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587 So.2d 448 (1991) Calvin MASSEY v. STATE. CR 90-1656. Court of Criminal Appeals of Alabama. September 20, 1991. Charles Law, Montgomery, for appellant. James H. Evans, Atty. Gen., for appellee. PATTERSON, Presiding Judge. The appellant was convicted of manslaughter on March 30, 1990, and was thereafter sentenced to 20 years in the penitentiary. In addition, he was ordered to pay a fine of $200, court costs, restitution in the amount of $15,376.17, and $250 to the Victims' Compensation Fund. On direct appeal, the judgment of the circuit court was affirmed. On April 19, 1991, following this Court's issuance of the certificate of judgment on April 5, 1991, the appellant appeared before the trial court on a motion to extend the appeal bond and a motion for reconsideration. The motions were granted by the trial court, and a hearing was set for a later date. On June 18, 1991, after a hearing on the motion to reconsider, the trial court entered the following order: "Defendant appeared this date for reconsideration. The Defendant is a junior at Alabama State University. The Court re-sentenced the defendant to 15 years to the Dept. of Corrections pursuant to the Split Sentence Act, SUSPENDED. Defendant to serve 2 full years at the Montgomery Co. Jail. The Court ordered defendant released from jail for school Monday through Friday from 8:00 a.m. to 1:30 p.m. The Defendant is ordered to *449 pay court costs, $50 to Victims' Compensation Fund, restitution $15,376.17. No attorney fees in this case. The defendant must retain a (`C') average in school. Defendant told of right to appeal." On June 18, 1991, following resentencing, the appellant tested positive on a drug screen administered by the probation officer. The following day, the trial court set aside the sentence imposed on June 18, 1991, and "re-imposed the original sentence of April 12, 1990, with all original terms and conditions in effect, due to misinformation given at hearing June 18, 1991." The appellant filed a motion for rehearing in the trial court on June 21, 1991. On August 8, 1991, the following entry is recorded on the trial court's case action summary: "A Motion for Rehearing was held this date. The Court DENIED motion and set aside any reconsideration and imposed original sentence. The Defendant gave oral notice of appeal. The state recommended no appeal bond. The Court ordered $70,000 appeal bond." The appeal referenced in the August 8 entry was docketed in this Court on August 14, 1991. Based on the facts as set out above, the trial court was without authority to amend the original sentence. The trial judge lost all jurisdiction to modify the original sentence 30 days after its imposition. If a motion for a new trial or a request to modify a sentence is not filed within 30 days of sentencing, the trial court loses all jurisdiction to modify the sentence. Ex parte Hayden, 531 So.2d 940 (Ala.1988); Rule 13, A.R.Cr.P. Temp., now Rule 24, A.R.Cr.P. See also Hill v. State, 562 So.2d 1386 (Ala.Cr.App.1990). For the above stated reasons, the trial court's resentencing order of June 18, 1991, attempting to reduce and modify the original sentence was a nullity as was the order of June 19, 1991, reimposing the original sentence. Consequently, the original sentence of 20 years' imprisonment still stands. This Court also notes that because the judgment of conviction was affirmed on appeal, the trial court had no authority to extend the appellant's appeal bond following this Court's issuance of the certificate of judgment, after which time the appellant was under a duty to surrender himself to the sheriff in compliance with § 12-22-244, Code of Alabama 1975; Peters v. State, 30 Ala.App. 279, 4 So.2d 514 cert. denied, 242 Ala. 29, 4 So.2d 516 (1941). This appeal is therefore due to be, and it is hereby, dismissed. APPEAL DISMISSED. All Judges concur.

524 F.Supp. 688 (1981) UNITED STATES of America, Plaintiff, v. 637.84 ACRES OF LAND, MORE OR LESS, SITUATE IN OREGON COUNTY, STATE OF MISSOURI; and Daniel J. Staack, et al., Defendants. No. 78-3297-CV-S-1. United States District Court, W. D. Missouri, S. D. October 21, 1981. *689 Robert G. Ulrich, U. S. Atty., Linda L. Parker, Asst. U. S. Atty., Kansas City, Mo., for plaintiff. George M. Bock, Slagle & Bernard, Kansas City, Mo., and Charles E. Eklund, Querry, Harrow, Gulanick & Kennedy, Ltd., Chicago, Ill., for defendants. MEMORANDUM AND ORDER JOHN W. OLIVER, Senior District Judge. This case pends on the Court's Order to Show Cause, issued April 21, 1981, as to why title and possession should not be confirmed in plaintiff in accordance with the Judgment Upon Declaration of Taking and Order for Possession attached thereto. Defendants Daniel J. Staack and Dorothy A. Staack raise two legal objections in response to the Court's Order to Show Cause, both of which should more properly have been raised in an Answer to the Complaint in Condemnation. Defendants did not file any Answer to the Complaint. While this might be a sufficient ground to dispose of defendants' objections outright, we will respond to each of the objections in turn. We conclude that Judgment must be entered upon the aforementioned Declaration of Taking and Order for Possession. The basis of defendants' objections is that the Complaint and Declaration of Taking seek and declare title, possession and control beyond that authorized by the Wild and Scenic Rivers Act (16 U.S.C. §§ 1271-1287) in that the following restrictions are imposed on the "scenic easement estate":[1] (A) A prohibition against subdivision or disposal of [the subject] land in units of less than 250 acres; *690 (B) The imposition of a requirement upon the landowner to maintain a bridge within the scenic easement parcel "in a safe, but basically unaltered, condition." I. Regarding (A) above, defendants contend that in acquiring a "scenic easement," the government is limited to "the right to control the use of land" and lacks the power to impose "restrictions on the alienability of land or restrictions on disposal of land." Section 1277 of Title 16, U.S.C., provides as follows: (a) The Secretary of the Interior and the Secretary of Agriculture are each authorized to acquire land and interests in land within the authorized boundaries of any component of the National Wild and Scenic Rivers System designated in Section 1274 of this Title, or hereinafter designated for an inclusion in the system by an Act of Congress, which is administered by him ...." (emphasis added) (b) If 50 per centum or more of the entire acreage within a federally administered wild, scenic or recreational river area is owned by the United States, by the State or States within which it lies, or by political subdivisions of those States, neither Secretary shall acquire fee title to any lands by condemnation under authority of this chapter. Nothing contained in this section, however, shall preclude the use of condemnation when necessary to clear title or to acquire scenic easements or such other easements as are reasonably necessary to give the public access to the river and to permit its members to traverse the length of the area or of selected segments thereof. (emphasis added) Section 1286(c) defines "scenic easement" as follows: "Scenic easement" means the right to control the use of land ... for the purpose of protecting the natural qualities of a designated wild, scenic or recreational river area .... (emphasis added) The question presented is whether a restriction on the subdivision of property in parcels of less than 250 acres is a "control [of] the use of land" within § 1286(c).[2] We hold that it is.[3] We construe the definition of "scenic easement" in light of the intended purpose of the Wild and Scenic Rivers Act, to restore and preserve the natural state of the rivers designated thereunder. See United States v. Adams, Civil No. 77-3538-CV-S-1, unpublished opinion filed March 6, 1981 in the United States District Court for the Western District of Missouri. "Control [of] the use of land" must be interpreted to include a restriction on the subdivision of a large parcel of land into many smaller parcels. Only such an interpretation of "control of use" is consistent with the broad authority given the Secretary in § 1277(a), to condemn "lands or interests in land" in furtherance of the Act.[4] Defendants allege the "practical consequences" of the restriction sought to be *691 imposed in (A) above, and characterize the question as: in what manner the restriction on disposal serves the congressional purpose or the statutory goal of control of the use of land within the boundary of the project. [Defendants "Suggestions," p. 3] We think Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1926), precludes inquiry as to whether the decision of the Secretary was necessary to effectuate the public purpose of the Act. Such a decision would require a practical judgment and expertise that courts do not possess. We note in passing, however, that one may readily conclude that restrictions on subdivision or disposal of small parcels of subject property, not uncommonly imposed in condemnation proceedings under the Act, may further the public policy of § 1271, that "selected Rivers of the Nation ... and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." Schedule C, appended to plaintiff's complaint, states the purpose of the restriction, "to prevent any developments or changes that will tend to detract from the natural qualities of [the subject] area ...." Subdivision of a large parcel into many smaller ones may tend to degrade the quality and value of the land. II. Regarding (B) above, defendants contend: Nor is there any provision of the statute which would even remotely permit the plaintiff, by the imposition of a scenic easement, to impose upon the landowner an affirmative duty to maintain a bridge "in a safe, but basically unaltered, condition." We cannot accept this characterization of the Complaint in Condemnation, nor can we abide by its conclusion. Section 3(c) of the Restriction On Land Use By The Servient Landowner, appended as Schedule C to the Complaint in Condemnation, reads as follows: 3. Authorized additional and/or replacement buildings, structures, utility poles and fences shall, at a minimum, be subject to the following requirements: * * * * * * c. The bridge which crosses the Eleven Point River ... shall be maintained by the grantor, his heirs or assigns, in a safe, but basically unaltered, condition. Maintenance and/or reconstruction shall not, without the prior written approval of the Secretary's representative, result in the creation of a bridge which in the opinion of the Secretary's representative differs significantly in capacity or appearance from the bridge existing on the date of the filing of this Declaration of Taking. (emphasis added) We think the sense of subsection (c), taken together with the introductory sentence of section 3, is that any repairs, additions to or replacements of the bridge shall not essentially alter the condition in which it was found at the time of the Declaration of Taking, and that it does not purport to impose an affirmative duty to make repairs. In the Stipulation As To Prior Uses, filed with the Court on August 17, 1981, the parties specified in paragraph 4 "the use of an existing wooden plank bridge crossing the Eleven Point River;" and later in that same paragraph "the use of all dwellings, facilities and improvements located on the described tract in connection with [the foregoing and after-mentioned] operations." And in paragraph 14(m) of the stipulation the wooden plank bridge is listed as one of the "existing improvements within the scenic tract." Section 1286 of Title 16, U.S.C., which defines "scenic easements," provides: [S]uch control shall not affect, without the owner's consent, any regular use exercised prior to the acquisition of the easement. Obviously, allowing the bridge to fall into disrepair is not a "regular use" protected by the section. It is hard to understand how the defendants argue at one and the same time that their "regular use" of the bridge should be protected and that to preserve *692 that use, there is no obligation to keep the bridge in repair. If the defendants allow the bridge to fall into disrepair, they may thus abandon their right of "regular use." And if repairs, additions, or replacements of the bridge are made pursuant to the easement of regular use retained in defendants, they shall not alter the basic structure or design of the bridge. That is what is contemplated by the Complaint in Condemnation, and nothing more. For the reasons stated, it is ORDERED that the Clerk shall enter the Judgment Upon Declaration of Taking And Order for Possession. NOTES [1] See Schedule C of plaintiff's complaint. In addition to the "scenic easement parcel," the complaint also seeks condemnation of a fee interest in a separate parcel of land. The latter parcel is not the subject of any dispute between the parties. [2] Counsel have not cited the Court to any cases dealing with this question, nor has the Court discovered any itself in pursuing the matter. The question is one of first impression. [3] In reaching this question, we are fully cognizant of the limited scope of judicial review of administrative decisions under the Act. Compare, e. g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). Nevertheless, we conclude that the narrow question of whether or not a particular taking is authorized by the terms of the statute itself and therefore within the agency's power, is reviewable by the courts. Especially must this be so where the Act itself specifically enumerates express limitations on the power of the agency to condemn property. See, e. g., 16 U.S.C. § 1277(a) and (b). [4] We need not and do not reach the question of the propriety of an absolute restriction on the sale of an entire parcel of land. We decide only that a restriction on subdivision of a large parcel of land into many smaller ones is within the power of the Secretary to "control the use of land." Also, we need not decide whether an absolute restriction would be within the Secretary's power to acquire "interests in land." We conclude that any possible incongruence of the term "scenic easement," as defined in § 1286, and "interests in land" in § 1277(a), is not presented in this case.

67 Wis.2d 487 (1975) 227 N. W. 2d 95 CUKROWSKI and others, Appellants, v. MT. SINAI HOSPITAL, INC., and others, Respondents.[*] No. 389. Supreme Court of Wisconsin. Submitted March 6, 1975. Decided March 28, 1975. *489 For the appellants the cause was submitted on the brief of Rowan, Slaby, Mueller & Ilse, attorneys, and Donald H. Mueller and Charles Rowan of counsel, all of Milwaukee. For the respondents the cause was submitted on the joint brief of Arnold, Murray & O'Neill, attorneys, and Robert C. Watson of counsel, all of Milwaukee, for Dr. Richard L. Franklin and Dr. Walter Hogan; by Binder, Zirbel & Howard, attorneys, and Irving W. Zirbel of counsel, all of Milwaukee, for Dr. Irvin M. Becker and Dr. Henry M. Goldberg; by C. Donald Straub of Milwaukee for Dr. Phillip S. Guzelian; and by Fulton, Menn & Nehs of Appleton for Mt. Sinai Hospital and Dr. Herbert A. Oxman. Submitted under sec. (Rule) 251.54 March 6, 1975. CONNOR T. HANSEN, J. On February 15 and 16, 1967, Walter Cukrowski allegedly entered Mt. Sinai Hospital to have his esophagus dilated with a mosher bag. The complaint alleges that *490 during the course of this surgical procedure, Cukrowski's esophagus was perforated, which perforation went undetected for sixteen hours because of the inadequate postsurgical facilities and care. The exact extent of Cukrowski's disability from the effects of this alleged negligence is not disclosed in the record. It is alleged, however, that he incurred $75,000 in medical expenses in order to save his life and that he has some type of permanent disability. We consider the dispositive issues on this appeal to be: 1. Did the trial court abuse its discretion in entering orders challenged by the plaintiffs? 2. Did the trial court abuse its discretion in dismissing the complaint? 3. Were the plaintiffs denied due process and equal protection of the laws? The instant action was commenced on February 14, 1970, approximately three years after the alleged negligence, and one day before the statute of limitations would have run. Lawyer Mueller was retained by the plaintiffs, on a contingent fee basis, in August, 1969, six months before the complaint was given to the sheriff for service. Allegedly due to the assurances of counsel for the plaintiffs that he would probably serve an amended complaint making it unnecessary to immediately answer the original complaint, the defendants' answers were served on the following dates: Becker and Goldberg, April 1, 1970; Hogan, March 3, 1971; Franklin, March 5, 1971; Guzelian, September 13, 1972; and hospital and Oxman, January 11, 1973. Between the service of the summons and complaint in February, 1970, and September 11, 1972, no action was taken of record by counsel for the plaintiffs with two exceptions. On February 10, 1971, a deposition was taken of Cukrowski to perpetuate his testimony at the plaintiffs' initiative. On April 1, 1970, and again in March, *491 1971, the plaintiffs attempted unsuccessfully to subpoena Oxman, then a resident of Minnesota, for an adverse examination. On August 4, 1972, a motion was made by Becker and Goldberg to sustain their demurrers to the complaint of Kathleen Cukrowski. Counsel for the plaintiffs opposed the motion, a hearing was held, and an order entered by the trial court sustaining the demurrer on September 18, 1972. On September 27, 1972, Becker and Goldberg served and filed a certificate of readiness and notice of trial. At this time, neither the hospital nor Oxman had answered the complaint. On October 19, 1972, plaintiffs' counsel moved for an order striking the notice of readiness for trial, alleging in his affidavit that he had an agreement with several of the defendants' lawyers that there might be an amended complaint and that they need not answer. Counsel also asserted that he needed more time to collect evidence and take depositions of potential witnesses. A hearing was held on October 30, 1972, and the motion to strike the notice was denied by written order of the trial court dated November 3, 1972. A pretrial conference, in which all parties participated, was held on January 5, 1973. Pursuant to that conference a pretrial order, dated January 16, 1973, set the trial for July 10, 1973, and required that the plaintiffs notify the defendants of the names of experts they intended to call at the trial and treatises they intended to use by May 11, 1973. The defendants were required to reciprocate with names and titles by June 10, 1973. On February 14, 1973, plaintiffs noticed a deposition to be taken of Elizabeth Thompson, a registered nurse at the hospital, to be taken on March 6, 1973, and issued a subpoena for her to appear. Pursuant to a show cause order initiated by Franklin and Hogan, a hearing was held on February 26, 1973, before LEANDER J. FOLEY, JR., *492 circuit judge, at which time defendants requested that the deposition be postponed because of a scheduling conflict of the lawyers. Plaintiffs' counsel opposed the postponement on the ground that he had no time available in April to conduct the deposition and that if postponed, he would have insufficient time to take other necessary depositions. Counsel also asserted that he was unable to get the lawyers for the various defendants to cooperate on picking a mutually convenient time to hold the necessary depositions. By order dated March 1, 1973, Judge FOLEY adjourned the deposition to April 6, 1973, or such other time as counsel for the parties could agree upon. On March 2, 1973, plaintiffs noticed an adverse deposition of Michael Elliot, the hospital administrator, to be held on March 20, 1973. By an order to show cause, the lawyers for Franklin and Hogan moved for an adjournment of this deposition. The reason given was that the lawyers were going to be trying a case on the date in question. A hearing was held on March 19, 1973, at which time plaintiffs' counsel again informed the court that if the depositions were all delayed until April, that he would not be able to fully prepare for trial or meet the May 11, 1973, deadline for notifying the defendants of the experts he intended to call. The trial court informed counsel for the plaintiffs that it would treat any notice of deposition of an expert as notice that the expert would be called at trial. By order dated April 13, 1973, the trial court adjourned the deposition to April 23, 1973. Additionally, on March 2, 1973, the plaintiffs' counsel noticed an adverse deposition to be taken of Dr. Norbert Enzer on March 15, 1973. Allegedly, Dr. Enzer, the chief pathologist at the hospital, had made a detailed report on the incident concluding that the hospital had no defense to the action. However, Dr. Enzer was in Europe for six weeks and was not deposed. *493 Counsel for the plaintiffs failed to submit the names of any experts it intended to call at trial or notice the deposition of any experts by the May 11, 1973, deadline, as set by the pretrial order. On June 19, 1973, Becker and Goldberg moved to prohibit the plaintiffs from calling any experts. Plaintiffs' counsel made a countermotion on the morning of the hearing to have the pretrial order vacated and to obtain a continuance of the trial date. He also requested that the defendants be required to produce the original hospital records pertaining to Cukrowski. At the hearing on June 25, 1973, the trial court denied the plaintiffs' motions with regard to the pretrial order and continuance. Plaintiffs' motion as to the hospital records was granted; the records were to be deposited with the court and available to the plaintiffs' expert document examiner, and a copy of the records was also ordered to be deposited with the court. The trial court also granted the defendants' motion concerning the expert witnesses. An order reflecting these decisions was entered on the day of the hearing, June 25, 1973. On July 6, 1973, the plaintiffs filed an application for a writ of prohibition with this court seeking a stay in the commencement of the trial. The application was denied. On July 10, 1973, the case was called for trial. Counsel for the plaintiffs renewed his motion to have the trial continued, which was denied. Counsel announced that he was not prepared to try the case, and upon motion by the defendants the complaint was dismissed for lack of prosecution. Judgment was entered the same day. The plaintiffs, by an order to show cause dated September 11, 1973, moved the trial court to reopen the judgment. A hearing was set by the trial court for October 29, 1973, after the time when a notice of appeal from the judgment would have been required. This appeal was taken from the judgment and a motion was made by the plaintiffs to have the case remanded to the trial court *494 for the hearing on the motion to reopen. This court denied the motion to remand. Abuse of discretion—pretrial orders. The plaintiffs contend that the trial court abused its discretion in entering orders denying a number of their pretrial motions. The plaintiffs raise this issue as it relates to the following orders: 1. Order dated November 3, 1972, denying a motion to strike the notice of trial and certificate of readiness filed by Becker and Goldberg on September 27, 1972.[1] 2. Pretrial order of January 16, 1973, which, among other things, set the case for trial on July 10, 1973. 3. The order adjourning the deposition of nurse Elizabeth Thompson, from March 6, 1973, to April 6, 1973.[2] 4. The order adjourning the deposition of witness Michael Elliot, the hospital administrator, from March 20, 1973, to April 23, 1973. 5. The order of June 25, 1973, granting defendants' motion to prohibit plaintiffs from calling expert witnesses at trial for failure to comply with the pretrial order of January 16, 1973, requiring exchange of names of witnesses by May 11, 1973.[3] The order also denied cross-motions of the plaintiffs to strike the notice of trial and pretrial order and grant a continuance of the trial date. *495 We commence our consideration of this issue by again stating that the alleged injuries occurred February 15 and 16, 1967. Plaintiffs retained counsel in August, 1969. The complaint was delivered to the sheriff for service on February 14, 1970, one day before the expiration of the statute of limitations. The record reflects that in 1971, a deposition was taken of plaintiff Cukrowski, to preserve his testimony. Also an attempt was made to depose defendant Oxman, a resident doctor at the time of the incident, who was no longer a resident of the state. Except for the two instances noted above, the record is barren of any attempt on the part of the plaintiffs at discovery until after the pretrial order of January, 1973, which set the trial date as July 10, 1973. The only discovery attempted during this six-month period commenced in February, 1973, and was directed to nurse Thompson, hospital administrator Elliot, and Dr. Norbert Enzer, pathologist. In Latham v. Casey & King Corp. (1964), 23 Wis. 2d 311, 314, 127 N. W. 2d 225, this court stated: ". . . The general control of the judicial business before it is essential to the court if it is to function. `Every court has inherent power, exercisable in its sound discretion, consistent within the Constitution and statutes, to control disposition of causes on its docket with economy of time and effort.' 14 Am. Jur., Courts, p. 371, sec. 171, Inherent Powers of Courts, 1963 Suppl., p. 77. . . ." The principal thrust of the plaintiffs' argument on this abuse of discretion issue is that they did not have sufficient time to prepare their case and that the number of defendants created the difficulties they allegedly encountered in preparing. We find nothing in the record to support either of these contentions. Our examination of the record leads us to but one conclusion. It is that an experienced trial judge commenced *496 in October, 1972, to bring a case on for trial which arose out of an incident alleged to have occurred in February, 1967. It was at the October, 1972, hearing on plaintiffs' motion to strike the certificate of readiness and notice of trial of defendants Becker and Goldberg that the trial judge advised plaintiffs that the case would be set for trial in June or July of 1973. Each of the orders challenged by the plaintiffs was the result of notice and after a full hearing before the courts. The orders were promptly entered and explicit as to detail. It is our further opinion that the record further demonstrates that in a number of instances the trial court considerably extended itself to accommodate the plaintiffs. An example relates to the plaintiffs' demand for the hospital records. A copy was made available to the plaintiffs at the examination of the hospital administrator Elliot in April, 1972, for approximately $200. The record indicates actual cost thereof was considerably more. It was not until the June 25, 1973, hearing that plaintiffs demanded production of the original records for inspection by their expert document examiner. The trial court ordered that the original records and a copy be immediately placed on file with the court and made available to the plaintiffs. We can find no abuse of discretion arising out of the entry of any of the orders of the trial court. It is our opinion that the trial court exercised wise and discerning judicial discretion in each instance. Dismissal of complaint. The plaintiffs argue that the trial court abused its discretion in dismissing the complaint of the plaintiffs because of unreasonable neglect on the part of the plaintiffs to proceed in the cause. This court has held that a trial court may dismiss an action for failure to prosecute under secs. 269.25 or *497 270.54, Stats., or under its inherent power to insure that an action pending before it is diligently prosecuted. Zeis v. Fruehauf Corp. (1972), 56 Wis. 2d 486, 202 N. W. 2d 225; Lawrence v. MacIntyre (1970), 48 Wis. 2d 550, 180 N. W. 2d 538; Taylor v. State Highway Comm. (1970), 45 Wis. 2d 490, 173 N. W. 2d 707; Latham v. Casey & King Corp., supra. Under any of the three, the question of dismissal is addressed to the sound discretion of the trial court which will not be upset on appeal unless a clear abuse of discretion is shown by a clear and justifiable excuse for the delay. Zeis v. Fruehauf Corp., supra; Gawin v. Redevelopment Authority of Milwaukee (1971), 52 Wis. 2d 380, 190 N. W. 2d 201; Taylor v. State Highway Comm., supra. This court, in Lawrence v. MacIntyre, supra, page 556, clearly stated its view of the matter: "Courts are glutted with stale lawsuits, and the responsibility of an attorney to his client, as well as to the judicial system, requires that counsel be ready for trial in a reasonable time. One of the principal causes for delay in the trial courts is the failure of counsel to be in readiness when his case is called for trial or his lack of vigor in moving his case to the trial stage. . . . ". . . The responsibility of advancing a case on the calendar and preparing it for trial is upon the plaintiff's lawyer. It is not the responsibility of the judge. The judge's responsibility is to properly try cases that are ready for trial. He has the corollary and related responsibility of dismissing stale cases which clog judicial calendars." In Latham v. Casey & King Corp., supra, pages 314, 315, this court stated: ". . . Perhaps the greatest area of the exercise of the power is the failure to diligently prosecute a case. In Smith v. Carter (1910), 141 Wis. 181, 184, 122 N. W. 1035, this court considered the dismissal of a complaint for lack of prosecution to be in the field of the court's broad discretion over the control of cases and stated, `it is the duty of the trial courts, independently of statute *498 and under inherent powers, to discourage it [protraction of litigation] as much as possible and to refuse their aid to those who negligently or abusively fail to prosecute the actions which they commence.'" From the commencement of the action to the date when the defendants demurred to the cause of action by Kathleen, a period of two years, seven months, there was no record action taken by the plaintiffs except a deposition to preserve the testimony of Cukrowski and an attempted deposition of Oxman. No discovery was noticed, attempted, requested, or conducted of the principal physicians-defendants, Becker, Hogan and Franklin, at any time either before serving the complaint or in the three-and-one-half years between commencement of the action and the date of trial. Of the three depositions noticed by the plaintiffs between February, 1973, and April, 1973, which followed the defendants' attempts to bring the case to trial by filing a notice of readiness for trial, and having a pretrial conference held and trial date set, the record reflects that only one of the depositions was actually held, that of the hospital administrator, Michael Elliot. On May 11, 1973, the date by which the plaintiffs were to notify the defendants of their intended expert witnesses and treatises, which under the trial court's order could be accomplished merely by giving notice of deposition up to and including the month of May, the plaintiffs gave no such notice. Having been denied a writ of prohibition by this court in early July, 1973, which sought to have the trial date postponed, the plaintiffs appeared on the date of trial, July 10, 1973, by their counsel and asserted that they were not prepared to proceed. On appeal, plaintiffs endeavor to demonstrate to this court that there was justifiable excuse for their inability to prepare for trial. Their showing is by way of affidavit and not by way of evidence placed in the record. Defendants *499 contend that, as such, the assertions of the plaintiffs are clearly self-serving and should not be regarded as fact by this court. The plaintiffs assert that the case was brought to the present counsel six months before the statute of limitations was to run having unsuccessfully attempted to retain numerous other lawyers; that present counsel took the case on a contingent fee basis; that numerous potential witnesses were contacted who refused to become involved in the case; that prior to August, 1972, many hours were spent doing preliminary research on the issues, contacting potential witnesses, discussing problems with the defendants' lawyers, consulting with another law firm which was handling a similar case, and consulting with the plaintiffs; that after August, 1972, counsel for the plaintiffs spent numerous hours drafting affidavits and legal papers in response to the motions of the defendants, attending court appearances, and attending depositions of the defendants in the similar case being handled by the other law firm; that after January, 1973, preparation for the case was virtually a daily affair; that overall plaintiffs' counsel spent 465 hours of recorded time on the case and estimates that that represented nearly 600 hours of actual time; that the time spent represented nearly one tenth to one eighth of all his hours of service to all of his clients; and that since the case was on a contingent fee basis, it would have been impossible for plaintiffs' counsel to have spent any more time preparing the case and still maintain his practice. The plaintiffs also repeat their assertion that in the last six months, between the pretrial order and the date of trial, the delay in preparation was primarily the fault of the defendants. The record does not reflect that the trial court was ever informed of the exact amount of time spent in preparation of the case until those allegations were presented *500 in an affidavit supporting the motion to reopen judgment in September, 1973. However, the trial court was generally informed of the circumstances as he read the affidavit presented to this court on the application for the writ of prohibition before he dismissed the action on July 10, 1973. In Wagner v. Springaire Corp. (1971), 50 Wis. 2d 212, 217, 218, 184 N. W. 2d 88, this court defined "excusable neglect" as the neglect which might have been the act of a reasonably prudent person under the same circumstances, and held that the pressure of other work is not excusable neglect without additional persuasive explanation. In Taylor v. State Highway Comm., supra, page 495, this court rejected the claim that difficulties in retaining trial counsel or in getting counsel that was hired to act excused the party from a failure to prosecute where the record showed a lack of diligence on their part in urging the prosecution of the case. This court has held that a trial court has the power to compel a plaintiff to proceed with trial or take a dismissal on the merits. Russell v. Johnson (1961), 14 Wis. 2d 406, 111 N. W. 2d 193; Estate of Hatten (1940), 233 Wis. 256, 289 N. W. 630. The obligation to bring his case to trial within a reasonable time lies with the plaintiff. Taylor v. State Highway Comm., supra. It is the legislative, judicial and public policy of long-standing that actions should not be permitted to slumber indefinitely and it is within the inherent power of a court to fashion sanctions and penalties best calculated to aid the court in its control of the judicial business before it. Lawrence v. MacIntyre, supra; Taylor v. State Highway Comm., supra. The trial court did not abuse its discretion in entering judgment dismissing the complaint of the plaintiffs in the present case for unreasonable neglect on the part of the plaintiffs in its prosecution. *501 Due process and equal protection. The plaintiffs assert that the failure of the trial court to vacate the pretrial order and continue the date of trial denied them equal protection of the laws and due process of law for two reasons: (1) They were prohibited from taking advantage of the recent decisions of this court in Shier v. Freedman (1973), 58 Wis. 2d 269, 206 N. W. 2d 166, 208 N. W. 2d 328; and Trogun v. Fruchtman (1973), 58 Wis. 2d 569, 207 N. W. 2d 297; and (2) they were not given sufficient time to raise the money to purchase the copies of Cukrowski's medical records. The Shier Case was decided by this court on April 20, 1973, approximately three weeks prior to the date by which the plaintiffs were required to notify the defendants of the experts they intended to call at trial. In that case, this court abolished the "locality rule" thereby first permitting the use of medical experts outside the local community. At the hearing on June 25, 1973, counsel for the plaintiffs argued to the trial court that the Shier Case now enabled him to obtain medical experts to testify whereas his attempts to obtain a medical expert in the Milwaukee area had been unsuccessful. At no time did counsel indicate that he had any specific witnesses in mind or that he was in contact with any such witnesses. The trial court responded, in effect, that without more specific information as to who the plaintiffs intended to call, and when the plaintiffs would be ready for trial, he would not extend the trial date or relieve the plaintiffs of the obligation to notify the defendants of the experts' names as provided in the pretrial order. The action of the trial court did not prevent the plaintiffs from seeking witnesses outside the Milwaukee locality. The inability, if it existed, was not created by the ruling of the trial court, and, under the circumstances *502 the plaintiffs were not denied due process or equal protection. The Trogun Case, supra, was decided on May 21, 1973. That case involved the issue of informed consent. If anything, that case made the plaintiffs' task in this case easier. The plaintiffs assert, however, that since the defendants did not notice any expert which they intended to call, the defendants were denied the opportunity to defend against the plaintiffs' cause of action for informed consent by the pretrial order of the trial court. The plaintiffs do not have standing to complain that the defendants were thereby denied due process and equal protection. With regard to the cost of obtaining copies of the 1600 pages of Cukrowski's medical records, the plaintiffs rely on Mars v. Luff (W. Va. 1972), 186 S. E. 2d 768. In that case, relying on Boddie v. Connecticut (1971), 401 U. S. 371, 91 Sup. Ct. 780, 28 L. Ed. 2d 113, as direct authority, the court held that an indigent couple, who applied for a divorce, were denied due process of law by the rejection of the application because of an inability to pay the court filing fees and costs. The Mars Case and the Boddie Case have little to do with the claim that the plaintiffs here assert. The facts of the present case do not rise to the level of the asserted rule of law. The plaintiffs did not contend that they could not afford the $216 cost of the medical copies, but that additional time was necessary to secure the money. This falls short of showing the indigency as presented in the Mars Case or the Boddie Case and relates to an entirely different factual situation. This cost should have been anticipated by the plaintiffs and appropriate action taken. To say that more time was constitutionally required after the extended lapse of time since the cause of action occurred is completely unrealistic. The record also reflects that the trial court made the records available *503 to the plaintiffs at no cost immediately upon being requested to do so. On June 25, 1973, when the plaintiffs made demand for the original records it was ordered that the originals and a copy be deposited with the court until the conclusion of the trial and that they be made immediately available to the plaintiffs. We are of the opinion that the plaintiffs have not been denied due process or the equal protection of the laws. September 18, 1972, the trial court sustained the demurrer of Becker and Goldberg to the complaint of Kathleen Cukrowski, daughter of the plaintiffs, Walter J. and Helen G. Cukrowski. The daughter was a minor at the time of the injury and an adult at the time the action was commenced. The complaint of Kathleen alleged a cause of action for the loss of society, support and services of her father. On this appeal, the plaintiffs present issues relating to the order of the trial court sustaining the demurrer of Becker and Goldberg. However, since we affirm the judgment of the trial court dismissing the complaint of the plaintiffs as to all the defendants, we do not reach the issues raised in the demurrer proceeding. The plaintiffs request this court to exercise its discretion pursuant to sec. 251.09, Stats., and reverse the judgment in this case, or in the alternative, remand the case to the trial court so that it can consider the motion to reopen the judgment, to prevent a miscarriage of justice. We have fully considered all of the arguments advanced by the plaintiffs and decline to order a new trial in the interest of justice. This case was scheduled on the assignment of cases on the March, 1975, calendar of this court which commenced March 3, 1975. Under date of March 4, 1975, the plaintiffs requested permission to file a reply brief. The request is denied. By the Court.—Judgment and orders affirmed. NOTES [*] Motion for rehearing denied, with costs, on June 3, 1975. [1] Sec. 270.115, Stats., provides that a certificate of readiness may be filed 40 days after joinder of issues. In this case it was filed more than two years after Becker and Goldberg served their answers. [2] No deposition was ever taken of witness Thompson. [3] During prior proceedings, the trial court had advised plaintiffs they could include persons noticed for deposition in their list of witnesses and treatises required by the pretrial order. No list was ever exchanged or filed.

541 F.2d 278 U. S.v.Timmons No. 75-1724 United States Court of Appeals, Fourth Circuit 9/17/76 1 D.S.C. AFFIRMED

701 N.E.2d 1092 (1998) 183 Ill.2d 448 233 Ill.Dec. 818 Ansel Ray JORDAN, Appellant, v. NATIONAL STEEL CORPORATION et al. (National Steel Corporation et al., Appellees). Nos. 84271, 84282. Supreme Court of Illinois. October 1, 1998. James E. DeFranco, Neville, Richards, DeFranco & Wuller, Belleville, for Davey MeKee Co. James T. Ferrini, Clausen Miller, Chicago, Jeffrey T. Reel, Hinshaw & Culbertson, Belleville, for National Steel Corp. Rex Carr, Carr, Korein, Tillery, Kunin, Montroy, Cates & Glass, East St. Louis, for Ansel Ray Jordan. *1093 Justice NICKELS delivered the opinion of the court. Plaintiff, Ansel Ray Jordan, filed suit in the circuit court of Madison County for injuries suffered while working as a pipefitter at a construction site. Plaintiff alleged that he injured his back after grabbing a defective handrail at the site. Defendants at trial were National Steel Corporation (National), the owner of the site; Davy McKee Company (McKee), a major subcontractor that had general control of the site; and Clayco Construction Company, a subcontractor that installed the handrail. None of the three named defendants was plaintiff's employer. The jury returned a verdict in favor of all defendants. Plaintiff filed a motion for a new trial, asking for a new trial only with respect to defendants National and McKee. The circuit court denied plaintiff's motion for a new trial. On appeal, the appellate court found that the jury's verdict was against the manifest weight of the evidence and remanded for a new trial. No. 5-94-0666 (unpublished order under Supreme Court Rule 23). Defendants National and McKee filed petitions for leave to appeal. We allowed the petitions (166 Ill.2d R. 315) and consolidated the appeals. Clayco Construction Company is not involved in this appeal. We reverse the appellate court. BACKGROUND On October 12, 1990, plaintiff was working at a construction site of a continuous caster facility in Granite City, Illinois. The facility consisted of a seven-story building that enclosed a 100-foot-tall caster machine for the manufacture of steel. Plaintiff was working as a pipefitter for Corrigan Company, a subcontractor on the project. At trial, plaintiff testified that, on October 12, he was working at the facility with another individual, Bernard Mundy. Plaintiff testified that he and Mundy were checking the grease lines within the caster for leaks. Plaintiff and Mundy were walking on a catwalk several floors above the ground. Plaintiff testified that there was dim temporary lighting in the area and that he and Mundy used flashlights to make their way. They reached a series of rungs and steps leading to a higher level. As plaintiff started up the rungs and steps, he grabbed the adjoining handrail with his left hand. Plaintiff testified that the handrail shifted 10 to 12 inches and that he did not expect the handrail to shift in that manner. He fell backwards and hit his back against the handrail. After plaintiff hit the handrail, he felt a dull pain in his back. At that time, Mundy was behind plaintiff and prevented him from falling. Plaintiff told Mundy that his back hurt, and later that day, plaintiff completed an accident report form, which he gave to his foreman. Plaintiff testified that the pain in his back increased over the next several days and that he also felt pain in his right hip and leg. Plaintiff sought medical attention and ultimately had surgery performed on his back. Plaintiff's condition improved after the surgery. On cross-examination, plaintiff stated that, after the injury, he continued his work for the rest of the day. Plaintiff further testified that he worked for several days after the injury. Plaintiff did not complain about the handrail to Mundy or others. Plaintiff also testified that there were a number of similar removable handrails throughout the caster and that such handrails are common at job sites. He testified that they are not intended to move and that he had had no previous problems with any handrails. Plaintiff also presented the evidence deposition of Dr. Harlen Hunter. Dr. Hunter stated that he was a doctor specializing in the field of orthopedic surgery. He testified that plaintiff came to see him on October 29, 1990. Plaintiff told him that he hurt his back on a handrail at work. Plaintiff also told him that his back pain was getting progressively worse and that he felt pain in his right leg. After examining plaintiff, Dr. Hunter determined that plaintiff had a herniated disc in his back. On November 16, 1990, Dr. Hunter performed surgery and removed the herniated disc. After the operation, plaintiff's condition improved. Dr. Hunter stated that plaintiff's activity should be limited by pain, that plaintiff should avoid any heavy lifting, and that plaintiff should avoid the possibility of climbing to heights. Dr. Hunter stated, in his opinion, that these limitations were permanent. Dr. Hunter also opined that the *1094 accident, as related to him by plaintiff, was the cause of the herniated disc. In defense, National called Bernard Mundy to testify. Mundy testified that he was a self-employed mechanical engineer. Mundy had not been an employee of any of the defendants and was testifying in response to a subpoena. Mundy had been hired to check the lubrication system for the continuous caster. Mundy testified that plaintiff was one of the pipefitters helping him on the project. Mundy testified that, on October 12, 1990, he and plaintiff were checking different points of the lubrication system. Mundy testified that he and plaintiff were walking on a catwalk having a permanent handrail on the left side. Mundy distinguished between permanent handrails and temporary, removable handrails at the job site. Permanent handrails are welded to the superstructure and do not move. In contrast, removable handrails fit into sockets and will ordinarily have some play in them. They can be removed to permit access to machinery and the movement of equipment and personnel. Plaintiff and Mundy approached a set of steps leading up to the next chamber. Mundy testified that the handrail next to the steps was a removable handrail. Mundy stated that the handrail moved three to six inches when plaintiff grabbed it. Mundy testified that a removable handrail that is three feet above the base will ordinarily move three to six inches. Mundy stated that, as plaintiff ascended the steps, plaintiff suddenly went down and to the left. Mundy testified that plaintiff did not fall backwards and did not hit his back against anything. Mundy testified that he and plaintiff continued their work after the incident, and plaintiff did not claim there was anything wrong with the handrail. Mundy did not report any problem with the handrail because, in his opinion, the removable handrail functioned the way it would be expected to function. Mundy testified that both he and plaintiff knew removable handrails were used at the job site. According to Mundy, the handrail did not move beyond a normal expected range. On cross-examination, Mundy testified that he grabbed and steadied plaintiff after plaintiff lost his balance. Plaintiff told Mundy later in the day that plaintiff had hurt his back. Later that day, Mundy reported the incident to the superintendent at McKee. Mundy testified that plaintiff grabbed a removable handrail that shifted, as would be expected. The removable handrail shifted more than a permanent handrail would. The removable handrail failed to prevent plaintiff from losing his balance. Mundy also testified that he had built permanent and removable handrails for 20 years and was therefore familiar with them. After hearing the evidence, the jury was instructed on a premises liability theory. With respect to both National and McKee, the jury was instructed that plaintiff had the burden of proving six propositions: (1) that there was a condition on the property that presented an unreasonable risk of harm to persons on the premises; (2) that defendants knew, or in the exercise or ordinary care should have known, that the condition of the property involved an unreasonable risk of harm to persons on the premises; (3) that defendants should have anticipated that persons on the premises would not discover or realize the danger or would otherwise fail to protect themselves against it; (4) that defendants performed some negligent act or omission; (5) that plaintiff was injured; and (6) that the condition of the property was a proximate cause of the injury to plaintiff. The jury was also instructed on a count of ordinary negligence against McKee only. Under this instruction, plaintiff was required to prove that McKee performed a negligent act or omission, that plaintiff was injured, and that the negligence of McKee was the proximate cause of the injury. The premises liability theory against both defendants and the count of ordinary negligence against McKee each required proof of negligent acts or omissions. The jury was instructed on alleged overlapping negligent acts or omissions by National and McKee. Plaintiff alleged that National was negligent for failing to adequately inspect and supervise the work, failing to warn plaintiff of a hazardous condition, failing to adequately coordinate the work performed by contractors and subcontractors, and failing to restrict use *1095 of the rungs and steps. Plaintiff alleged that McKee was negligent for failing to adequately inspect the work done by subcontractors under its control, failing to adequately supervise subcontractors under its control, failing to warn individuals about the danger, and failing to restrict the use of the rungs and steps. No party has raised any specific challenge to these jury instructions. After deliberation, the jury returned a verdict in favor of all defendants. On September 2, 1994, plaintiff filed a post-trial motion, seeking a new trial against National and McKee. The circuit court denied the motion. Plaintiff appealed the circuit court's denial of the post-trial motion to the appellate court. The appellate court found that the jury's verdict was against the manifest weight of the evidence and reversed and remanded for a new trial. In reaching this conclusion, the court evaluated each of the six propositions that plaintiff was required to prove. The court stated that, although there was a dispute as to the exact details of the accident, certain essential facts were undisputed. The evidence at trial showed that plaintiff suffered a back injury following an accident at the work site. The evidence also showed that the removable handrail swayed when used by plaintiff and plaintiff was not warned about any hazard in using the removable handrail. Justice Chapman dissented. He stated that plaintiff presented sufficient evidence to warrant consideration by a jury. When the jury considered the matter, however, plaintiff lost. Although plaintiff presented evidence supporting his claims, this evidence did not require the jury to find in his favor. Justice Chapman stated that the majority had usurped the jury's function of deciding whether a duty of care was violated and that the majority substituted its judgment for the jury's on disputed questions of fact. ANALYSIS On appeal, National and McKee argue, inter alia, that the jury's verdict was not against the manifest weight of the evidence. They reiterate some of the arguments made by the dissent in the appellate court. They also rely on this court's decision in Maple v. Gustafson, 151 Ill.2d 445, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). In Maple, this court addressed the general principles that apply to review of the circuit court's denial of a motion for new trial. This court first discussed the deference given to a jury verdict when the verdict is challenged: "An initial step in analyzing the issue before us is to determine the authority of the jury, trial court, and appellate court, and their relationship to one another. Unquestionably, it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony. [Citation.] A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. [Citations.] Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way. [Citations.]" Maple, 151 Ill.2d at 452-53, 177 Ill.Dec. 438, 603 N.E.2d 508. This court later stated the standard the circuit court should use when deciding whether to grant a new trial. The circuit court should only set aside the verdict if it is against the manifest weight of the evidence. Maple, 151 Ill.2d at 454, 177 Ill.Dec. 438, 603 N.E.2d 508. "`A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.' [Citations.]" Maple, 151 Ill.2d at 454, 177 Ill.Dec. 438, 603 N.E.2d 508; see also Leonardi v. Loyola University, 168 Ill.2d 83, 106, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995). This court further emphasized the deference to be given the circuit court's ruling on the motion for new trial. This deference is based on the fact that the circuit court had the benefit of personally observing and gauging the credibility of the witnesses. Maple, 151 Ill.2d at 455-56, 177 Ill.Dec. 438, *1096 603 N.E.2d 508. This court then applied these principles to the case before it, determined that there was sufficient evidence supporting the jury verdict, and found that the circuit court correctly denied the motion for a new trial. In the instant case, plaintiff alleged that defendants' liability arose due to a dangerous condition on the premises. In order to prove premises liability, plaintiff was required to prove some negligent conduct by National and/or McKee in connection with the dangerous condition. Plaintiff separately alleged a theory of ordinary negligence by McKee predicated on McKee's activities at the site. With respect to premises liability, plaintiff was required to prove six propositions. First, plaintiff was required to prove the existence of an unreasonably dangerous condition on the premises. Plaintiff put on no expert testimony about handrail and safety issues. Aside from his own testimony, plaintiff presented no evidence that the removable handrail was unreasonably dangerous or violated any industry or safety standard. In defense, Mundy testified that the handrail moved three to six inches and that this is a normal characteristic of removable handrails. Mundy testified that he was familiar with handrails because he had been building them for 20 years. The jury may have viewed Mundy as an impartial witness and given his testimony greater weight because Mundy was not an employee of any of the defendants. Based on the evidence, the jury could have rationally found that the handrail was not an unreasonably dangerous condition. Second, plaintiff was required to prove that defendants knew or should have known that the handrail posed an unreasonable risk of harm. Plaintiff testified that he did not know if defendants had any notice of any problems with the handrail. Plaintiff presented no evidence that anyone had previously reported a defective handrail to defendants. Mundy testified that he did not report the handrail because he did not consider the handrail defective. After the incident, plaintiff himself did not inform defendants that the handrail was defective. Accordingly, the jury could have rationally determined that defendants had no notice that the handrail posed an unreasonable risk of harm. Third, plaintiff had to prove that defendants should have anticipated that individuals would fail to recognize the danger or would fail to protect themselves against it. Mundy testified that removable handrails were common at the work site and were common in the industry. Mundy testified that it is commonly known that such handrails have some play in them. Plaintiff had extensive experience in working at industrial sites. Plaintiff conceded that he had seen such handrails at the caster work site and on other jobs. Based on the evidence, the jury could reasonably have concluded that plaintiff recognized the danger and could have protected himself against it. Fourth, plaintiff was required to prove some negligent act or omission by National or McKee. National presented evidence and argument that it was not negligent by disputing the amount of control it was required to exercise over the work site, pursuant to contract. McKee presented evidence and argument that it was not negligent because the defect, if any, was a design defect. McKee did not design the caster or specify the use of removable handrails. Mundy testified that the use of a removable handrail was an engineering decision and he would not second-guess this design decision. McKee argued that it would have no reason to believe the handrail was a dangerous condition. Based on this evidence and the evidence previously discussed, the jury could reasonably have determined that plaintiff failed to prove his case. There was sufficient evidence to support a jury finding for defendants on any of the issues addressed above. Similarly, there was sufficient evidence to support a finding for McKee on plaintiff's negligence count. The jury was in the best position to evaluate the evidence and make inferences based on the evidence. We find that the jury's verdict was not against the manifest weight of the evidence. Accordingly, the circuit court did not abuse its discretion in denying the motion for a new trial. See Maple, 151 Ill.2d at 455, 177 Ill.Dec. 438, 603 N.E.2d 508. *1097 CONCLUSION The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed. Appellate court judgment reversed; circuit court judgment affirmed.

140 F.2d 550 (1944) GREENBERG v. GIANNINI et al. No. 175. Circuit Court of Appeals, Second Circuit. January 31, 1944. *551 Milton Pollack, of New York City, for appellant. Samuel B. Stewart, Jr., of New York City, for Giannini. Charles H. Kelby, of New York City, for Transamerica Corporation. Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges. L. HAND, Circuit Judge. On October 1, 1942, the plaintiff filed a complaint in the District Court for the Southern District of New York against both defendants, Giannini and the Transamerica Corporation, alleging that he was a shareholder in the corporation; that it was under the domination and control of Giannini; and that by various devices which it is not necessary to set forth, Giannini and two others had wrongfully misappropriated $1,400,000 of the assets of three other corporations, of all of whose shares the Transamerica Corporation was the owner. The complaint prayed judgment that Giannini account for the moneys so misappropriated, presumably by restoring them to the treasuries of the subsidiary companies, although that was not expressly demanded. This we shall call the "original action." On the next day, October 2, 1942, the plaintiff filed a similar complaint in the Supreme Court of the State of New York, New York County, and in that action he personally served Giannini in New York on the same day. On October 22, Giannini removed the state action to the District Court for the Southern District of New York, and moved to dismiss the "original action," in which he had not yet been served, on the ground that the complaint failed to state a claim against him, and that the action was brought in the wrong district. On November 2, 1942, he made a similar motion in the removed action; and on December 21, 1942, he procured an order consolidating the two actions. On December 23, 1942, the plaintiff served the Transamerica Corporation with a summons and complaint in the consolidated action, by delivering a copy in Wilmington, Delaware, to the secretary of the Corporation Trust Company, which was the resident agent of Transamerica Corporation in that state. On February 1, 1943, the Transamerica Corporation moved to set this service aside on the ground that it was invalid; and all three motions came on to be heard at the same time. The judge *552 granted all: i.e., he set aside the service of the summons upon the Transamerica Corporation, and he dismissed the complaints against Giannini, because that company was an indispensable party. From this judgment the plaintiff appealed. The first question is of the validity of the service upon the Transamerica Corporation; it must be decided as though the two actions had remained unconsolidated, because the order did not merge them — contrary to the apparent assumption of both parties — but was only a convenience, accomplishing no more than to obviate the duplication of papers and the like. Johnson v. Manhattan R. Co., 289 U.S. 479, 496, 497, 53 S.Ct. 721, 77 L.Ed. 1331. The first step in the plaintiff's argument is that § 72, of Title 28 U.S.C.A. controls the removal of an action from a state court, and requires it to be removed into the district court in the district where the action is pending. The next step is that § 83 of Title 28 U.S. C.A. provides that in a removed action service of process may be made in the same manner as though the action had been originally filed in the district court. The last step is that, if the action had been begun in the district court, § 112 of Title 28 U.S. C.A. would have permitted service upon the Transamerica Corporation where it resided or might be found: i.e., the State of Delaware. It is this last step which fails, for, although § 112 of Title 28 provides for service outside the district upon the corporation in behalf of which the shareholder sues, that privilege is limited to the actions therein described, and the removed action was not one of these. Before the amendment to § 112 of Title 28 U.S.C.A., the shareholder could sue in any district in which either he or the offending directors resided, and in which he could serve the directors personally; and so he still can do. It might happen, however, that the injured corporation could not be served in that district, and since, as will appear, it is always an indispensable party, the shareholder's hands were often effectively tied; there was no district where he could sue. It was to meet this difficulty that he was given the privilege of suing, not only where either he or the directors "resided," but also in any district where the corporation could have sued them. That meant the district where the corporation or the directors "resided", and — since without the amendment the shareholder could have sued in the district where the directors "resided" — in practice it added only the district where the corporation "resided." But it gave the shareholder the privilege of serving the corporation outside the district in an action brought in the district where the directors "resided," and that was a great advantage; it insured him at least one forum where he could always sue, for there was small chance that he could not catch the directors in the district where they "resided." The plaintiff's argument that this privilege extended also to actions brought where the shareholder resides, is precluded by the language of the amendment itself. The privilege is expressly confined to actions brought in a district in which the corporation could have sued, and the corporation could not sue the directors where the shareholder "resided," unless that was its residence or theirs. The fact that this privilege occurs in a section defining venue, makes no difference; the question remains whether the service is valid in the action in which it is made, no matter what the general purpose of the section which grants the privilege. Congress might have provided that in shareholders' actions the wronged corporation could be sued wherever it was "found"; but plainly it did not wish to do so; and the reason, though unexpressed, is fairly apparent: i.e., since the shareholder must sue on behalf of the corporation, he should have the choice — in addition to that which he already had — of those forums to which the corporation itself could have resorted. We have already decided the point in Philipbar v. Derby, 2 Cir., 85 F.2d 27. The foregoing being true of the "original action," § 83 of Title 28 U.S.C.A. will not help the plaintiff in the removed action. That section did no more than allow the plaintiff to serve process in a removed action in the "same manner" that he could have served it in the "original action." We assume arguendo that the "manner" of service includes those occasions on which process may be served outside the district; but it cannot include occasions in which that might not be done in the "original action." Since, therefore, the corporation could not have been so served in the "original action" brought where neither it, nor the directors, "resided", § 83 of Title 28 U.S.C.A. does not allow such service upon the corporation in the removed action. It is impossible to divorce the privilege from the actions to which it is limited, and to make the section speak *553 for all shareholders' removed actions that are brought in the proper district as between the shareholder and the directors. It is true that by the defendant's removal to a district court a plaintiff sometimes gains procedural privileges which he did not have in the state court (Freeman v. Bee Machine Co., Inc., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509), but it would take strong language to convince us that removal gives the plaintiff greater privileges than if he had chosen to sue originally in the district court. The plaintiff further argues that in any event the action in the state court, by removal to the district court, became an action which the Transamerica Corporation could have brought against Giannini, and, as such, one in which that corporation could be served outside the district. The steps of this argument are as follows. By removing the action to the district court Giannini "waived" any defect in venue; the removal was in effect a consent to be sued in that court. The District Court for the Southern District of New York would have had substantive jurisdiction over an action brought by the Transamerica Corporation against Giannini; and, although there would have been a defect in venue, if Giannini had not objected, he would have "waived" it, if the corporation had sued him. By removing the action to the district court he signified such a consent, and thus turned the action into one which the company could have brought against him in that district. Therefore the company could be served outside the district under § 112 of Title 28 U.S.C.A. This argument is a tissue of confusion. At times courts have indeed spoken as though removal to a federal court "waived" some defect of venue. De Valle Da Costa v. Southern Pacific Co., C.C., 160 F. 216, 218; Cucciarre v. New York Central R. & H. R. Co., 7 Cir., 163 F. 38, 41; Goetz v. Interlake S. S. Co., D. C., 47 F.2d 753, 757; Tennessee Valley Authority v. Tennessee Electric Power Co., 6 Cir., 90 F.2d 885, 888. We infer that this has arisen from the assumption that upon removal those conditions of venue must exist in the district court which are required in an original action. That is, with deference, plainly a mistake; § 72 of Title 28 U.S.C.A. governs the venue of a removed action; § 112 has nothing to do with it. When a defendant removes an action from a state court in which he has been sued, he consents to nothing and "waives" nothing; he is exercising a privilege unconditionally conferred by statute, and, since the district court to which he must remove it is fixed by law, he has no choice, without which there can be no "waiver." It is not in the least relevant that, if the Transamerica Corporation had sued Giannini in the District Court for the Southern District of New York, that court would have had substantive jurisdiction; and that, although there would then have been a defect in venue, Giannini being a citizen of California, he would nevertheless have "waived" it, if he had not objected. Had the amendment to § 112 of Title 28 U.S.C. A. been directed to the substantive jurisdiction of the district court, that would have been a good argument, although in that event it would not have changed the law in application, because shareholders' actions in a federal court must always depend upon diversity of citizenship. But, not only was § 112 before the amendment concerned with venue alone, but so was the amendment itself; and to extend it to include all cases in which a defendant abandons his privilege of insisting upon the prescribed venue, is to eviscerate it altogether. The plaintiff appears also to suggest, perhaps to argue, that, since Transamerica Corporation was the creature of Giannini, and had no independent will, it is to be treated as though it had actually appeared in the action. The plaintiff in Philipbar v. Derby, supra, 85 F.2d 27, made the same argument, basing it on the ground that otherwise delinquent directors had it in their power to block the action. We refused to accede to that argument then, and we refuse to now. If it were sound, the amendment to § 112 of Title 28 U.S.C.A. was unnecessary, for the shareholder in such an action must always allege that the corporation is under the domination of the delinquent directors. That has never dispensed with the necessity of serving it; and Congress very positively confirmed that necessity, when, instead of providing for service outside the district in all such actions, it limited the new privilege to actions which the corporation could have brought. Hence it follows that the judgment was right in setting aside the service in the removed action; and since that conclusion has been based as a premise upon the invalidity of the service in the "original action," it follows that the judgment in both actions was right pro tanto. *554 As for Giannini's motions to dismiss the complaints in both actions, it has been settled law for over a century (Cunningham v. Pell, 5 Paige, N.Y., 607) that the wronged corporation is an indispensable party to a shareholders' action. City of Davenport v. Dows, 18 Wall. 626, 21 L. Ed. 938; Baltimore & Ohio R. Co. v. City of Parkersburg, 268 U.S. 35, 45 S.Ct. 382, 69 L.Ed. 834; Philipbar v. Derby, supra, 85 F.2d 27. Cf. Niles-Bement-Pond Co. v. Iron Moulders' Union, 254 U.S. 77, 41 S. Ct. 39, 65 L.Ed. 145. It is hornbook law that the claim is the corporation's, and for that reason the delinquent directors will not be protected by any judgment which does not conclude the corporation. If they succeed in defeating the action, other shareholders may bring another; if the recovery is too little, the same thing is possible. Therefore, as soon as the service of process upon the Transamerica Corporation was set aside in the case at bar, it became inevitable that the complaints against Giannini should be dismissed. Judgment affirmed.

338 U.S. 366 (1949) UNITED STATES v. AETNA CASUALTY & SURETY CO. No. 35. Supreme Court of United States. Argued October 19-20, 1949. Decided December 12, 1949. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.[*]*367 Leavenworth Colby argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Joseph Kovner. William A. Hyman argued the cause for respondent in No. 35. With him on the brief were Harold W. Hayman and Melville Harris. By special leave of Court, Jackson G. Akin, pro hac vice, argued the cause for respondent in No. 36. Pearce C. Rodey was on the brief. Abraham Frankel argued the cause and filed a brief for respondents in Nos. 37 and 38. MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. These cases, here on certiorari, present this important question under the Federal Tort Claims Act:[1] May an *368 insurance company bring suit in its own name against the United States upon a claim to which it has become subrogated by payment to an insured who would have been able to bring such an action? That question, in turn, requires our consideration of R. S. 3477, the "anti-assignment" statute.[2] Three cases, each presenting a slightly different aspect of the problem, were heard by the Court. In No. 35, the complaint alleges that an employee of the Federal Reserve Bank of New York was injured as a result of the negligence of a United States Post Office Department employee. Respondent insurance carrier had insured the Federal Reserve Bank against its liability for workmen's compensation, and duly paid the injured person's claim under the New York Workmen's Compensation Law. The complaint further alleges that the injured person failed to commence any action against the United States within one year after the accident, and that his inaction operated, according to New York law,[3] as an assignment to the insurer of his cause of action against the United States. The District Court dismissed the complaint, 76 F. Supp. 333, but the Court of Appeals for the Second Circuit reversed and remanded the cause for trial. 170 F. 2d 469. In No. 36, the Government's motion to dismiss the complaint was denied, and, after trial, it was found as fact that an employee of the United States Forest Service had negligently driven a Government vehicle into a vehicle owned by one Harding, causing damages of $1,484.50; *369 that Harding was insured by the respondent insurance carrier and, pursuant to the terms of the policy, had been paid $784.50 by the insurer, to which it was now subrogated. Judgment was thereupon entered against the United States in favor of Harding for $700.00 and in favor of respondent insurance company for $784.50. The Court of Appeals for the Tenth Circuit affirmed. Nos. 37 and 38 present the situation in which two insurance companies, each of which has paid part of a claim of loss occasioned by the negligence of an employee of the United States, bring suits in their own names, each asking recovery of the amount it has paid to the assured. The District Court dismissed the complaints on motion of the Government, but the Court of Appeals for the Third Circuit reversed and remanded the causes. 171 F. 2d 374. We granted certiorari in these cases, 336 U. S. 960, because of a conflict of decisions in the circuits[4] and the manifest importance of the question. The Federal Tort Claims Act provides in pertinent part that ". . . the United States district court for the district wherein the plaintiff is resident or wherein the act or *370 omission complained of occurred, . . . sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, . . . on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this chapter, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances . . . ."[5] While the language of the Act indicates a congressional purpose that the United States be treated as if it were a private person in respect of torts committed by its employees, except for certain specific exceptions enumerated in the Act,[6] neither the terms of the Act nor its legislative history precludes the application of R. S. 3477 in this situation. It is the Government's position that R. S. 3477, which in terms makes "All transfers and assignments . . . of any claim upon the United States, or of any part or share thereof, or interest therein . . . absolutely null and void . . ." except for assignments made after payment of the claim and in accordance with certain prescribed safeguards, includes assignments by operation of law and prohibits suit by the subrogee in its own name. Petitioner *371 reads R. S. 3477 not as prohibiting transfer of a claimant's substantive rights to an insurer-subrogee and ultimate recovery by the insurer but as a procedural requirement that the insurance carrier sue and recover judgment in the name of the original claimant. United States v. American Tobacco Co., 166 U. S. 468 (1897). Its purpose in invoking the anti-assignment statute is said to be two-fold: "(1) to insure that the United States may avoid involvement in any litigation as to the existence or extent of subrogation or other assignment of such claims; and (2) to insure that the suits and any judgments against the United States will be in the names of the original claimants so that the United States will be able to avail itself of its statutory rights in respect of venue, and of counterclaim and offset on account of any cross-claims it may have against the original claimants." It is pointed out that "the provisions of the statute making void an assignment or power of attorney by a Government contractor are for the protection of the Government. Hobbs v. McLean, 117 U. S. 567, 576; McGowan v. Parish, 237 U. S. 285, 294, 295. In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability." Martin v. National Surety Co., 300 U. S. 588, 594 (1937). The Government contends that the inconvenience, administrative and accounting difficulties, and procedural problems which, it is apprehended, may involve the Government if subrogees are permitted to bring suits under the Tort Claims Act in their own names make this an apt situation for application of R. S. 3477, and that that was the congressional intent. It should be noted at the outset, however, that in the courts below and until argument in this Court (and even in its petition for certiorari) the Government contended that R. S. 3477 was a complete bar to recovery by a *372 subrogee. Only in brief and argument here was it suggested that the insurance carrier could recover if suit was brought in the name of the insured to the use of the insurer, citing for the first time United States v. American Tobacco Co., supra, a decision reflecting common-law procedure, upon which reliance is now placed.[7] It is for that reason that the opinions below were focused upon whether R. S. 3477 is an absolute bar to recovery by the subrogee rather than merely a bar to recovery in the name of the subrogee. We think, however, that even this limited, and somewhat anomalous,[8] reliance upon R. S. 3477 is untenable, first, because of the uniform interpretation given that statute by this Court for the past 75 years, and, second, because of many affirmative indications of congressional intent that subrogation claims should not be excluded from suit in the name of the subrogee under the Tort Claims Act. *373 R. S. 3477 was enacted in 1853 as part of a statute entitled "An Act to prevent Frauds upon the Treasury of the United States."[9] Its primary purpose was undoubtedly to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government.[10]Spofford v. Kirk, 97 U. S. 484, 490 (1878). Another purpose, that upon which the Government now relies, has been inferred by this Court from the language of the statute. That purpose was to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant. Spofford v. Kirk, supra; Goodman v. Niblack, 102 U. S. 556, 560 (1881). Most of the early cases construed the statute strictly, holding that all assignments were included within the statute and that such assignments conferred no rights of any kind upon the assignee; that R. S. 3477 "incapacitates every claimant upon the government from creating an interest in the claim in any other than himself." Spofford v. Kirk, supra, pp. 488-89. See also National Bank of Commerce v. Downie, 218 U. S. 345 (1910); Nutt v. Knut, 200 U. S. 12 (1906); St. Paul & Duluth R. Co. v. United States, 112 U. S. 733 (1885). The rigor of this rule was very early relaxed in cases which were thought not to be productive of the evils which the statute was designed to obviate. And one of the first such exceptions was to transfers by operation of law. In United States v. Gillis, 95 U. S. 407 (1877), the Court held that a provision in the Act creating the Court *374 of Claims that suits on assignments may be brought in the name of the assignee did not mean that R. S. 3477 was inapplicable to suits in the Court of Claims, but referred to claims which were excepted from the prohibition of that statute, such as "devolutions of title by force of law, without any act of parties, or involuntary assignments, compelled by law." During the following term a case was presented in which an assignee in bankruptcy had sued the United States on a claim of the bankrupt. This Court held the suit maintainable despite R. S. 3477, on the ground that "The act of Congress of Feb. 26, 1853, to prevent frauds upon the treasury of the United States, which was the subject of consideration in the Gillis Case, applies only to cases of voluntary assignment of demands against the government. It does not embrace cases where there has been a transfer of title by operation of law. The passing of claims to heirs, devisees, or assignees in bankruptcy are not within the evil at which the statute aimed; nor does the construction given by this court deny to such parties a standing in the Court of Claims." Erwin v. United States, 97 U. S. 392, 397 (1878). This construction of R. S. 3477—that assignments by operation of law are not within the prohibition of the statute—was recognized as settled law in Goodman v. Niblack, supra, and has been repeated with approval in a great many subsequent cases.[11] The Government now contends, contrary to the statements in all of the cases approving Erwin v. United States, *375 supra, that an assignment by operation of law is not always exempt from the bar of R. S. 3477, but that in addition the assignment must be of a kind that will not involve the Government in the procedural difficulties previously referred to. All of the cases in which R. S. 3477 has been held inapplicable on the ground of assignment by operation of law are explained as presenting situations in which the Government could suffer no such procedural embarrassments. In cases of transfer by descent (Erwin v. United States, supra), consolidation of corporations (Seaboard Air Line R. Co. v. United States, 256 U. S. 655 (1921)), and purchase at a judicial sale in a corporate reorganization (Western Pacific R. Co. v. United States, 268 U. S. 271 (1925)) it is pointed out that the Government may deal with the substituted representative as it would have dealt with the claimant if there had been no substitution. Rights of counterclaim and set-off are said to be retained against the universal successor, while such universal assignments by operation of law can give rise to no controversies as to the existence and extent of the transfer for adjudication between the United States and the original claimant and his trustee, receiver, or administrator. Without considering whether some of the cases are not comprehended within this rationale,[12] we do not think that it explains the exception made for transfers by operation of law in the cases referred to. In the first place, the Court has always stated the flat exception of all transfers by operation of law, as distinguished from voluntary transfers. If the cases rest upon the premise advanced by the Government, it has never been articulated in the opinions. In the second place, and consistent with *376 the exception of all transfers by operation of law, this Court has a number of times indicated that neither of the purposes of R. S. 3477 is contravened by transfers by operation of law. In Goodman v. Niblack, supra, it was held that: "The language of the statute, `all transfers and assignments of any claim upon the United States, or of any part thereof, or any interest therein,' is broad enough (if such were the purpose of Congress) to include transfers by operation of law, or by will. Yet we held it did not include a transfer by operation of law, or in bankruptcy, and we said it did not include one by will. The obvious reason of this is that there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim, and that the exigencies of the party who held it justified and required the transfer that was made." (102 U. S. at 560; italics added.) See also Hager v. Swayne, 149 U. S. 242, 247-48 (1893). The fact that some administrative problems may be the unintended by-products of an involuntary assignment was not thought to be an evil within the scope of a statute aimed at fraud and harassment. That interpretation has, for nearly a century, exempted all transfers by operation of law from the prohibition of R. S. 3477. That it was the understanding of Congress that subrogation claims were not within the bar of R. S. 3477 when it passed the Tort Claims Act is abundantly clear from a number of different particulars: 1. The Small Tort Claims Act of 1922[13] provided that heads of departments may "consider, ascertain, adjust, and determine any claim . . . on account of damages to *377 or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment." Such claims as were found due were certified to Congress for payment. A question was directed to the Attorney General in 1932 as to "whether such a claim, which if made by the owner of the property damaged could have been certified, may properly be certified if made by an insurance company which has become subrogated to the rights of the owner to receive compensation for the damage suffered." Attorney General Mitchell's opinion[14] was: (1) that subrogation is a transfer by operation of law of the right to receive payment of the amount due; and (2) that R. S. 3477 applies only to cases of voluntary assignment of demands against the Government. He thought, however, that inasmuch as the question was one concerning the purpose and intent of Congress in enacting the Small Tort Claims Act, that body should be asked to interpret the statute by passing upon subrogation claims certified to it and expressly called to its attention. Thereafter subrogation claims in the names of insurance carriers were regularly submitted to Congress and were consistently approved until the Act was repealed by the present Tort Claims Act. The Attorney General's opinion was approved and congressional acquiescence noted by the Comptroller General in opinions in 19 Comp. Gen. 503, 21 Comp. Gen. 341, and 22 Comp. Gen. 611. A unique interpretation by Congress of its own statute thus settled the question whether R. S. 3477 was a bar to subrogation claims under the Small Tort Claims Act, which, in language nearly identical with that of the present Tort *378 Claims Act, permitted recovery "on account of damages to or loss of privately owned property . . . ." 2. That specific reference in the statute was necessary to preclude recovery by subrogees in their own names (i. e., that R. S. 3477 is inapplicable to subrogees) was clearly the view of Congress when it enacted the Tort Claims Act. For in foreign claims legislation where it intended that result, Congress explicitly provided that Claims Officers should consider, ascertain, determine, and pay claims on account of injury or death, or property loss or damage to claimants in foreign countries, "including claims of insured but excluding claims of subrogees."[15] The purpose of this provision, which was enacted in 1943, was to fulfill the very office which petitioner now contends is performed by R. S. 3477.[16] No such exception is found in the Tort Claims Act, although other exceptions are spelled out with great particularly. The significance of this provision in the foreign claims statute is, first, that when Congress wished to exclude claims by subrogees it said so; and second, that Congress did not think R. S. 3477 performed that function. For a similar provision, see 49 Stat. 2194.[17] *379 3. Nor did executive departments themselves interpret R. S. 3477 as applicable to subrogation claims, as the report of the hearings on H. R. 6442, 77th Cong., 2d Sess. (1942) makes plain. That bill, which was drafted by the Treasury Department, would have required subrogees to institute actions against their subrogors in some court of competent jurisdiction, which would then restrain the original claimant from receiving any funds from the Government until final decision was reached as to who was to receive the money. The Assistant General Counsel of the Treasury, in explaining the bill, stated: "In 1877 the Supreme Court, in the case of U. S. v. Gillis (95 U. S. 407), after stating in effect that *380 section 3477 was of universal application and covered all claims against the United States in every tribunal in which they might be asserted, indicated in language not necessary to the decision that transfers or assignments compelled by law or resulting from the operation of law might not have been within the purview of section 3477. "Now from that time on one exception after another has been carved from section 3477, until now the courts recognize many types of adverse claims as the basis for what in effect are third-party suits against the Government, including suits based upon assignments by operation of law, subrogation, and equitable liens." Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, on H. R. 6442, 77th Cong., 2d Sess. (1942), at p. 3. It cannot therefore be seriously contended that Congress and the executive departments were not cognizant of the exemption of subrogation claims from R. S. 3477 when the Tort Claims Act was passed. The broad sweep of its language assuming the liability of a private person, the purpose of Congress to relieve itself of consideration of private claims, and the fact that subrogation claims made up a substantial part of that burden are also persuasive that Congress did not intend that such claims should be barred. If, then, R. S. 3477 is inapplicable, the Government must defend suits by subrogees as if it were a private person. Rule 17 (a) of the Federal Rules of Civil Procedure, which were specifically made applicable to Tort Claims litigation,[18] provides that "Every action shall be prosecuted in the name of the real party in interest," and of course an insurer-subrogee, who has substantive equitable rights, qualifies as such. If the subrogee has paid *381 an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d ed.) p. 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tortfeasor which qualify them as real parties in interest. In cases of partial subrogation the question arises whether suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for the use of the insurance company, or whether all parties in interest must join in the action. Under the common-law practice rights acquired by subrogation could be enforced in an action at law only in the name of the insured to the insurer's use, Hall & Long v. Railroad Companies, 13 Wall. 367 (1872); United States v. American Tobacco Co., supra, as was also true of suits on assignments, Glenn v. Marbury, 145 U. S. 499 (1892). Mr. Justice Stone characterized this rule as "a vestige of the common law's reluctance to admit that a chose in action may be assigned, [which] is today but a formality which has been widely abolished by legislation." Aetna Life Ins. Co. v. Moses, 287 U. S. 530, 540 (1933). Under the Federal Rules, the "use" practice is obviously unnecessary, as has long been true in equity, Garrison v. Memphis Insurance Co., 19 How. 312 (1857), and admiralty, Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 462 (1889). Rule 17 (a) was taken almost verbatim from Equity Rule 37. No reason appears why such a practice should now be required in cases of partial subrogation, since both insured and insurer "own" portions of the substantive right and should appear in the litigation in their own names. Although either party may sue, the United States, upon timely motion, may compel their joinder. Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 *382 (1890) (applying a state code under the Conformity Act). 3 Moore, Federal Practice (2d ed.) p. 1348. Both are "necessary" parties. Rule 19 (b), Federal Rules of Civil Procedure.[19] The pleadings should be made to reveal and assert the actual interest of the plaintiff, and to indicate the interests of any others in the claim. Additional parties may be added at any stage of the proceedings, on motion of the United States, upon such terms as may be just. Rule 21. It is true that under this rationale, there will be cases in which all parties cannot be joined because one or more are outside the jurisdiction, and the court may nevertheless proceed in the action under Rule 19 (b). In such cases the United States, like other tortfeasors, may have to defend two or more actions on the same tort and may be unable to assert counterclaims and offsets against the original claimant upon unrelated transactions.[20] *383 If R. S. 3477 is inapplicable, as we think is clearly the case, these objections have no legal foundation upon which to rest. In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo's statement in Anderson v. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30: "The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced." The decision of the Court of Appeals in each of these cases is Affirmed. MR. JUSTICE BLACK dissents. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. NOTES [*] Together with No. 36, United States v. World Fire & Marine Insurance Co., on certiorari to the United States Court of Appeals for the Tenth Circuit; No. 37, United States v. Yorkshire Insurance Co., on certiorari to the United States Court of Appeals for the Third Circuit; and No. 38, United States v. Home Insurance Co., also on certiorari to the United States Court of Appeals for the Third Circuit. [1] 60 Stat. 842; formerly codified as 28 U. S. C. § 931 et seq. The new Judicial Code became effective on Sept. 1, 1948, while these actions were pending on appeal, and the provisions formerly embodied in the Tort Claims Act are now distributed through various chapters of the new Code. [2] 10 Stat. 170 as amended; 31 U. S. C. § 203. [3] When this action was brought, § 29 of the New York Workmen's Compensation Act provided that if an injured employee has taken compensation but has failed to commence action against the tortfeasor within one year after the cause of action accrued, "such failure shall operate as an assignment of the cause of action against such other . . . to the person, association, corporation, or insurance carrier liable for the payment of such compensation." [4] Courts of Appeals in seven circuits have upheld the right of subrogees to sue under the Tort Claims Act. State Farm Mutual Liability Insurance Co. v. United States, 1st Cir., 172 F. 2d 737; Aetna Casualty & Surety Co. v. United States, 2d Cir., 170 F. 2d 469; Yorkshire Insurance Co. v. United States, 3d Cir., 171 F. 2d 374; United States v. South Carolina State Highway Dept., 4th Cir., 171 F. 2d 893; Old Colony Insurance Co. v. United States, 6th Cir., 168 F. 2d 931; National American Fire Insurance Co. v. United States, 9th Cir., 171 F. 2d 206; United States v. Chicago, R. I. & P. R. Co., 10th Cir., 171 F. 2d 377. The Court of Appeals for the Fifth Circuit reached a contrary conclusion, United States v. Hill, 171 F. 2d 404, Judge Hutcheson dissenting. Reargument was ordered before the full bench and, upon reconsideration, the original opinion was modified, 174 F. 2d 61, Judge Hutcheson concurring in the result "as in substantial accordance with the views the dissent expressed." [5] Formerly 28 U. S. C. § 931. This section is now divided and, with immaterial changes, appears in 28 U. S. C. §§ 1346 (b) and 2674. [6] See 28 U. S. C. § 2680. [7] This contention was also made in reargument of United States v. Hill, before the Court of Appeals for the Fifth Circuit, which took place after certiorari was granted by this Court. See note 4. [8] Petitioner's argument is, in effect, that R. S. 3477 does not prevent the assignment of substantive rights against the United States but merely controls the method of procedure by which the assignee may recover. This position is in square conflict with Spofford v. Kirk, 97 U. S. 484, and is not justified by anything said in Martin v. National Surety Co., 300 U. S. 588. Furthermore, it would require that the real party in interest provisions of the Federal Rules of Civil Procedure, Rule 17 (a), be disregarded, despite the fact that they are made specifically applicable to suits under the Tort Claims Act, and that suits against the Government in which a subrogee owns the substantive right be conducted according to the old common-law procedures in effect prior to the promulgation of the Federal Rules. Petitioner admits as much by its reliance upon United States v. American Tobacco Co., 166 U. S. 468. This is not to say that R. S. 3477 was "repealed" by the Federal Rules, but that a new interpretation of the statute which is incompatible with the Rules, as expressly incorporated in the Tort Claims Act, must be clearly justified. [9] 10 Stat. 170. [10] Other sections of the Act made it unlawful for officers of the United States or Members of Congress to have any interest in claims against the Government or to act for claimants, penalized bribery or undue influencing of Members of Congress, and prohibited the destruction or withdrawal of public records. [11] See, e. g., St. Paul & Duluth R. Co. v. United States, 112 U. S. 733, 736; Butler v. Goreley, 146 U. S. 303, 311; Hager v. Swayne, 149 U. S. 242; Ball v. Halsell, 161 U. S. 72, 79; Price v. Forrest, 173 U. S. 410, 421; National Bank of Commerce v. Downie, 218 U. S. 345, 356; Western Pacific R. Co. v. United States, 268 U. S. 271, 275. [12] For example, transfers by will or intestacy, which are not within the prohibition of R. S. 3477 under the cases, would obviously multiply the persons with whom the United States must deal and might very well embroil it in conflicting claims. [13] 42 Stat. 1066, 31 U. S. C. § 215. [14] Reported at 36 Op. Atty. Gen. 553. See Holtzoff, Handling of Tort Claims Against the Federal Government, 9 Law & Contemp. Prob. 311, 318; The Federal Tort Claims Act, 42 Ill. L. Rev. 344, 349. [15] 57 Stat. 66, 31 U. S. C. § 224d. [16] The House Committee Report states that "Such a provision of law leaves undisturbed, as between the parties, the rights of the insured and of insurance companies and others who have become subrogated to the rights of the owners of the property or of the person who is injured or whose death results, but permits the Government to settle with a single claimant and without the necessity of inquiry into, or determination of, the relative rights of the parties." H. R. Rep. No. 312, 78th Cong., 1st Sess., p. 2. [17] That members of the House Committee on Claims were aware of the problem of recovery by insurance carrier-subrogees at the time the Tort Claims Act was passed is demonstrated by that Committee's report, submitted less than two weeks prior to passage of the Act, on subrogation claims presented by insurance companies in connection with the crash of an army airplane into the Empire State Building. The War Department had recommended to Congress that Empire State, Inc., and other private claimants be paid their uninsured losses (which was done) but refused to recommend payment of insured losses. H. R. 6683 was introduced "to appropriate the sum of $143,279.94 to 22 fire-insurance companies in full satisfaction of their subrogation claims against the United States . . . ." The Committee made specific reference to Attorney General Mitchell's opinion, noted that since that time the War Department had paid subrogation claims of less than $1,000 under the Military Claims Act, 31 U. S. C. § 223, and disapproved that department's refusal to certify claims of over $1,000. To the assertion that Congress had consistently refused to recognize subrogation claims as barred by R. S. 3477, the Committee report contains the flat denial: "That statement is not in accordance with the fact" and cites a number of subrogation claims favorably acted upon by Congress. The bill was favorably reported, H. R. Rep. No. 2655, 79th Cong., 2d Sess., but nine days later the Tort Claims Act was passed, § 131 of which provided that no private bill should authorize payment of money for claims for which suit might be brought under that Act, extending retroactively to claims accruing after January 1, 1945. Since the claims involved had accrued subsequent to that date, the insurance company subrogees brought suit in a federal district court, where the Government once more interposed a defense based on R. S. 3477, despite the Committee's specific approval of payment directly to the subrogees. The defense was rejected. Niagara Fire Ins. Co. v. United States, 76 F. Supp. 850. [18] Formerly 28 U. S. C. § 932. See note 8, supra. [19] They are clearly not "indispensable" parties under the familiar test of Shields v. Barrow, 17 How. 130, 139 (1855), that such parties have "an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience." See Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 (1890); Hubbard v. Manhattan Trust Co., 87 F. 51; Rogers v. Penobscot Mining Co., 154 F. 606; 3 Moore, Federal Practice (2d ed.) p. 2178. [20] The counterclaim statute, 28 U. S. C. § 1346 (c), confers jurisdiction on district courts over any "counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action." The offset statute, 31 U. S. C. §§ 71, 227, directs the deduction from judgments and allowed claims against the United States of debts as to which "the plaintiff therein shall be indebted to the United States." (Italics added.) We need not and do not consider what rights of counterclaim and set-off may lie in the United States in suits brought by insurer-subrogees. Cf. United States v. Munsey Trust Co., 332 U. S. 234 (1947); Defense Supplies Corp. v. United States Lines Co., 148 F. 2d 311.

NUMBER 13-10-00366-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG POST-NEWSWEEK STATIONS, HOUSTON, INC. D/B/A KPRC-TV, F/K/A POST-NEWSWEEK STATIONS, HOUSTON GP, INC., POST NEWSWEEK STATIONS, INC., POST NEWSWEEK STATIONS, HOUSTON HOLDINGS (LIMITED), INC., STEPHEN DEAN, SKIP VALET, RICK MCFARLAND, AND BRIAN SASSER, Appellants, v. DANIEL DUGI, M.D., Appellee. On appeal from the 267th District Court of DeWitt County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Chief Justice Valdez Appellants, Post-Newsweek Stations, Houston, Inc. d/b/a KPRC-TV, f/k/a Post- Newsweek Stations, Houston GP, Inc., Post Newsweek Stations, Inc., Post Newsweek Stations, Houston Holdings (Limited), Inc., Stephen Dean, Skip Valet, Rick McFarland, and Brian Sasser (collectively ―KPRC‖), appeal the trial court‘s denial of their traditional and no-evidence motions for summary judgment in favor of appellee, Daniel Dugi, M.D.1 We affirm. I. BACKGROUND Timothy Goosby, a registered nurse anesthetist who formerly worked at the Cuero Community Hospital (―CCH‖), contacted KPRC, claiming that when he worked at CCH, Dr. Dugi had tested an illegal drug on his patients without their consent. Goosby worked at CCH for approximately four years, and in 2003, he apparently resigned.2 In 2007, Goosby contacted Dean, a reporter with KPRC, complaining ―about the retaliation that was suffered from [Goosby‘s] reporting going back to 2003.‖3 Goosby did not recall whether, in his initial contact with Dean, he mentioned Dr. Dugi and a drug called Providex4; however, Goosby stated that his complaints usually involved drug testing.5 1 Generally, an order denying a motion for summary judgment is not appealable. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (citing Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980)). However, an exception to this rule applies in cases involving a media defendant in a defamation case. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (Vernon 2008) (allowing an appeal of a trial court‘s interlocutory order denying ―a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73‖). 2 At his deposition, Goosby acknowledged that his nurse‘s license in Texas had been suspended, but he claimed that the Texas Board of Nursing (―TBN‖) had retaliated against him for reporting ―criminal activity in Texas.‖ Goosby testified that he had been ―reporting‖ his allegations since 2003. Goosby claimed that the TBN ―wrote an obscene order and [had] sent it out on the Internet and to other states suggesting very strongly that [Goosby had] a drug problem.‖ Goosby admitted that he had failed to disclose on his ―Temporary License/Endorsement Application‖ that he had two DWI offenses and that the TBN suspended his license for that failure. 3 Goosby stated that he contacted more than four other news-media outlets, including ―Oprah.‖ 4 Goosby testified that the active ingredient in Providex is benzethonium chloride and agreed that 2 Goosby testified that Dean contacted him in November 2007 and that he probably told Dean at that time about ―the Providex and the testing.‖ During Goosby‘s deposition, a video tape of Goosby‘s interview with Dean was played. In it, Goosby stated that he observed Dr. Dugi inject Providex, which is a topical cream, into a patient‘s abdomen and that Dr. Dugi told him that Providex, if applied into a person‘s eyes, would cure cataracts. Goosby claimed that a ―Mrs. Hall‖ also witnessed Dr. Dugi inject Providex into one of his patients and that Becky Murray actually applied Providex to patients at CCH.6 Goosby claimed that Murray told him that the nurses at CCH were being ―forced to do the illegal drug testing‖ and that they were not obtaining consent from the patients.7 Goosby claimed that James Buckner, the former CEO of CCH, encouraged him to contact the media regarding the alleged illegal drug tests. According to Goosby, the Texas Board of Nursing (―TBN‖) was well aware of the illegal drug testing since 2003, but he had problems convincing that agency to conduct an investigation; Goosby‘s impression was that people thought the story was improbable. Goosby claimed that in it is ―a fairly well-known and well-accepted ingredient in topical analgesics.‖ 5 Goosby did not have a copy of the email he initially sent to Dean. 6 In an affidavit, Murray acknowledged that she had applied Providex on Dr. Dugi‘s patients. However, she also stated, ―I did not see Dr. Dugi test or experiment on any patients at [CCH]. I never told Nurse Goosby that I had seen any such experiments or tests.‖ Murray further stated, ―I never asked Nurse Goosby to help me expose Dr. Dugi‘s treatment of his patients with Providex . . . . If I believed that Dr. Dugi was doing something improper with his patients then I would have reported it to the Texas Medical Board and the [CCH‘s] administration.‖ 7 In a letter to the FBI that Goosby stated was only a draft and never sent, Goosby claimed that Murray was willing to testify about the illegal drug testing in exchange for immunity. However, Goosby admitted that he had not talked to Murray regarding the issue before he drafted the letter. Therefore, Goosby claimed that he changed the letter that he actually sent to the Department of Justice. That letter is not in the record, and Goosby did not know if he had a copy of that letter. Goosby admitted that Murray did not state that she would testify in exchange for immunity. 3 2007, Buckner was willing to ―come forward‖ and ―back‖ Goosby in reporting the illegal drug testing program at CCH. Goosby stated that according to Buckner, the drug testing was ―small compared to‖ the retaliation Goosby allegedly suffered from the TBN for being a whistleblower. Goosby testified that Buckner resigned as CEO of CCH ―partially because of the retaliation they were doing against [Goosby].‖8 Goosby stated that he compared Dr. Dugi‘s alleged drug testing with the Tuskegee study—a well-known study involving syphilis that resulted in the death of some of the participants who were all African-American—because he believed that ―it had to do with minorities withheld therapies, inappropriate testing without patient‘s knowledge or consent.‖ Goosby claimed that he was not implying that Dr. Dugi‘s alleged testing had anything to do with race.9 Goosby admitted that he was aware of the racial breakdown of Dr. Dugi‘s patients who received Providex. Goosby stated that he had heard a rumor that one of Dr. Dugi‘s patients died as a result of the use of Providex, but that he did not know the patient‘s name and he had not told Dean about the rumor. Goosby acknowledged that he did not personally know of anyone being harmed by the use of Providex. Dean, an investigative reporter with KPRC, interviewed Goosby. At his deposition, Dean stated that Goosby provided copies of some of the written complaints Goosby filed with several agencies; however, Dean acknowledged that Goosby failed to 8 Buckner testified at deposition that he was not aware of any illegal drug testing at CCH when he was CEO and that he resigned for other reasons unrelated to any of Goosby‘s allegations. 9 Goosby testified that he believes that all patients are minorities regardless of their race or ethnic background; therefore, he compared the Tuskegee testing to Dr. Dugi‘s use of Providex because all patients are minorities. 4 give him copies of all of the complaints he filed. According to Dean, after his interview with Goosby, he contacted personnel with the FDA who assured him that the agency was conducting an investigation into Goosby‘s allegations.10 On January 21, 2008, KPRC ran the first news broadcast concerning Dr. Dugi and the drug Providex. A news reporter began the broadcast by stating, ―Tonight, [KPRC] uncovers a mysterious medical experiment possibly affecting more than a thousand patients. Former hospital workers are blowing the whistle tonight . . . claiming a doctor was using Texas patients as human guinea pigs . . . and the patients had no idea.‖ (Ellipses in original.) Dean stated that Pat Flores, who lives in Cuero, was bothered by the fact that ―illegal and poor immigrants were the subjects of the testing, according to this complaint filed with the Food and Drug Administration [by Goosby].‖ Dean then reported that in his complaint, Goosby ―likened‖ the study to ―the infamous Tuskegee study in the 1930s, when the government experimented with a new syphilis medicine on hundreds of black men without telling them. But the difference in 2008 Texas is one doctor who stands to profit.‖ (Emphasis in original). Goosby noted that Dr. Dugi had a ―great financial involvement‖ in the drug testing, while he did not believe the ―Tuskegee people had financial gain.‖ In a video interview, Buckner stated, ―If there was ever a written consent given to a patient to accept the use of this drug, I am completely unaware. I don‘t think we did at our hospital.‖ When asked if he knew what substance CCH was buying or applying to the patients, Buckner replied, ―No, we didn‘t.‖ Buckner then claimed that when he asked Dr. Dugi to reveal the ingredients in Providex, 10 During his deposition, Goosby claimed that Dean gave him the idea to contact the FDA and that he began sending letters to the FDA after his communications with Dean. 5 Dr. Dugi said he could not give him that information because ―‗[i]t‘s still patent pending, waiting for FDA approval.‖ Dean then reported that the FDA had informed him that ―it has never heard of the drug‖ and that ―no human testing was ever approved.‖ Dr. Dugi told Dean that the product is FDA registered as required. Dean is then shown in the broadcast entering Providex‘s ―NDC number‖11 into the FDA‘s website. Dean states that when he enters the number into the website, ―there‘s nothing on file‖ and that an FDA official told him that ―there‘s no such number.‖12 When asked if his patients knew that he was ―testing‖ Providex on them, Dr. Dugi responded, ―I had informed consent from everyone.‖ Dean stated that Dr. Dugi would not show him any proof that his patients had signed any consent forms and that Dr. Dugi‘s ―former colleagues say it‘s because they never saw any consent.‖ It is then reported by KPRC that the FDA does not comment on pending investigations and that KPRC will be ―watching for any action from that agency.‖ The anchor ends the report by stating, ―Tomorrow morning at 6:50, our investigation continues with complaints that were filed with several government agencies, but nothing was done until we started digging.‖ In the next broadcast, KPRC stated, ―The F-D-A has now launched an investigation into human drug-testing uncovered by [KPRC]‖ and that FDA officials have stated that Providex is an ―unapproved medicine that was never cleared for experiments 11 Dean explained that the NDC number is the ―national control number, a serial number assigned to all approved drugs.‖ (Emphasis in original.) 12 In his summary judgment evidence, Dr. Dugi included an incident report, wherein Avis Lynn ―Lynnie‖ Jalufka, R.Ph., the pharmacist-in-charge at CCH, stated that Providex contains an NDC number created by ―The Drug Listing Act of 1972‖ that ―‗requires registered drug establishments to provide the Food and Drug Administration (FDA) with a current list of all drugs manufactured, prepared, propagated, compounded, or processed by it for commercial distribution.‘‖ 6 or any use on humans. Yet, we found hundreds of patients are part of testing [in] several towns south of Houston.‖ Pictures taken from a notebook that Dr. Dugi gave Dean were then shown. The pictures depict patients with wounds before and after treatment with Providex. Dean claims that the pictures show ―some horrible wounds‖ that were ―treated as experiments, even though the FDA tells [KPRC] no human testing was ever permitted for the un-approved drug called ‗Durable Closure‘ or ‗Providex.‘‖ Dean then discloses that Dr. Dugi is the ―principal investigator‖ and an investor in the Texas company that manufactures Providex. Dean then stated that the law is clear that when new drugs are being tested, the FDA has to approve ―every step, with lots of paperwork and all patients have to consent in writing.‖ Dean then reports that Goosby showed him many complaints that he allegedly filed with the FDA, the FBI, the State Medical Board, State Pharmacy Board, and State Legislatures, but that ―nothing had happened so he called [KPRC].‖ According to Dean, Mari Robinson, ―Director of the Texas Medical Board Enforcement,‖ told him that that agency could not investigate Dr. Dugi because the complaint from Goosby had not listed a patient‘s name. Dean revealed that Providex‘s active ingredient is benzethonium chloride, which according to Dean is not listed at the FDA‘s database, and that he could not find ―a single doctor or pharmacist who‘s ever heard of it.‖ Dean later states that Ron Gourley, owner of Activ—the company that manufactured Providex—sent an email to KPRC stating that thousands of patients had benefitted from the use of Providex; his company is following the FDA‘s ―strict guidelines‖; and he was suspicious of the motives of ―the people 7 reporting the illegal testing allegations.‖ KPRC then directed the viewers to go to its website to review emails from Activ. In its third broadcast, which ran on February 8, 2008, KPRC reported that the hospital board had called an emergency meeting to start an internal investigation at CCH and that the board‘s chairman said, ―he doesn‘t think there‘s any wrongdoing.‖ Dean reported that ―tonight, federal prosecutors [had] issued a subpoena‖ and that the investigators were gathering information as ―their own investigation pick[ed] up steam.‖ KPRC reported that Goosby‘s reporting of Dr. Dugi‘s actions ―cost him his career.‖ The report ends with information that a ―law firm‖ sent a letter to KPRC informing it that ―the drug‖ was not tested on patients at CCH and that the drug ―was allowed under the F-D- A‘s over-the-counter medicine policies.‖ In the next broadcast, that ran on February 20, 2008, KPRC reported that the drugs that KPRC had been investigating had ―stopped being sold as part of an F-D-A investigation launched because of [KPRC].‖ Dean reported that the drugs that were being tested on patients throughout south Texas and that the FDA had ―told‖ KPRC that the drugs were ―never approved for testing on humans‖ and had been ―pulled‖ from the market ―as part of the federal investigation.‖13 KPRC repeated that the NDC number did not exist in the FDA‘s website database and that the FDA had informed KPRC that it had ―never approved the drug for use on any patients.‖ KPRC stated that Goosby had 13 KPRC points to nothing in the record supporting a conclusion that Providex was pulled from the market due to a federal investigation, and we find none in this voluminous record. The only evidence in the record regarding the reason Providex was pulled from the market is Gourley‘s affidavit. In it, Gourley stated that Activ voluntarily recalled Providex for reasons unrelated to Goosby‘s allegations. Gourley explained that the voluntary recall was initiated ―to clarify some statements on the Activ Group‘s website about how Providex works‖ and that the ―voluntary recall had nothing to do with the safety or efficacy of Providex.‖ 8 ―[written] complaints to the F-D-A, the F-B-I and the Texas Medical Board saying patients didn‘t even know the drug was being tested on them.‖ In the next broadcast that ran on April 16, 2008, KPRC claimed that ―two separate government investigations [were] underway tonight, following [its] series of reports on a possible drug experiment uncovered by [KPRC].‖ The reporter stated that ―State agency and federal investigators are now looking into allegations by hospital workers south of Houston, who say patients were used as human guinea pigs without their knowledge.‖ Dean reported that Buckner, who ―was [previously] in charge‖ of CCH told KPRC ―he stocked his hospital with an unlicensed drug for use on patients who may not have known they were part of an un-approved experiment,‖ and that he had ―just‖ been visited by FDA investigators. Dean stated that the Texas Medical Board ―could take action against [Dr. Dugi] for using an unapproved drug, or if the agency proves he tested it on patients without the patients knowing they were part of a study, something Dr. Dugi denies.‖ KPRC also posted several articles written by Dean with the same information on its website. Most of the online articles repeated what had already been reported. In one of the articles, Dean reported that Buckner said that he left his position as CEO of CCH, ―partly because of the dispute over this drug.‖ Dean stated that the FDA did not approve drug trials of Providex. Dean also stated that the FDA ―had already launched a criminal investigation in response to [KPRC‘s] reports. After the broadcasts ran, Dr. Dugi sued KPRC and Goosby for defamation. KPRC filed traditional and a no-evidence motions for summary judgment. The trial court 9 denied both motions. KPRC appeals the trial court‘s denial of its motions for summary judgment. II. LIMITED PURPOSE PUBLIC FIGURE By its first issue, KPRC contends that Dr. Dugi is a limited purpose public figure,14 which requires Dr. Dugi to prove that KPRC published its new stories with actual malice. A. Applicable Law A limited purpose public figure suing a media defendant for defamation must prove that the defendant published the statement with actual malice. Klentzman v. Brady, 312 S.W.3d 886, 905-06 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)). A private figure suing a media defendant, however, must only show that the media defendant acted negligently. Entravision Commc’ns. Corp. v. Belalcazar, 99 S.W.3d 393, 399-400 (Tex. App.— Corpus Christi 2003, pet. denied). Whether a person is a limited purpose public figure is a question of law for the court to decide.15 Klentzman, 312 S.W.3d at 904. We apply a three-part test in deciding whether a person is a limited purpose public figure: (1) was the controversy at issue public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2) did the plaintiff have more than a trivial or tangential role in the controversy; and (3) was the alleged defamation germane to the plaintiff's participation in the controversy. Klentzman, 312 S.W.3d at 904-05. 14 Although there are two types of public figures—general purpose public figures and limited purpose public figures—we will limit our discussion to whether Dr. Dugi was a limited purpose public figure because KPRC does not claim he was a general purpose public figure. 15 The trial court concluded that Dr. Dugi is not a limited purpose public figure. 10  To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. A general concern or interest will not suffice. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998). Furthermore, a public controversy is more than simply a matter of interest to the public; it must be a dispute that has received public attention because the outcome affects the general public or some segment of it in an appreciable way. Einhorn v. LaChance, 823 S.W.2d 405, 412 (Tex. App.—Houston [1st Dist.] 1992, writ dism'd w.o.j.) (concluding that the defendants had provided evidence that the topic of aeromedical safety was a public controversy); see Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976) (finding that the general controversy surrounding divorce is not a public controversy for purposes of analyzing whether a party is a limited purpose public figure). It is not enough that a plaintiff is involved or associated with a matter of public or general interest, no matter how significant or sensational. ―A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention‖ or is newsworthy. Klentzman, 312 S.W.3d at 904.16 B. Discussion Although KPRC generally stated in its motion for summary judgment that the issue of rural health care services is a public controversy, it did not provide any specific arguments or authority supporting its assertion. Instead, KPRC specifically argued in its 16 ―Even engaging in criminal conduct does not make [] a person a limited-purpose public figure.‖ Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 11 motion for summary judgment that the ―provision of health care services to citizens in rural areas is a matter of public concern at the federal and state level.‖ (Emphasis added.) KPRC pointed out that the Texas Legislature created the Office of Rural Community Affairs, now known as the Texas Department of Rural Affairs, and the federal government has created the Office of Rural Health Policy. According to KPRC, both agencies are responsible for collecting and disseminating information on rural health care issues. KPRC then generally argued that wound care is a ―specific concern for rural health care providers such as Dr. Dugi.‖ KPRC did not identify a public controversy or provide any argument or authority supporting a conclusion that wound care is a public controversy.17 Instead, it pointed to the state and federal government‘s general concern with rural medicine and wound care. KPRC also pointed out that there are numerous private associations concerned with the issue of rural health care. However, nowhere in its motion did KPRC contend that the discussion on rural health care involves opposing views.18 In fact, it stated that the agencies involved in rural health care have ―a similar mission.‖ To determine that there is a public controversy, the trial court must have examined whether persons were actually discussing some specific question. See 17 KPRC did not allege in its motion for summary judgment that the public controversy concerned the use of Providex—the subject of KPRC‘s news articles. Moreover, they did not point to any evidence that a controversy over the use of Providex existed before its broadcasts. 18 In its motion for summary judgment, KPRC stated, ―The current national debate about health care reform includes questions about how the proposed reforms might impact rural health care services.‖ However, KPRC did not explain how this national debate on health care reform transforms a public concern over rural health care services into a public controversy. We also note that KPRC, in its motion for summary judgment and on appeal, refers to the ―public debate‖ regarding rural health care. However, it never identifies specifically what the public is debating in reference to rural health care. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998) (―[T]he judge must examine whether persons actually were discussing some specific question.‖) (emphasis added). 12 WFAA-TV, Inc., 978 S.W.2d at 572. To do so, the trial court could have examined whether the press was covering a debate concerning rural medicine and wound care, reporting what people were saying about the debate, and uncovering facts and theories to help the public formulate some judgment. See id. However, KPRC provided no evidence either that anyone, including the press, was discussing some specific question concerning rural health care and wound care or that the press was covering a debate regarding an issue related to rural health care or wound care, reporting what people were saying about the debate, and uncovering facts and theories to help the public formulate some judgment. In its response to Dr. Dugi‘s reply brief, KPRC now argues on appeal that the ―public controversy in this case is more similar to the controversy identified in Einhorn, 823 S.W.2d at 412.‖ However, KPRC did not make this argument in its motion for summary judgment. See TEX. R. CIV. P. 166a(c) (―The motion for summary judgment shall state the specific grounds therefor.‖); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002) (―A court cannot grant summary judgment on grounds that were not presented.‖); Westbrook Const. Co. v. Fidelity Bank of Dallas, 813 S.W.2d 752, 754-55 (Tex. App.—Fort Worth 1991, writ denied) (―The motion for summary judgment must itself state specific grounds on which judgment is sought. . . . The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth. . . . There is authority to the effect that a summary judgment cannot be sustained on a ground not specifically set forth in the motion.‖). 13  KPRC also generally asserts in its response to Dr. Dugi‘s brief that the provision of economic health care in rural areas is a public controversy because every American taxpayer feels its ramifications. Again, KPRC neither made this argument in its summary judgment motions nor did it provide evidence to support such an argument. See TEX. R. CIV. P. 166a(c). Moreover, KPRC does not provide a clear and concise argument with citation to proper authority in support of this bare assertion. See TEX. R. APP. P. 38.1(i). In its motion for summary judgment, KPRC merely established that rural health care is a general concern of the government and numerous private associations throughout the nation.19 KPRC never identified a public debate involving rural medicine or wound care or identified a specific question being discussed.20 Moreover, it did not identify a real dispute or claim that the outcome of a dispute involving rural health care and wound care affects the general public or some segment of it in an appreciable way. 19 To support its assertion that Dr. Dugi had more than a trivial or tangential role in the alleged debate about rural health care services, KPRC cited a congressional hearing held in 2000, wherein Dr. Dugi offered testimony related to the following: Assess[ing] the preparedness of the Texas health care workforce to meet the health care needs of Texans beyond the year 2000, including methods to retain Texas-trained medical personnel. The committee shall evaluate the availability of health care providers in rural and urban areas. The Committee shall also review the oversight of medical procedures performed by medical residents and disclosure provided to patients prior to treatment. KPRC did not contend that a public controversy exists concerning the evaluation of the availability of health care providers in rural and urban areas or the review of the oversight of medical procedures performed by medical residents and disclosure provided to patients prior to treatment. Therefore, to the extent that KPRC would have us construe these issues as a public debate surrounding rural health care, we decline to do so. 20 Although it is possible that there are issues that may be debated in the context of rural health care and wound care, KPRC neither articulated a specific question being debated nor provided any evidence establishing that any public debate exists regarding either topic. We may not speculate about which issues regarding rural health care and wound care are being debated by the public without any evidence in the record. 14 See Einhorn, 823 S.W.2d at 412; see also Firestone, 424 U.S. at 454. Therefore, the evidence does not support a finding that there was any public controversy, involving people discussing a real question, the resolution of which was likely to impact persons other than those involved in the controversy.21 Because a general concern will not suffice, and KPRC did not provide summary judgment evidence supporting a conclusion that a public controversy existed concerning the issues of rural medicine and wound care, we cannot conclude that the trial court erred in refusing to find as a matter of law that Dr. Dugi is a limited purpose public figure in this case. See WFAA-TV, Inc., 978 S.W.2d at 572 (finding that a public controversy existed because ―numerous commentators, analysts, journalists, and public officials were discussing . . . . the Branch Davidian raid‖ and concluding that ―the raid was public, both in the sense that people were discussing it and people other than the immediate participants in the controversy were likely to feel the impact of its resolution‖); Klentzman, 312 S.W.3d at 905-06 (stating that ―the [summary judgment] evidence [did] not support a finding that there was any ‗public controversy,‘ involving ‗people discussing a real question,‘ ‗the resolution of which was likely to impact persons other than those involved in the controversy‘‖ and concluding that the plaintiff was not a limited purpose public figure merely because as the ―son of the Chief Deputy,‖ he ―generally engaged in acts that ‗would generate attention and discussion‘‖); New Times, Inc. v. Wamstad, 106 S.W.3d 916, 928 (Tex. App.—Dallas 2003, pet. denied) (relying on the substantial media 21 Without citation to authority, in its discussion of whether Dr. Dugi had more than a trivial or tangential role in the debate about rural health care, KPRC claimed that Dr. Dugi engaged in marketing the use of Providex. However, KPRC offered no evidence in its motion for summary judgment that the marketing of Providex had been the focus of public debate before its broadcasts. 15 coverage of Wamstad and numerous articles written about him over the past 15-plus years, and ―the public nature of the debate over his contentious relationships through his personal self-promotion in his advertising and his other interactions with the press– with all their attendant ramifications for the opinion-forming, consuming public‖ to conclude that a public controversy existed); see also ZYZY Corp. v. Hernandez, No. 04- 10-00311-CV, 2011 Tex. App. LEXIS 490, at *12 (Tex. App.—San Antonio Jan. 26, 2011, no pet.) (mem. op.) (concluding that the media defendant‘s summary judgment evidence that included the reporter's record of the April 26, 2006 hearing and newspaper articles from the Eagle-Pass News Guide, the Eagle Pass Sunday News, the San Antonio Express-News, and the Dallas Morning News revealed ―that the controversy that was the subject of the April 26, 2006 hearing was, in broad terms, the legitimacy of the leadership of the Kickapoo Traditional Tribe of Texas and the legitimacy of the court conducting the hearing‖).22 Accordingly, as a private figure, Dr. Dugi was only required to show that KPRC acted negligently. See Klentzman, 312 S.W.3d at 905-06; Entravision Commc’ns. Corp., 99 S.W.3d at 399-400. Therefore, we need not address KPRC‘s issues concerning whether Dr. Dugi presented evidence of 22 Moreover, even if the general topics of rural health care and wound care involve public controversies, we are not convinced that the alleged defamation was germane to the plaintiff's participation, if any, in the debate of rural health care and wound care. KPRC contends that the topic of its ―news stories reported allegations by a former nurse at Cuero Community Hospital that Dr. Dugi was involved in testing Providex on patients, that Dr. Dugi was the ‗principal investigator‘ of the drug, and that he stood to gain financially by virtue of his ownership stake in Activ.‖ The news reports never mentioned rural health care or the alleged debate surrounding rural health care. Moreover, in its motion for summary judgment, KPRC merely stated that its news stories were germane to Dr. Dugi‘s role in the public controversies of rural health care and wound care. However, KPRC did not articulate what those public controversies involved. It relied solely on its assertion that rural health care is a public concern and its unsubstantiated claim that there is a public debate regarding rural health care. 16 actual malice in order to defeat KPRC‘s motions for summary judgment. See TEX. R. APP. P. 47.1. We overrule KPRC‘s first issue. II. DENIAL OF KPRC’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT In a no-evidence motion for summary judgment, we consider the evidence in the light most favorable to the non-movant, crediting such evidence if reasonable jurors could and disregarding all contrary evidence and inferences unless reasonable jurors could not. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Wal- Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)); see also City of Keller v. Wilson, 168 S.W.3d 802, 825, 827 (Tex. 2005). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc., 118 S.W.3d at 751. A no-evidence summary judgment is properly granted if the respondent does not bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is ―so weak as to do no more than create a mere surmise or suspicion‖ of a fact. More than a scintilla of evidence exists when the evidence ―rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.‖ Id. (internal citations omitted) A plaintiff suing for defamation will prevail if it proves: 17  that the defendant (1) published a statement (2) that was defamatory about the plaintiff (3) while acting with negligence if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). A private individual may recover damages from a publisher for defamation upon a showing that the media defendant knew or should have known that the publication was false. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819-20 (Tex. 1976). Entravision Commc’ns. Corp., 99 S.W.3d at 399-400. A public figure must prove that the media defendant published the statement with actual malice through clear and convincing evidence. Klentzman, 312 S.W.3d at 897-98. Furthermore, to recover damages against a media defendant when the suit involves an issue of public concern, the plaintiff—whether a public figure or private individual—must prove by a preponderance of the evidence the falsity of the challenged statement. 23 Id. at 898. KPRC does not challenge the first two elements of defamation. A. Expert Report By its second issue, KPRC argues that ―the only evidence of custom presented in this case is [its] affidavits‖ and that ―Dr. Dugi cannot demonstrate that it is customary in the news business to talk to every possible witness nor obtain all information on a source‘s credibility.‖24 However, KPRC did not argue to the trial court that Dr. Dugi was 23 ―[T]he constitutional requirements of the First Amendment supersede the common law presumption‖ of the falsity of the defamatory statement, wherein the defendant bears the burden of proving the statement‘s truth. Klentzman, 312 S.W.3d at 898. 24 In a footnote, KPRC cites Scripps Texas Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 837 (Tex. App.—Corpus Christi 2003, pet. denied) for the proposition that in order to prove that a media defendant acted negligently, a plaintiff must provide expert testimony regarding the skill and experience normally possessed by a member of that profession. However, KPRC did not present this argument to the trial court. See TEX. R. CIV. P. 166a(c) (―The motion for summary judgment shall state the specific grounds therefor.‖); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002) (―A court cannot grant summary judgment on grounds that were not presented.‖); Westbrook Const. Co. v. Fidelity Bank of Dallas, 813 S.W.2d 752, 754-55 (Tex. App.—Fort Worth 1991, writ denied) (―The motion for summary judgment must itself state specific grounds on which judgment is sought. . . . The motion for 18 required to provide evidence of custom from an expert witness. Because KPRC did not present such a ground to the trial court for summary judgment, we do not consider whether Dr. Dugi was required to provide expert evidence that it is customary in the news business to talk to every possible witness and to obtain all information on a source‘s credibility. See TEX. R. CIV. P. 166a(c); Johnson, 73 S.W.3d at 204; Westbrook Const. Co., 813 S.W.2d at 754-55. Furthermore, as we explain below there was more than a scintilla of evidence to support the negligence element of Dr. Dugi‘s defamation claim. See Entravision Commc’ns Corp., 99 S.W.3d at 399 (concluding that it was unnecessary to consider an expert‘s affidavit because, even without it, the plaintiff ―provided this Court with more than a scintilla of evidence on the negligence element of his defamation claim‖). B. Negligence In its no-evidence motion for summary judgment, KPRC asserted that it was entitled to summary judgment ―because there is no evidence that [it] knew or should have known that the alleged defamatory statements were false when it published the news stories on which Dr. Dugi‘s claims are based.‖ On appeal, KPRC generally contends that it was entitled to a no-evidence summary judgment because ―Dr. Dugi failed to produce any evidence to support the negligence element.‖ We construe this as an argument that Dr. Dugi produced no evidence that KPRC knew or should have summary judgment must stand or fall on the grounds it specifically and expressly sets forth. . . . There is authority to the effect that a summary judgment cannot be sustained on a ground not specifically set forth in the motion.‖). 19 known that the alleged defamatory statements were false when it published the news stories. Dr. Dugi argues that KPRC possessed and reviewed information indicating that the allegations it published about him were false. Dr. Dugi claims that KPRC knew or should have known that he was not conducting drug experiments on illegal immigrants. At his deposition, Dean claimed that although he corroborated that Goosby made allegations that Dr. Dugi was conducting his drug experiments on illegal immigrants, he never discovered anything showing that Dr. Dugi ever treated or ―experimented‖ on any illegal immigrants. Dean acknowledged that KPRC‘s policy includes a general rule that reference to race or national origin should not be made in a news story unless it has some legitimate news value. Dean then agreed that he published the alleged complaint about illegal immigrants ―without being able in any way to corroborate that there was any truth to that.‖ Dr. Dugi asserts that KPRC knew or should have known that Dean‘s comparison of Dr. Dugi‘s use of Providex to the Tuskegee study was inaccurate. Dean admitted that he also reported that Goosby compared Dr. Dugi‘s alleged experiments on illegal immigrants to the Tuskegee study in the 1930‘s. Dean explained the Tuskegee study as follows: The government subjected black men in the armed forces to a vaccine for syphilis or possibly a placebo—but they were all part of one experiment—and did not tell the men; and some of them became sick. Some of them died. Some of them—there was a racial component there. Although Dean stated that he researched the Tuskegee study before the news broadcasts, he did not document that research in his file. Dean stated that images were 20 taken from a ―network video‖ about the Tuskegee study and used in his news story about Dr. Dugi. Dean stated that he was aware that many of the men in the Tuskegee study died and that there were racial overtones because all of the men in the study were African-American; however, he was unaware that some of the men spread syphilis to their spouses and then to their children. Dean acknowledged that, in his news report, he stated that the difference between the Tuskegee study and Dr. Dugi‘s alleged experiments was that Dr. Dugi stood to profit. Dean agreed that, before the news stories aired, he did not have any information regarding whether Dr. Dugi made any money from Providex and admitted that he could not find anything indicating that Dr. Dugi made a financial gain from the sale of the drug. Dean agreed that, unlike the Tuskegee study when the stories aired about Dr. Dugi, he had no indication that anyone had been harmed by Providex. Dean also agreed that another major difference between the two events was that in the Tuskegee study, every single individual used for testing was African-American, and in this case, Dean could not find any evidence that Dr. Dugi‘s alleged study had anything to do with race. Dean acknowledged that he reviewed the Activ notebook, which showed that nine of the Providex patients were Caucasian, one was African-American, eight were Hispanic, and one was not known. Dr. Dugi alleges that KPRC knew or should have known that as an over-the- counter drug, Providex was not subject to the FDA‘s new drug approval process. Dean claimed that Providex was not approved by the FDA, and KPRC referred to it as a ―mystery drug‖ during its broadcasts. However, Dr. Dugi presented evidence that Providex is an over-the-counter drug, which is not subject to the new drug approval 21 process. Dr. Dugi also provided evidence that when an OTC drug contains FDA OTC monographs—―a kind of ‗recipe book‘ covering acceptable ingredients, doses, formulations, and labeling‖—there is no need for the company marketing that OTC drug to acquire FDA pre-approval. Only new prescription drugs and OTC drugs that do not contain an FDA OTC monograph need pre-approval from the FDA. Evidence was presented that Providex is ―an OTC product manufactured to existing [FDA] monographs for [OTC] products.‖ To show that Providex was allegedly not approved by the FDA, during one of the broadcasts, Dean conducted a search at the FDA website of Providex‘s NDC number. Dean stated, ―When we enter the NDC number in the FDA‘s database, there‘s nothing on file.‖ However, Dr. Dugi produced evidence that Dean entered the NDC number into the FDA‘s database which specifically states that it only includes prescription and diabetic drugs and that KPRC was aware that Providex was not a prescription or diabetic drug. Evidence was presented that Providex is an over-the-counter drug and that the NDC number would not be found in the database that Dean used during his broadcast. Dean testified at his deposition that he was aware that not all NDC numbers will be filed in the database he accessed during his broadcast, but that he still represented to his viewers that Providex‘s NDC number was not included in the FDA‘s database.25 25 Frank Darryl Stefka stated in an affidavit that he was the Director of Pharmacy at CCH from March 1972 until 2004 and that his responsibilities included ensuring that ―the pharmacy provided the appropriate level of services to meet the needs of the patients at [CCH].‖ According to Stefka, Providex was approved for CCH‘s formulary in 1999 and that a ―formulary is a list of drugs which a hospital carries in its pharmacy to treat hospital patients.‖ Stefka stated that benzothonium chloride, the main ingredient in Providex, is ―a disinfectant commonly used in over the counter germ-killing products.‖ Stefka asserted that as on OTC drug, Providex ―never required a prescription‖ and that he believed it was an effective and 22  Viewing the evidence in the light most favorable to Dr. Dugi and disregarding all contrary evidence and inferences, we conclude that Dr. Dugi brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to whether KPRC knew or should have known that their publication was false, see King Ranch, Inc., 118 S.W.3d at 751. As such, the trial court properly denied KPRC‘s no-evidence motion for summary judgment. Id. C. Evidence of Actual Damages KPRC also contends that Dr. Dugi failed to produce any evidence of actual damages. Dr. Dugi responds that because he provided evidence that KPRC committed defamation per se, actual damages are presumed. In a case of defamation per se, actual damages to a victim's reputation are presumed.26 Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (―Once injury to reputation is established, a person defamed may recover general damages without proof of other injury.‖); Knox v. Taylor, 992 S.W.2d 40, 60 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (―In the recovery on a claim of defamation per safe product. In her incident report, Jalufka stated that ―[b]efore placing the Providex product on formulary approximately six/seven years ago, my predecessor Mr. Stefka contacted the Texas State Board of Pharmacy and the University of Texas Health Science Center San Antonio Drug Information Line regarding its legitimacy and all were in agreement it [Providex] was fine to place on formulary pending approval from the Pharmacy and Therapeutics Committee (and it was approved) from my understanding. Jalufka also stated that CCH‘s formulary is ―reviewed and approved by the medical staff at the Pharmacy and Therapeutics Committee meeting approximately the second Tuesday of February each year. The former Providex products [Durable Closure and Sore Relief] have been on formulary for approximately six or seven years and approved by the Pharmacy and Therapeutics Committee each year.‖ 26 ―There is a difference, however, between general and special damages. Even if the statements have been determined to constitute defamation per se, proof of the actual injury suffered is required to recover special damages such as lost profits, incurred costs, lost time value, and future injury . . . .‖ Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied). 23 se, the law presumes actual damages and no independent proof of damages to reputation or of mental anguish is required.‖). ―Thus, if the alleged statements have been classified as defamatory per se, general damages are presumed without requiring specific evidence of harm to the plaintiff‘s reputation thereby entitling the plaintiff to recover, at a minimum, nominal damages.‖ Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied) (citing Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (―As a matter of law . . . [defamatory per se statements] entitle [plaintiff] to recover actual damages for injury to his reputation and for mental anguish‖); Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1331 (5th Cir. 1993)). Defamation per se is spoken, written, or printed words that are so obviously hurtful to the person aggrieved that they require no proof of their injurious character to make them actionable. Knox, 992 S.W.2d at 50. ―A false statement will typically be classified as defamatory per se if it injures a person in his office, profession, or occupation; charges a person with the commission of a crime; imputes sexual misconduct; or accuses one of having a loathsome disease.‖ Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 581; see also Zepeda v. Indus. Site Servs., No. 13-07- 00579-CV, 2008 Tex. App. LEXIS 8360, *11 (Tex. App.—Corpus Christi Nov. 6, 2008, no pet.) (mem. op.). In its news broadcasts, KPRC stated that Dr. Dugi conducted illegal drug testing on illegal immigrants and on his patients without their consent. KPRC also stated that a criminal investigation had been launched into Dr. Dugi‘s activities and that a federal 24 grand jury would consider criminal charges in this case.27 Therefore, KPRC charged Dr. Dugi with the commission of a crime. Moreover, KPRC reported that Dr. Dugi experimented on his patients without their consent using an illegal drug that the FDA did not approve. These allegations, if false, would support a conclusion that Dr. Dugi was injured in his office, profession, or occupation. Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 581; see also Zepeda, 2008 Tex. App. LEXIS 8360 at *11. We conclude that there was more than a scintilla of evidence presented that raised a genuine issue of material fact regarding whether KPRC committed defamation per se.28 See King Ranch, Inc., 118 S.W.3d at 751. Therefore, there is a genuine issue of material fact regarding whether actual damages in this case are presumed. See Leyendecker & Assocs., 683 S.W.2d at 374; Knox, 992 S.W.2d at 60. Viewing the evidence in the light most favorable to Dr. Dugi and disregarding all contrary evidence and inferences, we conclude that the trial court properly denied KPRC‘s no evidence motion for summary judgment. See King Ranch, Inc., 118 S.W.3d at 751. We overrule KPRC‘s second issue.29 27 KPRC did not specify the crime that Dr. Dugi allegedly committed. 28 On appeal, KPRC alleges that the defamatory statements in this case involved a matter of public concern; therefore, Dr. Dugi, even as a private individual, must have proven actual malice in order to recover any presumed or punitive damages. However, KPRC did not assert to the trial court that Dr. Dugi was required to prove actual malice in order to recover any presumed or punitive damages because the defamatory statement involved a matter of public concern. See Klentzman v. Brady, 312 S.W.3d 886, 907 n.7 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Accordingly, we may not consider this ground for summary judgment. See id. 29 As a sub-issue to its second issue, KPRC contends that the trial court erred in overruling its ―objections to a number of statements in Dr. Dugi‘s affidavit on the bases that they were speculative and contained unsubstantiated factual and legal conclusions.‖ KPRC complains that without this evidence, Dr. Dugi failed to produce any evidence that he suffered actual damages. However, because we have concluded that Dr. Dugi produced evidence to create a fact issue that KPRC committed defamation per se, we need not address this contention, as it is not dispositive of this appeal. See TEX. R. APP. P. 47.1. 25  III. TRADITIONAL MOTION FOR SUMMARY JUDGMENT By its third issue, KPRC contends that the trial court should have granted its traditional motion for summary judgment because it proved as a matter of law that the news broadcasts were substantially true. Essentially, KPRC argues that Dr. Dugi has failed to show he has a defamation claim because a showing of substantial truth of a publication in a defamation cause of action negates the essential element of falsity. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). Thus, if KPRC has negated the falsity element of defamation, KPRC asserts that it is entitled to summary judgment as a matter of law. See id. at 16. A. Standard of Review and Applicable Law We review the granting of a traditional motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.). ―[W]e take as true all evidence favorable to the non[-]movant, and we indulge every reasonable inference and resolve any doubts in the non[-]movant's favor.‖ Valence Operating Co., 164 S.W.3d at 661. In a traditional motion for summary judgment, the movant has the burden to establish that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing TEX. R. CIV. P. 166a(c)); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A defendant seeking a traditional motion for summary judgment 26 must either disprove at least one element of each of the plaintiff‘s causes of action or plead and conclusively establish each essential element of any affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Sanchez v. Matagorda County, 124 S.W.3d 350, 352 (Tex. App.—Corpus Christi 2003, no pet.). In determining whether the allegedly defamatory broadcast was true, Texas courts apply the ―substantial truth‖ test. McIlvain, 794 S.W.2d at 16. To determine whether a communication is substantially true, the courts must determine the gist of the broadcast. Id.; KTRK Television v. Felder, 950 S.W.2d 100, 105 (Tex. App.—Houston [14th Dist.] 1997, no writ). So long as ―the substance, the gist, the sting, of the libelous charge‖ is justified, minor inaccuracies will not constitute falsity. Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991). Summary judgment in favor of a media defendant is appropriate if the communication at issue is substantially true. McIlvain, 794 S.W.2d at 15. However, when news stories involve the reporting of allegations by a third party, as in this case, the media defendant is not required to prove that the underlying allegations under investigation were true in order to show substantial truth. Felder, 950 S.W.2d at 105. Instead, the media defendant may rely on proof that the allegations were in fact made, accurately reported, and under investigation when reported in order to prove that the communication was substantially true. Felder, 950 S.W.2d at 106; UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 612 (Tex. App.—San Antonio 2002, no pet.) (―When a case involves a media defendant, the defendant need only prove that third party allegations reported in a broadcast were, in fact, made and 27 under investigation; it need not demonstrate the allegations themselves are substantially true.‖); Grotti v. Belo Corp., 188 S.W.3d 768, 771 (Tex. App.—Fort Worth 2006, pet. denied) (―We hold that the Media Defendants established the substantial truth of each broadcast by accurately reporting third-party allegations and investigations.‖). ―Otherwise, the media would be subject to potential liability everytime it reported an investigation of alleged misconduct or wrongdoing by a private person, public official, or public figure. Such allegations would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue, thereby subjecting the media to suit for defamation.‖ Felder, 950 S.W.2d at 105. The defendant has the burden of establishing the affirmative defense of truth. See UTV of San Antonio, Inc., 82 S.W.3d at 610. B. Discussion KPRC argues that the record is replete with Goosby‘s ―allegations about the illegal drug testing‖ and that ―Goosby‘s allegations of illegal drug testing were under investigation when KPRC published the News Stories.‖ Dr. Dugi responds that a fact issue exists regarding what allegations were made and whether the allegations reported by KPRC were under investigation. We agree with Dr. Dugi. KPRC has the burden of proving that the allegations it relied on were actually made by Goosby, accurately reported, and under investigation in order to establish its defense of substantial truth. See UTV of San Antonio, Inc., 82 S.W.3d at 612. Citing numerous documents in the record, KPRC argues that it ―presented sufficient evidence to prove that Goosby made the allegations and that they were under investigation.‖ In 28 its brief, KPRC claims that Goosby complained on numerous occasions to different entities that Dr. Dugi was testing an illegal and unapproved drug on patients in a rural area and that Dr. Dugi was under investigation. Many of the documents included in the record written by Goosby and allegedly sent to several agencies accuse two nurses of administering an alleged illegal drug from a ―Latin American country‖ to patients at CCH; these documents do not mention Dr. Dugi or his alleged financial interest in the drug company that promoted and marketed Providex.30 There is only one document accusing Dr. Dugi of performing illegal drug tests written by Goosby in the record that was sent to Dean before the news broadcasts. This document entitled, ―Abridged Letter to the U.S. Department of Justice‖ (―DOJ‖) accuses Dr. Dugi of allegedly testing an illegal drug on his patients without their consent.31 However, at his deposition, Goosby testified that this document was a draft that had not been sent to any agency because it was obviously incomplete. Goosby claimed that he no longer had a copy of the final draft that he actually sent to the DOJ, which he had changed, and a copy of the final draft is not included in the summary judgment evidence.32 30 KPRC did not include Goosby‘s allegations against these two nurses in its news reports. In one document, Goosby accused one of the nurses of being ―deeply involved in the illegal drug testing‖ and of ―personally dispens[ing] almost every dose to be administered.‖ Goosby claimed that this nurse conspired with other nurses ―to make false statements against‖ Goosby because he had reported ―illegal activity involving drug diversion, and Medicare/Medicaid fraud‖ by another nurse. 31 The other documents written by Goosby and allegedly sent to the FDA and FBI stating that Dr. Dugi participated in illegal drug tests without his patients consent were sent to Dean on February 1, 2008—after the first news broadcast aired. Therefore, KPRC could not rely on these documents. See UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 611-12 (Tex. App.—San Antonio 2002, no pet.) (providing that the allegations must have been under investigation for the media defendant to rely on the defense of substantial truth). 32 There is nothing in the record which shows that Goosby actually sent the final draft to the DOJ 29  KPRC argues that Dean received evidence of Goosby‘s correspondence with the FDA. The correspondence is attached to an email Goosby sent to Dean on February 1, 2008, after KPRC first aired its news broadcast reporting that Dr. Dugi performed illegal drug tests on his patients without their consent. In the email, Goosby claimed that he sent the attached letter to Sandy Ziegler of the FDA and that Ziegler responded requesting answers to some questions. However, this evidence merely shows that Goosby drafted a letter to Ziegler; there is nothing from Ziegler addressed to Goosby showing that Goosby received a letter from Ziegler.33 Furthermore, at his deposition, Dean admitted that when Gourley requested for Dean to forward all documents in his possession that were filed or sent to the FDA or TMB, Dean told Gourley ―There are no documents.‖34 In the first broadcast, after reporting that Dr. Dugi had allegedly used an unapproved drug on his patients without their consent, Dean stated that ―the FDA is investigating tonight, but that agency would not elaborate.‖ However, Dean did not state that the FDA was investigating Dr. Dugi‘s alleged participation in the illegal drug or any other agency. 33 In his email to Dean, Goosby stated that Ziegler ―sent me additional questions for me to answer.‖ Two letters from Goosby to Ziegler were attached to the email. In the second letter, Goosby stated he was answering questions that Ziegler allegedly asked. The record does not contain any correspondence from Ziegler to Goosby requesting answers to these questions. 34 During Goosby‘s deposition, portions of his videotaped interview with Dean were played. In his interview, Goosby stated, ―No, no. I was using my own name. They all acted as if I was fabricating. No one was interested—even when I called the FBI recently—‗I started at the Office of the Inspector General in Washington, D.C., shift down, shift down, shift down, shift down.‖ In his deposition, Goosby explained that when he spoke to Elizabeth Higginbotham of the TBN, she indicated that she thought Goosby was not being truthful. 30 testing.35 In the February 1, 2008 morning broadcast, Dean stated that although Goosby filed complaints with the FDA, FBI, the state medical board, the state pharmacy board, and state legislators, ―nothing had happened so [Goosby] called [KPRC].‖36 This evidence implies that Goosby‘s alleged complaints were ignored by every agency listed, thus, supporting a conclusion that those agencies had not begun investigating his allegations. In this same report, Dean spoke with a representative of the Texas Medical Board who informed Dean that that agency was not conducting an investigation into Goosby‘s allegations against Dr. Dugi.37 In its February 1, 2008 evening broadcast, the KPRC anchor stated, ―The FDA has now launched an investigation in the human drug testing uncovered by Local 2 Investigates.‖ Indulging every reasonable inference and resolving any doubts in Dr. Dugi‘s favor, this evidence implies that the FDA started its investigation after KPRC ―uncovered‖ the ―human drug testing.‖ See Valence Operating Co., 164 S.W.3d at 661. In its third broadcast, KPRC reported that a ―new investigation‖ had been launched by the ―Hospital Board‖ into ―allegations that an experimental drug was tested on unsuspecting patients south of Houston.‖ In its fourth broadcast, the news anchor 35 The record contains evidence that Goosby complained to the TBN that two nurses had been involved in testing a drug from a Latin American country. 36 On February 1, 2008, Goosby sent Dean a letter, dated November 20, 2007, he allegedly sent to ―Agent Vic Hartman.‖ In the letter Goosby stated that the TBN ―never checked into the charges that there were [sic] illegal drug testing being performed at Cuero Community Hospital‖ and that he had reported some of the allegations ―to several agencies including the Texas Medicaid provider, the Texas State legislature, the TBN, and other agencies from the beginning, and have been ignored and have received apathetic responses.‖ 37 In an email sent to Brian Sasser, an investigative producer at KPRC, on March 25, 2008, Dean stated, ―Texas Medical Board just launched its investigation (finally). They will subpoena our stuff next week and they‘ve already requested and received a response from the drug maker.‖ 31 reported, ―We‘ve been looking into the mystery surrounding several drugs being tested on hundreds of patients throughout Texas. Tonight these drugs have stopped being sold as part of an FDA investigation launched because of Local 2 Investigates.‖ In its fifth broadcast, the following exchange occurred: [Anchor 1]: Two separate government investigations are underway tonight, following our series of reports on a possible drug experiment uncovered by Local 2 Investigates. [Anchor 2]: A state agency and federal investigators are now looking into allegations by hospital workers just south of Houston, who say the patients were used really as human guinea pigs without their knowledge. Dean: Food and Drug Administration investigators now have stacks of records from Cuero Community Hospital south of Houston near Victoria. .... Now, Local 2 Investigates has been contacted by the state agency that disciplines doctors. .... The Texas Medical Board could take action against the doctor for using an unapproved drug, of if the agency proves he tested it on patients without the patients knowing they were part of a study, that‘s something Dr. Dugi denies. The State Medical Board could take months to wrap up its investigation, but the F-D-A inquiry is expected to go to a federal grand jury within the next month, that body will consider criminal charges in this case. Indulging every reasonable inference and resolving any doubts in Dr. Dugi‘s favor, this evidence appears to show that the FDA and the State Medical Board started 32 an investigation into Dr. Dugi‘s alleged involvement in the illegal drug testing only after KPRC‘s news reports. Valence Operating Co., 164 S.W.3d at 661. Finally, in an online article, Dean wrote that ―[t]he Food and Drug Administration had already launched a criminal investigation in response to the Local 2 Investigates reports.‖ Again, this implies that the FDA did not begin its alleged investigation into Dr. Dugi‘s involvement until after KPRC aired its news reports. KPRC relies on Dean‘s deposition testimony that several FDA personnel allegedly told him that an investigation had been started into Dr. Dugi‘s alleged involvement in the illegal drug testing. However, ―[o]ur summary judgment rule permits the granting of a summary judgment on the basis of uncontroverted testimonial evidence of an interested witness if that evidence ‗is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.‘‖ Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Dean‘s news reports contradict his assertions that the FDA had begun an investigation into Goosby‘s allegations against Dr. Dugi before KPRC aired them.38 KPRC also complains that the trial court erroneously excluded an ―Enforcement Report for March 26, 2008‖ posted on the FDA‘s website that KPRC claims proves that Goosby‘s allegations were under investigation. The report states that Activ initiated a recall of sore relief and durable closure (Providex) by letter on January 21, 2008. 38 We note that Dean claimed that he attempted to contact Murray to corroborate Goosby‘s allegations, but that she was not available; however, in an affidavit, Murray stated that she never spoke with Dean and that Dean had not left any messages for her ―or [made] any efforts to contact [her] of which [she] was aware.‖ Murray stated that she would have informed Dean that she had never seen Dr. Dugi experiment or test a drug on his patients and that she had not asked Goosby to help her expose such testing of Providex. 33 However, even assuming, without deciding, that the trial court abused its discretion in excluding this evidence, this document merely shows that Activ voluntarily recalled Providex. There is nothing in the document indicating that Goosby made any allegations regarding Dr. Dugi; that the FDA or any other agency had launched an investigation of Dr. Dugi; or that the medication was recalled in response to Goosby‘s allegations. Furthermore, the trial court admitted the actual recall letter dated February 21, 2008, written by Gourley to Activ‘s customers informing them that Activ was voluntarily recalling existing inventories of sore relief and durable closure (Providex). Therefore, even had the trial court admitted the enforcement report, it merely raises a fact issue regarding when Activ initiated its voluntary recall.39 KPRC also complains that the trial court abused its discretion in admitting Gourley‘s affidavit and the February 21, 2008 letter. However, again assuming, without deciding, that the trial court erroneously admitted these documents, the enforcement report itself does not prove that Goosby informed the FDA that Dr. Dugi was testing an illegal drug on his patients without their consent or that the FDA had begun an investigation of Dr. Dugi. The enforcement report merely shows that Activ voluntarily recalled Providex. Based on the summary judgment record, including KPRC‘s own news reports, we conclude that a genuine issue of material fact exists concerning whether: (1) Goosby made allegations to any agency that Dr. Dugi used an illegal drug on his patients without their consent before KPRC‘s news reports; (2) KPRC reported those allegations accurately; and (3) there was an investigation into Goosby‘s allegations. 39 In its brief, KPRC agrees that the letter contradicts the enforcement report, which goes to the weight of the evidence. 34 See Sw. Elec. Power Co., 73 S.W.3d at 215; City of Houston, 589 S.W.2d at 678. Accordingly, we hold that KPRC has not met its burden of establishing the affirmative defense of truth or that it is entitled to summary judgment as a matter of law.40 See Sw. Elec. Power Co., 73 S.W.3d at 215; City of Houston, 589 S.W.2d at 678. We overrule KPRC‘s third issue. IV. CONCLUSION We affirm the trial court‘s denial of KPRC‘s motions for summary judgment. _________________ ROGELIO VALDEZ Chief Justice Delivered and filed the 16th day of June, 2011. 40 In its reply brief, KPRC states, ―Dr. Dugi provides no evidence that the Goosby [sic] did not file these complaints with state and federal agencies or that the complaints did not allege that Dr. Dugi was testing an unapproved drug on patients without consent.‖ However, to establish its defense of substantial truth, KPRC had the burden of establishing that Goosby made the allegations and that those allegations were under investigation. See id. at 610. 35 

