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The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing — Probation — Indeterminate Sentence A division of the court of appeals considers whether a Colorado statute authorizes imposition of a sentence to an indeterminate term of probation and whether the defendant was entitled to the benefit of amendments to the statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305 P.3d 420, the division concludes that section 18-1.3-202(1), C.R.S. 2017, provides statutory authority for the imposition of an indeterminate probation sentence. Following People v. Stellabotte, 2016 COA 106, ___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further concludes that the defendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do not apply retroactively, and would therefore affirm the sentence in full. Additionally, the division rejects the defendant’s contentions that reversal is required due to the trial court’s rejection of defense-tendered jury instructions, wrongfully admitted character evidence, and prosecutorial misconduct. However, the division remands for the trial court to make findings of fact concerning the assessment of the costs of prosecution. Accordingly, the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with directions. COLORADO COURT OF APPEALS 2018COA12 Court of Appeals No. 14CA0144 Mesa County District Court No. 11CR447 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Michael Floyd Trujillo, Defendant-Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, J., concurs Furman, J., concurs in part and dissents in part Announced February 8, 2018 Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of conviction entered on a jury verdict finding him guilty of one count of theft of more than $20,000 and one count of criminal mischief of $20,000 or more. He also appeals his sentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to reclassify his theft conviction as a class 4 felony. I. Background ¶2 In 2007, Trujillo began building a home, doing much of the labor himself and initially using his own money to fund the project. He later took out a construction loan from the victim, a bank, for just under $255,000. After construction was completed on the house, Trujillo stopped making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings in September 2010. ¶3 Before the foreclosure sale, Trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1  Because of this damage, the house was appraised at $150,000; however, the appraiser estimated that if the house were in good repair, it would have been worth $320,000. ¶4 Trujillo was charged with defrauding a secured creditor, theft of $20,000 or more, but less than $100,000, and criminal mischief of $20,000 or more, but less than $100,000. The jury found him not guilty of defrauding a secured creditor and guilty of theft and criminal mischief. ¶5 On appeal, Trujillo raises six contentions: (1) the trial court erred in rejecting defense-tendered jury instructions; (2) the trial court erred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an illegal sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) an amendment to the theft statute applies to his conviction. We perceive no basis for reversal with respect to the first four contentions, but agree with Trujillo’s final two contentions. We therefore affirm the convictions and the sentence in part but vacate the sentence in part and remand with directions. 2  II. Jury Instructions ¶6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree. A. Additional Facts ¶7 Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. The defense tendered five jury instructions related to this theory of the case. ¶8 Trujillo’s tendered jury instructions detailed property law concepts. For example, the first tendered instruction stated that “the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property.” Another tendered instruction defined “title,” “deed of trust,” and “holder of a certificate of purchase[].” One instruction described the lien theory detailed in section 38-35-117, C.R.S. 2017, and another instructed that title to property “does not vest with the purchaser until eight days after [a] foreclosure sale.” ¶9 The trial court declined to give these instructions as tendered. However, portions of the defense-tendered instructions were 3  included in a final definitional jury instruction. The final instructions defined “deed of trust” and stated that the title to property is transferred to the holder of the certificate of purchase eight days after a foreclosure sale. Though it rejected other portions of the defense-tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during closing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and gave as a theory of the case instruction. That instruction stated, “Trujillo contends that the items removed from the home . . . were his; purchased by him and installed by him. . . . Trujillo conten[d]s that the items that he took and damaged were his sole property.” B. Standard of Review ¶ 11 We review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructions properly inform the jury of the law, the district court has “broad discretion to determine the form and style of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4  Accordingly, we review a trial court’s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12 When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if “there is not a reasonable probability that the error contributed to the defendant’s conviction.” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law ¶ 13 “[A]n instruction embodying a defendant’s theory of the case must be given by the trial court if the record contains any evidence to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo. 1992). Moreover, a trial court has “an affirmative obligation” to work with counsel to correct a tendered theory of the case instruction “or to incorporate the substance of such in an instruction drafted by the court.” Id. at 265; see also People v. Tippett, 733 P.2d 1183, 1195 (Colo. 1987) (a trial court may refuse to give an instruction already embodied in other instructions). 5 ¶ 14 In considering whether a jury was adequately informed of a defendant’s theory of the case, a reviewing court can take into account whether defense counsel’s closing argument “fairly represented” the theory to the jury. People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999). D. Analysis ¶ 15 Trujillo contends that the trial court abused its discretion in rejecting the tendered instructions. We disagree. ¶ 16 Trujillo asserts that the tendered instructions were essential because they communicated his theory of the case. However, the trial court instructed the jury on his theory of the case in an instruction that clearly stated that he believed the property he took from the house was “his sole property.” To the extent that the trial court had a duty to work with the defense in crafting a proper theory of defense instruction, we conclude that the trial court fulfilled that duty here by giving an alternative theory of the case instruction that encompassed Trujillo’s tendered instructions. See Nunez, 841 P.2d at 265 n.9. Moreover, the trial court specifically stated that defense counsel would be allowed to incorporate the 6  property law concepts into her closing argument, which defense counsel did. ¶ 17 Trujillo asserts that the instructions he tendered were accurate statements of property law. In contrast, the People argue that the instructions misstated the law as it applies in criminal prosecutions for theft and criminal mischief. Because we conclude that the trial court did not abuse its discretion in drafting a theory of defense instruction that encompassed the defense’s tendered instructions, we do not address whether the rejected instructions were accurate statements of the law. ¶ 18 The jury instructions, as a whole, “fairly and adequately cover[ed] the issues presented.” People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Thus, we conclude that the trial court did not abuse its discretion in rejecting in part the defense-tendered jury instructions. III. Evidence of Prior Foreclosure ¶ 19 Trujillo next asserts that the trial court erred in allowing the People to introduce evidence that another property of his had been foreclosed. We disagree. 7  A. Additional Facts ¶ 20 Before trial, Trujillo filed a motion to exclude evidence of other acts or res gestae evidence. Trujillo’s motion addressed several categories of other acts evidence, including evidence related to any “financial and/or legal problems” unrelated to the charged offenses. During a motions hearing, the People stated that they did not intend to introduce any other acts or res gestae evidence. In a written ruling, the trial court granted Trujillo’s motion to exclude evidence of his unrelated financial and legal problems “unless the prosecution fe[lt] that the ‘door ha[d] been opened.’” The trial court further ordered that, if the People felt Trujillo introduced evidence of his other financial and legal problems, the People could request a bench conference during trial. ¶ 21 On the first day of trial, defense counsel stated that she was withdrawing her motion to exclude other acts evidence insofar as it pertained to evidence of Trujillo’s bankruptcy proceedings. During her opening statement, defense counsel then mentioned those proceedings. ¶ 22 Later, the People called the bank’s former vice president as an expert witness. During direct examination, the prosecutor asked 8  the witness why the bank had declined to restructure Trujillo’s loan. The prosecutor also asked about Trujillo’s demeanor during interactions with the bank. Trujillo objected. After a bench conference, the trial court allowed the witness to testify on both matters. ¶ 23 Specifically, the witness testified that, during a conversation about restructuring the loan, Trujillo “seemed like he was very upset.” The witness recalled, “He got into [that] he had a piece of property that [another bank] had foreclosed on and it sounded like they had sold it for what [Trujillo] believed was a lot less, leaving him a large deficiency balance.” ¶ 24 During closing argument, the People alluded to the witness’s testimony and referred several times to Trujillo’s general animosity against banks. B. Standard of Review ¶ 25 We review a trial court’s decision to admit other acts or res gestae evidence for an abuse of discretion. People v. Jimenez, 217 P.3d 841, 846 (Colo. App. 2008). A court abuses its discretion if its decision to admit such evidence is manifestly arbitrary, unreasonable, or unfair. Id. 9 ¶ 26 We review a preserved claim of nonconstitutional error for harmless error, reversing only if any error “substantially influenced the verdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). C. Applicable Law ¶ 27 Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401. Generally speaking, “[t]he Colorado Rules of Evidence strongly favor the admission of relevant evidence.” People v. Brown, 2014 COA 155M-2, ¶ 22, 360 P.3d 167, 172. However, relevant evidence is nevertheless inadmissible when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” CRE 403. Similarly, evidence of “other crimes, wrongs, or acts” is inadmissible to prove a person’s character “in order to show that he acted in conformity therewith,” though it may be admissible for other purposes, including proving intent. CRE 404(b). 10 ¶ 28 “Res gestae is a theory of relevance which recognizes that certain evidence is relevant because of its unique relationship to the charged crime.” People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009). However, “there is no need to consider an alternative theory of relevance, such as res gestae, where the evidence is admissible under general rules of relevancy.” Id. D. Analysis ¶ 29 Trujillo contends that the evidence of the prior foreclosure action portrayed him as a “serial defaulter” and was impermissible under CRE 404(b) and 403. The People assert that the evidence was admissible as “directly relevant” to Trujillo’s intent and motive. In the alternative, the People argue that the evidence was res gestae evidence. We agree with the People’s first argument that the evidence was admissible under CRE 401, and was not barred by CRE 403.1 1 During the bench conference, the trial court allowed the bank’s former vice president to testify after conducting an abbreviated CRE 404(b) analysis that did not specifically address the four-factor test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). The trial court did not admit the evidence under the res gestae doctrine. However, we can affirm a trial court’s evidentiary ruling on any ground supported by the record, “even if that ground was not 11 ¶ 30 The evidence of the prior foreclosure was probative of the interactions between Trujillo and the bank — it made it more probable that Trujillo had the requisite intent to commit theft. It was therefore relevant under CRE 401. Further, the risk of unfair prejudice did not substantially outweigh the probative value of the evidence, especially where the prior foreclosure was referenced only in passing and the details of that foreclosure were not revealed. Thus, the evidence was not barred by CRE 403. ¶ 31 Because we conclude that the evidence of the prior foreclosure was relevant under CRE 401 and admissible under CRE 403, we need not address whether the evidence was res gestae evidence or “other acts” evidence under CRE 404(b). See Greenlee, 200 P.3d at 368-69. Accordingly, we conclude that the trial court did not err in allowing the testimony concerning the prior foreclosure action. IV. Prosecutorial Misconduct ¶ 32 Trujillo argues that the prosecutor improperly commented on the district attorney’s screening process for bringing charges and articulated or considered by the trial court.” People v. Phillips, 2012 COA 176, ¶ 63, 315 P.3d 136, 153. 12  Trujillo’s right not to testify, and improperly denigrated defense counsel. We perceive no basis for reversal. A. Additional Facts ¶ 33 During redirect examination of one of the People’s expert witnesses, an attorney who worked at the bank, the prosecutor asked whether the bank played a role in charging Trujillo. The prosecutor asked if the witness himself made the decision to file a criminal case, to which the witness replied, “No.” The prosecutor then asked, “[W]ho is it, according to your understanding, that makes those decisions on whether a case gets filed criminally?” The witness responded, “A complaint’s made to a police department or sheriff’s department and they make that decision in conjunction with I believe you.” The prosecutor clarified that “you” meant the district attorney’s office. The defense did not object. ¶ 34 During rebuttal closing argument, the prosecutor said, Did you hear all that? [Defense counsel]’s talking about all of this stuff, about what Trujillo’s intent was. And then did you hear her towards the end what she did? She says, and correct – this part was correct of what she said. My job is to prove intent, right. That is my burden. And she’s absolutely right. The Defendant has every right to remain silent, 13  and he exercised that right and that is something that you cannot use against him. But it is completely ridiculous for [defense counsel] to get up here and say that [Trujillo] didn’t testify to what his intent was and then to go on and talk about what his intent actually was. We don’t know what his intent was because he never testified to that, which he has every right to do. But did you hear her? She’s up here saying his intent was this. ¶ 35 Trujillo objected on the basis that the prosecutor was denigrating defense counsel. The trial court sustained the objection as to the prosecutor’s tone, but overruled it as to content. The prosecutor then argued, “[I]f you go out and run somebody over and – and think that you had the right to do that, is that gonna be a legitimate defense by saying, well, I thought I could do that. I didn’t – nobody ever told me. Nobody put it in writing. When I bought my car, in the instruction manual, nothing said that about that. That’s preposterous.” Trujillo did not renew his objection. B. Standard of Review ¶ 36 In reviewing alleged prosecutorial misconduct, an appellate court engages in a two-step analysis. First, we determine whether the prosecutor’s conduct was improper based on the totality of the circumstances. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). 14  Second, we determine whether any misconduct warrants reversal under the proper standard of review. Id. ¶ 37 When the alleged misconduct is objected to at trial and is of constitutional magnitude, we review for constitutional harmless error. Id. When the alleged misconduct is not of a constitutional magnitude, and when the defense objected at trial, we subject the prosecutorial misconduct to harmless error review. Id. at 1097. Such prosecutorial misconduct will be considered harmless “whenever there is no reasonable probability that it contributed to the defendant’s conviction.” Crider v. People, 186 P.3d 39, 42 (Colo. 2008). When the defense did not object to the misconduct, we review for plain error. Wend, 235 P.3d at 1097-98. C. Applicable Law ¶ 38 A prosecutor cannot comment on a “screening process” for charging cases “because it both hints that additional evidence supporting guilt exists and reveals the personal opinion of the prosecutor.” Domingo-Gomez v. People, 125 P.3d 1043, 1052 (Colo. 2005). It is also improper for a prosecutor to make remarks “for the obvious purpose of denigrating defense counsel.” People v. Jones, 832 P.2d 1036, 1038 (Colo. App. 1991). It is similarly improper for 15  a prosecutor to comment on a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609, 614 (1965); see also People v. Martinez, 652 P.2d 174, 177 (Colo. App. 1981) (noting that a prosecutor’s comment on a defendant’s silence constitutes reversible error when “the prosecution argued that such silence constituted an implied admission of guilt”). ¶ 39 Nevertheless, “[a] prosecutor is allowed considerable latitude in responding to the argument made by opposing counsel.” People v. Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999), aff’d, 43 P.3d 611 (Colo. 2001). Further, “[a]lthough it is improper for a prosecutor to assert that opposing counsel knows that the accused’s case is not meritorious,” the prosecutor may permissibly argue “that the evidence in support of defendant’s innocence lacked substance.” Id. at 1211; see also People v. Samson, 2012 COA 167, ¶ 31, 302 P.3d 311, 317 (stating that a prosecutor may permissibly “comment on the absence of evidence to support a defendant’s contentions”). ¶ 40 Appellate courts consider several factors in determining whether prosecutorial misconduct was prejudicial, including the nature of the error, the pervasiveness of the misconduct, the 16  context, and the overall strength of the evidence supporting the conviction. People v. McBride, 228 P.3d 216, 225 (Colo. App. 2009); see also Crider, 186 P.3d at 43. For example, a reviewing court may consider whether proper jury instructions mitigated the prejudicial effect of prosecutorial misconduct. See People v. Castillo, 2014 COA 140M, ¶ 78, ___ P.3d ___, ___ (concluding prosecutor’s misstatements were harmless in light of instructions from the trial court and the defense’s closing argument) (cert. granted in part Nov. 23, 2015). D. Analysis ¶ 41 Trujillo contends that three instances of prosecutorial misconduct require reversal. We disagree. ¶ 42 Trujillo first contends that the prosecutor improperly referred to a screening process while examining the expert witness. We perceive no prosecutorial misconduct. The prosecutor here did not imply that he had engaged in a screening process to “weed out the weaker cases and, implicitly, that the State d[id] not consider this a weak case.” Domingo-Gomez, 125 P.3d at 1052 (concluding the prosecutor’s comment that “it takes a lot more than somebody saying that person did it” to bring charges was improper). Rather, 17  the prosecutor clarified that the bank did not bring criminal charges and that the witness himself did not stand to gain as a result of Trujillo’s conviction. The People assert, and we agree, that the prosecutor’s question merely elicited testimony to establish that the district attorney’s office was responsible for pursuing the criminal charges against Trujillo. ¶ 43 Second, Trujillo asserts that the prosecutor impermissibly commented on his decision not to testify. We disagree. Even if we assume the comment on Trujillo’s decision not to testify was improper, not every comment on a defendant’s choice not to testify requires reversal. See Martinez, 652 P.2d at 177. “The determining factor is whether the defendant’s silence was used by the prosecution as a means of creating an inference of guilt,” id., and we conclude that the prosecutor’s comments here did not raise such an inference. ¶ 44 Finally, Trujillo contends that the prosecutor impermissibly denigrated defense counsel and the defense’s theory of the case during rebuttal closing argument. We agree that the prosecutor improperly denigrated defense counsel and the defense’s theory of 18  the case when he characterized her arguments as “completely ridiculous” and “preposterous.” ¶ 45 However, we perceive no basis for reversal as a result of these improper remarks. The comments were limited to the People’s rebuttal closing argument. Moreover, significant evidence corroborated the jury’s finding of guilt — specifically, the undisputed evidence that Trujillo had removed an extensive amount of property from the house. Viewing the record as a whole, we cannot say that there was a “reasonable probability” that the prosecutor’s remarks denigrating defense counsel contributed to Trujillo’s convictions. See Crider, 186 P.3d at 42. Thus, we determine the error was harmless. ¶ 46 In sum, though we agree that the prosecutor improperly denigrated defense counsel, we perceive no basis for reversal. V. Indeterminate Probation ¶ 47 Trujillo contends that the trial court did not have the statutory authority to sentence him to indeterminate probation. We disagree. A. Additional Facts ¶ 48 During the sentencing hearing, the People requested that Trujillo be placed on a “long period of probation . . . somewhere in 19  the neighborhood of eight to ten years” because they anticipated that Trujillo would be ordered to pay substantial restitution.2 Trujillo requested unsupervised probation with a collections investigator monitoring his restitution payments. ¶ 49 The trial court imposed an “indefinite probation sentence” because of the substantial restitution that Trujillo was expected to owe. In imposing an indeterminate probation sentence, the trial court stated, “There is case law that talks about whether [indeterminate probation] is something that can or should be imposed and it’s certainly something that is allowed regardless of the type of conviction that has been entered.” ¶ 50 The mittimus states that the sentence imposed was a term of probation for seven years to life. B. Standard of Review ¶ 51 The People contend that we should not consider this claim because a sentence to probation is not ordinarily subject to 2 The trial court ultimately ordered Trujillo to pay $171,421.97 in restitution. Trujillo separately appealed that order, and a division of this court affirmed in part, reversed in part, and remanded for reconsideration. People v. Trujillo, (Colo. App. No. 14CA2486, Oct. 5, 2017) (not published pursuant to C.A.R. 35(e)). 20  appellate review. However, “where, as here, a defendant contends that ‘a court has exceeded its statutory authority’ in imposing a probationary sentence, appellate review is warranted.” People v. Jenkins, 2013 COA 76, ¶ 10, 305 P.3d 420, 423 (quoting People v. Rossman, 140 P.3d 172, 174 (Colo. App. 2006)). ¶ 52 “We review sentencing decisions that are within the statutory range for an abuse of discretion.” People v. Torrez, 2013 COA 37, ¶ 71, 316 P.3d 25, 37. However, where the defendant contends that a court exceeded its statutory sentencing authority, our inquiry involves statutory interpretation. Jenkins, ¶ 12, 305 P.3d at 423. We review such issues of statutory interpretation de novo. Id. C. Applicable Law ¶ 53 Under section 18-1.3-202(1)(a), C.R.S. 2017, a trial court “may grant the defendant probation for such period and upon such terms and conditions as it deems best.” Further, “[t]he length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted.” Id. ¶ 54 In Jenkins, a division of this court concluded that section 18- 1.3-202(1) “authorizes a trial court to impose an indeterminate term 21  of probation.” Jenkins, ¶ 38, 305 P.3d at 426. The Jenkins division bolstered its conclusion by looking to the plain language of the statute — which the division noted “contemplate[s] both determinate and indeterminate terms of probation” — and to the provision’s legislative history. Id. at ¶¶ 40, 42, 46, 305 P.3d at 426- 28. Finally, the division noted that section 18-1.3-202(1) “generally pertains to a broad class of cases, and it simply allows a trial court to elect an indeterminate term if it sentences an offender who has been convicted of a felony to probation.” Id. at ¶ 50, 305 P.3d at 428 (upholding probationary sentence of ten years to life); see also People v. Martinez, 844 P.2d 1203, 1206 (Colo. App. 1992) (concluding that a trial court has authority to impose a term of probation that exceeds the sentence to imprisonment in the statutory aggravated range for an offense). D. Analysis ¶ 55 Trujillo asserts that the trial court exceeded its statutory authority in imposing an indeterminate probationary sentence. We disagree. ¶ 56 Like the Jenkins division, we conclude that section 18-1.3- 202(1) gives a trial court the authority to sentence a defendant 22  convicted of a felony to an indefinite probationary period. Trujillo urges that the statute limits a trial court’s authority to impose an indeterminate probation sentence. Under Trujillo’s logic, a sentence to probation for 100 years is permissible, but an indeterminate probation sentence is outside the trial court’s statutory authority. The statute offers no basis for reaching this conclusion. ¶ 57 Trujillo asserts that Jenkins is distinguishable because that case concerned whether a defendant convicted of a sex offense not falling under the supervision scheme of the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), see §§ 18-1.3-1001 to -1012, C.R.S. 2017, could nevertheless be sentenced to indeterminate probation. Jenkins, ¶ 1, 305 P.3d at 422. Trujillo contends that Jenkins was limited to the particular circumstances of that case, and does not widely apply to all offenses and defendants. However, the Jenkins division made clear that section 18-1.3-202(1) “establishes a general rule as far as the possibility of an indeterminate probationary term for felonies” and “authorizes a trial court to impose an indeterminate term of probation.” Id. at ¶¶ 38, 50, 305 P.3d at 426, 428. In fact, Jenkins explicitly rejected the argument that a sentence of indeterminate probation could be 23  imposed only in sex offense cases subject to SOLSA. Id. at ¶¶ 49- 50, 305 P.3d at 428. Thus, Trujillo’s argument that Jenkins is limited to sex offenses is unavailing. ¶ 58 In sum, we conclude that the trial court did not exceed its statutory authority in imposing the probation sentence here. VI. Costs of Prosecution ¶ 59 Trujillo next asserts that the trial court erred in awarding the full costs of prosecution requested by the People without making a finding on whether any portion of the costs was attributable to the charge on which he was acquitted. We agree. A. Additional Facts ¶ 60 Before sentencing, the People moved for reimbursement of the costs of prosecution pursuant to section 18-1.3-701, C.R.S. 2017. The People requested $768.70. Trujillo opposed the motion on the basis that the People bore responsibility for the costs incurred to prove the defrauding a secured creditor charge, of which Trujillo was acquitted. ¶ 61 During the sentencing hearing, the trial court awarded the requested costs of prosecution, ordering Trujillo to pay $768.70. 24  B. Standard of Review ¶ 62 The trial court, in its discretion, may assess reasonable and necessary costs of prosecution against a convicted defendant. See § 18-1.3-701(2)(j.5). Thus, we review an assessment of costs of prosecution for an abuse of discretion, reversing if the trial court’s determination is manifestly arbitrary, unreasonable, or unfair, People v. Palomo, 272 P.3d 1106, 1110 (Colo. App. 2011), or if the trial court misapplied the law, People v. Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 499. C. Applicable Law ¶ 63 Under section 16-18-101(1), C.R.S. 2017, the state bears the costs of prosecution when a defendant is acquitted. Such costs may include witness fees, mileage, lodging expenses, transportation costs, and other reasonable and necessary costs that directly result from prosecuting the defendant. § 18-1.3-701(2); see also People v. Sinovcic, 2013 COA 38, ¶¶ 15-16, 304 P.3d 1176, 1179. If a defendant is convicted of fewer than all of the charged counts, the court may assess only those costs attributable to the counts for which the defendant was convicted, if an allocation is practicable. Palomo, 272 P.3d at 1112. 25  D. Analysis ¶ 64 Trujillo asserts that the trial court erred in not making a finding as to whether some portion of the requested costs of prosecution were allocable to the acquitted charge. We agree. ¶ 65 As Trujillo concedes, it is possible that the costs cannot be allocated between the charge on which he was acquitted and the two charges on which he was convicted. However, the trial court did not find that such an allocation was impracticable. Because the trial court was required to consider whether some portion of the requested costs was practicably attributable to the acquitted charge, the trial court abused its discretion. See DeBella v. People, 233 P.3d 664, 667 (Colo. 2010) (failure to exercise discretion constitutes an abuse of the court’s discretion). ¶ 66 Accordingly, we vacate the order awarding the People costs of prosecution and remand for the trial court to make appropriate findings of fact and “assess only those costs that are related to the prosecution of the . . . counts of which [Trujillo] was convicted, to the extent an allocation is practicable.” Palomo, 272 P.3d at 1113. 26  VII. Amendment to Theft Statute ¶ 67 Trujillo contends that he should have benefited from an amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. We agree. A. Additional Facts ¶ 68 The General Assembly amended the theft statute on June 5, 2013. See Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. Under the amended statute, theft between $20,000 and $100,000 constitutes a class 4 felony. See § 18-4-401(2)(h), C.R.S. 2017. Prior to the amendment, theft over $20,000 constituted a class 3 felony. § 18-4-401(2)(d), C.R.S. 2011. ¶ 69 Trujillo was charged with theft of $20,000 or more in April 2011. He was convicted in October 2013 and sentenced in December 2013. His theft conviction was recorded on the mittimus as a class 3 felony. B. Standard of Review ¶ 70 The People assert that, because Trujillo did not make this argument before the trial court, we should review only for plain error. However, the division in People v. Stellabotte rejected this argument. 2016 COA 106, ¶ 42, ___ P.3d ___, ___ (noting that plain 27  error review was inappropriate because “a defendant may raise a claim at any time that his or her sentence was not authorized by law”) (cert. granted Feb. 6, 2017). Following Stellabotte, we review the legality of the sentence de novo. Id. at ¶ 4, ___ P.3d at ___. C. Applicable Law ¶ 71 In determining whether to apply amendments to legislation, we first look to the plain language of the statute. People v. Summers, 208 P.3d 251, 253-54 (Colo. 2009). If a statute explicitly states that it applies only to offenses committed after the effective date, it must be applied accordingly. See People v. McCoy, 764 P.2d 1171, 1174 (Colo. 1988). ¶ 72 As a general rule, “[a] statute is presumed to be prospective in its operation.” § 2-4-202, C.R.S. 2017. However, if a statute is silent as to whether it applies only prospectively, a defendant may seek retroactive application if he or she benefits from a significant change in the law. § 18-1-410(1)(f)(I), C.R.S. 2017; see also People v. Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628 (1974) (allowing defendant to seek relief on direct appeal under statute). ¶ 73 In Stellabotte, a division of this court concluded that the amendatory theft legislation “applies retroactively to cases pending 28  in the trial court when the amendment was enacted.” Stellabotte, ¶ 45, ___ P.3d at ___; People v. Patton, 2016 COA 187, ¶ 32, ___ P.3d ___, ___; see also People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not published pursuant to C.A.R. 35(e)) (cert. granted Feb. 6, 2017). D. Analysis ¶ 74 Trujillo contends that the amendment to the theft statute requires that we vacate his sentence and remand for the trial court to enter his theft conviction as a class 4 felony. We agree. ¶ 75 As the division noted in Stellabotte, the theft amendment does not explicitly state that it is either retroactive or prospective. Stellabotte, ¶ 45, ___ P.3d at ___. In the face of this legislative silence, the division held that a defendant who committed theft prior to the statutory amendment but was not convicted until after its passage was entitled to the benefit retroactively. See id. at ¶¶ 39, 45, ___ P.3d at ___. The same is true here. ¶ 76 Trujillo was charged with theft before the statute was amended, but was not convicted or sentenced until after the General Assembly lowered the classification for theft between 29  $20,000 and $100,000.3 Thus, like the defendant in Stellabotte, Trujillo is entitled to the benefit of the amendment. As a result, we vacate the sentence for the theft conviction and remand for the conviction to be entered as a class 4 felony. ¶ 77 The partial dissent looks to several statutory provisions in support of its conclusion that Trujillo is not entitled to the benefit of the amendatory legislation. First, the partial dissent cites section 2-4-202, which states the general presumption that statutes apply prospectively. However, as the division noted in Stellabotte, section 18-1-410 is a specific exception to the general rule expressed in section 2-4-202. Stellabotte, ¶ 47 n.4, ___ P.3d at ___ n.4. We agree with that analysis. Thus, the general presumption that statutes apply prospectively does not apply here where Trujillo seeks the benefit of a “significant change in the law, . . . allowing in 3 Trujillo asserts that the theft was between $20,000 and $100,000 based on testimony from trial. The People do not contest the value of the stolen property in this case. We therefore assume that Trujillo’s offense properly fell within the value range set forth in section 18-4-401(2)(h), C.R.S. 2017. 30  the interests of justice retroactive application of the changed legal standard.”4 § 18-1-410(1)(f)(I). ¶ 78 The partial dissent also invokes section 2-4-303, C.R.S. 2017, in support of its conclusion. Section 2-4-303 states: The repeal, revision, amendment, or consolidation of any statute or part of a statute or section or part of a section of any statute shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising, amending, or consolidating act so expressly provides. ¶ 79 However, the supreme court has noted that the “general saving” provision codified in this statute is not applicable to criminal cases; instead, the court noted in dictum that it “has 4 The partial dissent also asserts that section 18-1-410(1)(f)(I), C.R.S. 2017, does not provide any relief to Trujillo because that provision requires that “there has been significant change in the law, applied to the [defendant’s] conviction or sentence.” The partial dissent asserts that the phrase “applied to” requires that the legislation expressly state that it applies retroactively. We disagree with that interpretation, and believe that our view finds authority in supreme court case law. See People v. Thomas, 185 Colo. 395, 397, 525 P.2d 1136, 1137 (1974) (noting that “[t]he legislature intended the changed legal standards to apply wherever constitutionally permissible” but making no mention of whether the amendatory legislation reclassifying attempted second degree burglary explicitly stated that it applied retroactively). 31  consistently adhered to the principle . . . that a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.” Noe v. Dolan, 197 Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979). ¶ 80 In People v. Boyd, a division of the court of appeals concluded that section 2-4-303 did not prevent the retroactive effect of an amendatory constitutional provision. 2015 COA 109, ¶ 27, 395 P.3d 1128, 1134, aff’d, 2017 CO 2, 387 P.3d 755.5 The division noted the supreme court’s language in Noe. Id. at ¶ 28, 395 P.3d at 1134. To the extent that other supreme court cases included contrary statements, the Boyd division concluded that such statements were dicta and that the supreme court had not overruled or disapproved of either Noe or People v. Thomas, 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that “amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment”). 5 The supreme court in Boyd affirmed the Court of Appeals decision on different grounds, concluding that the marijuana criminal offense statute had been rendered inoperative by Amendment 64. Neither the majority nor the dissent in Boyd cited section 2-4-303, C.R.S. 2017. 32  Boyd, ¶¶ 29-30, 395 P.3d at 1134-35. Finally, the Boyd division concluded that section 18-1-410(1)(f)(I) controls over section 2-4- 303 because the former sets forth a specific exception to the latter, which codifies a “general rule[] of construction regarding prospective effect for amendatory legislation.” Id. at ¶¶ 31-32, 395 P.3d at 1135. We agree with the Boyd division’s analysis and therefore do not perceive section 2-4-303 as a bar to the relief Trujillo seeks. ¶ 81 In making its statutory arguments, the partial dissent relies on the plain meaning of both section 2-4-303 and section 18-1- 410(1)(f)(I). However, as discussed, the supreme court has not given either provision its plain meaning. Despite express reference in section 2-4-303 to civil and criminal penalties, the supreme court has indicated that the provision does not apply to criminal cases. Noe, 197 Colo. at 36 n.3, 589 P.2d at 486 n.3. Similarly, while section 18-1-410(1)(f)(I) by its express terms applies to defendants seeking postconviction relief, the supreme court has held that the statute also extends to defendants seeking relief on direct appeal. Thornton, 187 Colo. at 203, 529 P.2d at 628. In light of the 33  supreme court’s interpretation of these statutes, we cannot give them the meanings that the partial dissent ascribes to them. ¶ 82 Finally, the partial dissent also relies on Riley v. People, in which the supreme court noted that it has “emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application.” 828 P.2d 254, 258 (Colo. 1992). However, we do not consider this statement to have the controlling effect the partial dissent gives it. In Riley, the defendant committed a crime in April 1988 and sought relief under two sentencing provisions that expressly stated they applied to acts “committed on or after” July 1, 1988. Id. at 255-56. The Riley court held the defendant there was not entitled to relief because applying the statutes retroactively would require the court to ignore the “clear legislative determination” that the amended sentencing provisions would apply only to acts after that date. Id. at 257. ¶ 83 Thus, Riley is readily distinguishable from the present case, where the amendments to the theft statute do not expressly provide an effective date, and the language relied on by the partial dissent is dicta. Accord McCoy, 764 P.2d at 1174 (noting that, where 34  legislation expressly stated it applied to acts committed on or after its effective date, a “defendant does not receive any ameliorative benefit” because “retroactive application of the amendatory legislation is clearly not intended by its own terms”); People v. Macias, 631 P.2d 584, 587 (Colo. 1981) (same). ¶ 84 Thus, we conclude, in accordance with Stellabotte, that Trujillo should receive the benefit of the amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. See Stellabotte, ¶ 40, ___ P.3d at ___. VIII. Conclusion ¶ 85 Accordingly, the judgment of conviction is affirmed. The sentence is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with the views expressed in this opinion. JUDGE RICHMAN concurs. JUDGE FURMAN concurs in part and dissents in part. 35  JUDGE FURMAN, concurring in part and dissenting in part. ¶ 86 I respectfully dissent from the majority’s opinion only as to the effect of the 2013 amendments to the theft statute. I conclude that the 2013 amendments to the theft statute do not apply retroactively to Trujillo’s case. I reach this conclusion for several reasons. ¶ 87 First, the General Assembly has made it clear that a “statute is presumed to be prospective in its operation.” § 2-4-202, C.R.S. 2017. The 2013 amendments to the theft statute are silent as to whether they apply prospectively or retroactively. Therefore, I presume that the 2013 amendments are prospective in operation and do not apply to Trujillo’s offense, which occurred before 2013. See id. ¶ 88 Second, an amendment to a criminal statute does not change the penalty for crimes already committed under the statute unless the amendatory legislation expressly provides for such a change. See § 2-4-303, C.R.S. 2017. Section 2-4-303 provides, in relevant part: The . . . amendment . . . of any statute or part of a statute . . . shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall 36  have been incurred under such statute, unless the . . . amending . . . act so expressly provides, and such statute or part of a statute . . . so . . . amended . . . shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings, and prosecutions, criminal as well as civil, for the enforcement of such penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions imposing, inflicting, or declaring such penalty, forfeiture, or liability. Because the 2013 amendments to the theft statute do not expressly provide that they apply retroactively, and Trujillo committed his crime before 2013, he is liable for theft as it was defined when he committed the offense. See id. ¶ 89 Third, in Riley v. People, 828 P.2d 254, 258 (Colo. 1992), our supreme court “emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application.” Id. I consider this statement by the supreme court about its own jurisprudence on this issue to be controlling. 37 ¶ 90 Fourth, section 18-1-410(1)(f)(I), C.R.S. 2017, does not allow Trujillo, on direct appeal, to seek retroactive application of the 2013 amendments to his case. Section 18-1-410(1)(f)(I) allows a defendant to seek retroactive application of a “significant change in the law, applied to” a defendant’s “conviction or sentence.” I believe that the phrase “applied to” reflects the General Assembly’s intent that, for amendatory legislation to apply retroactively to a defendant’s conviction or sentence, the legislation must state that it applies retroactively. Thus, because, as noted, the 2013 amendments do not state that they apply retroactively to Trujillo’s conviction and sentence, he may not seek retroactive application under section 18-1-410(1)(f)(I). ¶ 91 Finally, and with all due respect, I decline to follow People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017). Indeed, I agree with Judge Dailey’s dissent in Stellabotte. See id. at ¶¶ 62-70 (Dailey, J., concurring in part and dissenting in part). 38 

477 F.2d 598 Zukowskiv.State Bar Grievance Board, State Bar ofMichigan 73-1072 UNITED STATES COURT OF APPEALS Sixth Circuit 4/18/73 1 E.D.Mich. AFFIRMED

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) _ ) ASBCA N°' 60315 ) ) Under Contract No. HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attomey Lt Col Mark E. Allen, USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has timely filed a motion for reconsideration of our 21 November 2016 decision granting the govemment’s motion for summary judgment and denying this appeal. -, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy with our decision is presumed In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA 1| 33,799 at 167,319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding See Dixon v. Shz`nseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent a compelling reason. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 at 172,453. - argues in its motion for reconsideration that the government breached the contract by violating PAR 52.233-3, PROTEST AFTER AWARD (AUG 1996) for failing to cancel the stop-work order or terminating the contract for convenience after the post-award protest period (app. mot. at l, 8). In our decision, we addressed this same argument and stated that “the suspension of work and termination for convenience clauses provide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has been paid the minimum contract value.” _, 16-1 BCA 11 36,569 ar 178,109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred after the suspension of work was allegedly lifted (app. reply br. at 7). However, all of the costs incurred were considered in our decision and found to be generated by tasks which was already expected to do under the terms of the contract. 16-1 BCA il 36,569 at 178,110-11. 3 We conclude - has not shown any compelling reason to modify our original decision, as - merely reargues its original position relying on the same facts. CONCLUSION For the reasons stated above, -’s motion for reconsideration is denied. Dated: 15 March 2017 DAVID D’ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK N. STEMPLER / RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman 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 Ne. 60315, Appeai ef- _, rendered in conformance with the Board’s Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals

United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November 14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by her supervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. They appeal. Having jurisdiction under 28 U.S.C. § 1291 over Dr. Zohoori’s appeal, this court reverses and remands.  I. Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a doctor’s appointment (necessary, she says, to prevent cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, he terminated her without explanation. Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the Rehabilitation Act, and the Family and Medical Leave Act (FMLA). Dr. Zohoori and the Department moved to dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (Title VII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “final decision” only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Hager relies on cases reviewing a denial of summary judgment based on qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313-14 (1995) (holding that where a district court’s summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a party may, or -2- may not, be able to prove at trial”—the order is not appealable); Powell v. Johnson, 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction of a court of appeals in a case like Hager’s—denial of a motion to dismiss based on qualified immunity: As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. Iqbal, 556 U.S. 662, 672-73 (2009). -3-  Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings to state § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is an issue of law over which this court has jurisdiction. See id. at 672-74; Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th Cir. 2011). III. This court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts should dismiss complaints based on “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. Powell, 405 F.3d at 654-55. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts and the courts of -4- appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager was “a victim of gender discrimination . . . and has been denied her right of equal protection of the law and due process of the law.” Specifically, she contends she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” “[T]he Equal Protection Clause requires that the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Klinger v. Department of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden- shifting analysis to claims of employment discrimination under the Equal Protection Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th Cir. 2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Dr. Zohoori argues that Hager does not state a § 1983 claim for gender discrimination because her allegation—that she “was discharged under circumstances summarily [sic] situated nondisabled males, younger people, or those that did not require leave or accommodation were not”—is a legal conclusion. Hager contends -5- her “similarly situated” allegation is sufficient because McDonnell Douglas is “an evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510; Ring v. First Interstate Mortg., 984 F.2d 924, 926 (8th Cir. 1993). Under Swierkiewicz, a plaintiff need not plead facts establishing a prima facie case of discrimination under McDonnell Douglas in order to defeat a motion to dismiss. Swierkiewicz, 534 U.S. at 510-11. The complaint “must contain only ‘a short and plain statement of the claim showing the pleader is entitled to relief.’” Id. at 508. “Such a statement must simply ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Id. at 512, citing Conley v. Gibson, 355 U.S. 41, 47 (1957). In Twombly, the Supreme Court stated that Swierkiewicz did not change the law of pleading. Twombly, 550 U.S. at 569. Rather, courts need “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “[L]egal conclusions can provide the framework of a complaint” but “must be supported by factual allegations,” Iqbal, 556 U.S. at 679, that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, this court applies “the ordinary rules for assessing the sufficiency of a complaint,” Swierkiewicz, 534 U.S. at 511, to consider whether Hager states a § 1983 claim for gender discrimination. See Twombly, 550 U.S. at 570. Hager relies primarily on Swierkiewicz. However, her complaint has far fewer factual allegations than the complaint there. In Swierkiewicz, the complaint for age and nationality discrimination alleged: the plaintiff was demoted and replaced by a younger employee of the employer’s nationality; the replacement was inexperienced; in promoting the younger, inexperienced employee, the employer wanted to “energize” the department; the employer excluded and isolated plaintiff from business decisions and meetings; plaintiff sent a memo outlining his grievances and tried to -6- meet with the employer to discuss his discontent; and plaintiff was fired. Swierkiewicz, 534 U.S. at 508-09. Hager makes only two conclusory allegations of gender discrimination: (1) she “is a victim of gender discrimination;” and (2) she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” She does not allege any gender-related comments or conduct before her termination. See Rondigo, 641 F.3d at 682 (granting qualified immunity in part because the complaint contained no allegations of gender-based discriminatory actions). She also does not allege facts showing that similarly situated employees were treated differently. See Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (plaintiff’s conclusory allegation that he “was treated differently as a result of his race than whites”—even where plaintiff identified an alleged comparator—was insufficient to sustain a Title VII claim because no factual allegations plausibly suggested the comparator was similarly situated). See also Keevan, 100 F.3d at 648 (“To establish a gender-based claim under the Equal Protection Clause, the appellants must, as a threshold matter, demonstrate that they have been treated differently by a state actor than others who are similarly situated simply because appellants belong to a particular protected class.”). In sum, Hager does not state a § 1983 claim for gender discrimination. Hager’s allegation that she is the victim of gender discrimination fails to give Dr. Zohoori fair notice of the claim and the grounds upon which it rests. See Swierkiewicz, 534 U.S. at 512. Hager’s conclusory assertion that she was discharged under circumstances similarly situated men were not imports legal language couched as a factual allegation and fails to raise a right to relief above the speculative level. See Twombly, 550 U.S. at 555. The district court erred in denying Dr. Zohoori’s motion to dismiss the § 1983 claim. -7-  B. Hager alleges a claim for “interfering with exercise of Plaintiff’s rights under the FMLA.” Under the categorization in Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), Hager’s “interference” claim is an entitlement claim. Pulczinski, 691 F.3d at 1005-06. “The FMLA entitles an employee to twelve workweeks of leave during any twelve-month period if he or she has a ‘serious health condition that makes the employee unable to perform the functions of the position of such employee.’” Sisk v. Picture People, Inc., 669 F.3d 896, 899 (8th Cir. 2012), quoting Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011), quoting 29 U.S.C. § 2612(a)(1)(D). An FMLA entitlement claim arises when an employer denies or interferes with an employee’s substantive FMLA rights. Scobey v. Nucor Steel-Arkansas, 580 F.3d 781, 785 (8th Cir. 2009). An employee seeking FMLA leave must give the employer notice of the need for leave and indicate when she anticipates returning to work. Id. at 785-86. See also Rynders v. Williams, 650 F.3d 1188, 1196-97 (8th Cir. 2011) (plaintiff must prove she gave timely notice to defendant himself). Although the notice need not specifically invoke the FMLA, an employee “must provide information to suggest that [her] health condition could be serious.” Scobey, 580 F.3d at 786. When the leave is foreseeable, the employee must give at least thirty days notice. 29 C.F.R. § 825.302. When the leave is not foreseeable, “an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303. Hager alleges that she “saw a physician regularly for her cataracts,” but “[o]n May 13, 2011, [Dr. Zohoori] instructed her to cancel the doctor’s appointment so she and he could discuss a report.” She also avers that she explained “the reason she needed to go to the doctor,” that “she could not cancel the appointment,” and why she could not cancel. These allegations do not state an FMLA entitlement claim. While -8- Hager alleges that she provided information suggesting a serious health condition, she does not allege that she provided timely notice. Hager’s pleadings at best suggest Dr. Zohoori was aware of her leave request immediately prior to the appointment. They do not assert that she provided notice within thirty days or “as soon as practicable under the circumstances.” Nor do they assert that she indicated when she would return. See generally Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir. 2013) (there is a “rigorous notice standard for employees seeking to use FMLA leave for absences”). The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA entitlement claim. C. Hager also alleges a claim for “retaliating against her.” Under the categorization in Pulczinski, Hager’s “retaliation” claim is a discrimination claim. Pulczinski, 691 F.3d at 1006. In a discrimination claim, “the employee alleges that the employer discriminated against her for exercising her FMLA rights.” Sisk, 669 F.3d at 899, quoting Wierman, 638 F.3d at 999. Absent direct evidence, an FMLA discrimination claim is analyzed under the McDonnell Douglas burden-shifting framework. Sisk, 669 F.3d at 899. The plaintiff must “show that she exercised rights afforded by the Act, that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action.” Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008), quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). This is an evidentiary, not a pleading, standard. Swierkiewicz, 534 U.S. at 510. Hager alleges that Dr. Zohoori discriminated against her—firing her—because she exercised her FMLA rights—tried to take leave for a doctor’s appointment, which was “necessary to insure that [her] condition did not develop into a serious health -9- condition, cataracts.” If Hager had properly alleged notice, these allegations would be sufficient. See Wehrley v. American Family Mut. Ins. Co., 513 Fed. Appx. 733, 742 (10th Cir. 2013) (“Three other circuits have concluded that notifying an employer of the intent to take FMLA leave is protected activity. . . . We are persuaded to follow these circuits.”), citing Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1276 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). However, because Hager failed to plead notice of intent to take FMLA leave, and that she was qualified for that leave, she has not sufficiently alleged that she exercised FMLA rights. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012) (“The district court held that because Nicholson did not provide sufficient notice of the need for FMLA-qualifying leave, she never engaged in any activity protected by the FMLA. For the reasons we have explained, we agree.”). The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA discrimination claim. IV. Although Hager did not move to amend the complaint in the district court—where the relevant pleadings were found sufficient—she requests remand to allow an amended complaint for any claims insufficiently pled. Hager should be no worse off, and no better off, than she would have been if the district court had granted the motion to dismiss. See Horras v. American Capital Strategies, Ltd., 729 F.3d 798, 804-05 (8th Cir. 2013) (evaluating standards applicable to post-judgment motions). This court remands for the district court to consider whether to allow Hager to amend her pleadings. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (granting leave to amend is within the discretion of the district court). -10-  V. The Arkansas Department of Health requests that this court exercise its pendent appellate jurisdiction to review the district court’s partial denial of its motion to dismiss. See Langford v. Norris, 614 F.3d 445, 457 (8th Cir. 2010) (“[W]hen an interlocutory appeal is before us . . . as to the defense of qualified immunity, we have jurisdiction also to decide closely related issues of law, i.e., pendent appellate claims.”) (internal quotation marks omitted), quoting Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995). The Department maintains that Hager’s claims against it are inextricably intertwined with her claims against Dr. Zohoori. The Department reasons that if Hager’s “similarly situated” allegation does not sustain her § 1983 and FMLA discrimination claims against Dr. Zohoori, it cannot sustain her Title VII and Rehabilitation Act claims against the Department. “[A] pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal—that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.” Kincade, 64 F.3d at 394, quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995). See also Lockridge, 315 F.3d at 1012. Here, resolution of the “similarly situated” issue may illuminate the Department’s argument that Hager failed to state a claim against it. However, the Department’s claims are not coterminous with or subsumed in Dr. Zohoori’s claims. Hager sues under different statutes, and the Department cannot invoke qualified immunity. This court does not have jurisdiction to hear the Department’s appeal. ******* -11-  The denial of Dr. Zohoori’s motion to dismiss the § 1983 claim, the FMLA entitlement claim, and the FMLA discrimination claim is reversed. This case is remanded for proceedings consistent with this opinion. ______________________________ -12- 

