their parents' custody. The court then entered orders granting DCFS custody of the children without any indication that DCFS had made reasonable efforts to prevent or eliminate the need to remove the minors from their home. The public guardian, who had been appointed attorney and guardian ad litem for the minors, agreed that it was in the best interest of the minors to remove them from their home but objected to the lack of a reasonable efforts hearing.[1] At the disposition hearing after a finding of neglect, the court found that DCFS had made reasonable efforts to reunite the family. The minors do not dispute the disposition order. Instead, they challenge the circuit court's refusal, at the temporary custody hearings, to determine whether DCFS had made reasonable efforts to keep the family intact. They assert that by not doing so, the court acted contrary to their best interests and violated state and federal law. They ask that the temporary custody orders be reversed and that the matter be remanded so that the court may make the required determinations. In January 1989, DCFS caused to be filed petitions for adjudication of wardship of Theresa and Harold Mitchell F. (then 7 and 6 years old, respectively); Anthony E. (11 years old); and Patricia S. (10 years old). Each petition alleged parental neglect in not providing the care necessary for the minor's well-being and in having an environment injurious to the minor's welfare. At an ex parte hearing, the public guardian was appointed attorney and guardian ad litem for each child, and the court awarded DCFS temporary custody of each child. At a temporary custody hearing approximately five weeks later, the court vacated the earlier custody orders and entered an order of protection that provided for the mother's cooperation with DCFS, including drug counselling. None of these orders is appealed here. Five months later, in July 1989, DCFS caused to be filed petitions for supplementary relief. These petitions alleged that the mother continued to use illegal drugs, consorted with other drug users, and had left one of the children with someone who forced the child to inhale paint thinner fumes, for which the child had to be taken to the hospital. The State asked that the court vacate the order of protection and that DCFS again be granted temporary custody. In addition, DCFS had caused to be filed a petition for adjudication of wardship in the interest of the mother's newborn child, Andrea L. *272 At the hearing on these petitions, the public guardian agreed to DCFS custody but stated that he could not stipulate that DCFS had made reasonable efforts to keep the family together. He then suggested that the matter be set down for separate hearing. The court, however, replied, "I don't have to concern myself with reasonable efforts right now." Prior to its order awarding custody to DCFS, the court painstakingly questioned the mother to ascertain if she understood that the children would be taken temporarily from her. It did not query her, or anyone else, about DCFS efforts to prevent removal of the children even though the DCFS investigator and follow-up worker were present. The court then stated "[b]y agreement, finding of probable cause [to believe that Andrea was neglected], urgent and immediate necessity [that a temporary custodian be appointed for Andrea's protection]. Temporary custody without prejudice to [DCFS] with right to place." The court added "as to the other minors, by agreement, vacate the [February] protective order. By agreement, finding of urgent and immediate necessity, temporary custody without prejudice to [DCFS] with right to place." The written orders give no indication as to what efforts, if any, DCFS had made to prevent or eliminate the need to remove the minors from their home. At the next temporary custody hearing approximately one month later, the mother and Anthony E.'s father agreed to let the temporary custody order stand with prejudice. The public guardian also agreed to let the earlier order stand, but he qualified his agreement by stating, "I will not be in agreement of reasonable efforts in this case," a sentiment also voiced by the Public Defender, who represented the mother. When the court replied, "I don't necessarily have to [make a reasonable efforts finding] until I have heard some evidence," the State's Attorney stated that the only required findings at that juncture were probable cause, urgent and immediate necessity, and services. The court then let stand with prejudice its July orders giving DCFS temporary custody of the children. The public guardian again voiced his objection to the court's decision to order temporary custody with DCFS without a reasonable efforts determination. At an adjudication hearing in February 1990, the court found the children to be neglected minors. At the disposition hearing the following June, three witnesses testified: a staff member from Harold and Theresa F.'s placement; a DCFS staff member; and the mother. At no time during examination or argument did counsel for either the mother or the minors challenge the adequacy of DCFS' efforts to prevent or eliminate the need to separate the minors from their mother. In closing argument, the public guardian acknowledged that the children's best interest would be served by making DCFS their guardian. The court then granted custody of each child to DCFS, expressly finding orally and in writing that "services [aimed at family preservation and family reunification were] incomplete" and "reasonable efforts were made to prevent or eliminate the need for removal [of the minors from the home]." I. We first must address the State's contention that the circuit court's later disposition orders moot any appeal of the temporary custody orders and that the minors waived their right to appeal when they agreed that DCFS custody was in their best interest. A. Mootness Even if we assume that the question raised here is moot, this court nevertheless may entertain this appeal because the mootness bar is not absolute. A court may consider moot issues if they concern "a question of great public interest" or if they are "capable of repetition, yet evading review." (In re A Minor (1989), 127 Ill.2d 247, 257-58, 130 Ill.Dec. 225, 229, 537 N.E.2d 292, 296.) Both exceptions apply here. When deciding if a matter falls within the public interest exception, courts consider "(1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding *273 public officers, and (3) the likelihood that the question will generally recur." (A Minor, 127 Ill.2d at 257, 130 Ill.Dec. at 229, 537 N.E.2d at 296.) Under the fourteenth amendment, parents have a "fundamental liberty interest in the care, custody, and management of their child[ren,]" with which the government may not interfere unduly. (Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606.) The children have the concomitant right to remain with their parents. The issue this appeal presents is whether the circuit court, in declining to make the reasonable efforts determination before ordering removal of the children from their home, deprived the minors of their right to remain with their mother without complying with statutory due process safeguards. A matter of greater public concern is difficult to imagine. In re B.S. (1979), 73 Ill.App.3d 507, 509, 29 Ill. Dec. 505, 506, 392 N.E.2d 62, 63 (appellate court will consider moot issue from delinquency proceeding if it implicates due process issues but will dismiss for mere procedural error). In addition, if the circuit court and the State's Attorney are mistaken in their belief that a court may order removal of children from their homes without hearing evidence on and making detailed determinations as to DCFS efforts to keep the family together, this court's ruling would help guide these public officials as to the prerequisites for a transfer of custody from a parent. Lastly, the question raised here likely will recur: it arose twice for these minors, and the circuit court continues to have jurisdiction over the minors, who can ask for modification of the disposition order. Thus, the question here falls squarely within the public interest exception to the mootness bar. Events that are "capable of repetition yet evading review" also present justiciable questions despite mootness. To qualify under this exception, the minors must demonstrate that "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again." (A Minor, 127 Ill.2d at 258, 130 Ill.Dec. at 229, 537 N.E.2d at 296.) Here, just as in A Minor, the State's assertion that the temporary custody orders are mooted by the neglect and disposition rulings "impliedly concedes" that the duration of the challenged orders precludes full litigation. (A Minor, 127 Ill.2d at 258, 130 Ill.Dec. at 229, 537 N.E.2d at 296.) Too, the trial court's refusal, on two separate occasions, to make the determination with regard to these minors demonstrates actual repetition, not merely "a reasonable expectation" thereof. We conclude that both criteria of the mootness exception are satisfied. Thus, this court may consider the merits of the appeal. B. Waiver We must also determine whether the minors have waived the right to appeal the temporary custody orders by agreeing at each hearing that DCFS custody was in their best interest. Such agreement, if voluntary, warrants dismissal unless the error was fundamental and on the face of the record. 2 I.L.P. Appeal and Error § 76, at 176, § 211 at 258-59 (1953). We cannot view the public guardian's agreement to DCFS custody as voluntary. The public guardian, like the court, is required above all to act in the children's best interest. If, at the time of the hearings, that interest was served best by removing the children from their home, then the public guardian cannot be viewed as having voluntarily accepted the benefits of the custody and disposition orders. To ask the public guardian to contest the transfer of custody, which he believed to be in the minors' best interest, and thereby permit the children to remain at risk is to place him between Scylla and Charybdis. We decline to require the public guardian to make that choice. Moreover, the error appears on the face of the record and is, as explained below, fundamental. Thus, even if the public guardian's acceptance of the orders' benefits were voluntary, dismissal is not warranted. (2 I.L.P. Appeal and Error § 211 at 258-59.) Accordingly, we *274 find no waiver here. We note that, in any event, the State did not move for dismissal and, at oral argument, conceded that this court may reach the merits. 