704 F.2d 1250 U. S.v.Philpot 82-1471 UNITED STATES COURT OF APPEALS Fifth Circuit 4/13/83 1 N.D.Tex. AFFIRMED

9 Cal.App.4th 1321 (1992) 12 Cal. Rptr.2d 95 CALIFORNIA PHYSICIANS' SERVICE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; JEFFREY B. LANDA et al., Real Parties in Interest. Docket No. D017045. Court of Appeals of California, Fourth District, Division One. September 25, 1992. *1323 COUNSEL Hassard, Bonnington, Rogers & Huber, Rick C. Zimmerman and B. Thomas French for Petitioner. No appearance for Respondent. Zelle & Larson and Denise Schardein for Real Parties in Interest. OPINION FROEHLICH, J. The petitioner, California Physicians' Service, doing business as Blue Shield of California (Blue Shield), seeks extraordinary review of the superior court's overruling of its demurrer to the plaintiffs' supplemental complaint. The supplemental complaint attempts to state a cause of action in tort for the filing of bad faith or malicious defensive pleadings. The filing of defensive pleadings is clearly a privileged communication which cannot be the basis for a retaliatory action in tort. The superior court was under an obligation to terminate this spurious cause of action. Its failure to do so, and the absence of any other adequate remedy to forestall this claim, warrants our issuance of extraordinary relief. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal. Rptr. 179, 479 P.2d 379].) PROCEDURAL BACKGROUND Since we deal here with a ruling on demurrer, our facts are taken from the complaint. Plaintiff father purchased from Blue Shield a medical health coverage insurance policy for the care of his minor son.[1] During the period of effectiveness of the policy, plaintiff son was injured, requiring treatment *1324 which cost $1,212. Although properly notified of the claim, Blue Shield failed to pay in accordance with the terms of the policy. Plaintiffs' amended complaint encapsulates this delict in terms of tortious breach of the insurance contract, fraud (by advertising a policy which the issuer did not intend to carry out), breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress (by groundlessly refusing to pay policy benefits). Blue Shield answered with a general denial and 11 specific affirmative defenses, including such allegations as that any benefits due had been paid, that the father in his individual capacity had no standing as plaintiff, that the plaintiffs had failed to mitigate damages, that plaintiffs were contributorily and comparatively negligent, and that the superior court lacked jurisdiction over the claim by reason of the Employee Retirement Income Security Act of 1974 (ERISA, an allegedly applicable federal act). Plaintiffs countered by seeking and obtaining permission to file, and filing, a supplemental complaint. The supplemental complaint sought damages for breach of the duty of good faith and fair dealing and for the intentional infliction of emotional distress. The genesis of these additional damages was Blue Shield's filing of its general denial and affirmative defenses. What might seem to the uninitiated a bland and colorless example of boilerplate pleading is alleged to have caused "further emotional distress" to the plaintiffs because it constitutes "conducting spurious, untenable and unprivileged defenses intended to cause further emotional distress to [plaintiffs, and to cause plaintiffs] to discontinue litigation and to enter into an unreasonable settlement...." Plaintiffs by their averments in the supplemental complaint highlight as examples of tortious pleading: — the denial of agency by the person who sold the policy; — the assertion that the father had no standing as plaintiff; — the assertion that the father made misrepresentations in purchasing the policy; *1325 — the contention plaintiffs acted negligently and improperly; — the interposition of the alleged bar of ERISA. These and other defenses of Blue Shield are characterized by plaintiffs as spurious and untenable defenses, attempts to "try out an untested legal argument against its own insured," and generally unprivileged and unreasonable acts which constitute a continued violation and breach of Blue Shield's duty of good faith and fair dealing. Blue Shield filed a general demurrer to the supplemental complaint. After full briefing and oral argument the court took the demurrer under submission and subsequently issued a written order overruling the demurrer. The court ruled that an insurer's duty to act in good faith continues after litigation is filed, that the interposition of defenses which are "patently untenable" would constitute bad faith, and that it would be inappropriate to attempt to determine which if any defenses fit this category at the demurrer stage. DISCUSSION (1) Broadly but nevertheless accurately speaking, there is no tort of "malicious defense." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 52 [118 Cal. Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].)[2] The mainstay supporting this principle is the absolute privilege contained in Civil Code section 47, subdivision (b) for "[a] ... publication ... [i]n any ... judicial proceeding." The most recent and complete analysis of the privilege is contained in Silberg v. Anderson (1990) 50 Cal.3d 205 [266 Cal. Rptr. 638, 786 P.2d 365]. (2) Selecting appropriate serial quotes from this case, commencing on page 213 and continuing to page 216,[3] we find: "The principal purpose of section 47(2) is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being *1326 harassed subsequently by derivative tort actions. [Citations.] [¶] Section 47(2) ... promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests.... [¶] [S]ection 47(2), the litigation privilege, has been referred to as `the backbone to an effective and smoothly operating judicial system.' [Citation.] [¶] To effectuate its vital purposes, the litigation privilege is held to be absolute in nature.... [It] has been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation], and fraud [citations]. The only exception to application of section 47(2) to tort suits has been for malicious prosecution actions...." (3) How, then, in the face of this clear and persuasive authority, can the plaintiffs contend that the interposition of false defenses to their complaint gives rise to additional damages? Their theory is that insurance company defendants who have engaged in bad faith denial of claims do not have the same privileges in terms of defensive pleadings as do other defendants. This contention might be deemed ludicrous but for the fact that the composite opinions in White v. Western Title Ins. Co. (1985) 40 Cal.3d 870 [221 Cal. Rptr. 509, 710 P.2d 309] (hereafter White) may be construed to point in this direction. White was an action against a title insurance company for bad faith failure to indemnify property owners for damages caused by reliance upon a defective preliminary title report. The title company appealed an adverse jury verdict and judgment, asserting as error the trial court's admission as evidence of bad faith the insurance company's midlitigation offers of settlement. The insurance company's contention was that, once it had been sued by its client it became an adversary and owed no further duty of good faith. It also relied upon Evidence Code section 1152, which precludes admission in evidence of settlement offers. The majority in White first enunciated a proposition as to which there really cannot be great dispute: that when a contractual relationship between parties continues in effect after litigation commences, the contractual duties of fair dealing and good faith remain in force. The court's additional pronouncements, however, did indeed introduce highly disputable concepts. Evidence Code section 1152 precludes, the court stated, the admission of offers in compromise for the purpose of proving liability in the underlying *1327 action. Where the matter is offered not to establish initial liability, but only as evidence of bad faith in administering the claim (i.e., the making of a ridiculously low offer) the evidence is not excluded. (White, supra, 40 Cal.3d at pp. 887-889.) It is to be noted that White dealt with communications following the filing of litigation which did not constitute part of any pleading. Whether such communications could be deemed made "in ... a judicial proceeding" and therefore privileged under Civil Code section 47 was a matter upon which, the Supreme Court stated, there was no case authority. Without deciding this issue, the Supreme Court resolved the question by making a distinction between "a cause of action based squarely on a privileged communication" and "one based upon an underlying course of conduct evidenced by the communication." (White, supra, 40 Cal.3d at p. 888.) Since the offers in compromise in White were utilized merely as evidence of the prior course of tortious conduct, they were admissible. On this ground, White is distinguishable from the case at bar and does not constitute authority for plaintiff's contention. The conduct cited in the amended complaint as constituting grounds for additional damages is a judicial pleading, clearly within the privilege of Civil Code section 47.[4] The effort here is not to use trial tactics as evidence of prior bad faith, but to mount a new cause of action for severable damages on the theory of an action for bad faith defense. While plaintiffs may not find authority for their position in the majority opinion in White, they may, curiously, find support for their arguments in the dissent. The majority emphasized the difference between using trial tactics as evidence of a bad faith attitude on the part of a defendant, as distinguished from founding an action upon the tactics themselves. (White, supra, 40 Cal.3d at p. 888.) Justice Grodin in his concurring opinion assured that "An Insurer must have the right to defend itself in court against claims it believes *1328 to be without merit, and the normal rules of litigation should be adequate to protect against abuse...." (Id. at p. 891.) The chilling language in White comes from dissenting Justice Lucas, who said that "Nothing in the majority opinion limits introduction of evidence regarding tactics during the earlier trial to attempts to settle. Any aspect of the defendant's `conduct' during the first trial will now be fair game. A plaintiff may argue that an answer filed by a defendant, or a defendant's motion for extension of time, or request for interrogatories, or any other action taken by a defendant in the course of defending the original litigation involving coverage is relevant to the issue of the defendant's good faith." (Id. at p. 895, original italics, fn. omitted.) Plaintiffs have taken the cue from the dissent, and assert that Justice Lucas is correct when he states that, according to the majority, defensive pleading may now constitute the basis for, or at least evidence of, bad faith. We have some doubt as to the current vitality of White, even for the more restricted view of its ratio decidendi attributed to it by Justice Grodin. Commentators have criticized the decision.[5] Justice Brauer in a concurring opinion in Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal. App.3d 530, 542 [238 Cal. Rptr. 363] (hereafter Palmer), stated that "White ... seriously compromises the right of [insurance companies] to defend themselves in court. I hope our Supreme Court will find an early opportunity to reexamine that decision." The Supreme Court has to date not reexamined White.[6] Treatment of the White precedent by the Courts of Appeal has, however, to the extent such is possible by the intermediate appellate courts, limited its application. In *1329 Palmer a large judgment for punitive damages was reversed because of the introduction in evidence, in the jury trial, of "defendant's litigation tactics." The Court of Appeal distinguished White by noting that its context was in "a special relationship between insurer and insured" (while the Palmer action was for breach of contract in the sale of an automobile). (Palmer, supra, 193 Cal. App.3d at p. 538.) The Palmer court rejected "the suggestion White be extended beyond the insurance setting," saying "once litigation has commenced, the actions taken in ... defense are not, in our view, probative of whether defendant in bad faith denied the contractual obligation prior to the lawsuit." (Palmer at p. 539.) In accord with Palmer was DuBarry Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal. App.3d 552 [282 Cal. Rptr. 181]. The judgment that was the subject of appeal was for bad faith denial of the existence of a brokerage contract. Under the subtitle "A Denial of an Agreement in a Pleading Cannot Serve as a Basis for Tort Liability" the court affirmed that once litigation has commenced, actions taken in defense are not probative of the alleged previous bad faith. The court summed up: "to permit a plaintiff to impose tort liability upon a defendant for positions asserted in pleadings not only imposes an unfair burden on the conduct of a defense but conflicts with the well-accepted rule which permits the assertion of two or more inconsistent pleas...." (Id. at p. 575.) It is interesting to note that the DuBarry court enunciated these principles without so much as referring to the existence of White. Finally, we review Nies v. National Auto. & Casualty Ins. Co. (1988) 199 Cal. App.3d 1192 [245 Cal. Rptr. 518]. This was an appeal by an insurance company of a judgment for bad faith refusal to pay a claim based upon uninsured motorist coverage. At trial the plaintiff was permitted, over objection, to introduce as evidence of the bad faith the responsive pleadings of the insurer, which had denied the plaintiff's claim. The judgment was reversed, the court holding that the use of defensive pleadings to show bad faith in the previous failure promptly to pay the claim was inappropriate and prejudicial. The court distinguished White as follows: "The [Supreme Court] decided only that the initiation of litigation was not the controlling factor in determining admissibility. The court did not decide specifically what types of postlitigation activity would or would not be relevant or admissible on the issue of bad faith, nor did it address the policy issues involved in permitting a lay jury to impute improper motives to the imposition of a legally proper defense. Thus, White is not authority for declaring that the disputed evidence in this case was relevant." (Nies v. National Auto. & Casualty Ins. Co., supra, 199 Cal. App.3d at p. 1202.) *1330 We will follow the lead of the Nies v. National Auto. & Casualty Ins. Co. court. White stands for the proposition that ridiculously low statutory offers of settlement may be introduced in a bifurcated trial, after liability has been established, as bearing on the issue of bad faith of the insurance company. While we deal here, also, with parties in an insurance relationship, the other factors surrounding the plaintiffs' contentions are quite different. The communication sought to be used as the basis for the plaintiffs' claim is defensive pleading, matter literally the subject of immunity under Civil Code section 47, subdivision (b), rather than a communication somewhat ancillary to documents filed in the court file, as are settlement communications. (4) (See fn. 7.) Further, the effort is to utilize the pleadings as the basis for the claim of bad faith, rather than only as evidence of prior bad faith.[7] SUMMARY AND DISPOSITION Defensive pleading, including the assertion of affirmative defenses, is communication protected by the absolute litigation privilege. Such pleading, even though allegedly false, interposed in bad faith, or even asserted for inappropriate purposes, cannot be used as the basis for allegations of ongoing bad faith. No complaint can be grounded upon such pleading. The demurrer to this supplemental complaint should therefore have been sustained. (5) (See fn. 8.) Let the writ of mandate issue requiring the superior court to sustain the demurrer.[8] Our prior order staying depositions is vacated. Kremer, P.J., and Huffman, J., concurred. NOTES [1] Plaintiffs' pleadings assert that the relationship between Blue Shield and plaintiffs was that of insurer and insured, inferring broadly that Blue Shield is an insurance company. Blue Shield, in its memorandum of points and authorities, avers that it is a licensed nonprofit health care service plan operating pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.), and that it is not an insurance company. This status is borne out by the health care contract, attached by plaintiffs as exhibit A to their complaint. We deem this possible factual dispute not to be significant, however, assuming (although certainly not determining) that a health care provider sponsoring a prepaid health care plan stands in the same quasi-fiduciary capacity as respects its plan beneficiaries as does an insurance company. We therefore treat Blue Shield in this opinion as the provider of contractual benefits similar to those made available by an insurance company. [2] "The policy of the rule is obvious. If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action.... Under our jurisprudence the defendant may present any defense ... that he may have or that he may deem expedient, and in so doing he will not be subjecting himself to a second suit by the plaintiff based on the wrongful conduct of the defendant in causing the plaintiff to sue him or in defending the action. The rule is the same even though the wrongful conduct of the defendant is willful, intentional, malicious or fraudulent. [Citations.]" (Ritter v. Ritter (1943) 381 Ill. 549 [46 N.E.2d 41, 44] [considering whether a successful plaintiff may recover attorney fees and expenses in a subsequent action against the unsuccessful defendant].) [3] The statutory references in Silberg were to the predecessor of current Civil Code section 47, subdivision (b), which was section 47, subdivision (2). [4] At oral argument counsel for plaintiffs articulated what we conceive to be an attempt at a fallback position. The supplemental complaint did not attempt to state a completely new cause of action, it was argued, but was merely for the purpose of alerting opposing party to plaintiffs' intent to utilize the allegations of the answer as further evidence of bad faith. We do not buy this argument. It is not necessary and certainly not customary to telegraph by pleadings one's intent to introduce evidence relevant to prior pleadings. More to the point, the literal terms of the supplemental pleading state a new cause of action and allege new damages by reason of the defensive pleadings ("Blue Shield has breached this duty of good faith and fair dealing ... by, inter alia, conducting spurious, untenable and unprivileged defenses intended to cause further emotional distress to Landa ... [and] has, inter alia, defended in bad faith and continues to defend its case in bad faith....") This, therefore, is not a case of attempted use of trial tactics merely as evidence of prior bad faith. [5] In Weinstein, Common Law Bad Faith in White v. Western Title Insurance Co.: The Duty Continues (1987) 21 Loyola L.A.L.Rev. 399, 400, the "negative practical effects" of the decision were noted, the commentator suggesting that "White places undue hardship on both insurers and their attorneys when attempting to defend against a first-party bad faith action." White "represents an unwarranted and unfair extension in the area of bad faith litigation. This decision threatens unjustly to thrust insurers in the precarious position of being subject to astronomical awards while being denied the ability to defend themselves effectively. The California Supreme Court has declared open season on insurance companies and has stripped them of their ability to retaliate...." (Op. cit. supra, at p. 447.) [6] The Legislature has apparently recognized the rule established by White, but has not attempted to modify its central principle. An amendment to Evidence Code section 1152 adopted in 1987 recognized that "evidence of an offer to compromise [might be] admitted in an action for breach of the covenant of good faith and fair dealing," but provided only that in such event all other offers to compromise must be admitted. White had admitted initial offers to compromise but excluded the defendant's later increased offer on the ground that since it was made after liability had been established it had little relevance to the question of good faith. (White, supra, at p. 889; and see Maler v. Superior Court (1990) 220 Cal. App.3d 1592, 1600, fn. 5 [270 Cal. Rptr. 222].) [7] We are satisfied to base our decision on the conclusion that the pleadings were sought to be used in and of themselves as tortious communications giving rise to a claim for bad faith, as distinguished from the use of pretrial tactics in White as evidence of prior bad faith. However, we are also satisfied that the broad privilege established by Civil Code section 47, subdivision (b) precludes the use of defensive pleadings as "evidence" of prior bad faith. In this case for instance, at eventual trial of the claim set forth in the first amended complaint, the plaintiffs should not be permitted to introduce the defensive pleadings which form their supplemental complaint as "evidence" of the bad faith alleged in the first amended complaint. [8] We have discussed this case in terms of the allegation of damage because of interposition of bad faith defenses. The supplemental complaint was framed in two counts, one for bad faith and one for infliction of emotional distress. The emotional distress was, of course, the alleged direct result of the bad faith defense. In a sense, therefore, it was not the stating of a separate cause of action, but the articulation of a different concept of damages from the same cause of action. If a communication is absolutely privileged it cannot be tortious, and it matters not that its publication may cause someone emotional distress.

260 S.W.3d 707 (2008) Charles PASCHALL, Jr., Appellant v. BANK OF AMERICA, N.A., Appellee. No. 05-07-00800-CV. Court of Appeals of Texas, Dallas. August 15, 2008. *708 Larry A. Flournoy, Jr., Jordan, Houser & Flournoy, L.L.P., Dallas, Tanya S. Rodak, Jordan, Houser & Flournoy, L.L.P., Richardson, TX, for Appellant. Stacy R. Obenhaus, William G. Whitehill, Gardere, Wynne, Sewell, L.L.P., Richard T. Cheatham, Holman Robertson Eldridge, P.C., Joseph O. Collins, Kessler Collins, P.C., Dallas, Larry M. Wolfish, Wolfish & Newman, P.C., Addison, TX, for Appellee. Before Justices WHITTINGTON, BRIDGES, and FRANCIS. OPINION Opinion by Justice FRANCIS. Charles Paschall, Jr. appeals a summary judgment in favor of Bank of America, N.A. in a declaratory judgment action to construe a trust instrument. In his sole issue, appellant contends the trial court erred in adopting appellee's construction and granting summary judgment. We affirm. Appellant and appellee agreed the trust instrument was unambiguous, but then offered the trial court conflicting constructions. The question is whether settlor Sue Bain Groves intended to authorize the trustee to make distributions to a grandchild's offspring during the grandchild's lifetime and involves the meaning of the word "descendants" in the trust agreement. Appellee moved for summary judgment and appellant moved for partial summary judgment. Appeal is brought only on the ruling on appellee's motion. We review the summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We determine whether appellee met its burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See TEX.R. CIV. P. 166a(c); Provident, 128 S.W.3d at 215-16. The critical language is set out in Item II which discusses how the trust would be administered after settlor Sue Bain Groves's death: ITEM II. Upon the death of Settlor the trust shall be governed by the following provisions: A. Division of Trust Principal into Shares. The Trustee shall immediately divide the trust estate into equal shares and it is directed to set aside one of such shares for the benefit of each of Settlor's grandchildren then living, and one of such shares for the benefit of the living descendants of any of Settlor's grandchildren then dead. Each such share shall be a separate and distinct trust. Such date is hereinafter sometimes referred to as the "Division Date." Settlor's grandchildren who are living at the date of the execution of this Agreement are SUE PASCHALL, BARBARA E. PASCHALL and CHARLES PASCHALL, JR. *709 B. Distribution of Income and Principal. (1) The Trustee shall distribute from each separate trust at any time and from time to time and at such intervals as it shall determine in its sole and absolute discretion, to or for the benefit of Settlor's daughter, BARBARA GROVES PASCHALL, such portion of the income and/or principal of each of the separate trusts provided for hereunder as it shall determine to be advisable in its sole and absolute discretion for the care, maintenance and support of said daughter, considering the distributions made for her from other trusts hereunder and also considering to such extent as the Trustee deems advisable in its sole and absolute discretion resources otherwise available to such daughter for such purposes. Any such distributions shall be charged equally to all trusts hereunder. (2) The Trustee shall distribute from each separate trust at any time and from time to time and at such intervals as it shall determine in its sole and absolute discretion, to or for the benefit of such grandchild, or the descendants of a grandchild, for whom such trust is held, such portion of the income and/or principal of such separate trust as it shall determine to be advisable in its sole and absolute discretion, for the care, education, maintenance, family needs, and support of said grandchild or descendants, as the case may be, considering to such extent as the Trustee deems advisable in its sole and absolute discretion, resources otherwise available to said grandchild or descendants for such purposes. Such distribution need in no way be equal among descendants of a grandchild.... * * * (5) Upon the death of a grandchild of Settlor after the Division Date, the trust for such grandchild shall be held for her or his descendants, if any, or if none, shall be added equally to the then existing trusts hereunder for Settlor's other grandchildren and descendants of grandchildren. C. Termination of Trusts. The trusts shall continue, pursuant to the foregoing provisions, throughout the lifetime of Settlor's daughter, BARBARA GROVES PASCHALL, and all of Settlor's grandchildren. Upon the deaths of all of Settlor's grandchildren and Settlor's daughter, BARBARA GROVES PASCHALL, (even though there are then living descendants of a deceased grandchild or deceased grandchildren) the trusts shall continue in existence with the income thereof to thereafter be distributed at regular intervals to [Dallas Baptist University].... The trust paid income to Groves until she died in 1977. Her daughter, Barbara Groves Paschall (Barbara), and grandchildren, Sue Paschall, Barbara E. Paschall, and Charles Paschall Jr. (appellant), survived her. Upon Groves's death, the trust was divided into three equal shares corresponding to her three grandchildren. The trustee made uncontroversial distributions from appellant's share to Barbara and to appellant. Barbara is now deceased. All three grandchildren are still living. Granddaughters Sue and Barbara E. Paschall are childless. Appellant has three daughters. *710 Appellee, the current trustee, interprets Item II(B)(2) as authorizing it to make distributions of income and principal to appellant's daughters as current beneficiaries of his share of the trust. Appellant posits that he alone is entitled to distributions until his death, at which time his daughters will become eligible beneficiaries unless his death triggers the contingent interest of Dallas Baptist University. To resolve the issue of whether Groves intended to authorize the trustee to make distributions to a grandchild's offspring during the grandchild's lifetime, we must determine what Groves intended when she used the word "descendants" in her trust instrument. The construction of a trust is a matter of law. Eckels v. Davis, 111 S.W.3d 687, 694 (Tex.App.-Fort Worth 2003, pet. denied). In interpreting an unambiguous trust instrument, we examine the four corners of the instrument to determine the settlor's intent. Id.; see also San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000) (explaining identical rules for interpreting wills). We harmonize all provisions and construe the instrument to give effect to all provisions so that no provision is rendered meaningless. Eckels, 111 S.W.3d at 694. When, as here, the language is unambiguous and expresses the settlor's intent, we need not construe the instrument because it speaks for itself. Id. Groves did not define "descendants" within her trust instrument. The word "descendants" is susceptible to two conflicting meanings. See Hallmark v. Port/Cooper-T. Smith Stevedoring Co., 907 S.W.2d 586, 591 (Tex.App.-Corpus Christi 1995, no pet.). In its strict, legal meaning, a "descendant" is the issue of a deceased person. Id. In popular usage, however, the word "descendants" sometimes includes the issue of a living person. Id. Appellant contends the rules of construction and language of the trust instrument show Groves intended the legal definition of "descendants" to exclude the offspring of her living grandchildren. Thus, appellant contends, Groves intended his daughters be contingent beneficiaries, entitled to share in distributions from the trust only if they become his "descendants" after his death, and before the trust benefit passes to Dallas Baptist University. Appellant points to Item II(A), where Groves identified the grandchildren as the persons for whose benefit the divided trusts would be held. Only if the grandchild predeceased Groves would a share be set aside for the dead grandchild's living descendants. Appellant points out that the trust instrument was drafted by an attorney who presumably intended to use the legal definition of "descendants." Appellant also emphasizes the import of the connecting word "or" and the qualifiers "for whom such trust is held" and "as the case may be" as signifying Groves's intent to benefit exclusively either a living grandchild or the descendants of a deceased grandchild. Appellant also contends that defining "descendants" to include his daughters would render meaningless Item II(B)(5). Finally, appellant asserts that treating his daughters as current descendants would contradict Groves's intent to treat her grandchildren equally and to favor her grandchildren and Dallas Baptist University over her more remote descendants. Appellee responds Groves intended to use the popular meaning of "descendants" and include appellant's daughters as current beneficiaries of the trust. Appellee construes the trust instrument as establishing "per stirpes" trusts for each surviving branch of Groves's family. Appellee contends that the language allowing it to *711 make distributions "at any time" to appellant or his descendants indicates Groves intended to allow it the flexibility to make distributions to her great-grandchildren if such distributions were merited. Appellee points to Groves's use of the qualifier "then dead" in Item II(A), and the absence of the qualifier in Item II(B)(2), as showing her intent to use "descendants" in its popular meaning. Appellee contends Item II(A) cannot be viewed as establishing exclusively the trust beneficiaries because Item II(A) does not identify Barbara as a beneficiary, even though Item II(B)(1) provides for distributions to her from all of the trusts. Appellee denies Grove expressed any intent to treat her grandchildren equally and to exclude her remote descendants, emphasizing the harsh results to appellant's daughters. We agree with the parties that the trust instrument is unambiguous and may be construed as a matter of law. See Eckels, 111 S.W.3d at 694. The use of the contextual phrases "grandchildren then living" and "living descendants of any of Settlor's grandchildren then dead" in Item II(A), and the omission of these phrases from Item II(B)(2), shows Groves understood the different meanings that could be assigned to the term "descendants." In Item II(A), Groves necessarily used the legal sense of "descendants" because that definition was useful to clarify her intent to divide her trust into separate, unduplicated shares for each surviving line of her descendants. Once the trust was divided, however, in the remaining clauses of her trust instrument, Groves did not burden the word "descendants" with qualifiers restricting its application to the offspring of deceased grandchildren. To harmonize Item II(A) with Item II(B)(2) and Item II(B)(5), in accord with the rules of construction, we must conclude Groves's use of the word "descendants," without the restrictive qualifiers, was intentional and significant. See id. The significance of using "descendants" without the restrictive qualifiers, as we read the trust instrument, was to further Groves's overarching intent, established by numerous clauses throughout the trust instrument, to grant the trustee a great degree of discretion in determining whom should receive distributions from the trust. Groves accomplished her purpose by not restricting "descendants" to "descendants of any of Settlor's grandchildren then dead" and by allowing the trustee to make such distributions to the beneficiaries "at any time." We are not persuaded by appellant's contention that it was unnecessary for Groves to use the contextual phrases because the other qualifiers in Item II(B)(2) accomplish the same purposes and indicate that she was using "descendants" in its strict legal sense. Regarding the use of "or" in Item II(B)(2), appellant contends that using "or" rather than "and" or "and/or" suggests Groves intended the beneficiary designations as alternatives, with the trustee only able to distribute to a living grandchild or the descendants of a deceased grandchild. We must, however, consider the use of "or" in light of Groves's explicit distinction between "descendants of ... grandchildren then dead" and "descendants." When read in context, we are persuaded that Groves used the connector "or" to expand the trustee's authority to consider either set of beneficiaries in making distributions. As further support for our reading, we observe that in Item II(B)(5), a provision that does not involve the trustee's discretion, Groves refers to "existing trusts hereunder for Settlor's other grandchildren and descendants of grandchildren." (Emphasis added). *712 Regarding the qualifier, "for whom such trust is held," we conclude it does limit appellee's discretion — but not as a limitation on the eligible beneficiaries. Rather, the phrase shows Groves's intent that, except for distributions to Barbara, the distributions to any beneficiary, whether a grandchild or descendant, may only come from the particular trust assigned to that grandchild's lineage. Thus, in Item II(B)(2), Groves intended to use the word "descendants" in its expansive, popular sense to mean the issue of Groves's grandchildren, leaving to appellee's discretion which of the expanded set of beneficiaries are deserving of distributions, "as the case may be." We also dismiss appellant's contention that defining "descendants" in Item II(B)(2) in its popular sense renders meaningless Item II(B)(5). Item II(B)(5) ensures that the treatment of the share trusts established in Item II(A) will extend until the last grandchild dies and the trust benefit passes from Groves's family to Dallas Baptist University. The two provisions do not conflict. Finally, we note our disagreement with both parties' arguments regarding the equality and fairness of Groves's trust instrument. Appellant interprets the trust instrument as requiring equal treatment for Groves's grandchildren while appellee contends Groves could not have intended to treat so harshly the descendants of the last surviving grandchild. Item II(B)(2) does state that distributions to descendants of the grandchildren need not be equal. It does not follow, however, as appellant suggests, that Groves intended to benefit her grandchildren equally. In fact, the trust instrument shows Groves understood that her grandchildren might receive unequal distributions and that her more remote descendants probably would receive unequal distributions. Groves gave the trustee absolute authority to make distributions from the trusts for the beneficiaries. Groves's effort to expressly disavow in Item II(B)(2) equal treatment for the remote descendants was intended to head off appellee's assertion that Groves could not have intended to treat her remote descendants so harshly. Rather, Groves wanted it clearly understood that at the time her last surviving grandchild dies, it is Dallas Baptist University, and not her still living descendants, who will benefit from the trust, without regard to whether the living descendants have been treated "fairly." To guide appellee in using its authority, Groves directed in Item II(B)(4): In exercising its discretion with respect to distribution of income and/or principal under subparagraphs 1 and 2 above, the Trustee shall bear in mind that it is Settlor's hope that the payment of funds from the trust not interfere with the personal and career development of the beneficiary to whom such funds may be paid; and that it is Settlor's wish that the distribution of any funds to any beneficiary aid him or her in his or her maintenance, care and education consistent however with his or her development as a mature person who is useful to society. Notwithstanding the foregoing, it is Settlor's direction that all distributions of income and/or principal from any of the trusts shall in all events be in the sole and absolute discretion of the Trustee and that its decisions shall be final and conclusive upon all interested persons. Groves expressly disavowed any effort to treat her grandchildren equally and to treat her remote descendants fairly. We conclude Item II(B)(2) authorizes appellee to make distributions to appellant's daughters during appellant's lifetime. Because Groves's trust instrument *713 establishes that appellant's daughters are current beneficiaries of the trust held for him, we conclude the trial court did not err in granting summary judgment to appellee. Accordingly, we overrule appellant's sole issue. We affirm the trial court's judgment.

730 N.E.2d 45 (2000) 191 Ill.2d 238 246 Ill.Dec. 365 In re Fred Allen RICHMAN, Attorney, Petitioner. No. 87562. Supreme Court of Illinois. April 20, 2000. Rehearing Denied May 30, 2000. *46 Susan Frederick Rhodes, Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission. Warren Lupel and Jonathan L. Loew, Katz, Randall & Weinberg, Chicago, for Petitioner. Justice MILLER delivered the opinion of the court: The petitioner, Fred Allen Richman, was disbarred on consent in 1990. In 1997 he filed the present petition, seeking reinstatement to the roll of attorneys admitted to practice law in Illinois. Both the Hearing Board and the Review Board recommended that the petition be allowed. The Administrator of the Attorney Registration and Disciplinary Commission has filed exceptions to that recommendation. We now deny the petition. The petitioner was licensed to practice law in Illinois in 1959. At the time of the misconduct relevant here, the petitioner and another lawyer operated a firm that concentrated in personal injury and worker's compensation cases. In October 1984, an elderly man, Herbert Bluhm, fell at the Tinley Park Plaza shopping center. Bluhm's family retained the petitioner and his firm to represent him in the matter. Wausau Insurance Company insured Tinley Park Plaza. In December 1985, a paralegal at the petitioner's law firm contacted Michael Wachala, a claims adjuster for Wausau. The paralegal offered to pay Wachala money in exchange for Wachala's assistance. Wachala reported this conversation to his supervisor at Wausau. In January 1986 Wachala met with the paralegal at the law firm's office. The paralegal said that Wachala could receive 5% of the amount for which the Bluhm case settled, and the paralegal reduced the demand in the case from $50,000 to $40,000 to make Wachala look good. The paralegal said that when the case was settled Wachala would receive his payment from the petitioner. The paralegal then introduced Wachala to the petitioner, who told Wachala that Wachala was going to have to use his imagination on the case and that he did not need to tell everyone what they were doing. Wachala returned to the law firm several weeks later. He gave the paralegal a check from Wausau for $40,000 in settlement of the Bluhm case, and Wachala received $2,000 in cash. Working with federal postal inspectors, Wachala later contacted the petitioner regarding a fictitious Structural Work Act case. Wachala and the petitioner discussed the case several times between May and July 1986. Wachala told the petitioner about the case. When the petitioner expressed interest in representing the fictitious claimant, referred to as Don Williams, Wachala asked if he could receive money in advance. The petitioner replied that he could. The petitioner later met with and was retained by the person who he believed was Williams. At a later meeting at which Wachala and the petitioner discussed the case and its prospects, the petitioner said that he would give Wachala "a few grand" that day and additional money once the case was settled. After asking the firm's bookkeeper for $3,000, the petitioner gave Wachala that sum in cash. The petitioner again told Wachala not to talk about the matter. Wachala asked if he would receive additional money for his work on the case in the future, and the petitioner assured Wachala that he would, with the amount calculated as a percentage of the settlement. The petitioner was indicted in federal court in November 1988 on eight counts of mail fraud and two counts of wire fraud, based on his dealings with Wachala in the two cases. In February 1990 he was convicted on those 10 counts after a jury trial. An additional count, charging obstruction of justice, was dismissed prior to trial. The petitioner was later sentenced to concurrent terms of five years' imprisonment on counts I through IX and to a consecutive term of five years' probation on count X. The petitioner was also ordered to pay $40,000 in restitution to Wausau. The *47 court of appeals affirmed the petitioner's convictions. United States v. Richman, 944 F.2d 323 (7th Cir.1991). After serving a total of 15 months in prison, the petitioner was paroled to a halfway house, where he spent another five months. The petitioner was released from the halfway house on November 24, 1991; his parole ended on November 24, 1993, and his probation ended on February 1, 1995. Pursuant to Supreme Court Rule 762 (134 Ill.2d R. 762(a)), the petitioner moved to have his name stricken from the roll of attorneys admitted to practice law in Illinois in May 1990. In June 1993, he filed the first of what would eventually total three petitions for reinstatement. During the hearing on the initial petition, the petitioner admitted that on three or four occasions while practicing law he had paid $300 to adjusters for State Farm Insurance Company in an effort to expedite the processing of clients' claims. The Hearing Board recommended that reinstatement be denied. In support of that recommendation the Hearing Board noted that the petitioner's offenses were serious, that the petitioner had used illegal drugs, that the offenses were relatively recent, and that the petitioner had not yet completed his term of probation. The Hearing Board further recommended that the petitioner make restitution for the bribes he had paid to the State Farm adjusters. Rather than seek review of the Hearing Board's adverse decision, the petitioner withdrew his petition for reinstatement. The petitioner filed a second petition for reinstatement in November 1995. The Hearing Board again recommended that the petition be denied, basing its decision on concerns similar to those that underlay its decision on the petitioner's initial request. The Hearing Board also noted that the petitioner had failed to make restitution for the State Farm bribes and that he had not performed any charitable work. The petitioner again withdrew his petition rather than seek review of the Hearing Board's unfavorable decision. The petitioner filed the present petition for reinstatement on October 10, 1997. The Administrator filed objections to the petition. In the proceedings before the Hearing Board, the petitioner described his activities since his release from prison, in 1991. The petitioner stated that he now does collection work, collecting money owed by patients to medical providers. Some of the medical providers he works for are those to whom he referred business when he practiced law. Two of the providers have been named as defendants in a federal suit brought by State Farm over allegedly deceptive billing practices. The petitioner also testified that in February 1998 he paid $1,200 to the Illinois Bar Foundation in compensation for his bribes to the State Farm adjusters. The petitioner stated that since December 1996 he has volunteered at a local hospital. He acknowledged that he used cocaine in the 1980s but testified that he has not done so since 1990. The petitioner also said that he spends a substantial amount of time and energy caring for his wife and for one of his sons, who are mentally ill. The petitioner expressed remorse and regret for his misconduct, and he insisted that he will not engage in similar misconduct in the future. The Hearing Board, with one member dissenting, recommended that the petitioner be reinstated. The majority believed that the passage of time since the petitioner's misconduct and evidence of the petitioner's rehabilitation during the intervening years warranted reinstatement, even though the misconduct was serious. The majority observed that the petitioner had acknowledged the nature and seriousness of his misconduct and that he had made a contribution to the Illinois Bar Foundation in an amount equal to his admitted bribes to the State Farm adjusters. Finally, the majority believed that the petitioner had been candid in his testimony before the Board and thought that the petitioner's professional, civic, and family activities since his disbarment constituted strong *48 proof of his rehabilitation. The dissenting member of the Hearing Board believed that the petitioner's request for reinstatement should be denied. The dissenting member focused on the seriousness of the petitioner's misconduct, his failure to recognize the nature of his offenses, and his continuing relationships with many of the same medical providers with whom he had previously worked as a lawyer. The Review Board unanimously affirmed the Hearing Board's recommendation that the petitioner be reinstated. The Review Board concluded that none of the Hearing Board's factual findings were against the manifest weight of the evidence. We allowed the Administrator to submit exceptions to the Review Board's report and recommendation. 166 Ill.2d R. 753(e). The petitioner filed an answer to the Administrator's exceptions. A lawyer who has been disbarred on consent must wait at least three years from the date of the order allowing his or disbarment before filing a petition for reinstatement. 134 Ill.2d R. 767(a). In addition, a lawyer who has withdrawn a previously filed petition for reinstatement must wait at least one year after the withdrawal of the previous petition before filing a new petition. 134 Ill.2d R. 767(a). A disbarred lawyer who seeks to resume the practice of law has the burden of proving, by clear and convincing evidence, that he or she should be reinstated. In re Fleischman, 135 Ill.2d 488, 495, 142 Ill.Dec. 838, 553 N.E.2d 352 (1990); In re Anglin, 122 Ill.2d 531, 539, 120 Ill.Dec. 520, 524 N.E.2d 550 (1988); In re Berkley, 96 Ill.2d 404, 410, 71 Ill.Dec. 694, 451 N.E.2d 848 (1983). Supreme Court Rule 767(f) sets forth the following guidelines for use in deciding whether a petition for reinstatement should be granted: "The [hearing] panel shall consider the following factors, and such other factors as the panel deems appropriate, in determining the petitioner's rehabilitation, present good character and current knowledge of the law: (1) the nature of the misconduct for which the petitioner was disciplined; (2) the maturity and experience of the petitioner at the time discipline was imposed; (3) whether the petitioner recognizes the nature and seriousness of the misconduct; (4) when applicable, whether petitioner has made restitution; (5) the petitioner's conduct since discipline was imposed; and (6) the petitioner's candor and forthrightness in presenting evidence in support of the petition." 134 Ill.2d R. 767(f). Given the seriousness of the misconduct committed by the petitioner, his age and experience at the time of the wrongdoing, his lengthy delay in making restitution for the additional bribes to the State Farm adjusters, and his continued and anticipated employment in an area of law related to his original field of practice, we believe that the present petition for reinstatement should be denied. First, the misconduct that led to the petitioner's disbarment on consent was serious. As noted earlier, in February 1990, the petitioner was convicted in federal court on eight counts of mail fraud and two counts of wire fraud for his role in bribing a claims adjuster employed by Wausau Insurance Company in 1985 and 1986. The petitioner's offenses revealed a person who thought nothing of violating the most basic rules of our legal system. The petitioner was disbarred on consent prior to the initiation and resolution of any disciplinary proceedings stemming from his federal convictions. That misconduct, however, would have doubtless resulted in a severe sanction had the petitioner not first pursued his own disbarment. The fraudulent conduct by the petitioner in the two cases that led to his federal convictions struck at the core of our legal system and was antithetical to our society's most *49 basic principles. "The seriousness of a petitioner's past misconduct is unquestionably an important consideration [citations] which cannot be minimized by subsequent exemplary conduct." In re Berkley, 96 Ill.2d 404, 410, 71 Ill.Dec. 694, 451 N.E.2d 848 (1983). Moreover, the petitioner has committed other misconduct as well. During the proceedings on the petitioner's first petition for reinstatement, the petitioner admitted that he had paid a total of $1,200 in bribes to claims adjusters employed by State Farm Insurance Company to speed up the processing of cases. In addition, the petitioner said that he had regularly used cocaine from the mid-1980s to the day preceding his federal incarceration, in 1990. Although the petitioner's additional bribes and illegal drug use did not result in criminal prosecution, we should consider this additional misconduct in assessing the seriousness of the petitioner's history of wrongdoing. In re Rothenberg, 108 Ill.2d 313, 324-25, 91 Ill.Dec. 730, 484 N.E.2d 289 (1985). The petitioner was admitted to the Illinois bar in 1959, and he began practicing law in 1960. Thus, at the time of these events the petitioner had been a lawyer for more than 25 years. We believe that his misconduct must be considered particularly egregious in light of his lengthy experience as a lawyer. One circumstance further weighing against reinstatement is the petitioner's delay in making restitution for the additional bribes to the State Farm adjusters. The petitioner did not make restitution for these additional bribes until February 1998, several months after he filed the present petition for reinstatement-his third request for that relief-and a number of years after the Hearing Board had initially suggested restitution. In denying the petitioner's first petition for reinstatement, in August 1994, the hearing panel recommended that the petitioner make a payment in restitution of the additional bribes. The petitioner did not do so, however. Two years later, the hearing panel again spoke of the need for restitution when it denied the petitioner's second petition for reinstatement. It was not until several months after the petitioner submitted the present request for reinstatement that he saw fit to pay restitution, choosing then to make a charitable contribution in an amount equal to his admitted bribes. See In re Fleischman, 135 Ill.2d 488, 498, 142 Ill.Dec. 838, 553 N.E.2d 352 (1990) (ordering restitution in an amount equal to the sum of the petitioner's bribes to officials, in the absence of specific evidence of the value of the benefit received by the petitioner in making the bribes). Finally, the petitioner has failed to remove himself from the milieu that fostered his earlier misconduct. He currently performs collection work for a number of different medical providers; he had referred clients to some of these providers while he was still in practice. Moreover, two of the employers the petitioner worked for at the time he filed his reinstatement petition have been sued by State Farm Insurance Company for fraud. Recommendations of the Hearing and Review Boards are only advisory and are not binding on this court. In re Polito, 132 Ill.2d 294, 300, 138 Ill.Dec. 298, 547 N.E.2d 465 (1989); In re Alexander, 128 Ill.2d 524, 534, 132 Ill.Dec. 454, 539 N.E.2d 1260 (1989); In re Anglin, 122 Ill.2d 531, 538, 120 Ill.Dec. 520, 524 N.E.2d 550 (1988). As a general matter, we defer to the Hearing Board and its assessment of the testimony presented in that forum. As the Administrator notes in her exceptions, however, the Hearing Board made several negative findings under the criteria listed in Rule 767 yet went on to explain that each adverse finding by itself was insufficient to bar the petitioner's reinstatement. Perhaps the principal justification for the favorable recommendations by the Hearing and Review Boards arises from the passage of time since the petitioner's misconduct and the perception that no amount of wrongdoing should, by itself, forever preclude a lawyer's reinstatement. *50 A majority of the Hearing Board gave voice to these notions in recommending the petitioner's reinstatement. Both of these propositions are false, however. "[T]he mere passage of time is not a sufficient ground for reinstatement * * *." In re Thomas, 76 Ill.2d 185, 193, 28 Ill. Dec. 531, 390 N.E.2d 890 (1979). Moreover, this court has stated that some misconduct will be sufficient to forever bar a lawyer from reinstatement. "Clearly, there are certain infractions that are so serious that the attorney committing them should never be readmitted to the practice of law." In re Rothenberg, 108 Ill.2d 313, 326, 91 Ill.Dec. 730, 484 N.E.2d 289 (1985). In short, there is no presumption in favor of reinstatement, and here the burden remains on the petitioner to demonstrate, by clear and convincing evidence, that he should be reinstated to the practice of law. He has not done so. For the reasons stated, the petition for reinstatement is denied. Petition denied. Justice BILANDIC took no part in the consideration or decision of this case. Justice McMORROW, dissenting: Although, as the majority observes, this court is not bound by the recommendations of the Hearing and Review Boards in deciding the disposition of a petition for reinstatement (see In re Parker, 149 Ill.2d 222, 233, 172 Ill.Dec. 188, 595 N.E.2d 549 (1992)), the factual findings of the Hearing Board are entitled to deference because the Board "is able to observe the demeanor of witnesses, judge their credibility and evaluate conflicting testimony" (In re Fleischman, 135 Ill.2d 488, 496, 142 Ill. Dec. 838, 553 N.E.2d 352 (1990)). Based on the Hearing Board's factual findings with respect to the Rule 767(f) factors in this case, I cannot agree with the majority's rejection of the Hearing and Review Boards' recommendations that petitioner be reinstated to the practice of law. In my view, the majority fails to afford the proper deference to the factual findings of the Hearing Board. In support of its decision to deny petitioner's request for reinstatement, the majority relies on petitioner's "delay in making restitution for the additional bribes to the State Farm adjusters" and his "failure to remove himself from the milieu that fostered his earlier misconduct." The majority's use of these facts to support denial of the petition for reinstatement is at odds with the Hearing Board's findings. The Hearing Board found no delay in petitioner's payment of restitution to Wausau. He paid Wausau $40,000 in 1992. Also, although petitioner waited until 1998 to donate $1,200 to charity as compensation for his bribes to State Farm adjusters, the Hearing Board found that this $1,200 was not restitution in a "strict sense" and that petitioner was not required to pay this amount until after August 1996. Moreover, petitioner testified that he did not pay the $1,200 sooner because he was unsure to whom to make payment. The Hearing Board found petitioner's testimony "honest, sincere and credible." Similarly, the Hearing Board found no impropriety associated with petitioner's present employment relationship with medical providers to whom he had previously referred business. According to the Hearing Board, these relationships were unrelated to petitioner's previous misconduct, and petitioner provided these medical providers with a legitimate collection service. In light of these findings by the Hearing Board, the majority's reliance on the delay in petitioner's payment of restitution and his relationships with certain medical providers as reasons to deny the reinstatement petition is not appropriate. See In re Silvern, 92 Ill.2d 188, 194-95, 65 Ill.Dec. 272, 441 N.E.2d 64 (1982) (delay in payment of restitution should not be used to defeat petition for reinstatement where delay caused in part by petitioner's inability to remember identity of insurance companies affected by his fraudulent activity). *51 I also believe that the majority fails to give adequate consideration to the Rule 767(f) factors that show petitioner's good character and rehabilitation. The Hearing Board found that the petitioner's misconduct was extremely serious and that he was an experienced attorney when it occurred. These two Rule 767(f) factors are unfavorable to petitioner's request for reinstatement. However, the Hearing Board's findings with respect to the remaining four factors indicate that reinstatement is nevertheless appropriate. The Hearing Board determined that the petitioner was credible, had recognized the nature and seriousness of his misconduct, and had expressed remorse for his actions. In addition, the Hearing Board found that the petitioner had made restitution by paying Wausau $40,000 and by giving $1,200 to a charity. According to the findings of the Hearing Board, the petitioner also had been candid and forthright in presenting evidence in support of his petition, and his conduct since his disbarment demonstrated his good character. He had overcome his drug addiction and had not used illegal drugs since 1990, he had been gainfully employed since his release from prison, he had performed charitable work, and he had provided extensive care and support for his mentally ill wife and son. Although petitioner's misconduct was indeed serious, the Hearing Board's findings demonstrate that petitioner presented clear and convincing evidence of his good character and rehabilitation. Accordingly, reinstatement is appropriate. See, e.g., Fleischman, 135 Ill.2d at 497, 142 Ill.Dec. 838, 553 N.E.2d 352 (finding sufficient proof of rehabilitation despite the petitioner's bribery of public officials and 20 years of experience as an attorney); In re Berkley, 96 Ill.2d 404, 410-11, 71 Ill.Dec. 694, 451 N.E.2d 848 (1983) (finding sufficient proof of rehabilitation even though the Hearing Board had characterized the petitioner's misconduct as "so bad that it could scarcely be worse"). I would grant the petition for reinstatement and respectfully dissent from the majority's refusal to do so. Justice FREEMAN joins in this dissent.

213 F.2d 786 UNITED STATESv.ONE 1952 LINCOLN SEDAN, MOTOR NO. 52LP22535H (MERCHANTS NAT. BANK OF MOBILE, Intervenor). No. 14897. United States Court of Appeals, Fifth Circuit. June 4, 1954. Jesse W. Shanks, Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellant. James L. May, Jr., Mobile, Ala., McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, Ala., of counsel, for appellee. Before HUTCHESON, Chief Judge, and HOLMES, and BORAH, Circuit Judges. BORAH, Circuit Judge. 1 The United States has appealed from the dismissal by the court below of the libel filed against a 1952 Lincoln Sedan for forfeiture, because of its use in violating the provisions of Section 3116 of the Internal Revenue Code, 26 U.S.C.A. § 3116. The district court, after a hearing, filed its findings of fact and conclusions of law and entered its judgment dismissing the libel and directing that the seized automobile be restored to the possession of the claimant Merchants National Bank of Mobile, Mobile, Alabama, and to purchaser Kenneth A. Fernandez jointly. The district court found that on December 8, 1952, the Lincoln Sedan was being used as a convoy or decoy car for one 1950 Ford Pick Up Truck, which was transporting 150 gallons of non-tax paid whiskey in one gallon jugs on which no stamps were affixed denoting the quantity and evidencing the payment of revenue taxes; that in addition to being used as a convoy or decoy car the Lincoln Sedan was used to block the federal officers' pursuit of the offending truck with the intent and purpose to aid the truck driver to escape with the non-tax paid whiskey. 2 The trial court found among other things the following: 3 "The Court finds as a fact that at no time did the Lincoln car here in controversy ever offend in any way, except as a convoy or decoy car, or aiding and abetting in the commission of a crime, when it undertook to interfere with the arrest of the truck that was being pursued. 4 "The Court finds as a fact that when Officer Barcus was pursuing the truck containing the liquor that Officer Barcus used his siren and that the driver of the Lincoln car, W. P. Fernandez, knew he was being pursued by the officer and that his purpose in blocking or attempting to block, as much as he could, the progress of the officer was to aid the truck in its efforts to escape. This Lincoln car on two other occasions had followed this same truck, but there is no evidence as to whether this truck was on those two occasions conveying whiskey, though the fair inference is, from all of the testimony, that it was conveying whiskey and that the Lincoln was watching the truck." 5 The conclusions of law of the district court were thus stated: 6 "1. The Court concludes as a matter of law that the Lincoln automobile here in controversy is not subject to forfeiture; that it was not violating any of the laws which would bring it within the statutes which require the forfeiture of an automobile or other vehicle. The case is governed by a recent decision of the Supreme Court of the United States and by the recent decision of the Court of Appeals of the Fifth Circuit, being the case of Graham Motor Company, wherein it was held that the automobile in that case was aiding in the manufacture of whiskey at a still in that it gave sounds and warnings to the operators of the still that the officers were there present and proceeding toward the still, and did aid and permit the offenders at the still to escape. The Court, in that case, held that the car, while sounding the warning, was not forfeitable, upon the theory that it was simply aiding and abetting and was not concealing any of the forbidden articles. 7 "2. The Court concludes as a matter of law that if the Court is wrong that the automobile should not be forfeited, and that if, as a matter of law, under the facts as found herein, the Lincoln car is to be forfeited, then the claim of the Merchants National Bank of Mobile, as Intervenors, must be denied for the reason that it failed to make inquiry of the officers mentioned in the Federal Statute, and when it fails to make inquiry and to receive a negative answer, it then assumes the risk, and if the purchaser of the automobile does have a reputation, even only with the policemen, still the Court is without jurisdiction to remit the forfeiture. 8 "So, that in the case now before the Court, the Court will dismiss the libel and direct that the Lincoln automobile be returned to the Merchants National Bank of Mobile and to Kenneth Fernandez jointly; and that no cost be taxed in the case." 9 In our opinion, the district court committed reversible error in dismissing the libel. Its view of the applicable law was based upon the erroneous belief that the case of United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622, and our opinion in United States v. Jones, 5 Cir., 194 F.2d 283, were controlling and compelled the conclusions that the automobile was not forfeitable under the provisions of Section 3116 of Title 26 U.S.C.A. This section in pertinent part, authorizes the seizure and forfeiture of "property intended for use in violating * * * the internal-revenue laws, or regulations prescribed under such * * * laws, or which has been so used, and no property rights shall exist in any such liquor or property. * * *" 10 In United States v. Lane Motor Co., supra, the district judge found that the truck and automobile there involved had each been used by the operator of an illegal distillery to drive a number of miles from his home to a point one-half mile or more from the distillery, the operator walking from that point to the distillery. The district judge also found that the Government had not shown, as it had alleged, that the vehicles had been used for transporting raw materials, utensils, and vessels for use at the distillery, and ruled that the facts shown did not justify a forfeiture. The Court of Appeals for the Tenth Circuit affirmed and the Supreme Court granted certiorari and affirmed the judgment. In a short Per Curiam opinion the Supreme Court stated the facts as we have set them out and said: "We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws." But this decision is not dispositive of the issue here for the reasons which the Court of Appeals for the Tenth Circuit carefully pointed out in its opinion.1 We quote approvingly from that decision the following: 11 "The statute brings within its sweep automobiles used in transporting raw materials or supplies intended for use in the operation of a distillery in violation of the revenue laws; automobiles used in transporting the finished contraband from such a distillery; and automobiles used as lookouts in convoying other vehicles employed in transportation of that kind. United States v. One 1948 Plymouth Sedan, 3 Cir., 198 F.2d 399. But neither of the vehicles involved in these actions was used for any of those purposes. No raw materials or supplies intended for use in connection with the operation of a distillery in violation of law were transported in either of these vehicles. No finished product of such a distillery was transported in them. They were not employed for lookout purposes in convoying other automobiles used for transportation of that kind. Neither of them was otherwise used as an instrumentality in the operation of the illicit distillery. And there was no showing whatever that either of them was intended for any of such uses. They were merely employed as a convenient and conventional means of transporting the operator of the distillery from his home to a point quite removed from the site of the distillery. An automobile used only for that purpose, and bearing no other actual or intended relation to the operation of an illicit distillery or in furtherance of the illegal activity inhering in its operation, is not subject to seizure and forfeiture under section 3116. United States v. One Ford Coach 1949 Model, 4 Cir., 184 F.2d 749; United States v. One 1948 Plymouth Sedan, supra. * * *" 12 The Court of Appeals for the Third Circuit in United States v. One 1948 Plymouth Sedan, 198 F.2d 399, 400, held in accord with the Tenth Circuit. There the sole question for determination was whether the automobile which was used only to transport the operator of an illegal whiskey still to and from his work was property intended for use in violating the Internal Revenue Laws. In considering this question the court said: 13 "In construing 26 U.S.C.A. § 3116, courts have uniformly predicated forfeiture of automobiles on evidence that they have been intended for use in carrying supplies, raw materials, lookouts employed in convoying other loaded vehicles,[6] or the finished contraband product. Throughout many of the decisions recurs the ruling that a car, used to transport materials intended for use in violating the internal revenue laws, is itself property used or intended for use in violating such laws. The `convoy lookout' cases, resolved in favor of the United States, present another aspect of the problem. See, for example, United States v. One 1950 Model Willys Jeep, D.C.W.D.S.C., 91 F.Supp. 822. * * *" 14 "[6] United States v. One 1950 Model Willys Jeep, DC.W.D.S.C., Greenville Div., 91 F.Supp. 822. Compare United States v. One Plymouth Sedan, 3 Cir., 135 F.2d 922, affirming D.C.E.D.Pa., 45 F.Supp. 461, and United States v. One Studebaker Sedan, D.C.E.D.Pa., 56 F.Supp. 809, with United States v. One Dodge Sedan, 3 Cir., 113 F.2d 552 and United States v. One Dodge Sedan, D.C.D.Cal., 28 F.2d 44." 15 In Kent v. United States, 5 Cir., 157 F.2d 1, we sustained a judgment of forfeiture of a truck which had been libeled under Section 3116 for forfeiture because of intended use in violation of revenue laws relating to selling liquor at wholesale without registering, paying special tax and keeping required records, although there actual wholesale lot transactions had previously been made, and the government contended that the transaction in progress at the time of seizure was similar. 16 Section 3116 authorizes forfeiture on proof merely of intent to commit a crime. As we stated in Anderson v. United States, 5 Cir., 185 F.2d 343: "The plain meaning of this section is that the violation or intended violation of any valid internal revenue law or regulation relating to spirituous liquors gives rise to its operation and any property such as an automobile which is used or intended to be used in such violation is forfeitable thereunder. Kent v. United States, 5 Cir., 157 F.2d 1; United States v. Windle, 8 Cir., 158 F.2d 196; One 1941 Buick Sedan v. United States, 10 Cir., 158 F.2d 445; United States v. Ganey, 5 Cir., 183 F.2d 273." The statute does not place any express limitation on the manner in which property intended for use in violation of the revenue laws is employed nor does it require in terms that the liquor be transported in the automobile. We think it a justifiable interpretation of the statute to include in its forfeiture provisions an automobile used as a lookout in convoying another vehicle transporting contraband, and so hold. Our opinion in United States v. Jones, supra, involved a wholly different factual situation and is not to the contrary. 17 The judgment of the district court is Reversed; and it is ordered that the decree of forfeiture of the automobile against which the libel was filed be entered as prayed in the libel filed by the United States Attorney and that the claim of the intervenor be denied for the reason that the court was without jurisdiction to remit the forfeiture. Notes: 1 United States v. Lane Motor Co., 10 Cir., 199 F.2d 495 18 HUTCHESON, Chief Judge (dissenting). 19 With deference I cannot agree with the opinion of the majority that Section 3116 renders forfeit an automobile used by its owner as a convoy, look out, decoy, or lure to facilitate his successful transportation in other vehicles of liquor or other contraband, by helping them elude pursuit, when there is no proof whatever that the automobile was an in rem violator in the sense of hauling, concealing, or otherwise harboring contraband. 20 To me it seems clear that in rejecting the conclusions of the district judge and the reasoning on which they are based, that it was not so forfeit, the majority is but seeking to breathe new life into a mistaken conception which had considerable district court and some appellate backing until its ghost was laid in United States v. Lane Motor Co., 344 U.S. 630, 74 S.Ct. 459, 97 L.Ed. 622. There, it seems to me, the court in and by its very laconicism made clearer than a multitude of words could have done the true meaning and effect of Section 3116 when viewed as the instrument and means of forfeiture. This is that, in joining "liquor" and "property" intended for "use", subject to forfeiture, the statute deals with liquor and property alike as a res, which, having itself offended against, became forfeit to the law and subject to be declared forfeit in an in rem proceeding. It does not deal with it as, or provide that it becomes, subject to forfeiture because of the personal wrongful activities and wrong doings of its owner or driver. On the contrary, in the case of a car, the forfeiture provided for follows automatically from its in rem use, that is from the use of the car to handle, haul, remove or conceal contraband, wholly independently of the intention or knowledge of the driver, custodian, or owner, that the car is being or has been so used. This being so, it must, I think, be conceded that if the car is not so used, the fact that in committing a crime, the owner or driver of the car used it in aid of his criminal activities, such as going to and returning from the scene of his crimes, aiding others in the commission of a crime as a look out, or otherwise, or using it as an escape vehicle, cannot, under Section 3116, be imputed to the car so as to make it an in rem violator of the Internal Revenue laws, and, therefore, forfeit. 21 As clearly pointed out by the majority in United States v. Dixon, 347 U.S. 381, 74 S.Ct. 566, 98 L.Ed. ___, a case dealing with the possession of contraband and, therefore, forfeited articles, Sec. 3116 has two aspects, each distinct from the other. One of these is its aspect as an in rem or civil statute of forfeiture, making the in rem violator forfeitable in rem. The other is its aspect as an in personam criminal statute, denouncing a criminal offense and making the offender liable personally for it. 22 With deference, it seems to me that the opinion of the majority in this case and the inability of the minority in the Dixon case to go along with the opinion of the majority in that case proceeds from the failure to give effect to the distinction between the civil and criminal sanctions imposed by Sec. 3116. The civil sanctions fixed for the in rem violation of the act are automatically imposed upon the in rem violator. The criminal sanctions fixed for personal violations of the act are imposed upon the person intentionally violating it. 23 I think the judgment should be affirmed, for the reasons given by the district judge. I dissent from the reversal of his judgment.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0424-16T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME WRIGHT, a/k/a JAHID RICHARDSON, JEROME A. TOWNS, PETEY, E'KIM MOORE, ANTHONY KING, ERIC LASURE and DAMON TUCKER, Defendant-Appellant. ____________________________________ Submitted October 23, 2017 – Decided November 20, 2017 Before Judges O'Connor and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-04-0309. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM  Defendant Jerome Wright appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm. In 2013, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and two counts of first- degree robbery, N.J.S.A. 2C:15-1(a)(1). He was sentenced to a thirty-nine year term of imprisonment in the aggregate, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c). Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. See State v. Wright, No. A-5627-12 (App. Div. Nov. 20, 2013). The facts underlying defendant's convictions are as follows. Defendant approached a woman on the street in Paterson, pointed a gun to her back, and instructed her to get down and turn over what she had in her possession. The victim complied, giving defendant her wallet and car keys. Minutes later, defendant approached a couple, took out his gun, and told them to get down and turn over what they had in their possession. The woman gave defendant her purse. The man, an off-duty police officer, reached for his gun but defendant shot him. The victim subsequently died from his wounds. Upon his 2 A-0424-16T4 apprehension, defendant confessed to committing the robberies and firing the gun that killed the male victim. In 2015, defendant filed a PCR petition. As for those contentions relevant to the issues on appeal, defendant claimed plea counsel failed to find witnesses that could have provided exculpatory testimony. After he was assigned counsel, defendant submitted a certification stating he had advised plea counsel there was an individual who "would have provided an alibi." Defendant did not elaborate upon how such individual could have aided him in his defense. PCR counsel submitted a certification stating defendant gave him the name of an alleged alibi witness. Counsel contacted the witness, who informed counsel she had "alibi information." She mentioned she had not been contacted when the underlying case was still pending. The witness advised counsel she would meet him in his office to disclose the information she possessed, but she never showed up. Counsel reached out to the witness but she never responded to his requests to contact him. While the matter was pending before the PCR court, defendant never produced a certification or affidavit from the witness setting forth the exonerating information she possessed. On July 25, 2016, the PCR court entered an order denying defendant's petition for post-conviction relief. 3 A-0424-16T4  On appeal, defendant presents the following argument for our consideration. POINT I – DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST- CONVICTION RELIEF. A. Counsel Was Ineffective For Failing To Conduct A Minimally Adequate Pretrial Investigation Resulting In The Failure To Call An Alibi Witness To Assist In His Defense. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment to the United States Constitution was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test. The first prong requires defendant to prove counsel's performance was deficient and he or she made errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment. Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. The second prong requires defendant to prove the defect in performance prejudiced defendant's rights to a fair trial and there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have 4 A-0424-16T4 been different." Ibid. If a defendant has pled guilty, the second prong requires defendant to show "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We conclude our decision in State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999) is dispositive of defendant's argument. In Cummings, we rejected the defendant's claim his counsel had been ineffective for failing to pursue an alibi defense, because the defendant's allegation was unsupported by any corroborating affidavits or certifications from any witness attesting to the alibi. Here, for the same reason, we reject defendant's claim. Defendant has not even identified what the alibi defense is, let alone submitted the appropriate verification of its existence. Defendant's bald assertion there is an alibi is insufficient. Accordingly, he failed to make a prima facie showing of ineffectiveness of trial counsel sufficient to satisfy the Strickland-Fritz standard. Affirmed. 5 A-0424-16T4 

285 F.2d 109 UNITED STATES of America, Appellant,v.George W. EDWARDS, Jr., Appellee. No. 18338. United States Court of Appeals Fifth Circuit. Dec. 19, 1960. 1 Elizabeth Dudley, Roger P. Marquis, Attys., Dept. of Justice, Washington, D.C., Perry W. Morton, Asst. Atty. Gen., Paul N. Brown, U.S. Atty., Tyler, Tex., for appellant. 2 C. A. Brian, Marshall, Tex., Thomas Fletcher, Houston, Tex., Franklin Jones, Sr., Marshall, Tex., Jones, Brian & Jones, Marshall, Tex., of counsel, for appellee. 3 Before CAMERON and BROWN, Circuit Judges, and HANNAY, District Judge. 4 HANNAY, District Judge. 5 This is an action against the United States, the Secretary of Agriculture, and several individuals and corporations, regarding a three-fourths mineral interest in 260.518 acres of land in Harrison County, Texas. 6 The District Court, after a trial without a jury, ordered the execution of a quitclaim deed to the appellee covering said maineral interest. 7 In 1936, the United States acquired by purchase the fee simple title to 1,315.34 acres of land in Harrison County, Texas, in connection with the administration of the Farm Resettlement Program. Before 1950, this program was placed under the administration of the Farmers Home Administration. The lands thus acquired were made part of the Sabine Farms Project, and were divided into small tracts which were given unit numbers. The property here involved consisted of two tracts totaling 260.518 acres, which were designated Units 28 and 29. In 1944, the Government began selling some of the property in the Sabine Farms Project, reserving three-fourths of the oil, gas, coal, and other mineral rights in the land. By mesne conveyances title to Units 28 and 29 vested in appellee on September 16, 1949, the one-fourth mineral interest which was included in the original conveyance from the United States having been leased by his predecessor in title on July 10, 1945, to the Union Producing Company. 8 On May 1, 1950, the Government leased its three-fourths interest in the minerals in this property to Wilbert G. Crain together with other lands in the area, on a 12 1/2 percent royalty basis. In April 1951, Crain assigned the lease to Union Producing Company. In February, 1955, a well, referred to in the record as the 'Adkins' well, was completed as a producing gas well on a tract about 3,700 feet from appellee's property. In March 1955, the drilling of a well was commenced on Units 28 and 29, known as the George Edwards, Jr. No. 1 well, which was completed as a producing gas well about May 1, 1955, and has been operated as a producing gas well ever since. 9 The 'Adkins' well had about four effective feet of sand, and the 'Edwards' had about seven and one-half effective feet of sand. 10 On February 15, 1955, appellee conveyed his one-fourth mineral interest to Lamar Neill, for a consideration at the rate of $50.00 per acre. On February 8, 1955, appellee submitted an application and offer to purchase the reserved mineral interests on form FHA-990 for $1,465.37. He had been notified in March, 1951, by the Farmers Home Administration that he, as record owner of the surface rights of Units 28 and 29, was entitled to purchase the three-fourths reserved mineral interest under that land at its fair market value. On April 10, 1955, Walter T. McKay, State Director of the Farmers Home Administration, advised appellee, on form FHA-991, that his application to purchase the minerals was accepted but that his offer was rejected, since it had been determined that the fair market value of the reserved mineral interest was $2,930.84. On the same form, McKay further advised appellee: 11 'If you desire to submit an offer in that amount the same will be acceptable if it reaches this office by May 10, 1955. The subsequent offer, if any, should be made in duplicate on the attached forms through our office at Sabine Farms, in Harrison County, Texas.' 12 On April 25, 1955, appellee completed and executed an instrument in writing on a form furnished by the FHA entitled 'Subsequent Offer to Purchase Reserved Mineral Interests in Fair Market Value Areas,' under the terms of which appellee agreed to pay the Government $2,930.84 in cash for the reserved mineral interest under Units 28 and 29, and obtained from the First National Bank of Marshall, Texas, a bank draft drawn by that bank on a Dallas, Texas bank and payable to the Treasury of the United States in the amount of $2,930.84. McKay refused to accept both the offer and the draft. Appellee then returned to Marshall, Texas on or about April 25 or April 26, 1955, and tendered his said offer to pay the Government $2,930.84 in cash for said reserved mineral interest, together with the bank draft in the amount of $2,930.84, to one Walter Lee, who was then the Farm Management Supervisor of the FHA Sabine Farms Project in Harrison County, Texas, and in charge of its office at that project. Lee refused to accept the offer and the draft. Whereupon on April 26, 1955, appellee sent said offer and draft to McKay at his Dallas office by registered mail. Said offer and draft were received by McKay in his Dallas office on April 28, 1955. On May 23, 1955, McKay wrote the appellee a letter in which he returned appellee's said offer and draft and advised appellee that his offer to purchase said reserved minerals for the sum of $2,930.84 had been rejected because the offer of $2,930.84 was not the fair market value. 13 McKay testified at the trial that the reasons he refused to accept appellee's offer of $2,930.84 was because on or about April 21, 1955, he had read an article in the Dallas News about the Adkins well being a good producer and because payment for the purchase price of reserved mineral rights was not accepted until after the attorney for the FHA had prepared the necessary papers transferring the title to the reserved interest and such papers had been executed. 14 On April 10, 1955, when McKay advised the appellee that it had been determined that the fair market value of such minerals was the sum of $2,930.84, he had before him a report from the Harrison County FHA Committee and County Supervisor dated February 7, 1955, reporting that in their opinion the value of 100% Of the minerals under Units 28 and 29 was the sum of $50.00 per acre and also had before him a report from a firm of consulting geologists employed by the FHA to appraise the fair market value of the mineral estate under Units Nos. 28 and 29 and other units located in the Sabine Farm Project, which report stated that the fair market value as of April 1, 1955, of the minerals located under Units 28 and 29 was the sum of $15.00 per acre. The report of the consulting geologists, among other things, mentioned the fact that Units 28 and 29 were located near the Adkins well which had recently been completed as a gas producer. There is nothing in the record that shows or tends to show that the appellee ever said anything to McKay or any other Government representative that influenced McKay in evaluating the reserved mineral interest in question at the sum of $2,930.84. When the appellee was in McKay's office on April 25, 1955, as aforesaid, neither appellee nor McKay mentioned or discussed either the Adkins well or the George Edwards, Jr. No. 1 well. Although a drillstem test with favorable results of which appellee had knowledge had been run on the Edwards well on or about April 21, 1955, there is no showing in the record that McKay had any actual knowledge on April 25, 1955, of the drilling of the Edwards well. However, Lee, the Manager of the FHA Sabine Farms Project had knowledge that the Edwards well was being drilled from on or about the time the drilling of said well commenced. The drilling of the Edwards well having commenced prior to April 1, 1955, said well was in the process of being drilled at the time the consulting geologists made their report to McKay, above referred to. 15 The decisive question to be determined in this appeal is whether or not there was a valid contract entered into by the appellee and the Government whereby the Government became obligated to sell him the three-fourths reserved mineral interest in question. There is no question in this case but that McKay was duly authorized to sell the reserved mineral interest and that he had the authority and duty to determine the fair market value of said mineral interest and that he had the authority to accept the offer for the reserved mineral interest at the fair market value thereof. This McKay apparently did from the three sources above mentioned. With such information in mind, he made the counter-proposal to sell the said mineral interest to appellee for the sum of $2,930.84, which counter-proposal appellee duly accepted in writing on April 25, 1955 and tendered to the Government the sum of $2,930.84. Upon such acceptance and tendering by the appellee there came into existence a valid enforceable contract between appellee and the Government, under the terms of which the Government became obligated to sell the appellee the reserve mineral interest in question for the sum of $2,930.84 and convey same to him by quitclaim deed. 16 The Government's contention that the Texas Statute of Fraud renders the contract unenforceable is without merit. Article 3995, Title 65, Vernon's Civil Statutes of Texas, Annotated. So, also, is the contention that the word 'will' in the above quoted communication from McKay advising the appellee of what would be considered by him a fair market value should be considered as though it was 'may.' Airline Motor Coaches v. Guidry, Tex.Civ.App., 241 S.W.2d 203-209, (writ of error by Supreme Court of Texas overruled). 17 No different rule should be applied in determining whether or not there was a contract as between the Government and a private individual than would be applied between private individuals. United States v. Standard Rice Co., Inc., 323 U.S. 106, 111, 65 S.Ct. 145, 89 L.Ed. 104. 18 The Trial Judge was not out of line when he said in his memorandum decision: '* * * It is surprising and to some degree shocking that the Government is contending otherwise.' 19 McKay's counter-proposal to appellee was clear and unconditional and should be enforced. From what has been said, it is plain that the judgment of the trial court was right in ordering that the Government acting through the Secretary or his authorized delegate execute and deliver to appellee a quitclaim deed conveying to appellee all of the Government's title in and to the mineral interest in question upon the appellee paying to the Government the sum of $2,930.84, and adjudging that appellee recover of and from the Government and the Secretary the sum determined to be the amounts of revenue received by the Government from and after April 25, 1955, without interest, from the mineral interest in question, and is hereby 20 Affirmed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA John J. Lynch, : Appellant : : v. : No. 2467 C.D. 2015 : Submitted: April 1, 2016 Andrew L. Gittelmacher : BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: June 8, 2016 John J. Lynch, pro se, appeals a November 3, 2015, order of the Court of Common Pleas of Montgomery County (trial court) denying his petition seeking leave to proceed in forma pauperis in his civil action against Andrew Gittelmacher. After careful review, we determine that the trial court did not set forth sufficient reasons for denying Lynch’s petition as required by the Pennsylvania Rules of Civil Procedure. Accordingly, we vacate the trial court’s order and remand for further proceedings. By way of background, on or about July 2, 2015, Lynch filed a complaint against Gittelmacher in the Philadelphia County Court of Common Pleas raising allegations of harassment, assault, and threatening conduct by Gittelmacher. Lynch sought damages of $150,000 and an injunction directing that Gittelmacher have no contact with Lynch and remain a distance of 250 feet from Lynch. On October 13, 2015, Lynch filed a praecipe for entry of default judgment against Gittelmacher and a praecipe for writ of execution.  On October 19, 2015, Lynch filed a praecipe for writ of execution, together with a Petition to Proceed In Forma Pauperis (In Forma Pauperis Petition) in the trial court. In the writ of execution, Lynch sought to have the Montgomery County Sheriff levy Gittelmacher’s property; sell Gittelmacher’s interest in a house located at 3769 Ridgeway Road, Huntingdon Valley, Pennsylvania 19006, including its contents, furniture, appliances and all motor vehicles on site; and levy all of Gittelmacher’s vehicles stored in a garage belonging to Peter and Stewart Smith, located at 9351 Old Buselton Pike, Philadelphia, PA 19115. On November 3, 2015, the trial court held a hearing and denied Lynch’s request to proceed in forma pauperis. The trial court did not set forth any reasons, either in the order or during the hearing, for its denial. On November 18, 2015, Lynch appealed to this Court.1 On appeal,2 Lynch contends that the trial court abused its discretion by denying his In Forma Pauperis Petition with “‘no basis’ in law or in fact.” Appellant’s Brief at 13. In response, Gittelmacher argues, first, that Lynch’s appeal is moot because the judgment which Lynch sought to enforce through the praecipe for writ of execution has been vacated. Second, in the alternative, 1 Generally, this Court does not hear appeals in a civil action between two private individuals. Nevertheless, because Gittelmacher has not objected to our jurisdiction it is perfected. See Pa. R.A.P. 742(a) (“The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the last day under these rules for the filing of the record shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court[.]”). 2 This Court’s “scope of review of a trial court’s denial of an in forma pauperis application is limited to determining whether constitutional rights were violated, or whether the trial court abused its discretion or committed an error of law.” Bennett v. Beard, 919 A.2d 365, 366 n. 1 (Pa. Cmwlth. 2007). 2 Gittelmacher argues that this Court should adopt the analysis of the trial court in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion.3 First, we consider whether the trial court erred in dismissing Lynch’s In Forma Pauperis Petition without explanation. Pennsylvania Rule of Civil Procedure No. 240, which governs petitions to proceed in forma pauperis in civil actions, provides in relevant part: (b) A party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis. (c) … (3) Except as provided by subdivision (j)(2), the court shall act promptly upon the petition and shall enter its order within twenty days from the date of the filing of the petition. If the petition is denied, in whole or in part, the court shall briefly state its reasons. *** (j)(1) If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. 3 In its 1925(a) opinion, the trial court explained that Pennsylvania Rule of Civil Procedure 240(j)(1) grants the trial court discretion to deny a request to proceed in forma pauperis when the underlying petition is frivolous. See Trial Court opinion, 12/28/2015, at 4. The trial court concluded that Lynch’s writ of execution was defective and frivolous because it sought to execute on a default judgment entered in error, demanded that the Montgomery County Sheriff sell real property in violation of the Rules of Civil Procedure, and requested that property located in another county be attached. Id. 3 Pa. R.C.P. No. 240 (emphasis added). An order denying in forma pauperis status in a civil case is a final and appealable order because “[a] litigant who is denied the ability to bring a cause of action due to his true inability to pay the costs is effectively put out of court.” Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005). Here, the trial court did not provide a brief statement of its reasons for denying Lynch’s Petition as required by Pa. R.C.P. No. 240(c)(3). “A trial court’s belated 1925(a) opinion does not cure this problem, since the brief statement of reasons enables the party to correct any defects in the petition and the 1925(a) opinion does not.” Goldstein v. Haband Company, Inc., 814 A.2d 1214, 1215 (Pa. Super. 2002). Because the trial court did not provide a brief statement of its reasons at the time it denied Lynch’s Petition, we vacate the trial court’s order and remand the matter for further proceedings. In its 1925(a) opinion, the trial court stated that it denied Lynch’s In Forma Pauperis Petition on the basis of Pennsylvania Rule of Civil Procedure No. 240(j)(1). When a petition to proceed in forma pauperis is filed contemporaneous with the commencement of an action, Pennsylvania Rule of Civil Procedure No. 240(j)(1) permits a court “prior to acting upon the [in forma pauperis] petition” to “dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous.” Pa. R.C.P. No. 240(j)(1) (emphasis added). In its 1925(a) opinion, the trial court concluded that Lynch’s writ of execution was defective and frivolous, but it did not dismiss the writ, as authorized by Pa. R.C.P. No. 240(j)(1). Rather, it dismissed Lynch’s In Forma Pauperis Petition. Pa. R.C.P. No. 240(j)(1) is irrelevant to a dismissal of an in forma pauperis petition. 4  Finally, we consider Gittelmacher’s contention that this appeal is moot as a result of a January 27, 2016, order of the Court of Common Pleas of Philadelphia County vacating the judgment which Lynch sought to execute upon through the filing of the praecipe for writ of execution in the trial court. The present appeal concerns only the In Forma Pauperis Petition. The underlying matter – the praecipe for writ of execution – is still pending before the trial court. It is well established that an actual case or controversy must exist at all stages of appellate review, and that the courts of this Commonwealth will not decide moot questions. In re Gross, 382 A.2d 116 (Pa. 1978); Strax v. Department of Transportation, Bureau of Driver Licensing, 588 A.2d 87 (Pa. Cmwlth. 1991). Because we are vacating the trial court’s order and remanding this matter back to the trial court, we decline to address the mootness issue. For the above-stated reasons, we vacate the trial court’s order denying Lynch’s Petition for Leave to Proceed In Forma Pauperis and remand this matter to the trial court for further proceedings. _____________________________________ MARY HANNAH LEAVITT, President Judge 5  IN THE COMMONWEALTH COURT OF PENNSYLVANIA John J. Lynch, : Appellant : : v. : No. 2467 C.D. 2015 : Andrew L. Gittelmacher : ORDER AND NOW, this 8th day of June, 2016, the order of the Court of Common Pleas of Montgomery County dated November 3, 2015, in the above- captioned matter is hereby VACATED and the case is REMANDED for proceedings in accordance with the attached opinion. Jurisdiction relinquished. _____________________________________ MARY HANNAH LEAVITT, President Judge 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-6087 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TODD FEURTADO, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Solomon Blatt, Jr., Senior District Judge. (CR-95-669, CA-99-350) Submitted: June 21, 2001 Decided: June 28, 2001 Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Todd Feurtado, Appellant Pro Se. Cameron Glenn Chandler, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Todd Feurtado appeals three district court orders, the first denying relief on his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2000), the second denying his motion for a certificate of appealability, and the third denying his amended motion for a certificate of appealability. We have reviewed the record and the district court’s orders and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal sub- stantially on the reasoning of the district court.* United States v. Feurtado, Nos. CR-95-669; CA-99-350 (D.S.C. Aug. 25, 2000, Dec. 1, 2000 & Jan. 8, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED * We recently held in United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), that the new rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), is not retroactively applicable to cases on collateral review. Accordingly, Feurtado’s Apprendi claim is not cognizable. 2 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICHAEL R. FANNING, Plaintiff, v. Case No. 17-cv-00126 (CRC) SENECA ONE REALTY LLC, Defendant. MEMORANDUM OPINION Plaintiff Michael R. Fanning is the Chief Executive Officer of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers. He brought this ERISA action seeking to recover unpaid contributions to the fund along with prejudgment interest, liquidated damages, audit and attorneys’ fees, and litigation costs from Seneca One Realty, LLC (“Seneca One”). Despite being properly served, Seneca One has failed to respond to the complaint, the Clerk’s entry of default, and the Court’s Order to Show Cause why judgment should not be entered against it. Fanning now moves for default judgment. Finding that Seneca One is liable, the Court will grant the motion and enter judgment against the company in the amount of $8,343.87. I. Background Seneca One entered a binding collective bargaining agreement with Local No. 17 of the International Union of Operating Engineers (“Local 17”) for the work performed at One HSBC Center in Buffalo, NY. Compl. ¶¶ 2, 6; see also Pl.’s Mot. Entry Default J., Ex. B (Agreement between Seneca One and International Union of Operating Engineers). Fanning sues in his capacity as the Chief Executive Officer of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers (“Central Pension Fund”). Id. at ¶ 1. The collective bargaining agreement between Seneca One and Local 17 requires the company to pay contributions to the Central Pension Fund for hours worked by employees covered by the agreement. Id. at ¶ 7. The Central Pension Fund is an “employee benefit plan” and a “multiemployer plan” as those terms are defined under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1002 (“ERISA”). With these designations come certain obligations. Under ERISA and the Central Pension Fund’s Restated Agreement and Declaration of Trust (“Declaration”), Seneca One was obligated to self-report the number of hours worked by covered employees and make monthly contribution payments to the Central Pension Fund, which are calculated based on these hours. See Pl.’s Mot. Entry Default J. 3, 4. Specifically, the collective bargaining agreement requires Seneca One to pay the Central Pension Fund $2.15 per hour for every hour worked by a covered employee, effective as of January 1, 2012. See Pl.’s Mot. Entry Default J., Ex. B art. 16 Fanning alleges that from January 2013 to December 2015, Seneca One employed covered employees but failed to pay the corresponding, agreed-upon contributions to the Central Pension Fund. Compl. ¶¶ 7–9. The Declaration provides that an employer failing to make such payments is liable for the unpaid amount, liquidated damages of up to 20% of the unpaid amount, and interest at the annual rate of 9%, along with attorneys’ fees, audit fees, and applicable litigation costs. Compl. ¶¶ 10, 12, 19; see also Pl.’s Mot. Entry Default J., Ex. A at § 4.5 (Declaration). Fanning is entitled as a third-party beneficiary of the collective bargaining agreement to enforce these terms. See Pl.’s Mot. Entry Default J. 3. Seneca One was properly served on January 24, 2017. See Feb. 16, 2017 Return of Service, ECF No. 3. It did not respond to the complaint, and the Clerk of the Court entered default on February 17, 2017. See Feb. 17, 2017 Clerk’s Entry of Default, ECF No. 5. Fanning 2 now seeks a monetary default judgment against Seneca One, comprised of unpaid contributions, accrued interest, liquidated damages, audit fees, attorneys’ fees, and costs. Section 502(e)(2) of ERISA provides for federal jurisdiction “in the district where the plan is administered.” 28 U.S.C. § 1332(e)(2). Because the Central Pension Fund is administered in the District of Columbia, see Compl. ¶ 1, the Court may properly exercise jurisdiction over this case. II. Standard of Review The two-step procedure for requesting a default judgment has been set forth by this Court on multiple occasions. See, e.g., Boland v. Cacper Construction Corp., 130 F. Supp. 3d 379, 382 (D.D.C. 2015). A plaintiff first must request that the Clerk of the Court enter default against a party who has “failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The Court then decides whether an entry of default judgment is warranted. Fed. R. Civ. P. 55(b). Default judgment is available when “the adversary process has been halted because of an essentially unresponsive party.” Boland v. Elite Terrazzo Flooring, Inc., 763 F. Supp. 2d 64, 67 (D.D.C. 2011). “Default establishes the defaulting party’s liability for the well-pleaded allegations of the complaint.” Id. After establishing liability, the Court makes an independent evaluation of the damages award, which it has “considerable latitude” to determine. Id. The Court may hold a hearing if necessary or can rely on “detailed affidavits or documentary evidence” submitted by plaintiffs in support of their claims. Boland v. Providence Constr. Corp., 304 F.R.D. 31, 36 (D.D.C. 2014) (quoting Fanning v. Permanent Sol. Indus., Inc., 257 F.R.D. 4, 7 (D.D.C. 2009)). 3 III. Analysis A. Liability Plaintiffs filed this suit on January 19, 2017 to recover the damages prescribed by ERISA, the collective bargaining agreement, and the Declaration. See Pl.’s Mot Entry Default J. 1. Seneca One was timely served with a summons and the complaint on January 24, 2017, and the Clerk of the Court declared Seneca One to be in default on February 17, 2017. Id. On April 27, 2017, the Court issued an Order to Show Cause why judgment should not be entered for Plaintiff and set May 12, 2017 as the deadline for Seneca One to respond. Seneca One has failed to respond to the complaint, the Clerk’s entry of default, or the Court’s Show-Cause Order. Because the Clerk of the Court has entered default and Seneca One has failed to respond, the Court accepts Fanning’s well-pleaded allegations and holds that Seneca One is liable and that entry of default judgment is appropriate. See Elite Terrazzo Flooring, 763 F. Supp. 2d at 67. ERISA requires employers to make contributions to multiemployer plans “in accordance with the terms and conditions of” the relevant collective-bargaining agreements. 29 U.S.C. § 1145. The Declaration specifies that contributions are due by the last day of the month following the month in which the work was done. See Pl.’s Mot Entry Default J. 3; Decl. of Michael R. Fanning (“Fanning Decl.”) ¶ 10. It also provides that the Central Pension Fund’s “Trustees may, by their respective representatives, audit and examine the pertinent employment and payroll records of each Employer . . . whenever such examination is deemed necessary or advisable by the Trustees . . . .” Pl.’s Mot Entry Default J., Ex. A at 1 (Declaration). Plaintiff has submitted a payroll audit summary that shows Seneca One underpayed the Central Pension Fund by $3,097.44 between January 2013 and December 2015. See Fanning Decl. ¶ 11, Ex. C (Payroll Audit Summary). By failing to make the payments required by the Declaration, Seneca One is liable for damages. 4  The Court may enter default judgment when a defendant makes no request “to set aside the default” and gives no indication of a “meritorious defense.” Fanning, 257 F.R.D. at 7. Seneca One, as noted above, has not responded to the complaint since being served in January 2017. An entry of default judgment is therefore warranted against it. B. Damages Fanning must prove the damages to which he is entitled “to a reasonable certainty.” Elite Terrazzo Flooring, 763 F. Supp. 2d at 68. Under ERISA, employers are required to pay any delinquent contributions, interest on unpaid contributions at a rate determined under the plan, liquidated damages at a rate of up to 20 percent or an additional interest assessment at the rate provided under the plan (whichever is higher), and legal fees. 29 U.S.C. § 1132(g)(2). The Declaration entitles the Central Pension Fund to both liquidated damages and interest in the event that an employer fails to make the required contributions. See Pl.’s Mot. Entry Default J., Ex. A § 4.5(b–c). The Declaration also obligates employers to pay all costs and audit expenses incurred in enforcing its provisions. Id. at § 4.5(e). When a defendant has failed to respond, the Court must make an independent determination—by relying on affidavits, documentation, or an evidentiary hearing—of the sum to be awarded as damages. As support for the requested damages, Fanning has submitted a sworn declaration in support of his complaint, a payroll audit summary provided by the auditing firm Calibre CPA Group, PLLC, and a declaration from his attorney, R. Richard Hopp. The audit summary provides sufficient detail regarding the alleged underpayments: it classifies them by month and by employee, and includes a summary of the auditor’s findings regarding the underpayment. See Pl.’s Mot. Entry Default J., Ex. C. The auditor’s findings included instances of the employer failing to report new employees from date of hire, “omit[ing] hours last week worked,” omitting 5 overtime hours, and failing to report vacation paid upon termination. Id. at 1. According to the report, the underpayments from January 2013 to December 2015 total $3,097.44. Id. Central Pension Fund paid the auditing firm $2,200 to conduct the audit in September 2016. Fanning Decl. ¶ 10. The auditor’s report also calculates the total interest, accruing at 9% per annum, at $367.55. See Compl. ¶ 11; Pl.’s Mot. Entry Default J., Ex. D (Summary of Interest Calculations). This figure was calculated as of November 18, 2016, and the auditor indicates that additional interest accrues at the rate of $0.77 per day. Id. Therefore, because 238 days have passed since the November 18, 2016 calculation, an additional $183.26 is due in interest, for a total of $550.81. Seneca One is also liable for liquidated damages up to 20% of the delinquent amount. See Pl.’s Mot. Entry Default J.; Ex. C § 4.5(b). For the purposes of this motion, Fanning asks the Court to award liquidated damages equal to 15% of the unpaid contributions. See Pl.’s Mot. Entry Default J. 6. 15% of $3,097.44 (the delinquent amount) equals $464.62. Id., Ex. D (15% LD line item in summary table). The $2,200 cost of the audit is also covered by the Declaration and therefore owed to the fund. See id.; Fanning Decl. ¶ 10. Collectively, the unpaid contributions, $3,097.44; interest owed, $550.81; liquidated damages, $464.62; and audit expenses, $2,200, equal $6,312.87 in total damages. See Fanning v. Warner Center, 999 F. Supp. 2d 263, 266–67 (D.D.C. 2013) (finding that plaintiff was entitled to audit fee, interest, and liquidated damages by relying on declarations from CEO and attorney of record). C. Attorney’s Fees ERISA also requires defendants to pay a plaintiff’s reasonable attorney’s fees. See 29 U.S.C. § 1132(g)(2)(D). In support of the requested attorney’s fees, Fanning provides the 6 declaration of R. Richard Hopp, a partner at the law firm O’Donoghue & O’Donoghue LLP and Fanning’s counsel of record. See Pl.’s Mot. Entry Default J., Decl. of R. Richard Hopp (“Hopp Decl.”). Mr. Hopp states that he has extensive experience in labor and employee benefits law, having practiced in this field since joining this firm in 1991. Hopp Decl. ¶ 1. He notes that the firm worked 5.2 hours on this case, a standard amount for a case of this nature, at an hourly billing rate of $280, which is well below the usual rate for this work. Id. at ¶¶ 2–4. Given that the firm charged well below the market rates approved by courts in similar cases, the Court finds the rate to be reasonable. See, e.g., Boland v. Smith & Rogers Constr. Ltd., 201 F. Supp. 3d 144, 149 (D.D.C. 2016) (approving market rates of $590 and $615); Providence Constr. Corp., 304 F.R.D. at 37; Flynn v. Pulaski Constr. Co., 2006 WL 3755218, at *2 (D.D.C. Dec. 19, 2006). Hopp also includes a spreadsheet documenting the preparation and work included in the 5.2 billable hours. See Hopp Decl, Ex. A. Fanning is therefore entitled to receive a total of $1,456 in attorney’s fees. In addition, the litigation costs included a $400 filing fee and a $175 charge for service of process on Seneca One. See Hopp Decl., Exs. B–C (invoices documenting the expenses). Because this constitutes the type of “detailed . . . documentary evidence” on which courts may rely, the Court concludes that Fanning have justified the litigation hours and costs expended in this case. Accordingly, the Court holds that Fanning is entitled to $2,031 in attorney’s fees and costs. 7 IV. Conclusion For the foregoing reasons, the Court will grant Fanning’s Motion for Entry of Default Judgment. The Court will issue an Order consistent with this opinion. CHRISTOPHER R. COOPER United States District Judge Date: July 14, 2017 8 

101 F.2d 257 (1939) REYNOLDS SPRING CO. v. L. A. YOUNG INDUSTRIES, Inc. No. 7634. Circuit Court of Appeals, Sixth Circuit. February 7, 1939. *258 Otto F. Barthel, of Detroit, Mich. (Barthel, Flanders & Barthel, of Detroit, Mich., on the brief), for appellant. Otis A. Earl, of Kalamazoo, Mich. (Chappell & Earl, of Kalamazoo, Mich., on the brief), for appellee. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. This is an appeal from a decree of the district court overruling exceptions to a Master's report in an action of accounting for infringement of letters patent No. 1,058,285 issued April 8, 1913, to L. A. Young for upholstering spring construction and assigned by him to the appellee, L. A. Young Industries, Inc. The nature and value of the claims of the patent infringed are fully described in the former opinion of this court in an action between the same parties and reported in 6 Cir., 36 F.2d 150, and will not be repeated here. The accounting period covers the years 1923, 1924, 1925 and 1926. The defendant made and sold to its customers during this period, 1,843,927 spring structures embodying the claims of the invention and received therefor $1,527,427.58. It realized no profits from its venture but sustained a loss of approximately $250,000. The Master found that the appellant had made sales to the Ford Motor Company and the Chevrolet Motor Company of the device embodying appellee's invention which it otherwise would have made to these companies and as a direct result thereof appellee had been damaged in a large sum not determinable with accuracy. He also found that the case was one for a reasonable royalty under Section 70, Title 35, United States Code, 35 U.S.C.A. § 70, and that five cents on each of the spring seat constructions made and sold by the appellant was reasonable. He found that the appellee was entitled to recover $92,196.35 together with interest thereon in the sum of $28,152.70, a total of $120,349.05. Prior to August 22, 1919, the appellee, L. A. Young Industries, Inc., was engaged in manufacturing spring seat constructions and parts thereof for automobiles, vehicles and the like, under numerous letters patent and licenses, among which was the patent here in question which appellee owned. On that date it licensed Ford under all of its patents and licenses then owned or subsequently acquired, to manufacture for its own use in automobiles and parts thereof, spring seat construction or parts thereof, and also as a part of the license granted to Ford the right to use in said manufacture appellee's shop methods, machines, tools, fixtures, jigs and patterns. In consideration for said license Ford agreed to purchase from appellee a minimum of sixty percent of the total number of seat springs used in equipping its automobiles each year during the life of the agreement. If appellee was at any time incapacitated from furnishing seat springs as agreed, Ford was to do its own manufacturing during the period of incapacity, Young supplying the material up to the quantity then possessed or controlled by it, Ford to furnish the remainder. Ford cross-licensed the appellee to use any shop method, means, license or patents it owned or controlled for seat spring construction or any acquired during the life of the agreement. The licenses and assignments were nontransferable and neither party was authorized to grant or permit others to use, make or sell said construction or parts or use said shop methods. The parties mutually agreed to forever release each other from any claim or claims arising during the life of the contract for damages for infringement of any of the patents described in the agreement or others owned or later acquired or controlled by either of them. The life of the agreement was for such time as Ford should use in the manufacture and sale of its automobiles, said type of seat spring construction, covered by the patents specified and those granted Young while the agreement was in force. If the Ford Company should discontinue the use of such seat construction, the agreement became null and void. It was provided, however, that either party could terminate *259 the agreement on twelve months' written notice. Appellee was to be paid for each appliance manufactured by it and used by Ford in accordance with the schedule of prices attached and made a part of the agreement, subject to change with the fluctuation of the general market and by mutual agreement. Appellee, beginning December 12, 1922, entered into a contract with the Chevrolet Motor Company wherein it agreed to sell and the Motor Company agreed to buy from it at a stated price per unit two-thirds of its requirements for seat spring construction for the period from January 1, 1923, to July 1, 1923. On April 6, 1923, it entered into a similar contract for fifty percent of its requirements. The next three contracts covered sixty percent of Chevrolet's requirements, each being for a six-month period, the last expiring July 1, 1925. As a part of the sales agreement, appellee agreed to save harmless and protect the buyer, its successors and assigns, customers and users of its product against any claim or demand based upon infringement of any letters patent and defend at its expense any suits arising therefrom. Ford and Chevrolet obtained from appellee the requirements of their respective contracts and their remaining seat spring constructions from appellant, which were identical with those made and supplied by appellee. The Special Master, in his findings included in the number of spring structures on which he awarded a reasonable royalty, those supplied by appellant to the Ford and Chevrolet Companies. Appellant excepted to this finding but the lower court affirmed and approved this as well as all other findings of the Master. Appellant insists that it was an implied licensee insofar as it sold any devices embodying appellee's invention to the Ford and Chevrolet Companies. Appellee urges two procedural objections to this question being considered on this appeal, the first of which is that on the former trial in the district court it found that appellant was not an implied licensee and that error was assigned to that ruling on the former appeal to this court, and thus the law of the case was established. An examination of the record shows that error was assigned to the ruling of the district court, but the opinion of this court shows that it was not considered on appeal. It is a well-recognized rule that an appellate court on a second appeal may review and revise a conclusion reached on the first appeal, it becoming the law of the case only as to the lower court. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152; Lawrence-Williams Company v. Societe Enfants Gombault Et Cie, 6 Cir., 52 F.2d 774; United States v. Stevens, 8 Cir., 64 F.2d 853; Des Moines Terminal Company v. Des Moines Union Railway Company, 8 Cir., 52 F.2d 616. The second objection is that there is no pleading on behalf of appellant which would support evidence of an implied license. The Bill of Complaint is the conventional one in patent cases. Appellant's answer is a general denial of infringement and the validity of the patent, with an affirmative plea that appellee was guilty of laches and that appellant was a licensee of appellee under a patent for spring seat construction, other than the one in suit. In equity the proof must conform to the allegations, and the examination of the court is confined to the issues made by the pleadings. Providence Rubber Company v. Goodyear, 9 Wall. 788, 799, 804, 19 L.Ed. 566; Agawam Woolen Company v. Jordan, 7 Wall. 583, 610, 19 L.Ed. 177; Andrews v. Drake, 6 Cir., 83 F.2d 767; Lewis Teese et al. v. Huntingdon et al., 23 How. 2, 14, 16 L.Ed. 479; Ferguson Contracting Company v. Manhattan Trust Company, 6 Cir., 118 F. 791; Hitchcock v. American Plate Glass Company, 3 Cir., 259 F. 948; General Electric Company v. Continental Lamp Works, 2 Cir., 280 F. 846. It follows from this that where a license, express or implied, is relied on as a matter of defense to a bill of equity for patent infringement, the answer must set up the express license or if implied, the facts upon which predicated, and if not specifically plead, the defendant cannot avail himself of it, though the facts relating to it may appear in evidence. The contention of appellant that it was not required to affirmatively plead this defense because not affirmative, but a matter of mitigation of damages, is without merit. It claims an equitable interest in the patent and the proof shows that *260 practically all of the infringing devices on which the court awarded damages based on reasonable royalties were manufactured and sold by the appellant to the Ford and Chevrolet Companies. To permit it to go forward with such defense without a supporting pleading would lead to confusion and befog the issues the court must try and take the opposite party unaware. All reasonable means to simplify and narrow issues in controversy by the use of pleadings should be used. Such practice expedites the trial of cases and lessens the expense of litigation. Appellant further contends that appellee waived the insufficiency of its pleadings by not objecting to the introduction of evidence on the agreements it had with Ford and Chevrolet. An examination of the record shows that these contracts were not referred to in evidence except by immaterial questions on cross-examination by appellant's counsel before the case was closed by the Master. After the case was closed by both parties, the appellant for the first time argued before the Master its reliance on the implied licenses and thereupon appellee asked leave to reopen and introduce proof concerning its agreement with Ford and Chevrolet because of appellant's argument, which was done over the objection of appellant. This did not constitute a waiver. Duffin v. Lucas, 6 Cir., 55 F.2d 786. If proper issue had been joined, we are of the opinion that no implied contract of license arose from the circumstances under which appellee contracted with Ford or Chevrolet. The Ford contract recites that it was "desirous of making for its own use exclusively in the equipment of automobiles, parts and the like of its own manufacture" the constructions covered by appellee's patent, "to manufacture for its own use in automobiles, parts therefor and the like made by" such licensee "but for no other purpose," the said patented structures, and providing that such license was "non-transferable" and did "not authorize" the licensee "to license or grant or permit others to use, make or sell the said constructions." There is no ambiguity in this agreement and nothing can be spelled out of it or impliedly inserted in it authorizing Ford to transfer to another its right to manufacture under the patent without the consent of appellee. The express language of the contract limits the license to Ford. The agreement with Chevrolet was simply a buying order. No authority was given it to manufacture the devices on its own account. Appellant lays great stress on the fact that the two automobile manufacturers were desirous of establishing more than one source of supply due to labor difficulties, and that appellee knew this and when it agreed to a minimum number to be furnished by it to these companies it impliedly agreed that its device could be obtained and used by them for this purpose. In other words, its contention is that appellee dedicated the patent to the public beyond its minimum sales to Ford and Chevrolet for their use. This contention finds no support in either business custom or reason. As was said in Providence Rubber Company v. Goodyear, supra, 9 Wall. 793, "there are always those who are ready to gather where they have not sown." A second source of supply could have been acquired by Ford and Chevrolet through licensees of appellee which the evidence shows it was willing to grant. The agreement of appellee with Ford and its purchase order from Chevrolet are free from latent or patent ambiguities. It therefore follows that the court is without authority to construe either of them to impliedly license appellant to make use of appellee's patent, nor did appellee by its conduct grant to appellant implied licenses. Providence Rubber Company v. Goodyear, supra; Radio-Craft Company, Inc., v. Westinghouse Electric & Mfg. Company, 3 Cir., 7 F.2d 432; Westinghouse Electric & Mfg. Company v. Tri-City Radio Electric Supply Co., 8 Cir., 23 F.2d 628; Standard Sanitary Mfg. Co. v. Arrott, 3 Cir., 135 F. 750; Westinghouse Electric & Mfg. Co. v. Cutting & Washington Radio Corporation, D.C., 5 F.2d 1004. Appellant, while conceding that the award to appellee should be measured by reasonable royalties, insists that the sum allowed is excessive and also assigns error to what it claims was the failure of the lower court to give due consideration to the evidence in the case of the practical utility of appellee's device as described in its patent, compared with changes made in it before being put to commercial use. It also assigns error to what it claims was *261 an omission by the Master, to deduct from the value of appellee's invention, other inventions to which it was not entitled to compensation and which were a part of and contributed to the use of appellee's infringed device. Evidence is in the record on all of these questions and none of it tendered by the appellant was rejected by the Master and presumably all of it was weighed by him in reaching his conclusion. He fixed the rate of royalty not on the patented article but on the seat spring construction as a whole. Appellant urged the same matters before the District Judge on exceptions to the Master's report which were again considered and weighed. Appellant assigns errors separately but all resolve into a single issue. The findings of a Master when affirmed by the district court are presumptively correct and will not be set aside unless clearly erroneous. Camden v. Stuart, 144 U.S. 104, 119, 12 S.Ct. 585, 36 L.Ed. 363. In fixing damages on a reasonable royalty basis against an infringer, the sum allowed should be reasonable and that which would be accepted by a prudent licensee who wished to obtain a license but was not so compelled and a prudent patentee who wished to grant a license, but was not so compelled. In other words, the sum allowed should be that amount which a person desiring to manufacture and sell a patented article at a reasonable profit would be willing to pay. Horvath v. McCord Radiator & Mfg. Co., 6 Cir., 100 F.2d 326. Property loss of a patentee from infringement arises from such varying facts and circumstances that each case must be controlled by those peculiar to it and except in rare instances the loss can only be determined by reasonable approximation. Clark v. Schieble Toy & Novelty Company, 6 Cir., 248 F. 276. Appellant knowingly copied appellee's device, which had been in commercial use long before it began its simulation. This was a violent commencement and under such circumstances the court need not exercise meticulous care to avoid hardship on appellant. Appellee's patent covers a cushion base frame to be used in the manufacture of automobile cushion seats, with an inwardly opening curve for attaching the cushion cover or upholstering. A cross-section of the frame has the shape of the letter "S" to which the springs are affixed by clamping together the flanges of the inner groove, while the cushion covering is readily attached by closing or pinching together the flanges of the outer groove. The frame can be manufactured and bent into any desired shape, including corners, without destroying the effectiveness of these grooves for receiving the springs and covering of the cushion. The evidence shows conclusively that the springs and covering can be attached much more readily and economically than in other structures; that the covering is evenly and firmly held in place without strain or tearing as compared to tacking or other methods known to the previous art, and the flange which is pressed up to hold it in place is protected from wear against the sides and bottom of the car. Young was the first to conceive the idea of using a bead upon the edge of the cover and of confining this within the outer groove of the "S" frame and the adjacent springs within the inner groove by merely compressing the flanges, the cover thus being held by the narrowed opening rather than by surface friction. The extent of appellee's business and the success of this upholstery spring seat construction and its widespread and wellnigh universal use also clearly appear from the record. On October 29, 1924, appellee made a license contract covering the patent in question with Jenks & Muir, spring cushion manufacturers of Detroit, Michigan, on a royalty basis of fifteen cents a set or 7½ cents an article and another at five cents a set or 2½ cents an article. The variation in royalty rate was due to the size of the set, the lower rate being applicable to cars the type of Ford and Chevrolet. The license agreements do not support the sum fixed by the Special Master as royalty but that is not the only evidence to be weighed in arriving at the sum allowable. Appellee had made a very substantial profit out of the manufacture of the device covered by the patent. Appellant made all of its sales to customers of appellee and its competition was prosecuted with great vigor and at ruinous *262 prices. It sustained a loss of $256,760.72 in the operation of its infringing business. By its conduct it caused appellee to sell at a lower price and deprived it of profitable sales or royalties. It is impossible to measure appellee's lost profits or royalties with reasonable accuracy, due to the fault of appellant and it is in no position to complain of the determination by approximation of appellee's losses because of its infringement. The finding of the Master that a reasonable royalty was five cents on each seat spring construction made and sold by appellant is adequately supported by the evidence. W. S. Godwin Company v. International Steel Tie Company, 6 Cir., 29 F.2d 476; B. F. Goodrich Company v. Consolidated Rubber Tire Company, 7 Cir., 251 F. 617; United States Frumentum Company v. Lauhoff, 6 Cir., 216 F. 610. The Master awarded interest to appellee from the date of appellant's last infringement and was sustained by the district court. The decree of the district court was entered before the decision of the Supreme Court in Duplate Corporation v. Triplex Safety Glass Company, 298 U.S. 448, 460, 56 S.Ct. 792, 80 L.Ed. 1274; General Motors Corp. v. Dailey, 6 Cir., 93 F.2d 938, 942. Applying here the rule approved in that case, which is applicable to the facts, interest on the award should be calculated at the rate of five percent from February 8, 1933, until paid. Appellee has filed no cross-appeal, but nevertheless insists that we should increase the damages on the ground that the infringement of appellant was wilful. It is well established that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto on the appeal of the adverse party. In other words, appellee may not attack the decree with a view to enlarging his own rights thereunder. United States v. American Railway Express Company, 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087; Morley Construction Company v. Maryland Casualty Company, 300 U.S. 185, 193, 57 S.Ct. 325, 81 L.Ed. 593; Helvering v. Pfeiffer, 302 U.S. 247, 253, 58 S.Ct. 159, 82 L.Ed. 231. The decree of the district court is modified in accordance with this opinion and, as modified, is affirmed.