58 Cal.App.3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant. Docket No. 45562. Court of Appeals of California, Second District, Division Two. May 18, 1976. *443 COUNSEL Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant and Appellant. OPINION BEACH, J. L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment. FACTS: The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480].) In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion-year contract agreeing to do anything to help Scientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology.[1] After training on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director of disbursements. He later became the Flag Banking Officer. *444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the safe kept in respondent's office. Respondent handled foreign currency, American cash, and various travelers' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through "auditing" and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary." On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in jail for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice.[2] *445 CONTENTIONS ON APPEAL: 1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. The verdict below was reached as a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant's free exercise of religion. 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. 6. The order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented insufficient evidence to support the award of $50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more *446 than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. There was lack of proper instruction regarding probable cause.[3] DISCUSSION: 1. There was no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial. Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], is cited as authority. We have reviewed the entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal. Rptr. 45, 507 P.2d 653], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. "`A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.) 2. The procedure and verdict below does not constitute a violation of appellant's First Amendment free exercise of religion. *447 (2) Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is made that the trial became one of determining the validity of a religion rather than the commission of a tort. The references to which appellant now objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion. The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or destroy "enemies." (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church, that he had merely attempted to leave the church with the documents for the Internal Revenue Service, and that those witnesses who were Scientologists or had been Scientologists were following the policy of the church and lying to, suing and attempting to destroy respondent. Evidence of such policy statements were damaging to appellant, but they were entirely relevant. They were not prejudicial. A party whose reprehensible acts are the cause of harm to another and the reason for the lawsuit by the other cannot be heard to complain that its conduct is so bad that it should not be disclosed. The relevance of appellant's conduct far outweighs any claimed prejudice.[4] We find the introduction of evidence of the policy statements and other peripheral mention of practices of the Church of Scientology not to be error. In the few instances where mention of religious practices may have been slightly less germane than the policy statements regarding fair game, they were nonetheless relevant and there was no prejudice to appellant by the introduction of such evidence. *448 3. The trial court properly denied the motion for judgment notwithstanding the verdict. (3) Appellant claimed that it had probable cause to file suit against respondent. The claim is made that even if Alan Boughton did take the checks from the safe, knowledge of that act should not be imputed to appellant church. Based on the policy statements of appellant that were introduced in evidence, a jury could infer that Boughton was within the scope of his employment when he stole the francs from the safe or lied about respondent's alleged theft. Inferences can be drawn that the church, through its agents, was carrying out its own policy of fair game in its actions against respondent. Given that view of the evidence, which as a reviewing court we must accept, there is substantial evidence proving that appellant maliciously prosecuted respondent. Therefore, the trial court did not err in denying the motion for the judgment notwithstanding the verdict. 4. The trial court performed proper voir dire of prospective jurors. (4) Appellant claims that the trial court refused to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes. The record does not so indicate. Each juror was asked if he or she had any belief or feeling toward any of the parties that might be regarded as a bias or prejudice for or against any of them. Each juror was also asked if he or she had ever heard of the Church of Scientology. If the juror answered affirmatively, he or she was further questioned as to the extent of knowledge regarding Scientology and whether such knowledge would hinder the rendering of an impartial decision. One juror was excused when she explained that her husband is a clergyman and that she knows a couple that was split over the Church of Scientology. (5) The trial court's thorough questioning served the purpose of voir dire, which is to select a fair and impartial jury, not to educate the jurors or to determine the exercise of peremptory challenges. (Rousseau v. West Coast House Movers, 256 Cal. App.2d 878, 882 [64 Cal. Rptr. 655].) 5. It was not prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. *449 (6) Appellant submits that evidence of respondent's purported theft of the Australian and American Express travelers' checks should have been admitted as to the issue of malicious prosecution as well as the cross-complaint as to conversion. If there were any error in this regard, it could not possibly be prejudicial since the jury found for respondent on the cross-complaint. It is evident that the jury did not believe that respondent stole the travelers' checks; therefore, there could be no prejudice to appellant by the court's ruling. 6. Appellant suffered no prejudice by the trial court's denial of discovery of the factual basis for obtaining of the dismissal by the district attorney. (7) Prior to trial, appellant apparently sought to discover the reasons underlying the dismissal of the criminal charges against respondent. This was relevant to the instant case since one of the elements of a cause of action for malicious prosecution is that the criminal prosecution against the plaintiff shall have been favorably terminated. (Jaffe v. Stone, 18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775].) Whether or not the lower court was justified in making such an order, the denial of discovery along these lines could not be prejudicial. During the trial, counsel for all parties stipulated that the criminal proceedings against Allard were terminated in his favor by a dismissal by a judge of that court upon the recommendation of the district attorney. In addition, there was a hearing outside the presence of the jury in which the trial court inquired of the deputy district attorney as to the reasons for the dismissal. It was apparent at that time that the prospective witnesses for the Church of Scientology were considered to be evasive. There was no prejudice to appellant since the deputy district attorney was available at trial. Earlier knowledge of the information produced would not have helped defendant. We find no prejudicial error in the denial of this discovery motion. 7. The award of $50,000 compensatory damages was proper. Appellant contends that based upon the evidence presented at trial, the compensatory damage award is excessive. In addition, appellant contends that the trial court erred in not allowing appellant to introduce evidence of respondent's prior bad reputation. *450 (8a) There was some discussion at trial as to whether respondent was going to claim damaged reputation as part of general damages. The trial court's initial reaction was to allow evidence only of distress or emotional disturbance; in return for no evidence of damaged reputation, appellant would not be able to introduce evidence of prior bad reputation. The court, however, relying on the case of Clay v. Lagiss, 143 Cal. App.2d 441 [299 P.2d 1025], held that lack of damage to reputation is not admissible. Therefore, respondent was allowed to claim damage to reputation without allowing appellant to introduce evidence of his prior bad reputation. In matters of slander that are libelous per se, for example the charging of a crime, general damages have been presumed as a matter of law. (Douglas v. Janis, 43 Cal. App.3d 931, 940 [4] [118 Cal. Rptr. 280], citing Clay v. Lagiss, supra, 143 Cal. App.2d at p. 448. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997].)[5] (9) Damages in malicious prosecution actions are similar to those in defamation. Therefore, damage to one's reputation can be presumed from a charge, such as that in the instant case that a person committed the crime of theft. (8b) In any event, as the trial court in the instant case noted, there was no offer of proof regarding respondent's prior bad reputation; any refusal to allow possible evidence on that subject has not been shown to be error, much less prejudicial error. (10) Appellant further contends that the amount of compensatory damages awarded was excessive and that the jury was improperly instructed regarding compensatory damages. The following modified version of BAJI Nos. 14.00 and 14.13 was given: "If, under the court's instructions, you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate him for each of the following elements of loss or harm, which in this case are presumed to flow from *451 the defendant's conduct without any proof of such harm or loss: damage to reputation, humiliation and emotional distress. "No definite standard or method of calculation is prescribed by law to fix reasonable compensation for these presumed elements of damage. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for damage to reputation, humiliation and emotional distress, you shall exercise your authority with calm and reasonable judgment, and the damages you find shall be just and reasonable." The following instruction was requested by defendant and was rejected by the trial court: "The amount of compensatory damages should compensate plaintiff for actual injury suffered. The law will not put the plaintiff in a better position than he would be in had the wrong not been done." Accompanying the request for that motion is a citation to Staub v. Muller, 7 Cal.2d 221 [60 P.2d 283], and Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App.2d 578 [271 P.2d 122]. The Supreme Court has recognized that "Damages potentially recoverable in a malicious prosecution action are substantial. They include out-of-pocket expenditures, such as attorney's and other legal fees ...; business losses ...; general harm to reputation, social standing and credit ...; mental and bodily harm ...; and exemplary damages where malice is shown...." (Babb v. Superior Court, 3 Cal.3d 841, 848, fn. 4 [92 Cal. Rptr. 179, 479 P.2d 379].) While these damages are compensable, it is the determination of the damages by the jury with which we are concerned. Appellant seems to contend that the jury must have actual evidence of the damages suffered and the monetary amount thereof. "`The determination of the jury on the issue of damages is conclusive on appeal unless the amount thereof is so grossly excessive that it can be reasonably imputed solely to passion or prejudice in the jury. [Citations.]'" (Douglas v. Janis, supra, 43 Cal. App.3d at p. 940.) The presumed damage to respondent's reputation from an unfounded charge of theft, along with imprisonment for 21 days, and the mental and emotional anguish that must have followed are such that we cannot say that the jury's finding of $50,000 in compensatory damages is unjustified. *452 That amount does not alone demonstrate that it was the result of passion and prejudice. 8. Respondent is entitled to punitive damages. (11) Appellant cites the general rule that although an employer may be held liable for an employee's tort under the doctrine of respondeat superior, ordinarily he cannot be made to pay punitive damages where he neither authorized nor ratified the act. (4 Witkin, Summary of Cal. Law. (8th ed.) § 855, p. 3147.)[6] Appellant claims that the Church of Scientology, which is the corporate defendant herein, never either authorized or ratified the malicious prosecution. The finding of authorization may be based on many grounds in the instant case. For example, the fair game policy itself was initiated by L. Ron Hubbard, the founder and chief official in the church. (Exhibit 1.) It was an official authorization to treat "enemies" in the manner in which respondent herein was treated by the Church of Scientology. Furthermore, all the officials of the church to whom respondent relayed his desire to leave were important managerial employees of the corporation. (See 4 Witkin, Summary of Cal. Law (8th ed.) supra, § 857, p. 3148.) The trier of fact certainly could have found authorization by the corporation of the act involved herein. 9. The award of punitive damages. (12) Any party whose tenets include lying and cheating in order to attack its "enemies" deserves the results of the risk which such conduct entails. On the other hand, this conduct may have so enraged the jury that the award of punitive damages may have been more the result of *453 feelings of animosity, rather than a dispassionate determination of an amount necessary to assess defendant in order to deter it from similar conduct in the future. In our view the disparity between the compensatory damages ($50,000) and the punitive damages ($250,000) suggests that animosity was the deciding factor. Our reading of the decisional authority compels us to conclude that we should reduce the punitive damages. We find $50,000 to be a reasonable amount to which the punitive damages should be reduced. We perceive this duty, and have so modified the punitive damages award not with any belief that a reviewing court more ably may perform it.[7] (13) Simply stated the decisional authority seems to indicate that the reviewing court should examine punitive damages and where necessary modify the amount in order to do justice. (Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal. Rptr. 855, 461 P.2d 39]; Forte v. Nolfi, 25 Cal. App.3d 656 [102 Cal. Rptr. 455]; Shroeder v. Auto Driveaway Company, 11 Cal.3d 908 [114 Cal. Rptr. 622, 523 P.2d 662]; Livesey v. Stock, 208 Cal. 315, 322 [281 P. 70].) 10. Instruction on probable cause. Appellant requested an instruction stating: "Where it is proven that a judge has had a preliminary hearing and determined that the facts and evidence show probable cause to believe the plaintiff guilty of the offense charged therefore, ordering the plaintiff to answer a criminal complaint, this is prima facie evidence of the existence of probable cause." The trial court gave the following instruction: "The fact that plaintiff was held to answer the charge of grand theft after a preliminary hearing is evidence tending to show that the initiator of the charge had probable cause. This fact is to be considered by you along with all the other evidence tending to show probable cause or the lack thereof."[8] Appellant claimed for the first time in its reply brief that the trial court's lack of proper instruction regarding probable cause was prejudicial error. Since this issue was raised for the first time in appellant's reply brief, we decline to review the issue.[9] *454 The judgment is modified by reducing the award of punitive damages only, from $250,000 to the sum of $50,000. As modified the judgment is in all other respects affirmed. Costs on appeal are awarded to respondent Allard. Roth, P.J., and Fleming, J., concurred. A petition for a rehearing was denied June 17, 1976, and the petitions of both parties for a hearing by the Supreme Court were denied July 15, 1976. NOTES [1] One such policy, to be enforced against "enemies" or "suppressive persons" was that formerly titled "fair game." That person "[m]ay be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed." (Exhibit 1.) [2] Leonard J. Shaffer, the deputy district attorney, testified outside the presence of the jury that members of the church were evasive in answering his questions. He testified that the reasons for the dismissal were set forth in his recommendation; the dismissal was not part of a plea bargain or procedural or jurisdictional issue. [3] This issue is raised for the first time in appellant's reply brief. [4] The trial court gave appellant almost the entire trial within which to produce evidence that the fair game policy had been repealed. Appellant failed to do so, and the trial court thereafter permitted the admission of Exhibit 1 into evidence. [5] The Supreme Court held in Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 349 [41 L.Ed.2d 789, 810], an action for defamation, that "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." (Italics added.) The instant case is distinguishable from Gertz. Initially, the interests protected by a suit for malicious prosecution include misuse of the judicial system itself; a party should not be able to claim First Amendment protection maliciously to prosecute another person. Secondly, the jury in the instant case must have found "knowledge of falsity or reckless disregard for the truth" in order to award punitive damages herein. Therefore, even under Gertz, a finding of presumed damages is not unconstitutional. [6] We again note that Gertz v. Robert Welch, Inc., supra, precludes the award of punitive damages in defamation actions "at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." The facts of the instant case fall within that categorization, so a finding of punitive damages was proper. Moreover, as we noted above, an egregious case of malicious prosecution subjects the judicial system itself to abuse, thereby interfering with the constitutional rights of all litigants. Punitive damages may therefore be more easily justified in cases of malicious prosecution than in cases of defamation. The societal interests competing with First Amendment considerations are more compelling in the former case. [7] See dissent in Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal. Rptr. 855, 461 P.2d 39]. [8] This instruction was given on the court's own motion. [9] We note that given the circumstances of the instant case, the juror could have easily been misled by the requested instruction. If the evidence showed that the agents and employees of appellant were lying, then the preliminary hearing at which they also testified would not be valid. While the jurors may of course consider that the magistrate at the preliminary hearing found probable cause, that should be in no way conclusive in the jury's determination of probable cause.

798 So.2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta M. Buchannon, deceased v. Rebecca GERLACH, M.D. 1991732. Supreme Court of Alabama. April 20, 2001. *648 Sherryl Snodgrass Caffey, Huntsville, for appellants. John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P., Decatur, for appellee. HARWOOD, Justice. Charles Sharrief and Millie Sharrief, as administrators of the estate of Quanetta M. Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants' providing medical care to Buchannon. The trial court entered an "Order of Referral to Mediation." During mediation, the plaintiffs' settled their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant to a motion and joint stipulation for *649 dismissal. Although he was no longer a party to this case, Dr. Giddens was later a witness at trial. Trial of the plaintiffs' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. The trial judge offered the plaintiffs the option of continuing the trial in Dr. Gerlach's absence, but they declined to do so. The trial court then declared a mistrial. The plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence. A second trial began on January 24, 2000. On January 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered a judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct had occurred during the trial. When the trial court became aware of the subpoenas, it entered an order quashing them. The plaintiffs then filed a "Motion to Alter, Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions of Jurors" and a "Motion for Enlargement of Time." The plaintiffs also filed a "Motion to Vacate the Judgment," a "Motion for a New Trial," a "Motion for Post Judgment Hearing," and a "Renewal of Motion to Take Deposition Testimony of Jurors." In response, Dr. Gerlach filed a "Motion for Protective Order" and a "Motion to Strike Affidavits of Mr. Sharrief and Jurors." The trial court heard arguments on all the motions at the same time; it denied all of the plaintiffs' motions, and granted all of Dr. Gerlach's motions. The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial court committed reversible error by denying the plaintiffs' posttrial motions concerning discovery regarding jury deliberations; (3) that the trial court committed reversible errors during the trial; and (4) that the trial court erred in denying their motion to tax costs to Dr. Gerlach after the first trial had ended.[1] The record shows that Buchannon, age 19, was brought to the Jackson County Hospital emergency room at 9:05 p.m. on July 2, 1993. She had been suffering from vomiting, nausea, and diarrhea for three days. Dr. Gerlach, an emergency-room physician, obtained Buchannon's medical history and examined her. Buchannon's medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) Dr. Gerlach's examination indicated that Buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. Dr. Gerlach then telephoned Dr. Giddens, the obstetrician-gynecologist ("Ob/Gyn") on call for Jackson County Hospital that *650 night, to discuss the case. Dr. Giddens had also been Buchannon's Ob/Gyn up until two weeks before the delivery, but because Dr. Gapultoes had delivered Buchannon's baby, Dr. Giddens was no longer considered her attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon had requested that he be present, and asked him to come in on Buchannon's behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin,[2] 1 gram, by intramuscular injection, and a prescription of Doxycycline.[3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon be released and that she follow up with an Ob/Gyn within a few days. Dr. Gerlach then asked Dr. Giddens to do a "follow-up" examination with Buchannon in 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach's recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital at 10:45 p.m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center. On July 3, 1993 at 7:17 a.m., Buchannon was pronounced dead. The official cause of her death was septic shock due to endometritis due to cesarean section. I. The Verdict and the Denial of the Plaintiffs' Postjudgment Motions We first consider whether the trial court erred in denying the plaintiffs' motion for a new trial. The plaintiffs based that motion on the argument that the jury's verdict was not supported by the evidence. "[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is `plainly and palpably' wrong. Ashbee v. Brock, 510 So.2d 214 (Ala.1987). See, also, Jawad v. Granade, 497 So.2d 471 (Ala.1986)." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162-63 (Ala.1988). Thus, this Court will reverse the trial court's denial of the plaintiffs' motion for a new trial only if this Court concludes that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by the defendant health-care provider, (2) a deviation from that standard of care by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant's breach of the standard of care. Looney v. Davis, 721 So.2d 152 (Ala.1998). The plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach's examination and treatment of Buchannon was below the standard of care. However, Dr. Sherry *651 Squires, associate medical director of the emergency department at Huntsville Hospital, testifying as an expert on behalf of Dr. Gerlach, stated that Dr. Gerlach's treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So.2d 420 (Ala.1995); James v. Woolley, 523 So.2d 110, 112 (Ala.1988). The record contains substantial evidence to support the jury verdict; thus, we must conclude that the verdict was not plainly and palpably wrong. Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, 946 (Ala.1988). The trial court did not err in denying the plaintiffs' motion for a new trial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations We next consider the plaintiffs' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time to take juror depositions, and a motion renewing the plaintiffs' motion to take depositions, affidavits, and oral testimony of jurors. Matters concerning discovery pending appeal are within the trial court's discretion. Rule 27(b), Ala. R. Civ. P. "[R]elief under Rule 27 is discretionary with the trial court, and a trial court's ruling on a Rule 27 petition will not be reversed in the absence of an abuse of discretion." Ex parte Anderson, 644 So.2d 961, 964 (Ala.1994). Even if this Court viewed these subpoena requests as coming within the ambit of Rule 30, Ala. R. Civ. P., the abuse-of-discretion standard would still apply. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). After the trial, the plaintiffs had the trial-court clerk issue subpoenas to the jurors, without having gotten the approval of the trial court. In pertinent part, the trial court's order quashing the subpoenas stated: "The plaintiffs' attorney failed to comply with Rule 27 of the Alabama Rules of Civil Procedure for the taking of the depositions of witnesses pending appeal or before the taking of an appeal if the time therefor has not expired. The plaintiffs filed no motion with the court for authorization to take the depositions. Furthermore, the witnesses subpoenaed by the plaintiffs were jurors and the court is mindful of the special rules of law that apply to the testimony of jurors and policy considerations for these rules of law." All of the plaintiffs' arguments concerning posttrial discovery regarding the jury's deliberations are based on three affidavits that had been taken before the trial court quashed the subpoenas. The first was the affidavit of Charles Sharrief, Buchannon's father (who also is one of the plaintiffs). Sharrief's affidavit contains a list of statements made to him by some of the jurors after the trial. The trial court found that Mr. Sharrief's affidavit was comprised completely of "hearsay," as that term is defined by Rule 802, Ala. R. Evid. The Court notes that the plaintiffs have not directly challenged, by citation to any authority, the propriety of the trial court's order striking the affidavit of Sharrief on the basis that it contained nothing but hearsay. See Rule 28(a)(5) Ala. R.App. P. Hearsay evidence is not admissible in support of a motion for a new trial, and a new trial will not be granted on the basis of such evidence. Jefferson County v. Kellum, 630 So.2d 426, 427 (Ala.1993). We *652 conclude that the trial court did not abuse its discretion by refusing to allow Charles Sharrief's affidavit to support the issuance of subpoenas to individual jurors. Affidavits were also obtained from two of the jurors, S. and H. Their affidavits contain accounts of some jurors' discussions during deliberations. Rule 606(b), Ala. R. Evid., reads: "(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify in impeachment of the verdict or indictment as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. Nothing herein precludes a juror from testifying in support of a verdict or indictment." This Court has stated: "Generally, affidavits are inadmissible to impeach a jury's verdict. An affidavit showing that extraneous facts influenced the jury's deliberations is admissible; however, affidavits concerning `the debates and discussions of the case by the jury while deliberating thereon' do not fall with this exception." HealthTrust, Inc. v. Cantrell, 689 So.2d 822, 828 (Ala.1997). See also Ala. R. Evid. 606(b); this rule is substantially similar to Rule 606(b), Fed.R.Evid. In Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th Cir.1987), the United States Court of Appeals for the Fifth Circuit held that "by implementing Rule 606(b), Congress has made the policy decision that the social costs of such error are outweighed by the need for finality to litigation." The Seventh Circuit has held that Rule 606(b) is designed "to protect the judicial process from efforts to undermine verdicts by scrutinizing the jurors' thoughts and deliberations." United States v. Ford, 840 F.2d 460, 465 (7th Cir.1988). Other courts of appeals for the federal circuits have stated that Rule 606(b) promotes "free and uninhibited discourse during deliberations." Attridge v. Cencorp Div. of Dover Techs. Int'l, Inc., 836 F.2d 113, 116 (2d Cir.1987); Maldonado v. Missouri Pac. Ry., 798 F.2d 764 (5th Cir.1986). The plaintiffs misconceive the distinction, under Alabama law, between "extraneous facts," the consideration of which by a jury or jurors may be sufficient to impeach a verdict, and the "debates and discussions of the jury," which are protected from inquiry. This Court's cases provide examples of extraneous facts. This Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia. See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997). The problem characteristic in each of these cases is the extraneous nature *653 of the fact introduced to or considered by the jury. The improper matter someone argues the jury considered must have been obtained by the jury or introduced to it by some process outside the scope of the trial. Otherwise, matters that the jurors bring up in their deliberations are simply not improper under Alabama law, because the law protects debates and discussions of jurors and statements they make while deliberating their decision. CSX Transp. v. Dansby, 659 So.2d 35 (Ala.1995). This Court has also noted that the debates and discussions of the jury, without regard to their propriety or lack thereof, are not extraneous facts that would provide an exception to the general rule of exclusion of juror affidavits to impeach the verdict. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955). Nothing contained in the affidavits indicates the jury considered any extraneous facts. All the statements in the affidavits relate to evidence that was presented at trial or to information that was otherwise brought to the attention of the jury during the trial. The affidavits provide no evidence that the jury consulted any outside sources of information regarding the definition of "standard of care," or regarding any other matter. Nothing in either of the affidavits indicates that the jury, or any particular juror, was influenced by any outside source. The trial court did not abuse its discretion in denying the plaintiffs' posttrial motions seeking discovery regarding the jury's deliberations. HealthTrust, Inc. v. Cantrell, 689 So.2d 822 (Ala.1997). III. Alleged Errors During Trial The plaintiffs argue that the trial court erred in overruling their objection made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, (1986), to the defendant's striking all but three of the women on the venire. The plaintiffs' also argue that they made an objection to the composition of the jury and a Batson objection to the striking of the one black member of the venire, but we have found no such objections in the record. We first address the plaintiffs' claim that Dr. Gerlach violated the principles of Batson by using 7 of her 10 peremptory strikes against women. Because the plaintiffs did not object to the striking of the sole black juror, no other Batson argument has been preserved for our review. Cone Bldrs., Inc. v. Kulesus, 585 So.2d 1284 (Ala.1991); Bruner v. Cawthon, 681 So.2d 161 (Ala.Civ.App.1995). A trial court's ruling on a Batson objection is entitled to great deference, and we will not reverse a judgment because of such a ruling unless it is clearly erroneous. Ex parte Branch, 526 So.2d 609 (Ala.1987). In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a prosecutor in a criminal case from exercising peremptory strikes to remove black potential jurors from a black defendant's jury solely on the basis of their race. In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), the United States Supreme Court extended the Batson principles to civil cases. "The burden of persuasion is initially on the party alleging a discriminatory use of peremptory challenges to establish a prima facie case of discrimination." Thomas v. Diversified Contractors, Inc., 578 So.2d 1254, 1255 (Ala.1991). In J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court further extended Batson to gender-based strikes. "Only after a prima facie showing of discrimination has been established is a trial court under a duty to require an opposing party to provide *654 [gender-]neutral reasons for his peremptory strikes. Thomas at 1255. The following exchange took place at trial: MS. CAFFEY: "Your Honor, according to my calculations of the thirty-six potential jurors, Plaintiffs are left with either two or three women; and we would submit for the Court's consideration that three female jurors—that the striking of the women was done in a sexually biased manner in order to exclude mothers from the jury, and they struck some women but was based upon responses that were given during the jury voir dire [sic]; and we showed that they might be biased in the case, such as, the inability to award a large sum of money, and two or three of them indicated—well, one indicated that she would not be able to follow the Court's jury instructions and other indications like that. And, also, the Plaintiffs struck two jurors who indicated a knowledge and relationship with Dr. Gerlach as a result of their employment with the Jackson County Hospital, and considering that there would be some information involving the Jackson County Hospital and the fact that they were a Defendant in this case, those jurors were struck because of their potential bias. And that would be jurors V. and M. Juror W. indicated—well, we didn't strike M., that would be V., but Juror W. indicated that—I believe she indicated that she did not believe that she could be unbiased in this case, and we contend that the three jurors—well, first of all, that women are a representative group in the Jackson County community and that three female jurors out of a potential thirty-six would certainly constitute less than the percentage of women in the community, and also, it's less than a reasonable percentage of jurors that are left on the jury; and that's one-third of the jury. MR. KEY [defense attorney]: "Is that a prima facie case, Your Honor? THE COURT: "Are you saying it is? MR. KEY: "I'm saying it is not. THE COURT: "Well, what are your grounds in that regard? MR. KEY: "Judge, we can give a reason for every strike that we made, but the point is that we had ten strikes, and how many women are left on the jury? THE COURT: "Three. MR. KEY: "Well, I'll say this. It's very unusual because it seems like that the last forty cases that I've tried, it's been about eight to three female; but, you know, there's no—I just don't see that there's any prima facie case here based on—you do have three women on the jury; and unless we're called to show gender-neutral reasons, then that's as far as I can go because I just don't see it. MS. CAFFEY: "Well, you struck seven of the female jurors, none of whom gave any indication of being connected with any of the parties. MR. KEY: "Well, for instance, the last strike, she indicated that she had been treated for diarrhea and vomiting and throwing up and had been put on IVs within four hours; and that's what they're saying that we should've done, and we've got reasons. And if we're forced to go back and reconstruct them, then we can, but— THE COURT: "Well, the Court rules that the Plaintiff [sic] has not made a prima facie case of discrimination in regard to gender. All right; anything further? MS. CAFFEY: "Your honor, my understanding of the law is that I would have to show that the group would be a representative *655 group in the community and that the defendants abused strikes in a manner ... which left the number of jurors on the jury in this representative group less than the percentage of that group in the community; and I've clearly shown that. I have also offered the Court an explanation insofar as the striking of female jurors by the Plaintiffs and have shown sex-neutral reasons; and the Defendant has indicated that they would have to put together some reasons for the striking, and— THE COURT: "Well, that was not my understanding of the statement made by defense counsel. All right; that's my ruling. Do you have anything further? MS. CAFFEY: "No, Your Honor." The plaintiffs' only objection regarding the defendant's strikes of women, if it can be characterized as an objection, was to the fact that only three women were left on the jury. However, "`"[I]t is important that the defendant come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case"' of ... discrimination." McElemore v. State, 798 So.2d 693, 696 (Ala.Crim.App. 2000) (quoting Mitchell v. State, 579 So.2d 45, 48 (Ala.Crim.App.1991), in turn quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990)). Based on the record, we conclude that the plaintiffs did not present a prima facie case of improper strikes on the basis of gender. In Ex parte Trawick, 698 So.2d 162 (Ala.1997), this Court reasoned: "Trawick has offered no evidence that the female veniremembers shared only the characteristics of gender, that anything in the type or manner of the prosecutor's statements or questions during the extensive voir dire indicated an intent to discriminate against female jurors, that there was a lack of meaningful voir dire directed at the female jurors, or that female jurors and male jurors were treated differently. He has offered no evidence that the prosecutor had a history of using peremptory challenges in a manner that discriminated against veniremembers of either gender. Instead, Trawick has merely emphasized that the State used many of its strikes to remove women from the venire. Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination." 698 So.2d at 168. The reasoning of Trawick applies here. We have reviewed the trial transcript, and our review indicates the plaintiffs presented nothing to show a prima facie case of gender discrimination. Therefore, the trial court was not required to have the defense provide gender-neutral reasons for its peremptory strikes. We conclude that the trial court acted within its discretion in denying the plaintiffs' Batson motion. The plaintiffs also argue that the trial court erred in excluding their Exhibit 5 ("Defendant's Medical Record" annotated by Dr. William Garrett during trial) and their Exhibit 7 (pamphlets on Rocephin and Doxycycline). However, the plaintiffs made no objections at trial to the exclusion of these exhibits, and this Court will not consider objections to the exclusion of evidence that were not raised at trial. Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 361 (Ala.Civ.App.1996); Bolen v. Hoven, 143 Ala. 652, 39 So. 379 (1905). We note further that the plaintiffs' brief contains no citations to authority supporting their contentions. See Rule 28(a)(5), Ala. R.App. P.; McLemore v. Fleming, 604 So.2d 353 (Ala.1992). *656 The judgment of the trial court is affirmed. AFFIRMED. MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur. NOTES [1] The Court will not address this fourth issue, because the plaintiffs' brief contains no citations to authority supporting their contentions. Rule 28(a)(5), Ala.R.App.P., specifically requires an appellant to present the appellate court with citations to authorities supporting the appellant's contentions. When an appellant fails to comply with Rule 28(a)(5), Ala. R.App. P., this Court may affirm the ruling the appellant is complaining of. McLemore v. Fleming, 604 So.2d 353 (Ala.1992). [2] Rocephin is a sterile, semisynthetic, broadspectrum cephalosporin antibiotic for intravenous or intramuscular administration. Physicians' Desk Reference 2765 (55th ed.2001). [3] Doxycycline is a broad-spectrum tetracycline antibiotic used against a wide variety of bacterial infections. Physicians' Desk Reference 2254 (55th ed.2001).

75 Ill. App.2d 144 (1966) 220 N.E.2d 590 Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff-Appellee, v. Erie City Iron Works, a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant. Gen. No. 10,679. Illinois Appellate Court — Fourth District. September 26, 1966. Rehearing denied October 24, 1966. *145 *146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel), for appellant. Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), for appellee. TRAPP, P.J. Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie. Plaintiff's action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff. The defendant's theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff's damages; that the court should have directed a verdict in favor of this defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff's complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of *147 a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed. Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on. The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building. In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a "dirt leg." The latter testified that the contractor should install a "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not. Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard *148 of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work. Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained. With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman *149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done. Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to. The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve. There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. *150 This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial. The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions. From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. There is testimony by Ted Brinkoetter that the control system, upon being tested, did not always work, but there is also testimony that it functioned correctly upon tests. Harry Reynolds, an investigating engineer retained by the plaintiff, testified that it would take a very small amount of gas to cause an explosion in this boiler, and that it was particularly hazardous to operate the boiler on a "no load" basis as the mixture of air and gas gets out of balance and becomes explosive. He also testified that upon initial examination, the oil burning switch was on instead of the gas burning switch. A witness, testifying in behalf of Brinkoetter, stated that shortly before the explosion, *151 Enders flipped a switch and that the flame in the boiler went out and did not come on again. It is one of defendant's arguments that by this contract it was to furnish a package boiler but had no responsibility for its installation. This position was taken in its first motion to the complaint and is argued here. The nature of defendant's disclaimer seems to be based upon its Exhibit #1 contained in a foreword to the instruction manual which Erie shipped with the boiler. A relevant part includes the following: "When the service of an Erie City Iron Works Engineer is provided for the customer, it is for the purpose of aiding in the training of the customer's personnel and not to replace them or assume any of their duties. It should be understood that the responsibility for operation rests solely with the customer's operators and the Erie City Iron Works assumes no responsibility for the customer's operators' failure to properly perform their respective duties, and the presence of an Erie City Iron Works Engineer at the customer's plant in no way relieves the customer's personnel of any of their responsibilities." The following also appears in slightly varying form in several places in the contract for the purchase of the boiler: "With respect to all preliminary operations, initial start-up, demonstration of capacity and performance guarantees, representatives of the Company are authorized only to advise and consult with the Purchaser or its representatives and no representative of the Company is licensed to operate the equipment. In the event the Purchaser shall operate the equipment specified hereunder prior to final acceptance, the Purchaser shall indemnify and save harmless the Company against any loss or expense and against any liability imposed upon the Company, resulting *152 from the operation of such equipment by the Purchaser prior to final acceptance, except any such loss, expense or liability for injury or damage resulting from the negligent acts or omissions of the Company or its agents or employees." (Emphasis supplied). It appears from the testimony that the package boiler is not operational upon delivery but requires adjustment to make it perform properly. Paul Wilson, who is in charge of field service for defendant, testified that the linkage of the butterfly valve regulating the ratio of air and gas must be adjusted and that the damper linkage must be "positioned." He testified that the service engineer never operates the boiler but that it is the obligation of the purchaser to make such adjustments according to the engineer's instructions. He testified that it was the service engineer's duty to make a visual check of the gas line installed, check the controls and firing equipment, consult and assist placing the boiler in service, instruct in operating the boiler and its controls and assist in making the final adjustments. Brewster, a witness for Brinkoetter, testified that Enders examined the pipeline but made no suggestions for changes in the work as installed, and the record is that Enders did, in fact, start-up and fire the boiler, make adjustments, and made or had arranged to make the tests, including the testing of its capacity on the high fire. Binns, an employe of the hospital, testified that no one other than Enders handled or adjusted the controls. The manual submitted by Erie contains a section A designated "Preparing the boiler for service — Inspection of unit." Section A-1 states that prior to placing equipment in service a complete inspection should be made to determine its condition and continues: "In case of newly constructed power equipment, this inspection should insure that the unit has been correctly completed." *153 Section A-2 is as follows: "Responsibility for the completion of construction normally rests with the customer's construction engineer working in conjunction with the manufacturer's erection or service engineer. At completion of construction work, an inspection should be made in the presence of the customer's construction engineer, operating engineer, the construction superintendent and the manufacturer's engineer (if one is present) and agreement reached that the equipment is in a satisfactory condition for placing into service." There is no evidence that such inspection or agreement was reached or called for by defendant's service engineer. As to the contention that by contract Erie had no responsibility, claimed under its Exhibit #1, the "foreword" to the instruction manual and the several provisions set out in the contract should not control under these circumstances. The effect of these documents might be that Erie could not be required to perform the tests and effect the start-up of the boiler, but they should not control liability where under the evidence it might be reasonable to conclude that they did, in fact, undertake and perform the work. The contract provision quoted does not attempt to exclude negligence of Erie employes. Erie discusses Count I of the complaint as involving the principles of res ipsa loquitur under a pleading of general negligence. These principles are thoroughly discussed in Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305, and need not be reiterated. [1] Erie urges that the inference of negligence under Count I should not be allowed because the boiler was not under its exclusive control. The defendant points out that the evidence discloses that Enders, Brewster, an employe of Brinkoetter, Binns, an employe of the hospital, and Robert Brinkoetter were all present at the time of the explosion. The evidence has been examined to determine *154 what, if anything, these individuals were doing to exercise control of the unit. We cannot say that it is contrary to the manifest weight of the evidence for the jury to conclude that Erie's man Enders was, in fact, in control of the proceedings incident to the start-up and testing of the boiler. There is no evidence that any person other than Enders participated in any phase of the work. In May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394, the complaint alleged the purchase and delivery of a new rope which broke shortly after placing the rope into use. There was judgment n.o.v. entered by the trial court. The Appellate Court reversed, holding that the inference of negligence under the theory of res ipsa loquitur was properly applicable. As to that defendant's contention that it was not in control of the rope at the time of the injury, the court said: "Decisions from other states and recent cases here reject this inflexible application of a rule of control and hold that a defendant in a res ipsa loquitur case cannot automatically defeat an allegation of negligence with a bare showing that, before harm struck, it had parted with control of the harmful instrumentality. (Prosser, Torts 206 (2d ed 1955).) "The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant's negligence is strong enough to survive the fact that, between the defendant's control and the plaintiff's injury, another possession intervened." The court continued to say that it was for the determination of the jury as to whether the permissive inference of negligence arising from the facts was to prevail over defendant's countervailing proof of due care. As stated in Prosser, Law of Torts, 2d ed 1955, p 206, chap 7, § 42, the word "control" may be the wrong word. It is said: *155 "Some courts have said that it is enough that the defendant was in exclusive control at the time of the indicated negligence. It would be far better, and much confusion would be avoided, if the idea of `control' were discarded altogether, and we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it." In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, the defendants were several contractors and the owner of a building under repair. The court noted: "It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage." Amongst other cases defendant relies upon Kirchner v. Kuhlman, 334 Ill. App. 339, 79 NE2d 628. There defendant's employes were working on plaintiff's premises but we find no evidence that these defendants had control of the trash container belonging to the plaintiff in which the fire started. Again, in Krump v. Highlander Ice Cream Co., 30 Ill. App.2d 103, 173 NE2d 822, the collision of two automobiles caused one of them to strike and damage plaintiff's building. While the court said that the doctrine of res ipsa loquitur did not apply, it did hold that there was a presumption of negligence where an accident occurred which would not ordinarily occur if due care had been taken, and that it was proper to call upon the defendants to exculpate themselves. The distinction between this conclusion and the theory of res ipsa loquitur appears slight. [2] Defendant argues that Count I of the complaint alleged general negligence stating a cause of action upon the theory of res ipsa loquitur, while Count II alleges certain acts of specific negligence, and that under the authorities in this State the inference of negligence which *156 arises under res ipsa loquitur, "vanishes" upon the introduction of evidence of specific negligence. Amongst the authorities cited are Bollenbach v. Bloomenthal, 341 Ill. 539, 173 NE 670. This rule has been categorically overruled by our Supreme Court in Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305. In that case the complaint charged general negligence in one count employing the theory of res ipsa loquitur, and in a second count alleged specific negligence. At the close of the evidence plaintiff was required to, or did elect, to rely upon the charge of negligence and the theory of res ipsa loquitur. The verdict for the plaintiff was reversed in the Appellate Court on the theory that res ipsa loquitur did not apply as other parties had access to the area of the gas main. In reversing the Appellate Court, the Supreme Court remarked upon the conflict amongst the Illinois decisions. We may note that many of these decisions are in broad language open to a variety of interpretations, and frequently they do not indicate the reason for the decision. In Metz the Supreme Court concluded that the more studied, more just view is that the inference of negligence does not vanish when contrary evidence appears, but that it remains to be considered and weighed by the jury against the direct evidence offered by the party charged, citing Cobb v. Marshall Field & Co., 22 Ill. App.2d 143, 159 NE2d 520; Illinois Pattern Jury Instruction, 22.01 with comment on pages 128, 129; Prosser, 20 Minn L Rev, 241. See also O'Hara v. Central Illinois Light Co., 319 Ill. App. 336, 49 NE2d 274; May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394. [3] Defendant's contention that plaintiff should have been required to elect as between the counts is controlled by the rule of Metz. Defendant's authorities are Wm. Wrigley, Jr. Co. v. Standard Roofing Co., 325 Ill. App. 210, 59 NE2d 510; and Simmons v. South Shore Hospital, 340 Ill. App. 153, 91 NE2d 135. In the former case the Appellate Court undertook to specify what may be described *157 as the requirements that plaintiff elect between the general negligence count and the count for specific negligence. The only cited authority for such procedure was Bollenbach v. Bloomenthal and its rule that the inference of negligence vanished upon the introduction of evidence of specific negligence. By reason of the Metz decision, this reason for such rule no longer exists. Simmons v. South Shore Hospital, as well as Jackson v. 919 Corp., 344 Ill. App. 519, 101 NE2d 594, simply relied upon the rule of Wrigley as authority without discussing it. There is, in fact, persuasive opinion contrary to the contention of Erie regarding the theory of election in Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137, 210 NE2d 42. There premises were damaged by an explosion of gas leaking from the company lines. The complaint alleged only specific negligence and there was some evidence of a failure of periodic inspection. The trial court gave an instruction authorizing the jury to apply, or employ, the inference of negligence under res ipsa loquitur. The Appellate Court reversed since there was no pleading of general negligence, but stated that upon a new trial the complaint should be amended to include such an allegation. The court there said: "An inference of general negligence arising from the doctrine of res ipsa loquitur is not necessarily inconsistent with proof of specific negligence. To hold that proof of specific negligence precludes the application of the res ipsa doctrine could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence.... If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail. McCormick v. Kopmann, 23 Ill.2d 189, 205, 161 NE2d 720 (3rd Dist 1959)." *158 [4] The Illinois courts recognize that the doctrine of res ipsa loquitur is but one form of circumstantial evidence. May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394. It has been suggested that the doctrine that requires election assumes that the inference arising through res ipsa loquitur must be an alternative to direct proof rather than a type of circumstantial evidence to be weighed with other evidence, and it has been criticised as an assumption that the pleader must be totally ignorant of the facts. 2 ALR3d 1335, at 1340. There is reason in the hypothesis that there should not be a penalty imposed upon the pleader for placing before the court all facts known to him. 27 Fordham L Rev, 411-415; Foster v. Union Starch & Refining Co., 11 Ill. App.2d 346, 137 NE2d 499. This is particularly true when an allegation notifies the defendant of the intent to rely upon the inference of negligence arising under the doctrine of res ipsa loquitur. It is the policy under the rule of Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305, that once the inference of negligence arises through allegations of general negligence, it remains for the consideration of the jury, unless and until the precise cause of the injury is established. 27 Fordham L Rev 411. In Prosser, Law of Torts, 2d ed, chap 7, § 43, p 214, it is suggested: "It is quite generally agreed that the introduction of evidence which does not purport to furnish a complete explanation of the occurrence does not deprive the plaintiff of res ipsa loquitur." In Cassady v. Old Colony St. Ry. Co., 184 Mass. 156, 68 NE 10, at p 12, the court said: "The defendant also contends that, even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly *159 the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, (citing authorities), there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it." We believe that this position was approached in Krueger v. Richardson, 326 Ill. App. 205, 61 NE2d 399, when the court noted that the plaintiff was not required to prove the specific acts of negligence as alleged, but they had a right to rely upon the proof and its reasonable inferences to establish a prima facie case of general negligence. In this case it seems proper to say that reasonable men might differ as to the effect of the evidence heard by the jury. Expert witnesses would not even undertake to announce an hypothesis, but rather advised of the virtual impossibility of reaching a specific determination of what caused the explosion. This situation here appears to be precisely that contemplated in the language of Erckman v. Northern Illinois Gas Company. [5] In its reply brief Erie contends that the doctrine cannot be followed because there are multiple defendants. No Illinois cases seem applicable as precedent. In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, it was held error to dismiss a complaint seeking to apply res ipsa loquitur as against three defendants. *160 See also Burr v. Sherwin-Williams Co. (Cal App), 258 P.2d 58, 38 ALR2d 905 et seq. Again in Zichler v. St. Louis Public Service Co., 332 Mo 902, 59 S.W.2d 654, general negligence was pleaded against the service company while specific negligence was pleaded as to another defendant who was found not guilty by the jury. It was contended that it was improper to permit the res ipsa loquitur inference to be applied to one joint tort feasor, but not the other. Pointing out that the rule was one of evidence rather than pleading, the court said: "A plaintiff should not be compelled to confine his action to one joint-feasor only in order to be accorded the rights which the law gives to him." It being the policy under the rule of Metz that the inference of negligence is to be weighed by the jury with other evidence, we see no reason why the benefit of such rule should be denied to the plaintiff where under the events at issue, more than one party may be the source of injury to the plaintiff for otherwise he would be limited in the use of, or be completely denied the benefit of the rule. In Metz the Supreme Court said that whether the doctrine applies in a given case is a question of law for the trial court. We believe that these conclusions dispose of the contentions of Erie that the court erred in refusing to strike par 8 to Count I. Defendant contends that the case must be remanded for error in the giving of instructions. His objection to plaintiff's instruction #20 is that it permits the jury to consider the case upon the theory of res ipsa loquitur, as well as upon the allegations of specific negligence. The matters hereinabove discussed dispose of this contention. [6] There is objection to Brinkoetter's instruction #6 which may be summarized as an issues instruction relating to negligence alleged as to Erie and as to the defendant Brinkoetter. It is contended that as to Erie there is no evidence in the record as to certain matters *161 stated in the instruction to be alleged in the complaint. The Abstract discloses that at the conference on instructions Erie simply made the objection that the evidence did not support all of the charges. This does not meet the rule that specific objections to instructions must be made at the conference on instructions. Vasic v. Chicago Transit Authority, 33 Ill. App.2d 11, 180 NE2d 347. The court's comment indicates that he believed that those matters not supported by the evidence had been omitted from the instruction. Under such circumstances we do not believe that there is reversible error. [7] Erie urges that the cause must be reversed and remanded by reason of the fact that a juror on voir dire indicated that he was not interested in any lawsuits then pending in court, but that subsequent to the trial, counsel discovered that he had been defendant in a lawsuit and was, at the time of trial, a plaintiff in a pending cause. Erie does not contend that it was, in fact, prejudiced by the juror sitting upon the panel, but says that the prejudicial effect cannot be calculated. It indicates that it could have challenged the juror, though it is not claimed that it would have done so. In Department of Public Works & Buildings v. Christensen, 25 Ill.2d 273, 184 NE2d 884, it was alleged that the party would not have accepted the juror if a true answer had been given. The Supreme Court there held that the motion for a new trial would be denied unless it was shown not only that the juror answered falsely, but also that prejudice resulted. Erie cites the case of People v. Ortiz, 320 Ill. 205, 150 NE 708, which may be distinguished because in that case the juror had actually expressed hostility to the defendant which he had concealed. [8] Erie urges that the judgment must be reversed because of a reference to insurance introduced during cross-examination in behalf of the defendant Brinkoetter. One George Harper testified in behalf of the plaintiff as an expert witness who had examined the boiler following *162 the explosion. It appears that he had originally been requested to make the examination by a representative of the company insuring Erie. The name of the insurance company was given in answer to a question to whom he had delivered his report. The trial court sustained an objection to a question as to what party was covered and an objection as to whether the insurance company represented Erie. The trial court, while indicating disapproval of counsel's action, denied the motion for a mistrial. It is clear that plaintiff did not, in any way, precipitate this issue. Under the circumstances of this case, the proceedings clearly indicated to the jury that certain insurance companies were to be the beneficiaries of a judgment for plaintiff. This fact would seem to indicate little probability of prejudice as between insurance companies upon the issue of liability. Edwards v. Hill-Thomas Lime Co., 378 Ill. 180, 37 NE2d 801. Upon the possibility of prejudice regarding the issue of damages, the amount of the verdict is slightly less than the amount paid by plaintiff to Erie for the boiler. Insofar as counsel may have attempted to create prejudice as between the parties defendant, the verdict of the jury is joint and they seem to make no distinction. Under the circumstances of this case, we conclude that there was no abuse of discretion by the trial court in refusing to grant a mistrial. Isenhart v. Seibert, 6 Ill. App.2d 220, 127 NE2d 469. [9] Upon consideration of the issues of law, we conclude that the trial court did not err in refusing to direct a verdict or enter a judgment n.o.v. upon the several motions made by Erie, and that, from an examination of the evidence, the verdict of the jury is not contrary to the manifest weights of the evidence. Taken with the case was plaintiff's motion to dismiss as a "use plaintiff" the Niagara Fire Insurance Company. The effect of such dismissal is to reduce the amount of *163 the judgment in the sum of $4,873.05. The motion is allowed and the judgment ordered reduced in said amount. The judgment of the trial court is affirmed, but the cause is remanded with directions to enter judgment in the amount due by reason of the dismissal of the party plaintiff pursuant to motion. Affirmed as modified. SMITH and CRAVEN, JJ., concur.