2 I.L.P. Appeal and Error § 589 at 532. II. The minors contend that the circuit court's refusal, at the temporary custody hearings, to require evidence of reasonable efforts to keep them with their mother was in dereliction of its obligation under section 2-10 of the Juvenile Court Act of 1987 (the Act). (Ill.Rev.Stat.1989, ch. 37, par. 802-10(2).) They argue that the Act imposes an affirmative duty on the court to elicit this information and that the court was obliged to do so despite the minors' agreement at each hearing that it was in their best interest to remove them from their mother's custody. They maintain that the court's abdication of its statutory duty flouts the expressed policy of the Act that removal should be ordered "only when [a child's] welfare or safety or protection of the public cannot be adequately safeguarded without removal * * *." (Ill.Rev.Stat.1989, ch. 37, par. 801-2.) Although there is no Illinois case law on this issue, the minors cite three out-of-state cases that construe similarly-worded statutes along the lines they urge here: In the Interest of A.L.W. (Mo. Ct.App.1989), 773 S.W.2d 129; In the Interest of M.H. (Iowa Ct.App.1989), 444 N.W.2d 110; and In re Burns (Del.1986), 519 A.2d 638. The State responds that if omission of a reasonable efforts determination were error, it was harmless error because, in the State's view, no one was prejudiced at the temporary custody hearings in light of the minors' agreement to the orders, and the reasonable efforts finding at the disposition hearing corrected the error. The State distinguishes the three cases cited by the minors in that no reasonable efforts finding was made at any time in two of the cases and the third case concerned federal law and its relation to termination of parental rights, not state law on temporary custody. We find the State's argument unpersuasive. The Act gives the court broad powers "fully to gather information bearing upon the current condition and future welfare of persons subject to th[e] Act." (Ill. Rev.Stat.1989, ch. 37, par. 801-2(2).) For temporary custody hearings, section 2-10 of the Act describes with particularity the specific questions that must be asked, the order in which to ask them, and who is responsible for supplying the information: "If the court finds that there is probable cause to believe that the minor is * * * neglected[, witnesses] shall be examined before the court. * * * The Court shall require documentation by representatives of [DCFS] as to the reasonable efforts that were made to prevent or eliminate the necessity of removal of the minor from his or her home, and shall consider the testimony of any person as to those reasonable efforts. If the court finds that it is a matter of immediate and urgent necessity [that the minor be removed] and further finds that reasonable efforts have been made or good cause has been shown why reasonable efforts cannot prevent or eliminate the necessity of removal of the minor from his or her home, the court may [order removal.] * * * In making its [reasonable efforts determinations], the court shall state in writing its findings concerning the nature of the services that were offered or the efforts that were made to prevent removal of the child and the apparent reasons that such services or efforts could not prevent the need for removal." (Emphasis added.) Ill.Rev. Stat.1989, ch. 37, par. 802-10(2). The wording of this statute is unequivocal: in a temporary custody hearing, a court must make three determinations before ordering removal of a child from parental custody: (1) whether probable cause exists to believe that the minor is neglected; (2) if so, whether removal is a matter of immediate and urgent necessity for the child's welfare; and (3) if so, whether DCFS has made reasonable efforts to prevent or eliminate removal of the child, or whether there is a good reason for not doing so. Under the statute, unlike its *275 customary role in civil or criminal proceedings, the court cannot sit passively and await the parties' presentation of evidence. Instead, the Act requires that it must act affirmatively, and perhaps at times aggressively, to ferret out information before it can decide that a child's interest is better served by removal from the family. Here, the trial court was correct in stating that it had to hear evidence prior to making a reasonable efforts determination and that this determination was necessary only if it first made probable cause and urgent-and-immediate-necessity findings. The court went astray, however, in believing that it could enter an order granting DCFS custody without first making a reasonable efforts determination. Having neglected to gather this information, the court erred under the plain language of the Act by abdicating its duty (1) to require that DCFS present evidence either of its efforts to keep the family intact or of good cause for the absence of such efforts, (2) to examine family members, DCFS staff, and others for other relevant testimony, and (3) to make detailed findings as to the existence and adequacy of DCFS efforts. This error, moreover, was not harmless, contrary to the State's assertions here. The State's analysis ignores the fact that the error appears on the face of the record and constitutes a deprivation of the minors' constitutional right to due process. The question before the circuit court at each temporary custody hearing is whether DCFS has made reasonable efforts to keep the family together as of the time of that hearing. The purpose of each determination is not merely to provide evidence of the need to transfer custody, but to determine if unification can be achieved with DCFS help in the form of additional or different services at the time of the hearing. Hence, the reasonable efforts determination at the disposition hearing cannot cure the effect of the absence of a determination at the earlier hearings for the simple reason that the disposition hearing resolves a different question. The State's claim that no prejudice resulted is similarly without foundation for, as the minors note, by not hearing evidence as to what efforts, if any, DCFS was making to keep the family together at the time of each hearing, the court could not ascertain whether an order to DCFS to alter, augment, or begin such efforts would obviate the need to separate the children from their mother, or, if removal was necessary, whether changes in DCFS services and strategy could result in a prompt reunion. For example, had the court ordered DCFS in July to provide help in finding better housing or different drug counselling services, the children might have been able to return to their mother. Hence, the court's error prejudiced both the minors and the mother while simultaneously thwarting the intent of the Act to unify families. Such error cannot be deemed harmless. We recognize that the juvenile court caseload is staggering. We also understand the circuit court's conduct here in light of the parties' consensus that the challenged orders were in the best interest of the children. Nevertheless, the size of the court's docket and the agreement of the agencies cannot justify ignoring a clear statutory requirement. Despite our conclusions, we do not remand because we agree with the State that a ruling now on whether, at the time of the temporary custody hearings, DCFS was making reasonable efforts to keep the minors with their mother would be pointless. No one here challenges the determination that was made at the disposition hearing or the disposition ruling itself. As noted above, reasonable efforts determinations are time specific: they address the adequacy of DCFS efforts only as of the time of the ruling. A finding now concerning reasonable efforts at the temporary custody stage would have no effect on the minors. Accordingly, having emphasized the necessity of the court making timely reasonable efforts findings in future cases, we affirm the judgment of the circuit court. JUDGMENT AFFIRMED. HARTMAN and McCORMICK, JJ., concur. NOTES [1] The minors petitioned for leave to appeal the temporary custody orders, raising the issue addressed here, as allowed by Illinois Supreme Court Rule 306(a)(1)(v). This court denied the petition in an order dated January 30, 1990. (In re Patricia S. et al., No. 1-89-2243.)

NOT RECOMMENDED FOR PUBLICATION File Name: 15a0200n.06 Nos. 13-5215/13-5217 FILED Mar 11, 2015 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ) ON APPEAL FROM THE DWAYNE MICHAEL JOSEPH, JR., ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN and ) DISTRICT OF KENTUCKY ) JAMES LAMONTE DUNBAR, ) ) Defendants-Appellants. ) ) OPINION BEFORE: MERRITT and WHITE, Circuit Judges; HOOD, District Judge HELENE N. WHITE, Circuit Judge. After a jury convicted them of conspiracy to distribute 50 grams or more of cocaine base, Appellants-Defendants Dwayne Joseph (Joseph) and James Dunbar (Dunbar) were sentenced to 120 months and 240 months in prison, respectively. They appeal, arguing that their sentences were improperly enhanced based on two facts not submitted to the jury and proven beyond a reasonable doubt: the quantity of drugs attributable to each of them and their past criminal convictions. For the reasons discussed below, we AFFIRM.  The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar FACTS In 2007, the Drug Enforcement Agency (DEA) received information that Donald and Demetrius Williams (Williams Brothers) were trafficking marijuana, cocaine, and crack cocaine in the Hopkinsville, Kentucky, area. The DEA’s investigation revealed Dunbar’s and Joseph’s involvement in the Williams Brothers’ operation. Agents made ten controlled purchases totaling 1.225 kilograms of cocaine base from drug dealers associated with the Williams Brothers, including two from Joseph. On June 9, 2009, a grand jury in Paducah, Kentucky, indicted Joseph, Dunbar, and nineteen other defendants on charges of conspiracy to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Dunbar and Joseph were arrested later that month and pleaded not guilty at their arraignments. On June 15, 2010, the Government filed an information and notice of intent to enhance both Dunbar’s and Joseph’s sentences pursuant to 21 U.S.C. § 851. Joseph’s enhancement was based on his May 9, 2001 felony drug conviction of trafficking in a controlled substance within 1000 yards of a school; Dunbar’s enhancement was based on his April 2, 2003 felony conviction for trafficking in controlled substances in the first degree and his February 8, 2006 felony conviction for trafficking in controlled substances within 1000 yards of a school. The trial, which involved only Joseph, Dunbar, and one other defendant, Rodney Moore (Moore),1 began in January 2011. The remaining defendants accepted plea agreements, many of which required them to testify against Joseph, Dunbar, and Moore. Demetrius Williams testified that he sold Joseph between 50 and 60 ounces (1.4175–1.700 kilograms) of crack cocaine, and Dunbar approximately 20 ounces (567 grams). Perry Rudd testified that he purchased 2.25 ounces of powder cocaine from Joseph. And, Ronnie Whaley testified that he sold Joseph a 1 Rodney Moore manufactured or “cooked” the crack cocaine. Demetrius Williams estimated that Moore cooked 20 kilos of crack over the course of the conspiracy. -2- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar “brick,” or 36 ounces (1.020 kilograms), of powder cocaine. The jury found Dunbar and Joseph guilty of conspiracy to distribute 50 grams or more of cocaine base. Based on the evidence offered at trial, particularly the testimony of the co-defendants, the Presentence Investigation Report (PSR) attributed 20 ounces (567 grams) of crack cocaine to Dunbar, and 50 ounces (1.4175 kilograms) of crack cocaine and 36 ounces (1.02 kilograms) of powder cocaine to Joseph. The statute required a mandatory minimum term of 10 years. 