937 F.2d 338 68 Ed. Law Rep. 590 William J. ELLIOTT, Plaintiff-Appellee,v.William THOMAS, et al., Defendants-Appellants.Barbara PROPST, Plaintiff-Appellee,v.Morton W. WEIR, et al., Defendants-Appellants. Nos. 90-1168, 90-2093 and 90-2146. United States Court of Appeals,Seventh Circuit. Argued April 4, 1991.Decided July 15, 1991.Rehearing and Rehearing En Banc Deniedin Nos. 90-1168 and 90-2093Sept. 4, 1991. Daniel Kelly, Walter C. Carlson, Sidley & Austin, Chicago, Ill., for William J. Elliott. Judson H. Miner, Sharon M. Sullivan, Asst. Corporate Counsel, Kelly R. Welsh, Asst. Corporate Counsel, Bertina Lampkin, Ruth M. Moscovitch, Asst. Corporate Counsel, Appeals Div., Frederick S. Rhine, Asst. Corporate Counsel, Chicago, Ill., for William Thomas, Richard Cap, Robert J. Baker and Virgil Mikus. Robert Kirchner, Lerner & Kirchner, Champaign, Ill., for Barbara Propst. John W. Leskera, Dunham, Boman & Leskera, East St. Louis, Ill., for Donald L. Bitzer. Arnold F. Blockman, Jerome P. Lyke, Hatch, Blockman, McPheters, Fehrenbacher & Lyke, Champaign, Ill., James C. Kearns, Bradford J. Peterson, Heyl, Royster, Voelker & Allen, Urbana, Ill., for Morton W. Weir, Judith S. Liebman and Robert M. Berdahl. Michael M. Conway, Julie L. Gage, Hopkins & Sutter, Chicago, Ill., for Robert M. Berdahl. Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge. EASTERBROOK, Circuit Judge. 1 These cases present a common question of appellate jurisdiction: whether a court's refusal to grant summary judgment to a defendant who denies committing any wrong may be appealed immediately as a "collateral order" on the authority of Mitchell v. Forsyth, 472 U.S. 511, 524-29, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985). To state this question is to answer it. A defense of no wrongdoing is not collateral to the merits; it is the nub of the case. Accordingly, we dismiss two of the appeals. A third is within our jurisdiction, and we conclude that the defendants are entitled to qualified immunity as a matter of law. 2 William Elliott filed suit under 42 U.S.C. Sec. 1983 contending that the police beat him when they took him into custody. Elliott contends that the beating perforated his eardrum (leaving him with a partial loss of hearing) and broke several teeth. The defendants moved for summary judgment, submitting affidavits and medical records that, they contend, show that Elliott's injuries (if any) predated the arrest, and that he suffered no new hurt at their hands. The district court concluded that there is a genuine dispute about what happened to Elliott when he was arrested, and it set the case for trial. 1990 U.S.Dist. Lexis 711 (N.D.Ill.), 1990 WL 7125 (N.D.Ill.1990). The defendants have appealed. 3 Barbara Propst, formerly the Assistant Director of the Computer-based Education and Research Laboratory at the University of Illinois, sued under Sec. 1983 contending that her transfer to Assistant Dean in the College of Applied Life Sciences penalized her for speech that she believes protected by the first amendment. Propst reported to administrators of the University that Donald L. Bitzer, then Director of the Laboratory, had a conflict of interest because he was acquiring goods and services for the Laboratory through corporations in which he had an ownership interest. The University commissioned an audit, which interfered with normal activities of the Lab. The three officials responsible for Propst's transfer--Chancellor Morton W. Weir and Vice-Chancellors Judith S. Liebman and Robert M. Berdahl--contend that they acted to promote efficient operation in the Lab, impossible with the Director and his two chief aides (Barbara Propst and her husband Franklin, then Associate Director of the Lab) at each other's throats. Bitzer contends that he had nothing to do with the transfer--that he did not know of the Propsts' complaints, did not know why the University was running a detailed audit, and never asked higher-ups to do anything about the Propsts. The district court denied the defendants' motions for summary judgment, and all four have appealed. 4 * The defense of qualified immunity articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and amplified in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), gives public officials the benefit of legal doubts. An official who does not violate law "clearly established" at the time, 457 U.S. at 818, 102 S.Ct. at 2738, is entitled not only to prevail, but to prevail before trial. Qualified immunity, we know from Mitchell, establishes a right not to be tried. When rules of law clearly establish public officials' duty, the immunity defense is unavailable. So, too, the interlocutory appeal to vindicate the right not to be tried is unavailable when there is no legal uncertainty; there is no separate "right not to be tried" on the question whether the defendants did the deeds alleged; that is precisely the question for trial. 5 By sleight of hand you can turn any defense on the merits into a defense of qualified immunity. Consider this possibility for the police officers Elliott has sued: It was not "clearly established" in May 1986, when we arrested Elliott, that police officers could be liable for taking peaceable custody of a suspect; the district court proposes to hold a trial at which the only outcome favorable to plaintiff (given the uncontroverted evidence that Elliott suffered no injury) would be a holding that police are liable for making arrests that cause no injury; that would be a change of law, which we cannot be expected to forecast; therefore we are entitled to qualified immunity. The parenthetical expression carries the entire weight of this "argument": if you allow the possibility that the suspect will show injury at trial, then the defendants may be held liable under the law as it existed in 1986. So the claim to immediate appellate review collapses to the argument that the "right not to be tried" can be vindicated only if the court of appeals combs through the factual record. Yet that is miles away from the position of Harlow, Mitchell, and Anderson, which describe qualified immunity as a defense contingent on the state of the law. 6 To say that the question on appeal under Mitchell is the state of the law when the defendants acted is not to say that current law is irrelevant. Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), holds that a court of appeals may, sometimes must, answer the question whether it was clearly established on a given date that particular conduct violates the Constitution by replying: "Why, that is not established even today; if defendants did everything the plaintiffs alleged, still they did not violate the Constitution." Deciding just when it became "clearly established" that public officials could not do something that the Constitution allows them to do is silly. Our defendants do not say, however, that the Constitution today allows police to beat suspects, or allows university administrators to discriminate against business officials on account of speech. 7 Facts too play a role in Mitchell appeals. It is impossible to know which "clearly established" rules of law to consult unless you know what is going on. Auriemma v. Rice, 910 F.2d 1449, 1455 (7th Cir.1990) (in banc). Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), went overboard in holding that the court of appeals must look exclusively to the allegations of the complaint, so that it will not be tainted by the facts in assessing "clearly established" law. Unwin v. Campbell, 863 F.2d 124, 130-33 (1st Cir.1988), overrules Bonitz and holds that the court of appeals may consult the full record--viewed, as Fed.R.Civ.P. 56 requires, in the light most favorable to the party opposing the motion for summary judgment. Green v. Carlson, 826 F.2d 647 (7th Cir.1987), puts us on the side of Unwin, as is every other court of appeals. The fifth circuit flirted with Bonitz in Jefferson v. Ysleta Independent School District, 817 F.2d 303, 305 (5th Cir.1987), but retreated in Geter v. Fortenberry, 849 F.2d 1550, 1559-60 (5th Cir.1988). For a smattering of other cases see Brown v. Grabowski, 922 F.2d 1097, 1110-11 (3d Cir.1990); Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988); Poe v. Haydon, 853 F.2d 418, 425 (6th Cir.1988); DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988). 8 Yet the reason a court of appeals examines the facts is to determine whether it was "clearly established" at the time that such deeds were forbidden. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039. It would extend Mitchell well beyond its rationale to accept an appeal containing nothing but a factual issue. We have expressed concern that being too ready to entertain interlocutory appeals on immunity grounds would increase the expense plaintiffs must bear, and the delay they must endure, to vindicate their rights. Abel v. Miller, 904 F.2d 394, 396 (7th Cir.1990); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989). If a general defense on the merits supports interlocutory appeal, then every public defendant is entitled to pretrial appellate decision. Mitchell did not create a general exception to the finality doctrine for public employees. Every court that has addressed the question expressly has held that Mitchell does not authorize an appeal to argue "we didn't do it". Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir.1991); Ryan v. Burlington County, 860 F.2d 1199, 1203 & n. 8 (3d Cir.1988); Lion Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987); Velasquez v. Senko, 813 F.2d 1509, 1511 (9th Cir.1987). We join them. 9 Bitzer does not contend that he acted in the shadow of legal uncertainty. He submits, rather, that he did not know about and had nothing to do with the events of which Propst complains. His appeal, No. 90-2146, is unrelated to qualified immunity and is dismissed for want of jurisdiction. 10 The four defendants in Elliott's case make at least a stab at presenting a legal issue. Gumz v. Morrissette, 772 F.2d 1395, 1400 (7th Cir.1985), says that excessive force during an arrest violates the due process clause only if acts that shock the conscience produce severe injury. We overruled the subjective approach in Lester v. Chicago, 830 F.2d 706 (7th Cir.1987), in favor of the objective reasonableness standard of the fourth amendment. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), holds that Lester got it right. Titran v. Ackman, 893 F.2d 145 (7th Cir.1990), made it clear that Graham also abrogated the significant-injury component of Gumz--although not all courts agree with our conclusion. See Hudson v. McMillian, --- U.S. ----, 111 S.Ct. 1579, 113 L.Ed.2d 645 (1991), granting certiorari to review the significant-injury rule still enforced in the fifth circuit. See Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (in banc). Defendants contend that they were entitled to the benefits of Gumz when they arrested Elliott in 1986. The difficulty is that this legal debate has nothing to do with their defense--that they did not injure Elliott at all. If they punctured Elliott's eardrum without provocation, as Elliott contends, then Elliott recovers under any standard; if the defendants did nothing, as they say, then they prevail under any standard. Legal uncertainty plays no role. Moreover, Gumz had limited the circumstances under which persons could recover damages, which is distinct from defining lawful conduct. See Kurowski v. Krajewski, 848 F.2d 767, 774-75 (7th Cir.1988). No reasonable police officer would have thought that Gumz condoned cuffing a suspect in the ear (the act Elliott says punctured his eardrum). The only substantial questions are whether the officers did what they are accused of and, if they did, whether these acts injured Elliott. As such questions are outside our jurisdiction, we dismiss appeal No. 90-1168. II 11 The Chancellor and Vice-Chancellors of the University of Illinois knew about the Propsts' complaints. Unlike Bitzer, these three officials present a genuine immunity defense: that the law had not clearly established the impropriety of transferring a public employee whose speech created a disturbance undermining the productivity of other workers. Propst's constitutional claim depends on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), which establishes a balancing approach. Public employers may consider disruptive speech under some circumstances, but not all. Legal ambiguity in the wake of Pickering sets the stage for immunity. See Greenberg v. Kmetko, 922 F.2d 382 (7th Cir.1991); cf. Thulen v. Bausman, 930 F.2d 1209 (7th Cir.1991). 12 Berdahl contends that he began receiving reports that important members of the staff thought that the work of the Laboratory was in jeopardy and were looking for other employment. Two groups of employees visited Berdahl to voice their concerns about deteriorating relations between Bitzer and the Propsts. Weir received letters reporting that the Lab was in "bad shape". Weir, Berdahl, and Liebman submit that they decided that either Bitzer or the Propsts had to go if the Laboratory was to return to normal. When in the fall of 1987 the auditors submitted a report that the administrators interpreted as absolving Bitzer of any material conflicts, the administrators decided to move the Propsts. They transferred Barbara to an administrative position in the College of Life Sciences, and Franklin returned to the Physics Department, where he was a tenured professor. Neither transfer involved loss of pay or rank within the University. Such transfers, the administrators submit, are justified to deal with a demonstrated disruption in working conditions. E.g., Breuer v. Hart, 909 F.2d 1035, 1039-40 (7th Cir.1990); Knapp v. Whitaker, 757 F.2d 827, 842-43 (7th Cir.1985). At all events, they submit that this case is sufficiently close to the line that they are entitled to immunity--which "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). 13 Barbara Propst does not deny that the three administrators received reports of growing dissention, of diversion of time from the Lab's work, and of plans to leave unless something were done. She maintains, however, that conditions in the Lab were not nearly as bad as the administrators were led to believe (she submits that things were hunky-dory), that any disruption was caused by the audit rather than by conflict among the managers, and that the administrators' true intent was to retaliate on account of her speech rather than to facilitate the educational mission of the Laboratory. She demands additional discovery to pursue these avenues. 14 When denying the administrators' motion for summary judgment against Franklin Propst, the district court concluded that the cause and extent of breakdown in the Lab's functioning are genuine issues of material fact. The court adopted that reasoning without further elaboration in Barbara Propst's case. Yet the question is not what the conditions in the Laboratory were; it is what the administrators reasonably believed them to have been. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039; Davis v. Jones, 936 F.2d 971 (7th Cir.1991). Objectively reasonable but mistaken conclusions do not violate the Constitution. If we assume that the staffers who visited and wrote to the administrators were lying, this does not establish that the administrators' actions were unreasonable, given the information in their possession. Conditions in the Laboratory are not relevant; the inquiry must focus on what the defendants knew, and whether reasonable persons in their position would have believed their actions proper given the state of the law in 1987. 15 That conclusion takes us straight to Barbara Propst's second argument, and a conundrum. She wants discovery and a trial to probe the defendants' mental processes: did they really rely on the reports, as they say, or were they out to penalize her speech, as she suspects? Yet Harlow eliminated the subjective component from official immunity (formerly "good faith immunity", a telling phrase) because searching for intent and other components of knowledge blocks the use of immunity as a shortcut to decision. 457 U.S. at 814-19, 102 S.Ct. at 2736-38; Cleavinger v. Saxner, 474 U.S. 193, 208, 106 S.Ct. 496, 504, 88 L.Ed.2d 507 (1985). Official immunity creates a "right not to be tried"; yet if by arguing that the defendants acted with forbidden intent the plaintiff may obtain exhausting discovery and trial, the promise of a "right not to be tried" is a hoax. Carrying out the program of Harlow seems to imply attributing to the defendants the best intent they (objectively) could have under the circumstances, and asking whether the law at the time clearly establishes that persons with such an intent violate the Constitution. Yet that would be the functional equivalent of eliminating all recoveries when a mental state is part of the definition of the wrong--as it is in cases of racial discrimination, excessive punishment, and many other constitutional torts. E.g., Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (cruel and unusual punishments clause); Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (due process clause); Washington v. Davis, 426 U.S. 229, 238-48, 96 S.Ct. 2040, 2046-51, 48 L.Ed.2d 597 (1976) (equal protection clause). How is it possible simultaneously to preserve remedies for egregious wrongdoing and nip in the bud efforts to prolong the agony of defendants who are fated to win under Harlow? 16 Auriemma gives part of the answer. We rejected the invitation to impute to official actors the best motives they could have. Auriemma adopts the approach of Wade v. Hegner, 804 F.2d 67, 69-70 (7th Cir.1986), which distinguishes the role of intent in defining the violation from the role of intent in ascertaining whether particular conduct was clearly unlawful at the time. 910 F.2d at 1452-53. When intent is one of the substantive elements of a constitutional wrong, the plaintiff is entitled to an adequate opportunity to establish that the defendant acted with the proscribed intent. Whether the defendant knew of and defied the governing legal standards--that is, whether the defendant exhibited "good faith"--is irrelevant under Harlow. See also Rakovich v. Wade, 850 F.2d 1180, 1210 (7th Cir.1988) (in banc). Other courts of appeals follow the same approach. E.g., Hobson v. Wilson, 737 F.2d 1, 29-30 (D.C.Cir.1984). 17 What Auriemma and like cases leave unanswered is the question how it is then possible to comply with Harlow's directive that "[u]ntil this threshold immunity question is resolved, discovery should not be allowed." 457 U.S. at 818, 102 S.Ct. at 2738. The Supreme Court granted certiorari in Siegert v. Gilley to address that question but ducked, concluding that the plaintiff had not stated a claim on which relief may be granted. Although the Court avoided decision for the moment, we can not. Like Justice Kennedy, see Siegert, 111 S.Ct. at 1795 (concurring opinion), we think that the best solution to the conundrum is to require the plaintiff to produce "specific, nonconclusory factual allegations which establish [the necessary mental state], or face dismissal." Unless the plaintiff has the kernel of a case in hand, the defendant wins on immunity grounds in advance of discovery. A series of cases adopt and elaborate on this approach. Siegert v. Gilley, 895 F.2d 797, 800-02 (D.C.Cir.1990); Martin v. D.C. Metropolitan Police Department, 812 F.2d 1425, 1435-36 (D.C.Cir.1987); Halperin v. Kissinger, 807 F.2d 180, 186-87 (D.C.Cir.1986) (Scalia, J.); Hobson, 737 F.2d at 29-31; Collinson v. Gott, 895 F.2d 994, 1001-03 (4th Cir.1990) (Phillips, J.), and 1011-12 (Butzner, J.); Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985); Myers v. Morris, 810 F.2d 1437, 1453-54 (8th Cir.1987); Sawyer v. County of Creek, 908 F.2d 663, 665-68 (10th Cir.1990); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 647-50 (10th Cir.1988). We do not rehash the arguments, but two subjects call for brief discussion. One is straightforward. Although the court of appeals' opinion in Siegert insisted, 895 F.2d at 803-04, that the plaintiff produce "direct" evidence of the defendant's improper intent, we agree with Justice Kennedy that there is no principled difference between direct and circumstantial evidence. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). Requiring "direct" evidence of intent would be fatal in all but the rare case in which the defendant confessed. The other subject is a bit more complex. 18 Judge Higginbotham, concurring in Elliott, 751 F.2d at 1482-83, expressed concern that what Hobson dubbed a "heightened pleading requirement" is inconsistent with the Rules of Civil Procedure. Rule 8 establishes a system of notice rather than fact pleading; Rule 9(b) says that motive and intent may be pleaded generally; Rule 56 requires a court acting on a motion for summary judgment to draw all reasonable inferences favorable to the party opposing the motion. A "heightened pleading requirement" in constitutional cases appears to conflict with all three rules. The Acting Solicitor General's brief in Siegert dealt with this by arguing that to the extent the rules hinder the immunity defense, they abridge a substantive right and so exceed the scope of the Rules Enabling Act, 28 U.S.C. Sec. 2072(b). Brief for the Respondent at 25. Yet it is hard to depict a "right not to be tried" as substantive; it sounds distinctly procedural. The substantive right belongs to the plaintiff. It is better, we think, to recognize that official immunity is an affirmative defense, which need be asserted only after a plaintiff gets past the (slight) hurdles established by Rules 8 and 9(b). A possibility that the defendants will claim immunity does not require the plaintiff to anticipate and plead around that defense. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Defendants assert immunity by pleading it in the answer and moving for summary judgment. 19 Because Gomez holds that the complaint need not anticipate an immunity defense, it is misleading to speak of a "heightened pleading requirement". Nothing we say here affects what the plaintiff must put in the complaint. Only Rule 56 remains for consideration. Rule 56 does not specify how much discovery should be allowed before the court acts; Rule 56(b) says that a defendant may move for summary judgment "at any time", authorizing motions in advance of discovery. Whether the district judge should allow discovery before acting on the motion depends on the governing law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a rule of law crafted to carry out the promise of Harlow requires the plaintiff to produce some evidence, and the plaintiff fails to do so, then Rule 56(c) allows the court to grant the motion for summary judgment without ado. Cases such as Hobson therefore do not conflict with the rules--and to make this clear we deprecate the expression "heightened pleading requirement" and speak instead of the minimum quantum of proof required to defeat the initial motion for summary judgment. 20 In Auriemma the defendant gave plaintiff all the ammunition necessary to avoid summary judgment. After demoting many white police officers and promoting black officers over them, the chief of police denied having an affirmative action plan--which supported an inference that the chief had an improper intent and was not confused by the perplexing state of the law concerning affirmative action. The top administrators of the University of Illinois have not handed Propst her case on a platter. They contend that they acted solely to promote the efficient operation of an important part of their university. Barbara Propst offers no reason other than her own suspicions to doubt the administrators' account of their reasons. Her husband's parallel case has produced substantial discovery; she does not argue that any of the discovery in that case undercuts the administrators' explanation. Barbara Propst has not produced "specific, nonconclusory factual allegations", Siegert, 111 S.Ct. at 1795 (Kennedy, J., concurring), that the administrative defendants sought to punish her on account of speech and disregarded other considerations. The state of the law on mixed-motive transfers was in 1987--and remains--sufficiently ambiguous that the three administrators are entitled to immunity. See Rakovich, 850 F.2d at 1213. 21 Appeals No. 90-1168 and 90-2146 are dismissed for want of jurisdiction. On the administrators' appeal, No. 90-2093, the judgment is reversed.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TERRY WALTER CONANT, Plaintiff, Civil Action No. 13-572 (CKK) v. WELLS FARGO BANK, N.A., et al., Defendants. MEMORANDUM OPINION (July 25, 2014) Plaintiff Terry Walter Conant (“Conant” or “Plaintiff”) brings this action pro se challenging the foreclosure of his property. Presently before the Court is the portion of Defendant Wells Fargo Bank, N.A.’s [6] Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d) held in abeyance by this Court’s previous Memorandum Opinion and Order, as well as Plaintiff’s [59] Motion for Leave to File Plaintiff’s Amendment to Plaintiff’s Original Complaint. Upon consideration of the parties’ submissions 1, the relevant legal authorities, and the record as a 1 While the Court renders its decision on the record as a whole, its consideration has focused on the following documents: Petition for Declaratory and Injunctive Relief Pursuant to Title 28, US Code Section 2201, 2201, ECF No. [1] (“Compl.”); Defs. Wells Fargo Bank, N.A. & Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP’s Mot. to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summ. J. Pursuant to Rule 12(d), ECF No. [6] (“Wells Fargo MTD”); Pl.’s Mot to Portray & Assert the Certified Securitization Audit, with Mem. Of Law, ECF No. [14] (“Pl.’s Mot. to Portray”); Opp’n of Defs. Wells Fargo Bank, N.A. and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP to Pl.’s Motions Dated July 20, 2013, ECF No. [20] (“Def.’s Opp’n to Pl.’s Mot. to Portray”); Pl.’s Answer to Court’s Order (July 31, 2013) and/or Mot. for Summ. J. to Dismiss, ECF No. [24] (“Pl.’s Opp’n to Wells Fargo & ASAP MTD”); Defs. Wells Fargo Bank, N.A.’s and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP’s Reply to Pl.’s “Answer to Court Order (July 31, 2013) and/or Mot. for Summ. J. to Dismiss”, ECF No. [27] (“Wells Fargo Reply”); Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: “Securitization Report” and Intentional Infliction of Emotional Distress Claim, 1 whole, the Court issues the following rulings. The Court GRANTS the remainder of Defendant Wells Fargo Bank, N.A.’s [6] Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d). In addition, Plaintiff’s [59] Motion for Leave to File Plaintiff’s Amendment to Plaintiff’s Original Complaint is DENIED. All other pending motions in this case are DENIED AS MOOT. Accordingly, this action is DISMISSED in its entirety. I. BACKGROUND A. Factual Background In August 2007, Plaintiff borrowed $820,000.000 from World Savings Bank. Compl., Ex. B (Deed of Trust). This loan was documented by an Adjustable Rate Note and secured by a deed of trust on property located at 2191 Lindenwood Drive, South Lake Tahoe, California. Id. In December 2007, World Savings Bank changed its name to Wachovia Mortgage, FSB. Wells Fargo MTD, Ex. B (World Savings Bank, FSB, Oakland, California, Notice of Amendment of Charter and Bylaws). In November 2009, Wachovia Mortgage, FSB changed its name to Wells ECF No. [49] (“Def.’s Suppl.”); Pl.’s Mot. for Injunctive Relief in Compliance with the Order of this Honorable Court Issued on February 12th, 2014 Pursuant to Federal Rules of Civil Procedure Rule 65, ECF No. [50] (“Pl.’s Inj. Mot.”); Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: Ownership of Deed of Trust in Resp. to Court’s May 6, 2014 Order, ECF No. [54] (“Def.’s Further Suppl.”); Pl.’s Reply to Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: Ownership of Deed of Trust in Resp. to Court’s May 6, 2014 Order Copies of Note and Deed of Trust From Wells Fargo’s Vault in Resp. to Court’s May 6, 2014 Order, ECF No. [55] (“Pl.’s Further Suppl. Resp.”); Pl.’s Am. Pl.’s Reply to Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: Ownership of Deed of Trust in Resp. to Court’s May 6, 2014 Order Copies of Note and Deed of Trust From Wells Fargo’s Vault in Resp. to Court’s May 6, 2014 Order, ECF No. [56] (“Pl.’s Am. Further Suppl. Resp.”); Pl.’s Resp. to Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: “Securitization Report” and Intentional Infliction of Emotional Distress Claim, ECF No. [57] (“Pl.’s Suppl. Resp.”); Pl.’s Mot. for Leave to File Pl.’s Emergency Mot. for Temporary Restraining Order to Stop Sale of Real Property, ECF No. [58] (“Pl.’s TRO Mot.”); Pl.’s Mot. for Leave to File Pl.’s Am. to Pl.’s Original Compl., ECF No. [59] (“Pl.’s Mot. to Am.”); Pl.’s Am. to Pl.’s Original Compl., ECF No. [59-1] (“Pl.’s Proposed Am.”); Pl.’s Mot. for Leave to File Pl.’s Addendum to Pl.’s Resp. to Def. Wells Fargo Bank, N.A.’s Suppl. Brief Re: “Securitization Report” and Intentional Infliction of Emotional Distress Claim, ECF No. [60] (“Pl.’s Add. Resp.”). 2 Fargo Bank Southwest, N.A., and merged into Wells Fargo Bank, N.A. (“Wells Fargo” or “Defendant”). Id., Ex. D (Application to convert Wachovia Mortgage, FSB, North Las Vegas, Nevada to a national bank and application to merge the converted bank with and into Wells Fargo Bank). In 2011, Plaintiff defaulted on his payments and Defendant Wells Fargo initiated non-judicial foreclosure proceedings. Id., Ex. F (Notice of Default and Election to Sell Under Deed of Trust). In August 2011, the foreclosure trustee, NDeX West, recorded a Notice of Default with the El Dorado County Recorder’s Office. Id. Plaintiff sought to delay this foreclosure with two prior court actions. First, Plaintiff filed a bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of California. See Conant v. Wells Fargo Bank, N.A., No. 12-25594-A-13J (Bankr. N.D. Cal.). This bankruptcy proceeding was dismissed on May 22, 2012. Id., Ex. I (Order Closing Case Where Case Has Been Dismissed). Second, Plaintiff challenged Wells Fargo’s right to foreclose in a civil action in California state court before the El Dorado County Superior Court. See Conant v. Wells Fargo Bank, N.A., No. SC20120220 (Cal. Super. Ct.). This court sustained Wells Fargo’s motion to dismiss but provided Plaintiff leave to amend. Id., Ex. L (Order Sustaining Defendants’ Demurrers, With Leave to Amend and Denying Application for a Temporary Restraining Order Without Prejudice). Plaintiff subsequently voluntarily dismissed this action. Id., Ex. M (Request for Dismissal). The parties are in dispute as to whether Wells Fargo is the owner of Plaintiff’s mortgage and has the right to foreclose on his home. Plaintiff argues that the note associated with his mortgage has been securitized and sold on a secondary mortgage market. See, e.g., Pl.’s Mot. to Portray at 1-2. As support for this position, Plaintiff relies on a “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Id., Ex. 2. 3 This document contains a sworn affidavit from an individual named Damion Emholtz who states that he has researched Plaintiff’s loan and determined that “the loan is an asset in the WORLD SAVINGS BANK REMIC 30. My research also shows that the loan was current in its status as a performing asset in this pool of mortgage-backed securities prior to going into foreclosure.” Id., Ex. 2 at 16. B. Procedural History Plaintiff filed the fifty-four page Complaint in this action on April 19, 2013, which generally challenged the propriety of the non-judicial foreclosure action against him by Defendant Wells Fargo and its agents. See generally Compl. Plaintiff seeks declaratory and injunctive relief to stop the foreclosure action against him, as well as monetary damages in the event his Complaint is opposed. Compl. at 47-50. Read liberally, Plaintiff’s fifty-four page Complaint appears to allege the following claims. First, Plaintiff alleges that the Defendants are in violation of the Consent Judgment entered into by Wells Fargo and several other banks in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012). Second, Plaintiff alleges more generally that Wells Fargo is not the owner of his mortgage and is therefore improperly foreclosing on his home, in violation of various provisions of the Uniform Commercial Code. Id. at 11. Third, and relatedly, Plaintiff alleges that Wells Fargo’s attempt at foreclosure constitutes fraud. Id. at 32. Fourth, Plaintiff alleges that this foreclosure process constitutes a deprivation of his due process rights. Id. at 37. Fifth, Plaintiff argues that in foreclosing on his home, Plaintiffs are in violation of the Fair Debt Collection Practices Act 4 (“FDCPA”), 15 U.S.C. § 1692 et seq. 2 Sixth, Plaintiff alleges that the allegedly improper foreclosure process constitutes intentional infliction of emotional distress. Compl. at 37-38, 46. Defendants Wells Fargo; Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP; LPS Agency Sales and Posting, Inc.; and NDeX West subsequently filed motions to dismiss, or in the alternative, motions for summary judgment. See Wells Fargo MTD; Def. LPS Agency Sales and Posting, Inc.’s Mot. to Dismiss Compl. & Incorporating Mem. of Law, ECF No. [9]; Def. NDeX West, LLC’s Mot. to Dismiss or in the Alternative, for Summ. J., ECF No. [35]. In addition to several motions not relevant here, Plaintiff filed a [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law. In this filing, Plaintiff again asserted that Wells Fargo was not the owner of his loan, but rather that the loan was securitized and sold on the secondary mortgage securities market. Pl.’s Mot. to Portray at 1-2. This filing included as an exhibit the “Property Securitization Analysis Report” discussed above. In response to Plaintiff’s filing, Defendants argued that Plaintiff’s motion should be stricken as incomprehensible and irrelevant. Def.’s Opp’n to Pl.’s Mot. to Portray at 1-3. By [44] Order and [45] Memorandum Opinion issued February 14, 2014, the Court significantly narrowed this case. The Court: (1) dismissed Defendant Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP without prejudice for lack of personal jurisdiction and failure to serve; (2) dismissed Defendant LPS Agency Sales and Posting, Inc. pursuant to Rule 12(b)(6); (3) dismissed Defendant NDeX West, LLC without prejudice for lack of personal jurisdiction; and (4) dismissed Defendants John Does 1-20 without prejudice for failure to serve. Order, ECF No. [44] at 1-2. With respect to Defendant Wells Fargo, the Court dismissed 2 Plaintiff does not explicitly assert a cause of action for violation of the FDCPA. However, his Complaint does reference the statute and states that Defendants are in violation of its provisions in foreclosing on his home. Compl. at 28, 36. 5 Plaintiff’s claims for violation of the Consent Decree in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012) and for violation of his due process rights. Id. at 1. However, after concluding that the “Property Securitization Analysis Report” attached to Plaintiff’s [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law could be relevant in assessing Plaintiff’s claims of wrongful foreclosure, violation of the FDCPA, and fraud against Defendant Wells Fargo, the Court decided to hold Defendant Wells Fargo’s motion to dismiss in abeyance with respect to these claims. Accordingly, the Court ordered supplemental briefing from Defendant as to the relevance and reliability of the “Property Securitization Analysis Report.” Id. at 1-2. In addition, given the length and vagueness of Plaintiff’s Complaint, Defendant Wells Fargo had not appeared to recognize that Plaintiff was raising an intentional infliction of emotional distress claim, and had failed to respond to this claim in its motion to dismiss, or in the alternative, for summary judgment. See Mem. Op., ECF No. [45] at 26. Accordingly, the Court ordered Wells Fargo to also address this issue in its supplemental brief. Order, ECF No. [44] at 2. In light of these rulings, the only remaining Defendant in this action is Wells Fargo and the only remaining claims against this Defendant are: (1) wrongful foreclosure, (2) violation of the FDCPA, (3) fraud, and (4) intentional infliction of emotional distress. Defendant Wells Fargo subsequently filed its supplemental briefing and Plaintiff filed a reply. See Def.’s Suppl.; Pl.’s Suppl. Resp. Along with his reply, Plaintiff has attached an additional affidavit supporting his contention that his loan has been securitized. Pl.’s Suppl. Resp., Ex. 1 (Affidavit of William McCaffrey). This affidavit, from an individual named William McCaffrey states, inter alia, “The subject Mortgage loan was securitized and placed in a WORLD SAVINGS MORTGAGE PASS-THROUGH Real Estate Mortgage Conduit 6 (‘REMIC’) TRUST Series 30 which was closed August 2007.” Id. at 1. Because of additional questions regarding the parties’ filings, the Court ordered a second round of supplemental briefing as to Plaintiff’s securitization argument, and requested that Wells Fargo provide the Court with photocopies of the original deed of trust from its vault. 3 See Order, ECF No. [53]. Since this Court’s last Memorandum Opinion, Plaintiff has filed a bevy of motions. Plaintiff first filed his [48] Second Motion for Order of Default Judgment, Damages, and Enforcement of the Consent Decree Terms and Conditions, Jointly and Severally Against the Defendants Wells Fargo Bank, N.A., Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. By [47] Order issued February 24, 2014, the Court denied this motion to the extent it addressed claims against Defendant Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP and alleged a violation of the Consent Decree in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012), as these claims had already been dismissed, and held the motion in abeyance to the extent it addressed Defendant Wells Fargo’s standing to foreclose on Plaintiff’s home. Plaintiff has also filed a motion seeking leave to amend his Complaint, apparently to add additional factual allegations and claims. Pl.’s Mot. to Am. In addition, Plaintiff has filed motions seeking a preliminary injunction and a temporary restraining order against the sale of his property. Pl.’s Inj. Mot.; Pl.’s TRO Mot. II. LEGAL STANDARD A. Rule 56 3 This Order further “advise[d] the parties that, upon reviewing these materials [to be provided by Defendant], [the Court] [would] likely set a date a date on which Defendant will be required to bring the original deed of trust to the Court for in-person review.” Order, ECF No. [53] at 1. However, upon review of Defendant’s second supplemental brief, the Court concludes that such action is unnecessary, because, for the reasons discussed infra, Plaintiff’s claims are subject to dismissal as a matter of law. 7  Defendant Wells Fargo filed a motion seeking dismissal for failure to state a claim, or in the alternative, summary judgment. Pursuant to Fed. R. Civ. P. 12(d), “[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Here, both parties have been provided the opportunity to submit materials outside of the pleadings in support of their positions. Accordingly, the Court will review Defendant’s entire motion under the summary judgment standard, because “the [defendant's] motion[] [was] in the alternative for summary judgment and . . . the parties had the opportunity to submit and submitted materials in support and in opposition.” Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1273 n. 5 (D.C. Cir. 1997) (determining that it would not be “unfair” to treat such a motion as one for summary judgment). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id. 8  In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of his position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant 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 (1986); “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). 9  B. Rule 15 Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within a prescribed time period. See Fed. R. Civ. P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, it may do so only with the opposing party’s written consent or the district court’s leave. See Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to amend a complaint is entrusted to the sound discretion of the district court, but leave “should be freely given unless there is a good reason, such as futility, to the contrary.” Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996), cert. denied, 520 U.S. 1197 (1997). As the Supreme Court has observed: If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. – the leave sought should, as the rules require, be “freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962). “[A] district court has discretion to deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004), cert. denied, 545 U.S. 1104 (2005). Review for futility is practically “identical to review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint.” In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 215-16 (D.C. Cir. 2010) (quotation marks omitted). III. DISCUSSION A. Plaintiff’s Remaining Claims As discussed, the only remaining Defendant in this suit is Wells Fargo. By its February 24, 2014 [45] Memorandum Opinion and [44] Order, the Court dismissed Plaintiff’s claims against Defendant Wells Fargo pursuant to Rule 12(b)(6), except for Plaintiff’s claims that Wells 10 Fargo: (1) lacks standing to foreclose on Plaintiff’s mortgage, (2) has violated the Fair Debt Collection Practices Act, (3) has committed fraud, and (4) has committed intentional infliction of emotional distress. As to these claims, the Court requested supplemental briefing from Wells Fargo. In light of this supplemental briefing, as well as Plaintiff’s reply, the Court concludes that all of these remaining claims should be dismissed for the reasons discussed below. 1. Lack of Standing to Foreclose Plaintiff’s Complaint, citing to various California statutes and provisions of the Uniform Commercial Code, alleges generally that Defendant Wells Fargo lacks standing to foreclose on his home because it does not have possession of Plaintiff’s Note. See, e.g., Compl. at 11 (“The question of ownership of the note is a vital part of determining who has the right to foreclose and sell the property.”). Rather, Plaintiff alleges, his loan had been securitized and sold on a secondary mortgage market. As support for this position Plaintiff provided the Court with a “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Id., Ex. 2. This document contains a sworn affidavit from an individual named Damion Emholtz who states that he has researched Plaintiff’s loan and determined that “the loan is an asset in the WORLD SAVINGS BANK REMIC 30. My research also shows that the loan was current in its status as a performing asset in this pool of mortgage-backed securities prior to going into foreclosure.” Pl.’s Mot. to Portray, Ex. 2 at 16. Another subsequently provided affidavit from an individual named William McCaffrey similarly states, “The subject Mortgage loan was securitized and placed in a WORLD SAVINGS MORTGAGE PASS-THROUGH Real Estate Mortgage Conduit (‘REMIC’) TRUST Series 30 which was closed August 2007.” Pl.’s Suppl. Resp., Ex. 1 at 1. Accordingly, Plaintiff contends that because Wells Fargo is a stranger to his loan, their efforts to foreclose are improper. 11  Because Wells Fargo filed its motion to dismiss before the Court granted Plaintiff leave to file the “Property Securitization Analysis Report”, Wells Fargo’s motion to dismiss filings did not seriously engage Plaintiff’s securitization argument. Accordingly, holding in abeyance Plaintiff’s wrongful foreclosure challenge, the Court ordered Wells Fargo to provide supplemental briefing addressing Plaintiff’s securitization argument. The Court also permitted Plaintiff the opportunity to file a reply. In light of the parties’ supplemental briefing on the securitization issue, the Court concludes that Plaintiff’s wrongful foreclosure claims must be dismissed because securitization is ultimately irrelevant to Defendant’s ability to foreclose. As Defendant points out in its supplemental briefing, California courts have repeatedly and consistently rejected claims akin to Plaintiffs, arguing that securitization precludes a foreclosure action. See, e.g., Preciado v. Wells Fargo Home Mortg., No. 13-00382 LB, 2013 WL 1899929, at *5 (N.D. Cal. May 7, 2013) (“the weight of persuasive authority in this district is that a plaintiff has ‘no standing to challenge foreclosure based on a loan’s having been securitized.’”) (quoting Niranjan v. Bank of America, N.A., No. C 12-05706, 2013 WL 1701602, at *2 (N.D. Cal. April 18, 2013)); McGough v. Wells Fargo Bank, N.A., No. C12-0050, 2012 WL 2277931, at *4 (N.D. Cal. June 18, 2012) (“Theories that securitization undermines the lender’s ability have been rejected by the courts.”); Wadhwa v. Aurora Loan Servs., LLC, No. S-11-1784, 2011 WL 2681483, at *4 (E.D. Cal. July 8, 2011) (noting that “this position has been rejected by numerous courts”); Flores v. GMAC Mortg., LLC, No. C 12-794, 2013 WL 2049388, at *2 (N.D. Cal. May 14, 2013) (“[plaintiff contends that] because MIT securitized the note, this allegedly stripped MERS of any ability to assign the deed of trust. Courts have consistently rejected this theory.”); Lane v. Vitek Real Estate Indus. Group, 713 F.Supp.2d 1092, 1099 (E.D. Cal. 2010) (“The argument that parties lose their interest in a loan when it is assigned to a trust pool has also 12 been rejected by many district courts.”). Accordingly, the Court need not address the question of whether Plaintiff’s loan was securitized – a fact disputed by the parties – because even if it was, “the securitization of plaintiff’s promissory note did not deprive defendants of the power to foreclose on the property.” Dagres v. Countrywide Bank, N.A., No. 2:14-cv-01339, 2014 WL 3417848, at *3 (C.D. Cal. 2014). 4 In addition, Plaintiff’s wrongful foreclosure claim fails for other reasons. Under California law, in order to maintain a wrongful foreclosure claim, “Plaintiffs must allege that (1) Defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) Plaintiffs suffered prejudice or harm; and (3) Plaintiffs tendered the amount of the secured indebtedness or were excused from tendering.” Nugent v. Fed. Home Loan Mortgage Corp., No. 2:12-cv-00091, 2013 WL 1326425, at *7 (E.D. Cal. Mar. 29, 2013). “California courts have determined [that] plaintiffs are unable to show prejudice when the borrowers were in default and the allegedly improper assignment does not 4 To the extent Plaintiff is alleging improper securitization because the Pooling and Servicing Agreement (“PSA”) governing the alleged securitized trust was violated, he lacks standing to bring such a claim under California law. See Maynard v. Wells Fargo Bank, N.A., No. 12cv1435, 2013 WL 4883202, at *10 (S.D. Cal. Sept. 11, 2013) (“To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan.”). Apparently in opposition to this argument, Plaintiff cites to Glaski v. Bank of America, N.A., 160 Cal. Rptr. 3d 449, 451 (Cal. Ct. App. 2013), which held that borrowers “have standing to challenge void assignments of their loans.” See Pl.’s Addendum Resp. at 7. However, this position was rejected by another California Court of Appeal in Jenkins v. JP Morgan Chase Bank, N.A., 156 Cal. Rptr. 3d 912, 927 (Cal. Ct. App. 2013) (“As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, Jenkins lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions.”). “District courts in the Ninth Circuit have generally rejected Glaski, and sided with Jenkins, noting Glaski is a minority view.” Lanini v. JP Morgan Chase Bank, N.A., No. 2:13-cv-00027, 2014 WL 1347365, at *5 (E.D. Cal. Apr. 4, 2014). See also McNeil v. Wells Fargo Bank, N.A., No. 13-5519, 2014 WL 2967629, at *3 (N.D. Cal. July 1, 2014). 13 affect the borrower’s ability to pay . . . .” Lazo v. Summit Management Co., No. 1:13-cv-02015, 2014 WL 3362289, at *10 (E.D. Cal. July 9, 2014). See also Fontenot v. Wells Fargo Bank, N.A., 129 Cal. Rptr. 3d 467, 481 (Cal. Ct. App. 2011) (finding no prejudice where borrower was in default and did not allege that transfer of note interfered with borrower’s ability to pay). On this point, then-Chief Judge Anthony Ishii of the United States District Court for the Eastern District of California noted: Regardless of alleged irregularities, Plaintiff remained obligated under the deed of trust to faithfully make the required payments. Plaintiff does not contend that he was not actually in default under the deed of trust. Plaintiff’s property would therefore be subject to foreclosure even under an unimpeachable creditor, and any alleged irregularities in the proceedings caused by Defendants have not made Plaintiff worse off than he would have been in the absence of any problem. Garcia v. Federal Home Loan Mortgage Corp., No. 1:12-cv-00397, 2012 WL 3756307, at *5 (E.D. Cal. 2012). Here, there is no question that Plaintiff is in default on his loan. See Wells Fargo MTD, Ex. F; Pl.’s Suppl. Resp. at 13-14 (“The Plaintiff’s only remedy against the alleged lender and Defendant Wells Fargo was to withhold payments”); Pl.’s Proposed Am. at 2 (“The Plaintiff used the only mechanism available to him and that was to withhold payments”). Rather, he devotes his Complaint and subsequent filings to the argument that Wells Fargo is an improper party to foreclose on him because his loan has been securitized. Yet, even if such securitization occurred, Plaintiff alleges no prejudice from foreclosure by an allegedly improper party, and therefore his wrongful foreclosure claim goes nowhere. See Siliga v. Mortg. Elec. Registration Sys., Inc., 161 Cal. Rptr. 3d 500, 508 (Cal. Ct. App. 2013) (“Absent any prejudice, the Siligas have no standing to complain about any alleged lack of authority or defective assignment.”). At multiple points in his filings, Plaintiff asserts that in order to foreclose, Defendant must demonstrate its legal possession of the note (as well as physical possession of the original copy of the note). See, e.g., Pl.’s Suppl. Resp. (“put[ting]” Wells Fargo “to strict proof” “to 14 come forward to portray and demonstrate the Original ‘wet ink’ MORTGAGE and the Original ‘wet ink’ NOTE to the Honorable Court.”); Pl.’s Inj. Mot. at 6 (mentioning Defendant’s “inability to produce the necessary Securitized NOTE which the law requires them to have BEFORE they can seek any legal remedy from the Court.”). However, no such requirement exists in California law. “California appellate courts have consistently rejected the theory that California’s nonjudicial foreclosure scheme (Cal. Civ. Code §§ 2924-2924k) requires a foreclosing party to have a beneficial interest in or physical possession of the note.” McNeil, 2014 WL 2967629, at *3. See also Jenkins, 156 Cal. Rptr. 3d at 925 (“the foreclosing beneficiary-creditor need not produce the promissory note or otherwise prove it holds the note to nonjudicially foreclose on a real property security.”); Garcia, 2012 WL 3756307, at *4 (“the California nonjudicial foreclosure process does not require physical possession of the note by the party initiating foreclosure.”); Jahaveri v. JP Morgan Chase Bank, N.A., No. CV10-08185, 2011 WL 1131518, at *2 (C.D. Cal. Mar. 24, 2011) (nothing in [California Civil Code § 2924] requires the entity initiating foreclosure to have physical possession of the note. Indeed, courts have uniformly found that ‘physical possession of the original promissory note is not a pre- requisite to initiating foreclosure proceedings.’”) (quoting Nguyen v. Lasalle Bank Nat’l Ass’n, No. SACV 09-0881, 2009 WL 3297269, at *3 (C.D. Cal. Oct. 13, 2009)); Heald v. Nat’l City Mortg., No. 11CV904, 2011 WL 5513226, at *5 (S.D. Cal. Nov. 10, 2011) (“to the extent that Plaintiff’s wrongful foreclosure claim is based on the fact that Defendants do not possess the ‘genuine original’ promissory note, allonge, or deed of trust it necessarily fails as well. California does not require possession of the original note before initiating a foreclosure.”) (internal citation omitted). Accordingly, in dismissing Plaintiff’s claim, the Court need not 15 determine whether Wells Fargo is actually in possession of the original promissory note (or the deed of trust), as such possession is not a prerequisite to non-judicial foreclosure in California. Similarly, in arguing that Wells Fargo may not pursue non-judicial foreclosure proceedings against him, Plaintiff repeatedly invokes various provisions of the Uniform Commercial Code and the California Commercial Code, arguing that Wells Fargo has violated their requirements. See, e.g., Compl. at 9, 11, 13, 17, 18, 27, 32, 33, 35, 44, 49; Pl.’s Suppl. Resp. at 2, 12. However, these provisions are inapposite here. As California courts have held, the UCC does not apply to California’s non-judicial foreclosure proceedings. See Rieger v. Wells Fargo Bank, N.A., No. 3:13-0749, 2013 WL 1748045, at *7 (N.D. Cal. Apr. 23, 2013) (“California Civil Code section 2924, not the UCC, governs nonjudicial foreclosures.”). Similarly, the California Commercial Code is not applicable to non-judicial foreclosure proceedings. See Garcia, 2012 WL 3756307, at *4 (“The California Commercial Code does not apply to real property and thus is not applicable here.”); Coavilla v. Wells Fargo Bank, N.A., No. 13-cv-1003, 2013 WL 2153855, at *3-4 (N.D. Cal. May 16, 2013) (dismissing claims alleging that defendant lacked standing to foreclose based on violations of the California Commercial Code because, inter alia, “California’s nonjudicial foreclosure statutes . . . exclusively govern nonjudicial foreclosures.”) (internal citations omitted). Accordingly, in light of the supplemental briefing received in response to the Court’s prior Memorandum Opinion and Orders, the Court rejects Plaintiff’s claim that Wells Fargo lacks standing to foreclose on his property. 2. Fair Debt Collection Practices Act By its previous Memorandum Opinion and Order, the Court held in abeyance Plaintiff’s claim that Wells Fargo had violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et 16 seq., as this claim appeared related to Plaintiff’s securitization argument, which would be addressed in the parties’ supplemental briefing. However, upon further review of the filings in this case and the case law interpreting the FDCPA, the Court concludes that Plaintiff’s FDCPA claim is subject to dismissal, regardless of Plaintiff’s securitization argument. Courts have held that the FDCPA is inapplicable to California’s non-judicial foreclosure proceedings, which Wells Fargo has utilized here. See, e.g., Casas v. Wells Fargo Bank, N.A., No. 5:12-CV-01742, 2012 WL 5877641, at *4 (N.D. Cal. Nov. 20, 2012) (“courts in this circuit have concluded that a non judicial foreclosure does not constitute a ‘debt collection’ under the FDCPA.”); Lazo, 2014 WL 3362289, at *16 (“the FDCPA does not apply to actions taken in nonjudicial foreclosures.”); Reyes-Aguilar v. Bank of America, N.A., No. 13-cv-05764, 2014 WL 2153792, at *14 (N.D. Cal. Mar. 20, 2014) (“the Court agrees with other courts in this Circuit which have held that nonjudicial foreclosure is generally not ‘debt collection.’”); Usher v. Chase Home Finance, LLC, No. S-10-2202, 2010 WL 4008496, at *4 (E.D. Cal. Oct. 12, 2010) (“Foreclosure on a property based on a deed of trust does not constitute collection of a debt within the meaning of the FDCPA.”); Hanaway v. JP Morgan Chase Bank, No. SACV 10-1809, 2011 WL 672559, at *4 (C.D. Cal. Feb. 15, 2011) (“Since a transfer in interest is the aim of a foreclosure, and not a collection of debt, the foreclosure proceeding is not a debt collection action under FDCPA.”). Accordingly, because Plaintiff here challenges Defendant’s actions as part of California’s non- judicial foreclosure proceedings, his FDCPA claim is dismissed. 3. Fraud Plaintiff’s fraud claim is similarly subject to dismissal. Plaintiff claims that Wells Fargo has committed fraud by improperly foreclosing on his mortgage. See Compl. at 32 (“The overt act of fraud occurred when the Assignment of Mortgage was recorded and subsequently when 17 the Defendants started the foreclosure action to sell and to subsequently evict the Plaintiff from his home. . . . These fraudulent acts were designed to mislead us into believing that WELLS FARGO BANK, N.A. has an enforceable interest in the note and mortgage, which they clearly do not.”). In its prior Memorandum Opinion, the Court recognized that Plaintiff premised his claim of fraud on Wells Fargo’s allegedly illegitimate foreclosure, and concluded that to the extent this foreclosure was within Wells Fargo’s rights as owner of Plaintiff’s mortgage, there would be no fraud, and this claim would be subject to dismissal. See Mem. Op., ECF No. [45] at 23-24. Accordingly, the Court held this claim in abeyance in order to allow for supplemental briefing from the parties. However, upon further review of the parties’ filings, the Court concludes that Plaintiff’s fraud claim must be dismissed regardless of Plaintiff’s securitization argument because Plaintiff has failed to allege or set out any actions taken in reliance on the allegedly false statements made by Wells Fargo. In analyzing Plaintiff’s fraud claim, the Court applies California law. “In a diversity action, a federal district court applies the choice of law principles of the state or jurisdiction where it sits.” Lopez v. Council on American-Islamic Relations Action Network, Inc., 741 F.Supp.2d 222, 234 (D.D.C. 2010). “The District of Columbia employs a ‘modified governmental interest analysis,’ under which the court evaluates the governmental policies underlying the applicable laws and determines which jurisdiction’s policy would be most advanced by having its laws applied to the facts in the case.” Id. at 234-35 (citation omitted). “For a tort claim, the state whose policy would be advanced the most is the state with the most significant relationship to the case.” Id. at 235. “The Court considers the place where the injury occurred, the place where the conduct causing the injury occurred, the residence, domicile, place of incorporation or place of business of the parties, and the place where the parties’ relationship, 18 if any, is centered.” Id. Here, all of these factors support application of California law, and the parties do not argue that any other law should apply. Under California law, a plaintiff must allege the following to support a claim of fraud: “a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages.” Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996). Although Plaintiff’s securitization argument goes to the “false representation” prong of this analysis, Plaintiff’s claim nevertheless fails because he has not alleged any actions taken in reliance on the allegedly false statement by Wells Fargo that it owns his mortgage. Rather, from the outset of this litigation, and apparently from the initiation of the foreclosure proceedings against him by Wells Fargo, Plaintiff has vigorously contested Wells Fargo’s representations, arguing that Wells Fargo does not own his mortgage and lacks the power to foreclose on his home. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Here, Plaintiff states with particularity the alleged fraudulent statement of Wells Fargo, but his Complaint and subsequent filings fail to specifically identify any actions he has taken in reliance on this statement and the resulting damage from this reliance. Accordingly, the Court concludes that Plaintiff has not met his burden of establishing a claim of fraud. 4. Intentional Infliction of Emotional Distress Plaintiff’s claim for intentional infliction of emotional distress (“IIED”) similarly fails. In its prior Memorandum Opinion, the Court concluded that, Plaintiff’s Complaint, read liberally, does raise a claim for IIED. Although Plaintiff’s Complaint asserts no free-standing claim for IIED, he titles his Second Cause of Action “Violation of the Plaintiffs Rights to Due Process of law and Intentional infliction of emotional distress.” Compl. at 37. While much of the ensuing discussion focuses on Plaintiff’s Due Process claim, Plaintiff does allege that 19 “Defendants intentionally inflicted emotional distress knowing that they and their client and co- conspirator does not have standing to foreclose on said property and knowing the loss of a persons home is one of the most traumatic things that anyone can experience.” Id. at 37-38. Plaintiff later states that “Defendants have intentionally inflicted emotional distress, knowing that they do not have lawful claim to the subject property . . . .” Id. at 46. As with Plaintiff’s fraud claim, the Court applies California law. See Lopez, 741 F.Supp.2d at 235 (““The Court considers the place where the injury occurred, the place where the conduct causing the injury occurred, the residence, domicile, place of incorporation or place of business of the parties, and the place where the parties’ relationship, if any, is centered.”). “The elements of the tort of intentional infliction of emotional distress are: ‘(1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Odinma v. Aurora Loan Svcs., No. C-09-4674, 2010 WL 1199886, at *9 (N.D. Cal. Mar. 23, 2010) (quoting Trerice v. Blue Cross of Cal., 257 Cal. Rptr. 338, 340 (Cal. Ct. App. 1989)). “Outrageous conduct must ‘be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” Id. (quoting Trerice, 257 Cal. Rptr. at 340). California courts have uniformly rejected IIED claims related to foreclosure actions, including allegedly wrongful foreclosure. See, e.g., Baidoobonso-Iam v. Bank of America, No. CV 10-9171, 2011 WL 5870065, at *5 (C.D. Cal. Nov. 22, 2011) (“to the extent that Collier’s claim is solely predicated on the foreclosure of his property, California courts have held that such conduct does not state a claim for intentional infliction of emotional distress.”); Smith v. 20 Wachovia, No. C 09-01300, 2009 WL 1948829, at *4 (N.D. Cal. July 6, 2009) (allegations that defendant “wrongfully and intentionally initiated non-judicial foreclosure proceedings” were “not so extreme as to exceed the bounds of civilized society”); Davenport v. Litton Loan Servicing, LP, 725 F.Supp.2d 862, 884 (N.D. Cal. 2010) (holding that the act of foreclosing on a home “falls shy of ‘outrageous,’ however wrenching the effects on the borrower.”). Plaintiff provides no response to Defendant’s argument on this point and therefore his IIED claim is dismissed. 5. Plaintiff’s Potential RESPA Claim At various points, Plaintiff’s Complaint also mentions Wells Fargo’s failure to respond to his Qualified Written Responses (“QWR”), apparently in violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. See Compl. at 2, 17. RESPA provides plaintiffs with a private right of action for “the failure by a loan servicer to give proper notice of a transfer of servicing rights or to respond to a qualified written request for information about a loan.” Choudhuri v. Wells Fargo Bank, N.A., No. C 11-00518, 2011 WL 5079480, at *8 (N.D. Cal. Oct. 25, 2011) (citing 12 U.S.C. § 2605(f)). Although Plaintiff attaches his QWRs as an exhibit to his Complaint, see Compl., Ex. A (Qualified Written Requests), neither Wells Fargo nor the Court, in its previous Memorandum Opinion, understood him to be raising a claim under RESPA for failure to respond to QWR. Rather, Plaintiff appears to contend that Wells Fargo’s alleged failure to respond to his QWRs precipitated his lawsuit, as this alleged non- responsiveness suggested to him that Wells Fargo was a stranger to his loan. See Compl. at 2 (“The failure to answer the Qualified Written Requests . . . makes it a mystery as to who is the actual note-holder and thus, who is the real party-in-interest.”). However, a fair reading of the Complaint did not suggest that Plaintiff was asserting a free-standing claim under RESPA. 21  Nevertheless, out of an abundance of caution, the Court notes that Plaintiff’s potential RESPA claim – even if actually and properly alleged – also fails because, most obviously, he has not shown actual damages. Although “[a]ctual damages are available to compensate individual claims under RESPA,” Reyes-Aguilar v. Bank of America, N.A., No. 13-cv-5764, 2014 WL 2917049, at *17 (N.D. Cal. June 24, 2014), “[a]lleging a breach of RESPA duties alone is not enough. A plaintiff must, at a minimum, allege that the breach resulted in actual damages.” Banh v. Aurora Loan Servs., LLC, No. CV 11-06365, 2012 WL 2202982, at *3 (N.D. Cal. June 14, 2012) (citations omitted). “[U]ncertainty and impending harm, as opposed to actual harm, is insufficient to state a claim for damages under RESPA.” Id. Here, the only actual damages Plaintiff appears to allege were caused by Wells Fargo’s alleged failure to respond to his QWRs are his decision to file this lawsuit because of uncertainty regarding which entities held his loan, and the mental anguish associated with foreclosure. Other courts have found such allegations insufficient to show actual damages under RESPA. See, e.g., Rothman v. U.S. Bank Nat’l Assn., No. C 13-3381, 2014 WL 1648619, at *7 n. 9 (N.D. Cal. Apr. 24, 2014) (“‘[S]imply having to file suit,’ however, ‘does not suffice as a harm warranting actual damages’ under RESPA) (quoting Hensley v. Bank of New York Mellon, No. 1:10-CV-1316, 2011 WL 4084253, at *4 (E.D. Cal. Sept. 13, 2011)). Similarly, in Reyes-Aguilar, the court found that the plaintiffs “[did] not make plausible allegations of damages as a result of Defendant’s failure to respond” to their QWRs, as plaintiffs only “vaguely allege[d] that the lack of response resulted in uncertainty regarding which entities held their loan, damage to their reputation and credit, monetary damages, the impending foreclosure of their home, mental anguish, worries that they [would] lose their home, and late fees.” 2014 WL 2917049, at *12. “While claims of harm to credit and monetary damages can constitute plausible allegations of 22 actual damages under RESPA, Plaintiffs fail to present facts to infer that they actually suffered such damages as a result of Defendants’ actions.” Id. So too here, Plaintiff fails to provide any allegation of harm to credit. In addition, the only monetary damages for which he provides factual support are the costs associated with filing this litigation. See Pl.’s Inj. Mot. at 5 (noting, as the basis for a claim of irreparable injury, that “the cost of defending against and prosecution of the true issues of Plaintiff’s case has caused and cost Plaintiff thousands of dollars for research, legal counsel, filing fees, copying, postage, courier services, process serving, gasoline, wear and tear on his vehicle and hundreds upon hundreds of hour [sic] of labor in addition to the emotional stress caused.”). Accordingly, Plaintiff has failed to show the actual damages caused by Defendant’s alleged failure to respond to his QWRs that are necessary for a RESPA claim. Cf. Hutchins v. Bank of America, N.A., No. 13-cv-03242, 2014 WL 722098, at *9 (N.D. Cal. Feb. 25, 2014) (concluding that plaintiff sufficiently pled “actual damages” under RESPA where reports submitted by a mortgage servicer resulted in the lowering of plaintiff’s credit score, which contributed to her job loss). 5 B. Plaintiff’s Motion to Amend On July 21, 2014, Plaintiff filed a motion for leave to amend his Complaint. Pl.’s Mot. to Am. For the reasons discussed below, Plaintiff’s proposed amendments are futile and his motion is denied. 6 5 Although this discussion only focuses on Plaintiff’s failure to show “actual damages” under RESPA, the Court notes that there may be other flaws in Plaintiff’s RESPA claim not explored here. 6 The Court notes that Plaintiff’s separate motion for injunctive relief, in discussing why the proposed injunction would be in the public interest, references the California Homeowners Bill of Rights. Plaintiff does not mention this statute anywhere else in his filings, nor does he clearly allege a violation of its provisions in arguing that the injunction would be in the public interest. See Pl.’s Inj. Mot. at 8 (“Additionally, the California Homeowners Bill of Rights (CHBOR) which became effective January 1, 2013 is a law passed in California passed in the 23  As an initial matter, Plaintiff’s proposed Amended Complaint reasserts his claim against Defendant Wells Fargo for violation of the consent decree in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012), ECF No. 14 (Consent Judgment). Pl.’s Proposed Am. at 3-5. By its prior Memorandum Opinion and Order, the Court dismissed this claim because the Consent Judgment is not enforceable by individual third parties. See Order, ECF No. [44] at 1; Mem. Op., ECF No. [45] at 20-22. The Consent Judgment specifically states that enforcement actions may be brought by a “Party to this Consent Judgment or the Monitoring Committee.” United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012), ECF No. 14, Ex. E (Enforcement Terms) at E-15. Plaintiff, as an individual mortgagee, is neither party to the Consent Judgment nor a member of the monitoring committee. See also McCain v. Bank of America, No. 13-cv-1418, 2014 WL 334196, at *7 (D.D.C. Jan. 30, 2014) (“The plaintiff was not a party to this consent judgment, and therefore, is unable to enforce any obligation imposed upon the parties to the judgment.”); Glaviano v. J.P. Morgan Chase Bank, N.A., No. 13-cv-2049, 2013 WL 6823122, at *1 n. 1 (D.D.C. Dec. 27, 2013) (“Plaintiffs also erroneously claim that the foreclosure sale of their property is prohibited by the Consent Orders issued in United States v. Bank of America . . . . Plaintiffs were not parties in United States v. Bank of America, which dealt with mortgage servicing, origination, and certification in general and did not involve Plaintiffs’ mortgage or any other particular mortgage.”); Ghaffari v. Wells Public Interest.”); id. at 9 (“This Plaintiff therefore, respectfully submits that this injunction is in the public’s interest, as it enforces the recently executed Consent Orders and CHBOHR which are all designed to protect the public.”). This claim, if actually asserted, is not properly before the Court. Even given his pro se status, Plaintiff may not amend his Complaint through off-hand mentions in filings far removed from his original Complaint. Cf. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F.Supp.2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quotation marks omitted). Plaintiff has shown that he knows how to request leave to amend his complaint and thus the Court does not view the passing reference to the CHBOR in his motion for injunctive relief as an additional request for relief. 24 Fargo Bank, N.A., No. 13-115, 2013 WL 6070364, at *4 (D.D.C. Nov. 19, 2013) (“claims by individual borrowers, such as Plaintiff, are excluded from the Consent Judgment”). Plaintiff’s proposed Amended Complaint also seeks to enforce a Consent Order agreed to by Wells Fargo and the Office of the Comptroller of the Currency (“OCC”) in April 2011. Pl.’s Proposed Am. at 5-9. However, this claim fails for the same reasons as Plaintiff’s attempt to enforce the consent decree in United States v. Bank of America Corp., et al. The 2011 Consent Order includes the following language: “Nothing in the Stipulation and Consent or this Order, express or implied, shall give to any person or entity, other than the parties hereto, and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under the Stipulation and Consent or this Order.” Consent Order, Wells Fargo Bank, N.A., AA-EC-11-19 (Office of the Comptroller of the Currency Apr. 13, 2011) at 27, available at http://occ.gov/news-issuances/news-releases/2011/nr-occ-2011-47k.pdf. Reviewing this language and identical language in other OCC consent orders, other courts have concluded that homeowners lack the ability to sue for enforcement of such consent orders. See, e.g., Onyszcsak v. Wells Fargo Bank, N.A., No. 13-12166, 2013 WL 6038863, at *5 (E.D. Mich. Nov. 14, 2013) (“The Court finds that this language clearly establishes Plaintiffs have no right to enforce the Consent Order against Defendant.”); Green v. Bank of America Corp., 530 Fed. Appx. 426, 430 (6th Cir. 2013) (“As an initial matter, Plaintiff has no right to enforce the terms and conditions of the OCC Consent Orders. Each specifically provides, ‘Nothing in the Stipulation and Consent or this Order, express or implied, shall give to any person or entity, other than the parties hereto . . . any benefit or any legal or equitable right, remedy, or claim under the Stipulation and Consent or this Order.’”). Plaintiff also points to amendments to the OCC Consent Order that occurred in 2013, which he says “provided for cash payments for homeowners that had been violated by the 25 bank’s unsafe and unsound business practices.” Pl.’s Proposed Am. at 5-9. But the amended consent order contains the exact same language quoted above precluding private enforcement. See Amendment to April 13, 2011 Consent Order, Wells Fargo Bank, N.A., AA-EC-11-19 (Office of the Comptroller of the Currency Feb. 28, 2013) at 13, available at http://www.occ.gov/static/enforcement-actions/ea2013-132.pdf (“Nothing in the Stipulation or this Amendment to the Consent Order, express or implied, shall give to any person or entity, other than the parties hereto, and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under the Stipulation or this Amendment to the Consent Order.”). Accordingly, Plaintiff’s proposed amendment, adding claims related to the OCC Consent Order, is rejected as futile. See also SEC v. Prudential Sec. Inc., 136 F.3d 153, 158 (D.C. Cir. 1998) (“this circuit has opted for a bright line rule . . . that third parties to government consent decrees cannot enforce those decrees absent an explicit stipulation by the government to that effect.”) (internal citation omitted). Plaintiff next appears to allege breach of contract, arguing that a provision of his Note has been violated. Pl.’s Proposed Am. at 9-11. The relevant provision, entitled “Notice of Default”, states, “If I am in default, the Lender may send me a written notice, called “Notice of Default,’ telling me that If I do not pay the overdue amount by a certain date, the Lender may require me to pay Immediately the amount of Principal which has not been paid and all other Interest that I owe on that amount, plus any other amounts due under the Security Instrument.” Id. at 10. Plaintiff alleges that he has never received a written “Notice of Default” and thus appears to contend that Defendant Wells Fargo is in breach of contract. Id. Putting aside for the moment whether this contention undercuts Plaintiff’s previously consistent argument that Wells Fargo is not his lender, this proposed breach of contract claim fails for the simple reason that the cited 26 language imposes no mandatory obligation. The contract states only that “the Lender may send [Plaintiff] a written notice” and under ordinary principles of contract interpretation, use of the word “may” does not impose a mandatory obligation. See Bennett v. Panama Canal Co., 475 F.2d 1280, 1282 (D.C. Cir. 1973) (“Ordinarily ‘may’ is a permissive not a mandatory term.”); PCH Mut. Ins. Co., Inc. v. Casualty & Surety, Inc., 750 F.Supp.2d 125, 144 (D.D.C. 2010) (noting that “as a general matter of contract law, the word ‘may’ is viewed as a permissive, rather than mandatory, term, particularly when used in contraposition to the word ‘shall’ ”); Kucera v. Lizza, 9 Cal. App. 4th 1141, 1152 (Cal. Ct. App. 1997) (“The words ‘may’ and ‘should’ are ordinarily permissive”). Accordingly, to the extent Plaintiff attempts to assert a new claim for breach of contract, this claim is rejected as futile. The remainder of Plaintiff’s proposed Amended Complaint reiterates his allegations that Wells Fargo lacks standing to foreclose on his mortgage, which he again argues has been securitized. Pl.’s Proposed Am. at 11-22. In support of this claim, he invokes various provisions of the Uniform Commercial Code and the California Commercial Code. Id. As discussed, supra Section III.A.1, the Court rejects Plaintiff’s claim that Wells Fargo is wrongfully foreclosing on his home. In addition, Plaintiff’s alleged violations of the UCC and the California Commercial Code are not applicable to Defendant’s non-judicial foreclosure action. See Rieger, 2013 WL 1748045, at *7 (“California Civil Code section 2924, not the UCC, governs nonjudicial foreclosures.”); Payadachi v. IndyMac Bank, No. C 09-5545, 2010 WL 4367221, at *3 (N.D. Cal. Oct. 28, 2010) (“The comprehensive statutory framework established [by the California Civil Code] to govern nonjudicial foreclosure sales is intended to be exclusive.”) (citation omitted). 27  Accordingly, because Plaintiff’s proposed Amended Complaint reiterates claims already rejected by this Court or raises futile new claims, the motion is denied. IV. CONCLUSION For the foregoing reasons, the Court GRANTS the portion of Defendant Wells Fargo Bank, N.A.’s [6] Motion to Dismiss Pursuant to Rule 12(b)(2), 12(b)(5) and 12(b)(6) or, in the Alternative, for Summary Judgment Pursuant to Rule 12(d) held in abeyance by this Court’s prior Memorandum Opinion. In addition, Plaintiff’s [59] Motion for Leave to File Plaintiff’s Amendment to Plaintiff’s Original Complaint is DENIED. All other pending motions in this case are DENIED AS MOOT. Accordingly, this action is DISMISSED in its entirety. An appropriate Order accompanies this Memorandum Opinion. Dated: July 25, 2014 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 28 

79 Mich. App. 93 (1977) 261 N.W.2d 222 KARI v. GENERAL MOTORS CORPORATION Docket No. 30523. Michigan Court of Appeals. Decided October 11, 1977. *94 Jack C. Chilingirian, for plaintiff. Clark, Hardy, Lewis, Fine and Asher, P.C. (by Terence V. Page), for defendant. Before: D.C. RILEY, P.J., and BASHARA and P.R. MAHINSKE,[*] JJ. P.R. MAHINSKE, J. This case presents the question of whether statements in an employment handbook may constitute an offer to contract for severance pay, despite the presence of express disclaimers in the handbook and in its description of the severance pay plan. We hold that under the facts of this case no offer or enforceable promise was made by the handbook. Plaintiff began working for defendant in 1955 as a process engineer. He continued in defendant's employ until March, 1972, when he requested an educational leave of absence from April to September, 1972. This leave was granted; its terms did not guarantee plaintiff his job upon his return. In September, 1972, plaintiff's leave was extended by mutual agreement until July 1, 1975. On that date, however, plaintiff's former position or one comparable to it was not available, and plaintiff was "separated" from defendant. Plaintiff commenced the instant action in March, 1976, seeking recovery of a separation allowance allegedly guaranteed by defendant's employment handbook. This handbook, entitled "Working With General Motors", was issued to plaintiff at the time of his employment. It contains a section entitled "Separation Allowance", the first paragraph of which reads as follows: "A Separation Allowance Plan has been established *95 for the benefit of salaried employees laid off or separated from the payroll under certain circumstances. The primary purpose of this Plan is to provide a source of income to eligible employes beyond the date of their layoff or separation. The inclusion of a schedule of separation allowances in this booklet, together with the conditions governing their payment, however, is not intended nor is it to be interpreted to establish a contractual relationship with the employe. Where payments are made to a laidoff employe under this Plan, the term `Separation Allowance' will include layoff payments under the Separation Allowance Plan." On the last page of the handbook is a general disclaimer, italicized and outlined in red: "The contents of this handbook are presented as a matter of information only. While General Motors believes wholeheartedly in the plans, policies and procedures described here, they are not conditions of employment. General Motors reserves the right to modify, revoke, suspend, terminate, or change any or all such plans, policies, or procedures, in whole or in part, at any time, with or without notice. The language used in this handbook is not intended to create, nor is it to be construed to constitute, a contract between General Motors and any one or all of its employes." Plaintiff asserted that the provisions of the separation allowance plan constituted an offer by defendant of a unilateral contract, which offer was accepted by plaintiff's action of working for defendant. Defendant answered that due to the disclaimers, the separation allowance provisions could not possibly be construed as an offer that would reasonably be relied upon. Defendant moved for summary judgment pursuant to GCR 1963, 117.2(3) on the ground that no genuine issue existed as to any material fact. The trial court granted defendant's motion on September *96 27, 1976. That court reasoned that due to the disclaimers in the handbook, no contractual duty to pay a separation allowance arose on the part of the defendant. For the reasons outlined below, we affirm the trial court's judgment. Plaintiff's basic theory, that statements in a policy, plan, or other communication to employees may constitute an offer to contract, is sound. But it just does not apply to the facts of this case. In Cain v Allen Electric & Equipment Co, 346 Mich 568; 78 NW2d 296 (1956), the Court held that the adoption of a severance pay policy as part of a corporate personnel policy created an offer to contract which was accepted by plaintiff's action of continuing in defendant's employ. More recent cases decided upon this theory include Gaydos v White Motor Corp, 54 Mich App 143; 220 NW2d 697 (1974), lv den, 392 Mich 800 (1974), and Clarke v Brunswick Corp, 48 Mich App 667; 211 NW2d 101 (1973), lv den, 391 Mich 765 (1974). A review of the above cases and those from other jurisdictions dealing with various types of employee benefits[1] reveals that the question of whether a contract exists is governed by ordinary principles of offer, acceptance, and consideration. In Cain, supra, for example, the Court found that the severance pay policy looked toward an agreement, and was not a mere gratuity or expression of a hope or intention. The Cain Court decided that the offer was a promise, relying on the following definition from 1 Corbin on Contracts, § 13, p 29: *97 "A promise is an expression of intention that the promisor will conduct himself in a specified way or bring about a specified result in the future, communicated in such a manner to a promisee that he may justly expect performance and may reasonably rely thereon." From this definition it is clear that the theory of promissory estoppel[2] may also be used to find an enforceable contract. However, when the employer-employee communication fails to contain the elements of an offer, and when the requisites of promissory estoppel are not present, courts will not hesitate to find that no contract was ever formed. The following communications, for example, have been held not to constitute enforceable promises or offers capable of acceptance: 1. A booklet entitled "Know Your Company" which stated: "`It has been customary, since 1937, for the company to make a year end payment to employees. The amount of such payment, if any, depends upon the earnings available from operations, and is entirely at the discretion of the Board of Directors.'" Borden v The Skinner Chuck Co, 21 Conn Supp 184, 188; 150 A2d 607, 609 (1958); 2. A staff bulletin outlining a plan of renewal bonuses which provided: "`This renewal bonus is a voluntary contribution on the part of the Company. It is agreed by you and by us that it may be withheld, increased, decreased or discontinued, individually or collectively, with or without notice.'" *98 Spooner v Reserve Life Insurance Co, 47 Wash 2d 454, 457; 287 P2d 735, 737 (1955); and 3. A listing of "Suggestion System Rules" which included the following: "`Each suggestion is submitted with the understanding that the Company shall have the right to publish, use or refuse it and that if it is published or used, the decision of the company shall be final and conclusive as to the amount of a cash award, if any, and the person or persons entitled thereto, and all other matters concerning the suggestion.'" Calkins v The Boeing Co, 8 Wash App 347, 349; 506 P2d 329, 330 (1973). As with the above communications, General Motors' handbook description of a separation pay plan clearly evinced an intention not to create an offer capable of acceptance. In addition, the manner of communication — couched in disclaimers — to the employee did not create a situation in which the employee could justly expect performance and reasonably rely thereon. Cain v Allen Electric Co, supra. It is difficult to imagine what defendant could have done, short of not mentioning the plan, to prevent the reading of its statement as an offer. Unlike the situation in Cain, supra, General Motors did not "adopt" a "policy" of severance payments as part of a drive to attract employees; instead, General Motors specifically stated that its separation pay schedule and conditions were not intended to establish a contractual relationship with the employee. An employee reading this language and that of general disclaimer at the end of the booklet should realize that further negotiations, and not merely the acceptance of employment with General Motors, are necessary to create a contract for severance pay. *99 Therefore, we hold that as a matter of law no contract existed between plaintiff and defendant. The trial court correctly granted summary judgment to defendant on the basis of no genuine issue as to any material fact. GCR 1963, 117.2(3). Affirmed. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] 40 ALR2d 1044, Anno: Construction and effect of severance or dismissal pay provisions of employment contract or collective labor agreement, § 2; 42 ALR2d 461, Anno: Rights and liabilities as between employer and employee with respect to general pension or retirement plan; 81 ALR2d 1066, Anno: Rights and liabilities as between employer and employee with respect to general bonus or profit-sharing plan. [2] See Restatement, Contracts, 2d, § 90.

JACQUELINE KLINELINE, ) ) Petitioner-Appellant, ) ) v. ) No. SD33705 ) Filed: 10-13-15 ROBERT PATRICK KLINELINE, ) ) Respondent-Respondent. ) APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable Lynette B. Veenstra, Associate Circuit Judge AFFIRMED Jacqueline Klineline (Wife) appeals the dismissal of her petition in equity to divide omitted marital property. The petition alleged that Wife’s marital interest in a pension plan was omitted from a 2003 judgment dissolving her marriage to Robert Klineline (Husband). The trial court determined that Wife’s action was barred by the applicable statute of limitations. We agree and affirm. Wife’s verified petition to determine the division of omitted property was filed on August 28, 2013. In relevant part, the August 2013 petition contained the following allegations:  1. The trial court entered a dissolution judgment (hereinafter referred to as the original judgment) on February 26, 2002. 2. The third paragraph on page five of the original judgment included the following: [Wife] shall receive 31.25% of [Husband’s] GTE Pension Plan in accordance with the Qualified Domestic Relations Order [QDRO] attached hereto as Exhibit “F” and incorporated herein by this reference. 3. After Wife filed a timely motion to amend, the original judgment was set aside. 4. On February 18, 2003, the court entered a new judgment (hereinafter referred to as the modified judgment). 5. In the modified judgment, the court “struck in its entirety” the third paragraph on page five of the original judgment, which included the division of the GTE pension plan and the incorporation by reference of the attached Exhibit F QDRO. 6. Paragraph 3 of Wife’s verified petition alleged that “there was marital property omitted from the Modified Judgment, specifically [Wife’s] 31.25% interest in [Husband’s] GTE Pension Plan in accordance with the Qualified Domestic Relations Order which was in the Original Judgment.” Husband filed a motion to dismiss which asserted that Wife’s action was barred by the statute of limitation in either § 516.120(4) and § 516.110.1 During the hearing on that motion, Husband’s attorney argued that the action was time-barred because Wife had known about the GTE pension asset and its omission from the modified judgment for more than ten years without filing suit. Wife’s attorney acknowledged that the GTE pension plan was omitted property because that asset had been entirely removed from the 1 All statutory references are to RSMo (2000). Section 516.120 provides a five- year limitation in “[a]n action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated[.]” § 516.120(4). Section 516.110 generally provides a ten-year limitation for actions “upon any writing ... for the payment of money or ... for relief, not herein otherwise provided for.” § 516.110(1) and (3). 2 modified judgment.2 Wife’s attorney argued that the cause of action to divide omitted property did not accrue, however, until: (1) Wife contacted GTE; and (2) her claim was denied on the ground that the GTE pension had not been divided in the modified judgment. According to Wife’s attorney, it was the GTE plan administrator’s interpretation of the modified judgment as omitting the pension plan which caused Wife’s cause of action to accrue. The trial court granted the motion to dismiss. The court concluded that: (1) both parties were aware of Wife’s interest in the pension plan when the original judgment was entered; (2) the right to bring Wife’s action accrued in February 2003 when the trial court entered the modified judgment omitting the pension plan; and (3) Wife’s August 2013 petition was time-barred because it was filed more than ten years after the cause of action accrued. This appeal followed.3 When marital property is omitted from a final dissolution judgment due to fraud, accident or mistake, the aggrieved party has a right to bring a separate equitable action to divide the omitted property. Doss v. Doss, 822 S.W.2d 427, 428 (Mo. banc 1992); 2 During the argument, Wife’s attorney said “[t]he amended judgment took out the pension entirely, so it is omitted property.” She reiterated that point later by stating that “we have an asset that was not included in the judgment. It’s omitted property. It gives rise to a cause in equity.” 3 The statement of facts in Wife’s brief refers to documents included in the appendix to her brief. Husband filed a motion to strike those documents because they are not part of the record on appeal. That motion is granted, and we have not considered any of the stricken material in this opinion. See Evans v. FirstFleet, Inc., 345 S.W.3d 297, 306 (Mo. App. 2011) (merely including a document or exhibit in an appendix to a brief does not make that item part of the record on appeal); DeGennaro v. Alosi, 389 S.W.3d 269, 275 (Mo. App. 2013) (an appellate court will not consider documents in an appendix to a brief that are not part of the record on appeal). We deny all other motions that were taken with the case. 3 Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988). Wife contends the trial court erred by dismissing Wife’s equitable action on the ground that it was barred by the statute of limitations. Kennedy v. Microsurgery & Brain Research Inst., 18 S.W.3d 39 (Mo. App. 2000), summarizes the applicable standard of review for this appeal: Our review of the dismissal of a petition as being time-barred by the expiration of the applicable statute of limitations requires an examination of the pleadings, allowing them their broadest intendment, regarding all facts alleged as true, and construing the allegations in favor of the plaintiff. When an affirmative defense is asserted, such as a statute of limitations, the petition may not be dismissed unless it clearly establishes on its face, and without exception, that the action is barred. For an affirmative defense to be sustained upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiff’s pleadings. Id. at 42 (internal citations omitted). “A determination of when the statute of limitations is put in motion is a question of law.” Murray v. Fleischaker, 949 S.W.2d 203, 206 (Mo. App. 1997). The outcome of this appeal is controlled by Doss, in which our Supreme Court addressed the same issue: whether an equitable action to divide marital property omitted from the final decree was barred by the statute of limitations. Doss, 822 S.W.2d at 428. The omitted property there was a wife’s marital interest in her husband’s pension plan. The decree omitting the property was entered in 1976, and the wife’s equitable action was filed 13 years later. Id. at 428-29. The Court concluded that the wife’s equitable cause of action accrued “when the decree omitting the pension plan was entered in 1976.” Id. at 429. The Court also noted “[m]ere ignorance of the cause of action does not prevent running of the statute of limitations.” Id. Because the wife’s equitable action was filed 13 years after the 1976 decree became final, it was barred by the five-year statute of limitations in § 512.120 or the ten-year statute of limitations in § 516.110. Id. 4  We reach the same conclusion here. The allegations in Wife’s petition, which we accept as true to decide the statute of limitations issue, assert that the GTE pension plan was divided in the original judgment and then omitted from the modified judgment. Accordingly, Wife was aware of this marital asset and could have brought her equitable action to divide the GTE pension at any time after the modified judgment became final. See id. Because Wife’s August 2013 petition irrefutably demonstrates that it was filed over ten years after Wife’s cause of action accrued, the trial court correctly dismissed the petition as time-barred. See id.; §§ 516.110, 516.120; see also Field v. Redfield, 985 S.W.2d 912, 919-20 (Mo. App. 1999); McElroy v. McElroy, 826 S.W.2d 105, 107 (Mo. App. 1992). We have considered Wife’s contrary arguments, but we find them unpersuasive in light of our Supreme Court’s decision in Doss. First, Wife argues that the GTE pension plan was not actually omitted from the modified judgment. This argument fails because it is directly contrary to the allegations of her petition and the position she took during argument on the motion to dismiss. See Porter v. Erickson Transp. Corp., 851 S.W.2d 725, 736 (Mo. App. 1993) (a party generally will not be permitted to take a position on a matter that is directly contrary to, or inconsistent with, one previously assumed). Second, Wife argues that the modified judgment ratified the previously entered Exhibit F QDRO relating to the GTE pension. This argument fails because, as Wife’s petition acknowledges, the paragraph of the original judgment dividing the GTE pension and 5 incorporating the Exhibit F QDRO was stricken in its entirety. Therefore, the GTE pension was not divided and there was no QDRO to ratify.4 Wife’s point is denied, and the trial court’s judgment is affirmed. JEFFREY W. BATES, J. – OPINION AUTHOR DANIEL E. SCOTT, P.J. – CONCUR MARY W. SHEFFIELD, C.J. – CONCUR 4 For this reason, neither Ochoa v. Ochoa, 71 S.W.3d 593 (Mo. banc 2002), nor Lane v. Non-Teacher School Employee Retirement System of Missouri, 174 S.W.3d 626 (Mo. App. 2005), support Wife’s argument. In Ochoa, the original judgment divided the pension, and the parties intended to create a QDRO that met ERISA’s requirements. Ochoa, 71 S.W.3d at 595. Lane applied the general accrual rule in pension cases governed by ERISA. The usual rule in such cases is that, in an ERISA action brought by an employee, the cause of action accrues after the employee’s claim for benefits has been made and formally denied. Lane, 174 S.W.3d at 637. That rule has no application in this equitable action to divide marital property omitted from a final dissolution decree. 6 

Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 8-22-1994 Bailey v. Snyder Precedential or Non-Precedential: Docket 93-9002 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Bailey v. Snyder" (1994). 1994 Decisions. Paper 120. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/120 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected].  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ NO. 93-9002 _______________ BILLIE BAILEY, Appellant v. ROBERT SNYDER, Warden, Delaware Correctional Center _______________ Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and McKEE, Circuit Judges. O R D E R A majority of the active judges having voted for rehearing in banc in the above appeal, it is O R D E R E D that the Clerk of this Court list the above case for rehearing in banc at the convenience of the court. By the Court, \s\ Dolores K. Sloviter Chief Judge Dated: August 22, 1994 

112 N.H. 441 (1972) LUCILLE H. MERCER & a. v. MERCHANTS NATIONAL BANK, TRUSTEE UNDER THE WILL OF BUSHROD W. HILL. No. 6188. Supreme Court of New Hampshire. December 29, 1972. Grinnell & Bureau (Mr. George H. Grinnell orally) for the plaintiffs. Wadleigh, Starr, Peters, Dunn & Kohls (Mr. Theodore Wadleigh orally) for the defendant. KENISON, C.J. The question for decision in this case is whether a trustee may charge the portion of its fee attributable to principal at the termination of the trust instead of periodically during the life of the trust. The Probate Court (Treat, J.) allowed the defendant's termination fee, and an appeal was taken to the superior court which also ruled in favor of the defendant-trustee. Plaintiffs' exception to the court's denial of their motion to set aside the verdict was reserved and transferred to this court by Loughlin, J. *442 The defendant was appointed successor trustee in 1926 of the trust under the will of Bushrod W. Hill and administered the trust for thirty-eight years until its termination upon the death of the remaining life tenant in 1964. The probate court allowed a termination fee of $5,257 representing two and one-half percent of the market value of the trust at termination as a charge against principal. Plaintiffs, two remaindermen of the trust who were also income beneficiaries, urge that a principal commission should not be allowed at the termination of a trust. They contend that the trustee's fees included in the annual accounts prepared by the trustee and approved by the court appeared on their face to be the sole compensation to which the trustee would be entitled and that no mention was ever made in those accounts or elsewhere of an eventual termination fee. They further contend that to allow an additional fee at the termination of the trust would in effect be an impermissible reopening of the prior accounts. In this State and many others the probate court has the duty and authority to approve the amount and time of payment of trustee's fees as in its reasonable discretion it determines appropriate under the circumstances. Page v. D'Amours, 99 N.H. 441, 113 A.2d 544 (1955); RSA 564:21 (supp.)."[T]he amount of the compensation and the time or times at which the trustee is entitled to receive it are subject to allowance or approval by the court. The court exercises its discretion in fixing the amount and time of payment of compensation, but such discretion is ordinarily exercised in accordance with rules and practices which have become established in the State, not as absolute rules but as rules to be applied in most cases." Restatement (Second) of Trusts, supra s. 242, Comment b at 605; Bogert, Trusts and Trustees s. 975, at 285 (2d ed. 1962); 3 Scott, Trusts s. 242, at 2109 (3d ed. 1967). In this case it was stipulated that the custom and practice in New Hampshire at the time in question was for trustees to make annual charges against income, as compensation for its collection and distribution, and a final termination fee charge against principal. Plaintiffs contend, however, that this custom and practice is improper and unlawful. This method of trustee compensation has been, at least until quite *443 recently, the approved method in most other States as well as New Hampshire: "The ordinary practice with reference to the compensation of trustees is to give the trustee annual or periodic commissions based on a percentage of the income received and paid out. This is paid from income. In addition they are entitled ordinarily to a percentage of the principal, payable on the distribution of the principal . . . ." 3 Scott, supra s. 233.3, at 1921; Restatement (Second) of Trusts, supra s. 233, Comment h at 560; e.g., Mercantile Trust Co. Nat'l Ass'n v. Jaeger, 457 S.W.2d 727, 733 (Mo. 1970). We do not think that this traditional method of compensation was improper in this case. In recent years many trustees including those in Hillsborough County have changed over to a partial "pay-as-you-go" method of calculating principal fees, whereby annual charges are made against principal and a smaller percentage termination fee is made on termination of the trust. This may well indicate the merit in plaintiffs' contention that annual principal charges more accurately conform to the value of the actual services rendered. Restatement (Second) of Trusts, supra s. 233, Comment h at 560. See generally Bogert, supra s. 975, at 30-44 (Supp. 1972) (reproducing portion of American College of Probate 1966 Study by W.H. Jack outlining the statutory fee schedule or customary rates charged in each State): Note, Institutionalized Trusteeship: Avenue of Compensation Reform, 58 Yale L.J. 924 (1949). See also American College of Probate Counsel Study by W.H. Jack, Fees of Executors, Administrators and Testamentary Trustees (rev. April 1972). However, the original method of charging the entire principal commission at the termination of the trust prevailed in this State and elsewhere for many years and cannot now as a matter of law be considered unreasonable. The original $3,271 fee charged by the trustee in 1926 at the inception of its successor trusteeship was for extra services for the review of the predecessor trustee's accounts of twenty-four years for which it was entitled to extra compensation at that time. Appeal of Perkins, 108 Pa. 314, 318 (1885); cf. Brown v. Silsby, 10 N.H. 521, 524-25 (1840). See generally 3 Scott, supra s. 242.2, at 2115; Restatement *444 (Second) of Trusts, supra s. 242, Comment d at 606. Consequently, that fee has no bearing on the propriety of the termination fee involved in this case. Furthermore, even if this were to be regarded in effect as an acceptance fee, the combined charge against principal could not be considered unreasonable as a matter of law, considering among other things the thirty-eight year duration of the trust. See, e.g., Commercial Trust Co. v. Barnard, 27 N.J. 332, 346, 142 A.2d 865, 873 (1958). Finally, plaintiffs' contention that the probate court's approval of the termination fee effectively resulted in the reopening of the prior annual accounts cannot be sustained. Except for occasional charges for extra services, the annual charges were for income services alone. The termination fee was for the preservation and enhancement of the principal in accordance with the established method of trustee compensation in effect in Hillsborough County at the time. See 1 Mossaman & Wyatt, Trust Administration and Taxation s. 18.05 (1972); 1 A id. s. 32.01 (1972); Uniform Probate Code s. 7-205, 8 Uniform Laws Annotated 582 (1972). Exceptions overruled. All concurred.

418 F.2d 910 CHONG SHIK AHN, Appellant,v.DISTRICT DIRECTOR OF the UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Appellee. No. 24164. United States Court of Appeals Ninth Circuit. November 25, 1969. Richard Quan (argued), Hiram W. Kwan, Los Angeles, Cal., for appellant. David H. Anderson (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee. Before BARNES, HAMLEY and KILKENNY, Circuit Judges. PER CURIAM: 1 Appellant, a Korean, is dissatisfied with the decision of the District Court, which held that appellee had not abused his discretion, under 8 U.S.C. § 1258, in denying appellant's application for a change of non-immigrant status. 2 Appellant is a thirty year old married male, originally admitted to the United States on July 27, 1967, as a temporary visitor for pleasure, with permission to stay until December 31, 1967. Before the expiration date, he filed an application for change of non-immigrant status from temporary visitor to that of student. This application was denied on May 27, 1968. The appeal was dismissed by the Regional Commissioner. 3 Some two months after this decision, appellant again submitted an application for change of non-immigrant status from temporary visitor to that of student. This application was denied on November 18, 1968, on the following grounds: (1) that the applicant failed to present documentary evidence establishing financial resources capable of supporting him, and (2) that applicant had ample time to complete the purpose for which he entered the United States. 4 Clearly, the documentary, or other, evidence submitted by appellant is wholly insufficient to establish the necessary financial responsibility. When analyzed, the purported affidavit of support is meaningless. Without going into detail, we have no difficulty in concluding that the decision of the appellee on this point was not clearly erroneous. On the facts presented, the appellee did not abuse his discretion in denying the application. Dong Yup Lee v. U. S. Immigration & Naturalization Service, 407 F.2d 1110, 1113 (9th Cir. 1969). We are not permitted to make an independent inquiry into the facts and try the issues de novo. Yau v. District Director of U. S. Immigration & Naturalization Service, 293 F.Supp. 717, 721 (C.D.Cal.1968); Todaro v. Pederson, 205 F.Supp. 612 (N.D. Ohio 1961), aff'd. 305 F.2d 377 (6th Cir. 1962), cert. denied 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124. 5 Our conclusion on the issue of financial irresponsibility makes it unnecessary to speak on the issue of whether appellant had ample time within which to complete the purpose for which he entered the United States. 6 The employment of summary judgment procedures in the District Court was proper on the record here presented. Tang v. District Director of U. S. Immigration & Naturalization Service, 298 F.Supp. 413 (C.D.Cal.1969); Yau v. District Director of U. S. Immigration & Naturalization Service, supra. The judgment of the District Court is 7 Affirmed.

946 F.2d 890 U.S.v.Hawkins* NO. 90-8173 United States Court of Appeals,Fifth Circuit. SEP 25, 1991 Appeal From: W.D.Tex. VACATED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

16 F.3d 1228NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. NATIONAL SUPER MARKETS, INC., Appellant,v.TUCKER HOUSEWARES, INC.; Angelo Santino, Appellees. No. 93-2328. United States Court of Appeals,Eighth Circuit. Submitted: December 15, 1993.Filed: January 11, 1994. Before MAGILL, Circuit Judge, BRIGHT, Senior Circuit Judge, and VAN SICKLE,* Senior District Judge. PER CURIAM. 1 After settling a lawsuit with its customer (the Engles) for $355,000, National Super Markets, Inc. (National) sought contribution or indemnity from two other parties allegedly liable to the customer. These parties are defendants Angelo Santino and Tucker Housewares (Tucker). The district court granted summary judgment for these defendants and National appeals. We affirm. 2 The Engles had originally sued National for recovery of damages based on negligence. National settled with the Engles, and the parties entered into a release agreement in which National and the Engles preserved certain rights: the customer preserved its right to sue other tortfeasors (including Tucker) for damages, and National preserved its rights against Tucker and others who may have sold or distributed the storage bins which had collapsed onto Mrs. Engle. 3 Later, the Engles sought damages from Tucker in a separate lawsuit. Tucker settled with the Engles for $150,000 and these parties executed an agreement which fully released Tucker and all other tortfeasors from further liability. 4 National's instant suit followed this second settlement. In denying relief Chief District Judge Edward L. Filippine wrote a comprehensive opinion which detailed why National's claims for contribution and indemnity, both contractual (stemming from a purchase order) and non-contractual, failed. 5 We have reviewed the record and the contentions of the parties. The trial court's disposition of this case shows neither error of law or fact. Accordingly, we affirm. See Eighth Circuit Rule 47B. * The HONORABLE BRUCE M. VAN SICKLE, Senior United States District Judge for the District of North Dakota, sitting by designation

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 13 2018, 9:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel J. Vanderpool Curtis T. Hill, Jr. Vanderpool Law Firm, P.C. Attorney General of Indiana Warsaw, Indiana Evan Matthew Comer Robert J. Henke Deputy Attorneys General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In the Matter of the Termination March 13, 2018 of the Parent-Child Relationship Court of Appeals Case No. of M.D., E.M.D., E.J.D., and 85A02-1709-JT-2180 G.D. (Minor Children) and Appeal from the Wabash Circuit J.D. (Father), Court The Honorable Robert R. Appellant-Respondent, McCallen, III, Judge v. Trial Court Cause Nos. 85C01-1604-JT-6 85C01-1604-JT-7 Indiana Department of Child 85C01-1604-JT-8 Services, 85C01-1604-JT-9 Appellee-Petitioner. Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 1 of 6 [1] J.D. (“Father”) appeals the Wabash Circuit Court’s order terminating his parental rights to his four children. Father argues that the trial court abused its discretion when it failed to continue the fact-finding hearing after observing Father’s agitated mental state. [2] We affirm. Facts and Procedural History [3] Father has four children. M.D., born in 2001, E.M.D., born in 2003, E.J.D., born in 2005, and G.M.D., born in 2007. In 2011, Father was charged with molesting E.M.D., and he pleaded guilty to Class A felony child molesting in 2013. Father is serving his sentence in the Department of Correction, and his earliest anticipated release date is in 2033. [4] The children remained with their mother until June 2014. On June 19, 2014, the Department of Child Services (“DCS”) filed petitions alleging that the children were children in need of services because they had been abandoned, and they lacked food and shelter. The children were removed from their mother’s care and placed in foster care. DCS offered the children’s mother services, but her participation was inconsistent. [5] DCS did not offer Father services due to his incarceration. Father has not attempted to communicate with the children while he has been incarcerated and has not seen the children for several years. Father participated in counseling and parenting classes through the Department of Correction, but claims he no longer needs counseling. Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 2 of 6 [6] On April 22, 2016, DCS filed a petition to terminate Father’s parental rights.1 After several continuances, the fact-finding hearing was held on August 23, 2017. [7] At the hearing, the trial court asked Father’s attorney if Father was going to voluntarily relinquish his parental rights. Father’s attorney replied that he was having a hard time having meaningful communication with him. . . . [H]e’s. . . very agitated and withdrawn. His moods are unstable today. I’ve inquired about [] what medication he’s on. The Jail’s indicated that he’s received his prescribed medicine. . . I don’t think . . . he’s in a frame of mind where a voluntary termination should be taken by the Court. In any event, he’s indicated he doesn’t want to do that. Tr. p. 9–10. Father’s attorney then stated that Father’s agitation and communication issues were impairing his “ability to effectively represent him today.” Id. at 10. [8] The trial court responded that the court had “significant knowledge of [Father] and his . . . antics” because the court presided over Father’s criminal proceedings. Id. The court noted that Father’s behavior was unpredictable and “somewhat hysterical” but that Father was “fully aware of what he was doing.” Therefore, the court stated, “I don’t think that [h]is antics ought to unnecessarily delay the proceedings today.” Id. And the court determined that 1 The children’s mother voluntarily relinquished her parental rights at the August 23, 2017 fact-finding hearing. Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 3 of 6  it would continue with the fact-finding hearing. The court also denied Father’s request for a new lawyer. [9] On the same day as the fact-finding hearing, the trial court issued an order terminating Father’s parental rights. The trial court found that the children could not be placed with Father because he is incarcerated and his earliest possible release date is in 2033. Further, the court found that E.M.D. had suffered “immense trauma” as a result of being molested by Father, and Father “has a total disregard for what is best for his children as evidenced by his decision to molest [E.M.D].” Appellant’s App. p. 9. [10] Father now appeals. Discussion and Decision [11] Father’s sole argument on appeal is that the trial court abused its discretion when it held the fact-finding hearing after observing Father’s behavior. Father contends that his attorney’s statement concerning his impaired ability to represent Father due to his agitation and inability to effectively communicate was, in effect, a motion to continue the fact-finding hearing. [12] But Father never specifically asked the court to continue the fact-finding hearing. Therefore, he waived this issue for review. See Ind. Appellate Rule 46(A)(8)(a); In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (“In order to properly preserve an issue on appeal, a party must, at a minimum, ‘show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.’”), trans. denied (citations omitted). Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 4 of 6 [13] Even if we agreed with Father that his attorney’s statements constituted a request for a continuance, we observe that a trial court’s ruling on a non- statutory motion for a continuance is within the sound discretion of the trial court. J.M. v. Marion Cty. Office of Family and Children, 802 N.E.2d 40, 43 (Ind. Ct. App. 2004), trans. denied. And the court’s decision “will be reversed only upon a showing of an abuse of discretion and prejudice resulting from such an abuse.” Id.; Rowlett v. Vanderburgh Cty. Office of Family and Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006) (“[N]o abuse of discretion will be found when the moving party has not demonstrated that he or she was prejudiced by the denial.”), trans. denied. [14] We are also aware that there is a cost in delaying the adjudication of termination cases in that they impose a strain upon the children involved and exact “an intangible cost” to their lives. In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006), trans. denied. While continuances may certainly be necessary to ensure the protection of a parent’s due process rights, courts must also be cognizant of the strain these delays place on a child. In re C.C., 788 N.E.2d 847, 853 (Ind. Ct. App. 2003), trans. denied. [15] Under the facts and circumstances of this case, Father cannot demonstrate that he was prejudiced when the trial court refused to continue the fact-finding hearing. Father is incarcerated until 2033 for Class A felony child molesting. Father molested his oldest daughter, and she continues to suffer significant trauma from the molestation. Importantly, all of the children will have reached the age of eighteen years before Father is released from prison. Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 5 of 6 [16] Furthermore, the trial court believed based on past experience with Father that he was faking his agitation and irrational mental state. Tr. p. 10. Father participated in the hearing, and he understood and answered the questions that were asked of him. After reviewing the record, we agree with the trial court’s assessment that Father was mentally aware and understood the proceedings. The children deserve permanency after being in foster care for over three years. Because Father has not established that he was prejudiced when the trial court failed to continue the fact-finding hearing, we affirm the trial court’s order terminating Father’s parental rights to M.D., E.M.D., E.H.D, and G.D. [17] Affirmed. Najam, J., and Barnes, J., concur. Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 6 of 6 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-147V UNPUBLISHED LISA M. JACKSON Chief Special Master Corcoran p/k/a Lisa M. Gilbertson, Filed: April 13, 2020 Petitioner, v. Special Processing Unit (SPU); Ruling on Entitlement; Concession; SECRETARY OF HEALTH AND Table Injury; Tetanus Diphtheria HUMAN SERVICES, acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Kate Gerayne Westad, SiebenCarey, Minneapolis, MN, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On January 29, 2019, Lisa Jackson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a Tetanus, Diphtheria, acellular Pertussis (“Tdap”) vaccine administered on February 4, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On April 10, 2020, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). at 1. Specifically, Respondent concludes that Petitioner’s “medical course is consistent with SIRVA as defined by the Vaccine Injury Table and corresponding Qualifications and Aids to Interpretation.” Id. at 6. Respondent further agrees that Petitioner “suffered the residual effects of her condition for more than six months.” Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 

892 So.2d 852 (2003) Christopher CALLAWAY and Joy Callaway v. Michael WHITTENTON. 1020660. Supreme Court of Alabama. December 19, 2003. Rehearing Denied May 14, 2004. *853 Desmond V. Tobias of Windom & Tobias, L.L.C., Mobile, for appellants. David M. Wilson and Jud C. Stanford of Wilson & Berryhill, P.C., Birmingham, for appellee. SEE, Justice. Christopher Callaway and Joy Callaway appeal from a judgment as a matter of law entered in favor of Michael Whittenton. They argue that their claims alleging wrongful repossession and trespass should have been submitted to the jury. We affirm the trial court's judgment as a matter of law as to the trespass claim, reverse it as to the wrongful-repossession claim, and remand the case. I. On May 10, 2000, Christopher Callaway purchased a 1993 Geo Tracker sport utility vehicle from Summerdale Budget Auto & Truck, Inc.("Budget"). Baldwin Finance, Inc., which financed the Callaways' purchase of the Tracker, held a lien on the Tracker; the sales agreement entered into by the Callaways and Budget gave Budget and Baldwin Finance the right to repossess the vehicle in the event of a default. The Callaways did not make the payment due in August. On August 31, 2000, Whittenton, who repossessed cars as an unincorporated independent contractor, repossessed the Tracker without incident. Christopher paid the past-due amount and the repossession fee and retook possession of the Tracker. The Callaways allege that Budget orally agreed to extend the date the October payment was due to November 24, 2000. The only evidence of this oral agreement is the Callaways' testimony; the record contains no evidence presented by Budget regarding the alleged extension, and there is no evidence of consideration for the alleged agreement to defer the October payment. The Callaways did not make the October payment when it was due, and Whittenton repossessed the Tracker again on November 6, 2000, at approximately 11:00 a.m. The second repossession is the subject of this action. The parties disagree as to what happened on November 6, 2000. What follows is the not altogether consistent account of events according to the Callaways. Joy heard noises outside their residence, and when she went outside to see what was happening, she saw Whittenton, who was repossessing the Tracker. Joy asked Whittenton to leave the property, but *854 Whittenton continued with the repossession. Joy went back inside the house and told Christopher that Whittenton was taking the Tracker. Christopher told Whittenton to stop and told Whittenton that he needed to get some things out of the Tracker before Whittenton took it. Joy telephoned Budget to make sure that the due date for the October payment had been extended and, while she was on the telephone with Budget, she heard Christopher talking to Whittenton. Then, she heard her husband scream. The following events apparently preceded his scream. Whittenton had secured the Tracker to his truck, and Christopher saw Whittenton walk around to the driver's side of his truck and get in. Whittenton was not looking in Christopher's direction when Christopher walked outside. Christopher grabbed the roll bar on the Tracker as Whittenton began to drive away. Christopher banged on Whittenton's truck and yelled to get Whittenton's attention. Then, as Whittenton was driving down the driveway, the Tracker hit a pothole, and Christopher lost his balance. While he was trying to regain his balance, the rear tire on the driver's side of the Tracker ran over Christopher's foot. Christopher then grabbed the roll bar on the Tracker again so that it would not run over him. Whittenton continued driving, dragging Christopher down the driveway and 60-100 feet down Highway 10. One of the vehicles ran over the family's cat. Whittenton's testimony differs markedly from that of the Callaways. He says that he did not have a conversation with Joy as he was hooking up the Tracker in order to tow it, and that he saw Christopher run through a ditch, run beside the Tracker, and jump onto the vehicle. Whittenton testified that he stopped his truck after turning onto Highway 10 because he saw Christopher jump between the truck towing the Tracker and the Tracker. Another witness, Ronnie Black, testified that he saw Christopher run through a ditch and jump onto the Tracker while it was on Highway 10. The Callaways sued Whittenton, Budget, and Baldwin Finance, alleging assault and battery, negligence, wantonness, trespass, civil conspiracy, and wrongful repossession (a violation of § 7-9-503, Ala.Code 1975 (secured party's right to take possession after default; replaced by § 7-9A-609)); Joy alleged loss of consortium. Budget and Baldwin Finance separately moved to compel arbitration, and on October 30, 2001, the trial court granted their motions.[1] The Callaways' claims against Whittenton were tried. On December 12, 2002, at the close of the Callaways' case, the trial court granted Whittenton's motion for a judgment as a matter of law as to the wrongful-repossession, trespass, and civil-conspiracy claims. The remaining claims-negligence, wantonness, assault and battery, and loss of consortium-were submitted to the jury. The jury found in favor of Whittenton on all claims. The Callaways appeal the trial court's judgment as a matter of law as to their claims of wrongful repossession and trespass. II. The standard of review for a ruling on a motion for a judgment as a matter of law is well settled: "`An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, *855 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present "substantial evidence" in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, supra, at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).' "Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000) (footnote omitted). `[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)." Eagle Prods., Inc. v. Glasscock, 882 So.2d 280, 282 (Ala.2003). III. For the Callaways to prevail, they must present sufficient evidence to allow the issue to be submitted to the jury. Section 7-9A-609, Ala.Code 1975, states: "After default, a secured party: "(1) may take possession of the collateral.... "(b) ... A secured party may proceed under subsection (a): "(1) pursuant to judicial process; or "(2) without judicial process, if it proceeds without breach of the peace."[2] Although the Callaways allege that Budget agreed to allow them to make the October payment late, there is no evidence in the record that the Callaways supplied any consideration for the alleged agreement. See Big Three Motors, Inc. v. Rutherford, 432 So.2d 483, 488 (Ala.1983), in which Chief Justice Torbert, concurring specially, stated "an agreement to extend the time of payment of a previously due obligation must be based itself on adequate consideration. Webb v. Dickson, 276 Ala. 553, 165 So.2d 103 (1964)." Christopher admits that he had not made the October payment on the Tracker before Whittenton repossessed it. Therefore, the Callaways were in default under the purchase agreement, and Budget was entitled to take possession of the car. However, Budget was required to take possession without causing a breach of the peace. This Court, in Madden v. Deere Credit Services, Inc., 598 So.2d 860 (1992), describes the right of self-help repossession as a "limited privilege": *856 "Under Alabama law, the secured creditor, in exercising the privilege to enter upon the premises of another to repossess collateral, may not perpetrate `[a]ny act or action manifesting force or violence, or naturally calculated to provide a breach of the peace.' Neither may a creditor resort to constructive force, such as `threats or intimidation,' or to `fraud, trickery, chicanery, and subterfuge.' "The phrase `breach of the peace' has been further defined as any `situation tending to disturb the public order.' It is `a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace, or, as is sometimes said, it includes any violation of any law enacted to preserve the peace and good order.' Consequently, actual `[c]onfrontation or violence is not necessary to finding a breach of the peace.'" Id. at 865 (citations omitted). This Court in General Finance Corp. v. Smith, 505 So.2d 1045, 1048 (Ala.1987), stated that § 7-9-503 (now § 7-9A-609) "allows the secured party to proceed without judicial process only if that can be done peacefully (i.e., without risk of injury to the secured party, the debtor, or any innocent bystanders)." In W.J. Speigle v. Chrysler Credit Corp., 56 Ala.App. 469, 323 So.2d 360 (Ala.Civ.App.1975), the Court of Civil Appeals held that there was no breach of the peace when the secured creditor parked behind the debtor's car in order to prevent the debtor from leaving the secured creditor's parking lot. The Court of Civil Appeals stated: "[T]he record present[ed] no evidence of any threats or rude language spoken by the defendants or their agents during the repossession.... Since there is no evidence that any actual physical force or constructive force was exercised by defendants in carrying out the repossession of the vehicle or that a breach of the peace occurred during that time, the trial court's finding [that there was no breach of the peace] is not erroneous." 56 Ala.App. at 474, 323 So.2d at 363. 4 James J. White & Robert S. Summers, Uniform Commercial Code § 34-7 (4th ed.1995), states: "[T]he great majority of courts find unauthorized entries into the debtor's residence to be breaches of the peace, and may find entry into his garage to be such a breach. As one moves away from the residential threshold to the yard, the driveway, and finally the public street, however, the debtor's argument becomes progressively more tenuous. We have found no case which holds that the repossession of an automobile from a driveway or a public street (absent other circumstances, such as the debtor's objection) itself constitutes a breach of the peace, and many cases uphold such a repossession." (Footnotes omitted.) In Chrysler Credit Corp. v. Koontz, 277 Ill.App.3d 1078, 661 N.E.2d 1171, 214 Ill.Dec. 726 (1996), the Appellate Court of Illinois found that there was no breach of the peace when the debtor ran outside while the creditor was repossessing the car and yelled, "Don't take it," and the creditor continued the repossession of the car. In Clark v. Auto Recovery Bureau Conn., Inc., 889 F.Supp. 543 (D.Conn.1994), the repossessing team had hooked the plaintiff's car to the tow truck and had started driving away when the plaintiff voiced an objection to the repossession and started moving toward the car. A third person restrained the plaintiff, and the car was successfully repossessed. The court stated: "`Once a repossession agent has gained sufficient dominion over collateral to control it, the repossession has been *857 completed.'" 889 F.Supp. at 547 (quoting James v. Ford Motor Credit Co., 842 F.Supp. 1202, 1209 (D.Minn.1994)). In Clark, the car had already been moved from its parking spot when the plaintiff began objecting to the repossession. On the other hand, in Burgin v. Universal Credit Co., 2 Wash.2d 364, 98 P.2d 291 (1940), and Sanchez v. Mbank of El Paso, 792 S.W.2d 530 (Tex.Ct.App.1990), the courts held that the creditor was liable for the debtor's injuries when the debtor offered passive physical resistance, such as refusing to leave the car. In DeMary v. Rieker, 302 N.J.Super. 208, 695 A.2d 294 (1997), the court held that a breach of the peace occurred when the debtor, who had positioned herself on the passenger side of the truck towing the collateral before it pulled away, was thrown from the truck. The parties before us dispute the events that took place on November 6, but the testimony of the Callaways, though somewhat contradictory, is substantial evidence that the repossession was not accomplished "peacefully (i.e., without risk of injury to the secured party, the debtor, or any innocent bystanders)." Smith, 505 So.2d at 1048. Christopher's testimony, if it is to be believed, is that while the Tracker was still in the driveway, he was beating on the side of Whittenton's truck and yelling loudly enough to get Whittenton's attention as Whittenton began to drive away: "Q. How were you speaking? "A. I was yelling. I mean I was trying to speak in an audible enough voice where he [Whittenton] could hear me. "Q. Were you banging or anything like that? "A. I had been banging on the side of his [Whittenton's] vehicle, yes. "Q. Was that prior to your foot being run over? "A. Yes. And at that point I had smacked the side of his vehicle about, I would say, four or five times extremely hard enough to get his [Whittenton's] attention." Christopher testified that the Tracker ran over his foot, that he grabbed the roll bar on the Tracker, and that Whittenton continued to drive the truck towing the Tracker, dragging Christopher down the driveway. Viewing the evidence in the light most favorable to the Callaways as the nonmovants, as we must, we conclude that the Callaways presented sufficient evidence from which a jury could conclude that a breach of the peace occurred during the repossession because Whittenton used physical force to overcome Christopher's efforts to prevent the removal of the Tracker from the Callaways' front yard. Because we find that the Callaways' wrongful-repossession claim should have been submitted to the jury on the question whether there had been a breach of the peace before the Tracker was removed from the Callaways' property, we reverse the judgment as a matter of law as to this issue and remand the case for further proceedings consistent with this opinion. IV. The Callaways also argue that the trial court erred in granting Whittenton's motion for a judgment as a matter of law as to their trespass claim. Restatement (Second) of Torts § 158 (1965) states: "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally "(a) enters land in the possession of the other, or causes a thing or a third person to do so, or "(b) remains on the land, or "(c) fails to remove from the land a thing which he is under a duty to remove." *858 The Court of Civil Appeals in Garrison v. Alabama Power Co., 807 So.2d 567, 570 (Ala.Civ.App.2001), stated: "We note that `[t]respass has been defined as any entry on the land of another without express or implied authority....'" Also, "[t]respass is the unlawful or wrongful interference with another's possession of property...." Michael L. Roberts & Gregory S. Cusimano, Alabama Tort Law § 30.0 (3d ed.2000). Whittenton does not deny that he entered the Callaways' property; however, § 7-9A-609 gives a secured creditor the right to enter a debtor's land for the purpose of repossession. See § 7-9A-609, Ala.Code 1975, and Madden, 598 So.2d at 865 ("Under Alabama law, the secured creditor, in exercising the privilege to enter upon the premises of another to repossess collateral, may not perpetrate `[a]ny act or action manifesting force or violence, or naturally calculated to provide a breach of the peace....'"). Because Whittenton entered onto the Callaways' property for the purpose of repossessing the Tracker, Whittenton had a legal right to be on the premises, and we affirm the trial court's judgment as a matter of law on this issue. V. Because Whittenton had a legal right to be on the Callaways' premises, he did not trespass on their property; therefore, we affirm the trial court's judgment as a matter of law as to the trespass claim. However, viewing the evidence in the light most favorable to the nonmovant Callaways, as we must, we conclude that they presented sufficient evidence from which a jury could conclude that in repossessing the Tracker Whittenton breached the peace; therefore, the claim alleging wrongful repossession should have been submitted to a jury. We reverse the judgment as a matter of law as to the wrongful-repossession claim and remand the case for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. BROWN, HARWOOD, and STUART, JJ., concur. JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment. JOHNSTONE, Justice (concurring in the rationale in part and concurring in the judgment). While the statement of facts in the plaintiffs-appellants Callaways' brief recites that they obtained an extension of the deadline for making the delinquent payment that occasioned the repossession at issue, the Callaways do not argue any such extension as any part of the basis for their trespass and wrongful-repossession claims. Indeed, the issue and argument sections of their brief and reply brief do not even mention any such extension, much less cite any authority for the effectiveness or the effect of such an extension. Thus, the Callaways effectively concede, for the purpose of the issues in the appeal now before us, that the payment was delinquent. Ex parte Martin, 775 So.2d 202, 206 (Ala.2000) ("`When an appellant fails to argue an issue in [his] brief, that issue is waived.'" (quoting Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982))). See Rule 28(a)(10), Ala. R.App. P. Therefore, the statement in the main opinion, quoting Chief Justice Torbert's special concurrence in Big Three Motors, Inc. v. Rutherford, 432 So.2d 483, 488 (Ala.1983), that "an agreement to extend the time of payment of a previously due obligation must be based itself on adequate consideration," is dictum in the context of the case now before us, and likewise the implication that an extension of the payment deadline was ineffective for lack of new consideration in the case now before us is dictum. 892 *859 So.2d at 855. The issues in the appeal now before us do not require us to decide whether or not the Callaways gave or needed new consideration for such an extension. I write specially because an estoppel may save the efficacy of even an extension granted without adequate consideration. Ott v. Fox, 362 So.2d 836, 839 (Ala.1978). I recognize that an estoppel is no more at issue than an extension or consideration for one in the case now before us. Except for the dictum I have discussed in this special writing, I concur in the rationale of the main opinion, and I concur in the judgment. NOTES [1] The arbitration proceeding remains pending; there is some confusion regarding which claims are foreclosed by the trial court's disposition of the claims against Whittenton. [2] Section 7-9A-609 replaced former § 7-9-503, Ala.Code 1975, which read: "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace...." Neither § 7-9A-609 nor § 7-9-503 defines "breach of the peace."

923 P.2d 740 (1996) In the Matter of the ESTATE OF Joseph ZELIKOVITZ, Deceased. No. 95-265. Supreme Court of Wyoming. September 12, 1996. *741 Henry C. Phibbs, II of Phibbs Law Office P.C., Jackson, for Appellant Melba Zelikovitz. Floyd R. King of King & King, Jackson, for Appellees Susan Zelikovitz, Elaine Stein, and Steven Zelikovitz. Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN[*] and LEHMAN, JJ. THOMAS, Justice. The issue is what law governs the execution of the codicil of Joseph Zelikovitz (Zelikovitz), a Wyoming resident, who executed the codicil in Oklahoma, and who died in Teton County. We hold, contrary to the decision of the trial court, that the critical codicil was executed according to the law of Wyoming, and it should be admitted to probate. We reverse the Order Granting Petition to Revoke Probate of Second Codicil, and we remand the case to the probate court for further proceedings in accordance with this opinion. In the Brief of Appellant Melba Zelikovitz (Melba), these are the asserted issues: 1. Whether the district court was in error in its ruling that since the adoption of the new Wyoming Probate Code in 1980, California law is neither controlling or persuasive authority in the determination of questions of first impression involving provisions of the Probate Code. 2. Whether under California precedent the district court was in error in ruling that a notary public who observed a decedent sign a codicil, knowing that it was a codicil, and signed the document as notary, should be considered to be a witness to the execution of the codicil under W.S. § 2-6-112. 3. Whether the district court erred in its choice of law when it ruled that Oklahoma law was controlling, as the Oklahoma precedent was based on different statutory language from Wyoming, and the use of such law resulted in the defeat of a testator's clear intention on the basis of a technicality not present in the Wyoming Probate Code. The Brief of Appellees Susan Zelikovitz, Elaine Zelikovitz Stein and Steven Zelikovitz (Zelikovitz children) states the issues in this way: There is one principal issue presented for review which the appellees would state as follows: Was the attempted second codicil of the decedent, Joseph Zelikovitz, properly executed according to law and therefore entitled to be admitted to probate in the state of Wyoming? The two sub-issues involve the choice of law and the statutory requirements in the State of Oklahoma where the codicil was prepared and executed. The appellees believe those issues should be stated as follows: I. The probate court was correct in determining that since the adoption of the Wyoming Probate Code the California precedents have not been controlling or extremely persuasive and that the court would look to Oklahoma law to determine the codicil's validity. II. The probate court was correct in determining that under Oklahoma law the codicil was invalid as not having been properly executed and was not entitled to be admitted to probate in the state of Wyoming. Zelikovitz executed his Last Will and Testament (Will) on June 6, 1990, in which he bequeathed $25,000 to Steven Zelikovitz stating, *742 "he has already benefited from my estate during his lifetime." The residue of the estate, except for certain described limited and specific bequests, was bequeathed to Susan Zelikovitz and Elaine Zelikovitz. The Will named Steven Zelikovitz, Elliot Levitan, and David Ross as executors and trustees. About six months later, Zelikovitz executed a first codicil in which he revoked the appointment of Levitan and Ross as executors and trustees and appointed Susan and Elaine in their stead. By November 7, 1994, a document entitled "Joseph's Last Will & Testament" (second codicil) had been prepared, which actually was in the handwriting of Zelikovitz' wife, Melba. That document is the focus of this case. The second codicil removed Steven Zelikovitz and David Ross as executors and trustees, removed Susan and Elaine as executors and trustees named in the first codicil, and appointed Jerry Owen and Bernie Greenblott as new executors and trustees. The second codicil, including interlineation, provided: Joseph's Last Will & Testament * * * * * * Last Will & Testament Residuary Estate—I ca revoke all of this paragraph and in its place all my the residue of my estate shall go to my wife, Melba Zelikovitz, for her soul sole benefit. Add all my personal papers, patents, patent pendings and all my development work, lab models plus all my personal property and effects, art, glass sculptures, etc. will become the sole undisputed property of my beloved wife, Melba Zelikovitz. On November 7, 1994, Zelikovitz and Melba went to the Grove Tag Agency (Agency)[1] in Grove, Oklahoma. Activity at the Agency was tumultuous because it was open for the first day at a new location, was short the services of two employees, and was experiencing computer problems and a heavy volume of business transactions when the Zelikovitz couple arrived. Zelikovitz and Melba sought out Dee Lawson (Lawson), an acquaintance who was employed at the Agency. Zelikovitz explained to Lawson he was making some changes to his Will, and he asked that a notary public and two people witness the execution of the second codicil and a document addressed to his attorney in Jackson, Wyoming. Lawson asked the owner of the Agency, Susie Nichols (Nichols), to serve as the notary public. Both Lawson and Nichols understood the document represented changes to Zelikovitz' Will, and they saw him sign the second codicil. After observing Zelikovitz sign the second codicil, Nichols wrote: "Signed before me this 7th day of Nov 1994 Susie Nichols 11-08-97 [expiration date of notary commission]" before Lawson or any other witness signed the document. Apparently Nichols then resumed her duties, and she did not observe anyone else sign the second codicil as a witness. At some point in time, the words "Witnessed by" were added at the bottom of the second codicil, to the left of Zelikovitz' signature, and Lawson signed her name below that, out of the presence of any other witness. Lawson asked Lisa Humble (Humble), another employee of the Agency, to be the second witness. Humble then signed her name below that of Lawson and under the words "Witnessed by." The execution at the end of the document reads: Witnessed by: Dee A. Lawson /s/ Joseph Zelikovitz Nov 7/1994 /s/ Lisa Humble /s/ Signed before me this 7th day of Nov 1994 Susie Nichols 11-08-97 /s/ Zelikovitz and Melba then returned to Jackson, Wyoming, where Zelikovitz died on December 3, 1994. All parties are in accord that Zelikovitz was a resident of Teton County at the time of his death, and there appears to be no dispute he was a resident of Teton County at the time the second codicil was executed. On January 3, 1995, the personal representatives named in the second codicil filed a petition to admit the Will and the two codicils *743 to probate in Teton County. An order was entered admitting the Will and the two codicils to probate and appointing the personal representatives named in the second codicil. Some three days following that order, the Zelikovitz children filed their petition for probate of the 1990 Will and 1991 codicil without referring to the second codicil. After that petition for probate was presented, the court revoked its order of January 6, 1995 and, on February 1, 1995, the court entered another order admitting the Zelikovitz Will and both codicils to probate. That order also appointed the personal representatives whom Zelikovitz had named in the second codicil, but expressly provided Letters Testamentary should not issue, and did not require the posting of any bond until the court could rule on any action to set aside the Will or any portion of it. After that last order, the Zelikovitz children filed a Petition to Revoke the Probate of Second Codicil, on which a hearing was held April 20, 1995. The court received testimony from Lawson and Nichols. Humble, both by a deposition and an affidavit, admitted she did not see Zelikovitz, Lawson, or Nichols sign the second codicil, and she had not been informed the document was a codicil or a will. The testimony by Humble established Lawson's signature was already on the document at the time Humble signed it, and Lawson, not Zelikovitz, had asked her to sign the document. After the hearing, the court entered an Order Granting Petition to Revoke Probate of Second Codicil, stating the execution of the second codicil was governed by Oklahoma law. The court ruled the second codicil was not valid because it did not contain the signature of two subscribing witnesses and found, under Oklahoma law, the notary public would not qualify as a witness. After the court denied her motion to reconsider, Melba appealed from that order. The parties vigorously debate the choice of foreign law, which they contend ought to be applied in this case. We have no reason to resolve that debate. The Will is to be proved in Teton County pursuant to WYO. STAT. § 2-2-102(a)(i) (1980). We hold we need to look only to the law of our state to determine the validity of the execution of the second codicil, unless the execution did not conform to the requirements of our statute. Only in that event would we be justified in turning to the law of the place where it was executed. Under our statutes, "`[w]ill' includes the words `testament' and `codicil.'" WYO. STAT. § 8-1-102(a)(viii) (1993). The validity of the execution of a will is governed by WYO. STAT. § 2-6-116 (1980), which states: A written will is valid if executed in compliance with W.S. 2-6-112 or 2-6-113[[2]] or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national. (Emphasis added.) The statute refers to WYO. STAT. § 2-6-112 (1980), which provides, in pertinent part: Except as provided in the next section [§ 2-6-113], all wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction. Our application of Wyoming law is supported by WYO. STAT. § 2-6-104 (1980), which offers this guidance concerning the choice of law as to the meaning and effect of wills: The meaning and legal effect of a disposition in a will is determined by the law of the state in which the will was executed, unless the will otherwise provides or unless the application of that law is contrary to the public policy of this state otherwise applicable to the disposition. This provision addresses the substantive effect of the language of the will. See Matter of Reed's Estate, 768 P.2d 566 (Wyo.1989). Had the legislature intended to apply the law of the place of execution to the requirements *744 for a valid execution, that direction would have been included in WYO. STAT. § 2-6-104. We would not have WYO. STAT. § 2-6-116 as a part of our statutory scheme. We have said, "[i]t is the duty of the courts when construing legislation to attempt to effectuate the purposes and intent of the legislature." State ex rel. Albany County Weed and Pest Dist. v. Bd. of County Comm'rs of Albany County, 592 P.2d 1154, 1158 (Wyo. 1979). In this instance, the legislature was solid with respect to its intent. It provided, in WYO. STAT. § 2-1-102 (1980), with respect to the issue before us: (a) This code shall be liberally construed and applied, to promote the following purposes and policies to: * * * * * * (ii) Discover and make effective the intent of a decedent in distribution of his property; * * *. All the parties agree Humble would not qualify as a witness under WYO. STAT. § 2-6-112. The findings of the probate court confirm this by stating, "[t]he parties agree that Lisa Humble, the second attesting witness to the decedent's second codicil was not qualified as a witness because she did not actually witness the decedent sign the codicil." We accept that as a proper construction of WYO. STAT. § 2-6-112, but the focus of the issue then becomes whether Nichols, who intended to and did act as a notary public, qualifies as a witness to the second codicil under Wyoming law. We hold the requirements of WYO. STAT. § 2-6-112 are met. The probate court, in its findings, described the second codicil as a "handwritten will," thus, the requirement that "all wills to be valid shall be in writing, or typewritten" was satisfied. The probate court also found Zelikovitz signed the codicil, and the requirement that it be "signed by the testator" was met. Finally, the probate court, in its findings, states, "Susie Nichols notarized Joseph Zelikovitz' signature and witnessed Zelikovitz sign the document." That is confirmed by another finding stating, "Joseph Zelikovitz signed the second codicil at the end thereof, * * *. He also signed it in the presence of the notary public, Susie Nichols." There is no provision in the Wyoming statutes, nor any ruling in our cases, that would inhibit the notary public from serving as a witness, even if she intended to and did sign the document as a notary public. The second codicil was "witnessed by two (2) competent witnesses," in accordance with the statute. Nichols satisfied the construction given to WYO. STAT. § 2-6-112 by observing Zelikovitz sign the codicil and then signing herself. There is no requirement in our statutes that the witnesses sign in the presence of one another, although that does foreclose the prospect of having a self-proving will pursuant to WYO. STAT. § 2-6-114 (1980). We hold, under our law, Nichols qualified as the second witness, and the requirements of our statute for the execution of a valid will were satisfied. In In re Estate of Carey, 504 P.2d 793, 801 (Wyo.1972), we repeated the proposition: "It was signed by the testator and witnessed by two witnesses at his request. That was sufficient." In re Stringer's Estate, 80 Wyo. 389, [424], 343 P.2d 508, 522, rehearing denied and modified on other grounds 80 Wyo. 389, 345 P.2d 786 [(1959)]. The second codicil should have been admitted to probate. Melba vigorously contends resolution of this case should be controlled by reference to California decisions. We readily acknowledge we have historically relied upon California decisions on the theory that our probate code was derived from the California Probate Code, and the decisions of the California courts construing parallel provisions were highly persuasive. Dainton v. Watson, 658 P.2d 79 (Wyo.1983); Matter of Kimball's Estate, 583 P.2d 1274 (Wyo.1978); Matter of Reed's Estate; In re Randall's Estate, 506 P.2d 432 (Wyo.1973); Gaunt v. Kansas University Endowment Ass'n of Lawrence, Kansas, 379 P.2d 825 (Wyo.1963); Wilson v. Martinez, 76 Wyo. 196, 301 P.2d 785 (1956); and Edelman v. Edelman, 65 Wyo. 271, 199 P.2d 840 (Wyo.1948). While this approach has been taken in the history of our probate law, we have recognized, in this instance, *745 there is no need to turn to California law. We conclude adjustments in the probate code of our state and that of California cause us to no longer treat California precedent as having additional persuasive authority with respect to Wyoming probate statutes. California cases will hereafter be afforded the same persuasive weight as those of any other sister jurisdiction. The Zelikovitz children, as they did in the probate court, rely heavily upon the application of Oklahoma law. For the reasons already articulated, we see no need to turn to the law of Oklahoma to resolve this case. Consequently, we do not do so. Because the second codicil to the Will was executed in accordance with the appropriate laws of the State of Wyoming, we hold it should have been admitted to probate in Teton County. The Order Granting Petition to Revoke Probate of Second Codicil is reversed, and this case is remanded to the probate court in Teton County for further proceedings in the administration of the estate. NOTES [*] Chief Justice at time of oral argument. [1] The Grove Tag Agency, on behalf of the State of Oklahoma, issued car, boat, and motor vehicle registration as well as driver licenses. [2] WYO. STAT. § 2-6-113 (1980) relates to holographic wills and is not relevant to this determination.