994 A.2d 1040 (2010) 202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey. May 19, 2010. Petition for Certification Denied.

MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that: 1. Marvin Burton, the defendant below, appeals from the denial by the Superior Court of a Rule 61 motion for post-conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in part, on a claim of ineffective assistance of counsel. Given the serious nature of the charges, the fact that Burton's Rule 61 motion was filed pro se, and that the alleged new evidence has not yet been considered by the Superior Court, we remand for further proceedings limited to Burton's ineffective assistance of counsel claim. 2. Burton was arrested on October 6, 2004, and indicted on October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, the alleged victim, who was eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton's parents' house in 2004, with the two most serious incidents allegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted on all charges. 3. Because of prior convictions for Third Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual offender under 11 Del. C. § 4214.[1] On October 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed special conditions, including a no contact order and sex offender registration. 4. After sentencing, defense counsel filed a notice of appeal on Burton's behalf and a motion to withdraw pursuant to Supreme Court Rule 26(c). The State filed a motion to affirm. After reviewing the record, this Court determined that Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the motion to affirm.[2] 5. On August 16, 2007 Burton moved pro se for post-conviction relief, raising multiple claims including ineffective assistance of counsel.[3] Burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him to testify. Rather, he advised Burton not to take the stand for the strategic purpose of avoiding cross-examination on Burton's prior convictions. After receiving that advice, Burton agreed and chose not to testify. Trial counsel further explained that he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony Burton claimed, or that they had no information helpful to Burton's defense. 6. On June 3, 2008, the Superior Court denied Burton's motion without a hearing, finding that Burton's arguments were all without merit.[4] On June 30, Burton filed a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf. 7. Although Burton advanced numerous claims of error in his motion for post-conviction relief, on appeal he advances only one—that the Superior Court erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burton to testify at trial.[5] 8. The State has moved to strike certain affidavits and information included in Burton's appendix that were not part of the record on appeal. These affidavits include: (i) a statement by Marvin Burton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through September 2004"; and (ii) a statement by Stacie Brittingham (Burton's sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent's residence from late July through September 2004 and that that issue was not raised in questioning during her testimony at trial. Also included was a statement by Eric Morris that (i) "he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim . . . did not live at Marvin Burton, Sr. and Vivian Burton's residence from late July through September 2004;" and that (ii) "I would also have testified that [the alleged victim] lived with me approximately 3 weeks during the end of July and August 2004 and she stayed with other individuals until the month of September 2004. . . ." 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court,[6] and we will not consider such supplemental affidavits. For new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence.[7] Here, however, Burton moved for post-conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered.[8] For that purpose a remand is appropriate. NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffective assistance of counsel claim. Jurisdiction is not retained. NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing as an habitual criminal). [2] Burton v. State, 907 A.2d 145, 2006 WL 2434914, at *1 (Del. 2006) (Table). [3] Burton claimed that: (1) the indictment was illegal; (2) a Batson violation had occurred; (3) a juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentence was illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008). [4] See State v. Burton, 2008 WL 2359717, at *1-6. [5] "Appellant's counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial." [6] Sup. Ct. R. 8; Merritt v. State, 219 A.2d 258, 260 (Del. 1966); Draper v. State, 146 A.2d 796, 800 (Del. 1958); see also Gateley v. Gateley, 832 A.2d 1251, 2003 WL 22282584, at *2 n.7 (Del. Oct. 1, 2003) (Table) (declining to review documents presented for the first time on appeal). [7] Compare Merritt, 219 A.2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 A.2d at 800 (refusing to consider new evidence on appeal). [8] See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d 476, 1998 WL 309819 (Del. May 19, 1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals); see also In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro se litigants some leeway).

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3 Md. App. 266 (1968) 238 A.2d 920 MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. 102, September Term, 1967. Court of Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. PER CURIAM: This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I.H. Hammerman, sitting *268 in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act. As stated by Judge Hammerman in his memorandum opinion, the applicant raised the following contentions: 1. That petitioner was the subject of an illegal arrest for the reasons that: a. He was not a resident of the house in which he was arrested, b. The police had no probable cause to arrest him, c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession. 2. That the police gave perjured testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge Hammerman stated that: "Petitioner's counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time." The mere fact of an illegal arrest is not grounds for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate *269 that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. Judge Hammerman states that the rule as to incompetence of counsel is "that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial." Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded "a genuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner v. State, 318 F.2d 852 (4th Cir.1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65. However, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates." As to the second contention, we accept the lower court's finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108. Application denied.

818 F.2d 878 Comegysv.V.A. 87-3018 United States Court of Appeals,Federal Circuit. 1/26/87 MSPB, 31 M.S.P.R. 293 VACATED AND REMANDED

J-S55030-18 2019 PA Super 59 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PRINCE ISAAC Appellant No. 389 EDA 2018 Appeal from the PCRA Order Entered December 21, 2017 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0002120-2007 BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E. OPINION BY STABILE, J.: FILED FEBRUARY 26, 2019 Appellant, Prince Isaac, appeals from the December 21, 2017 order denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. Appellant represented himself at trial after a defective waiver-of-counsel colloquy—the trial court never apprised Appellant of the elements of the charged offenses.1 Appointed direct appeal counsel did not raise this issue. On collateral review, Appellant claimed direct appeal counsel rendered ____________________________________________ 1 “To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge […] shall elicit […] that the defendant understands the nature of the charges against the defendant and the elements of each of those charges[.]” Pa.R.Crim.P. 121(A)(2)(b). J-S55030-18 ineffective assistance. The PCRA court originally denied relief, but a three- judge panel of this Court reversed, concluding that the defective waiver colloquy was an issue of arguable merit.2 We remanded to the PCRA court for an assessment of counsel’s strategy and the prejudice, if any, to Appellant. The PCRA court once again denied relief, and this timely appeal followed. The prior panel quoted the underlying facts: [Appellant] and his brother and co-conspirator, Shamek Hynson [(Hynson)], had a powerful motive to kill the victim, Omar Reid [(the victim)], on October 18, 2004. The murder was an act of retaliation against [the victim] for an incident involving another one of their brothers—Ramek Neal—that took place nearly one year earlier. On November 5, 2003, at approximately 10:30 p.m., Neal and another individual broke into [the victim’s] apartment at 416 Victoria Drive, in the Regency Park complex located in Coatesville, Chester County, Pennsylvania. Neal brandished a pistol while demanding [the victim’s] property. [The victim] fought back and in self-defense shot Neal, leaving Neal paralyzed from the neck down. This November 2003 incident was the subject of subsequent family meetings attended by both [Appellant] and Hynson. On October 18, 2004, at approximately 11:00 p.m., [Appellant] drove Hynson to [the victim’s] apartment at 416 Victoria Drive in a Kia automobile that had been taken from a couple in Lancaster, Pennsylvania, to be used in the murder. Hynson got out of the Kia and knocked on [the victim]’s front door. As [the victim] opened the door, Hynson asked, “Are you Omar?” and then shot [the victim] six times. Shell casings were ejected from Hynson’s pistol and left at the murder scene. [The victim] collapsed and died on top of his five-year-old son, who had been on the living room floor near the front door. After the shooting, [Appellant] gestured to Hynson, from inside the Kia, to “hurry up.” This was observed by a witness looking out the window of her ____________________________________________ 2 We affirmed the PCRA court’s denial of relief on Appellant’s remaining issues, and our Supreme Court denied allowance of appeal. Direct appeal counsel’s handling of the waiver colloquy is the sole remaining issue. -2- J-S55030-18 apartment. Hynson ran to the Kia, which was waiting for him with the front passenger’s door open. After Hynson got into the Kia, he closed the door, and [Appellant] sped away from the scene. A police officer happened to be driving into the Regency Park complex when a 911 dispatcher advised him of the shooting. The officer spotted the Kia and gave chase. During the chase, the murder weapon—a Hi-Point .380—was thrown from the car into the brush next to a railroad track. Due to the wet roadway, [Appellant] lost control and crashed the Kia into a ditch. [Appellant] and Hynson fled in different directions, and neither was apprehended by police at that time. Other individuals in [Appellant’s] Buick Riviera (another getaway vehicle) had been waiting, as planned, near the Regency Park complex and observed the police chasing the Kia to the location in Coatesville where [Appellant] had earlier switched from driving his own car, the Buick, and begun driving the Kia. They picked up Hynson, and Hynson told them that he had “just shot a man,” that he and [Appellant] were being chased, and that [Appellant] was still running from the police. Hynson and others then drove around Coatesville looking for [Appellant] and trying to find the gun that had been “tossed” during the getaway chase. Neither [Appellant] nor the gun was located, so they visited Ramek Neal to advise him of what happened and then returned to Lancaster. [Appellant] also made his way back to Lancaster. When he arrived, he was wet, he had a gash on his head, and his clothing was ripped. [Appellant] told his friends that, while being chased by the police, he had crashed the Kia and then had to run on foot. [Appellant’s] fingerprints were found on the interior driver’s door window of the crashed Kia. DNA testing confirmed the presence of Hynson’s blood on the interior passenger’s side of the Kia. Gunshot residue was also found inside the Kia. The murder weapon was found almost a year later by a woman walking her dog near the railroad tracks along [Appellant’s] escape route. That weapon was traced back to a straw purchase in North Carolina made by Tolanda Williams, the mother of Hynson’s child. Williams testified that during the week before the murder, she went with [Appellant] and Hynson to several pawn and gun shops in [Appellant’s] Buick, to be the straw purchaser of guns. The tag number of [Appellant’s] Buick was written down by one of the shop owners who became suspicious of one of the transactions. -3- J-S55030-18 During cross-examination, the gun shop owner identified [Appellant] as the driver of the Buick. The Hi-Point .380 murder weapon was also used by Hynson to shoot Edward Cameron in Lancaster at approximately 4:30 p.m. on October 18, 2004—less than seven hours before [the victim] was murdered in Coatesville. Shell casings from the two shootings were all matched to the Hi- Point .380 found along the escape route. Cell phone records indicated that [Appellant’s] cell phone was active and used in the Coatesville area during and after the time of the murder. Isaac, 2016 WL 5210891, at *1–2. At the conclusion of a six-day trial, the jury found Appellant guilty of first-degree murder and conspiracy. On July 8, 2009, the trial court sentenced Appellant to life in prison. This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA petition on November 12, 2013.3 Presently, Appellant argues the PCRA court erred because counsel had no reasonable strategic basis for failing to raise the inadequate waiver colloquy on direct appeal, and because Appellant would have received a new trial had counsel challenged the defective waiver colloquy. Appellant’s Brief at 4. In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court’s factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court’s legal conclusions de novo. ____________________________________________ 3 Pursuant to 42 Pa.C.S.A. § 9545(b)(1) and SUP CT. R. 13, the timeliness deadline was November 13, 2013. -4- J-S55030-18 Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) (en banc). Counsel is presumed effective, and a PCRA petitioner asserting otherwise bears the burden of proof. Id. at 779-80. Specifically, the petitioner must prove by a preponderance of the evidence that (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis in support of the action or inaction; and (3) the petitioner suffered prejudice, i.e., the outcome of the proceeding in question would have been different but for counsel’s error. Id. at 780. A petitioner’s failure to prove any one of these three prongs is fatal to the claim. Id. The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v. Clyburn, 42 A.3d 296, 298 (Pa. Super. 2012).4 When a defendant wishes to waive the right to counsel, the trial court is “ultimately responsible for ensuring that the defendant is questioned about the six areas [specified in Rule 121] and for determining whether the defendant is indeed making an informed and independent decision to waive counsel.” Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005) (quoting Commonwealth v. McDonough, 812 A.2d 504, 508 (Pa. 2002)), cert. denied, 546 U.S. 1020 (2005). Specifically, “it is incumbent on the ____________________________________________ 4 This Court decided Clyburn two days before our affirmance of Appellant’s judgment of sentence on direct appeal. Thus, it was not available to appellate counsel when she filed her Pa.R.A.P. 1925(b). Nonetheless, Clyburn relied on precedents. -5- J-S55030-18 court to fully advise the accused [of the nature and elements of the crime] before accepting waiver of counsel.” Clyburn, 42 A.3d at 299 (quoting Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 102 (Pa. Super. 1965)) (brackets added in Clyburn). A “penetrating and comprehensive colloquy” is mandatory, regardless of the defendant’s experience with the system. Id. at 300 (quoting Commonwealth v. Owens, 750 A.2d 872, 876 (Pa. Super. 2000)). “Failure to conduct a thorough, on-the-record colloquy before allowing a defendant to proceed to trial pro se constitutes reversible error” on direct appeal. Id. A defendant also has a constitutional right to self-representation. Clyburn, 42 A.3d at 298; United States v. Isaac, 655 F.3d 148, 153 (3d Cir. 2011), cert. denied, 566 U.S. 1029 (2012). This right prevents the Commonwealth from bringing a defendant into court and forcing a lawyer on him. Commonwealth v. Starr, 664 A.2d 1326, 1334-35 (1995). In other words, the right to counsel is intended as “an aid to a wiling defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.” Commonwealth v. Tejada, 188 A.3d 1288, 1295 (Pa. Super. 2018) (quoting Faretta v. California, 422 U.S. 806, 820 (1975)). We now turn to the facts of this case. The remand record reveals that Appellant was uncooperative during two separate waiver colloquies. At the first one, on September 18, 2008, Appellant repeatedly refused to answer the -6- J-S55030-18 trial court’s colloquy questions because he believed the court lacked jurisdiction over him. N.T. Hearing, 9/18/2008, at 15-22. Appellant’s uncooperative behavior led the trial court to have him gagged. Id. at 27. Eventually, the gag was removed and the trial court attempted a colloquy. Appellant stated that he did not know the elements of criminal homicide, and that he was unable to list the elements of the charged offenses. Id. at 43, 56. The trial court did not explain the elements to Appellant. Ultimately, the court denied Appellant’s request to represent himself based on Appellant’s insufficient understanding of the law. Id. at 59-62. At the second hearing, on October 2, 2008, Appellant repeatedly referred to an “affidavit of specific negative averment” that he apparently attempted to file and serve on the trial court, among others. N.T. Hearing, 10/2/2008, at 6-8. Appellant apparently believed that the trial court’s “default” in failing to respond to his affidavit rendered the criminal proceedings against him invalid. Id. at 10. Despite Appellant’s failure to cooperate with a waiver colloquy the trial court granted Appellant’s request to represent himself. Id. at 29. The court noted that Appellant’s stated, at the September 18, 2008 hearing, that he did not understand the elements of the charged offenses. Id. at 31. Even so, the court did not describe the elements of the charged offenses to Appellant. At the May 5, 2017 PCRA hearing ordered by the previous panel of this Court, direct appellate counsel, Brenda Jones, testified that her appointment -7- J-S55030-18 began in 2007. N.T. Hearing, 5/2/17, at 10. Another appointed attorney was first chair, and Jones was to serve as death penalty counsel. Id. Jones remembered the waiver colloquies as contentious. Id. at 12. Jones testified that Appellant was adamant about his decision to represent himself: [THE COURT:] On the basis of your knowledge of [Appellant] and at the time of the second hearing, on his waiver of counsel, do you believe that if I as the trial judge had specifically outlined each and every element of each and every charge against him, that he would have under those circumstances changed his mind about wanting to represent himself? [JONES]: Your Honor, no. I always thought that he wanted to represent himself, Judge. I never thought—I would say, this is my opinion, that it wouldn’t have made any difference. THE COURT: Okay. When you were observing him during the course of the, at least the second hearing on self- representation, when combined with the first hearing on self- representation, how adamant was he on a scale of one to ten, ten being the highest and most adamant, about representing himself? [JONES]: Your Honor, I would say he was a ten. Id. at 20. Procedurally, Jones was appointed to represent Appellant after he filed a pro se notice of appeal and a pro se Pa.R.A.P. 1925(b) statement. Id. at 18. Jones filed a motion for an extension of time to file a supplemental statement, pending completion of transcripts. Id. The trial court granted one such motion, but did not grant a second extension while Jones was still awaiting several transcripts, including the waiver colloquy transcripts. Id. at 18, 25, 28. In any event, Jones testified that she recalled from her presence at the September 18 and October 2, 2007 hearings that Appellant was not -8- J-S55030-18 aware of the elements of the charged offenses. Id. at 30. On appeal, Jones challenged Appellant’s competency to represent himself, rather than the validity of the colloquy. Id. at 32-33. She believed his nonresponsive answers to the trial court’s questions and his concern with matters irrelevant to his defense called his competency into question. Id. at 33. This Court found the competency issue waived for lack of an objection at trial. Commonwealth v. Isaac, 46 A.3d 830 (Pa. Super. 2012) (unpublished memorandum, at 10); appeal denied, 50 A.3d 125 (Pa. 2012). We also noted that Appellant did not specifically challenge the validity of the waiver colloquy. Id. For this reason, the previous collateral review panel of this Court concluded Appellant has not previously litigated the issue before us. See Isaac, 2016 WL 5210891, unpublished memorandum at *3-4. The PCRA court found that the record was unclear as to counsel’s strategic basis for not challenging the waiver colloquy.5 The PCRA court found Appellant’s failure to prove prejudice dispositive. PCRA Opinion, 12/21/2017, at 3. Ultimately, we agree. Therefore, we will focus our analysis on this element. In Commonwealth v. Pou, ___ A.3d ____, 2018 WL 4925254 (Pa. Super. October 11, 2018), this Court considered circumstances similar to the ____________________________________________ 5 The PCRA court did not make any finding on counsel’s strategy, noting only that “[t]he testimony offered by appellate counsel at the hearing of May 2, 2017 did not conclusively answer this question. PCRA Court Opinion, 12/21/17, at 3. -9- J-S55030-18 instant case—the appellant waived his right to counsel at trial after a defective colloquy and appointed direct appeal counsel failed to raise the issue. In Pou, the trial court failed to apprise the appellant of the applicable statutory maximum sentences or inquire into his age, educational background, and ability to comprehend the proceedings. Id. at *1-2. There, as here, a panel of this Court found the issue to be of arguable merit and remanded for further proceedings after the PCRA court denied relief without a hearing. Id. *2. On remand, the PCRA court found that counsel had a reasonable strategic basis for choosing not to raise the issue, but this Court rejected that argument on appeal. Id. at *3. Instead, we concluded the petitioner failed to demonstrate prejudice even though the petitioner would have received a new trial had counsel challenged the Rule 121 colloquy on direct appeal. Id. at *4. “The failure to raise that claim was doubtlessly prejudicial, but as we shall explain it does not rise to the level of Pierce prejudice.” Id. The reference is to Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), wherein the Pennsylvania Supreme Court articulated the three-prong ineffective assistance of counsel analysis, in accord with the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668 (1984). As set forth above, a PCRA petitioner must normally plead and prove that counsel’s error was prejudicial within the meaning of Pierce. In limited circumstances, pursuant to United States v. Cronic, 466 U.S. 648 (1984), prejudice can be presumed on collateral review. - 10 - J-S55030-18 The Pou Court relied on Weaver v. Massachusetts, 137 S.Ct. 1899 (2017), in which the United States Supreme Court explained that an error that would invalidate a conviction on direct appeal need not necessarily do so on collateral review. In Weaver, the defendant argued that trial counsel was ineffective for failing to object to the trial court’s order closing the courtroom to the public. Id. at 1905-06. Had counsel raised the issue on direct appeal, the defendant would have received a new trial. Id. On collateral review, however, the Weaver Court held that the petitioner failed to demonstrate prejudice: As explained above, not every public-trial violation will in fact lead to a fundamentally unfair trial. Nor can it be said that the failure to object to a public-trial violation always deprives the defendant of a reasonable probability of a different outcome. Thus, when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, […] to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair. Id. at 1911 (internal citations omitted). Consistent with Weaver, the Pennsylvania Supreme Court has held on several occasions that the absence of harmless error for purposes of direct appeal does not equate to presumed prejudice on collateral review. In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), the trial court failed to comply with Rule 708(C)(2) of the Rules of Criminal Procedure, which requires the trial court to state on the record its reasons for the sentence it - 11 - J-S55030-18 imposes after a violation of probation (“VOP”). Id. at 1129; Pa.R.Crim.P. 708(C)(2). The Supreme Court noted that, “in a direct review context, Rule 708 operates in a fashion which is not unlike Cronic; prejudice (or rather the absence of harmless error) will be presumed from the failure to comply.” Id. at 1129-30. Once a Rule 708 procedural complaint has been waived, however, and a derivative claim is raised under the guise of ineffective assistance of counsel, there is no reason to presume Sixth Amendment, Strickland prejudice from the VOP court’s unobjected-to failure to comply with Rule 708. Derivative claims of ineffective assistance of counsel are analytically distinct from the defaulted direct review claims that were (or could have been) raised on direct appeal. Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 572–73 (2005). As noted, Strickland requires a showing of actual prejudice, not the presumed prejudice arising from Cronic, nor the harmless error standard that governs ordinary claims of trial court error on direct review, nor the presumption of harm arising on direct review of Rule 708 claims. This Court has long recognized the distinction between Strickland prejudice and the harmless error standard applicable in the direct review context, and this distinction can be outcome- determinative. Id. at 1130. Likewise, in Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 884 (2008), our Supreme Court refused to presume prejudice where the trial court failed to conduct an oral colloquy before permitting the defendants to waive their right to a jury trial pursuant to Pa.R.Crim.P. 620. The Mallory Court also explained the distinction between a waiver colloquy and the underlying right. “A waiver colloquy is a procedural - 12 - J-S55030-18 device; it is not a constitutional end or a constitutional ‘right.’” Id. at 697. Further, “[A]n on-the-record colloquy is a useful procedural tool whenever the waiver of any significant right is at issue, constitutional or otherwise, e.g. waiver of a trial, waiver of the right to counsel, waiver of the right to call witnesses, waiver of the right to cross-examine witnesses, waiver of rules-based speedy trial time limits, etc. But the colloquy does not share the same status as the right itself. Id. (emphasis added). The Supreme Court reasoned that a constitutional, structural error creating presumed prejudice under Cronic would have occurred if, for example, a timely jury trial demand was wrongly denied. Id. at 697. Counsel’s effectiveness during a waiver colloquy, on the other hand, is “far removed” from a structural constitutional error. Id. On collateral review, therefore, when the issue is counsel’s effectiveness, a “presumptively-valid waiver […] must be analyzed like any other ineffectiveness claim.” Id. at 698. That is, the prejudice analysis must encompass the “totality of relevant circumstances.” Id. In the context of a jury trial waiver, those circumstances could include “the defendant’s knowledge of and experience with jury trials, his explicit written waiver (if any), and the content of relevant off-the-record instructions counsel had with his client.” Id. The defendant must show that his understanding of the jury waiver was impaired by counsel’s performance, and that he would have elected a jury but for counsel’s performance. Id. at 702. - 13 - J-S55030-18 Later, in Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), the PCRA petitioner challenged counsel’s failure to object to a defective waiver of counsel colloquy. The Supreme Court held that, “[t]o establish prejudice, the petitioner must demonstrate a reasonable probability that but for counsel’s ineffectiveness, he would not have waived the right at issue.” Id. at 263-64. We now turn back to Pou, which, like the instant matter, concerned appellate counsel’s failure to raise a defective waiver colloquy on direct appeal. We acknowledged there was “no doubt” the petitioner would have received a new trial had counsel raised the issue on direct appeal. Id. at *6. Consistent with Weaver and our State Supreme Court precedents, however, we concluded the technical deficiency under Rule 121 was not sufficient, in and of itself, to establish prejudice on collateral review. Id. at 7-8. That is, the trial court’s failure to comply with the technicalities of a rule does not amount to a structural error warranting presumed prejudice. Id. The United States Constitution requires that a defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. at *9 (quoting Faretta, 422 U.S. at 835). Therefore, “Rule 121 goes farther than what the United States Constitution requires” and “a technically-deficient - 14 - J-S55030-18 waiver of counsel colloquy is not the same as a constitutionally deficient waiver of counsel.” Id.6 Instantly, Appellant relies on case law governing direct review. Without expressly acknowledging it, he presents this case as one involving structural error and presumed prejudice pursuant to Cronic. Specifically, Appellant’s reliance on Clyburn is misplaced. There, the trial court failed to inform the defendant of the charges against him and the elements of each of those charges. Clyburn, 42 A.3d at 301. This Court therefore found itself “constrained” to hold that the defendant’s waiver of counsel was invalid, and that “the failure to explain the elements of the charged crimes requires us to vacate the judgment of sentence.” Id. (citing Commonwealth v. Houtz, 856 A.2d 119, 130 (Pa. Super. 2004)). As Clyburn was decided on direct appeal, it is inapposite. As was the case in Pou, Appellant fails to distinguish between a technically deficient waiver colloquy and a constitutionally deficient waiver ____________________________________________ 6 We observe that, in Commonwealth v. Meehan, 628 A.2d 1151 (Pa. Super. 1993), appeal denied, 649 A.2d 670 (Pa. 1994), this Court held that, on collateral review, the PCRA court need not conduct a full colloquy before permitting the petitioner to waive counsel, as several of the mandatory inquiries are inapplicable on collateral review (Meehan was decided under Rule 318, the predecessor to current Rule 121). The Meehan Court noted the petitioner’s failure to assert “that he would not have waived his right to counsel if more specific inquiry had been made into the relevant areas.” Id. at 1159. Meehan is not directly applicable here because it governs a petitioner’s statutory right to counsel on collateral review. - 15 - J-S55030-18 colloquy, and he does not argue that the instant case presents an example of the latter. The deprivation of the colloquy, as we have already explained, does not share the same status as the deprivation of the right itself. Mallory, 941 A.2d at 697. Under Mallory, a structural error would have occurred here if, for example, Appellant demanded and was refused counsel. In fact, Appellant had two appointed lawyers representing him when he insisted on his right to self-representation and failed to cooperate with the trial court’s Rule 121 colloquy.7 ____________________________________________ 7 Regarding Appellant’s behavior at the colloquies, the PCRA court cited Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983), in which the defendant was unrepresented by counsel at his preliminary hearing. This Court considered former Rule 318(b), which required a knowing, intelligent, and voluntary waiver before a defendant proceed without counsel at a preliminary hearing. The trial court attempted to conduct a waiver colloquy, but the defendant refused to answer questions, refused to sign a written colloquy, and eventually turned his back to the judge. This Court wrote: We believe that appellant’s contemptuous behavior constituted a knowing, voluntary and intelligent waiver of counsel. To require a written waiver in a case such as this could create a ‘Catch-22’ situation in that a ‘court-wise’ criminal defendant could continually appear in court without counsel on the date scheduled for his trial but refuse to execute a written waiver of his right to counsel making it impossible to proceed with his trial. Obviously, such a situation would render the judicial system a mockery. Id. at 1341. Further, this Court found that any error was harmless because the defendant failed to explain how he was prejudiced by the absence of counsel at a preliminary hearing. Id. - 16 - J-S55030-18 In light of the foregoing, we conclude Appellant is not entitled to relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/26/19 ____________________________________________ The “Catch-22” problem does not arise here because Appellant had appointed counsel. Further, given Appellant’s failure to attempt to prove prejudice in accord with the cases discussed in the main text, we need not decide whether Bastone, decided under Rule 318, applies with equal force to Rule 121. Likewise, we need not consider the Commonwealth’s assertion that Appellant’s behavior resulted in forfeiture of his right to counsel. - 17 - 

694 So.2d 674 (1997) THE MISSISSIPPI BAR v. Jimmy D. McGUIRE. No. 94-BD-00520-SCT. Supreme Court of Mississippi. May 15, 1997. ORDER This matter is before the Court upon the Motion for Indefinite Suspension Pending Appeal filed by the Mississippi Bar. The complaint involves McGuire's conviction of the crime of filing a false currency reporting form in violation of 26 U.S.C.A. §§ 6050I(f)(1)(B), 7206(1). This Court entered its order on December 15, 1994, granting the Bar's request for indefinite suspension pending appeal. On January 21, 1997, the Bar provided certification that the Fifth Circuit Court of Appeals affirmed the judgment of the District Court, which affirmed McGuire's conviction, and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of the offense of filing false currency reporting forms, a felony, and that pursuant to Rule 6, Rules of Discipline, he should be disbarred. IT IS THEREFORE ORDERED as follows: 1. Jimmy D. McGuire be, and hereby is, DISBARRED from the practice of law. 2. This order shall constitute notice of disbarment in this cause. 3. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of each court shall enter this order upon the minutes of their respective courts. 4. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Clerks of the United States District Courts in and for Mississippi, to the Clerk of the United States Fifth Circuit Court of Appeals, and to the Clerk of the Supreme Court. 5. Costs of the formal complaint should be, and hereby are, assessed against Jimmy D. McGuire.

Order Michigan Supreme Court Lansing, Michigan September 30, 2013 Robert P. Young, Jr., Chief Justice 146898 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack SHERELL STANLEY, Personal David F. Viviano, Representative of the ESTATE OF Justices SHERIDA STANLEY, Plaintiff-Appellee, v SC: 146898 COA: 301237 Kalamazoo CC: 2005-000601-NH KRISHNA MOHAN JAIN, M.D., Defendant-Appellant, and BORGESS MEDICAL CENTER, E. ANDERSON, C.R. BEGEMAN, T. BENSCHEL, M. GALLAGHER, A. KENDALL, SUZANNE SACKETT-MUMA, D. E. PEAKE, J. SHINABARGER, Z. SMITH, CHRIS THOMAS, and L. VROEGINDENWEY, Defendants. _____________________________________/ On order of the Court, the application for leave to appeal the February 19, 2013 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. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 30, 2013 h0923 Clerk 