21 U.S.C. § 841(b)(1). However, the 21 U.S.C. § 851 enhancements for Joseph’s and Dunbar’s prior convictions increased the minimum statutory sentence to 20 years’ imprisonment for Joseph and life imprisonment for Dunbar. Joseph’s base offense level, calculated pursuant to § 2D1.1(a)(5) of the United States Sentencing Commission Guidelines (Guidelines) was 34, with a criminal history category of III, resulting in a Guidelines range of 188 to 235 months’ imprisonment. However, the application of the enhanced penalties resulted in a mandatory minimum term of 240 months’ imprisonment as the advisory Guidelines sentence. Dunbar’s base offense level was 37, with a criminal history category of VI, resulting in a Guidelines range of 360 months’ to life imprisonment, with life imprisonment as the minimum enhanced advisory Guidelines sentence. Before his first sentencing hearing, Joseph filed objections to the 240-month statutory mandatory minimum, arguing that the Fair Sentencing Act of 2010 (FSA)—which increased the amount of cocaine base necessary to trigger the higher 21 U.S.C. § 841(b)(1) penalties—applied to his case and thus his mandatory minimum sentence should be calculated pursuant to § 841(b)(1)(B),2 not (b)(1)(A).3 He also objected to the amount of drugs attributed to him. 2 “Such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years . . . If any person commits such a violation after a prior -3- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar Dunbar argued that the FSA should apply to his case, objected to the amount of drugs for which he was held responsible, and asserted that the statutory mandatory minimum sentence of life imprisonment was a violation of the Eight Amendment. Joseph and Dunbar were sentenced to 240 months’ and life imprisonment, respectively. They appealed their sentences, arguing based on Dorsey v. United States, 132 S. Ct. 2321 (2012), that the more lenient penalties of the FSA apply to offenders whose crimes preceded the effective date of the Act, but who are sentenced after that date. This court vacated and remanded for resentencing. United States v. Moore, 495 F. App’x 680 (6th Cir. 2012). At Joseph’s resentencing, the parties agreed that his statutory minimum sentence was 10 years,4 and the Guidelines range, based on an offense level of 34 and a criminal history category of III, was 188 to 235 months’ imprisonment. Dunbar and the Government agreed that his statutory minimum sentence was 120 months’ imprisonment5 and his Guidelines range was 360 months’ to life imprisonment, based on an offense level of 37 and a criminal history category of VI. 6 Joseph and Dunbar requested and were given below-Guidelines sentences of 120 months’ and 240 months’ imprisonment, respectively. conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment . . .” 3 “Such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment . . . If any person commits a violation of this subparagraph . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . .” 4 Calculated pursuant to 21 U.S.C. § 841(b)(1)(B), the minimum takes into account Joseph’s one prior felony drug conviction. 5 Calculated pursuant to 21 U.S.C. § 841(b)(1)(B), the minimum takes into account Dunbar’s two prior felony drug convictions. 6 Dunbar was considered a career offender. -4- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar DISCUSSION I. Attribution of Quantity of Drugs for Sentencing Purposes Joseph and Dunbar argue that despite being indicted and convicted by a jury for conspiring to distribute 50 grams or more of crack cocaine, at sentencing they were held responsible for 1.4175 kilograms and 567 grams of crack cocaine, respectively. This, they argue, is a violation of their Fifth and Sixth Amendment rights because it increased their potential sentences even though the quantities were not presented to a jury and proven beyond a reasonable doubt. The Government responds that sentencing enhancements based on the Guidelines, which is what is at issue here, can be determined by the sentencing court’s findings, so long as the enhanced sentence is still within the statutory range. This court “review[s] for clear error the district court’s factual findings on drug quantity attributable to a defendant for sentencing purposes.” United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003) (citing United States v. Mahaffey, 53 F.3d 128, 131 (6th Cir.1995)). “A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). Dunbar and Joseph argue that we should review their constitutional claims de novo. Although Joseph challenged the constitutionality of the drug-quantity determination in his sentencing memorandum, the Government points out that Dunbar did not make a constitutional challenge in the district court, and argues for plain-error review. The result is the same regardless whether our review is de novo or for plain error. -5- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar According to the Court, Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (internal citations omitted) (holding Defendant’s minimum sentence could not be increased for brandishing a firearm where, based on jury instructions, jury convicted Defendant of the lesser offense of carrying, rather than brandishing, the firearm). However, Joseph and Dunbar do not challenge their minimum statutory sentences, which correlated to the drug quantity actually found by the jury—50 grams or more—but, rather, challenge sentencing enhancements that increased the Guidelines range. “[T]he amount of drugs must be submitted to a jury and proved beyond a reasonable doubt when a drug amount calculation either threatens a penalty that would pierce the ceiling authorized by the statute, or threatens a penalty that would raise the floor authorized by the statute.” United States v. Hough, 276 F.3d 884, 890 (6th Cir. 2002) (internal citation omitted). Here, the court’s drug-quantity determinations did neither. Therefore, the district court was permitted to “rely on any competent evidence in the record,” id. at 891, to determine the drug quantity attributable to the Defendants for sentencing purposes “so long as [it] appreciate[d] that the guidelines are advisory, not binding,” United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006). The amount of drugs attributed to each defendant was determined based on the testimony of co- defendants, which the district court found credible, as well as other evidence, including controlled transactions with government agents and confidential informants. Further, the district court demonstrated its appreciation of the non-binding nature of the Guidelines by imposing below-Guidelines sentences. -6- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar II. Consideration of Past Convictions in Sentencing Joseph and Dunbar also argue that their Sixth Amendment rights were violated when the district court considered their prior criminal convictions to determine their sentencing enhancements based on 21 U.S.C. § 851 and the Guidelines. They maintain that this court should review this issue de novo because they are challenging the constitutionality of the sentence. The Government disagrees, arguing that Appellants forfeited this argument because neither previously objected to the § 851 notices and review should be for plain error. Again, the result is the same without regard to which standard of review we apply. The Government argues that Almendarez–Torres v. United States, 523 U.S. 224, 228–29 (1998)—which held that the Sixth Amendment does not require it to charge past convictions in the indictment and prove them to the jury beyond a reasonable doubt—is binding precedent. Dunbar and Joseph acknowledge Almendarez-Torres, but argue that it may soon be overturned. See, i.e., Joseph Br. at 18. Dunbar also questions Almendarez–Torres in light of Alleyne. Dunbar Br. at 24. This court has rejected similar arguments. [Appellant’s] contention that the holding in Almendarez–Torres has been whittled away, and that Almendarez–Torres has been overruled by implication, and is no longer good law, is unavailing. Although Almendarez–Torres may stand on shifting sands, the case presently remains good law and we must follow it until the Supreme Court expressly overrules it. United States v. Nagy, 760 F.3d 485, 488–89 (6th Cir. 2014) (internal quotation marks omitted) (citing United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013)); see also United States v. Pritchett, 749 F.3d 417, 434 (6th Cir. 2014) (“Alleyne did not disturb the holding in Almendarez– Torres”). -7- No. 13-5215 and 13-5217 U.S. v. Joseph and U.S. v. Dunbar Thus, the district court did not err in enhancing Joseph’s and Dunbar’s sentences based on a finding of past convictions without first submitting the factual question to a jury for determination beyond a reasonable doubt. CONCLUSION For these reasons, we AFFIRM the sentences imposed by the district court. -8- 

203 Cal.App.2d 772 (1962) 21 Cal. Rptr. 871 THE PEOPLE, Plaintiff and Respondent, v. DAVID G. LUGO, Defendant and Appellant. Docket No. 7866. Court of Appeals of California, Second District, Division One. May 21, 1962. *773 Ruffo Espinosa for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Peter H. Graber, Deputy Attorney General, for Plaintiff and Respondent. FOURT, J. This is an appeal from a judgment of conviction of selling heroin and an order denying a motion for a new trial. In an indictment filed in Los Angeles County on February 17, 1961, the appellant was charged with a violation of section 11501, Health & Safety Code, in that on December 15, 1960, appellant sold heroin. Appellant was also charged with a prior felony conviction. He pleaded not guilty and denied *774 the prior conviction. A jury trial was properly waived and appellant was found guilty as charged and the prior conviction was found to be true. A résumé of some of the facts is as follows: On or about the afternoon of December 15, 1960, Officer Martin, an undercover narcotics officer, was riding as a passenger in his automobile as it was being driven north on Broadway between Seventh and Sixth Streets in Los Angeles. Martin was seated to the right of the driver, Robert Mansfield. Two women, one known as Pat Haynes and the other as Ramona, were seated in the back seat of the automobile. Martin, who had been on the narcotics division assignment for six or eight weeks, saw appellant, who was walking on Broadway, at about 4:45 p.m., December 15, 1960. Pat Haynes called to appellant and invited him to enter the car, which he did, taking a seat to the right of Martin in the front seat. It was daylight and Martin observed appellant and his wearing apparel, and also noticed that appellant's teeth protruded somewhat. Appellant