262 F.Supp.2d 468 (2002) James W. KEISER, George M. Showers, Richard R. Vanhorn, and Richard E. Wilkin, on behalf of themselves and all other members of the Churches of God, Plaintiffs, v. MATAMORAS COMMUNITY CHURCH, Defendant. No. CIV.A. 1:CV 01-2136. United States District Court, M.D. Pennsylvania. June 11, 2002. *469 David E. Lehman, McNees, Wallace & Nurick, Curtis N. Stambaugh, McNees, Wallace, & Nurick, Harrisburg, PA, for plaintiffs. Stephen L. Grose, Keefer, Wood, Allen & Rahal, LLP, Harrisburg, PA, for defendant. MEMORANDUM AND ORDER KANE, District Judge. This action brought by individual members of the Churches of God seeks to enjoin the Matamoras Community Church from employing ministers not credentialed by the Churches of God and otherwise practicing their faith in a manner inconsistent with the Constitution and bylaws of the Churches of God. Specifically, Plaintiffs seek to enjoin Defendant from "using church property in ways not sanctioned by the Churches of God." Compl. at p. 8. Now before the Court is Defendant's motion for summary judgment. The motion has been fully briefed, and the Court held oral argument on March 14, 2002. For the reasons discussed below, the motion will be granted. 1. Background A. History of the Church of God and Matamoras Community Church The Church of God was founded in Harrisburg, Pennsylvania in 1825 as a hierarchical *470 Christian denomination. The Matamoras Church of God was founded nearby in 1844. From 1844 until 1994, the Matamoras Church of God was a member of the East Pennsylvania Conference (now called the Eastern Regional Conference) of the Churches of God.[1] In 1961, while affiliated with the Eastern Regional Conference, and the larger General Conference of the Churches of God, Matamoras incorporated and soon thereafter purchased 3.6 acres of land. The real estate was at all times held in the name of the corporation, and not in trust for the General or Eastern Conferences. Matamoras built a church on this property; construction was completed in 1968. In July of 1994, the General Conference amended its constitution to provide that all property held by its member churches must be held in trust for the Churches of God. As a result of this amendment, Matamoras withdrew from the Eastern Regional Conference of the Churches of God and reincorporated as the Matamoras Community Church. The Matamoras Community Church continued to occupy the same property as prior to the reincorporation. Following the withdrawal of Matamoras from the Eastern Regional Conference, the Eastern Regional Conference voted to dissolve Matamoras. This decision was confirmed by the General Conference. Plaintiffs allege that this action reverted the Matamoras property to the General Conference, and that Defendant's continued use of the property in ways not sanctioned by the denomination violates Article 17.03 of the Constitution of the General Conference of the Churches of God[2]. B. State Litigation On February 26,1996, the East Pennsylvania Conference of the Churches of God filed suit in the Dauphin County Court of Common Pleas against Matamoras Community Church in ejectment, replevin and accounting seeking immediate possession *471 of all personal property and realty owned by Matamoras Community Church. After a three day trial in March, 1999, the jury found in favor of Matamoras Community Church. The question posed to the jury on the verdict slip, and answered in the negative was: Has the East Pennsylvania Conference proven by a preponderance of the evidence that Matamoras congregation intended to create a trust of its assets in favor of the Conference? Judgment was thus entered for Defendants. Plaintiff filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial; the court denied that motion on December 10, 1999. In denying the motion, the Dauphin County Court of Common Pleas examined the Constitution of the General Conference in relation to the actions of Matamoras. The court found that the deed conveying the property purchased in 1961 was drafted to avoid any trust language, and thus "contravened the constitutional directive then in place[.]"[3] Dec. 10, 1999 Op. at 4. The court further noted that the Conference took no steps to correct or challenge the action. Id. The court examined Pennsylvania law regarding the creation of a trust, and accordingly looked to the actions of Matamoras vis a vis the property. Because the court found that there was sufficient evidence in the record that Matamoras did not intend to create a trust, the court upheld the jury verdict. Id. at 7-8. The East Pennsylvania Conference of the Churches of God appealed the decision to the Commonwealth Court, which affirmed the trial court in a memorandum opinion filed on January 16, 2001. The East Pennsylvania Conference filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on July 11, 2001. The present case was filed by the Plaintiffs on November 13, 2001. The Plaintiffs are individual members of the Churches of God, and are seeking class certification to proceed on behalf of all other members of the Churches of God. However, none of the Plaintiffs is a member of the Matamoras Community Church, nor was any Plaintiff a member of the Matamoras Church of God prior to the rift with the Eastern Regional and General Conferences. II. Discussion A. Standard of Review Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view all facts and inferences in the light most favorable to the nonmoving party. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Williams v. Perry, 907 F.Supp. 838, 842 (M.D.Pa.1995). Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving parties, the *472 non-moving parties may not simply sit back and rest on the allegations in her complaint; instead, they must "go beyond the pleadings and by [their] 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." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Id. at 322, 106 S.Ct. 2548. B. Jurisdiction Plaintiffs assert that this Court has both diversity and federal question jurisdiction. Defendant claims that the Court has neither. Congress has granted district courts diversity jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000 exclusive of interests and costs, and is between ... citizens of different States...." 28 U.S.C. § 1332. The named Plaintiffs in this putative class action are residents of Ohio and Michigan. Plaintiffs claim that the jurisdictional amount is met because each Plaintiff is seeking to prohibit Defendant from using property valued at $800,000. Zahn v. International Paper Co. held that Plaintiffs may not aggregate claims in order to satisfy the amount in controversy requirement of Section 1332. 414 U.S. 291, 294-95, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). However, where the Plaintiffs are attempting "to enforce a single title or right," the Court looks to the value of the property. Id. at 294, 94 S.Ct. 505. Here, the Plaintiffs are attempting to enforce what they believe to be their rights as members of the Church of God to ensure that the property in question is used in accordance with the governing rules of the Churches of God. Whether these are the proper Plaintiffs to do so is an issue of standing and will be addressed as such. Looking solely at the amount in controversy, the singularity of the interest in one property and the diversity of the named Plaintiffs from the Defendant, this Court has diversity jurisdiction over the claims presented. Therefore, the Court need not consider whether it has federal question jurisdiction based on the constitutional claims set forth in the complaint. C. Collateral estoppel Collateral estoppel precludes relitigation of a question of law or an issue of fact that has already been litigated and adjudicated finally in a court of competent jurisdiction. See Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313, 1318 (1983). "Federal courts must give a state court judgment the same preclusive effect as would the courts of that state." Swineford v. Snyder County, Penna., 15 F.3d 1258, 1266 (3d Cir.1994). Under Pennsylvania law, collateral estoppel, also known as issue preclusion, applies where the following four factors are met: (1) An issue decided in a prior action is identical to one presented in a later action; (2) The prior action resulted in a final judgment on the merits; (3) The party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and (4) The party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action. Jones v. United Parcel Service, 214 F.3d 402, 405 (3d Cir.2000) (quoting Rue v. Mart Corp., 552 Pa. 13, 713 A.2d 82, 84 (1998)). As there can be no dispute that the jury verdict in the prior litigation constituted a decision on the merits, only the first, third and fourth prongs are at issue here. *473 Because the Dauphin County action for ejectment and replevin was founded on Plaintiffs contention that the constitution of the Churches of God deemed all property owned by affiliate churches held in trust for the General Conference, the issue posed to the jury was whether the Defendant held its property in trust for the East Pennsylvania Conference. Plaintiffs argue that because the question presented was narrowly drawn to the issue of whether the property was held in trust, collateral estoppel does not apply. Instead, Plaintiffs here frame the issue differently: whether Defendant is using its property in ways not sanctioned by the constitution and governing rules of the General Conference. Thus, Plaintiff argues, this action is distinguishable from the prior one as it is about the use, not the ownership, of the property at issue. The attempted distinction does nothing to remove the collateral estoppel bar to this refashioned claim. While the remedy sought may be different, the claims are the same. It is clear that to determine whether Plaintiffs are entitled to enjoin the nonconforming use of the Matamoras church, this Court would be called upon to decide the very ownership issue already determined by a jury. Plaintiffs correctly point out that "[c]ollateral estoppel . . . will not preclude the relitigation of an issue unless that issue is identical to one presented and resolved in a prior lawsuit." Northeast Women's Center, Inc. v. McMonagle, 665 F.Supp. 1147, 1152 (E.D.Pa.1987). Further, collateral estoppel is not appropriate when the current claims require a different analysis of the facts. See Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 477 (3d Cir. 1997). However, regardless of how the claims are framed, the issue presented in both the prior and present litigations is the same: who is entitled to possess and use the real estate and church now occupied by Matamoras. The Dauphin County jury was called upon to decide the same question. It having been decided definitively and finally, the first prong in the collateral estoppel inquiry has been met. This action also satisfies the privity prong of the collateral estoppel analysis. Privity is "[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter...." Black's Law Dictionary, 7th Ed. at 1217 (1999). "Courts have typically found privity to exist in three circumstances: 1) where the nonparty has succeeded to, or shares a concurrent right to the party's interest in, property, 2) where the nonparty controlled the prior litigation, and 3) where the party adequately represented the nonparties' interests in the prior proceeding." Buzzanco v. Lord Corp., 173 F.Supp.2d 376 (W.D.Pa.2001) (citing First Options of Chicago v. Kaplan, 913 F.Supp. 377, 383-84 (E.D.Pa.1996)). Plaintiffs argue that there is no privity because they are not members of the Eastern Regional Conference, the plaintiff in the Dauphin County action. However, the hierarchical nature of the Churches of God belies this argument. The Plaintiffs clearly state: The Churches of God denominational structure has a supreme judicatory body, The General Conference, and regional subordinate judicatory bodies. Here, the regional subordinate judicatory body is the Eastern Regional Conference. Local churches (each governed by its own administrative council) are subject to the regional and to the national governing bodies. Br. in Opp. at 1. See also complaint at ¶ 11.[4] Because the Eastern Regional Conference is clearly bound by the constitution *474 of the General Conference, it is only able to represent the interests of the General Conference in court. Therefore, this Court finds the two conferences to be in privity with each other. For the purposes of this suit, whereby Plaintiffs attempt to enforce provisions of the constitution of the General Conference, this Court finds that Plaintiffs are in privity with the General Conference, and therefore the Eastern Regional Conference.[5] Finally, the individual Plaintiffs, as members of the General Conference, are in privity with that governing body. The individual Plaintiffs would have no relationship, right or interest in the property of the Matamoras Community Church, or in the manner in which it is used, but for their relationship with the General Conference. For these reasons, the Court is certain that the Eastern Regional Conference fully and satisfactorily represented the interests of the General Conference, which in turn represented the interests of the individual members of the General Conference, who are the Plaintiffs here. The parties have the same interest—to reclaim the use of the Matamoras property in order to ensure that it is used consistent with the constitution and bylaws of the General Conference of the Churches of God. Collateral estoppel prevents a party unhappy with a judicial decision from seeking out another judicial forum to adjudicate the same issue. Here, it is clear that collateral estoppel precludes this Court from adjudicating the issues now presented. Therefore, the Court will grant Defendant's motion for summary judgment. III. Order AND NOW, therefore, IT IS ODERED THAT Defendant's motion for summary judgment is GRANTED. The Clerk of Court shall enter judgment for the Defendant and against the Plaintiffs. The Clerk of Court shall close the file. NOTES [1] The two names, "East Pennsylvania Conference" and "Eastern Regional Conference" are both used in this memorandum, and both refer to the same governing body. [2] Article 17.03 provides: The polity of the denomination as declared in Winebrenner v. Colder, 43 Pa. 244 (1862), establishes that a congregation belonging to the Churches of God and subject to the constitution, faith and doctrines thereof, cannot use its property for a purpose other than a purpose sanctioned by the denomination. A particular church affiliated with the denomination, or a majority of a congregation, or all the members thereof, cannot sever its connection with the Churches of God or set itself up as an independent church, congregation or corporation without the consent of the denomination. As restated in Yahn, Polity of the Churches of God in North America, if a factional contest for the possession or control of property thereof arises in a local church, the property by law and by denominational polity is subject to the control of the true members of the congregation (and of the corporation if incorporated) consisting of those true to the doctrines and practices of the Churches of God and loyal to the denominational polity or government. And if there is none true and loyal the larger body of which the local church is a part may exercise needful control over such bethel and such local church property. The government and polity of the Churches of God is representative and presbyterial in character and the denomination as a whole, acting through its duly constituted Conference and General Conference judicatories, exercises the ultimate rights of control. The whole presbyterial polity and system of government of the Churches of God is based upon the principle that all the members are one denomination and that the larger body of members shall finally determine or prevent all controversies of the smaller, shall have powers of visitation for whatever pertains to spiritual welfare, and shall advance the welfare of the churches and conferences through a three-tier ascending series of judicatories of local church, conference, and General Conference. [3] At the time Matamoras incorporated in 1961, and purchased the property in question, the Constitution of the General Conference provided as follows: All church property shall be deeded to the elders or trustees in trust for the Churches. . . [and] ... in case the Church shall become extinct, or cease to maintain an organization in harmony with the doctrines, customs or polity of the Churches of God, it shall become the property of the Conference.... Dec. 10, 1999 Op. at 3-4. See. Constitution Article 8.02 (same provision, as amended). [4] Paragraph 11 of the complaint reads: Plaintiffs are members of the Churches of God, a religious denomination, whose supreme judicatory is the churches of God, General Conference. The superior regional judicatories include the Eastern Regional conference of the Churches of God, General Conference. The local judicatories, governed by church administrative councils, are Church of God congregations. [5] When arguing that they have standing to bring the present case, Plaintiffs attempt to assert, as they must, that they each have an interest in this suit separate and apart from the interest of the General Conference. However, Plaintiffs cannot show that they have standing to bring the case without arguing that they are, in fact, in privity with and sharing the same alleged injury as the General Conference. Plaintiffs assert that the Churches of God, and all of its individual members, have suffered from the secession of a one hundred fifty year old member congregation. Br. in Op. at p. 12. However, Plaintiffs are unable to state any injury suffered by the individual Plaintiffs that is not also shared by the General Conference, and that is not more properly brought by the General Conference on behalf of the individual members.

900 N.E.2d 507 (2008) MYLES v. STATE. No. 45A03-0806-CR-287. Court of Appeals of Indiana. December 29, 2008. VAIDIK, J. Disposition of case by unpublished memorandum decision. Affirmed. DARDEN, J. Concurs. RILEY, J. Concurs.

609 So.2d 588 (1992) In re T.A.C.P. No. 79582. Supreme Court of Florida. November 12, 1992. Walter G. Campbell, Jr. of Krupnick, Campbell, Malone and Roselli, P.A., Fort Lauderdale, and Scott A. Mager of Weinstein, Zimmerman & Nussbaum, P.A., Tamarac, for appellant. Robert A. Butterworth, Atty. Gen. and Louis F. Hubener, Asst. Atty. Gen., Tallahassee, on behalf of Judge Estella M. Moriarty, William R. Scherer, Linda R. Spaulding and Lynn Futch Cooney of Conrad, Scherer, James & Jenne, Fort Lauderdale, on behalf of North Broward Hosp. Dist., d/b/a Broward General Medical Center, and Julie Koenig, Guardian Ad Litem, Fort Lauderdale, for appellees. Ken Connor of Connor & Associates, Tallahassee, amici curiae for Americans United for Life and Florida Right to Life. Charlene Miller Carres, Tallahassee, and Nina E. Vinik, Legal Director, Miami, amicus curiae for American Civil Liberties Union Foundation of Florida, Inc. Michael T. Haire and David P. Rhodes of Haas, Austin, Ley, Roe & Patsko, P.A., Tampa, amici curiae for The Arc, Ethics and Advocacy Task Force of The Nursing Home Action Group, Laura and Paul Flint, Kristina and Richard Fox II, Anne and David Andis, Martina and Robert Bailey, Jennifer and James Molnar, M.D., and Alva and Kerry Nelms. William A. Young, Jr. of Williams, Mullen, Christian & Dobbins, P.C., Richmond, VA, amicus curiae for United Network for Organ Sharing, a Virginia Non-Stock Corp. Marcia Beach, Executive Director and Linda G. Miklowitz, Tallahassee, amicus curiae for The Advocacy Center for Persons With Disabilities, Inc. Thomas A. Horkan, Jr., Tallahassee, Interested Party. *589 KOGAN, Justice. We have for review an order of the trial court certified by the Fourth District Court of Appeal as touching on a matter of great public importance requiring immediate resolution by this Court. We frame the issue as follows:[1] Is an anencephalic newborn considered "dead" for purposes of organ donation solely by reason of its congenital deformity? We have jurisdiction.[2] Art. V, § 3(b)(5), Fla. Const. I. Facts At or about the eighth month of pregnancy, the parents of the child T.A.C.P. were informed that she would be born with anencephaly. This is a birth defect invariably fatal,[3] in which the child typically is born with only a "brain stem" but otherwise lacks a human brain. In T.A.C.P.'s case, the back of the skull was entirely missing and the brain stem was exposed to the air, except for medical bandaging. The risk of infection to the brain stem was considered very high. Anencephalic infants sometimes can survive several days after birth because the brain stem has a limited capacity to maintain autonomic bodily functions such as breathing and heartbeat. This ability soon ceases, however, in the absence of regulation from the missing brain. In this case, T.A.C.P. actually survived only a few days after birth. The medical evidence in the record shows that the child T.A.C.P. was incapable of developing any sort of cognitive process, may have been unable to feel pain or experience sensation due to the absence of the upper brain,[4] and at least for part of the time was placed on a mechanical ventilator to assist her breathing. At the time of the hearing below, however, the child was breathing unaided, although she died soon thereafter. On the advice of physicians, the parents continued the pregnancy to term and agreed that the mother would undergo caesarean section during birth. The parents agreed to the caesarean procedure with the express hope that the infant's organs would be less damaged and could be used for transplant in other sick children. Although T.A.C.P. had no hope of life herself, the parents both testified in court that they wanted to use this opportunity to give life to others. However, when the parents requested that T.A.C.P. be declared legally dead for this purpose, her health care providers refused out of concern that they thereby might incur civil or criminal liability. The parents then filed a petition in the circuit court asking for a judicial determination. After hearing testimony and argument, the trial court denied the request on grounds that section 382.009(1), Florida Statutes (1991), would not permit a determination of legal death so long as the child's brain stem continued to function. On appeal, the Fourth District summarily affirmed but then certified the trial court's order to this Court for immediate resolution of the issue. We have accepted jurisdiction to resolve this case of first impression. II. The Medical Nature of Anencephaly Although appellate courts appear never to have confronted the issue, there already *590 is an impressive body of published medical scholarship on anencephaly.[5] From our review of this material, we find that anencephaly is a variable but fairly well defined medical condition. Experts in the field have written that anencephaly is the most common severe birth defect of the central nervous system seen in the United States, although it apparently has existed throughout human history. A statement by the Medical Task Force on Anencephaly ("Task Force") printed in the New England Journal of Medicine[6] generally described "anencephaly" as "a congenital absence of major portions of the brain, skull, and scalp, with its genesis in the first month of gestation." David A. Stumpf et al., The Infant with Anencephaly, 322 New Eng.J.Med. 669, 669 (1990). The large opening in the skull accompanied by the absence or severe congenital disruption of the cerebral hemispheres is the characteristic feature of the condition. Id. The Task Force defined anencephaly as diagnosable only when all of the following four criteria are present: (1) A large portion of the skull is absent. (2) The scalp, which extends to the margin of the bone, is absent over the skull defect. (3) Hemorrhagic, fibrotic tissue is exposed because of defects in the skull and scalp. (4) Recognizable cerebral hemispheres are absent. Id. at 670. Anencephaly is often, though not always, accompanied by defects in various other body organs and systems, some of which may render the child unsuitable for organ transplantation. Id. Thus, it is clear that anencephaly is distinguishable from some other congenital conditions because its extremity renders it uniformly lethal. Id. Less severe conditions are not "anencephaly." There has been a tendency by some parties and amici to confuse lethal anencephaly with these less serious conditions, even to the point of describing children as "anencephalic" who have abnormal but otherwise intact skulls and who are several years of age. We emphasize that the child T.A.C.P. clearly met the four criteria described above. The present opinion does not apply to children with less serious conditions; they are not anencephalic because they do not have large openings in their skulls accompanied by the complete or near total absence of normal cerebral hemispheres, which defines "anencephaly." See id. The Task Force stated that most reported anencephalic children die within the first few days after birth, with survival any longer being rare. After reviewing all available medical literature, the Task Force found no study in which survival beyond a week exceeded nine percent of children meeting the four criteria. Id. at 671. Two months was the longest confirmed survival of an anencephalic, although there are unconfirmed reports of one surviving three months and another surviving fourteen months. The Task Force reported, however, that these survival rates are confounded somewhat by the variable degrees of medical care afforded to anencephalics. Id. Some such infants may be given considerable life support while others may be given much less care. See id. The Task Force reported that the medical consequences of anencephaly can be established with some certainty. All anencephalics by definition are permanently unconscious because they lack the cerebral cortex necessary for conscious thought. Their condition thus is quite similar to that of persons in a persistent vegetative state. Where the brain stem is functioning, as it was here, spontaneous breathing and heartbeat can occur. In addition, such infants may show spontaneous movements of the extremities, "startle" reflexes, and pupils that respond to light. Some may show feeding reflexes, may cough, hiccup, or exhibit *591 eye movements, and may produce facial expressions. Id. at 671-72. The question of whether such infants actually suffer from pain is somewhat more complex. It involves a distinction between "pain" and "suffering." The Task Force indicated that anencephaly in some ways is analogous to persons with cerebral brain lesions. Such lesions may not actually eliminate the reflexive response to a painful condition, but they can eliminate any capacity to "suffer" as a result of the condition. Likewise, anencephalic infants may reflexively avoid painful stimuli where the brain stem is functioning and thus is able to command an innate, unconscious withdrawal response; but the infants presumably lack the capacity to suffer. Id. 672. It is clear, however, that this incapacity to suffer has not been established beyond all doubt. See id. After the advent of new transplant methods in the past few decades, anencephalic infants have successfully been used as a source of organs for donation. However, the Task Force was able to identify only twelve successful transplants using anencephalic organs by 1990. Transplants were most successful when the anencephalic immediately was placed on life support and its organs used as soon as possible, without regard to the existence of brain-stem activity. However, this only accounted for a total of four reported transplants. Id. at 672-73. There appears to be general agreement that anencephalics usually have ceased to be suitable organ donors by the time they meet all the criteria for "whole brain death," i.e., the complete absence of brain-stem function. Stephen Ashwal et al., Anencephaly: Clinical Determination of Brain Death and Neuropathologic Studies, 6 Pediatric Neurology 233, 239 (1990). There also is no doubt that a need exists for infant organs for transplantation. Nationally, between thirty and fifty percent of children under two years of age who need transplants die while waiting for organs to become available. Joyce L. Peabody et al., Experience with Anencephalic Infants as Prospective Organ Donors, 321 New Eng. J.Med. 344, 344 (1989). III. Legal Definitions of "Death" & "Life" As the parties and amici have argued, the common law in some American jurisdictions recognized a cardiopulmonary definition of "death": A human being was not considered dead until breathing and heartbeat had stopped entirely, without possibility of resuscitation. E.g., Thomas v. Anderson, 215 P.2d 478, 482 (Cal. App. 1950); see Jay A. Friedman, Taking the Camel by the Nose: The Anencephalic as a Source for Pediatric Organ Transplants, 90 Colum.L.Rev. 917, 925-26 (1990). However, there is some doubt about the exact method by which this definition was imported into the law of some states. Apparently the definition was taken from earlier editions of Black's Law Dictionary, which itself did not cite to an original source. C. Anthony Friloux, Jr., Death, When Does It Occur?, 27 Baylor L.Rev. 10, 12-13 (1975). The definition thus may only have been the opinion of Black's earlier editors. We have found no authority showing that Florida ever recognized the original Black's Law Dictionary definition or any other definition of "death" as a matter of our own common law.[7] Even if we had adopted such a standard, however, it is equally clear that modern medical technology has rendered the earlier Black's definition of "death" seriously inadequate.[8] With the invention of life-support devices and procedures, human bodies can be made to breathe and blood to circulate even in the utter absence of brain function. *592 As a result, the ability to withhold or discontinue such life support created distinct legal problems in light of the "cardiopulmonary" definition of death originally used by Black's Dictionary. For example, health care providers might be civilly or criminally liable for removing transplantable organs from a person sustained by life support, or defendants charged with homicide might argue that their victim's death actually was caused when life support was discontinued. Andrea K. Scott, Death Unto Life: Anencephalic Infants as Organ Donors, 74 Va.L.Rev. 1527, 1538-41 (1988) (citing actual cases). In light of the inadequacies of a cardiopulmonary definition of "death," a number of jurisdictions began altering their laws in an attempt to address the medical community's changing conceptions of the point in time at which life ceases. An effort was made to synthesize many of the new concerns into a Uniform Determination of Death Act issued by the National Conference of Commissioners on Uniform State Laws. The uniform statute states: An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. Unif. Determination of Death Act § 1, 12 U.L.A. 340 (Supp. 1991). Thus, the uniform act both codified the earlier common law standard and extended it to deal with the specific problem of "whole brain death." While some American jurisdictions appear to have adopted substantially the same language, Florida is not among these. Friedman, supra, at 928 nn. 58-59. Indeed, Florida appears to have struck out on its own. The statute cited as controlling by the trial court does not actually address itself to the problem of anencephalic infants, nor indeed to any situation other than patients actually being sustained by artificial life support. The statute provides: For legal and medical purposes, where respiratory and circulatory functions are maintained by artificial means of support so as to preclude a determination that these functions have ceased, the occurrence of death may be determined where there is the irreversible cessation of the functioning of the entire brain, including the brain stem, determined in accordance with this section. § 382.009(1), Fla. Stat. (1991) (emphasis added). A later subsection goes on to declare: Except for a diagnosis of brain death, the standard set forth in this section is not the exclusive standard for determining death or for the withdrawal of life-support systems. § 382.009(4), Fla. Stat. (1991). This language is highly significant for two reasons. First, the statute does not purport to codify the common law standard applied in some other jurisdictions, as does the uniform act. The use of the permissive word "may" in the statute in tandem with the savings clause of section 382.009(4) buttresses the conclusion that the legislature envisioned other ways of defining "death." Second, the statutory framers clearly did not intend to apply the statute's language to the anencephalic infant not being kept alive by life support. To the contrary, the framers expressly limited the statute to that situation in which "respiratory and circulatory functions are maintained by artificial means of support." There are a few Florida authorities that have addressed the definitions of "life" and "death" in somewhat analogous though factually distinguishable contexts. Florida's Vital Statistics Act, for example, defines "live birth" as the complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy, which, after such expulsion, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, and definite movement of the voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. *593 § 382.002(10), Fla. Stat. (1991). Conversely, "fetal death" is defined as death prior to the complete expulsion or extraction of a product of human conception from its mother if the 20th week of gestation has been reached and the death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. § 382.002(7), Fla. Stat. (1991). From these definitions, it is clear that T.A.C.P. was a "live birth" and not a "fetal death," at least for purposes of the collection of vital statistics in Florida. These definitions obviously are inapplicable to the issues at hand today, but they do shed some light on the Florida legislature's thoughts regarding a definition of "life" and "death." Similarly, an analogous (if distinguishable) problem has arisen in Florida tort law. In cases alleging wrongful death, our courts have held that fetuses are not "persons" and are not "born alive" until they acquire an existence separate and independent from the mother. E.g., Duncan v. Flynn, 358 So.2d 178, 178-79 (Fla. 1978). We believe the weight of the evidence supports the conclusion that T.A.C.P. was "alive" in this sense because she was separated from the womb, and was capable of breathing and maintaining a heartbeat independently of her mother's body for some duration of time thereafter. Once again, however, this conclusion arises from law that is only analogous and is not dispositive of the issue at hand. We also note that the 1988 Florida Legislature considered a bill that would have defined "death" to include anencephaly. Fla.H.B. 1089 (1988). The bill died in committee. While the failure of legislation in committee does not establish legislative intent, it nevertheless supports the conclusion that as recently as 1988 no consensus existed among Florida's lawmakers regarding the issue we confront today. The parties have cited to no authorities directly dealing with the question of whether anencephalics are "alive" or "dead." Our own research has disclosed no other federal or Florida law or precedent arguably on point or applicable by analogy.[9] We thus are led to the conclusion that no legal authority binding upon this Court has decided whether an anencephalic child is alive for purposes of organ donation. In the absence of applicable legal authority, this Court must weigh and consider the public policy considerations at stake here. IV. Common Law & Policy Initially, we must start by recognizing that section 382.009, Florida Statutes (1991), provides a method for determining death in those cases in which a person's respiratory and circulatory functions are maintained artificially. § 382.009(4), Fla. Stat. (1991). Likewise, we agree that a cardiopulmonary definition of death must be accepted in Florida as a matter of our common law, applicable whenever section 382.009 does not govern. Thus, if cardiopulmonary function is not being maintained artificially as stated in section 382.009, a person is dead who has sustained irreversible cessation of circulatory and respiratory functions as determined in accordance with accepted medical standards.[10]*594 We have found no credible authority arguing that this definition is inconsistent with the existence of death, and we therefore need not labor the point further. The question remaining is whether there is good reason in public policy for this Court to create an additional common law standard applicable to anencephalics. Alterations of the common law, while rarely entertained or allowed, are within this Court's prerogative. E.g., Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). However, the rule we follow is that the common law will not be altered or expanded unless demanded by public necessity, Coastal Petroleum Co. v. Mobil Oil Corp., 583 So.2d 1022, 1025 (Fla. 1991), or where required to vindicate fundamental rights. Haag v. State, 591 So.2d 614, 618 (Fla. 1992). We believe, for example, that our adoption of the cardiopulmonary definition of death today is required by public necessity and, in any event, merely formalizes what has been the common practice in this state for well over a century. Such is not the case with petitioners' request. Our review of the medical, ethical, and legal literature on anencephaly discloses absolutely no consensus that public necessity or fundamental rights will be better served by granting this request. We are not persuaded that a public necessity exists to justify this action, in light of the other factors in this case — although we acknowledge much ambivalence about this particular question. We have been deeply touched by the altruism and unquestioned motives of the parents of T.A.C.P. The parents have shown great humanity, compassion, and concern for others. The problem we as a Court must face, however, is that the medical literature shows unresolved controversy over the extent to which anencephalic organs can or should be used in transplants. There is an unquestioned need for transplantable infant organs. See Kathleen L. Paliokas, Anencephalic Newborns as Organ Donors: An Assessment of "Death" and Legislative Policy, 31 Wm. & Mary L.Rev. 197, 238-39 (1989); Andrea K. Scott, Death Unto Life: Anencephalic Infants as Organ Donors, 74 Va.L.Rev. 1527, 1531-32 (1988). Yet some medical commentators suggest that the organs of anencephalics are seldom usable, for a variety of reasons, and that so few organ transplants will be possible from anencephalics as to render the enterprise questionable in light of the ethical problems at stake — even if legal restrictions were lifted. D. Alan Shewmon et al., The Use of Anencephalic Infants as Organ Sources, 261 JAMA 1773, 1774-75 (1989). Others note that prenatal screening now is substantially reducing the number of anencephalics born each year in the United States and that, consequently, anencephalics are unlikely to be a significant source of organs as time passes. Shlomo Shinnar et al., Ethical Issues in the Use of Anencephalic Infants as Organ Donors, 7 Ethical Issues in Neurologic Practice 729, 741 (1989). And still others have frankly acknowledged that there is no consensus and that redefinition of death in this context should await the emergence of a consensus. Norman Fost, Removing Organs from Anencephalic Infants: Ethical and Legal Considerations, 16 Neonatal Neurology 331, 336 (1989). But see Charles N. Rock, The Living Dead: Anencephaly and Organ Donation, 7 J.Hum.Rts. 243, 276-77 (1989) (arguing a consensus may be developing). A presidential commission in 1981 urged strict adherence to the Uniform Determination of Death Act's definition, which would preclude equating anencephaly with death. President's Commission for the Study of Ethical Problems in Medicine, Biomedical, and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death 2 (1981). Several sections of the American Bar Association have reached much the same conclusion. National Conference on Birth, Death, and Law, Report on Conference, 29 Jurimetrics *595 J. 403, 421 (Lori B. Andrews et al. eds. 1989). Some legal commentators have argued that treating anencephalics as dead equates them with "nonpersons," presenting a "slippery slope" problem with regard to all other persons who lack cognition for whatever reason. Debra H. Berger, The Infant with Anencephaly: Moral and Legal Dilemmas, 5 Issues in L. & Med. 67, 84-85 (1989). Others have quoted physicians involved in infant-organ transplants as stating, "[T]he slippery slope is real," because some physicians have proposed transplants from infants with defects less severe than anencephaly. Beth Brandon, Anencephalic Infants as Organ Donors: A Question of Life or Death, 40 Case Western L.Rev. 781, 802 (1989-90). We express no opinion today about who is right and who is wrong on these issues — if any "right" or "wrong" can be found here. The salient point is that no consensus exists as to: (a) the utility of organ transplants of the type at issue here; (b) the ethical issues involved; or (c) the legal and constitutional problems implicated. V. Conclusions Accordingly, we find no basis to expand the common law to equate anencephaly with death. We acknowledge the possibility that some infants' lives might be saved by using organs from anencephalics who do not meet the traditional definition of "death" we reaffirm today. But weighed against this is the utter lack of consensus, and the questions about the overall utility of such organ donations. The scales clearly tip in favor of not extending the common law in this instance. To summarize: We hold that Florida common law recognizes the cardiopulmonary definition of death as stated above; and Florida statutes create a "whole-brain death" exception applicable whenever cardiopulmonary function is being maintained artificially. There are no other legal standards for determining death under present Florida law. Because no Florida statute applies to the present case, the determination of death in this instance must be judged against the common law cardiopulmonary standard. The evidence shows that T.A.C.P.'s heart was beating and she was breathing at the times in question. Accordingly, she was not dead under Florida law, and no donation of her organs would have been legal. § 732.912, Fla. Stat. (1991). The trial court reached the correct result, although we do not agree with its determination that section 382.009 applied here. We answer the question posed by this case in the negative and approve the result reached below. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and HARDING, JJ., concur. NOTES [1] Some of the parties incorrectly argue that the district court certified specific questions. In actuality, the district court's order did not certify specific questions. We therefore frame the issue ourselves. [2] Although the child died during the pendency of this appeal, we exercise our inherent jurisdiction to take the case because it is an issue of great importance capable of repetition yet evading review. Holly v. Auld, 450 So.2d 217 (Fla. 1984). [3] We are mindful that some parties argue that anencephaly is not invariably fatal and that some anencephalics actually live for many years. We find that this argument arises from a misperception about the nature of anencephaly as it is defined by a consensus in the medical community. The living children described by the parties actually are not anencephalic, because they do not meet the definitive medical criteria. These medical criteria are discussed below. [4] There was some dispute about this point. Our resolution of the case, however, renders the dispute moot. [5] The term "anencephaly" most commonly is used to identify this particular kind of birth defect. More rarely, the term "anencephalus" is used. [6] The statement also was approved by the American Academy of Pediatrics, the American Academy of Neurology, the American College of Obstetricians and Gynecologists, the American Neurological Association, and the Child Neurology Society. David A. Stumpf et al., The Infant with Anencephaly, 322 New Eng.J.Med. 669, 669 n.[*] (1990). [7] We have found no English cases prior to July 4, 1776, that established a common law definition of "death" imported into our own common law by operation of section 2.01, Florida Statutes (1991). The parties cite to none, and our own independent research has revealed none. [8] Black's Dictionary subsequently has modified its definition. See Black's Law Dictionary 400 (6th ed. 1991). [9] Some of the parties and amici cite to various other laws establishing civil rights for disabled persons, including section 504 of the federal Rehabilitation Act and the federal Americans with Disabilities Act. We are aware that analogous Florida laws also exist. It is evident, however, that these laws do not apply to the dead. Accordingly, the linchpin question remains whether or not T.A.C.P. was dead at the times in question. We also are not persuaded that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), limited on other grounds, Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), modified on other grounds, Planned Parenthood of Southeastern Pennsylvania v. Casey, ___ U.S. ___, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), has any applicability to the facts at hand. By its own terms, Roe did not attempt to "resolve the difficult question of when life begins." Id. 410 U.S. at 159, 93 S.Ct. at 730. We also do not agree that a parental right of privacy is implicated here, because privacy does not give parents the right to donate the organs of a child born alive who is not yet legally dead. Art. I, § 23, Fla. Const. [10] Adoption of this common law definition essentially brings Florida into harmony with the Uniform Determination of Death Act, which embodies the same two standards contained separately in our common law definition and in section 382.009, Florida Statutes (1991).

669 S.E.2d 784 (2008) Henry J. WILKINS, Plaintiff v. CSX TRANSPORTATION, INC., Defendant. No. COA08-181. Court of Appeals of North Carolina. December 16, 2008. *785 Shapiro, Cooper, Lewis & Appleton, P.C., by Randall E. Appleton, Virginia Beach, VA; and John J. Korzen, Kernersville, for plaintiff-appellant/cross-appellee. Millberg, Gordon & Stewart, P.L.L.C., by John C. Millberg and Jonathan P. Holbrook, Raleigh, for defendant-appellee/cross-appellant. CALABRIA, Judge. Henry J. Wilkins ("plaintiff") sustained back injuries while working as a maintenance of way worker for CSX Transportation, Inc. ("defendant"). He filed a complaint in Northampton County Superior Court under the Federal Employers' Liability Act 45 U.S.C. § 51 et seq. ("FELA"), which makes railroads liable to their employees for injuries "resulting in whole or in part from the negligence" of the railroad, § 51. Contributory negligence is not a bar to recovery under FELA, but damages are reduced "in proportion to the amount of negligence attributable to" the employee, § 53. Plaintiff was awarded $61,500 by a jury. Judge William C. Griffin ("Judge Griffin") awarded an offset against the verdict of $7,437.90, an amount equal to what defendant had paid for plaintiff's injury in the form of "Tier II" Railroad Retirement Board disability payments. This reduced plaintiff's recovery to $54,062.10, and judgment for that amount was entered by Judge Griffin on 10 September 2007. Plaintiff appeals Judge Griffin's order denying his motion for a directed verdict on the issue of contributory negligence as well as Judge Griffin's order offsetting his award for Railroad Retirement Board disability benefits he received. Defendant cross-appeals Judge Griffin's order denying their motion for a directed verdict on the issue of defendant's negligence. We find no error in part, and reverse the offset of plaintiff's award. Plaintiff was injured while performing his duties as a maintenance of way worker for defendant. On 27 August 2003, plaintiff was tasked with placing water coolers weighing an estimated 65-75 pounds onto machines for his coworkers. This task required water coolers to be removed from a pickup truck and manually loaded onto a platform on each machine. This was plaintiff's normal assignment and he was assisted by Willie Dailes ("Dailes") at the time of his injury, although plaintiff was normally assisted by C.A. Gillis ("Gillis") for this task. At the time of his injury plaintiff and Dailes were attempting to lift a water cooler onto railroad machinery when Dailes unexpectedly dropped his side of the cooler. Plaintiff was pulled to the ground, injuring his back. Although plaintiff knew he had injured his back, he continued to work through the remainder of the week. Upon returning to work the following Monday, plaintiff was unable to continue working and reported his injury to his supervisor. Plaintiff was diagnosed with a lumbosacral sprain, and occupationally disabled due to his injuries. Defendant argues the trial court erred in denying their motion for a directed verdict on the issue of defendant's negligence. They argue that the evidence failed to establish the *786 elements of foreseeability and breach of duty. We disagree. We review this assignment of error de novo. In Rogers v. Missouri P.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) a railroad employee tasked with burning vegetation growing along the tracks was injured when a passing train fanned the flames around him causing him to retreat and fall causing serious injury. The Supreme Court, while recognizing that the trial court could have found for the Railroad on the issue of negligence, held that "the decision was exclusively for the jury to make." Id. at 504, 77 S.Ct. at 448, 1 L.Ed.2d at 498. "Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought." Id. at 506, 77 S.Ct. at 448, 1 L.Ed.2d at 499. "[F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit." Id. at 508, 77 S.Ct. at 450, 1 L.Ed.2d at 500. Under FELA an employer is liable if an injury resulted "in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. To uphold the trial court's order denying defendant's motion for a directed verdict we must find that defendant, through its employee "played any part, however small" in the injury suffered by plaintiff. Defendant argues that plaintiff's accident was not foreseeable, prohibiting a finding of negligence. We disagree. While "[r]easonable foreseeability of harm is an essential ingredient of FELA negligence," Brown v. CSX Transp., 18 F.3d 245, 249 (4th Cir.W.Va.1994), this foreseeability analysis is not limited to the management of the employer railroad. Just as the negligence of employees is imputed to the employer railroad in FELA actions, so to is the foreseeability of harm. The question is not whether CSX management should have foreseen that loading water coolers in the manner they were being loaded could result in injury, the question is whether Dailes should have foreseen that dropping the water cooler without warning could result in injury to plaintiff. This injury was foreseeable, and sufficient evidence was presented to allow the jury to determine if Dailes breached his duty to complete the lift, or alternatively, give warning to plaintiff that he would be unable to do so. Plaintiff argues that the trial court erred in denying his motion for a directed verdict on the issue of contributory negligence. We disagree. FELA provides that contributory negligence is not a bar to recovery, but merely diminishes the amount of damages recovered by the injured employee, essentially creating a comparative negligence structure. 45 U.S.C. § 53. In Norfolk Southern R. Co. v. Sorrell, the United States Supreme Court held that the causation standards for employer negligence and employee contributory negligence are the same. 549 U.S. 158, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007). To find error in the trial court's order we must find that the employee played no part, "even the slightest, in producing the injury." Rogers, 352 U.S. at 506, 77 S.Ct. at 448, 1 L.Ed.2d at 499. The defendant is entitled to an instruction on contributory negligence "if there is any evidence at all of contributory negligence." Taylor v. Burlington N. R.R., 787 F.2d 1309, 1314 (9th Cir.1986). The trial testimony established that plaintiff had a safe procedure for handling the water coolers and that he voluntarily departed from this procedure. Plaintiff had a regularly assigned partner, Gillis, on the water crew to help him prepare and load the coolers. Plaintiff and Gillis performed this task together every morning. On the morning of the accident Gillis was on duty with plaintiff and sat in the truck while the water coolers were being unloaded. Plaintiff chose to depart from this procedure when he asked another employee who had never previously assisted with this task, to help load a cooler onto a high platform. This evidence alone is sufficient to meet the burden of showing any evidence of contributory *787 negligence. The trial court did not err in instructing the jury on contributory negligence. Plaintiff argues that the trial court erred in offsetting plaintiff's recovery by the amount defendant had paid for Railroad Retirement Board Benefits received by plaintiff. We agree. Following the jury verdict and award, the court offset plaintiff's award by $7,437.90, an amount equal to the sum defendant paid into Tier II of the Railroad Retirement Account. The sum represented the amount of Tier II benefits the plaintiff had received through occupational disability and covered the time from the award of the benefits by the Railroad Retirement Board until the plaintiff qualified for a regular annuity under the Act. This was error. In 1974, Congress enacted the current version of the Railroad Retirement Act, which altered the prior Act enacted in 1937. The Railroad Retirement Act establishes two tiers of benefits. Tier I benefits are roughly equivalent to Social Security benefits. Tier II "provides retirement benefits over and above social security benefits and operates similarly to other industrial pension systems." CSX Transp., Inc. v. Gardner, 874 N.E.2d 357, 362 (Ind.Ct.App.2007). Railroad employees who are injured and unable to perform their duties may receive either an occupational disability annuity or a total disability annuity. 45 U.S.C § 231a(a)(1)(iv), (v). Payments under the Railroad Retirement Act are not based upon an injury due to the negligence of the railroad employer. To qualify for an occupational disability under the Railroad Retirement Act, the employee must have performed 240 months of railroad service and be permanently disabled from his normal railroad job, or be at least 60 years old with 120 months of service with the same level disability. A total disability is granted if the employee has at least 120 months of service and is disabled from all occupations. 45 U.S.C § 231a(a)(1). The amount of the annuity depends upon the length of the employee's railroad employment. Gardner, 874 N.E.2d at 362. Annuity payments by the Railroad Retirement Board are not subject to assignment, tax, legal process, or anticipation. 45 U.S.C § 231m(a). Plaintiff argues that the collateral source rule prohibits an offset of plaintiff's award. "According to this rule a plaintiff's recovery may not be reduced because a source collateral to the defendant ... paid the plaintiff's expenses." Cates v. Wilson, 321 N.C. 1, 5, 361 S.E.2d 734, 737 (1987). Historically, courts have held that benefits received from the Railroad Retirement Board are from a collateral source and therefore not subject to setoff. However, the most influential case on the matter, Eichel v. New York Cent. R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), was determined before the Railroad Retirement Board split the Railroad Retirement Act benefits into two tiers. Defendant argues that the Tier I benefits are comparable to the benefits as determined by Eichel, but the Tier II benefits are distinct, and not a collateral source as it is explained in Eichel, and therefore subject to setoff. We disagree. The United States Supreme Court in Eichel held that "[t]he Railroad Retirement Act is substantially a Social Security Act for employees of common carriers.... The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer." Id. at 254, 84 S.Ct. at 317, 11 L.Ed.2d at 308-09. The Eichel Court, in making this statement relied on New York, N.H. & H.R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir.1953), which held that offset was not authorized for these benefits because of the Social Security nature of the benefits, and because the benefits received were not directly attributable to contributions made by the employer. We must determine whether the form of the Tier II benefits under the revised Act are so significantly changed that the Eichel reasoning no longer applies. The Railroad Retirement Act, at the time of the Eichel decision, was funded equally by taxes between employers and employees. Any shortfall in the fund was supplemented by additional taxes against the employers. Currently, the Railroad Retirement Act is *788 funded in part by taxes paid by the employer and employee. The Tier I taxes equal Social Security tax rates. The Tier II rate varies and is higher for the employer than the employee. The remainder of the fund is made up of fund transfers under the financial interchange with the Social Security system, investment earnings from the trust fund, general revenue appropriations for vested due benefit payments, income taxes on benefits and a work hour tax paid by railroad employees under the Railroad Retirement Tax Act. Gardner, 874 N.E.2d at 362. Under both the 1936 act, and under Tier II of the current act, benefits are available to employees regardless of the source of the injury that caused the disability. Under both schemes benefits are based on any disability despite the cause, and on the years of service the employee has accrued in the system. While the funding of Tier II benefits has changed, with the employer being responsible for a greater percentage of the cost, the purpose and availability of Tier II benefits has not changed in any significant way. Federal case law indicates that the latter is the more important factor. In determining whether a payment is from a collateral source, "courts should look at the purpose and nature of the fund and of the payments, and not merely at their source." Russo v. Matson Navigation Co., 486 F.2d 1018, 1020 (9th Cir.1973)(internal citations and quotations omitted). "[T]he collateral source rule depends less upon the source of the funds than upon the character of the benefits received." Reed v. E.I. Du Pont de Nemours & Co., 109 F.Supp.2d 459, 467 (S.D.W.Va.2000). The purpose and nature of Tier II benefits was not significantly changed by the 1974 amendment to the Act. Further, while the current Act places greater financial responsibility upon the employer for funding Tier II benefits, it does not change the nature of the payments, or the manner in which those payments will be apportioned to applicable employees. The trial court erred in offsetting plaintiff's recovery by the amount defendant had paid for the Railroad Retirement Act benefits received by plaintiff. Plaintiff's payments from the Railroad Retirement Act were a collateral source, and were not subject to be offset. This portion of the trial court's judgment is reversed and this case is remanded for entry of judgment without the offset for the Tier II payments. No error in part, reversed in part and remanded. Judges TYSON and ELMORE concur.

Filed 8/12/15 In re J.S. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE In re J.S., a Person Coming Under the B264164 Juvenile Court Law. (Los Angeles County Super. Ct. No. CK67028) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.C., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Philip L. Soto, Judge. Reversed with directions. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Julia Roberson, Senior Associate County Counsel, for Plaintiff and Respondent.  A.C., the mother of the child, J.S., appeals from a Welfare and Institutions Code section 366.26 parental rights termination order. This case was assigned to this Court of Appeal division shortly after the filing of the notice of appeal earlier this year. The mother contends the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act and related California provisions. The parties have stipulated to a limited reversal of the parental rights termination order to allow compliance with the Indian Child Welfare Act and related California provisions. In addition, the parties have stipulated to immediate remittitur issuance. Our colleagues in Division Three of this appellate district reversed the judgment and issued the remittitur pursuant to the parties’ stipulation. (In re J.S. (Aug. 6, 2015, B264164] [nonpub. order].) The grounds for the stipulated reversal is the failure to comply with the Indian Child Welfare Act and related California provisions. (Ibid.) The next day, our Division Three colleagues, realizing the appeal had not been assigned to them, but to us, vacated their opinion and recalled the remittitur. (In re J.S. (Aug. 6, 2015, B264164] [nonpub. order].) The cause having been presented to us, we accept the parties’ stipulation. The parties agree there was noncompliance with the Indian Child Welfare Act and related California provisions. We concur in their assessment in this regard. Further, the parties agree the parental rights termination order must be reversed and remanded to permit proof of compliance with the Indian Child Welfare Act and related California provisions. Our ability to accept a stipulated reversal in the dependency context is discussed in the case of In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382. The present case involves reversible error: the failure to present substantial evidence of compliance with the Indian Child Welfare Act and its related California provisions. (In re Marinna J. (2001) 90 Cal.App.4th 731, 736-740; In re Desiree F. (2000) 83 Cal.App.4th 460, 471- 472.) Under any circumstances, the parental rights termination order would be reversed. Thus, a stipulated reversal advances those interests identified in Code of Civil Procedure section 128, subdivision (a)(8). (In re Rashad H., supra, 78 Cal.App.4th at pp. 379-382; see Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 2 1324, 1329-1330.) If proper notice and investigation is undertaken and no tribe asserts that the child is of Indian descent, the parental rights termination order is to be reinstated. If a tribe asserts that the child is of Indian descent, the juvenile court is to proceed in compliance with the Indian Child Welfare Act and related California provisions. The Welfare and Institutions Code section 366.26 order is reversed and the cause is remanded for compliance with the federal Indian Child Welfare Act requirements and related state provisions. The remittitur is to issue forthwith. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS TURNER, P. J. We concur: BAKER, J. KIRSCHNER, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 3 

122 F.3d 1112 120 Ed. Law Rep. 952, 13 IER Cases 276 Steven CALVIT, Plaintiff/Appellant,v.MINNEAPOLIS PUBLIC SCHOOLS; Four Winds School; DonnaGrant, Defendants/Appellees. No. 96-4181. United States Court of Appeals,Eighth Circuit. Submitted June 12, 1997.Decided Aug. 18, 1997. Stephen W. Cooper, argued, Minneapolis, MN (Teresa K. Patton, on the brief), for Plaintiff/Appellant. Eric John Magnuson, argued, Minneapolis, MN (Glen M. Goldman, on the brief), for Defendants/Appellees. Before MURPHY, HEANEY, and NORRIS,1 Circuit Judges. MURPHY, Circuit Judge. 1 Stephen Calvit sued the Minneapolis Public Schools, the Four Winds School, and Donna Grant (collectively MPS) for retaliating against him for criticizing the school's policy for reporting child abuse. He alleged that MPS 1) violated his free speech rights under the United States and Minnesota constitutions; 2) violated the Minnesota whistleblower statute; 3) defamed him; and 4) illegally retaliated against him for reporting child abuse. The district court granted summary judgment in favor of MPS on the free speech and whistleblower claims and dismissed the other state claims without prejudice. Calvit appeals, and we reverse. I. 2 Calvit was a social worker at the Four Winds school, which is a magnet school emphasizing Native American culture. Under state law he was required to report child abuse within 24 hours of discovery. See Minn.Stat. Ann. § 626.556. Four Winds had developed its own policy on reporting child abuse, however, which allowed a report only if all members of a child abuse team determined one was necessary. According to Calvit, the policy violated state law and was designed specifically to limit reports involving Native American children. Calvit claims he often discussed his concerns about the school policy with his supervisors while he worked at Four Winds and also with a fellow social worker, Harold Lee. MPS claims on the other hand that he did not report his concerns over the policy until after his employment at the school ended. 3 Under his contract, Calvit would continue to work for the school district beyond the end of the school year unless the district terminated him before June 1. In May 1993, the school district decided to terminate his employment and sent a letter on May 12 informing him of its decision. 4 On May 12, Calvit reported to child protective services that he suspected that R.B., a student at Four Winds, might have been a victim of sexual abuse. Later that month, child protective services expressed its concern that Calvit's report had not been timely. Calvit claimed he followed school procedure and that initially he did not have enough information to conclude the child had been abused but that he reported it when he did. On June 3, Kay Bonczek, an administrator in the school district's human resources department, wrote Donna Grant, the principal of Four Winds, instructing her to investigate the report about R.B. and informing her that "[w]e will hold on Steve Calvit's reappointment until the investigation has been completed and the situation is reviewed." A memorandum written in June indicated that Calvit called Bonczek on June 7 to sign a contract for the next school year but that he was told that the investigation had not been completed so his return to Four Winds would be delayed. Calvit's last day at Four Winds was June 14. On June 17, Grant informed Bonczek that she had investigated the matter, and determined that, among other things, when Calvit "interviewed [R.B.], he found no cause to believe abuse had occurred." 5 Four Winds had reviewed Calvit's general job performance on June 1 and rated him good or superior in every category. At the time Grant informed Bonczek about her investigation regarding the R.B. report, she described Calvit as "extremely conscientious" and said the school was "pleased with the work he had done ... It is my request that he be reappointed as soon as possible." Later, on June 24, Grant wrote Bonczek that Calvit had done an excellent job and asked her to reassign him to Four Winds. 6 The first time Calvit made his views known to school district personnel outside of Four Winds was on June 24, 1993. On that day he met with the school district's supervisor of social workers, a special education administrator, and a human resources administrator and discussed Four Winds' child abuse policy. At this meeting Calvit stated that he had to get approval from Four Winds administrators before reporting child abuse and that Four Winds employees had tried to convince him not to report cases of suspected abuse. He claimed that he had been told to call a child's parents when the police came to take a child to a facility. He believed this was not proper. Calvit also indicated that there was a separate standard for reporting cases involving Native American children. 7 The school district rehired Calvit on August 12, 1993 and assigned him to the Morris Park Elementary School. One month later Calvit received a notice of deficiency from the human resources department for his action in the case involving R.B. The notice stated that he had not reported a suspected case of child abuse in a timely manner and that his "conduct [was] unbecoming a teacher." The notice also stated that if he did not properly report child abuse his contract would be terminated. Despite the school district's criticism of Calvit's behavior, in 1994 the Minnesota Board of Social Work determined that Calvit was not at fault in his report regarding R.B. because there was no reason to believe abuse had occurred. 8 The school district's human resources department wrote to Calvit in November 1993 that "[t]he district has reassigned you to a full time social worker position at Morris Park to forestall any further complaint of Whistle Blowing." While at Morris Park he was assigned to be a transportation coordinator, in addition to his social work duties. The evidence is mixed on the quality of the assignment to Morris Park. The former principal of the school described its condition in 1993 as "stagnant, dysfunctional, and decaying [and] dirty, dark, devoid of any indications of student work or learning and very unhappy." On the other hand, Calvit's union representative urged him to take the job and Calvit said that he liked the first principal he worked with there, Harold Benson. 9 Calvit experienced problems at Morris Park. He testified that he informed the second principal, Nina Malm, about the disciplinary letter related to the R.B. case and his disagreement with its findings and conclusions. He also told a school administrator that he would report cases of child abuse if appropriate, even if he were told not to by the principal, and he testified that he told Malm that she was not following the standard child abuse reporting procedures. Calvit claims that other employees at Morris Park treated him rudely and the administrators did nothing to stop this. He also testified that Malm told him not to report certain child abuse cases. Calvit experienced health problems and left the school midway through the year. 10 Calvit sued MPS in state court for 1) violating his free speech rights under the first and fourteenth amendments to the United States Constitution and Article I, § 3 of the Minnesota Constitution; 2) retaliating against him in violation of the Minnesota whistleblower statute; 3) defamation; and 4) retaliation for reporting suspected child abuse. The case was then removed to federal court. 11 The district court granted summary judgment in favor of MPS on the free speech and whistleblower claims and dismissed the other state claims without prejudice. The court reasoned that Calvit was not an employee at the time of his June 24 criticism of the child abuse policy and concluded that he could not show that he had been disciplined for his speech or that he was covered by the Minnesota whistleblower statute. II. 12 On appeal Calvit argues that he had engaged in protected speech both before and after the school decided not to rehire him. He claims the decision not to rehire him, the assignment to an inferior school, and his constructive discharge were in response to his exercise of his constitutional rights. The whistleblower claim should not have been rejected because he reported illegal conduct when he worked both at Four Winds and at Morris Park and also on June 24, when he remained an employee or was covered as a former employee. 13 MPS contends that Calvit did not make any protected speech before the school district decided not to rehire him, that he was not an employee when he made his comments on June 24, and that no adverse action followed that speech. The school district in fact provided a benefit to Calvit by rehiring him. The court correctly ruled that the whistleblower claim was invalid because Calvit was not an employee at the time he reported Four Winds's child abuse policy, and even if he had been, he cannot point to any adverse action by the school because of those comments. 14 We review the grant of summary judgment de novo. Ringier Am., Inc. v. Land O Lakes, Inc., 106 F.3d 825, 827 (8th Cir.1997). All evidence and reasonable inferences from the evidence are to be viewed in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir.1996). Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment should not be granted if on the evidence a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). A. 15 In his claim brought under the first amendment, Calvit had the burden to demonstrate that he engaged in protected activity.2 Hamer v. Brown, 831 F.2d 1398, 1401 (8th Cir.1987). To be protected, the speech must be on a matter of public concern, and the employee's speech interest must not be outweighed by any injury to the government's interest in promoting the efficiency of its operation. See, e.g., Waters v. Churchill, 511 U.S. 661, 667, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994). If the speech is protected, Calvit must show it was a substantial or motivating factor in the action taken against him. Hamer, 831 F.2d at 1401. If Calvit meets this burden, MPS has the opportunity to demonstrate that the same action would have been taken but for the protected activity. Hamer, 831 F.2d at 1401. 16 MPS contends that Calvit's speech did not involve a matter of public concern and that he failed to show that the speech caused any detrimental employment action. Calvit's comments were not protected, MPS claims, because he did not make them publicly and he was motivated to make them not as a citizen arguing about the merits of public policy, but as an employee who wanted to deflect blame for delaying a child abuse report. MPS claims there is no evidence that Calvit had challenged the legality of the policy before the June 24 meeting, and the decision not to rehire him came before then. His subsequent rehiring provided him a benefit, negating any retaliation. 17 Whether speech is of public concern depends on the "content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983). Speech that involves a matter of political, social or other concern to the community is of public concern. Shands v. City of Kennett, 993 F.2d 1337, 1343 (8th Cir.1993). The form and context are examined to determine whether the public employee speaks as a concerned citizen informing the public that the government is not properly discharging its duties, or merely as an employee speaking about internal practices relevant only to fellow employees. Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672 (8th Cir.1986). 18 Calvit's criticism of Four Winds' child abuse policy was on a matter of public concern, either if characterized simply as criticism of a child abuse policy or of a school policy based on race. Both the proper approach to the problem of child abuse and the merits of using racial classification in developing public policy are subjects in which citizens have a demonstrated interest. See Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 644 (8th Cir.1983) (speech regarding proper care of children a matter of public concern); Connick, 461 U.S. at 148 n. 8, 103 S.Ct. at 1690-91 n. 8 (racial discrimination is "a matter inherently of public concern"). Calvit need not have made comments to outsiders to be protected. The first amendment protects the speech of a government employee even when it is made privately to his employer. Connick, 461 U.S. at 146, 103 S.Ct. at 1689 (citing Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979)); Roberts v. Van Buren Pub. Schs., 773 F.2d 949, 955 (8th Cir.1985). 19 There is evidence in the record that Calvit had spoken against the policy before his conduct was called into question. Calvit testified in his deposition that he had criticized the Four Winds policy as illegal before the school board decided in the spring of 1993 not to rehire him for Four Winds. Notes taken in the June 24 meeting by Dan Loewenson, a school administrator, indicated that Calvit said that "[a]ll year I was in conflict with [my supervisors] about reporting slowly for Indian comm[unity]." MPS's speculation about the motivation for Calvit's speech does not necessarily make it unprotected. In Connick, for example, a public employee criticized an office policy at the same time she was involved in a dispute over the application of that policy to her, yet the Court found some of the speech was a matter of public concern. 461 U.S. at 148-49, 103 S.Ct. at 1690-91.3 20 There is evidence creating a genuine issue of material fact whether Calvit's speech motivated MPS to take action against him and whether its action would have taken place but for his comments. Calvit had received a favorable performance evaluation for his work at Four Winds. The principal of the school praised his work and recommended that the school district rehire him. The assistant principal also recommended that Calvit return to Four Winds. In light of his performance, an inference could reasonably be drawn that Calvit was not rehired because he had clashed with others at Four Winds over the child abuse policy. 21 Action taken in response to Calvit's speech of June 24 can be the basis for a first amendment claim even though he was not employed by the school district at the time. See Perry v. Sindermann, 408 U.S. 593, 596, 92 S.Ct. 2694, 2696, 33 L.Ed.2d 570 (1972) (need not be an employee to be protected by the first and fourteenth amendments). Even if the school district did not have an obligation to reassign him to Four Winds, the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech." Id. at 597, 92 S.Ct. at 2697. There is evidence that the school district denied him a fair opportunity to be reappointed to Four Winds because of his speech. The school district sent him a letter stating that he would not be reassigned to Four Winds in order to "forestall any complaint of Whistle Blowing." As further evidence of retaliation, Calvit indicated that although he was a social worker for the whole time he worked at Four Winds, he was assigned transportation duty for 30-40% of his time at Morris. Whether his assignment to Morris was retaliatory is a question of fact. Cf. Bowman, 723 F.2d at 645 (involuntary transfers can chill exercise of first amendment rights). Calvit has presented evidence that there were problems at Morris that made it an undesirable place to work. He has also presented evidence that the principal of Morris Park knew of his criticism of Four Winds and that he subsequently suffered verbal abuse and was constructively discharged.4 Since there are genuine issues of material fact whether action taken against him was caused by protected speech, summary judgment should not have been granted. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). B. 22 The Minnesota whistleblower statute prohibits an employer from discharging, disciplining, threatening, otherwise discriminating against or penalizing an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee in good faith reported a violation or suspected violation of any state law to an employer or any governmental body. Minn.Stat. Ann. § 181.932 (1993). 23 Minnesota follows the test set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), when analyzing a claim under the whistleblower statute. The employee has the burden to establish a prima facie case; the employer must present a legitimate reason for its action; and the factfinder must decide whether the employer's reasons are pretextual. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n. 7 (Minn.1991). Summary judgment should be granted if there is no genuine issue of material fact on an element of the prima facie case. A prima facie case requires the employee to show "(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two." Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn.Ct.App.1996). 24 Calvit claims the district court erred by granting summary judgment on the basis he was not an employee when he reported illegal activity. He argues that he made reports while he worked at Four Winds during the 1992-93 school year and at Morris Park in 1993. Apart from these reports, he contends he was in fact an employee on June 24 even though his contract had expired, but in any event former employees are covered by the whistleblower statute. His statements, he contends, caused the school district to decide not to reappoint him to Four Winds, to send him a disciplinary letter, to assign him to Morris Park, and to discharge him constructively. 25 MPS claims there is no evidence in the record that Calvit reported illegal activity while he was employed by the school district and he is therefore not protected by the whistleblower statute. It contends that the conversations cited on appeal, with Lee and the principal and assistant principal at Four Winds, were merely discussions with the employer and not protected conduct. Calvit's statement on June 24 is not protected because at that time he was not employed by the school district. Calvit was a nontenured probationary teacher under Minn.Stat. Ann. § 125.17, and once the school district informed him in May 1993 that he was not rehired for the coming school year, he had no right or expectation of employment with the district. Even if he had been an employee when he reported the illegal conduct, he can show no retaliation since he was provided a benefit by his rehire and any unfavorable treatment at Morris Park would be too remote to prove retaliation. 26 Calvit has presented evidence that he made statements while employed at Four Winds that the child abuse policy was illegal. There is evidence that he expressed concerns over the policy to Four Winds' principal and assistant principal and that he told another social worker at the school that the policy was illegal. His opposition to MPS' summary judgment motion mentioned that he had frequently collided with Four Winds administrators over its child abuse reporting, and the deposition testimony supporting this statement was in the record before the district court. There is also evidence that during the 1993-94 school year he reported to his principal at Morris that state law was violated regarding its child abuse policy. The Minnesota statute protects reports to "an employer or any governmental body," Minn.Stat. Ann. § 181.932 sub. 1(a), and a report to a coworker is sufficient to gain protection under the statute. Manteuffel v. City of North St. Paul, 538 N.W.2d 727, 728-29 (Minn.Ct.App.1995) (involving a report of misconduct to a fellow employee). 27 Calvit has also presented evidence that MPS took adverse action against him in response to his protected conduct. The decision not to rehire him for Four Winds, to write a disciplinary letter, to assign him to Morris Park, and to place him on bus duty might reasonably be traced to his reports regarding Four Winds' child abuse policy and the administrators' allegedly illegal conduct there. Each of these actions followed his reports and each could be seen as a way to remove him from Four Winds and the school district. An inference could also be drawn that his difficulties at Morris Park and his alleged constructive discharge were caused by his reports. Although the alleged retaliation at Morris Park came some time after he reported wrongdoing at Four Winds, that fact does not necessarily entitle an employer to summary judgment as a matter of law. Minnesota Ass'n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir.1995); see also Tretter v. Liquipak Int'l, Inc., 356 N.W.2d 713, 715 (Minn.Ct.App.1984) (involving retaliation six months after a complaint); Thompson v. Campbell, 845 F.Supp. 665, 675 (D.Minn.1994) (involving a four month interval). There is also evidence that Calvit had reported wrongdoing at Morris Park and his problems there closely followed those reports. Since there is evidence from which a factfinder could determine that Calvit had reported violations of state law while he was under contract with the school district and that his reports caused the employer to take action against him, summary judgment should not have been granted in MPS's favor. See, e.g., Nichols v. Metropolitan Ctr. for Ind. Living, Inc., 50 F.3d 514, 516 (8th Cir.1995) (summary judgment not appropriate under Minnesota whistleblower statute when employee has established a prima facie case of retaliatory discharge). 28 Calvit's June 24, 1993 statements about wrongdoing at Four Winds fall in a different category. Calvit was not an employee of the school district on that date under the terms of the statute governing his employment. Since he had had only two years of service with the school district when his contract at Four Winds was terminated, he was a probationary employee while there and the school district had no obligation to renew his contract. See Minn.Stat. Ann. § 125.17 sub. 2 (1994). Calvit has pointed to no Minnesota court that has interpreted the whistleblower statute to protect reports of a former employee. Although the language of the statute resembles the anti-retaliation provision in Title VII which covers former employees, Robinson v. Shell Oil Co., --- U.S. ----, ----, 117 S.Ct. 843, 849, 136 L.Ed.2d 808 (1997), we cannot say that the Minnesota statute should be extended to post-termination reports. See Rothmeier, 556 N.W.2d at 593. III. 29 Calvit has presented sufficient evidence to create genuine issues of material fact whether his rights under the first and fourteenth amendments were violated and whether he was entitled to protection under the Minnesota whistleblower statute. The judgment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. 1 The Honorable William A. Norris, United States Circuit Judge for the Ninth Circuit, sitting by designation 2 Calvit also brought his free speech claim under Article I, § 3 of the Minnesota Constitution. In general the free speech protections provided by the Minnesota Constitution are no more extensive than under the United States Constitution. See State v. Davidson, 481 N.W.2d 51, 57 (Minn.1992) (involving obscenity); State v. Century Camera, Inc., 309 N.W.2d 735, 738 n. 6 (Minn.1981) (involving commercial speech); Knudtson v. City of Coates, 519 N.W.2d 166, 171 (Minn.1994) (Gardebring, J., dissenting) (Minnesota "generally look[s] to the federal constitution to define the parameters of the state free speech protections"); but cf. State v. Sports & Health Club, Inc., 370 N.W.2d 844, 873-74 (Minn.1985) (Peterson, J., dissenting) (state constitutional protection may be broader). Since we conclude that Calvit has made a sufficient showing to withstand summary judgment under the United States Constitution, we need not determine whether the Minnesota Constitution would be more protective of his speech 3 The Court in Connick did indicate that the context of the dispute was relevant in weighing the government's interest in the efficient discharge of official duties against the speaker's first amendment protections. 461 U.S. at 153, 103 S.Ct. at 1693. MPS has not argued in this case that Calvit's speech inhibited the discharge of official duties or even affected them, and the district court made no findings or conclusions about the relative balance of interests of Calvit and the defendants 4 There is also evidence of protected speech during the 1993-94 school year. Calvit testified that he told the principal at Morris Park, Nina Malm, that she had violated child abuse reporting procedures and that he had disagreements with her over not following state child abuse guidelines. In light of the short time between these statements and the negative treatment he alleges he received at Morris Park, a jury could conclude that he had been retaliated against for the exercise of his rights under the first amendment

399 F.2d 689 Billy Earl YOUNG, alias Juan Antonio Sanchez, Appellant,v.UNITED STATES of America, Appellee. No. 25394. United States Court of Appeals Fifth Circuit. Aug. 12, 1968. Billy Earl Young, pro se. Bruce B. Greene, Asst. U.S. Atty., Savannah, Ga., for appellee. Before JOHN R. BROWN, Chief Judge, WISDOM, Circuit Judge and BREWSTER, District Judge. PER CURIAM: 1 Billy Earl Young appeals from the denial without a hearing of his motion to vacate his federal conviction, 28 U.S.C. 2255. We reverse. 2 Represented by court-appointed counsel, the appellant was convicted upon a plea of guilty of threatening in a writing deposited in the mail to take the life of the President of the United States, in violation of 18 U.S.C. 871. He was sentenced on January 16, 1967, to serve five years and there was no direct appeal. 3 The appellant contends with adequate factual detail that he did not knowingly and understandingly plead guilty. The transcript of the proceedings shows that Rule 11, F.R.Crim.P., was not complied with in that the trial court did not adequately determine whether the plea was made voluntarily. Therefore the case must be remanded for a factual hearing on this issue. Lane v. United States, 5 Cir., 1967, 373 F.2d 570; Rimanich v. United States, 5 Cir., 1966, 357 F.2d 537. 4 The appellant also contends that he was mentally incompetent at the time the plea of guilty was entered in January, 1967. The 2255 motion alleges that in 1966 he was committed as criminally insane to a mental institution of the State of Georgia and this allegation is corroborated by a statement made by his attorney at the sentencing proceedings. 5 We believe that the appellant has alleged enough to require the district court to hold a hearing on the issue of his mental competence to stand trial. Floyd v. United States, 5 Cir., 1966, 365 F.2d 368; Clark v. Beto, 5 Cir., 1966, 359 F.2d 554, cert. denied 386 U.S. 927, 87 S.Ct. 875, 17 L.Ed.2d 799; Johnson v. United States, 5 Cir., 1965, 344 F.2d 401; Gregori v. United States, 5 Cir., 1957, 243 F.2d 48. 6 Reversed and remanded.

125 Cal.App.2d 122 (1954) LETA MAY JACQUEMART, Respondent, v. EUGENE ARTHUR JACQUEMART et al., Appellants. Civ. No. 19919. California Court of Appeals. Second Dist., Div. One. May 11, 1954. Beardsley, Hufstedler & Kemble for Appellants. Walter H. Young for Respondent. DRAPEAU, J. Mr. and Mrs. Eugene A. Jacquemart were married June 17, 1919. In 1942 a judgment of separate maintenance was granted to Mrs. Jacquemart. Her husband was ordered to pay $125 per month for her support, and for the support of a then minor child. The court divided the community property of the parties equally between them. After that the order for support was modified from time to time. Mr. Jacquemart complied with all of the orders, except that at the time of this action he owed his wife $396 for the period December 15, 1950, to March 1, 1951. After 1942 Mr. Jacquemart lived with Mrs. Pearl Cox. June 13, 1950, he gave Mrs. Cox $11,300 that he had earned in the automobile business. Mrs. Cox used the money to purchase a home that she and Mr. Jacquemart thereafter occupied. The purchase price was $20,500. Title to the *124 property was taken in the name of Mrs. Cox, subject to a mortgage indebtedness for the balance of the purchase price. Mrs. Jacquemart named Mr. Jacquemart and Mrs. Cox defendants in this action to impress a trust upon the property as community property. The trial court adjudged that, subject to the mortgage lien, the property was held by defendant Pearl Cox as trustee for the husband and wife; that it was community property; that defendant husband pay the wife $350 attorney's fees; that plaintiff have a lien on the community property interest of defendant for $396; that said property "shall secure the payment of any other moneys which have heretofore or may hereafter be ordered to be paid by the husband to the wife for her support and maintenance"; and that a writ of execution issue for the sale of the property to enforce the terms of the judgment. Mr. Jacquemart and Mrs. Cox appeal. Since the adoption of section 169 of the Civil Code in 1872 our law has provided that after a decree of separate maintenance the wife's earnings and accumulations are her separate property. Until 1951 no corresponding right was given to the husband. In 1951 section 169.1 was added to the Civil Code, providing that the husband's earnings after a decree of separate maintenance are likewise separate property. Appellants suggest that the amendment of 1951 merely codified what had always been the purpose and intent of the law: that the earnings of both husband and wife were separate property after a decree of separate maintenance, especially when, as the law requires, the decree of separate maintenance in this case divided the community property between them. This would seem to be a fair and equitable view of the law of community property, at least as it should have been. And fairness and equity would seem to have been the motivating purpose of the Legislature in enacting the new code section. But this court finds itself unable to agree with the suggestion, because of the effect such a decision would have upon the general scheme of community property as it has been established by constitutional, statute, and case law in California. That section 169 of the Civil Code does make the earnings and accumulations of the wife her separate property while living apart from her husband was commented upon in the early case of Spreckels v. Spreckels, 116 Cal. 339 [48 P. 228, 58 Am.St.Rep. 170, 36 L.R.A. 497]. [1] A decree of separate *125 maintenance does not end the marriage; it only regulates the extent of support to be awarded to the wife; and the decree may always be modified. (Monroe v. Superior Court, 28 Cal.2d 427 [170 P.2d 473].) [2] The general rule is that the time of acquisition of property fixes its community status. [3] And legislation changing the respective rights of husband and wife in community property will not be given retroactive effect. (10 Cal.Jur.2d 666, 5, and authorities and legal reviews there cited.) [4] The property here in question was acquired after marriage, before the enactment of Civil Code, section 169.1 in 1951, comes within none of the exceptions specified in our law (10 Cal.Jur.2d 670), and is community property. [5] Appellants argue that the $11,300 was owed by Mr. Jacquemart to Mrs. Cox; that he just paid off his indebtedness to her. But there was a conflict in the evidence as to this fact, and under familiar rules of appellate procedure the trial court's finding that it was a gift may not be reversed by this court. So in this case the judgment fixing the status of the property as community, and making Mrs. Cox trustee for the husband and wife, must stand. But the judgment should not go further than that. [6] Although a husband may not give community property away without his wife's consent (Civ. Code, 172; Spreckels v. Spreckels, supra, 116 Cal. 339; Ballinger v. Ballinger, 9 Cal.2d 330 [70 P.2d 629]), after a decree of separate maintenance he has the right to control and to manage it. (Johnson v. Johnson, 33 Cal.App. 93 [164 P. 421].) It follows then that in the circumstances of this case it was error to impress a trust upon specific community real property to secure the indebtedness of $396; to charge the property with a lien, to order its sale, or to trammel the husband's power to manage and control it. Mr. Jacquemart's record in keeping up the payments due to his wife merits no condemnation. [7] Defendants contend that the award of attorney's fees was improper. Attorney's fees may be allowed in such a case as this, at least so far as the husband is concerned. (Blache v. Blache, 78 Cal.App.2d 168 [177 P.2d 345].) The judgment is modified as follows: the real property, subject to the mortgage indebtedness, is community property; *126 Mrs. Cox holds title to it as trustee for Mr. and Mrs. Jacquemart; plaintiff is awarded $350 for attorney's fees against Mr. Jacquemart only; the property is subject to no liens, except that of the mortgage; and Mr. Jacquemart shall have the right to manage and control it in conformity with the community property laws of this state. As so modified the judgment is affirmed. White, P. J., and Doran, J., concurred.

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT In re PJ Russell Proctor, * Original Mandamus Proceeding No. 11-20-00075-CR * March 12, 2020 * Per Curiam Memorandum Opinion (Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J., sitting by assignment) (Willson, J., not participating) This court has inspected the record in this cause and concludes that PJ Russell Proctor’s petition for writ of mandamus should be dismissed. Therefore, in accordance with this court’s opinion, the petition for writ of mandamus is dismissed for want of jurisdiction. 

284 F.3d 125 PHARMACHEMIE B.V., Appellee,v.BARR LABORATORIES, INC., Appellant.Mylan Pharmaceuticals, Inc., Appellee,v.Barr Laboratories, Inc., Appellant. No. 00-5206. No. 00-5207. United States Court of Appeals, District of Columbia Circuit. March 20, 2002. Before: SENTELLE and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Prior report: 276 F.3d 627. ORDER PER CURIAM. 1 For the reasons set forth in the court's opinion dated January 18, 2002, in the consolidated matter of Pharmachemie, B.V. v. Barr Laboratories, Inc., No. 00-5206, it is 2 ORDERED that appeal No. 00-5207, Mylan Pharmaceuticals, Inc. v. Barr Laboratories, Inc., be dismissed as moot, the judgment of the district court be vacated, and the case remanded to the district court with instructions to dismiss Mylan's complaint.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2896 ___________ William Eugene Webb, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. William Hedrick, et al., * * [UNPUBLISHED] Appellee. * ___________ Submitted: September 20, 2010 Filed: November 5, 2010 ___________ Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Federal inmate William Eugene Webb appeals the district court’s1 adverse grant of summary judgment on his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Upon de novo review, Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 793 (8th Cir. 2010), we affirm. Webb seeks damages from multiple employees at United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP-Springfield”): security officer 1 The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District Court for the Western District of Missouri. Jeff Sims; unit-team manager Scott Klinzing; unit-team counselor Darrell Bradley; medical practitioners Mark Pearson and Thomas Hare; and warden William Hedrick. Webb claims violations of the First and Eighth Amendments, alleging that Pearson acted with deliberate indifference when he approved of Webb’s transfer from MCFP- Springfield in 2003, all the defendants conspired to transfer him from MCFP- Springfield in 2003 and 2004 in retaliation for engaging in protected conduct, Sims and Bradley retaliated against him by transferring him to administrative segregation, and Hedrick failed to respond to Webb’s complaints of retaliation and inadequate medical care.2 Webb failed to create a genuine issue of fact on his claim that Pearson acted with deliberate indifference when he approved of Webb’s transfer from MCFP- Springfield in 2003. To establish deliberate indifference, Webb must demonstrate that “he suffered objectively serious medical needs, and the officials actually knew of but deliberately disregarded those needs.” Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). Webb has asserted no facts from which to infer that Pearson knew of Webb’s allegedly serious medical need. The facts that Webb does allege—that Pearson relied on outdated medical information and never reexamined Webb before authorizing his transfer—prove the opposite. At most, the facts Webb alleges support a claim that Pearson acted negligently in failing to reexamine Webb before transfer, but negligence alone is not actionable under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). As to Webb’s retaliation Bivens claims, we agree with the district court that retaliation for engaging in protected conduct was not a “but for” factor in Webb’s transfers from MCFP-Springfield. In raising a retaliatory transfer claim Webb “face[s] a substantial burden in attempting to prove that the actual motivating factor 2 Webb made additional claims in his complaint, but he pursues only these four on appeal. -2- for his transfer was the impermissible retaliation.” Goff v. Burton, 7 F.3d 734, 737 (8th Cir. 1993) (quotations omitted). Even at summary judgment, “the burden is on the prisoner to prove that but for an unconstitutional, retaliatory motive the transfer would have not occurred.” Sisneros v. Nix, 95 F.3d 749, 752 (8th Cir. 1996) (quoting Goff, 7 F.3d at 738)). Here, there is record evidence that Webb was returned to his permanent medical facility in 2003 and 2004 because he no longer needed the medical care at MCFP-Springfield. Even if retaliation was one factor in the decision to transfer Webb, Webb has not shown that his transfer would not have occurred “but for” the retaliation. See Kind v. Frank, 329 F.3d 979, 981 (8th Cir. 2003) (finding retaliation not a “but for” cause of transfer where record demonstrated that inmate was disciplined and transferred due to pattern of misbehavior); Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991) (rejecting retaliatory-transfer claim even where retaliation was clearly factor in transfer).3 Similarly, Webb’s claim against Sims and Bradley fails because retaliation was not a “but for” factor in Webb’s placement in administrative segregation pending investigation. Webb alleges that he was placed in administrative segregation because Sims, assisted by Bradley, fabricated an incident report in retaliation for Webb filing administrative grievances. Webb has not alleged, however, any facts to indicate that Sims or Bradley had personal involvement in his placement in administrative segregation, and both men deny any connection. Regardless of whether the two fabricated the disciplinary charge against Webb, neither was responsible for Webb’s placement in administrative segregation pending investigation. See Griggs v. Norris, 3 Moreover, Webb had not engaged in protected activity before his 2004 transfer. Webb alleges that he was transferred in 2004 after providing legal assistance to another inmate. However, “an inmate simply does not have the right to provide his fellow inmates with legal assistance,” and a transfer based on such assistance “would not constitute the violation of a protected right.” Gassler v. Rayl, 862 F.2d 706, 708 (8th Cir. 1988). -3- 297 F. App’x 553, 555 (8th Cir. 2008) (unpublished per curium); accord White v. Bledsloe, 368 F. App’x 273, 275 (3d Cir. 2010) (unpublished per curium).4 Finally, Webb’s retaliation and deliberate indifference claims against Hedrick fail because Bivens liability cannot be established solely on a theory of respondeat superior. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Webb alleges that Hedrick retaliated against Webb when Hedrick failed to respond to Webb’s multiple complaints of retaliation by Hedrick’s staff. Under Bivens, however, Hedrick’s inaction must itself have had a retaliatory motivation, see id. at 1948-49, and Webb has produced no evidence to suggest Hedrick had the requisite intent. Webb also alleges that Hedrick acted with deliberate indifference when he did not respond to Webb’s complaints of inadequate medical care. As a non-medical professional, however, Hedrick is not personally liable for his medical staff’s treatment decisions, see Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002), and under Bivens, he cannot be held vicariously liable for their actions, see Iqbal, 129 S. Ct. at 1948.5 Accordingly, we affirm the district court’s grant of summary judgment. ______________________________ 4 To the extent Webb argues that his placement in administrative segregation based on a false disciplinary charge constituted cruel and unusual punishment, he misunderstands the Eighth Amendment requirement. The prohibition against cruel and unusual punishment is focused on the conditions of the administrative segregation, not on the reasons for placement there. See Brown v. Nix, 33 F.3d 951, 954-55 (8th Cir. 1994). Webb does not allege that the conditions of the administrative segregation were unconstitutional. 5 The Appellees also argue that Webb’s claims are barred because he failed to exhaust his administrative remedies. Because we uphold the district court’s grant of summary judgment on the merits, we do not answer this question. -4- 

742 F.2d 977 19 Ed. Law Rep. 952 David TARTER, et al., Plaintiffs-Appellants,v.William RAYBUCK, et al., Defendants-Appellees. No. 83-3174. United States Court of Appeals,Sixth Circuit. Argued March 6, 1984.Decided Aug. 31, 1984. George B. Vasko (argued), Akron, Ohio, for plaintiffs-appellants. Dennis M. Whalen (argued), Cuyahoga Falls, Ohio, for defendants-appellees. Before MERRITT and KRUPANSKY, Circuit Judges and PHILLIPS, Senior Circuit Judge. PHILLIPS, Senior Circuit Judge. 1 This action was brought under 42 U.S.C. Sec. 1983 by David Tarter, and his parents, Judy and Dennis Tarter. The defendants were five administrators of the Cuyahoga Falls City School District, William Raybuck, David E. Rump, William Spargur, Marianne Rovnyak, and Dr. Harold E. Wilson, and the Cuyahoga Falls Board of Education. The complaint alleged that David, while a student at Cuyahoga Falls High School, had been subjected to an unlawful search by the defendant school administrators, and that David, Judy and Dennis Tarter had been falsely imprisoned by the school administrators. The complaint also sought an order compelling the defendant school board to reinstate David as a student at the Cuyahoga Falls High School. Defendants counterclaimed seeking costs and attorneys fees. 2 This suit was tried in the district court on January 3, 1983. At the close of plaintiffs' case, the district court granted a directed verdict in favor of defendants Rovnyak, Wilson and the Board of Education, and the trial continued. The district court issued its findings of fact and conclusions of law reported in Tarter v. Raybuck, 556 F.Supp. 625 (N.D.Ohio 1983), and rendered judgment in favor of defendants. In addition, the court found that plaintiff's cause of action was frivolous, unreasonable or without foundation, and awarded defendants attorneys fees pursuant to 42 U.S.C. Sec. 1988.1 On appeal, plaintiffs make two contentions: (1) that the district court erred in holding that the search of David Tarter was not unconstitutional; and (2) that the district court erred in awarding attorneys fees against the plaintiffs. I. 3 On March 3, 1981 David Tarter was a junior at Cuyahoga Falls High School. Upon his arrival at school that morning he went to a designated smoking area in a parking lot adjacent to the high school building. That day three defendants, David Rump, the Administrative Principal, and unit principals William Raybuck and William Spargur had undertaken surveillance of the smoking area, as a result of reports previously received regarding alleged drug use and vandalism by students while in the smoking area. 4 The administrators observed students smoking cigarettes or marijuana, and the exchange of money and plastic bags which they believed contained marijuana, including an exchange between David Tarter and Michael Cosner. Thus, the school officials converged upon the smoking area and directed a number of students, including David Tarter, to the faculty lounge. Some students were released immediately; however, the school officials undertook questioning those students they suspected involved in illegal activity. In the meantime the local police were called to the scene. In addition, a number of students, including Tarter, were given forms to sign indicating notice of intent to suspend. 5 The school officials requested several students, including Tarter, to empty their coat pockets; all did so. No incriminating evidence was found on Tarter. However, Raybuck testified he detected an odor of marijuana on Tarter's breath. Thereafter, Unit Principal Raybuck informed Tarter and three others that they were going to be suspended. He then left to attempt to call the parents or guardian of each student. 6 During the course of these events, the police arrived, conducted a search of several students, and took several away. Mr. Raybuck then took David Tarter to the office, and after a conversation with William Spargur, advised Tarter of what he had seen, and indicated the belief that Tarter had sold marijuana to Michael Cosner. Mr. Raybuck informed David Tarter that he wished to conduct a further search. He then took Tarter to the "clinic", a small room near the office, to conduct the search. Defendant Spargur was also present while Ms. Rovnyak stood outside the door of the "clinic". Pursuant to defendant's request, David Tarter emptied his pockets, removed his jacket, boots and shirt. No incriminating evidence was found. Raybuck and Spargur then asked Tarter to remove his pants; Tarter refused, the search ceased, and the police were summoned.2 7 A few minutes later, David's parents arrived and entered the clinic. Defendants Ms. Rovnyak and Mr. Rump also entered the clinic at this time. During discussions concerning the morning's events, the Tarter parents were advised that the police had been summoned. Mr. Tarter advised his son to put on his clothes, and stated that they were going home. The school officials requested they wait until the police arrived; the Tarters refused. According to the district court's findings, the plaintiffs "left the premises without interference from any of the defendants." 556 F.Supp. at 628. 8 On March 3, 1981, the day of the incident in question, David Tarter was suspended from school for a period of ten days for possession and/or use of marijuana based upon the observations of defendants Raybuck, Spargur and Rump. 9 David Tarter was subsequently expelled for the balance of the semester by the Superintendent of Schools. The Cuyahoga Falls School Board conducted a hearing on David Tarter's appeal of the expulsion, and affirmed the decision of the Superintendent. The Tarters were represented by counsel at the hearing. II. 10 Plaintiffs challenge the constitutionality of the school officials' search of David Tarter. Thus, we are presented with the question of the role of the fourth amendment in the context of the public school system. More precisely, we consider whether defendants Raybuck and Spargur violated David Tarter's constitutional rights when they searched his person on the premises of Cuyahoga Falls High School on March 3, 1981. 11 The district court concluded David Tarter "consented to the search conducted by and at the request of defendants Raybuck and Spargur ... [and] the ensuing search did not violate a constitutionally protected right of the plaintiff David Tarter." 556 F.Supp. at 628. Alternatively, it addressed the question of the reasonableness of the search in the context of the fourth amendment constraints "assuming arguendo that the plaintiff David Tarter was intimidated by the presence of his high school principals to consent involuntarily to the search...." Id. at 629. The court concluded the search was reasonable under the circumstances, and even assuming the absence of consent David Tarter's fourth amendment rights were not violated. Id. at 630. 12 We are not as convinced as the district court that David Tarter knowingly and intelligently waived his constitutional rights when he "consented" to be searched, and we are not inclined to resolve this case on the basis of consent. The burden would be upon defendants to demonstrate such a voluntary relinquishment of constitutional rights by plaintiff. There is a presumption against the waiver of constitutional rights. That he may have acquiesced in the initial search does not necessarily demonstrate the relinquishment of his rights to challenge his initial search. In fact, David Tarter's testimony indicates he only submitted to the search because he was afraid. Furthermore, there is no indication he even was aware that he might have had a constitutional right to object to a search. His eventual refusal to be strip-searched fully is not necessarily an indication of a waiver of his rights, rather it is equally likely that personal modesty or embarrassment resulted in his ultimate refusal to permit the search to continue. 13 It is beyond peradventure that school children do not shed their constitutional rights at the school house gate. Tinker v. Des Moines Independent Comm. School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). It is well recognized that school officials are subject to constitutional restraints as state officials. See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (due process hearing rights for school suspensions); Tinker, supra. (First Amendment rights available to students subject to application in light of special circumstances of the school environment). School officials, employed and paid by the state and supervising children, are agents of the government and are constrained by the Fourth Amendment. Horton v. Goose Creek Indep. School District, 690 F.2d 470 (5th Cir.1982) cert. denied, --- U.S. ----, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983) (per curiam) (challenge to the use of canine contraband detection program); State in Interest of T.L.O., 94 N.J. 331, 463 A.2d 934, 943 (1983) cert. granted; sub nom. State of New Jersey v. T.L.O., --- U.S. ----, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983) scheduled for reargument (1984).3 Accord. Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y.1977); State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S.Ct. 576, 46 L.Ed.2d 413 (1975); People v. Scott, 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974).4 14 The fourth amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause...." "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967) (warrantless administrative search of private residence). 15 However, the basic concern of the fourth amendment is reasonableness, see Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968), and reasonableness depends upon the particular circumstances. Although incursions on the fourth amendment should be guarded jealously, not infrequently the ordinary requirements of the fourth amendment are modified to deal with special circumstances. See, e.g., Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (administrative search); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("stop and frisk" search upon reasonable suspicion); Camara, supra. 16 Thus, as other courts have done, we balance the fourth amendment rights of individual students with the interest of the state and the school officials in the maintenance of a proper educational environment to educate today's youth. See, e.g., Horton, supra, 690 F.2d at 480; State in the Interest of T.L.O., supra. For an interesting discussion of the balancing approach concept see Trosch, Williams and DeVore, "Public School Searches and the Fourth Amendment," 11 J.Law & Educ. 41, 50 (1982). Indeed, as the Supreme Court has emphasized "education is perhaps the most important function of state and local governments." Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). The Fifth Circuit has noted: 17 The public school presents special circumstances that demand similar accommodations of the usual fourth amendment requirements. When society requires large groups of students, too young to be considered capable of mature restraint in their use of illegal substances or dangerous instrumentalities, it assumes a duty to protect them from dangers posed by anti-social activities--their own and those of other students--and to provide them with an environment in which education is possible. To fulfill that duty, teachers and school administrators must have broad supervisory and disciplinary powers. 18 Horton, supra, 690 F.2d at 480 (footnote omitted). See also People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d 596 (1967). ("[S]chool authorities have an obligation to maintain discipline over the students .... Parents, who surrender their children to this type of environment, in order that they may continue development both intellectually and socially, have a right to except certain safeguards .... Thus, it is the affirmative obligation of the school authorities to investigate any charge that a student is using or possessing narcotics and to take appropriate steps if the charge is substantiated.") 19 Thus, we balance the fourth amendment interests of David Tarter with the legitimate concerns of public school officials in maintaining an orderly school conducive to the educational advancement of its students and determine when a school official may search a student in the absence of a warrant. 20 The prevailing view is that school officials may constitutionally conduct a search directed at a student under their supervision upon a quantum of evidence short of that which is needed for the usual police search. Horton, supra, 690 F.2d at 481. See 3 LaFave, Search and Seizure, Sec. 10.11, at 456 (1978). Typically the quantum of evidence is characterized as "reasonable cause" or "reasonable suspicion." See Horton, supra, at 481; LaFave, supra, Sec. 10.11 at 456 and cases cited therein. 21 We hold that a school official or teacher's reasonable search of a student's person does not violate the student's fourth amendment rights, if the school official has reasonable cause to believe the search is necessary in the furtherance of maintaining school discipline and order, or his duty to maintain a safe environment conducive to education. Cf. Horton v. Goose Creek, supra, 690 F.2d at 480; State in the Interest of T.L.O., supra, 463 A.2d at 941; State v. McKinnon, 88 Wash.2d 75, 81, 558 P.2d 781, 784 (1977) (search reasonable if school official has reasonable grounds to believe search is necessary in the aid of maintaining school discipline and order). We note that not only must there be a reasonable ground to institute the search, the search itself must be reasonable. Thus, for example, the authority of the school official would not justify a degrading body cavity search of a youth in order to determine whether a student was in possession of contraband in violation of school rules. There the fourth amendment and privacy interests of the youth would clearly outweigh any interest in school discipline or order which might be served by such a search. In Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980) cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) the court noted: "[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency."5 "We suggest as strongly as possible that the conduct herein described exceeded the 'bounds of reason' by two and a half country miles." 631 F.2d at 93.6 22 The determination of whether a school official's search is reasonable and based upon reasonable cause must be determined upon the facts and circumstances of each particular case. However, we caution to note that federal courts should not become entwined in the day to day decision making of teachers and school administrators. Wood v. Strickland, supra 420 U.S. at 326, 95 S.Ct. at 1003. The responsible school official must be afforded the necessary discretion to carry out his duties. 23 The defendants in this case, Raybuck and Spargur, themselves had observed activity they reasonably believed to indicate the use and sale of marijuana, activity which plainly constituted a violation of a well established policy. Thus, they had personally observed the incident, and had particularized suspicion of specific individuals including David Tarter. Furthermore, they were not making a general search of a large group of students. Cf. Horton, supra; Renfrow, supra. The information they had--their personal observations--was obviously reliable. In addition to their personal observations, another student, Michael Cosner, claimed he had purchased a marijuana cigarette from a student he identified in the school yearbook as David Tarter. 556 F.Supp. at 627. 24 Accordingly, we hold that under the particular circumstances of this case the school officials had reasonable cause to search the plaintiff. Furthermore, the search actually conducted in this case itself was reasonable under the circumstances. 25 Plaintiffs contend the district court's reliance on the Horton standard is misplaced because the Fifth Circuit in Horton specifically limited its decision stating: 26 We intimate no opinion as to the standards to be applied when a school official acts at the request of police, calls in the police before searching, or turns over the fruits of his search to the police. In that situation, when there is some component of law enforcement activity in the school official's action, the considerations may be critically different. 27 Horton, 690 F.2d at 481, n. 19. 28 In this case, the Tarters correctly point out, the police had been summoned to the scene and had taken away two other students. In addition, the defendants had again called the police to the scene with respect to David Tarter. It should be noted, however, that the school officials were not acting on direction of the police, nor was anything from Tarter's person turned over to police. Plaintiffs argue, however, that the reasonable cause standard is not applicable and the probable cause warrant requirement should have applied because the school officials clearly intended to turn over any incriminating evidence to the police, and thus were themselves effectively acting as law enforcement officers. 29 Plaintiffs express a legitimate concern. The presence of the police officers does take this case purely out of the context of school officials seeking to maintain an environment conducive to the educational process as in Horton. Here, as is often the case, the school rules overlapped the criminal law. However, in the context of this case we decline to pass directly on the question of what fourth amendment standards would be applicable where the fruits of a search are turned over to law enforcement officials and used in proceedings against the student searched. Cf. State in the Interest of T.L.O., supra (adopting "reasonable cause" standard for search where fruits of search were used in proceedings against student). This case simply does not present such a question. This is not a criminal proceeding; no evidence is sought to be excluded; indeed, no incriminating evidence was ever discovered on David Tarter's person. For a discussion of these issues see Annotation "Admissibility, in Criminal Case, of Evidence Obtained By Search Conducted By School Official or Teacher," 49 A.L.R.3d 978 (1973), and LaFave, supra. 30 Although the police had been called with regard to David Tarter, it was because the school officials discontinued their search when David said he would not continue his "cooperation." The involvement of the police with respect to plaintiff was marginal. Their presence does not suggest that a standard other than reasonable cause ought to be adopted. For purposes of a Sec. 1983 action for damages, we decline to draw the distinctions from Horton urged by appellants. The propriety of such a search in the context of excluding evidence obtained therefrom in a subsequent criminal proceeding against the student is currently a question before the Supreme Court in New Jersey v. T.L.O., supra, and is not before this Court in this Sec. 1983 action. 31 We hold that Raybuck and Spargur had reasonable cause to search David Tarter under the circumstances set forth above and that the search was reasonable. Accordingly, we affirm the decision of the district court in this respect, although on grounds different from those relied on by the district court.7 III. 32 Appellants also assert the district court erred in awarding attorneys fees to the prevailing defendants pursuant to 42 U.S.C. Sec. 1988. This statute provides the court with discretion to allow the prevailing party reasonable attorneys fees.8 Although the language of the statute does not distinguish between a prevailing plaintiff and a prevailing defendant, the legislative history and relevant case law demonstrate the standards are distinct. 33 The legislative history reflects the primary purpose of the provision is to provide an opportunity for private citizens to vindicate important constitutional rights. The provision passed in the Civil Rights Attorney's Fees Awards Act of 1976, P.L. 94-559, 90 Stat. 2641 was enacted in response to the Supreme Court decision of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) applying the "American Rule" (that each party bears his own legal expenses) for attorneys fees where private parties seek to vindicate federal rights, absent a specific congressional provision granting the authority to award such fees. See Sen.Rep. No. 94-1011, 2-5 (1976) reprinted in 1976 U.S.Code Cong. & Ad.News, 5908, 5910-12. The Senate Report stated further: 34 It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968). 35 * * * 36 * * * 37 Such "private attorneys general" should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent's counsel fees should they lose. 38 * * * 39 * * * 40 This bill thus deters frivolous suits by authorizing an award of attorneys' fees against a party shown to have litigated in "bad faith" under the guise of attempting to enforce the Federal rights created by the statutes listed in S. 2278. 41 Id. at 5912 (footnote omitted). 42 In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court articulated what has become the standard basis for awarding attorneys fees to prevailing defendants in civil rights cases. The Court stated: "[A] district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." 434 U.S. at 421, 98 S.Ct. at 700. In other language the Court stated: "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422, 98 S.Ct. at 701. 43 While the Supreme Court in Christiansburg was addressing the question of the standard applicable to the attorneys fee provision of section 706(k) of Title VII of the Civil Rights Act of 1964, 78 Stat. 261, 42 U.S.C. Sec. 2000e-5(k), the provisions are virtually identical to those of Sec. 1988 at issue in this case. 44 In Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 178-179, 66 L.Ed.2d 163 (1980) (per curiam) the Court applied the Christiansburg test in actions brought pursuant to Sec. 1983, although the plaintiff in Hughes was an uncounseled prisoner, the Court's language is clear: 45 In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 [98 S.Ct. 694, 54 L.Ed.2d 648] (1978), we held that the defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney's fees from the plaintiff only if the District Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id., at 421 [98 S.Ct. at 700]. Although arguably a different standard might be applied in a civil rights action under 42 U.S.C. Sec. 1983, we can perceive no reason for applying a less stringent standard. The plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. 46 Id. 449 U.S. at 14, 101 S.Ct. at 178. 47 The application of the Christiansburg standard for the award of attorneys fees to defendants under Sec. 1988 has been adopted by numerous courts. See e.g. Campbell v. Cook, 706 F.2d 1084, 1086 (10th Cir.1983); Doe v. Busbee, 684 F.2d 1375, 1378-80 (11th Cir.1982); Werch v. City of Berlin, 673 F.2d 192 (7th Cir.1982); Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir.1981); Bowers v. Kraft Foods Corp., 606 F.2d 816 (8th Cir.1979); Lopez v. Arkansas County Indep. School Dist., 570 F.2d 541 (5th Cir.1978). 48 The Supreme Court's test in Christiansburg, supra, however, must be read in context with other language in the Court's opinion stressing that the underlying purposes of Sec. 1983 and Sec. 1988 not be undermined in awarding fees to prevailing defendants too freely. The Supreme Court cautioned: 49 In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. 50 434 U.S. at 421-422, 98 S.Ct. at 700-701. 51 The decision to award attorney's fees is committed to the discretion of the trial judge. 42 U.S.C. Sec. 1988; Christiansburg Garment, 434 U.S. at 421, 98 S.Ct. at 700; Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir.1981); Obin v. District 9 of Internat. Ass'n, Etc., 651 F.2d 574 (8th Cir.1981); Muscare v. Quinn, 614 F.2d 577, 579-80 (7th Cir.1980); Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980) as is the amount of the fee award. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). The standard of appellate review of a district court's award of attorney's fees to a prevailing party under Sec. 1988 is whether the trial court abused its discretion in making or denying the award. Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir.1981) (award to prevailing defendants); Olitsky v. O'Malley, 597 F.2d 303, 305 (1st Cir.1979). See Christiansburg Garment, supra, 434 U.S. at 421, 424, 98 S.Ct. at 700, 701; Tonti v. Petropoulous, 656 F.2d 212, 217 (6th Cir.1981); Obin v. District 9 of Internat. Ass'n, Etc., 651 F.2d 574, 586 (8th Cir.1981). 52 The Seventh Circuit has articulated several factors an appellate court may consider when determining whether the trial court properly exercised its discretion in applying the Christiansburg standards: 53 In seeking to determine whether a suit is frivolous, unreasonable or groundless, courts have focused on several factors. Among those considered are whether the issue is one of first impression requiring judicial resolution, Christiansburg, 434 U.S. at 423-24, 98 S.Ct. at 701; whether the controversy is sufficiently based upon a real threat of injury to the plaintiff, Olitsky, 597 F.2d at 305; whether the trial court has made a finding that the suit was frivolous under the Christiansburg guidelines, and whether the record would support such a finding, see, e.g., Vorbeck v. Whaley, 620 F.2d 191, 193 (8th Cir.1980). 54 Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir.1981). 55 We examine the district court's award of attorneys fees, cognizant of the Supreme Court's heed of caution regarding the award of fees to a prevailing defendant articulated in Christiansburg; mindful of the legislative history of 42 U.S.C. Sec. 1988 in the context of the overall purpose behind the civil rights provisions; aware of the factors articulated by the Seventh Circuit in Reichenberger, and with due recognition of the limited scope of our review. 56 The district court recognized that the Christiansburg standard was the appropriate standard for determining whether defendants were entitled to attorneys fees under Sec. 1988. Tarter v. Raybuck, 556 F.Supp. 625, 631 (N.D.Ohio 1983). The district court then examined plaintiff's complaint in light of this standard. With respect to the expulsion of David Tarter and plaintiffs' prayer for an order compelling defendants to readmit David to school, the district court wrote: 57 Pursuant to R.C. 3313.66 et seq., the plaintiff parents appealed the expulsion to the Board of Education of Cuyahoga Falls. Considerable testimony was taken with respect to that appeal. See Exhibit H. A study of the record of the expulsion hearing before the Board of Education fails to reveal any factual basis to warrant the filing of a complaint alleging conduct on the part of the defendants actionable under 42 U.S.C. Sec. 1983. 58 The plaintiffs' complaint prayed for relief including an order from this Court compelling the defendant school board and defendant school administrators to permit the plaintiff David Tarter to reenter Cuyahoga Falls High School. The complaint was filed in September of 1981 after David Tarter, as a matter of law, was eligible to return to school because his expulsion was for only the semester, consistent with the provisions of Ohio Revised Code Sec. 3313.66. The fact that the expulsion was for only the period of a semester was clearly indicated by a letter mailed to the plaintiffs following the expulsion. See Exhibit 5. Nonetheless, the student David Tarter made no attempt to reenter Cuyahoga Falls High School. His parents failed to make any inquiry on behalf of David Tarter calculated to bring about his reentry into Cuyahoga Falls High School. The defendants took no action which in any way could have been construed as an attempt to prohibit David Tarter from returning to Cuyahoga Falls High School. 59 556 F.Supp. at 631-32. 60 It was readily apparent from the letter to plaintiffs from the Superintendent of Schools that the expulsion was for the balance of the spring 1981 semester. Thus the complaint, not filed until September 1981, was meritless to the extent it sought an order to compel defendants to permit David Tarter to reenter Cuyahoga Falls High School. Nothing was ever alleged or shown which might have conceivably been characterized as action by defendants to deny David Tarter reentry. 61 Furthermore, we entirely agree with the district court that the "claim that David Tarter and his parents were wrongfully detained in the high school clinic is patently without merit." 556 F.Supp. at 632. 62 We turn then to the district court's discussion of the merits of plaintiffs' fourth amendment claim. The district court's only consideration of awarding attorneys fees to defendant with respect to the search issue was as follows: 63 It is without dispute that the search of David Tarter on the morning of March 3, 1981, ceased immediately upon his revocation of the consent that he had earlier given to a search of his person. 64 556 F.Supp. at 632. 65 As previously stated we are not inclined to resolve this case on the finding that David Tarter freely consented to the search. In examining this claim in light of standards enunciated in Christiansburg, we hold the district court abused its discretion in awarding attorneys fees to defendants in this case. First, we cannot conclude that this action was wholly meritless or without foundation. See Christiansburg, supra. We specifically note that the issue of a student's fourth amendment rights in the context of a search by a school official is not a well settled area of the law in the country or in this circuit. This factor mitigates against an award to defendants. See Reichenberger, supra. Indeed, the United States Supreme Court has scheduled for reargument next term a case which may address directly a factual situation not unlike the case at bar. The question the Court has directed to be considered in ordering reargument is essentially whether an assistant principal violated a student's fourth amendment rights when he searched her purse based upon information from a teacher that the student had been smoking in the girl's bathroom in contravention of school rules. See New Jersey v. T.L.O., 52 U.S.L.W. 3935 (June 26, 1984) scheduling the case for reargument.9 Finally, as suggested in Reichenberger, supra, the district court did make a finding that the suit was frivolous under the Christiansburg guidelines. However, we cannot conclude the record adequately supports such a finding. The district court's analysis of the award with respect to the fourth amendment claim was limited only to his determination that because consent was freely given, plaintiff's claim was groundless. 556 F.Supp. at 632. As we have previously discussed, plaintiffs' case was not so easily resolved. Although plaintiffs' claim ultimately proved unsuccessful, it was not so meritless or without foundation that defendant was properly awarded attorney's fees as the prevailing party in this case in light of the legislative history behind section 1988, the Civil Rights statutes, and the Christiansburg standards enunciated by the Supreme Court. 66 Christiansburg warns that judges not engage in post hoc reasoning to justify such an award. 434 U.S. at 422, 98 S.Ct. at 700-701. "Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit." Id. "Decisive facts may not emerge until discovery or trial." Id. 67 We conclude this lawsuit is the type of case contemplated by the Supreme Court in enunciating the words of caution just quoted. The issue of consent was reasonably in dispute given the context of the purported waiver of important constitutional rights. The exact nature and extent of a student's fourth amendment rights are not well settled. Furthermore, there is no definitive standard established on when school officials may undertake incursions on traditional fourth amendment protections, in order to maintain school order and discipline. Also, the presence of the police at the high school surrounding the time of the incident in question raised a legitimate question of whether the standard of conduct of the school officials was the same as for police officials. That the district court or this court ultimately declined to adopt the positions urged by plaintiffs on these questions is not tantamount to concluding defendants are entitled to an attorneys fees award under section 1988. 68 We hold therefore, that the district court abused its discretion in awarding defendants judgment on their counterclaim for attorneys fees pursuant to 42 U.S.C. Sec. 1988. IV. 69 We conclude that there was reasonable cause for the defendants to conduct a search of David Tarter under the circumstances of this case, and the extent of the search actually undertaken was reasonable. Thus, we affirm the district court in rendering judgment in favor of defendants with respect to the claims of plaintiffs. However, we conclude the district court abused its discretion rendering judgment in favor of defendants on their counter-claim for attorneys fees pursuant to 42 U.S.C. Sec. 1988. The judgment of the district court is affirmed in part and reversed in part. Both sides will bear their own costs on this appeal. 1 On June 10, 1983 the district court issued an order granting defendants $9,668.00 in attorneys fees and $1,179.90 in costs 2 The defendants' request to have plaintiff remove his pants was apparently based upon events which transpired earlier in the day. The district court noted: In an earlier confrontation on the morning of March 3, 1981, the defendant William Spargur was handed a plastic bag of marijuana cigarettes concealed under the trousers of student Dave Richardson who had been seen engaging in an exchange of what appeared to be marijuana cigarettes with a student in a transaction separate from the Tarter-Cosner exchange. Prior to the Spargur-Raybuck-Tarter confrontation in the clinic, William Raybuck was present when an officer of the Cuyahoga Falls Police Department began a search of Greg Kmet, another student observed smoking marijuana in the pit on March 3, 1981. The police officer asked Kmet to unbutton his pants. After Kmet complied, with some hesitation, and lowered his pants, the police officer and Raybuck observed a big bulge in his underwear which was patted by the police officer with ensuing crinkling-like paper sound. At that point Kmet stated, "You're not searching me any more," and bolted from the school with the police officer in pursuit. 556 F.Supp. at 627 3 Unlike this case the New Jersey case initially presented the question of whether the exclusionary rule barred the use in a criminal proceeding of evidence obtained in a search of the student by a school official. In scheduling the case for reargument, the Court asked the parties to brief and argue the following question: "Did the assistant principal violate the Fourth Amendment in opening respondent's [student's] purse in the facts and circumstances of this case?" Although not in the context of an action pursuant to 42 U.S.C. Sec. 1983, the Supreme Court next term will consider virtually the same question presented to this Court in the case at bar 4 Some courts have avoided the application of fourth amendment principles to school teachers and administrators under the doctrine of in loco parentis. See Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970). Under this theory the school official does not act as an agent of the state, rather he stands "in the shoes of the parent," and thus is not constrained by the fourth amendment. See generally Trosch, Williams & DeVore, "Public School Searches and the Fourth Amendment," 11 J.Law & Educ. 41, 44-45 (1982). This reasoning is unsound and we reject it as have courts and commentators. See cases cited in text immediately preceding this note. See also 3 LaFave, Search and Seizure, Sec. 10, 11 (1978); Buss "The Fourth Amendment and Searches of Students in Public Schools," 59 Iowa L.Rev. 739, 767 (1974). As the court in Horton, supra, noted: "We think it beyond question that the school official ... is an agent of the government and is constrained by the fourth amendment." 690 F.2d at 480 5 In Doe v. Renfrow the district court had determined that defendants had no reasonable cause to believe plaintiff possessed contraband. 631 F.2d at 92 6 The Seventh Circuit in Doe considered and rejected the district court's position in that case that defendants were entitled to "good faith" immunity from damages under the doctrine of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) reh'g denied 421 U.S. 921, 95 S.Ct. 1589, 43 L.Ed.2d 790 (1975) which held that in the context of school discipline a school board member will only be liable for a damage award in a Sec. 1983 action if he acted with an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot be reasonably characterized as being in good faith The district court in the case at bar did not address the immunity issue, nor do we. See infra, note 7. 7 Because we conclude that defendants had reasonable cause to conduct the search and the search itself was reasonable, we need not address the question of whether under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) the defendants would have been entitled to good faith immunity from an award of damages. The issue was not presented to the district court, nor was it presented to this court. Cf. Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) wherein the Seventh Circuit reversed a ruling by the district court that defendants were immune from monetary damages under Strickland where the court found no reasonable cause to conduct a search of plaintiffs 8 42 U.S.C. Sec. 1988 provides in pertinent part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 9 As noted, supra at Note 3, the issue was not initially before the Court. Rather the issue initially presented was only whether the exclusionary rule applied where the state sought to introduce that evidence in a subsequent criminal proceeding

Cite as 2017 Ark. App. 371 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-995 Opinion Delivered JUNE 7, 2017 ANDREW LEE WISEMAN, JR. APPELLANT APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT V. [NO. 29CR-14-199-1] STATE OF ARKANSAS HONORABLE RANDY WRIGHT, APPELLEE JUDGE AFFIRMED N. MARK KLAPPENBACH, Judge Appellant Andrew Lee Wiseman was convicted of raping his cousin SW when she was fourteen years old. Appellant was tried before a jury in Hempstead County Circuit Court, and he was sentenced to forty years in prison. Wiseman appeals his conviction, arguing that the trial court erred in denying his motion for directed verdict that challenged the sufficiency of the State’s proof of penetration. We affirm. On appeal, the appellate courts treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. The appellate court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. Variances and discrepancies in the proof go to the weight or credibility of the evidence and are matters for the fact-finder  Cite as 2017 Ark. App. 371 to resolve. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Accordingly, when there is evidence of a defendant’s guilt, even if it is conflicting, it is for the jury as fact-finder to resolve, not the court. Id. Appellant, a man in his early thirties, was charged with committing rape against his teenage first cousin SW. The following citations of Arkansas law are applicable to the appeal before us. According to Arkansas Code Annotated section 5-14-103(a)(4)(A)(iv) (Repl. 2013), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is a minor and the defendant is the victim’s first cousin. Arkansas Code Annotated section 5-14-101(11) defines “sexual intercourse” as “penetration, however slight, of the labia majora by a penis.” A rape victim’s testimony may constitute substantial evidence to sustain a conviction for rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim’s testimony need not be corroborated, nor is scientific evidence required. Id. More particularly, testimony of the victim that shows penetration is enough for conviction. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). The following is an examination of evidence presented at this jury trial,1 viewed in the 1 We note that the abstract contains irrelevant material, such as arraignment and pretrial hearings, the process of jury selection, chain-of-custody testimony, and the trial court’s giving of jury instructions. We caution appellant’s counsel that this is excessive and not in compliance with Arkansas Supreme Court Rule 4-2(a)(5)(2016). See Patton v. State, 2013 Ark. App. 131. We also caution counsel that the addendum improperly contains irrelevant discovery-related motions that are not essential or pertinent to the issue on appeal. See Ark. Sup. Ct. R. 4-2(a)(8). 2  Cite as 2017 Ark. App. 371 light most favorable to the jury’s verdict. SW was sixteen years old at the time of trial. She testified for the State. SW described going to appellant’s house for a family barbecue on Sunday, July 6, 2014. SW said that at some point she went to use the bathroom, and as she was pulling up her clothing, appellant came into the bathroom. Appellant then forced himself on SW, stating that he “had been waiting to get at [her] for the longest[.]” SW said that she understood what sexual intercourse was, that appellant put his penis in her vagina and moved continually, and that it hurt. She said that appellant told her not to tell anyone and that he would buy her a phone. When he was done, SW cleaned herself with tissue and saw a little blood and “clear stuff” on the tissue. SW was scared and shaken by the experience; she did not report the rape immediately. When she did report that she had been raped, she at first said it was her stepfather who had done it, and she gave other particular details that were untrue. SW subsequently identified her cousin, appellant, as the person who had raped her. SW admitted at trial that she had lied at first, but she did not have an explanation for why she had lied. SW positively identified appellant in open court as the person who had raped her at the barbecue at his house. The evidence at trial also included the testimony of state-crime-laboratory personnel (a forensic serologist and an expert forensic DNA analyst) who confirmed that testing of a swab taken from inside SW’s vagina2 during a sexual-assault examination conducted on July 2 The nurse who conducted the examination had testified that the swab sample was taken from the vaginal vault, which is not in the outer area of the labia but rather “up into the body.” 3  Cite as 2017 Ark. App. 371 8, 2014, revealed the presence of sperm. The DNA testing identified appellant as the source of that DNA within all scientific certainty. SW’s stepfather was excluded as a contributor to this DNA sample. A law enforcement officer testified that SW was incoherent and did not make much sense when she was first interviewed on July 8; she was slow to answer and seemed disoriented. It was at this interview that SW identified her stepfather as the perpetrator. However, at the second interview conducted on July 14, the officer said that SW made much more sense, was coherent, and was “clear eyed and focused.” It was at this interview that SW identified appellant as the man who had raped her, denying that it was her stepfather. At the end of the State’s case, appellant’s attorney moved for directed verdict arguing that the State had failed to prove that appellant penetrated SW for purposes of the rape statute. The trial court denied the motion. Appellant took the stand and denied the allegations, stating that he and his girlfriend had sexual intercourse immediately prior to the barbecue. Appellant also stated that there was no toilet tissue in his bathroom, so he had to go to the store to buy some during the party. Appellant’s girlfriend corroborated appellant’s version of events, stating that she and appellant had sexual intercourse before the barbecue, that she then used a towel in the bathroom to clean herself, and then she left that towel in the bathroom. After the defense’s case, defense counsel renewed the motion for directed verdict, which was denied. The jury found appellant guilty of rape, resulting in the conviction and 4  Cite as 2017 Ark. App. 371 sentence that appellant now appeals. Appellant argues that SW had lied and was not credible, such that his conviction is not supported by sufficient evidence. We disagree. Any inconsistencies in SW’s testimony were for the jury to resolve; it is not an issue for the appellate court. Allen v. State, 2016 Ark. App. 537, 506 S.W.3d 278. The uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a rape conviction. Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). While a rape victim’s testimony need not be corroborated by forensic evidence, additional evidence was introduced during trial that supported SW’s testimony. Semen was found inside SW’s vagina, and the forensic DNA analyst gave expert testimony that established, within all scientific certainty, that the DNA originated from appellant. While appellant attempted to explain away this incriminating evidence, there was sufficient evidence from which the jury could conclude that appellant committed rape against SW. Affirmed. GRUBER , C.J., and HIXSON , J., agree. Anthony S. Biddle, for appellant. Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee. 5 

522 Pa. 491 (1989) 564 A.2d 151 COMMONWEALTH of Pennsylvania v. Andre CRADDOCK, Appellant. Supreme Court of Pennsylvania. Argued April 14, 1989. Decided September 5, 1989. Steven A. Morley, Philadelphia, for appellant. Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., George S. Leone, Philadelphia, for appellee. *492 Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ. ORDER PER CURIAM: Order affirmed.