RENDERED: FEBRUARY 18, 2016 TO BE PUBLISHED oSuprrittr Caurf TArttfurhu 2015-SC-000086-CL IN RE: F ROBERT A. WINTER, JR., PLAINTIFF AND CAMERON BLAU AND HONORABLE ALLISON JONES, INTERVENING PLAINTIFFS THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION COVINGTON, CIVIL NO. 14-119-ART HONORABLE STEPHEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS CHAIR, JUDICIAL CONDUCT COMMISSION, ET AL. OPINION OF THE COURT BY JUSTICE VENTERS CERTIFYING THE LAW Pursuant to CR 76.37(1), we granted the certification request of the United States District Court for the Eastern District of Kentucky (District Court), to provide the answer under Kentucky law to the following three questions and the associated sub-questions: Question 1: Canon 5A(1)(a) states that a judge or judicial candidate shall not "campaign as a member of a political organization." What constitutes "campaign[ing] as a member of a political  organization"? As applied to this case, would it include a candidate's statements in mailers identifying his political party, such as "I am the only Republican candidate for Judge" or "I am the Conservative Republican candidate for Judge"? Would a candidate's statement that his opponent was "the Democrat candidate for Judge" or the "Liberal Democrat for Judge" violate the Canon? Question 2: Canon 5A(1)(b) states that a judge or judicial candidate shall not "act as a leader or hold any office in a political organization." What constitutes "act[ing] as a leader or hold[ing] any office"? As applied to this case, would hosting events for a political party violate the Canon? Question 3: Canon 5B(1)(c) states that a judge or judicial candidate "shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements." What constitutes a false statement? As applied to this case, would it include a candidate who asks voters to "re-elect" her to a second term even though she was appointed to her first term? These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that "Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law." (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that Kentucky's judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court's questions. 2  I. FACTUAL AND PROCEDURAL BACKGROUND Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B(1)(c) (prohibiting judges or judicial candidates from making "false" or "misleading" statements). During the same election cycle, Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter's challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a leader or hold any office in a political organization"). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as "the only Republican candidate for Judge," or "the Conservative 3 Republican candidate for Judge" and identifying his opponent as "the Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party.' In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau's motion to prevent the JCC from enforcing the canons against him in the November 2014 election. Allison Jones was appointed by Governor Steve Beshear to the Kentucky Court of Appeals in July 2013. To retain the office to which she was appointed, Jones became a candidate in the November 2014 General Election. In October 2014, the JCC received a complaint alleging that Judge Jones had made false and misleading statements in speeches and campaign materials. The "false and misleading statements" referred to Jones' use of the word "re-elect" to describe her effort to retain the judicial position to which she had been appointed rather than "elected." Jones then intervened in Winter's District Court action, contending that Canon 5B(1)(c) (prohibiting false statements) was unconstitutional. The only issue presented in Jones' portion of the case is whether an incumbent judge who was appointed to office may properly use the 1 Blau also raised constitutional challenges to other judicial canons not at issue in the questions of law presently before us. 4 word "re-elect" to describe her effort to retain the office to which she was appointed but not elected. It is within the context of this litigation that the District Court requested that we certify the law on the questions addressed herein. II. GENERAL CONSIDERATIONS We begin with a few general considerations that guide our examination of the questions presented by the District Court. First, pursuant to the Kentucky Constitution, all judges and justices at every level of the state judiciary are selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we recognize that the judicial canons we address in this decision were designed to serve the state's compelling interest of encouraging an unbiased and impartial judiciary for the Commonwealth, and that the Commonwealth's interest is offset by restricting the political speech of only the few who volunteer to be a candidate for office, not their supporters, advocates, and non-candidate adversaries. The ultimate objective of our system of judicial selection is to achieve a delicate balance. On one side of the scales, we must foster and protect the people's prerogative to choose by direct vote the judges that preside locally and statewide. On the other side of the scales, we must create a political environment in which judges selected by the citizens are not tethered, or beholden to partisan political factions and their associated creeds. And, we must do so in a way that preserves the judiciary as an institution that is not partial to or biased against any political faction. 5  The federal judicial system achieves this balance by an effective but different approach. Rather than selecting judges by popular election, the federal system selects judges by the collaborative effort of the political branches, the executive and the legislative, based upon any and all factors including the nominee's political ties, beliefs, and political ideologies. The federal system achieves its assurance that judges are not beholden to political interests and factions by appointing them for life. With the lifetime tenure, federal judges are liberated from any ties or allegiance to the political factions that supported their ascension, and that might otherwise seek to influence them. The federal system secures the government's vital interest in an independent judiciary at the expense of the people's ability to choose and replace their judges. Kentuckians, like the citizens of most states, chose to achieve the same balance by alternate means. We have judges who must earn the public's respect and maintain the public's confidence by periodically entering and re-entering the arena of elective politics. Kentucky, like most states, assures the impartiality and integrity of the judiciary, not with a lifetime appointment, but through moderate restrictions on partisan activities set out in canons of conduct. The judicial canons at issue in this case perform the same function of keeping judges free from the potentially corruptive influences and appearances of partisan politics accomplished in the federal system by the lifetime tenure of judges. As such, the canons that make up our Code Judicial 6 Conduct advance a laudable and necessary goal that serves a vital interest of this Commonwealth. In the discussions of the judicial canons at hand, we are mindful that the public's trust in, and respect for, its judiciary is at stake. We accordingly are constrained to undertake a narrow view of those canons as we answer the questions posed by the District Court. At the same time we provide an interpretation that complies with controlling First Amendment case authorities, strict scrutiny, and other relevant, constitutional principles relating to vagueness, overinclusiveness, and underinclusiveness. III. STANDARDS OF REVIEW Our canons of judicial conduct are set forth in Supreme Court Rule (SCR) 4.300. The preamble to the canons states in part: The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It [of necessity] consists of broad statements . . . . The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances . . . . This litigation concerns the restrictions on the speech of judicial candidates in judicial elections. Because the First Amendment 2 reviles 2 The First Amendment provides that Congress "shall make no law . . . abridging the freedom of speech." The Fourteenth Amendment makes that prohibition applicable to the States. Stromberg v. California, 283 U.S. 359, 368 (1931). 7  restrictions on core political speech, 3 such restrictions are subject to the strict scrutiny standard. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665 (2015). 4 Under the strict scrutiny standard, "[a] State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." Id. Prior authorities have identified and held that there is a compelling governmental interest in encouraging an unbiased and impartial judiciary and in maintaining the integrity of the judiciary. See id. at 1666 (States have a compelling interest in preserving public confidence in the integrity of the judiciary). Those are precisely the interests addressed in the canons under review. We interpret the law, including the judicial canons now under review, by applying the plain and ordinary meaning of relevant text. Pearce v. University of Louisville, by & through its Board of Trustees, 448 S.W.3d 746, 749 (Ky. 2014). 5 We fundamentally undertake to construe the law so as to avoid an unconstitutional result. Caneyville Volunteer Fire Department v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009); Ballinger v. 3 Speech concerning public issues and the qualifications of candidates for elective office commands the highest level of First Amendment protection. See Eu v. San Francisco County Democratic Central Committee., 489 U.S. 214, 223 (1989). 4 This holding appears in Section II of Williams-Yulee, which was joined by only four Justices. However, the four dissenters likewise agree that strict scrutiny is the proper standard of review of laws constraining judicial campaign speech. Accordingly, it is now definitively established that strict scrutiny is the proper standard of review in judicial electioneering cases. 5 Of course, there is an obvious difference between our interpretation of legislative acts, in which our principal objective is to determine the intent of another body; here, the judicial canons we interpret were promulgated by this Court, and thus in this sense we are interpreting our own work. 8  Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015) (citations omitted). Of course this fundamental rule of construction also applies to the interpretation of the rules we promulgate. Summe v. Judicial Retirement and Removal Commission, 947(S.W.2d 42, 47 (Ky. 1997). Moreover, we accede to the decisions of the federal courts addressing important First Amendment issues relating to judicial candidate electioneering. Because recent federal decisions guide our interpretation of the canons at issue, we begin with a brief overview of their central holdings. In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the Supreme Court struck down a Minnesota judicial canon which prohibited candidates for judicial election from announcing their views on disputed legal or political issues. Proponents of the canon argued that it survived the strict scrutiny test because it served the compelling governmental interest of preserving the appearance of an impartial judiciary. The Court, however, concluded that the canon failed the strict scrutiny test because it did not advance the proffered interest. The Court held that the canon did not preserve the appearance of an impartial judiciary because it did not restrict speech advocating for or against particular parties or political factions; rather, it restricted candidates from expressing their own personal opinions on popular issues. The Court found no compelling state interest in suppressing judicial candidates' views on such issues. 6 6 See also J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991) (Panel of Special Justices) (Code of Judicial Conduct provision prohibiting all discussion of judicial 9  In Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004), the District Court considered Kentucky's Judicial Canon 5B(1)(c), which provided, in relevant part, that a judge or candidate to judicial office "shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [and] shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court[.]" In striking down the canon, the District Court held that the canon was unconstitutionally overbroad in that it was not limited to a ban on promises or commitments by candidates to rule a certain way on cases likely to come before them (which would be sustainable as furthering a compelling government interest in securing judicial open mindedness), and it consequently stifled the right of judges and candidates to speak out on issues and the corresponding right of voters to hear their views. Consistent with that determination the decision further held that judicial candidates cannot be prohibited from responding to election issue questionnaires inquiring into their positions on public issues. In Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010), the Sixth Circuit Court of Appeals held that a former version of Kentucky Judicial Canon 5A(2), which prohibited judges and judicial candidates from disclosing their party candidate's views on disputed legal or political issues unnecessarily violated constitutional free speech rights of judicial candidates). 10 affiliation in any form of advertising, or when speaking to a gathering, except in answer to a direct question by a voter in one-on-one or very small private informal settings, was unconstitutional because it was not narrowly tailored to advance the Commonwealth's interest in preventing a biased judiciary, or diminishing the role of political parties in judicial selection, and thus the canon facially violated free speech and associational rights. The Sixth Circuit reasoned that by prohibiting candidates from disclosing their party affiliations, the clause effectively prevented candidates from announcing their individual views on many issues to the extent that a party identification signals the judicial candidate's alignment with the views incorporated into a political party's platform. The decision further held that the canon was underinclusive for these additional reasons: the identification of the candidate's party affiliation was forbidden only when the candidate raised the point and could otherwise be disclosed by the candidate's supporters; judicial candidates were not restrained from disclosing their memberships or affiliations with other types of organizations that advocated political opinions, such as the Federalist Society or the ACLU, which may be more telling than one's actual party identification itself; and the canon did not prohibit judicial candidates from being members of a political party. Rather, it only prohibited them from announcing their particular party membership.? 7 Carey also held that our canon prohibiting a judicial candidate from personally soliciting funds was unconstitutional; however, that holding has been superseded by Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding restrictions on a judicial candidate's personal solicitation of campaign funds). 11  Most recently, and perhaps most importantly, the Supreme Court decided in Williams-Yulee that a Florida judicial canon restricting a judicial candidate's personal solicitation of campaign funds was constitutional because it was narrowly tailored to serve the compelling governmental interest in obviating the indecorous practice of an attorney who regularly practiced before a judge, or a litigant with a case pending before a judge, personally handing cash to the judge or being placed in the untenable position of rebuffing the judge's personal solicitation. See also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889 (2009) (holding that there is serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case has significant and disproportionate influence in placing a judge on the case by raising funds, or by directing a judge's election campaign, when the case was pending or imminent). With the above standards and constitutional limitations in mind, we now turn to the particular questions posed by the District Court in its certification of law request. IV. QUESTION I - CANON 5A(1)(A) The District Court's first question seeks certification of a broadly-stated question along with two more specific subparts. Canon 5A(1)(a) states as follows: Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity. A. Political Conduct in General. 12  (1) Except as permitted by law, a judge or a candidate for election to judicial office shall not: (a) campaign as a member of a political organization[.] (Emphasis added.) The section is further clarified by the following official commentary: A judge or a candidate for election to judicial office retains the right to participate in the political process as a voter. A judge or a candidate for election to judicial office may publicly affiliate with a political organization but may not campaign as a member of a political organization. Because the specific prohibition contained in Canon 5A(1)(a) (shall not . . . campaign as a member of a political organization) is limited by the introductory clause "except as permitted by law," our interpretation of the section is guided by the various First Amendment court decisions addressing judicial campaign issues as referenced above. A. Answer to Question 1: What constitutes "campaign[ing] as a member of a political organization"? The Terminology Section of SCR 4.300 defines a "political organization" as "denot[ing] a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office." The Democrat and Republican parties clearly fall within this definition. Carey held that a judicial candidate cannot be restrained from identifying himself as a member of a political party, and our current version of Canon 5 was promulgated in response to that decision. It follows that the canon does not, and indeed could not, reach that activity. In summary, a judicial candidate may identify himself to the public as a member of a political party. Carey v. 13 Wolnitzek, 614 F.3d 189; Commentary to Canon 5 ("a candidate for election to judicial office may publicly affiliate with a political organization"). Nevertheless, there is a vast difference between the permissible speech of a judicial candidate identifying herself as a member of a political party and the impermissibly deceptive conduct of representing herself as the nominee of a political party. The former statement would be true; the latter is by any standard, blatantly false. Canon 5A(1)(a) draws that distinction. The Canon 5 provision proscribing "campaigning as a member of a political organization" prohibits the dissemination of campaign materials and other public representations suggesting to the voters that the candidate is the endorsed judicial nominee of a political party. For example, a campaign representation such as "I am the Republican candidate for the 16th Judicial Circuit Court" is impermissible. There is no "Republican candidate" for that office; the assertion is materially false and misleading. See Canon 5B(1)(c) (prohibiting materially false statements). Political parties and factions do not select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a) merely recognizes and faithfully codifies this Constitutional reality. B. Answer to Question 1A: As applied to this case, would it include a candidate's statements in mailers identifying his political party, such as "I am the only Republican candidate for Judge" or "I am the Conservative Republican candidate for Judge"? As noted above, pursuant to Carey, prohibiting a judicial candidate from identifying himself as a member of a political party is unconstitutional and the present version of Canon 5A(1)(a) was drawn to comply with Carey. Therefore, the statement "I am the only Republican candidate for Judge" is permissible, as 14 long as it is true, because the message merely identifies the candidate as a Republican who is a candidate for judge, albeit the only one. It does not imply that the candidate is the nominee of the Republican Party, which would be prohibited. In contrast, the statement "I am the Conservative Republican candidate for Judge," transmits the message that the candidate is the formal nominee for the Republican Party. As discussed above, this is an impermissible depiction by the candidate of his status in the judicial race; the insertion of the modifier "Conservative" into the statement does not, in our view, dispel the disingenuousness of the statement. Under the current state of affairs of modern American politics, the Republican Party is commonly regarded as occupying the conservative side of the political spectrum, and so the addition of the modifier "Conservative" is surplusage, doing nothing to dispel the implied falsehood that the candidate is running for Kentucky judicial office as the formal candidate of the Republican Party. C. Answer to Question 1B: Would a candidate's statement that his opponent was "the Democrat candidate for Judge" or the "Liberal Democrat for Judge" violate the Canon? The statement by a candidate that his opponent is "the Democrat candidate for Judge" is an impermissible message to the voters. His opponent is not, in fact, the Democrat candidate for Judge. As previously explained, such candidates do not exist in Kentucky, and such a campaign message would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting materially false statements). 15  Similarly, a statement by a candidate that his opponent is "the Liberal Democrat for Judge" is likewise impermissible. For the identical reasons discussed above, the modern Democratic Party is widely acknowledged as falling within the liberal segment of the political spectrum. There is no meaningful difference between stating that someone is "the Liberal Democrat for Judge" as opposed to "the Democrat for Judge." Both phrasings imply the false and misleading message that the opponent is the Democratic Party nominee for judge. D. Summary In summary, judicial candidates may "affiliate," 8 that is "portray" themselves as members of a political party without restriction; what they may not do under Canon 5A(1)(b), in tandem with Canon 5B(1)(c), is portray themselves, either directly or by implication, as the official nominee of a political party. V. QUESTION 2 - CANON 5A(1)(B) The second question concerns Canon 5A(1)(b). This Canon states as follows: Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity. A. Political Conduct in General (1) Except as permitted by law, a judge or a candidate for election to judicial office shall not: 8 Merriam Webster defines "affiliate" as "to closely connect (something or - yourself) with or to something (such as a program or organization) as a member or partner[.1" http://www.merriam-webster.corn/dictionary/affiliate (January 2016). 16  (b) act as a leader or hold any office in a political organization. A. Answer to Question 2: Canon 5A(1)(b) states that a judge or judicial candidate shall not "act as a leader or hold any office in a political organization." What constitutes "act[ing] as a leader or hold[ing] any office"? "Holding any office" in a political organization means occupying a formal position with a recognized title or performing a function within the established organizational structure of an association whose principal purpose is to further the election or appointment of candidates to political office. An "office" in such an organization includes recognized titles such as chairman, director, secretary, treasurer, press secretary, precinct leader, membership recruiter, youth coordinator, and the like. "Acting as a leader" encompasses a less formal but broader range of participation. Matter of Disciplinary Proceeding Against Blauvelt, 801 P.2d 235, 238 (1990), 9 notes that Webster's Third New International Dictionary 1283 (1986), defines leader, among other ways, as "a person who by force of example, talents, or qualities of leadership plays a directing role, wields commanding influence, or has a following in any sphere of activity or thought." "Acting as a leader," therefore, captures efforts to advance the political agenda of the party in a less formal way through proactive planning, organizing, 9 Blauvelt addressed a judicial canon substantially identical to Canon 5A(1)(b) and held that a judge serving as a delegate to political party's county convention was a "leader" within meaning of the canon's prohibition against a judge acting as a "leader" in a political organization. 17 directing, and controlling of party functions with the goal of achieving success for the political party. These less formalized, leader-without-title, positions would include, for example, acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title, including as further discussed below, hosting political events. B. Answer to Question 2A: As applied to this case, would hosting events for a political party violate the Canon? Consistent with the definition of "acting as a leader," as just discussed, one who hosts an event for a political party is "acting as a leader" for the party. Merriam-Webster defines "host" as: "1 a: one that receives or entertains guests socially, commercially, or officially; b: one that provides facilities for an event or function . . . ." 1-0 Therefore, someone who provides the facilities for an event of a political party or officially receives the political party attendees is, indeed, acting as a "leader" of a political party. The "host" of an event, political or otherwise, uses the prestige of his or her name to promote the event and exerts a significant measure of control and authority over the event, more so, in our view, than the more passive political delegate function in Blauvelt. Perforce, a judicial candidate hosting a political event acts as a leader of that event and is, in turn, acting as a leader of the political party on whose behalf the political event is being held. Under Canon 5A(1)(b) that is prohibited conduct. 10 http://www.merriam-webster.com/dictionary/host (January 2016). 18  VI. QUESTION III - CANON 5B(1)(C) The final questions posed by the District Court concern the misleading speech prohibition by a judicial candidate contained in Canon 5B(1)(c). Canon 5B(1)(c) provides, in relevant part, as follows: B. Campaign Conduct. (1) A judge or candidate for election to judicial office: (c) shall not . . . with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements. A. Answer to Question 3: Canon 5B(1)(c) states that a judge or judicial candidate "shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements." What constitutes a false statement? A falser statement is a statement that is not factually true in the normal sense; that is, an untrue utterance. For example, it would include such statements as: "I graduated first in my class" when the candidate did not; "I have won all of my cases as an attorney" when the candidate had not; "I was an officer in the military" when the candidate was not; or "my opponent was convicted of a drug offense" when the opponent was not. 12 11 Merriam-Webster defines false as "not real or genuine: not true or accurate; especially: deliberately untrue: done or said to fool or deceive someone." http:/ / www.merriam-web sten com/ +dictionary/ false (January 2016) . 12 In United States v. Alvarez, 132 S. Ct. 2537 (2012), the Supreme Court held that false statements generally are not a category of unprotected speech exempt from the normal prohibition on content-based restrictions. Id. at 2547 (striking down a federal statute which prohibited lying about military awards). (Per opinion of Justice Kennedy, with three Justices concurring and two Justices concurring in the 19  The provision does not, however, cover expressions of opinion because expressions of an opinion do not implicate a statement that is not factually true. For example such statements as "Justice Stevens was the best Justice ever"; "Citizens United was the best decision ever"; or "my opponent is too liberal" are all expressions of opinion and not subject to Canon 5B(1)(c). In summary, Canon 5B(1)(c) extends only to statements made during a campaign which are objectively factually untrue and do not extend to expressions of subjective opinions or innocuous campaign-trail "puffing" ("I am the most qualified candidate in the state."). B. Answer to Question 3A: As applied to this case, would it include a candidate who asks voters to "re-elect" her to a second term even though she was appointed to her first term? The prefix "re" affixed to a verb implies that the action described in the verb has occurred on a previous occasion. 13 For example, if a television network announces that it will rerun a particular program, it has implicitly but definitively asserted that the program had been run on a prior occasion; it is implied that a soldier who re-enlists in the army had enlisted in the military on a prior occasion; and something can be reasserted only if it has previously been asserted. judgment). However, the Court pointedly exempted from the scope of the decision laws aimed at "maintain[ing] the general good repute and dignity of . . . government . . . service itself." Id. at 2546 (citing United States v. Lepowitch, 318 U.S. 702, 704, 63 S. Ct. 914, 87 L.Ed. 1091 (1943)). Because the canons we address fall squarely within this exception, we are persuaded that Alvarez does not apply here. 13 See generally http://www.merriam-webster.com/dictionary/re (January 2016). 20  Given this universally accepted convention of the English language, a candidate's request for voters to re elect her to a judicial office is an affirmative - assertion that she had been elected by voters to the same office on a prior occasion. A judge who holds her office by way of a gubernatorial appointment cannot honestly claim that she was elected to the office, and if she seeks to retain the office at the next election, she cannot honestly assert that she seeks to be re elected. Such an assertion would be a materially false statement, - deceptive to the public, and would run afoul of Canon 5B(1)(c). The opponents of the canon cite to various court decisions and news articles where the term "re-elect" was used to describe a judge who was seeking to retain an office attained by appointment rather than election. Using the term in news articles and other narratives to chronicle historic events is an informal and idiomatic phrasing, but it is nonetheless inaccurate. In contrast, when an incumbent judge uses the word "re-elect" as campaign stratagem to persuade the public that she acquired the office by the popular vote of the people rather than as the appointee of a governor, its use is calculated to mislead and deceive the voters. Accordingly, we distinguish these informal, idiomatic usages and regard these journalistic references as irrelevant to our review. VII. CONSTITUTIONAL REVIEW The closing step to interpreting a statute or other legal authority, such as the canons interpreted herein, is undertaking a final examination to ascertain that our interpretation complies with any existing constitutional mandates. We 21 have undertaken that review and are satisfied that our interpretations as expressed above fall well within the requirements of White, Carey, Williams- Yulee, and other applicable First Amendment authorities. Nevertheless, we are attentive that in its Injunction Order, the District Court expressed its skepticism regarding the constitutionality of each of the canons under review. In response to that skepticism, we emphasize that we are persuaded that Williams-Yulee resolves the District Court's criticism in favor of the interpretations expressed herein. For example, the District Court criticizes our campaign limitation, expressed in Canon 5A(1)(a), as being underinclusive 14 because it fails to address the practical reality that, in lieu of the candidate directly portraying himself as the favored candidate of a political party, his supporters and surrogates may undertake that same function. The District Court is correct; we do not purport to limit the campaign conduct of supporters and surrogates. But the Court's criticism ignores the fact that the compelling interest served by our canon is to insulate the judge personally from behaviors that directly undermine the impartiality and objectivity of the Kentucky Court of Justice. That others outside the judiciary may pursue these political objectives on behalf of the judge or judicial candidate does not in any way diminish our objective. If anything, it is a factor that favors the constitutionality of our canon by emphasizing its limited impact on political 14"[U]nderindusiveness can raise 'doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.' Williams Yulee, 135 S. Ct. at 1668. - 22 discourse. The objective is not to keep information hidden from the public; the objective is to keep the judge from compromising his or her integrity and impartiality by engaging in deceptive and misleading conduct. Williams-Yulee presented a very similar situation. While the Florida rules prohibited a judge from personally soliciting funds, responsible representatives were permitted to do so on her behalf. Against the underinclusiveness argument, the United States Supreme Court noted: "A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests." 135 S. Ct. at 1668. By the same force of reasoning, our Canon 5A(1)(a) is not underinclusive; 15 nor are the other judicial canons we have discussed. The District Court likewise criticizes our canons as overbroad in that they may be construed to extend beyond the range of prohibitable speech and reach non-prohibitable speech. 16 In drafting our canons, we strived to avoid overbreadth and the clarifications expressed herein should obviate that concern. In any event, Williams-Yulee addressed the same point and the same 15 And further, of course we have no jurisdiction over the judicial candidate's supporters and surrogates; however that does not mean we are powerless over those whom we do have jurisdiction from misleading the public into believing that they are the officially sanctioned nominee of a political party. 16 The overbreadth doctrine "is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). 23 compelling interests were at stake. There, the Supreme Court observed that "The First Amendment requires that [the personal solicitation canon] be narrowly tailored, not that it be 'perfectly tailored.' The impossibility of perfect tailoring is especially apparent when the State's compelling interest is as intangible as public confidence in the integrity of the judiciary." 135 S. Ct. at 1671 (citation omitted). The same principle applies in this situation as we strive to protect the democratic ideal of citizens choosing their judges and, at the same time, preserve the neutrality of the judicial branch by insulating judges from detrimental influences of partisan politics. Perhaps we have not achieved the ideal-but-elusive "perfect tailoring," but nevertheless our tailoring comports with the standard prescribed in Williams-Yulee. The District Court also suggests in its Injunction Order that the canons at issue are unconstitutionally vague; 17 however, as we discuss herein, a plain, ordinary, and common sense application of the language of the canons gives accurate guidance to a judicial candidate of what he may or may not do in a political campaign: he may not campaign as the nominee of a political party; he may not act as an office holder or leader, in the traditional sense of those terms, of a political party and he may not lie to the public on the campaign trail, although he is free to otherwise express his opinion on matters relating to himself, his opponent, and matters of public interest. It bears emphasis as 17 "[The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). 24 well that Kentucky's Judicial Conduct Commission maintains an ethics advisory structure which is available to judicial candidates seeking specific advice or guidance on campaign matters. VIII. CONCLUSION The law as set forth above is hereby certified to the United States District Court for the Eastern District of Kentucky. All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Venters, JJ., concur. Noble, J., concurs in part and dissents in part by separate opinion in which Wright, J., joins. NOBLE, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with Justice Venters' excellent analysis on all the issues in this case except for his answer to question IA, as to whether the statement "I am the only Republican candidate for judge" is permissible. I do not think it is. In the same discussion, he concludes that it is NOT permissible to say, "I am the conservative Republican candidate for judge." Both the term "only" and the term "conservative" are modifiers and immediately precede the phrase "Republican candidate." Thus, whatever the modifier may be, both sentences are discussing "the...Republican candidate." As the majority explains, Republicans (Democrats) do not have a party candidate in non-partisan judicial elections, and saying that one is "the Republican candidate" is inappropriate and misleading. I can make no distinction between the two sentences at issue, and thus would find that neither is permissible. Our Constitution requires that judicial candidates be non-partisan candidates, and declaring oneself to be any 25 kind of Republican (or Democratic) candidate adds partisanship to the actual candidacy, rather than stating in which political party one has membership. Wright, J., joins. 26 COUNSEL FOR CAMERON BLAU: Jack Scott Gatlin Freund, Freeze, and Arnold Christopher D. Wiest Chris Wiest, Attorney at Law, PLLC COUNSEL FOR ALLISON JONES: Lucinda C. Shirooni Thomas B Bruns Jack Scott Gatlin Freund, Freeze & Arnold COUNSEL FOR HON. STEVEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS CHAIR, JUDICIAL CONDUCT COMMISSION: Jeffrey C. Mando Louis Kelly Adams, Stepner, Woltermann & Dusing, PLLC Mark Richard Overstreet Bethany A. Breetz Stites & Harbison, PLLC 27 

NUMBER 13-00-389-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ DAVID B. MOORE , Appellant, v. ARTHUR ANDERSEN, L.L.P. AND LAURA MAWHINNEY , Appellees. __________________________________________________________________ On appeal from the 44th District Court of Dallas County, Texas. __________________________________________________________________ O P I N I O N Before Justices Hinojosa, Rodriguez, and Hill (1) Opinion by Justice Hill David Moore appeals from a summary judgment that he take nothing in his claims of sex discrimination and harassment, wrongful discharge, defamation, and intentional infliction of emotional distress against Arthur Andersen, L.L.P., and Laura Mawhinney. He contends in four points that the trial court erred by granting summary judgment as to each of those four claims. We affirm because the trial court did not err by granting summary judgment as to Moore's claims. Moore sued appellees after he was fired by Andersen. His claims for defamation and intentional infliction of emotional distress were made against both appellees, while his claims for sex discrimination and harassment and wrongful discharge were directed solely against Andersen. In response to his claims as they are outlined above, Appellees filed a motion for summary judgment, a motion to which Moore responded. As previously noted, the trial court granted summary judgment that Moore take nothing as to all of his claims. Appellees' motion for summary judgment reflects that it is brought both as a traditional and as a no-evidence motion for summary judgment because it states that it is brought under Texas Rules of Civil Procedure 166a(b) and 166a(i). Further, as to each cause of action brought by Moore, it alleges that there is no evidence as to an essential element of each claim, as required by Rule 166a(i). See Tex. R. Civ. P. 166a(i). Rule 166a(i) of the Texas Rules of Civil Procedure provides that: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or defense. See Ford v. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App.--Corpus Christi 2001, no pet.). The burden then shifts to the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact issue on the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge must grant the motion. Id. A no-evidence motion for summary judgment is improperly granted if the nonmovant presents 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. Id. 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. We first consider whether Appellees were entitled to a no-evidence motion for summary judgment. SEXUAL HARASSMENT AND DISCRIMINATION With respect to Moore's claim of sexual harassment and sex discrimination, Andersen maintains in its motion for summary judgment that Moore can produce no evidence that Mawhinney created a sexually hostile work environment or discriminated against him because of his sex. Moore's claim is a statutory claim based upon the Texas Human Rights Act, Texas Labor Code section 21.001, et seq., which provides in section 21.051 as follows: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: 1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. Tex. Lab. Code ANN.§ 21.051 (Vernon 1996). We will first consider Moore's contentions as they relate to his claim against Andersen for sex discrimination and harassment. According to Moore's affidavit, attached to his response, Mawhinney, his project manager at Andersen, gave him a memorandum that she had prepared for the file. In that memorandum, Mawhinney discussed observations of Moore's work and behavior. She observed that Moore spent "too much time 'chatting' with multiple female client personnel at the client site. This was perceived as flirtatious behavior by both the client and Barry's project team member and was brought to the attention of the project manager at a client dinner meeting." In addition to her observation, Mawhinney's memo contained the following under the heading "Action" with respect to that observation: On Wednesday, July 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is what the client is paying AA to do). Additionally, I told Barry, that while developing client relationships are important, that he should be focusing mainly on tasks at his level, and when working on relationship-building, that it should occur more often with the client's managers, rather than the accounting clerks. It was reported to me that Barry's behavior changed in the right direction after our discussion. Mawhinney further stated in the memo that: Throughout the week, I observed Barry engaged in multiple conversations with multiple female employees, sometimes lasting 20-30 minutes at a time. In the course of one day, I would suspect that he worked six of eight hours. Barry should have had a full week's worth of work to do, but if for some reason he did not, he never bothered to offer assistance to his project team member with demo scripts, or ask for additional work. The bulk of the memo was directed to other types of examples of poor job performance on Moore's part. As can be seen, Mawhinney referred to Moore as Barry in the memorandum. Moore states in his affidavit that on the next working day, Monday, July 27, 1998, he went to Andersen's office of human resources and talked to Linda Ferguson. He indicates that after telling her he wanted to talk to her about sexual harassment, he complained that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile work environment. Moore says that he prepared a detailed rebuttal of the charges in Mawhinney's memo and followed the instructions given him by Ferguson. The affidavit reflects that on the following Friday, July 31, 1998, Moore was called to the office of Andersen's Director of Human Resources, Scott Wilson, who advised him that it "appears you are a flirt." According to Moore, Wilson then summarily fired him for sexual harassment. Moore observed in his deposition that several employees at Andersen declined to read his response to Mawhinney's memo, including Jeff Valentine and Paul Shultz. Andersen, in a letter to the Texas Workforce Commission, stated that Moore was fired for sexual harassment and forwarded its sexual harassment policy to the commission, but Wilson, Andersen's Director of Human Resources, indicated he had told the person who wrote the letter that it was incorrect and should have read that he was terminated for unprofessional conduct. Wilson stated that the person who wrote the information got it from the file by looking at the notes he prepared, but that he did not know how she concluded that Moore was terminated for sexual harassment. Wilson acknowledged that Andersen has no code number for termination for sexual harassment. Wilson indicated that the employee who made the error is a competent employee and that he was not aware of it ever happening before. In a telephone conversation between Wilson and Moore after Moore's termination, Wilson related to Moore that he had interviewed seven women. He told Moore that they had indicated that Moore asked them about whom they were dating and whether they were dating anyone. Wilson told Moore that all of them felt very uncomfortable in that situation. Moore denied the accusations, but Wilson told him that he knew of at least two instances in which there were others who overheard the conversation. Although Wilson did not, in his notes, put the word "uncomfortable" in quotes, he indicated that one or more of the women used that term, that it was not just his term. Wilson also indicated in his deposition that he, Schultz, and Ja Chriesman, another Andersen employee, would have read Mawhinney's memo. He stated that he had read Moore's response, that he thought Shultz read it, and that he would have thought that Chriesman and Mawhinney read it. However, he acknowledged that he did not know for sure that they had read it. In her deposition, Mawhinney testified that, prior to working on the Friede Goldman project with Moore, she had never observed him engaging in flirtatious behavior and no one had told her that he had. As to her observations on the project, Mawhinney indicated that she would not say whether she had or had not observed flirtatious behavior. She stated that she suspected that flirtatious behavior was occurring. Mawhinney testified concerning a meeting she had with Wilson and Chriesman on Thursday prior to Moore's termination. She had learned of the meeting while out of town through an urgent voice mail from Wilson's office assistant wanting to know when she and Chriesman would be returning to the office. When they returned to town, she and Chriesman went directly to Wilson's office. She indicated that she did not, after the meeting, give any names of complaining females to Nancy Werner, the Andersen employee who investigated the matters involved here, because she thought that "[T]hey already had most of all the evidence they apparently needed." Mawhinney stated in the deposition that she played no role whatsoever in Moore being fired. Werner investigated the complaints concerning Moore prior to his termination and verified that Moore made inappropriate comments to female employees that made them feel uncomfortable and that at least one employee indicated that she would never staff her projects with a female who was subordinate to him. At Moore's request, Wilson personally investigated the allegations after he terminated Moore. Moore contends that a memo from Werner "states unequivocally" that she got the names of complaining women from Mawhinney, but our review of that memo shows that it does not reflect that Mawhinney gave her the names, only that she began her investigation after meeting with Mawhinney, Chriesman, and Wilson. In support of his conclusion that he filed a sexual harassment complaint, Moore refers us to his deposition testimony that he went to talk to Linda Ferguson about sexual harassment, then told her that Mawhinney was acting very antagonistically toward him. Moore could not recall if he had given Ferguson any examples. Moore stated in his deposition that he was replaced by a female whose qualifications were not as good as his for the job. He did not elaborate as to how she was less qualified nor give any source of his knowledge as to her qualifications. Under the Texas Commission on Human Rights Act, it is unlawful for an employer to discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. Tex. Lab. Code Ann. § 21.051 (Vernon 1996) (formerly Tex. Rev. Civ. Stat. Ann. art. 5221k, § 5.01(1)); Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex. App.--Corpus Christi 1998, no pet.). The Human Rights Act is modeled after federal law for the purpose of executing the policies embodied in Title VII of the federal Civil Rights Act of 1964. See Tex. Labor Code Ann. § 21.001 (Vernon 1996); Garcia, 967 S.W.2d at 885. One form of employment discrimination is sexual harassment. Garcia, 967 S.W.2d at 885. Moore's sexual harassment claim is a hostile work environment form of sexual harassment. Such a claim includes the following elements: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a "term, condition, or privilege" of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Id. Title VII is violated when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 64, 67 (1986). Conduct that is not severe enough to create a work environment that a reasonable person would find hostile or abusive will not trigger Title VII or its Texas equivalent. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Garcia, 967 S.W.2d at 885. Whether an environment is "hostile" or "abusive" can be determined only by reviewing all the circumstances, which may include the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23; Garcia, 967 S.W.2d at 885-86. Considering all of the summary judgment evidence, including that we have outlined above, we hold that Moore has failed to present evidence showing that he was subjected to a hostile work environment of the severity required to maintain his claim for sexual harassment. We now turn to Moore's claim of sexual discrimination. The plaintiff in a Title VII trial must carry the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). Such a prima facie case requires a showing that (1) he is a member of a protected class; (2) he was otherwise qualified for his position; (3) he was discharged by the defendant; and (4) the respondent replaced him with someone outside his protected class. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). We hold that Moore presented a prima facie case. Once Moore presented a prima facie case, it was appellees' burden to produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason. Id. Andersen and Mawhinney presented evidence that Moore was terminated because of speaking with women in an inappropriate way that made them feel uncomfortable. Once the appellees met that burden, the presumptions and burdens discussed in McDonnell Douglas disappeared. Id. at 142-43. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. at 143. Whether judgment as a matter of law is appropriate depends on a number of factors, including the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case that might properly be considered on a motion for judgment as a matter of law. Id. at 148-49. In making that determination we are to review the record as a whole. Id. at 150. In this case there is nothing particularly remarkable about Moore's prima facie case. He merely established that he was a male, was otherwise qualified for his job, was terminated, and was replaced by a female. He was terminated following an investigation showing that he engaged in conversations with specified individuals in which he made statements and asked questions that were inappropriate in a business setting and that made women uncomfortable. Moore never presented evidence showing that these specific accusations were untrue or that such information was not in fact presented to Andersen. Therefore, he presented no evidence showing that the nondiscriminatory reason for firing him was pretextual. In urging that he presented evidence showing that Andersen's reason was pretextual, Moore refers to evidence showing that Andersen initially reported he was fired for sexual harassment, then changed the reason to unprofessional conduct, asserting that the original report was a mistake. Regardless of whether Andersen chose to call it sexual harassment or unprofessional conduct, evidence showed Andersen terminated Moore based on certain conduct on his part that Moore never denied. Inasmuch as Moore never denied that conduct, he presented no evidence that the reason for his firing was pretextual. Moore cites several examples of discrimination on the part of Andersen. We will consider all of these individually. First, Moore argues that Andersen fired him for sexual harassment, without a shred of evidence to support the firing. During his discussion, he refers to the investigation by Werner, but does not mention that her investigation substantiated the observations made by Mawhinney in her memo. He indicates that there never was a proper investigation, but does not explain why Werner's investigation was improper. Moore complains that Andersen immediately acted upon Mawhinney's memo to discharge him. He does not mention that he was not fired until Werner's investigation confirmed the observations in Mawhinney's memo. He also suggests that his claim of sexual harassment against Mawhinney was ignored. While an investigation showed the justification for his being fired for a nondiscriminatory reason, Moore has not shown that he ever indicated to Andersen in what way, if any, Mawhinney was supposed to have been guilty of sexual harassment or discrimination against him. Further, there is no evidence in the record indicating that she discriminated against Moore in any way on the basis of his gender or committed any other act that was improper under the Texas Labor Code or Title VII. Moore states that he was replaced by a female, a female who he says is not as qualified as he for the position. As previously noted, he never says in what way she was less qualified or what the source of his knowledge as to her qualifications might be. Moore relates that Andersen retaliated against him by firing him only four days after he filed sexual harassment charges against Mawhinney, in violation of Andersen's own policy. Other than Moore's conclusory statement that he filed a sexual harassment complaint, Moore's own affidavit indicates that he talked to Linda Ferguson in Andersen's human resources department about sexual harassment, then proceeded to tell her that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile work environment. Even if Moore did file a claim of sexual harassment against Mawhinney, there is nothing to suggest that he ever indicated to Ferguson or anyone else any facts that would serve as a basis for believing that any antagonistic or hostile behavior on Mawhinney's part was directed at him because of his gender. Finally, Moore urges that Andersen discriminated against him by contesting his application with the Texas Workforce Commission for employment benefits with a letter falsely charging him with sexual harassment. Although Andersen chose to characterize the reason for Moore's termination as unprofessional conduct rather than sexual harassment, the nature of conduct for which it terminated Moore would, if sufficiently severe, constitute sexual harassment. Even if it were not so severe, and even if the letter was not sent in error, as urged by Andersen, there is nothing in the record indicating that the sending of this letter constituted discrimination against Moore based upon his gender. We find that there is no more than a scintilla of evidence that Moore ever actually filed a sexual harassment complaint against Mawhinney, and, even if he did, no more than a scintilla of evidence that Andersen or Mawhinney discriminated against Moore on the basis of gender. We overrule point one. WRONGFUL DISCHARGE Moore urges in point two that the trial court erred in granting summary judgment on his claim for wrongful discharge. The appellees urge that he has failed to show a binding contract of employment that would modify Moore's status as an employee at will. The general rule in Texas is that, absent a specific agreement to the contrary, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). For such an employment contract to exist, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances. Id. In support of his argument that there was such an employment contract, Moore refers to that portion of Andersen's anti-harassment policy that states, "We will support any employee who believes he or she has been unlawfully harassed by his or her supervisor, coworker or third party in a work-related situation." We do not view this as an unequivocal statement by Andersen that it was bound not to terminate an employee except under clearly specified circumstances. Consequently, the trial court did not err in granting summary judgment on this issue. Moore relies upon the cases of Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825 (Tex. App.-Austin 1989, writ denied) and Goodyear Tire and Rubber v. Portilla, 879 S.W.2d 47, 52 (Tex. 1994). We first note that in Morgan the court did not consider whether the employer's promise that if a certain department ever closed, it would find a job for her within the company, was definite enough to constitute an enforceable contract. Brown, 965 S.W.2d at 503. The Supreme Court disapproved of the holding inMorgan to the extent that it was inconsistent with Brown. Id. In Goodyear, which was also decided before Brown, the court relied on Morgan as probably "[The] Texas case closest in point." Goodyear, 879 S.W.2d at 51. In any event, we find both cases distinguishable because in each of those cases there was a specific agreement not to terminate the employee under a specific circumstance, whereas in the case at bar there is no specific agreement not to terminate the employee. We overrule point two. DEFAMATION Moore contends in point three that the trial court erred in granting summary judgment on his claim for defamation. He insists that Mawhinney accused him of flirtatious behavior in her memo. In their motion for summary judgment, appellees contend that there is no evidence that they published a defamatory statement about Moore because the term "flirtatious" is a nonactionable opinion that is not capable of a defamatory meaning. As previously noted, the memo states that too much time spent chatting with female personnel was perceived by the client and Moore's team member as flirtatious behavior. Later in the memo, Mawhinney states that Moore needed to improve his professionalism. She said, "Whether his behavior has been flirtatious or not, if someone perceives that it is, then there is a problem." When one reads the memo as a whole, one sees that the memo does not state that Moore is flirtatious, only that he is perceived to be by some, and that such a perception constitutes a problem. We conclude, therefore, that Mawhinney did not publish a defamatory statement against Moore. Even if Mawhinney did publish a statement that Moore was flirtatious, it has been held that such a statement is too imprecise in nature to be an actionable defamatory statement. Lee v. Metro. Airport Comm., 428 N.W.2d 815, 821 (Minn. App. 1988). In support of his argument that a publication that he was flirtatious would be an actionable defamatory statement, Moore relies upon the case of Scribner v. Waffle House, Inc., 14 F. Supp.2d 873, 915 (ND 1998), vacated at 62 F. Supp.2d 1186 (1999). Under the heading "Defamatory Meaning" Moore states that "A charge that the Plaintiff was "vulgar and flirtatious" was found to be untrue, and supported (together with other facts) a judgment in excess of $6 million for the Plaintiff for sexual harassment, defamation and intentional infliction of emotional distress." Unlike Moore, Therese Scribner, the plaintiff in that case, was a victim of pervasive sexual harassment by a number of individuals over an extended period of time. Scribner, 14 F.Supp.2d at 891. Although the trial court found that witnesses in the trial lied when they accused Scribner of being vulgar and flirtatious, Scribner's claim of defamation did not involve any statements accusing her of being a flirt or being flirtatious. Id. at 935. Furthermore, as noted in the citation, the opinion in Scribner has been vacated. Scribner v. Waffle House, Inc., 62 F.Supp.2d 1186 (N.D. 1999). We overrule point three. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Moore argues in point four that the trial court erred by granting summary judgment on his claim for intentional infliction of emotional distress. In response to Moore's claim for intentional infliction of emotional distress, the appellees contend in their motion for summary judgment that there was no evidence that they engaged in any conduct that constitutes intentional infliction of emotional distress. To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) To be extreme and outrageous, conduct must be "so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Id. Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id. at 612. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. Id. Texas courts have adopted a strict approach to intentional infliction of emotional distress claims arising in the workplace, relying on the fact that, to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees. Id. Although many of these acts are necessarily unpleasant for the employee, an employer must have latitude to exercise these rights in a permissible way, even though emotional distress results. Id. Consequently, in Texas, a claim for intentional infliction of emotional distress does not lie for ordinary employment disputes. Id. The extreme and outrageous conduct required in such a cause of action in the workplace exists only in the most unusual of circumstances. Id. at 613. The evidence Moore has presented in response to the appellees' motion for summary judgment is evidence of an ordinary employment dispute, not of extreme and outrageous conduct of such a nature as is required to maintain a claim for intentional infliction of emotional distress. Moore claims that the facts in this case are similar to those in GTE Southwest. To the contrary, the facts in GTE Southwest show a much more extreme situation. The supervisor in GTE Southwest was a former U. S. Army supply sergeant who committed ongoing acts of harassment, intimidation and humiliation and who engaged in daily obscene and vulgar behavior. Id. at 608, 617. The supervisor created a workplace that was a "den of terror" for the employees, purposefully humiliating and intimidating the employees, repeatedly putting them in fear of their physical well-being. Id. His abusive conduct was common, not rare. Id. Our opinion does not conflict with GTE Southwest. Moore also relies upon the case of Bushell v. Dean, 781 S.W.2d 652 (Tex. App.--Austin 1989), rev'd in part on other grounds, 803 S.W.2d 711 (Tex. 1991). In that case Dean's supervisor, Bushell, over a four-month period brought her things for breakfast, called her "My Sweet Mary," and told off-color jokes and talked about his marital sex problems with her and other employees. Id. at 657-58. He told Dean that he liked her split skirt and remarked about the shape of her body. Id. at 658. Bushell touched her several times. Id. Dean claimed that once, when Dean hugged him to thank him for a favor, Bushell tried to kiss her. Id. The next month, Bushell rubbed her neck although she did not ask him to and he had made no offer to do so. Id. He stopped when she asked him to. Id. During the next two months Bushell poked Dean in the ribs two or three times. Id. Bushell told Dean he loved her and desired a sexual encounter. Id. Subsequently, on two separate occasions, Bushell told her of his love and desire for sexual relations. Id. When Dean publicly rejected his advances, Bushell became very formal toward Dean, referring to her as "Mrs. Dean" and speaking to her only of business matters. Id. Later, when Bushell shouted at Dean during a dispute regarding a trucker's strike, she resigned. Id. at 654. The court held that it was for the jury to determine whether Bushell's conduct was extreme and outrageous. Even ifBushell was correctly decided, it is distinguishable because it involved overt sexual harassment over an extended period of time, whereas the evidence presented by Moore does not. Moore states that Bushell was cited with approval by the Texas Supreme Court in Wornick Co. v. Casas, 856 S.W.2d 732 (Tex. 1993). In Wornick, Casas's employer, Right Away Foods Corporation, a wholly owned subsidiary of the Wornick Company, terminated her and had her escorted off the premises by a security guard. Id. at 734. This was not standard company policy for salaried employees such as Casas. Id. Casas spoke to the president of Right Away on her way out. Id. When Casas told him she disputed the allegations against her, he promised her a later meeting to discuss the matter, but he never set up the meeting. Id. He led her to believe that she would be on leave of absence rather than terminated. Id. An amicus curiae, the National Employment Lawyers Association, cited Bushell as a case where courts had found outrageous conduct in the employment setting. Id. at 735-36. Holding that the evidence was insufficient to show that Right Away's conduct was extreme or outrageous, the court distinguishedBushell, just as we have done, on the basis that it involved repeated or ongoing harassment of an employee. Id. at 736. We disagree with Moore that this constitutes citing Bushell with approval. We overrule point four. In view of our determination that Appellees were entitled to a no-evidence summary judgment, we need not consider whether they were entitled to a traditional motion for summary judgment. The judgment is affirmed. ______________________________ JOHN HILL, Senior Justice Do not publish . Tex. R. App. P. 47.3(b). Opinion delivered and filed this 23rd day of August, 2001. 1. Senior Justice John Hill assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1195 MARY T. LACLAIR, Individually and as Personal Representative of the Estate of Cameron J. LaClair, Jr., Plaintiff – Appellant, v. SUBURBAN HOSPITAL, INCORPORATED, Defendant – Appellee, and PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.; CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain; SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE SYSTEM, INC., Defendants. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:10-cv-00896-PJM) ARGUED: January 31, 2013 Decided: April 15, 2013 Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Michael E. von Diezelski, ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee. ON BRIEF: Jacqueline T. Colclough, REGAN ZAMBRI LONG & BERTRAM, Washington, D.C., for Appellant. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Mary T. LaClair, individually and as personal representative of the estate of her husband, Cameron J. LaClair, Jr., appeals the district court’s order finding that the Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical Therapy and Sports Medicine (“PTSM”), were joint tortfeasors with respect to her husband’s injuries sustained while he was a patient at Suburban. Mr. LaClair was first injured while receiving physical therapy at PTSM. After undergoing surgery at Suburban for that injury, he was further injured by the actions of Suburban’s patient care technicians. Suburban asks us to affirm the district court’s conclusion that it is a joint tortfeasor with PTSM because its actions did not constitute a superseding cause of harm to Mr. LaClair. In unraveling this appeal, Maryland law directs us to several provisions of the Restatement (Second) of Torts, each of which is grounded in the idea that an intervening act is not a superseding cause if it was foreseeable at the time of the primary negligence. Because the harm and injuries sustained at Suburban were foreseeable consequences of the alleged negligence of PTSM, Suburban’s actions were not a superseding cause of Mr. LaClair’s injuries. Thus, Suburban and PTSM are joint tortfeasors, and we affirm. 3  I. A. On November 1, 2007, Mr. LaClair, a “vibrant former CIA officer” in his mid-80s, J.A. 211, 1 sustained an injury while receiving physical therapy at the PTSM facility (the “November 1 incident”). He was attempting to secure himself in a piece of exercise equipment and fell onto the floor, while his physical therapist had stepped away. He was taken by ambulance to Suburban, where he was diagnosed with a cervical fracture and dislocation. Dr. Alexandros Powers, a neurosurgeon, performed surgery on Mr. LaClair on November 3, 2007. The surgery entailed Dr. Powers inserting screws and rods to secure Mr. LaClair’s spine. According to Dr. Powers, the surgery “was successful and proceeded without complication, and Mr. LaClair’s prognosis at that time included a complete and total recovery free from future cervical spine surgery.” J.A. 227. Dr. Powers stated that, as of the morning of November 6, 2007, Mr. LaClair was “recovered and was to be discharged [from Suburban] to a rehabilitation facility” the next day, and “there was no plan or expectation for subsequent cervical spine 1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 4 surgeries due to the success of the November 3 surgery[.]” J.A. 228. Later on November 6, Mr. LaClair was transferred from ICU to a regular room, and his catheter was removed. He needed assistance using the bathroom, and, after Mrs. LaClair called several times for assistance, two patient care technicians responded. Mr. LaClair used the bathroom, and the patient care technicians attempted to reposition him in his hospital bed. Although Suburban claims Mrs. LaClair “resort[s] to hyperbole when referring to the conduct of November 6,” and the patient care technicians, while perhaps negligent, were “performing their normal duties when they were aiding Mr. LaClair and repositioning him in bed,” Br. of Appellee 6, Mrs. LaClair views the incident as out of bounds because her husband’s “head was violently pushed against the side rail of the bed and he cried out in pain,” Br. of Appellant 4. Mrs. LaClair testified that one of the patient care technicians was “very rough,” explaining, “her motions were gross motions. They weren’t careful motions. And I thought, with somebody with a broken neck, I think I’d be careful, but there was none of that.” J.A. 362-63 (the “November 6 incident”). There is no dispute that Mr. LaClair sustained additional injuries as a result of the November 6 incident. Dr. Powers examined Mr. LaClair and found “a fracture of the C7 endplate, dislocation at C6/C7, dislodging of the screws placed 5 in previous surgery, ligament damage and hemorrhage, nerve root injury at the level of C7 and C8 and spinal cord injury.” J.A. 228. He determined Mr. LaClair could no longer be discharged on November 7 as previously scheduled, but rather, needed to undergo an additional surgery on November 8. Mr. LaClair later underwent a third surgery on February 6, 2008, at Georgetown University Hospital. He spent nearly five months hospitalized, underwent plaster casting of his cervical spine, developed bedsores, and ultimately required a feeding tube. Mrs. LaClair presented evidence to the district court that as a result of the November 6 incident, Mr. LaClair’s medical bills totaled over $1.05 million and had a projected future cost of $900,000. Another physician testified that absent the November 6 incident, his medical and rehabilitation expenses would have been only $75,000 to $125,000. B. The LaClairs filed two separate lawsuits: first, against PTSM for injuries stemming from the November 1 incident (filed March 19, 2009) (the “PTSM lawsuit”), and second, against Suburban for “separate and distinct” injuries stemming from the 6 November 6 incident (filed April 15, 2010) (the “Suburban lawsuit”). 2 The PTSM lawsuit alleged that PTSM was responsible for not only the injuries and damages incurred from the November 1 incident at PTSM’s facility, but also the injuries and damages incurred from the November 6 incident at Suburban. See J.A. 48 (PTSM Complaint) (“Plaintiff was taken via ambulance to Suburban [] where he was diagnosed with a cervical fracture and dislocation. Plaintiff remained at Suburban until November 13, 2007, where he underwent two surgical procedures to repair his cervical fracture, among other things.”). During discovery, however, Dr. Powers testified on January 5, 2010, that the injuries stemming from the November 1 incident were “separate, distinct, and divisible” from those sustained by the November 6 incident. Id. at 229, 262-329. Subsequently, the LaClairs settled with PTSM for $1 million on March 5, 2010. The Settlement Agreement specifically recognized that the LaClairs would be pursuing separate claims against Suburban, in connection with the November 6 incident alone: 2 Mr. LaClair passed away on November 4, 2011, during the course of this litigation. Mrs. LaClair took over as personal representative of his estate and was substituted as Plaintiff on January 25, 2012. 7  In any future action against [Suburban], the plaintiffs agree to file a pre-trial motion with the court attempting to establish that the conduct of Suburban . . . constituted superintervening negligence, and that these defendants are not joint tortfeasors with Suburban[.] The purpose of this requirement is to obviate the need for [PTSM] to be named as [a] part[y] in any future litigation. J.A. 179. The Suburban lawsuit, filed about six weeks after the PTSM settlement, alleges that Mr. LaClair suffered injuries from the November 6 incident that were separate and distinct from those of the November 1 incident. This litigation settled on May 31, 2011. Pursuant to the Settlement Agreement between the LaClairs and Suburban, however, the parties agreed to submit to the district court the question of whether PTSM and Suburban were joint tortfeasors in connection with the November 6 incident, or whether those injuries were separate and distinct such that Suburban alone would be liable. Pursuant to the Settlement Agreement, Suburban agreed to make an initial $650,000 payment to the LaClairs and further agreed to make an additional payment of $600,000 in the event that the court found PTSM and Suburban were not joint tortfeasors as to the November 6 incident. C. In accord with the PTSM Settlement Agreement, the LaClairs filed a pre-trial motion in the Suburban lawsuit on 8 June 10, 2011, asking for judicial determination that Suburban was a “successive tortfeasor” and therefore, not entitled to joint tortfeasor credit for the November 6 incident. J.A. 140. 3 That same day, Suburban filed a memorandum explaining why it should bear joint tortfeasor status with PTSM. The district court held a motions hearing on January 20, 2012, and decided that Suburban was indeed a joint tortfeasor with PTSM such that Mrs. LaClair could not recover additional damages. The district court explained, [T]his was not highly extraordinary. That this kind of thing could well have happened, even if the doctors did not see it or had seen it themselves. But a reasonable man knowing what they knew at the time would conclude that this sort of thing might happen. . . . I am persuaded by the fact that if what happens is reasonably close to the reason for the initial hospitalization, which is what this was, then you really do have a kind of a continuous flow here, and whatever negligence you have is really part and parcel of the initial negligence, too. And so I do conclude on these facts that the liability of the – the defendant, Suburban Hospital, is joined and not independent. J.A. 771. The court entered a short, one-page order to this effect on January 24, 2012, naming Suburban as a joint tortfeasor “for reasons stated in the record.” Id. at 797. It is from that order that Mrs. LaClair appeals. 3 Solely for purposes of the motion on the causation issue, Suburban conceded that it was negligent on November 6, 2007, but it continued to dispute all issues of causation and damages. 9  II. The parties submit that the district court’s order is reviewed for clear error. However, this analysis necessarily involves deciding whether the district court correctly applied Maryland law, and thus, we approach this appeal “by inspecting factual findings for clear error and examining de novo the legal conclusions derived from those facts.” F.C. Wheat Mar. Corp. v. United States, 663 F.3d 714, 723 (4th Cir. 2011). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (internal quotation marks omitted). Because this case is in federal court based on diversity jurisdiction, the substantive law of the forum state — in this case, Maryland — applies. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). We should determine: how the [Court of Appeals of Maryland] would rule. If th[at] [court] has spoken neither directly nor indirectly on the particular issue before us, we are called upon to predict how that court would rule if presented with the issue. In making that prediction, we may consider lower court opinions in [Maryland], the teachings of treatises, and the practices in other states. 10 Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005) (internal quotation marks and citations omitted). III. A. PTSM will not be jointly liable for the November 6 incident “if it appears highly extraordinary and unforeseeable that the plaintiffs’ injuries [on November 6] occurred as a result of [PTSM’s] alleged tortious conduct.” Pittway Corp. v. Collins, 973 A.2d 771, 788 (Md. 2009). Accordingly, PTSM avoids liability for the November 6 incident “only if the intervening negligent act,” i.e., Suburban’s conduct, “is considered a superseding cause of the harm to” Mr. LaClair. Id. at 789; see also Morgan v. Cohen, 523 A.2d 1003, 1004-05 (Md. 1987) (“It is a general rule that a negligent actor is liable not only for harm that he directly causes but also for any additional harm resulting from normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner.”). Maryland courts (and federal district courts sitting in diversity) have addressed the superseding cause issue with varying results. Pittway is the seminal Maryland case on superseding cause, providing a framework for analyzing an argument that an intervening act cuts off the liability of an 11 original tortfeasor. The Court of Appeals of Maryland explained: The defendant is liable where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act . . . or even it is generally held, if the intervening acts or conditions were of a nature, the happening of which was reasonably to have been anticipated[.] Pittway, 973 A.2d at 789 (internal quotation marks and alteration omitted). Pittway recognizes that Section 442 of the Restatement (Second) of Torts establishes the test applied in Maryland courts for analyzing superseding cause: The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person’s act or his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such 12  subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Restatement (Second) of Torts § 442 (1965); Pittway, 973 A.2d at 789. B. We conclude that the district court did not err in finding that Suburban and PTSM were joint tortfeasors. 1. The majority of the Restatement Section 442 factors weigh in favor of a conclusion that Suburban and PTSM were joint tortfeasors. a. As to factor (a), above, Mrs. LaClair attempts to show that the injuries sustained on November 6 were “separate and distinct” from those sustained on November 1, and thus, “different in kind.” See Br. of Appellant 3-9. We first note that we would be hard-pressed to find a case regarding subsequent negligent medical care in which there was not a “separate and distinct” injury after the injury caused by the initial actor’s negligence. This, alone, does not lead us to the conclusion that the negligent medical care is a superseding cause of harm. See Underwood-Gary v. Mathews, 785 A.2d 708, 713 13 (Md. 2001) (“[W]hen a physician negligently treats the plaintiff’s injuries, the physician becomes liable to the plaintiff to the extent of the harm caused by the physician’s negligence. Thus, the physician’s negligent treatment is a subsequent tort for which both the doctor and the original tortfeasor are jointly liable.” (internal citations omitted)). In any event, the harm brought about by the November 6 incident was not so different from the type of harm that is likely to result from an 86-year-old man’s fall from a piece of exercise equipment, even assuming, as Mrs. LaClair would have us do, that a severe spinal cord injury resulted from Mr. LaClair’s repositioning in his bed. For these reasons, factor (a) weighs in favor of Suburban. b. In addressing factor (b), the Restatement directs us to look to Restatement (Second) of Torts § 435(2), Comments (c) and (d). Comment (c) provides, in part, “Where it appears to the court in retrospect that it is highly extraordinary that an intervening cause has come into operation, the court may declare such a force to be a superseding cause.” Restatement (Second) of Torts § 435(2) cmt. c (1965). Comment (d) provides, in part, “The court’s judgment as to whether the harm is a highly extraordinary result is made after the event with the full knowledge of all that has happened. This includes those 14 surroundings of which at the time the actor knew nothing but which the course of events discloses to the court.” Id. cmt. d. Comment (d) continues: [The court] also follows the effects of the actor’s negligence as it passes from phase to phase until it results in harm to the plaintiff. In advance, the actor may not have any reason to expect that any outside force would subsequently operate and change the whole course of events from that which it would have taken but for its intervention. None the less, the court, knowing that such a force has intervened, may see nothing extraordinary either in its intervention or in the effect which it has upon the further development of the injurious results of the defendant’s conduct. This is particularly important where the intervening force is supplied by the act of a human being . . . , which is itself a reaction to the stimulus of a situation for which the actor is responsible. Id. Mrs. LaClair presents testimony from three neurosurgeons that the “application of [the patient care technicians’] force to the body of an elderly, post-operative cervical spine patient . . . had never before been witnessed or known to them in all their years of practice as Neurosurgeons[.]” Br. of Appellant 27 (citing J.A. 190, 222, 229). However, as explained by Comment (d) above, PTSM may have had no reason to expect that Mr. LaClair would be injured by being repositioned in his hospital bed, but the proper way to view the situation is after-the-fact: “knowing that such a 15 force has intervened.” Restatement (Second) Torts § 435 cmt. d (emphasis added). For example, in Henley v. Prince George’s Cnty., the Court of Appeals of Maryland explained the difference between foreseeability when considering the existence of a duty and, as here, causation: “Foreseeability as a factor in the determination of the existence of a duty involves a prospective consideration of the facts existing at the time of the negligent conduct. Foreseeability as an element of proximate cause permits a retrospective consideration of the total facts of the occurrence[.]” 503 A.2d 1333, 1341 (Md. 1986) (emphases added). Viewing the facts of this case retrospectively, there is “an appropriate nexus” between the November 1 incident and injuries and the November 6 incident and injuries such that it is “at least a permissible conclusion” that Mr. LaClair’s already- injured spine would be further injured by being positioned into a hospital bed. Id. at 1342. Again, we agree with the district court that Suburban’s actions were not “so extraordinary as to bring about a conclusion of separate intervening cause.” J.A. 766. Thus, factor (b) also weighs in favor of Suburban. 16  c. Considering the cross-referencing set forth in Restatement (Second) Section 442, factors (c), (e), and (f) 4 boil down to the same core inquiries: whether Suburban’s actions were “a normal consequence of a situation created by the actor’s negligent conduct,” 5 and whether the manner in which the intervening act was done was “extraordinarily negligent.” Restatement (Second) Torts §§ 443, 447(c) (1965). First, clearly, Mr. LaClair would not have sustained the injuries on November 6 if PTSM’s negligence had not put him in the hospital in the first place. 6 And the district court 4 As to factor (d), the district court dismissed this factor as irrelevant to the inquiry, but it only appeared to analyze the “failure to act” portion of § 442(d). See J.A. 767-68. While this may have been legal error, even assuming factor (d) weighs in favor of Mrs. LaClair, the balance of the factors nonetheless weighs in favor of Suburban. 5 The comments to factor (c) explain that the “situation created by the actor’s negligence” means any situation that the original tortfeasor’s actions were a substantial factor in bringing about. See Restatement (Second) of Torts §§ 447(c), 442(c) cmt. d. 6 Indeed, the LaClairs themselves believed the November 6 incident to be a foreseeable consequence of the November 1 incident. They recognized as much in their initial complaint against PTSM, which sought to hold PTSM liable for “two surgical procedures” at Suburban. J.A. 48 (emphasis added). In addition, on July 12, 2009, the LaClairs answered interrogatories and listed the following as caused by the PTSM’s negligence: admission to Suburban from November 1 to November 13, 2007; admission to the rehabilitation center from November 13 to November 30; admission to Georgetown University for (Continued) 17 found, “the act, . . . the putting back in bed is not itself extraordinary.” J.A. 767. Mrs. LaClair’s attorney agreed. See id. at 709 (The Court: “[T]he objective anyway was to put this man back in bed. That’s not unforeseeable; correct? Mr. Regan: Yes.”). The district court did not err in finding that it is a “normal consequence,” (i.e., foreseeable) that a cervical spine patient might sustain additional spinal injuries at the hands of medical professionals. As to the manner in which the negligent act was done, we should consider the injuries and the degree of culpability of the patient care technicians. Even if the patient care technicians were “very rough,” J.A. 362, that does not quite get us to the level of “extraordinarily negligent.” Restatement (Second) of Torts § 447(c). Indeed, Maryland courts have held that original tortfeasors are liable for more significant harm inflicted by intervening negligent medical professionals. See Underwood-Gary, 785 A.2d at 713 (“[An] original tortfeasor is liable for additional harm caused by a treating physician’s improper diagnosis and unnecessary surgery[.] This rule is based on the premise that the negligent actor, by his or her conduct, has placed the plaintiff in a surgery from February 5 to February 25, 2008; and home nursing care from April 2008 to July 2009. See id. at 64-78. 18 position of danger and should answer for the risks inherent in treatment and rendering aid.” (citing Restatement (Second) of Torts § 457 cmt. c, illus. 1)); Richards v. Freeman, 179 F. Supp. 2d 556, 560-61 (D. Md. 2002) (where physicians negligently performed surgeries that left car accident victim with a right arterial tear in her heart, finding physicians and original defendant driver to be “joint” yet “subsequent tortfeasors” under Maryland’s Uniform Contribution Among Tort-Feasors Act (UCATA)); see also Morgan, 523 A.2d at 1008 (stating that under the UCATA, an original tortfeasor and a negligent health care provider could be considered concurrent tortfeasors concurring in producing the additional harm). Kyte v. McMillion, 259 A.2d 532 (Md. 1969), cited by Mrs. LaClair, does not change this result. There, a young woman was involved in a car wreck due to a negligent driver, and she was taken to the hospital and treated for broken bones. Upon admission to the hospital, a physician ordered a blood transfusion, but the nurse used the wrong type of blood. See id. at 533. As a result of this mistake, the plaintiff suffered “bleak prospects of future pregnancies” and was projected to have “difficult gestation from both an emotional and physical point of view.” Id. The plaintiff filed suit against the hospital first, ultimately reaching an agreement and signing a release as to damages stemming only from 19 the blood transfusion. See id. at 533-34. Later, when the plaintiff filed suit against the allegedly negligent driver, McMillion, the court held that McMillion was not included in the release and thus, the damages awarded to the plaintiff from the hospital should not be credited to McMillion. Id. at 543. Notably, the Maryland Court of Special Appeals has limited this case to its facts as “the Court [in Kyte] was careful to point out that the injuries [broken bones and inability to have children] were peculiarly separate and divisible[.]” Sullivan v. Miller, 337 A.2d 185, 191 (Md. Ct. Spec. App. 1975). Even the Kyte court itself declared, “It should be understood . . . that the decision announced herein goes no further than the unusual facts and circumstances of this case.” See Kyte, 259 A.2d at 543. 7 Therefore, we cannot say that the negligence of the patient care technicians, either in manner or consequence, was 7 In this appeal, Suburban also contends that the settlement with PTSM already took into account the damages arising from the November 6 incident, and points to the LaClairs’ answers to interrogatories on July 12, 2009, in the PTSM lawsuit. See supra, note 7. However, while this argument may have some merit, we do not rely on it because it appears that the LaClairs shifted gears in the middle of their litigation with PTSM (and after the interrogatory answers were filed) due to the testimony of Dr. Powers. Moreover, reliance on this basis is unnecessary given the weight of other factors in favor of Suburban. 20 abnormal or extraordinary. Thus, factors (c), (e), and (f) weigh in favor of Suburban. 2. Examining the Restatement Section 442 factors does not end our inquiry. The Court of Appeals of Maryland further explains that Section 447 of the Restatement (Second) of Torts illuminates these factors: “The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.” Pittway, 973 A.2d at 789 (quoting Restatement (Second) of Torts § 447). Thus, “a superseding cause arises primarily when unusual and extraordinary independent intervening negligent acts occur that could not have been anticipated by the original tortfeasor.” Id. (internal quotation marks omitted). Therefore, courts should look to both the foreseeability of the 21 harm suffered by the plaintiff, as well as the foreseeability of the intervening act itself. See id. at 792. Any doubt that the Restatement Section 442 factors weigh in favor of Suburban is resolved by an analysis of Section 447: PTSM should have realized that an elderly man injured by a fall from its own exercise equipment would have to go to the hospital, would receive medical care, and may possibly experience negligent medical care there. Mr. LaClair’s ultimate injuries and the manner in which they occurred were not extraordinary, nor were these unfortunate consequences unforeseeable. IV. For the foregoing reasons, the judgment of the district court is AFFIRMED. 22 