was introduced to Martin as "Louis." Upon entering the automobile appellant asked, "How much are you looking to score?" which meant in effect, "How much narcotics did you want to buy?" Pat Haynes answered, "We want to get two grams. We'll give you thirty five dollars" and appellant said, "I don't know how much I have at my stash, but I think I only have a gram and a half. Go down to Sixth and Main Streets." Mansfield, the driver, inquired of the appellant whether he had narcotics with him and appellant stated that he had a half gram of heroin. Martin offered appellant $9.50 for the half gram and appellant accepted the offer. Martin paid appellant the money and appellant thereupon took from his mouth a small balloon which was tied at one end and handed it and the contents thereof to the officer. During the conversation and the exchange the car was being driven from Broadway and Sixth Streets to Main and Sixth Streets. Martin observed the appellant quite closely. At Sixth and Main Streets Pat Haynes and appellant got out of the automobile. Martin went to the police administration building, where he opened the balloon which had been given to him by the appellant. It contained five capsules holding a white powdery substance. The capsules and the balloon were marked with the officer's initials and the date and thereupon placed in a small manila envelope. That envelope was then placed in a larger envelope which was sealed with sealing wax. *775 A police forensic chemist received the sealed manila envelope from the central property division of the police department on December 16, 1960, and selected at random one of the capsules for examination. The tests disclosed that the capsule examined contained heroin. The chemist returned the items to the envelope, which was then sealed and returned to the property division of the police department. The material remained within the sealed envelope in the property division of the police department until it was presented to the grand jury. The envelope and contents were introduced into evidence as Exhibit 1 at the trial. About two weeks after the sale of the heroin occurred Martin was shown by an informant a picture of a person known as "Apache" and Martin recognized the picture as being of one of the men who had made the sale of heroin to him. On February 18, 1961, Martin identified appellant at the police building and there talked to him. In appellant's presentation of his defense he admitted to having been convicted of the possession of narcotics on a previous occasion and that he was using narcotics in December of 1960. However he stated that he was not in the vicinity of where the sale in question occurred, although he did not know where he was on the date of the sale. Appellant now asserts that the chain of possession of the narcotics was inadequate, that the identification of appellant was inadequate, and that there is not competent evidence to sustain the judgment. [1a] Appellant claims that there is a gap in the chain of possession from the time the officer sealed the contents of the balloon into the envelope to the time the chemist obtained the sealed envelope from the property division of the police department. There was no showing of any tampering with the envelope otherwise, and no questions were put to the officer by appellant's counsel on the now asserted gap. It is proper to presume that an official duty has been regularly performed unless there is some evidence to the contrary. (Code Civ. Proc. § 1963, subd. 15. See People v. Pendarvis, 178 Cal. App.2d 239, 241 [2 Cal. Rptr. 824]; People v. Heath, 131 Cal. App.2d 172, 174 [280 P.2d 70]; People v. Coleman, 100 Cal. App.2d 797, 801-802 [224 P.2d 837]; People v. Brown, 92 Cal. App.2d 360, 365 [206 P.2d 1095]; People v. Reyes, 133 Cal. App. 574 [24 P.2d 531].) Appellant relies in great part upon some language contained in People v. Riser 47 Cal.2d 566, 580 [305 P.2d 1], to support *776 his contention. The facts of that case and the facts of the case before this court are in no sense comparable. In the Riser case there was evidence that the items in question were put in an open bookcase in an office which was shared by others, that the office was unlocked and flanked on one side by a hallway and on the other by an office shared by two or three persons. In Riser the defendant contended "... that in view of these facts the prosecution failed to establish continuous possession, which is a necessary foundation for the admission of demonstrative evidence; that since someone could have altered the prints or imposed wholly new ones during the four hours the glass and bottle were left unguarded in the book case, the prosecution has not sufficiently identified the prints as those that existed when the articles were removed from the bar. Defendant would require the prosecution to negative all possibility of tampering." [2] The court further said: "Undoubtedly the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering (see People v. Coleman, 100 Cal. App.2d 797, 801 [224 P.2d 837]; 21 A.L.R.2d 1216, 1219, 1236-1237), but it has never been suggested by the cases, what the practicalities of proof could not tolerate, that this burden is an absolute one requiring the party to negative all possibility of tampering. (See, e.g., People v. Brown, 92 Cal. App.2d 360, 365 [206 P.2d 1095]; Commonwealth v. Mazarella, 279 Pa. 465, 472 [124 A. 163].) [3] "The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. "The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. (See Dobson v. Industrial Acc. Com., 114 Cal. App.2d 782, 785 [251 P.2d 349]; McGowan v. Los Angeles, 100 Cal. App.2d 386, 389-392 [223 P.2d 862, 21 A.L.R.2d 1206]; People v. Smith, 55 Cal. App. 324, 327-329 [203 P. 816]; Novak v. District of Columbia, 160 F.2d 588 [82 App. D.C. 95].) [4] Conversely, when it is the barest speculation that there was tampering, it is *777 proper to admit the evidence and let what doubt remains go to its weight. (See People v. Tomasovich, 56 Cal. App. 520, 529 [206 P. 119]; State v. Smith (Mo.), 222 S.W. 455, 458-459.) In the present case defendant did not point to any indication of actual tampering, did not show how fingerprints could have been forged, and did not establish that anyone who might have been interested in tampering with the prints knew that the bottles and glasses were in Deputy Sheriff Lochry's book case. There was no error in the court's ruling." [1b] Had the appellant any thought of raising the question of a gap in the chain of possession his opportunity was made available when the stipulation was being entered into concerning the testimony of the police chemist and the route followed or taken by the evidence from the time Martin secured it from appellant to the time of the testing or analysis by the chemist. There was no objection to the procedure which was followed, nor was there even an expressed thought that the powder analyzed by the chemist was not the same powder as purchased by Martin from the appellant. It is now too late to make any such objection. [5] It is not the duty of the prosecution in the ordinary situation where there is no objection to the receipt of the evidence to negative all possibility of tampering. There is clear evidence in this case that the evidence in question is the heroin which was purchased from the appellant. The burden is to satisfy the trier of fact that under all of the circumstances of the case and taking into account every factor it is reasonably certain that there was no alteration or tampering with the evidence. There is no showing of the slightest likelihood that the evidence in this case which was analyzed by the chemist is not the heroin which was purchased from the appellant. [6] Appellant also contends that he was not adequately identified; that the prosecution should have called Pat Haynes or one of the other persons in the automobile to testify with reference to what occurred. Martin was a percipient witness to the transaction. He had every opportunity to see and observe the appellant. The inference is clear that Martin readily recognized appellant at the time of his arrest as the person who had made the sale of heroin to him on December 15, 1960. [7] The sale of narcotics requires only one witness. (People v. Casado, 181 Cal. App.2d 4, 8 [4 Cal. Rptr. 851]; People v. Smith, 174 Cal. App.2d 129, 134 [344 P.2d *778 435]; People v. Rodriguez, 169 Cal. App.2d 771, 778 [338 P.2d 41]; People v. Sterling, 162 Cal. App.2d 738, 739 [328 P.2d 462]; People v. McCrasky, 149 Cal. App.2d 630, 635 [309 P.2d 115].) Pat Haynes could have testified but her testimony would have been of no higher nature than that of the officer. The presumption of Code of Civil Procedure section 1963, subdivision 6, does not apply to the facts of this case. (People v. McShann, 177 Cal. App.2d 195, 198 [2 Cal. Rptr. 71]; People v. Williams, 174 Cal. App.2d 175 [344 P.2d 45]; People v. Alexander, 168 Cal. App.2d 753, 755 [336 P.2d 565]; People v. Taylor, 159 Cal. App.2d 752, 756-757 [324 P.2d 715].) [8] There is no evidence in this case so far as the record discloses to show suppression of any evidence. Appellant relies heavily upon People v. Kiihoa, 53 Cal.2d 748, 754 [3 Cal. Rptr. 1, 349 P.2d 673], however the facts of that case are in nowise similar to the facts in the instant case. Here the appellant was arrested approximately two months after the offense was committed. The police might very well have wanted to delay the arrest of appellant until the date it was made for fear of alerting other violators of police activity. Indeed the clerk's transcript shows that appellant's first appearance in court was with the defendants named in 31 secret indictments and 13 others, one of whom included Pat Haynes. There is no showing that any delay was engineered to the end that Pat Haynes or any other witness was to leave the state. There was no showing that the persons who were with Martin at the time of the purchase of the heroin were not available to testify had the appellant been of the mind to call any of them as his witness. (See People v. Castedy, 194 Cal. App.2d 763 [15 Cal. Rptr. 413].) There was no statement made by the appellant at the time of trial to the effect that it would be more desirable to call a witness other than Martin as to what occurred. With reference to the appellant's claim that the evidence is insufficient to support the conviction, a reading of the record, as heretofore indicated, belies any such claim. The trial judge accepted the prosecution's identification evidence. It was for the trial judge to determine the credibility of the witnesses. (People v. Williams, 174 Cal. App.2d 175, 183 [344 P.2d 45]; People v. Muniz, 172 Cal. App.2d 688, 691 [342 P.2d 53]; People v. Carr, 170 Cal. App.2d 181, 183, 186 [338 P.2d 479]; People v. Diaz, 160 Cal. App.2d 123, 133 [324 P.2d 887].) *779 The evidence of appellant's guilt in this case is crystal clear. He was fairly tried. The order denying a motion for a new trial and the judgment are and each is affirmed. Wood, P.J., and Lillie, J., concurred.