42 P.3d 1207 (2002) 131 N.M. 758 2002-NMSC-007 STATE of New Mexico, Plaintiff-Respondent, v. Frederico GAITAN, Defendant-Petitioner. No. 26,743. Supreme Court of New Mexico. February 22, 2002. *1209 Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Petitioner. Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Respondent. OPINION BACA, Justice. {1} Defendant, Frederico Gaitan, was convicted of second degree murder as an accessory under NMSA 1978, § 30-2-1(B) (1994) and NMSA 1978, § 30-1-13 (1972), aggravated assault with a deadly weapon under NMSA 1978, § 30-3-2(A) (1963), tampering with evidence as an accessory under NMSA 1978, § 30-22-5 (1963) and Section 30-1-13, and aggravated battery with a deadly weapon under NMSA 1978, § 30-3-5(C) (1969). Defendant appeals his convictions and raises two issues on appeal: (1) whether the trial court erred in failing to instruct the jury on voluntary and involuntary manslaughter; and (2) whether the trial court erroneously admitted evidence of a prior bad act. The Court of Appeals affirmed Defendant's convictions, and we granted his petition for writ of certiorari to the Court of Appeals. State v. Gaitan, 2001-NMCA-004, ¶ 28, 130 N.M. 103, 18 P.3d 1056. We affirm. I. {2} On October 13, 1997, Defendant, Richard Padilla, and Viento Herrera initiated an altercation with Stephen and Wesley Zotigh that resulted in Stephen's death. On that night, Defendant, Padilla, and Herrera had been drinking at a party and were driving to another party when they approached the victim and his cousin, who were walking home from a convenience store. During the ensuing altercation, the victim was stabbed four times. He later died as a result of two of the wounds. {3} According to Wesley Zotigh's testimony, the three men pulled up beside him and his cousin and offered them a ride. After they refused the offer, someone in the car asked them if they were Indian, what their names were, and if they had any money. Zotigh stated that he got the feeling something bad was going to happen after the three men began to giggle inside the car, and he urged the victim to leave. As the two walked away, Zotigh heard the engine rev and felt a "little shove" from the victim, pushing him out of the way. When Zotigh turned around he saw the car hit the victim, throwing him onto the hood of the car. The victim then got off the hood, took off his shirt, and approached Defendant, who had gotten out of his car. Zotigh testified that as Defendant and the victim pushed and shoved each other, Defendant turned toward the car and said, "Let's get out the gat," as he gestured to his friends with both hands. Padilla and Herrera then got out of the car, and all three men began fighting with the victim. Zotigh stated that he then heard one of the men say, "Let's go. Let's go," and the three ran back to the car laughing and drove away. At that point Zotigh realized the victim had been seriously injured. {4} Padilla testified that he heard the Defendant say "Get the gat" at a party the three men attended earlier in the evening. He stated that Defendant used the words to intimidate people at the party when they refused to allow Defendant to leave with some of the beer. Padilla reiterated that the Zotighs did not want a ride from the three men and had in fact refused their offer. He testified that he was the first person to get back into the car after the altercation and that Defendant was the last one back in. He also stated that after they got back in the car the three men laughed about what had taken place. *1210 {5} Teresa Padilla, Richard Padilla's mother, testified that Herrera told her that after the Zotighs started walking away from the car, Defendant was "acting crazy" and kept asking, "Should I run the fuckers over?" Herrera apparently responded "Go for it," and the Defendant hit the victim with his car. {6} Vincent Archuleta, another friend of Defendant, testified that on the night of the stabbing Defendant came to Archuleta's trailer and asked if he could stay at his house. Defendant told him that "they had got [sic] in a fight and somebody was stabbed, that they had stabbed somebody." Archuleta's girlfriend, Isabel Cortez, was present at Archuleta's trailer that night, and testified that she too heard Defendant say "We stabbed somebody." {7} The State also presented testimony from Kevin Silva, who was incarcerated in the Taos County Detention Center when Defendant was brought in on these charges. He stated that he had known Defendant since childhood and that they had both been in the Barrios Small Town gang together. Silva testified that when he asked Defendant why he was in jail, Defendant told him "We pulled a cap back on an Indian," and "We had killed an Indian." Defendant further explained that they had stabbed the victim. {8} Defendant gave a different version of the events of that night. According to his testimony, he pulled up beside the two men in his car, and Herrera, a passenger, asked them if they wanted a ride. Defendant stated he could not recall why he had pulled over, although he admitted that the Zotighs "weren't asking for a ride," but that they had "pulled over and offered them a ride." After the Zotighs refused Herrera's offer and continued walking, Defendant decided he "wanted to mess around with them a little bit," and he slowly drove up behind them, "revved" his engine, and stopped "real close" to the victim. Defendant stated that when he stopped his car, the victim "must of [sic] thought I was going to hit him or something because I was so close to him. He turned around and maybe his instinct was to jump, so he jumped on my car and he got off and took off his shirt." Defendant testified that after the victim jumped off the hood of the car he came towards Defendant in an aggressive manner. Defendant thought the victim was going to attack him, so he got out of his car to apologize and explain that he was just "playing around." However, as soon as Defendant exited his vehicle the victim began pushing Defendant toward the road. Fearing the victim was going to "pound" him, Defendant told the victim, "I have a gat, leave me alone. I have a gat." Soon thereafter, Defendant saw Herrera and Padilla get out of the car and begin fighting with the victim. Contrary to Padilla's testimony, Defendant stated that he was the first to get back in the car, and that after Padilla and Herrera got back in he drove away. {9} Defendant testified that, as he was driving away, he saw blood on the victim's face and chest, but thought the victim had a bloody nose. Herrera then commented that he had blood on his hands, and Padilla announced that he had stabbed the victim. Defendant also testified that he did not know Padilla had a knife and did not know that the victim had been stabbed until after they drove away. II. {10} The State charged Defendant with first degree murder as an accessory. The indictment named as principals either Herrera or Padilla, or both. At trial, the jury was instructed on second degree murder as a lesser included offense of first degree murder. The trial court refused Defendant's tendered instructions on the lesser included offenses of voluntary and involuntary manslaughter. Defendant argues that the trial court's failure to tender his requested instructions to the jury constituted reversible error because there was a reasonable view of the evidence which could sustain a finding that voluntary manslaughter, or in the alternative, involuntary manslaughter, was the highest degree of homicide committed by Defendant. We review this issue de novo. See State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996 ("The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo."). *1211 A. {11} A defendant is entitled to an instruction on a lesser included offense when there is "`some view of the evidence pursuant to which the lesser offense is the highest degree of crime committed, and that view [is] reasonable.'" State v. Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313 (quoting State v. Curley, 1997-NMCA-038, ¶ 5, 123 N.M. 295, 939 P.2d 1103). "Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion." NMSA 1978, § 30-2-3(A) (1994). The difference between second degree murder and voluntary manslaughter is that voluntary manslaughter requires sufficient provocation. Compare UJI 14-220 NMRA 2002 with UJI 14-210 NMRA 2002. Thus, Defendant was entitled to an instruction on voluntary manslaughter only if there was some evidence in the record to support his assertion that sufficient provocation existed. {12} Because Defendant was charged as an accessory, and the principal and accessory may each be convicted for different degrees of an offense depending on their state of mind, we agree with the Court of Appeals' determination that we must consider whether Defendant, rather than Padilla or Herrera, was sufficiently provoked by the victim. Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶¶ 14-15; see State v. Holden, 85 N.M. 397, 400, 512 P.2d 970, 973 (Ct.App. 1973) ("The fact that [the accessory] was convicted of a different crime than [the principal] is a permissible result under our accessory statute."). Applying this approach, the Court of Appeals determined that Defendant was not entitled to a voluntary manslaughter instruction because "[e]ven under Defendant's version of the incident, there is evidence that Defendant brought on Steven's attack." Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 17. In reaching this conclusion the Court relied on the following language from State v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285 (1979), overruled in part by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164: "If the defendant intentionally caused the victim to do acts which the defendant could claim provoked him [or her], [the defendant] cannot kill the victim and claim that he [or she] was provoked. In such case, the circumstances show that [the defendant] acted with malice aforethought, and the offense is murder." (Quoted authority omitted.) We agree with the Court of Appeals. {13} Defendant argues that the Court of Appeals interpreted this language too broadly, and that the proper reading of Manus is that "where the assailed person intentionally provokes an attack so that he can use that attack as an excuse for killing, he is guilty of murder." We are not persuaded by Defendant's reading of this case. Rather we conclude that the proper interpretation of this language is that the law does not permit one who intentionally instigates an assault on another to then rely on the victim's reasonable response to that assault as evidence of provocation sufficient to mitigate the subsequent killing of the victim from murder to manslaughter. See State v. Munoz, 113 N.M. 489, 491-92, 827 P.2d 1303, 1305-06 (Ct.App.1992) ("We recognize that a defendant cannot pose a threat to the victim and then rely on the victim's response as a legal provocation."); State v. Durante, 104 N.M. 639, 643, 725 P.2d 839, 843 (Ct.App.1986) ("Defendant cannot create the provocation which would reduce murder to manslaughter."); State v. Padilla, 104 N.M. 446, 448, 722 P.2d 697, 699 (Ct.App.1986) ("As a general rule, however, there also must be evidence of acts of provocation by the victim that do not result from intentional acts of defendant."); State v. Marquez, 96 N.M. 746, 749, 634 P.2d 1298, 1301 (Ct.App.1981) ("If there was any provocation, it was not brought about by [the victim] throwing a vase, but by defendant's illegal entry into [her] home."). "Even in the case where the defendant kills in response to a violent blow,. . . [the defendant] may not have [the] homicide reduced to voluntary manslaughter if [the defendant] by his [or her] own prior conduct (as by vigorously starting the fracas) was responsible for that violent blow." 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 7.10(b)(1) (1986). In the present case, not only did Defendant intentionally and vigorously start the fracas with an aggravated battery, there *1212 was not even a violent blow by the victim in response. Thus, as the Court of Appeals determined, even assuming Defendant retreated to his car in fear, Defendant's own version of the events presents evidence that Defendant intended to bring on the victim's attack. Defendant testified that he, Padilla, and Herrera approached the Zotighs in Defendant's car and Herrera asked them if they wanted a ride. Defendant explicitly stated that he could not remember why they had chosen to approach the Zotighs that night, and there was no evidence that either of the Zotighs provoked Defendant prior to this incident. After the Zotighs refused their offer, Defendant decided he "wanted to mess around with them a little bit" so he slowly drove up behind them, "revved" his engine, and stopped "real close" to the victim. Defendant also stated that, as a result of his actions, the victim "must of [sic] thought I was going to hit him or something because I was so close to him" and that the victim became very angry. "If one person attacks another who defends himself with no more force than he is privileged by law to use for his own protection, there is no problem of provocation. The assailant is acting without mitigation of any sort and the defender is fully justified or excused." Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 89 (3d ed.1982) (footnotes omitted). Because Defendant intentionally instigated the assault on the victim, he cannot now rely on the victim's reasonable response to that assault as evidence of provocation sufficient to mitigate the subsequent killing of the victim from murder to voluntary manslaughter. {14} Furthermore, there is no reasonable view of the evidence supporting sufficient provocation as the mental state underlying Defendant's role in the killing. "`Sufficient provocation' can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition." UJI 14-222 NMRA 2002. Under Defendant's version of the facts, he had no intent for the victim to be killed. However, Defendant did intentionally threaten the victim and goad him to respond. He testified that he was "trying to just mess around with [the victim], . . . put him in some anger and stuff[, and] . . . get[ ] him mad or piss[] this young man off." Defendant stated that he knew his actions warranted an apology to the victim, and he testified that the victim's anger was understandable, stating, "he was angry about what happened. And I was guilty about what happened also." Defendant stated, "I don't blame him for being angry, either, because I would have been angry myself." Defendant testified that he "never did attack [the victim]. And [the victim] actually never really attacked me. If he would have attacked me, he would have probably left me with my face pretty swoll [sic] up and stuff. And he just basically just shoved me, pushed me, that was it." Defendant said that "[t]he only time I felt threatened was when I thought he was going to beat me up." From this testimony, it is clear that Defendant did not fear anything more than a beating by the victim, that the victim was going to "pound" him and that he may have a swollen face as a result. See Salazar, 123 N.M. 778, 945 P.2d 996, 1997-NMSC-044, ¶ 53 (rejecting the defendant's argument that the victim's actions of "veer[ing] her car at him and reaching under the seat as if to retrieve a gun" aroused fear or terror in the defendant because "[o]ther testimony by the [d]efendant precludes the possibility that he acted out of provocation and therefore eliminates any reason to instruct on voluntary manslaughter"). We, therefore, conclude that the anticipated and, in fact, desired response from the victim did not arouse sufficient fear, terror, or other extreme emotion "as would affect [Defendant's] ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition." UJI 14-222. Accordingly, the trial court did not err in refusing to instruct the jury on voluntary manslaughter. B. {15} Defendant also claims he was entitled to an involuntary manslaughter instruction because the evidence supported a reasonable view that involuntary manslaughter was the highest degree of homicide to *1213 which Defendant was an accessory. Defendant concedes that the theory argued on appeal is not the theory expressed in the rejected instruction. However, he argues that the instruction alerted the trial court to the possibility that the facts could be construed to support such an instruction and that the instruction was warranted. We do not agree. {16} The Court of Appeals deemed this issue unpreserved, noting that "Defendant acknowledges that he failed to preserve the alleged error for appeal because he failed to request an involuntary manslaughter instruction at trial." Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 18. While it is clear from the record that Defendant requested an instruction on involuntary manslaughter, we are not persuaded that this instruction properly preserved the issue for appeal. Rule 5-608(D) NMRA 2002, governing the preservation of error in jury instructions, states: [F]or the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed. (Emphasis added.) The purpose of this language is "to allow the court an opportunity to decide a question whose dimensions are not open to conjecture or after-the-fact interpretation." Gallegos v. State, 113 N.M. 339, 341, 825 P.2d 1249, 1251 (1992); see also State v. Hill, 2001-NMCA-094, ¶ 7, 131 N.M. 195, 34 P.3d 139 (concluding that although the instruction was flawed, defendant's requested instruction on self-defense was preserved because there was evidence in the record that the attorneys and the judge discussed the issue extensively, and that the trial court understood the type of instruction defendant wanted and should have modified it to correctly state the law). {17} Defendant's requested instruction asked the jury to find involuntary manslaughter if it determined that either Herrera or Padilla, or both, "stabbed Steven Zotigh with a knife." We do not believe that the act described in the instruction can be characterized as anything other than a felonious act, which is outside the statutory definition of involuntary manslaughter. See NMSA 1978, § 30-2-3(B) (1994); Salazar, 123 N.M. 778, 945 P.2d 996, 1997-NMSC-044, ¶ 57 (finding that the act of "`Shooting at Manzanares'" described in the requested involuntary manslaughter instruction could not be characterized as anything other than a felonious act and therefore did not fit within the definition of involuntary manslaughter). Thus, based on the requested instruction, there was no way for the trial court to construe the facts to support such an instruction. Furthermore, there is nothing in the record to indicate that Defendant offered any other theory at trial which would have sufficiently alerted the trial court that it needed to modify the instruction to correctly state the law. As this Court stated in Salazar, "[i]t is not error for a trial court to refuse instructions which are inaccurate." 123 N.M. 778, 945 P.2d 996, 1997-NMSC-044, ¶ 57. We believe the trial court correctly refused the inaccurate instruction tendered by Defendant. Moreover, even if Defendant had properly preserved this issue for appellate review, we find no reasonable view of the evidence that supports involuntary manslaughter as the highest degree of crime to which Defendant was an accessory. {18} Defendant was only entitled to an instruction on involuntary manslaughter if there was some reasonable view "`of the evidence pursuant to which the lesser offense is the highest degree of crime committed.'" Brown, 126 N.M. 338, 969 P.2d 313, 1998-NMSC-037, ¶ 12 (quoting Curley, 123 N.M. 295, 939 P.2d 1103, 1997-NMCA-038, ¶ 5). "Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to [a] felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection." Section 30-2-3(B). As discussed above, "[t]o determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his [or her] state of mind; it may have been different from the state of mind of the principal *1214 and they thus may be guilty of different offenses." 2 LaFave & Scott, supra, § 6.7(c), at 144. We thus consider whether there was some reasonable view of the evidence presented at trial which would have warranted giving the instruction. {19} In Holden, our Court of Appeals considered the issue of accessory liability as it relates to involuntary manslaughter. In that case, the evidence introduced at trial was that the defendant was looking for the victim and had made a statement to the effect that he was going to get someone to beat the victim up. Holden, 85 N.M. at 399, 512 P.2d at 972. Shortly after learning of the victim's whereabouts, defendant returned to that location with another man who then shot and killed the victim. Id. The Court determined that "[t]he fact that [the defendant] did not bargain for the result [was] not material. The material fact [was] that he did `procure' another to perform an `unlawful act.'" Id. at 400, 512 P.2d at 973. Thus, the Court concluded that there was "substantial evidence that [the defendant], with the intent to commit an unlawful act, procured [the principal] to inflict a beating on decedent," and death occurred. Id. This amounted to the lesser included offense of accessory to involuntary manslaughter. Id. {20} This case is distinguishable from Holden. According to Defendant's testimony, he had no intent that Padilla or Herrera act at all during the altercation with the Zotighs. He testified that he thought the victim was going to attack him, so he got out of his car to apologize, and as soon as he exited the vehicle the victim began pushing him toward the road. Defendant told the victim, "I have a gat, leave me alone. I have a gat," fearing the victim was going to "pound" him. Defendant explained that he used the statement to intimidate the victim, not as a call for help from his friends. Defendant also testified that there was never any agreement between the three men to fight the victim, nor did he think that they would "jump in" for him. Thus, Defendant's own testimony does not present a reasonable view of the evidence which would support involuntary manslaughter as the highest degree of homicide to which Defendant was an accessory, because according to Defendant's theory of the case he did not intend, help, encourage or cause the acts which resulted in the victim's death. See UJI 14-2822 NMRA 2002. {21} Furthermore, under no version of the facts presented at trial is Defendant entitled to the instruction. First, on appeal Defendant argues that a reasonable view of the evidence would have supported the instruction on the theory that Defendant by his negligent actions—provoking the altercation—precipitated the unintentional killing. This argument misinterprets accessory liability as it applies to involuntary manslaughter because it focuses on Defendant's actions as an accessory, rather than on his intent with respect to the actions of the principals. See 2 LaFave & Scott, supra, § 6.7(c), at 144. However, even if Defendant's conduct of provoking the altercation precipitated the acts which eventually resulted in the victim's death, we do not agree that Defendant's actions were negligent. Defendant acknowledged that as a result of intentionally approaching the victim with his vehicle, the victim "must of [sic] thought I was going to hit him or something because I was so close to him." Even if we assume Defendant did not strike the victim with his vehicle, according to Defendant's own testimony, the victim presumably believed he was going to hit him. Thus, at the very least, Defendant's actions were criminal and amounted to an aggravated assault with a deadly weapon (a motor vehicle), a fourth degree felony. See § 30-3-2(A) ("Aggravated assault consists of . . . unlawfully assaulting or striking at another with a deadly weapon. . . ."); State v. Mata, 86 N.M. 548, 550, 525 P.2d 908, 910 (Ct.App. 1974). More importantly, nothing about that act demonstrates the appropriate intent: that Defendant intended for Padilla or Herrera, or both, to commit "an unlawful act not amounting to [a] felony," which resulted in the victim's death. Section 30-2-3(B). {22} Second, even if Defendant only said "I have a gat," intending to intimidate the victim, that statement also constitutes the felony of aggravated assault and again fails to show the intent required for the instruction. See § 30-2-3(B); Mata, 86 N.M. at 550, 525 P.2d at 910. *1215 {23} Finally, with respect to the stabbing of the victim by the principals, the jury was presented with two alternative statements by Defendant relevant to his intent as an accessory. Under the first alternative, according to his own testimony, Defendant said, "I have a gat," intending to intimidate and not as a call for help. If believed by the jury, this statement would have resulted in an acquittal on the accessory to murder charge, because Defendant would not have shared the principals' purpose or design. Under the second alternative, Defendant said, "Let's get the gat," intending that his friends get a weapon and help him seriously injure or kill the victim. If believed by the jury, this statement demonstrates liability as an accessory to first or second degree murder because Defendant intended that a felonious act be committed. See § 30-2-1. {24} Defendant has advanced no argument, and we find no reasonable view of the evidence, pursuant to which involuntary manslaughter is the highest degree of crime to which Defendant was an accessory. We will not "fragment the testimony . . . to such a degree as to distort it" in order to construct a view of the evidence which would support the giving of the instruction. Manus, 93 N.M. at 100, 597 P.2d at 285. Accordingly, the trial court did not err in refusing to instruct the jury on involuntary manslaughter. III. {25} Defendant also asserts that the trial court improperly admitted testimony that Defendant said "Get the gat," at a party several hours before the stabbing incident. He argues that the statement was irrelevant, unfairly prejudicial, and constituted inadmissible propensity evidence. The trial court admitted the statement, concluding that it was relevant to the issues in the case, was not unfairly prejudicial, and could be construed as an admission by a party opponent. We will only reverse the trial court's ruling regarding the admissibility of evidence if the court abused its discretion. See State v. Garcia, 99 N.M. 771, 776, 664 P.2d 969, 974 (1983); State v. Hamilton, 2000-NMCA-063, ¶ 14, 129 N.M. 321, 6 P.3d 1043, cert. denied, 129 N.M. 207, 4 P.3d 35 (2000) and cert. denied, 129 N.M. 249, 4 P.3d 1240 (2000). {26} Under Rule 11-404(B) NMRA 2002, "[e]vidence of other crimes, wrongs, or acts" is not admissible to show that the defendant had a propensity to commit the charged crimes. However, this evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Rule 11-404(B). "In order to admit evidence under [this Rule], the court must find that the evidence is relevant to a disputed issue other than the defendant's character, and it must determine that the prejudicial effect of the evidence does not outweigh its probative value. . . ." State v. Beachum, 96 N.M. 566, 567-68, 632 P.2d 1204, 1205-06 (Ct.App.1981); see also Hamilton, 129 N.M. 321, 6 P.3d 1043, 2000-NMCA-063, ¶ 14. {27} Defendant argues that the State's proffered reasons for using Defendant's statement were "nothing more than propensity recast in other words." He asserts that the State sought to admit the statement to show that Defendant was a "bullying gang member" and had a "propensity to commit violent acts with guns." The State responds that the statement was probative of the disputed issue of whether Defendant was an accessory to several crimes including murder and assault with intent to commit a violent felony. We note that to convict the Defendant of these crimes as an accessory the State was required to prove that Defendant intended that the crimes be committed and that he helped, encouraged, or caused the crimes to be committed. See UJI 14-2822. The State asserts that the evidence of the earlier statement made at the party is useful as a comparison to his similar statement made during the altercation with the Zotighs, in that, "it tended to show that when in trouble the [D]efendant used a phrase that alerted his friends to the fact that he wanted them to help him as necessary." We agree with the Court of Appeals that the statement was admissible under Rule 11-404(B) "because the trial court could have concluded that the statement was highly probative of *1216 Defendant's intent to enlist or encourage the help of his companions and therefore relevant to the disputed issue of Defendant's liability as an accessory." Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 24 (relying on State v. Carrasco, 1997-NMSC-047, ¶ 7, 124 N.M. 64, 946 P.2d 1075, which stated that the criminal intent of the accessory "can be inferred from behavior which encourages the act"). {28} Furthermore, Defendant argues that the trial court misapplied the law by failing to perform the proper balancing test under Rule 11-403 NMRA 2002 and consequently erred in concluding that its prejudicial impact did not substantially outweigh its probative value. We disagree. Rule 11-403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. In this case, the trial court specifically indicated its concern that the statement was prejudicial, explaining that "this is really a question of . . . weighing and balancing." Thus, as the Court of Appeals determined, based on the record, it appears that the trial court conducted the proper Rule 11-403 analysis. See Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 26. {29} We further agree with the Court of Appeals that the prejudice of the statement did not outweigh its probative value to show Defendant's intent. At the time the statement was admitted, "the State had already introduced testimony concerning Defendant's gang affiliation, `bullying' nature, and propensity for violence." Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 27 (relying on State v. Woodward, 121 N.M. 1, 6, 908 P.2d 231, 236 (1995), which stated that "[t]he purpose of [Rule] 11-403 is not to guard against the danger of any prejudice whatever, but only against the danger of unfair prejudice. A statement is not unfairly prejudicial simply because it inculpates the defendant."). Testimony had been elicited that Defendant was "acting crazy" and kept asking, "Should I run the fuckers over," which was corroborated by Defendant's own admissions of his desires to "mess around with them a little bit." Two witnesses testified that Defendant hit the victim with his car, and Zotigh testified that during the altercation Defendant said, "Let's get out the gat." Furthermore, both Archuleta and his girlfriend, Cortez, stated that on the night of the stabbing Defendant admitted that they had stabbed somebody, and Silva testified that Defendant told him that they had "killed an Indian." We agree with the Court of Appeals that "[b]alancing this evidence with the probative value of the statement to show Defendant's intent, the trial court did not abuse its discretion in admitting [the] testimony." Gaitan, 130 N.M. 103, 18 P.3d 1056, 2001-NMCA-004, ¶ 27. IV. {30} For the foregoing reasons we affirm Defendant's convictions for second degree murder as an accessory, aggravated assault with a deadly weapon, tampering with evidence as an accessory, and aggravated battery with a deadly weapon. {31} IT IS SO ORDERED. WE CONCUR: PATRICIO M. SERNA, Chief Justice and PETRA JIMENEZ MAES, Justice. GENE E. FRANCHINI and PAMELA B. MINZNER, Justices (concurring in part, dissenting in part). MINZNER, Justice (concurring in part and dissenting in part). {32} I respectfully dissent. I believe Defendant was entitled to an instruction on voluntary manslaughter. I agree that the trial court did not abuse its discretion in admitting the "get the gat" statement. I also agree that Defendant's proposed instruction on accessory to involuntary manslaughter was flawed and that he thus failed to preserve an appellate issue with respect to an instruction on that theory. Because on remand Defendant might draft a better instruction and put on new or different evidence, I would not reach the issue of his *1217 entitlement to an instruction on involuntary manslaughter. I therefore concur in part II(B) to the extent that it holds that issue was not preserved, and I concur in part III. For the following reasons, I dissent from part II(A), and I would remand for a new trial. {33} Defendant sought an instruction on voluntary manslaughter. Defendant was not the killer, but the State charged him as an accessory. Manslaughter consists of "the unlawful killing of a human being without malice," NMSA 1978, § 30-2-3 (1994), and voluntary manslaughter is "manslaughter committed upon a sudden quarrel or in the heat of passion." NMSA 1978, § 30-2-3(A) (1994). Defendant is liable for voluntary manslaughter as an accessory if he "procures, counsels, aids or abets in its commission." NMSA 1978, § 30-1-13 (1972). In order to be entitled to an instruction of a lesser included offense to the offense charged, there must be some reasonable view of the evidence whereby the lesser offense is the highest degree of the offense committed. State v. Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313. Thus, to be entitled to the instruction, there must be some reasonable view of the evidence whereby Defendant was sufficiently provoked by the victim, and while so provoked Defendant aided, abetted or encouraged Padilla and Herrera to kill the victim. {34} The State has argued that Defendant was not entitled to the voluntary manslaughter instruction as an accessory for two reasons. First, Defendant was not sufficiently provoked by the victim's size and anger. Second, Defendant was the initial aggressor and as such cannot rely on the victim's response as adequate provocation. {35} The first question is properly one for the jury. As the majority notes, Defendant testified that he revved his engine to scare the victim, and when the victim responded by taking off his shirt and jumping on the hood of the car, he got out to apologize. Although he was not initially afraid of the victim—despite the significant difference in their sizes—Defendant testified that he did feel threatened when he thought the victim was going to "pound" him. Majority Opinion, ¶ 8. I believe there is thus a view of the evidence in which Defendant was provoked. The jury should have been given the opportunity to decide whether to credit Defendant's testimony and to determine whether the provocation was sufficient under the law. The trial court ought not have decided, as a matter of law, that Defendant was not provoked. State v. Munoz, 113 N.M. 489, 490, 827 P.2d 1303, 1304 (Ct.App.1992) ("Whether a particular set of circumstances is sufficient provocation is generally a question for the jury to decide."). {36} The State's second argument appears to me to expand a rule past its original boundaries and to create a per se rule where a fact-based one is appropriate. In State v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285 (1979) we said: "If the defendant intentionally caused the victim to do acts which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, the circumstances show that he acted with malice aforethought, and the offense is murder." Based on that language the majority concludes that, as a matter of law, Defendant is not entitled to an voluntary manslaughter instruction because he initially assaulted the victim. {37} The first sentence of this quote can be read in more than one way, depending on the interpretation given to the word "intentionally." As the State argues, intentionally could be read to describe the act that causes the victim to respond. Thus, a negligent act that elicits a response from the victim is distinguished from an intentional act. On the other hand, as Defendant argues, intentionally could be read to describe the motive in doing the act that elicits the victim's response. In that way, a defendant who provokes a victim in order to rely on the victim's response as provocation is distinguished from one who intends to agitate the victim, but is surprised by that victim's reaction and genuinely provoked by it. The former, by virtue of the premeditated decision to kill, is guilty of murder, and the latter, who lacks such premeditation and is actually provoked by the victim, is guilty of manslaughter. {38} I think the latter interpretation is more natural, and is confirmed by the second *1218 sentence of the quoted language: "In such case, the circumstances show that he acted with malice aforethought, and the offense is murder." By this language the author of Manus indicated that the reason for the rule that a initial aggressor cannot claim provocation is because the circumstances of that initial aggression evince an intent to murder prior to the provocation. Additionally, the author of Manus quoted this language from Wharton's Criminal Law. That source followed the quote used in Manus with an example: "Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult." 2 Charles E. Torcia, Wharton's Criminal Law § 157, at 352 (15th ed.1994) (footnote omitted). That example seems to me to clarify the rule and to support a conclusion that an initial aggressor loses the benefit of provocation in more limited circumstances than urged by the State. {39} Such an interpretation is brought out by the facts of Manus and subsequent cases that rely on this rule. Although Manus was the source of the rule quoted above, the defendant in that case was largely denied the instruction because the acts he claimed provoked him were performed by the police in the lawful exercise of their duty. "The exercise of a legal right, no matter how offensive, is no such provocation as lowers the grade of homicide." Manus, 93 N.M. at 100, 597 P.2d at 285 (citation omitted). {40} In State v. Marquez, 96 N.M. 746, 634 P.2d 1298 (Ct.App.1981), for example, the defendant, who had a bad history with the victim, went to her home, broke in, took a knife from the kitchen and waited for her to come home. When she did, he confronted her and got into an argument during which he stabbed a chair in the room repeatedly with the knife. He then chased the victim and managed to stab her once. She responded by throwing a vase at him, which he claimed provoked him. He then killed her. In that case, unlike this one, there is simply no view of the evidence that allows an inference that the defendant killed in response to the victim's provocation. {41} Similarly, in State v. Durante, 104 N.M. 639, 725 P.2d 839 (Ct.App.1986), the defendant broke into the victims' house wearing a ski mask, put his hand over the sleeping female victim's mouth and instructed her to be quiet or he would kill her. The male victim, who was sleeping next to her, woke up, observed what the defendant was doing, and struggled with him. During the struggle, the defendant stabbed the male victim several times. The male victim was responding to a serious threat to his safety from a masked and armed intruder, a threat realized by the intruder's actions. {42} This interpretation is endorsed by the commentators. In addition to the view expressed in Wharton's Criminal Law, another commentator has described the rule of provocation in the context of a mutual quarrel or combat: If an unlawful attack is resisted by force obviously in excess of what is needed in self-defense, the case may or may not be within the rule of provocation. There is no mitigation in favor of the original assailant if he intended in the beginning to kill or to inflict great bodily injury; whereas if the original assailant intended only a non-deadly scuffle the counter attack may constitute adequate provocation. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 89 (3d ed.1982) (footnotes omitted). Whether the victim's response was in excess of self-defense, whether Defendant intended to kill prior to the encounter, or whether he was surprised by the victim's response are all fact-intensive inquiries that should properly be considered by a jury. A per se rule that, as an initial aggressor, Defendant was not entitled to claim provocation seems to deprive Defendant of his right to have a jury determine whether he was sufficiently provoked in this context. {43} In this case there is a version of the facts, from Defendant's testimony and some permissible inferences from his conduct, that he did not provoke the victim with the predetermined intent of killing him, and that when he encouraged his companions to come after the victim he was afraid of him. The evidence of provocation was not overwhelming, and a jury could easily determine that Defendant's testimony concerning his intentions was untrustworthy, and that his actions support an inference that he intended to kill from the beginning of the encounter. That *1219 was, however, the jury's decision to make, and the jury was deprived of that opportunity when the trial court denied the proper instruction. I do not consider this error harmless because "[t]here is a legitimate concern that conviction of the greater offense may result because acquittal is an alternative that is unacceptable to the jury." State v. Meadors, 121 N.M. 38, 52, 908 P.2d 731, 745 (1995) (Ransom, J., specially concurring). {44} Defendant's original intent in approaching the victim and the sufficiency of the provocation are both questions for the jury. Having put forth some evidence of provocation as a part of his theory of the case, Defendant was entitled to an instruction. I respectfully dissent from part II(A), and I would remand this case for a new trial. I concur in the holding in part II(B) that Defendant failed to preserve his claim to an instruction on involuntary manslaughter, and I concur in part III. I CONCUR: GENE E. FRANCHINI, Justice.

307 F.Supp.2d 257 (2004) Teresa MARTINEZ, Plaintiff, v. NEW ENGLAND MEDICAL CENTER HOSPITALS, INC., Defendant. No. CIV.A. 01-12349-JLT. United States District Court, D. Massachusetts. March 3, 2004. *258 *259 *260 Paul F. Wood, Law Office of Paul F. Wood PC, Boston, MA, for Teresa Martinez, Plaintiff. Ronald M. Jacobs, Matthew P. Poppel, Poppel & Associates, Boston, MA, for New England Medical Center, Inc., Defendant. MEMORANDUM TAURO, District Judge. Plaintiff Teresa Martinez ("Martinez") initiated this action against Defendant New England Medical Center Hospitals, Inc. ("NEMCH"), alleging violations of federal and state law for retaliatory discharge, termination in violation of public policy, invasion of privacy, intentional interference, and defamation. Defendant's motion for summary judgment is now before this court. Background NEMCH established an International Patient Center ("IPC") in or around 1996.[1] The IPC was designed to attract "international patients capable of paying full price for medical care."[2] Martinez began working as an employee in the IPC in or around August, 1997.[3] Her job responsibilities included "financial and registration coordination ... for international patients."[4] Part of Martinez's job was "making sure the patients she [was] coordinating ... [were] financially able to pay."[5] According to NEMCH's written policies, the regular order of ensuring payment is to first provide an initial estimate to the patient, which the patient must pay for up front.[6] The actual charges are then delineated on an invoice after the services have been provided. IPC coordinators are authorized to provide up to a twenty-percent discount "from the total gross charges without specific approval from [NEMCH's Chief Financial Officer (`CFO')]."[7] *261 Martinez understood NEMCH's policy required the IPC "to obtain 50% or 100% of the estimated cost on a case-by-case basis."[8] And, she knew that "if there were `less than 80% in the door prior to the procedure[,]' she would have to go see the CFO of the Hospital."[9] Martinez also recognized that any discount in excess of twenty percent had to be approved by the CFO.[10] NEMCH claims that Martinez was terminated as a result of her failure to abide by these regulations. In the spring of 2001, Martinez was acting as the patient liaison for an Ecuadoran patient in need of a bone-marrow transplant.[11] The procedure was estimated to cost $330,000.[12] Martinez faxed that estimate to either the patient or the patient's cousin.[13] The patient was scheduled to start chemotherapy on April 23, 2001, but by April 11, 2001, Martinez had received only a $5,000 deposit for the treatment[14]. When asked by the bone marrow transplant coordinator if the patient was "all set" for the procedure, Martinez answered, "[i]f the question is if she is all set with the cost of the estimate[, the answer] is no."[15] Martinez, however, did not notify her supervisor, Wendy Leong-Lum ("Leong-Lum"), or NEMCH's CFO about the situation.[16] A week before the patient was to undergo treatment, her family threatened to go to the press and say that she was denied care because she was unable to pay.[17] NEMCH's Chief Operating Officer ("COO"), Dr. Miller (the physician who was to perform the transplant) and the hospital's public affairs person went to see Martinez to find out the facts surrounding this patient. Martinez relayed to them the following: The patient, or her cousin, told Martinez that she had collected $25,000, "had somebody who was going to give $50,000" and "had undertaken fundraising initiatives."[18] Martinez responded that the patient "would have to provide [her] with the $75,000, a letter of intent of fundraising and that Martinez would take it from there."[19] The patient, or the cousin, then inquired about the possibility of a greater discount, to which Martinez answered that "only if the doctor offers something in addition to [the] 20%[,] will the Hospital consider [it,] ... and ... it[']s up to you if you want to speak to the physician."[20] Martinez then met with the patient, or her family, and discussed the possibility of her "approaching the physician directly about waiving his fees."[21] At some point during these discussions, the patient's cousin said *262 to Martinez, "I mean, who has $330,000 to give."[22] After Dr. Miller learned what had happened, he was "outraged" because the hospital could not "stop treatment now."[23] Leong-Lum later told Martinez that NEMCH's management was extremely upset about the situation.[24] On April 23, 2001, Leong-Lum made written notes about her communications concerning the incident for her file.[25] In addition, NEMCH's Vice President of General Services, James Carmody ("Carmody"), sent an email to the Chief Executive Officer and the COO explaining that: Theresa was not authorized to advise the patient as she did. The fact that she did this is very concerning. This is not the first time she has acted outside of her authority and she (in the past) has been at least verbally reprimanded. I think this is particularly egregious and may require HR intervention including the consideration of termination.[26] In addition to Martinez's failure to abide by company policy, NEMCH also asserts that Martinez was fired for repeated tardiness. On June 29, 2000, Martinez had been placed on a Corrective Action Plan ("CAP") to address her tardiness issues.[27] She was placed on another CAP on August 7, 2000. The August CAP noted that since the June CAP, Martinez had "come in at least 10 minutes late on several occasions,"[28] and that Martinez's attendance would be carefully monitored for the next six months.[29] To help Martinez make it to work on time, NEMCH also adjusted her daily start time from 8:30 a.m. to 9:00 a.m.[30] Martinez's attendance did not improve, despite the adjustment in her start time. On January 24, 2001, Martinez was suspended without pay for one day as a result of her continued tardiness.[31] Two days later she was given a final CAP, which listed all of the times since her August CAP that she had been late to work and included a Performance Improvement Plan that stated, "[a]ny further tardiness in excess of 3 occurrences within the Performance Improvement time frame of 3 months will result in immediate termination."[32] Leong-Lum sent an email to Susan Perl on April 24, 2001, which noted that Martinez's anniversary from her last CAP would be on April 25, 2001 and that Martinez had been tardy on four separate occasions during that probationary period.[33] Leong-Lum also mentioned that she would be meeting with Carmody that afternoon and would discuss the situation with him.[34] *263 Martinez was fired from her position at NEMCH on April 26, 2001.[35] The written notice of her termination cites both her violation of IPC policy and her excessive tardiness as reasons for her dismissal.[36] Martinez claims that those reasons are merely pretextual. Both in her complaint and in a subsequent affidavit, Martinez alleges that she made "numerous complaints to NEMCH management concerning discrimination against international patients at NEMCH."[37] She also alleges that she made "numerous complaints to NEMC[H] supervisory/managerial employees ... that [she] was being subject to unequal treatment ... because [she] was a single woman with [a] child."[38] Neither document recites specific details about any of these alleged complaints. In her deposition, moreover, Martinez admits that the most recent conversation she remembers having in which she complained about discrimination against certain international patients was in 2000.[39] And, Martinez cannot recall the last time she complained to a supervisor that she was being treated unequally due to being a single mother, though she thinks it was sometime in 2001.[40] A wholly separate incident is the basis for several of Martinez's claims. A few months after her termination, Martinez and two of her friends initiated a phone call to Leong-Lum.[41] One of Martinez's friends posed as a representative of fictitious technology company interested in hiring Martinez, while Martinez and her other friend secretly listened to the call.[42] Leong-Lum expressed surprise that Martinez was applying for a new job because she thought that Martinez was moving out of state.[43] When asked why Martinez had been terminated, Leong-Lum answered that Martinez had given an unauthorized discount to a patient.[44] She also noted that Martinez was frequently absent because she had a daughter who was constantly sick.[45] Additionally, Leong-Lum volunteered that Martinez did a great job, was very creative, and was a great person and friend.[46] Discussion NEMCH has filed a motion for summary judgment. Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[47] Rule 56 mandates summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish *264 the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."[48] The "party seeking summary judgment [must] make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue."[49] The party opposing summary judgment must produce specific evidence of a material factual dispute. The First Circuit has noted that "[a] genuine issue of material fact does not spring into being simply because a litigant claims that one exists. Neither wishful thinking nor `mere promise[s] to produce admissible evidence at trial' ... nor conclusory responses unsupported by evidence ... will serve to defeat a properly focused Rule 56 motion."[50] A. Retaliatory Discharge Martinez alleges claims of retaliatory discharge under both 42 U.S.C. § 2000e-3(a)[51] ("Title VII") and Mass. Gen. Laws ch. 151B § 4(4) ("chapter 151B, § 4(4)").[52] She alleges that NEMCH terminated her employment in retaliation for the complaints she made about NEMCH's discrimination against non-Middle Eastern patients and against her as a single mother. In cases where there is "no direct evidence of retaliatory animus," both federal and state law require "the plaintiff [to] establish a prima facie case and prove that the defendant[']s[] stated reasons for the employment action were pretextual."[53] In such actions, the burden of persuasion always remains with the plaintiff, but the "shifting burden of production ... follows the tripartite formula of McDonnell Douglas Corporation v. Green."[54] Under the McDonnell Douglas framework, a plaintiff must first make out a prima facie case of retaliatory discharge.[55] Next, the defendant must "articulate some legitimate, nondiscriminatory reason" for the employment action.[56] If the defendant is able to meet this burden, then "the plaintiff must prove that the articulated reason is a pretext."[57] To state a prima facie case of retaliatory discharge under Title VII, a plaintiff must show that: "(1) [she] engaged in a protected activity as an employee, (2) [she] was subsequently discharged from employment, and (3) there was a causal connection between the protected activity and the discharge."[58] Similarly, *265 to succeed on a claim under chapter 151B § 4(4), "a plaintiff must establish the basic fact that [s]he was subjected to an adverse employment action because of [her] protected activity."[59] Martinez has produced no evidence to suggest "direct retaliatory animus," so her claim must be analyzed under the McDonnell Douglas framework. Martinez is unable to satisfy the first prong of McDonnell Douglas because she does not present a prima facie case of retaliation. Martinez's alleged "protected activities" were the complaints she made concerning NEMCH's alleged discrimination against non-Middle Eastern patients and against her as a single mother. Neither of these actions constitutes a protected activity under Title VII or chapter 151B § 4(4). Martinez admits that her discrimination complaints concerned "discrimination based on ability to pay."[60] Discrimination based on one's ability to pay is not an "unlawful practice" under these sections.[61] Similarly, discrimination based on one's status as a single mother is not protected under either provision.[62] Martinez also asserts that she is protected under Title VII because she had "a reasonable belief that the practice[s she] ... oppos[ed] violate [ ] Title VII."[63] Assuming, without deciding, that a reasonable belief is sufficient, she has still failed to make out a prima facie case of retaliation because she has not shown any causal connection between her complaints and her subsequent termination. Martinez cannot recall the last time prior to her termination that she complained about her treatment as a single mother.[64] Similarly, the last complaint she could recall making about discrimination against non-Middle Eastern patients was in 2000, months before she was terminated in April, 2001.[65] Even if Martinez had established a prima facie case, her claim still fails. NEMCH has provided ample evidence of non-discriminatory reasons for Martinez's discharge. Martinez had a documented tardiness problem, for which she was placed on a corrective action plan and had been warned that further violations would result in her termination.[66] And, her termination was within a few days to a week of her violation of company policy.[67] Furthermore, NEMCH has offered evidence to show that not only did it not discriminate against Martinez for being a single *266 mother, but it actually altered her work hours to accommodate her needs.[68] Because NEMCH satisfied its burden of production, in order for her claim to succeed, Martinez must provide evidence that NEMCH's reasons for her termination were merely pretextual. Martinez cannot met this burden. As noted above, Martinez has not produced evidence that demonstrates any causal connection between Martinez's complaints and her termination. Thus, Martinez's claims of retaliatory discharge must fail. B. Termination in Violation of Public Policy In addition to her claim against NEMCH for retaliatory discharge, Martinez also asserts a claim for termination in violation of public policy, which is an exception to the at-will employment doctrine.[69] To succeed on such a claim, Martinez must show that she was terminated "for asserting a legally guaranteed right (e.g., filing workers' compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)."[70] Martinez's claim is based on her assertion that she was terminated for asserting a legally guaranteed right, that is, "for reporting violations of NEMCH policies concerning patient rights, patient care, and billing and privacy issues."[71] Martinez, however, did not report these alleged violations to any regulatory body. She reported them only to NEMCH staff members and to friends.[72] The public-policy exception is not broad enough to encompass such complaints.[73] Solely internal issues cannot be the basis of a public-policy exception to the at-will doctrine.[74] Plaintiff argues that internal complaints may be a sufficient basis for the public policy exception and cites Shea v. Emmanuel College[75] and Upton v. JWP Businessland[76] for that proposition. Plaintiff, however, fails to note that those cases concern internal complaints about criminal wrongdoing and explicitly distinguish themselves from non-criminal complaints.[77] Moreover, and perhaps most significantly, Martinez presents no evidence that her termination was in any way related to her *267 complaints. Any such assertion is merely speculative, and such speculation is not enough to survive a motion for summary judgment. Thus, her claim must fail. C. Invasion of Privacy Martinez contends that Leong-Lum's statements to Martinez's friend concerning the reasons for Martinez's termination violated her right to privacy.[78] Mass. Gen. Laws ch. 214, § 1B ("chapter 214, § 1B") provides, in relevant part, that: "A person shall have a right against unreasonable, substantial or serious interference with his privacy." In order for a plaintiff to succeed on an invasion of privacy claim, he must prove not only that the defendant unreasonably, substantially and seriously interfered with his privacy by disclosing facts of highly personal or intimate nature, but also that it had no legitimate reason for doing so.[79] To determine whether there has been a violation of chapter 214, § 1B in an employment setting, a court must "balance the employer's legitimate business interest in obtaining and publishing the information against the substantiality of the intrusion on the employee's privacy resulting from the disclosure."[80] Statements that are "limited to issues regarding the plaintiff's fitness [as a potential employee do] not constitute an unreasonable interference with plaintiff's privacy."[81] Leong-Lum's statements were made to someone that she reasonably believed to be a prospective employer. Her statements related only to issues of Martinez's job performance and did not include facts "of highly personal or intimate nature." Such communication falls outside of the scope of chapter 214, § 1B.[82] Martinez's claim, thus, fails as a matter of law. D. Intentional Interference Martinez also bases her intentional interference claim on the statements Leong-Lum made to Martinez's friend concerning the reasons for Martinez's termination. To prevail on a claim for intentional interference, a plaintiff must prove the following: "(1) the existence of a contract or a business relationship which contemplated economic benefit; (2) the defendant [']s[] knowledge of the contract or business relationship; (3) the defendant [']s[ ] intentional interference with the contract or business relationship for an improper purpose or by improper means; and (4) damages."[83] Martinez's claim fails to satisfy several of these requirements. First, because Martinez's friend only posed as a prospective employer, Martinez cannot prove that there was an actual "contract or business relationship which contemplated economic benefit."[84] Second, Martinez has not offered any evidence that Leong-Lum acted with improper purpose or by improper means. Additionally, "[i]n response to an inquiry about a former employee, [a former employer has] a privilege, if not a duty, to speak the truth even if the disclosure of the facts might negatively *268 affect the subject's job prospects."[85] Third, Martinez cannot claim any damages from Leong-Lum's statements because, as noted above, there was no real business relationship with which Leong-Lum could have interfered. For all of the above reasons, Martinez's claim for intentional interference fails. E. Defamation Defamation is "the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt."[86] To establish a claim of defamation, a plaintiff must satisfy the following elements: First, the defamatory statement must hold the plaintiff up to contempt, hatred, scorn, or ridicule or tend to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community. Second, the statement must have been to at least one other individual other than the one defamed. Third, where the speech is a matter of public concern, a defamation plaintiff must prove not only that the statements were defamatory, but also that they were false. Finally, the plaintiff must show that he suffered special damages and must set forth these damages specifically.[87] Massachusetts, however, recognizes both absolute and conditional privileges to a defamation claim.[88] One such privilege applies to employers: "An employer has a conditional privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job."[89] And, "[o]nce an employer's conditional privilege is recognized, the burden shifts to the employee to prove that the privilege was abused."[90] To show such abuse, a plaintiff must "establish[ ] that the defendant knowingly or recklessly published the defamatory statement."[91] Martinez argues that NEMCH made defamatory statements about her on at least two occasions, once when she was told of the reasons for her termination and once when Leong-Lum spoke to the apparent prospective employer.[92] Martinez's claim fails as both episodes are protected by the conditional privilege.[93] *269 As stated above, an employer enjoys a conditional privilege when it makes "defamatory statements concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job."[94] And, a termination letter "is a reasonably necessary communication to serve [the defendant's] legitimate interest in providing its employee with the reasons for his termination."[95] Martinez has submitted no evidence that NEMCH abused this privilege. What is more, NEMCH is shielded from the defamation claim because an employer who provides a reference to a potential employer is also protected by the conditional privilege.[96] And, Martinez has offered no evidence to suggest that NEMCH abused this privilege either. In fact, Martinez admitted that Leong-Lum made several complimentary remarks about her during the telephone call.[97] Such remarks are patently inconsistent with any malice. Martinez's defamation claim also fails because she invited Leong-Lum's statements. In Burns v. Barry,[98] the plaintiff similarly had a friend pose as a prospective employer seeking references. In affirming the lower court's decision, the Massachusetts Supreme Judicial Court held: "[T]he oral statements made by [the defendant] to the plaintiff's associate were made in response to telephone inquiries initiated at the behest of the plaintiff, ... and were conversations to which he listened .... Such statements as [the defendant] made to one purporting to be a `prospective employer' were privileged."[99] Finally, Martinez's defamation claims fail because she has not submitted evidence of any damages suffered by her. Damages are an essential element in a defamation claim, and a plaintiff must demonstrate the he "suffered special damages and must set forth these damages specifically."[100] Martinez has not met this burden. No real employment prospect was lost, and Martinez's feelings upon listening to Leong-Lum's statements are inadmissible.[101] CONCLUSION For the foregoing reasons, Defendant's motion for summary judgment is ALLOWED. AN ORDER WILL ISSUE. NOTES [1] Def.'s Local Rule 56.1 Statement ("Def.'s Statement of Undisputed Facts") ¶ 1. [2] Id. [3] Id. ¶ 2. [4] Id. ¶ 3. Martinez was given the job title of "International Patient Liaison" in or around early 2000. Pl.'s Local Rule 56.1 Concise Statement of Material Facts Precluding the Entry of Summ. J. for Def. ("Pl.'s Statement of Material Facts") ¶ 3. [5] Def.'s Statement of Undisputed Facts ¶ 12. [6] Id. ¶ 14. [7] Id. [8] Id. ¶ 15. [9] Id. ¶ 16 (quoting NEMCH's Deps. Transcripts and Affs. in support of Summ. J., Ex. A ("Martinez Dep.") 258:14-19). [10] Id. ¶ 17. [11] Id. ¶ 11; Pl.'s Statement of Material Facts ¶ 23. [12] Def.'s Statement of Undisputed Facts ¶ 11. [13] Id. [14] Id. ¶ 20. [15] NEMCH's Exhibits in support of Summ. J. Ex. 2. [16] Def.'s Statement of Undisputed Facts ¶ 21. [17] Id. ¶ 22. Neither party has submitted facts that indicate whether NEMCH had actually told the patient that she would not receive treatment unless she could pay the full $330,000. [18] Id. ¶ 24. [19] Id. ¶ 25. [20] Id. ¶ 26 (internal quotations omitted). [21] Id. [22] Id. ¶ 28 (internal quotations omitted). Despite this comment, Martinez claims that she did not believe that the patient was unable to pay for the procedure. Id. Aside from the $75,000 already promised, however, Martinez had no other information to indicate that the patient could "handle the financial aspect of the [bone marrow transplant]." Id. ¶ 29. [23] Id. ¶ 30. [24] Id. [25] See NEMCH's Exhibits in support of Summ. J. Ex. 3. [26] Id. Ex. 4. [27] Id. Ex. 7. [28] Id. Ex. 6. [29] Id. [30] Def.'s Statement of Undisputed Facts ¶ 35. [31] NEMCH's Exhibits in support of Summ. J. Ex. 9. [32] Id. Ex. 5. [33] Id. Ex. 12. [34] Id.; see also id. Ex. 10 (containing Leong-Lum's dated notes of the days that Martinez was tardy). [35] Id. Ex. 13. [36] Id. [37] Compl. ¶ 10; Aff. of Teresa Martinez, submitted in support of Pl.'s Opp'n to Def.'s Mot. for Summ. J., Ex. A ("Martinez Aff.") ¶ 6. Specifically, Martinez has complained about discrimination against non-Middle Eastern patients. [38] Compl. ¶ 16; Martinez Aff. ¶ 12. Martinez has submitted no evidence of any written complaints concerning discrimination against international patients or against her as a single mother. [39] Martinez Dep. at 263:15-265:18. [40] Id. at 358:10-359:3. [41] Def.'s Statement of Material Fact ¶ 92. [42] Id. [43] Id. ¶ 96. [44] Id. ¶ 95. [45] Id. ¶ 97. [46] Id. ¶¶ 94, 97. [47] Fed.R.Civ.P. 56(c). [48] Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). [49] Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996) (quotations omitted). [50] Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990) (citations omitted). [51] 42 U.S.C. § 2000e-3(a) provides, in relevant part, that: "It shall be unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter." [52] Mass. Gen. Laws ch. 151B, § 4(4) provides that it is unlawful "[f]or any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five." [53] Mole v. Univ. of Mass., 58 Mass.App.Ct. 29, 787 N.E.2d 1098, 1107 (2003) (internal quotations omitted). [54] Id.; 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). [55] Mole, 787 N.E.2d at 1107. [56] Id. (quoting McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817). [57] Id. [58] Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.1994). [59] Blockel v. J.C. Penney, Co., Inc., 337 F.3d 17, 26 (1st Cir.2003) (internal quotations omitted). [60] Def's Statement of Undisputed Facts ¶ 66. [61] 42 U.S.C. § 2000e(3) only protects an employee from retaliation because he "has opposed any practice made an unlawful employment practice by this subchapter ...." That subchapter does not include discrimination based on one's ability to pay for medical services. See 42 U.S.C. §§ 2000e to 2000e-17. Likewise, Mass. Gen. Laws ch. 151B, § 4 does not list discrimination based on one's ability to pay for medical services as an unlawful employment practice. [62] See 42 U.S.C. §§ 2000e to 2000e-17. Discrimination based on status as a single parent is not an lawful employment practice under this section. See Gunther v. Gap, Inc., 1 F.Supp.2d 73, 77 (D.Mass.1998) (noting that parenthood is not a protected class under chapter 151B, § 4); cf. Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357, 1358 (1997) (holding that it was not a violation of public policy for an employer to discharge a single mother who refused to work newly imposed longer hours). [63] Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.1994). [64] Martinez Dep. 358:10-359:3. [65] Id. 263:15-265:18. [66] NEMCH's Exhibits in support of Summ. J. Ex. 5. [67] Id. Ex. 13. [68] Id. Ex. 6; Def.'s Statement of Undisputed Facts ¶ 35. [69] Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 533 N.E.2d 1368, 1369 (1989). [70] Id. at 1371. [71] Compl. ¶ 36. [72] Def.'s Statement of Undisputed Facts ¶¶ 88-91. [73] See Mistishen v. Falcone Piano Co., Inc., 36 Mass.App.Ct. 243, 630 N.E.2d 294, 295 (1994) (holding that internal complaints about deceptive trade practices were an insufficient basis for public policy exception). [74] Smith-Pfeffer, 533 N.E.2d at 1371-72. [75] 425 Mass. 761, 682 N.E.2d 1348 (1997). [76] 425 Mass. 756, 682 N.E.2d 1357 (1997). [77] Shea, 682 N.E.2d at 1350 ("The distinction of importance is between a discharge for an employee's internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed.") The Upton court went to great lengths to distinguish between employee actions that are covered by the public-policy exception and those that are not. Compare Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 589 N.E.2d 1241 (1992) ("nurse made internal reports of problems to high-ranking officials within hospital organization") (quoting Upton, 682 N.E.2d at 1359) with DeRose v. Putnam Mgt. Co., 398 Mass. 205, 496 N.E.2d 428 (1986) ("at-will employee refused to give false testimony against coworker in criminal trial") (quoting Upton, 682 N.E.2d at 1359). [78] Leong-Lum's statements that Martinez had violated company policy, that Martinez was planning to move out of state, and that Martinez had a daughter who was sick constantly causing her to miss work are the basis for Martinez's invasion of privacy claim. Pl.'s Opp'n to Def.'s M. for Summ. J. at 11. [79] Schlesinger v. Merrill Lynch., 409 Mass. 514, 567 N.E.2d 912, 913-916 (1991). [80] Bratt v. IBM, 392 Mass. 508, 467 N.E.2d 126, 135-36 (1984). [81] Mulgrew v. City of Taunton, 410 Mass. 631, 574 N.E.2d 389, 393 (1991). [82] Schlesinger, 567 N.E.2d at 913-916. [83] Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 668 N.E.2d 333, 338 (1996). [84] Id. [85] Conway v. Smerling, 37 Mass.App.Ct. 1, 635 N.E.2d 268, 273 (1994). This privilege is lost only if the employer abuses it or acts with actual malice. Burns v. Barry, 353 Mass. 115, 228 N.E.2d 728, 731 (1967) ("Whether the statements to the assumed employer were true or false is immaterial if there was no abuse of the privilege and there was no showing of actual malice."). There is no evidence to indicate that Leong-Lum either abused her privilege or acted with malice. [86] Correllas v. Viveiros, 410 Mass. 314, 572 N.E.2d 7, 10 (1991). [87] Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir.2003) (internal citations omitted). Because Leong-Lum's statements were not a matter of public concern, the third element does not apply to this case. [88] See, e.g., Mulgrew v. City of Taunton, 410 Mass. 631, 574 N.E.2d 389, 391 (1991). [89] Bratt v. IBM, 392 Mass. 508, 467 N.E.2d 126, 129 (1984). [90] Elicier v. Toys "R" Us, Inc., 130 F.Supp.2d 307, 311 (D.Mass.2001). [91] Mulgrew, 574 N.E.2d at 392. [92] Pl's Opp'n to Def.'s M. for Summ. J. at 13. [93] Martinez argues that NEMCH lost its right to a conditional privilege because the reasons for Martinez's termination "were a pretext for unlawful retaliation." Pl's Opposition to Def.'s M. for Summ. J. at 13. This court, however, has found no unlawful retaliation, so NEMCH's conditional privilege remains intact. [94] Bratt, 467 N.E.2d at 129. [95] Axton-Cross Co., Inc. v. Blanchette, No. 942764H, 1994 WL 879570, at *2 (Mass.Super. Oct. 17, 1994). [96] Mulgrew, 574 N.E.2d at 391-92 (holding that statements made by plaintiff's supervisor to hiring committee regarding plaintiff's past job performance were protected by a qualified privilege). [97] Leong-Lum had volunteered that Martinez did a great job, was very creative, and was a great person and friend. Def.'s Statement of Undisputed Facts ¶¶ 94, 97. [98] 353 Mass. 115, 228 N.E.2d 728 (1967). [99] Id. at 731. [100] Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir.2003). [101] Burns, 228 N.E.2d at 732.

112 N.H. 47 (1972) JOHN SCONTSAS & a. v. CITIZENS INSURANCE COMPANY OF NEW JERSEY. No. 6248. Supreme Court of New Hampshire. March 7, 1972. Leonard, Prolman, Prunier & Mazerolle, and McLane, Carleton, Graf, Greene & Brown and James R. Muirhead (Mr. Muirhead orally) for the plaintiffs. Sheehan, Phinney, Bass & Green, Lee Mercer and E. Paul Kelly (Mr. Kelly orally) for the defendant. GRIMES, J. This case was here before trial on the question of discovery. 109 N.H. 386, 253 A.2d 831 (1969). It involves a claim under a valued policy insurance contract covering two paintings by Leeteg, one insured for $95,000 and the other for $55,000. A jury returned a verdict for the plaintiffs after being instructed that in the event of a verdict for the plaintiffs the amount would be filled in by the court. Defendant's exceptions were transferred by Keller, J. *48 The only issues submitted to the jury were whether or not the paintings were stolen and whether plaintiff husband who was an agent of defendant, was guilty of misrepresentation or concealment so as to render the policy void. The verdict for the plaintiffs establishes that the jury did not find any misrepresentation or concealment. Defendant's exceptions relate to the refusal of the court to give its requests 32 and 33 the substance of which was that the amount of the verdict would not automatically be the amount of the policy but rather the value of the paintings as determined by the jury. Prior to the previous transfer plaintiffs filed a motion for summary judgment. In its counter affidavit defendant alleged that in determining the value of the paintings there was "either a mutual mistake ... or a mistake by Citizens and fraud or inequitable conduct by Scontsas". Plaintiffs withdrew their motion for summary judgment and filed their motion for discovery. The record does not again reveal any mention of mutual mistake either at pretrial or elsewhere until the plaintiffs rested. Then in discussing its motion for nonsuit defendant mentioned the claim of mutual mistake. There was a conference in chambers on the question whether defendant could raise the defense of mutual mistake in the law action and particularly at that stage of the proceeding, following which the matter was left open and defendant agreed not to mention it in its opening statement. At the close of the evidence defendant filed thirty-three requests for instructions in none of which was mutual mistake mentioned nor were any further pleadings filed requesting reformation on the basis of mutual mistake. Reformation based on mutual mistake is an equitable remedy (McIsaac v. McMurray, 77 N.H. 466, 93 A. 115 (1915)) raising issues on which there is no right to trial by jury. Curtice v. Dixon, 73 N.H. 393, 62 A. 492 (1905); Dion v. Cheshire Mills, 92 N.H. 414, 32 A.2d 605 (1943); Lakeman v. LaFrance, 102 N.H. 300, 156 A.2d 123 (1959). Although our courts have jurisdiction in both law and equity the distinction insofar as the substantive rules are concerned has been maintained. The distinction is essential not only to preserve the right to trial by jury "in its pristine purity" but also to prevent *49 the introduction into jury trials of "questions too complicated for a decision in that mode". The Federalist No. 83 (Hamilton). The preservation of this distinction need create no problem for the litigants for under our liberal rules of procedure in force here for many years equitable pleadings may be filed in actions at law. See Owen v. Weston, 63 N.H. 599, 604, 4 A. 801, 804 (1885); McIsaac v. McMurray, 77 N.H. at 470, 93 A. at 117-18. Whether the equitable claim should be heard by the court at the same time the jury is hearing the evidence on the legal issues is a matter which depends upon the nature of the respective claims and falls within the sound discretion of the trial court. In the case before us however the equitable claim for reformation based on mutual mistake was never fairly and clearly presented to the trial court. Although there was a reference to it in the summary judgment counter affidavit it was not again mentioned until the close of the plaintiffs' case during defendant's oral argument on its motion for a nonsuit. There was a conference in chambers on the question whether defendant could raise the issue in a law action before a jury and the matter was left for later determination. Defendant never again mentioned the claim of mutual mistake and did not file any further pleadings. Defendant did except to the failure of the court to grant its requests numbers 32 and 33 but these requests did not raise the issue of mutual mistake but rather sought to submit to the jury an issue which would be relevant only after a reformation of the policy, i.e. the actual value of the paintings. The trial court was correct when he ruled that "in order to go along with that [Requests 32 and 33] you've got to reform the policy, and there never was any pleading filed to have the policy reformed". Exceptions overruled. GRIFFITH, J., did not sit; KENISON, C.J., concurred in the result; the others concurred.

715 N.W.2d 876 (2006) 475 Mich. 885 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Jon DAHLSTROM, II, Defendant-Appellant. Docket No. 130392. COA No. 255875. Supreme Court of Michigan. June 26, 2006. On order of the Court, the application for leave to appeal the December 1, 2005 judgment 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.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 04/20/2018 01:09 AM CDT - 422 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 Butler County Landfill, Inc., appellee, v. Butler County Board of Supervisors, appellant. __ N.W.2d ___ Filed March 23, 2018. No. S-17-276.  1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court’s decision.  2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.  3. ____: ____. Where a lower court lacks subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or ques- tion presented to the lower court.  4. Political Subdivisions: Final Orders: Appeal and Error. A district court order setting aside, annulling, vacating, or reversing a siting approval decision in a review pursuant to Neb. Rev. Stat. § 13-1712 (Reissue 2012) is a final order.  5. Jurisdiction: Appeal and Error. An appellate court and the tribu- nal appealed from do not have jurisdiction over the same case at the same time.  6. Political Subdivisions: Jurisdiction: Time: Appeal and Error. A failure to comply with the requirement under Neb. Rev. Stat. § 13-1712 (Reissue 2012) to petition for a hearing before the district court within 60 days after notice of the siting body’s decision deprives the district court of jurisdiction to review a siting approval decision. Appeal from the District Court for Butler County: M ary C. Gilbride, Judge. Appeal dismissed.  - 423 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 Kristopher J. Covi and Steven P. Case, of McGrath, North, Mullin & Kratz, P.C., L.L.O., and Julie L. Reiter, Butler County Attorney, for appellant. Robert H. Epstein and Ryan C. Hardy, of Spencer Fane, L.L.P., and Stephen D. Mossman, of Mattson Ricketts Law Firm, for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and Funke, JJ. Miller-Lerman, J. NATURE OF CASE The Butler County Board of Supervisors (the Board) appeals from the order of the district court for Butler County which reversed the Board’s decision to deny an application by Butler County Landfill, Inc. (BCL), to expand its solid waste disposal landfill area located in Butler County, Nebraska. We conclude that the district court lacked jurisdiction to enter the February 7, 2017, order from which this appeal is taken and that, consequently, we lack jurisdiction over this appeal. We therefore vacate the district court’s order and dismiss this appeal. STATEMENT OF FACTS BCL, a wholly owned subsidiary of Waste Connections of Nebraska, Inc., operates a solid waste landfill located in Butler County near David City, Nebraska. The landfill has been in existence since 1986, and an expansion of the landfill was approved in 1992 which allowed it to accept solid waste from other counties. The record indicates that by 2015, BCL was accepting solid waste from 15 to 20 counties in eastern Nebraska and some additional counties outside Nebraska. BCL determined that it needed to expand the solid waste landfill area in Butler County. Neb. Rev. Stat. §§ 13-1701 to 13-1714 (Reissue 2012) are the statutes that govern sit- ing approval procedures for solid waste disposal areas and  - 424 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 solid waste processing facilities. These statutes indicate that if denied, an applicant for siting approval can reapply after the passage of 2 years. See § 13-1711. As required by § 13-1702, BCL filed a request for siting approval with the Board on July 6, 2015. In its request, BCL asserted, inter alia, that as the scope of the area it served has expanded, the amount of solid waste it accepted had increased. BCL asserted that in the mid-1990’s, it had accepted approxi- mately 100,000 tons of solid waste per year; that by 2015, it accepted approximately 550,000 tons of solid waste per year; and that it projected that by 2020, it would receive 800,000 tons of solid waste per year. The size of the expanded landfill approved in 1992 was 144.79 acres. In the July 6 request, BCL sought approval to further expand into a 160-acre parcel of land it had purchased that was contiguous to the south side of its existing landfill. As required by § 13-1706, the Board, on October 28, 2015, held a public hearing on BCL’s request. Part of the purpose of a public hearing under § 13-1706 is to “develop a record suf- ficient to form the basis of an appeal of the decision.” At the public hearing, the Board heard testimony by representatives of BCL and by members of the public, including those who favored and those who opposed BCL’s request. Following the public hearing and a written comment period which served to supplement the record of the public hearing, the Board met on December 14, 2015, to deliberate BCL’s request. At that meeting, the Board considered, inter alia, the statutory criteria for siting approval set forth in § 13-1703, which provides that “[s]iting approval shall be granted only if the proposed area or facility meets all of” six specified criteria. The record of the deliberations shows that the Board considered in turn whether each criterion had been shown. At the end of the Board’s discussion of each criterion, a poll was taken of the seven supervisors as to whether each super- visor thought that specific criterion had been met. Based on the polling of supervisors during the meeting, all supervisors  - 425 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 agreed that three of the six criteria had been met, and all supervisors agreed that one criterion had not been met. With respect to the two remaining criteria, the votes were split, with a majority voting in each case that the criteria had not been met. At the end of the discussion, based on the polling as to each criterion, a supervisor moved to deny the application, another supervisor seconded the motion, and the Board unani- mously voted to deny the application. The supervisors there- after signed a document titled “Decision Regarding Siting Approval,” which set forth the procedures that had been fol- lowed with regard to BCL’s application and which concluded that “[b]ased upon the finding that [BCL] has failed to meet all criteria required to be met under [§] 13-1703 it was moved . . . and seconded . . . that the [BCL application] be denied. Upon roll call vote, the motion was unanimously passed.” This December 14, 2015, written decision did not specify which criteria were not met and did not further set forth reasons for the decision. On February 10, 2016, BCL filed a petition in the district court for Butler County seeking judicial review, pursuant to § 13-1712, of the Board’s denial of its siting application. At a hearing on the petition held on March 21, the district court received into evidence a transcript of the public hearing held October 28, 2015; the exhibits received at the public hearing; a transcript of the Board’s December 14, 2015, meeting; and the Board’s decision dated December 14, 2015. After an additional hearing, the district court on June 17, 2016, filed a journal entry in which it referred to § 13-1712, which requires that “the district court shall consider the writ- ten decision and reasons for the decision of the . . . county board and the transcribed record of the hearing held pursu- ant to [§] 13-1706.” The court concluded that in addition to a written decision and a transcript of the public hearing, the statute required the Board to “make a written statement of the reasons for its decision.” The court stated that in this case, the  - 426 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 Board “simply found that [BCL] had failed to demonstrate the statutory requirements but did not specify any of its reasons for reaching that conclusion.” Although the district court’s jurisdiction was conferred under § 13-1712, rather than under the Administrative Procedure Act, the court cited cases under the Administrative Procedure Act regarding a failure “to make findings of fact and conclusions of law.” The court concluded its June 17 journal entry with the following paragraph, which was titled “Remand”: The failure of the [B]oard to make specific fact find- ings as required by statute, necessitates that the order entered December 14, 2015 be set aside and the matter remanded to the . . . Board . . . with directions to make findings of fact supporting the order which they shall issue within thirty days of this remand. For completeness, we note that because we lack jurisdiction over this appeal, we make no comment regarding the cor- rectness of the district court’s reading of the requirements of § 13-1712. On July 14, 2016, the Board filed in the district court a “Notice of Compliance” stating that it had complied with the court’s order. The Board attached to the filing a certi- fied copy of a resolution passed by the Board on July 13 in which it stated that it had denied BCL’s application by a unanimous vote and that it was adopting findings of fact “in further support of its denial” of BCL’s application. In a document attached to the resolution, the Board stated that the supervisors unanimously determined that BCL satisfied three criteria, that the supervisors unanimously determined that BCL failed to satisfy one criterion, and that a majority of the supervisors determined that BCL failed to satisfy the two remaining criteria. The Board set forth its reasons for each of these determinations. After the Board adopted the resolution on July 13, 2016, BCL did not file a new petition for judicial review pursuant to § 13-1712. Nevertheless, after the Board filed its notice of  - 427 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 compliance, the district court held a hearing on October 25 and received briefing. At the conclusion of the hearing, the court stated that it was taking the matter under advisement. On February 7, 2017, the district court filed an order in which it reversed the Board’s decision to deny the application and remanded the matter to the Board with directions for the Board to approve BCL’s application. In the February 7 order, the court specifically addressed each of the three criteria that the Board or a majority of the Board had determined BCL had not met. The court cited evidence from the record and determined as to each criterion that the Board’s finding that the criterion was not met was in error. The court concluded that the Board’s denial of BCL’s application “was not based on competent evidence in the record, was contrary to law and was arbitrary and capricious.” The court further concluded that based on the application, the record, and the relevant evidence, the Board should have approved BCL’s application. The court therefore reversed the Board’s order denying BCL’s applica- tion and remanded the matter to the Board with directions to approve the application. The Board appeals the February 7, 2017, order. ASSIGNMENT OF ERROR The Board claims that the district court erred when it deter- mined that the Board acted arbitrarily and capriciously when it denied BCL’s application. STANDARD OF REVIEW [1] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclu- sion independent from the lower court’s decision. Campbell v. Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018). ANALYSIS [2,3] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has  - 428 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 jurisdiction over the matter before it. Rafert v. Meyer, 298 Neb. 461, 905 N.W.2d 30 (2017). Where a lower court lacks subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court. Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). Prior to our moving this case to our docket, the Nebraska Court of Appeals conducted a jurisdictional review. Following that review, the Court of Appeals issued an order to show cause in which it stated that a question existed “as to how BCL came back before the District Court following the court’s June 17[, 2016,] order vacating the December 14, 2015 decision and remand back to the Board.” The Court of Appeals stated that there was no indication in the record on appeal that BCL had filed a new petition in the district court after the Board issued its findings of fact and restated its decision to deny BCL’s application. The Court of Appeals further stated that there was a question whether a second petition was necessary given the nature of the district court’s remand. In its response to the order to show cause, BCL conceded that no second petition had been filed, but BCL asserted that a second petition was not necessary. Based on BCL’s response, the Court of Appeals directed the parties “to include and address in their briefs the issue of whether a second petition was required following the District Court’s order requiring the Board to make find- ings of facts and the Board’s subsequent compliance with the Court’s order.” The parties briefed the jurisdictional issue, and we granted BCL’s petition to bypass the Court of Appeals. We now con- sider the jurisdictional issue. As explained below, we conclude that we do not have jurisdiction over this appeal, because the district court did not have jurisdiction when it entered the February 7, 2017, order, from which the Board appeals. The district court’s June 17, 2016, order returned jurisdiction to the Board, and the district court was divested of jurisdiction.  - 429 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 After the Board acted on the district court’s order, BCL took no action to again vest jurisdiction in the district court, and as a consequence, the district court’s rulings after its June 17 remand were issued without authority. As noted above, BCL filed a timely petition under § 13-1712 for the district court to review the Board’s December 14, 2015, order denying BCL’s application. The district court took action on that petition on June 17, 2016, when it determined that the Board had failed to make specific written findings of fact which the court believed were required by statute. The court thereby effectively concluded that the Board’s order did not conform to the law. The court therefore ordered the Board’s December 14, 2015, order to be “set aside and the matter remanded to the . . . Board . . . with directions to make findings of fact supporting the order which they shall issue within thirty days of this remand.” In the order, the district court “set aside” the Board’s order and remanded the matter to the Board for further action, but the district court did not explicitly purport to reserve jurisdiction in itself. After the Board complied with the order and filed its notice of compliance in the district court, the parties and the district court proceeded upon the apparent assumption that the district court had acquired jurisdiction at the time BCL had filed its petition for review of the December 14, 2015, order and that the district court continued to exercise jurisdiction. Given certain inferences in the language of the June 17, 2016, order, this assumption might have seemed reasonable; on remand, the Board acted within the timeframe set forth by the court in the June 17 order, and the court promptly continued with proceed- ings in the case after the Board gave notice of its compliance. However, the assumption does not comport with the facts or applicable law, and we must therefore determine in this case which body—the district court or the Board—had jurisdiction at what time. [4] We note first that the court in the June 17, 2016, order stated that the Board’s failure to make findings of fact  - 430 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 “necessitate[d] that the order entered December 14, 2015 be set aside and the matter remanded” to the Board. Black’s Law Dictionary 1580 (10th ed. 2014) defines “set aside” as “to annul or vacate (a judgment, order, etc.).” It has been stated that in an appeal to the district court by petition in error pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 2016), a judgment of the district court reversing an inferior tribunal is a final order. See County of Douglas v. Burts, 2 Neb. App. 90, 507 N.W.2d 310 (1993) (citing Tootle, Hosea & Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886)). We simi- larly conclude that a district court order setting aside, annul- ling, vacating, or reversing a siting approval decision in a review pursuant to § 13-1712 is a final order. In Tri-County Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 N.W.2d 668 (1995), we held that in conformity with Neb. Rev. Stat. § 25-1911 (Reissue 2016), in an appeal of a siting approval case under §§ 13-1701 to 13-1714, a judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record. Applying the foregoing principles of law, the district court’s June 17, 2016, order, which vacated the Board’s decision, was a judgment under § 13-1712, and when it was not timely appealed, it became final. In further support of our jurisdictional analysis, we note that the district court remanded the matter to the Board, and when the Board entered an order in compliance with the order of remand, the district court lost its power to further modify its order and, by extension, lost its power to act on this case. We have said: The jurisdiction of the supreme court over its own judgments and orders is, in general, the same as that of any other court of record, and hence it may alter or modify such judgments or orders and correct its mandates accordingly at any time during the term at which they are rendered, unless its mandate has been filed and acted upon in the lower court prior to the end of the term.  - 431 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 Horton v. State, 63 Neb. 34, 38, 88 N.W. 146, 147 (1901). Likewise, when the district court remands a matter and the body to which the matter was remanded acts on that order, the district court’s power to modify its order ceases. See County of Douglas v. Burts, supra. [5] Finally, we observe that it would be inconsistent with our jurisprudence for the Board and the district court to have jurisdiction over the matter at the same time. As a general proposition, an appellate court and the tribunal appealed from do not have jurisdiction over the same case at the same time. Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469 (1996). See State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 735, 226 N.W. 318, 318 (1929) (“[i]t is not conceivable that both the supreme court and the district court could at the same time have jurisdiction of this cause”). See, also, County of Douglas v. Burts, supra. We find this concept to be applicable as between the tribunal that tries a matter and the court that reviews or hears appeals from that tribu- nal’s decisions. In this case, the Board acted like a tribunal with regard to the siting approval decision under §§ 13-1701 to 13-1714. [6] Returning to the facts in this case, the Board filed its decision to deny BCL’s application on December 14, 2015, and BCL vested jurisdiction in the district court when it filed its petition for review pursuant to § 13-1712. The district court lost jurisdiction when it set aside the Board’s order and remanded the matter to the Board on June 17, 2016. The Board necessarily had jurisdiction on July 13, when it adopted the resolution of that date. The record shows, and BCL concedes, that after the Board adopted the resolution on July 13, BCL did not within 60 days after notice of the decision file a new petition for a hearing before the district court, as required under § 13-1712. We hold that a failure to comply with the requirement under § 13-1712 to petition for a hearing before the district court within 60 days after notice of the siting body’s decision deprives the district court of  - 432 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 jurisdiction to review a siting approval decision. See, simi- larly, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 (2015) (determining that failure to file appeal within 30 days of judgment or final order as required for review on petition in error under § 25-1901 deprives district court of jurisdiction to hear appeal). We note that § 13-1712 specifically requires “the applicant” to file a petition; hence, the Board’s act of filing its notice of compliance in the district court on July 14 could not satisfy the requirement under § 13-1712 that “the applicant . . . petition for a hearing.” We reject any suggestion that the Board’s filing of its notice of compliance in the district court caused the district court to reacquire jurisdiction after it had remanded the matter to the Board. As noted above, in Tri-County Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 N.W.2d 668 (1995), we held that pursuant to § 25-1911, in an appeal siting approval case under §§ 13-1701 to 13-1714, a judgment rendered or final order made by the district court may be reversed, vacated, or modi- fied for errors appearing on the record. In an appeal authorized by § 25-1911, a party must follow the procedural requirements of Neb. Rev. Stat. § 25-1912 (Reissue 2016), including the requirement to file a notice of appeal within 30 days of the district court’s decision, in order to vest jurisdiction in the appellate courts. The notice of appeal in this case was filed in the district court on March 3, 2017. Such notice was obviously not timely to give this court jurisdiction to review the June 17, 2016, order. Instead, the notice of appeal purports to appeal from the district court’s February 7, 2017, order. However, because the district court did not have jurisdiction to enter that order, we consequently do not have jurisdiction to hear this appeal. When an appellate court is without jurisdiction to act, the appeal must be dismissed. Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). However, an appellate court has the power to determine whether it lacks jurisdiction over an appeal because the lower court lacked  - 433 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS Cite as 299 Neb. 422 jurisdiction to enter the order; to vacate a void order; and, if necessary, to remand the cause with appropriate directions. Id. Having determined that we lack jurisdiction over this appeal, we vacate the district court’s February 7, 2017, order, which the district court was without jurisdiction to enter, and we remand the cause to the district court with directions to dismiss for lack of jurisdiction. CONCLUSION On June 17, 2016, the district court “set aside” the Board’s December 14, 2015, decision denying BCL’s siting application and remanded the matter to the Board to make findings of fact. As a result of this order, jurisdiction was returned to the Board. After the Board acted on the remand, no petition was filed that would have again vested the district court with juris- diction. We therefore conclude that the district court lacked jurisdiction to enter the February 7, 2017, order appealed in this case, and consequently, we lack jurisdiction over this appeal. As a result, we vacate the district court’s February 7, 2017, order and dismiss this appeal. A ppeal dismissed. K elch, J., not participating in the decision. Wright, J., not participating. 

979 A.2d 821 (2009) 410 N.J. Super. 90 STATE of New Jersey, Plaintiff-Respondent, v. L.V., Defendant-Appellant. DOCKET NO. A-3149-07T4 Superior Court of New Jersey, Appellate Division. Argued August 18, 2009. Decided October 8, 2009. *822 Mark Stalford, Designated Counsel, Freehold, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney). Kimberly Yonta, Assistant Prosecutor, argued the cause for respondent (Edward De Fazio, Hudson County Prosecutor, attorney). Before Judges STERN,[1] C.L. MINIMAN and SIMONELLI. The opinion of the court was delivered by MINIMAN, J.A.D. Defendant L.V. appeals from a final judgment of conviction for second-degree aggravated assault and second-degree reckless manslaughter entered on May 14, 2007, in which concurrent five-year sentences and three-year parole terms were imposed subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She contends she ought to have been sentenced as a third-degree offender under N.J.S.A. 2C:44-1f(2) and State v. Megargel, 143 N.J. 484, 673 A.2d 259 (1996). We conclude that the sentencing judge mistakenly exercised his discretion when he refused to sentence defendant as a third-degree offender. We reverse the sentence imposed, exercise our original jurisdiction, resentence defendant as a third-degree offender, and remand for entry of an amended judgment of conviction. On March 28, 2006, defendant, who was eighteen years old at that time,[2] pled guilty to the subject offenses pursuant to a plea agreement. The circumstances leading to the charges filed against her were detailed in the presentence investigation (PSI) report and the plea allocution. Defendant, who has an IQ of between forty-four and seventy-five and is moderately to mildly retarded, was born on September 9, 1987, in El Salvador where she lived with her grandparents and brothers until December *823 2000 when she moved to West New York. I. According to information contained in the PSI, which was not contested by defendant, on September 13, 2005, West New York police officers responded to a report that an infant may have fallen from a window. Police responded to the scene and observed an infant lying at the bottom of an air shaft on a pile of empty cigarette cartons, which had cushioned his fall. The infant boy's umbilical cord was still attached and he had survived the fall. He suffered bruises to his ribs and head; it was possible he had a skull fracture, but that was not established in the record on appeal. The police also discovered the mummified remains of another baby at the bottom of the airshaft. In canvassing the building, the police entered defendant's apartment with her brother's permission. Defendant's father, J.J.V., told them defendant had been in bed with the flu since the day before. In speaking with the police, defendant denied being the mother of the baby until she was told he was still alive and being transported to Jersey City Medical Center. She then admitted she was his mother and she was transported to Palisades Medical Center. Police found blood in the bathroom, particularly around the window, and on scissors retrieved from the vanity shelf. Defendant's parents both denied knowing that she was pregnant. Defendant ultimately informed the police her father sexually molested her for the first time when she was perhaps nine and he was visiting their family in El Salvador, or possibly when she was eleven and was visiting her parents in the United States. The initial molestation was confined to touching. Defendant's father threatened to kill her if she told anyone. Soon after she moved to West New York in December 2000, her father raped her, which he thereafter did several times a week, if not almost daily, until she was eighteen. When her father had a day off from work, he would pick her up at school at lunchtime, take her home, rape her, and bring her back to school. After school and on weekends when defendant's mother was working, her father would rape her. Occasionally, the rapes occurred during the night when other family members were asleep. Sometimes he used physical force. Although defendant would cry and tell him "No," he threatened to kill her mother if she told anyone. Defendant was afraid of her father and never reported the abuse. By and large, her father confined her to their apartment and would not let her date, associate with girlfriends, or talk on the telephone. Defendant became pregnant when she was about fifteen and gave birth to a baby girl in September 2003. Her father raped her throughout the pregnancy. The night her first baby was born, she had a stomach ache, which became increasing painful over the next two hours. She went to the bathroom and thought she was having a bowel movement. She began pushing and felt something come out of her vagina. It was only then she realized she was giving birth. The baby girl fell into the toilet. She was under the water and not crying; L.V. did not think her baby was alive. After tugging on the umbilical cord and delivering the placenta, defendant thought about taking her baby and leaving her somewhere she would be found, but did not know how to get her baby out of the bathroom without having her family discover her. When defendant opened the bathroom door, her father was there and told her to *824 throw her baby out the window. He told her it was her boyfriend's baby; she denied having a boyfriend. He said she had to throw her baby out the window or he would kill her. When defendant was interviewed by the police two years later, she said she complied with her father's demand. Her father had praised her, saying she "did well." This was the baby whose mummified remains were found at the bottom of the airshaft. After the birth of her first baby, the rapes became more aggressive and painful. Defendant stated her father "treated me very bad." Her father resumed threatening to kill her if she did not allow him to continue the rapes. She asked her father if it was possible for her to get pregnant again and he replied he did not care, she would have to do the same thing if she did. By now, she was having nightmares about the baby and the sexual abuse and had frequent thoughts and flashbacks about them. She began to have suicidal thoughts, felt socially isolated, and would wake up several times each night perspiring with her heart pounding. She considered attempting suicide in July 2002, took a knife from the kitchen to cut her veins, but put the knife back in the drawer because she thought her mother would suffer. In 2005 defendant began to experience the signs of early pregnancy and her abdomen began to grow. Her father would touch her stomach, saying there was a baby there. She thought about running away, telling a friend, telling her mother, or going to a hospital, but she did not know how to get there and was afraid her parents would find out. On September 12, 2005, three days after her eighteenth birthday, she began having abdominal pain and stayed home from school, lying in bed all day. She knew she was about to deliver and was crying. Her father told her to calm down and not say anything. He told her she had to do the same thing as with the first baby. At 5:00 a.m. the next morning, the pain got worse and she delivered the same way, although this time the baby started crying. Her father was knocking on the locked bathroom door, which he unlocked after the birth and entered the bathroom. Her father cut the umbilical cord and told defendant she had to do the same thing with this baby as the last one. She or her father took the baby from the toilet and she held her baby. Her father said, "You can't have that baby." She did not want to throw this second baby out the window, but her father kept saying she had to do it. Her father pushed her to the window he had opened and told her to throw the baby out the window. Defendant put the baby on the windowsill and either the baby fell or she dropped him. Defendant was crying, but she could hear the baby crying all the way down and then continue to cry at the bottom of the air shaft. Her father yelled at her for not throwing the baby harder, and she said she was going down to pick him up. Her father grabbed her and said, "No." At that point, she felt dizzy because she was bleeding copiously. An hour or so later, the police arrived. After her arrest, defendant was ordered on September 16, 2005, by the court to undergo a psychiatric examination to determine whether she was competent to stand trial and had the mental capacity to form the requisite mens rea for the crimes with which she had been charged. She was admitted to the Ann Klein Forensic Center on October 28, 2005, where she was evaluated and treated with Paxil for depression. On February 9, 2006, she was found competent to stand trial and was subsequently discharged to the Hudson County Jail on March 13, 2006, with a prescription for Paroxetine for her depression. *825 She subsequently entered her guilty pleas to second-degree aggravated assault and second-degree reckless manslaughter. II. In conducting a voir dire of defendant, the judge informed her that the offenses to which she was pleading carried prison terms of five to ten years and were subject to NERA, which would require defendant to serve eighty-five percent of any sentence imposed. He explained that he had discretion to sentence her to a term from five to seven years, which was the stipulated maximum in the plea agreement to which the State was free to speak.[3] He further explained that at the time of sentencing, the State could argue for seven years and her attorney could argue for one degree less, but that five years was the minimum sentence for a second-degree crime. Defendant expressed that she understood the sentencing ramifications of her pleas. At her plea allocution, L.V. testified that her daughter was moving after her birth, which she had previously admitted. She testified that her father cut the umbilical cord and forcefully "told defendant to throw her daughter out the window." She did not comply and her father then threw the baby out the window. Defendant did not assist him, but she admitted she did nothing to protect her baby. Her father told her if she called the police, he would kill her mother. L.V. admitted throwing her son out the window, but stated her father ordered her to do so. She did not intend to injure her son, but knew he might be injured or die. After the judge told defendant he would not accept her plea if she was not guilty, defendant consulted with her attorney and then testified she knew her father was going to throw her baby out the window, but she did not scream for help, call the police, or tell her mother, anyone at school, or anyone outside her family. She knew her baby might die, but remained silent for two years. Defendant did not waive any defenses as part of her plea bargain. Sentencing abided the preparation of a PSI report. In the PSI report, the probation officer advised the judge defendant had difficulty reading and writing her native language and did not speak, read, or write English. The probation officer reported defendant said it was her father who threw the babies out the window, but defendant felt she was guilty because she did not report it. Defendant had been diagnosed with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, moderate to mild mental retardation, and performed at a first-grade level. The probation officer requested that the judge take into account the defendant was substantially influenced by an individual not only more mature than her but who also was an authority figure, which served as a strong provocation. Furthermore, the defendant's language barrier, cultural issues, having only resided in the United States since 2000 and cognitive limitations as well as the unlikeliness [sic] of such circumstance recurring be considered. Attached to the PSI report were (1) a March 7, 2001, Confidential Psychological Evaluation prepared by Rosemary Barroso-Ramirez, School Psychologist with the West New York Public Schools Child *826 Study Team; (2) extensive records, evaluations, and Individualized Education Programs prepared by the West New York Public Schools at various times prior to defendant's arrest; (3) a Criminal Responsibility Report prepared for the court on February 10, 2006, by Elizabeth A. Hogan, M.D., from the Ann Klein Forensic Center, who is a Diplomat of the American Board of Psychiatry and Neurology with a certification in the subspecialty of forensic psychiatry; (4) a February 10, 2006, Competency to Stand Trial Evaluation prepared for the court by Dr. Hogan; (5) a Psychological Report prepared by Philip H. Witt, Ph.D. for defendant on March 8, 2006; (6) a Discharge Summary prepared on March 13, 2006, by Dr. Hogan relevant to defendant's October 28, 2005, admission to the Ann Klein Forensic Center; and (7) a March 15, 2006, Addendum to Criminal Responsibility Evaluation prepared for the court by Dr. Hogan. There were no reports prepared at the behest of the State that were included in the PSI report or in the record on appeal. The author of the March 7, 2001, psychological evaluation concluded that defendant's IQ was fifty-seven and determined that she scored the age equivalent of less than five years, three months. After correcting for a small degree of error, the author of the report determined that defendant's true performance IQ was between forty-four and fifty-six. On other tests, defendant did "significantly poorer than her age peers." The author concluded that defendant was in the range of moderate mental retardation and that a program of special education should be considered for her. Dr. Hogan reviewed extensive records, many of which are not in the record on appeal. She reported on February 10, 2006, that defendant, who was in the twelfth grade in high school, functioned at a first-grade level. Psychological testing done in February 2001 indicated defendant scored at an age equivalent of less than five years, three months. On June 1, 2004, she was evaluated as having a severe language disorder with severe deficits in comprehension and syntax. On intelligence testing done at the Ann Klein Forensic Center, defendant attained a quotient score of 72, which placed her with the third percentile rank. Dr. Hogan opined her true IQ score lies within the upper limits of mild mental retardation to the lower limits of the borderline range. Her abilities in math did not reach beyond the second-grade level. Dr. Hogan diagnosed her with PTSD, major depressive disorder, and mild mental retardation. Dr. Hogan medicated defendant for depression while she was at the Ann Klein Forensic Center. Dr. Hogan opined that an insanity defense was not available to defendant because she understood the nature and quality of her act on September 13, 2006. "However, it is my opinion that the circumstances surrounding her behavior are so extreme and severe that they need to be considered when assessing her mental state at the time of the alleged offense" (emphasis added). Dr. Hogan continued: [Defendant] was suffering from a mental illness at the time of her arrest.... The symptoms of her mental illness along with the severe trauma she was experiencing likely impaired her judgment and decision making ability at the time of the alleged offense. For years, [defendant] had been severely traumatized by her father. She was placed in fear for her life and for the life of her mother. She felt powerless towards her father and unable to stop the ongoing abuse. This fear and feeling of powerlessness likely affected her ability to remove herself from the abusive situation, inform others about her circumstances *827 or create an alternative plan for her pregnancy. She was told by her father that he would kill her if she told of the abuse or told of the pregnancy. A second factor that should be considered about her mental state at the time of the alleged offense is that [defendant] reported that her father was present and forced her to drop her newborn infant out of the window. She stated that she was holding her baby, crying, and telling her father that she didn't want to do it. In addition to the normal control a parent has over a child, additional factors need to be considered when assessing [defendant's] mental state and her ability to resist her father's orders at the time of the alleged offense. Years of abuse, fear and powerlessness towards her father along with the mental illness she was suffering at the time likely influenced her vulnerability to be coerced by her father. Thirdly, [defendant] suffers from cognitive limitations.... Her cognitive limitations likely impaired her judgment and ability to access medical, legal and mental health services and impaired her ability to create an alternative plan for her pregnancy. A fourth factor to be considered is [defendant's] age. The alleged offense occurred four days after her eighteenth birthday. Although chronologically her age is eighteen, severe circumstances have impacted her development. She is mentally retarded. She has endured years of severe sexual and emotional abuse by her father. She has been socially isolated from normal peer interactions. She has suffered for years from symptoms of mental illness, including [PTSD] and Major Depressive Disorder. All of these factors contribute to her functioning both emotionally and cognitively at a developmental age less than the average eighteen year old. Lastly, cultural issues need to be considered as well when assessing [defendant's] mental state at the time of the alleged offense. [Defendant] is a recent immigrant from El Salvador. She has experienced isolation within her community by both language and cultural barriers. In addition, since she has immigrated to this country, she has suffered ongoing trauma and forced isolation by her father. This has likely exaggerated cultural and language barriers and her assimilation into the community. Concern about the consequences to her family had she revealed the abuse or pregnancy was likely influenced by her family's recent immigration status. Cultural and language barriers likely affected [defendant's] ability to access medical, legal, and mental health services and likely impaired her ability to create an alternative plan for her pregnancy. In summary, [defendant] was suffering from a mental illness at the time of the alleged offense. However, it is my opinion that her mental state at the time does not meet the statutory criteria for a finding of not guilty by reason of insanity. Nonetheless, there are severe circumstances that influenced her mental state at the time and likely impaired her judgment, behavior and decision making ability. Dr. Hogan also opined, in light of the incarceration of defendant's father, that it was unlikely that defendant would again be in the same situation and, with continued psychiatric treatment, her then-current risk of dangerousness to others was low. Dr. Hogan recommended continued, long-term psychiatric treatment. In an addendum to her February 9, 2006, report Dr. Hogan opined that defendant lacked the requisite state of mind *828 under N.J.S.A. 2C:4-2 to purposefully and knowingly commit aggravated assault with respect to the September 13, 2005, incident. Dr. Witt interviewed defendant at the request of her counsel and found no evidence of a thought disorder or any signs of psychosis. He found a clear duress defense based on the following factors: Her father's prior threats to kill her and her mother if she did not cooperate with him; The long history of sexual abuse she experienced at the hands of her father (with resulting post-traumatic stress disorder); The early age at which the sexual abuse of her began; The fear that both her father's threats and the long history of his sexual abuse of her had caused; Her youth and dependence upon her father for care and support; Her father's presence in the bathroom when she dropped the first baby out the window; Her father's specific instruction and insistence that she drop the first baby out the window; Her father's instruction that she must do with the second baby what she did with the first one; Her father's threats and physical coercion with regard to dropping the second baby out the window; Her father's specific instruction and insistence that she not go to the basement to retrieve the second baby; Her father's physically grabbing her to prevent her from rescuing the second baby. Dr. Witt opined defendant's intellectual functioning was only within the lowest three percent of the population, and she had no abstract reasoning or problem-solving skills that would have enabled another individual to escape the abusive situation in which she was living. "Her cognitive impairments increased her level of dependency upon her parents and prevented her from examining options the way that an individual of higher intelligence would." He also opined that defendant "exhibits psychological disorders that further impaired her ability to reason at the time of the birth of her two children." Both the PTSD and Major Depressive Disorder pre-existed the birth of her first child and intensified thereafter. He concluded to "a reasonable degree of psychological certainty that [defendant] performed the acts that led to her present criminal charges under duress." With this background in mind, we turn to the sentence hearing. On May 10, 2007, defendant appeared before the sentencing judge and sought to be sentenced either as an idiosyncratic or third-degree offender for purposes of a non-custodial or probationary sentence.[4] The judge, the State, and defendant all agreed that she was entitled to 604 days jail-time credit as of May 9, 2007. The judge stated he had read everything in the PSI, including Dr. Hogan's reports. Defendant elicited testimony from Dr. Hogan; Juan Santiago, a representative of the Developmentally Disabled Offender Program; and Saliume Walo, a representative of the New Jersey Coalition Against Sexual Abuse. Because the judge had read Dr. Hogan's reports, defendant's counsel only elicited summary opinions from her on direct. Dr. Hogan testified defendant was in need of *829 long-term psychiatric treatment and expressed that defendant's history, in her experience, "was unique in the amount of abuse that she endured and the type of abuse." Dr. Hogan had never "come across other individuals with such a traumatic history and in such a controlled setting that [defendant] experienced." She testified that early treatment was important and expressed concern that proper treatment, given defendant's history, might not be available within the Department of Corrections. On cross-examination, Dr. Hogan admitted that defendant was not psychotic and no longer had suicidal ideations when she last saw her. Although she knew that mental health treatment was available in prison, she reiterated her concern that the treatment there might not be appropriate for defendant's condition. On redirect examination, Dr. Hogan testified that defendant was in need of specialized treatment for victims of sexual abuse. Santiago described the programs that would be available to defendant through the Developmentally Disabled Offender Program if she were placed on probation or after she was paroled. Walo, too, described the programs available to defendant through the New Jersey Coalition Against Sexual Abuse. Defendant's mother also spoke. Defendant's counsel argued her two years of imprisonment paled by comparison to the "psychological dungeon" to which her father sentenced her when she was thirteen years old. He pointed to the effects of the constant rapes as described in the undisputed reports of Dr. Hogan and Dr. Witt. He argued defendant was an idiosyncratic offender under State v. Jarbath, 114 N.J. 394, 555 A.2d 559 (1989), and State v. Evers, 175 N.J. 355, 815 A.2d 432 (2003). He asserted defendant was compelled to harm her babies—she did not want to do so, but rather was acting under duress that had been exerted since she was thirteen. He acknowledged there was always a general deterrence achieved by incarceration, but argued that had been achieved by the 604 days she already spent in jail. He pointed out that N.J.S.A. 2C:44-1d and -1f(2) permitted the judge to consider everything presented in the PSI report and at the hearing and that the presumption of incarceration had been overcome. Further, he urged defendant was more a victim than an offender and needed the services described by the witnesses at the hearing, including the State's expert, Dr. Hogan. As a result, he contended she should be sentenced to five years probation because the sentencing goals of the Code of Criminal Justice except rehabilitation had all been satisfied. He noted that even the Probation Department had not sought incarceration and had opined that the circumstances were unlikely to recur. The prosecutor urged that defendant was not an idiosyncratic offender because she was not psychotic, not severely retarded, and did not kill her baby accidentally. He argued a manifest injustice excusing incarceration had only been found twice under the Code. The prosecutor also contended defendant would receive services in prison, making a probationary term unnecessary for her rehabilitation. He urged the judge to find aggravating factors (1), (2) and (9), conceding "a host of mitigating factors," and argued the sentencing factors were in equipoise. The prosecutor did not speak to any specific term of incarceration. When imposing sentence, the judge found the following aggravating factors: (1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner; *830 (2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance; . . . . (9) The need for deterring the defendant and others from violating the law[.] [N.J.S.A. 2C:44-1a.] As to the first aggravating factor, the judge found defendant "knew exactly what [she] was doing, didn't report anything." He observed, I understand there are issues there, I understand that you were traumatized, delayed stress syndrome, I understand the heartache you went through, but it happened repeatedly. You were living in our society, living in one of the towns, interacting with other people, and it happened again, and you do it again, and you're not even—and the only reason is just by happenstance, by fortune that the second child did not die. That's a course of continuing conduct. The judge then addressed the second aggravating factor, conflating it somewhat with the first: Serious nature of the offenses.... What you did was cruel, without any justification at all, and there are two children, one who will never see the light of day, and the other who will have great problems that at your hand caused these events. I am stating this in terms of the totality of what occurred here. I'm not saying because one child died that you get a certain sentence, and the other one was assaulted you get a certain sentence. I'm saying combined I'm entitled to consider whether something happened in a particularly depraved way. Finally, as to aggravating factor (9), the judge found: But the need to deter both you and others is overwhelming. We cannot have a society where people unpunished, in effect, can have a child and toss them out the window, not once but twice. It cannot be tolerated, it won't be tolerated in this particular case. Sympathy has no place in our sentencing scheme, in our sentencing decisions. The judge also found the following mitigating factors: (7) The defendant has no history of prior delinquency or criminal activity...; (8) The defendant's conduct was the result of circumstances unlikely to recur; (9) The character and attitude of the defendant indicate that [s]he is unlikely to commit another offense; (12) The willingness of the defendant to cooperate with law enforcement authorities; (13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant. [N.J.S.A. 2C:44-1b.] The judge did not explain why he did not find substantial grounds tending to excuse defendant's conduct although failing to establish a defense, mitigating factor (4). The judge found that mitigating factor (9) was "very strong" and concluded that the aggravating and mitigating factors were in equipoise. He also found defendant was not entitled to be treated as an idiosyncratic defendant or as a third-degree offender. As to the first, although the judge acknowledged defendant was a sympathetic individual placed in a terrible *831 position and ruthlessly exploited by her father, he noted she was "in front of me as someone who has committed two atrocious acts against her own children." He continued, there has been nothing that has come before me that would cause me to think that, other than the sympathy that naturally occurs as a result of the victimization you went through, that makes this situation so unique that you would be considered unique unto yourself and have under our case law all of those factors in your favor that would cause me to give you a probationary sentence when you're charged with not one, but two second degree crimes. So there's nothing that I can find that, in and of itself, makes you an individual that would not be sentenced to the normal course of aggravating and mitigating factors. As to downgrading the offenses to third-degree, the judge observed that the presumption of imprisonment under N.J.S.A. 2C:44-1f(2) is overcome "only under exceptional circumstances, where the court explicitly finds, setting out its reasons for its conclusions, both that imprisonment would be a serious injustice, and that such an injustice overrides the need to deter others" and then only when the mitigating factors substantially outweigh the aggravating factors. He did not consider imprisonment as a third-degree offender. With regard to the aggravating and mitigating factors, the judge stated "the reasons to justify any downgrading must be compelling. It can't be me just finding that there's more factors in your favor than there are against you, and say well, I'll give you probation, I'll downgrade it to one degree lower." He found that given the facts of this case, defendant did not overcome the presumption of imprisonment applicable to second-degree crimes. The judge concluded that the aggravating and mitigating factors were in equipoise, and sentenced defendant to the bottom of the range for second-degree offenses, five years incarceration with an eighty-five percent NERA parole disqualifier. This excessive-sentence appeal followed. Defendant contends on appeal that the judge abused his discretion in sentencing her as a second-degree offender. She argues that her father had total control of her, her age-related intelligence was only six years old, and she suffered from PTSD. She asserts the aggravating and mitigating factors cannot possibly be in equipoise and the judge should also have found mitigating factor (4). Thus, defendant argues the mitigating factors substantially outweigh the aggravating factors and, under the scope of review discussed in Megargel, supra, 143 N.J. at 493-94, 673 A.2d 259, the judge abused his discretion in not sentencing her to one degree lower and a term of four years. Defendant also points out that the judgment of conviction incorrectly states that "aggravating factors completely and totally outweigh mitigating factors" whereas the record reflects that the judge found the factors were in equipoise. The State responds that the judge commented there was nothing before him except sympathy that would cause him to think the situation was so unique that defendant should be considered as "unique unto herself" and "have under our case law all of those factors in [her] favor that would cause" him to give defendant a probationary term when she was charged with two second-degree crimes. Further, the State argues that it considered all of these factors in negotiating the plea. Our role in reviewing a sentence imposed by a trial judge is limited. We only determine: *832 (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [Megargel, supra, 143 N.J. at 493, 673 A.2d 259 (citing State v. Roth, 95 N.J. 334, 363-365, 471 A.2d 370 (1984)).] It is well settled that we "may not substitute [our] judgment for that of the trial court," State v. Johnson, 118 N.J. 10, 15, 570 A.2d 395 (1990), but may modify a defendant's sentence when we are convinced the sentencing judge was "clearly mistaken," State v. Jabbour, 118 N.J. 1, 6, 570 A.2d 391 (1990). We may not reach this conclusion unless "the facts of th[e] case make the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting Roth, supra, 95 N.J. at 365, 471 A.2d 370); see also State v. Natale, 184 N.J. 458, 488-89, 878 A.2d 724 (2005) (same); Megargel, supra, 143 N.J. at 493, 673 A.2d 259 (same); State v. Pagan, 378 N.J.Super. 549, 558, 876 A.2d 812 (App.Div.2005) (same). In sentencing, consideration of aggravating and mitigating factors must be part of the deliberative process, provided such factors are supported by credible evidence. State v. Dalziel, 182 N.J. 494, 505, 867 A.2d 1167 (2005); accord State v. Cassady, 198 N.J. 165, 180, 966 A.2d 473 (2009) (citing State v. O'Donnell, 117 N.J. 210, 215-16, 564 A.2d 1202 (1989)). Indeed, a trial judge "is required to consider all of the aggravating and mitigating factors and to find those supported by the evidence." Dalziel, supra, 182 N.J. at 505, 867 A.2d 1167 (emphasis added). Error by the trial court in determining the existence of any aggravating or mitigating factors will "nullif[y] the weight accorded to such factors and materially alter the calculus in the ensuing balancing of aggravating and mitigating factors." Jarbath, supra, 114 N.J. at 406, 555 A.2d 559. Additionally, "the court must describe the balancing process leading to the sentence." State v. Kruse, 105 N.J. 354, 360, 521 A.2d 836 (1987) (citations omitted). "To provide an intelligible record for review, the trial court should identify the aggravating and mitigating factors, describe the balance of those factors, and explain how it determined defendant's sentence." Ibid. "Merely enumerating those factors does not provide any insight into the sentencing decision, which follows not from a quantitative, but from a qualitative, analysis." Id. at 363, 521 A.2d 836 (citing State v. Morgan, 196 N.J.Super. 1, 5, 481 A.2d 545 (App.Div.), certif. denied, 99 N.J. 175, 491 A.2d 682 (1984)). When the judge has erred in applying N.J.S.A. 2C:44-1 to the facts in the record before him, or where no qualitative analysis of sentencing factors was placed on the record, we may remand for resentencing. Id. at 363, 521 A.2d 836. We may use our original jurisdiction under Rule 2:10-5 in conjunction with our review of sentences to determine whether aggravating and mitigating factors are based on sufficient evidence. Jarbath, supra, 114 N.J. at 410, 555 A.2d 559. We may exercise our original jurisdiction to impose a new sentence where no further fact-finding is required, State v. Kromphold, 162 N.J. 345, 355, 744 A.2d 640 (2000), although such exercise "`should not occur regularly or routinely,'" ibid. (citing Jarbath, supra, 114 N.J. at 410-11, 555 A.2d 559). "[T]his power [i]s to be used only sparingly: when trial courts are `clearly mistaken' and `the interests of justice demand intervention *833 and correction.'" Jarbath, supra, 114 N.J. at 410, 555 A.2d 559 (citation omitted). Sentencing a first- or second-degree offender to a sentence one degree lower is governed by N.J.S.A. 2C:44-1f(2), which provides: In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. The statute thus establishes a two-step test. Megargel, supra, 143 N.J. at 495-96, 673 A.2d 259. "The court must be `clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence.'" Id. at 496, 673 A.2d 259 (citing N.J.S.A. 2C:44-1f(2)). The Megargel Court observed that "the standard governing downgrading is high." Id. at 500, 673 A.2d 259. First, "a court must apply the basic sentencing principles of the Code." Ibid. Paramount is the requirement that the severity of the crime is "the most single important factor in the sentencing process." Ibid. (citing State v. Hodge, 95 N.J. 369, 379, 471 A.2d 389 (1984)). In evaluating the severity of the crime, the trial court must consider the nature of and the relevant circumstances pertaining to the offense.... The surrounding circumstances of an offense may make it very similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate. [Id. at 500, 673 A.2d 259.] Nonetheless, "facts personal to the defendant may be considered in the sentencing process." Id. at 501, 673 A.2d 259 (citing Jarbath, supra, 114 N.J. 394, 555 A.2d 559). Courts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him. Was the defendant the mastermind, a loyal follower, an accomplice whose shared intent is problematic, or an individual who is mentally incapable of forming the necessary criminal intent? [Ibid.] Deterrence is "one of the most important factors in sentencing." Ibid. Then a sentencing judge must consider the interest of justice. A decision to downgrade "should be limited to those circumstances in which defendant can provide `compelling' reasons for the downgrade." Id. at 502, 673 A.2d 259 (citation omitted). Such "reasons must be in addition to, and separate from, the `mitigating factors which substantially outweigh the aggravating factors'" as found "under the first prong." Ibid. Finally, after identifying the sentencing factors, the judge must describe how, in the exercise of discretion, he balanced those factors. Ibid. Accordingly, we review the judge's application of the basic sentencing principle of the Code to the facts contained in the record. Not all of his findings were based on "competent, reasonably credible evidence," id. at 493, 673 A.2d 259, and in some cases were contradicted by the record before him. With respect to aggravating factor (1), the judge focused heavily on defendant's silence respecting both crimes. However, treating defendant's silence as an aggravating factor was utterly inconsistent with the opinions expressed by Dr. Hogan in *834 her reports to the court and those expressed by the defense expert, Dr. Witt. They both opined that defendant was powerless to resist her father, whom she feared; to extricate herself from the situation; or to seek help from anyone. They opined this paralysis was a result of the abuse she suffered at her father's hands, his threats to the life of defendant and her mother, defendant's cognitive limitations, chronological age, PTSD, and cultural and language barriers. This evidence was undisputed as the State never submitted an evaluation on its own behalf and the judge never rejected the opinions of Drs. Hogan and Witt as lacking in credibility. The record clearly does not support defendant's silence as a basis for aggravating factor (1). That is not to say that it was inappropriate to finding aggravating factor (1), but it does affect the weight to which this factor is entitled. The judge's finding of aggravating factor (2) is clearly supported by "competent, reasonably credible evidence in the record." Megargel, supra, 143 N.J. at 493, 673 A.2d 259. As to aggravating factor (9), the judge's found there was an overwhelming need to deter defendant from "hav[ing] a child and toss[ing][it] out the window." However, this finding is inconsistent with everything in the PSI report. The probation officer asked the court to take into consideration that "defendant was substantially influenced by an individual not only more mature than her, but who also was an authority figure." Dr. Hogan's undisputed opinion was that it was unlikely defendant would ever find herself in the same situation again and was thus unlikely to reoffend. Thus, the record simply did not support a specific need to deter defendant and, in fact, the judge's finding in this respect was contradicted by his finding of mitigating factor (8)—the defendant's conduct was the result of circumstances unlikely to recur. Of course, there is always a need for general deterrence, but the "very strong" weight the judge gave to this factor cannot be sustained when only general deterrence exists. Jarbath, supra, 114 N.J. at 405, 555 A.2d 559 ("[G]eneral deterrence unrelated to specific deterrence has relatively insignificant penal value."). We find no error in the mitigating factors found by the judge, but the record also supported mitigating factor (4) (substantial grounds tending to excuse defendant's conduct, though failing to establish a defense). The judge did not explain why he did not find mitigating factor (4) in light of Dr. Witt's opinion that defendant had a viable duress defense under N.J.S.A. 2C:2-9a. That is, the defendant was coerced to engage in the conduct charged "by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist." Ibid. The record clearly and convincingly supports this mitigating factor by "competent, reasonably credible evidence in the record," Megargel, supra, 143 N.J. at 493, 673 A.2d 259, and it should have been found even if defendant had abandoned her duress defense. Defendant was not "the mastermind, a loyal follower, an accomplice, who's shared intent is problematic." Id. at 501, 673 A.2d 259. Having concluded that the record supports aggravating factors (1), (2), and (9), and mitigating factors (4), (7), (8), (9), (12), and (13), we must weigh and balance these factors. Aggravating factor (1) is entitled to moderate weight, as is aggravating factor (2). However, aggravating factor (9) is entitled only to slight weight. Mitigating factor (4) is entitled to moderate weight, as are mitigating factors (7), (8), (9) and (12). Mitigating factor (13) is entitled to substantial weight in light of the influence *835 exerted by defendant's father, whom she had feared for years. Balancing the aggravating and mitigating factors, we are clearly convinced that the mitigating factors substantially outweigh the aggravating factors. Does the interest of justice demand that defendant be sentence as a third-degree offender? We are clearly convinced that the high standard governing downgrading, Megargel, 143 N.J. at 500, 673 A.2d 259, is met here. Compelling reasons exist for the downgrade. Id. at 502, 673 A.2d 259. In addition to the mitigating factors, defendant is a person of very limited intelligence, functioning at a level in school initially below a five-year-old child and by the time of the crimes at the level of a six-year-old child. She struggled in school and was placed on special education programs. She has a severe language disorder and severe deficits in comprehension and syntax. She suffers from PTSD and Major Depressive Disorder. The circumstances surrounding her behavior were extreme and severe. She had been raped by her father repeatedly for years, causing impairment of her judgment and decision-making ability. She felt powerless toward her father and feared for her life and that of her mother. Her cognitive limitations impaired her ability to seek help with respect to the rapes and her pregnancies and affected her desire not to have her babies abused, and she was socially isolated by her abusive father. Her cultural and language barriers and her lack of assimilation into the community also prevented her from seeking help. As Dr. Hogan opined, "there are severe circumstances that influenced her mental state at the time and likely impaired her judgment, behavior and decision[-]making ability." Indeed, those circumstances were "horrific." The judge erred in refusing to sentence defendant as a third-degree offender. We note defendant has been incarcerated for more than four years of her five-year sentences. As such, we are satisfied that it is appropriate to exercise our original jurisdiction to resentence defendant because a remand will work an injustice by continuing her incarceration further. We cannot give defendant a non-custodial sentence because the crimes to which she pled guilty are subject to NERA, which applies despite sentencing defendant as a third-degree offender. See State v. Johnson, 376 N.J.Super. 163, 168, 869 A.2d 473 (App.Div.2005) (NERA applies despite downgraded sentence where crime was a first- or second-degree violent crime); State v. Cheung, 328 N.J.Super. 368, 371, 746 A.2d 38 (App.Div.2000) (although sentenced one degree lower, NERA still applies to the lower sentence because the crime to which defendant pled triggered application of NERA). Accordingly, we sentence defendant to two concurrent four-year terms of incarceration, the mid-range sentence for third-degree crimes, N.J.S.A. 2C:43-6(3), with credit for time served, of which eighty-five percent must be served pursuant to NERA with a three-year period of parole supervision upon release. Because defendant has served the maximum sentence imposed, she shall be released forthwith. While defendant is on parole, the Department of Corrections shall coordinate the provision of services to defendant that are available in the community for victims of sexual abuse, such as those available through the New Jersey Coalition Against Sexual Abuse. Reversed and remanded for entry of an amended Judgment of Conviction. NOTES [1] Judge Stern did not participate in oral argument. However, the parties consented to his participation in the decision. [2] L.V. consented to a waiver of juvenile court proceedings on March 28, 2006, and the matter was transferred to the Law Division. [3] The State had agreed to recommend concurrent sentences as consideration for defendant's testimony against her father. [4] By the time of this sentencing hearing, defendant's father had been tried, found guilty, and sentenced to thirty-five years in prison, subject to an eighty-five percent NERA parole disqualifier.

224 P.3d 397 (2009) Michelle ELLER, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Boulder Valley School District, Respondents. No. 08CA2274. Colorado Court of Appeals, Div. V. September 3, 2009. Rehearing Denied October 29, 2009. *399 Christopher Forsyth, Denver, Colorado, for Petitioner. John W. Suthers, Attorney General, Katie A. Allison, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office. Ritsema & Lyon, P.C., T. Paul Krueger, Denver, Colorado, for Respondent Boulder Valley School District. Opinion by Judge NEY.[*] In this workers' compensation proceeding, Michelle Eller (claimant) appeals from the final order issued by the Industrial Claim Appeals Office (Panel) upholding the denial and dismissal of her claim. We affirm. I. Background Claimant alleged that she sustained an industrial injury on June 28, 2006. According to claimant, she was sitting in the break room when her chair toppled over, causing her to fall backwards and to strike her head and neck on the tile floor. Her employer, Boulder Valley School District, provided medical treatment, but did not admit to liability. Claimant's authorized treating physician (ATP) placed her at maximum medical improvement (MMI) on August 1, 2007, and provided a permanent impairment rating for her injury. Employer filed a notice of contest and, by order of a prehearing administrative law judge, obtained relief from the time requirements for admitting liability and initiating the division-sponsored independent medical examination (DIME) process under sections 8-42-107(8) and 8-42-107.2, C.R.S. 2008. Claimant then applied for a hearing, endorsing several issues including compensability. Employer's response also endorsed that issue. The administrative law judge (ALJ) discredited claimant's testimony as inherently contradictory and unreliable, and found her account of the accident and the mechanism of the injury improbable and unsupported by any persuasive evidence. In contrast, the ALJ expressly credited the testimony of several of employer's witnesses, most notably that of a physician who performed an independent medical examination (IME) and opined that claimant's impairment was not causally related to the effects of the chair incident. The ALJ determined that claimant did not report sustaining an injury from the accident and had failed to show that it was more probable than not that she suffered an injury at work. Therefore, the ALJ denied and dismissed her claim. The Panel affirmed on review. II. Failure to Request a DIME Claimant first contends that, because employer did not initiate the DIME process to challenge the ATP's findings as to MMI and permanent impairment, the ATP's opinion that claimant sustained a work injury was binding and the ALJ was divested of jurisdiction to consider the issues of causation and compensability. We disagree. The right to workers' compensation benefits, including medical payments, arises only when an injured employee initially establishes, by a preponderance of the evidence, that the need for medical treatment was proximately caused by an injury arising out of and in the course of the employment. § 8-41-301(1)(c), C.R.S.2008; Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo.App.2000). Whether a compensable injury has been sustained is a question of *400 fact to be determined by the ALJ. Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337, 1339 (Colo.App.1997). Section 8-42-107(8) provides for the selection of a DIME physician in order to dispute the ATP's determination concerning either MMI or permanent impairment. The failure to do so in a timely manner results in the ATP's findings and determination becoming binding under section 8-42-107.2(2)(b), C.R.S.2008. Because a worker must first show that the worker's impairment was caused by a work-related injury, an ATP's opinion does not alone establish a right to benefits, and if causation has not been proved, the ATP's findings and determination are inconsequential for purposes of compensation. Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220, 223 (Colo.App. 2008). Here, the issue before the ALJ was whether claimant had sustained a compensable injury in the first instance. Employer did not challenge either the MMI determination or the impairment rating. Although an inquiry into the relatedness of a particular component of a claimant's overall impairment will carry presumptive effect when determined by a DIME, see Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590, 592 (Colo.App.1998), the issue of causation in this case concerned only the threshold showing necessary to prove compensability. Further, contrary to claimant's position, the applicable statutory scheme grants no decisional authority to the ATP to determine causation as it pertains to compensability. Nor does it otherwise bestow any special weight on an ATP's medical opinion concerning that issue. Thus, the ATP's MMI determination and impairment rating did not divest the ALJ of jurisdiction or relieve him of the obligation to determine whether claimant sustained an injury that was causally related to her modified work duties. III. Equal Protection Claimant next contends that her right to equal protection was violated because she was required to litigate the issue of compensability under the ALJ's incorrect interpretation of sections 8-42-107(8) and 8-42-107.2(2)(b). As we understand her argument, claimant asserts that employer gained an unfair advantage by being permitted to contest causation without first obtaining a DIME because it did not have to overcome presumptive evidence. Conversely, she argues that her inability to request a DIME in the absence of a final admission of liability unfairly disadvantaged her. We are not persuaded by either argument. The threshold question in any equal protection challenge is whether the legislation results in dissimilar treatment of similarly situated individuals. Indus. Claim Appeals Office v. Romero, 912 P.2d 62, 66 (Colo. 1996); Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 190-91 (Colo.App.2002). Because access to workers' compensation benefits is not a fundamental right, the rational basis test also applies. Under that standard, the party asserting the statute's unconstitutionality must show that the classification lacks a legitimate governmental purpose and is without a rational basis. Dillard v. Indus. Claim Appeals Office, 134 P.3d 407, 413 (Colo.2006). Claimant's argument presupposes that the results of any DIME would favor her claim for compensation. We reject this presupposition because it is unsupported by the record or the law. Consequently, we fail to understand how the lack of a DIME can be seen as a benefit or detriment to either party. Similarly, because compensability remained a factual question for determination by the ALJ without application of an enhanced burden of proof, claimant's inability to procure a DIME posed no disadvantage her. Claimant's argument also ignores the basic elements necessary for an equal protection challenge: she makes no showing that employers and employees are similarly situated for purposes of the DIME scheme or that the different events which trigger selection of the DIME for employers and claimants do not rationally further the purposes of that scheme. *401 Accordingly, claimant's equal protection argument necessarily fails. See Safeway, Inc. v. Indus. Claim Appeals Office, 186 P.3d 103, 107 (Colo.App.2008) (equal protection challenge must fail where no support or authority is shown to establish employers and claimants are similarly situated). IV. Vagueness Claimant next contends that the DIME scheme as applied by the ALJ, including section 8-42-107.2(2)(b), is unconstitutionally vague. Again, we disagree. A statute violates due process when it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to its application. However, no vagueness problem exists if a party strains to inject doubt as to the meaning of words where no doubt would be perceived by the normal reader. White v. Indus. Claim Appeals Office, 8 P.3d 621, 625 (Colo.App.2000). Claimant asserts that the ALJ's order can only stand if section 8-42-107.2(2)(b), which requires that a party disputing "a finding or determination of the [ATP]" must request selection of a DIME, is read to include the phrase, "except when the employer contests compensability." However, claimant's interpretation overlooks the principles of statutory construction that provisions addressing the same subject matter must be construed together and that statutory schemes must be read as a whole. See USF Distrib. Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo.App.2004). Reading section 8-42-107.2.(2)(b) in conjunction with section 8-42-107(8), as we must, it is clear that the statutes contemplate a challenge through the DIME process only to determinations made by the ATP concerning MMI and impairment. As previously noted, the entire scheme is premised on the assumption that the worker has incurred a compensable injury under section 8-41-301; the pertinent statutes give no special weight to an ATP's medical opinion concerning the threshold question of causation and they reserve that determination for the ALJ. Consequently, section 8-42-107.2(2)(b) is not vague and claimant has shown no due process violation. V. Evidentiary Rulings Claimant challenges several of the ALJ's evidentiary rulings, arguing that they were erroneous and prejudicial and require that the dismissal of her claim be set aside. We conclude that the errors, if any, were harmless. Claimant first complains about the ALJ's admission of the police reports, which she asserts contained inadmissible hearsay. However, even if the reports were erroneously admitted, no reversible error occurred. The ALJ's order shows no reliance on the reports for any purpose, including an assessment of claimant's credibility. Indeed, the ALJ referred to other, substantial evidence in support of that determination. See United Mech. Contractors, Inc. v. J.D. Indus. Insulation, Inc., 472 P.2d 201, 202 (Colo.App. 1970) (not published pursuant to C.A.R. 35(f)) (where the findings of the court are supported by competent evidence, it is presumed that hearsay evidence was disregarded by the court in reaching its conclusions and judgment will not be reversed because of the admission of such evidence). Claimant also asserts that she was surprised by her supervisor's testimony concerning the mechanism of the injury. However, as the Panel notes, claimant did not object to the supervisor's testimony about claimant's statements to him concerning the alleged fall, his descriptions of his trying to recreate it, or his investigation of the circumstances. Thus, we agree with the Panel that claimant's subsequent objection to the supervisor's description of the mechanism of the fall using a chair as demonstrative evidence did not preserve the specific contention she now raises. See CRE 103(a)(1); Cordova, 55 P.3d at 191 (challenge to admission of evidence is waived on appeal if no specific objection was made below). In a related contention, claimant argues that the ALJ erred by not permitting her to present the testimony of a lay witness after the hearing in order to rebut the supervisor's testimony. Because we have concluded *402 that claimant waived her objection of surprise, the ALJ's refusal to accept the evidence post-hearing did not constitute an abuse of discretion. See IPMC Transp. Co. v. Indus. Claim Appeals Office, 753 P.2d 803, 804 (Colo.App.1988) (ALJ has wide discretion to control the course of a hearing and to make evidentiary rulings). The order is affirmed. GRAHAM and PLANK*, JJ., concur. NOTES [*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2008.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 04a0062n.06 Filed: November 2, 2004 Nos. 03-5453 / 03-6007 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AMERIGO STEVENSON, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE RAYLOC, JERRY GREEN, and TOM ) WESTERN DISTRICT OF TENNESSEE McNALLY, ) ) Defendants-Appellees. ) Before: BATCHELDER and DAUGHTREY, Circuit Judges, and DOWD,* District Judge. PER CURIAM. The plaintiff, Amerigo Stevenson, appeals the district court’s order granting summary judgment to his employer, Rayloc Corporation, and two Rayloc supervisors based on the court’s determination that Stevenson’s claim of employment discrimination was untimely and that his claim of retaliation was unfounded. He also challenges the district court’s failure to review the order of the district court clerk taxing costs against him. We find no error and affirm. FACTUAL AND PROCEDURAL BACKGROUND * The Hon. David D. Dowd, United States District Judge for the Northern District of Ohio, sitting by designation. Nos. 03-5453 / 03-6007 Rayloc manufactures auto parts, including brake shoes. Amerigo Stevenson began working at Rayloc’s Memphis facility as a temporary employee in February 1994 and was hired as a full-time worker in the cleaning department in August of that year. He remained in that department until 1999, when he was transferred to the shoe receiving department, where he stayed until being moved to the de-riveting department in June 2000. The dispute that gave rise to this litigation concerns his next move at Rayloc. Stevenson contended that in September 2000, Tom McNally, a production manager at Rayloc, asked him to take over as “lead man” and run the cleaning department. He said that only later did he find out that he was not being paid what a “lead man” should be paid. In response, Rayloc officials insisted that there was no such position as “lead man” within the cleaning department, although the record suggests that the term may have been common parlance at the Memphis plant for what Rayloc did refer to as an “expeditor.” The company also denied that the alleged conversation between Stevenson and McNally ever occurred. Jerry Greene, general manager at the Memphis facility, stated in a declaration supporting the company’s motion for summary judgment that the last open “expeditor” position was filled in October 1998, when Steve Vinson was given the job, an assertion confirmed by Vinson. Records from Rayloc’s human resources department indicated that Stevenson had never been classified as a “lead man,” or as an “expeditor,” and that his then-current position with the company was that of “debonder” in the cleaning department, to which he was transferred in September 2000 and where he was still employed at the time he initiated this litigation. Stevenson, however, contended that he had been moved -2- Nos. 03-5453 / 03-6007 to what he described as an entry-level position when the de-bonding process was changed in September 2001. Neither his wages nor his benefits were altered as a result of any of the changes in his duties. For the purposes of his employment discrimination claim, Stevenson alleged that he was denied the “lead man” position that was given to Steve Vinson in 1998, but conceded that this decision was not based on race. Instead, he claimed that he was promised the job in September 2000 but was denied the promotion at that time because he is African American. He alleged that he became aware of this discrimination only in February 2001, when he found out that Vinson was actually being paid more than he was. As a result, Stevenson filed his first EEOC charge in July 2001. He then filed a second complaint in October 2001, charging that he had been demoted in retaliation for filing the initial charge when Rayloc made changes in its operations in September 2001. According to Stevenson, these changes were made “without any courtesy or respect to the workers . . . [t]hey excluded us out of it.” Stevenson filed this complaint on October 5, 2001, alleging violations of 42 U.S.C. § 1981, § 1985, and §§ 2000e – 2000e-5, and the Tennessee Human Rights Act, and seeking back and front pay, declaratory and injunctive relief, compensatory and punitive damages, and attorney’s fees and costs. The defendants filed motions to strike a portion of the declaration of Tony Pearson, a former Rayloc employee, on the basis that it was inadmissible hearsay, and for summary judgment. The motion to strike was referred by the -3- Nos. 03-5453 / 03-6007 district court to the magistrate judge, who granted the motion when Stevenson did not file a timely response. The district court subsequently granted summary judgment for the defendants and dismissed the action. Because the parties were not able to agree on the matter of costs, pursuant to Rule 54.1 of the Local Rules for the Western District of Tennessee, the clerk of the court was required to assess costs. The clerk assessed $2,079.42 against the plaintiff in favor of the defendants. The plaintiff then moved for a review of the motion, arguing that the costs had been taxed prematurely, because an appeal was still pending, and that the amount was calculated incorrectly. The district court denied this motion. The plaintiff now appeals both orders. DISCUSSION The district court granted summary judgment for the defendants based on a determination that Stevenson’s suit was barred by the statute of limitations. As the district court explained in its opinion, under the Title VII, a party must file a charge with the EEOC within 300 days of the alleged discriminatory practice. 42 U.S.C. § 2000e-5(e). Under the Tennessee Human Rights Act and under 42 U.S.C. §§ 1981and 1985, the statutory period for filing is one year. TENN. CODE ANN. §§ 28-3-104(a)(3) and 4-21-311(d); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 660-61 (1987) (directing federal courts to apply the most appropriate or analogous state statute of limitations in §§ 1981-1985 -4- Nos. 03-5453 / 03-6007 actions). The district court held that the time period in both instances began to run in October 1998, when Vinson was given the “expeditor” position. Using this starting point, Stevenson’s claims are clearly time-barred. However, the plaintiff continues to argue that the period should not have begun to run until February 2001, when he discovered that Vinson was making more money than he was. To support his contention, Stevenson cites our decision in EEOC v. UPS for the proposition that: The United States Supreme Court has held that the limitations period does not begin to run on a claim for employment discrimination until an employer makes and communicates a final decision to the employee. See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). Once the employee is aware or reasonably should be aware of the employer's decision, the limitations period commences. EEOC v. UPS, 249 F.3d 557, 561-62 (6th Cir. 2001). We find it difficult to understand how someone who believed that he became the “lead man” in September 2000 should not reasonably have been aware that he was not actually in that position or being paid commensurately until February 2001. Sixth Circuit precedent is clear that in Title VII actions, “the starting date for the 300-day limitations period is when the plaintiff learns of the employment decision itself, not when the plaintiff learns that the employment decision may have been discriminatorily motivated. Indeed, this focus on the discriminatory act is consistent . . . with Supreme Court precedent and the statutory language of Title VII.” Amini v. Oberlin College, 259 F.3d 493, 499 (6th Cir. 2001); see also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (holding that the -5- Nos. 03-5453 / 03-6007 “proper focus” when determining the starting point of the limitations period “‘is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’”) . Thus, February 2001 is clearly not the appropriate starting date. An argument could be made that September 2000 is the relevant date, assuming that Stevenson could prove that McNally did in fact make him “lead man” at that time and expected him to do the work required for that position without giving him the corresponding pay. However, as was pointed out by the district court, even if the statute of limitations was triggered in September 2000, all of Stevenson’s discrimination claims would still be barred. The EEOC charge, filed on July 3, 2001, was submitted more than 300 days from the last day in September 2000, and October 5, 2001, the date on which he filed this suit, was over a year from any day in September 2000. Thus, we can only conclude that the district court did not err in finding that Stevenson’s discrimination claim was barred by the statute of limitations. To prove a prima facie case of retaliation, a plaintiff must satisfy a four-part test, by showing: (1) that he engaged in an activity protected by Title VII; (2) that the exercise of his civil rights was known by the defendant; (3) that, thereafter, the defendant took an adverse employment action against the plaintiff, and (4) that there was a causal link between the protected action and the adverse employment action. See Hollins v. Atlantic Co., 188 F.3d 652, 661 (6th Cir. 1999). No one disputes that the plaintiff has established the first two parts of the test; Stevenson filed EEOC claims of which Rayloc was aware. However, -6- Nos. 03-5453 / 03-6007 Rayloc contends that Stevenson was not subjected to any adverse employment actions. Stevenson argues that he was reassigned to “an entry-level position,” but it is not clear what he means by this, because he failed to provide any proof concerning the nature of this alleged demotion. For its part, Rayloc has shown that although there were some changes in procedures in September 2001 as a result of OSHA recommendations that modified somewhat the duties of all cleaning department employees, Stevenson’s pay and benefits remained the same. Like the plaintiff in Kocsis v. Multi-Care Management, who was transferred to a new job where “she enjoyed the same (or a greater) rate of pay and benefits, . . . her duties were not materially modified . . . [and she] submitted no evidence that she lost any prestige in her position because of her working conditions or her title change,” Stevenson has failed to show that he has suffered an adverse employment action. Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 886-887 (6th Cir. 1996). Thus, we conclude that the district court did not err in granting summary judgment on the retaliation claim. Finally, although it is clear that the plaintiff disagrees with the taxing of costs against him, it is not clear on what basis he believes that the award should be overturned, given that he cites no controlling authority on this issue in his brief. He contends that the district court should not have allowed the taxing of costs while his appeal was still pending, but as the defendants point out, Federal Rule of Civil Procedure 54, which allows for the awarding of costs to the prevailing party, contains no timetable governing the taxation of costs. Stevenson evidently believes that because his case could have been overturned on appeal, the defendants should not have been considered prevailing parties and should not, -7- Nos. 03-5453 / 03-6007 therefore, have been awarded costs. But even if we were to overturn the district court’s decision on the merits, the awarding of costs could be remedied on remand. As it is, the question is rendered moot by our decision affirming the district court’s judgment in all respects. Specifically, we find no abuse of discretion in the district court’s decision not to review the clerk’s calculation and insufficient proof that the amount of the award was miscalculated. CONCLUSION For the reasons set out above, we AFFIRM the judgment of the district court. -8- 

COURT OF APPEALS OF VIRGINIA Present: Judges Petty, Chafin and Senior Judge Annunziata UNPUBLISHED CRYSTAL DELLA PENNA MEMORANDUM OPINION* v. Record No. 0586-13-3 PER CURIAM SEPTEMBER 17, 2013 HARRISONBURG ROCKINGHAM SOCIAL SERVICES DISTRICT FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Thomas J. Wilson, IV, Judge (W. Andrew Harding, on brief), for appellant. Appellant submitting on brief. (Rachel Errett Figura, Assistant County Attorney; David Ray Martin, Guardian ad litem for the minor children; Miner, Martin, and Hahn, on brief), for appellee. Appellee and Guardian ad litem submitting on brief. Crystal Della Penna, mother, appeals a decision of the trial court terminating her parental rights to her two minor sons. She contends on appeal that the trial court erred in terminating her parental rights despite the fact that she substantially remedied the causes of the removal under Code § 16.1-283(C)(2). Upon reviewing the record and briefs of the parties, we conclude this appeal is without merit. Accordingly, we affirm the decision of the trial court. Background We view the evidence in the light most favorable to the prevailing party below and grant to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  The Harrisonburg Rockingham Social Services Department (HRSSD) became involved with the family in April 2009 when the two minor children were found walking on Main Street in Harrisonburg. While working with the family, HRSSD became concerned with both parents’ lack of parenting skills, structure, consistency, and appropriate nutrition for the children. Intensive in-home services were provided starting about September 2009 that involved individual work with each parent, family sessions, and other services. By early 2010, the parents were estranged and the children resided with their father. However, on April 28, 2010, HRSSD took custody of the children, who were then ages eight and four. HRSSD determined the children could not be placed with mother because of her lack of housing and employment and because of her mental health issues. At the time, mother was receiving housing and benefits from Our Community Place, which HRSSD agreed was a charity of “last resort.” HRSSD considered mother’s arrangement as “very unpredictable.” Mother appealed the order transferring custody of the children to HRSSD and in August 2010, the circuit court entered an order containing several factual determinations, including: mother had a history of unstable housing, mother had personal instability that affected her emotional well-being, mother had multiple mental health diagnoses, mother’s psychological evaluation indicated concerns about her functioning and her vulnerability, mother’s testing showed an elevated risk of abuse, and mother was overwhelmed with caring for the children. In addition, the court found mother was not assuming responsibility for her own care at the time. In August 2011, the children were returned to the custody of their father, who abducted the children to another state. In January 2012, the children were back in foster care. Meanwhile, mother still had housing, employment, and financial concerns. Although mother participated in supervised visitation with the children, she refused to participate in any of the recommended mental health services and was “not very cooperative” with the parenting education services provided to -2- her. An HRSSD employee testified mother would “shut down” or “storm out” of the parenting sessions. Mother participated sporadically in individual counseling, and she participated in her anger management program. Mother was employed for a period of time in 2011, however, by 2012, she was again unemployed. HRSSD encouraged her to seek employment, and mother responded either that she was receiving unemployment or it was “Satan’s lies.” She sometimes would “shut down.” Mother was receiving housing and financial assistance from a new support group but she was vague about the specifics of that arrangement. HRSSD discussed with mother her need to be financially independent and to be able to address the needs of the children. Mother would respond in a manner that led HRSSD to assume her church was supporting her. Mother has not been employed since 2011 or early 2012. Mother also struggled in the supervised visitation with the children. At most of the visits, mother would play loud music or religious preaching to “calm her down.” HRSSD employees found the music distracting and stated it made mother’s interaction with the children difficult. The children also indicated the music upset them, and one of the children wrote a note to mother asking her to stop playing the music during the visitation. An HRSSD employee testified mother went “stone cold” after reading the note and was affected during the rest of the visit. An HRSSD employee also observed that mother did not seem to be aware of the needs of the children. In addition, one of the children avoided interacting with mother during visitations and both children exhibited aggressive behaviors that were not observed when the children were with their foster family. Mother struggled to help the children with their homework assignments. Evidence was presented that mother had issues during meetings with the children’s school officials and in discussing their educational needs. Mother also often acted inappropriately with professionals providing services to the children. She would sometimes be angry or rude. In -3- addition, mother exhibited anger after an eye doctor appointment for one of the children and she remarked that if the child prayed about his impaired vision he would not need glasses. She made a similar remark about one of the children’s complaint of back pain when she told the child that if he would pray about it the pain would cease. Dr. Joann Grayson, a licensed clinical psychologist, evaluated mother in 2010 and 2012. In the 2012 updated evaluation report, Dr. Grayson opined that mother presented as a “very dependent” person who now seemed dependent on her church and friends who had supported her over the past two years. Mother had expressed “little motivation” to get a job, and Dr. Grayson believed employment would likely be a challenge for mother because of her limited work experience. Dr. Grayson expressed concern about mother’s ability to parent. Dr. Grayson acknowledged mother had “shown some progress,” however, she stated “challenges remain.” Dr. Grayson noted that mother is poorly positioned to become self-supporting; she is just starting to learn positive parenting skills and her application of skills is variable; sometimes she moves slowly and under-reacts causing her problems in supervising [the] children; other times she is hasty and impulsive; she is either unaware of her children’s functioning and needs or she is too defended to discuss their needs; she resists having her children see doctors and dentists . . . she is overly dependent upon others. Dr. Grayson opined that if the children were placed in mother’s care, HRSSD “should be prepared to provide intensive in-home services for all of their growing years (for an indefinite time period).” She also recommended that placement with mother should not take place until mother had demonstrated she can maintain employment for six months or more. The guardian ad litem had been involved with the family since 2010. He also acknowledged mother had made some positive changes in her life since 2010. However, he expressed concern about mother’s refusal to participate in the recommended mental health services. He stated mother had times when she improved her situation, but then things would -4- “fall apart” and she would return to a pattern of being dependent on others. The guardian ad litem reported that the past year had been the most stable year in the lives of the children. The children have bonded with their foster family and have shown improvements in their behavior and education. The children have expressed a desire to remain with their foster family. The trial court terminated the residual parental rights of mother, and mother appealed that decision to this Court. Analysis ‘“In matters of child welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child’s best interests.’” Id. at 128, 409 S.E.2d at 463 (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). The trial court’s judgment, “when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). A court may terminate parental rights if: The parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child’s foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Code § 16.1-283(C)(2). [S]ubsection C termination decisions hinge not so much on the magnitude of the problem that created the original danger to the child, but on the demonstrated failure of the parent to make reasonable changes. Considerably more “retrospective in nature,” subsection C requires the court to determine whether the parent has been unwilling or unable to remedy the problems during the period in which he has been offered rehabilitation services. Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005) -5- (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)). The trial court stated it carefully reviewed all of the more than 100 pages of exhibits, finding that Dr. Grayson’s reports were of great importance in analyzing the case. The court noted that in 2010, there were recommendations for mother to obtain a psychiatric examination and to find employment. However, mother never addressed her mental issues and she has not only failed to find a job, but she has made minimal efforts to do so. The trial court also stated that in 2010, mother displayed a reluctance to parent and she had difficulty in solving problems with the children. She continues to exhibit these characteristics. The trial court referenced Dr. Grayson’s observation that mother’s attempts to maintain self-control consume most of her energy. Mother continues to show little desire to work and she continues to have a dependence on others, although she has made some efforts toward improving her situation. The trial court expressed concern over mother playing the loud music and sermons during her scheduled visitations, despite being informed that this interfered with the quality of the visits. The trial court found it extremely important that the case worker saw “no increase” in mother’s parenting capacity after she supervised numerous visitation sessions. The trial court found that mother “simply cannot meet the [children]’s needs.” The trial court further found that since the children entered foster care in 2010, mother has made some progress, but she has failed to substantially remedy the major issues that contributed to the removal of the children—mainly her mental health, housing, and employment issues. The court also noted the guardian ad litem’s recommendation that termination was in the best interests of the children. Thus, mother did not demonstrate her ability “within a reasonable period of time . . . to remedy substantially the conditions which led to or required continuation of the child[ren]’s foster placement, notwithstanding the reasonable and appropriate efforts of [the Department].” Code -6- § 16.1-283(C)(2). Furthermore, “[i]t is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990). The record contains sufficient evidence that it was in the best interests of the children to terminate the residual parental rights of mother. Virginia law recognizes the “maxim that, sometimes, the most reliable way to gauge a person’s future actions is to examine those of his past.” “As many courts have observed, one permissible ‘measure of a parent’s future potential is undoubtedly revealed in the parent’s past behavior with the child.’” “No one can divine with any assurance the future course of human events. Nevertheless, past actions and relationships over a meaningful period serve as good indicators of what the future may be expected to hold.” Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770 (citations omitted). Accordingly, the trial court did not err by terminating mother’s residual parental rights to the children. For the foregoing reasons, the trial court’s ruling is affirmed. Affirmed. -7- 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1502V UNPUBLISHED MIYEITA MAGEE, Chief Special Master Corcoran Petitioner, Filed: November 20, 2019 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1 On September 28, 2018, Miyeita Magee filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 13, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On November 20, 2019, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $110,909.00. Proffer at 1. This amount consists of $107,500.00 for pain and suffering, $3,059.00 for past lost earnings, and $350.00 for past unreimbursed expenses. Id. In 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $110,909.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS __________________________________________ ) MIYEITA MAGEE, ) ) Petitioner, ) ) No. 18-1502V (ECF) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________) RESPONDENT’S PROFFER ON AWARD OF DAMAGES On August 6, 2019, respondent, the Secretary of Health and Human Services, filed his Rule 4(c) Report conceding entitlement to compensation in this matter alleging a Shoulder Injury Related to Vaccine Administration following an influenza vaccination. On August 13, 2019, the Court entered its Ruling on Entitlement, finding petitioner Miyeita Magee entitled to Vaccine Act compensation. Respondent now proffers that petitioner receive a compensation award consisting of a lump sum of $110,909.00 in the form of a check payable to petitioner, Miyeita Magee. 1 This amount consists of $107,500.00 for pain and suffering, $3,059.00 for past lost earnings, and $350.00 for past unreimbursed expenses, and represents compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled. 2 Petitioner agrees with the proffered award of $110.909.00. 3 1 Petitioner is a competent adult. No guardianship is required. 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 3 This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).  Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division s/Voris E. Johnson, Jr. VORIS E. JOHNSON, JR. Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4136 Dated: November 20, 2019 2 

97 S.W.3d 513 (2002) CITY OF KANSAS CITY, Missouri, Respondent, v. Timothy PIERCY, Appellant Pro Se. No. WD 60564. Missouri Court of Appeals, Western District. June 25, 2002. Timothy Pierce, Lee's Summit, pro se. Michael E. Dailey, Kansas City, for Respondent Before BRECKENRIDGE, Presiding Judge, LOWENSTEIN and SMART, JJ. *514 HAROLD L. LOWENSTEIN, Judge. The appellant, Timothy Piercy, was found guilty in municipal court of knowingly operating a motor vehicle while his privilege to do so had been suspended under Kansas City Municipal Ordinance § 70.131, and in a trial de novo in Circuit Court. This appeal is taken from his de novo trial in Circuit Court. He was sentenced to ninety days confinement. In his pro se brief, the appellant apparently argues that the trial court erred in: 1) denying his motion to dismiss for lack of subject matter jurisdiction and personal jurisdiction, 2) in not taking notice of a document he authored, titled "Self-Serving Declaration of Timothy Piercy," and 3) in not taking notice of his status and rights as declared in his "Self-Serving Declaration of Timothy Piercy." The appeal is dismissed. Analysis "Pro se appellants and attorneys are held to the same procedural rules; pro se appellants do not receive preferential treatment regarding compliance with those rules." State v. Anderson, 37 S.W.3d 821, 822 (Mo.App.2001). Lack of compliance with the rules of appellate procedure constitutes grounds for dismissing the appeal. Id. In this case, Piercy did not file a complete record on appeal. Although Piercy filed the legal file, he omitted the transcript. Such action is violative of Rule 81.12(a)'s mandatory requirement that the record on appeal "shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ..." In addition, Piercy's brief does not comply with Rule 84.04(d)(1). That rule requires appellants to pattern their points relied on after the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]." The appellant's first point states as follows: The verdict of guilty of driving a vehicle in this city when his privilege to do so has been suspended, revoked or canceled, was not supported by sufficient evidence and the court erred in denying the defendant's motion to dismiss, in that there was no direct evidence nor any [other] evidence from which a reasonable tri[er] of facts could find that the court had subject matter jurisdiction and in personam jurisdiction over the defendant. Not only does this point relied on fail to comply with 84.04, but also it is difficult to discern his precise complaint of error. Further, Piercy's argument under this point does not address arguments that he attempts to raise in the point relied on, such as the sufficiency of the evidence, nor does the argument portion explain why there was no personal or subject matter jurisdiction. In short, the argument does not support the point relied on. An appellate court is not required to review points or arguments when they appear without citation of applicable authority. State v. Conaway, 912 S.W.2d 92, 95 (Mo.App.1995). "When no authority is cited and no explanation is given, points relied on are deemed waived or abandoned." Id. The next two points relied on are similarly bereft of meaning and clarity. In those two points, Piercy again violates Rule 84.04(d) by not following the established format. Further, the "Self-Serving Declaration of Timothy Piercy," of which he complains in both points that the trial court erred in excluding, contains nothing *515 relevant to the cause of driving with a suspended license. The document includes facts such as where and when Piercy was born, what his parents' names are and where they were born, that he lives in Missouri, and various statements about the U.S. and Missouri Constitutions. Even without the transcript, this court can discern that any relevance of this document to the underlying cause is dubious. Regardless, Piercy's second and third points preserve nothing for review for the same reasons that his first point cannot be reviewed. Finally, the court notes that Piercy's reply brief, in which he raises eight additional points relied on[1] that were not raised in his original brief, similarly preserve nothing for review. Points and arguments omitted from the initial brief cannot be raised in the reply brief. Russell v. Div. of Employment Sec., 43 S.W.3d 442, 444 (Mo.App.2001). The appeal is dismissed. All concur. NOTES [1] The points relied on in the reply brief are quizzical: I. The state of Missouri appears not to be operating under a republican form of government. II. The appellant asserts that RSMo. 543.335 . . . was not created while Missouri was operating under a constitution that guarantees Missouri a republican form of government. III. The CITY of KANSAS CITY appears not to be created or erected constitutionally. IV. The CITY of KANSAS CITY operates under civil law in derogation of the common law. V. The respondent has declared the name of the appellant against the appellant's objections. VI. The CITY of KANSAS CITY accused the appellant of having been involved in a traffic violation without providing any proof that the appellant was involved in some kind, some time or sort of business or commercial activity. VII. The CITY of KANSAS CITY has no authority to enforce the Municipal ordinance.