T.C. Memo. 2019-54 UNITED STATES TAX COURT MARY BUI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 20453-16. Filed May 21, 2019. Ronda N. Edgar, for petitioner. Adam B. Landy, Nancy M. Gilmore, and Thomas R. Mackinson, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: Respondent issued a notice of deficiency to petitioner determining an income tax deficiency for 2011 of $173,058 and an addition to tax  -2- [*2] under section 6651(a)(1) of $66,668.1 After concessions, the sole issue remaining for consideration is whether petitioner must include in gross income cancellation of indebtedness of $355,488. We hold that she may properly exclude $48,151 but must include the remaining $307,337. FINDINGS OF FACT This case was tried on September 10, 2018, in San Francisco, California. The parties have submitted a stipulation of facts and accompanying exhibits, which are incorporated herein by this reference. When the petition was timely filed, petitioner resided in California.2 Petitioner is also known as Nga Thuy Lan Bui. For 2011 petitioner excluded $355,488 of discharged indebtedness from her gross income and indicated the excluded indebtedness was qualified principal residence 1 Unless otherwise indicated, all section references are to the Internal Revenue Code (Code) as amended and in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 The petition was received with an illegible postmark on September 19, 2016, five days after the time to file a petition with this Court had expired. Sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., places on the taxpayer the burden to prove the date an illegible postmark was made. On March 12, 2019, we issued an order directing petitioner to sustain her burden of establishing that the postmark was timely made. On March 24, 2019, petitioner responded to our order and supplemented the record with proof of mailing on September 12, 2016. Accordingly, we are satisfied of our jurisdiction to hear this case.  -3- [*3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of discharged indebtedness income. Respondent now concedes that petitioner was insolvent by $42,852 in 2011. I. Residences A. Red River Property On June 1, 1981, petitioner, her former spouse, and three other persons purchased a single-family residence on Red River Way in San Jose, California (Red River property), for $156,500. Petitioner and her former spouse together owned a 25% interest in the Red River property. By grant deed dated October 15, 1985, and recorded January 28, 1986, petitioner and her former spouse purchased the remaining 75% interest in the Red River property for $97,500. By quitclaim deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Red River property. Petitioner legally separated from her former spouse in 2005 or 2006. Petitioner lived at the Red River property from its acquisition in 1981 through March 14, 2011, and treated it as her primary residence. On March 14, 2011, petitioner relinquished ownership of the Red River property by short sale for  -4- [*4] $485,000. At that time, the balance of the mortgage on the Red River property was $416,000. B. Cedar Grove Property On or around June 1, 1988, petitioner and her former spouse purchased a single-family rental home on Cedar Grove Circle in San Jose, California (Cedar Grove property). By quitclaim deed dated November 14, 2002, and recorded December 12, 2002, petitioner acquired sole ownership in the Cedar Grove property. After petitioner sold the Red River property in March 2011, she moved into the Cedar Grove property and established it as her new primary residence. II. Wells Fargo Lines of Credit Before 2011 petitioner obtained three home equity lines of credit with Wells Fargo Bank, N.A. (Wells Fargo). Petitioner executed a deed of trust dated February 14, 2007, and recorded March 12, 2007, securing a $250,000 line of credit for an account ending in 9471 between herself and Wells Fargo with the Red River property listed as collateral (9471 loan). Petitioner executed a deed of trust dated March 1, 2007, and recorded March 26, 2007, securing a $40,000 line of credit for an account ending in 7231 between herself and Wells Fargo with the Cedar Grove property as collateral (7231 loan). Petitioner also executed a deed of trust dated March 20, 2007, and recorded April 30, 2007, securing a $101,942 line  -5- [*5] of credit for an account ending in 5371 between herself and Wells Fargo with the Cedar Grove property as collateral (5371 loan). In 2011 Wells Fargo issued three Forms 1099-C, Cancellation of Debt, to petitioner indicating that the remaining debt associated with the 9471 loan, the 7231 loan, and the 5371 loan had been canceled. On the Forms 1099-C Wells Fargo described the debts as “HEQ Secured Installment Loan” and checked the box indicating petitioner was personally liable for repayment of the debts. Petitioner’s canceled Wells Fargo debt for 2011 was as follows: Date of Form 1099-C Amount of canceled debt Account No. Mar. 18, 2011 $243,299 9471 Oct. 28, 2011 11,999 7231 Oct. 28, 2011 100,190 5371 Petitioner executed at least four additional deeds of trust with Wells Fargo before 2011. In addition, petitioner, with and without her former spouse, executed at least seven deeds of trust between 1986 and 2004 from banking institutions other than Wells Fargo. The indebtedness indicated by these additional deeds of trust was not canceled in 2011.  -6- [*6] III. Home Improvements Petitioner testified to carrying out a number of home improvement projects before 2011 for the Red River property, but she provided no documentation relating to when or how expenses of these projects were paid. She did not testify to any home improvement project expenses related to the Cedar Grove property. Petitioner paid approximately $10,000 for custom drapes to be installed at the Red River property in 2007. In addition, she spent approximately $12,000 for driveway repair and expansion work at the Red River property in 2008. The remaining home improvement expenditures petitioner testified to were made before 2007, the year she obtained the Wells Fargo lines of credit. The associated debts were discharged in 2011. OPINION Generally, the Commissioner’s determinations in a notice of deficiency are presumed correct, and the taxpayer bears the burden of proving the determinations are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). However, for the presumption of correctness to attach in an unreported income case such as this, the Commissioner must base his deficiency determination on some substantive evidence that the taxpayer received unreported income. Hardy v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff’g T.C. Memo. 1997-97.  -7- [*7] There is no dispute in this case that petitioner had debt that was forgiven. Section 7491(a) shifts the burden of proof to the Commissioner where the taxpayer has presented credible evidence with respect to any factual issue relevant to ascertaining the correct tax liability of the taxpayer. Section 7491(a) also requires that the taxpayer have substantiated all appropriate items, maintained records as required under the Code, and cooperated with all reasonable requests by the Commissioner for witnesses, information, documents, meetings, and interviews. Sec. 7491(a)(2)(A) and (B). Petitioner has not attempted to argue, and the record does not demonstrate, her compliance with the requirements of section 7491(a); accordingly, the burden remains with petitioner to show respondent’s determinations were incorrect. This is a dispute over whether petitioner had reportable cancellation of indebtedness income that she failed to report on her 2011 tax return. The Code defines income liberally as “all income from whatever source derived”. Sec. 61(a). Specifically, income includes any income from the discharge of indebtedness. Sec. 61(a)(12); sec. 1.61-12(a), Income Tax Regs. The underlying rationale for the inclusion of canceled debt as income is that the release from a debt obligation the taxpayer would otherwise have to pay frees up assets  -8- [*8] previously offset by the obligation and acts as an accession to wealth--i.e., income. United States v. Kirby Lumber Co., 284 U.S. 1, 2 (1931). Generally, when canceled debt creates income, the amount includible in income is equal to the face value of the discharged obligation minus any amount paid in satisfaction of the debt. Rios v. Commissioner, T.C. Memo. 2012-128, 2012 WL 1537910, at *4, aff’d, 586 F. App’x 268 (9th Cir. 2014); see Merkel v. Commissioner, 192 F.3d 844, 849 (9th Cir. 1999), aff’g 109 T.C. 463 (1997). The income is recognized for the year in which the debt is canceled. Montgomery v. Commissioner, 65 T.C. 511, 520 (1975). Petitioner argues that although the cancellation of debt generally creates reportable income her canceled debt is excludable. Some “accessions to wealth that would ordinarily constitute income may be excluded by statute or other operation of law.” Commissioner v. Dunkin, 500 F.3d 1065, 1069 (9th Cir. 2007), rev’g 124 T.C. 180 (2005). Even so, “given the clear Congressional intent to ‘exert * * * the full measure of its taxing power,’ * * * exclusions from gross income are construed narrowly in favor of taxation.” Id. (quoting Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 429 (1955)) (citing Merkel v. Commissioner 192 F.3d at 848). Petitioner argues two exclusions apply to her cancellation of indebtedness income: section 108(a)(1)(E), which offers an exclusion when the  -9- [*9] canceled debt is “qualified principal residence indebtedness”; and section 108(a)(1)(B), which provides an exclusion where the taxpayer is insolvent. We will examine both exclusions as applied to petitioner. I. Qualified Principal Residence Indebtedness Section 108(a)(1)(E) provides that gross income does not include amounts which would be includible as cancellation of indebtedness income if “the indebtedness discharged is qualified principal residence indebtedness”. Qualified principal residence indebtedness is defined as (1) acquisition indebtedness (2) with respect to the taxpayer’s principal residence. Sec. 108(h)(2), (5). Acquisition indebtedness is “incurred in acquiring, constructing, or substantially improving any qualified residence of the taxpayer” and must be secured by that residence. Sec. 163(h)(3)(B)(i). If only a portion of a discharged loan obligation meets the definition of qualified principal residence indebtedness, only the amount discharged which exceeds the nonqualified principal residence indebtedness is excludable. Sec. 108(h)(4). Petitioner’s primary residence was the Red River property until she sold it in March 2011 and established the Cedar Grove property as her new primary residence. Three of her Wells Fargo lines of credit--the 9471 loan, the 7231 loan, and the 5371 loan--were canceled in 2011. Petitioner does not argue that any of  - 10 - [*10] these loans, which were obtained in 2007, were used to acquire or construct either the Red River property or the Cedar Grove property, both of which were solely acquired by petitioner in 2002. Petitioner instead argues that funds from these loans were used to substantially improve her primary residence. Petitioner provided no evidence regarding substantial improvements made to the Cedar Grove property. For the qualified principal residence indebtedness exclusion to apply, the debt must be used to acquire, construct, or substantially improve the taxpayer’s primary residence, and that residence must secure the loan. See secs. 108(h)(2), 163(h)(3)(B)(i). Both the 7231 loan and the 5371 loan were secured by the Cedar Grove property. Therefore, because these loans were not used to acquire, construct, or substantially improve the Cedar Grove property, they are not excludable from gross income as qualified principal residence indebtedness. Petitioner offered testimony on a number of improvements made to the Red River property before she obtained the 9471 loan. These improvements could not have been financed by a loan that had not materialized at the time they were made. Thus, they will be disregarded for purposes of determining whether any portion of the 9471 loan was qualified personal residence indebtedness. Petitioner spent $12,000 on driveway expansion and repair work at the Red River property in  - 11 - [*11] 2008. We are satisfied from her testimony that this amount was paid with the 9471 loan. Accordingly, the portion of the 9471 loan that was used to finance the driveway project is qualified principal residence indebtedness. Petitioner also testified that she had custom drapes installed at the Red River property in 2007 for $10,000. We do not find that this expense constitutes a substantial improvement to the Red River property, and therefore it is not qualified principal residence indebtedness. We have determined that $12,000 of the 9471 loan was qualified principal residence indebtedness; however, the amount that petitioner may properly exclude is limited by section 108(h)(4). Section 108(h)(4) provides that where only a portion of a discharged loan is qualified principal residence indebtedness, the amount that may be excluded is only “so much of the amount discharged as exceeds the amount of the loan (as determined immediately before such discharge) which is not qualified principal residence indebtedness.” To apply this limitation we must determine how much of the loan was not qualified principal residence indebtedness. The original line of credit was for $250,000. We have determined that $12,000 was qualified principal residence indebtedness; thus $238,000 was not qualified principal residence indebtedness. Therefore, petitioner may exclude only $5,299 of the canceled 9471 loan from her income under the qualified  - 12 - [*12] principal residence indebtedness exclusion ($243,299 canceled debt minus the $238,000 of the debt that was not qualified principal residence indebtedness). II. Insolvency Exclusion Petitioner argues that even if her cancellation of indebtedness income is not excludable as qualified principal residence indebtedness, it should be excludable because she was insolvent in 2011. Section 108(a)(1)(B) provides an exclusion from gross income of cancellation of indebtedness amounts where the taxpayer is insolvent at the time the discharge occurs. A taxpayer is insolvent by the amount her liabilities exceed the fair market value of her assets, determined immediately before the discharge of indebtedness. Sec. 108(d)(3). Respondent concedes that petitioner was insolvent by $42,852 and, therefore, admits that amount of cancellation of indebtedness income is excludable. In the case of a taxpayer who qualifies for the insolvency exclusion, the excluded amount cannot exceed the amount by which the taxpayer is insolvent. Sec. 108(a)(3). Petitioner suggests that respondent did not accurately account for her assets and liabilities when calculating her insolvency. However, petitioner stipulated respondent’s insolvency calculations and has offered no coherent argument as to why the calculations are in error. Accordingly, petitioner is entitled to an insolvency exclusion for her cancellation of indebtedness income of  - 13 - [*13] $42,852. Petitioner may exclude a total of $48,151--representing $42,852 under the insolvency exclusion and $5,299 under the qualified principal residence indebtedness exclusion--of her cancellation of indebtedness income from her gross income.3 In reaching our holding, we have considered all arguments made, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit. Decision will be entered under Rule 155. 3 Sec. 108(a)(2)(C) provides that the insolvency exclusion does not apply to any discharge to which the qualified principal residence indebtedness exclusion applies unless the taxpayer elects the insolvency exclusion to apply in lieu of the qualified principal residence indebtedness exclusion. Petitioner made no such election; however, because three debts were discharged we may apply the insolvency exclusion to the loans not eligible for the qualified principal residence exclusion. 

[Cite as State v. McDougald, 2016-Ohio-5080.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : Case No. 16CA3736 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY JERONE MCDOUGALD, : RELEASED: 7/15/2016 Defendant-Appellant. : APPEARANCES: Jerone McDougald, Lucasville, OH, pro se appellant. Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, OH, for appellee. Harsha, J. {¶1} Jerone McDougald appeals the judgment denying his fifth petition for postconviction relief and his motion for leave to file a motion for new trial. McDougald contends that the court erred in denying his petition, which raised claims of ineffective assistance of his trial counsel. He additionally argues that the court erred in denying his motion for leave to file a motion for new trial, but did not assign any errors regarding this decision. {¶2} We reject McDougald’s claims. He failed to demonstrate the requirements necessary for the trial court to address the merits of his untimely claims in his fifth petition for postconviction relief. Moreover, res judicata barred this successive petition because he could have raised these claims on direct appeal or in one of his earlier postconviction petitions. Finally, because he failed to assign any error regarding the trial court’s denial of his motion for leave to file a motion for new trial, we need not address his arguments regarding that decision. Scioto App. No. 16CA3736 2 {¶3} Therefore, we affirm the judgment of the trial court denying his petition and motion. I. FACTS1 {¶4} Authorities searched a premises in Portsmouth and found crack cocaine, money, digital scales, and a pistol. They arrested the two occupants of the residence, McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand Jury returned an indictment charging McDougald with drug possession, drug trafficking, possession of criminal tools, and the possession of a firearm while under disability. McDougald pleaded not guilty to all charges. {¶5} At the jury trial Kendra White testified that McDougald used her home to sell crack cocaine and that she sold drugs on his behalf as well. She also testified that the digital scales belonged to McDougald and, although the pistol belonged to her ex- boyfriend, Benny Simpson (who was then incarcerated), McDougald asked her to bring it inside the home so that he would feel more secure. White explained that Simpson previously used the pistol to shoot at her, but threw it somewhere in the backyard when he left. Simpson then allegedly called White from jail and instructed her to retrieve the pistol. White complied and then hid it “under the tool shed” until McDougald instructed her to retrieve it and bring it inside the house. White confirmed that she saw McDougald at the premises with the gun on his person. {¶6} Jesse Dixon and Melinda Elrod both testified that they purchased crack cocaine from McDougald at the residence. Shawna Lattimore testified that she served 1Except where otherwise noted, these facts are taken from our opinion in State v. McDougald, 4th Dist. Scioto Nos. 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v. McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245. Scioto App. No. 16CA3736 3 as a “middleman” for McDougald's drug operation and also helped him transport drugs from Dayton. She testified that she also saw McDougald carry the pistol. {¶7} The jury returned guilty verdicts on all counts. The trial court sentenced McDougald to serve five years on the possession count, nine years for trafficking, one year for the possession of criminal tools, and five years for the possession of a firearm while under disability. The court ordered the sentences to be served consecutively for a total of twenty years imprisonment. The sentences were included in a judgment entry filed April 30, 2007, as well as a nunc pro tunc judgment entry filed May 16, 2007. {¶8} In McDougald's direct appeal, where he was represented by different counsel than his trial attorney, we affirmed his convictions and sentence. State v. McDougald, 4th Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected McDougald's contention that because the only evidence to link him to the crimes was “the testimony of admitted drug addicts and felons,” the verdicts were against the manifest weight of the evidence: * * * appellant's trial counsel skillfully cross-examined the prosecution's witnesses as to their statuses as drug addicts and convicted felons. Counsel also drew attention to the fact that some of the witnesses may actually benefit from the testimony that they gave. That evidence notwithstanding, the jury obviously chose to believe the prosecution's version of the events. Because the jury was in a better position to view those witnesses and determine witness credibility, we will not second- guess them on these issues. Id. at ¶ 8, 10. {¶9} In January 2009, McDougald filed his first petition for postconviction relief. He claimed that he was denied his Sixth Amendment right to confrontation when the trial court admitted a drug laboratory analysis report into evidence over his objection. Scioto App. No. 16CA3736 4 The trial court denied the petition, and we affirmed the trial court's judgment. State v. McDougald, 4th Dist. Scioto No. 09CA3278, 2009-Ohio-4417. {¶10} In October 2009, McDougald filed his second petition for postconviction relief. He again claimed that he was denied his Sixth Amendment right of confrontation when the trial court admitted the drug laboratory analysis report. The trial court denied the petition, and McDougald did not appeal the judgment. {¶11} In July 2014, McDougald filed his third petition for postconviction relief. He claimed that: (1) the trial court lacked jurisdiction to convict and sentence him because the original complaint filed in the Portsmouth Municipal Court was based on false statements sworn to by the officers; (2) the prosecuting attorney knowingly used and relied on false and perjured testimony in procuring the convictions against him; and (3) the state denied him his right to due process by withholding exculpatory evidence, i.e., a drug task force report. McDougald attached the report, the municipal court complaints, a portion of the trial transcript testimony of Kendra White, his request for discovery, and the state's answer to his request for discovery to his petition. The trial court denied the petition because it was untimely and did not fall within an exception justifying its late filing. McDougald appealed from the trial court's judgment denying his third petition for postconviction relief. {¶12} In December 2014, McDougald filed his fourth petition for postconviction relief. He claimed that his sentence is void because the trial court never properly entered a final order in his criminal case. The trial court denied the petition. McDougald appealed from the trial court's judgment denying his fourth petition for postconviction relief. Scioto App. No. 16CA3736 5 {¶13} We consolidated the appeals and affirmed the judgments of the trial court denying his third and fourth petitions for postconviction relief. McDougald, 2015-Ohio- 5590. We held that McDougald failed to establish the requirements necessary for the trial court to address the merits of his untimely claims and that res judicata barred the claims because he either raised them on direct appeal or could have raised them on direct appeal or in one of his previous petitions for postconviction relief. Id. {¶14} In November 2015, over eight and one-half years after he was sentenced, McDougald filed his fifth petition for postconviction relief. He argued that his trial counsel had provided ineffective assistance by failing to conduct an independent investigation of various matters, failing to use preliminary hearing testimony of the arresting officer to impeach the state’s case, failing to emphasize Kendra White’s prior statements to the police to impeach her testimony, failing to object to the arresting officer’s testimony that the firearm found at the scene was operable and had a clip and bullets, and failing to counter the state’s response to his objection concerning testimony about an Ohio Bureau of Criminal Investigation (“BCI”) report with evidence that the BCI employee had been timely subpoenaed. {¶15} In December 2015, McDougald filed a motion for leave to file a motion for new trial. He claimed that the state withheld a drug task force report that contained strong exculpatory evidence and that the report proved that the state presented false and perjured testimony at trial. {¶16} After the state responded, the trial court denied the petition and the motion, and this appeal ensued. II. ASSIGNMENTS OF ERROR Scioto App. No. 16CA3736 6 {¶17} McDougald assigns the following errors for our review: 1. Defendant was prejudiced by trial counsel’s failure to conduct independent investigation to rebut state’s theory of prior acts of the defendant or ask for a mistrial prejudicing defendant’s trial. 2. Defendant was prejudiced by trial counsel’s failure to conduct independ[e]nt investigation and failed to present that the prosecutor knowingly used false and fabricated testimony concerning the gun in violation of defendant[’]s due process prejudicing defendant[’]s trial. 3. Defendant was prejudiced by trial counsel[’]s failure to conduct independent investigation and failed to present that the state knowingly used false and fabricated evidence in violation of defendant’s due process rights and prejudicing defendant’s trial. 4. Defendant was prejudiced by trial counsel’s failure to conduct independent investigation and failed to present that the arresting officer[’]s conduct in admitting and establishing the op[]erability of the f[i]rearm violat[ed] defendant’s due process rights and also evidence [rule] 702-703. 5. Defendant was prejudiced by trial counsel’s failure to raise that BCI tech was subpoenaed within the 7 day requirement pursuant to R.C. 2925.51(C) prejudicing defendant’s 6th amendment rights to confrontation. Trial attorney was ineffective in this regard. III. STANDARD OF REVIEW {¶18} McDougald’s assignments of error contest the trial court’s denial of his fifth petition for postconviction relief. {¶19} The postconviction relief process is a collateral civil attack on a criminal judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Postconviction relief is not a constitutional right; instead, it is a narrow remedy that gives the petitioner no more rights than those granted by statute. Id. It is a means to resolve constitutional claims that cannot be addressed on direct appeal because the evidence supporting the claims is not contained in the record. State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18. Scioto App. No. 16CA3736 7 {¶20} “[A] trial court's decision granting or denying a postconviction relief petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court's finding on a petition for postconviction relief that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. In re H. V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8. IV. LAW AND ANALYSIS A. Fifth Petition for Postconviction Relief {¶21} In his five assignments of error McDougald asserts that his trial counsel was ineffective for failing to investigate his case and failing to take certain actions during his jury trial. {¶22} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed “no later than three hundred sixty-five days after the expiration of the time for filing the appeal.” McDougald’s fifth petition for postconviction relief was filed over eight years after the expiration of time for filing an appeal from his convictions and sentence so it was untimely. See, e.g., State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio- 2756, ¶ 15. {¶23} R.C. 2953.23(A)(1) authorizes a trial court to address the merits of an untimely filed petition for postconviction relief only if: (1) the petitioner shows either that he was unavoidably prevented from discovery of the facts upon which he must rely to present the claim for relief or that the United States Supreme Court recognized a new federal or state right that applies retroactively to him; and (2) the petitioner shows by Scioto App. No. 16CA3736 8 clear and convincing evidence that no reasonable factfinder would have found him guilty but for constitutional error at trial. {¶24} McDougald does not contend that the United States Supreme Court recognized a new right that applied retroactively to him, so he had to prove that he was unavoidably prevented from the discovery of the facts upon which he relied to present his ineffective-assistance-of-counsel claim. “A defendant is ‘unavoidably prevented’ from the discovery of facts if he had no knowledge of the existence of those facts and could not have, in the exercise of reasonable diligence, learned of their existence within the time specified for filing his petition for postconviction relief.” State v. Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 19, citing State v. Holnapy, 11th Dist. Lake No. 2013-L-002, 2013-Ohio-4307, ¶ 32, and State v. Roark, 10th Dist. Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 11. {¶25} The only “new” evidence cited by McDougald in his petition for postconviction relief consisted of an excerpt from the arresting officer’s preliminary hearing testimony, a subpoena issued to a BCI employee, and a CD of Kendra White’s police interview following her arrest. He does not explain how either he or his appellate counsel were unavoidably prevented from having access to this evidence at the time he filed his direct appeal. Nor does he indicate how he was unavoidably prevented from discovering them before he filed any of his previous four petitions for postconviction relief. “Moreover, ‘[t]he fact that appellant raises claims of ineffective assistance of counsel suggests that the bases for his claims could have been uncovered if “reasonable diligence” had been exercised.’ ” Cunningham, 2016-Ohio-3106, at ¶ 22, quoting State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-3791, ¶ 18. Scioto App. No. 16CA3736 9 Therefore, McDougald did not establish that the trial court possessed the authority to address the merits of his untimely fifth petition for postconviction relief. {¶26} Furthermore, res judicata barred his successive petition because he could have raised his claims of ineffective assistance of trial counsel on direct appeal, when he was represented by different counsel, or in one of his earlier petitions for postconviction relief. See State v. Griffin, 9th Dist. Lorain No. 14CA010680, 2016-Ohio- 2988, ¶ 12, citing State v. Cole, 2 Ohio St.3d 112 (1982), syllabus (“When the issue of competent trial counsel could have been determined on direct appeal without resort to evidence outside the record, res judicata is a proper basis to dismiss a petition for postconviction relief”); Heid, 2016-Ohio-2756, at ¶ 18 (res judicata barred petitioner from raising ineffective-assistance claim that he raised or could have raised in prior petitions for postconviction relief); State v. Edwards, 4th Dist. Ross No. 14CA3474, 2015-Ohio-3039, ¶ 10 (“claims of ineffective assistance of trial counsel are barred from being raised on postconviction relief by the doctrine of res judicata”). This is not a case where the exception to the general rule of res judicata applies, i.e., this is not a case where the defendant was represented by the same counsel at both the trial and on direct appeal. See State v. Ulmer, 4th Dist. Scioto No. 15CA3708, 2016-Ohio-2873, ¶ 15. {¶27} Therefore, the trial court did not act in an unreasonable, arbitrary, or unconscionable manner by denying McDougald’s fifth petition for postconviction relief. We overrule his assignments of error. B. Motion for Leave to File Motion for New Trial Scioto App. No. 16CA3736 10 {¶28} McDougald also argues that the trial court erred by denying his motion for leave to file a motion for new trial. But he failed to assign any error regarding the court’s decision, and we thus need not address his arguments. See State v. Owens, 2016- Ohio-176, __ N.E.3d __, ¶ 59 (4th Dist.), quoting State v. Nguyen, 4th Dist. Athens No. 14CA42, 2015–Ohio–4414, ¶ 41 (“ ‘we need not address this contention because we review assignments of error and not mere arguments’ ”). {¶29} In addition, even if we exercised our discretion and treated McDougald’s “issues presented for review” as assignments of error, they would lack merit. The trial court did not abuse its considerable discretion by denying McDougald’s motion, which was based on his claim that the state withheld a drug task force report. McDougald did not establish by clear and convincing evidence that he was unavoidably prevented from discovering the report long before he filed his motion for leave over eight years after the verdict in his jury trial. See State v. N.D.C., 10th Dist. Franklin No. 15AP-63, 2015- Ohio-3643, ¶ 13. Moreover, we held in McDougald’s appeal from the denial of his fourth and fifth petitions for postconviction relief that the drug task force report did not establish that the state’s case was false because “[t]he report would merely have been cumulative to the other evidence admitted at trial” and it “did not constitute material, exculpatory evidence that the state improperly withheld from McDougald.” McDougald, 2015-Ohio-5590, at ¶ 24. V. CONCLUSION {¶30} Having overruled McDougald’s assignments of error, we affirm the judgment of the trial court. JUDGMENT AFFIRMED. Scioto App. No. 16CA3736 11 JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J. & Hoover, J.: Concur in Judgment and Opinion. For the Court BY: ________________________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 