900 F.2d 257Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Richard Earl Scott SELLARS, Defendant-Appellant. No. 89-5175. United States Court of Appeals, Fourth Circuit. Submitted: March 5, 1990.Decided: March 23, 1990. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., District Judge. (CR No. 88-422) Charles Benjamin Patterson, Greenville, S.C., for appellant. Robert Claude Jendron, Jr., Assistant United States Attorney, Columbia, S.C., for appellee. D.S.C. AFFIRMED. Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges. PER CURIAM: 1 Richard Earl Scott Sellars appeals his conviction of conspiracy to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 846). Sellars's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating that there are no meritorious issues for appeal. Sellars did not file a supplemental pro se appeal brief. In accordance with Anders, supra, we examined the entire record in this case and found no meritorious issues for appeal. We briefly address the issue raised by counsel. 2 Sellars contends that his sentence under the guidelines should be computed based on his personal responsibility for two ounces of cocaine, not the entire nineteen ounces of cocaine that was in the conspiracy. Upon review of the record, we find that Sellars pled guilty to conspiring to distribute more than 500 grams but less than five kilograms, and was sentenced for an amount within that range--nineteen ounces converts to 538 grams. 3 Where a defendant is convicted of conspiracy, yet only participated in transactions involving small quantities of drugs, if reasonably foreseeable, the entire amount of drugs distributed by co-conspirators is taken into account in sentencing under the guidelines. United States v. Vinson, 886 F.2d 740 (4th Cir.1989). The district court found that although Sellars only admitted personal involvement of two ounces of cocaine, it was reasonably foreseeable that the conspiracy included nineteen ounces of cocaine. These findings are supported by the record; they are not clearly erroneous. 4 Finding no merit in Sellars's contentions, and finding no error upon review of the entire record, we affirm the judgment of conviction. Pursuant to the plan adopted by the Fourth Circuit Judicial Council implementing the Criminal Justice Act of 1964, 18 U.S.C. Sec. 3006A, court appointed counsel has the obligation to advise Sellars of his right to petition the Supreme Court for a writ of certiorari and, if Sellars desires him to do so, prepare the necessary papers. We dispense with oral argument because the facts and legal contentions are adequately developed in the materials before the Court and argument would not aid the decisional process. AFFIRMED

[Cite as Parma v. Horky, 2019-Ohio-4886.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA CITY OF PARMA, : Plaintiff-Appellee, : No. 107968 v. : ZACHARY P. HORKY, : Defendant-Appellant. : JOURNAL ENTRY AND OPINION JUDGMENT: VACATED RELEASED AND JOURNALIZED: November 27, 2019 Criminal Appeal from the Parma Municipal Court Case Nos. 18-CRB-03100 and 18-CRB-03492 Appearances: Timothy G. Dobeck, Parma Law Director, and John J. Spellacy, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant. KATHLEEN ANN KEOUGH, J.: Defendant-appellant, Zachary P. Horky (“Horky”), appeals his convictions in two cases that were consolidated for appeal. For the reasons that follow, we vacate his convictions and order Horky discharged.  In 2018, Horky was charged in the Parma Municipal Court in two different cases with one count each of criminal child enticement in violation of Parma Codified Ordinances 636.075. He pleaded not guilty in both cases, and the matter proceeded to a bench trial. During its opening statement, the city amended the charge in each case to criminal child enticement in violation of R.C. 2905.05, the state statute containing nearly identical language to that of Parma Codified Ordinances 636.075. After hearing all the evidence, the court found Horky guilty in both cases and sentenced him in each case to a $250 fine and 180 days in jail; the sentences were ordered to be served consecutively. Horky’s sentence was immediately ordered into execution. The trial court subsequently denied Horky’s request for bond and to stay execution of his sentence pending appeal. Subsequently, this court granted Horky’s motion for an appellate bond and suspended the execution of his sentence pending appeal. Horky now appeals, raising three assignments of error of our review. I. Final Appealable Order At the outset, the city of Parma contends that Horky’s judgment entries of conviction are not final appealable orders; thus, this court lacks jurisdiction to consider his appeal. Specifically, the city contends, without citation to any authority, that because the judgment entries of conviction do not identify the subsection of R.C. 2905.05 of which Horky was found to be in violation, there is an ambiguity that renders the entries not final or appealable. We disagree.  Crim.R. 32(C) specifies what a judgment entry of conviction must contain: “A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence.” “A judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. In this case, the judgment entries of conviction satisfy all four requirements: (1) each provides that Horky was convicted of criminal child enticement, (2) states his sentence for the offense, (3) is signed by the trial judge, and (4) is time stamped. The fact that they do not contain the code subsection of the charge upon which Horky was found guilty does not make the judgment entries not final nor unappealable. See, e.g., State v. Baker, 119 Ohio St.3d 197, 2008-Ohio- 3330, 893 N.E.3d 163 (journal entry of conviction final and appealable where it only identified the names of the offenses the defendant was convicted; not the code section). Accordingly, this appeal is properly before this court. II. Unconstitutional Statute In his first assignment of error, Horky contends that his convictions violate due process and are otherwise invalid because they are based on R.C. 2905.05(A) — a statute that has been declared unconstitutional by the Ohio Supreme Court in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156. The state contends that the Ohio Supreme Court did not find R.C. 2905.05 unconstitutional in its entirety, but rather only declared subsection (A) unconstitutional. The city seems to contend that Horky’s journal entries of conviction do not indicate the subsection of which Horky was found guilty; thus, Horky’s convictions should be upheld because it is possible he was convicted of R.C. 2905.05(B) or (C). R.C. 2905.05, criminal child enticement, provides, in relevant part: (A) No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply: (1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity. (2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity. (B) No person, with a sexual motivation, shall violate division (A) of this section. (C) No person, for any unlawful purpose other than, or in addition to, that proscribed by division (A) of this section, shall engage in any activity described in division (A) of this section. In Romage, the Ohio Supreme Court held that R.C. 2905.05(A) is unconstitutionally overbroad because it “sweeps within its prohibitions a significant amount of constitutionally protected activity.” Id. at syllabus. See also Cleveland v. Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035 (finding that Cleveland Codified Ordinances 609.09, criminal child enticement, is unconstitutionally overbroad). In this case, the city does not dispute that R.C. 2905.05(A) was declared unconstitutional, but contends that Horky’s convictions should be upheld because it is possible he was found guilty of R.C. 2905.05(B) or (C), which was not stricken by Romage. The city, however, ignores a plain reading of the record that reveals that the city undoubtedly prosecuted Horky for violating R.C. 2905.05(A). First, at the time that the city amended the charge from the city code to the state code of R.C. 2905.05, the prosecutor stated: And it says that no person by any means and without privilege to do so shall knowingly solicit, coax, entice or lure any child under 14 years of age to accompany the person in any manner including entering into a vehicle or onto any vessel whether or not the offender knows the age of the child if both of the following apply and so it mimics, it is the exact same language that’s contained in the Parma Codified Ordinance. (Tr. 4-5.) This quoted language is expressly derived from subsection (A) of R.C. 2505.05. At no time did the city add the additional elements contained in subsections (B) or (C) of R.C. 2505.05 when making the amendment. Additionally, during both opening and closing arguments, the city maintained that Horky was guilty of criminal child enticement by continuing to quote from R.C. 2905.05(A). During opening statements, the prosecutor stated: Your honor we believe that the City will prove beyond a reasonable doubt each and every essential element of the crime of Child Enticement and that is that Mr. Horky did knowingly solicit, coax, entice, or lure a child under 14 years of age to accompanying [sic] the person in any manner. And then it goes on to say if both of the  following apply and (a) no express or implied permission of any parent or guardian and [b] the actor is not a law enforcement officer. (Tr. 3-4.). During closing argument, the prosecutor stated: I believe the evidence is pretty clear that the Defendant is Guilty of Two Counts of Child Enticement. One on or about July 13th 2018, one from July 16th 2018, the statute is pretty clear, specifically the elements are to knowingly solicit, coax, entice or lure a child under 14 years of age to accompany the person in any manner if both of the following apply [a)] there is no expressed or implied permission of the parent or guardian and b) the actor is not a law enforcement officer, etc., well he certainly is not a law enforcement officer, he certainly, clearly did not have permission contrary to his testimony. (Tr. 108.) Based on these arguments at trial, the record clearly demonstrates that the city prosecuted Horkey under R.C. 2505.02(A). Finally, the record does not support the city’s theory that Horky may have been convicted of either R.C. 2905.05(B) or (C) because at no time during trial did the city argue or even mention the presence of the additional element found in subsection (B) — prohibiting a violation of subsection of (A) “with a sexual motivation;” or the additional element found in subsection (C) — prohibiting a violation of subsection (A) “for any unlawful purpose.” In fact, the record clearly rebuts the possibility that Horky was convicted of violating either subsections (B) or (C), both of which require some unlawful intent, because the prosecutor specifically stated during closing that: Whether [Horky’s] intentions were completely good or not doesn’t matter pursuant to the statute, has no bearing on the statute, this is for the protection of kids and he violated the statue. (Tr. 108.)  Based on the record before this court, we find that Horky’s due process rights were violated when he was prosecuted and convicted of violating a statute that was previously declared unconstitutional. The assignment of error is sustained. Because we find merit to his first assignment of error, Horky’s second and third assignments of error, which challenge the effectiveness of his trial counsel and sufficiency of the evidence, are rendered moot. See App.R. 12(A)(1)(c). Judgment vacated; Horky is ordered discharged from the sentences imposed. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Parma municipal court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE MARY J. BOYLE, P.J., and RAYMOND C. HEADEN, J., CONCUR 