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Northrop Grumman Corporation ) ASBCA No. 60190 ) Under Contract No. N68936-05-C-0059 ) APPEARANCES FOR THE APPELLANT: Terry L. Albertson, Esq. Stephen J. McBrady, Esq. Crowell & Moring LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Robert L. Duecaster, Esq. Trial Attorney Defense Contract Management Agency Chantilly, VA OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION The government has moved for reconsideration of our opinion in Northrop Grumman Corporation, ASBCA No. 60190, 17-1 BCA ~ 36,800 (hereinafter referenced as "quantum decision"). 1 In its Motion for Reconsideration (Motion), the government continues to maintain that Northrop Grumman Corporation (NGC) should have incurred, and in fact was required "by operation of law" to "incur" $253 million more than the Post-Retirement Benefits (PRB) costs actually incurred by its PRB Plan during the pre-transition years, commensurately increasing the costs of its flexibly-priced contracts, including major weapons systems purchased from NGC. Because appellant failed to incur/accrue, assign, and fund or claim the amount disallowed in the pre-transition years, the government, without any factual support or proof, alleges that the unfunded, disallowed amount was "incurred by operation of law," somehow was included in the "transition obligation" and that appellant has been "claiming" the disallowed costs as part of the annual amortization of that obligation since 2007 in the "post-transition" years. The government primarily relies on alleged "inconsistencies" among the quantum decision and earlier "Entitlement Phase" decisions. Northrop Grumman Corporation, ASBCA No. 57625, 14-1BCA~35,501, aff'd on recon., 14-1BCA~35,743 (hereinafter the "entitlement decisions"). It asserts that the holdings of the entitlement decisions 1 The government motion also requests that this appeal be referred to the Board's Senior Deciding Group. The Board's Chairman has denied that request. became the "law of the case" which the Board failed to follow in the quantum decision. Briefing related to the motion was concluded on 15 November 2017. 2 Upon reconsideration, we affirm the quantum decision. There are no inconsistencies among the quantum decision and the Board's earlier entitlement decisions. The government's assertions that the Board contradicted the "law of the case," i.e., the entitlement decisions, are based on the government's untimely raised and unreasonable "interpretation" of the entitlement decisions. Moreover, the government has ignored the quantum remedy for noncompliance established in FAR 31.201-2(c). In addition, it has misapplied fundamental concepts of cost "incurrence" and "disallowance." The government's initial brief supporting its Motion focused on what it alleges are differences in the purported "philosophy" and "intent" of the quantum decision vis-a-vis the entitlement decisions. 3 The "philosophy" and "intent" of a Board decision are best derived from its language. The basic holding of the entitlement decisions was that appellant failed to comply with the FAS 106 PRB cost accrual methodology in the pre-transition years. The quantum decision addressed the monetary consequences of that noncompliance. In particular, nothing in the entitlement decisions considered, much less condoned, the central premise of the government's quantum position, i.e., that NGC was required to, and thus actually did, "incur" $253 million more PRB costs "by operation of law" in the pre-transition period and that, somehow in 2 The Board's previous entitlement decision "conclude[d] that FAR 31.205-6(o) supports the government's disallowance of unfunded [PRB] costs" and remand[ ed the appeal] to the parties to determine quantum." Northrop Grumman, 14-1BCA~35,501 at 174,025, ajf'd on recon., Northrop Grumman, 14-1BCA~35,743. After the parties were unable to resolve quantum, the Board heard "the 'quantum phase' of the parties' disputes regarding a government disallowance, totaling $253,361,512, of [PRB] costs associated with the 'transition' of [appellant] from its 'pre-transition' accrual methodology to the methodology prescribed in FAR 31.205-6(0)." Northrop Grumman, 17-1BCA~36,800 at 179,363. The Board held there that the government's disallowance of this sum was incorrect, and "that the government suffered no damages as a consequence of appellant's use of the DEFRA methodology during the pre-transition years." This was because the contractor had "specifically and expressly executed a 'negative' Plan amendment" in 2006 which "ensured that NGC would never incur the costs disallowed and effectively mooted allowability issues associated with the transition obligation and the change in NGC's cost accounting practices related to PRB costs." Id. at 179,372. Familiarity with these decisions is presumed. 3 Presumably, the government refers to the alleged "philosophy" and "intent" of the two judges participating in the "entitlement decisions" who retired before issuance of the "quantum" decision. The third judge participated in all decisions. 2 a manner never detailed or proved, the government-fabricated "costs" thus "incurred" found their way into the transition obligation to be amortized in the post-transition years. On 12 October 2017, the government filed a "Reply in Support of the Government's Motion for Reconsideration" (gov't reply), wherein the government alleged that the entitlement decisions definitively held that the disallowed costs were included in the "transition obligation." To the Board's knowledge, this is the first instance where government counsel expressed such an interpretation of the entitlement decisions from the filing of the quantum appeal in September 2015 to October 2017. When notified by the gov't reply of its "interpretation," the Board issued an Order seeking additional briefing and answers to a series of questions to the parties for further clarification on 17 October 2017. In accordance with the schedule prescribed in the Board's 17 October 2017 Order, the government filed its response on 1November2017 (gov't answers) and appellant on 15 November 2017. We have reviewed the parties' respective responses. Among other things, the Board specifically asked the government where its current pivotal interpretation of the Board's entitlement decisions was asserted in the post-hearing quantum briefs. The answer, as appellant succinctly emphasizes, is "nowhere." We consider that the late-asserted issue and "interpretation" has been waived by the government. Moreover, ifthe Board had reached such a critical conclusion in the entitlement decisions, it would have effectively disposed of the central and dispositive issue of the entire quantum phase of the proceedings. There would have been no need for the quantum phase ifthe Board's entitlement holding resolved all issues associated with the computation of the "transition obligation." As the government admits, '"theoretically" there would not have been any need to prepare and proffer at trial the government's expert opinion expressing for the first time the government's "cost incurrence by operation of law" theory, nor any need for further evidence, argumentation and briefing of those issues. (Gov't answers at 4) Indeed, the matter would have been resolvable by summary judgment disposing of the quantum phase issues without more than two years of litigation centered on the composition of the transition obligation. The only "inconsistency" is between the government's position advocated by counsel for the first two years of this litigation and its "interpretation" first advanced in October 2017 in the gov't reply, supplementing its Motion. Not only is the government's late-asserted interpretation untimely, it is also patently unreasonable. Again, boiled down to its essence, the government now maintains that the entire quantum phase "theoretically" was superfluous and unnecessary. To the contrary, the entitlement decisions consistently emphasized the lack of critical quantum details in the entitlement record that would be required to intelligently evaluate issues associated with the "transition obligation." The entitlement decisions expressly acknowledged that these did not address NGC's argument that, as a result of the PRB plan change in 2006, the disallowed costs "will not be incurred and as such, the government has no reason to disallow them." The entitlement decisions, noting the paucity of quantum details generally, also expressly and specifically stated 3 that the Board required "a better developed record to address" whether the costs had been incurred or would be incurred and claimed in the post-transition years as part of the amortized "transition obligation." Thus, the quantum phase proceedings. All "quantum" issues were before the Board in the "Quantum Phase" proceedings. Among other things, the entitlement decisions do not address, much less express approval of, the quantum details supporting the government's computation and extraordinary "disallowance" of unincurred, unclaimed and unreimbursed costs. All details regarding the quantum consequences of noncompliance with the FAS 106 methodology and computation of any government remedy were remanded to the parties. There is no inconsistency among the decisions. In fact, a principle mandate of the entitlement decisions required the parties to evaluate in the quantum phase whether the $253 million was included in the transition obligation or eliminated by the 2006 Plan amendment. Perforce, ifthe Entitlement panel had adopted the government's position regarding the "incurrence" of those costs "by operation of law" in the pre-transition years there would have been no need for quantum phase proceedings. The entitlement decisions essentially instructed the parties to resolve a primarily actuarial question requiring them to delve into the details of the computation of the ''transition obligation" and the consequences of the 2006 PRB Plan amendment. Only appellant constructively responded to that primary directive and issue. Appellant provided the only persuasive evidence, including expert, testimony conclusively establishing as a fact that the Plan did not include any pre- transition year PRB costs, calculated pursuant to the FAS 106 methodology, in the transition obligation. The government failed to sustain its burden of proving otherwise. The Board at the time of the entitlement decisions had never even been presented with the government's "cost incurrence by operation oflaw" theory, much less a cogent explanation of how such "costs" found their way into NGC's transition obligation. Obviously, it could have drawn no definitive conclusions regarding the government's theories that had never been developed until the quantum phase proceedings. The gravamen of this dispute has always been whether the government was damaged, i.e., in the words, of FAR 31.201-2(c) whether the contractor claimed (or the government paid) any disallowable "excess" PRB costs as a consequence of appellant's noncompliance. The ultimate overriding fact is that the government did not pay any "excess." It cannot overcome that basic fact that there was no "excess" by parsing through the entitlement decisions trying to find "inconsistencies," actual or implied in the supposed "philosophy and intent" of those decisions. The Board emphasized that it had virtually no quantum facts and left all quantum issues to be decided on a full record. The pertinent "law of the case" is that the entitlement decisions specifically and expressly refrained from drawing any quantum conclusions until it had a fully-developed record. The quantum phase proceedings clearly established that the contractor did not claim any excess. The government attempts to 4 absolve itself of this failure of proof by focusing on alleged "inconsistencies" between the entitlement decisions and the quantum decision. There are no such inconsistencies. The thrust of those decisions was always to leave the ultimate quantum questions open for full examination and scrutiny on a fully developed quantum record. The entitlement decisions contained no pre-judgment of quantum or any quantum-related issue. Any reading of the language of those decisions to the contrary is simply disingenuous and incorrect. Even ifthe entitlement decisions somehow could reasonably be construed to be inconsistent, it does not change the fundamental fact that the contractor has never claimed, and will never seek reimbursement of the costs and the government has never and will never pay the amount disallowed. Regardless of any possible inconsistency, fundamental fairness requires that those quantum phase conclusions would necessarily be dispositive and controlling. The government position disregards, and is also inconsistent with, the FAR-prescribed remedy for noncompliance. The government has declined to address the Board's discussion of the overall status and quantum impact ofFAR 3 l.201-2(c) on cost allowability generally. As emphasized in the "quantum decision," the latter provision places the current dispute in context and perspective. It provides the government with a general remedy in the event of a non-compliance with more specific cost principles. The government arguments fail to meaningfully consider that remedy. Only the "excess" is unallowable. There are no "excess" NGC PRB costs to disallow in this case. One express mention of an arguably "quantum-focused" issue in the "entitlement decisions" occurred in the Board's discussion of a "ceiling" on allowability of PRB costs in its reconsideration of the entitlement decisions. However, the Board merely observed that there was no express mention of a "ceiling" in FAR 31.205-6(o). The Board expressed no opinion on the impact of FAR 31.201-2(c) on the quantum consequences of non-compliance and the limits of the government remedy reflected in the latter provision. FAR 31.205-6(o) must be analyzed and interpreted in the overall context of the cost allowability provisions generally. The interrelation of that provision with FAR 31.202-2(c) is critical. The "ceiling" is created by reading the two provisions together. The former establishes allowability criteria and the latter prescribes the government's "quantum" remedy for noncompliance therewith. The government has not challenged the Board's discussion of cost incurrence by the contractor except to reassert its central contention that appellant "incurred" the $253 million "by operation of law" regardless of what the contemporaneous documentation reflects. The most persuasive evidence and indicia of cost incurrence are contemporaneously-submitted incurred cost and forward pricing proposals for the pre-transition period, none of which contained any portion of the $253 million "disallowed." During that period, there was never any contention that appellant had actually "incurred" the "disallowed" "costs" in question. The government ignores not 5 only NGC's Plan, but all the contemporary core cost/pricing/payment related documentation and even its own FAR-prescribed remedy, to calculate and assert this disallowance. The "government "disallowed" costs that were never incurred, never claimed and never reimbursed. The government developed its current theoretical construct in 2015 during the prosecution of the quantum phase appeal divorced from the reality of all contemporaneous cost incurrence documentation and related cost submissions 10-20 years earlier. The concept of cost incurrence "by operation of law" in a government contract accounting "allowability" context is indeed novel, extraordinary, unique and unprecedented. The government has failed to adduce even one analogous case supporting its position. The government contemporaneously exercised common sense during the pre-transition years and knowingly, willingly, declined to challenge appellant's accounting for its claimed PRB costs that resulted in lower costs to the government during the pre-transition years. The "common sense" government position in this regard in the pre-transition years comported with FAR 31.201-2(c). The government now ignores its own regulatory remedy. In doing so it has created an extraordinary new category of costs, incurred not by the contractor's own accounting measurement, accrual or assignment methodology, but allegedly "required" to be incurred by "operation oflaw," without regard to NGC's accounting procedures. To the contrary, the operative "law" in this case is the common remedy prescribed for noncompliance in FAR 31.201-2(c ). The government's duty is to evaluate costs actually incurred and claimed by the contractor under the pertinent cost principle for compliance. If non-compliant, any "excess" is unallowable, not costs that were never incurred or claimed by the contractor. The sole government defense of its "cost incurrence by operation of law" theory is based on general platitudes to the effect that laws and regulations often require the incurrence of costs. There is nothing particularly remarkable about that basic truism in the abstract. But the question in the specific context of a government contract cost "disallowance" dispute is whether the government was damaged, injured, harmed, i.e., whether it was charged and paid any "excess" as a consequence of noncompliance with a cost principle. Here the regulation itself provides the remedy for the regulatory noncompliance. FAR Part 31.201-2(c) provides an express remedy for the FAR Part 31.205-6(0) noncompliance. Again, the government's theoretical constructs wholly ignore that remedy because the government was never damaged and never has paid any "excess" as a consequence of the noncompliance. The government's position only makes sense ifthe contractor sought to incur in the future (via the transition obligation in this case) and seek reimbursement (via amortization of the transition obligation in the "post-transition" years) of costs that properly should have been measured, accrued, assigned (and funded in this case) in previous accounting periods. NGC did no such thing as detailed in the "quantum decision," as a consequence of the 2006 Plan amendment and calculation of the transition obligation. 6  A primary purpose of the exercise of computing the transition obligation was to reconcile the non-compliant DEFRA methodology with the FAS 106 methodology. Because the DEFRA methodology required the incurrence of less costs in the pre-transition years than the FAS 106 methodology, the difference could have been carried forward into the transition obligation in the reconciliation process for amortization in the post-transition years. Thus, the reasonable government concern was not that the costs had been "incurred" in the past, i.e., the pre-transition years, but that they might be incurred in the future post-transition years. If appellant had carried forward such costs into the "transition obligation," they would.first be incurred in the future via the amortized annual payments, i.e., during the post-transition years. Unless the costs were included in the transition obligation, they never would be incurred, much less claimed, at any time. Computation of the transition obligation did not occur until 2006. The government disregards the actual facts of how that obligation was computed. In particular, it has failed to analyze appellant's PRB plan, ignores the 2006 Plan amendment, and has failed to rebut appellant's proof of the impact of that amendment on the calculation of the transition obligation. The term "disallowance" presupposes that the contractor has sought an "allowance" for the cost in question, i.e., it has included those costs in contemporaneous cost-related filings and claimed, charged or been reimbursed for said costs. Here, the government has "disallowed" costs for which the contractor has never sought an "allowance." The contractor has not and will never claim the costs in dispute here for the reasons detailed in the underlying opinion. The "excess," if any, is to be derived from cost/pricing, payment, and reimbursement submissions, including incurred cost data transmitted to the government from the contractor. There is no mention in any of these foundational, core documents that appellant ever incurred the costs in dispute, much less claimed their reimbursement. There was no "excess" to disallow, given our factual conclusion, unrebutted by any government evidence, that any "excess" was not included in the transition obligation or otherwise amortized in the post-transition years. Here, the "excess" which is the subject of the government "disallowance" consists solely of phantom costs the government "created" in accordance with its theoretical construct that the costs were required to be incurred. Therefore, they were incurred "by operation oflaw." The government then "disallows" the "excess" government-fabricated "costs" that were never charged by the contractor nor paid by the government. The alleged "excess" that the government has disallowed was wholly-manufactured by the government in its creation of a heretofore unprecedented, in government contract accounting/allowability practice, category of costs that were "required" to be "incurred" by the contractor "by operation oflaw." We also reemphasize that the "required by operation of law" theory advocated by the government in this appeal is unreasonable per se because it shortsightedly would "require" NGC to use the FAS 106 calculation and charge the government $253 million 7 more than NGC actually charged the government using the DEFRA methodology during the pre-transition years. Such a position is patently devoid of common sense. The government benefited by buying weapons systems and other major systems at a commensurately lower cost to the extent that the $253 million thus saved would have been allocable to appellant's flexibly-priced contracts. In essence, the government interpretation discourages, rather than encourages contractors to institute cost saving measures. Our quantum decision recognized that some contractors maximize cost saving measures and increase their price/cost competitiveness rather than be penalized for not incurring and claiming the maximum amount allowed by regulation. The Board's general mention of "damages" and "injury" in the quantum decision were a response to the government's extraordinary quantum theory that ignored basic concepts of cost "incurrence," and "disallowance" as well as the FAR Part 31 remedy for noncompliance. The Board was attempting to determine how (if at all) the government was actually damaged or injured by the noncompliance absent inclusion of the costs in question in an incurred cost or forward pricing proposal that could serve as the basis for any "disallowance." E.g., Servidone Constr. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991) (a claimant under the CDA must prove liability, causation, and injury to recover). In effect, FAR 31.201-2(c) by regulation imposes an analogous rule in cost disallowance disputes to prove damages. We remain at a loss to understand how the government was damaged or injured by the cost savings accruing to it as a consequence of the contractor's use of the DEFRA methodology during the pre-transition years. In any event, it is clear beyond cavil on a fully developed quantitative record that appellant never has and never will incur and claim the disallowed costs and the government never has and never will pay any "excess" resulting from the noncompliance. The government failed to prove otherwise. The entitlement decisions did not short circuit the requirement that the government was required to prove its quantum damages. Having reconsidered our decision, it is affirmed. Dated: 9 January 2018 Administrative Judge Armed Services Board of Contract Appeals (Signatures continued) 8  I concur I concur RICHARD SHACKLEFORD Administrative Judge ~A~ Administrative Judge Acting Chairman Acting Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 60190, Appeal of Northrop Grumman Corporation, rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals 9 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-1007 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Gregory Swecker, also known as Gregory R. Swecker, also known as Greg Swecker; Beverly Swecker, also known as Beverly F. Swecker lllllllllllllllllllllDefendants - Appellants Swecks, Inc.; Palisades Collection, LLC; State of Iowa, by serving Greene County Attorney and Attorney General for the State of Iowa; Grand Junction Municipal; Unifund CCR Partners; Midland Power Cooperative; State of Iowa, Greene County Attorney lllllllllllllllllllllDefendants ____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________ Submitted: November 15, 2018 Filed: November 20, 2018 [Unpublished] ____________ Before BENTON, BOWMAN, and ERICKSON, Circuit Judges. ____________ PER CURIAM. Gregory Swecker and Beverly Swecker appeal after the district court1 adversely granted summary judgment in a foreclosure action brought by the United States of America, and denied their Federal Rule of Civil Procedure 60(b) motion challenging the summary judgment decision. The Sweckers have also filed two motions, both asking this court to take judicial notice of documents related to a separate matter. We first conclude that our jurisdiction is limited to reviewing the district court’s order denying the Sweckers’ Rule 60(b) motion. See Fed. R. App. P. 3(c)(1)(B) (notice of appeal must designate judgment, order, or part thereof being appealed); USCOC of Greater Mo. v. City of Ferguson, 583 F.3d 1035, 1040 & n.4 (8th Cir. 2009) (discussing application of Rule 3(c)). We further conclude that the district court did not abuse its discretion in denying that motion, as the Sweckers did not show with clear and convincing evidence that the government had engaged in fraud or misrepresentation preventing them from fully and fairly presenting their case, and did not show exceptional circumstances warranting relief. See Fed. R. Civ. P. 60 (describing circumstances under which court may relieve party from final judgment or order); Browder v. Dir., Dept. of Corr. of Ill., 434 U.S. 257, 263 n.7 (U.S. 1978) (Rule 60(b) ruling is reviewed for abuse of discretion); Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001) (Rule 60(b) motion is not vehicle for simple reargument on merits, but instead requires showing of exceptional circumstances warranting relief); see also United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 935 (8th Cir. 2006) (to prevail on Rule 60(b)(3) motion, movant must show with clear and convincing evidence that opposing party engaged in fraud or misrepresentation that prevented movant from fully and fairly presenting movant’s case). 1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. -2-  Accordingly, we affirm. See 8th Cir. R. 47B. We also deny the Sweckers’ pending motions, as the documents at issue would not be helpful to our review. ____________________ -3- 

662 S.E.2d 255 (2008) In the Interest of K.W. et al., children. No. A08A0438. Court of Appeals of Georgia. May 9, 2008. Reconsideration denied May 22, 2008. Janna Davenport Akins, for Appellant. *256 Thurbert E. Baker, Atty. General, Shalen S. Nelson, Senior Asst. Atty. General, Elizabeth M. Williamson, Asst. Atty. General, Sanders & Smith, Russell William Smith, Marie K. Evans, for Appellee. MILLER, Judge. On May 7 and August 20, 2003, the mother surrendered her parental rights to the children to facilitate their placement for adoption. Interested in such adoption, the children's foster parents intervened herein on January 27, 2004. On May 12, 2004, nunc pro tunc to February 24, 2004 (the "February 2004 order"), the juvenile court found the mother's surrenders to be valid and entered its order terminating her parental rights. On December 2, 2005, after earlier granting the biological father's (the "father") petition to legitimate, the juvenile court entered a written order directing that permanent custody and control of the children be placed with the father and relieved the Department of Family and Children Services (the "Department") of further responsibility in this case.[1] On June 22, 2006, the mother filed her motion to set aside the February 2004 order and an extraordinary motion for new trial, alleging newly discovered evidence showing that she had surrendered her parental rights upon fraudulent representations of a Department employee. Following a hearing, the trial court granted such motion on May 15, 2007 (the "May 2007 order"), fully restoring the mother's parental rights in the children. On appeal, the father contends that the trial court erred in setting aside its February 2004 order based upon (i) insufficient evidence pursuant to OCGA §§ 15-11-40 and 19-8-9(b), respectively, (ii) lack of personal and subject matter jurisdiction, (iii) the mother's lack of standing, and (iv) the mother's surrender of parental rights as res judicata. Further, the father argues that the February 2004 order was untimely appealed, and, in any event, that it was erroneously entered upon an insufficient showing of newly discovered evidence. Discerning no error, we affirm. We review a trial court's determination modifying custody based on the best interest of the child for abuse of discretion. Hardin v. Hardin, 274 Ga.App. 543, 544-545(1), 618 S.E.2d 169 (2005). "When a question of law is at issue, . . . we owe no deference to the trial court's ruling and apply the "plain legal error" standard of review." (Citation omitted.) Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). 1. The father contends that the juvenile court erred in setting aside its February 2004 order because (i) its May 2007 order was unsupported by newly discovered evidence for failure to hear any testimony or receive any documentary evidence, (ii) pursuant to OCGA § 19-8-9(b), absent evidence of procurement by fraud, the mother's surrenders were not voidable after the expiration of ten days following their execution, and (iii) no evidence showed that the complained of order was required in the best interest of the children by changed circumstances pursuant to OCGA § 15-11-40(b). We disagree. (a) "It is well settled that a court may take judicial notice of its own records in the immediate case or proceedings before it. [Cit.]" Brown v. C. & S. Nat. Bank, 245 Ga. 515, 518, 265 S.E.2d 791 (1980). Thus, the juvenile court was not, as a matter of law, required to conduct an evidentiary hearing before entering its order on the mother's motion to set aside its February 2004 order. The question that must be determined, however, is whether the juvenile court's grant of the mother's motion may be affirmed upon its records and proceedings in this case. In this regard, we find that the juvenile court erred to the extent it granted the mother's motion upon taking judicial notice of its August 21, 2006 order wherein it found that the mother's surrenders had not been voluntary. Such order, having been vacated by the juvenile court, was void. See Crolley v. Haygood Contracting, 207 Ga.App. 434, 436(2)(b), 429 S.E.2d 93 (1993), citing Black's *257 Law Dictionary (4th ed. 1968) (A vacated order is one which has been annulled, set aside, cancelled, rescinded, or rendered void.). Further, in undisputed testimony at a February 25, 2004 hearing, the mother testified that she had been pressured into surrendering her parental rights by her caseworker who opined that doing so would spare her what would only be a "painful" termination hearing later; that the caseworker presented the surrender documents to her; that he drove her to the Department's office where she signed them; and that the caseworker was present when she did so. Following a hearing on October 12, 2005, the juvenile court entered a permanency order on November 14, 2005 and a legitimation order on November 28, 2005, nunc pro tunc to October 12, 2005. In its permanency order, the juvenile court found that the mother's caseworker was "a friend of the [foster parents], was in their home often, had dinner with them, babysat the children, bathed the children, made inappropriate advances toward their teenage daughter that made her feel uncomfortable, . . . was untruthful[,] . . . [and engaged in] fraud and other illegalities[.]" In its legitimation order, the juvenile court further found that "false allegations had been made against the . . . father and that [the caseworker] and the foster parents had kept the father and other relatives at bay and had manipulated the children. These facts had not been made known before." The record otherwise reflects that the caseworker agreed to his removal from the case based on what he recognized to be a conflict of interest. Among the factors authorizing a juvenile court to set aside an order terminating parental rights is newly discovered evidence. OCGA § 15-11-40(a)(3); see also In the Interest of B.G.D., 224 Ga.App. 124, 128(2), 479 S.E.2d 439 (1996) (A mother may not revoke her surrender after ten days, unless the surrender is invalidated by duress, fraud, or incapacity.) Here, there was evidence of newly discovered evidence and fraud. Given the foregoing, the trial court's order granting the mother's motion to set aside its February 2004 order upon its records and proceedings was not error for insufficient evidence. Hicks v. Stargel, 226 Ga.App. 639, 640(1), 487 S.E.2d 428 (1997). (b) Because the undisputed evidence is that the mother's surrenders were procured by the caseworker's "suggestion" that it was in her best interest to surrender her parental rights, as above, the juvenile court did not err in granting the mother's motion to set aside for her failure to revoke her surrenders within ten days of their execution under OCGA §§ 19-8-4(d) and 19-8-9(b). See In the Interest of B.G.D., supra, 224 Ga.App. at 129(2), 479 S.E.2d 439. (c) Our disposition of subparagraph (a) makes it unnecessary to consider the father's claim that no evidence showed that the juvenile court's order granting the motion to set aside was required in the best interests of the children by changed circumstances. The same is but an additional ground upon which the juvenile court might have set aside the mother's surrender of her parental rights. See OCGA § 15-11-40(b); see also In the Interest of C.M., 205 Ga.App. 543, 544, 423 S.E.2d 280 (1992) (indicating that OCGA § 15-11-40 sets out the multiple grounds upon which a juvenile court's order might be modified or vacated). 2. The father contends that the juvenile court's May 2007 order restoring the mother's parental rights was error for lack of personal jurisdiction to issue the May 2007 order because he and the children were then permanent residents of Florida. See OCGA § 19-9-62(a)(2) (A court of this State has exclusive continuing jurisdiction over the termination of parental rights until "[a] court of this state or a court of another state determines that neither the child nor the child's parents . . . presently resides in this state.") Further, the father argues that the mother's surrender of her parental rights divested the juvenile court of subject matter jurisdiction. See OCGA § 15-11-28(a)(1)(C) (The juvenile court has exclusive original jurisdiction as to juvenile matters concerning a child who, among other things, is alleged to be deprived.). Pretermitting the foregoing claims, "OCGA § 15-11-40 provides the vehicle for *258 the correction of juvenile court orders." (Punctuation omitted.) Hardin v. Hardin, 274 Ga.App. at 545(2), 618 S.E.2d 169 (2005). Without placing any time limit on this type of jurisdiction, it provides that the juvenile court may set aside, change, modify, or vacate its orders upon certain grounds, among them, newly discovered evidence and changed circumstances in the best interest of the child requiring the same, as above. In the Interest of J.O., 191 Ga.App. 521, 522(1), 382 S.E.2d 214 (1989), overruled on other grounds, In the Interest of T.A.W., 265 Ga. 106, 454 S.E.2d 134 (1995). Given the foregoing, the instant claim of error is without merit. 3. The father contends that the trial court's May 2007 order was error because the mother lacked standing to seek such relief, having surrendered her parental rights to the children. We disagree. As a party to the proceeding resulting in the voluntary termination of her parental rights, the mother was authorized to petition the juvenile court for relief from its February 2004 order. See OCGA § 15-11-40(c) ("Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for relief provided in this Code section."). 4. The father contends that the juvenile court erred in setting aside its February 2004 order, arguing that the mother's surrender of parental rights and the termination of her parental rights based thereon was res judicata. "[R]es judicata and estoppel by judgment will not bar . . . a motion to set aside such [a] judgment . . . based upon newly discovered evidence. [Cits.]" Herringdine v. Nalley Equip. Leasing, 238 Ga.App. 210, 214-215(3)(a), 517 S.E.2d 571 (1999). We have held that the juvenile trial court did not err in granting the mother's motion to set aside based upon newly discovered evidence. Division 1(a), supra. Accordingly, this claim of error is also without merit. 5. In light of the foregoing, we need not consider the father's remaining claims of error. Judgment affirmed. BLACKBURN, P.J., and ELLINGTON, J., concur. NOTES [1] The Georgia Department of Human Resources is not participating in the appeal of this case for such reason.

UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 01-50724 UNITED STATES OF AMERICA, Plaintiff - Appellee, VERSUS BRIAN RUSSELL STEARNS, Defendant - Appellant. Appeal from the United States District Court For the Western District of Texas, Austin (A-99-CR-230-All-JN) July 23, 2002 Before WIENER and DENNIS, Circuit Judges, and DUPLANTIER,* District Judge. PER CURIAM:** Brian Russell Stearns was charged in an eighty-two count superseding indictment with securities fraud, mail fraud, wire * District Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 fraud, making false statements, Social Security Card fraud, money laundering, and possessing a firearm as a felon. Stearns pleaded not guilty, and the case was tried before a jury. During trial, the government voluntarily dismissed counts sixteen and seventeen, and the jury convicted Stearns on the remaining counts. The district court sentenced Stearns to an aggregate term of imprisonment of 360 months and to an aggregate term of supervised release of five years. The district court ordered Stearns to pay $36,054,990 in restitution and an $8,000 special assessment. Stearns appeals his conviction on count fifty-five and his sentence. We AFFIRM. I. FACTS From February 1998 to February 2000, Stearns, then a resident of Austin, Texas, operated a vast Ponzi scheme.1 He made false representations to investors and lenders concerning his background, financial status, and occupation. Stearns represented himself as a “Master Trader” and purported to sell and trade securities, medium-term notes, high-yield European bank debentures, and bonds. He further represented that he owned $2.3 billion worth of Barclays Bank bonds and $40 million worth of Federal Home Loan Bank bonds, 1 “Ponzi was the last name of the swindler in Cunningham v. Brown, 265 U.S. 1 (1924). The term has come to be used to describe a scheme whereby the swindler uses money from later victims to pay earlier victims.” Guidry v. Bank of LaPlace, 954 F.2d 278, 280 n.1 (5th Cir. 1992). 2 which would be used to secure and guarantee his investors’ funds. Stearns forged documents to provide support for these and other misrepresentations. Over the course of his scheme, Stearns had over 350 victims who invested almost $60 million. To promote his scheme, Stearns used the help and services of several sophisticated individuals such as Phillip Wylie, Stearns’s attorney, and Robert Caron, a broker and manager of Peregrine Strategies investment fund. Wylie acted as a collateral agent on some loans and investments for Stearns; received money from a number of Stearns’s investors; and, at Stearns’s direction, wired the money to Stearns’s personal accounts and purchased a $3 million Lear Jet for him. Similarly, Caron received payments from Stearns’s investors and wrote letters on behalf of Stearns to prospective investors stating that he and Stearns had done multimillion dollar deals together. Both Wylie and Caron accompanied Stearns to a meeting with a bank officer from Bank of America regarding a $20 million loan, in which they asserted that Stearns owned the $2.3 billion Barclay Bond free and clear. Perhaps most importantly, Stearns employed the help of another broker, Jerry Vosselman, to further facilitate his fraudulent activity. Vosselman was introduced to Stearns via a contact from Stearns’s business associate, Anwar Heidary – a money manager with whom Vosselman had also engaged in high-yield investment schemes at the expense of unsuspecting investors. In June of 1998, Vosselman 3 and Stearns entered into a business arrangement, whereby Vosselman agreed to act as Stearns’s agent and solicit investors, whose money Stearns was supposed to place in medium term notes. Vosselman was to guarantee investors a forty percent monthly return, and he and Stearns were to divide evenly the remaining profits. During the next two months, Vosselman secured $4.3 million from four investors. The investment funds were deposited into Vosselman’s brokerage account and then wired directly to Stearns. During that period, Vosselman was in contact with Stearns by telephone five or ten times a day. One investor, Brent Butts, unaware of Vosselman’s relationship with Stearns, invested $3.3 million with Vosselman between June 24 and September 25, 1998, based in part on Vosselman’s representations that he had traded in medium term notes for over three years and had been so successful that he was thinking of retiring. Although the first payment was made on Butt’s investment, the second payment, due in September, was not made. Butts voiced concern to Vosselman and began calling him on a daily basis. Vosselman, attempting to reassure Butts, told Butts not to worry and that “everything was . . . still working.” Vosselman eventually began avoiding the calls. When pressed, Vosselman finally identified Stearns as the trader, but then attempted to reassure Butts by telling him of Stearns’s credentials and his experience trading medium term notes in Germany. Vosselman also provided Butts with a document supposedly generated by 4 Interpol showing Stearns’s qualifications and with a copy of a printout of a Bloomberg screen supposedly showing that Butts’s funds had been used to purchase a medium term note on the Abbey National Bank in the United Kingdom. In addition, Vosselman told Butts that Stearns had an impressive home in Austin and that Vosselman was thinking of buying a ranch outside of Austin to facilitate their business dealings. Vosselman finally resorted to giving Butts a series of excuses: that the funds had been wired to Stearns but the wire had been lost, that the wire was found but had been sent to the wrong bank, and that the money had been wired back to Morgan Stanley so that taxes could be withheld. Finally, Vosselman told Butts that he and Stearns operated a hedge fund and that Butts’s funds would be invested in the hedge fund if the problem with Morgan Stanley could not be resolved. In October 1998, when the second payment was two-to-three weeks late, Butts insisted on speaking with Stearns. Vosselman discouraged this at first but finally agreed to set up a conference call, which happened on October 23, 1998. During this call, Stearns was evasive and refused to tell Butts when the second payment would be made. Butts insisted on having a contact name and number for future reference, but Stearns gave him a phony name and number.2 Vosselman also solicited funds from another investor, Barrett 2 Only after Butts’s attorney got involved was the money recovered in April 1999. 5 Morrison, without disclosing his relationship with Stearns and under the pretenses that he was the trader. Again, Vosselman made various excuses when the first payment on the investment contract was due in October 1998, including falsely telling Morrison of the death of a close friend. He also falsely told Morrison that the money had been frozen because another investor had complained to state authorities. During the course of all this misconduct, Vosselman received a number of gifts and/or payments from Stearns. In August or September of 1998, Stearns gave Vosselman a $98,000 gift to help him purchase a condominium. Similarly, between June and the fall of 1998, Stearns gave Vosselman $45,000 in gifts or salary. III. ANALYSIS A. Sufficiency of the Evidence — Count Fifty-Five Stearns contends that the evidence was insufficient to sustain his conviction on count fifty-five, which charged him with money laundering to promote unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(A)(I). Because Stearns timely moved for judgment of acquittal at the close of the government’s case and again after both sides rested, this court reviews a sufficiency of the evidence challenge in the light most favorable to the verdict and upholds the verdict if, but only if, a rational juror could have found each element of the offense beyond a reasonable doubt. United States v. 6 Brown, 186 F.3d 661, 664 (5th Cir. 1999); United States v. Pruneda- Gonzalez, 953 F.2d 190, 193–94 (5th Cir. 1992); Fed. R. Crim P. 29(a). To obtain a conviction under § 1956(a)(1)(A)(i),3 the government must prove beyond a reasonable doubt that the defendant “(1) conducted or attempted to conduct a financial transaction, (2) which the defendant knew involved the proceeds of unlawful activity, (3) with the intent to promote or further unlawful activity.” Brown, 186 F.3d at 668 (internal quotation omitted). Mere evidence of promotion of an unlawful activity does not satisfy the intent-to-promote element. Id. at 670. The government must show that “a dirty money transaction that in fact promoted specified unlawful activity was conducted with the intent to promote such activity.” Id. However, “[t]his does not mean that there must always be direct evidence, such as a statement by the defendant, of an intent to promote specified unlawful activity.” Id. In fact, “[d]irect evidence is seldom available.” United 3 18 U.S.C. § 1956(a)(1)(A)(i) makes it illegal for: (a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity (A)(i) with the intent to promote the carrying on of specified unlawful activity; . . . . Subsequently, the money laundering statute defines “specified unlawful activity” to include mail and wire fraud. See 18 U.S.C. §§ 1956(c)(7)(A), 1961(1). 7 States v. Johnson, 971 F.3d 562, 566 (10th Cir. 1992). “In many cases, the intent to promote criminal activity may be inferred from the particular type of transaction” or from the surrounding circumstances. Brown, 186 F.3d at 670; Johnson, 971 F.3d at 566. Although an “intent to promote” cannot be inferred from the conduct of a “defendant who . . . deposits proceeds of some relatively minor fraudulent transactions into the operating account of an otherwise legitimate business enterprise and then writes checks out of that account for general business purposes,” Brown, 186 F.3d at 671, “[w]hen the business as a whole is illegitimate, even individual expenditures that are not intrinsically unlawful can support a promotion money laundering charge.” United States v. Peterson, 244 F.3d 385, 392 (5th Cir. 2001). For example, in United States v. Jackson, 935 F.2d 832, 840-42 (7th Cir. 1991), the court inferred “intent to promote” from the defendant’s use of illegal funds to purchase beepers because the beepers played an important role in the defendant’s drug trafficking scheme. Count fifty-five alleged that Stearns used money obtained through wire fraud to pay two past-due mortgage payments totaling $36,368.39. Stearns does not dispute either making the payment or the source of the funds. Instead, citing Brown, he contends that the payment of the mortgage on his residence was a strictly personal expenditure and that the government failed to prove that the transaction was intended to promote unlawful activity. 8  We reject Stearns’s contention, as this case is unlike Brown, in which an automobile dealership defrauded lenders by helping unqualified buyers obtain financing and then used those proceeds to satisfy ordinary business expenditures that bore no relation to the fraud. The court in Brown failed to find an “intent to promote” because the ordinary business expenditures failed to “play[] an important role” in the defendant’s criminal scheme.4 Instead, we find persuasive the Tenth’s Circuit’s decision in United States v. Johnson, 971 F.2d 562 (10th Cir. 1992), where the defendant, like Stearns here, used the proceeds of a wire fraud scheme to pay off the mortgage on his house. In finding sufficient evidence to support a money laundering conviction, the court stated: The evidence clearly showed that the defendant used the office in his home to carry out the fraudulent scheme. In addition, the defendant’s aura of legitimacy was bolstered in the minds of investors who saw the defendant’s house. The circumstances give rise to an inference that the defendant paid the mortgage on the house so that he could continue using the office in furtherance of the fraudulent scheme. Id. at 566.5 4 United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999). 5 Although there is, admittedly, language in Johnson which suggests a distinction between paying off a mortgage and making a regular monthly payment, we do not find this distinction to be a meaningful one, as both courses of action protect the defendant’s 9  In relying on the Tenth Circuit’s case in Johnson, we are mindful of the Sixth Circuit’s admonition that not all home mortgage payments support the “intent to promote” prong merely because the residence is used as a business office. United States v. McGahee, 257 F.3d 520 (6th Cir. 2001). That is, the court in McGahee rejected the government’s argument because there the defendant’s “home did not play an integral part in the embezzlement scheme,” and “[p]aying for personal goods, alone, is not sufficient to establish that funds were used to promote an illegal activity.” Id. at 527. Because in McGahee defendant’s use of his home as his business office was “merely a convenience,” “the reasonable conclusion [wa]s not that [the defendant] made the payment with the intent to promote the embezzlement, but rather with the intent to sustain his personal living quarters.” Id. The record here, however, reveals that this case is more like Johnson, than Brown and McGahee. Here, Stearns maintained an office at his home, where he operated portions of his scheme. When he was arrested, agents searching the house found business records and several documents used in the scheme, including forged letters that Stearns used to tout his investment offerings as risk-free. Some victims testified to fraudulent activities conducted in “right to continue using the office and the home.” Thus, the relevant teaching of Johnson is that a sufficient connection between a defendant’s residence and his unlawful activity will permit a jury to legitimately infer that the defendant made a mortgage payment with “dirty money” with the intent to promote or further the unlawful activity. 10 Stearns’s house. He held meetings there with investors and lenders, told potential investors that he traded bonds from home, and received cash at home on at least one occasion. More importantly, Stearns used his expensive home to create an aura of legitimacy6 for his investment scheme. He displayed to various potential investors either the house itself or his office facilities. One investor testified that the impressive nature of the house gave him a sense of comfort in his dealings with Stearns, and Vosselman mentioned the house when trying to comfort Butts after he failed to receive the second payment on his investment. Finally, when Stearns pursued the ill-fated Bank of America loan, he included a picture of his house with the loan application. These facts distinguish this case from Brown, where the proceeds of fraudulent transactions were deposited into an operating account and then used to satisfy general business expenses unrelated to the fraud, and McGahee, where the court found that the defendant’s home did not play a significant role in his embezzlement scheme. Instead, this case is closer to Johnson, 6 See United States v. Oberhauser, 284 F.3d 827 (8th Cir. 2002) (concluding that transfers of illegal funds from a Ponzi scheme to a charity were more than mere “benign expenditures” because the transfers to charity promoted the continuation of the fraud, as the corporation “induced investors to give them money by stating their profits went to charity and by prominently displaying plaques commemorating their contributions,” thus giving an aura of legitimacy to the enterprise); United States v. Savage, 67 F.3d 1435, 1440 (9th Cir. 1994) (stating that “circumstantial evidence of intent to promote a fraudulent scheme exists if the transfer lends an ‘aura of legitimacy’ to the scheme”). 11 where the government established a link between the defendant’s residence and his fraudulent scheme. Accordingly, because the connection between Stearns’s house and his unlawful activities supports a jury inference that he made the mortgage payment with the intent to promote those activities, we affirm the jury’s verdict on count fifty-five. B. Sentence Enhancement Stearns further contends that the district court erred by overruling his objection to the enhancement of his offense level under U.S.S.G. § 3B1.1(a) for being an “organizer or leader” of an extensive criminal activity. “The district court’s determination that a defendant is a U.S.S.G. § 3B1.1 organizer is a factual finding which this court reviews for clear error. A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole. This court reviews a sentencing court’s application of the guidelines de novo.” United States v. Giraldo, 111 F.3d 21, 23 (5th Cir. 1997); see also United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990). Under U.S.S.G. § 3B1.1(a), a defendant’s sentence may be enhanced if he “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (emphasis added). Although Stearns does not contend that he did not act as an “organizer or 12 leader”7 or that the criminal activity was not “otherwise extensive,” he does argue that no one else involved in the scheme qualified under the sentencing guidelines as a “participant” for him to lead or organize. That is, even under the “otherwise extensive” prong of § 3B1.1, “the defendant must have been the organizer, leader, manager, or supervisor of [at least] one or more other participants.” Id. § 3B1.1, Application Note 2. See United States v. Ronning, 47 F.3d 710, 712 (5th Cir. 1995). “A ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1, Application Note 1. In other words, to qualify as a participant, a person “need not have been charged or convicted” with the defendant but need “only have participated knowingly in some part of the criminal enterprise.” United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994).8 Stearns contends that the district court clearly erred in finding that Vosselman, Caron, and Wylie were participants in Stearns’s scheme because it found only that they were knowledgeable of Stearns’s misconduct, not that they were criminally responsible for the commission of the offense. Stearns relies on this court’s 7 “[A] leader or organizer must control or influence other people.” Ronning, 47 F.3d at 712. 8 See also United States v. Alfaro, 919 F.2d 962, 967 (5th Cir. 1990) (“We do not require each ‘participant’ to have committed each element of the offense; rather, we require each of the participants to play some role in bringing about the specific offense charged.”). 13 opinion in United States v. Maloof, 205 F.3d 819, 830 (5th Cir. 2000), in which we vacated a defendant’s sentencing enhancement and remanded for resentencing because the district court found only that “other persons knew what was going on,” without “otherwise indicat[ing] that it had determined that [the participants] had intentionally or wilfully participated in the criminal conspiracy or point[ing] to the evidence in the record that would support such a finding.” Id. This court stated, “Willful participation is an essential element of the crime of conspiracy; mere knowledge of a conspiracy does not itself make a person a conspirator.” Id. (internal quotation omitted). Although Stearns’s argument has surface appeal, it is clear from a review of the whole record and the entirety of the district judge’s colloquy that the district judge did not clearly err in finding at least one other participant in Stearns’s crime, and thus enhancing Stearns’s sentence. 9 Unlike in Maloof, the evidence in this record of the “willful participation” of others is clear. There is no dispute that Vosselman, Caron, and Wylie acted as intermediaries for Stearns, raising money from third parties for investment purposes and passing the money on to Stearns. It is 9 Even if we were to find that the district judge applied the wrong legal standard in determining whether the individuals involved were participants, such a finding would not merit reversal here, as the district court’s finding that Stearns was a § 3B1.1(b) organizer was not clearly erroneous. See United States v. Giraldo, 111 F.3d 21 (5th Cir. 1997) (affirming a district court’s sentencing enhancement under § 3B1.1 based on the evidence in the record, despite the district court’s legal error). 14 equally clear that, at a minimum, Vosselman (who testified under a grant of immunity) was so knowledgeable and intimately connected in Stearns’s scheme that he unquestionably possessed the requisite “criminal intent” to qualify as a participant under U.S.S.G. § 3B1.1.10 Vosselman knew that his investors had lost money in a similar high-yield investment program with Stearns’s associate, Heidary. Nevertheless, Vosselman solicited investors on Stearns’s behalf. Vosselman also accepted nearly $145,000 in gifts from Stearns, some of it even after Stearns had failed to pay Vosselman’s investors. Vosselman became evasive and gave false explanations for Stearns’s failures to make payments to investors, thus putting the investors’ money at risk for an additional period of time. Furthermore, Vosselman misrepresented his qualifications and his role in the investment scheme to Butts and Morrison. Thus, it is clear that Vosselman “participated knowingly” in the scheme and “play[ed] some role in bringing about the specific offense[s] charged.” Boutte, 13 F.3d at 860; Alfaro, 919 F.2d at 967. Because the district judge’s factual findings are not implausible in light of the record read as a whole, we affirm the district court’s sentencing enhancement. III. CONCLUSION 10 Because the enhancement guideline requires only one participant, it is not necessary for us to consider whether Caron and Wylie were also participants. 15  For the foregoing reasons, the district court’s judgment and sentence are AFFIRMED. 16 

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED ED REEVES, d/b/a ED’S ) September 17, 1999 IMPORTS, ) Cecil Crowson, Jr. ) Appellate Court Clerk Plaintiff/Appellee, ) ) v. ) No. 01A01-9807-CH-00379 ) GRANITE STATE INSURANCE ) Grundy Chancery CO., ) No. 4708 ) Defendant/Appellant. ) APPEAL FROM THE CHANCERY COURT OF GRUNDY COUNTY TENNESSEE THE HONORABLE JEFFREY F. STEWART PRESIDING ERNEST D. BENNETT, III TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC 2908 Poston Avenue Nashville, Tennessee 37203 Attorney for the Defendant/Appellant ROBERT S. PETERS 100 First Avenue S.W. Winchester, Tennessee 37398 Attorney for Plaintiff/Appellee AFFIRMED AND REMANDED PATRICIA COTTRELL, J. CONCURS: BEN CANTRELL, P. J., M.S. DISSENTS IN SEPARATE OPINION: WILLIAM C. KOCH, JR., J.  OPINION This is an action to recover upon an insurance policy insuring an automobile against loss. The named insured, Mr. Nance, the owner of the automobile, is not a party to the action. Instead, the suit was brought by Ed Reeves, doing business as Ed’s Imports, in his capacity as the loss payee named in the insurance policy. This appeal involves the rights of the loss payee under the loss payable provision of the insurance contract where, after the loss, the insurance company canceled the policy retroactively due to a discovered misrepresentation in the application by the insured. The trial court ruled in favor of the appellee, Ed’s Imports. We affirm. Ed Reeves, doing business as Ed’s Imports, sold a 1992 Nissan Maxima to Mr. Nance and financed this purchase. Mr. Nance gave Mr. Reeves a promissory note, and agreed to maintain insurance coverage on the car. Mr. Nance purchased that insurance from Granite State Insurance Company, the appellant. Granite State issued the policy, which designated Ed’s Imports as the loss payee. Also included in the policy was a provision establishing a “deductible” for the loss payee. Ed’s Imports received notice of the insurance and its loss payee status from the insurer. Mr. Nance’s car was stolen on June 8, 1996, and a claim was filed. In the course of its investigation, Granite State discovered that Mr. Nance had been convicted of felonious possession of marijuana before he applied for insurance coverage. In his application for insurance, he had answered “no” to the question, “has anyone in household been arrested for any offense other than traffic offenses?” Based upon this misrepresentation by the insured, Granite State denied the claim and canceled the insurance policy retroactively, declaring it void ab initio. 2  Ed’s Imports, the loss payee, does not dispute the insurance company’s right to cancel the policy retroactively with regard to the insured. Therefore, we need not consider the validity of the insurance company’s retroactive cancellation of the policy as to the insured. Ed’s Imports, the loss payee, attempted to recover from the insurance company, and Granite State denied that claim. Ed’s Imports filed suit in the Chancery Court of Grundy County, and the matter was tried by Stipulation of Facts submitted by the parties. The trial court found that, under the terms of the policy, the loss payee was entitled to recover. The court found that the policy should be construed to require notice to the loss payee before cancellation would be effective as to the loss payee, that any ambiguity in this regard should be resolved in favor of the loss payee, and that the loss occurred prior to the notice of cancellation of the policy. The trial court awarded Ed’s Imports the stipulated amount, $12,008. Granite State appeals that decision. Counsel for both parties have clearly and accurately defined the issue for this Court and for the trial court: Whether Granite State’s ab initio cancellation of the policy, subsequent to the loss, prevents recovery by the loss payee, based upon the terms and conditions of the policy and applicable law. Since the questions raised herein are purely questions of law and not of fact, our review is de novo on the record with no presumption of correctness of the trial court’s conclusions of law. See Chrysler Credit Corp. v. Noles, 813 S.W.2d 437, 438 (Tenn. App. 1990); Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn. App. 1986). I. Both parties rely upon the following provision, which they refer to as the 3 loss payable clause, and the outcome of this case largely turns on the interpretation of this language: Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations or in this endorsement. This insurance with respect to the interest of the loss payee, shall not become invalid because of your fraudulent acts or omissions unless the loss results from your conversion, secretion or embezzlement of “your covered auto.” However, we reserve the right to cancel the policy as permitted by policy terms and cancellation shall terminate this agreement as to the loss payee’s interest. We will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the Declarations. Under Tennessee law, where an insurance contract includes an “open” or “simple” loss payable clause, a loss payee has no greater right than the insured. See Hocking v. Virginia Fire & Marine Ins. Co., 99 Tenn. 729, 42 S.W. 451 (1897); Central Nat’l Ins. Co. v. Manufacturers Acceptance Corp., 544 S.W.2d 362 (Tenn. 1967). Open or simple clauses designate the loss payee, and declare that the loss, if any, is payable to the mortgagee as its interest may appear. The rights of the mortgagee under a simple loss payee clause are wholly derivative and cannot exceed those of the insured. In Hocking, the court held that the act of the insured in burning down the covered property extinguished her right to recover under the insurance contract as well as the rights of the mortgagee or loss payee. Hocking, 42 S.W. at 451. In Central National Insurance, the chattel mortgagee/loss payee was denied recovery because of the acts of the insured who breached material conditions of the policy. Central Nat’l Ins., 544 S.W.2d at 364. In that case, however, the court noted that the contract in question contained no language “protecting the interest of the mortgagee from acts or omissions of the insured-mortgagor.” Id. A clear majority of jurisdictions recognize the existence of a second type 4 of mortgagee or loss payee clause, the “standard” or “union” clause, which is the type referred to in Central National Insurance as missing from that contract. Standard or union clauses designate the mortgagee, and then go a step further. The signature characteristic of a standard clause is that it contains language insuring that the interest of the mortgagee will not be invalidated by certain acts of the insured. See, e.g., Nationwide Mut. Ins. v. Dempsey, 495 S.E.2d 914 (N.C. App. 1998); see generally 4 Lee R. Russ, Couch on Insurance 3d § 65.32 et seq. A standard or union clause appears in a policy obtained by the mortgagor for the benefit of both the mortgagor and the mortgagee. Where an insurance policy contains a standard or union mortgage clause, the mortgagee has an independent contract with the insurer, the rights of a mortgagee can be greater than those of the insured, and the mortgagee’s rights are determined by its separate contract with the insurer. Id. at § 65.32. Tennessee courts have long recognized the existence of the two types of mortgagee or loss payee clauses and the difference in the effect of their inclusion in an insurance contract. See Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022 (1915). That view is that the contract evidenced by the rider is a separate and distinct one with the mortgagee, designed for his protection, and in operation from the date of its execution; that, in so far as the policy or contract with the mortgagor is in harmony therewith, it is to be referred to, to supplement and complete the terms of the mortgagee’s contract, and, in so far as the policy is out of harmony with the rider, such adverse provisions are to be disregarded; and, further, that under such a contract the security of the mortgagee cannot be invalidated, either in whole or in part, by any act or neglect of the mortgagor, either prior or subsequent to the execution of such contract with the mortgagee. Laurenzi, 176 S.W. at 1024. 5  Our courts have consistently held that where the insurance policy contains a standard or union mortgage clause, the mortgagee has an independent contract with the insurer. See Third Nat’l Co. v. Thompson, 28 Tenn. App. 436, 191 S.W.2d 190 (1945); Phoenix Mut. Life Ins. Co. v. Aetna Ins. Co, 59 S.W.2d 517 (Tenn. 1933); Phoenix Mut. Life Ins. Co. v. Greene County Farmers’ Mut. Fire Ins. Co., 54 S.W.2d 971 (Tenn. 1932). Although these cases deal with policies insuring real property,1 Tennessee courts have also recognized that a standard mortgage clause contained in an insurance policy for personal property has the same effect. See Union Planters Nat’l Bank v. American Home Assurance Co., 865 S.W.2d 907 (Tenn. App. 1993) (bank which lent money for purchase of an aircraft sued insurer under standard mortgage clause); Noles, 813 S.W.2d at 439 (“The primary importance of the distinction is that the standard clause provides a separate and distinct contract between the insurer and the lienholder,” regarding an automobile liability policy); Central Nat’l Ins. Co., 544 S.W.2d at 364 (while interpreting a simple or open clause contained in a motorcycle insurance policy, the court in dicta noted the existence of standard or union clauses). In a recent case involving the applicability of the doctrine of res judicata to subrogation claims against the insured by an insurer who had paid the loss payee, this Court noted: We begin our analysis with the observation that plaintiff [the insurer] was charged with the knowledge that its separate contractual obligation with First 1 A statute passed after Laurenzi, now codified at Tenn. Code Ann. § 56-7-804, protects the interest of a mortgagee from invalidation of a fire insurance policy on realty because of any act or neglect of the insured. The standard mortgage clauses in that type of policy could not provide less protection to the mortgagee than the statute. Thus, the language in the cases involving fire insurance on real property may indicate that the insurer cannot limit the loss payee’s interest by specifying which acts of the insured may result in invalidation. The standard mortgage clause language required by Tenn. Code Ann. § 56-7-804 is not required in other types of insurance. 6  Tennessee [the loss payee] would not generally be invalidated by the acts of the insured or others . . . Penn-America Ins. Co. v. Crittenden, 984 S.W.2d 231, 232 (Tenn. App. 1998). Our Supreme Court has stated that the essential nature and purpose of a standard or union clause is “to furnish to the mortgagee a reliable security in a definite sum free from any interference on the part of the mortgagor which would, to any extent, invalidate or make less adequate that security.” Laurenzi, 176 S.W. at 1026. The loss payable clause at issue herein clearly includes the language necessary to classify it as a standard or union clause: “This insurance with respect to the interest of the loss payee, shall not become invalid because of your [the insured’s] fraudulent acts or omissions unless the loss results from your conversion, secretion or embezzlement of ‘your covered auto.’ ”2 Thus, 2 Nationwide Mutual Insurance Co. v. Dempsey involved a clause almost identical to the one in this case. That provision read: Loss or damage under this policy shall be paid as interest may appear to you and the loss payee shown in the Declarations. This insurance covering the interest of the loss payee shall become invalid only because of your conversion or secretion of your covered auto. However, we reserve the right to cancel the policy as permitted by policy terms and the cancellation shall terminate this agreement as to the loss payee’s interest. We will give the loss payee 10 days notice of cancellation. Dempsey, 495 S.E.2d at 915. The court discussed the two types of mortgagee (or loss payee) clauses. “The first, typically referred to as a ‘standard or union mortgage clause,’ stipulates that ‘the interest of the mortgagee in the proceeds of the policy shall not be invalidated by any act or neglect of the mortgagor.’ This type of clause acts as a distinct and independent contract between the insurance company and the mortgagee and ‘confer[s] greater coverage to the lienholder than the insured has in the underlying policy.’” Id. The court found that the language, “insurance covering the interest of the loss payee shall become invalid only because of your conversion or secretion of your covered auto,” clearly extends to the loss payee greater coverage than that extended to the insured as it sets only two instances in which the loss payee’s insurance coverage will become invalid. Id. at 916. In Pittsburgh National Bank v. Motorists Mutual Insurance Co., 87 Ohio App.3d 82, 84, 621 N.E.2d 875, 876 (1993), the Ohio Court of Appeals held that the following language, which echoes the language of the policy at issue, constituted a standard loss payable clause: 7 Granite State has provided greater protection to Ed’s Imports than to the insured and has created a separate contract with Ed’s Imports. In its brief, Granite State acknowledges that the loss payable clause in its policy is a standard mortgage clause, but asserts that it provides only a “modicum” of protection greater than that of the insured. II. The issue, therefore, is whether the separate contract between the insurer and the loss payee allows the insurer to retroactively cancel it. In interpreting an insurance contract, standard principles of contract law apply. See Hurley v. Tennessee Farmers Mut. Ins. Co., 922 S.W.2d 887, 892 (Tenn. App. 1995); Union Planters, 865 S.W.2d at 912. In construing contracts, the words expressing the parties’ intentions should be given their usual, natural, and ordinary meaning. See Taylor v. White Stores, Inc., 707 S.W.2d 514 (Tenn. App. 1985). All provisions of a contract should be construed as in harmony with each other, if such construction can be reasonably made, so as to avoid repugnancy between the several provisions of a single contract. See Bank of Commerce & Trust Co. v. Northwestern Nat’l Life Ins. Co., 160 Tenn. 551, 26 S.W.2d 135 (1930). Additionally, where by reason of ambiguity in the language employed in a contract of insurance, if there is doubt or uncertainty as to its meaning, and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the company, the former will be adopted. See Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations. This insurance covering the interest of the loss payee shall not become invalid because of your fraudulent acts or omissions unless the loss results from your conversion, secretion, or embezzlement of your covered auto ... 8 Elsner v. Walker, 879 S.W.2d 852, 855 (Tenn. App. 1994); See also Palmer v. State Farm Mut. Auto Ins. Co. , 614 S.W.2d 788, 789 (Tenn. 1981); Travelers Ins. Co. v. Aetna Cas. and Sur. Co., 491 S.W.2d 363, 365 (Tenn. 1973) (exclusions will be strongly construed against the insurer). While a standard mortgage clause creates a separate contract of insurance for the mortgagee’s separate benefit, that separate contract is engrafted upon the main policy and can be understood by reference to the policy. See Union Planters, 865 S.W.2d at 912. However, the standard mortgage clause will prevail, as to the loss payee’s interest, over contrary provisions in the policy. See Third Nat’l Co., 191 S.W.2d at 193. As stated in Laurenzi, the insurance policy is to be referred to and will be used to supplement or complete the terms of the mortgagee’s contract only “in so far as the policy with the mortgagor is in harmony therewith.” Laurenzi, 176 S.W. at 1024. The provisions of the separate contract between the loss payee and the insurer, created by the standard mortgage clause, determine the loss payee’s rights. “Obviously, any claim ... must arise from a contract and the contract between the parties in this instance is the breach of warranty endorsement [standard mortgage clause], which provisions must control.” Union Planters, 865 S.W.2d at 912. Thus, the language of the standard mortgage clause, or loss payable clause, is the primary source of the loss payee’s rights. See Phoenix v. Greene County Farmers’ Mut., 54 S.W.2d at 972; Phoenix v. Aetna Ins. Co., 59 S.W.2d at 518. The independent or separate contract “is measured by the terms of the mortgage clause itself.” Noles, 813 S.W.2d at 439. 9  Both parties rely on the same paragraph in the insurance contract (the loss payable clause), but differ in their interpretation of that paragraph by stressing different provisions within it. The insurer relies on the language of the loss payable provision which states: “We reserve the right to cancel the policy as permitted by policy terms3 and cancellation shall terminate this agreement as to the loss payee’s interest.” (emphasis added). The insurer argues that it retroactively canceled the policy as to the insured, and that such cancellation also terminated the loss payee’s interest. On the other hand, the loss payee relies upon the provision which states, “This insurance with respect to the interest of the loss payee, shall not become invalid because of your fraudulent acts or omissions unless the loss results from your conversion, secretion or embezzlement of your covered auto.” (emphasis added). 3 The terms of the policy governing cancellation provide: TERMINATION A. Cancellation. This policy may be canceled during the policy period as follows: *** 2. We may cancel by mailing to the named insured shown in the Declarations at the address shown in this policy: a. at least 10 days notice: (1) if cancellation is for nonpayment of premium; or (2) if notice is mailed during the first 60 days this policy is in effect and this policy is not a renewal or continuation policy; or b. at least 20 days notice in all other cases *** 3. After this policy is in effect for 60 days, or if this is a renewal or continuation policy, we will cancel only: *** c. If the policy was obtained through material misrepresentation. *** D. Other Termination Provisions. *** 3. The effective date of cancellation stated in the notice shall become the end of the policy period. 10  The loss payable paragraph can be read to give effect to all of its component provisions, and can be read in harmony with the policy as a whole, if the words “invalid” and “cancel” are given their plain and distinct meanings. By the language it used, Granite State has promised the loss payee that the insurance will not become invalid as to the loss payee’s interest due to fraudulent acts or omissions of the insured except those specific acts named in the loss payable clause. A cancellation which is retroactive to the date of issuance of the policy is, in effect, an attempt to render the policy invalid from its inception. The insurer cannot avoid its commitment not to invalidate the loss payee’s interest by calling its action a cancellation which became effective on the date of policy issuance. In view of the insurer’s commitment to the loss payee, the terms “cancel” and “cancellation”, must be interpreted as providing a prospective remedy only, unavailable to invalidate the loss payee’s interest after a loss,4 absent one of the circumstances enumerated by the insurer in its contract with the loss payee.5 The insurer would have us interpret its commitment to the loss payee to be limited to the situation where the insured’s misrepresentation relates to the loss, asserting: “Where the insurer would seek to avoid payment of a loss after its occurrence because of some fraudulent conduct of the insured in reference to the loss, the loss payee would be protected by the provision of the loss payable clause in regard to fraud of the insured. Where, however, the insured lawfully cancels the policy pursuant to its cancellation provision, and 4 Generally, the rights of a loss payable mortgagee are determined at the time of the loss. See Benton Banking Co. v. Tennessee Farmers Mut. Ins. Co., 906 S.W.2d 436, 438 (Tenn. 1995). 5 It is undisputed that the insured did not commit any of the acts so enumerated, and the insurer itself characterizes the insured’s misrepresentations as fraudulent. 11 the reasons have nothing to do with fraud of the insured in connection with the loss, instead having to do with fraud in the inception by the insured wrongfully procuring the policy, the cancellation is as effective against the loss payee as against the insured.” We disagree with the insurer’s interpretation of the loss payee’s separate contract. The loss payable provision simply does not contain the words the insurer would have us insert. We interpret the provision as prohibiting invalidation by the insurer of the loss payee’s interest due to any fraudulent acts or omissions of the insured except those enumerated in the provision itself.6 III. The insurer also argues that the insured’s misrepresentation in the application renders the policy voidable from its inception, at the option of the insurer, on the basis of provisions of the policy and on the basis of Tenn. Code Ann. § 56-7-103. The insurer relies upon the policy’s termination provisions and the following two provisions, the first of which is part of the loss payable clause, and the second of which is referred to as the fraud provision: However, we reserve the right to cancel the policy as permitted by policy terms and cancellation shall terminate this agreement as to the loss payee’s interest. We will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the Declarations. ... 6 In Noles, 813 S.W.2d at 439, this Court held that the loss payee was protected even though the insured had let the policy lapse by failing to pay premiums. The loss payable clause in that contract required the insurer to give ten days notice prior to cancellation of the lienholder’s protection and also stated that the loss payee’s interest would “not be invalidated by any act or neglect of the . . . mortgagor.” Id. 12  We do not provide coverage for any ‘insured’ who has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy. It is the insurer’s position that the fraud provision allows it to cancel the policy due to the insured’s misrepresentation, that the termination provision allows the cancellation to become effective on the date the insurer chooses to state in the notice of cancellation, that the cancellation notice herein dated November 25, 1996, stated that the cancellation was to take effect at 12:01a.m. on February 28,1996, that the loss payee was only entitled to the same notice as the insured, and that the retroactive cancellation was valid as to both the insured and the loss payee under the language of the loss payable clause. We respectfully do not agree with the insurer’s interpretation of the policy provisions as they apply to the separate contract with the loss payee. First, although the loss payee’s interest can be terminated by cancellation, that cancellation must comply with the policy terms, under the language the insurer relies on and under well-settled law. When an insurance company seeks to cancel a policy, strict compliance with policy cancellation provisions is required in order to effectuate cancellation. See Jefferson Ins. Co. v. Curle, 771 S.W.2d 424 (Tenn. App. 1989); State Automobile Mut. Ins. Co. v. Lloyd, 54 Tenn. App. 587, 393 S.W.2d 17 (1965). The termination provisions of the policy contain no language authorizing retroactive cancellation and, in fact, require advance notice of cancellation. The insurer has promised to give the loss payee the same advance notice as is given to the insured. Second, even if the fraud clause 13 provides a basis for the insurer to deny coverage ab initio7 to the insured, there is a distinction between canceling a policy and denying coverage after a loss or attempting to avoid the policy. While we agree that such a distinction may not have practical meaning with regard to the insured in this situation, it has significance to the interest of the loss payee by virtue of the language used by the insurer in its policy. Lastly, the fraud clause, by its terms, applies only to coverage of the insured. It does not affect the loss payee’s separate contract. We find that the policy provisions do not authorize the insurer to retroactively cancel the policy so as to invalidate the loss payee’s interest on the basis of the insured’s misrepresentation in his application. IV. The insurer also relies on Tenn. Code Ann. § 56-7-103 as authorizing it to void the policy, thereby invalidating the loss payee’s interest. That statute provides: No written or oral misrepresentation or warranty therein made in the negotiations of a contract or policy of insurance, or in the application therefor, by the insured or in the insured's behalf, shall be deemed material or defeat or void the policy or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increases the risk of loss. As stated by the insurer, Tenn. Code Ann. § 56-7-103 provides an insurer with a defense which may render a contract voidable.8 See National 7 The validity of the cancellation ab initio as to the insured is not at issue in this appeal. 8 A voidable contract is one where one or more parties have the power to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance. Accordingly, a voidable contract is valid and binding until it is avoided by the party entitled to avoid it. See Newton v. Cox, 878 S.W.2d 105, 108 (Tenn 1994). 14 Union Fire Ins. Co. v. F.D.I.C., 837 S.W.2d 373, 381 (Tenn. 1992). The statute prohibits an insurer from invalidating an insurance contract except in the specified circumstances. Where those circumstances are present, an insurer is allowed, but not required, to avoid a contract. An insurer retains the option to waive invalidation and continue a contract of insurance after discovery of misrepresentation. An insurer also retains the right to limit its ability to void a policy by an express agreement to do so. Similarly, we see no reason why an insurer cannot, by contract, agree to waive its right to invalidate a policy as to the loss payee to whatever extent it wants. With regard to the effect of Tenn. Code Ann. § 56-7-103 on the separate and independent contract between Granite State and Ed’s Imports, even if Granite State can avoid its contract with the insured in reliance on the statute and its policy provisions, the voiding of that contract does not automatically render the separate contract with the loss payee void.9 In Jackson v. American Eagle Fire Insurance Co., 92 S.W.2d 874 (Tenn. 1936), our Supreme Court held that both the insured and the loss payee were cut off from their right to recover where, at the time of the purchase of the policy, the loss payee was aware that the insured did not have unconditional ownership of the covered property, as was required by the policy. The court relied in part upon the statute and upon the standard mortgage clause in that policy which required the mortgagee to give notice of 9 Oklahoma courts have held that a standard or union clause is effective to protect the interest of the mortgagee even though the policy itself was void ab initio as to the mortgagor. Great American Ins. Co. v. Southwestern Finance Co., 297 P.2d 403 (Okla. 1956); Oklahoma State Union of Farmers’ Educational & Cooperative Union v. Folsom, 325 P.2d 1053 (Okla. 1958). Similarly, in Pittsburgh National Bank v. Motorists Mutual Ins. Co., 87 Ohio App.3d 82, 621 N.E.2d 875 (1993), the court held that where the actions of the insured would render the loss beyond the scope of the policy coverage, the mortgagee is not precluded from coverage, absent such a limitation in the loss payable clause. 15 any increase in hazard, finding that ownership as tenant by the entirety while insuring the property as sole owner was an increased hazard. Id. at 875. However, in Third National Co., this Court found that a misrepresentation as to the nature of the use of the insured premises and a breach of a stipulation against an increase in hazard did not render the policies void, where the policy included the statement that the entire policy, unless otherwise agreed, would be void if the hazard was increased by any means within the control or knowledge of the insured. Id., 191 S.W.2d at 192. Holding that the policies were “merely voidable if the insurers chose to avoid them,” the Court further stated: The policies, however, were voidable only as to the insured, not as to the mortgagee. Such is the effect of the mortgage clause. This misrepresentation, or increase of the hazard, was an act of the insured, not participated in or known by the mortgagee. That clause stipulates, among other things, that the insurance as to the interest of the mortgagee ‘shall not be invalidated by any act or neglect’ of the mortgagor or owner of the property insured, nor by the ‘occupation of the premises for purposes more hazardous than are permitted’ by the policy. Id., 191 S.W.2d at 193. In General Electric Credit Corporation v. Kelly & Dearing Aviation, 765 S.W.2d 750 (Tenn. App. 1988) this court denied recovery to the lienholder/loss payee because it found that the loss was due to conversion, a situation expressly excluded from the protection afforded the loss payee in the policy. The relevant provision of the policy stated, “should you do anything which makes your coverage invalid, we will still make a payment to that lienholder or lessor . . . . We won’t cover your conversion, embezzlement or secretion of the aircraft.” The insurer also had argued that the insured had 16 made material misrepresentations on its application, thereby rendering the policy void ab initio, and that the policy should be considered as if it never existed. Id. at 753. This court found no evidence of misrepresentation in the application, but stated: Furthermore, in Tennessee clauses such as this, lienholder’s endorsement have long been held to create “a separate and independent contract between the insurer and the mortgagee that the latter’s rights cannot be invalidated by any act or neglect of the mortgagor or insured . . .” Third National Company v. Thompson, 191 S.W.2d 190, 193 (Tenn. App. 1945). See also, Couch on Insurance 2d, § 74: 347. Id. The court further held: The language used in the lienholder’s endorsement provides that, regardless of whether the insured does anything which would cause his coverage to be invalidated, the insurer will pay the lienholder. ... [U]nless conversion, embezzlement or secretion by [insured] can be shown, [lienholder] is entitled to payment under the lienholder’s endorsement. Id. Similarly, in First Tennessee Bank National Ass’n v. U.S. Fidelity and Guaranty Co., 829 S.W.2d 144, (Tenn. App. 1991), this court found, partially on the basis of Tenn. Code Ann. § 57-6-103, that a mortgagee bank’s failure to disclose material information (the co-insured former spouse had threatened to burn his dwelling to the insurer made the separate contract between the mortgagee and the insurer voidable. The court based its reasoning on the fact that the mortgagee, as a party to the independent contract created by the mortgage clause, was under the duty to disclose conditions affecting the risk. 17 Id. In the case now before us, there is neither proof nor allegation that Ed’s Imports, the loss payee, had any knowledge of the insured’s misrepresentation on his application. Such knowledge and failure to disclose, if under a duty to do so, appear to be the determining factors in denying recovery to a loss payee due to an insured’s misrepresentation. This interpretation is consistent with the premise that the loss payee has a separate contract and with the law regarding the ability of an insurer to avoid liability under its contract with the insured on the basis of misrepresentation by the insured. To avoid coverage on the basis of the statute, the insurer must first prove a misrepresentation. See Gatlin v. World Serv. Life Ins. Co., 616 S.W.2d 606, 608 (Tenn. 1981); Womack v. Blue Cross & Blue Shield, 593 S.W.2d 294, 295 (Tenn. 1980). Since Ed’s Imports committed no misrepresentation, the statute cannot be used by the insurer to void its separate contract with the loss payee. In essence, the statute provides to an insurer a defense of misrepresentation to a claim by the insured under an insurance contract, when properly pled and under the appropriate circumstances. See, e.g., National Union Fire Ins. v. F.D.I.C., 837 S.W.2d 373 (Tenn. 1992); Bland v. Allstate Ins. Co., 944 S.W.2d 372 (Tenn. App. 1996). We interpret the loss payable clause at issue as an assurance that the insurer will not assert the defense of the insured’s misrepresentation provided by Tenn. Code Ann. § 56-7-103 against the loss payee, unless the loss resulted from the insured’s conversion, secretion or embezzlement of the covered auto. It is undisputed that Mr. Nance did not convert, secrete or embezzle the insured automobile, therefore, under the terms of the loss payable clause, his conduct does not give the 18 insurance company the right to assert the defense of misrepresentation against the loss payee. IV. Granite State, through the language of its policy provisions, provided greater protections to the loss payee than it provided to the insured, and in so doing created a separate and independent contract between itself and Ed’s Imports. Based on the foregoing we interpret the language of the loss payable clause in the instant case to prohibit the insurance company from retroactively canceling the contract or rendering it invalid or void ab initio with respect to the loss payee. The case is remanded to the trial court for whatever further proceedings may be necessary. The costs of this appeal are hereby taxed to the appellant. _____________________________ PATRICIA J. COTTRELL, JUDGE CONCURS: ___________________________ BEN H. CANTRELL, P. J., M.S. DISSENTS IN SEPARATE OPINION: WILLIAM C. KOCH, JR., J. 19 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4319 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMIAH LAMAR TEAGUE, a/k/a Booper, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00022-RLV-CH-4) Submitted: July 29, 2010 Decided: August 12, 2010 Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Joseph R. Conte, LAW OFFICES OF J.R. CONTE, Washington, D.C., for Appellant. Edward R. Ryan, United States Attorney, Mark A. Jones, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeremiah Lamar Teague pled guilty to conspiracy to possess with intent to distribute cocaine powder and cocaine base (crack), 21 U.S.C. § 846 (2006) (Count 1), and possession of crack with intent to distribute, 21 U.S.C.A. § 841 (West Supp. 2010) (Counts 8-10). He was sentenced within the advisory guideline range to a term of 288 months imprisonment. Teague appeals his sentence, arguing that his sentence is procedurally and substantively unreasonable. We affirm. Teague participated in the conspiracy for eight years. Because he had a prior felony drug conviction, he was subject to a mandatory minimum sentence of 240 months. His guideline range was 235-293 months. At sentencing, Teague requested a downward variance to remedy the disparity between sentences for crack offenses and for cocaine powder offenses. The district court declined to vary. The court stated that it had considered the sentencing factors set out in 18 U.S.C. § 3553(a) (2006), the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and the sentencing guidelines. The court explained its sentence as follows: The court has found that the sentence is justified in terms of the [§] 3553(a) factors because of the need to reflect the seriousness of the offense. Defendant was involved in the conspiracy for a lengthy period of time. Further, to promote respect for the law and to provide just punishment. The other factors are taken 2  into account adequately by the guidelines. And his sentence is within the guideline range. The court finds that his record as scored by the probation officer does not overstate the seriousness of the criminal history. The guideline adjustment that has been applied by the probation officer sufficiently addresses any disparity between crack and powder. And the other factors fully justify the sentence imposed. On appeal, Teague argues that his sentence is procedurally unreasonable because the district court failed to consider the § 3553(a) factors adequately, and substantively unreasonable because it was greater than necessary in light of the crack/powder cocaine sentencing disparity. * We review a sentence for reasonableness under an abuse of discretion standard, Gall v. United States, 552 U.S. 38, 51 (2007), which requires consideration of both the procedural and substantive reasonableness of a sentence. Id. We must assess first whether the district court properly calculated the guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation must accompany every sentence”); United States v. * Teague also describes the sentence as cruel and unusual, but does not argue that it violates the Eighth Amendment. To the extent that the issue is before us, we discern no constitutional violation. 3 Carter, 564 F.3d 325, 330 (4th Cir. 2009). An extensive explanation is not required as long as the appellate court is satisfied “‘that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.’” United States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), petition for cert. filed, 78 U.S.L.W. 3764 (June 10, 2010) (No. 09-1512). Finally, we review the substantive reasonableness of the sentence, examining “the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). On appeal, with new counsel, Teague concedes that he was subject to a 240-month mandatory minimum sentence. He argues, however, that the district court’s “bare pronouncement” that it found the sentence justified under the § 3553(a) factors was insufficient to permit appellate review. We conclude that the court’s explanation for the sentence was adequate and did not amount to procedural error. The court specifically addressed several of the § 3553(a) factors, principally, the seriousness of the offense and the length of time Teague was involved in the conspiracy. The court expressed its belief that the sentence it had decided to impose would promote respect for 4 the law and provide a just punishment, and noted that the other factors were adequately taken into account in the guideline calculation. Teague does not identify any relevant factor that the district court failed to address nor does the record disclose any such factor. The claim of substantive error is similarly lacking in merit. Teague’s sentence was within the advisory guideline range. An appellate court “may presume that a sentence within the properly calculated Guideline range is reasonable.” United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). Although the defendant may rebut the presumption of reasonableness, Rita, 551 U.S. at 347, we conclude that Teague has not done so. Teague contends that, because his sentence is at the upper end of the guideline range, the district court failed to consider the need to avoid unwarranted sentencing disparity between a defendant like himself who is guilty of a crack offense and one who is guilty of a cocaine offense. See Kimbrough v. United States, 552 U.S. 85 (2007) (holding that sentencing court may consider crack/powder cocaine sentencing ratio as basis for variance). Teague asserts that, to avoid disparity, the district court should have sentenced him to the 240-month mandatory minimum sentence. However, in imposing the sentence, the court stated its view that the reduction in offense levels afforded by the 2007 amendments to the guidelines 5 for crack offenses was adequate to remedy the sentencing disparity. Kimbrough does not require the district court to go beyond the remedy that Congress has provided. We therefore affirm the sentence imposed by the district court. 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 6 

272 S.W.2d 136 (1954) Reuben T. CONNER, Appellant, v. William M. CHATMAN, Jr., et al., Appellees. No. 12749. Court of Civil Appeals of Texas, Galveston. October 7, 1954. Rehearing Denied October 28, 1954. *137 George Red and K. D. Keenan, Houston, for appellant. Blakeley & Williams and Carey Williams, Houston, for appellees. HAMBLEN, Chief Justice. This appeal is from an order of the County Court at Law of Harris County, sustaining a plea of privilege filed by the appellee, William M. Chatman, Jr., and transferring the cause of action against him to Galveston County, Texas. Appellant instituted the suit against appellee and against Ben Collette and Elton E. Wilhelm to recover damages alleged to have been sustained in an automobile collision which occurred on the 27th of December, 1953 on the Hempstead Highway, about 15 or 20 miles outside of Houston. Appellant alleged that at the time of the collision he was traveling toward the City of Houston when the automobile in front of him came to a stop. Appellant applied his brakes and came to a complete stop. "Instantaneously" thereafter his automobile was struck from the rear, forcing him into the automobile in front of him. His automobile then received a series of blows from the rear. Appellant alleged that the automobile which struck his automobile was driven by appellee, and that appellee's automobile was thereupon struck in the rear by automobiles driven by the other two named defendants, knocking appellee's automobile repeatedly into appellant's automobile, and causing the damages sued for. Appellant alleged that the collision, and resulting damages proximately resulted from the negligence of each of the defendants in four particulars, namely, in failing to keep a proper lookout, in failing to keep the vehicles under proper control, in failing to make timely application of the brakes, or in the alternative in failing to apply the brakes at all, and in following too closely in violation of Section 61(a) of Article 6701d, Vernon's Ann.Civ.St. The plea of privilege filed by appellee Chatman was controverted by appellant by timely affidavit alleging that the suit was based upon negligence of the appellee occurring *138 in Harris County, which constitutes an exception to exclusive venue in the county of one's residence within the meaning of Section 9a, Article 1995, Vernon's Annotated Civil Statutes of Texas, and further that the suit is against three defendants, two of whom are residents of Harris County, which constitutes an additional exception within the meaning of Section 4, Article 1995. Appellant presents two points of error, the first directed to the asserted error of the trial court in refusing to hold that appellant had established an exception to exclusive venue in the county of appellee's residence under the provisions of Section 9a, Article 1995, and the second, to the error of the trial court in refusing to hold that appellant had established an exception under the provisions of Section 4, Article 1995. This Court is of the opinion that upon the record here presented, both points presented by appellant must be overruled. Appellant's proof offered for the purpose of proving an exception to exclusive venue under Sec. 9a, Article 1995, was adduced from two witnesses. Appellant himself testified that he and his family were returning to Houston from a Christmas trip. That it was afternoon, the weather was bad, and the braking surface was bad; that traffic was very heavy and there were lots of quick stops. The automobile immediately preceding appellant's car came to a complete stop and appellant brought his car to a complete stop. Instantly thereafter his automobile received a series of blows from the rear, pushing it into the car in front of him. The witness, Marvin C. Horelica, testified that he was driving his automobile immediately to the rear of appellant, and about fifty feet from him. When appellant slowed down, Horelica likewise started to slow down. While doing so, he looked in his rear view mirror, and saw that the cars following him were not going to be able to stop. That thereupon appellee's automobile struck the rear of his (Horelica's) automobile, he then going into the ditch, and then appellee's automobile struck the rear of appellant's automobile, which had come to a complete stop. Horelica corroborated appellant concerning the condition of the highway and the visibility and traffic. He stated that he had been following appellant for some distance, and that appellee had been following him for some distance, at a speed of from 30 to 40 miles per hour. That the last time he saw appellee's automobile in his rear view mirror was immediately before the collision, after he had started slowing down, at which time appellee was about 20 feet behind him. Standing alone, appellant's testimony proves only that an accident happened, which the Commission of Appeals, speaking through Judge Smedley, under an almost identical state of facts has held is not evidence of negligence in cases where, as here, specific acts of negligence are alleged by the plaintiff. Rankin v. Nash-Texas Co., Tex.Com.App., 105 S.W. 2d 195 (opinion adopted by the Supreme Court). The testimony of the witness Horelica undoubtedly raised an issue of negligence. However, we are unable to say that the proof offered, although uncontradicted and undisputed, conclusively proves negligence as a matter of law, and that there is no support for the contrary findings of the trial court which must be presumed in favor of the judgment rendered. In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, the Commission of Appeals, in an opinion which was adopted by the Supreme Court, and again speaking through Judge Smedley, held that on the hearing of a plea of privilege the issue made is tried in the ordinary way, and the truth, as to the fact or facts in issue, is ascertained by the introduction and weighing of evidence offered by both parties, and that on appeal from a judgment sustaining or overruling a plea of privilege, the power of the Court of Civil Appeals in reviewing the fact findings made by the trial court is the same as it is in any other appealed case. Prior to its amendment effective 90 days after May 27, 1953, Section 9 of Article 1995 provided that a suit based upon a *139 crime, offense or trespass may be brought in the county where such crime, offense or trespass was committed. This Court has examined the cases cited by the litigants wherein Section 9 was involved. In several of the cases examined, judgments of trial courts sustaining a plea of privilege have been reversed by Courts of Civil Appeals. However, in each of the cases examined, the court was not confronted with the question of whether negligence had been proven as a matter of law, but rather with the question of whether the negligence proven was active negligence and therefore a trespass within the meaning of Section 9, before its amendment, or was, on the contrary, merely passive negligence, and therefore not a trespass. By the amendment to Section 9 above mentioned, and by the passage of Section 9a, which is here involved, that determination has been rendered unnecessary, for the reason that it is now required only that the suit be based upon negligence per se, negligence at common law, or any form of negligence, active or passive. Save and except only the case of the violation of a statutory duty, which was not here proven, we have been unable to find any case holding that any particular act or omission constitutes negligence as a matter of law. The Supreme Court of Texas, in the early case of Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227, 228, states the rule as follows: "According to the rule in this court, in order that an act shall be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it." In Texas & Pacific Railway Co. v. Hill, 71 Tex. 451, 9 S.W. 351, 353, the Supreme Court uses the following language: "We have been cited to no case where it has been held competent for the court to charge upon any particular combination of facts as constituting negligence, save when so declared by law. Courts have insisted upon the right in plain cases to exercise such prerogative, but it has been a barren right, and no exercise of it is know to us by our courts." Similar expressions may be found in numerous decisions by Texas courts. Ft. Worth & D. C. Ry. Co. v. Thompson, 2 Tex.Civ.App. 170, 21 S.W. 137; Texas & P. Railway Co., v. Murphy, 46 Tex. 356, 26 Am.Rep. 272; San Antonio & A. P. Ry. Co. v. Connell, 27 Tex.Civ.App. 533, 66 S.W. 246. While, as stated, appellant raised issues of negligence, the proof falls short of meeting the requirements of the rule as above stated, which alone would enable this Court to hold appellee negligent as a matter of law. The issues raised have been determined adversely to appellant by the trial court, and such determination is binding on this Court. Appellant's second point is overruled for the reason that appellant's proof fails to establish that one or more of the defendants sued was a resident of Harris County. The only proof offered by appellant upon this issue was testimony by appellant and by third persons of statements made by the other two defendants to the effect that they were residents of Harris County. This testimony was objected to by appellee on the ground that it was hearsay, and was, we feel, properly excluded by the trial court. The statements of the other defendants, concerning which the excluded testimony was offered, were made out of the presence of the appellee, and therefore hearsay. Appellant contends that even though it be hearsay, it was admissible to prove the intent on the part of the other defendants within the rule as stated in McCormick & Ray, Texas Law of Evidence, Sec. 405. However, according to the authority relied upon by appellant, the domicile of a person is that place in which his habitation is fixed, without any present intention of removing therefrom. Until proof is made of a person's place of habitation, his intent with respect thereto is probative of nothing. The record contains no competent evidence as to the place of habitation of either of the other defendants sued by appellee. The judgment is, accordingly, affirmed.

NO. 12-09-00002-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS DONALD W. INGLE, JR., § APPEAL FROM THE APPELLANT V. § JUSTICE COURT, PRECINCT #2 PROPERTY OFFICER SAMUEL, WAYNE WHITTEN, J. WISENER AND V. L. BRISHER, APPELLEES § ANDERSON COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Donald W. Ingle, Jr. attempts to appeal a judgment entered against him in the Justice Court, Precinct #2, Anderson County, Texas. We dismiss for want of jurisdiction. A court of appeals has appellate jurisdiction of all civil cases within its district of which the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs. TEX . GOV ’T CODE ANN . § 22.220(a) (Vernon 2004). Consequently, a justice court judgment cannot be appealed directly to the court of appeals. See id.; see also TEX . CIV . PRAC. & REM . CODE ANN . § 51.001 (Vernon 2008). On January 6, 2009, this court notified Ingle that because he attempts to appeal a judgment of the justice court, this court does not have jurisdiction of the appeal. Ingle was further informed that the appeal would be dismissed unless, on or before January 16, 2009, he filed an amended notice of appeal that showed the jurisdiction of this court. In response to the January 16, 2009 notice, Ingle filed “Plaintiff’s Amended Notice of Appeal Pursuant to Tex. Rule of Appellate Procedure 38.7,” stating that he is invoking this court’s jurisdiction for a restricted appeal. He further requested that this appeal be transferred to the county court if this court does not have jurisdiction of the appeal.  Even though Ingle seeks to pursue a restricted appeal, we are without jurisdiction because the appeal is from a justice court judgment. See TEX . GOV ’T CODE ANN . § 22.220(a). Moreover, we have no authority to transfer the appeal to the county court. Accordingly, the appeal is dismissed for want of jurisdiction. Opinion delivered January 21, 2009. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH) 2 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-08-353-CR JORGE CABELLO ARENAS APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY ------------ MEMORANDUM OPINION (footnote: 1) ------------ After waiving a jury and entering an open plea of guilty, appellant Jorge Cabello Arenas appeals his conviction and ten-year sentence for possession of less than one gram of cocaine.  We affirm.    Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  In the brief, counsel avers that, in her professional opinion, the appeal is frivolous.  Counsel’s brief and motion meet the requirements of Anders v. California (footnote: 2) by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.  We gave appellant the opportunity to file a pro se brief, and he has filed one.  The State has not filed a brief. Once an appellant’s court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders , this court is obligated to undertake an independent examination of the record. (footnote: 3)  Only then may we grant counsel’s motion to withdraw. (footnote: 4) There is no reporter’s record in this case.  We have carefully reviewed the clerk’s record, counsel’s brief, and appellant’s pro se brief.  We agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that might arguably support the appeal. (footnote: 5)  Accordingly, we grant counsel’s motion to withdraw and affirm the trial court’s judgment.   PER CURIAM PANEL:  CAYCE, C.J.; WALKER and MCCOY, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED:  November 19, 2009 FOOTNOTES 1:See Tex. R. App. P. 47.4. 2:386 U.S. 738, 87 S. Ct. 1396 (1967) . 3:See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). 4:See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). 5:See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

722 F.2d 1324 114 L.R.R.M. (BNA) 3569, 99 Lab.Cas. P 10,602 STOKELY-VAN CAMP, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 82-1131. United States Court of Appeals,Seventh Circuit. Argued Oct. 21, 1983.Decided Nov. 30, 1983. Herbert C. Snyder, Jr., Barnes & Thornburg, Indianapolis, Ind., for petitioner. Susan Williams, Elliott Moore, N.L.R.B., Washington, D.C., for respondent. Before PELL, BAUER and FLAUM, Circuit Judges. FLAUM, Circuit Judge. 1 Petitioner Stokely-Van Camp, Inc. (Stokely, or the Company) seeks review of an order of the National Labor Relations Board (Board), 259 N.L.R.B. No. 128 (1982), which found that Stokely had violated sections 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 151-169, by postponing vacations scheduled to begin during a strike. The Board cross-petitions for enforcement of its order. For the reasons set forth below, the Company's petition for review is granted, and the Board's petition for enforcement is denied.I. 2 Stokely operates a food processing plant and a can manufacturing plant in Indianapolis. The United Steelworkers of America, Local No. 1473 (the Union) is, and has been since 1971, the exclusive bargaining representative of the hourly-paid production, maintenance, and warehouse employees at the two plants. 3 The 1977-80 collective bargaining agreement expired on Friday, June 6, 1980. At a negotiating session on June 4th, the Union announced that an economic strike would begin at both plants at midnight on June 6th. Sometime on June 4th, James Spurgeon, Stokely's labor relations manager and chief negotiator, decided that all vacations scheduled to begin on or after June 9th would be rescheduled to be taken after the strike ended.1 The Union was not notified of this decision, and individual workers learned of it only when they attempted to pick up advance vacation checks on June 6th. The strike was a violent one, and continued until August 25, 1980. No union members crossed the picket line, but supervisory personnel maintained some production during the strike. After the strike, all employees who had vacations scheduled to be taken during the strike period had an opportunity to reschedule their vacations.2 They were paid for those vacations at the higher rate in effect under the new contract. Seventeen processing plant employees and sixty-five can plant employees were affected by the rescheduling policy, having received approval prior to June 4th for vacations due to begin between June 9th and August 25th. Amounts of one to four weeks vacation time (depending on the employee's length of service) were involved for each. 4 On June 12, 1980, Earl Martin, a can plant employee who had been scheduled for two weeks vacation beginning June 9th, filed an unfair labor practice charge with the Board alleging that he and other employees had been discriminated against by Stokely's vacation rescheduling policy.3 Martin apparently acted on his own initiative without discussing the charge with the Union. The Union never demanded vacation pay during the strike. The Board's Regional Director issued a complaint on July 18, 1980, charging Stokely with violation of sections 8(a)(1) and (3) of the National Labor Relations Act (the Act).4 5 As part of the strike settlement negotiated on August 21-22, 1980, the Union insisted on an amnesty clause. The Union agreed to have Mr. Martin withdraw his charge,5 and to withdraw the Union's own charge against Stokely of bargaining in bad faith. In return, Stokely agreed to dismiss a state court injunction against the strike violence, and its charge against the Union of bargaining in bad faith. The Union negotiator also asked for and received Spurgeon's assurance that all affected employees' vacations would be rescheduled. Both Stokely and the Union complied with these conditions. 6 Mr. Martin, however, was not amenable to withdrawing his charge. After the strike he twice telephoned Spurgeon and said that he would drop his charge as soon as he received all his vacation pay. In December, 1980, Spurgeon called Martin to ask why the charge had still not been withdrawn, and Martin said he had tried but "those people wouldn't let me."6 This conversation ended with Martin's promise to discuss the matter with his union representative, but he never did so. II. 7 The case was tried before an administrative law judge (ALJ) on February 9, 1981. Mr. Spurgeon testified at the hearing that he had had three reasons for deciding on June 4th to reschedule vacations. First, he believed that the company had a contractual right to do so. Under the management rights and vacation clauses of the collective bargaining agreement, management had the right to control the production schedule, and to reschedule vacations as necessary without the consent of the Union (or, for that matter, of the affected worker). Spurgeon testified that all workers who chose not to join the strike would have been called to work. Second, strike vacation rescheduling was in accord with past policy. During a 1974 strike, employees had been given the option of paid vacation during the strike with unpaid time off afterwards, or a paid vacation after the strike. Before a threatened 1977 strike, a notice had been posted stating that all vacations would be rescheduled in the event of a strike. Spurgeon also testified that during a strike at another Stokely plant, with employees represented by the same union, the same policy of rescheduling strike period vacations had been followed. There had been no legal challenge to Stokely's policies in any of these cases, and no individual grievance over vacation rescheduling had been taken as far as arbitration. Third, Stokely took the position that a vacation meant time off from work, and that employees could not be scheduled for time off from work if they were not working. This view is consistent with the employee's contractual right to paid time off but not to vacation pay per se. The ALJ completely credited Mr. Spurgeon's testimony, and his statements about the contract and about past practice were supported by documentary evidence. 8 The ALJ also rejected the General Counsel's proffered evidence of antiunion animus. The General Counsel relied solely on two remarks made by supervisory personnel. First, on June 6th, Martin asked his plant superintendent why his vacation check was not forthcoming. According to Martin, the supervisor replied that "it was the Union's fault, because during negotiations, they had expressed the desire to go out on strike if the contract hadn't been settled by midnight." Second, a week later another employee asked the employee relations manager why he did not receive a check for his June 16th vacation, and was told that vacation checks were canceled because "you couldn't be on vacation and on a strike at the same time." The ALJ found that neither comment evidenced hostility towards the Union. Rather, both were accurate statements of the supervisors' understanding of Stokely's view of vacation time. In his decision issued May 26, 1981, the ALJ concluded that no unfair labor practice had been committed, and recommended that the complaint be dismissed. 9 The General Counsel filed exceptions to the ALJ's recommendation, and the Board ultimately rejected the ALJ's decision, finding that Stokely had been motivated by antiunion animus, and that the Company's reasons for rescheduling the vacations were therefore pretextual. The Board concluded that the vacation rescheduling constituted "denial of earned vacations and vacation pay" in violation of sections 8(a)(1) and (3), and also amounted to "unilaterally changing the terms and conditions of employment respecting vacation pay and vacations" in violation of 8(a)(5). The Board ordered Stokely to pay to the eighty-two employees whose vacations had been rescheduled the amount of pay they would have received in the absence of rescheduling in addition to whatever paid vacation they had received after August 25th.7 The Board also ordered Stokely to "cease and desist from ... unilaterally cancelling scheduled vacations and requiring that all vacations be rescheduled, without notice to or consultation with the Union." 10 On appeal, Stokely argues that the ALJ was correct in finding that the Company had legitimate business reasons for rescheduling the vacations and that there was no evidence of antiunion animus. Stokely further argues that the Board's remedy is inappropriate even if this court sustains the violations. The back pay order would unjustly penalize the Company, which agreed to reschedule vacations as a condition of ending the strike, and employees who had already taken paid vacations after the strike would be unjustly enriched. The Board frames the issue on appeal as "whether the Company violated sections 8(a)(1), (3) and (5) of the Act by unilaterally withholding accrued vacation pay from striking employees and rescheduling their vacations to retaliate against the Union and discourage employees from engaging in a lawful strike." III. 11 On review of an administrative order, the Board's order must be affirmed if "supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(f). "[T]he meaning of 'on the record as a whole' encompasses not only testimony of witnesses and the Board's findings and order but also the report of the trial examiner." NLRB v. Wisconsin Aluminum Foundry Co., 440 F.2d 393, 398 (7th Cir.1971). While we may not displace the Board's choice between two fairly conflicting views, neither are we barred from "setting aside a Board decision when [we] cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of the evidence opposed to the Board's view." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); Roper Corp. v. NLRB, 712 F.2d 306, 310 (7th Cir.1983).8A. The Section 8(a)(1) and (3) Charges. 12 Under section 8(a)(1), it is unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act." Section 7 guarantees employees the right to "engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." Under section 8(a)(3), it is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any other term or condition of employment to encourage or discourage membership in any labor organization...." The section 8(a)(3) prohibition encompasses discouraging participation in legitimate strikes. NLRB v. Erie Resistor Corp., 373 U.S. 221, 233, 83 S.Ct. 1139, 1148, 10 L.Ed.2d 308 (1963). 13 The principles governing 8(a)(3) cases were summarized by the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34, 87 S.Ct. 1792, 1797-98, 18 L.Ed.2d 1027 (1967). Proof of antiunion animus may render unlawful employer conduct which would otherwise be lawful. Some conduct, however, is so "inherently destructive" of employee interests that it may be proscribed without proof of an underlying improper motive. For conduct in this category, the employer bears the burden of explaining his actions as something other than they appear on their face. If the complained of conduct results in "comparatively slight" harm to employees, and the employer has shown a substantial business reason for his actions, his conduct is prima facie lawful, and an affirmative showing of improper motivation is required before an unfair labor practice is established. 14 In this case, the Board concluded that the two supervisors' remarks about the impossibility of being on strike and on vacation at the same time, remarks that were never adopted by the Company, proved antiunion motivation. The Board therefore concluded that Spurgeon's business justifications for his actions were pretextual, and found it unnecessary to consider whether Stokely's conduct would have violated 8(a)(3) absent proof of antiunion animus. 15 We accordingly consider first the Board's finding of antiunion animus. We note at the outset that the Board cites, and we find, absolutely no evidence in the record of hostility toward the Union aside from the two supervisors' remarks. At oral argument, counsel for the Board agreed that there was no other evidence. Because it is the employer's speech that is at issue we must decide whether the remarks are protected by the First Amendment, or are impermissibly coercive within the meaning of section 8(c) of the Act which provides that: "The expressing of any views, argument, or opinion ... shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefits." 29 U.S.C. Sec. 158(c). This court has held that "the inference of unlawful motive is not to be lightly drawn, and must be based upon substantial evidence in the record and not on conjecture." G & H Products, Inc. v. NLRB, 714 F.2d 1397, 1401 (7th Cir.1983) (supervisor's query about employee's intent to join illegal strike held not coercive). 16 In two recent cases, Roper Corp. v. NLRB, 712 F.2d 306 (7th Cir.1983), and Gossen Company v. NLRB, 719 F.2d 1354 (7th Cir.1983), this circuit has had occasion to consider the scope of an employer's First Amendment rights. In Roper, a supervisor explaining why the company could not grant merit pay reviews during negotiations with the new union told employees that they "had a beautiful deal" which they "blew" when they voted for the union. Because the comments came after the union had won the election, and contained no threat of reprisal, or any promise of benefit should the employees repudiate the union, the court refused to find a section 8(a)(1) violation. An employer's statement is "only subject to sanctions when it is demonstrated to be coercive...." 712 F.2d at 311. In Gossen the court rejected the Board's conclusion that the employer had violated 8(a)(1) by asking an employee, a declared union supporter, what employees expected to gain from the union. While the supervisor certainly conveyed the "employer's displeasure with union activity," in the absence of any threat, there was nothing objectionable about remarks made in a "free flow" of "casual" conversation between workers and supervisors. 719 F.2d at 1358-1359. 17 The Stokely supervisors' remarks were made in informal conversations after the Union announced the strike, and conveyed neither a threat nor a promise of benefit should the employees return to work. Compare NLRB v. The Industrial Erectors, Inc., 712 F.2d 1131 (7th Cir.1983) (threat to withhold wage increases and benefits should the organizing campaign proceed). As the court succinctly put it in Roper, 712 F.2d at 311, "an employer is not required either to say something nice or say nothing at all about a union." An employer need not pretend that he is either pleased by or indifferent to a union's decision to strike. We accordingly find that the Board's finding of antiunion motivation is not supported by substantial evidence. 18 We do not consider it necessary to remand the case to the Board for a determination whether under Great Dane, Stokely's conduct was "inherently destructive" of employee rights even in the absence of antiunion animus. In Great Dane and Erie Resistor, the companies rewarded employees who abandoned the strike and penalized those who continued striking. See also NLRB v. Westinghouse Elec. Corp., 603 F.2d 610 (7th Cir.1979), enforcing 237 N.L.R.B. No. 191 (1978) (company rewarded returning strikers with paid vacation time to which they were not entitled under the collective bargaining agreement). There is no such discrimination here. The rescheduling policy was simply announced as fact to employees who asked for their vacation checks. The company offered no inducement for individual workers to break ranks and return to work. Mr. Spurgeon's uncontroverted testimony is that no vacations at all would have been allowed during the strike; all nonstrikers would have been required to work. Neither does Stokely's policy tend to discourage participation in concerted activity in some general way rather than by discrimination against individuals who strike. See NLRB v. Borden, Inc., 600 F.2d 313, 320 (1st Cir.1979) (unequal treatment of different classes of employees not necessary to a finding of an 8(a)(3) violation). Vacation rescheduling was not raised as a threat prior to the strike, although the Union must have assumed that the Company would follow past strike policy. Thus it could have had no effect on the Union's decision to call the strike. The policy may have provided some general incentive to end the strike, but the loss in pay is always a cost that a union must balance against the gain anticipated to result from a strike. 19 The Board is also simply factually inaccurate in characterizing Stokely's actions as "cancelling" vacations. The vacations were rescheduled, not cancelled. Under the collective bargaining agreement, each employee was entitled to a certain number of weeks off with pay to be taken some time during the year following the anniversary of his date of hire. This is precisely what the employees did receive under the strike settlement, although the vacation time was taken after rather than before August 25, 1980. The only thing "lost" was the opportunity to receive wages for work performed for all weeks after August 25th, which opportunity supposedly would have arisen if vacations had been paid during the strike. Loss of work time and wages is, however, a normal concommitant of a strike. It is also inaccurate to speak of "withholding accrued vacation pay." The collective bargaining agreement does not provide for vacation pay in lieu of vacations. On an employee's anniversary date, he accrues not a right to a certain sum of money, but a right to submit a request which will be considered in light of seniority and production needs for particular vacation time slots during the succeeding year. 20 Even if, under Great Dane, we agree that there was some "comparatively slight" harm to Union members,9 we conclude that Stokely has shown substantial business reasons for its decision. The ALJ credited Mr. Spurgeon's testimony, and the Board explicitly adopted this credibility determination, that the Company wanted to maintain production, and that any large or small group of workers who chose not to strike would have been called to work.10 Mr. Spurgeon also testified that he relied on the contract in concluding that Stokely was entitled to reschedule the vacations. The Board concluded that the contract did not permit mass reschedulings. We think that the Board overstepped its authority in substituting its interpretation of the contract for Stokely's. The Board must determine not whether the Company was correct in its interpretation, but whether it was motivated by its reliance on the contract rather than by antiunion animus. See Vesuvius Crucible Company v. NLRB, 668 F.2d 162, 167 (3rd Cir.1981), denying enforcement to 252 N.L.R.B. No. 179 (1980); NLRB v. Borden, Inc., 600 F.2d 313, 321 (1st Cir.1979). 21 We therefore conclude that the Board's finding of a section 8(a)(3) violation is not supported by substantial evidence. In view of this holding, we need not consider whether the remedy would have been appropriate if a violation were sustained. 22 B. The Section 8(a)(5) Charge. 23 As a preliminary matter we must consider whether the Board properly issued an order under section 8(a)(5) when the matter was not included in the original complaint, the complaint was never amended to reflect this charge, and Stokely was first notified of the charge via the General Counsel's post trial brief filed with the ALJ. In light of our recent holding in NLRB v. Complas Industries, Inc., 714 F.2d 729 (7th Cir.1983) (complaint amended in the midst of the hearing before the ALJ), we would have to conclude that a late amendment in this case would have been proper; the 8(a)(5) charge grew out of the same transaction as the 8(a)(3) charge. However, we conclude that there was a clear violation of Stokely's due process rights. The Company was not informed of the charge in time to prepare a defense for the hearing. Nevertheless, because the General Counsel is apparently satisfied with the evidence as presented, we shall consider whether the Board's finding--based on the evidence adduced and such defense as the Company happened to mount--is supported by substantial evidence.11 There is no need for a remand to enable the Company to marshall its defense unless the Board's finding would stand on the record before us now. 24 Under section 8(a)(5) it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." This section has been interpreted to require bargaining over a change in working conditions, and notice adequate to permit effective bargaining. The Board found that by rescheduling vacations for an entire group of workers without giving the Union notice and an opportunity to bargain over this purported change in working conditions, Stokely violated section 8(a)(5). Quite aside from the impracticality of expecting bargaining over Stokely's necessarily quick response to the imminent strike, which was itself the result of a bargaining impasse, we see no evidence, substantial or otherwise, to support this charge. The Board's holding ignores both the management rights and vacation clauses of the contract and evidence of past practice during strikes, which itself would suggest that there has been no change in working conditions. The holding seems to be predicated entirely on a wholesale-retail distinction whereby the Company may reschedule individual workers but not groups. There is no support for this distinction in the collective bargaining agreement. Further, the Union's attempt during the 1980 bargaining to gain some control over vacation rescheduling (see n. 11 supra ) indicates that the Union interpreted the old contract as leaving vacation scheduling largely to the discretion of management. In the absence of a change in working conditions, the Company is under no obligation to bargain pursuant to 8(a)(5). Further, the Board's "cease and desist" order would only give the Union, through an unfair labor practice proceeding, that which it did not succeed in obtaining at the negotiating table. That is impermissible. Ace Beverage Co., 253 N.L.R.B. No. 124 (1980). IV. 25 Finally, we cannot help but observe that Mr. Martin has long since left Stokely's employ, and that the Union and Stokely amicably settled their differences in August of 1980. This case has taken the complaint of one disgruntled (ex)employee, and has prolonged a dispute that could have been laid to rest many months ago. 26 For all the foregoing reasons, the petition for review is GRANTED and the application for enforcement is DENIED. 1 A paid vacation is earned in the anniversary year preceding that in which it is taken; it must be taken at some time during the year, but the timing is largely at the employee's option with the consent of management. Vacation times must be requested and approved two weeks in advance. Under the contract, the Union has no role in vacation scheduling, and management can reschedule vacations at any time as necessitated by production needs. Vacations traditionally begin on Monday, and are taken in whole week increments. A check for the entire vacation period is distributed to the employee on the payday immediately preceding the vacation. There is no provision in the collective bargaining agreement for vacation pay in lieu of time actually taken off on vacation 2 Some employees were erroneously given their advance vacation pay on June 6th. The employee relations manager at the processing plant interpreted Spurgeon's June 4th instruction about rescheduling vacations to mean that although no new vacation checks were to be processed, those already written were to be distributed on schedule. Accordingly, the 19 employees scheduled for vacations beginning June 9th who came in on June 6th to collect their vacation checks were given them. These individuals of course did not need to have vacations rescheduled after the strike 3 During the strike Martin decided to accept employment with a life insurance company, and became a paid agent on August 18, 1980. When the strike ended August 25th, Martin requested the two weeks vacation originally scheduled to begin during the strike. After this vacation, he requested and received one week sick leave. He then requested and received an additional three weeks paid vacation (to which he was presumably entitled, although for reasons that do not appear in the record). Having exhausted his vacation entitlement, Martin announced his resignation in early October. He is no longer a member of the Union. Mr. Martin clearly has no interest in the outcome of this proceeding 4 Section 8(a)(5) was not cited in the complaint, and was first raised by the General Counsel in briefs filed with the Administrative Law Judge after the hearing on the complaint 5 Since Martin had filed an individual charge, he, not the Union, had the authority to withdraw it. The Union's international representative testified that as bargaining chairman he thought he had the exclusive right to bargain on behalf of all employees and could therefore promise that Martin would withdraw his charge. At the August 21 negotiating session, the union president similarly thought there would be no problem and was sure Martin would withdraw the charge. The Stokely negotiator, Spurgeon, testified that he assumed the Union was able to make a promise on Martin's behalf, and that he relied on that promise in concluding the negotiations 6 The Regional Director has to approve requests for withdrawal, and approval is not automatic when the complaint is on behalf of others as well as the individual complainant. At the hearing Martin testified that he in fact never attempted to withdraw his charge, and that no one at the NLRB had refused to allow withdrawal 7 Employees who had the good fortune to request a strike period vacation as late as mid-May (when the strike was anticipated) would thus be in a better position than those who had planned to take vacations before June 6th or after August 25th, or had not requested summer vacations far enough in advance. The Board has not suggested that employees who had not requested, or were not entitled to request, vacations until after June 4th should have been able to submit a request after the strike began for a strike period vacation. Under Stokely's policy, all employees were, at least in theory, treated equally, receiving no strike period pay, and full pay for some combination of work and vacation for the periods before June 6th and after August 25th. The loose ends, of course, are the 19 vacation checks erroneously distributed on June 6th, and the checks distributed May 16, 23 and 30 for vacations extending into the strike period. Neither the Board nor the Company has suggested that employees thus paid for strike period vacations be required to take time off without pay after August 25th 8 We have previously observed that a special problem of administrative review arises when the Board rejects the findings and conclusions of the ALJ. See NLRB v. Maryland One-Way Clutch Co., Inc., 520 F.2d 856, 865 (7th Cir.1975). As the Supreme Court concluded in Universal Camera, supra, 340 U.S. at 496, 71 S.Ct. at 469, while the "substantial evidence" test is not modified under these circumstances, the evidence supporting the Board's conclusion may be viewed as "less substantial." The ALJ's decision should be given the weight it intrinsically demands, and that will depend in part on the importance of his credibility determinations in a particular case. We are mindful of the distinction recently discussed in Kopack v. NLRB, 668 F.2d 946 (7th Cir.1982), between the ALJ's "testimonial inferences" and "derivative inferences." Only the former depend on the ALJ's observations of witness demeanor. In this case the Board explicitly accepted the ALJ's credibility determinations, but rejected his legal conclusions 9 The eighty-two individuals at issue were indeed less well off than they would have been had they received vacation pay during the strike, and wages for full time work for all the weeks after August 25th 10 The Board argues that this testimony is irrelevant because in fact all employees stayed out on strike, and further suggests that the Company should have begun paying strike period vacations once it became apparent that no workers were crossing the picket lines. The relevant point, however, is not what Union members did after Stokely's June 4th decision, but what motivated the Company's decision. Besides, we have no way of knowing how many employees would have chosen to work in the absence of the union violence 11 Counsel for the General Counsel argued in the post trial brief filed with the ALJ that the 8(a)(5) charge could properly be considered because it was fully litigated. However, the only transcript pages cited in support of this assertion merely show that the Company did not notify the Union of its vacation rescheduling decision--a matter never in dispute. At the hearing before the ALJ, Stokely did attempt to introduce evidence that during the 1980 strike settlement negotiations, the Union sought to have vacations made irrevocable within 60 days of the scheduled starting date, but was unsuccessful. Based on the General Counsel's argument that this evidence was irrelevant to a hearing on 8(a)(1) and (3) violations, this evidence was not admitted. In retrospect, this evidence became quite relevant to the 8(a)(5) charge, and the ALJ properly allowed Stokely to amend the record to reflect this evidence

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 20, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-20151 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BARNEY JOE DONALSON, JR., also known as Damon Downs, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-93-CR-27-ALL -------------------- Before JONES, WIENER, and BENAVIDES, Circuit Judges. PER CURIAM:* Barney Joe Donalson, Jr., a/k/a Damon Downs, (“Donalson”), Texas prisoner # 423754, appeals the district court’s denial of his FED. R. CRIM. P. 36 motion to correct his judgment of conviction for clerical error. In June 1995, this court sanctioned Donalson, who then used the name Damon Henry Downs, stating: * 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. 03-20151 -2- Downs may file no initial pleading in this court or in any court subject to the jurisdiction of this court, except with the advance written permission of a judge of the forum court. Before filing any appeal or other action in this court, Downs shall submit to the clerk of this court a request for permission to file, together with the document that he proposes to file, which the clerk shall direct to an active judge of this court. In requesting the required permission in this court or in any court in this circuit, Downs shall inform the court of the bar stated herein. In re Downs, No. 95-50282 (5th Cir. June 27, 1995) (unpublished). Donalson did not seek the permission specified in the foregoing opinion prior to filing the appeal of the district court’s order. Accordingly, we dismiss the instant appeal as having been filed improvidently. APPEAL DISMISSED. 