723 P.2d 394 (1986) L. Lynn ALLEN and Merle Allen, Plaintiffs and Respondents, v. Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants. No. 18290. Supreme Court of Utah. July 29, 1986. H. James Clegg, Scott Daniels, Salt Lake City, for defendants and appellants. Boyd M. Fullmer, Salt Lake City, for plaintiffs and respondents. HOWE, Justice: The plaintiffs Allen (buyers) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. The defendants Kingdon (sellers) appeal the trial court's judgment that the agreement had been rescinded by the parties and that the buyers were entitled to a full refund. *395 On February 12, 1978, the buyers entered into an earnest money agreement to purchase the sellers' home for $87,500. The agreement provided for an immediate deposit of $1,000, which the buyers paid, to be followed by an additional down payment of $10,000 by March 15, 1978. The buyers were to pay the remainder of the purchase price at the closing which was set on or before April 15, 1978. The agreement provided for the forfeiture of all amounts paid by the buyers as liquidated and agreed damages in the event they failed to complete the purchase. The buyers did not pay the additional $10,000, but paid $9,800 because the parties later agreed on a $200 deduction for a light fixture the sellers were allowed to take from the home. An inscription on the $9,800 check stated all monies paid were "subject to closing." There were several additional exchanges between the parties after the earnest money agreement was signed. The buyers requested that the sellers fix the patio, which the sellers refused to do. The buyers asked that the sellers paint the front of the home, which Mr. Kingdon agreed to do, but did not accomplish. The parties eventually met to close the sale. The buyers insisted on a $500 deduction from the purchase price because of the sellers' failure to paint. The sellers refused to convey title unless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allen and Mrs. Kingdon left the meeting, after which Mr. Kingdon orally agreed to refund the $10,800, paid by the buyers. However, three days later, the sellers' attorney sent a letter to the buyers advising them that the sellers would retain enough of the earnest money to cover any damages they would incur in reselling the home. The letter also stated that the buyers could avoid these damages by closing within ten days. The buyers did not offer to close the sale. The home was eventually sold for $89,100, less a commission of $5,346. Claiming damages in excess of $15,000, the sellers retained the entire $10,800 and refused to make any refund to the buyers. The trial court found that the parties had orally rescinded their agreement and ordered the sellers to return the buyers' payments, less $1,000 on a counterclaim of the sellers, which award is not challenged on this appeal. The sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a written executory contract for the sale of real property. U.C.A., 1953, § 25-5-1 provides: No estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. (Emphasis added.) In Cutwright v. Union Savings & Investment Co., 33 Utah 486, 491-92, 94 P. 984, 985 (1908), this Court interpreted section 25-5-1 as follows: No doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrendered by parol merely.... No doubt, if a parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been done under it, it is within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be. (Emphasis added.) In that case, the buyer purchased a home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. The buyer moved into the home but soon discontinued payments. He informed the seller that he would make no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer's interest informed the seller that he intended to make the payments *396 under the contract and demanded possession. The seller refused to accept the payments, claiming that the contract had been mutually rescinded on the buyer's surrender of possession. We held that the statute of frauds generally requires the surrender of legal and equitable interests in land to be in writing. Where, however, an oral rescission has been executed, the statute of frauds may not apply. In Cutwright, surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute of frauds. This exception is one of several recognized by our cases. We have also upheld oral rescission of a contract for the sale of land when the seller, in reliance on the rescission, enters into a new contract to resell the land. Budge v. Barron, 51 Utah 234, 244-45, 169 P. 745, 748 (1917). In addition, an oral rescission by the buyer may be enforceable where the seller has breached the written contract. Thackeray v. Knight, 57 Utah 21, 27-28, 192 P. 263, 266 (1920). In the present case, the oral rescission involved the surrender of the buyers' equitable interest in the home under the earnest money agreement. Further, the rescission was wholly executory. There is no evidence of any part performance of the rescission or that the buyers substantially changed their position in reliance on the promise to discharge the contract. On the contrary, three days after the attempted closing, the sellers informed the buyers that they intended to hold them to the contract. It was only after the buyers continued in their refusal to close that the sellers placed the home on the market. The buyers argue that the weight of authority in the United States is to the effect that an executory contract for the sale of land within the statute of frauds may be orally rescinded. This may indeed be the case when there are acts of performance of the oral agreement sufficient to take it out of the statute of frauds. See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955). In that case, the Colorado Supreme Court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like Utah's, applies specifically to the surrender of interests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only and does not apply to their revocation. However, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary result under a similar statute and fact situation, see Waller v. Lieberman, 214 Mich. 428, 183 N.W. 235 (1921). In light of the specific language of Utah's statute of frauds and our decision in Cutwright v. Union Savings & Investment Co., supra, we decline to follow the Colorado case. We note that the annotator at 42 A.L.R.3d 257 points out that in Niernberg the rescission was acted upon in various ways. We hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds. Nor were the buyers entitled to rescind the earnest money agreement because of the sellers' failure to paint the front of the home as promised. Cf. Thackeray v. Knight, 57 Utah at 27-28, 192 P. at 266 (buyer's oral rescission of contract for sale of land was valid when seller breached contract). The rule is well settled in Utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985). An exception to this general rule has been recognized where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. White v. Fox, 665 P.2d 1297, 1301 (Utah 1983) *397 (citing Bamberger Co. v. Certified Productions, Inc., 88 Utah 194, 201, 48 P.2d 489, 492 (1935), aff'd on rehearing, 88 Utah 213, 53 P.2d 1153 (1936)). There is no indication that the buyers changed their position in reliance on the sellers' promise to paint the front of the house. Thus, equitable considerations would not preclude the sellers from raising the unmodified contract as a defense to the claim of breach. The fact that the parties executed several other oral modifications of the written contract does not permit the buyers to rescind the contract for breach of an oral promise on which they did not rely to their detriment. We therefore hold that the buyers were not entitled to rescind the earnest money agreement because of the sellers' failure to perform an oral modification required to be in writing under the statute of frauds. The buyers also contend that they are entitled to the return of the $10,800 because the inscription on the $9,800 check stated that all monies were paid "subject to closing." The buyers argue that by conditioning the check in this manner they may, in effect, rewrite the earnest money agreement and relieve themselves of any liability for their own failure to close the sale. We cannot accept this argument. The buyers were under an obligation to pay the monies unconditionally. The sellers' acceptance of the inscribed check cannot be construed as a waiver of their right to retain the $10,800 when the buyers failed to perform the agreement. Having concluded that the buyers breached their obligation under the earnest money agreement, we must next consider whether the liquidated damages provision of the agreement is enforceable. That provision provided that the sellers could retain all amounts paid by the buyers as liquidated and agreed damages in the event the buyers failed to complete the purchase. The general rules in Utah regarding enforcement of liquidated damages for breach of contract have been summarized as follows: Under the basic principles of freedom of contract, a stipulation to liquidated damages for breach of contract is generally enforceable. Where, however, the amount of liquidated damages bears no reasonable relationship to the actual damage or is so grossly excessive as to be entirely disproportionate to any possible loss that might have been contemplated that it shocks the conscience, the stipulation will not be enforced. Warner v. Rasmussen, 704 P.2d 559, 561 (Utah 1985) (citations omitted). In support of their contention that the liquidated damages are not excessive compared to actual damages, the sellers assert that they offered evidence of actual damages in excess of $15,000. However, the trial court disagreed and found the amount of liquidated damages excessive. The record indicates that the only recoverable damages sustained by the sellers resulted from the resale of the home at a lower net price amounting to $3,746 (the difference between the contract price of $87,500 and the eventual selling price, less commission, of $83,754). We agree that $10,800 is excessive and disproportionate when compared to the $3,746 loss of bargain suffered by the sellers. Since the buyers did not ever have possession of the property, the other items of damage claimed by the sellers (interest on mortgage, taxes, and utilities) are not recoverable by them. Perkins v. Spencer, 121 Utah 468, 243 P.2d 446 (1952). Therefore, the sellers are not entitled to retain the full amount paid, but may offset their actual damages of $3,746 against the buyers' total payments. See Soffe v. Ridd, 659 P.2d 1082 (Utah 1983) (seller was entitled to actual damages where liquidated damages provision was held unenforceable). We reverse the trial court's judgment that the earnest money agreement was rescinded and conclude that the buyers breached their obligation to close the transaction. However, we affirm the judgment below that the liquidated damages provided for were excessive and therefore not recoverable. *398 The case is remanded to the trial court to amend the judgment to award the buyers $7,054, less $1,000 awarded by the trial court to the sellers on their counterclaim which is not challenged on this appeal. No interest or attorney fees are awarded to either party inasmuch as the trial court awarded none and neither party has raised the issue on appeal. HALL, C.J., and STEWART and DURHAM, JJ., concur. ZIMMERMAN, Justice (concurring): I join the majority in its disposition of the various issues. However, the majority quotes from Warner v. Rasmussen, 704 P.2d 559 (Utah 1985), to the effect that contractual provisions for liquidated damages will be enforced unless "the amount of liquidated damages bears no reasonable relationship to the actual damage or is so grossly excessive as to be entirely disproportionate to any loss that might have been contemplated that it shocks the conscience." The Court then finds that the amount of the liquidated damages provided for in the agreement is "excessive and disproportionate" when compared to the actual loss suffered by the sellers, thus implying that in the absence of a disparity as great as that which exists here (actual loss is approximately one-third of the penalty), the standard of Warner v. Rasmussen will not be satisfied. I think an examination of our cases should suggest to any thoughtful reader that, in application, the test stated in Warner is not nearly as accepting of liquidated damage provisions as the quoted language would suggest. In fact, I believe this Court routinely applies the alternative test of Warner—that the liquidated damages must bear some reasonable relationship to the actual damages—and that we carefully scrutinize liquidated damage awards. I think it necessary to say this lest the bar be misled by the rather loose language of Warner and its predecessors.

154 F.3d 417 U.S.v.Chukwuma* NO. 97-11093 United States Court of Appeals,Fifth Circuit. July 29, 1998 Appeal From: N.D.Tex. ,No397CR104D 1 Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R. 34-2

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1240-10 DAVID CEPEDA JONES, Appellant v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY                         Per curiam. Keasler, and Hervey, JJ., dissent. O R D E R            The petition for discretionary review violates Rule of Appellate Procedure 9.3(b) and 68.4(i) because the original petition is not accompanied by 11 copies and the petition does not contain a complete copy of the opinion of the court of appeals.            The petition is struck. See Rule of Appellate Procedure 68.6.            The petitioner may redraw the petition. The redrawn petition and copies must be filed in the Court of Criminal Appeals within thirty days after the date of this Order.  Filed: October 6, 2010 Do Not Publish

7 P.3d 49 (2000) Donald L. SEGNITZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Donald L. Segnitz, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff). Nos. 99-223, 99-254. Supreme Court of Wyoming. June 2, 2000. *50 Representing Appellant: Donald L. Segnitz, Pro Se. Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General. Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ. MACY, Justice. Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal. We affirm in part and reverse in part. ISSUES In Case No. 99-223, Segnitz presents the following issues for our review: 1. Did the District Court [err] by denying Appellant's Motion to Correct an Illegal Sentence, which was filed because while orally sentenced to concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent[?] 2. Did the District Court [err] by denying Appellant's Motion to Correct ... an ILLEGAL Sentence, which was filed because the Court did not award credit for time served in it[]s Judgement and Sentence, nor Mitimus[?] Nor had it been *51 addressed orally by the Court at sentencing. In Case No. 99-254, Segnitz presents the following issues for our review: A. Did the District Court sentence the Appellant to an illegal term by not abiding by W.R.Cr.P. 32(c)2(C), (E), and (F)? B. Did the District Court by denying the Motion to Correct an Illegal Sentence and then changing the original sentence abuse it[]s d[i]scretion? C. If the change in sentence was proper then should the Appellant [be] afforded due process by the District Court? FACTS In November of 1997, Segnitz was sentenced in Sweetwater County to serve a term in the Wyoming State Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he abandoned this car and stole another, which he drove to Indiana. Both the Platte County and Natrona County authorities issued arrest warrants for the crimes committed in their respective counties. The Board of Parole issued an order of arrest because Segnitz had violated the terms of his parole for the Sweetwater County felony larceny conviction. Segnitz was arrested in Indiana on August 1, 1998, and later charged with felony larceny in both Platte County and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte County to a term of not less than two years nor more than four years in the Wyoming State Penitentiary. The order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three to four years. The stipulation provided for the sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect. Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during which he was released." Segnitz filed motions in the district courts of Platte County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgment and Sentence failed to state the number of days awarded as presentence incarceration credit. In response, the district court issued an order wherein it announced that it intended for the sentence to be served consecutively to the others and that Segnitz was not entitled to presentence incarceration credit. In his Natrona County motion, Segnitz claimed that the Judgment and Sentence failed to reflect the district court's oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. Although the district court initially denied Segnitz's motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences. Segnitz appeals to the Wyoming Supreme Court. DISCUSSION A. Presentence Incarceration Credit Segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. The state counters that Segnitz was on parole and in the legal custody *52 of the Board of Parole during the entire time he was confined on these two charges and that the Board of Parole awarded him credit against his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked. The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). The district court's decision is given considerable deference unless a rational basis does not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. Smith v. State, 988 P.2d 39, 40 (Wyo.1999). A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond. Id. The Board of Parole revoked Segnitz's parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced in the Platte County and Natrona County cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the state's observation that Segnitz should not be allowed to apply the credit to the new sentences "simply because his parole was fortuitously revoked" after, and not before, his convictions for the new crimes. When the Board of Parole awarded Segnitz full credit against his Sweetwater County sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in Platte County and Natrona County to do so. B. Concurrent Sentences Segnitz contends that the district court erred when it ordered his Platte County sentence to run consecutively to the other sentences. The state concedes that Segnitz is correct in this assertion. The original order was silent with regard to how the Platte County sentence was intended to run with the other sentences. Eleven months later, the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County ordered its sentence to run concurrently with the other sentences. When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in Natrona County nor had his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 C.J.S. Criminal Law § 1524 (1989). The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Id. We agree with the state that this is the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to the others. The district court of Natrona County was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken. Affirmed in part and reversed in part.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1461 _____________ JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, AKA Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (A040-015-082) Immigration Judge: Walter A. Durling ______________ Argued January 19, 2018 ______________ Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges. (Opinion Filed: September 4, 2019)  ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Law Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. Hennes [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorney for Respondent GREENAWAY, JR., Circuit Judge. In plain terms, we are called to decide whether precluding a father from ever having his born-out-of-wedlock child derive citizenship through him can be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. In not so plain terms, under the now repealed 8 U.S.C. § 1432(a)(2), a “child” born outside of the United States to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents was deceased.1 Section 1101(c)(1) in turn defined “child” as including a child born out of wedlock only in so far as the child was legitimated under the “law of the child’s residence or domicile” or “the law of the father’s residence or domicile . . . except as otherwise provided in . . .” § 1432. 8 U.S.C. § 1101(c)(1). Section 1432(a)(3) rounded out the triumvirate and exempted mothers of born-out-of-wedlock children from the legitimation requirement by expressly adding that “the naturalization of the mother” was sufficient “if the child was born out of wedlock and the paternity of the child has not been established by legitimation . . . .” See § 1432(a)(3). As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated women and men differently: a naturalized mother could transmit her citizenship to her out-of-wedlock child, regardless of whether the father was alive; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship. Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “is verifiable from the birth itself,” and likewise “the opportunity 1 That is, provided that (1) the naturalization takes place while the child is under eighteen years old, and (2) (a) the child is residing in the United States as a lawful permanent resident when the parent naturalizes or (b) thereafter begins to reside permanently while under the age of eighteen. 8 U.S.C. § 1432(a)(4) & (5). 3 for the development of a relationship between citizen parent and child . . . .” Nguyen v. INS., 533 U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required for [those] claiming under their mothers’ estates . . . .” (emphasis added)). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out-of-wedlock child derive through him. This problem only arises where the child’s mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship to their out-of-wedlock children as a result of the interplay between §§ 1101(c) and 1432(a)(2), whereas naturalized mothers can via at least § 1432 (a)(3). Such is the case with the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. So Tineo’s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. On the cusp of being removed from the United States as a noncitizen, Tineo brings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. We hold that, in this circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) cannot be squared with the equal-protection mandate of 4 the Due Process Clause of the Fifth Amendment. We will therefore grant Tineo’s petition. I. Background A. Arrival in the United States Tineo was born in the Dominican Republic on January 16, 1969. His parents, both citizens of the Dominican Republic, never married. His father, Felipe Tineo, moved to the United States and became a naturalized U.S. citizen in 1981. Two years later, his father married a legal permanent resident. Tineo came to live with his father once his birth mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He was 15 years old at the time and lived with his father until he turned 21 in 1990. B. Removal Proceedings Felipe Tineo died an American in 2006. The question of his son’s citizenship has come up on two occasions: once before his death and once after. Both were in the context of removal proceedings. This is in part because only noncitizens may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) (“Jurisdiction in the executive to order [removal] exists only if the person . . . is a [noncitizen]. An assertion of U.S. citizenship is thus a denial of an essential jurisdictional fact in a [removal] proceeding.” (internal quotation marks omitted)) (quoted in Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); Gonzalez- Alarcon v. Macias, 884 F.3d 1266, 1272 (10th Cir. 2018) 5 (noting that citizenship constitutes the denial of an essential jurisdictional fact in a removal proceeding because only noncitizens are removable). As a consequence, immigration judges terminate removal proceedings where the government cannot demonstrate that a petitioner is a removable noncitizen. See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240.8(a); see also Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019) (“[T]he government failed to prove that Dessouki was [a noncitizen]. So an immigration judge terminated his removal proceedings.”). 1. The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1993. He was issued a Notice to Appear (“NTA”) dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of his citizenship, Tineo produced a United States passport that was issued to him in 2001.2 2 Some confusion exists in the record as to the status of this passport. While the NTA charges that Tineo obtained this passport by using fraudulent documents, there is no evidence to support this claim. The passport application indicates that the only documents attached as exhibits were Tineo’s birth certificate, his mother’s death certificate, his father’s naturalization certificate, and a “memo of law,” which is not in the record before us. A.R. 302. In addition, Tineo clearly disagreed with the IJ when the IJ stated that he had “falsely represented that [he] was a [U.S.] 6  2. The second occasion arose pursuant to an NTA issued on October 14, 2014. The NTA charged several bases for Tineo’s removal, stemming from three events.3 First, Tineo was convicted on July 8, 2002, of the sale of a controlled substance in New York state court, thus making him inadmissible pursuant to 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and (a)(2)(C). citizen to gain entry to this country.” A.R. 111. Thus, we cannot find support for the IJ’s statement that Tineo admitted to obtaining this passport using fraudulent documents. While not germane to our ultimate decision, we nonetheless wish to note the lack of any evidence in the record of fraud in connection with Tineo’s original passport application. As far as we can discern, the issuance of this passport in 2001 did not occur because of any fraudulent misrepresentations made by Tineo. 3 Since, according to the government, Tineo was not admitted in 2008 when he returned to the United States from a trip abroad, the statutes cited in the NTA involve grounds for inadmissibility. Because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 eliminated separate exclusion and deportation proceedings, creating instead a single removal proceeding, Austin T. Fragomen, et al., Fragomen on Immigration Fundamentals: A Guide to Law and Practice § 1:3.3[D] (PLI) (5th ed. 2019), this technicality does not impact our analysis. 7  Second, on January 15, 2008, upon returning to the United States after a trip abroad, Tineo presented the passport issued to him in 2001. The NTA charged that “[i]n doing so, [he] falsely represented [him]self to be a [U.S.] Citizen . . . to gain entry into the United States,” thus violating § 1182(a)(6)(C)(i) and (ii). A.R. 890. The NTA also charged Tineo as being an alien present in the United States without being admitted or paroled, in violation of § 1182(a)(6)(A)(i). This violation was based on the fact that, because Tineo used a United States passport to enter the country and “U.S. Citizens are not inspected, [Tineo] entered without being admitted or paroled after inspection by an Immigration Officer.” A.R. 377. The third event providing a basis for Tineo’s removal was his conviction in 2014 of passport fraud and aggravated identity theft in the Eastern District of Pennsylvania. This conviction arose when, after his passport expired, Tineo attempted to obtain a new passport using the name Luis Padilla. Tineo presented several identification documents in the name Luis Padilla in support of his passport application. Based on this conviction, the NTA charged Tineo as inadmissible, pursuant to § 1182(a)(2)(A)(i)(I). C. Challenges to Removal Appearing pro se before the immigration judge, Tineo admitted to his criminal convictions, but challenged his removability on the grounds that (1) he derived citizenship through his father and (2) this was evinced by his legally obtained first passport.4 4 Tineo also sought relief pursuant to the Convention Against Torture but did not raise that claim in his opening brief 8  1. His derivative citizenship claim was based on former 8 U.S.C. § 1432(a),5 which provides that: A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions: before this Court. It is therefore waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”) (citations omitted). 5 As we have noted, Congress repealed section 1432(a) by enacting the Child Citizenship Act of 2000 [(“CCA”)], § 103, [8 U.S.C. §§ 1431–33 (2001)]. The [CCA] became effective on February 27, 2001, 120 days following its enactment. Because all relevant events respecting [Petitioner]’s claimed derivative citizenship occurred prior to the [CCA]’s effective date, [§] 1432(a) controls our analysis. Brandao v. Att’y. Gen. of U.S., 654 F.3d 427, 428 n.1 (3d Cir. 2011). 9  (1) The naturalization of both parents; or (2) The naturalization of the surviving parent if one of the parents is deceased;[6] or (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins 6 Read literally, § 1432(a)(2) appears to require that first one parent has to die and then the second parent has to naturalize. But the United States Citizenship and Immigration Services (“USCIS”) has determined that the order of events does not matter, so long as all events occur before the child’s eighteenth birthday. Matter of Baires-Larios, 24 I. & N. Dec. 467, 470 (BIA 2008) (quoting Adjudicator’s Field Manual, ch. 71, § 71.1(d)(2), U.S. CITIZENSHIP AND IMMIGRATION SERVICES, (Feb. 2008), http://www.uscis.gov/propub/DocView/afmid/1/172). The parties do not question this practice. 10  to reside permanently in the United States while under the age of eighteen years. 8 U.S.C. § 1432(a) (repealed by Pub. L. No. 106-395, Title I, § 103(a), Oct. 30, 2000, 114 Stat. 1632) (emphasis added). The statute defines “child” as meaning: an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere . . . . § 1101(c)(1) (emphasis added).7 7 The definition continues to also include a child adopted in the United States if, as to both adopted and legitimated children and except as otherwise provided in sections 1431 and 1432 of the title: such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1)), and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption. § 1101(c)(1). 11  The United States Citizenship and Immigration Services (“USCIS”) interpreted the language beginning with “and includes” as restricting the meaning of child to exclude children born out of wedlock who were not legitimated, regardless of whether they were unmarried and under the age of 21. When Tineo filed an application for a certificate of citizenship—also known as a Form N-600—in 2007, USCIS denied his application because he was “a child born out of wedlock” and “had not been legitimated by his [U.S.] citizen father . . . .” App 4. In denying Tineo’s derivative citizenship claim, the Immigration Judge (IJ) stated that “[t]he CIS denial letter [regarding the N-600 application] . . . correctly noted the law.” App. 10. That is, “children born out of wedlock who have not been legitimated are not included in the definition of ‘child’ under the INA.” App. 10.8 8 As Tineo points out, this reading is counterintuitive and counter-textual, for it requires a tortured construction of the phrase “and includes.” It also implies that a child born out of wedlock that is seeking to derive citizenship through her mother must also be legitimated under the law of her own residence or domicile or that of her father. This implication came to bear when Congress passed the CCA. The CCA repealed former § 1432(a) and enacted § 1431(a) in its place. The new provision did away with § 1432(a)(3) such that it remained an open question as to whether § 1101(c)(1)’s legitimation requirement would extend to mothers. The White House Office of Legal Counsel examined the issue, labeled § 1101(c)(1) “poorly drafted,” and outlined a number of permissible interpretations that would avoid imposing a legitimation requirement on mothers. See 12  At the time Tineo was born, the only way a child could be legitimated in the Dominican Republic was through the marriage of the parents prior to the child’s sixteenth birthday. New York also required marriage of the parents in order to legitimate a child. Tineo attempted to establish that his parents, who were never legally married, had a common law marriage. He provided a letter from the Dominican Republic consulate, noting that “common-law marriage is recognized by our Supreme Court through a judgment dated October 17, 2001, in the case of a lawsuit against an insurance company due to the death of a partner.” App. 11, A.R. 943. However, there was no evidence that this decision was retroactive such that it would apply to prior unions. The IJ thus determined that Tineo’s parents did not have a common law marriage at the relevant time. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. It found “no clear error in the Immigration Judge’s factual finding that the respondent has not presented evidence of legitimization . . . , such that he has not established that he was a ‘child’ for purposes of deriving citizenship through his father.” App. 6. Tineo argued that the definition of “child” “creates an unconstitutional gender-based distinction between mothers and fathers, in violation of the equal protection clause of the Constitution.” Id. But the BIA concluded that it lacked “jurisdiction to entertain such a challenge.” Id. Eligibility of Unlegitimated Children for Derivative Citizenship, 27 O.L.C. 136 (2003). 13  2. Tineo further argued that the IJ erred in not finding that he was a U.S. citizen based on the issuance of his first passport. Relying on Delmore v. Brownell, 236 F.2d 598 (3d Cir. 1956), Matter of Villanueva, 19 I. & N. Dec. 101 (BIA 1984), and Matter of Peralta, 10 I. & N. Dec. 43 (BIA 1962), Tineo’s view was “that unless it is void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings, but constitutes conclusive proof of such person’s [U.S.] citizenship.” App. 5. The BIA rejected this argument, based on new precedent from this Court in United States v. Moreno, 727 F.3d 255 (3d Cir. 2013). In Moreno, we held that “a passport constitutes conclusive proof of citizenship only if the passport was issued to a U.S. citizen.” Id. at 257.9 D. Petition for Review and Motion to Remand Tineo filed a timely petition for review with this Court. In lieu of filing a brief, the government moved to remand to allow the BIA “to provide a more fulsome explanation as to what weight should be afforded a previously-valid, but expired passport in establishing citizenship.” Mot. to Remand 1. The case was then stayed, pending the decision in Sessions v. 9 We also note that our precedent in Delmore did not hold that a passport was conclusive proof of citizenship. Rather, we stated that “[o]nce the United States has determined that an individual is a citizen, it should be required to disprove its own determination by clear, unequivocal, and convincing evidence.” Delmore, 236 F.2d at 600 (internal quotation marks omitted). 14 Morales-Santana, 137 S. Ct. 1678 (2017). Upon issuance of the Supreme Court’s decision, Tineo filed a new opening brief, to which the government replied. In its brief, the government noted that it no longer believed remand was necessary since the only issues presented involved legal questions, which this Court could address without input from the BIA. In light of this admission, we deny the motion to remand. II. Jurisdiction and Standard/Scope of Review A. Jurisdiction We have jurisdiction to decide a nationality claim under 8 U.S.C. § 1252(b)(5)(A), since “no genuine [dispute] of material fact about the petitioner’s nationality is presented.” Dessouki, 915 F.3d at 966–67 (affirming that “§ 1252(b)(5)(A) is best read as granting jurisdiction”). We also have jurisdiction to review constitutional claims under § 1252(a)(2)(D). That Tineo’s claim is premised on his father’s constitutional rights is of no moment. Typically, a party has to assert his own legal rights and cannot rely on the legal rights of third parties. Morales-Santana, 137 S.Ct. at 1689. But, as the Supreme Court articulated, we recognize an exception where, as here, the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests. Id. (alteration in original) (internal quotation marks omitted) (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)). As 15 Felipe Tineo’s son, Tineo satisfies the “close relationship” requirement, while his father’s death establishes the hindrance to his father’s ability to assert this claim on his own. See id. (considering the petitioner-child as the “obvious claimant” and “best available proponent” of the equal protection rights of his deceased father whose “failure to assert a claim in his own right stem[med] from disability, not disinterest (internal quotation marks and citations omitted)); see also Breyer v. Meissner, 214 F.3d 416, 423 (3d Cir. 2000) (holding that the petitioner could assert his mother’s equal protection rights because “his own alleged deprivation of citizenship as a result of discrimination against his mother constitute[d] injury-in-fact, the closeness of his relationship to his mother [was] obvious, and his mother’s death most definitely constitute[d] a hindrance to her assertion of her own rights”). B. Standard and Scope of Review Though he asks us to employ any number of mechanisms to cure the constitutional infirmity he asserts, Tineo’s challenge remains that, in conjunction with the government’s construction of “child,” as defined in § 1101(c)(1), and the prior legitimation laws of New York and the Dominican Republic, §§ 1432(a)(2) and (a)(3) prohibited a father from transmitting his citizenship to his born-out-of- wedlock child in his care when the child’s mother was deceased, while allowing similarly situated mothers to so transmit. Appellant’s Op. Br. 48. Tineo’s is thus a challenge to a citizenship-determining “legislation that differentiate[d] on the basis of gender,” Morales-Santana, 137 S. Ct. at 1690, and that did so in an allegedly unconstitutional manner in his case. 1. 16  The standard of review for such a challenge is intermediate scrutiny. That is, the legislation will only withstand constitutional scrutiny if its defender shows “at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Id. (internal quotation marks and citations omitted). This is not merely because the legislation differentiates on the basis of gender. Indeed, because of Congress’s “broad power to admit or exclude [noncitizens],” statutes governing immigration benefits to noncitizens need only be supported by a rational basis, even where they differentiate on the basis of gender. See Fiallo v. Bell, 430 U.S. 787, 788–89, 792–96 (1977). Rather, it is also because, as was the case in Morales- Santana, Tineo claims that “he is” and has for some time been “a U.S. citizen.” See Morales-Santana, 137 S. Ct. at 1693–94 (applying an “exacting standard of review” to “a claim of th[e same] order”); see also Dent v. Sessions, 900 F.3d 1075, 1081 (9th Cir. 2018) (overturning prior ruling that rational basis review applied even where the relevant statute governs who is and is not a citizen in light of Morales-Santana). The government concedes as much. See Resp’t Br. 33. Similar to the Ninth Circuit, we previously assessed whether “[f]ormer 8 U.S.C. § 1432’s restrictions on derivative citizenship based solely on the father’s naturalization [were] rationally related” to the reasons proffered by the government. Catwell v. Att’y Gen. of U.S., 623 F.3d 199, 211 (3d Cir. 2010) (emphasis added). Catwell did involve the slightly different circumstance of a noncitizen challenging a citizenship- conferring statute on his own behalf, id. at 210 (“Petitioner 17 contends that former 8 U.S.C. § 1432(a)(3) ‘unconstitutionally discriminates against [him] based upon legitimacy and gender.’”) (quoting Catwell’s Br. 53). That is enough to distinguish it from Breyer, which applied intermediate scrutiny where a noncitizen presented a gender-based equal protection challenge to a citizenship-conferring statute because the challenge was on behalf of his citizen parent. 214 F.3d at 423– 24. But not from Morales-Santana. This is because, unlike Breyer, there is no indication that Morales-Santana’s application of intermediate scrutiny was premised on anything other than the fact that the petitioner’s challenge was gender- based and he “claim[ed] he [was] . . . a U.S. citizen.” 137 S. Ct. at 1693–94. So we too must relent: in accordance with United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009), based on intervening Supreme Court precedent, this panel declines to follow our Court’s precedential decision in Catwell. We will apply intermediate scrutiny in this case and do so because Tineo presents a gender-based equal protection challenge and claims that he is a U.S. citizen. 2. The scope of the challenge is as-applied. This entails a concession that the statute at issue may be constitutional in many of its applications but contends “that its application to a particular person under particular circumstances deprived that person of a constitutional right.” United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (citation omitted). In contrast, a facial challenge “tests a law’s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case.” Id. (citation omitted). Properly understood, Tineo’s challenge turns on the particular 18 circumstances at hand: the statute’s interaction with the New York and Dominican Republic laws and his particular family circumstances. By contrast, many jurisdictions have abolished distinctions between legitimated and unlegitimated children or eased the burden on unwed fathers to legitimate their children. See, e.g., Brandao v. Att’y Gen. of U.S., 654 F.3d 427, 430 (3d Cir. 2011) (abolished in Cape Verde); Anderson v. Holder, 673 F.3d 1089, 1101–02 (9th Cir. 2012) (eased in Arizona). Indeed, in 2015, the BIA observed the “growing consensus— both in the United States and abroad—against labeling children []‘legitimate’ and ‘illegitimate’ by virtue of the marital status of their parents.” Matter of Cross, 26 I. & N. Dec. 485, 492 (BIA 2015). So it eased the burden on unwed fathers in some jurisdictions by holding that, for the purposes of § 1101(c)(1), a father need not follow the formal process required to legitimate a child if that jurisdiction has eliminated all legal distinctions between “legitimate” and “illegitimate” children. Id.10 Additionally, as the government points out, as early as 1940, nearly half of all states permitted a father to take some action other than marrying the child’s mother in order to legitimate a child born out of wedlock. Resp’t Br. 41 (citing Nationality Manual § 1041.861). 10 The burden still remains in jurisdictions that maintain the distinction, since § 1101(c)(1) has not been amended. 19  III. Discussion A. Challenge Moving to the challenge itself, it is twofold. Tineo first asks that we avoid the constitutional question by rejecting the government’s construction of “child,” as defined in 8 U.S.C. § 1101(c)(1), and instead construe the provision as including anyone who is unmarried and under the age of 21. Alternatively, he asks that we deem the interplay between §§ 1101(c)(1) and 1432(a) unconstitutional as applied to his father. 1. Section 1101(c)(1) is the linchpin of the denial of Tineo’s constitutional avoidance argument. This is because § 1101(c)(1) has been interpreted to require that a child born out of wedlock must be legitimated in order to be considered a “child” as incorporated in § 1432(a). So read, it tethers legitimation to the law of the residence or domicile of the father or child. In the context of laws that only permit legitimation through marriage, then, § 1101(c)(1) causes § 1432(a)(2) to prevent a surviving father from ever transmitting citizenship to his child “if the child remained unlegitimated at the time of the mother’s death.” Pet’r’s Op. Br. 16. Further, “[t]he father would be powerless to change this result by adopting or legitimating the child, since adoption is unavailable to biological fathers . . . .” Id. at 19–20. In contrast, a naturalized mother may transmit citizenship to her “child [who] was born out of wedlock and [whose] paternity . . . has not been established by legitimation.” § 1432(a)(3). 20  We agree that the government’s construction of § 1101(c)(1) plays a role in the alleged constitutional violation, but pinning it all on that provision in the way Tineo proposes would be strong medicine for what is an otherwise narrow infirmity. Under the government’s construction, § 1101(c)(1) merely imposes a legitimation requirement on the fathers of children born out of wedlock. While this imposition engenders a differentiation between women and men, it is akin to gender- based differentiation that has withstood constitutional scrutiny. Indeed, in Nguyen, the Supreme Court upheld imposing affirmative steps, including legitimation, on unwed fathers but not mothers so long as they were not “onerous” and did not create “inordinate and unnecessary hurdles to conferral of citizenship on the children of citizen fathers.” Nguyen, 533 U.S. at 62, 65, 70–71. This is because the relation between a mother and a child “is verifiable from the birth itself,” and the same is true of “the opportunity for the development of a relationship between citizen parent and child . . . .” Id. at 62, 65. These same biological differences led the Court to opine in Trimble that “[t]he more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required for [those] claiming under their mothers’ estates . . . .” 430 U.S. at 771 (emphasis added). Assuming arguendo that we would be able to, construing § 1101(c)(1) in the way Tineo proposes would effectively invalidate the legitimation requirement in most instances. Rather than applying in every case in which a child is born out of wedlock and only the father naturalizes, the requirement would only apply where this was true and the out- of-wedlock child married or was over the age of 21. When 21 coupled with the requirement that the parent’s naturalization needs to happen while the child is under eighteen years of age, see § 1432(a)(4), the requirement would become a shell of its former self. This effect is even broader when one considers that § 1101(c)(1) continues to play a role in the renewed § 1431(a), which also requires that the child be “under the age of eighteen years” when the parent naturalizes. § 1431(a)(2). Regardless of the merits (or lack thereof) of imposing a legitimation requirement on the fathers of children born out of wedlock, invalidating a provision’s operation in a vast number of instances across two different statutes, one of which is not at issue, is too strong a medicine for avoiding or curing the otherwise narrow infirmity Tineo has identified. Tineo’s father was unable to have his born-out-of-wedlock child derive citizenship through him, whereas a similarly situated mother would have faced no such roadblock. Though § 1101(c)(1) sets the stage for this disparate treatment, § 1432(a)(2) and (a)(3) are the main acts. We therefore consider the infirmity alleged by Tineo, with due attention to how the provisions operate in concert. 2. As we have noted in prior cases, “the standard of review . . . is often outcome determinative.” Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir. 2013). This case is no different. To survive the challenge Tineo presents, the government is required to show that §§ 1101(c)(1) and 1432(a)’s classification “serve an important governmental interest today.” Morales-Santana, 137 S. Ct. at 1690. This is because, “in interpreting the Equal Protection Clause, the [Supreme] Court has recognized that new insights and societal understandings can reveal unjustified inequality . . . that once 22 passed unnoticed and unchallenged.” Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015) (quoted in Morales-Santana, 137 S. Ct. at 1690). This is a tall order for the government, as it requires justifying treating Tineo’s father as being so different from a similarly situated mother of an out-of-wedlock child that Tineo’s father ought to never be able to transmit his citizenship to Tineo. Unsurprisingly, the order is too tall: the government’s justification is unavailing in these circumstances. It proffers that the classification is a tailored means by Congress to avoid “usurping the traditional province of states, and foreign countries, to regulate domestic relationships.” Resp’t Br. 35–36, 38. In essence, Congress wanted to “defer to states’ laws on legitimacy” that “did not permit a[n unlegitimated] child to inherit from his . . . father.” Id. at 40. This justification is tantamount to asserting that the federal government has an important interest in perpetuating discrimination under state or foreign law against the fathers of nonmarital children, a premise that is at odds with Supreme Court precedent. See Morales-Santana, 137 S. Ct. at 1700 n.25. As the Court observed, “[d]istinctions based on parents’ marital status . . . are subject to the same heightened scrutiny as distinctions based on gender.” Id.; cf. Cabrera v. Att’y Gen. of U.S., 921 F.3d 401, 404 (3d Cir. 2019) (applying rational basis review to disparate treatment of biological and adoptive children in the context of 8 U.S.C. § 1409). Permitting the government to impose one dubious classification merely to entrench another would be absurd. Even if this interest did not equate to the perpetuation of discrimination against unwed fathers, the government has not articulated how deferring to state legitimation rules 23 constitutes an important governmental interest “today.” See id. at 1690. Although some states have not formally abolished the distinction between legitimated and unlegitimated children, these classifications now have little import under state law: long gone are the days when unlegitimated children simply could not inherit. See, e.g., N.Y. Est. Powers & Trs. Law § 4- 1.2(2)(C) (allowing unlegitimated children to inherit if they provide results from a paternity test or “evidence that the father openly and notoriously acknowledged the child as his own”). But, when coupled with the circumstances of Tineo’s case, §§ 1101(c)(1) and 1432(a)’s legitimation rule turns these largely meaningless vestiges of a bygone era into the defining characteristic for whether naturalized fathers can ever transmit citizenship to their born-out-of-wedlock children. Our dissenting colleague would like us to cast this reality aside because, “in legislating, Congress is not required to anticipate every potential outcome that results from the application of a statute in order for it to pass constitutional muster.” Diss. Op. 5.11 The view originates from a passage in 11 To be clear, our colleague is not suggesting that Congress need not consider the Constitution when legislating. This proposition finds no support in our jurisprudence, the Supreme Court’s, or that of any of our sister circuits. It is elemental that Congress cannot legislate beyond the limits set by the Constitution. Marbury v. Madison, 5 U.S. 137, 138 (1803) (“An act of congress repugnant to the constitution cannot become law.” (emphasis added)). So, while it may well be true that Congress is not required to anticipate every potential outcome that results from the application of its statutes, we are obliged to hold it accountable for those applications that are unconstitutional. See, e.g., id. at 177–78 24 Nguyen. The Court had acknowledged the importance of assuring the existence of a relationship between citizen parent and child, both as a biological matter and in terms of the opportunity for a true relationship to develop between the two. Nguyen, 533 U.S. at 62, 65 (acknowledging that the biological relationship between a mother and child is “verifiable from the birth itself,” and “likewise the opportunity for the development of a relationship between citizen parent and child”). In response, the “petitioners assert[ed] that, although a mother will know of her child’s birth, knowledge that one is a parent, no matter how it is acquired, does not guarantee a relationship with one’s child.” Id. at 69. The Court dismissed this assertion on the ground that, “even [if] one conceive[d] of the interest Congress pursue[d] as establishment of a real, practical relationship of considerable substance between parent and child in every case,” its chosen means would “meet[] the equal protection standard . . . so long as it is substantially related to the achievement of the governmental objective in question.” Id. at 70 (emphases added) (internal quotation marks and citations omitted). It then clarified this point by explaining that the means-end fit required to survive intermediate scrutiny does not require that the means be “capable of achieving [the] ultimate objective in every instance.” Id. With this as the background, there is no disagreement that the existence of a relationship between citizen parent and child is an important governmental objective, particularly in the “difficult context of conferring citizenship on a vast (“[I]f a law be in opposition to the constitution [and] both the law and the constitution apply to a particular case, . . . the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”). 25 number of persons.” Id. at 70. We also agree that the means- end fit required to survive intermediate scrutiny does not mean that 8 U.S.C. §§ 1101(c)(1) and 1432(a)(2) and (a)(3) have to ensure that this relationship exists in every instance. But Tineo does not contend otherwise: he simply asks us to determine whether the means-end fit was sufficiently close when those provisions did not permit his father to transmit citizenship to him, without providing any practicable way for his father to demonstrate that the requisite relationship existed between the two. To that effect, the Supreme Court has long recognized that “laws treating fathers and mothers differently may not be constitutionally applied . . . where the mother and father are in fact similarly situated with regard to their relationship with the child.” Morales-Santana, 137 S. Ct. at 1693 n. 12 (2017) (alteration in original) (internal quotation marks omitted) (quoting Lehr v. Robertson, 463 U.S. 248, 267 (1983)). It thus saw no equal protection problem where an unwed father who “ha[d] never supported and rarely seen” his child complained that he was entitled to receive notice of a proceeding to adopt her. Lehr, 463 U.S. at 250. The Court concluded that “the New York statutes adequately protected appellant’s inchoate interest in establishing a relationship with [his daughter],” and thus found “no merit in the claim that his constitutional rights were offended.” Id. at 262–65; see also Morales-Santana, 137 S. Ct. at 1693 n.12 (explaining that “[t]he ‘similarly situated’ condition was not satisfied in Lehr, [because] the father in that case had ‘never established any custodial, personal, or financial relationship’ with the child”). Notably, the statutes provided that the father would have been entitled to notice had he done any one of the following: (1) filed his name in the state’s putative father registry, (2) established paternity by 26 adjudication, (3) been identified as the child’s father on her birth certificate, (4) openly lived with the child’s mother and held himself out to be her father, (5) identified as the father in a sworn statement, or (6) married the child’s mother before she turned six months old. Id. at 251. Tellingly, the Court took the opposite view with an Illinois statute that outright terminated the custody rights of an unwed father who had “lived with his children all their lives and had lived with their mother for eighteen years,” and thereby rendered “the nature of the actual relationship between parent and child . . . completely irrelevant.” Lehr, 463 U.S. at 258–59. (emphasis added) (referring to Stanley v. Illinois, 405 U.S. 645, 655 (1972)). Specifically, the statute permitted the state to “circumvent neglect proceedings on the theory that an unwed father [was] not a ‘parent’ whose existing relationship with his children must be considered.” Stanley, 405 U.S. at 649–50. As the Court put it, such a law “conclusively presumed every father of a child born out of wedlock to be an unfit person to have custody of his children.” Lehr, 463 U.S. at 258 (emphasis added). The Court found this “constitutionally repugnant,” because even if “most unmarried fathers are unsuitable and neglectful parents . . . some are wholly suited to have custody of their children,” and the “State readily concede[d]” that there was no evidence that the father “[was] or ha[d] been a neglectful father who ha[d] not cared for his children.” Stanley, 405 U.S. at 649, 654–55. Nothing in Nguyen suggests that the Court has departed from this course. Like the New York statutes in Lehr, 8 U.S.C. § 1409(a)(4) imposed what the Court characterized as a “minimal” burden on unwed fathers to demonstrate the existence of a relationship with their child as a prerequisite for transmitting citizenship. Nguyen, 633 U.S. at 70. The father 27 could take the “least onerous of . . . the[] simple steps and alternatives” of legitimating the child under the law of the child’s residence or domicile, acknowledging paternity in writing under oath, or establishing paternity by adjudication of a competent court. Id. at 59, 69–71 (emphases added). In contrast, the burden imposed on Tineo’s father to demonstrate the existence of a relationship to Tineo was not only onerous, it was impossible. Indeed, like Stanley, the actual relationship between Felipe Tineo and his child was rendered completely irrelevant, and he was conclusively presumed to be unfit to transmit citizenship to his child. We thus maintain that, when applied to his circumstance, the provisions from which such a burden and presumption stem—§§ 1101(c)(1) and 1432(a)(2) and (a)(3)— cannot be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. B. Remedy Anticipating this result, the government suggests that we “should not fashion a remedy and, instead, leave that work to Congress.” Resp’t Br. 48. In so suggesting, the government advances the view that we do not have the “power to provide relief of the sort requested in this [petition]—namely, conferral of citizenship on a basis other than that prescribed by Congress.” Morales-Santana, 137 S. Ct. at 1701 (Thomas, J., joined by Alito, J., concurring in part) (internal quotation marks and citations omitted). We do not subscribe to this view. See Breyer, 214 F.3d at 429 (finding an equal protection violation in a derivative citizenship statute, and providing that, pursuant to additional findings by the District Court, the noncitizen petitioner would “be entitled to American citizenship relating back to his birth”). 28  As an initial matter, a judgment in Tineo’s favor “would confirm [his] pre-existing citizenship rather than grant [him] rights that [he] does not now possess.” Miller v. Albright, 523 U.S. 420, 432 (1998) (opinion of Stevens, J.). Or, more precisely, what Tineo seeks is “severance of the offending provisions so that the statute, free of its constitutional defect, can operate to determine whether citizenship was transmitted” by his father. Nguyen, 533 U.S. at 95–96 (O’Connor, J., dissenting) (citing Miller, 523 U.S. at 488–89) (Breyer, J., dissenting)); Oral Arg. Audio 9:38–10:04. Indeed, as long ago as 1898, the Supreme Court invalidated the application of the Chinese Exclusion Act to a man born in the United States and who therefore, under the Fourteenth Amendment, had been a citizen since birth. See United States v. Wong Kim Ark, 169 U.S. 649, 704 (1898). More to the point, the view espoused by the government has never commanded a majority of the Supreme Court, and, in fact, as the authoring Justice Scalia bemoaned, “[a] majority of the Justices . . . concluded otherwise in” Miller and “the Court . . . proceed[ed] on the same assumption” in Nguyen. Nguyen, 533 U.S. at 73–74 (Scalia, J., joined by Thomas, J., concurring) (concluding that it was thus “appropriate . . . to reach the merits of petitioners’ equal protection claims [and] join the opinion of the Court”). The principal case cited by the government—INS v. Pangilinan, 486 U.S. 875, 883 (1988)—does not convince us otherwise. That case involved the judicial conferral of citizenship as an equitable remedy where there was no finding that the statute was constitutionally infirm. Section 701 of the 1940 Nationality Act provided an avenue by which noncitizens who served in World War II could naturalize without having to meet a residency or English-proficiency requirement. Id. at 29 877–88. That pathway presumed that a representative would be designated to receive petitions, conduct hearings, and grant naturalizations overseas. Id. at 878. For foreign-policy reasons, the Attorney General deprived the Philippine Islands of such a representative for a nine-month period. Id. at 879– 80. This led to a stream of litigation by Filipino veterans who did not naturalize before the 1940 Act expired. Id. at 880. Two cases made it to the Ninth Circuit and were consolidated. Id. The Ninth Circuit held that the deprivation of a representative in the Philippines violated the mandate of the 1940 Act and awarded an equitable remedy by retroactively conferring citizenship. Id. at 882. The Supreme Court reversed because, like the doctrine of equitable estoppel, equitable remedies cannot “override a public policy established by Congress . . . .” Id. at 883 (internal quotation marks and citation omitted). That is, “the power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers.” Id. at 883–84 (emphasis added). That statement and holding have no bearing where the Constitution is concerned. See Nguyen, 523 U.S. at 95–96 (O’Connor, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting). In that instance, the notion that a court is not empowered to fashion a remedy finds support in only an exceedingly strict view of the plenary power doctrine. See Miller, 523 U.S. at 455–56 (Scalia, J., concurring in the judgment) (“It is in my view incompatible with the plenary power of Congress over those fields for judges to speculate as to what Congress would have enacted if it had not enacted what it did . . . .”). It was not too long ago that a similarly strict treatment of this doctrine resulted in the condonation of even the most blatant discrimination. See, e.g., The Chinese 30 Exclusion Case, 130 U.S. 581, 610–11 (1889) (establishing the modern plenary-power doctrine in upholding the Chinese Exclusion Act); Fong Yue Ting v. United States, 149 U.S. 698, 732, 13 S. Ct. 1016, 1017 (1893) (holding that the political branches could deport residents based solely on their race and deem all people of “the Chinese race” incompetent to sign the affidavit needed for Chinese immigrants to remain lawfully); id. at 763 (Fuller, J., dissenting) (castigating the majority’s decision as “incompatible with the immutable principles of justice, inconsistent with the nature of our government, and in conflict with the written constitution by which that government was created, and those principles secured”); Boutilier v. INS, 387 U.S. 118, 122–24 (1967) (holding that Congress could deem gay men excludable “as afflicted with a . . . psychopathic personality” under the plenary-power doctrine). Unsurprisingly, then, while continuing to recognize the broad deference owed to Congress in immigration matters, the Supreme Court has in recent years curtailed the plenary-power doctrine’s excesses, both by clarifying that rational-basis review still adheres upon its invocation and by limiting the classes of persons subject thereto. See, e.g., Morales-Santana, 137 S. Ct. at 1693–94; INS v. Chadha, 462 U.S. 919, 940–41 (1983) (rejecting the government’s invocation of the plenary- power doctrine because the case concerned “whether Congress has chosen a constitutionally permissible means of implementing that power”). We, too, have recognized that the plenary-power doctrine—while affording Congress great discretion—“is subject to important constitutional limitations,” and “it is the province of the courts” to enforce those constraints. Osorio-Martinez v. Att’y Gen. of U.S., 893 F.3d 153, 175 (3d Cir. 2018) (quoting Zadvydas v. Davis, 533 U.S. 31 678, 695 (2001)) (holding that children with special immigrant juvenile status may invoke the Suspension Clause). That curtailment is further apparent from the Court’s remedy analysis in Morales-Santana. After finding an unconstitutional infirmity with the provisions at issue, the Court engaged in precisely the sort of “speculat[ion] as to what Congress would have enacted if it had not enacted what it did” Justice Scalia cautioned against in his concurrence in Miller. The equal protection infirmity at issue was that the statute retained a longer physical-presence requirement for unwed citizen fathers to transmit citizenship to their children born abroad to a noncitizen mother than for similarly situated unwed citizen mothers. Morales-Santana, 137 S. Ct. at 1698. The petitioner asked the Court to extend the benefit of the shorter physical-presence requirement to the unwed fathers that the statute reserved for the unwed mothers. Id. The Court expressly stated that it had the option of doing just that or nullifying the benefit reserved for the unwed mothers such that both classes of parents would have a longer physical presence requirement. Id. Despite acknowledging that “extension, rather than nullification, is the proper course” it chose nullification because extension would have disrupted the statutory scheme in a way that would have meant a shorter physical-presence requirement for unwed fathers and mothers than for their wed counterparts. Id. at 1700. To our case, then, the “proper course” is proper. Indeed, we are confronted with the same two remedial alternatives: we can remedy the unequal treatment by extending the benefit that 8 U.S.C. § 1432(a)(3) confers on unwed mothers to Felipe Tineo or by nullifying the benefit such that the benefit- conferring clause in (a)(3) is excised. We choose the former, and our choice is “governed by the legislature’s intent, as 32 revealed by the statute at hand.” Morales-Santana, 137 S. Ct. at 1699. Gleaning that the proper course is extension is rather straightforward in this case. On the one hand, nothing supports nullification. This is because in the face of nullification—that is, the possibility that § 1101(c)(1) could be read as imposing a legitimation requirement on mothers of children born out of wedlock—Congress spoke in as clear a manner as it could. It said “a child born outside of the United States of [noncitizen parents] . . . becomes a citizen [upon the] . . . the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation . . . .” § 1432(a)(3). Even in the absence of this provision, the government has maintained that no such legitimation requirement exists for mothers. See Eligibility of Unlegitimated Children for Derivative Citizenship, 27 O.L.C. 136 (2003); Memorandum of William Yates, Acting Assoc. Dir., CIS, to Regional Directors, CIS (Sept. 26, 2003), 2003 WL 22334606, at *1. On the other, there is no roadblock to granting extension. There is little support for the view that Congress intended that no unlegitimated child born out of wedlock would ever derive citizenship through her father. Even if it did, its enactment of a severability provision counsels against considering that conviction as so strong as to warrant depriving similarly situated mothers of the benefit in order to implement it. See The Immigration and Nationality Act of 1952 § 406, 66 Stat. 163, 281 (“If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.” (emphases added)). 33  In addition, contrary to the government’s suggestion, Morales-Santana is no obstacle. The Court’s reluctance to grant extension in Morales-Santana was driven by the fact that it would result in ascribing a discriminatory intent to Congress: that of “disadvantageous treatment of marital children in comparison to nonmarital children.” 137 S. Ct. at 1700. There is no argument that § 1101(c)(1)’s legitimation requirement applies, or has ever applied, to the parents of children born in wedlock. Thus, extending Felipe Tineo the same treatment that § 1432(a)(3) affords to similarly situated mothers would not disrupt the statutory scheme in any significant way, nor will it result in ascribing a discriminatory intent to Congress. So we will: Jose Francisco Tineo became a U.S. citizen when his father naturalized and he was “under the age of eighteen years” and “residing in the United States pursuant to a lawful admission for permanent residence . . . .” See § 1432(a)(4) & (a)(5). That is since June 15, 1985. ***** We acknowledge that, like Morales-Santana before him, Tineo does not engender much sympathy. He had other options available to seek citizenship in his own right. See, e.g., 8 U.S.C. § 1427. Although “[t]his option [might have] be[en] foreclosed to [Tineo], [] any bar [would have been] due to the serious nature of his criminal offenses, not to an equal protection denial or to any supposed rigidity or harshness in the citizenship laws.” Nguyen, 533 U.S. at 71. But he is not the Tineo that is our focus here. The result fostered by the gender classification at issue precluded Felipe Tineo from ever having his child derive citizenship from him. No matter how we attain it, the Constitution guarantees us the 34 rights and responsibilities that come with American citizenship, regardless of gender, religious beliefs, or the color of our skin. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994). Felipe Tineo acquired citizenship and lived out its responsibilities, so we cannot lend our imprimatur to his being unconstitutionally denied one of its benefits. This is the focus of Jose Tineo’s challenge, and the lens through which we view him an American. With this ruling, the consequence for Tineo’s offenses is not removal, but rather what the law provides is permissible for any other citizen who is convicted of the same offenses. We will therefore grant the petition for review and vacate the order of removal. This course obviates the need to reach Tineo’s argument that the BIA should have found that his passport established a presumption of citizenship that the government may rebut only by showing that the passport was fraudulently or illegally obtained. See Dessouki, 915 F.3d at 967 (citizenship finding mooted “lingering agency issues”). 35 SMITH, Chief Judge, concurring in part and dissenting in part. When Felipe Tineo became a naturalized United States citizen, he acquired all the rights that adhere to that status. At the relevant time, this included the right to pass his citizenship to his children under the circumstances described in 8 U.S.C. § 1432.1 Because we address the claim that Felipe Tineo would have been able to pass his citizenship to his son José pursuant to § 1432 but for a gender-based classification preventing it, I concur with the majority that we apply intermediate scrutiny in conducting our review.2 Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017). Intermediate scrutiny requires that the 1 For simplicity, I refer only to § 1432. However, as the majority correctly observes, the gender-based classification at issue arises from the interaction of two subsections of § 1432 with the definition of “child” in 8 U.S.C. § 1101(c)(1). 2 I likewise concur with the majority in its view that, to the extent Catwell v. Attorney General, 623 F.3d 199, 211 (3d Cir. 2010), applied rational basis review to a gender-based equal protection challenge, we must decline to follow it in light of the Supreme Court’s more recent decision in Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017). 1 gender-based classification serve an important governmental objective and be substantially related to achievement of that objective. Id. at 1690. I part ways with the majority because, in my view, § 1432 satisfies that standard.3 The Government posits that § 1432 serves an important governmental objective: as in Nguyen v. INS, 533 U.S. 53 (2001), the statute utilizes legitimation “as a tailored means of ensuring that only those unwed fathers who had achieved equal parental rights as those afforded to mothers under the law of their state or country were permitted to pass citizenship to their child.” Resp’t. Br. 35–36. Recently, in Morales-Santana, the Supreme Court reaffirmed that it correctly decided Nguyen. In Nguyen, the parental acknowledgement requirement served the important interest of establishing “the parent’s filial tie to the child.” Morales-Santana, 137 S. Ct. at 1694. The Supreme Court described the parental acknowledgement requirement as “a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth.” Id. 3 I further agree with the majority that, under United States v. Moreno, 727 F.3d 255, 257 (3d Cir. 2013), Tineo’s first passport does not constitute conclusive proof of citizenship. 2  Nguyen recognized two important interests that are served in establishing the existence of such a filial tie: (1) the importance of assuring the existence of a biological father-child relationship; and (2) the importance of developing a true interpersonal relationship between the child and the citizen parent who, in turn, has ties to the United States. Nguyen, 533 U.S. at 62–65. The differential treatment of mothers and fathers is based upon genuine differences at the time of the birth of a child, and does not rely on outdated stereotypes. See Nguyen, 533 U.S. at 68 (“There is nothing irrational or improper in the recognition that at the moment of birth . . . the mother’s knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.”). The legitimation requirement in § 1432, like the parental acknowledgment requirement in Nguyen, is substantially related to the goal of ensuring that a naturalized father’s citizenship passes automatically to his child only in those cases where a genuine biological and familial tie exists. “It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond.” Nguyen, 533 U.S. at 70. The fit between the means and the important end is, as in Nguyen, “exceedingly persuasive.” Id. 3  Section 1432 is actually more difficult to satisfy than the statute in Nguyen because § 1432 is limited to legitimation under local law, while the statute in Nguyen permitted paternal acknowledgment via two additional methods (a court order of paternity or a declaration of paternity under oath). See Nguyen, 533 U.S. at 70–71. In my view, this does not change the conclusion that Nguyen applies. Even if § 1432 had included the other alternatives described in Nguyen, none of them would be available to José Tineo because there is no evidence that his father acknowledged paternity or adjudicated paternity before José turned 18. Moreover, as observed in Nguyen, José Tineo could have sought citizenship in his own right, were it not for his having committed serious criminal offenses. See Nguyen, 533 U.S. at 71. It need hardly be pointed out that we are not permitted to override the will of Congress and select other methods for designating the recipients of derivative citizenship. Indeed, in Nguyen, the Supreme Court rejected the suggestion that a DNA test should suffice, observing that the “Constitution . . . does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity.” Nguyen, 533 U.S. at 63. Our review is limited to consideration of whether Congress’s selection of state legitimation law is substantially related to its goal of establishing the existence of a true filial tie before 4 citizenship may pass from a father to his non-marital child. As I see it, such a substantial relationship exists. The majority is swayed by the outcome that José Tineo is forever barred from receiving derivative citizenship via his naturalized father because his mother died when José was 15, and the laws of the relevant jurisdictions (New York and the Dominican Republic) offered no method for Felipe to legitimate José after her death. For that reason, the majority dismisses the Government’s primary justification for the statute. But in legislating, Congress is not required to anticipate every potential outcome that results from the application of a statute in order for it to pass constitutional muster. See Pierre v. Holder, 738 F.3d 39, 53–54 (2d Cir. 2013). Congress legislated in the “difficult context of conferring citizenship on vast numbers of persons.” Nguyen, 533 U.S. at 70. We should therefore accept the means Congress chose, so long as it does so within the bounds of the constitution by legislating “in substantial furtherance of important governmental objectives.” See id. I believe its chosen course meets that test.4 4 In dismissing the government’s proffered justification, the majority relies on decisions about the termination of parental rights. In Lehr v. Robinson, 463 U.S. 248, 266– 68 (1983), for instance, the Supreme Court upheld a New York law that prevented a biological father from vetoing 5 his daughter’s adoption by another man. Lehr, in turn, cites Caban v. Mohammed, 441 U.S. 380, 389 (1979), a case in which the Supreme Court rejected an earlier version of the same New York statute because it too broadly assumed that a father always has a lesser bond than a mother. In Caban, the statute was structured in a way that did not take into account the father’s relationship with his biological child at all, and instead relied exclusively on “overbroad generalizations” about a non- marital father’s role. Id. at 394. Thus, Caban concerned the sort of outdated gender stereotypes that do not underlie the legislation before us today. And, after Caban, the New York legislature amended the statute to provide methods for an unwed father to establish the existence of a relationship with his child. See Practice Commentary, N.Y. Dom. Rel. Law § 111 (McKinney 2016). It was the amended statute that survived scrutiny in Lehr. Here, in contrast to Lehr and Caban, Congress was not addressing the termination of parental rights in adoption, but was legislating to ensure the existence of the father’s filial tie for the specific purpose of passing on a citizenship right. The Supreme Court spoke to this important interest in Nguyen and upheld an analogous provision as constitutional because it substantially served that important interest. Nguyen, 533 U.S. at 67. In short, Lehr and Caban arose in a distinct and distinguishable context and do not undermine my conclusion that Nguyen controls. 6  Equal protection does not require that “the statute under consideration must be capable of achieving its ultimate objective in every instance.” Id. Thus, although the result in the case we confront is that José Tineo cannot acquire derivative citizenship under § 1432, such an outcome does not mean that his father was deprived of the equal protection of the law. I therefore would deny the petition for review. 7 