190 Mich. App. 686 (1991) 476 N.W.2d 487 BLOEMSMA v. AUTO CLUB INSURANCE ASSOCIATION Docket Nos. 121616, 123235. Michigan Court of Appeals. Decided August 19, 1991, at 9:35 A.M. Giddy & Associates (by Ronald J. Giddy), for the plaintiff. Cunningham, Mulder & Breese, P.C. (by Kenneth B. Breese), for the defendant. Before: DOCTOROFF, P.J., and MAHER and CAVANAGH, JJ. *688 AFTER REMAND DOCTOROFF, P.J. Plaintiff appeals as of right from orders of the circuit court awarding attorney fees and costs to plaintiff. Plaintiff argues that the trial court erred in not awarding attorney fees for services provided during trial, after trial, and on appeal and in not awarding actual costs. Defendant cross appeals, asserting that plaintiff's claim for appellate attorney fees and costs is vexatious and frivolous and, therefore, it is entitled to reasonable attorney fees. The appeals were consolidated by the Court of Appeals. We reverse and remand. This case is before us for the second time. In its first opinion, this Court held that the trial court erred in finding that defendant's delay in making personal injury protection benefit payments to plaintiff was reasonable and remanded for recalculation of penalty interest and judgment interest. Bloemsma v Auto Club Ins Co, 174 Mich App 692; 436 NW2d 442 (1989). This Court also ordered the trial court to award reasonable attorney fees to plaintiff. Id., p 698. On remand, the trial court issued an opinion dated Friday, June 2, 1989, and filed Monday, June 5, 1989, awarding plaintiff attorney fees in the amount of $4,269. This award was based on a statement submitted by plaintiff's attorney during trial on December 5, 1986, which itemized services provided through December 4, 1986. The court determined that $75 an hour was a reasonable fee for the 56.92 hours expended. On June 5, 1989, plaintiff, before receiving notice of the trial court's order, filed a motion for attorney fees and costs, claiming attorney fees for the December 5, 1986, trial and for hours expended after the December 5, 1986, trial. At a hearing on June 12, 1989, the trial court denied *689 plaintiff's request for additional attorney fees, but granted plaintiff's request for costs, including those incurred on appeal. An order in accordance with the trial court's ruling was entered on September 21, 1989. A third order was entered on November 2, 1989, setting forth the costs allowed. Plaintiff argues that the trial court erred in not awarding attorney fees for services provided during trial and on appeal. Plaintiff contends that he is entitled to an award of those fees because the time spent during trial and on the two appeals was expended in an effort to collect the benefits claimed. In this case, attorney fees were granted pursuant to MCL 500.3148(1); MSA 24.13148(1), which states: An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney's fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment. In determining the reasonableness of an attorney's fee, the trial court should consider (1) the professional standing and experience of the attorney, (2) the skill, time, and labor involved, (3) the amount in question and results achieved, (4) the difficulty of the case, (5) the expenses incurred, and (6) the nature and length of the professional relationship between the attorney and client. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982). However, the trial court is not limited to these factors and need not detail its findings with regard to each specific factor. Id. An award of attorney fees will be upheld on appeal unless the *690 trial court's determination regarding the "reasonableness" issue was an abuse of discretion. Id.; Smolen v Dahlmann Apartments, Ltd, 186 Mich App 292, 296; 463 NW2d 261 (1990). The trial court's denial of plaintiff's request for fees other than those itemized in the statement submitted on the day of trial was based on its conclusion that the case had been remanded for the recalculation of attorney fees and not to allow the presentation of additional evidence. We agree with plaintiff that the trial court erred. This matter was remanded to the trial court with instructions that it award reasonable attorney fees to plaintiff. The determination of reasonable attorney fees requires that the trial court take into account the totality of the circumstances of the case. Id., p 297. We are unable to find any authority for the trial court's conclusion that plaintiff's attorney was prohibited on remand from presenting evidence related to the time, labor, and expenses involved in advising and representing plaintiff during trial and thereafter. Clearly, plaintiff was entitled to a reasonable attorney fee for the services rendered on this matter up to and including trial. Plaintiff also argues that the trial court erred in not awarding attorney fees for the services rendered on appeal. We agree. This Court has held that a statutory provision for attorney fees applies to appellate proceedings when the statute does not place any restrictions on the recovery of attorney fees and does not limit attorney fees to services rendered at the trial court level. Smolen, supra (provision for attorney fees under the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., applies to appellate proceedings). Although the provision for attorney fees at issue here, MCL 500.3148(1); *691 MSA 24.13148(1), restricts an award of attorney fees to cases in which the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment, no other restrictions are imposed, and the award of attorney fees is not limited to services rendered at the trial court level. We conclude that attorney fees for services on appeal can be awarded under MCL 500.3148(1); MSA 24.13148(1). Thus, on remand, the trial court is to consider services rendered on appeal. Plaintiff also argues that the trial court abused its discretion in determining that $75 an hour was reasonable and that it failed to consider the contingency fee arrangement. In its opinion, the trial court stated that it considered the factors listed in Wood in determining a reasonable fee, but did not indicate its findings on any of the factors. We are not convinced and will not assume that the trial court abused its discretion in determining that $75 an hour was reasonable. We also decline to address plaintiff's assertion that the trial court failed to consider the contingency fee arrangement. The record provided to this Court indicates that plaintiff sought attorney fees based upon the time and labor expended by counsel, and not based upon a contingency fee arrangement. Error requiring reversal must be that of the trial court, and not error to which the appellant contributed by plan or negligence. Smith v Musgrove, 372 Mich 329, 337; 125 NW2d 869 (1964); Harrigan v Ford Motor Co, 159 Mich App 776, 786; 406 NW2d 917 (1987), app dis 431 Mich 905 (1988). Plaintiff next claims that the trial court erred in not awarding actual costs. In its December 1986 opinion, January 1987 order, and June 1989 opinion, the trial court awarded plaintiff statutory costs. Attached to plaintiff's motion for attorney *692 fees and costs was an itemized statement listing actual costs apparently incurred both in presenting the original action to the trial court and to this Court on appeal. At the June 12, 1989, hearing and in its September 21, 1989, order, the trial court awarded plaintiff taxable costs incurred on appeal. Plaintiff claims that the trial court erred in allowing only taxable costs, arguing that, by providing for an award of a reasonable attorney fee, MCL 500.3148(1); MSA 24.13148(1) authorizes an award of actual costs. Plaintiff's argument is without merit. The power to tax costs is wholly statutory. Herrera v Levine, 176 Mich App 350, 357; 439 NW2d 378 (1989); Brown v Dep't of State Hwys, 126 Mich App 392, 396; 337 NW2d 76 (1983). Costs are not recoverable where there is no statutory authority for awarding them. Id. Where the language of a statute is clear and unambiguous, judicial interpretation is precluded, and this Court should not look beyond the ordinary meaning of the unambiguous language in giving effect to the statute. Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). MCL 500.3148(1); MSA 24.13148(1) clearly provides for only an award of attorney fees. There is no express authorization for an award of actual costs. We also reject as untimely plaintiff's argument that the trial court should have awarded actual costs pursuant to MCL 600.2591; MSA 27A.2591. Issues and arguments raised for the first time on appeal are not subject to review. Petrus v Dickinson Co Bd of Comm'rs, 184 Mich App 282, 288; 457 NW2d 359 (1990). We must, however, reverse the trial court's award of taxable costs incurred on appeal. The *693 trial court was without jurisdiction to tax costs incurred on appeal. Lopez-Flores v Hamburg Twp, 185 Mich App 49, 53; 460 NW2d 268 (1990); Oscoda Chapter of PBB Action Committee, Inc v Dep't of Natural Resources, 115 Mich App 356, 365; 320 NW2d 376 (1982). Furthermore, by failing to file a bill of costs with this Court as required by MCR 7.219, plaintiff waived his right to costs incurred on the first appeal. Defendant's claim on cross appeal that plaintiff's claims on appeal are frivolous and vexatious is without merit. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