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ GRADY W. RENVILLE, Petitioner v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent ______________________ 2015-3193 ______________________ Petition for review of the Merit Systems Protection Board in No. DE-0752-14-0309-I-1. ______________________ Decided: November 9, 2015 ______________________ GRADY W. RENVILLE, Albuquerque, NM, pro se. ERIC JOHN SINGLEY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, DOUGLAS K. MICKLE; JAMES M. CRIBARI, Office of General Counsel, United States Department of Health and Human Ser- vices. ______________________ 2 RENVILLE v. HHS Before LOURIE, HUGHES, and STOLL, Circuit Judges. PER CURIAM. Mr. Renville appeals a final decision of the Merit Sys- tems Protection Board (“Board”). Because the Board properly dismissed Mr. Renville’s claims, we affirm. BACKGROUND I. Mr. Renville worked as a Community Health Director for the Indian Health Service, an operating division within the U.S. Department of Health and Human Ser- vices (“HHS”). In October 1996, HHS suspended Mr. Renville for forty days for misuse of a government vehicle, misuse of official time, and demonstrating behav- ior unbecoming of a government official. The following month, Mr. Renville timely appealed his suspension to the Board. In January 1997, HHS removed Mr. Renville from his position and from the Federal service altogether. HHS claimed Mr. Renville failed to adequately perform the budgetary duties of the Community Health Director. Mr. Renville timely appealed again. Before a hearing occurred, Mr. Renville and HHS set- tled their dispute. Under the settlement, Mr. Renville agreed to voluntarily retire from the Federal service, to not reapply for employment with the Indian Health Service in the Aberdeen Area Office, and to withdraw his appeals before the Board. In exchange, HHS issued Mr. Renville back pay, eliminated the suspension and removal actions from his record, provided him with a letter of recommendation, and paid his attorney’s fees. The Administrative Judge dismissed Mr. Renville’s appeals after finding that the parties negotiated in good faith, entered into the agreement freely, and understood the terms by which they were bound. The dismissal order RENVILLE v. HHS 3 indicated that, absent a petition for review, it would become final on April 25, 1997. Neither party petitioned for review, causing the dismissal order to become final. II. Seventeen years later in 2014, Mr. Renville filed a new appeal with the Board challenging the same removal action underlying the appeals he settled with HHS. While raising many of the same arguments that he raised in his earlier appeals, Mr. Renville also lodged several new allegations, including that (1) his separation from the Federal service violated the Uniformed Services Employ- ment and Reemployment Rights Act of 1994 (“USERRA”); (2) his separation violated the Veterans Employment Opportunities Act of 1998 (“VEOA”); and (3) his retire- ment under the settlement agreement was involuntary. The Board dismissed Mr. Renville’s appeal for lack of jurisdiction. The Board determined that collateral estop- pel precluded Mr. Renville from re-litigating the claims he brought in his 1997 appeals and that res judicata pre- cluded his USERRA claim. The Board also determined that Mr. Renville could not properly bring a VEOA claim, as that statute did not exist when he separated from the Federal service. Finally, the Board determined that a new appeal was not the proper mechanism to contest the validity of the settlement agreement. Mr. Renville timely appealed and we have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION We review decisions of the Board on a limited basis, setting aside Board actions, findings, or conclusions only if we find them to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Whether the 4 RENVILLE v. HHS Board had jurisdiction over Mr. Renville’s claims and whether the Board properly precluded his claims are questions of law that this court reviews de novo. Whiteman v. Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012); Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir. 2008). We agree with the Board that Mr. Renville’s claims regarding his separation are precluded by law, but we believe the more fitting preclusion doctrine in this in- stance is res judicata, rather than collateral estoppel as applied by the Board. See, e.g., Ford-Clifton v. Dep’t of Veterans Affairs, 661 F.3d 655, 660-61 (Fed. Cir. 2011) (rejecting use of law of the case doctrine to afford a prior settlement agreement preclusive effect and relying in- stead on res judicata). Res judicata precludes a party from asserting claims raised in an earlier action that reached a decision when: “(1) the prior decision was rendered by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases.” Carson v. Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). The factors of this test are met here. It is undisputed that the Board had jurisdiction over the 1997 appeals that Mr. Renville filed regarding the suspension and removal actions by HHS. Further, the settlement agreement and the subsequent dismissal by the Board resulted in a final decision on the merits. See Ford-Clifton, 661 F.3d at 660 (“It is widely agreed that an earlier dismissal based on a settlement agreement constitutes a final judgment on the merits in a res judicata analysis.”). Finally, Mr. Renville raises the same cause of action—improper separation from the Federal service—as he did in his 1997 appeals. Therefore, we affirm the Board’s conclusion that Mr. Renville was precluded from re-litigating his separa- RENVILLE v. HHS 5 tion from the Federal service and, as a result, the Board lacked jurisdiction to adjudicate those claims. Mr. Renville’s claim under USERRA is also barred under the doctrine of res judicata. Res judicata serves to limit not only claims that a party actually raised, but also claims that the party could have raised in an earlier action arising from the same transaction or occurrence. See Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (“Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit.”). Because Mr. Renville’s USERRA claim relates to the same transactional facts—his separation from the Federal service—which were resolved by the settlement agreement, the Board was correct in dismiss- ing the claim on res judicata grounds. As for Mr. Renville’s VEOA claim, the timing of his separation from the Federal service prevents him from recovering under that statute. Congress enacted the VEOA on October 31, 1998. Veterans Employment Op- portunities Act of 1998, Pub. L. No. 105–339, 112 Stat. 3182. We have made it clear that the VEOA has no retroactive effect. Lapuh v. Merit Sys. Prot. Bd., 284 F.3d 1277, 1282 (Fed. Cir. 2002) (holding that the VEOA “does not confer jurisdiction on the Board to adjudicate claims of violation of veterans’ preferences when the alleged violative acts occurred before the effective date of the Act”). As the events forming the basis of Mr. Renville’s VEOA claim occurred at least eighteen months before enactment of the VEOA, he has no VEOA claim to bring. Therefore, we agree with the Board’s determination of no jurisdiction. Finally, Mr. Renville argues that his 1997 settlement agreement with HHS is invalid because its terms are 6 RENVILLE v. HHS contrary to law and because HHS induced him to enter it using duress, undue influence, and fraud. The validity of the 1997 settlement agreement is not properly before us. The Administrative Judge who dismissed Mr. Renville’s 1997 appeals found that the parties had “freely accept[ed] the terms of the agreement.” Attacks going to the validity of settlements found by the Board to be voluntary may only be brought through a petition for review of the Board order entering the settlement. See Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998) (“[T]he Board only entertains allegations that a settle- ment agreement is invalid in a petition for review.”). Thus, a new appeal filed seventeen years later, as Mr. Renville filed here, is not the correct vehicle for attacking the validity of his settlement agreement with HHS. CONCLUSION For the reasons stated above, we affirm. AFFIRMED COSTS No costs. 

224 P.3d 650 (2009) 2009-NMCERT-009 STATE v. RUDY B. No. 31,909 (COA 27,589). Supreme Court of New Mexico. September 15, 2009. Writ Granted.

339 So.2d 66 (1976) Fred JETT, father of his deceased son, Richard Dale Jett v. HONDA MOTOR COMPANY, LTD., et al. SC 1809. Supreme Court of Alabama. October 29, 1976. Rehearing Denied November 24, 1976. John T. Roach, Jr., Birmingham, for appellant. Reid B. Barnes and John B. Gamble, Jr., Birmingham, for Honda Motor Co., Ltd. and American Honda Motor Co., Inc. Roy W. Scholl, Jr., Birmingham, for Tom and Sarge Cycle, Inc. BLOODWORTH, Justice. Plaintiff appeals from dismissal of a wrongful death action for failure to state a claim upon which relief can be granted. Rule 12(b)(6), ARCP. The complaint sought relief on the basis of "strict liability in tort," a theory not recognized in any form in Alabama at the time of the dismissal. Defendants are the manufacturer, the distributor, and the seller of the motorcycle on which plaintiff's intestate was riding when he was killed. We reverse and remand for reconsideration in light of our decisions in Casrell v. Altec Industries, Inc., Ala., 335 So.2d 128 (1976), and Atkins v. American Motors Corp., Ala., 335 So.2d 134 (1976). See Sherman Concrete Pipe Machinery, Inc. v. Gadsden Pipe Co., Ala., 335 So.2d 125 (1976). Defendants contend that plaintiff's complaint is insufficient even in view of Casrell and Atkins. We do not rule on this contention because plaintiff drafted his complaint prior to our adoption of the "Alabama Extended Manufacturers' Liability Doctrine" in Casrell and Atkins. REVERSED AND REMANDED. HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.

536 F.Supp. 586 (1982) John Brett ALLEN, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents. Leon ROBINSON, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents. Civ. A. Nos. 81-K-1863, 81-K-2020. United States District Court, D. Colorado. April 6, 1982. *587 *588 *589 Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., for Robinson in No. 81-K-2020. Scott H. Robinson, Gerash & Robinson, Denver, Colo., for Allen, in No. 81-K-1863. Charles Torres, Asst. U. S. Atty., Denver, Colo., for respondents in No. 81-K-2020. Phil Miller, Asst. U. S. Atty., Denver, Colo., for respondents in No. 81-K-1863. MEMORANDUM OPINION AND ORDER KANE, District Judge. The petitioners in these two cases each filed petitions for writs of habeas corpus under 28 U.S.C. § 2241. They challenge the defendants' decisions denying them parole. Pursuant to Local Rule 17(f), I referred each case to Magistrate Donald E. Abram, who held hearings and made recommendations. I then held a hearing in each case to hear the petitioner's objections to the magistrate's recommendation. Because the two cases involve many of the same issues, I will consider both in this opinion. I. BACKGROUND In Greenholz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-2105, 60 L.Ed.2d 668 (1979), the U. S. Supreme Court considered a state parole system. The court noted that a parole-release decision "depends on an amalgam of elements, some of which are factual but many of which are *590 purely subjective appraisals by the Board members ..." Id. at 10, 99 S.Ct. at 2105. The court also noted that many of the liberty interests at stake in a parole-revocation decision are not present in a parole-release decision, and apparently concluded that there is no due-process guarantees regarding parole release, unless such a right is guaranteed by the state. In United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979), the court considered a parole decision regarding a federal prisoner, and held a sentencing judge "has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term." The actual decision, the court concluded, is up to the Parole Commission. In spite of this lack of constitutional guarantees, the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), directs reviewing courts to set aside federal agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The Tenth Circuit has stated that this is the standard that courts should apply when reviewing actions of the U.S. Parole Commission. United States v. Talk, 597 F.2d 249, 251 (10th Cir. 1979); Dye v. U.S. Parole Commission, 558 F.2d 1376, 1378 (10th Cir. 1977). In Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. 3, the court stated: the district court's inquiry is whether the reasons given for the Board's action are adequate and whether the information relied on by the Board was sufficient to provide a factual basis for these reasons. 18 U.S.C. § 4205(b) provides sentencing judges with an alternative. Under (1) the judge may specify a minimum term, which must be less than one-third of the maximum allowable sentence, after which the defendant shall be eligible for parole. Under (2) the judge specifies a maximum term, allowing the parole commission to determine the parole date, which under section 4205(a) is normally after at least one-third of the sentence. 18 U.S.C. § 4203(b) grants the Parole Commission broad powers to grant and delineate parole conditions. Section 4203(a)(1) directs the commission to promulgate rules establishing guidelines for carrying out its parole decisions. 18 U.S.C. § 4206(a) provides that if release would not depreciate the seriousness of the offense or jeopardize the public welfare, then, pursuant to the guidelines, the commission may release a prisoner on parole. Section 4206(c) provides that the commission may grant or deny parole outside of the guidelines if it determines that there is good cause for doing so. If it does so, however, then it must give the prisoner written notice of its reasons. See generally Fronczak v. Warden, El Reno Reformatory, 553 F.2d 1219, 1220-21 (10th Cir. 1977) (partially overruled on other grounds, Watts v. Hadden, 651 F.2d 1354, 1382-83 (10th Cir. 1981)). The Parole Commission has adopted 28 C.F.R. § 2.20 (1980) as its guidelines for determining when parole should normally be granted. This regulation establishes a grid. One coordinate of the grid, the "salient factor score," attempts to evaluate a prisoner's potential risk of violating parole.[1] The other coordinate is a determination of the severity of the offense.[2] After determining each of these coordinates, the Parole Commission applies the grid to determine the normal amount of time that a prisoner should be confined before being released on parole. Although the grid furnishes guidelines, the regulations state that decisions outside of the guidelines may be rendered. 28 C.F.R. § 2.20(c). This will be appropriate if there are "especially mitigating or aggravating circumstances in a particular case." Id. § 2.20(d). The Tenth Circuit has stated that the parole commission must give a more detailed explanation for its decision *591 when it is outside of the guidelines. Fronczak v. Warden, 553 F.2d at 1221. 18 U.S.C. § 4207 lists the types of information that the Parole Commission may consider in making its decision. This information includes reports and recommendations made by the prison staff, the prisoner's prior criminal record, presentence investigation reports, recommendations of the sentencing judge, examination reports and any other available relevant information. However, by its own regulations, the parole commission does not consider evidence of charges upon which the prisoner was found not guilty, unless there is new evidence that was not introduced at trial. 28 C.F.R. § 2.19(c). The regulations also provide that the commission may rely on disputed information only if it first determines that the information is supported by a preponderance of the evidence. Id. Other than these limits, the regulations allow the commission to consider "any substantial information available to it" in applying the grid to determine a prisoner's parole date. See generally Watts v. Hadden, 469 F.Supp. 223, 227-29 (D.Colo.1979). The Tenth Circuit has upheld the parole commission's use of this broad information base. In Trammel v. United States, No. 77-1400 (10th Cir. Nov. 1, 1977) (not for routine publication), the court stated: Just as a sentencing court may take into consideration a pre-sentence report which incorporates information of a hearsay nature, the Parole Board may take into consideration information which is not necessarily inclusive of trial and conviction. Slip Op. at 1 (citations omitted). In Dye v. U.S. Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977), the court elaborated: the Commission is entitled to take into account factors which could not for constitutional reasons, be considered by a court of law. (citing Mack v. McCune, 551 F.2d 251 (10th Cir. 1977)). In determining a parole date, the commission may consider evidence of an offense for which the prisoner's conviction was overturned, so long as the reversal was not based on a finding of innocence. Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 174 (10th Cir. 1980) (citing Dye v. United States Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977)). Likewise, the commission may consider allegations of criminal activity for which the prisoner has not even been charged. Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. at 4. II. SPECIFIC ISSUES IN THESE CASES A. Consideration of Dismissed Counts of the Indictment In keeping with the rule that the parole commission may utilize a broad information base in making its parole determination, most courts have upheld the commission's consideration of offenses charged in counts of the indictment that are later dismissed. See, e.g., Billiteri v. U. S. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976); Narvaiz v. Day, 444 F.Supp. 36, 37-38 (W.D.Okla. 1977); McArthur v. U. S. Board of Parole, 434 F.Supp. 163, 166-67 (S.D.Ind.1976), aff'd. mem., 559 F.2d 1226 (7th Cir. 1977); Manos v. U. S. Board of Parole, 399 F.Supp. 1103, 1105 (M.D.Pa.1975); Lupo v. Norton, 371 F.Supp. 156, 161-62 (D.Conn.1974). A few courts, however, have objected to this practice because it allows what is often the most important determination, the defendant's actual period of incarceration, to be determined by the parole commission, rather than at a trial where all of the defendant's constitutional safeguards are present. For example, in Pernetti v. United States, 21 Crim.L.Rep. 2033 (D.N.J. Mar. 3, 1977), appeal dismissed as moot, 605 F.2d 1196 (3d Cir. 1979), the court held that the parole commission's consideration of offenses alleged in dismissed counts of the indictment denied the defendant due process. The court stated: The major premise underlying this Court's opinion is the firmly established judicial maxim that a person is innocent until proven guilty. . . . . . *592 Based on the foregoing reasoning, then, it can be readily concluded that a plea of not guilty to, or a dismissal of, a count or counts of an indictment would have the opposite effect of a plea of guilty; there would be no waiver of a trial wherein the allegations would have to be proven beyond a reasonable doubt. It logically follows that if, as a result of a dismissal, the defendant is not subject to a judgment of conviction or an imposition of sentence because none of the allegations has been proven or admitted to, the parole board should not be allowed to base any parole eligibility determinations on the unproven allegations contained in the count or counts dismissed. 21 Crim.L.Rep. at 2034. Similarly, in Wixom v. United States, 585 F.2d 920, 921 (8th Cir. 1978), the court stated in dictum, without any elaboration: it would be inappropriate for the Parole Commission to consider any of the objected to information [relating to unadjudicated conduct] in determining the length of time that the defendant will be required to serve under the guidelines established by the United States Parole Commission.[3] In Watts v. Hadden, 469 F.Supp. 223, 233 (D.Colo.1979), Judge Matsch of this court considered this problem. Although the case was under the Federal Youth Corrections Act, his comments are equally applicable to the present case: A somewhat collateral question has arisen in these proceedings, and because it raises concerns which are of constitutional proportions, it is necessary to comment. The use of information concerning offense severity or behavior characteristics which have not been tested through any adjudicative procedures presents a question of a possible violation of the inmates' procedural due process protection under the Fifth Amendment to the United States Constitution. To provide carefully constructed procedures for reaching the question of guilt or innocence of charged offenses and to ignore such protections with respect to information used for classification as to type of confinement, place of confinement, and duration of confinement is incongruous. As I understand this record, the most cautiously constructed plea agreement can be circumvented by the simple expedient of giving the Parole Commission information which it considers credible. Providing the inmate with a summary of that information but without an adequate opportunity to challenge its accuracy is scant protection and it is difficult to see how an inmate so affected can be convinced of the fairness of the system which controls his liberty. As Judge Matsch noted, the problem of the parole commission considering dismissed counts is compounded when it may circumvent a plea agreement. Whenever the prosecutor makes a promise that induces a guilty plea, the government then must fulfill that promise. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). If it does not, then the trial court must conduct further proceedings, either requiring the government to keep its agreement, or allowing the defendant to withdraw his pleas. Id. at 263, 92 S.Ct. at 499; Stone v. Cardwell, 575 F.2d 724, 726 (9th Cir. 1978). F.R.Crim.P. 11(e)(1) authorizes the government to enter into an agreement with the defendant where, in return for a guilty plea, the government will either drop other charges or make recommendations or refrain from making recommendations on sentencing.[4] The rule requires the defendant *593 to understand that sentencing recommendations are not binding on the court. The rule does not authorize the government to include parole recommendations in plea bargains. If the government does make an express or implied promise regarding parole which induces a guilty plea, Santobello clearly requires the parole commission to abide by that promise.[5] A more difficult question arises when a defendant pleads guilty to some counts in return for dismissal of other counts, and where he falsely assumes that the offenses charged in the dismissed counts will not be used in making his parole determination. F.R.Crim.P. 11(c)(1) requires a trial judge to advise a defendant of any mandatory minimum penalty and the maximum possible penalty that may be imposed before accepting a plea of guilty to that offense. In United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the court held that a trial judge's failure to advise a defendant of a mandatory special parole term violated F.R.Crim.P. 11. However, the court concluded that where the violation was only "technical," and did not result in a "complete miscarriage of justice," the defendant was not entitled to withdraw his guilty plea. Id. at 784-85, 99 S.Ct. at 2087-2088 (quoting Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). Consistent with this holding, several Tenth Circuit cases have held that a defendant is not entitled to withdraw his guilty plea when the trial judge failed to comply with Rule 11 if the sentence and parole term actually imposed did not exceed that which the judge had told the defendant was the maximum. See, e.g., United States v. Sisneros, 599 F.2d 946, 949 (10th Cir. 1979); United States v. Eaton, 579 F.2d 1181, 1182-83 (10th Cir. 1978); Evers v. United States, 579 F.2d 71 (10th Cir. 1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1253, 59 L.Ed.2d 478 (1979); United States v. Hamilton, 553 F.2d 63, 65-66 (10th Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). Cf. United States v. McCoy, 573 F.2d 14, 17 (10th Cir.), cert. denied, 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978). If a defendant will be ineligible for parole after pleading guilty, the Tenth Circuit has held that the trial judge must so advise the defendant before accepting the guilty plea. Barber v. United States, 456 F.2d 164, 165 (10th Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 168, 34 L.Ed.2d 118 (1972); Jenkins v. United States, 420 F.2d 433, 437 (10th Cir. 1970). The Jenkins opinion stated: The averments are that Jenkins was not advised by the court or counsel, and did not know, that a conviction for the narcotics sale violations charged would make him ineligible for probation or parole. Such circumstances we deem a practical consequence of the plea which could not be dismissed as irrelevant as a matter of law.... The practical effect of the loss of probation and parole is `* * * so powerful that it translates the term imposed by the sentencing judge into a mandate of actual imprisonment for a period of time three times as long as that ordinarily expected.' We conclude that such an effect is, within the meaning of the rule, a consequence of the plea to be carefully considered. Id. at 437 (citations and footnotes omitted). See also United States v. Bronson, 449 F.2d 302, 306 (10th Cir. 1971), cert. denied, 405 *594 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463 (1972) ("the practical impact on the defendant [of the possibility of parole] is the important consideration [in determining whether the defendant received adequate information before making a guilty plea].")[6] It is not easy to reconcile all of the important considerations that are embodied in all of these cases. On one hand, the policy of 18 U.S.C. § 4207, as enunciated in many Tenth Circuit cases, is to allow the parole commission to utilize a very broad information base in making its parole determinations. On the other hand, the harsh reality to a criminal defendant is that his actual period of incarceration is more important than the length of his sentence. I therefore hesitate to conclude that the guarantees of the Fourth, Fifth, and Sixth Amendments are totally inapplicable to a parole determination, but this appears to be the conclusion of Dye v. U. S. Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977). But cf. United States v. Tucker, 404 U.S. 443, 447-49, 92 *595 S.Ct. 589, 591-592, 30 L.Ed.2d 592 (1972) (sentence must be vacated if sentencing judge considered prior unconstitutional convictions in determining the sentence). Even if the parole commission may normally consider matters that are constitutionally inadmissible at trial or at sentencing, it may not if doing so would violate a prior plea agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). A related problem arises when the defendant pleads guilty without realizing that evidence of the crimes charged in the dismissed counts may still be used in his parole determination. The practical effect of such consideration often is a much longer period of incarceration before a defendant is eligible for parole. As I noted earlier, the Tenth Circuit held in Barber, Jenkins, and Bronson, under F.R.Crim.P. 11, that ineligibility for parole is one of the consequences of a guilty plea of which a defendant must be advised before making the plea. The U. S. Supreme Court decisions of Boykin, Brady, and Kercheval, discussed in footnote 6, supra, held that a defendant could not effectively waive his constitutional rights unless he first fully understands the important consequences of his guilty plea. Because a long delay in eligibility for parole is such an important consequence, a defendant may not effectively waive his constitutional rights by pleading guilty unless he understands the parole consequences of doing so. The parole commission may consider, in making a parole determination, evidence of offenses committed by the prisoner that are charged in dismissed counts, so long as there are not any dominant countervailing considerations. However, if doing so would violate a previous plea agreement made by a government prosecutor, then the commission may not consider such evidence. Also, if a defendant pleaded guilty without the knowledge that or under the mistaken impression that evidence of the dismissed counts would not be considered in his parole determination, then the commission may not base its decision on such evidence. If it persists in doing so, then the defendant must be given an opportunity to withdraw his guilty plea. B. Applying the Guidelines In determining a prisoner's offense severity the parole commission obviously can consider any crime for which the prisoner constitutionally pled or was found guilty. The commission may also include evidence of other offenses. However, if the prisoner disputes the other offenses, then the commission's regulations allow it to use them to determine offense severity if it first finds, by a preponderance of the evidence, that the prisoner in fact committed them. 28 C.F.R. § 2.19(c). In disputed cases, the commission should make explicit findings of what offenses it believes that the prisoner committed. In particular, it should separate those offenses for which the prisoner pled or was found guilty from those which were not charged or for which the counts were dismissed. Such a separation will eliminate confusion over the basis for the commission's findings. Although the commission may make a parole determination outside of the guidelines, see 28 C.F.R. § 2.20(c), (d), it must issue a written notice stating its reasons for doing so. 18 U.S.C. § 4206(c). It is therefore essential that the commission first faithfully follow its own regulations in applying the guidelines. In particular, it should explicitly state the bases for its determinations of offense severity and salient factor score. See Lupo v. Norton, 371 F.Supp. 156, 161-62 (D.Conn.1974). Another problem arises when the commission changes the guidelines between the date an offense is committed and the date of a prisoner's parole determination. Regulations, like statutes, are covered by the Ex Post Facto Clause, U.S.Const. art. I, § 9, Cl. 3. Rodriguez v. U. S. Parole Commission, 594 F.2d 170, 173 (7th Cir. 1979). In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the U. S. Supreme Court established a two-part test to determine if a law is ex post facto: *596 it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Id. at 29, 101 S.Ct. at 964 (citations omitted). The law need not, however, impair a "vested right" to violate the ex post facto prohibition. Id. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consumated. Id. at 30, 101 S.Ct. at 965. Thus, the parole commission may not retrospectively apply a new regulation if the result would be more onerous to the prisoner. Rodriguez v. U. S. Parole Commission, 594 F.2d at 173-76; see Hayward v. U. S. Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981). If the new regulations would have a more onerous effect on the prisoner than those in effect at the time he committed the crimes, then the commission must apply the earlier regulations. C. Going Beyond the Guidelines As I noted earlier, the commission may decide to make a parole determination outside the guidelines. 28 C.F.R. § 2.20(c), (d). 18 U.S.C. § 4206(c) authorizes the commission to do so "if it determines there is good cause for doing so." However, if it does this, it must furnish the prisoner with written notice stating with particularity the reasons for its determination, including a summary of the information relied on. Id. See generally Little v. Hadden, 504 F.Supp. 558, 562 (D.Colo.1980); Brach v. Nelson, 472 F.Supp. 569, 574 (D.Conn.1979). Several courts have held that the commission cannot use information to determine offense severity or salient factor score, and then use the same information as a justification for going beyond the guidelines. Little v. Hadden, 504 F.Supp. at 562; Brach v. Nelson, 472 F.Supp. at 574; United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144, 148 (M.D.Pa.1977). The usual approach is to include all of the proven offenses, whether dismissed or not, to determine the offense severity. Then none of these offenses can be considered as aggravating circumstances. An alternative would be to determine offense severity just from the offenses for which the prisoner pled or was found guilty, and then to consider the other offenses as aggravating circumstances.[7] See generally Lupo v. Norton, 371 F.Supp. 156, 162-63 (D.Conn.1974). In any case, however, the same offense cannot be used for both purposes: It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reasons for confining a prisoner beyond that guideline period. Id. at 163. III. DISPOSITION OF THESE CASES A. Allen v. Hadden, Civil Action No. 81-K-1863 Petitioner Allen is currently serving sentences on a number of crimes for which he pled or was found guilty. All of the disputes in his present petition relate to the last offense, aiding and abetting the importation of marijuana into the United States. He states five general grounds for granting the writ: 1. The respondents improperly considered allegations contained in the dismissed counts of the last indictment in determining his parole date; 2. The consideration of these allegations violated an express plea agreement made by the government; 3. The conclusions that the petitioner in fact committed the offenses charged in the dismissed counts were not supported by a preponderance of the evidence; 4. The respondents placed the petitioner in the wrong severity category of *597 the parole guidelines, 28 C.F.R. § 2.20, even if they properly considered the offenses charged in the dismissed counts; and 5. The respondents improperly went beyond the guidelines by using information that already went into determining the application of the guidelines. This petitioner was charged with a 35-count indictment alleging that he was involved in a complex conspiracy to import over 34,000 pounds of marijuana and to export over $641,000. After the petitioner pled guilty to two counts, which alleged importation of 2,400 to 3,200 pounds of marijuana and exportation of $8,000, the government dismissed the other counts. As I concluded in part II.A. supra, it is proper for the parole commission to consider offenses charged in dismissed counts of the indictment, provided there are not any dominant countervailing considerations. I therefore reject petitioner's first argument. Petitioner's second argument is more complicated. When the petitioner pled guilty, he and the government executed a written plea agreement. Paragraph 15 states: The Government agrees that there is nothing present in the facts of this case to warrant a recommendation from the Government or its agents or the DEA or its agents to the United States Parole Commission outside the normal regulations and guidelines which control their decision-making process. In other words, the Government will not interfere with the Parole Commission's normal considerations. This should not be considered, however, to mean that the United States Attorney's Office is making a specific recommendation as to leniency. Magistrate Abram concluded that this provision was not violated because the prosecutors did not make any statements to the parole commission. I agree with this conclusion. However, at the rearraignment hearing, the prosecutor made a broader statement: ... at the time of sentencing if the Court accepts the plea, that the Government will move to dismiss the remaining counts of the indictment, and they would have no adverse effect on the defendant and the counts will be dismissed with prejudice, as I understand it, at the time of sentencing. In part II.A. supra, I noted that the government must stand by its plea agreement. I conclude that it has not done so here. At the re-arraignment hearing the prosecutor stated that the dismissed counts "would have no adverse effect on the defendant." Later, however, the parole commission considered the offenses alleged in these dismissed counts in making its parole determination.[8] On remand, the parole commission must disregard the dismissed counts. If it does not, then the petitioner must be given an opportunity to withdraw his guilty plea. Petitioner's third argument is that the parole commission's conclusions on the dismissed counts were not supported by a preponderance of the evidence. In every notice of action, the parole commission stated that the petitioner was convicted of a conspiracy to import over 34,000 pounds of marijuana. In every appeal petition, the petitioner pointed out that he had not been convicted of such offenses. Yet the parole commission persisted in making this obviously false statement.[9] As far as I can tell, the parole commission made no distinction *598 between the offenses charged in the indictment and those to which the petitioner pled or was found guilty. None of the information submitted by the government in this case reveals any evidence that would support a commission finding that the petitioner in fact was a participant in this conspiracy. In fact, the petitioner has submitted evidence that he did not participate in this conspiracy. Because the petitioner disputes that he was involved in this larger conspiracy, the commission must resolve this issue by applying a preponderance of the evidence standard. 28 C.F.R. § 2.19(c). Because it has totally failed to do so here, I conclude that it has abused its discretion. Petitioner's fourth argument is that the commission rated his offense with the wrong severity. The regional commission rated his offense severity as Greatest II. The national commission changed this rating to Greatest I. The current guidelines state that possession of over 2,000 pounds of marijuana with the intent to distribute or sell it is an offense of "very high" severity. There is no upper limit on the amount of marijuana in this category. The Greatest I and Greatest II categories do not include any marijuana offenses. I therefore conclude that the commission abused its discretion in rating petitioner's offense as either Greatest I or Greatest II. Further, petitioner argues, that at the time he committed the offense, the guidelines rated its severity as "high." As I noted in part II.B. supra, if this is the case, then the commission must properly apply those guidelines that were in effect when he committed the offense. Petitioner's final argument is that the national commission improperly went beyond the guidelines in determining his parole date. After the national commission downgraded petitioner's offense severity from Greatest II to Greatest I, it concluded that the same parole date was appropriate because of aggravating circumstances.[10] All of the facts listed in support of this conclusion appear to be ones that also were used to determine offense severity and salient factor score. As I noted in part II.C. supra, this practice is impermissible. Because the commission abused its discretion in so many different ways, I must remand this case to the commission for proper re-determination of the petitioner's parole date. See generally Watts v. Hadden, 469 F.Supp. 223, 233-35 (D.Colo.1979). B. Robinson v. Hadden, Civil Action No. 81-K-2020 Petitioner Robinson is currently serving a sentence on one count of bank robbery to which he pled guilty. He states four general grounds for granting the writ: *599 1. The respondents should not have considered the dismissed counts of petitioner's indictment in determining his parole date; 2. The respondents conclusion that the petitioner committed the other four bank robberies charged in the dismissed counts was not supported by a preponderance of the evidence; 3. The respondents placed the petitioner in the wrong severity category of the parole guidelines, 28 C.F.R. § 2.20, even if they properly considered the offenses charged in the dismissed counts; and, 4. The respondents abused their discretion by not going below the guidelines in determining the petitioner's parole date. Petitioner's first argument clearly demonstrates the problem that concerned the courts in Pernetti, Wixom, and Watts, discussed in part II.A. supra. By considering all five robberies, instead of just the one to which the petitioner pled guilty, the parole commission increased his offense severity by two levels, and increased his presumptive period of incarceration from 60-72 months to 100 + months. Yet, as I concluded in part II.A., I believe that several Tenth Circuit cases dictate that it was proper for the parole commission to consider the offense charged in the dismissed counts. As I noted, there is often a serious danger that a defendant will plead guilty on the erroneous assumption that the dismissed counts will not be considered in making his parole determination. There is no evidence in this case, however, of such an erroneous assumption. Nor is there any evidence that the government made any promises in return for the guilty plea that it later breached. Under these circumstances I therefore conclude that the parole commission did not abuse its discretion. Petitioner's second argument is that the parole commission improperly concluded that he actually committed the other four robberies. At the last hearing in this case, I requested that the government submit a tape of this petitioner's parole hearing. I have now received and reviewed that tape. At that hearing the petitioner admitted that he had committed all five bank robberies. Absent any contradictory evidence, I conclude that the commission's finding that the petitioner committed five bank robberies was supported by a preponderance of the evidence. The petitioner's third argument is that the commission abused its discretion in rating his offense as Greatest II severity. The guidelines provide that one or two robberies is "very high" severity, and that three or four robberies is Greatest I severity. Robbery involving serious injury is Greatest II severity. The notes to the guidelines state: B. If an offense behavior is not listed above, the proper category may be obtained by comparing the severity of the offense behavior with those or similar offense behaviors listed. * * * * * * D. If an offense behavior involved multiple separate offenses, the severity level may be increased. Because the offense of five robberies is not listed in the guidelines, but four robberies is Greatest I severity, I conclude that the commission did not abuse its discretion in rating five offenses as Greatest II severity. Petitioner's final argument is that the commission abused its discretion by following the guidelines' recommended parole date, rather than going below the guidelines. In particular, petitioner cites his successful efforts at overcoming the heroin addiction that was the motivation for his prior criminal activity, his success at prison vocational training courses, his recent marriage and other contributions to the prison community. He also questions the parole commission's consideration of an incident report that stated that the petitioner stabbed another inmate, when in fact the prison officials later found that the petitioner had acted in self defense. All of this evidence is encouraging, but it does not *600 support a finding that the parole commission abused its discretion in not going below the guidelines. Because I have concluded that the commission did not abuse its discretion, I deny petitioner's petition for writ of habeas corpus. IT IS ORDERED in Civil Action No. 81-K-1863 that this case is remanded to the respondents for further consideration and actions consistent with this opinion and order. In particular, the respondents shall make a new determination of petitioner's offense severity rating, applying the guidelines that were in effect when the offenses were committed. This determination shall be made within sixty (60) days and shall be based solely on new findings of fact made by the commission in a manner consistent with this opinion. Should the respondents decide that a parole determination outside of that recommended by the guidelines is warranted, it shall, in accordance with 18 U.S.C. § 4206(c), state in writing its reasons for that determination. None of the factors used to determine offense severity or petitioner's salient factor score shall also be used as justification for making a parole determination outside of the guidelines. It is further ORDERED that the respondents shall make a determination of petitioner's parole status, including all normally available administrative appeals, within sixty (60) days of the date of this order. If such a determination is not made within this time, the petitioner may petition this court for further appropriate relief. This court will therefore retain jurisdiction to issue any orders that shall be necessary in the future. It is further ORDERED in Civil Action No. 81-K-2020 that the petition for writ of habeas corpus is denied. Each party to bear his or its own costs. NOTES [1] Salient factor scores range from 0 to 11, eleven reflecting the best parole eligibility. [2] The severity categories are: low, low moderate, moderate, high, very high, greatest I, and greatest II. [3] Both Pernetti and Wixom were decided before the U.S. Supreme Court's decision in Greenholtz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979), which held that a prisoner has no due-process rights in a state parole system that "provides no more than a mere hope" that parole will be granted. Because the detailed statutory and regulatory procedures of the federal parole system provide more than a "mere hope," the Greenholtz decision is not directly applicable to Pernetti and Wixom. [4] See generally United States v. Griffin, 462 F.Supp. 928, 929 n.2 (E.D.Ark.1978) (illustrating that a defendant often receives little, if any, bargain from such plea agreements). [5] Cf. United States ex. rel. Goldberg v. Warden, Allenwood Federal Prison Camp, 622 F.2d 60, 64-65 (3d Cir.) cert. denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980). In this case the Third Circuit upheld the parole commission's subsequent consideration of offenses charged in counts of the indictment that had been dismissed "with prejudice" pursuant to a plea agreement. The court emphasized that the plea agreement did not in any way link the dismissal "with prejudice" to the question of parole, nor did the agreement restrict the scope of the presentence report. Id. at 64. See also Bistram v. U.S. Parole Board, 535 F.2d 329, 330 (5th Cir. 1976) (upholding parole commission's consideration of offense charged in indictment count that was dismissed pursuant to a plea agreement). [6] These three cases were all decided when F.R. Crim.P. 11 required the trial judge to determine that the defendant understood "the consequences" of his guilty plea. See 420 F.2d at 436 n.3. Since then, in 1974, Rule 11 was amended. It no longer uses the "consequences" language, but instead spells out in much greater detail what the trial judge must inform the defendant. See United States v. Eaton, 579 F.2d 1181, 1183 (10th Cir. 1978). Because the new version requires trial judges to inform the defendant of any mandatory minimum and maximum penalties, I conclude that the Jenkins analysis is still applicable. Even if Rule 11 does not require that a defendant be advised of his ineligibility for parole, the Constitution does. The Tenth Circuit did not need to consider this issue in Jenkins, because of its conclusion on Rule 11. However, several federal courts reviewing guilty pleas made in state courts, where Rule 11 does not apply at all, did consider this constitutional issue. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the U.S. Supreme Court reviewed the validity of a guilty plea made in state court. The supreme court stated: Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment ... Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record. 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. Id. at 243-44, 89 S.Ct. at 1712 (citations and footnote omitted) (emphasis added). The court then reemphasized this holding in Brady v. United States, 397 U.S. 742, 748 n.6, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970), where it stated The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decision [] in ... Boykin v. Alabama, 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] (1969). (Emphasis added.) See also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. In Watts v. Brewer, 340 F.Supp. 378 (S.D. Iowa 1972), the court reviewed a parole-violation conviction. One of the key pieces of evidence sustaining the conviction was the defendant's prior plea of guilty to committing a misdemeanor while on parole. Relying on Boykin, the court held: ... a defendant is to be informed of the full consequences of his plea, but not necessarily the full consequences of all his future actions. But in this case, there was nothing to speculate about.... Thus, the trial court was well aware that Watts' plea could be used as a basis for a charge of parole violation, but failed to advise him of this. There was no need for the trial court to speculate about future actions of Watts; on the basis of the discussions of Watts' parole status, the trial court knew that the plea of guilty to OMVUI was tantamount to a plea of guilty to parole violation, and the judge's failure to inform Watts of this, particularly when Watts was unassisted by counsel, rendered the plea of guilty constitutionally inadmissible in Watts' subsequent trial for parole violation. Id. at 382. I conclude that these cases bar the use of guilty pleas at subsequent hearings having parole consequences if the defendant is not advised of possible parole consequences before he makes a guilty plea. [7] This second approach has the disadvantage that it could largely circumvent the guidelines, opening the door for potential abuses of discretion. [8] This case is therefore distinguishable from the Goldberg case, discussed in note 5 supra. In Goldberg the dismissal was simply "with prejudice." Here the dismissal was "with prejudice," but the government also stated that the dismissed counts "would have no adverse effect" on the defendant. [9] In making its parole decision the regional commission stated: Your offense behavior has been rated as Greatest II severity because you were convicted of multiple separate offenses, conspiracy to import more than 34 thousand pounds of marijuana during three separate periods, and escape from confinement. This was ongoing, sophisticated and international in scope. This conspiracy utilized many leased airplanes, at least 34 co-conspirators and you had a proprietary and managerial interest. This conspiracy occurred over a four year period. At least $641,000 was identified by DEA as money paid for purchase of marijuana in Mexico and Colombia. You have a Salient Factor Score of 10 (see attached sheet). You have been in custody a total of 22 months. Guidelines established by the Commission for Adult cases which consider the above factors indicate a range of 52 + months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted. On appeal the National Appeals Board stated: Your offense behavior has been rated as Greatest I severity because you were convicted of multiple separate offenses, conspiracy to import more than 34 thousand pounds of marijuana during three separate periods, and escape from confinement. You have a salient factor score of 10. You have been in custody a total of 29 months. Guidelines established by the Commission for Adult cases which consider the above factors indicate a range of 40-52 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: You were one of the principals in this large scale, ongoing conspiracy which used airplanes to import multi-ton quantities of marijuana into the U.S. Further, you are a poorer parole risk than indicated by your salient factor score in that, while on appeal bond regarding the first marijuana offense, you became involved in two additional offenses involving marijuana for which you were subsequently convicted. [10] See note 9 supra.

749 So.2d 874 (1999) STATE of Louisiana v. Gilbert O. MAGEE. No. 98-KA-1325. Court of Appeal of Louisiana, Fourth Circuit. December 15, 1999. *875 Harry F. Connick, District Attorney of Orleans Parish, Susan Erlanger Talbot, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, Counsel for Plaintiff/Appellee. William R. Campbell Jr., Louisiana Appellate Project, New Orleans, Louisiana, Counsel for Defendant/Appellant. Court composed of Chief Judge ROBERT J. KLEES, Judge MIRIAM G. WALTZER, Judge ROBERT A. KATZ. KATZ, Judge. STATEMENT OF CASE On January 8, 1998, the defendant was charged with possession of cocaine in violation of LSA-R.S. 40:967. A jury trial found the defendant guilty of attempted possession of cocaine. The trial court denied the defendant's motion for post verdict judgment of acquittal and sentenced the defendant to serve thirty months at hard labor. The trial court denied the defendant's motion for reconsideration of sentence and granted the defendant's motion for appeal. The State filed a multiple bill of information to which the defendant pled not guilty. After a multiple bill hearing, the defendant was adjudicated a third felony offender and according to State v. Dorthey, 623 So.2d 1276 (La.1993) was sentenced to serve fifteen years at hard labor. The State sought supervisory writs alleging that the sentence was illegally lenient. This Court granted the State's writ application, vacated the sentence imposed and remanded the matter for resentencing under the habitual offender statute. State v. McGee, 98-K-1983 (La.App. 4th Cir. 8/27/98). A resentencing hearing was held, in which the defendant was then sentenced to life imprisonment at hard labor. The trial court denied defendant's motion to reconsider sentence. It is from this conviction and sentence that the defendant appeals. STATEMENT OF FACT At approximately 10:00 a.m. on November 9, 1997, New Orleans Police Officers *876 Paul Noel and Harry O'Neal were patrolling the twenty two hundred block of Louisiana Avenue. They observed the defendant sitting on the steps of the residence at 2216 Louisiana Avenue, drinking out of an open container. The officers exited the vehicle and approached the defendant. While they were preparing a summons for defendant's violation of the open container law, they saw the defendant reach under his right leg and allegedly throw an object to the ground. The officers testified that they heard the object hit the ground. Officer O'Neal retrieved the object and discovered that it was a crack pipe. He testified that upon examining the pipe, he saw cocaine residue on the filter end of the pipe. The defendant was then placed under arrest. A search incident to the arrest yielded a metal push rod and two cigarette lighters. Officer Joseph Tafaro, a criminalist with the New Orleans Police Department Crime Lab, testified that the crack pipe contained residue. The residue tested positive for cocaine. ERRORS PATENT A review of the record for errors patent reveals that the sentence imposed by the trial court after adjudicating the defendant a third felony offender is below the minimum mandatory sentence. Under LSA-R.S. 15:529.1, a third felony offender whose present felony or any one of the prior felonies is "a felony defined as a crime of violence under LSA-R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, ... shall be imprisoned for the remainder of his natural life, without the benefit of probation, parole or suspension of sentence." However, the Louisiana Supreme Court acknowledged in State v. Dorthey, 623 So.2d 1276 (La.1993), that a trial court could impose a sentence less than the minimum mandatory sentence when it determined that the minimum sentence mandated was constitutionally excessive as applied to the particular defendant and particular facts of the case. When the trial court sentenced the defendant to life imprisonment, it failed to state that the sentence was to be served without benefit of parole, probation or sentence. In any event, on appeal, this Court will not correct errors favorable to a defendant where the issue is not raised by the State. State v. Fraser, 484 So.2d 122 (1986). No other errors patent were found. DISCUSSION ASSIGNMENT OF ERROR NUMBER 1 In this assignment, the defendant contends that the State failed to produce sufficient evidence to support his conviction for attempted possession of cocaine. When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La. 1987). In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984); *877 State v. Addison, 94-2431 (La.App. 4 Cir. 11/30/95), 665 So.2d 1224, 1228. To prove attempted possession of cocaine, the State must show that the defendant had the specific intent to possess cocaine and committed an act directly tending toward his intent to possess the drug. State v. Lavigne, 95-0204 (La.App. 4 Cir. 5/22/96), 675 So.2d 771, writ denied, 96-1738 (La.1/10/97), 685 So.2d 140. Possession may be actual or constructive. State v. Chambers, 563 So.2d 579, 580 (La.App. 4 Cir.1990). A person in the area of the contraband may be considered in constructive possession if the illegal substance is subject to his dominion and control and he has guilty knowledge. State v. Trahan, 425 So.2d 1222, 1226 (La. 1983); State v. Cormier, 94-537, p. 5 (La. App. 3 Cir. 11/2/94), 649 So.2d 528, 531. Factors relevant to a defendant's dominion and control include, inter alia: 1) the defendant's knowledge that illegal drugs are in the area; 2) the defendant's access to the area where the drugs are found; 3) the defendant's physical proximity to the drugs; 4) evidence that the area was frequented by drug users; and 5) evidence of recent drug use by the defendant. State v. Cormier, 649 So.2d at 531. The elements of knowledge and intent are states of mind and need not be proven as facts, but may be inferred from the circumstances. State v. Reaux, 539 So.2d 105 (La.App. 4 Cir.1989). The fact finder may draw reasonable inferences to support these contentions based upon the evidence presented at trial. Guilty knowledge is an essential element of the crime of possession of cocaine. State v. Goiner, 410 So.2d 1085, 1086-87 (La.1982). Although a conviction for possession of cocaine can stand on the possession of the slightest amount of the drug, the amount of the substance will have some bearing on the defendant's guilty knowledge, particularly in instances where there are no corroborating circumstances. State v. Spates, 588 So.2d 398, 401 (La.App. 2nd Cir.1991); State v. Jones, 94-1261, p. 6 (La.App. 3 Cir 5/17/95), 657 So.2d 262, 268. In State v. Jackson, 557 So.2d 1034 (La. App. 4 Cir.1990), this Court reversed a conviction of attempted possession of cocaine. This Court found that the evidence was legally insufficient to establish that the defendant exercised dominion or control over the residue-containing paraphernalia. This Court reasoned that there was no evidence that the residue-containing pipe was warm, that the defendant's fingerprints were on any item, that the defendant tested positive for cocaine, or that the defendant was anything more than a guest in the apartment where the contraband was found. This Court stated that the mere presence of the defendant in close proximity of drugs or the defendant's knowledge of the presence of drugs in the premises where he is located is insufficient to prove constructive possession. Id. at 1035. This Court noted that there was no evidence, aside from the fact that the defendant was standing next to the paraphernalia that would support a finding of the defendant's exercise of dominion or control. Similarly, in State v. Postell, 98-0503 (La.App.4Cir.4/22/99), 735 So.2d 782, where the defendant was convicted for possession of cocaine on the basis of a residue in a crack pipe, this Court reversed the conviction and held that the State failed to present sufficient evidence that the defendant knowingly possessed controlled dangerous substance to support the conviction. This Court stated that the State must present evidence that excludes every reasonable hypothesis of innocence to warrant a conviction for possession of cocaine. In this case, the defendant was in close proximity to the residue-containing pipe when he was arrested. The pipe was found on the sidewalk near him, not on his person. The State presented circumstantial evidence, such as the testimonies of the police officers involved with this investigation, *878 in an effort to satisfy its burden; however, after a careful review of the record, this Court found that the evidence in the record, at most, proved that the defendant possessed drug paraphernalia in violation of LSA-R.S. 40:1033. This Court further reasoned that there were several reasonable alternative explanations for the defendant having drug paraphernalia; however, without the supporting evidence, guilty knowledge cannot be gleaned from mere possession of the paraphernalia. Id. at 787. In State v. Trahan, supra, the Louisiana Supreme Court reversed the defendant's conviction for possession of cocaine. The Court held that circumstantial evidence was sufficient to establish guilty knowledge of a defendant in establishing the requisite elements for a conviction of possession of a controlled dangerous substance. However, without the collateral and corroborating evidence, that conviction would be upheld. In that case, the Court found that the only evidence regarding the defendant's guilty knowledge was the testimony of a co-defendant, who was arrested along with the defendant and charged with the same offenses. Also, the police found Mannitol, a material used to cut cocaine, on the premises when the defendant was arrested. The Court held that there was doubt as to Trahan's dominion and control over the paraphernalia, and found that the presence of the Mannitol alone was not enough to establish guilty knowledge. Therefore, the Court had no choice but to reverse the conviction. The State relies on State v. Spates, 588 So.2d 398 (La.App. 2 Cir.1991), to support its claim. In Spates, the defendant was convicted for possession of a trace amount of cocaine found on a piece of radio antenna converted into a special crack pipe called a "straight shooter". The Second Circuit affirmed the defendant's conviction and held that the mere physical possession of a device without any utility other than the ingestion of crack cocaine was sufficient to support a conviction of possession of cocaine. Id. at 402. This case can be easily distinguished from Spates, supra. In Spates, the Court noted that, unlike Trahan, supra, there was no failure to physically connect Spates with the cocaine because the cocaine was seized directly from the defendant's person, i.e. his front pants pocket. However, in the case sub judice, the residue-containing pipe was not found on the defendant's person; it was found on the ground. As found in Trahan, supra, there is doubt as to the defendant's dominion and control over the paraphernalia, and the presence of the pipe alone is not enough to establish guilty knowledge. As previously stated in State v. Postell, supra, the State must present evidence that excludes every reasonable hypothesis of innocence to warrant a conviction. In this case, the pipe was found on the ground of an "abandoned guest house" in a neighborhood that Officer O'Neal testified as being "notorious for drug activity." This fact presents a reasonable alternative explanation for the pipe being on the ground; it could have belonged to someone else. Other important factors, as pointed out in State v. Jackson, supra, there were no fingerprints taken; the officers did not suggest erratic behavior suggesting that the defendant was under the influence of cocaine. There was no evidence that the defendant took any steps to obtain the cocaine. Thus, the State has failed to present evidence sufficient to conclude that the defendant had attempted possession of cocaine. Therefore, we must reverse the trial court's conviction. ASSIGNMENT OF ERROR NUMBER 2 The defendant further argues that the life sentence imposed by the trial court is excessive under the standard established in State v. Dorthey, 623 So.2d 1276 (La. 1993). The State alleges that the defendant should receive a mandatory life sentence *879 as a third felony offender having been convicted in 1978 for armed robbery and in 1989 in Alameda, California for distribution of narcotics. Under LSA-R.S. 15:529.1, the defendant was subject to a mandatory life sentence as a third felony offender convicted of attempted possession of cocaine. However, this Court found that the defendant's conviction should be reversed and at most, the defendant should be charged with attempted possession of a drug paraphernalia in violation of LSA-R.S. 40:1033, which is a misdemeanor and not a felony. Therefore, the defendant would not be considered a third felony offender and not subject to these rules. In view of this Court's above ruling, we find no reason to further discuss this second assignment of error. CONCLUSION For the foregoing reasons, this Court: (1) reverses the defendant's conviction and sentence for attempted possession of cocaine; (2) reverses the multiple bill; and (3) remands this matter to the district court for proceedings consistent with this opinion. CONVICTION & SENTENCE REVERSED; MULTIPLE BILL CONVICTION REVERSED; & REMANDED.

Filed 11/22/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR MICHAEL McNAIR, Plaintiff and Appellant, A138952 v. CITY AND COUNTY OF SAN (City & County of San Francisco FRANCISCO et al., Super. Ct. No. CGC-09-489734) Defendants and Respondents. This action arises out of a letter written by Dr. Ann Kim disclosing her patient Michael McNair‟s confidential medical history and health conditions. Dr. Kim sent the letter to the California Department of Motor Vehicles (“DMV”) against McNair‟s wishes due to public safety concerns. As a result, McNair‟s commercial driver‟s license was temporarily revoked, and he lost his job as a bus driver. After McNair filed suit alleging injury due to breach of his medical privacy rights, the trial court granted summary adjudication on his intentional tort cause of action and nonsuit on his breach of contract claim. Specifically, the trial court determined that McNair‟s intentional tort claim was barred by the litigation privilege, Civil Code section 47, subdivision (b) (section 47(b)).1 Thereafter, the court granted nonsuit on McNair‟s breach of contract cause of action on a host of different grounds, including the litigation privilege. On appeal, McNair asks us to determine whether the trial court erred: (1) in concluding that the litigation privilege barred his intentional tort claim; (2) in granting nonsuit; and (3) in granting certain pre- trial motions prior to the jury trial on his breach of contract claim. Because we conclude that both of McNair‟s claims were barred by the litigation privilege, we affirm. 1 All statutory references are to the Civil Code unless otherwise indicated. 1  I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background Michael McNair obtained a commercial driver‟s license in 2000 and began driving approximately 25 to 30 weeks per year. McNair has a history of diabetes and cognitive deficits. Dr. Ann Kim, a staff physician and primary care internist employed by the San Francisco Department of Public Health (DPH), treated McNair from 2004 to 2006 at the Maxine Hall Health Center (MHHC). In 1996, 1997, and 2003—while under the care of other DPH physicians—McNair signed three documents generated by the DPH entitled “Consent General Health Care” (Consents). The Consents all stated that his medical records would not be released without his written authorization, absent an articulated exception to this general rule. One such exception was situations in which the DPH was “permitted or required by law” to release the information. In 2002, McNair saw Dr. Pope for an examination to determine whether he qualified for Social Security Insurance (SSI). McNair told Dr. Pope about his prior employment and driving history. Specifically, he reported that, in the past, he had followed his own bus routes rather than those designated by his employer and was unwilling to assist passengers and follow procedures. McNair also stated that he did not like to babysit people. Further, McNair told Dr. Pope that, during one particular instance, he improperly drove a group of children from San Diego, California to Tijuana, Mexico. McNair stated he made a mistake and “just didn‟t think.” After his examination of McNair, Dr. Pope concluded: “Frankly, given the problems described above, I would advise serious caution in recommending that the patient‟s professional driving license be renewed. At present, because of his cognitive deficits, impulsivity, and poor judgment and insight, I found Mr. McNair to be unable to seek or maintain even basic employment.” In December 2004, McNair asked Dr. Kim to determine his medical eligibility for a commercial driver‟s license with the DMV. Dr. Kim refused to certify him due to his cognitive disorder and uncontrolled diabetes. McNair then requested that other doctors at the MHHC certify him for his commercial driver‟s license, but the MHHC medical 2 director at the time stated that none of the other physicians would agree to certify him. Prior to this, from 2000 to 2004, McNair had had other doctors at the MHHC sign off on his medical certification for his commercial driver‟s license. He also had doctors at other hospitals such as Bay Medical, Concentra, and Potrero Hill City health clinic approve his medical certification. The medical examination report submitted to the DMV required McNair to certify under penalty of perjury that he had provided true and correct information concerning his health. It stated that any false information could invalidate his medical examiner‟s certificate. However, in the medical examination report McNair provided to the DMV in 2004, McNair did not disclose that Dr. Pope had diagnosed him with reading, personality, and cognitive disorders. McNair claimed that he talked to his doctor about it and didn‟t think that he needed to disclose the information. In 2005, the Homeless Advocacy Project arranged for McNair to see Dr. Joanne Keaney, Ph.D. in order for the doctor to determine if McNair would qualify for SSI benefits. Later that year, Dr. Kim asked to see Dr. Keaney‟s report because she was also trying to help McNair qualify for SSI benefits and believed her report would help him. On June 1, 2005, Dr. Kim wrote a letter to support McNair‟s application for SSI disability benefits and stated, in her opinion, that he was not able to hold down any type of full-time employment. Dr. Kim understood that the Social Security Administration wanted to know a doctor‟s opinion regarding whether the patient could work. If the patient could work, no benefits would be awarded. Dr. Kim believed that McNair‟s SSI application was eventually granted. Thereafter, on April 20, 2006, Alameda County Transit (“AC Transit”) hired McNair as a bus operator. McNair began a ten-week training program on April 25, 2006, and began driving regular bus routes on July 31, 2006. He told Dr. Kim about his new full-time job driving for AC Transit on August 29, 2006. On October 18, 2006, Dr. Kim learned from a nurse that McNair needed a doctor‟s note sent to the DMV explaining his absence from a DMV hearing. The hearing dealt with McNair‟s application for a School Pupils Activity Bus (SPAB) certificate to drive 3 school busses. Dr. Kim did not write a letter of absence for him because, according to her records, McNair was not at the doctor‟s office on the day of the hearing. She did, however, call McNair on October 18 and tell him that he should not be driving children on a bus due to his poor health. Dr. Kim also told McNair that if she were to write anything to the DMV, then she would have to write about McNair‟s health conditions. McNair stated that he did not want Dr. Kim to communicate with the DMV. Nevertheless, later that day, Dr. Kim wrote a letter to the DMV concerning McNair‟s diagnosis of Cognitive Disorder NOS. As stated above, McNair did not give permission to Dr. Kim to send this letter. The letter stated: “I am Mr. Michael McNair‟s primary care physician at Maxine Hall Health Center. It has recently come to my attention that Mr. McNair has been approved for a commercial driver‟s license. I did not sign off on his medical evaluation forms. “While I do not know of an occasion in which Mr. McNair suffered a lapse of consciousness, I believe it is in the interest of public safety that the DMV is aware that he has been diagnosed with Cognitive Disorder NOS. A neuropsychiatric assessment from May, 2005 performed by Joanne Keaney, PhD was done as a follow-up from a prior neuropsychiatric evaluation. Her assessment was that Mr. McNair is functionally illiterate, lacks the capacity to set limits on himself and fails to understand the consequences of his behavior. She thought his primary difficulty remaining employed appears not [sic] be the result of mild congenital or developmental brain damage that has not only affected his cognitive skills but more importantly has impaired his judgment, impulse control, insight, forethought and ability to introspect. “Dr. Pope‟s initial neuropsychiatric evaluation from 2002 states that he would advise serious caution in recommending that his professional driving license be renewed. He found Mr. McNair to also suffer from a personality disorder with limited insight, impulsiveness, and poor judgment.” Dr. Kim wrote the letter out of concern for McNair‟s safety and the safety of the public. She based her statements in the letter to the DMV on her own observations made while treating McNair at the MHHC and on the specialists‟ reports written by Drs. Pope 4 and Keaney. Dr. Kim learned from Dr. Pope‟s report that McNair had been fired in the past for his unwillingness to assist passengers. Dr. Pope‟s report also detailed the incident where McNair drove a bus over the Mexican border with children on board. Dr. Kim thought these past events were relevant to his ability to drive a school bus. In his report, Dr. Pope made a recommendation that McNair should not have a license to drive commercial vehicles. Dr. Keaney‟s report echoed Dr. Pope‟s opinions regarding McNair‟s vocational history and his ability to drive. Dr. Kim did not think, however, that either Dr. Pope or Dr. Keaney made any report to the DMV concerning McNair. As stated above, Dr. Kim first became aware that McNair was working for AC Transit in August 2006. She did not send the letter to the DMV until October 2006 because she was wrestling with the decision whether to protect her patient‟s confidentiality or to disclose McNair‟s information for the safety of the public. But, once it came down to driving a school bus, that “just kind of pushed the balance.” Even though McNair did not want Dr. Kim to send the letter disclosing his mental condition, she “felt obligated to let the DMV know that there was more information that they didn‟t have.” Dr. Kim wanted the DMV “to have the medical information so that they could do their own assessment” in regard to McNair‟s ability to drive. Dr. Kim visited the DMV website before she sent the letter to review her reporting obligations.2 The DMV revoked McNair‟s driver‟s license on October 23, 2006, but McNair did not learn of the revocation until December 6, 2006, when his supervisor at AC Transit told him. Consequently, McNair stopped driving for AC Transit that day. It was also on that same date that McNair first saw Dr. Kim‟s letter. McNair‟s continued employment at AC Transit was contingent on getting his commercial driver‟s license reinstated by 2 The record contains an excerpt from the DMV website which states, among other things, that the agency finds out about persons who may be unsafe to drive “from many sources, including law enforcement, physicians and surgeons, judges, family members and acquaintances.” The website also contains the following directive: “Physicians are required by law (Health & Safety Code Section 103900) to report disorders characterized by lapses of consciousness, as well as Alzheimer‟s disease and related disorders. Additionally, they may report any other condition if they believe it would affect the driver‟s ability to drive safely.” 5 January 17, 2007. McNair had two hearings at the DMV on December 15, 2006, and January 22, 2007, regarding the restoration of his license. After the first hearing, McNair had his regular driver‟s license restored. After the second hearing on January 22, he had his commercial driver‟s license reinstated. However, this was five days after the deadline that had been imposed by AC Transit, and McNair therefore lost his job. McNair tried to get his job back through the union, but lost in arbitration in January 2009. B. Procedural Background On June 23, 2009, McNair filed a complaint in San Francisco County Superior Court (Complaint), alleging causes of action for intentional tort and breach of contract against the City and County of San Francisco and Dr. Kim (collectively, City), based on Dr. Kim‟s disclosure of McNair‟s confidential information to the DMV. The intentional tort cause of action expressly stated that the disclosure of McNair‟s medical information violated the California Confidentiality of Medical Information Act (CMIA), Civil Code, section 52 et seq. With respect to the breach of contract claim, the Complaint stated that the contract at issue was “[p]artly written, partly oral and partly implied” as further described in the pleading. Attached to the Complaint were copies of several privacy notices that were routinely provided to patients by DPH: A DPH Notice of HIPPA Privacy Practices (HIPPA Privacy Notice) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. (HIPPA); and a related Summary DPH Notice of HIPPA Privacy Practices (DPH Summary Notice). Pursuant to the HIPPA Privacy Notice and the DPH Summary Notice, a patient‟s confidential health information was generally kept private, but could be shared when required by federal, state, or local law. In addition, the notices also provided: “Health information about you may be used and shared to law enforcement officials, mobile crisis team, or to an intended victim when necessary to prevent a serious threat to your health and safety or the health and safety of the public or another person. Any disclosure, however, would only be to someone able to help prevent the threat.” In November 2011, the City moved for summary judgment or, in the alternative, summary adjudication. After hearing, by order dated May 8, 2012, the trial court denied 6 the City‟s motion for summary judgment and its motion for summary adjudication as to McNair‟s breach of contract cause of action. However, the trial court granted the City‟s motion for summary adjudication of McNair‟s intentional tort cause of action. Specifically, the order stated: “The intentional tort cause of action fails based on the litigation privilege. [Citations.] HIPAA does not preempt the litigation privilege. The purpose of HIPAA is to protect medical confidences, not provide a cause of action.” Before trial on the breach of contract cause of action, the trial court resolved numerous motions in limine filed by both the City and McNair. Thereafter, upon the close of McNair‟s evidence, the City moved for nonsuit. The court ultimately granted nonsuit on a myriad of grounds, including: (1) that the litigation privilege applied to a contract cause of action premised on Dr. Kim‟s letter; (2) that McNair failed to present evidence that the City intended to enter into a contract with him; (3) that McNair did not present evidence that the contract was approved as to form by the City Attorney‟s office; (4) that McNair did not present evidence of breach of contract because Dr. Kim was permitted to report someone to the DMV who she believed was a danger to the public; (5) that McNair did not present evidence that any damages were foreseeable at the time of contract formation because he was not employed by AC Transit at that time; and (6) that McNair did not present any evidence of consideration for the contract. The trial court entered judgment in favor of the City on April 12, 2013, with notice of entry on April 18. McNair‟s timely notice of appeal now brings the matter before this court. 7  II. DISCUSSION A. Summary Adjudication on the Intentional Tort Cause of Action 1. Standard of Review The trial court granted the City‟s motion for summary adjudication of McNair‟s intentional tort cause of action. “A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action.” (Garcia v. W & W Community Development, Inc. (2010) 186 Cal.App.4th 1038, 1041.) On appeal, we review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150-151.) Moreover, “we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) 2. The Litigation Privilege “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a „publication or broadcast‟ made as part of a „judicial proceeding‟ is privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) The litigation privilege is “not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) It is applied broadly, 8 and doubts are resolved in favor of the privilege. (Wang v. Heck (2012) 203 Cal.App.4th 677, 684 (Wang); Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 500.) The purpose of the litigation privilege is to afford litigants and witnesses freedom of access to the courts without the fear of harassment by subsequent derivative tort actions. (Silberg, supra, 50 Cal.3d at 213.) The privilege also “ „exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.‟ ” (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958.) Thus, the phrase, “ „judicial or quasi-judicial proceedings,‟ ” has been “ „defined broadly to include “ „all kinds of truth-seeking proceedings,‟ ” including administrative, legislative and other official proceedings.‟ ” (Wang, supra, 203 Cal.App.4th at 684.) As is relevant here, the DMV, as an administrative body of the state, has been recognized as engaging in quasi-judicial proceedings for purposes of the privilege. (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303 (Wise).) Application of this analytical framework to the present case leads us easily to the conclusion that the litigation privilege bars McNair‟s cause of action for intentional tort. Under Silberg, Dr. Kim‟s letter to the DMV was a communication made in a “quasi- judicial proceeding.” (See Wise, supra, 83 Cal.App.4th at p. 1303.) Further, Dr. Kim was an individual “authorized by law”3 to communicate to the DMV regarding McNair‟s 3 Any argument that Dr. Kim‟s disclosure was not “authorized by law” because it violated confidentiality statutes is foreclosed by Jacob B. v. County of Shasta (2007) 40 Cal.4th 948 (Jacob B.). In that case, the plaintiff argued that “because the letter broke confidentiality laws, it was not permitted by law and [writer of the letter] was not authorized by law to communicate the information to the court.” (Id. at 958.) In clarifying the “ „permitted by law‟ ” and “authorized by law” language, the court wrote: “It should be apparent that in Albertson, by using the term „permitted by law,‟ we meant to broaden the privilege‟s reach beyond traditional limits by including any category of publication permitted by law. We did not suggest that the specific publication must be permitted.” (Id. at p. 958-959.) Under Jacob B., “such a communication is privileged even if a specific communication might not be permitted by law because, for example, it was either perjurious or meant to be kept confidential. Just as the privilege extends to communications otherwise within section 47(b)‟s reach that are perjurious, it also extends 9 ability to drive. In addition, Dr. Kim wrote to the DMV “to achieve the objects of the litigation” because she sent the letter so that the DMV could evaluate McNair‟s ability to drive based on all relevant information. And, the letter had “some connection or logical relation to the action” because it actually prompted the subsequent DMV hearings regarding McNair‟s driving capabilities. (Silberg, supra, 50 Cal.3d at p. 212.) Thus, all four requirements for the litigation privilege laid out in Silberg are satisfied under the present facts. Moreover, our conclusion in this case is buttressed by reference to relevant precedent. In Wise, supra, 83 Cal.App.4th 1296, for example, the court held that a husband‟s voluntary report to the DMV regarding his wife‟s drug usage and its impact on her ability to operate a motor vehicle fell within the litigation privilege. (Wise, supra, 83 Cal.App.4th at p. 1303.) The court rejected the wife‟s argument that her statutory and constitutional right to privacy must prevail over the litigation privilege because “the privilege is absolute and precludes recovery on all tort theories, including claims for invasion of privacy.” (Id. at p. 1302-1303.) As the Wise court reiterated: “An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.” (Id. at p. 1303.) Thus, the husband‟s statements to the DMV were covered by the privilege for quasi-judicial proceedings. (Ibid.) Similarly, here, because Dr. Kim‟s letter to the DMV questioning McNair‟s driving safety was a “statement [ ] made to initiate official action,” the absolute privilege applies. (See ibid.) Additionally, in Wang, supra, 203 Cal.App.4th 677, two individuals were critically injured after being struck by a car driven by an individual who suffered an to communications otherwise within its reach that might be deemed confidential.” (Id. at p. 959.) Here, Dr. Kim disclosed McNair‟s confidential medical information to the DMV. As stated above, both the DMV and state law clearly contemplate, encourage, and even sometimes require, communications from the public—and physicians in particular—regarding others‟ ability to drive. Thus, even if her particular disclosure violated confidentiality laws, Dr. Kim‟s letter fell within a category of communication permitted by law and was therefore within the purview of the privilege. 10 epileptic seizure. The victims subsequently sued the driver‟s neurologist based on the doctor‟s prior report to the DMV that the driver‟s epilepsy did not affect his ability to drive safely. (Id. at p. 679.) The appellate court held that none of the appellants‟ causes of action could stand because they all relied on the doctor‟s report to the DMV, which was clearly covered by the litigation privilege as a communication authorized by law submitted to the DMV to aid in determining driver safety. Appellant attempts to distinguish Wang because that case “concerned a report to the DMV that was required to get a license reinstated and that the patient requested the doctor to complete.” (Ibid. at p. 680-681.) McNair also points out that there was no issue of a CMIA violation in Wang. We do not find either of these distinctions meaningful. Rather, as in Wang, Dr. Kim‟s letter was an authorized communication to the DMV to aid that quasi-judicial agency in determining McNair‟s driving capabilities. As such, it was covered by the privilege. Indeed, McNair does not even argue on appeal that Dr. Kim‟s letter, as a general matter, fails to meet the criteria for application of the litigation privilege. Rather, he cites authority for an exception to the litigation privilege, under which courts have refused to apply the privilege when its general provisions conflict with a specific statute. Under this line of cases, application of the litigation privilege has been deemed inappropriate where the specific statute “would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.” (See Action Apartment, supra, 41 Cal.4th at pp. 1237, 1246 [City of Santa Monica Tenant Harassment ordinance]; see also Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 337-340 [Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788)]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1577 [Child Abuse and Neglect Reporting Act]; Begier v. Strom (1996) 46 Cal.App.4th 877, 884-885 [same].) According to McNair, application of the litigation privilege in this case would eliminate safeguards governing disclosures of medical information that the Legislature sought to protect in the CMIA and would therefore render the CMIA “significantly or wholly inoperable.” We are not convinced. 11  The CMIA “was originally enacted . . . „to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.‟ [Citation.]” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38.) By its express terms, the CMIA recognizes that its confidentiality mandate is not absolute. Rather, section 56.10 enumerates numerous instances where disclosure of confidential information is either mandatory or permissive. In particular, subdivision (c)(14) of section 56.10 (subdivision (c)(14)) states: “(c) A provider of health care or a health care service plan may disclose medical information as follows . . . (14) The information may be disclosed when the disclosure is otherwise specifically authorized by law . . . .” (§ 56.10 (c)(14).) The City is correct in describing subdivision (c)(14) as a “catchall provision” as it “serves as the residuary clause in section 56.10. It legitimizes a myriad of situations the Legislature may not have cared to spell out, by establishing the principle of permissive disclosure when specifically authorized by law.” (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1414 (Shaddox).)4 Here, Dr. Kim‟s disclosure was arguably “specifically authorized” under Health and Safety Code section 103900, subdivision (a) (section 103900(a)), which provides as follows: “Every physician and surgeon shall report immediately to the local health officer in writing, the name, date of birth, and address of every patient at least 14 years of age or older whom the physician and surgeon has diagnosed as having a case of a disorder characterized by lapses of consciousness. However, if a physician and surgeon reasonably and in good faith believes that the reporting of a patient will serve the public interest, he or she may report a patient’s condition even if it may not be required under 4 We reject McNair‟s argument that, because many of the mandatory disclosure provisions found in subdivision (b) of section 56.10 deal with disclosures in judicial or quasi-judicial proceedings, all such disclosures must be compelled rather than voluntary. To the contrary, several of the permissive disclosures authorized by subdivision (c) of section 56.10 involve judicial proceedings. (§ 56.10, subds. (c)(8)(A) [certain proceedings in which an employer and an employee are parties] & (c)(12) [conservatorship/guardianship proceedings].) As we read the statute, voluntary disclosures are permitted in the litigation context where authorized by some provision of subdivision (c), including the catchall provision found in subdivision (c)(14). 12 the department’s definition of disorders characterized by lapses of consciousness pursuant to subdivision (d). (Health & Saf. Code, § 103900(a), italics added.) Unsurprisingly, McNair and the City argue over the application of section 103900(a) in this case. McNair, for instance, stresses that Dr. Kim did not comply with the exact terms of section 103900(a) because she forwarded her letter directly to the DMV rather than to the “local health officer” as required by the statute. The City, in contrast, claims that it was the pattern and practice at the MHHC for physicians to send letters directly to the DMV. It further asserts that Dr. Kim sent the letter out of her concern for the safety of her patient and the public. Thus, the disclosure was in the public interest as required by the statute. Arguably, some or all of these contentions raise triable issues of material fact, which would make summary adjudication inappropriate. For purposes of determining whether resort to the litigation privilege was proper under the circumstances of this case, however, we need not finally determine whether Dr. Kim‟s letter was, in fact, issued in compliance with section 103900(a). Rather, employing an analysis similar to that used by this Division in Shaddox, supra, 110 Cal.App.4th 1406, we conclude that—because California has a policy of encouraging reports regarding suspected unsafe drivers—subdivision (c)(14) must be construed in a way that will not impede voluntary reports of the type generated by Dr. Kim, “reports whose importance is already recognized and immunized by section 47, subdivision (b)(3).” (See Id. at p. 1418.) In Shaddox, a police officer (Shaddox) in the San Francisco Police Department (SFPD) sued his dentist alleging a violation of the CMIA, invasion of privacy, and intentional and negligent infliction of emotional distress based on the dentist‟s report to the SFPD that Shaddox might be dependent on prescription pain medication. (Id. at p. 1409-1410.) The Court held, on “separate and independent grounds,” that the dentist‟s disclosure of Shaddox‟s medical information was 13 both lawful under subdivision (c)(14) and privileged pursuant to section 47(b)‟s litigation privilege.5 (Id. at p. 1409, 1418.) The Shaddox court‟s analysis of the applicability of the litigation privilege focused, as does ours in this case, on the need “ „ “to assure utmost freedom of communications between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing. . . .” ‟ ” (Shaddox, supra, 110 Cal.App.4th at pp. 1415-1416.) Because the dentist in Shaddox was “alerting the SFPD about one of its officers possibly having a problem that could impair his ability to perform the vital public safety responsibilities entrusted to a metropolitan law enforcement agency,” and because his communication led to an authorized investigation, the communication qualified as one made “in the course of an „official proceeding authorized by law‟ and was consequently privileged.” (Id. at p. 1417.) With respect to the potential violation of the CMIA, the Shaddox court emphasized that “California has a policy of encouraging reports concerning suspected misconduct or unfitness by law enforcement officers.” (Shaddox, supra, 110 Cal.App.4th at p. 1412.) Specifically, the court pointed to a local ordinance encouraging citizens to report claims of misconduct and a state statute requiring each law enforcement agency to establish a procedure for investigating such complaints. (Id. at pp. 1412-1413.) Although none of the referenced statutes expressly authorized the disclosure of confidential information, the court concluded that this did not exclude them from the reach of subdivision (c)(14) because they involved a particular type of communication authorized by law. (Id. at pp. 1413-1414, 1418.) The Shaddox court also highlighted the 5 McNair‟s contention that Shaddox pre-dated HIPAA and is thus irrelevant lacks merit. HIPAA does not provide a private right of action and we agree with the City that “state law immunity may bar private suits consistent with federal statutes that afford no private right of action.” (Doe v. Bd. of Trs. of the Univ. of Ill., 429 F.Supp.2d 930, 944 (N.D. Ill. 2006) [“[e]very court to have considered the issue . . . has concluded that HIPAA does not authorize a private right of action”]; see Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 282-283.) Moreover, we find the question of whether Dr. Kim‟s disclosure violated HIPAA to be analytically distinct from the question of whether such disclosure was authorized under the CMIA. 14 important public safety concerns implicated by the dentist‟s report and noted that “issues of public safety may be paramount to personal privacy.” (Id. at p. 1418.) In this regard, the court quoted the seminal case of Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, in which our Supreme Court concluded: “ „[T]he public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.‟ ” (Shaddox, supra, 110 Cal.App.4th at p. 1418.) And, the dentist‟s report was one the importance of which was recognized and immunized by the litigation privilege. (See ibid.) Under all of these circumstances, the Shaddox court determined that the dentist‟s disclosure in that case was authorized under subdivision (c)(14) and therefore not violative of the CMIA. (Id. at pp. 1418.) As we read Shaddox, a voluntary disclosure of confidential medical information falls within the reach of subdivision (c)(14) of section 56.10 if a public policy exists encouraging such disclosure; the disclosure involves issues of public safety; and it is a communication which would otherwise be immunized by the litigation privilege. In this case, California clearly has a policy of encouraging, and sometimes even mandating, reports regarding suspected unsafe drivers. As described above, the DMV website indicates that the agency finds out about persons who may be unsafe to drive from many sources, including physicians and members of the public. Section 103900(a) expressly contemplates disclosure of even confidential information to the DMV where public safety is implicated. Moreover, “[t]he DMV is a public agency, authorized to conduct an investigation to determine whether the license of any person should be suspended or revoked. (Veh. Code, § 13800.) The department‟s proposed decision to revoke or suspend a person‟s driver‟s license is subject to an evidentiary hearing and decision by an administrative officer or body, as well as review by the courts. (Veh. Code, § 14100 et seq.)” (Wise, supra, 83 Cal.App.4th at p. 1303.) In addition, Dr. Kim‟s letter clearly implicated issues of public safety, as she was disclosing a problem that could impair McNair‟s ability to perform the public safety duties entrusted to him as a bus driver. 15 Finally, this is a situation where the importance of the report has already been recognized and immunized by the litigation privilege. In short, we find this situation essentially indistinguishable from that confronted by the Shaddox court, and therefore, conclude that Dr. Kim‟s disclosure was authorized under subdivision (c)(14). As a consequence, it was not violative of the CMIA, regardless of whether it complied with all of the technical requirements of section 103900(a). Under such circumstances, it cannot be argued that application of the litigation privilege would render the CMIA significantly or wholly inoperable. We, therefore, see no error in the trial court‟s application of the litigation privilege to foreclose McNair‟s intentional tort cause of action in this case.6 B. Nonsuit on the Breach of Contract Cause of Action 1. Standard of Review A defendant moves for nonsuit in order to test the sufficiency of the plaintiff‟s evidence before presenting his or her evidence to the trier of fact. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, fn. 4.) “A defendant is entitled to nonsuit if the trial court determines as a matter of law that plaintiff's evidence, when viewed most favorably to the plaintiff under the substantial evidence test, is insufficient to permit a jury to find in his favor.” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 713.) On appeal, we review a grant of nonsuit de novo. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.) Reversal of a judgment of nonsuit is warranted if there is “some substance to plaintiff‟s evidence upon which reasonable minds could differ . . . .” (Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105.) 6 Pettus v. Cole (1996) 49 Cal.App.4th 402 (Pettus), relied on by McNair as authority for the notion that the litigation privilege would render the CMIA‟s permissible disclosure provisions significantly or wholly inoperable is clearly distinguishable. In Pettus, the court determined that the litigation privilege did not apply because the plaintiff‟s disability evaluation was not a quasi-judicial proceeding. (Id. at p. 437.) Because section 47(b) was inapplicable, the Pettus court examined the plaintiff‟s alternative argument— that the “more general privilege” in section 47, subdivision (c) applied. Obviously, the court‟s discussion of subdivision (c) has no bearing on this case. 16  2. The Litigation Privilege The City argues that the trial court properly granted nonsuit on McNair‟s breach of contract cause of action because it is barred by the litigation privilege. McNair, in contrast, asserts that the litigation privilege generally applies only to causes of action in tort and not breach of contract. In Navellier v. Sletten (2003) 106 Cal.App.4th 763 (Navellier II)), this Division noted that, while certain earlier decisions had applied the litigation privilege to bar breach of contract claims, generally the privilege is “described as one that precludes liability in tort, not liability for breach of contract.” (Id. at p. 773.) Without deciding the issue, we further remarked that these prior cases did not “discuss whether all breach of contract actions involving privileged communication are necessarily precluded.” (Id. at p. 773-774; see Laborde v. Aronson (2001) 92 Cal.App.4th 459, 461-463, disapproved on another point in Musaelian v. Adams (2009) 45 Cal.4th 512, 520; Pollock v. Superior Court (1991) 229 Cal.App.3d 26, 28-30.) Since Navellier II, however, subsequent appellate decisions have clarified when the litigation privilege applies to breach of contract claims. For example, in Wentland v. Wass (2005) 126 Cal.App.4th 1484 (Wentland), the court held that the litigation privilege did not protect voluntary statements made in the course of litigation that breached an express confidentiality agreement. (Id. at p. 1489-1490.) The court concluded that “whether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege.” (Id. at p. 1492.) According to Wentland, those underlying policies are to “ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.” (Ibid.) Ultimately, the court concluded that the litigation privilege did not apply because the breach at issue “was not simply a communication, but also wrongful conduct or performance under the contract.” (Id. at 1494.) As the Wentland court saw it: “In reaching settlement . . ., the parties presumably came to an acceptable conclusion about the truth of [one party‟s] comments about [the other‟s] management of the partnership. Allowing such comments to be made in 17 litigation, shielded by the privilege, invites further litigation as to their accuracy and undermines the settlement reached in the [prior dispute].” (Ibid.) In contrast, in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1497, the appellate court concluded that the litigation privilege barred plaintiff‟s breach of contract claim because such a finding furthered the policies underlying the litigation privilege. Feldman involved an unlawful detainer action in which the tenants cross-complained on numerous grounds, including breach of contract, negligence, and wrongful eviction. (Id. at p. 1475.) All of these causes of action were premised on certain alleged harassing and threatening conduct by the landlord and its agents, including, ultimately, the filing of the unlawful detainer action. (Id. at 1493-1494, 1498.) The contract at issue was a basic sublease. (Id. at pp. 1473-1474.) Under such circumstances, the appellate court concluded that application of the privilege to bar the breach of contract claim furthered “the policy of allowing access to the courts without fear of harassing derivative actions.” (Id. at pp. 1497-1498.) More recently, in Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 (Vivian), the appellate court held that the litigation privilege applied to bar a breach of contract claim where an ex-wife made voluntary statements about her ex-husband to a county sheriff‟s internal affairs department, in alleged violation of a settlement agreement previously negotiated by the parties in the context of litigation over a temporary restraining order. (Id. at p. 270-271, 276-277.) In that settlement agreement, each party agreed “ „not to disparage the other to any other party.‟ ” (Id. at p. 270.) The court concluded that the litigation privilege applied to bar the ex-husband‟s breach of contract claim for two reasons. First, the settlement agreement did not “clearly prohibit” the conduct that the ex-husband challenged. Specifically, the term “ „disparage‟ ” was viewed as somewhat ambiguous and thus the language of the agreement did not “expressly prohibit” the ex- wife from making statements to the internal affairs investigators. (Id. at p. 276-277.) Second, the application of the litigation privilege furthered the policies underlying the privilege. (Id. at p. 277.) In particular, and in contrast to Wentland, the dispute in the case involved “a significant public concern—a governmental investigation into 18 inappropriate conduct by a police officer.” (Ibid.) Application of the privilege in such circumstances promoted “full and candid responses to a public agency, which is very much the purpose of the privilege and in the public interest.” (Ibid.) Under the analysis adopted in Vivian, application of the litigation privilege to bar McNair‟s breach of contract claim is clearly warranted in this case. With respect to the terms of the alleged agreement, for instance, none of the documents even potentially identified by McNair as part of the “[p]artly written, partly oral and partly implied” contract in this matter can be said to “clearly prohibit” Dr. Kim‟s conduct in this case. (Vivian, supra, 214 Cal.App.4th at p. 276.) Rather, as discussed above, the Consents all stated that McNair‟s medical records could be released by DPH when “permitted or required by law.” And, pursuant to the HIPPA Privacy Notice and the DPH Summary Notice, McNair‟s confidential health information could be disclosed “when necessary to prevent a serious threat to your health and safety or the health and safety of the public or another person.” Obviously, whether Dr. Kim‟s conduct in this case was justified under the laws detailed in these documents has been the subject of significant debate. Thus, regardless of whether her conduct may or may not ultimately be found to violate either state or federal law, it cannot be said that her actions were “clearly prohibited.” With respect to the second prong of the Vivian analysis, application of the litigation privilege in this case unequivocally furthers the policies underlying the privilege. In Wang, the court articulated the purpose of the privilege in the context of doctors‟ communications to the DMV, stating: “The litigation privilege „ “exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.” ‟ ” (Wang, supra, 203 Cal.App.4th at p. 684.) Immunizing Dr. Kim from potential liability in this case for disclosing her public safety concerns to the DMV clearly advances this policy. Without such protection, a doctor might hesitate to report suspected harmful conditions or fail to truthfully and completely describe the scope of the potential problem. (See Wentland, supra, 126 Cal.App.4th at p. 1492 [general policies underlying the litigation privilege include ensuring “free access” to the courts and promoting “complete and truthful” 19 testimony]; see also Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754 [holding defendants‟ statements to the police regarding their suspicions of plaintiff‟s criminal activity absolutely privileged; there must be “ „an open channel of communication‟ ” between citizens and public authorities where citizens can call attention to suspected wrongdoing].) As the facts in this case satisfy both of the Vivian criteria, we conclude that the litigation privilege not only bars McNair‟s intentional tort claim, but his breach of contract claim as well.7 Indeed, our conclusion in this regard is buttressed by the Supreme Court‟s determination in Jacob B., supra, 40 Cal.4th at p. 962, that common law, statutory, and constitutionally based claims for invasion of privacy are all barred by the litigation privilege. In short, it is the gravamen of the cause of action rather than its designation that is controlling. (Ibid.) Here, both causes of action asserted by McNair are based solely on the propriety of Dr. Kim‟s letter to the DMV. Thus, as in Jacob B., McNair has found a “conveniently different label for pleading what is in substance an identical grievance arising from identical conduct.” (Ibid.; see also Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th 1467, 1497 [applying the litigation privilege to a breach of contract claim where the “same communicative conduct formed the basis for the tort and breach of contract causes of action”].) Under such circumstances, application of the litigation privilege to bar both causes of action is appropriate.8 7 The cases cited by McNair in opposition to this conclusion do not change our analysis. Rather, we agree with the City that these cases are all readily distinguishable as involving various express commercial contracts, with no articulated public safety concern. (See Wentland, supra, 126 Cal.App.4th 1484 [breach of settlement agreement in partnership litigation]; Paul v. Friedman (2002) 95 Cal.App.4th 853 [confidentiality agreements executed as part of a failed mediation in a brokerage case]; ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307 [breach of confidentiality agreement in trade secret context].) 8 Because we conclude that both of McNair‟s claims are defeated by the litigation privilege, we do not consider the viability of the other grounds advanced for nonsuit in this case or the many challenges McNair makes to various pre-trial motions resolved by the trial court. 20  III. DISPOSITION The judgment is affirmed. Each party to bear their own costs. 21  _________________________ REARDON, J. We concur: _________________________ RUVOLO, P. J. _________________________ RIVERA, J. McNair v. CCSF A138952 22 Trial Court: City and County of San Francisco Superior Court Trial Judge: Hon. Anne-Christine Massullo Counsel for Plaintiff and Katzenbach Law Offices Appellant: Christopher W. Katzenbach Counsel for Respondents: Dennis J. Herrera City Attorney Owen Clements Chief of Complex and Special Litigation Erin Bernstein Matthew Goldberg McNair v. CCSF A138952 23 

663 F.3d 1304 (2011) MALLORY & EVANS CONTRACTORS & ENGINEERS, LLC, Plaintiff-Appellant, v. TUSKEGEE UNIVERSITY, Defendant-Appellee. No. 11-10940. United States Court of Appeals, Eleventh Circuit. December 5, 2011. Dana Brent Miles, Lauren Clipp Giles, Miles, Patterson, Hansford, Tallant LLC, Cumming, GA, Robert T. Meadows, III, Capell & Howard, PC, Opelika, AL, for Plaintiff-Appellant. Fred David Gray, Jr., Fred D. Gray, Sr., Gray, Langford, Sapp, McGowan, Gray, Gray & Nathan, Tuskegee, AL, for Defendant-Appellee. Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT,[*] District Judge. PER CURIAM: The district court's jurisdiction in this case is not contested, but jurisdiction cannot be created by consent. Lowry v. Int'l Bhd. of Boilermakers, Iron Shipbuilders & Helpers of Am., 259 F.2d 568, 575 (5th Cir. 1958). We are obligated to raise concerns about the district court's subject matter jurisdiction sua sponte. *1305 Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir.1985) (citation omitted). The complaint in this case alleges that Plaintiff Mallory & Evans Contractors and Engineers, LLC ("Mallory & Evans") is a "Limited Liability Company created under the laws of the State of Georgia" with "[i]ts principal place of business ... in Scottdale, Georgia." (Dkt 1 at 1.) This is an insufficient allegation of its citizenship. In Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir.2004), we held that a limited liability company, like a partnership, "is a citizen of any state of which a member of the company is a citizen." We continued: "To sufficiently allege the citizenships of these unincorporated business entities, a party must list the citizenships of all the members of the limited liability company...." Id. Additionally, the complaint alleges that Defendant Tuskegee University ("Tuskegee") is "an Alabama institution of higher learning, located in Macon County, Alabama." (Dkt 1 at 1.) This, too, is an insufficient allegation of citizenship. Section 1332 does not mention institutions of higher learning. 28 U.S.C. § 1332 (2006). The complaint should allege the citizenship of both Mallory & Evans and Tuskegee. Because we suspect there may be diversity of citizenship, Mallory & Evans is invited to file in this court (within fourteen days after the date of this order) a motion for leave to amend the complaint to correct the deficient allegations of citizenship. "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653 (2006). See also Firemen's Ins. Co. of Newark, N.J. v. Robbins Coal Co., 288 F.2d 349, 350 (5th Cir.1961). The parties are urged to agree both upon the grant of leave to file such amendment and upon the truth of the allegations of such amendment unless there is a bona fide dispute about the citizenship of Mallory & Evans or Tuskegee or both. Should no such motion be filed, the parties are directed to file (within twenty-one days after the date of this order) letter briefs, not exceeding five pages, addressing the issue of whether the record in this case includes evidence of Mallory & Evans's citizenship and Tuskegee's citizenship at the time suit was filed, and if not, to show cause why this case should not be remanded to the district court for the limited purpose of determining whether diversity jurisdiction exists in this case. SO ORDERED. NOTES [*] Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia, sitting by designation.

181 F.2d 186 Carl COIN, Appellant,v.Emma GROSSE, Appellee. No. 10982. United States Court of Appeals Sixth Circuit. April 14, 1950. Appeal from the United States District Court for the Eastern District of Michigan; Frank A. Picard, Judge. Smith & Brooker, Bay City, Mich., Ralph H. Bower, Midland, Mich., for appellant. Frederick C. Newman, Jr., Lansing, Mich., Ernest P. LaJoie, Detroit, Mich., for appellee. Before SIMONS, McALLISTER, and MILLER, Circuit Judges. PER CURIAM. 1 The above cause coming on to be heard upon the briefs of the parties and the transcript of the record, and the court being duly advised, 2 Now, therefore, it is ordered, adjudged, and decreed that the judgment of the District Court be and the same is hereby affirmed.

648 F.Supp.2d 944 (2009) UNITED STATES of America, Plaintiffs, v. 2007 BMW 335I CONVERTIBLE, VIN:WBAWL73547PX47374, Defendant. Case No. 08-CV-2177. United States District Court, N.D. Ohio, Eastern Division. August 7, 2009. *945 Herbert J. Villa, Office of the U.S. Attorney, Cleveland, OH, for Plaintiffs. Philip J. Korey, Cleveland, OH, for Defendant. MEMORANDUM & ORDER KATHLEEN McDONALD O'MALLEY, District Judge. Before the Court is the Motion for Attorney Fees filed by Claimants in Interest Charles Zuchowski and Jason Zuchowski ("Claimants"). (Doc. 20, Motion for Attorney Fees.) By way of their motion, the Claimants request an order awarding attorney's fees in the amount of $9,920.00. (Id., Ex. E.) For the reasons articulated below, the Court DENIES the Motion for Attorney Fees. *946 I. BACKGROUND The Claimants' request for attorney's fees arises out of a civil forfeiture action in which the United States of America ("the Government") seized a vehicle, i.e., a BMW 335i convertible, VIN: WBAWL73547PX47374 ("the vehicle"). (Doc. 1, Complaint.) The Government seized the vehicle in connection with the arrest of Jeremy Zuchowski ("Jeremy") on March 25, 2008. On that date, law enforcement officers observed Jeremy commit several traffic violations while driving the vehicle. There was an outstanding warrant out for Jeremy's arrest relating to an Cuyahoga County, Ohio, grand jury indictment charging him with four counts of drug trafficking, so the officers arrested him, did an inventory search of vehicle, and found marijuana and hash. In addition, prior to his arrest, Jeremy had driven the vehicle to deliver a quantity of the illegal drug "ecstacy" to a confidential source. The Government filed this civil forfeiture action on September 11, 2008, alleging forfeiture pursuant to 21 U.S.C. § 881(a)(4).[1] (Doc. 1.) On September 29, 2008, the Claimants, Charles Zuchowski ("Charles"), Jeremy's father, and Jason Zuchowski ("Jason"), Jeremy's brother and Charles' son, filed Answers admitting that, on the date of Jeremy's arrest, Jeremy was the driver and sole occupant of the vehicle and denying any knowledge of the conduct that led to the seizure of the vehicle. (Docs. 8, 9.) They further asserted that Jason is the title owner of the vehicle while Charles traded-in his GS 300 Lexus in exchange for the vehicle, made the $10,000.00 down payment for the purchase of the vehicle, and made the monthly payments on the $22,188.23 amount financed. Charles and Jason raised numerous affirmative defenses in their Answers, including the innocent owner defense. (Id.) On the same day, each of the Claimants filed a Claim in Interest and Contest of Forfeiture pursuant to Rule G(5)(a) of the Supplemental Rules of Maritime Claims and Arrest Forfeiture Actions ("Claim in Interest"). (Docs. 11, 12.) Each Claimant's Claim in Interest contests the forfeiture action. The Court held a Case Management Conference on January 13, 2009. (Doc. 16.) Two weeks later, the Government filed a Motion to Dismiss (Doc. 18) voluntarily requesting dismissal pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Prior to the filing of the Government's motion for voluntary dismissal, the Court discussed with the parties whether the Claimants would oppose such a motion. Counsel for the Claimants represented that he would not oppose the Government's motion to voluntarily dismiss the case without prejudice under Rule 41(a)(2), but only on the condition that dismissal would also be without prejudice to his right to seek an award of attorney's fees. The Court and both parties agreed that Claimant's Counsel's concerns could be addressed by expressly noting in the dismissal order his entitlement to file an appropriate motion for attorney's fees. The Court granted the Government's motion for voluntary dismissal on January 30, 2009, noting that the motion was unopposed, *947 and dismissing the case without prejudice. (Doc. 19.) Further, as it had previously discussed with the parties, the Court stated in a footnote that "[d]ismissal is without prejudice to any right to file a motion for attorneys' fees, if appropriate." (Id.) On February 4, 2009, the Claimants filed their Motion for Attorney Fees seeking fees in the amount of $9,920.00 pursuant to 28 U.S.C. § 2465(b)(1) on the grounds that the Claimants "substantially prevailed" in the dismissed lawsuit. (Doc. 20.) The Government filed a response in opposition on February 10, 2009, arguing that the Claimants did not "substantially prevail" based on the fact that the underlying forfeiture action was voluntarily dismissed without prejudice. (Doc. 21.) On February 19, 2009, the Claimants filed their Reply to Government's Brief in Opposition to Attorney Fees, and Additional Memorandum for the Award of Attorney Fees. (Doc. 22.) In addition to containing their reply in support of the arguments raised in their Motion for Attorney Fees pursuant to 28 U.S.C. § 2465(b)(1), the Claimants' asserted an entirely new basis for recovery of attorney fees in their reply brief — specifically, the Court's discretionary authority to award fees in connection with voluntary dismissal pursuant to Rule 41(a)(2). (Doc. 22.) The Government filed a sur-reply (without leave) on February 20, 2009 re-asserting that the "only issue before this Court is whether the Claimants have `substantially prevailed' in this civil forfeiture action." (Doc. 23 at 1.) Finally, on June 30, 2009, the Government filed a supplement to its sur-reply, directing the Court to a recently decided case it argues is supportive of its position. (Doc. 24.) Consequently, the Claimants' Motion for Attorney Fees (Doc. 20) is now ripe for adjudication. II. LAW & ANALYSIS[2] There are two primary issues to resolve: (1) whether the Claimants have "substantially prevailed" and are thus entitled to attorney's fees pursuant to 28 U.S.C. § 2465(b)(1)(A) and (2) whether the Claimants have asserted a claim for attorney's fees pursuant to the Court's discretionary authority under Rule 41(a)(2) of the Federal Rules of Civil procedure, and, if so, whether, in the exercise of that discretion, the Court finds that such an award is appropriate under the circumstances of this case. For the reasons articulated below, the Court finds for the Government with respect to both questions and, accordingly, DENIES the Claimants' Motion for Attorney Fees (Doc. 20). A. THE CLAIMANTS HAVE NOT "SUBSTANTIALLY PREVAILED" UNDER § 2465(b)(1)(A) Initially, the only basis[3] for the Claimants' Motion for Attorney Fees was that 28 U.S.C. § 2465(b)(1)(A) provides for such fees under the circumstances of this case. Section 2465(b)(1)(A) is a provision of the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"). Congress enacted CAFRA in response to the public perception that the Government was over-reaching in civil and criminal forfeiture proceedings. See United States v. Khan, 497 F.3d 204, 208 (2d Cir.2007); United States v. One Lincoln Navigator, 328 F.3d 1011, 1012 (8th Cir. 2003) (stating that CAFRA was enacted "to make federal civil forfeiture procedures *948 fair to property owners and to give owners innocent of any wrongdoing the means to recover their property and make themselves whole after wrongful government seizures"). As part of the effort to reign-in potentially overzealous Government conduct, CAFRA provides for the recovery of attorney's fees as follows: (b) (1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for — (A) reasonable attorney fees and other litigation costs reasonably incurred by the claimant; 28 U.S.C. § 2465(b)(1)(A). In sum, CAFRA requires the Government to pay the attorney's fees of any claimant who "substantially prevails" in a forfeiture proceeding. The Claimants argue that, because the Government voluntarily dismissed its civil forfeiture action pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, they have "substantially prevailed" and are entitled to recover attorney fees pursuant to § 2465(b)(1)(A). The Government does not contest that this is the type of case to which § 2465(b)(1) might apply.[4] The Government, instead, argues that the Claimants have not "substantially prevailed" as that phrase is defined by applicable authority interpreting § 2465(b)(1). 1. Discussion of Relevant Case Law In Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court analyzed the definition of "prevailing party" pursuant to statutes conditioning such recovery on "prevailing party" status. The Court held that "[o]ur precedents thus counsel against holding that the term `prevailing party' authorizes an award of attorney's fees without a corresponding alteration in the legal relationship of the parties." Id. In so holding, the Court expressly rejected the "catalyst theory" of recovery, "which posits that a plaintiff is a `prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Id. at 601, 121 S.Ct. 1835. Several lower courts have cited Buckhannon for the operative definition of "substantially prevails" as it is used in CAFRA. See, e.g., United States v. Minh Huynh, Case No. 08-20541, 2009 WL 1685139, at *2 (5th Cir. June 16, 2009) (quoting Buckhannon for the applicable definition of 28 U.S.C. § 2465(b)(1) in finding that "the Government's dismissal without prejudice [does not] bestow prevailing party status on Plaintiffs because it effected no `change in the legal relationship of the parties'"); United States v. Khan, 497 F.3d 204, 208 (2d Cir.2007) (noting in dicta that Buckhannon is the relevant point of departure for the definition of "substantially prevails" under CAFRA and stating that "Congress meant the fee-shifting provision to apply only in the event a claimant won in court" (emphasis in original)); Synagogue v. United States, 482 F.3d 1058, 1062-63 (9th Cir.2007) (quoting Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835, for the proposition that, to "substantially prevail," a claimant must achieve an "alteration of the legal relationship of the parties" marked by "judicial imprimatur *949 on the change"); United States v. $13,275.21, More or Less, in United States Currency, Case No. SA-06-CA-171-XR, 2007 WL 316455 (W.D.Tex. Jan. 31, 2007). For example, the Fifth Circuit recently addressed a situation factually analogous to the one at bar in Minh Huynh, 2009 WL 1685139, at *2. In Minh Huynh, the Government filed a civil forfeiture action against a BMW vehicle owned by the claimants. The Government subsequently dismissed the case without prejudice and returned the vehicle to the claimants. In affirming a magistrate judge's denial of attorney's fees pursuant to § 2465(b)(1), the Fifth Circuit reasoned as follows: [T]he Government's dismissal without prejudice [does not] bestow prevailing party status on Plaintiffs because it effected no "change in the legal relationship of the parties." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835 [149 L.Ed.2d 855]... (2001); see also, e.g., RFR Indus., Inc. v. Century Steps, Inc., 477 F.3d 1348, 1353 (Fed.Cir.2007) (reasoning that voluntary dismissal that leaves the plaintiff free to refile his claim effects no change in the parties' legal relationship). The return of Plaintiffs' car did nothing to prevent the Government from seizing it again. Additionally, the court entered no order with respect to the car addressing the merits of the forfeiture claim prior to its voluntary dismissal. Without the "necessary judicial imprimatur," Plaintiffs cannot establish prevailing party status as to this action. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 ... (emphasis removed). Id. In $13,275.21, 2007 WL 316455, another factually similar case, the Western District of Texas applied Buckhannon and engaged in a more thorough discussion of § 2465(b)(1)(A). In $13,275.21, the Government seized funds in the Prison Inmate Trust Fund Account of an inmate suspected of depositing proceeds from illegal drug trafficking into that account. Id. at *1. The inmate submitted a claim for the funds; the Government filed a verified complaint of forfeiture; and, on December 15, 2006, the Government filed a motion to dismiss the complaint under Rule 41(a)(2). Three days later, the Western District of Texas granted the motion to dismiss, ordered the Government to return the seized funds, and dismissed the case without prejudice. Id. The next day, the inmate filed a response to the Government's motion to dismiss stating that he did not oppose the motion but would pursue a claim for attorneys fees and costs. Id. In his subsequent motion for attorney's fees, the inmate in $13,275.21 argued for fees under § 2465(b)(1)(A) because he "substantially prevailed" as a result of the Government's Rule 41(a)(2) dismissal. Id. The Court denied the inmate's motion for attorney's fees, finding that he had not "substantially prevailed" because the dismissal was voluntary and without prejudice to re-filing the same case. Id. at *2. Furthermore, the Court elected not to award fees pursuant to its discretionary authority under Rule 41(a)(2). Id. at *1. First, the Court concluded that Buckhannon, 532 U.S. 598, 121 S.Ct. 1835 provides the governing standard for § 2465(b)(1)(A) actions, rejecting the argument that the statutory language "substantially prevails" is broader than the phrase "prevailing party" that the Supreme Court analyzed in Buckhannon. Id. at *8-*4. Second, applying Buckhannon, the Court noted that "[t]he Court's Rule 41(a)(2) dismissal Order was not a judgment on the merits or a settlement agreement enforced through a consent decree that created a material alteration of the legal relationship of the parties." Id. at *4. The Court noted that its dismissal Order requiring the Government to return the funds merely restored *950 the status quo ante between the parties; it "did not materially alter their legal relationship." Id. "A dismissal without prejudice, by its very nature, does not materially alter the legal relationship between the parties." Id. The Court held that "[f]or purposes of a civil forfeiture action, the Court concludes that a claimant in a civil forfeiture action `substantially prevails' when he obtains a dismissal with prejudice, summary judgment, or judgment on the merits after trial." Id. Third, the Court analyzed and rejected the inmate's argument that allowing the Government to dismiss without prejudice after saddling him with responsibility for substantial fees and costs was unfair. The Court reasoned that its discretionary authority under Rule 41(a)(2) to award fees, dismiss with prejudice, or deny the Government's motion to dismiss provided the Court with sufficient authority to prevent Government abuse. As stated by the Court: Simply put, Claimant cannot obtain a mandatory award of attorney's fees and costs pursuant to section 2465(b)(1)(A) because he did not substantially prevail; however, he might be able to obtain a discretionary award of attorney's fees and costs pursuant to Rule 41(a)(2), which gives the Court the authority to condition a plaintiff's voluntary dismissal "upon such terms and conditions as the court deems proper." Id. at *5. In United States v. Certain Real Property, 543 F.Supp.2d 1291 (N.D.Ala.2008), the Northern District of Alabama took a slightly different approach to the question of attorney's fees in a civil forfeiture case, but nonetheless applied Buckhannon as the governing standard. After the Government filed a motion to dismiss without prejudice pursuant to Rule 41(a)(2), the claimants filed a response indicating that they did not oppose dismissal but requesting that the action be dismissed with prejudice. Id. at 1292. The claimants argued that dismissal with prejudice would entitle them to attorney's fees under CAFRA, § 2465(b)(1). Id. After noting its discretionary authority to determine whether a Rule 41(a)(2) dismissal should be with or without prejudice, the Court dismissed the case with prejudice. Id. The Court reasoned that (1) the claimant's acquittal in the underlying criminal case eliminated any possibility that the government would pursue renew its civil forfeiture action; (2) the Government had admitted as much in its filings; and, (3) the Government had initially requested that the forfeiture case be dismissed with prejudice, only reversing course when it realized that the claimants might be entitled to attorney's fees if the case was dismissed with prejudice. Id. Having dismissed the case with prejudice, the Court turned to the issue of whether the claimants had "substantially prevailed" such that they were entitled to an award of attorney's fees pursuant to § 2465(b)(1)(A). Id. at 1293.[5] Citing Buckhannon as the governing standard, the Court held that, because dismissal with *951 prejudice is a "judicially qualified change in the legal relationship of the parties" (i.e., post-dismissal, the Government is barred by res judicata from filing the same civil forfeiture action in the future), the claimants had "substantially prevailed" for CAFRA purposes. Id. at 1294. In so holding, the Court expressly noted that "there is some disagreement over whether the `prevailing party' standard [analyzed in Buckhannon] and the `substantially prevailing' standard are the functional equivalent or two different standards." Id. The Court concluded based on prior cases from the Eleventh and D.C. Circuit, however, "that the differences between the two standards are inconsequential." Id. (citing Loggerhead Turtle v. County Council of Volusia County, Fla., 307 F.3d 1318, 1323 n. 4 (11th Cir.2002); Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452, 455-56 (D.C.Cir. 2002) (superceded by statute permitting recovery based on catalyst theory in Freedom of Information Act cases)). 2. Application of Relevant Authority As demonstrated by the above summary of applicable case law, Buckhannon is considered the governing authority for the definition of "substantially prevails" in § 2465(b)(1). Under Buckhannon, a claimant "substantially prevails" when there is a "judicially sanctioned change in the legal relationship of the parties." 532 U.S. at 605, 121 S.Ct. 1835. The above cases applying this standard to Rule 41(a)(2) dismissals of civil forfeiture actions, moreover, have consistently concluded that dismissal without prejudice is not such a change in the legal relationship of the parties. The Court agrees with these conclusions. First, although Buckhannon analyzed statutes awarding attorney's fees to the "prevailing party" as opposed to a party who "substantially prevails" (i.e., the CAFRA language), the Court finds that the terms are either synonymous or "substantially prevails" defines a narrower category of litigants based on the logic articulated by the D.C. Circuit in comparing the same terms: It is true ... that Buckhannon treated "prevailing party" as a "legal term of art." 532 U.S. at 603, 121 S.Ct. 1835.... Yet all must agree that a "prevailing party" and a "party who prevails" are synonymous. FOIA's addition of the modifier "substantially" might possibly be taken as limiting the category of "prevailing parties," but it cannot be taken as expanding the universe of parties eligible for a fee award. Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO, 288 F.3d at 455 (superceded by statute).[6] Second, applying Buckhannon *952 to the facts of this case, the Court's order dismissing the Government's civil forfeiture action without prejudice does not constitute a judicially sanctioned change in the parties relationship. Once again, the Court finds the courts' analysis in the cases discussed above persuasive. See, e.g., Minh Huynh, 2009 WL 1685139, at *2; $13,275.21, 2007 WL 316455 at *2. Nothing in the Court's dismissal order or the procedural history of the case precludes the Government from filing the same complaint at some point in the future. Accordingly, the Claimants are not entitled to attorney's fees pursuant to CAFRA, 28 U.S.C. § 2465(b) (1)(A). B. DISCRETIONARY AWARD OF ATTORNEY'S FEES PURSUANT TO RULE 41(a)(2) Although they cannot recover attorney's fees pursuant to CAFRA, the Claimants belatedly recognized another potential basis for recovery of attorney's fees. In their reply brief, the Claimants requested attorney's fees pursuant to the Court's discretionary authority to award fees and costs in connection with a Rule 41(a)(2) dismissal. (Doc. 22 at 4 ("Based on its discretionary authority under Civil Rule 41(a)(2), this Court may award attorney fees to Charles and Jason Zuchowski, independent of whether the Claimants are deemed to have `substantially prevailed' under CAFRA.").) Consequently, the Court must determine whether the Claimants waived their right to request fees pursuant to Rule 41(a)(2) by not asserting the request until their reply brief, and, if not, whether the Court finds a discretionary award appropriate under the circumstances. 1. Waiver It is undisputed that the Claimants did not assert their Rule 41(a)(2) argument until their reply brief. Although it is tempting to bypass the waiver issue by simply excusing the Claimants' procedural failings and analyzing their request on the merits, the Government's insistence that the only issue properly before the Court is whether the Claimants are entitled to attorney's fees under CAFRA precludes the Court from adopting this approach. It is a well-established procedural rule in the Sixth Circuit that failure to raise an argument in a motion acts as a waiver of that argument. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552-53 (6th Cir.2008); Inland Waters Pollution Controls, Inc. v. Marra/Majestic Joint Venture, Case No. 1:06-CV-2697, 2009 WL 700773, at *4-*5 (N.D.Ohio Mar. 13, 2009); Sims v. Piper, Case No. 07-14380, 2008 WL 3318746, at *5 (E.D.Mich. Aug. 8, 2008); Irwin Seating Co. v. Int'l Bus. Machs. Corp., Case No. 04-CV-568, 2007 WL 518866, at *2 n. 2 (W.D.Mich. Feb. 15, 2007) ("[T]he Sixth Circuit repeatedly has recognized that arguments raised for the first time in a party's reply brief are waived."); see generally 16AA Wright, Miller, Cooper & Struve, Federal Prac. & Proc. 4 ed. § 3974.3. Accordingly, the Court clearly would be justified in refusing to address the Claimants' untimely Rule 41(a)(2) arguments. Courts within this Circuit also recognize, however, that one of the primary purposes of the reply-waiver rule is to allow the non-moving party a fair opportunity to respond to all arguments. See Scottsdale Ins. Co., 513 F.3d at 553; Int'l Matex Tank Terminals-Illinois v. Chemical *953 Bank, Case No. 08-CV-1200, 2009 WL 1651291, at *2 (W.D.Mich. June 11, 2009). As such, a district court may exercise its discretion to allow the non-moving party to file a sur-reply addressing the argument newly asserted in the reply brief. See, e.g., Int'l Matex Tank Terminals-Illinois, 2009 WL 1651291, at *2. In this case, the Government did not request the opportunity to file a sur-reply; instead, it filed one without leave. (Doc. 23.) Although the Government chose not to address the Claimants' Rule 41(a)(2) arguments in its sur-reply, it could have easily done so by attaching the sur-reply as an exhibit to a motion for leave to file it. In addition, the Government filed a supplement to its sur-reply directing the Court to the Huynh case discussed above. (Doc. 24.) Consequently, the Government could not plausibly argue that it did not have an opportunity to respond to the Claimants' Rule 41(a)(2) arguments, and it would be somewhat disingenuous for it to make that argument given its own disregard of the procedural rule requiring leave to file a sur-reply. Furthermore, because recovery pursuant to Rule 41(a)(2) is a discretionary decision conferred to the Court, and because the facts and arguments relevant to that decision substantially overlap with the facts and arguments advanced in connection with the CAFRA issue, no meaningful prejudice will result from considering the Claimants' Rule 41(a)(2) arguments. There is one more reason not to find waiver under the circumstances of this case. In the Court's discussion with the parties regarding the Government's motion for voluntary dismissal, Claimants' counsel unequivocally expressed his desire to file a motion for attorney's fees, and the Court and the parties agreed to include the footnote in the dismissal order stating that dismissal would be "without prejudice to any right to file a motion for attorneys' fees, if appropriate." (Doc. 19, n. 1.) Although the Claimants' counsel may not have had a complete understanding of the nuances of CAFRA (see above) and/or the implications of dismissal with or without prejudice for purposes of recovering attorney's fees under Rule 41(a)(2) (see below) when he approved this approach, dismissal was clearly conditioned upon the right to file a motion for attorney's fees. Therefore, since the Court essentially promised to allow the Claimants to seek attorney's fees and, again, the Government had a fair opportunity to respond to the Claimants' Rule 41(a)(2) arguments, no prejudice will result from finding that the Claimants have not waived these arguments. Accordingly, the Court will consider the Government's sur-replies and address the Claimants' Rule 41(a)(2) arguments on the merits. 2. The Court Will Not Award Fees Under Rule 41(a)(2) In pertinent part, Rule 41(a)(2) provides: Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court deems proper.... Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. Fed.R.Civ.P. 41(a)(2). Rule 41(a)(2) is, thus, "a discretionary procedural rule that explicitly allows a district court to impose terms and conditions upon a voluntary dismissal `as the court deems proper.'" Bridgeport Music v. Universal-MCA Music Publ., 481 F.3d 926, 931 (6th Cir.2007) (quoting Rule 41(a) (2)). In the Sixth Circuit, "courts commonly award costs and attorney fees to defendants where plaintiffs dismiss their cases without prejudice." Dorsey v. Commonwealth Land Title, Case No. 1:08-CV-1103, 2008 WL 5071894, at *2 (N.D.Ohio Nov. 24, 2008) (Gwin, J.) (citing Spar Gas, Inc. v. AP Propane, Inc., 1992 WL 172129, at *3 (6th Cir. July 22, 1992); see also Lum v. Mercedes Benz, *954 USA, LLC, 246 F.R.D. 544, 546 (N.D.Ohio 2007) (Carr, J.)).) According to the Sixth Circuit: The reasoning behind the rule where the action is dismissed without prejudice is to compensate the defendant for expenses in preparing for trial in the light of the fact that a new action may be brought in another forum. See 5 Moore's §§ 41.05, 06. A dismissal with prejudice, however, finally terminates the cause and the defendant cannot be made to defend again. Smoot v. Fox, 353 F.2d 830, 833 (6th Cir. 1965); see also Warner v. DSM Pharma Chem. N. Am., Inc., Case Nos. 1:07-CV-302, 1:07-CV-312, 2009 WL 1347162, at *3 (W.D.Mich. May 13, 2009) (citing Smoot v. Fox). Such awards are discretionary, not mandatory, however. See DWG Corp. v. Granada Invs., Inc., 962 F.2d 1201, 1202 (6th Cir.1992) ("Although courts frequently impose defense costs on plaintiffs granted a voluntary dismissal, no circuit court has held that such costs are mandatory."). Courts within the Sixth Circuit have considered a number of factors in determining whether to award attorney's fees pursuant to Rule 41(a)(2). The Southern District of Ohio listed these factors as whether: (1) the plaintiff acted in good faith in filing and pursuing the litigation; (2) the defendant incurred substantial expenses defending the action to be voluntarily dismissed, especially considering the stage and nature of the litigation; (3) the plaintiff delayed in filing the motion for voluntary dismissal; and (4) the legal work for which the defendant requests compensation can be used in a subsequently filed case. Dowling v. Select Portfolio Servicing, Inc., Case No. 05-CV-49, 2007 WL 2815567, at *4 (S.D.Ohio Sept. 25, 2007) (omitting citations);[7]see also Bell-Coker v. City of Lansing, Case No. 1:07-CV-812, 2009 WL 80291, at *3-4 (W.D.Mich. Jan. 9, 2009); Yetman v. CSX Transp., Inc., Case No. 1:08-CV-1130, 2009 WL 35351, at *3 (W.D.Mich. Jan. 6, 2009). In $13,275.21, 2007 WL 316455, at *6, moreover, the Western District of Texas considered similar factors in declining to exercise its discretionary authority to award attorney's fees pursuant to Rule 41(a)(2) when the Government moved for voluntary dismissal of the civil forfeiture action without prejudice. The $13,275.21 Court reasoned that it had dismissed the case without prejudice on the condition that the Government return the funds, and that the Government had had probable cause to seize the funds. Id. The Court noted that there was no indication of over-reaching by the Government—it did not unnecessarily delay in dismissing the case or "engage in unfair litigation tactics[,]" and the case was neither frivolous nor filed in bad faith. Id. Applying these factors to the matter at hand, the Court elects not to require the Government to pay the Claimants' attorney's fees. There is no evidence—or even an allegation—that the Government acted in bad faith in filing the civil forfeiture action. The Claimants do not contest that the vehicle was used by Jeremy in the commission of a federal crime. They simply argue that they were not aware of the *955 conduct that led to the seizure and were "innocent owners" under CAFRA.[8] The case was neither frivolous nor filed in bad faith.[9] Although the Claimants argue that civil forfeiture is a complex area of law and that their attorney invested significant time into researching defenses, the Government filed its Rule 41(a)(2) motion for voluntary dismissal early in the case. In fact, the motion was filed two weeks after the Case Management Conference, before significant discovery had occurred and before any dispositive motions were filed. This also indicates that the Government did not delay in filing the motion to dismiss. Finally, the Government has voluntarily returned the vehicle and there is no reason to believe it will re-file this civil forfeiture action. Under these circumstances, an award of attorney's fees would not comport with the "express purpose" of awarding fees, which is to "compensate the defendant for expenses in preparing for trial in the light of the fact that a new action may be brought in another forum." Smoot, 353 F.2d at 833; see also Spar Gas, Inc., 1992 WL 172129, at *2 n. 3 (noting that, when no "subsequent suit [is] filed, the defendant will have suffered no prejudice at all[,]" and, if fees are awarded, "it will have received something of a windfall by having had some of its counsel fees paid, an occurrence that is an exception to the `American Rule' [requiring each party to pay its own attorney's fees regardless of the outcome of the litigation]"). As the Court noted in denying fees in $13,275.21, 2007 WL 316455, at *4, an order dismissing the case without prejudice merely restores the status quo ante between the parties. Accordingly, the Court declines to exercise its discretionary authority to award the Claimants attorney's fees pursuant to Rule 41(a)(2).[10] III. CONCLUSION For the foregoing reasons, the Court DENIES the Claimants' Motion for Attorney Fees (Doc. 20). IT IS SO ORDERED. NOTES [1] Chapter 21, U.S.C. § 881(a)(4), in pertinent part, provides: (a) Subject property The following shall be subject to forfeiture to the United States and no property right shall exist in them: (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9) [i.e., generally, controlled substances]. [2] For a general description of the procedure governing a civil forfeiture action, see United States v. One DLO Model A/C, 30.06 Machine Gun, Serial No. 86-70056, 904 F.Supp. 622, 633-34 (N.D.Ohio 1995) (Dowd, J.). [3] In their Reply, the Claimants asserted a second basis for recovery of attorneys fees, Rule 41(a)(2). (Doc. 22.) This alternative basis is discussed below. [4] More accurately, the Government does not dispute this fact for purposes of this motion for fees because it believes fees are inappropriate under § 2465 even if applicable. Indeed, throughout this case, the Government has taken the position that the "innocent owners defense" would not apply, and asserted that, had it chosen to pursue its forfeiture claims, it would have prevailed despite the claimants' assertions regarding their ownership interests. [5] The Court introduced its analysis by noting the scarcity of authority addressing whether the defendant "substantially prevails" when the case is dismissed with prejudice: There are no cases that are directly on point with this case; i.e., addressing whether the defendant/claimant substantially prevails in instances where the case is dismissed with prejudice. However, the Supreme Court has considered several fee-shifting statutes that award attorneys' fees under the "prevailing party" standard and has consistently held that such statutes prohibit an award of fees to the plaintiff unless the court awards relief on the merit s, either through a judgment on the merits or through a settlement agreement enforced through a consent decree. See Buckhannon ..., 532 U.S. 598, 121 S.Ct. 1835 ... (addressing a request for attorneys' fees under the Fair Housing Amendments Act and the Americans with Disabilities Act); see also Kentucky v. Graham, 473 U.S. 159 [105 S.Ct. 3099, 87 L.Ed.2d 114]... (1985) (addressing a request for attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976). Certain Real Property, 543 F.Supp.2d at 1293. The district court in United States v. Real Property in Section 9, Town 29 North, Range 1 West, Township of Charlton, Otsego County, Michigan, Case No. 87-10338-BC, 2007 WL 734961, at *16-*17 (E.D.Mich. Mar. 8, 2007) noted the same paucity of authority but observed that the Central District of California in United States v. $60,201.00 in United States Currency, 291 F.Supp.2d 1126, 1130 (C.D.Cal. 2003), concluded that CAFRA authorizes attorney's fees in a broader range of circumstances than the Equal Access to Justice Act ("EAJA"). Read in context, however, it is clear that $60,201.00 merely stands for the proposition that the EAJA fee caps do not apply to attorney's fee awards under CAFRA. See $60,201.00, 291 F.Supp.2d at 1130. The Real Property in Section 9 Court, moreover, held that the claimants were not entitled to attorney's fees under CAFRA because, inter alia, no judgment was ever entered on the claimant's behalf. Real Property in Section 9, 2007 WL 734961, at *18. [6] Congress has since expressly adopted the catalyst theory of recovery in FOIA actions in the OPEN Government Act of 2007. See Summers v. Dep't of Justice, 569 F.3d 500 (D.C.Cir.2009) (citing 5 U.S.C. 552(a)(4)(E)(ii)). Congress has not similarly amended CAFRA to incorporate the catalyst theory, and, therefore, Buckhannon is still controlling. [7] In Dowling, the Southern District of Ohio cited Wallace v. Wheeling Pittsburgh Steel Corp., No. 06-610, 2007 WL 1795950, *4, 2007 U.S. Dist. LEXIS 44744, *10-11 (S.D. Ohio June 20, 2007) as an example of the first factor, Luckey v. Butler County, No. 05-388, 2006 WL 91592, *3-4, 2006 U.S. Dist. LEXIS 3361, *15-16 (S.D.Ohio Jan. 13, 2006) as an example of the second factor, and Vaughn v. Alternative Design Mfg. & Supply, Inc., No. 06-456, 2007 WL 203999, *3, 2007 U.S. Dist. LEXIS 5178, *9 (E.D.Ky. Jan. 24, 2007) as an example of the third and fourth factors. 2007 WL 2815567, at *4. [8] The Claimants do not deny that they authorized or were aware of Jeremy's use of the vehicle. [9] Further, the Government knew that Jeremy was regularly in control of the vehicle during the time period of his criminal activity, but there is no indication that the Government was aware of the complex familial ownership interests in the vehicle. [10] The Claimants also argue that refusing to grant attorney's fees would allow the Government to pursue unwarranted civil actions for forfeiture and then sidestep the remedial purpose of CAFRA by voluntarily dismissing the cases without prejudice. As the factors analyzed above and the Northern District of Alabama case discussed above illustrate, however, courts and defendants have several means of thwarting this tactic available to them. See Certain Real Property, 543 F.Supp.2d at 1292-94. First, good faith on the part of the Government is the first factor Sixth Circuit courts typically consider in the Rule 41(a)(2) fees analysis. Second, the defendant or Claimant may oppose the Government's motion to dismiss without prejudice or request dismissal with prejudice as a condition of dismissal in order to ensure recovery under the CAFRA "substantially prevails" standard. Id. Similarly, it is within the discretion of the Court to determine whether dismissal pursuant to Rule 41(a)(2) is with or without prejudice. Id.