832 F.Supp. 209 (1993) Suella DEBOLT, et al., Plaintiffs, v. Mike ESPY, Secretary, U.S. Department of Agriculture, et al., Defendants. No. C2-91-157. United States District Court, S.D. Ohio, E.D. July 18, 1993. *210 *211 Sandra A. Scott, Southeastern Ohio Legal Service, Zanesville, OH, Gary Michael Smith, Southeastern Ohio Legal Service, New Philadelphia, OH, for Suella Debolt. Sylvia T. Kaser, U.S. Dept. of Justice, Chief, Special Litigation Section, Washington, DC, O. Charles Hosterman, U.S. Atty., Columbus, OH, for all other defendants. James D. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for Woodrose Ltd. MEMORANDUM AND ORDER BECKWITH, District Judge. Background This case is currently before the Court to consider several motions filed by the parties in this action. This matter arose when Suella Debolt filed a complaint against two private Defendants, the owner and management company of the housing project in which she resided, and against several federal Defendants, the Secretary of Agriculture, and the Administrator, State Director, and a District Director of the Farmers Home Administration (hereinafter the "FmHA"). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In her complaint, the Plaintiff contends that the FmHA's occupancy limits combined with the agency's administration of the Rural Rental Housing program produce a discriminatory impact on families with children. Beginning in 1986, Ms. Debolt resided in the Village Green Apartments, a "Section 515" project. The FmHA administers a program called the Rural Rental Housing program or Section 515 program. Under Section 515, the FmHA administers the Section 515 program through loan programs and through project operations. The loan programs aid in the construction of rental housing for very low, low, or moderate income persons or families residing in rural areas experiencing a shortage of adequate housing. 42 U.S.C. § 1485. Ms. Debolt's lease contained a provision that limited the number of occupants in her apartment to four persons. In 1991, when Ms. Debolt gave birth to a fourth child, she was in violation of the lease's four person occupancy limit. Accordingly, the management of the Village Green Apartments notified Ms. Debolt that she was required to move at the end of her lease term. However, as part of the settlement of the eviction action pending against her, Ms. Debolt stayed in her apartment for an additional year. Later, in December of 1991, Ms. Debolt had a fifth child and she was unable to find a larger unit in FmHA's Rural Rental Housing Program, so she moved in with relatives. On September 30, 1992, this Court granted the Plaintiffs' motion to certify this matter as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Accordingly, the Plaintiff class has been certified as: *212 all persons who either are or would be eligible to reside, or to continue to reside within a project financed under FmHA's Section 515 Rural Rental Housing Program, but for the fact that their family size exceeds that permitted to reside in a two bedroom apartment under FmHA's occupancy standards. The Plaintiffs' First Amended Complaint pleads a class action challenging the promulgation and enforcement of an FmHA regulation, 7 C.F.R. § 1944.553, as conflicting with 42 U.S.C. §§ 1471, 1480, and 1485. The Plaintiffs argue that § 1944.553 was promulgated in violation of the Administrative Procedure Act (hereinafter the "APA"). The Plaintiffs also argue that the Defendants improperly administer the Section 515 programs in the State of Ohio. The Plaintiffs assert that the Defendants have a duty to review and disapprove non-complying termination notices to tenants, but that they have failed to do so. The Plaintiffs also assert that the Defendants have approved a model rental agreement which does not provide for a yearly rental term. The Plaintiffs also allege that these federal officials failed to administer the Section 515 program to meet the needs of eligible families. The Plaintiffs specifically assert that this improper administration arbitrarily and unlawfully denies or terminates eligibility for financially eligible tenants and applicant families needing more than two bedrooms under FmHA's restrictive occupancy limits. The Plaintiffs further allege that these occupancy limits, along with the Defendants' improper administration, produce a discriminatory and unlawful disparate impact upon families with children, in violation of the Fair Housing Act. The Federal Defendants' Motion for Judgment on the Pleadings The federal Defendants have filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In their motion, the federal Defendants assert that this Court is without jurisdiction to adjudicate the Plaintiffs' claims, except for those claims contained in Count 5 of the Plaintiffs' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, 9, and 10 are barred by the doctrine of sovereign immunity. The federal Defendants also contend that the Plaintiffs have no private right of action under either the United States Housing Act of 1949 (hereinafter "USHA") or the Fair Housing Act, if sovereign immunity has been waived. The federal Defendants finally argue that the Plaintiffs lack standing to assert their claims that FmHA must finance rental housing units of a particular size. However, the Plaintiffs argue that their claims are not barred by the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutional claims for equitable relief are not barred by sovereign immunity. Also, the Plaintiffs argue that their claims for individual damages and attorney fees under Title VIII are not barred by sovereign immunity, since such immunity was waived by Congress. Under the Administrative Procedure Act, Title 5 Section 702 provides, in part: ... An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. Thus, Section 702[1] of the APA acts to waive sovereign immunity for the Plaintiffs' USHA and constitutional claims. However, in their complaint, the Plaintiffs have only asserted one of their eight remaining claims under the APA. After a careful review of the authorities and arguments advanced by the parties in their memoranda, *213 this Court finds that it agrees with the federal Defendants that all of the Plaintiffs' claims should be asserted under the APA. Accordingly, the next question is whether the Plaintiffs should be given leave to amend their complaint to assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be given leave to amend their complaint in this case to invoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, the Court notes that the federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The first mention of this issue was contained in the federal Defendants' motion for judgment on the pleadings which was filed almost two years after the institution of the case. The Court first notes the rationale expressed by Judge Whipple of the Western District of Missouri in the case of Tinsley v. Kemp, 750 F.Supp. 1001 (W.D.Mo.1990). In Tinsley, Judge Whipple stated, in part: The intent of the complaint is obvious, so the amendment would be almost a formality. Nevertheless, plaintiffs' basis for bringing civil rights claims against a federal agency should be established explicitly in their complaint. Accordingly, leave will be granted to amend the complaint. Id. at 1010. In another case, Judge Haight of the Southern District of New York allowed plaintiffs to amend their complaint to invoke the Administrative Procedure Act. Almonte v. Pierce, 666 F.Supp. 517, 524-5 (S.D.N.Y. 1987). In Almonte, Judge Haight noted that the case was at the early stage of litigation and that the federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. Id. at 525. In this case, the federal Defendants have not established that any specific prejudice would result from allowing the Plaintiffs to amend their complaint at this late date. The federal Defendants do allege that "voluminous" discovery has occurred in this case, although they do not allege how a technical amendment to the Plaintiffs' complaint would affect whatever discovery has already occurred in this case. The Court simply can not infer that prejudice would result from an amendment which is "almost a formality." See, 750 F.Supp. at 1010. Moreover, Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave [to amend] shall be freely given when justice so requires." As in Tinsley, the Plaintiffs' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. Under the circumstances presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs' complaint to be amended so that their claims are now asserted under the Administrative Procedure Act. The federal Defendants' motion for judgment on the pleadings is hereby DENIED.[2] The Motions for Summary Judgment Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure provides: [Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The purpose of a summary judgment motion is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). In 1986, the United States Supreme Court issued three decisions which gave new life to Rule 56 as a mechanism for weeding out certain claims at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). It is well recognized *214 that these cases brought about a "new era" in summary judgment practice. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). The three opinions by the Supreme Court reflect a return to the original purpose of the summary judgment motion. Id. Accordingly, the summary judgment "standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-8, 106 S.Ct. at 2510 (emphasis in original). Moreover, when a party cannot establish the existence of an element essential to that party's case on which the party will have the burden of proof at trial, the Court must enter summary judgment against that party, pursuant to Rule 56. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Thus, in order to survive a motion for summary judgment, [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in the original) (footnote and citations omitted). Rule 56(e) of the Federal Rules of Civil Procedure provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment if appropriate, shall be entered against the adverse party. Accordingly, mere allegations are not sufficient to defeat summary judgment. The Court can now apply this standard to the Plaintiffs' and the federal Defendants' motions for summary judgment. The Federal Defendants' Motion for Summary Judgment The federal Defendants first contend that neither the United States Housing Act of 1949 ("USHA") nor the Fair Housing Act commands the FmHA to finance construction of additional three and four bedroom units or to dictate to private developers that they must build such units. Since no three bedroom apartments were available for Ms. Debolt when her family size increased to five, the Plaintiffs assert that the FmHA through its improper administration has violated Ms. Debolt's rights under the USHA, Section 515 of USHA, and the Fair Housing Act. However, the Plaintiffs have not indicated exactly what statutory directive supports these alleged rights. The Court has already determined that the Plaintiffs' claims are reviewable solely under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Pursuant to the APA, the FmHA's administration of the Rural Rental Housing Program may only be set aside if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; ... [or] in excess of statutory right...." 5 U.S.C. § 706; Jaimes v. Toledo Metropolitan Housing Authority, 715 F.Supp. 835, 839 (N.D.Ohio 1989). The Court first notes that pursuant to Section 515 of the Rural Rental Housing program, the FmHA is authorized to utilize its discretion in its financing of elderly, family or handicapped housing. 42 U.S.C. § 1485. The Court agrees with the federal Defendants that the FmHA is not required to finance any particular proportion of each type of housing. Moreover, the Court agrees with the federal Defendants that the provisions cited by the federal Defendants in their memoranda support their argument that it was Congress' intention that the private sector take an active role in meeting the nation's housing needs. Additionally, the federal Defendants argue that the familial status provision of the Fair Housing Act does not require the FmHA to *215 finance, or private developers to construct, housing for large families. On the other hand, the Plaintiffs argue that the Fair Housing Act obligates the FmHA to evaluate and consider the impact of proposed housing on existing discriminatory housing patterns, to refrain from approving housing that reinforces those patterns, and to affirmatively promote non-discriminatory housing, relying on Jaimes v. Lucas Metropolitan Housing Authority, 833 F.2d 1203 (6th Cir.1987); and Garrett v. Hamtramck, 503 F.2d 1236 (6th Cir.1974). In 1988, Congress passed the Fair Housing Amendments Act of 1988 which amended the Fair Housing Act of 1968, which is located in 42 U.S.C. §§ 3601-3631. The Fair Housing Act is also referred to as Title VIII of the Civil Rights Act of 1968. Pursuant to Title VIII, discriminatory housing practices based on race, color, national origin, religion, and sex are prohibited. The 1988 Amendments added "familial status" as a protected category with respect to discriminatory housing practices. The Court notes that as opposed to families in general, "large families" are not a specifically protected class under Title VIII. Indeed, the Court notes that in this case Ms. Debolt did not violate her lease and receive an eviction notice until the birth of her fourth child. Accordingly, Ms. Debolt resided in the apartment with children for some length of time before she violated the four person occupancy limit. The Court finds that the Plaintiffs' position here is not supported by the Fair Housing Act, the legislative history of the Act, the administrative interpretation of the Act by the Secretary of HUD, and the relevant case law. Indeed, the Plaintiffs simply have no right to public housing, and the FmHA is not obligated to finance or to compel private developers to build large apartment units. See, Citizens Comm. for Faraday Wood v. Lindsay, 507 F.2d 1065, 1070-71 (2d Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1679, 44 L.Ed.2d 102 (1975); Mahaley v. Cuyahoga Metro. Housing Authority, 500 F.2d 1087, 1093 (6th Cir.1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 781, 42 L.Ed.2d 805 (1975). The federal Defendants also contend that the Secretary's regulations effectuate the policies and purposes of the Rural Rental Housing Program and the Fair Housing Act. The Plaintiffs contend that the FmHA's duties under the Act are found in the case law interpreting Section 3608. The federal Defendants concede that Section 3608(d) is applicable to the various FmHA programs. The Plaintiffs' complaint here focuses on alleged "improper administration" of the Rural Rental Housing Program by the FmHA. The Plaintiffs' claims here originate because Ms. Debolt was not able to obtain a larger, FmHA subsidized apartment and because as many as 15% of eligible families are not able to obtain such housing. In this area, the Plaintiffs' claims are governed by the narrow scrutiny of Section 3608 and the Administrative Procedure Act. See, N.A.A.C.P. v. Secretary of Housing & Urban Dev., 817 F.2d 149, 157-58 (1st Cir.1987). Section 3608(d) of Title VIII provides that the FmHA "shall administer [its] programs and activities relating to housing ... in a manner affirmatively to further the purposes of [the Fair Housing Act]." 42 U.S.C. § 3608(d). The Court finds that the Plaintiff has not presented any evidence that demonstrates that the FmHA acted arbitrarily in deciding its obligations under Section 3608. Additionally, the federal Defendants contend that no equal protection violations occurred in this case, since the FmHA's actions were rationally related to the USHA's legitimate purpose. The federal Defendants have demonstrated that the existing stock of housing is the product of a rational, market-based process. The Plaintiffs have not presented evidence to the contrary. Moreover, the federal Defendants assert that the Plaintiffs' allegations do not rise to the level of a substantive due process violation. In support of this claim, the Court finds that the Plaintiffs have not presented any evidence that supports the extremely high standard of proof required for a substantive due process claim. Also, the federal Defendants argue that the Plaintiffs' claim against the FmHA as a third party beneficiary must be dismissed, *216 since the Plaintiffs have no actionable rights as a third-party beneficiary. The Plaintiffs claim that the "financial, contractual and fiduciary relationship" with respect to the operation of the Village Green Apartments gives rise to certain third party beneficiary rights, and that these rights were violated. The federal Defendants assert that the Plaintiffs have failed to identify any particular contractual arrangement which would give rise to her rights as an alleged third party beneficiary. The courts have generally concluded that tenants are not third-party beneficiaries to regulatory agreements under the USHA. See, e.g., Perry v. Housing Authority of City of Charleston, 664 F.2d 1210, 1218 (4th Cir. 1981); Falzarano v. United States, 607 F.2d 506, 511 (1st Cir.1979); Angleton v. Pierce, 574 F.Supp. 719, 735-6 (D.N.J.1983), aff'd, 734 F.2d 3 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 245, 83 L.Ed.2d 183 (1984); Carson v. Pierce, 546 F.Supp. 80, 86-7 (E.D.Mo.1982), aff'd, 719 F.2d 931 (8th Cir. 1983). Thus, the Court finds that the Plaintiffs have no actionable rights as third-party beneficiaries with respect to the operation of the Village Green Apartments. The federal Defendants also argue that the Plaintiffs cannot establish that FmHA failed to review her notice of eviction and that such a failure violated her rights. The Plaintiffs' claim here appears to be that the FmHA failed to meet its regulatory duty to disapprove legally deficient eviction notices utilized by borrowers and landlords. The Court notes first that the Plaintiffs have not asserted that the FmHA failed to review the particular eviction notice that was served upon Ms. Debolt. Thus, it appears to the Court that the Plaintiffs lack standing on this issue. See, Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2140, 119 L.Ed.2d 351 (1992). The federal Defendants also argue that the Plaintiffs have procedural safeguards with respect to eviction notices under Ohio landlord-tenant law. The Court finds that the existence of this procedural safeguard removes the potential of a due process violation arising from the FmHA's failure to review the eviction notices. Additionally, the federal Defendants assert that the Plaintiffs' claims concerning FmHA's model lease terms are moot. The Plaintiffs assert that the FmHA's model lease violated both the USHA and the APA. The Plaintiffs argument is that the month-to-month renewal term allowed by the Ohio model lease violates USHA's regulations which mandate that "[l]eases for units for which tenants are eligible must cover a period of one year...." 7 C.F.R. Ch. XVIII Pt. 1930, Subpt. C., Exh. B at par. VIII(A)(1). On August 28, 1992, the director of FmHA's Ohio office issued Administrative Notice 956, that contained a new form of model lease that provided for rental terms of one year. Accordingly, the Court finds that the Plaintiffs' claim regarding the month-to-month rental term is now moot. As it has determined that the federal Defendants' motion for summary judgment is meritorious, the Court need not discuss why it has concluded that the Plaintiffs' two motions for summary judgment lack merit. Conclusion For the reasons outlined above, the Court hereby DENIES the Defendants' motion for judgment on the pleadings. The Court hereby DEEMS the Plaintiffs' complaint to be amended so that their claims are asserted under the Administrative Procedures Act. For the reasons outlined above and for the reasons stated by the federal Defendants in their memoranda, the Court hereby GRANTS the federal Defendants' motion for summary judgment, and this case is hereby DISMISSED. IT IS SO ORDERED. NOTES [1] Under the APA, the judicial scope of review has been established by Section 706. Section 706 provides, in part, that a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be (a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (c) in excess of statutory jurisdiction, authority, or limitations or short of statutory right; (d) without observance of procedure by law...." [2] Due to its ruling on the Section 702 jurisdictional issue, the Court will not discuss the other arguments advanced by the parties on the motion for judgment on the pleadings.

204 Va. 316 (1963) LESTER POLLARD v. ELIZABETH SMITH POLLARD. Record No. 5548. Supreme Court of Virginia. April 22, 1963. William Davis Butts, on brief for the appellant. Present, All the Justices. Lester Pollard's bill for divorce on the ground of wilful desertion by his wife Elizabeth Pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. The evidence showed the desertion without cause on January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendant had given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950, section 20-93, changes the prior rule of the cases in such situations and expressly states that insanity so occurring is no defense to a bill for divorce by the deserted spouse. Appeal from a decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case. William Alfred Smith, on brief for the appellee. Case submitted on briefs. CARRICO CARRICO, J., delivered the opinion of the court. In this divorce case we are, for the first time, presented the question of the application of Code, | 20-93, the pertinent provisions of which are as follows: "Insanity of guilty party after commencement of desertion no defense. -- When the suit is for divorce from the bond of matrimony for wilful desertion or abandonment, it shall be no defense that the *317 guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground for divorce shall be deemed to be complete. . . ." The question here presented arises from an appeal granted Lester Pollard, the complainant, from a final decree dismissing his bill of complaint for divorce, alleging wilful desertion and abandonment, filed against Elizabeth Smith Pollard, the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the date of the alleged desertion and prior to the expiration of one year from such date. The bill alleged, and the evidence showed, that the Pollards were married on April 19, 1941; that they lived together for six years, during which time the complainant was a dutiful husband; that the defendant deserted the complainant on January 28, 1947, without just cause or excuse; that the desertion had continued uninterrupted since that date; that on February 26, 1947, the defendant was adjudged insane and was committed to Central State Hospital at Petersburg, where she was still confined when the case was heard. The evidence further showed that the defendant displayed no signs of mental illness at the time she left the complainant on January 28, 1947. Prior to the enactment, in 1926, of what is now Code, | 20-93, it was the law in this state that when a defendant in a divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. We had so held in Wright Wright, 125 Va. 526, 99 S.E. 515, decided June 12, 1919, where it was stated that the reason for the rule was that, "an insane person is incapable of forming the intent, either to continue the desertion or to seek a reconciliation." 125 Va., at pp. 528, 529. In the Wright case, Judge Prentis conceded that the rule there enunciated would, in some cases, cause undue hardship. He said, however, that, "[if] there be hardship, the question is one of public policy for the consideration of the General Assembly." 125 Va., at p. 529. The legislature, perhaps motivated by the cases of hardship pointed to by Judge Prentis but, in any event, in sound consideration of public policy, saw fit to change the rule adopted in the Wright case. In *318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. A defense based upon such insanity, previously provided by judicial rule was, by legislative rule, declared no longer to exist. Now, when desertion occurs and continues uninterrupted for one year the ground of divorce is complete, notwithstanding that the defendant meanwhile has become and has been adjudged insane. It is the duty of the courts to recognize and give effect to such a legislative rule. In the case before us, the evidence was sufficient to sustain the complainant's ground for divorce, and it was error to refuse him a decree because the defendant became and was adjudged insane in the one-year period following the desertion. Accordingly, the decree will be reversed and the cause remanded with direction to enter a decree awarding the complainant a divorce from the defendant for wilful desertion and abandonment for more than one year. Reversed and remanded.

636 F.2d 761 205 U.S.App.D.C. 53 UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITED STATES of Americav.Deborah Y. HAGANS, Appellant. Nos. 80-1225, 80-1228. United States Court of Appeals,District of Columbia Circuit. Argued Sept. 25, 1980.Decided Nov. 24, 1980. Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-00552). Patrick J. Christmas, Washington, D. C., for Bernard Gibson. James H. Craddock, Washington, D. C., (appointed by this Court) for Deborah Y. Hagans. Charles W. Brooks, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Before ROBINSON, WILKEY and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Defendants Gibson and Hagans appeal from a conviction for possession of heroin with intent to distribute. The appeal raises four issues: the legality of two searches conducted at the time of arrest and the propriety of two evidentiary rulings made by the district court. I. Facts 2 Officer Haskins, an officer regularly assigned to narcotics investigations, was stationed at a third floor window of an apartment building in an area where residents had complained about narcotics transactions. He observed a Cadillac Seville carrying four persons pull into a parking lot adjoining the building and park "almost right up against the building." Transcript at 14. Haskins estimated that he was between thirty and forty-five feet from the occupants of the car. Using binoculars, Haskins observed this sequence of activity: defendant Gibson, seated in the driver's seat, counted out numerous glassine packets containing a white substance; defendant Hagans, seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of the packets into a black purse and gave the remaining money and packets to Hagans; Gibson then placed the black purse between the armrests of the front seat of the car. 3 Shortly thereafter, Haskins, joined by back-up officers, approached the car, identified himself, and ordered the four occupants from the car.1 While other officers held Gibson and searched Hagans, Haskins took the black purse from the car. He opened it and found $1325 and two packets of white powder, later identified as heroin. After arresting Gibson and Hagans, Haskins searched the trunk of the car and found a "partially opened" brown paper bag. Transcript at 32. He opened the bag further and removed from it two large vials of preludin pills. Meanwhile, officers had found sixteen packets of heroin and $60 on defendant Hagans and $561 on defendant Gibson. 4 The government charged Gibson and Hagans with possession of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in the black purse and paper bag. After the district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turn dismissed all charges except the charge of possession of heroin with intent to distribute. The district court found both defendants guilty of that charge. II. Fourth Amendment Issues 5 Defendants attack the searches of both the black purse and the paper bag. Since the contents of the paper bag related solely to the charge against Gibson that was dismissed, we need not address the legality of that search. The two vials of preludin pills could not have contributed to the defendants' convictions for heroin possession. Thus the failure to suppress, even if erroneous, was not prejudicial. 6 Seizure of the black purse from the car was permissible under the automobile exception to the warrant requirement. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and our own decision in United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the police could choose either to detain the car while seeking a warrant or to search the car immediately. 7 Defendants argue, however, that once the purse was seized, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), mandated a warrant prior to police search of the purse's interior. We pretermit that argument, because the search was justified on other grounds. Officer Haskins testified that he observed Gibson putting packets containing a white substance into the black purse. This observation, we conclude, brings the case within the court's "plain view" holding in United States v. Johnson, 561 F.2d 832 (D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977). 8 As a threshold matter, we note that Officer Haskins' use of binoculars to observe the activity in the car did not violate the Fourth Amendment. The car in which defendants were observed was parked in an open lot alongside an apartment building. Anyone happening along the street could have glanced into the car and observed the narcotics transaction.2 A person at any of the windows on the side of the building at which Officer Haskins was stationed might have looked into the car.3 Situated as they were, the defendants "had no right to assume that law enforcement officers would not enhance their ability to see ... them by use of various artificial means such as binoculars." United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). See United States v. Powell, 638 F.2d 71, (9th Cir. 1979) (amended Jan. 29, 1980) (upholding a conviction based in part on the actions of an officer who, standing 20-25 yards from a truck, used binoculars to peer into the truck).4 9 Officer Haskins' lawful observation of Gibson placing glassine packets in the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in Johnson, supra. There, a police officer, peering through the basement window of a residence, saw three men seated at a table holding narcotics paraphernalia and "a pyramid of white powder eight to ten inches high." 561 F.2d at 835. The officer returned forty minutes later with other officers and entered the house without a warrant. The three men were arrested, but the narcotics were no longer in sight. The officers thereupon searched the basement and eventually found bundles of narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. The en banc opinion in Johnson concentrated on the questions whether the officer was trespassing when he looked through the basement window and whether, since there was a forty minute delay before entering the house, the officers should have obtained a warrant. Resolving those questions against the defendants, Judge McGowan, writing for the court, turned finally to the warrantless search of the basement. He reasoned that "the police ha(ving) seen a crime actually in progress with contraband in plain view ... they were fully authorized both to make arrests and to seek out the contraband." Id. at 844. Thus the search power could be "viewed as incident to arrest, or as deriving independently from the initial observation of the contraband." Id. at 845. 10 The instant case presents neither of the features that made Johnson problematic. No considerable time span separated the sighting of the packets from the search. Rather, the search followed on the heels of the observation. No extensive quest was involved. Officer Haskins proceeded at once to the place where the packets rested.5 In sum, guided as we are by the Johnson opinion, we find no error in the failure to suppress the evidence found in the black purse. III. Evidentiary Rulings 11 Defendant Hagans attacks two of the district court's evidentiary rulings; both challenges are meritless. 12 First, Hagans complains that Larry Kenan, a lay witness for defendants, was not allowed to testify that in his opinion he could not have seen into the interior of the car if he had been standing at a second story window using binoculars. Kenan and defendant Gibson had attempted to recreate the circumstances surrounding the arrest in an effort to show that Officer Haskins could not have seen into the car carrying Gibson and Hagans. The two went to a second story window of the building in which Haskins had been stationed, made observations, and took pictures. They did not, however, take along binoculars. Kenan was allowed to testify about what he saw during the experiment but he was not allowed to speculate about what he might have seen if he had used binoculars. This was not error. While a lay witness may offer opinion testimony when that testimony will be helpful to the trier of fact, Fed.R.Evid. 701, we know of no case holding that a trial judge must permit a lay witness to use one set of observations as the foundation for an opinion about what he might have seen under different circumstances. 13 Second, Hagans argues that the district court improperly excluded an advertising brochure displaying a Cadillac Seville. The brochure was offered to buttress the defendants' theory that Officer Haskins could not have seen into the car. The district court found, however, that the car portrayed in the brochure differed in a material respect from the car in which Gibson and Hagans were found. The district court did allow the defendants to introduce photographs of the actual car involved in the episode, photographs Gibson had taken at the scene of the arrest. In view of the district court's "wide discretion to admit or exclude evidence where the question is one of relevancy or materiality," United States v. Morgan, 581 F.2d 933, 936 (D.C.Cir.1978), we find no error in the ruling excluding the brochure. Conclusion 14 The items seized from the black purse were in "plain view" of the arresting officer; therefore they were properly allowed into evidence. No other alleged error called to our attention warrants reversal of the convictions. Accordingly, the judgment of the district court is 15 Affirmed. 1 The other two occupants were not arrested and are not involved in this appeal 2 Cf. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion) ("A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.") 3 One of the defendants' witnesses testified that, during an experiment designed to duplicate the facts surrounding the arrest, he could not see with his naked eye into the car's interior from a second floor window. At another point, however, the same witness testified that he could in fact see the back of the front seat from the window. Transcript at 103 4 See also United States v. Minton, 488 F.2d 37 (4th Cir. 1973) (per curiam) (officer used binoculars to watch defendant unload one-gallon jugs of illicit whiskey from a truck), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974); United States v. Loundmannz, 472 F.2d 1376 (D.C.Cir.1972) (per curiam) (officer used binoculars to observe defendant approach car and hand small slips of white paper and money to a man seated in the car), cert. denied, 410 U.S. 957, 93 S.Ct. 1431, 35 L.Ed.2d 291 (1973); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970) (per curiam) (officer positioned 50 yards from defendant used binoculars to watch defendant load large cardboard boxes into car). But cf. United States v. Kim, 415 F.Supp. 1252 (D.Haw.1976) (intrusion into private home by FBI agents using 800 millimeter telescope at a location a quarter of a mile from the surveillance site held an unreasonable search) 5 Here, in contrast to Arkansas v. Sanders, supra, the officer did not merely suspect the presence of contraband, he had seen the packets in defendants' possession