879 A.2d 526 (2005) 91 Conn.App. 26 Myra J. KRAMER et al. v. Robert J. PETISI et al. No. 24698. Appellate Court of Connecticut. Argued February 23, 2005. Decided August 23, 2005. *527 William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (named plaintiff). *528 Robert B. Bellitto, Fairfield, for the appellees (named defendant et al.). Laura Pascale Zaino, with whom, on the brief, was Thomas J. Hagarty, Jr., Hartford, for the appellees (defendant Patricia Abagnale et al.). SCHALLER, FLYNN and GRUENDEL, Js. SCHALLER, J. The plaintiff Myra J. Kramer[1] appeals from the judgment of the trial court rendered in favor of the defendants[2] following the jury trial of a case involving the negligent or fraudulent misrepresentation of property boundary lines. On appeal, the plaintiff claims that the court improperly (1) instructed the jury on the applicability of comparative negligence and (2) refused to set aside the verdict as to the defendants Patricia Abagnale, Country Living Associates, Inc., Robert J. Petisi and Carole W. Petisi. The plaintiff asserts that the jury improperly found that she was not entitled to damages on the basis of its finding that she was negligent in relying on a 1982 survey of the property instead of obtaining a current survey before purchasing the property. We affirm the judgment of the trial court. The following facts are relevant to our resolution of the plaintiff's appeal. In 1978, John P. Edel and Jacque-line P. Edel, the owners of a four and one-half acre estate on North Street in Fairfield, subdivided the parcel of land into two parcels, which became known as 2250 North Street and 2228 North Street. The Edels had a fenced-in horse paddock, which was located on both parcels. The paddock area of the land is the focus of the current dispute. In 1991, the Petisis purchased 2228 North Street from the Edels. When the Petisis purchased the property, the horse paddock was still in existence, but because of the overgrown condition of the paddock land, the Petisis dismantled the portion of the fence that enclosed the paddock on their property. They asked the owners of the other parcel, 2250 North Street, if they could mow the tall grass up to the remaining portion of the fence, which was located on the other parcel. The owners granted permission and, between 1992 and 1994, the Petisis maintained that parcel of land. On June 1, 1994, the Petisis listed their property for sale with Abagnale, an agent of Country Living Associates, Inc. The Petisis provided Abagnale and Country Living Associates, Inc., with a written disclosure document. In response to the disclosure document question regarding encroachments, boundary disputes or easements affecting the property, the Petisis replied that a "[s]ection of [the] backyard is fenced in including [a ten foot by fifty foot section of the] neighbor's property." In July, 1994, the plaintiff and her husband decided to move from New Mexico to Connecticut. The couple looked at several homes in a ten day period between July 11 and 20. After attending a broker's open house at the Petisis' home, Nancy W. Thorne, the plaintiff's real estate agent, took the plaintiff to look at the house. Although Thorne had spoken with Abagnale, *529 she did not wait for Abagnale before taking the plaintiff to view the property. Shortly thereafter, the plaintiff visited the property with members of her family, Thorne and Abagnale. There were three to five additional visits in the days that followed. At one of the visits, the plaintiff and Thorne walked around the property. The plaintiff asked Thorne about the location of the boundaries. When Thorne replied that she did not know the boundaries of the property, she told the plaintiff that she would go inside and ask Abagnale. Upon her return, Thorne told the plaintiff that the boundary was the western side of the fence, which actually was located on the adjoining parcel, 2250 North Street. The plaintiff offered to purchase the property for $1.25 million. After some difficult negotiations, the parties agreed on a sale price of $1.4 million. After the inspection of the property revealed a variety of problems, the Petisis signed the sales contract and an addendum dated August 24, 1994, promising, among other items, a $3000 credit at closing. In addition, the addendum provided that the Petisis would remove an inground oil tank and kerosene tank, and provide for the extermination of wasps, bats, carpenter ants and mice. The sales contract also provided that any improvements or appurtenances located on the Petisis' land were entirely within the boundaries of the property to be conveyed. The parties closed on September 26, 1994. Prior to the closing, the plaintiff did not obtain a survey of the property. Instead, she relied on a 1982 survey of the property, which indicated the boundaries of the property without the fence. There is some dispute as to whether the plaintiff's attorney advised her to get a new survey done or whether it was suggested that the old survey be updated. Regardless, instead of obtaining a new survey, the plaintiff obtained an affidavit in lieu of a survey in which the Petisis stated that they had no knowledge of adverse rights, including easements, rights-of-way or encroachments. Despite the affidavit, the seller's disclosure statement indicated that a portion of the land, which was partially fenced-in, was not part of the property. The sellers' disclosure form, however, was not given to the plaintiff. Abagnale did not provide this to Thorne or to the plaintiff. On April 23, 1996, the plaintiff received notice from the owners of 2250 North Street, the adjacent property, that they were asserting their rights to prevent her from adversely possessing a portion of their property. At issue was a .22 acre portion of the property that was fenced in and used by the plaintiff. Thereafter, the plaintiff, by complaint dated September 20, 1996, filed an action against the Petisis and the other parties involved in the sale of 2228 North Street. On February 5, 1997, Abagnale and Country Living Associates, Inc., filed an answer and, pursuant to Practice Book § 10-53, affirmatively pleaded contributory negligence as a special defense. At trial, the jury found in favor of the Petisis but against Abagnale and Country Living Associates, Inc. The jury determined that Abagnale negligently had misrepresented the boundary lines of the property, but the jury also concluded that the plaintiff was 60 percent contributorily negligent. Consequently, Abagnale and Country Living Associates, Inc., were not liable for damages. On June 23, 2003, the plaintiff filed a motion to set aside the verdict as to Abagnale, Country Living Associates, Inc., and the Petisis. The motion was denied and *530 this appeal followed. Additional facts will be set forth as needed. I On appeal, the plaintiff claims that the court improperly denied her request to instruct the jury regarding the inapplicability of comparative negligence. The plaintiff first claims on appeal that the court improperly denied her request to charge. The requested supplemental charge[3] provided that the jury could not find the plaintiff contributorily negligent for failing to obtain a survey if the plaintiff relied on the defendants' misrepresentations regarding the property boundaries. The plaintiff contends that the law of Connecticut is well settled that if the failure to obtain a survey is a direct result of a negligent or intentional misrepresentation as to property boundary lines and if that misrepresentation is not open to discovery by inspection, the plaintiff's failure to obtain a survey does not constitute negligence. The plaintiff maintains that the case law on which she relies has not been overturned; therefore, contributory negligence does not apply. Accordingly, the plaintiff argues that the court was incorrect in omitting her requested instruction and charging the jury with an instruction that allowed for a finding of contributory negligence. We disagree. "We begin with our standard of review. A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.... When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper." (Citation omitted, internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 621, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001). The following additional facts are relevant to our resolution of the plaintiff's claim. In their special defense to negligent misrepresentation, the defendants alleged that the plaintiff was contributorily negligent and that any damages suffered by the plaintiff were the result of her negligence because she failed to obtain a survey or review a survey map on file at *531 the Fairfield town hall prior to purchasing the property. The plaintiff denied this special defense, but later made a supplemental request to charge that, in essence, rendered the special defense inapplicable. On appeal, the defendants maintain that the case law and rule of law relied on by the plaintiff in her requested supplemental charge is inapplicable because it relates solely to fraudulent misrepresentation cases. Furthermore, they argue that such cases have been implicitly overruled by tort reform and the introduction of comparative negligence principles. The court instructed the jury that the determination of whether the plaintiff was contributorily negligent is a question of fact.[4] Furthermore, the court instructed that if the defendants could prove that the plaintiff was negligent by failing to obtain a survey prior to the closing and that her negligence contributed to more than 50 percent of her loss, then recovery would be barred. If the plaintiff's negligence was found to account for less than 50 percent of her loss, then the plaintiff's recovery would be merely reduced. We have reviewed the court's charge on comparative negligence in the context of the entire instruction, keeping in mind the *532 allegations of the defendants' special defense and the law. On the basis of our review, we conclude that the court's instruction on comparative negligence did not mislead the jury. The defendants contend that the same common-law rules applied in cases involving negligence are applied to cases involving negligent misrepresentation. Consequently, comparative negligence principles are applicable to cases involving acts of negligent misrepresentation. Connecticut courts have "long recognized liability for negligent misrepresentation. [Our courts] have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.... The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212 (1995). Because negligent misrepresentation is a tort sounding in negligence, it is "consistent with [the] goal[s] for ... comparative negligence [principles] to apply to the tort of negligent misrepresentation...." Id., at 586, 657 A.2d 212.[5] As a result of tort reform, "the legislature abolished the common-law rule of joint and several liability and replaced it with a system based on principles of comparative fault." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 23, 848 A.2d 418 (2004). "The purpose of comparative negligence is to ameliorate the harshness of the complete bar to liability resulting from the common law defense of contributory negligence.... This change in policy was accomplished by mandating a comparison by the fact finder of the relative degrees of negligence of the plaintiff and the defendant. [Section] 52-572h(b) provides that contributory negligence shall not bar recovery in an action by any person ... to recover damages resulting from personal injury [or damage to property] ... if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought.... The purpose of the comparative negligence statute was to replace the former rule, under which contributory negligence acted as a complete defense, with a rule under which contributory negligence would operate merely to diminish recovery of damages based upon the degree of the plaintiff's own negligence." (Citation omitted, internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. at 585-86, 657 A.2d 212. It is consistent with the purposes of comparative negligence principles to apply them to cases involving negligent misrepresentation. The plaintiff maintains that despite the applicability of comparative negligence principles to actions for negligent misrepresentation, we should find an exception to that rule that would render the defense inapplicable in cases concerning misrepresentations of property boundary lines. In support of her claim, the plaintiff cites a variety of cases concerning the fraudulent misrepresentation of property conditions *533 in which a plaintiff's failure to obtain a survey prior to purchasing the property did not serve as a defense to a misrepresentation claim.