256 A.2d 563 (1969) John P. ADAMS, Appellant, v. UNITED STATES, Appellee. No. 4871. District of Columbia Court of Appeals. Argued May 26, 1969. Decided August 26, 1969. *564 Frank D. Reeves, Washington, D. C., with whom Jack Greenberg and W. Haywood Burns, New York City, were on the brief, for appellant. John G. Gill, Jr., Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Daniel Rarris, Asst. U. S. Attys., were on the brief, for appellee. Before HOOD, Chief Justice, and FICKLING and KERN, Associate Judges. HOOD, Chief Judge: Appellant was convicted of violating the provision of D.C.Code 1967, § 22-1107 which forbids persons to congregate and assemble on a public street and crowd, obstruct, or incommode the free use of such street. We conclude that a reversal of the conviction is required by the recent decision of the United States Court of Appeals for the District of Columbia Circuit in Williams v. District of Columbia, ___ U.S.App.D.C. ___, ___ F.2d ___ (decided June 20, 1969) reversing the decision of this court in Williams v. District of Columbia, 227 A.2d 60 (1967). In Williams there had been a conviction under another provision of Section 1107 which makes it unlawful for any person to use "profane language or indecent or obscene words" in a public street. Characterizing this section of the Code as "a disorderly conduct statute which has remained virtually unchanged since 1898", the court held that "Section 1107 would require an additional element in order to be constitutional" (___ F.2d at ___), that "Section 1107 could be validly applied only if it were construed to require something more than simply the utterance of profane or obscene language in a public place" (at ___), and that "Section 1107 would not be invalid if the statutory prohibition against profane or obscene language in public were interpreted to require an additional element that the language be spoken in circumstances which threaten a breach of the peace" (at ___). Without deciding whether the additional element could validly be added by judicial construction, the court ruled that the information was fatally defective in that it did not allege that the words were uttered "under circumstances likely to cause a breach of the peace" (at ___). Accordingly the court ruled that the `information having failed to charge an offense, the conviction founded upon it cannot stand, and the information itself is subject to dismissal" (at ___). In reaching its conclusion in Williams the court stated that the portion of Section 1107 under consideration which makes it illegal for any person "to curse, swear, or make use of any profane language or indecent or obscene words" is "on its face extraordinarily broad, so broad in fact that it would allow punishment of the hapless stonemason who, after crushing his toe, innocently utters a few relieving expletives within earshot of a public place." By like analogy the language of the portion of Section 1107 here under consideration would allow punishment of the members of a group of sightseers, tourists, or school children, who might innocently congregate and *565 assemble on a public street in such a manner as to crowd, obstruct, or incommode the free use of the street. Of course, we do not think for one minute that such a group would be prosecuted or that the hapless stonemason in the Williams, illustration would be prosecuted; but, as we read the Williams opinion, the mere possibility of such a prosecution makes it incumbent on the Government to allege that the act was done under circumstances which threaten a breach of the peace. The information here did not so charge and following Williams we hold that the information did not charge an offense and the conviction on it cannot stand. Reversed with instructions to dismiss the information.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _____________________________U.S. COURT OF APPEALS ELEVENTH CIRCUIT July 12, 2006 No. 05-13630 THOMAS K. KAHN _____________________________ CLERK D. C. Docket No. 05-00002-CR-4-RH-WCS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MAURICIO DOMINGUEZ-VASQUEZ Defendant-Appellant. _________________________________________ Appeal from the United States District Court for the Northern District of Florida _________________________________________ (July 12, 2006) Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges. PER CURIAM:  Defendant-Appellant Mauricio Dominguez-Vasquez appeals a special condition of the supervised release imposed after he pled guilty to possession with intent to distribute more than five grams of methamphetamine and more than 50 grams of a mixture and substance containing methamphetamine, 21 U.S.C. §§ 841(a), (b)(1)(B)(viii); 851. Reversible error exists; we vacate the condition of Dominguez-Vasquez’s supervised release that provides for his participation in a substance-abuse treatment program and remand. The district court imposed as a special condition of Dominguez-Vasquez’s supervised release that “[t]he defendant shall participate in a program of substance abuse treatment as may be directed by the probation officer.” Dominguez- Vasquez argues that the district court plainly erred in improperly delegating to the probation officer the decision about whether he must participate in a substance abuse treatment program. The government concedes that the district court’s delegation was plain error. We agree. We review issues raised for the first time on appeal for plain error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005). Under the plain error test, before we can correct an error not raised in the district court, there must be error, that is plain, and that affects substantial rights. Id. (quotation omitted). If all three conditions are met, we may exercise our discretion to notice a forfeited error, but 2 only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Under Article III of the United States Constitution, a district court may not delegate to the probation officer the authority to make the ultimate decision of whether a defendant must participate in a treatment program. Id. at 1315. In this case, the district court plainly erred by delegating the decision of whether Dominguez-Vasquez must participate in substance abuse treatment to the probation officer. See id. This error affected Dominguez-Vasquez’s substantial rights because his sentence would have been different but for the error. See id. at 1316. Without the error, the district court would have decided whether Dominguez-Vasquez had to participate in a substance abuse treatment program; and that decision would have been incorporated into his sentence. See id. And a violation of Article III through an improper delegation of judicial function meets the requirement that the error seriously affect the fairness, integrity, or public reputation of judicial proceedings. See id. Therefore, we vacate the condition of Dominguez-Vasquez’s supervised release that provides for his participation in a 3 substance abuse treatment program and remand for proceedings consistent with this opinion.1 VACATED AND REMANDED. 1 Despite Dominguez-Vasquez’s request that, on remand, we allow him to raise all possible sentencing issues anew, the scope of our remand to the district court is limited to consideration of the condition of Dominguez-Vasquez’s supervised release about his participation in a substance abuse treatment program. 4 

73 B.R. 511 (1987) In re HERITAGE WOOD 'N LAKES ESTATES, INC., Debtor-In-Possession. In re DOVE INVESTMENTS OF HILLSBOROUGH COUNTY, INC., Debtor-In-Possession. In re C.L.M. UTILITIES, INC., Debtor-In-Possession. In re FOREMOST SERVICES, INC., Debtor-In-Possession. Bankruptcy Nos. 87-192-BK-J-11 to 87-195-BK-J-11. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. May 8, 1987. *512 Larry Parrish, Memphis, Tenn., for debtor. Marsha Rydberg, Tampa, Fla., for Sunshine State, etc. ORDER GRANTING MOTIONS FOR RELIEF FROM AUTOMATIC STAY AND MOTIONS TO DISMISS OR ABSTAIN GEORGE L. PROCTOR, Bankruptcy Judge. The Court has before it four related bankruptcies. On April 20, 1987, the Court conducted a hearing on identical motions in each of these cases. These motions included the Motions to Dismiss or Abstain filed by creditors Sunshine State Service Corporation, Independence Investment Company and Banner Equities, Inc. and Motions for Relief From Automatic Stay by these same parties. The Court, having heard the testimony and examined the evidence presented, having observed the candor and demeanor of the witnesses, having considered the arguments of counsel, including memoranda of law, and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law. A. Motion For Relief From The Automatic Stay Under Section 362. (1) Section 362(d)(2). In order to grant relief from the automatic stay under § 362(d)(2), the Court *513 must find both lack of equity in the property in question and lack of need for that property for an effective reorganization. For purposes of determining equity and for purposes of this hearing, the Court accepts that the debt in this case is the amount claimed by the primary moving party, Sunshine State Service Corporation, approximately $7,000,000. The Court also accepts the testimony of Mr. Robert Heid, M.A.I., that the value of the subject property is $3,675,000. In accepting Mr. Heid's testimony, the Court finds that he is well qualified. He has, both on the witness stand and in the written documentation, presented reasons for the valuation that he has given. The only evidence offered by the Debtor was testimony of Paul Mullins in which he vicariously pulled out of the air a $7,000,000 figure. The Court rejects Mr. Mullins' opinion as to value. Accordingly, the Court finds that the value of the property is $3,675,000 and there is no equity in the property. Next, the Court must determine the question of the need for the property to accomplish an effective reorganization. The Court notes that this is essentially a one-asset case, whether the asset is characterized as physical property or as a chose in action. The Court accepts Mr. Mullins' testimony that the property is needed for an effective reorganization. If indeed a reorganization could be had, it must be accomplished by utilizing the park and any assets that might be obtained from the litigation. The Court, therefore, finds that the property is needed for an effective reorganization. Since the property is necessary for reorganization, even though there is no equity in the property, the Court finds on behalf of the Debtor under § 362(d)(2). (2) Section 362(d)(1). Sunshine has also moved for relief from stay under § 362(d)(1). As to § 362(d)(1), the issue is whether adequate protection has been offered by the Debtor to the moving party. The Debtor's position is based upon its expectation that eventually, in litigation, it will be successful in proving that the debt is much less than the Court has found for purposes of this hearing, and that, under those circumstances, even using Mr. Heid's estimated value, there will be some type of an equity cushion. The Court is unable to find that an equity cushion exists. Since the Court, as indicated for purposes of this hearing, finds that the debt is closer to $7,000,000 and the value of the property, utilizing Mr. Heid's valuation, is the $3,675,000 figure, no equity cushion exists. The Debtor has the burden of proof on this subject and was required to come forward and show that some type of adequate protection could be offered. Indeed, the Court asked Debtor, through its counsel, to define what adequate protection was being offered, and he indicated that his client was relying strictly on the equity-cushion prospect. Under those circumstances, the Court finds that the Movants lack adequate protection. The referenced litigation can best be disposed of in the nonbankruptcy forum. The questions of usury, the existence of a debt and the related matters are all points that the state court is much better equipped to deal with than this Court. The construction of a statute enacted by the legislature of the State of Florida certainly is in better hands with the state court which is versed in that and which deals with this on a daily basis. It is important for this matter to be determined once and for all. No one gains by litigation continuing forever. Although parties certainly have a right to protect their particular interest as they see it and to determine strategy and to decide how they want to proceed with the matter, this Court has difficulty in comprehending why a case that was started in 1983 has not yet reached a conclusion on behalf of one side or the other. The public and the nonlegal profession just do not understand why a case takes some four years to reach a conclusion. *514 B. The Motion to Dismiss or Abstain. In Albany Partners, Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670 (11th Cir.1984), the Court of Appeals declared that bankruptcy courts should become involved in cases only if the bankruptcy court's services are needed to truly reorganize a debtor who is having financial problems; however, if the matter can be dealt with by another forum, better equipped to do it and in a better position to deal with a dispute between two parties or just a few parties, the bankruptcy court should refrain from exercising its jurisdiction. In this particular instance, the Court finds that to allow this case to remain in this Court is simply an abuse of the reorganization process. This is basically no more than a two-party issue that can be resolved in the state court and perhaps in the federal district court on a RICO basis. Although it may be argued that in Albany Partners the Court considered one plaintiff and one defendant, or two parties, the Albany Partners Court was actually viewing the matter more generally and referring to a dispute with two sides of the litigation which could best be dealt with in another forum. Accordingly, the Court finds that the state court is much better able to deal with many of the issues and certainly the federal district court is better equipped to deal with a RICO action. Indeed, a question could arise as to whether the Court even could deal with the RICO aspect on any final basis because it might very well be a noncore proceeding. Although the issue is not before the Court at this time, ultimately, the Court would have to deal with the question of a jury trial. The cases indicate that the bankruptcy court, in a core matter, cannot deal with a jury trial and, in a noncore matter, it does not seem logical to convene a jury to assist the court in making its recommended findings of fact and conclusions of law. Accordingly, the cases seem to eliminate the jury trial from the bankruptcy court. If that be so, it is an added reason, along with the question of whether this is a core or noncore matter, for the nonbankruptcy courts to deal with the important issues between the parties, to-wit usury, the amount of the debt and the other things that are involved. The Court further finds that the Debtor lacks unsecured creditors. Although the Debtor is working somewhat at a handicap in not having books and records, if there were some unsecured creditors, they probably would know the Debtor. With the exception of possible attorneys' fees, the Court finds no unsecured creditors; the Debtor has a group of secured creditors, who can look out for themselves in the nonbankruptcy court. The Court further finds that a certain amount of forum shopping has occurred on behalf of the Debtor. The Debtor, for reasons best known to itself and perhaps the strategy of counsel, determined that it was not going to get the best side of the coin in the state court and looked to go elsewhere to have a new bite at the apple. The matter was brought to the bankruptcy court in Memphis, and the Memphis court determined that it ought to be transferred here. Previously a bankruptcy case had been filed in the Middle District in the Tampa Division; however, rather than transferring these cases back to Tampa, it is appropriate to render a final determination now. It is, thereupon, Ordered and Adjudged as follows: 1. The Motions for Relief from Automatic Stay are hereby GRANTED. 2. The Motions to Dismiss or Abstain are hereby GRANTED. This Court will abstain from dealing with the matter further and the proceedings are hereby DISMISSED. 3. Having disposed of said motions, all of the other matters that were set for consideration have been rendered moot.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0426p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X Plaintiff-Appellant, - TERESA ANNE HENDERSON, - - - No. 05-1814 v. , > WALLED LAKE CONSOLIDATED SCHOOLS, a - - Defendants-Appellees. - Michigan School District, et al., - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 03-72841—Robert H. Cleland, District Judge. Argued: July 25, 2006 Decided and Filed: November 16, 2006 Before: BATCHELDER and McKEAGUE, Circuit Judges; ACKERMAN, Senior District Judge.* _________________ COUNSEL ARGUED: M. Michael Koroi, Plymouth, Michigan, for Appellant. Neil H. Goodman, CLARK HILL PLC, Birmingham, Michigan, for Appellees. ON BRIEF: M. Michael Koroi, Plymouth, Michigan, for Appellant. Neil H. Goodman, CLARK HILL PLC, Birmingham, Michigan, for Appellees. _________________ OPINION _________________ McKEAGUE, Circuit Judge. Plaintiff-appellant Teresa Anne Henderson brings suit alleging she was subjected to sexual harassment by her high school soccer coach. She asserts various claims under state and federal law, alleging the coach, the school district and several school administration officials are liable for sexual harassment, civil rights violations, gross negligence and slander. The defendants’ motion for summary judgment was granted by the district court because plaintiff had failed to establish a genuine issue of material fact on any of her claims. On appeal, we affirm. * The Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting by designation. 1 No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 2 I. FACTUAL AND PROCEDURAL BACKGROUND In January 2002, Russell Todd Crawford, then 29 years old, applied for the position of head coach of the girls varsity soccer team at Walled Lake Western High School in Oakland County, Michigan. After he was interviewed and references were contacted and a criminal background1 investigation was completed, Crawford was hired and commenced coaching in February 2002. From the outset, he made it clear to team members and their parents that he was in charge, advising parents that any complaining about coaching decisions would result in reduction of their daughter’s playing time. Plaintiff Teresa Anne Henderson (“Teresa”), who had been the team captain the year before, was told by Crawford that she would not be the captain during the 2002 season because she had an attitude. His “take charge” demeanor included the use of obscenities, as he often addressed his own players in demeaning and vulgar terms. Crawford’s inappropriate conduct took other forms as well. He would engage players in flirtatious conversations and make sexually suggestive remarks. He would often invite players to his home for “team meetings” and was known to communicate with them by telephone and e-mail at unusual hours. He began to express special interest in one player in particular, Jill Byrd, and even communicated his desire for her to Teresa. Teresa discouraged Crawford from pursuing a relationship with Jill, but he ignored the advice and then threatened the entire team with “consequences” if anyone disclosed his relationship with Jill. Based on her discussions with Jill, Teresa understood that Jill was uncomfortable with Crawford’s special attention and that Jill viewed his advances, which came to include fondling, hugging and kissing, as unwelcome and offensive. In early to mid-April 2002, Jill’s parents became concerned about late evening communications between Crawford and their daughter. They reported their concerns to Assistant Principal Kevin Clarke. Clarke convened a meeting the next day, attended by himself, Crawford, Principal Lawrence Barlow, and Athletic Director David Yarbrough. Crawford was somber and attentive at the meeting, which lasted 30 to 45 minutes. He admitted that he had occasionally made phone calls and sent e-mail messages to team members at odd hours. He acknowledged that he had stayed late after practice on one occasion talking with Jill in the school parking lot. Remarking that he had a Masters Degree in psychology, Crawford acknowledged that when players confided in him, he sometimes engaged them in counseling-type discussions. As a result of the meeting, a five-point memorandum was issued to Crawford. Although no copy of the memo has been made a part of the record, its substantive contents are not in dispute.2 Crawford was prohibited from: (1) communicating with team members between the hours of 9:30 p.m. and 7:00 a.m.; (2) sending e-mail messages to team members without also sending a copy to Clarke; (3) counseling team members regarding personal matters; (4) conducting activities with team members off-campus unless a parent was present; and (5) engaging in a relationship with a team member that might be construed as inappropriate. In addition to the memo, Clarke took other measures. He had Jill Byrd’s parents notified of the contents of the memo; he occasionally attended soccer practices and regularly attended the team’s games; and he regularly spoke with players about “how things were going.” As it turned out, these measures were ineffectual. 1 Although it appears Crawford had received a medical discharge from the U.S. Air Force in 1999, and had an ill-defined history of mental illness, these facts did not come to light in the application and interview process. 2 Clarke’s copy of the memo was presumably kept in the soccer file in his office file cabinet, but the file was found to be missing in early May 2002. Clarke explained that the administrative team offices, with the file cabinet containing athletic files, were temporarily moved to the media center in the high school library during the 2001-02 school year, while the permanent offices were renovated. Clarke testified that he was the only one with authorized access to the file cabinet, although it was not kept locked. The whereabouts of the missing soccer file are unknown. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 3 Within two to three weeks after the memo issued, several noteworthy incidents occurred, only some of which are relevant to assessment of plaintiff’s claims. On April 15, after a soccer match, Teresa reportedly went home and took an overdose of pain medication (approximately 11 tablets of3 ibuprofen and vicodin), in reaction to Crawford’s persistent offensive and intimidating conduct. At another game, a freshman member of the team, Shannon Steffen, approached Teresa and told her, in an emotionally distressed state, that Crawford had just asked her to feel his genitals. Teresa also witnessed Crawford treat other players in a physically abusive and intimidating manner. On one occasion, on or about April 29, Henderson was asked to serve as “look-out” on the team bus as Crawford huddled with Jill Byrd under a blanket. On exiting the bus, Jill seemed shocked and upset and told Teresa that Crawford had kissed her, fondled her breasts and placed his hand in her pants. On or about May 2, Jill informed Teresa that she had broken-off the relationship with Crawford and told him she was acting at least partly on Teresa’s recommendation. She said Crawford was furious and threatened to hurt Teresa; that he said he would break her nose and “take out her knees” so she would never play soccer again. Crawford told Jill that Teresa and teammate Liz Krall had urged her to break-off the relationship only because they “wanted him in a sexual way.” Within an hour, Teresa received a call from Crawford, who angrily confronted her about having interfered with his relationship with Jill. He told Teresa he would not coach the team in the next game unless she “fixed things up” between him and Jill. An hour and a half later, he confronted Teresa again face to face on the practice field. When she told Crawford she was quitting the team, he said he would hunt her down and fix it so she would never play soccer again. Teresa went home distraught and told her parents Crawford had threatened her. She did not play in the team’s match on Friday, May 3. On Sunday, May 5, a soccer team parents’ meeting was held in one family’s home to discuss Coach Crawford. During the meeting, a call was received reporting that Crawford had a gun to his head and was threatening to pull the trigger. The police were called. City of Novi police officers responded and found Crawford at his home. They found him to be cooperative; they recovered an automatic pistol from his residence; and believing that he might be depressed and suicidal, they transported him to a local hospital for evaluation. In the meantime, on May 4, Crawford had communicated his resignation to Clarke by e-mail. He was officially terminated by letter from Clarke on Monday, May 6, 2002, and advised that he was prohibited from entering onto high school property. Teresa transferred to a different high school for her senior year. Plaintiff Teresa Henderson commenced this action in the Eastern District of Michigan on July 24, 2003. Named as defendants are Walled Lake Consolidated Schools, Walled Lake Western High School, Russell Todd Crawford, Principal Lawrence Barlow, Assistant Principal Kevin Clarke, Athletic Director David Yarbrough, and School District Superintendent James Geisler. Plaintiff’s amended complaint contains 10 counts, including claims for sexual harassment and sex discrimination, in violation of Michigan’s Elliott-Larsen Civil Rights Act, M.C.L. §§ 37.2101 et seq., and Title IX, 20 U.S.C. §§ 1681 et seq.; civil rights claims under 42 U.S.C. § 1983, alleging denial of due process and equal protection; tort claims for assault, gross negligence, intentional infliction of emotional distress and slander; and claims for violations of plaintiff’s rights under Michigan’s Constitution. 3 Teresa did not, apparently, receive any medical attention in connection with this incident. In fact, she did not even report the overdose to her parents until April 24. She later received counseling for depression from a social worker. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 4 All defendants but Crawford moved for summary judgment after the close of discovery.4 The motion was granted in its entirety on August 23, 2004. In a 29-page opinion, the district court thoroughly analyzed plaintiff’s claims against the moving defendants and explained why it found them wanting. The district court denied plaintiff’s motion to alter or amend its judgment on November 10, 2004. The district court dismissed the outstanding claims against Crawford without prejudice on May 10, 2005, and plaintiff timely filed notice of appeal. Plaintiff-appellant Henderson challenges the district court’s ruling on most but not all of her claims. She insists the record presents genuine issues of material fact that warrant a trial. II. ANALYSIS A. Standard of Review The court of appeals reviews de novo an order granting summary judgment. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. Not just any alleged factual dispute between the parties will defeat an otherwise properly supported motion for summary judgment; the dispute must present a genuine issue of material fact. Leadbetter v. Gilley, 385 F.3d 683, 689-90 (6th Cir. 2005). A dispute is “genuine” only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004). A factual dispute concerns a “material” fact only if its resolution might affect the outcome of the suit under the governing substantive law. Id. B. State Law Sex Discrimination Claims (Elliott-Larsen Civil Rights Act) 1. Quid Pro Quo Harassment Plaintiff’s count I sex discrimination claim is brought under Michigan’s Elliott-Larsen Civil Rights Act, which provides a cause of action for sexual harassment interfering with an individual’s education. The claim is based on5 two theories of sexual harassment, quid pro quo harassment and hostile environment harassment. As a threshold matter, to make out a claim of quid pro quo sexual harassment, plaintiff is required to show that she was subjected to unwelcome sexual advances, requests for sexual favors, or conduct or communication of a sexual nature. M.C.L. § 37.2103(i); Corley v. Detroit Bd. of Educ., 470 Mich. 274, 279 (2004). Plaintiff relies on the last of these, “conduct or communication of a sexual nature.” She contends she was threatened with harm by Crawford if she disclosed his relationship with Jill Byrd and if she failed to facilitate a reconciliation of their relationship. 4 Defendant Crawford did not participate in the proceedings below after filing an answer to the original complaint. The district court was advised by the parties that he had filed a bankruptcy petition, triggering an automatic stay of proceedings against him. The district court issued an order administratively closing the case against Crawford on September 30, 2004, and finally dismissed plaintiff’s claims against him without prejudice on May 10, 2005. The claims against Crawford thus play no role in this appeal. 5 To the extent count I also includes an allegation under M.C.L. § 37.2302(a), to the effect that plaintiff was discriminated against in her enjoyment of public accommodations because of sex, the district court correctly ruled that the viability of such a claim depended entirely on and was dictated by analysis of plaintiff’s quid pro quo and hostile environment theories of sexual harassment. The district court did not, therefore, evaluate the public accommodations claim independently, but held that it must fall for the same reasons as the quid pro quo and hostile environment claims. Plaintiff’s contention that the district court erroneously held that M.C.L. § 37.2302(a) was not applicable is a mischaracterization of the court’s ruling. We find no error in the district court’s analysis. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 5 The district court noted that “sexual nature” has been interpreted strictly by the Michigan Supreme Court, citing Corley and Haynie v. Dep’t of State Police, 468 Mich. 302 (2003). Consistent with these authorities, the court ruled that the threats and demands complained of by plaintiff did not involve sexual innuendo or any other type of sexual communication. Although these communications represented an abuse of authority, the court held they did not, in the words of Corley, “inherently pertain to sex.” 470 Mich. at 279. The fact that the threats related to Crawford’s relationship with Jill was deemed not to render the threatening conduct and communications directed at Teresa inherently sexual. The district court’s reasoning is sound and is supported by the Michigan case law. In Corley, closely analogous facts were presented. Reversing the Michigan Court of Appeals, the Corley court held that the defendant’s “alleged threats that he would fire plaintiff if she interfered with his new relationship were not inherently sexual in nature,” even though the communications arguably stemmed from the defendant’s past intimate relationship with the plaintiff. Id. at 279-80. The court made it clear that “[v]erbal or physical conduct or communication that is not sexual in nature is not sexual harassment.” Id. at 280. In Haynie, the court applied a similarly strict interpretation of sexual harassment, holding that even though “harassment based on pregnancy may constitute discrimination based on pregnancy, and thus sex discrimination, harassment based on pregnancy that is not at all sexual in nature simply is not sexual harassment.” Haynie, 468 Mich. at 310 (emphasis in original). Plaintiff’s attempts to distinguish Corley and Haynie from the instant facts are weak and unavailing. Notwithstanding evidence of Crawford’s sexually harassing conduct toward other team members, plaintiff simply has failed to demonstrate that she was subjected to conduct or communication of a sexual nature. This failure to adduce any evidence supporting an essential element is fatal to her quid pro quo claim under the Michigan Elliott-Larsen Civil Rights Act. Finding no Michigan case law support for her claim, plaintiff appeals to case law from other jurisdictions addressing quid pro quo claims under Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e. Indeed, Michigan courts consider federal case law interpreting Title VII to be persuasive, albeit not binding, authority on issues brought under the Elliott-Larsen Civil Rights Act when the language of the two civil rights acts is substantially similar. Pena v. Ingham County Road Com’n, 255 Mich. App. 299, 311 n.3 (2003). In this instance, it is readily apparent that the required “substantial similarity” is lacking with respect to the specific issue presented. Plaintiff relies on DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986), and Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983). Both cases recognized the viability of a Title VII quid pro quo sexual harassment claim even in the absence of evidence that the plaintiff was subjected to unwelcome sexual advances or other conduct or communication of a sexual nature. They recognized that a plaintiff subjected to disparate treatment because another person received preferential treatment for having granted coerced sexual favors is a third-party victim of sexually harassing conduct. In each case, however, the court, in evaluating the contours of a Title VII sexual harassment claim, explicitly relied on an Equal Employment Opportunity Commission guideline, 29 C.F.R. § 1604.11(g): Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit. DeCintio, 807 F.2d at 307; Toscano, 570 F. Supp. at 1199. This guideline language expressly obviates any requirement that the complained-of sexually harassing conduct be directed at the claimant to be actionable by him or her as a form of sex discrimination under Title VII. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 6 In this respect, the scheme established under Title VII is directly at odds with the language of the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2103(i), as recently and specifically construed by Michigan’s highest court. Although the definition of “sexual harassment” set forth in M.C.L. § 37.2103(i) is substantially similar to the definition found at 29 C.F.R. § 1604.11(a), the Michigan Legislature has not adopted the guideline set forth at 29 C.F.R. § 1604.11(g). Further, in Corley, the Michigan Supreme Court expressly rejected the notion that a sexual harassment claim under the Elliott-Larsen Civil Rights Act could be premised on conduct other than conduct of a sexual nature directed at the claimant. In so ruling, the Corley court’s majority rejected the dissent’s suggestion to consult federal cases on the issue. Plaintiff Henderson brought her sexual harassment claim under Michigan law, not federal law. In applying Michigan law, where we find that the “state’s highest court has spoken to the issue, we are bound by that decision unless we are convinced that the high court would overrule it if confronted with facts similar to those before us.” Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1429 (6th Cir. 1997). Finding the instant facts materially indistinguishable from those presented in Corley, we are bound by Corley. Plaintiff’s argument based on federal law must therefore be rejected and the district court’s summary judgment for defendants on the quid pro quo claim must be affirmed. 2. Hostile Environment Harassment In order to establish a claim of hostile environment harassment, plaintiff must prove the following elements by a preponderance of the evidence: (1) that she belonged to a protected group; (2) that she was subjected to communication or conduct on the basis of sex; (3) that she was subjected to unwelcome sexual conduct or communication; (4) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with plaintiff’s educational opportunities or created an intimidating, hostile, or offensive educational environment; and (5) respondeat superior. Chambers v. Trettco, Inc., 463 Mich. 297, 311 (2000). The district court was satisfied that plaintiff had adduced sufficient evidence on the first four of these elements to create triable fact issues. It is the fifth element, however, that was and is plaintiff’s stumbling block. Respondeat superior liability can be imposed on an employer for an employee’s hostile environment harassment “only if the employer had reasonable notice of the harassment and failed to take appropriate corrective action.” Id. at 311; Elezovic v. Ford Motor Co., 472 Mich. 408, 426 (2005). “[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.” Id. at 426. Hence, actual notice is not required; “the test is whether the employer knew or should have known of the harassment.” Id. We apply these standards in evaluating the respondeat superior liability of the school district. It is undisputed that neither plaintiff nor any other soccer team member reported any concern about Coach Crawford’s interactions with them to school administration officials. Plaintiff relies primarily on three items as justifying a finding that defendants had constructive notice that she was subjected to hostile environment harassment. First, she points to the meeting between Crawford and administration officials prompted by Jill Byrd’s parents’ concerns. Second, she relies on evidence of inappropriate contact between Crawford and Jill on the team bench during soccer matches. Plaintiff’s mother, Beth Henderson, attended all of the team’s soccer matches. She often observed Crawford and Jill sitting side-by-side during games, looking at each other and talking and giggling together as though engaged in a “girlfriend/boyfriend relationship.” Because the inappropriateness of this conduct was so obvious, she believed that Clarke, who was also present at the games in a good position to observe, could not have failed to notice. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 7 Third, plaintiff relies on her mother’s report to Clarke on May 2 that Crawford had sent an e-mail notice to team members at 4:00 a.m. that day, without copying Clarke, advising that practice was cancelled due to high winds and that the team would instead meet at his house. In response, Clarke made inquiry of the junior varsity soccer coach and confirmed that the varsity team was meeting at Crawford’s house “watching videos,” but took no further action. Plaintiff contends this report of several violations of the five-point memo put Clarke on notice of Crawford’s blatant disregard for the memo and for the need to conform his behavior. The district court addressed all three items explicitly and properly. First, the court viewed the administration’s meeting with Crawford as evidence of defendants’ reasonable and prompt response to actual notice of cause for concern. Yet, as the district court also observed, nothing among the concerns that prompted the meeting or the matters discussed at the meeting (i.e., communications at odd hours, inappropriate counseling, unchaperoned off-campus activities, and inappropriate interactions with team members) hinted at the existence of a hostile environment. Although Jill Byrd’s parents’ concerns, coupled with the administration officials’ meeting with Crawford, put defendants on notice of past inappropriate conduct that warranted correction, defendants’ responsive measures (i.e., the five-point memo and Clarke’s ongoing monitoring of the coach and team at games and practices) appear to have been reasonably designed to address and remedy the concerns that had been raised. As to the second item, the record is silent as to whether Clarke actually observed the reported inappropriate interactions between Crawford and Jill during soccer games. In his deposition, he appears not to have been specifically asked. He confirmed that he did attend games and practices and spoke with the team members almost daily to see how things were going. Clarke testified that the first time after the meeting he had notice of something amiss with Crawford was May 5, the evening of the parents’ meeting and the report that Crawford had threatened suicide. This implies that he didn’t observe anything “amiss” in Crawford’s interactions with Jill during the games. Yet, for purposes of the summary judgment motion, the district court properly assumed that Crawford had observed the overly friendly behavior between Crawford and Jill during soccer games. The court nonetheless found these observations were insufficient to put defendants on notice that team members were subjected to a sexually harassing environment: “Crawford’s possible physical relationship with Byrd, of which the school district may have had constructive knowledge, was not sufficient to have alerted school officials to the possibility of pervasively hostile behavior toward the larger group, including Plaintiff.” Slip op. p. 19. Indeed, even if the game-time flirting between Crawford and Jill ought to have triggered further inquiry by Clarke, it can hardly support a reasonable finding that Clarke and other school officials should therefore have known that another team member, Teresa Henderson, was the victim of a hostile environment. The district court also assigned little significance to Mrs. Henderson’s reported concerns about the cancelled practice on May 2. Clarke did act on the report insofar as he contacted another coach to confirm there was a facially legitimate purpose for the team to meet to view films. To the extent that he ought to have investigated further and taken further disciplinary action, the district court observed that the situation unraveled so quickly thereafter that he did not have such an opportunity. First, there is no evidence that inappropriate interactions occurred between Crawford and team members during this team meeting at Crawford’s home. Then, within a day after Mrs. Henderson’s call, Teresa had quit the team and, within two days, on Saturday, Crawford had communicated his resignation. The May 2 report of Crawford’s violations of the five-point memo instructions thus came too late to create a triable issue on the existence of such notice as would support imposition of respondeat superior liability on defendants. In sum, the district court’s evaluation of the record evidence was correct. Plaintiff has failed to adduce sufficient evidence to support an essential element of her hostile environment harassment claim and summary judgment was properly awarded to defendants. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 8 3. Retaliation In count I, plaintiff also alleges that defendants are liable under the Elliott-Larsen Civil Rights Act for Crawford’s retaliation against her for having encouraged Jill Byrd to discontinue her inappropriate relationship with him. To establish a prima facie case of retaliation, plaintiff must show: (1) that she engaged in protected activity; (2) that this was known to defendants; (3) that plaintiff was subjected to adverse action by defendants’ agent, Crawford; and (4) that there was a causal connection between the protected activity and the adverse action. Pena, 255 Mich. App. at 310-11; Meyer v. City of Center Line, 242 Mich. App. 560, 568-69 (2000). The district court correctly held that even if plaintiff’s expressed opposition to Crawford’s inappropriate relationship with Jill were deemed to constitute “protected activity,” there was no evidence that defendants knew anything about it. Neither is there evidence, even assuming that Crawford’s angry threats constituted “adverse action,” that such harassment was so sufficiently severe and pervasive as to have put defendants on constructive notice of it, such that their failure to respond would warrant imposition of liability on them. See Meyer, 242 Mich. App. at 569-71. This total lack of evidence of defendants’ knowledge both of plaintiff’s protected activity and of Crawford’s retaliatory harassment fatally undermines plaintiff’s retaliation claim. Plaintiff argues on appeal that defendants should be subject to strict liability for Crawford’s retaliatory actions, irrespective of their lack of knowledge. The Michigan case law offers no support for this expansion of liability under the Elliott-Larsen Civil Rights Act. The district court’s judgment in this respect must therefore be affirmed.6 C. Sexual Harassment as Discrimination under Title IX In count II of her first amended complaint, plaintiff alleges she was subject to sex discrimination in an education program which receives federal assistance, in violation of Title IX, 20 U.S.C. § 1681(a). The district court recognized that Title IX is enforceable through a private cause of action for sexual harassment, but correctly held that defendants could be held liable in monetary damages for Crawford’s misconduct only if they had actual notice of it and were deliberately indifferent. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Plaintiff insists on appeal that the record adequately supports a finding that Clarke had actual notice of Crawford’s inappropriate relationship with Jill Byrd and, by failing to take adequate corrective action, demonstrated deliberate indifference. For the reasons stated above, plaintiff is plainly wrong. Jill Byrd is not a plaintiff in this action. As the district court observed, even if Clarke had constructive notice of Crawford’s inappropriate interactions with Jill, this in no way translates into actual notice of widespread harassment such that Clarke can be deemed to have actually known that plaintiff was subject to a hostile environment. No team member ever complained. All in all, less than a month passed between Jill’s parents’ complaint in early to mid-April (i.e., defendants’ first notice of concerns, to which they responded promptly and reasonably) and Crawford’s termination in early May. There is no evidence that any administration official had actual notice of widespread misconduct by Crawford during that time. It was not until after Crawford had actually resigned that the extent of his misconduct became known to administration officials. The district court did not err; summary judgment on the Title IX claim must be upheld. 6 Under the umbrella of her retaliation claim, plaintiff also argues that defendants should be liable for Crawford’s conduct in requiring her to aid and abet his harassment of Jill Byrd by acting as “look-out” while he molested her under a blanket on the team bus. In this regard, too, the district court correctly held there was no evidence of defendants’ knowledge of this conduct and therefore no basis for holding them liable. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 9 D. Federal Civil Rights Violations In count III, plaintiff alleges under 42 U.S.C. § 1983 that defendants’ actions resulted in the denial of her constitutional rights to equal protection and due process. The district court awarded summary judgment to defendants on both claims. The district court rejected plaintiff’s equal protection claim, finding that she had produced no evidence that school district officials had treated her differently than male students in any respect. In rejecting plaintiff’s claim that defendants had violated her right to personal security and bodily integrity without due process, the court noted the lack of evidence that Crawford’s misconduct had been perpetrated pursuant to official policy or with the tacit authorization of his superiors, essential elements of § 1983 liability. Doe v. Claiborne County, 103 F.3d 495, 507, 513 (6th Cir. 1996). See also Doe v. City of Roseville, 296 F.3d 431, 439-41 (6th Cir. 2002). On appeal, plaintiff does not distinguish between her equal protection and due process claims, but merely insists that evidence of defendants’ deliberate indifference is sufficient to warrant a trial on her § 1983 claims. While evidence of deliberate indifference in the face of widespread abuse may indeed establish a policy of inaction and tacit authorization, the instant record, as detailed above, simply does not substantiate a finding of deliberate indifference. Summary judgment was properly awarded to defendants on the § 1983 civil rights claims. E. Gross Negligence For purposes of tort liability under Michigan law, “gross negligence,” for which governmental actors are not immune from liability, is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” M.C.L. § 691.1407(7). For the same reasons that plaintiff’s evidence of deliberate indifference was found wanting, the district court also determined that plaintiff failed to make out her count VIII claim that defendants were grossly negligent in failing to prevent Crawford’s misconduct. Indeed, absent evidence that defendants knew or should have known that plaintiff was subject to a hostile environment, their failure to take better precautions can hardly be deemed to evidence recklessness or a substantial lack of concern for whether she sustained injury. Plaintiff has failed to demonstrate error in the district court’s evaluation of the record. F. Slander Plaintiff contends on appeal that the district court did not properly dispose of her count VII slander claim. This argument highlights genuine confusion in the lower court proceedings. The slander claim is based on the allegation that Crawford told Jill Byrd that Teresa urged her to break-off their relationship only because Teresa herself wanted Crawford sexually. When the district court granted summary judgment to defendants, it did so without mentioning the slander claim. This is understandable, since defendants’ motion did not challenge the claim. In fact, the motion is not addressed to several of plaintiff’s other state tort claims either, i.e., the gross negligence claim against Crawford specifically (count IV), the assault claim (count V), and the claim for intentional infliction of emotional distress (count VI). The moving defendants construed these claims as having been asserted only against Crawford, not the school district defendants. In her response to the motion, plaintiff explicitly denied defendants’ asserted construction of her complaint, explaining that the assault, intentional infliction of emotional distress, and slander claims were brought against the school district defendants as well as Crawford, based on respondeat superior liability. The district court ignored this pleading dispute and, in its summary judgment ruling, simply granted defendants’ motion without spelling out all the claims on which judgment was awarded to defendants. On its face, the summary judgment order has no impact on the slander claim or the other common law tort claims. Plaintiff’s ensuing motion to alter or amend the court’s judgment therefore No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 10 raised the outstanding need for a ruling on the tort claims against the moving defendants, because their motion for summary judgment did not challenge them. Before ruling on the motion to alter or amend, the district court, on September 30, 2004, issued its “Order of Removal of Action as a Pending Matter.” This order purported to close the case “for statistical purposes” based on the district court’s implied understanding that the only claims not resolved by its summary judgment ruling were those brought against defendant Crawford, claims which were then subject to the automatic bankruptcy stay. The district court confirmed this understanding when it denied the motion to alter or amend its summary judgment ruling on November 11, 2004. The court’s response to plaintiff’s inquiry about the outstanding emotional distress, assault and slander claims against the school district officials consists of one sentence: “The court did not address this argument [that the common law tort claims in counts V, VI and VII were asserted against the school district officials pursuant to respondeat superior liability] specifically because it did not rely on the doctrine of respondeat superior in determining that the school district officials did not have notice.” Order denying motion to alter or amend, p. 14, JA 98. In other words, the district court implied that it had awarded summary judgment to the school district officials on the tort claims – even though they had not moved for it – based on a lack of evidence that they had notice of Crawford’s tortious conduct. No further action was taken in the district court until the case against defendant Crawford was re-opened on April 25, 2005, after the bankruptcy stay was lifted. At a status conference less than two weeks later, plaintiff orally moved to voluntarily dismiss her claims against Crawford without prejudice, which motion was granted. On appeal, plaintiff has not chosen to pursue the emotional distress and assault claims, but only the slander claim. She contends the district court erred (1) procedurally, by awarding defendants judgment on a claim for which they had not moved for summary judgment; and (2) substantively, by awarding judgment on a basis (i.e., lack of notice) that finds no support in the case law. Defendants do not directly respond to either of these arguments, but urge the court to affirm the judgment based on immunity and other grounds. In this regard, plaintiff’s claim of error is well-taken. Defendants did not seek summary judgment on the slander claim; the district court refrained from construing the first amended complaint as not stating a valid slander claim against the school district and administration officials; and, as discussed below, employer notice, the ultimate basis for the district court’s disposition of the claim, is not an essential element of respondeat superior liability for an intentional tort, like slander, under Michigan law. The district court mishandled the slander claim. Yet, we may affirm on other grounds, as long as the opposing party is not denied the opportunity to respond to the new theory. Carver v. Dennis, 104 F.3d 847, 849 (6th Cir. 1997). “The elements of a cause of action for libel are: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.” Linebaugh v. Sheraton Michigan Corp., 198 Mich. App. 335, 338 (1993). Under Michigan law, “words imputing a lack of chastity to any female or male are actionable in themselves.” M.C.L. § 600.2911(1). Yet, even if Crawford’s actions might reasonably be deemed to satisfy all four of the above elements, his employer can be liable in respondeat superior only if his slanderous statement was made while he was engaged in his employer’s work and was acting within the scope of his authority. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 825-26 (E.D. Mich. 2005). An employer is not liable for a defamatory statement, even though made in the workplace, if the statement was not made in relation to a matter about which the employee’s duties required him to act. Id. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 11 Here, the factual record surrounding Crawford’s alleged slander appears to have been fully developed. Plaintiff’s allegations are not materially disputed. Viewing the record in the light most favorable to plaintiff, there simply is no way that Crawford’s angry remark to Jill Byrd about plaintiff’s ulterior motive for urging the break-up of their relationship can be deemed to have been made within the scope of his authority as soccer coach. Granted, it was a statement made by Crawford to one of his team members about another. But it had nothing to do with coaching soccer and everything to do with purely personal interests and relations.7 Hence, we conclude as a matter of law that Crawford’s remark was not made within the scope of his authority as soccer coach. On this essential element of plaintiff’s slander claim, there is no genuine issue of material fact. It follows that Crawford’s superiors, defendant school administration officials, cannot be held liable in respondeat superior for his slander and are entitled to summary judgment on plaintiff’s claim against them. The district court’s mishandling of the slander claim did not affect the substantial rights of the parties and is properly treated as harmless error. See Fed. R. Civ. P. 61. Accordingly, summary judgment for defendants on the slander claim will be affirmed on grounds other than those relied on by the district court. G. Adverse Inference Presumption Plaintiff also contends the district court erred by failing to draw an inference adverse to the defendants based on their unexplained failure to produce the “missing” soccer file which was undisputedly under Clarke’s exclusive control. See n.2, supra. Plaintiff speculates that the file may have contained information bearing on the reasonableness of defendants’ actions, information relevant to the notice element of her claims. She argues that if the district court had properly applied the inference, it would have helped establish triable fact issues. The district court refused to invoke the inference because there was no evidence of fault in defendants’ failure to produce the file and because the negative inference urged by plaintiff is a mere “hunch” unsupported by other corroborating evidence. The district court did not err. Under Michigan law, a presumption that nonproduced evidence in one party’s control would have been adverse to that party applies only where there is evidence of intentional fraudulent conduct and intentional destruction of evidence. Ward v. Consolidated Rail Corp., 472 Mich. 77, 85-86 (2005). Absent evidence of intentional wrongdoing, the adverse inference is not presumed, but the finder of fact may be permitted to draw an adverse inference. Id. The parties differ as to whether the unexplained loss of the soccer file represents a reasonable excuse for its nonproduction. Yet, there is absolutely no evidence of intentional wrongdoing. There is, therefore, no basis for application of the adverse inference presumption. Furthermore, considering the entirety of the record and the dearth of evidence of defendants’ knowledge of Crawford’s deviant propensities and behaviors, the district court cannot be faulted for concluding that any permissible adverse inference was not warranted or would not have made a difference in a reasonable jury’s assessment of the evidence. Plaintiff’s argument for the adverse inference simply lacks factual and legal support. It fails to persuade that the district court erred or that its award of summary judgment should be disturbed in any way. 7 During oral arguments in this appeal, plaintiff’s counsel was specifically given the opportunity, but failed to identify how the slanderous remark could be deemed to have been made within the scope of Crawford’s authority as soccer coach. No. 05-1814 Henderson v. Walled Lake Consolidated Schools, et al. Page 12 H. Ruling on Rule 59(e) Motion Finally, in a patently frivolous argument, plaintiff argues the district court erred when it ruled on her motion under Fed. R. Civ. P. 59(e) to alter or amend its summary judgment ruling. She argues the district court reviewed its ruling only for “palpable defect,” the standard prescribed by local rule for a motion for reconsideration. Instead, she argues the court should have reviewed its own summary judgment ruling de novo, citing Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Cockrel prescribes the standard of review applied by this court in reviewing a lower court’s denial of a motion to alter or amend its order granting a motion for summary judgment. In applying such de novo review, the appellate court applies the same standard of review that the district court was required to apply. Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999) (cited with approval in Cockrel, 270 F.3d at 1047). A district court may grant a Rule 59(e) motion to alter or amend judgment only if there is: “(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). This standard is not inconsistent with the “palpable defect” standard applied by the district court pursuant to local rule. The district court did not err. Moreover, even if the district court had reviewed its own ruling de novo, a different outcome would not have resulted, as evidenced by the entire foregoing analysis, which applies de novo review to the summary judgment ruling. III. CONCLUSION In the end, this much is clear: Crawford is a troubled man who said and did bad things that undoubtedly caused harmful stress in plaintiff Teresa Henderson’s young life. This is unfortunate. The record evidence, however, simply does not substantiate any of the legal claims asserted against the school district and school administration defendants. The record shows that administration officials acted reasonably when they received notice of Crawford’s misconduct. Accordingly, based on the foregoing reasoning, the district court’s award of summary judgment in favor of defendants- appellees is AFFIRMED. 

560 F.Supp. 838 (1983) Lula M. MILLER, Plaintiff, v. Richard S. SCHWEIKER, Etc., Defendant. Civ. A. No. 81-298-N. United States District Court, M.D. Alabama, N.D. April 6, 1983. Lawrence F. Gardella, Legal Services Corp. of Ala., Montgomery, Ala., for plaintiff. Carl H. Harper, Regional Atty., Jerry J. Wall, Asst. Regional Atty., Dept. of Health and Human Services, Atlanta, Ga., and Calvin C. Pryor, Asst. U.S. Atty., Montgomery, Ala., for defendant. OPINION VARNER, Chief Judge. This cause is before the Court on Plaintiff's motion filed herein February 18, 1983, for fees under the Equal Access to Justice Act (hereinafter the Act), 28 U.S.C. § 2412(d) [Supp.1982]. Upon consideration of the motion and of the affidavit and brief in support thereof and for the reasons stated below, this Court is of the opinion that the motion is due to be denied at this stage of the proceedings. The Plaintiff (sometimes referred to as Claimant in the pleadings) claimed that various physical ailments have totally and permanently disabled her from pursuing gainful employment. On November 6, 1979, the Plaintiff filed an application with the Social Security Administration (SSA) for Supplemental Security Income (SSI) disability benefits. The SSI disability benefits are the remedies that the Plaintiff ultimately seeks to obtain. On February 8, 1980, the SSA determined that the Plaintiff was not disabled and, thus, not entitled to SSI benefits. The Plaintiff then requested a hearing, and on June 30, 1980, a hearing was held before an Administrative Law Judge (ALJ) of the SSA. On October 24, 1980, the ALJ denied the Plaintiff's claim and ruled that the regulations of Defendant Secretary directed a finding of no disability. The Plaintiff then requested a review by the *839 Appeals Council of the SSA. On March 27, 1981, the Appeals Council declined to review the ALJ's decision, which constituted the final decision of Defendant Secretary. On May 27, 1981, the Plaintiff filed a complaint in this Court seeking judicial review of Defendant Secretary's decision. This Court referred the complaint to the Magistrate for his recommendation, which recommendation was filed on August 18, 1982. The Magistrate, finding errors of law in the opinion of the ALJ, recommended that the case be remanded to Defendant Secretary for reconsideration according to the proper legal standard. The Magistrate found two specific errors that should cause the case to be remanded and to be reconsidered. The first error was that Defendant Secretary incorrectly applied the medical vocational ("grid") regulations without adjudicating the impact of the Plaintiff's age on her claimed disability pursuant to Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982). Second, pursuant to Benson v. Schweiker, 652 F.2d 406 (5th Cir. 1981), Defendant Secretary failed to take into consideration the pain from which the Plaintiff suffers. On November 23, 1982, this Court remanded this case to Defendant Secretary for further proceedings in light of Broz and Benson, supra. On January 10, 1983, this Court ordered Defendant Secretary to stay any further proceedings in this case due to the fact that, on November 5, 1982, the United States Court of Appeals for the Eleventh Circuit stayed its mandate in Broz. However, on January 26, 1983, this Court realized that, due to the Benson decision, regardless of the decision of the United States Supreme Court in Broz, the stay should be vacated and that the case should be remanded to Defendant Secretary for his reconsideration. As a result of this Court's Order of January 26, 1983, the Plaintiff now moves for an award of attorneys' fees pursuant to the Act, in particular, 28 U.S.C. § 2412(d) [Supp.1982]. This statute states, in part: "(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1) (A). [emphasis added] It is this Court's opinion that the issues of whether Defendant Secretary was "substantially justified or that special circumstances make an award unjust" should be preceded by the issue of whether the Plaintiff can be considered the "prevailing party" at this juncture of the proceedings. This Court will now address the "prevailing party" issue. There seems to be no question that the Act covers the granting of attorneys' fees when there is a judicial review of SSA administrative proceedings by a district court where the agency (SSA) takes a position in the case. 28 U.S.C. § 2412; 5 U.S.C. §§ 504, 504(a)(1), (b)(1)(C); Social Security Act, §§ 1 et seq. This has occurred in this situation; however, it is noted that the Plaintiff must still be the "prevailing party". The Plaintiff claims that, because she obtained a reversal of Defendant Secretary's decision denying her SSI benefits and a remand to Defendant Secretary, she is a "prevailing party" under the Act. She cites as her authority Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982) and Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982). This Court has reviewed Ocasio and Berman and cannot agree with the Plaintiff that the facts are the same as the present case. In Ocasio, after the plaintiff had exhausted her administrative remedies, she filed her complaint to the district court seeking a judicial review. Upon plaintiff's filing of the complaint, the SSA acknowledged that it had made an error. Subsequently, Ocasio was settled by stipulation, and the district *840 court issued an order correcting the SSA interpretation of the claim and, thereby, granting the benefits the plaintiff sought. In the Berman case, after the plaintiff had exhausted her administrative remedies, she filed a complaint in the district court for a judicial review. The district court granted a summary judgment in her favor. It is clear to this Court that the present case is different. This Court has only remanded the case to Defendant for his reconsideration pursuant to Benson of the pain that the Plaintiff claims she suffers. The Plaintiff, at this stage of the proceedings, has not received any part of the benefits she seeks; therefore, it is this Court's opinion that she cannot be considered the "prevailing party". See, Whitehead v. Richardson, 446 F.2d 126 (6th Cir.1971). Since this Court is of the opinion that the Plaintiff is not the "prevailing party" at this stage of the proceedings, it is not necessary for this Court to presently address the issues of whether Defendant Secretary is "substantially justified" in his actions or "that special circumstances make an award unjust". An Order will be entered in accordance with this Opinion, denying Plaintiff's motion for attorneys' fees.

816 P.2d 977 (1991) 120 Idaho 420 ST. ALPHONSUS REGIONAL MEDICAL CENTER, LTD., Dr. John Havlina, Dr. George B. Pfoertner, and Dr. Keith Taylor, Petitioners-Appellants, v. CANYON COUNTY, Idaho, and its County Board of Commissioners, Respondents. No. 19023. Supreme Court of Idaho, Caldwell, March 1991 Term. July 9, 1991. *978 Moffatt, Thomas, Barrett, Rock & Field, Chartered, Boise, for appellants. Glenna Christensen argued. Richard L. Harris, Canyon County Prosecutor, Charles L. Saari, Deputy Prosecutor (argued), Caldwell, for respondents. BOYLE, Justice. In this appeal from a decision by the Canyon County Board of Commissioners, we are called upon to determine whether the Board of Commissioners properly denied St. Alphonsus' application for medical indigency assistance to an indigent patient under the provisions of I.C. § 31-3504.[1] On July 18, 1986, Joseph Schoenfelder was injured in Canyon County and subsequently admitted to St. Alphonsus Regional Medical Center in Boise for emergency care. An *979 application for medical assistance was filed on Schoenfelder's behalf with Canyon County on August 4, 1986 by his mother. Shortly thereafter, a worker's compensation claim was filed with Schoenfelder's employer. On September 16, 1986, the Canyon County Board of Commissioners (hereinafter "Board") denied the application for medical assistance on the basis that the "responsibility lies with Schoenfelder's employer and worker's compensation." The Board's order denying reimbursement stated that a request for a hearing to reconsider could be filed within the ensuing thirty-day period. No reconsideration of that order was requested. On August 24, 1987, the Industrial Commission denied Schoenfelder's worker's compensation claim on the basis that the accident did not arise out of and in the course of employment. However, it was not until September 28, 1987, thirty-five days later, that St. Alphonsus learned the Industrial Commission had dismissed Schoenfelder's application for worker's compensation benefits. Upon being notified that Schoenfelder was not entitled to worker's compensation benefits, St. Alphonsus immediately submitted a second application to Canyon County for medical assistance on September 28, 1987. On November 17, 1987, the Canyon County Board of Commissioners denied the September 28, 1987 application for medical assistance on the basis that the statutory requirements as to timeliness, obligation and indigency were not met. A hearing was held to reconsider the matter whereupon the Board affirmed its prior decision. The Board determined that the September 28, 1987, application for medical assistance was untimely under I.C. § 31-3504 because it was not filed within forty-five days of the patient being admitted to the hospital. The Board also determined that the hospital had been aware of Schoenfelder's medical indigency status within a week of his admission to the hospital. The Board determined that St. Alphonsus failed to make a timely application in compliance with the thirty-day rule set forth in I.C. § 31-3504 and denied the claim. St. Alphonsus appealed the Board's decision to the district court which affirmed. St. Alphonsus appealed the district court's ruling to the Idaho Court of Appeals which reversed. We granted review. I. Standard of Review Idaho Code § 31-3505 provides that judicial review of a decision by the Board of County Commissioners shall be in "substantially the manner provided in the Administrative Procedures Act." Under the Act, a person who has exhausted all administrative remedies is entitled to judicial review. I.C. § 67-5215. The standard of review by this Court of an agency decision is set forth in I.C. § 67-5215(g) which provides as follows: (g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Judicial review pursuant to I.C. § 67-5215(g) allows a court to reverse or modify an agency decision only under limited circumstances, including a constitutional violation, action in excess of statutory authority, clearly erroneous findings of fact, an arbitrary and capricious decision or one characterized by an abuse of discretion. State ex rel. Richardson v. Pierandozzi, *980 117 Idaho 1, 784 P.2d 331 (1989). Judicial review of an administrative order is confined to the record, I.C. § 67-5215(f), and the reviewing court may not substitute its judgment for that of the administrative hearing officer on questions of fact. Id.; Tappen v. State Dep't of Health & Welfare, 98 Idaho 576, 570 P.2d 28 (1977). Judicial review of agency proceedings is limited, however, the reviewing court is obliged to reverse a decision if substantial rights of an individual have been prejudiced because the administrative findings and conclusions are in violation of statutory provisions, H & V Eng'g, Inc. v. Idaho State Bd. of Professional Engrs. & Land Surveyors, 113 Idaho 646, 747 P.2d 55 (1987), or are clearly erroneous or arbitrary and capricious, Allen v. Lewis-Clark State College, 105 Idaho 447, 670 P.2d 854 (1983). Erroneous conclusions of law may be corrected on appeal. Love v. Board of County Commrs. of Bingham County, 105 Idaho 558, 671 P.2d 471 (1983). It is with the above statutory standards and case law in mind that we review this action. II. Administrative Proceedings St. Alphonsus contends on appeal that the Board incorrectly determined that it failed to submit a timely application for medical indigency assistance. The respondent Board asserts several arguments in support of its position that the hospital's application for medical indigency assistance was untimely. A review of the record before us demonstrates that Schoenfelder entered the hospital on July 18, 1986. Schoenfelder's mother filed an application on his behalf for medical assistance which was filed with Canyon County on August 4, 1986. On September 16, 1986, the Board denied the application on the basis that responsibility for the bills was the employers and should be paid through Schoenfelder's worker's compensation coverage. No appeal from this decision was taken. Refiling of an application for medical indigency benefits is allowed under I.C. § 31-3504 if a patient subsequently becomes indigent. The Board's initial argument is that St. Alphonsus, in its own capacity, failed to file an application for medical indigency assistance within the forty-five day period provided in I.C. § 31-3504. The Board relies upon Caldwell Memorial Hospital v. Board of County Commrs., 107 Idaho 33, 684 P.2d 1010 (Ct.App. 1984), and contends that it properly denied the September 28, 1987 application for medical assistance because compliance with the statutory forty-five day application period is mandatory. In Caldwell Memorial Hosp., the first application for medical indigency assistance was filed by the patient sixty-six days after his admission to Caldwell Memorial and the Court of Appeals held that the application was untimely because it was not filed within the forty-five day period provided by I.C. § 31-3504. In the instant case, the record before us establishes that an application was filed by Schoenfelder's mother within the forty-five day time period set forth in I.C. § 31-3504. The fact that it was Schoenfelder's mother rather than St. Alphonsus which filed the application is of no consequence or significance. I.C. § 31-3504 merely requires that an application "for or on behalf of a medically indigent person" receiving emergency medical services be made within forty-five days following the admission of that person to the hospital. It is not significant who files the application, so long as an application is filed on the patient's behalf by someone within forty-five days after admission to the hospital. The Board's position in this regard is without merit. The Board also argues that St. Alphonsus knew shortly after Schoenfelder's admission to the hospital that he was medically indigent and asserts that the application filed on September 28, 1987, was untimely because it was filed nearly fourteen months after Schoenfelder's admission to the hospital, rather than thirty days after St. Alphonsus knew of Schoenfelder's medical indigency. We disagree. At the time that Schoenfelder initially entered the hospital on July 18, 1986, St. *981 Alphonsus had received information that Schoenfelder had no insurance and that he was not covered by worker's compensation. Consequently, St. Alphonsus advised Schoenfelder's mother to file an application for medical indigency assistance which she did on August 4, 1986. On September 16, 1986, the Board determined that Schoenfelder was not medically indigent and denied the application because of the pending worker's compensation application and stated that "other resources might be available for payment." Idaho Code § 31-3504 requires that an application for or on behalf of a medically indigent person "shall be made within thirty (30) days of the time the person becomes medically indigent." Hence, under the express language of this part of the statute, the timeliness of an application is dependent upon the time at which a patient becomes medically indigent. University of Utah Hosp. v. Board of County Commrs., 116 Idaho 434, 776 P.2d 443 (1989). I.C. § 31-3502(1) defines a medically indigent person as follows: "Medically indigent" means any person who is in need of hospitalization, and who, if an adult, together with his or her spouse, ... does not have income or other resources available to him from whatever source which shall be sufficient to enable the person to pay for necessary medical services. In the instant case, when the Board first denied the application for medical indigency benefits on September 16, 1986, the pending worker's compensation claim suggested that there may be other available resources which would pay the medical expenses. So long as the claim for worker's compensation was pending, those benefits remained a possible resource for payment of Schoenfelder's medical bills. Schoenfelder did not become medically indigent as defined in I.C. § 31-3502(1) until August 24, 1987, when the Industrial Commission denied his claim and it was actually determined that the worker's compensation benefits were not available as a source of payment. See generally Intermountain Health Care v. Board of County Commrs., 107 Idaho 248, 688 P.2d 260 (1984) (the resource upon which the Board denied the application must be available); Idaho Falls Consolidated Hosp. v. Board of Commrs. of Jefferson County, 109 Idaho 881, 712 P.2d 582 (1985) (any assets which are exempt from attachment or levy cannot be considered as resources available.) Therefore, the date upon which Schoenfelder legally became medically indigent for purposes of medical indigency purposes was on August 24, 1987, when the Industrial Commission denied his claim for worker's compensation benefits. Idaho Code § 31-3504 requires that an application for medical assistance shall be filed within thirty days of when the patient "becomes medically indigent." Thirty days from August 24, 1987 is September 23, 1987, and St. Alphonsus filed it's application on September 28, 1987, five days past the statutory thirty days and the application is technically untimely. However, the fact that the application was filed five days late does not necessarily defeat a claim for benefits. In University of Utah Hosp. v. Board of County Commrs., 116 Idaho 434, 776 P.2d 443 (1989), we reaffirmed Carpenter v. Twin Falls County, 107 Idaho 575, 691 P.2d 1190 (1984), wherein it was held that an untimely application does not necessarily defeat a claim for benefits.[2] In Carpenter, we held that untimely notice of indigency was not necessarily a basis for denying benefits where the county was not prejudiced by the lack of notice. The Board contends that it was prejudiced by the untimely filing of the application because the lengthy periods of delay in determining indigency of applicants affects the county's budgetary process. We do not find this argument persuasive. The fact that I.C. § 31-3504 allows for two filing periods indicates to us that the legislature contemplated it will not always be possible to determine within the first forty-five *982 days following a patient's admission to the hospital whether that person is medically indigent. Because such delays are contemplated within the statutory scheme, the Board cannot now say that such a delay and reapplication process prejudices the county. Although the hospital has a duty to use diligence in investigating the indigency status of its patient, that duty encompasses a standard of reasonableness. See University of Utah Hosp. v. Board of County Commrs. of Twin Falls County, 113 Idaho 441, 745 P.2d 1062 (Ct.App. 1987). We therefore hold that the hospital's action and reliance on the county's reason for denial of Schoenfelder's 1986 claim was reasonable. The hospital's prompt action immediately upon learning that coverage under the worker's compensation claim had been denied, and filing an application that same day meets and satisfies the required standard of diligence. We reiterate the holding in University of Utah Hosp. v. Board of County Commrs. (Scarberry), 116 Idaho 434, 776 P.2d 443 (1989), where it was stated that following the initial filing of an application, a hospital may renew its application every thirty days. Such a procedure guarantees that the hospital's rights would be protected at minimal cost or effort. As stated in University of Utah v. Board of County Commrs. (Scarberry), "[t]he principle is one of `when in doubt, file.'" 116 Idaho at 438, 776 P.2d at 447. We therefore conclude and hold that the Board was not prejudiced by the untimely filing of the application for medical indigency filed by St. Alphonsus. The decision by the district court is reversed and remanded to the Canyon County Board of Commissioners for processing of the application for medical indigency benefits and for further proceedings consistent with this opinion. Costs to appellants. No fees awarded. BAKES, C.J., BISTLINE and JOHNSON, JJ., and ROWETT, D.J. (Pro Tem.) concur. NOTES [1] Idaho Code § 31-3504 provides: An application for or on behalf of a medically indigent person receiving emergency medical services may be made any time within forty-five (45) days following the admission of said person to the hospital for furnishing said care. If a person becomes medically indigent subsequent to admission to a hospital or subsequent to receiving treatment by a hospital, an application for the person or on his behalf, shall be made within thirty (30) days of the time the person becomes medically indigent. The chargeable county or counties shall be notified as soon as practicable upon the hospital's obtaining information disclosing that a patient is medically indigent. [2] In University of Utah Hosp. v. Board of County Commrs., 116 Idaho 434, 776 P.2d 443 (1989), this Court held that prior cases which suggested that the time requirements of I.C. § 31-3505 are to be strictly enforced were improperly based on dicta found in Braun v. Ada County, 102 Idaho 901, 905, n. 5, 643 P.2d 1071, 1075, n. 5 (1982).

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EMERENCIANA PETER-PALICAN, No. 13-17099 Plaintiff-Appellant, D.C. No. v. 1:07-cv-00022 GOVERNMENT OF THE COMMONWEALTH OF THE NORTHERN OPINION MARIANA ISLANDS; ELOY S. INOS, Governor of the Commonwealth of the Northern Mariana Islands, in his official capacity,* Defendants-Appellees. Appeal from the United States District Court for the District of the Northern Mariana Islands John C. Coughenour, Senior District Judge, Presiding Submitted July 23, 2014** San Francisco, California Filed September 17, 2014 * Governor Eloy S. Inos is substituted for his predecessor, Governor Benigno R. Fitial, pursuant to Fed. R. App. P. 43(c)(2). ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 PETER-PALICAN V. CNMI Before: Alfred T. Goodwin, Stephen S. Trott, and Mary H. Murguia, Circuit Judges. Per Curiam Opinion SUMMARY*** Civil Rights Following a prior remand in Peter-Palican v. Gov’t of N. Mariana Islands, 695 F.3d 918, 920 (9th Cir. 2012), the panel affirmed the district court’s summary judgment in favor of the Commonwealth of the Northern Mariana Islands and Governor Eloy S. Inos in Emerenciana Peter-Palican’s action arising from her termination from her position as Special Assistant to the Governor for Women’s Affairs. The panel held that the district court properly granted summary judgment on Peter-Palican’s retaliation claim because she failed to raise a triable dispute as to whether she did not hold a “policymaking or confidential” position. The district court properly granted summary judgment on the breach of contract claim because it was undisputed that Peter- Palican held her position by virtue of appointment rather than by contract. The panel held that the district court properly granted summary judgment on Peter-Palican’s estoppel claim, first, because she failed to raise a triable dispute as to whether *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  PETER-PALICAN V. CNMI 3 government officials engaged in any affirmative misconduct going beyond mere negligence, as required for equitable estoppel. Second, Peter-Palican failed to raise a triable dispute as to whether the Commonwealth gained an advantage by asserting one position, and then later sought an advantage by taking a clearly inconsistent position, as required for judicial estoppel. The panel denied the Commonwealth’s request for sanctions against Peter-Palican and her attorney. COUNSEL Douglas F. Cushnie, Proas Lane, Saipan, Commonwealth of the Northern Mariana Islands, for Plaintiff-Appellant. Joey P. San Nicolas, Attorney General, David Lochabay, Assistant Attorney General, Office of the Attorney General, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellee. OPINION PER CURIAM: Emerenciana Peter-Palican appeals from the district court’s summary judgment in favor of the Commonwealth of the Northern Mariana Islands and Governor Eloy S. Inos (collectively, “the Commonwealth”) in Peter-Palican’s 42 U.S.C. § 1983 action arising from her termination from her position as Special Assistant to the Governor for Women’s Affairs. In an earlier appeal, we vacated the district 4 PETER-PALICAN V. CNMI court’s judgment in favor of Peter-Palican because the Commonwealth Supreme Court’s answer to our certified questions conclusively determined that Peter-Palican did not have a constitutionally protected interest in continued employment beyond the term of the governor who appointed her, and her termination without cause therefore did not violate the Due Process Clause. Peter-Palican v. Gov’t of N. Mariana Islands, 695 F.3d 918, 920 (9th Cir. 2012). We remanded, however, for the district court to address Peter- Palican’s retaliation, breach of contract, and estoppel claims in the first instance. Id. Peter-Palican now assigns error to the district court’s grant of summary judgment on those claims. We have jurisdiction under 28 U.S.C. § 1291. On de novo review, Biggs v. Best, Best & Krieger, 189 F.3d 989, 993 (9th Cir. 1999), we affirm. The district court properly granted summary judgment on Peter-Palican’s retaliation claim because Peter-Palican failed to raise a triable dispute as to whether she did not hold a “policymaking or confidential” position. See id. at 994–95 (“[A]n employee’s status as a policymaking or confidential employee [is] dispositive of any First Amendment retaliation claim.”). The district court properly granted summary judgment on Peter-Palican’s breach of contract claim because it is undisputed that Peter-Palican held her position by virtue of appointment rather than by contract. See Riplinger v. United States, 695 F.2d 1163, 1164 (9th Cir. 1983) (“Though a distinction between appointment and contract may sound dissonant . . . , the distinction nevertheless prevails in government service. The terms of the appointment displace previous understandings, understandings that in other contexts might have created a contractual right.”).  PETER-PALICAN V. CNMI 5 The district court properly granted summary judgment on Peter-Palican’s estoppel claim, first, because Peter-Palican failed to raise a triable dispute as to whether government officials engaged in any affirmative misconduct going beyond mere negligence, as required for equitable estoppel. See Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985) (“[Equitable] estoppel against the government must rest upon affirmative misconduct going beyond mere negligence.” (citation omitted)); see also Mukherjee v. I.N.S., 793 F.2d 1006, 1009 (9th Cir. 1986) (defining affirmative misconduct as “a deliberate lie . . . or a pattern of false promises”). Second, Peter-Palican failed to raise a triable dispute as to whether the Commonwealth “gain[ed] an advantage by asserting one position, and then later [sought] an advantage by taking a clearly inconsistent position,” as required for judicial estoppel. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The Commonwealth’s request for sanctions against Peter- Palican and her attorney, raised in its answering brief, is denied. AFFIRMED. 

607 F.2d 997 Moorev.Czarnetsky No. 78-2094 United States Court of Appeals, Second Circuit 6/12/79 1 S.D.N.Y. 2 AFFIRMED* * Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23

Filed 3/13/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO NORTH COUNTIES ENGINEERING, INC. et al., Plaintiffs and Appellants, A133713 v. (Sonoma County STATE FARM GENERAL INSURANCE Super. Ct. No. SCV243762) COMPANY, Defendants and Respondents. North Counties Engineering, Inc. (NCE), an engineering company, and Gary Akerstrom, its president (sometimes collectively, appellants), were sued in 2004 in two lawsuits that sought property damage arising out of the construction of a dam completed in 1999. Appellants tendered defense of the lawsuits to State Farm General Insurance Company (State Farm), under a business policy it had issued to NCE effective 1997. State Farm rejected the tender, a position it maintained for several years, until September 2007, when State Farm recognized that its position had been based on a policy declarations page first effective in 2001—and thus a policy not applicable to the claims in the lawsuits. State Farm agreed to provide a defense from September 2007 forward, leaving unreimbursed some $504,000 in expenses incurred prior to that date. Appellants sued State Farm seeking the unreimbursed expenses for its original refusal to defend, along with other damages. Following extensive discovery, the case proceeded to a jury trial, which jury heard testimony for twenty days, never to decide any issue in the case. Rather, the trial court granted State Farm’s motion for directed verdict, 1 necessarily concluding that there was absolutely no evidence supporting that State Farm had a duty to defend. We conclude otherwise, and we reverse. BACKGROUND The Participants and the Project NCE is a California corporation; Gary Akerstrom is its president and majority (90 percent) shareholder. Akerstrom has a bachelor’s degree in engineering and master’s degrees in business administration and structural engineering. Akerstrom also had an ownership interest in another corporation, North Counties Development, Inc. (NCD), which was co-owned and operated by his sons. Akerstrom, who was 71 years old at the time of trial, was also a licensed real estate broker, with many property interests in the Ukiah area. Lolonis Winery (Lolonis) owns property in Redwood Valley, Mendocino County, on which there are vineyards and reservoirs. In 1974 Lolonis entered into a contract with NCE to design a “state-sized” earthen dam on the property (the Lolonis Dam), whose function would be to capture water from a stream referred to at trial as “Tributary A.” A state-sized dam requires government approval and oversight (Water Code § 6002 et seq.), and in June 1974 Lolonis submitted its plans and specifications to the State Department of Water Resources, Division of Safety of Dams for the State of California (DSOD). DSOD approved the plans at the time, but no work was done. Twenty years later, in 1994, Lolonis had the plans approved again. Still, no work was begun, and in fact did not begin until 1997, with some preliminary work for the Lolonis Dam. Meanwhile, Lolonis made improvements to two other dams on its property, the Quillen dam and the Winery dam. The work on these other dams was done pursuant to an oral agreement Lolonis had with NCE and NCD. Akerstrom himself was involved in the work on the Quillen and Winery dams, which included hands-on labor. The work on these dams was completed in 1997. 2  Lolonis began clearing the site for the Lolonis Dam reservoir in 1997, and actual construction of the dam itself began in 1998. NCE and Akerstrom were involved in the labor and construction work on the dam, and all work performed through 1998, including on all three dams, was on a time and materials basis. That changed in 1999. In 1999, Lolonis signed written agreements with NCE and NCD to complete construction of the Lolonis Dam in accordance with the plans drafted in 1974. In one contract, that of July 2, 1999, NCE and NCD were both defined as the “Contractor,” responsible for furnishing “all work, labor, tools, equipment, materials . . . necessary to construct and complete in a good, expeditious, workmanlike and substantial manner the dam project under the terms of this agreement.” The Contractor guaranteed “all equipment, material, supplies and work furnished on the job against defective construction, components, or workmanship,” and also agreed to “indemnify and hold [Lolonis] harmless from all claims, demands, or liability arising from or encountered in prosecution or work under this contract . . . .” Further, Akerstrom guaranteed the full performance of the contracts by NCE and NCD. In August 1999, as work progressed, NCE entered into two other agreements with Lolonis. One was to build an access road to the dam’s spillway, install large drainage culverts, and work on the “south-borrow area,” from which soil was taken or “borrowed” to build the dam embankment. The other was to construct a sediment basin adjacent to the south-borrow area, into which sediment present in water runoff from the borrow area was collected.1 Construction of the Lolonis Dam was completed in November 1999. The next month, DSOD conducted its final inspection, and in February 2000 issued a certificate of spproval, permitting Lolonis to impound water and use the dam. 1 NCD had its own separate written agreement with Lolonis concerning work in the south-borrow area. 3  The Insurance Policy Robert Mirata, a State Farm insurance agent in Ukiah, had known Akerstrom since 1987. In 1990, Akerstrom met with Mirata to obtain insurance, in Akerstrom’s words to “cover [his] normal things, my business, which would cover, like fire insurance on the business, liability on the business, things that I would do outside, you know, any work like the P.C.O., products completed operations.” This was important, Akerstrom said, because he has “always been doing some construction work, normally for my own account.” And, he said, Mirata was aware of this: he “knew me and what I was doing.” Mirata testified that his practice was to discuss information on the application with the potential insured, along with the scope of coverage. Mirata then filled out the application for insurance, and in the box for insured-business type, wrote “engineering and surveying.” In 1991 State Farm issued policy No. 97-66-0110-2. It was entitled “Business Policy—Special Form 3,” and the named insured was NCE. The declarations pages for the first many years of coverage—specifically, until the policy beginning June 11, 2000—provided as follows under the column labeled “Coverages and Limits”: “Section I [¶] . . . [¶] “Section II “L Business Liability $1,000,000 “M Medical Payments 5,000 “Products-Completed Operations 2,000,000 “(PCO) Aggregate . . . “General Aggregate (Other than PCO) 2,000,000” As described in detail below, the “Products Completed Operations” (sometimes PCO) coverage became a central factor in the case. In April 2000 State Farm sent a notice to NCE advising of State Farm’s “intent to renew your policy with the Products Completed Operations Liability Exclusion Endorsement . . . as we do not offer [this coverage to] engineering companies.” The endorsement was FE 6312. 4  As relevant here, the policy provided as follows: “SECTION II COMPREHENSIVE BUSINESS LIABILITY “COVERAGE L—BUSINESS LIABILITY “We will pay those sums that the insured becomes legally obligated to pay as damages because of . . . property damage, . . . injury to which this insurance applies,” going on to describe that the policy applies “to bodily injury or property damage caused by an occurrence which takes place in the coverage territory during the policy period . . . .” The policy also had numerous “Business Liability Exclusions,” one of which, the “professional services” exclusion, would also be a central factor here. It provided as follows: “Under Coverage L, this insurance does not apply: [¶] . . . [¶] “10. . . . to property damage . . . due to rendering or failure to render any professional services or treatments. This includes but is not limited to: [¶] . . . [¶] “b. engineering, drafting, surveying or architectural services, including preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; “c. supervisory or inspection services; . . .” And, of course, the policy specified that State Farm had the duty to defend any claim or suit seeking damages payable under the policy. The Underlying Actions In 2000, shortly after completion of the Lolonis Dam, the State began to investigate, apparently based on complaints from neighbors of excess sediment in the creek downstream, and concerns that the construction caused erosion in the surrounding waterways. Lolonis made attempts to remediate the problem, not to the State’s satisfaction, leading to the first lawsuit involved here, that filed by the state in early 2004: People of the State of California ex rel. California Regional Water Quality Control Board v. Lolonis Vineyards, Inc., et al., Mendocino County Superior Court Case SCUK CVG 03-91551 (the State action). The State action named Lolonis (and the 5 individuals connected with it) and sought injunctive relief, civil penalties, and damages under the Water Code, the Fish & Game Code, and the Civil Code. Lolonis filed a cross-complaint in the State action against NCE, NCD, and Akerstrom, asserting claims for breach of contract, negligence, indemnity, and declaratory relief. The complaint in the Lolonis action described for three pages the history of the planning and construction of the dam, beginning in 1974 and ending in 1999, and alleged, among other things, that in the winter of 1998-1999 the Department of Fish and Game “observed the earthen dam and determined that the unfinished construction had resulted in erosion and sediment escaping downstream.” In April 2004 Lolonis filed the second action involved here, its own action against NCE, NCD, and Akerstrom: Lolonis Vineyards, Inc. v. North Counties Engineering Co. et al., Mendocino County Superior Court Case SCUK CVG 04-92182 (the Lolonis action). The Lolonis action alleged claims for breach of contract, express/implied warranty, and negligence. The complaint in the Lolonis action described for three pages the history of the planning and construction of the dam, beginning in 1974 and ending in 1999, and alleged, among other things, that in the winter of 1998-1999 the Department of Fish and Game “observed the earthen dam and determined that the unfinished construction had resulted in erosion and sediment escaping downstream.” More specifically, the Lolonis complaint alleged as follows: “1. . . . This action is to obtain damages for breach of contract, negligence and implied warranty from a contract for the construction of a dam on the Lolonis Vineyards, Inc. property. [¶] . . . [¶] “30. [The State] seek[s] damages for negligence in the construction of the dam resulting in harm to tributaries A and B. To the extent such damages are recoverable, such damages are the direct result of negligent construction by [appellants and NCD]. [¶] . . . [¶][2] 2 The complaint in the Lolonis action attached numerous exhibits, including the State’s amended complaint and the July 1999 contract. 6  “32. [Lolonis] contends that [appellants and NCD] breached their contracts with Lolonis . . . in failing to construct the dam in a good and professional manner. Specifically, [NCE] undertook to place fill for construction of the dam, construction of roadways and construction of the spillway . . . [S]uch fill resulted in damage to downstream tributaries . . . which has resulted in several hundred thousand dollars worth of damage to tributaries A and B.” The Lolonis complaint also alleged that the State contended that Lolonis failed to obtain proper permits for the work in Tributary B, and this was also appellants’ responsibility, as they never notified Lolonis that permits were required. For consistency with the briefing, Lolonis’s cross-complaint in the State action and its complaint in its action will be referred to collectively as “the underlying actions.” Tender of the Underlying Actions NCE, Akerstrom, and NCD jointly hired the Law Offices of Duncan M. James to defend them in the underlying actions. Via a May 2004 letter, James’s associate tendered defense of the underlying actions to State Farm. The claim was numbered 05-M340-073 (the claim), and was assigned to State Farm claim representative Karla Woerner, under the supervision of team manager Jean Splinter. Woerner designated May 7, 2004, the date the tender was received, as the “date of loss,” testifying she did so for “record purposes.” There was no supporting testimony that this was an acceptable claims-handling practice, and in fact Woerner made the following entry in the claim activity log: “Put in date of loss as date received claim [May 7, 2004] for record purposes. Will update date of loss when get a copy of the complaint for review.” Despite that, State Farm never changed the date of loss. Moreover, Woerner gave no explanation why she did not use the actual date(s) set forth in the underlying actions, which included the period beginning in 1997 and continuing through at least 1999. As State Farm’s own brief puts it, “[t]he underlying complaints tendered by appellants patently allege that the sediment and erosion damage giving rise to the suit began in the winter of 1997. . . .” Regardless, Woerner did what she did, causing the consequences 7 that followed from what she would later testify was something she “should have updated.” According to the State Farm testimony at trial and also its claim activity log, Woerner reviewed the pleadings in the underlying actions, the attached contracts and correspondence, and spoke with James’s office. In an eight-page letter dated June 9, 2004, signed by Splinter “by . . . Woerner,” State Farm advised that it had “completed [its] investigation and do not believe there is a potential for coverage for the lawsuit. Therefore, we are unable to provide your client with a defense.” Citing a litany of definitions and exclusions, the letter went on to assert that the negligence allegations did not arise from an “occurrence” because the “allegations against the insured cannot be construed as accidental”; that NCE’s contract with Lolonis was not an “insured contract” under the policy; that Lolonis “claims their damages are a result of [NCE’s] and Akerstrom’s professional services,” [and] thus the professional services exclusion applies; and, finally, that “Endorsement FE6312 is part of this policy” and thus PCO coverage was excluded from coverage. Interestingly, the last page of the letter advised that State Farm was “waiting for Underwriting to provide us with the Declarations page and specimen policy, which you requested. Once received, we will forward to you immediately.” As will be seen, nothing was forthcoming from “Underwriting,” at least for several years. We momentarily digress from the chronology to mention Woerner’s testimony at trial concerning her conduct at the time the tender was rejected, beginning with her admission that, “[w]hen [she did] the evaluation, [she] was looking at a policy for 2004.” Woerner further admitted she conducted no interviews, made no inquiries, and requested no written statements regarding the underlying actions or the scope-of-work performed by appellants. Over two years went by, apparently with no communication between James and State Farm relevant to the tender of defense. Then, on November 20, 2006, James wrote State Farm, “reasserting our demand that you tender a defense forthwith.” As to what had transpired in the interim, his letter advised as follows: “Since the time of that tender, 8 my clients have been defending against the above referenced actions. [The State action] has been dismissed. Plaintiff LOLONIS VINEYARDS has been actively pursing [sic] the complaint in Mendocino County Superior Court . . . and, in an apparent response to an extensive ‘Motion for Summary Judgment or in the Alternative Summary Adjudication’ that was filed by the defendants, filed a motion to amend the complaint. [¶] By stipulation, the parties agreed: the amended complaint could be filed; . . . . A copy of the amended complaint, stipulation and order is enclosed.” This time State Farm team manager Patrick Yaklin became involved and assigned the matter to claims representative Rudy Barajas. Barajas first reviewed the matter on December 22, 2006, and as he would later testify—and the State Farm log would confirm—he fundamentally relied on Woerner’s 2004 coverage memo. He did not independently establish the date of loss or reassess the claim. Rather, Barajas simply compared the new pleadings to the old by placing them side-by-side. That was it. The State Farm claim log recites that on December 24 Yaklin “reviewed and discussed . . . with . . . Barajas,” and “agree[d] with . . . Barajas analysis that there is still no duty to defend the matter and we will reiterate our denial.” So, on December 28, Barajas dictated a “retender” of the Splinter letter rejecting the defense. Before he sent it, however, Barajas talked to James, who observed that Lolonis sought damages for work on the dam project that caused property damage downstream, including the failure of the sediment basin in the south-borrow area. James also recounted that the declaration pages for the applicable 1999-2000 policy contained PCO coverage; that appellants’ work on the Lolonis Dam was completed in 1999; and that the alleged property damage occurred during the 1999-2000 policy period. On January 12, 2007, James sent a letter to Barajas conveying the same information, with extensive citation to California regulatory and insurance case law. Barajas decided not to send the previously drafted retendered denial letter and reported to Yaklin. Then, by letter of January 30, 2007, State Farm referred the matter to counsel, specifically, Lawrence Guslani at Hayes Davis Bonino Ellingson McLay & Scott, LLP (Hayes Davis). Hayes Davis apparently prepared a coverage opinion, which 9 Yaklin reviewed on February 22. The next entry in the State Farm log was made by Barajas who, on March 5, “dictated retender letter.” A week later Yaklin “reviewed and revised retender letter” which was “[n]ow ok to send.” And by letter of March 16, Yaklin wrote to James, advising that State Farm continued in its position. Several months later, on June 20, James wrote, once again requesting a defense. This letter again pointed out that the policy provided “PCO coverage.” The letter also pointed out, in no uncertain terms, that the claimed property damage was not to the dam, but to the downstream property caused by appellants’ “completed operations.” Guslani of Hayes Davis responded almost immediately, with a terse, two and a half page letter asserting that appellants “did not purchase [PCO] coverage, [the] Policy . . . includes an endorsement which excludes all . . . ‘property damage’ . . . included within the ‘products-completed operations hazard.’ ” James responded on June 22, commenting that it was “hard to give any credence to your letter when it is premised on grossly incorrect facts,” going on to fax a copy of the declarations page for the 1999–2000 policy. Six days later, June 28, James sent a follow-up letter to Guslani, discussing at length the “Products Completed Operations Hazard” coverage, and again requesting a defense. Guslani wrote to Barajas, confirming that what Guslani’s firm had been provided was not complete. Thus Guslani wrote, requesting that State Farm “provide us with all of the policy information for the policies in force from June 11, 1997 to June 11, 2004. As of this time, the only policy information which we have is for the period of June 11, 2003 to June 11, 2004, which was included with your file, and the policy information for the period of June 11, 1999 to June 11, 2007.” This apparently caused Barajas to undertake a search for various underwriting information , which he apparently forwarded to Guslani on July 12. What happened next we can only infer from the State Farm log, which indicates among other things that Guslani talked to James who, by July 16, had sent Guslani “approximately 3,000 pages of material, which . . . Guslani is reviewing.” Over a month went by, with no developments at State Farm, and Barajas called Guslani on August 20. 10 On August 22, Guslani told Barajas he had received material from James and would “review and call to discuss by 8/24/07.” He apparently did not, and as instructed by Yaklin, Barajas called Guslani on September 7. James, meanwhile, heard nothing, and followed up with a detailed, 34-page letter to Guslani on September 5. Exactly what happened at State Farm from that point is not in the record, but State Farm did change its position: by letter of September 20, signed by Guslani and Benjamin Larson (another attorney at Hayes Davis), State Farm agreed that it would provide a defense from September 5, 2007 forward, and also pay James as Cumis counsel pursuant to Civil Code section 2860.3 These costs were in fact paid. In March 2010 the Lolonis action was settled at mediation, in connection with which Lolonis was paid $405,000, with contributions from appellants, NCD, and State Farm. As part of that settlement appellants and State Farm agreed “that neither party would seek reimbursement from the other for their contributions [and] . . . [i]n addition, . . . State Farm agreed that it would not seek reimbursement for any fees and costs paid or incurred to [appellants] and the Law Offices of Duncan James during the defense of the Lolonis case.” The upshot of this is that the expenses incurred before September 5, 2007—$504,316.90—remained unpaid, leading to the within action. The Proceedings Below On October 17, 2008, appellants filed suit against State Farm and Hayes Davis. The complaint asserted five causes of action on behalf of both appellants: (1) declaratory relief, (2) breach of contract, (3) unfair competition, (4) fraud, and (5) breach of the covenant of good faith and fair dealing. A sixth count, for elder abuse, was alleged on behalf of Akerstrom only. Hayes Davis was named in only the third and fourth causes of action, and the firm was dismissed with prejudice on January 23, 2009. Also in January 2009 the unfair competition claim was eliminated via a demurrer sustained without leave to amend. 3 San Diego Navy Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358. 11  On April 22, 2011, a second amended complaint was filed, which was the operative pleading when the case proceeded to jury trial, beginning on July 13, 2011. Following motions in limine, testimony began on July 20 and appellants’ case was presented over 18 days, until August 18. Meanwhile, on August 17, State Farm had filed a written motion for nonsuit, and appellants their written motion for “directed verdict: breach of contract—duty to defend,” motions thereafter followed by State Farm’s motion for directed verdict. On August 18, following completion of appellants’ case, the trial court turned to the “motions” filed by both sides. Extensive argument followed, in the course of which the court made several observations that could be considered pertinent here, including these: that there were “multiple mistakes made which . . . certainly might lead to findings of bad faith and liability”; that the “bulk” of the trial was “whether there’s coverage or not. And that hasn’t been decided yet, but it seems like it’s a lively, true debate. It’s not—it may not be black and white, but it seems like it’s a legitimate, legal argument.” Then, at the conclusion of that argument the court observed, without discussion or elaboration, that “the court does have to make a call on coverage, it’s a legal issue,” further concluding that it would defer its ruling until the presentation of State Farm’s case. State Farm’s case took two days, concluding on the afternoon of August 22. The next day the court returned to the motions, beginning with the observation that “obviously you’ve submitted briefs. . . . Does the plaintiff want to say something at this point.” Counsel for appellants began, launching an extensive argument that would result in 72 pages of transcript. At the conclusion of that lengthy argument the court ruled for State Farm, a holding prefaced by over three pages of discussion, as follows: “Well, seems like quite a bit of the case did touch on coverage disputes. And I do think it would have been better to handle this in a summary judgment motion in some ways. You know, obviously there may be reasons not to have done that you know. “And we are deep into the case, ready for argument on Thursday to the jury; however, I’m not convinced that there’s a possibility of coverage here. I’ve tried to think this through all the way through the trial, and I clearly understand that State Farm made 12 some mistakes, although we haven’t gotten to the issue of fraud. I haven’t seen any evidence that State Farm employees and coverage lawyers were lying and concealing and conspiring and doing something that was fraudulent. I think that’s an unfair stretch of the facts. “Obviously, they disagreed with the duty to defend even though a defense was provided for a period of time, and they have adequately fought the issues of this trial, but I don’t see any evidence of criminal conduct or fraudulent conduct; obviously there was some mistakes made. Now, whether or not those mistakes were professional errors that should not have occurred that should be addressed in some manner, that could be true, but I don’t think that the mistakes create coverage. “I do agree we have to go back to the time of tender, and there are policies that favor the Plaintiff in the sense that the duty to defend is a strong policy that is broader than the duty to indemnify. If we’re looking at coverage, that’s to be construed broadly, if you’re looking at the exclusions, that’s to be looked at narrowly. If there truly was ambiguity, the benefit should go to the insured. I totally accept all of those propositions which make sense. . . . “But, what the Court really thinks is that this case is about a professional engineer and his company, the engineering company, doing a sophisticated project, a large state dam, that has to be approved by the state that requires the skill of a very intelligent person such as Mr. Akerstrom. He was hired clearly by Lolonis Vineyards to apply his engineering expertise. His son’s NCD company was really the real contracting or laboring arm of this enterprise, and the intelligence and skill and expertise was being applied by the dad. “Clearly, I hear that he was upset when Lolonis Vineyards sued him suggesting that there was negligence in his professional activities, and it was a protracted legal fight which costs money and he didn’t really have cash on hand to just pay for that; and it would have been good to have insurance coverage. But in reality, Mr. Akerstrom admits that he chose, intentionally chose, not to buy the E and O coverage. He indicated he was 13 going to be careful, and I assume that he does careful work, and that he normally would not create an issue that would lead to a lawsuit. “And I’m not assuming that he was negligent in the underlying action. He did get sued and he had to defend, and that was proper and it was difficult. I also understand that he’s really gotten fixated in that process as well as in the current lawsuit which has taken a while. And that’s not healthy. The professionals that told us that takes a toll on your health and it affects the people you care for. And I totally understand the emotional distress story that was conveyed in court. “However, whether State Farm made some mistakes that could arise to bad faith and relate to emotional distress damages, whether elder abuse somehow can apply to this kind of fact pattern may not be relevant if there was no coverage. It seems like you have to go back to the fundamentals as to whether the contract in this case creates the possibility of the coverage. And I think that State Farm has met its burden to show that there was no duty to defend from the get go . . . and I think that’s because it’s not shown to the Court to be illegal to have an insurance policy containing PCO and professional services exclusions. “The cases that have been cited suggest there may be some fact patterns where an engineer or a like professional would be covered under PCO, at least for part of what’s going on, but still some of the activities of professional services would be excluded. I don’t think that that creates a conflict. I think you have to look at the specific facts before the Court and determine whether the exclusion in this case eliminated the coverage for the completed project. “I think in fairness, the language does broadly apply here. The NCE company was a professional company giving specialized professional services and designing and building and supervising the building of a dam, and I think it is not a situation where you can say that they were sued for something incidental to their professional involvement if these contracts. [sic] “You know, if there was something, the Court would agree with the Plaintiffs that maybe Food Pro would have applied or Hudson would apply, but I don’t think we have 14 those fact patterns, I think we have a case where the professional company should have had coverage that would have applied to their professional activities to protect them in such a lawsuit. I don’t think there’s anything illegal about the contract that actually existed at the time of the occurrence. “And just because there was a mix up and mistakes about date of loss and PCO application at the time of the occurrence doesn’t in and of itself create the coverage that would apply to what NCE got sued for. So I don’t believe that this set of facts shows the potential for coverage requiring a defense. And I think the burden, although it’s heavy, has been met by State Farm. “So I will rule for State Farm for all the reasons that they have advocated on the duty to defend, breach of contract issue and indicate the judgment should be ultimately given to them on that cause of action.” The next morning counsel for appellants asked the court to “reconsider its ruling yesterday and/or vacate that ruling under 663.” The court agreed to hear argument, in the course of which the court made the following comments: “[I]n fairness, if you look at the pleadings, the legal pleadings and the contracts, the NCE role is, as the engineering company, the support company, and that company was overseeing the [sic] NCD to make sure that whatever they did was done right. . . . NCE is the expert on the job, the professional providing professional services, design and construction, and also overseeing the work of NCD, the son’s business, which is doing more of the physical activity. But in this sort of complicated project, I think that Lolonis had a right to have the expert, the engineer, oversee and guarantee that the whole thing was done right. That takes professional expertise and I think all of what Mr. Akerstrom did was professional. . . .” It was this professional work, and not “something incidental to their professional involvement” that gave rise to the underlying actions. “[I]n this situation, it’s not a malpractice or E and O policy. It’s a business policy, which has good benefits, but is subject to the professional services exclusion, which was broadly stated in the policy, which then has been dealt with by cases which the Court must look to. And I think in this case, everything, whether it’s in the nature of the 15 services that were rendered or the insured contract concept, falls under that exclusion, and the exclusion meant from the beginning that there really wasn’t any basis for coverage.” With regard to appellants’ argument concerning the existence of “PCO coverage,” the court stated that such was “immaterial in the long run . . . because even when it’s in the picture, the PCO has to be read in conjunction with the professional services exclusion.” The court also noted that the professional services exclusion would be applicable to any “insured contract,” and coverage could not be found on that basis. And so the court summed up: “[B]ased on all the cases we’ve discussed, and the particular facts of this case, the Court concludes, again, that State Farm has met the higher burden of showing that there was no duty to defend, no conceivable basis for coverage and defense at the beginning of the—at the tender time, and that really hasn’t changed. That’s certainly been a consistent position of the coverage lawyers for State Farm all the way through this litigation.” State Farm submitted a six-page proposed order. On September 15 appellants filed objections to the proposed order, objections that were vigorous indeed. The objections began with the observation that the proposed order “does not represent the court’s rulings or reasoning. In short, it is inaccurate, incomplete, and in some instances beyond the Court’s actual findings and rulings. State Farm’s effort to insert rulings not actually made and to exclude unfavorable rulings and reasoning of the Court must be rejected. The court ruled and fully explained its reasoning on the record. That—not State Farm’s truncated, incomplete, and inaccurate Proposed Order—is what transpired during the subject hearings and what should ultimately be the written order of this Court.” The objections continued for thirteen pages, in the course of which appellants quoted at length various comments by the court. The objections also included numerous pages of the transcript of the argument on the motion. To little avail. The next day, September 16, the court entered its written order granting the directed verdict, signing the order prepared by State Farm’s counsel with some minor deletions and one modification. Included in that order was the representation that the 16 decision was based on “the circumstances as they existed at the time of [appellants’] initial tender, including the facts reasonably available to State Farm at that time and State Farm’s evaluation of such facts.” And the order concluded that “as a matter of law, the only work at issue in the underlying actions relating to [appellants] was their performance of professional services—including any labor or contracting work.” Judgment for State Farm was entered that same day, from which appellants filed a timely appeal. DISCUSSION The Duty to Defend The primary issue in the case was whether State Farm had a duty to defend, which issue was the cornerstone of the other causes of action.4 We thus begin with the well settled law on the subject, as distilled, for example, in Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1081 (Horace Mann): “a liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263 (Gray).) As we said in Gray, ‘the carrier must defend a suit which potentially seeks damages within the coverage of the policy.’ (Id. at p. 275, italics in original.) Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify; an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded. [Citations.] [¶] The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy. (Gray, supra, 65 Cal.2d at p. 276.)” A duty to defend exists whenever the lawsuit against the insured seeks damages on any theory that, if proved, would be covered by the policy. Thus, a defense is excused only when “the third party complaint can by no conceivable theory raise a single issue 4 Appellants’ counsel acknowledged below that this issue was dispositive of the other claims. 17 which could bring it within the policy coverage.” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 300, some italics omitted.) In other words, “the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot. (Ibid.) Thus, an insurer may have a duty to defend even when it ultimately has no obligation to indemnify, either because no damages are awarded in the underlying action or because the actual judgment is for damages not covered by the policy. (Borg v. Transamerica Ins. Co. (1996) 47 Cal.App.4th 448, 454.) If coverage depends on an unresolved dispute over a factual question, the very existence of that dispute would establish a possibility of coverage and thus a duty to defend. (Horace Mann, supra, 4 Cal.4th at p. 1085.) Finally, any doubt “as to whether the facts give rise to a duty to defend is resolved in the insured’s favor.” (Horace Mann, supra, 4 Cal.4th at p. 1081; see generally, Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2013) §§7:520, p. 7B-10. The Law of Directed Verdicts, and the Standard of Review The law on directed verdicts remains exactly as we described it over fifty years ago, in Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 847–848. Reversing a directed verdict, we observed that “[t]he rule governing the granting of a directed verdict is summarized in Estate of Lances, 216 Cal. 397, at page 400, as follows: ‘It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted “only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.” ’ [Citations]” (Accord, Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583 [nonsuit]; Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) 18  Addressing the law in the setting of a nonsuit, the Supreme Court has observed that, because granting the motion removes the case from the jury, “courts traditionally have taken a very restrictive view of the circumstances under which” a nonsuit is proper. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117–118.) Later elaborating on the point, the court said those “very restrictive” circumstances are only where “interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of plaintiff a judgment for the defendant is required as a matter of law.” (Carson v. Facilities Develop. Co. (1984) 36 Cal. 3d 830, 839.) Conflicting evidence must be disregarded, including evidence brought out on cross-examination of plaintiff’s witnesses (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 700, fn. 10), and the trial court may not weigh the evidence. (Campbell v. General Motors Corp., supra, 32 Cal.3d 118.) On appeal, we decide de novo “whether sufficient evidence was presented to withstand a directed verdict. [Citation.] In that sense, we stand in the shoes of the trial court.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46–47.) And we will reverse if there was substantial evidence tending to prove appellants’ case and the state of the law supports the claim. (Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 895; see Woods v. Union Pac. R.R. Co. (2008) 162 Cal.App.4th 571, 576.) The issue, therefore, is whether there was evidence that would support that State Farm had a duty to defend. We conclude there was. Before turning to a discussion of that evidence, some observations about the trial court’s approach are appropriate. The Trial Court’s Approach to the Motions Was Erroneous We set forth above the applicable law governing State Farm’s motion before the court. We also set forth the trial court’s comments at the end of the lengthy argument, immediately prior to its holding for State Farm. In the course of the argument leading to that conclusion, however, the court made several comments and observations indicating that it was not, as the law requires, looking to determine whether there was any evidence that might support a conclusion that there was a duty to defend, but rather looking only 19 for evidence—indeed, even inferences from evidence—that there was not. A few illustrations should suffice. At one point counsel for appellants was arguing that the professional services exclusion “can’t wipe out PCO altogether,” going on to urge that we “take a step back” to Akerstrom’s testimony and to the complaint, where “Lolonis was seeking [damages] as a result of the discharge of sediment into downstream property and to the waters of the State of California. We’ve heard not contradicted testimony that the majority of that cause, the cause of the sediment was the failure of the sediment basin. Who built the sediment basin? Mr. Akerstrom did. . . .” The court interrupted: “How can you say that the building of that basin did not require his skill and professional background similar to Stone? And I would say most people would not know how to properly go out there and build that basin.” At another point counsel for appellants answered that “all we’re asking the court to do [is] look at the nature of the facts here. It’s construction activity . . . .” Again the court interrupted: “But if there was construction activity in fairness to the facts of this case, most of this is being done by NCD not NCE. NCE is there to be the more sophisticated contractor who has the engineering background to satisfy the state dam project and oversee the whole thing to completion. . . .” (Italics added.) When counsel for State Farm was attempting to downplay Akerstrom’s role in any construction, that “this isn’t some random digging of a ditch, this is—,” this time the court interrupted with this: “Sounds like it takes expertise.” Later, counsel for State Farm focused on the fact that Akerstrom had not purchased errors and omissions coverage, even after the PCO coverage was eliminated by the endorsement in 2000. This colloquy ensued: “THE COURT: And he didn’t go out at that same time and buy malpractice insurance? “MR. HOLLAND [counsel for State Farm]: Of course not. Never did. “MR. MCMULLEN [counsel for appellants]: How is that possibly relevant? He had PCO coverage, that’s the only point we’re talking about. . . . 20  “THE COURT: Well, we’re talking about the reasonable expectation of the coverage. “MR. MCMULLEN: Not in 2004. In 1999. You asked him a question about what he did three years later. It is completely irrelevant. “THE COURT: It might be circumstantial evidence as to state of mind.” In sum, these and other comments indicated that the court was looking at the evidence with the view that all that was involved was appellants’ “expertise,” and that they apparently should have had errors and omissions coverage. Whatever expertise appellants had is one thing. What Lolonis alleged against appellants is another. Finally, we note the court’s comment in the course of its holding that what this case was “about” was “a professional engineer . . . doing a sophisticated project . . . that requires the skill of a very intelligent person such as Mr. Akerstrom. . . .” While we may not agree with such description, we must ask how can a court determine what a case is “about” until it hears the case. And until it hears the case, the evidence is unknown. As many cases have held, “[i]f coverage depends on an unresolved dispute over a factual question, the very existence of that dispute would establish a possibility of coverage and thus a duty to defend.” (Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1068; accord Horace Mann, supra, 4 Cal.4th at p. 1085; Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 520.) The law requires a trial court in ruling on State Farm’s motion here to look for any evidence that might support appellants, and draw all inferences in their favor. The court here acted 180 degrees contrary. And reached the wrong conclusion. There was evidence supporting State Farm’s duty to defend. There Was Substantial Evidence Supporting a Duty to Defend We begin with the testimony of State Farm’s own claims personnel, three of whom admitted that the pertinent policy information—that is, the declarations pages in existence before 2000—demonstrated a duty to defend. Illustrative is the testimony of Barajas, who admitted that the analysis of the proper policy had triggered a duty to defend: 21  “QUESTION: As we sit here today, the fact that the 1999 policy through 2000 in fact contained coverage for products and completed operations, do you believe that affected whether or not there was a duty to defend NCE in the underlying lawsuit? “ANSWER: As of this date, yes. “QUESTION: Okay. And why is that? “ANSWER: . . . [T]here was additional information provided . . . well, I became aware of the information provided of the work that was done prior to 2000, the potential property damage, the—you know, non-supervisory engineering, so as a result of that information, then, yes, today I would say that that would have triggered a duty to defend. “QUESTION: Again . . . we’re talking about today, that would have triggered a duty to defend, did you have the same opinion at the time you referred it on to Mr. Yaklin suggesting that maybe this needed to be looked at again because it had been previously denied? “ANSWER: Correct. . . . “QUESTION: Right. Because there was potential for coverage? “ANSWER: Correct.” Team Manager Splinter, who (via Woerner) signed the original letter rejecting a defense, testified that the scope of allegations against appellants in the underlying action included “damage . . . in 1999-2000.” Splinter was later asked whether there was a “potential” for coverage if the property damage occurred during the 1998-1999 policy period. This was her answer: “ANSWER: Yes, I would say that. “QUESTION: And in 1999 to 2000, there is a potential for coverage? “ANSWER: Yes, under PCO, under that, yeah.” Yaklin, too, was asked about all this, and admitted that many allegations in Lolonis’s complaint specified that construction work—not engineering or supervisory services—caused the alleged downstream-property damage. And, assuming the underlying actions sought recovery for property damage, which they did, it created “a potential of coverage.” 22  Wickoff v. James (1958) 159 Cal.App.2d 664 was a medical malpractice case by a husband and wife, based on a procedure on the wife done by Dr. James. The trial court granted a nonsuit. The Court of Appeal reversed, based on the husband’s testimony that immediately after the operation, Dr. James said, “Boy, I sure made a mess out of things today, didn’t I.” The court held such admission was sufficient to give rise to inference of negligence. (Id. at pp. 667-668.) The numerous admissions here—admissions not even mentioned, let alone discussed, by State Farm—are a fortiori.5 There was much more evidence that supported a possible duty to defend, including the fact that once the proper declarations page was located and reviewed, State Farm agreed to defend. While we agree with State Farm that in general a decision by an insurer to defend under a reservation of rights cannot by itself be used to support a duty to defend, here it can. This was Yaklin’s entry on September 11, 2007: “TM and CR Barajas spoke with attorneys Guslani and Larson at 3:30 yesterday. We reviewed the new information contained in attorney James 9/5/2007 letter, in particular the information on page 12. This information appears to create a duty to defend under the policies which 5 We are aware of cases stating that opinion evidence is irrelevant to interpret an insurance policy, and thus the insurer’s employees cannot create coverage by an admission. (See, e.g. Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865 (Chatton); see generally, Croskey, Cal. Practice Guide, supra, § 4:55, p. 4-11.) This case, of course, is about the duty to defend. One case might be read to hold that a duty to defend cannot be based on admissions. That case is Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 601 (Quan), where the court described “various memoranda” in the claim file that “reflect lower-echelon insurer employee opinions that there may be or was an obligation to defend.” (Id. at p. 594.) The court later concluded, without discussion or elaboration, that “the insureds’ argument that insurance company employee opinions or memos give rise to a duty to defend . . . must fail,” citing in claimed support Chatton and Devin v. United Services Auto Assn. (1992) 6 Cal.App.4th 1149, 1159, fn. 5. (Quan, supra, 67 Cal.App.4th at p. 601.) Chatton dealt with coverage, not a duty to defend. And Devin dealt with evidence from an expert witness, not insurance company employees. In any event, the employees here were not “lower echelon,” but in fact the employees charged with the decision, and thus Quan is distinguishable. And if it is not, we would decline to follow it. 23 did not have the Products Completed Operations Exclusion endorsement FE-8312. (From 1997 to 2000?)” Similarly supportive is an October 12, 2007 entry on the State Farm claim log, described as a “Court Task Assignment.” That entry states that the “DTD [Duty to Defend] unit found a duty to defend on 9/24/07.” (Italics added.) On top of all that are the allegations in the Lolonis action itself, which included allegations about—indeed, focused on—appellants’ (and NCD’s) work in constructing specific elements of the Lolonis dam, including placement of fill, constructing roadways and the spillway, and finish work. As State Farm’s Barajas acknowledged, the Lolonis complaint included allegations of “nonsupervisory engineering.” Yaklin himself testified in terms of the “construction work.” State Farm’s Arguments Are Not Persuasive State Farm asserts two arguments in support of its position that there was no possibility of coverage, and thus no duty to defend. The first argument is that the professional services exclusion precluded coverage. The second is that the policy is not “rendered ambiguous by the products completed-operations limit,” an argument that proceeds on the fundamental premise that PCO does not provide “coverage.” In State Farm’s words, “Nowhere does the Policy or its declarations pages express a separate grant of coverage for a PCO-type risk. . . .” As State Farm puts it at another point, products completed operations is not described as a “separate item of coverage.” PCO and Its Application Here Taking up State Farm’s second argument first, we begin with several observations. First, PCO is, as noted, in the column titled “Coverages and Limits.” Second, Stephen White, the senior underwriter at State Farm, testified that “[w]e should not have issued a policy with product and completed operations coverage.” Third, State Farm’s letter of April 7, 2000, stating that the exclusionary endorsement would be added to the policy beginning with the June 2000 policy advised “of this Company’s intent to renew your policy with the Products-Completed Operations Liability Exclusion endorsement (FE 6312) as we do not offer this coverage on 24 engineering companies.” (Italics added.) In short, State Farm itself described PCO as “coverage.” But whatever its description, the fact is that PCO was referred to on the pertinent declarations page(s) as protection offered under the policy, with its own separate limits of $2,000,000. This protection was defined as follows: “13. products-completed operations hazard: “a. includes all . . . property damage arising out of your product or your work except products that are still in your physical possession or work that has not yet been completed or abandoned. The . . . property damage must occur away from premises you own or rent. “Your work will be deemed completed at the earlier of the following times: “(1) when all of the work called for in your contract has been completed; “Your work” was defined as “work or operations performed by you or on your behalf; and materials, parts or equipment furnished in connection with such work or operations,” and including warranties or representations or providing/failing to provide warnings or instructions with respect to such work and materials. As described above, construction of the Lolonis Dam was completed in November 1999. The state issued its certificate of approval in February 2000. Within months the basin failed and a large amount of sediment was discharged onto lands of downstream-property owners and state waters, causing the alleged property damage. The pleadings in the underlying actions included allegations that appellants’ completed work caused damage, damage allegedly caused by construction work and labor. Those pleadings also included a claimed failure to provide instructions for permits. This was within the definition of “your work.” Courts have noted that even apparently clear policy language may be ambiguous when read in the context of the policy and the circumstances of the case. (American Alternative Ins. Corp. v. Superior Court (2006) 135 Cal.App.4th 1239, 1246.) Whether the PCO coverage rendered the policy ambiguous, as appellants contend, or not, as State Farm contends, it certainly complicated the situation, as have similar policy provisions. 25  Almost fifty years ago, our Supreme Court decided Insurance Co. of North America v. Electronic Purification Co. (1967) 67 Cal.2d 679, affirming a declaratory relief judgment that the insurance company had a duty to defend its insured in a wrongful death action. There, in a setting involving products hazard coverage, an exasperated court noted as follows: “When confronted with products hazard clauses, many courts, troubled by the difficulty of ascertaining their meaning, have warned against interpreting them to deny the basic insurance contemplated by the insured. ‘In summary, the plaintiff gave the defendant coverage in a single, simple sentence easily understood by the common man in the market place. It attempted to take away a portion of this same coverage in paragraphs and language which even a lawyer, be he from Philadelphia or Bungy, would find it difficult to comprehend.’ [Citation.] ‘The true meaning of the policy is difficult to determine. An examination of it involves a physical effort of no mean proportions. . . . If [the reader] is possessed of reasonable physical dexterity, coupled with average mental capacity, he may then attempt to integrate and harmonize the dubious meanings to be found in this not inconsiderable package. A confused attempt to set forth an insuring agreement is later assailed by such a bewildering array of exclusions, definitions and conditions, that the result is confounding . . .’ [Citations.]” (Insurance Co. of North America v. Electronic Purification Co., supra, 67 Cal.2d at pp.689-690.) State Farm never meaningfully discusses what PCO does in fact cover or provide. Its position on this is, as noted, that PCO was not a “coverage”, that the policy was not ambiguous, and that appellants had no reasonable expectation of coverage. State Farm’s position is grounded on the professional services exclusion. 26  The Professional Services Exclusion Does Not Preclude the Potential for Coverage State Farm’s first, and fundamental argument is that the “Professional Services exclusion precluded coverage,” an argument it begins this way: “Consequently, the issue of whether a defense duty existed can be distilled to a single, simple question: did the damages alleged in the Underlying Actions arise solely from the performance of professional services?” The argument proceeds as follows: a professional service is any task requiring skill performed for payment; the underlying actions sought only damages for performance of professional services; and the exclusion includes any manual work because such work was performed while appellants were acting as professionals. In the course of its argument State Farm discusses several cases that have found no duty to defend, and its argument then concludes with this: “The fatal flaw in appellants’ analysis is their insistence that State Farm, and this Court, ignore the greater factual and legal context governing their claims. They have cherry-picked certain aspects of Akerstrom’s work, and excerpts from the relevant contracts, underlying complaints, insurance policy, and case law. Appellants have presented these hodgepodge pieces to the Court, as a collage in aid of coverage. [¶] However, this is not the proper method for evaluating a liability carrier’s duty to defend. Insurance does not exist in a vacuum. The availability of liability benefits is scrutinized in light of the insurance contract as a whole, the allegations of the underlying complaints in their entirety, the universe of facts as they existed at the time of tender, and ‘common sense.’ (Bank of the West v. Superior Court (Industrial Indemnity Co.) (1992) 2 Cal.4th 1254, 1276 (Bank of the West); [State Farm Gen. Ins. Co. v.] Frake [(2011)] 197 Cal.App.4th [568] at p. 578.)” That, State Farm asserts, is the “rubric” for analysis. Neither case supports any such “rubric.” Neither states that the allegations in the underlying complaints must be looked at in “their entirety.” And while Bank of the West 27 uses the term “common sense,” it is not in any way helpful to State Farm here.6 The “professional services” exclusion is not the panacea State Farm would have it, certainly not when analyzed under the appropriate standard: “ ‘narrowly against the insurer.’ ” (Reserve Ins. Co. v. Pisciotta (1982) 30 Cal.3d 800, 808.) To begin with, it might be argued that the “professional services” exclusion cannot possibly apply. As quoted above, the professional services exclusion is set forth in the policy as follows: “Business Liability Exclusions. [¶] Under Coverage L, this insurance does not apply: . . . 10. to bodily injury, property damage or personal injury due to rendering or failure to render any professional services or treatments.” As also quoted above, PCO is listed on the declarations page separately from Coverage L, specifically two lines later, after coverage M, and with its own limits of coverage. In any event, there was evidence that not all that was alleged, or later proven at trial, was within the exclusion here, which provided that the policy does not apply “to . . . property damage . . . due to rendering or failure to render any professional services or treatments. This includes but is not limited to: [¶] . . . [¶] “b. engineering, drafting, surveying or architectural services, including preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; [¶] c. supervisory or inspection services.” There were many allegations, and much evidence, without the language of the exclusion, including that damages were sought for “negligence in the construction of the dam,” and as the “direct result of negligent construction by [appellants and NCD].” The Lolonis action included allegations of work in constructing specific elements of the Lolonis dam, including placement of fill, constructing roadways and the spillway, and finish work. And the evidence showed that NCE and NCD performed some ordinary 6 Analyzing the term “advertising injury” in a comprehensive general liability policy, the Supreme Court observed, “We believe that the apparent majority rule, under which ‘advertising injury’ must have a causal connection with ‘advertising activities,’ best articulates the insured’s objectively reasonable expectations about the scope of coverage. This conclusion is partly a matter of interpretation and partly a matter of common sense.” (Bank of the West, supra, 2 Cal.4th at p. 1276.) 28 labor and construction work in connection with the building of the dam. Indeed, State Farm’s Barajas acknowledged that the complaint included allegations of “nonsupervisory engineering.” And Yaklin testified in terms of the “construction work.” This was not within the policy definition of professional services. That there was evidence of something other than professional services was acknowledged by State Farm’s counsel below. For example, in the course of the argument on the motions, counsel for State Farm mused: “[D]id [Akerstrom] do once in a while installation? Yes.” Along those same lines, in the subsequent argument seeking reconsideration, counsel for appellants stated that the underlying action “was not limited to suing Mr. Akerstrom for his professional services, but for every ounce of work done. . . . He’s being sued for the construction work. He’s being sued for everything NCD did. He’s being sued for that, too.” Counsel for State Farm responded: “I don’t disagree with that, your Honor.” Indeed, the trial court itself acknowledged as much, commenting that if “there was construction activity in fairness to the facts of this case, most of [it] is being done by NCD not NCE.” (Italics added.) Maybe so. Maybe not. But the fact that any of it was being done by an insured is enough. Ignoring all that, State Farm blissfully puts it this way: “The professional services exclusion is a standard part of CGL policies. It bars from coverage damages related to the ‘rendering or failure to render any professional services or treatments.’ This provision has been regularly applied by California courts to exclude coverage in an array of circumstances. See e.g. Amex Assurance Co. v. Allstate Ins. Co. (2003) 112 Cal.App.4th 1246; Tradewinds Escrow, Inc. v. Truck Insurance Exchange (2002) 97 Cal.App.4th 704 (Tradewinds); Ray v. Valley Forge Insurance Co. (1999) 77 Cal.App.4th 1039 (Ray); Hollingsworth v. Commercial Union Insurance Co. (1989) 208 Cal.App.3d 800 (Hollingsworth); and Stone v. Hartford Co. (C.D. Cal. 2006) 470 F.Supp.2d 1088 (Stone).” These cases do not support State Farm here, for several reasons. First, none of the five cases cited by State Farm involved PCO coverage, and the complications, if not outright ambiguity, presented by it. 29  Second, two of the cases, Amex and Stone, involved homeowners policies. This was a “Business Liability” policy. Third, in at least three of the cases, Amex, Hollingsworth, and Stone, “professional services” was not defined. Here, the term was defined, a definition that did not include “construction” or “labor” or some of the other things appellants were accused of in causing the damage. The exclusion must be narrowly construed. So construed, it did not undisputedly apply here. State Farm relies heavily on Hollingsworth, supra, 208 Cal.App.3d 800, a case it cites more than 10 times. To no avail. There, the insurer had issued a “Merchants Package Policy” covering a cosmetics business. A customer sued, claiming she was injured while having her ears pierced. The Court of Appeal affirmed a summary judgment for the insurer based on the professional services exclusion. (Id. at pp. 808, 811.) State Farm asserts that, “as exemplified by Hollingsworth, the professional services exclusion applies to almost any purposeful activity done in furtherance of the insured’s business.” We do not read the exclusion so broadly. In any event, Hollingsworth is distinguishable. To begin with, the customer in Hollingsworth suffered her injury while she was having her ears pierced, that is, during the rendering of the professional service.7 And the court found that in the context of the cosmetics business, ear piercing is part of a cosmetician’s “technical” work, “constitut[ing] an aspect of the . . . profession,” and that 7 Tradewinds, another case cited many times in State Farm’s brief, states that “courts have held numerous circumstances fall within the exclusion for professional services . . . , with the unifying factor being whether the injury occurred during the performance of the professional services, not the instrumentality of injury. (Antles v. Aetna Casualty & Surety Co. (1963) 221 Cal.App.2d 438, 443 [chiropractic patient burned by defective heat lamp not covered by CGL policy because it occurred during rendering of professional services] see also Hollingsworth v. Commercial Union Ins. Co., supra, 208 Cal.App.3d at p. 810.)” (Tradewinds, supra, 97 Cal.App.4th at p. 713.) In other words, the “unifying factor” is that the exclusion applies to damage occurring during the performance of the professional work and resulting from the professional work. 30 “[t]he injury resulting from the faulty ear piercing occurred while [the insured] was operating a retail cosmetics store.” (Id. at pp. 807–808.) Here, by contrast, the alleged damage occurred after appellants’ work was completed, and based on work outside the scope of that typically performed. Food Pro International Inc. v. Farmer’s Ins. Exchange (2008) 169 Cal.App.4th 976 (Food Pro) is persuasive. Food Pro, the insured, was an engineering consulting firm in the food industry which was hired by a fruit processor (Mariani) to assist it in relocating its operations. (Id. at p. 979.) After an electrical contractor at Mariani’s plant had disconnected a piece of machinery, another contractor removed it, which removal left a large hole in the floor. Aamold, an employee of Food Pro on the scene, recognized the danger and advised Mariani’s employees about it. (Id. at p. 980.) Sometime later, Aamold was on the scene talking to a foreman when Roy Pettigrew, an employee of the electrical contractor, fell through the hole and was injured. Pettigrew and a workers’ compensation insurer sued Food Pro, which tendered the actions to Farmers, which refused to defend based on the professional services exclusion. Ultimately, judgments totaling over $1,736,000 were entered against Food Pro. These were also tendered to Farmers, which denied them. (Id. at pp. 982–983.) Food Pro sued, and Farmers moved for summary judgment that it had no duty to defend. The motion was denied, the trial court concluding that Farmers had not met its burden to demonstrate that it had no duty to defend. (Food Pro, supra. 169 Cal.App.4th at p. 983.) The opinion then described what happened next: “One month later, the duty to defend issue was again presented to the trial court in the form of a court trial. The parties made available the same evidence relied on in the summary judgment motion and presented a joint exhibit list for review. On December 4, 2006, the trial court issued its statement of decision. The court found that Food Pro ‘easily established a prima facie case for coverage and a duty to defend by introducing the CGL policy and third party complaints filed against it in the underlying action.’ The court concluded ‘[a]s a matter of law,’ however, ‘that the undisputed extrinsic evidence known to Farmers at the time of tender, and relied upon by Farmers to deny coverage, conclusively negates coverage and 31 establishes that the only reasonable conclusion possible is that the injury to Mr. Pettigrew “arose out of the rendering or failure to render professional services by or for” FoodPro’s employee, Mr. Aamold, “including supervisory, inspection or engineering services.” ’ The court found specifically that Food Pro was responsible for ‘issuing all instructions to contractors’ and ‘coordinating all contractor activities’ on site and that Aamold’s log notes undisputedly established that he directed Pettigrew and the Walther Electric crew to work in the area of the hole on the morning of the incident. The court thus concluded that the ‘undisputed evidence establishes that the bodily injury suffered by Pettigrew arose out of FoodPro’s rendering of supervisory services, which is excluded under Endorsement CG22431185.’ ” (Id. at p. 984.) Food Pro appealed, its fundamental position arguing that “Farmers and the trial court mischaracterize[d] the extrinsic evidence as undisputed and appl[ied] the professional services exclusion so broadly that the exception swallows the rule.” (Food Pro, supra, 169 Cal.App.4th at p. 986.) The Court of Appeal agreed. The court began with the observation that “[P]rofessional services, broadly defined, involve ‘ “ ‘specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual.’ ” ’ (Tradewinds, supra, 97 Cal.App.4th 704, 713.)” (Food Pro, supra, 169 Cal.App.4th at p. 986.) The court then turned to the trial court’s “summation of the ‘undisputed’ evidence,” which the court described—a description that could be made here—as being accepted by the trial court without recognizing “any alternative theories or contradictory evidence.” (Ibid.) The court then discussed various pieces of evidence that were in fact disputed (id. at pp. 987–988)—and thus supported a duty to defend. The court also referred to Pettigrew’s complaint, and observed that it “does not allege, for instance, that the injury was related to Food Pro’s designs or specifications for the relocation and installation of Mariani’s processing operations, or to other engineering work. . . . The facts available to Farmers at the time it denied a duty to defend thus show potential liability arising from the breach of a common law duty, and not from the performance of professional services. Faced with the disputed facts revealing a 32 possibility the claim was covered, [and] . . . . [a]bsent a trial to resolve the genuine factual dispute, Farmers could not conclusively negate the potential for coverage and, therefore, had a duty to defend Food Pro. [Citations.]” (Food Pro, supra, 169 Cal.App.4th at p. 989.) The court then distinguished the cases relied on by Farmers, essentially the same cases cited by State Farm here, and summed up: “Aamold’s involvement in the Pettigrew incident arose from his presence at the site, but the injury did not ‘aris[e] out of the rendering or failure to render any professional services.’ The Pettigrew and Explorer actions therefore raised the potential for coverage under the CGL policy, and Farmers had a duty to defend.” (Food Pro, supra, 169 Cal.App.4th at p. 991.) This conclusion, the court noted, was “consistent with the requirement that the court construe policy exclusions narrowly.” (Id. at p. 992.) The Food Pro analysis is fully applicable here. Finally, there is an additional basis for finding the professional services exclusion inapplicable here. As quoted above, the PCO definition covered the insured’s “work” and its “product,” terms in turn defined to specifically include “the providing of, or failure to provide warnings and instructions.” Here, the Lolonis complaint alleged that “Akerstrom never notified Lolonis . . . that additional permits were required” for the dam project, which resulted in damages. 8 We end the discussion on the professional services exclusion by observing that none of the cases mentioned above involve such exclusion in the context of a policy that also has PCO coverage. As we noted, none of the six cases relied on by State Farm had such coverage. And neither did Food-Pro. A few cases cited by the parties do involve the interplay between PCO coverage and the professional services exclusion, one of which further supports our conclusion here: S.T. Hudson Engineers, Inc. v. Pennsylvania Nat. Mut. Cas. Co. (2006) 388 N.J. Super. 592 [909 A.2d 1156]. The case arose out of the collapse of a pier that resulted in three deaths, numerous injuries, and significant 8 In light of this conclusion, we need not reach appellants’ contention that there was a duty to defend under the “insured contract” provision. 33 property damage. Hudson Engineers (Hudson) had been involved with the pier over the years, and was among many defendants named in various suits arising out of the collapse. (Id. at p. 1159.) Hudson tendered defense to its insurer, Penn National, which refused it, based on the professional services exclusion. Early on, the trial court denied Penn National’s motion for summary judgment, finding material issues of fact whether the actions came within the professional services exclusion. Later, when the underlying actions settled, Hudson moved for “pretrial determination of the legal issues,” and the trial court found there were “allegations in the underlying complaints that fell outside the ambit of professional services,” and thus Penn National owed a defense. (Id. at p. 1160.) Penn National appealed and, like State Farm here, contended that all the allegations in the underlying actions came within the exclusion for professional services. (Id. at pp. 1162-1163.) The appellate court rejected that contention, in a holding we find persuasive. It was as follows: “Penn National asserts that the professional services exclusion limiting coverage to personal injury or property damage ‘arising out of the rendering of or failure to render any professional services by you or . . . on your behalf’ should be construed broadly to include any property damage or personal injury ‘ “originating from,” “growing out of,” or “having a substantial nexus” with’ the professional activity of its insureds. We disagree. Our trial courts have been ‘directed to take a broad and liberal view so that the policy is construed in favor of the insured.’ [Citations.] The more inclusive use of the phrase ‘arise out of,’ urged by Penn National, has been to provide coverage, not limit it. [Citations.] “Penn National also argues that its products-completed operations coverage is subject to the professional services exclusion and thus any injuries arising out of the engineer’s failure to warn fall within that exclusion. Again, we disagree. Penn National’s professional services liability exclusions define professional services as including ‘[t]he preparing, approving, or failing to prepare or approve’ maps, drawings, opinions, reports, surveys, field orders, change orders, designs or specifications, and supervisory, inspection, architectural or engineering services and activities. The 34 exclusions speak in terms of the various professional services actually performed or conducted. “By contrast, the products-completed operations coverage, for the failure to provide warnings, does not emanate from the performance or failure to perform actual professional services, but from the giving or failure to provide information. The nature of the act or omission in each is different. It is the nature of the act or omission, not the nature of the resulting damage that is determinative of coverage. [Citations.] The excluded acts in the CGL policy are the actual professional services, whereas the acts that fall within products-completed operations coverage relate to the giving of information, i.e., instructions and warnings, albeit, resulting from either the performance or non-performance of the contracted-for professional services. Moreover, the Agricultural policy’s expressed reference to the inclusion of completed operations coverage in the CGL shows that the two were intended to complement each other. To come to a different conclusion would frustrate the reasonable expectations of the insured. Thus, we conclude that liability for property damage and personal injury resulting from the failure to warn or give instructions was not excluded by the professional services exclusion in the CGL policy.” (S.T. Hudson Engineers, Inc. v. Pennsylvania Nat. Mut. Cas. Co., supra, 90 A.2d at pp. 1163–1164.) State Farm cites two cases on this point: Ray, supra, 77 Cal.App.4th 1039 and American Economy Ins. Co. v. Schoolcraft (D. Colo. 2007) 551 F.Supp.2d 1235. Neither is helpful. Ray was a roofing consultant who was sued by a homeowner’s association for giving bad advice concerning roofing materials. (Ray, supra, 77 Cal.App.4th at p. 1039.) His insurer refused to defend, and he sued. The trial court granted summary judgment for the insurer, and the Court of Appeal affirmed, concluding first, and fundamentally, that there was no “occurrence,” as the association’s complaint alleged that Ray “acted deliberately as a professional consultant hired to provide advice.” (Id. at p. 1046.) As to Ray’s argument that the PCO language required the insurer to defend, the Court of Appeal disagreed. But not on any basis supporting State Farm here. Rather, it 35 was based on a notice “summarizing changes” to the policy, limiting what was within PCO. (Ray, supra, 77 Cal.App.4th at p. 1046.) As the court described the issue: “The reference in the notice to products and completed operations language in the policy states only that ‘Products and Completed Operations Coverage Provisions have been revised to clarify original coverage intent to provide coverage for failure to adequately warn under the ‘products/completed operations hazard.’ . . .” (Id. at p. 1047.) And the association did not allege that Ray failed to warn or should have warned of risks associated with the shingles he recommended. Finally, the term “your work” was only contained in the exclusions to coverage. (Ibid.) Here, the PCO coverage is not restricted by any revision, and appellants are not straining to find PCO coverage by invoking an exclusion. American Economy Ins. Co. v. Schoolcraft, supra, 551 F.Supp.2d 1235, a case State Farm describes as one where the district court judge “soundly rejected the same arguments made by appellants here,” is likewise distinguishable. The facts there involved a doctor who was sued for implanting a defective embryo. The district court held there was no duty to defend. The reason was that Colorado law specifically provided that implantation of an embryo was not a sale of a good or a product, but rather the provision of a medical service. Colorado law also provided that a doctor could not be liable for injuries arising from genetic counseling and screening unless the damage could have been prevented or avoided by ordinary standard of care of the physician or other health care professional. In short, the implanting of a defective embryo could not be considered a completed “product” for PCO coverage, but was by statute a professional medical service to which the professional services exclusion necessarily applied. (Id. at pp. 1242-1244.) DISPOSITION The judgment is reversed and the matter remanded to the trial court. As counsel for State Farm conceded at oral argument, this reversal necessitates that on remand judgment be entered determining that State Farm had a duty to defend. 36  _________________________ Richman, J. We concur: _________________________ Haerle, Acting P.J. _________________________ Brick, J.* A133713, North Counties Engineering, Inc. v. State Farm Ins. Co. * Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 37 Trial Court: Sonoma County Superior Court Trial Judge: Honorable Mark L. Tansil Attorney for Plaintiffs and Appellants: Law Office of Duncan M. James, Duncan M. James, Donald J. McMullen Attorneys for Defendant and Respondent: LHB Pacific Law Partners, Clarke Holland, Brendan J. Fogarty, Jenny J. Chu 38