[6] The plaintiff maintains that because our Supreme Court did not address that line of cases when it addressed the application of comparative negligence principles to negligent misrepresentation cases, we should treat a negligent misrepresentation claim in those types of cases as if it were a fraudulent misrepresentation claim. Although the plaintiff is correct that comparative negligence principles do not apply to cases involving fraudulent misrepresentation, we are not persuaded by her argument. Merely because our Supreme Court did not directly address the cases cited by the plaintiff when ruling on the applicability of comparative negligence principles to negligent misrepresentation claims does not mean that comparative negligence principles should not apply to cases involving the negligent misrepresentation of property boundary lines. The plaintiff suggests that the determination as to whether comparative negligence principles apply is not made on the basis of whether the misrepresentation was negligent or fraudulent, but rather on whether the misrepresentation was material to the transaction. We decline, however, to adopt the plaintiff's suggestion and conclude that the court properly instructed the jury. II A The plaintiff next claims that the court improperly denied her motion to set aside the verdict as to Abagnale and Country Living Associates, Inc. Even though the jury found that Abagnale and Country Living Associates, Inc., were negligent, they were not held liable because the jury found that their negligence caused less than 50 percent of the plaintiff's loss. Our standard of review concerning a motion to set aside a verdict is well settled. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict ... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.... We do not ... determine whether a conclusion different from the one reached could have been reached.... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted." (Internal quotation marks omitted.) Maag v. Homechek Real Estate Services Inc., 82 Conn.App. 201, 211-12, 843 A.2d 619, cert. denied, 269 Conn. 908, 852 A.2d 737 (2004). The plaintiff's argument as to her claim is identical to her argument regarding the court's denial of her request to charge. Because we did not conclude that the instruction regarding comparative negligence was incorrect, we conclude that the court did not abuse its discretion in denying the plaintiff's motion to set aside the verdict. B The plaintiff next claims that the court improperly denied her motion to set aside *534 the verdict as to the Petisis. The plaintiff contends that the verdict absolving the Petisis of liability was unreasonable, illogical and contrary to the evidence and, therefore, the court improperly denied her motion to set aside the verdict. The standard of review concerning a motion to set aside a verdict is set forth in part II A. The plaintiff contends that the Petisis should have been found liable for negligent or intentional misrepresentation because they made two written representations concerning the western boundary of the property that directly contravened the written property disclosure that they gave to Abagnale. Specifically, the plaintiff refers to the real estate rider for the contract for sale and the affidavit in lieu of survey. The Petisis provided Abagnale with a written disclosure document in which they noted that a section of property that was partially fenced in was not part of their property. Abagnale failed to give this document to the plaintiff. In the real estate rider for the contract for sale dated August 24, 1994, the Petisis represented that any improvements were within the boundary of the property. Shortly thereafter, before the closing, the plaintiff obtained an affidavit from the Petisis in lieu of obtaining a survey. In the affidavit, dated September 28, 1994, the Petisis represented that they were not aware of any encroachments on the property. The plaintiff maintains that the last two documents were in direct conflict with the Petisis' statements in the initial disclosure document and, therefore, that the Petisis intentionally or negligently misrepresented the property boundary lines. At trial, the Petisis maintained that they did not encroach on the land of the adjoining landowners, nor did they perform any act that changed or attempted to change the property boundary lines, and, therefore, they did not misrepresent the property boundary lines to the plaintiff. The Petisis pointed out that the plaintiff's continued focus on the remaining portion of the fence on the adjoining property is misplaced. The Petisis did not build the fence, nor did they encroach on the portion of land that they did not own. The adjoining landowner gave the Petisis permission to mow the grass. There was no attempt by the Petisis to take this portion of the land for their own use. Merely because the Petisis pointed out, in a voluntary written disclosure that the remaining portion of the fence was not located on their property, does not mean that the Petisis were making misrepresentations as to the boundary of the property line when they made a written representation that there were no encroachments on the property. We conclude, therefore, that the jury reasonably could have determined that the Petisis did not misrepresent the boundary lines and, therefore, that the court did not abuse its discretion in denying the plaintiff's motion to set aside the verdict. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] Kramer's husband, Gary Kramer, a plaintiff at trial, died while this action was pending in the trial court and is not a party to this appeal. We therefore refer in this opinion to Myra Kramer as the plaintiff. [2] At trial, the defendants were Robert J. Petisi, Carole W. Petisi, Patricia Abagnale, Country Living Associates, Inc., Nancy W. Thorne and Dunlap-Hibbs Real Estate, Inc. On appeal, the plaintiff raises claims relating only to Abagnale, Country Living Associates, Inc., and the Petisis. [3] The supplemental request to charge provided: "1. Defendants claim plaintiff was negligent in failing to get a survey. If you find that there was a misrepresentation, whether negligent or intentional, about the westerly boundary, and if you find that the correct boundary was not open to discovery by inspection, then the failure of the plaintiff to obtain a survey is not contributorily negligent and you may not consider it. Stevens v. Giddings, 45 Conn. 507 (1878); Lovejoy v. Isbell, 73 Conn. 368 [47 A. 682] (1900); Clark v. Haggard, 141 Conn. 668, [109 A.2d 358] (1954). "2. If the defendants, or any one of them, misrepresented the boundary by stating that the rail fence formed the westerly boundary toward the rear of the property, the failure of the plaintiff to get a survey was a natural consequence of the misrepresentation. That is why her failure to get a survey under these circumstances doesn't matter. Clark v. Haggard, [supra, 141 Conn. at 673, 109 A.2d 358] (`It matters not that the plaintiff had the opportunity to have the land surveyed. His omission to have a survey made was a natural consequence of the fraudulent misrepresentations.')." [4] The court's instruction to the jury regarding comparative negligence provided: "The defendants, when they responded to this lawsuit, denied all the claims..... [A]mong the claims they denied was the claim of negligent misrepresentation. When they filed that denial, they also filed what is called a special defense. In this special defense, they state that if there was a negligent misrepresentation, any loss that the plaintiff suffered was caused not by the negligent misrepresentation, but was caused by the plaintiff's own negligence. They claim that the [plaintiff] should have obtained a survey. This is called a defense of contributory negligence. The defendants claim that any harm that befell the plaintiff with respect to this claim came to her through her own contributory negligence. "Whether she was contributorily negligent is a question of fact for you to decide. Whether the [plaintiff] should have gotten a survey depends upon the facts as you find them. Whether the survey would have disclosed the problem with respect to the western boundary is a question for you to decide. The defendants have the burden on this issue. There's a presumption that a person is acting in due care.... That presumption survives unless and until the defendants prove by the fair preponderance of the evidence that she was not acting in due care, that she was careless. The defendants have the burden of persuasion on their special defense of contributory negligence, and this special defense only applies to the claim of negligent misstatement. "If the defendants have proven that [the plaintiff] was contributorily negligent, then two possibilities exist; either her claim of negligent misrepresentation is barred entirely or any recovery on that claim would be reduced in proportion to her negligence. If you find that she has proven the claim of negligent misstatement, and if you further find that she was contributorily negligent herself, then you would have to combine the negligence of all the parties, call that 100 percent, and then decide how much is attributable, how much fault is attributable to [the plaintiff]. "If [the plaintiff] was more than 50 percent at fault, she could not—she cannot recover under the negligent misrepresentation claim. If she was 50 percent or less at fault, then she could still-she would still recover under this claim, but her recovery would be reduced by her percentage of fault.... "Now, that's the second type of claim, negligent misrepresentation. The defendants, acting in the course of a transaction in which [they] had a financial interest, supplied false information for the guidance of the other. The defendants failed to exercise reasonable care in obtaining or communicating the information, and the plaintiff justifiably relied on the information. The plaintiff suffered a monetary loss. With respect to this claim, you would consider whether or not the plaintiff was contributorily negligent. If she was—if she was greater than 50 percent, then she would be barred from recovering on this claim. If she was 50 percent or less at fault, then her recovery under this claim would be reduced by her percentage of fault." [5] See also annot., 22 A.L.R.5th 464, 471 (1994); Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 339 (Fla.1997). [6] See Gibson v. Capano, 241 Conn. 725, 733, 699 A.2d 68 (1997); Johnson v. Healy, 176 Conn. 97, 101-102, 405 A.2d 54 (1978); Warman v. Delaney, 148 Conn. 469, 473-74, 172 A.2d 188 (1961); Clark v. Haggard, 141 Conn. 668, 673, 109 A.2d 358 (1954); Foley v. Huntington Co., 42 Conn.App. 712, 722, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

873 F.2d 1443 Martin (Michael L.)v.Duckworth (Jack R.) NO. 88-2394 United States Court of Appeals,Seventh Circuit. APR 06, 1989 1 Appeal From: N.D.Ind. 2 AFFIRMED.