20 Kan. App. 2d 361 (1995) ERROL JOE KAMPSCHROEDER, Appellee, v. NORMA W. KAMPSCHROEDER and SHERRYL HOLMES, Appellants. No. 71,720 Court of Appeals of Kansas. Opinion filed January 6, 1995. Gerald L. Cooley, John M. Cooley, and Randall F. Larkin, of Allen, Cooley & Allen, of Lawrence, for appellant Norma W. Kampschroeder. Stephen M. Fletcher, of Overland Park, for appellant Sherryl Holmes. Byron E. Springer, of Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, for appellee. Before GERNON, P.J., ELLIOTT and LEWIS, JJ. LEWIS, J.: Errol Joe Kampschroeder was born to the marriage of Robert and Waneta Kampschroeder. Waneta died in April *362 1980, and Robert married Norma in October 1980. The marriage was not accepted well by Errol Joe and appears to have affected the relationship between the parties from that point on. Robert and Norma remained married until Robert's death in 1990. Upon Robert's death, most of his and Norma's assets were held in joint tenancy with the right of survivorship. Norma placed these assets in her own name and the name of Sherryl Holmes, her daughter. Errol Joe commenced the present action to impose a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal. We affirm the decision of the trial court. Litigation of this nature is particularly fact driven. The facts in this case are not, unfortunately, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son's father and stepmother's husband at the time of his death. There was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court's findings of fact are supported by substantial competent evidence. After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their assets in joint tenancy. This was to allow the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that "the properties of Robert go to Errol and the properties of Norma go to Sherryl." Although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record. The trial court found five significant factors in reaching its conclusions: "a. The Antenuptial Agreement showed their original intentions to keep their property separate. "b. Robert's attitude toward Sherryl's son was emphatic that he not receive any of Robert's property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties of Norma go to Sherryl. "c. Clearly, the taped conversation of Norma and Nancy corroborates the testimony and position of the Plaintiff. Norma's testimony that she wanted to *363 be fair did not refer to her deciding whether commingled property should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was Robert's, and thus would be Errol's. "d. Robert's comment: `Make certain that Norma will be cared for' is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. The fact that he wanted to make certain Norma was cared for indicated to me on his part a confusion as to what the wills would be. "e. Norma's comment: `This will is no good,' certainly again corroborates the testimony or the position that this was — indeed, the intentions of the parties was to make certain that what was Robert's went to Errol, and what was Norma's went to Sherryl." Once again, the analysis of the trial court is well within the evidence shown. The five factors cited by the trial court are clearly supported by substantial competent evidence. In the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed the basis for the consideration of the agreement. The trial court went on to conclude: "Plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always understood by Norma and Robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of Norma or Robert, depending upon the situation." This conclusion is consistent with the trial court's findings of fact. Norma had breached this understanding, which gave rise to the constructive trust imposed. The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust is such that Norma is to receive the income from these assets until her death, at which time they are to be paid to Errol Joe. In appellants' brief is the following statement: "While defendants admit that the trial court's findings of fact are supported by substantial competent evidence in the record, defendants deny *364 that those findings of fact support the trial court's conclusions of law or its judgment." During oral argument before this court, counsel for Norma conceded that the trial court's findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sherryl was unwilling to make such a concession. The problem with Sherryl's position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sherryl is not in a position to contradict admissions made in the brief filed. However, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence. An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, 213 Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption that the trial court applied the correct standard of proof and was satisfied with the quantum of evidence introduced. A constructive trust arises "`wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.'" Hile v. DeVries, 17 Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]). An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive. "Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.]" Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). In the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. The evidence indicates Norma was guilty of a breach of duty amounting to constructive fraud. Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential *365 relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497 P.2d 292 (1972). A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Paul v. Smith, 191 Kan. 163, Syl. ¶ 4, 380 P.2d 421 (1963). The mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914). Under the facts shown, Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 Kan. at 300. The facts of this case are strikingly similar to those in Winsor v. Powell. In that action, the decedent, when discussing his affairs, spoke of his daughter, Sarah, and said, "`She'll do the right thing.'" 209 Kan. at 301. In this action, Robert told Errol Joe that he had $350,000, that Norma would be fair, and that Errol Joe could trust her. Robert told Errol Joe that Norma was to get the interest and, upon her death, Errol Joe was to get the principal. In addition, Norma acknowledged to Errol Joe's wife the necessity of her separating Robert's assets from her own. These facts in Winsor v. Powell were held sufficient to raise a constructive trust, and they are equally sufficient in this action. Norma and Sherryl argue that the agreement found by the court was not proven by clear and convincing evidence. "To be clear and satisfactory, evidence should be `clear' in the sense that it is certain, plain to the understanding, and unambiguous, and `satisfactory' in the sense that it is so believable that persons of ordinary intelligence, discretion, and caution may have confidence in it. Clear and satisfactory evidence is not a quantum of proof, but a quality of proof." Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, Syl. ¶ 7, 827 P.2d 24 (1992). Norma and Sherryl suggest that there was no direct evidence of an agreement between Robert and Norma. However, we note that in the recorded conversation between Norma and Errol Joe's *366 wife, Norma acknowledges the existence of some understanding between her and Robert and indicates that in order to carry out that understanding, she must separate Robert's assets from her own. We consider this to be direct evidence of the existence of an agreement. Indeed, circumstantial evidence may be used to prove the existence of an agreement. Staab v. Staab, 160 Kan. 417, 419, 163 P.2d 418 (1945). Earlier in this opinion, we enumerated the five significant factors relied on by the court in reaching its conclusion. Norma and Sherryl argue that these factors do not show by clear and convincing standards that an agreement existed. We do not review for the quantum of evidence, but rather the quality. "On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of a clear and convincing quality. See Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986)." Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. at 448. As we review the evidence in light of our standard of review, we conclude that each of the five factors relied upon by the trial court is supported by evidence of a clear and convincing quality. In the final analysis, this was a factual situation. The facts were resolved in favor of Errol Joe, and we will not engage in factfinding or substitute our judgment on that issue. The element of a confidential relationship is shown by the evidence. Under the trial court's construction of the facts, Robert and Norma entered into an agreement in which each relied on the survivor to see that the assets were properly distributed. Robert placed trust and confidence in Norma to see that Errol Joe received the proper distribution of assets, and it would be inequitable to permit her to disregard the terms of that agreement. Finally, it is suggested that even if there was an agreement and a confidential relationship, Norma did not breach either. The argument is that under the terms of the agreement, Norma was to enjoy the income for her lifetime, and only upon her death was the principal to pass to Errol Joe. It then follows that there cannot be a breach of fiduciary duty or a betrayal of confidence unless and until Norma dies without the necessary provisions in her will. *367 While this argument may have some logical basis, it ignores the realities of the situation. After Robert's death, some of the assets were placed in joint tenancy with Norma's daughter, Sherryl. This was obviously done with the intent that upon Norma's death, these assets would pass to Sherryl. In addition, Norma now denies that any agreement existed and testified, "I never made any commitment to Bob." These facts point to a breach of the agreement by Norma. In summary, the findings of the trial court were supported by substantial competent evidence and the conclusions of law are consistent with and supported by the findings of fact. EXHIBITS 6 AND 14 THROUGH 20 Norma and Sherryl next argue that the trial court erred in admitting into evidence plaintiff's exhibit 6 and plaintiff's exhibits 14 through 20. This argument is principally based upon the premise that an inadequate foundation was shown. The trial court is possessed of discretion when ruling on admissibility of evidence. An attack on an evidentiary ruling requires that the party attacking that ruling show that the trial court abused its discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court. St. Francis Regional Med. Center, Inc. v. Weiss, 254 Kan. 728, 748, 869 P.2d 606 (1994). K.S.A. 60-407(f) provides that all relevant evidence is admissible unless otherwise provided by statute. Relevant evidence is evidence having "any tendency in reason to prove any material fact." K.S.A. 60-401(b). "It is axiomatic that a foundation must be laid establishing the competency, materiality and relevancy of all evidence prior to admission." Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982). We conclude that the trial court did not err in admitting the exhibits in question. Exhibit 6 was a photocopy of the schedule "E" of Robert's estate tax return. This exhibit listed all of Robert's jointly held property. In addition to schedule "E," the exhibit contains a listing of separate assets held by Norma at Robert's death. The separate property was identified by Norma on direct *368 examination. We conclude this exhibit was clearly relevant and material and that a proper foundation was laid. Exhibits 14 through 20 consisted of financial records which traced the assets from the time Robert and Norma were married until Robert's death. These exhibits were clearly relevant. One of the principal issues in this action was to identify which assets originated as Robert's separate property and which assets were accumulated during the marriage. Exhibits 14 through 20 were relevant on that issue. Norma and Sherryl also argue about the authenticity of the records. They suggest that these exhibits were admitted without proper foundation, identification, or indicia of trustworthiness. The principal problem with this particular argument is that the parties stipulated as to the authenticity of the records prior to trial. We see no need to describe with particularity the evidence purported to be shown by each exhibit. It seems to us that one of the principal issues in the admission of evidence of this sort is its authenticity. The parties stipulated as to the authenticity of those records, and we find no error on the part of the trial court in admitting exhibits 6 and 14 through 20. JUDGMENT AGAINST SHERRYL HOLMES Sherryl takes issue with the trial court's finding of fact No. 32. This finding identifies assets which were brought into the marriage by Robert and later transferred by Norma into joint tenancy between herself and Sherryl. Sherryl argues that this finding of fact is not supported by substantial competent evidence. We disagree and have previously indicated our decision that all of the trial court's findings of fact were supported by substantial competent evidence. Our earlier comments are also relevant concerning the position of Sherryl in arguing that the findings of fact were not supported by substantial competent evidence. Sherryl also argues that no findings of fact remain which would support the judgment entered against her. The trial court does not suggest that Sherryl was culpable in procuring the transfers to her mother and herself as joint tenants. *369 Culpability is not the issue. The stark fact is that Sherryl is a joint tenant on a substantial amount of assets on which the trial court has imposed a constructive trust. "If the trustee in breach of trust transfers trust property and no value is given for the transfer, the transferee does not hold the property free of the trust, although he had no notice of the trust." Kline v. Orebaugh, 214 Kan. 207, Syl. ¶ 6, 519 P.2d 691 (1974). The fact that Sherryl did not procure the transfer of the property does not entitle her to hold it free of trust nor warrant a conclusion that the judgment against her is invalid. Norma testified that she wanted Sherryl to have access to the joint tenancy accounts in case they were needed to take care of Norma. In addition, Norma testified that she intended Sherryl to get the accounts upon her death. We hold that the trial court did not err in entering judgment against Sherryl. The findings of fact made by the trial court support that judgment. Affirmed.

Fourth Court of Appeals San Antonio, Texas January 23, 2019 No. 04-18-00781-CR, 04-18-00782-CR, 04-18-00783-CR & 04-18-00784-CR The STATE of Texas, Appellant v. Fernando Jefte MATA, Appellee From the County Court, Kinney County, Texas Trial Court No. 10054CR, 10138CR, 10187CR & 9964CR Honorable Spencer W. Brown, Judge Presiding ORDER The State’s Motion Relating to Case Record and to Findings of Fact and Conclusions of Law is hereby DENIED. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of January, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court 

IN THE SUPREME COURT OF MISSISSIPPI NO. 97-IA-00275-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. JANET DAMPEER CONSOLIDATED WITH NO. 97-IA-00276-SCT STATE OF MISSISSIPPI AND ROBERT ISHEE v. BRITTANY DAMPEER DATE OF JUDGMENT: 12/31/96 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: JIM FRAISER ATTORNEY FOR APPELLEE: JOHN RAYMOND TULLOS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 06/24/1999 MOTION FOR REHEARING FILED: MANDATE ISSUED: 7/15/99 BEFORE PRATHER, C.J., MILLS AND COBB, JJ. MILLS, JUSTICE, FOR THE COURT: STATEMENT OF THE CASE ¶1. On November 5, 1996, Janet Dampeer and her daughter, Brittany Dampeer, by and through her mother, filed their separate complaints in the Circuit Court of Smith County against the State of Mississippi and Robert Ishee, alleging negligence on the part of Robert Ishee while in the scope of his employment with the State of Mississippi. Upon request of the Appellants, the two complaints were consolidated by an Order of the Smith County Circuit Court dated March 3, 1997. On November 8, 1996, the State of Mississippi and Ishee filed a MRCP 12(b)(6) motion to dismiss for failure to comply with the notice and statute of limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11-46- 11 (Supp.1998). Such motion was denied by the trial court. Aggrieved by the trial court's denial of the Motion to Dismiss, the State of Mississippi and Robert Ishee appeal to this Court through interlocutory appeal. STATEMENT OF THE FACTS ¶2. On June 12, 1994, while Janet and Brittany Dampeer were parked in the Wal-Mart parking lot in Magee, Mississippi, Robert Ishee backed a Boswell Retardation Center van into their automobile. The Dampeers assert that, by reason of Ishee's negligence, both Janet and Brittany sustained serious physical injuries and thereby did incur, and will continue to incur, substantial medical expenses. They note that Ishee is an employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In their complaint they demand judgment of and from the Appellants in the amount of $25,000, plus costs of Court. ¶3. In a letter dated June 15, 1994, the Dampeers' attorney notified the Boswell Retardation Center that he represented Dampeer advising as follows: This is to advise you that we represent Mrs. Janet Dampeer and her minor daughter, Brittany Dampeer, for property damage and personal injuries sustained in a motor vehicle collision which occurred on June 12, 1994 in the parking lot of Magee Wal-Mart, when your vehicle, being driven by Robert H. Ishee, struck the rear of Mrs. Dampeer's 1990 Pontiac Grand Prix. I shall appreciate you, or your liability insurance carrier, contacting me within the next fifteen days concerning the contents of this letter. ¶4. Subsequently, in a letter dated June 21, 1994, and addressed to Ms. Dampeer, the Mississippi Tort Claims Board wrote the following in regard to a notice of loss received from the Department of Mental Health: We have received notice of loss from the above agency. Please provide an estimate of repair to this agency for consideration of your claim for damages. If you have already sent estimates to a state agency or to the Tort Claims Board, please disregard this notice. ¶5. On November 5, 1996, the Dampeers filed their separate complaints with the Smith County Circuit Court. Subsequently, on November 8, 1996, the State of Mississippi and Robert Ishee filed their Motion to Dismiss alleging that Dampeer violated the notice provisions and the statute of limitations provision of the Mississippi Tort Claims Act. Such motion was denied on December 31, 1996. Following the denial of said motion, the Appellants filed a Petition for Interlocutory Appeal on January 14, 1997. Such petition was denied by the Circuit Court, but taken up on interlocutory appeal by this Court on February 6, 1998. STANDARD OF REVIEW ¶6. This Court conducts a "de novo review of questions of law." Weeks v. Thomas, 662 So.2d 581, 583 (Miss. 1995). A motion to dismiss under MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This Court has held that "to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So.2d 1037, 1039 (Miss.1985) (citations omitted). Further, this Court stated in Weeks v. Thomas that in order to survive a Rule 12(b)(6) motion, the complaint need only state a set of facts that will allow the plaintiff "some relief in court." Weeks, 662 So.2d at 583. ANALYSIS WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S MOTION TO DISMISS WHERE THE COMPLAINT WAS FILED SEVENTEEN MONTHS AFTER THE TIME FOR FILING SUIT HAD LAPSED. ¶7. In their chief assignment of error, the State of Mississippi and Ishee assert that the Dampeers' suits are barred by the one-year statute of limitations. This action is governed by the Mississippi Tort Claims Act. The Act is set out in full in Miss. Code Ann. §§ 11-46-1, et seq. (Supp.1998). Section 11-46-11(3) reads as follows: (3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter. Miss. Code Ann. § 11-46-11 (Supp.1998).(1) ¶8. The Appellants correctly argue that section (3) of the governing statute laid out above demands that the complaint be filed within one year of the actionable conduct. The statute also provides that the limitation period be tolled for ninety-five days after the required notice of claim is filed with the chief executive officer of the governmental agency. Therefore, when the proper requirements of bringing a claim for injury against a governmental agency in the State of Mississippi are met, including the giving of the proper notice, the statute of limitations allows one year, plus ninety-five days in which to bring the claim. ¶9. In the instant case the accident occurred on June 12, 1994. The complaint was filed November 5, 1996, nearly two years and five months after the accident. This claim is barred by the applicable one-year statute of limitation. See Mississippi Dep't of Public Safety v. Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss. June 3, 1999) (applying one-year Tort Claims Act statute of limitations to bar suit); Marcum v. Hancock County Sch. Dist., No. 97-CA-00916-SCT, 1999 WL 353073 (Miss. June 3, 1999). ¶10. We do not discuss whether the notice of claim substantially complied with the notice of claim provision under our recent authorities set forth in Reaves v. Randall, 729 So. 2d 1237 (Miss. 1998), and Carr v. Town of Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999). The Dampeers failed to timely file their complaints under any set of facts before us. The trial court erred in denying the motion to dismiss. We therefore reverse the judgment of the lower court and render judgment for the State of Mississippi and Robert Ishee and finally dismiss with prejudice the complaints filed herein. ¶11. REVERSED AND RENDERED. PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, WALLER AND COBB, JJ., CONCUR. 1. Effective March 25, 1999, section 11-46-11 has been further amended by 1999 Miss. Laws Ch. 469 to clarify the notice of claim requirements under the Tort Claims Act. This amendment is not pertinent to the facts of this case. 

218 F.2d 148 Charles E. TOLIVER, Appellant,v.UNITED STATES of America, Appellee. No. 14395. United States Court of Appeals Ninth Circuit. Dec. 7, 1954. Leslie C. Gillen, Gregory Stout, San Francisco, Cal., for appellant. Lloyd H. Burke, U.S. Atty., John H. Riordan, Asst. U.S. Atty., San Francisco, Cal., for appellee. DENMAN, Chief Judge. 1 Attorney Gregory S. Stout moves for appellant an extension of time to January 9, 1955 to file an opening brief which he failed to file when due on November 20, 1954. The ground of his application is that the attorney has accepted an assignment by a District Court of Appeal of the State of California, an inferior state court, to write a report pertaining to an analysis of a provision of the California Constitution. 2 It further appears that Mr. Stout's client is, during his appeal, in the custody of this court in the San Francisco County Jail and that during such custody he is not serving time on the sentence from which his appeal is pending. That is to say, the wrong already done his client by not filing even now the brief due November 20, 1954, he seeks to extend by adding 30 days more to his client's imprisonment. 3 Whether such wrongful conduct by an officer of his court constitutes a contempt is not to be determined on this motion. However, unless the appellant's brief is filed within ten days hereof, the question of Mr. Stout's conduct is certain to be raised. 4 Time to file appellant's opening brief is extended to December 17, 1954.

341 Mich. 495 (1954) 67 N.W.2d 718 ROBYNS v. CITY OF DEARBORN. Docket No. 56, Calendar No. 46,289. Supreme Court of Michigan. Decided December 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, J. Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto. Each of plaintiffs owns 1 of 8 lots on the south side of Ford road in the city of Dearborn across from the lots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven of the lots have a width of 20 feet and one 24.44 feet, fronting on Ford road, with depths varying from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for residence C use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. *498 Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business B and those to the east, running for a considerable distance, are vacant. The ordinance in question provides "there shall be a minimum of 10 feet between residences." Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots. Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 Mich 193. CL 1948, § 608.1 (Stat Ann § 27.591), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. The fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be *499 accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green-belt purposes. Defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Grand Trunk Western R. Co. v. City of Detroit, 326 Mich 387; Long v. City of Highland Park, 329 Mich 146. Under such circumstances, equity alone could afford plaintiffs the necessary remedy. Resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich 331. Is the ordinance unreasonable and confiscatory as applied to plaintiffs' lots? It limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, *500 in this respect, to the situation in Ritenour. Other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. It is invalid as applied to plaintiffs' lots. Finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not entitled to consideration here. At all events, it is without merit. The appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation *501 proceedings was sought. Austin v. Older, 278 Mich 518. Affirmed, with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.

791 N.E.2d 568 (2003) 339 Ill. App.3d 1086 274 Ill.Dec. 476 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael SLOVER, Jr., Michael Slover, Sr., and Jeanette Slover, Defendants-Appellants. No. 4-02-0892. Appellate Court of Illinois, Fourth District. June 6, 2003. *569 Danile D. Yuhas and John M. McCarthy, both of State Appellate Defender's Office, of Springfield, for appellants. Scott Rueter, State's Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State's Attorneys Appellate Prosecutor's Office of counsel), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, Michael Slover, Jr., Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. All three defendants were sentenced to prison and filed a notice of appeal with this court. In September 2002, the State filed a motion to release defense exhibits for scientific testing. The trial court granted the motion and found no just reason for delaying the appeal. On appeal, defendants argue the trial court had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. The State argues defendants' appeal must be dismissed because the trial court's order did not constitute a final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury convicted defendants Michael Slover, Jr., and his parents, Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Michael, Jr.'s former wife, Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. In June 2002, the trial court sentenced all three defendants to 60 years' imprisonment. Michael, Jr., and Michael, Sr., also received five-year prison sentences for their convictions of concealment of a homicidal death. In July 2002, defendants filed motions to reduce their sentences, which the trial court denied. Thereafter, defendants filed a notice of appeal (No. 4-02-0587). In September 2002, the State filed a motion, naming all three defendants, to *570 release defense exhibits for scientific testing. The motion indicated three defense exhibits admitted during defendants' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, the daughter of Michael, Sr., and Jeanette, and the sister of Michael, Jr., formerly lived at a house in Springfield that a forensic scientist identified to have cat and dog hairs following an investigatory examination. The State indicated a petition had been filed under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 through 7-1 (West 2000)) in Macon County case No. 00-JA-12, alleging the biological son of Michael, Jr., and the adopted son of Mary was a neglected and abused minor. The State had filed an expedited petition for termination of parental rights. The State indicated the doctor who performed canine deoxyribonucleic acid (DNA) testing in the defendants' murder case was willing to perform feline DNA testing of the State's enumerated exhibits and the cat hair from Mary's former residence. The State submitted "the release of the three defense exhibits for feline DNA testing would advance the interests of justice in the pending juvenile case of [No.] 00-JA-12." In September 2002, the trial court held a hearing on the State's motion. Defendants' counsel argued the trial court had no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the State wanted to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. The trial court found it had jurisdiction to rule on the matter, stating it had authority to enter orders with regard to property in its custody. The court also found the State presented good cause for destructive testing of the evidence. As a condition of the testing, the court required a photograph taken to identify the exhibits. Defense counsel requested the clerk be directed to file a notice of appeal. The trial court found its order was governed by the civil appeal rules pursuant to Supreme Court Rule 612 (177 Ill.2d R. 612). In its written order pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), the court concluded there was no just reason for delaying the appeal. Per defense counsel's request, the trial court stayed its order until further order by the court. This appeal followed. In October 2002, Jeanette filed a motion to join in the interlocutory appeal. She later filed a notice of appeal in November 2002. In February 2003, this court allowed Jeanette's motion for leave to file a late notice of appeal. II. ANALYSIS A. Appellate Court Jurisdiction Before we determine whether the trial court had jurisdiction to consider the State's motion, we must determine whether this court has jurisdiction to consider defendants' appeal. In their appellate brief, defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining to criminal appeals (134 Ill.2d R. 603; 188 Ill.2d R. 606). The State argues we must dismiss defendants' appeal. The trial court issued an order pursuant to Supreme Court Rule 304(a), finding no just reason for delaying appeal of its order granting the State's motion to release defense exhibits for scientific testing. Supreme Court Rule 304(a) provides, in part, as follows: "If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than *571 all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 155 Ill.2d R. 304(a). When the criminal appeal rules govern, Rule 304(a) does not apply. In re D.D., 337 Ill.App.3d 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, 17 (2002). However, an appellate court's jurisdiction to consider an appeal "does not derive solely from a party's invocation of the correct supreme court rule." In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 718, 768 N.E.2d 799, 801 (2002). Moreover, the trial court indicated the civil appeal rules applied after looking for guidance under Supreme Court Rule 612, setting forth the procedural matters that are governed by civil appeal rules. The court noted civil appeal rules applied to the removal of records from the reviewing court. Supreme Court Rule 372 (155 Ill.2d R. 372), a civil appeal rule applicable to criminal appeals, focuses on the removal of the record from the appellate court, not the removal of exhibits from the record on appeal for scientific testing. However, the similarity between the procedural matters of removing records from the reviewing court and allowing testing of an exhibit that is part of the record on appeal is enough to enable the case to fall within the civil appeal rules. Here, the order allowing destructive testing of the exhibits created a final judgment. As this amounted to a procedural matter, along with the trial court's written order pursuant to Rule 304(a), we conclude this case is properly before us. B. Trial Court Jurisdiction Generally, "[t]he filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance in a case." People v. Kolzow, 332 Ill.App.3d 457, 459, 265 Ill.Dec. 532, 772 N.E.2d 903, 904 (2002). The trial court may not then enter orders changing or modifying a judgment or its scope or interfering with the review of the judgment. Kolzow, 332 Ill. App.3d at 459, 265 Ill.Dec. 532, 772 N.E.2d at 905. The trial court does retain jurisdiction to determine matters that are collateral or incidental to the judgment being appealed. Brownlow v. Richards, 328 Ill. App.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2d 482, 485 (2002). In this case, the trial court's order did not modify the judgment or interfere with the review of that judgment. Further, the court's order did not dispose of the issues defendants had invoked our jurisdiction to review in their murder appeal. Thus, defendants' criminal appeal did not automatically divest the trial court of jurisdiction in regard to the State's motion. Defendants argue the trial court did not have jurisdiction to order the scientific testing of defense exhibits. We disagree. Defendants contend the physical evidence, such as the cat hair, is part of the record on appeal based on Supreme Court Rule 608 (177 Ill.2d R. 608), and thus the trial court could not make substantive rulings on that evidence. Rule 608(a) provides, in part, as follows: "The clerk of the circuit court shall prepare the record on appeal upon the filing of a notice of appeal and in all cases in which a death sentence is imposed. * * * The record on appeal must contain the following: *572 * * * (10) exhibits offered at trial and sentencing, along with objections, offers of proof, arguments, and rulings thereon; except that physical and demonstrative evidence, other than photographs, which do not fit on a standard size record page shall not be included in the record on appeal unless ordered by a court upon motion of a party or upon the court's own motion." 177 Ill.2d R. 608(a). Supreme Court Rule 608 addresses the requirements the clerk of the circuit court must adhere to in preparing the record on appeal. However, it does not address whether the trial court has the authority to order the testing of exhibits used at trial while the case is presently on appeal. For that determination, we look toward our supreme court's general administrative order on recordkeeping in the trial courts. Pursuant to its general administrative authority, the supreme court has stated: "PART I RECORD OF THE CASE The records of the case to be prepared and maintained by the clerk shall be as follows: * * * G. EXHIBITS Unless otherwise ordered, * * * exhibits received in evidence shall be: 1. Retained by the clerk while the right of appeal exists. In criminal, traffic, ordinance, and conservation cases in which the defendant has been found guilty[,] exhibits shall also be retained until the defendant has paid the fine, served his sentence, or has been released from probation or parole. 2. Released by the Clerk: a. When the time for appeal has passed, provided that, in criminal, traffic, ordinance[,] and conservation cases in which the defendant has been found guilty, exhibits shall not be released until the defendant has paid the fine, served his sentence[,] or has been released from probation or parole. b. At any time by order of the judge who presided at the trial of the case, or by order of the chief judge." Administrative Office of the Illinois Courts, General Administrative Order on Recordkeeping in the Circuit Courts, adopted by the Supreme Court of Illinois on May 20, 1968, as amended, effective April 23, 2003, at iv, xii. Based on the supreme court's pronouncement, we find a trial court has jurisdiction to determine whether exhibits used at trial should be submitted for scientific testing while the remainder of the case is on appeal. C. Order Releasing Defense Exhibits A trial court has the inherent power to maintain and control its records. In re Marriage of Johnson, 232 Ill.App.3d 1068, 1072, 174 Ill.Dec. 209, 598 N.E.2d 406, 409 (1992). With this in mind, the trial court must use its discretion in determining whether exhibits should be released by the clerk. See, e.g., Doe v. Carlson, 250 Ill.App.3d 570, 574, 189 Ill.Dec. 205, 619 N.E.2d 906, 909 (1993) (trial court has the discretion to impound judicial records after weighing the interests involved in accessing the record or keeping access restricted); Johnson, 232 Ill.App.3d at 1072-73, 174 Ill.Dec. 209, 598 N.E.2d at 409 (access to judicial records is left to sound discretion of trial court based on the relevant facts and circumstances of the case). When confronted with a motion to release exhibits for scientific testing, the trial court must balance the competing interests, *573 including, but not limited to, the possible prejudice to the defendant, the State's desire to advance the interests of justice, and the State's need for testing to accomplish its planned and stated objective. In the case sub judice, the State established in its motion that Dr. Joy Halverson indicated she was capable of performing and willing to perform DNA testing on animal hairs from defense exhibits and cat hairs from Mary Slover's former residence. The State alleged the testing would advance the interests of justice in the pending juvenile case and the determination of whether the parental rights of Mary and Michael, Jr., should be terminated. Specifically, the State alleged the evidence could point to Mary's connection with the Karen Slover murder or its concealment. Defendants, on the other hand, argued at the hearing that destructive testing would be prejudicial in the event of a retrial. However, the State noted the evidence was not large enough for a jury to assess, unlike a "big coat" or "bloody knife." Also, the State indicated the conclusions made after scientific testing could benefit the defense. In its decision, the trial court found "good cause" for the scientific testing. The court also required as a condition of the scientific testing that a photograph be taken of any exhibits of sufficient quality to identify them. We find the trial court did not abuse its discretion in allowing scientific testing of the defense exhibits. The trial court was presented with the State's need for the evidence and the possible prejudicial impact such testing might have on defendants. The court weighed each position, made an additional requirement to keep a record of the evidence, and ruled accordingly. As the State presented evidence that scientific testing could further the interests of justice and defendants were unconvincing in their claim of prejudice, the trial court did not abuse its discretion in granting the State's motion. III. CONCLUSION For the reasons stated, we affirm the trial court's judgment. Affirmed. STEIGMANN and APPLETON, JJ., concur.

647 F.Supp. 1035 (1986) James MESSER, Jr., Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent. Civ. A. No. C86-173R. United States District Court, N.D. Georgia, Rome Division. July 7, 1986. *1036 Howard J. Manchel, Atlanta, Ga., for appellant. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent. ORDER ROBERT H. HALL, District Judge. James Messer, Jr., who is scheduled to be executed before July 9, 1986, petitions this court for a writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. This court has stayed petitioner's execution pending a full review of the issues raised by the petition. For the reasons set forth herein, the court DENIES prisoner's petition, and accordingly lifts the stay of execution. FACTS Petitioner, James E. Messer, Jr., was indicted by the grand jury of Polk County, Georgia, during the November Term, 1979, for kidnapping with bodily injury and for the murder of Rhonda Tanner. A special plea of insanity was filed on behalf of the petitioner. After two subsequent state sponsored psychiatric examinations established that petitioner was mentally competent to stand trial, the special plea of insanity was withdrawn. At his trial petitioner pleaded not quilty. Following a trial by jury on February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty for murder after the jury found the presence of two statutory aggravating circumstances, (1) that the murder was committed during the course of another capital felony, the kidnapping with bodily injury, and (2) that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture to the victim. The jury found one aggravating circumstance with respect to the kidnapping with bodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in that it involved aggravated battery and torture to the victim. The death sentence was imposed *1037 on February 8, 1980. Petitioner's motion for a new trial was denied after hearing on May 20, 1980. On direct appeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentence review, finding that the evidence supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, the court affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981). A motion for rehearing was denied on March 18, 1981. Petitioner subsequently filed a petition for a writ of certiorari in the Supreme Court of the United States challenging the denial of an independent psychiatric examination. This petition was denied on October 5, 1981. Messer v. Georgia, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Petitioner then filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia, on January 5, 1982. On or about January 25, 1982, the petitioner filed an amendment to the petition and a brief in support. Petitioner did not raise the denial of the motion for independent psychiatric examination. The state habeas corpus court denied relief without a hearing on February 23, 1982. Petitioner's Application for Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writ of certiorari was filed in which the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorari was denied on October 4, 1982. Messer v. Zant, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. den., sub. nom, Cape v. Zant, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 (1982). Petitioner filed an application for habeas corpus relief in the United States District Court for the Northern District of Georgia, Rome Division, on November 23, 1982. In that petition, the petitioner raised the denial by the trial court of the motion for an independent psychiatric examination and funds for an expert. The case was transferred to the Atlanta Division and an evidentiary hearing was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to the conviction, but suggesting that relief be granted as to the sentencing phase finding that counsel was ineffective during the closing argument at the sentencing phase. On March 30, 1984, this court entered an order adopting all portions of the magistrate's report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. This court concluded that petitioner had failed to show any prejudice resulting from this allegation. Messer v. Francis, No. C82-419A (N.D.Ga. March 30, 1984) (Hall, J.). This court also ruled on certain other allegations not addressed by the magistrate and denied a certificate for probable cause to appeal. Id. The Eleventh Circuit Court of Appeals granted the certificate on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals affirmed this court's decision denying habeas corpus relief in an opinion dated April 30, 1985. Messer v. Kemp, 760 F.2d 1080 (11th Cir. 1985). Only three issues were raised on appeal; the denial of the motion for a mistrial, the allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodily injury charge. A petition for rehearing en banc was denied on August 23, 1985. Petitioner then filed a petition for a writ of certiorari in the Supreme Court of the United States which was denied on January 21, 1986. Messer v. Kemp, ___ U.S. ___, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). On June 17, 1986, an order was signed setting a new execution time frame beginning at noon on July 2, 1986, and ending at *1038 noon on July 9, 1986. Petitioner filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia on June 26, 1986, raising five allegations, including the allegation that he had been denied funds for an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. No evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner assert that any was available. On June 27, 1986, respondent filed a motion to dismiss the petition. At 8:00 a.m. on that day, a hearing was held before the Honorable Hal Craig on the petition, request for a stay and motion to dismiss. At 3:10 p.m. on that date, an order was filed denying the stay, dismissing the petition as successive as to four counts and finding the remaining count to be without merit. Petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. On Monday morning, June 30, 1986, petitioner filed an amendment to his application for a certificate of probable cause. Respondent filed a response to the application. On that same date, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. Petitioner then filed the current petition with this court on July 1, 1986. This court orally granted petitioner's motion to proceed in forma pauperis. DISCUSSION Petitioner contends that he was convicted and sentenced to death in violation of the Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner argues that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) he was denied funds to have an independent psychiatrist to aid in his defense, in violation of his rights under the Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody ("Petition")). Petitioner also argues that the imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner. As an initial matter, the court finds that petitioner's claim that imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner, is without merit and cannot provide a basis for the relief sought. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc).[1] Respondent pleads abuse of the writ under Rule 9(b) of the Rules Governing § 2254 cases. Specifically, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. (Respondent's Answer/Response, "Response").[2] Therefore, to determine whether any ground for relief is properly before this court, the court must consider whether petitioner has abused the writ in bringing a successive petition. This court holds that petitioner abused the writ in raising his Ake (denial of independent psychiatric evaluation) claim in his second habeas petition. Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if the prior determination was on the merits, or if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constitutes an abuse of the writ. *1039 28 U.S.C. § 2254 (1977). However, a petitioner may rebut the state's contention that he abused the writ in a successive petition in one of two ways: "(a) If the ground was previously addressed in a federal habeas corpus proceeding, the petitioner must demonstrate that the decision was not on the merits, or the ends of justice would be served by reconsideration on the merits ... (b) If the ground was not previously presented in a federal habeas corpus proceeding, the petitioner must demonstrate the failure to present the ground in the prior proceeding was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985), rev'd on other grounds 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (emphasis supplied) see also, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In the instant case, it is not disputed that petitioner properly raised the claim of the unconstitutional denial of an independent psychiatric evaluation in his first habeas petition.[3] Because this court finds that petitioner's denial of independent psychiatric evaluation claim constitutes a successive petition that has been decided on the merits in the previous habeas corpus proceeding, the court now turns to whether the "ends of justice" would be served by a reconsideration of this claim. Petitioner contends that reconsideration is required by an intervening change in the law applicable to the constitutionality of denying petitioner's request for an independent psychiatric evaluation for the purpose of preparing a defense of insanity. This court cannot agree. Respondent urges that the Supreme Court's recent decision in Kuhlmann v. Wilson, ___ U.S. ___, 106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986) addressing the "ends of justice" standard, controls the instant case.[4]Kuhlmann involved a Sixth *1040 Amendment claim of denial of right to counsel based on court's denial of motion to suppress statements made to a jailhouse informant. The prisoner, in a successive petition for a writ, claimed that the change in the law occasioned by the Supreme Court's decision in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) mandated reconsideration of the Sixth Amendment claim. An opinion written by Justice Powell and joined in pertinent part by Chief Justice Burger, Justices Rehnquist and O'Connor, stated that: In light of the historic purpose of habeas corpus and the interest implicated by successive petitions for federal habeas relief from a state conviction, we conclude that "the ends of justice" require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence. Kuhlmann v. Wilson, 106 S.Ct. at 2626. The plurality stated that its purpose in requiring a "colorable showing of factual innocence" was to provide a specific guideline for district courts to use in resolving the "ends of justice" issue. For several reasons, this court finds that Kuhlmann is not controlling precedent with respect to the "ends of justice" determination. First, the precedential value of a four justice opinion is highly suspect.[5] Simply stated, a position that does not garner the votes of at least five justices cannot be binding precedent where there is a contrary body of Supreme Court decisions. In Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Supreme Court restated the familiar notion that a four justice plurality opinion has no binding effect.[6] Second, this court's belief that a majority of the court rejected the notion that the "colorable showing of factual innocence" is the only element to consider in deciding the "ends of justice" issue is supported by Justice Stevens' dissent. Justice Stevens explicitly rejected Justice Powell's "single factor" approach, contending that whether the petitioner has advanced a colorable claim of innocence is but "one of the facts that may be properly considered." Id. (Stevens, J. dissenting). Justices Stevens, Brennan and Marshall explicitly endorsed the court's traditional approach under Sanders, supra that the decision whether to hear a successive petition was committed "to the sound discretion of federal trial judges." Sanders, 373 U.S. at 18, 83 S.Ct. at 1079. Thus, based on a mere plurality of four votes, Kuhlmann does not change the basic approach of Sanders.[7] *1041 Petitioner urged at oral argument that the recently decided case of Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986) should control the outcome of the case. In Fleming the Eleventh Circuit, without deciding the merits of that prisoner's habeas petition, stayed the scheduled execution pending further order of that court. Id. In deciding that the prisoner did not abuse the writ in raising an identical claim on a successive habeas petition, the circuit court reached the question of whether the "ends of justice" would be served by a second review of the claim. Id. The court reiterated that the "ends of justice" are defined by objective factors, such as whether there was a full and fair hearing on the original petition, or whether there was an intervening chanqe in the facts of the case or the applicable law. Id. There, the alleged intervening change in the applicable law was the Supreme Court's decision in Batson v. Kentucky, ___ U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (juror exclusion based on race held unconstitutional). The Fleming court, however, did not discuss the Supreme Court's ruling in Kuhlmann, which was handed down the day before. Because the circuit did not consider and discuss the Kuhlmann case, this court feels Fleming's precedential value is questionable with respect to the "ends of justice" determination. Additionally, Fleming contains no discussion of the many other objective factors courts consider when making the "ends of justice" determination. In Fleming, the fact that there was an intervening change in the applicable law alone was held to be enough to grant reconsideration of the petition. The Fleming court failed to discuss any other factor. In essence, that court proposed its own "single factor" approach, and ignored the Sanders line of cases which leave it to the sound discretion of the district courts to weigh these factors. No opinion in Kuhlmann supports the position that an intervening change in the applicable law standing alone requires reconsideration of a successive petition. Although this court finds the Kuhlmann decision does not control the outcome of this case, this court cannot ignore the fact that four justices supported an opinion that would make a "colorable showing of factual innocence" the sole factor to consider when deciding the "ends of justice" question. Thus, to the extent the Fleming court did not explicitly consider whether the petitioner there had made a "colorable showing of factual innocence in making its "ends of justice" determination, this court feels Fleming is not controlling. This court finds that neither Kuhlmann nor Fleming essentially alter the traditional approach to the "ends of justice" test set forth in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The burden lies with the petitioner to demonstrate that a reconsideration would serve the ends of justice. Sanders, 373 U.S. at 15-19, 83 S.Ct. at 1077-79; Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982). In Sanders the court held: If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair ... If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior *1042 application. Id. at 16-17, 83 S.Ct. at 1078. The court went on to qualify its remarks in the following ways: First, the foregoing enumeration is not intended to be exhaustive; the test is "the ends of justice" and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground. Id. at 17, 83 S.Ct. at 1078. The Eleventh Circuit has elucidated the Sanders holding stating that "the `ends of justice' are defined by objective factors, such as whether there was a full and fair hearing on the original petition or whether there was an intervening change of the facts of the case or the applicable law." Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985). Briefly stated then, the law of Sanders leaves the decision to grant reconsideration of a successive petition to the sound discretion of the district court which may properly consider several objective factors in reaching this decision. Courts have considered the following factors proper in making the "ends of justice" determination. First, the plurality opinion in Kuhlmann indicates that four justices were willing to adopt the "colorable showing of factual innocence" test as the sole factor in making the "ends of justice" inquiry. Indeed, Justice Stevens' dissent acknowledges this test as "one of the facts that may properly be considered," although he did not feel it was an essential element to the reconsideration of a successive petition. Kuhlmann (Stevens, J. dissenting). Justice Stevens went on to conclude that the district court did not abuse its discretion because Kuhlmann was "one of those close cases in which the district court could have properly decided that a second review of the same contention was not required despite the intervening decision...." Id. Thus, at a minimum, five justices agree that whether petitioner has made a colorable showing of factual innocence is properly a factor to consider in making the "ends of justice" determination. In the instant case, petitioner has made no such showing. Petitioner's counsel declined this court's invitation to make such a showing, arguing alternatively that the mere allegation that petitioner was insane established a "colorable showing", or that petitioner's claim regarding the "ends of justice" issue was established by other factors under Sanders such as an intervening change in the applicable law. (Transcript of oral argument on petition for habeas corpus p. 8-12, "Transcript"). When asked by this court whether petitioner had any claim of factual innocence, petitioner's counsel responded "there is a claim of innocence here. It's not a claim of factual innocence, it's a claim of legal innocence by reason of insanity." (Transcript at 10) Thus, by his own words counsel disavowed any showing that could establish the existence of this factor. Where, as here, both this court and the Eleventh Circuit in reviewing petitioner's first petition explicitly stated that the evidence of petitioner's guilt was "overwhelming", without making any showing of factual innocence whatsoever, petitioner has not made out a "colorable showing.[8]Messer v. Francis, No. C82-419R at 3 (N.D.Ga. March 30, 1984) (Hall, J. unpublished opinion) aff'd sub nom, Messer v. Kemp, 760 F.2d 1080, 1084 (11th Cir.1985). Petitioner contends that other countervailing objective factors demonstrate that the "ends of justice" would be served by granting reconsideration. Namely, petitioner contends that the intervening change in law announced in Ake supra requires such a result. This court disagrees. Even assuming arguendo (1) that Ake did change the law relevant to the constitutionality *1043 of denying this petitioner an independent psychiatric evaluation for the preparation of his defense, and (2) that Ake applies retroactively to this petitioner on collateral review, this court feels an intervening change in law alone is insufficient to warrant reconsideration. In light of the plurality opinion in Kuhlmann that indicates the importance of the "colorable showing of factual innocence" factor, and three dissents in that case that emphasize the multiplicity of factors that may properly be considered, this court feels it would be inappropriate to give the change in intervening law alone controlling weight.[9] The petitioner's failure to appeal an adverse ruling on his prior habeas petition is a factor to be considered in the "ends of justice" calculus of the Sanders test. Johnson v. Wainwright, 702 F.2d 909 (11th Cir.1983); Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982). Here, this court ruled on the merits of Messer's first petition on March 30, 1984. The court explicitly considered and denied relief on the denial of an independent psychiatric evaluation along with seven other grounds. Messer v. Francis, supra at 15. The Ake decision, the intervening change in law argued by petitioner as grounds for reconsideration of this opinion, was decided February 26, 1985. Ake supra. Petitioner on appeal from this court's denial of relief on his first petition did not raise Ake as a ground of appeal. This court has already ruled that this omission does not amount to "abandonment" of the claim, but as a factor to be considered under the ends of justice calculus it does weigh against petitioner. See discussion supra. There are other factors that may be properly considered by this court, which are relevant to whether the ends of justice would be served by allowing reconsideration of a prisoner's second petition. The fact that a man's life is at stake is a weighty factor that this court fully appreciates. Potts v. Zant, 638 F.2d 727, 752 (11th Cir.1981). Also relevant is possible prejudice to the state e.g., here whether the state has access to witnesses that would be necessary to rebut petitioner's claim of insanity at the time of the offense. Id. Finality, here serves the state's legitimate punitive interests. When a prisoner is freed on a successive petition, often many years after the crime, the state may be unable successfully to retry him. Peyton v. Rowe, 391 U.S. 54, 62, 88 S.Ct. 1549, 1553, 20 L.Ed.2d 426 (1968) see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The state has offered no showing to support such a conclusion on this case. However, the litany of direct appeals and collateral attack in this case, demonstrates the point. See facts supra. After weighing all the above-mentioned factors and carefully examining the record in this case, the court feels the "ends of justice" would not be served by reaching the merits of the successive petition. First, petitioner has chosen to make no showing of factual innocence. Thus, petitioner fails to satisfy this factor. It is the concern of at least five members of the Supreme Court that a "colorable showing of factual innocence" be one of the factors properly considered by a district court in ruling on reconsideration of a successive petition. Although this court assumes arguendo that Ake supra is an intervening change in the law applicable to the facts of petitioner's case, and that it applies retroactively to this petitioner, standing alone such is insufficient to require reconsideration. Where (1) petitioner has made no showing of factual innocence, (2) the evidence of petitioner's guilt was found to be "overwhelming" by both this court and the circuit court, and (3) petitioner had the opportunity, yet failed to raise the Ake ground of relief on appeal from this court's *1044 order denying petitioner's first petition, the court feels the "ends of justice" do not require reconsideration. CONCLUSION In conclusion, the court considers this petition for a writ of habeas corpus to be a successive petition, and because this court feels the "ends of justice" would not be served by reconsideration, this court accordingly DENIES petitioner a writ of habeas corpus. The stay of execution ordered by this court is hereby lifted effective at noon July 8, 1986. NOTES [1] The United States Supreme Court granted certiorari in McCleskey v. Kemp, No. ___ U.S. ___, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986), to consider whether the death penalty is being applied in a racially discriminatory manner. This court feels the grant of certiorari should not alter the court's denial of the petition in the case at bar. [2] In its Response, respondent pleads exhaustion contending that all the qrounds raised in the instant petition have not been previously raised in state proceedings. (Response at 2) However, respondent does not pursue this contention in its brief and the court does not feel compelled to discuss its merits. [3] Respondent raised at oral argument a conceptually distinct problem arising from the posture of this case. As the court holds, petitioner properly stated his denial of independent psychiatric evaluation as a ground for relief in his first habeas petition. However, he did not renew this argument on appeal. Respondent argues petitioner, thus, intentionally abandoned his claim. The "intentional abandonment or withholding" doctrine applies on a second habeas only where petitioner has not "previously presented [the ground for relief] in a federal habeas corpus proceeding." Witt; supra; Cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Here, petitioner did present this ground in the first habeas petition, and this court considered and rejected his arguments. Messer v. Francis, No. C82-419R (March 30, 1984) (Hall, J.) (unpublished opinion). aff'd Messer v. Kemp, 760 F.2d 1080 (11th Cir.1985) reh denied, ___ U.S. ___, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). Once this ground was raised in the first habeas petition, as required under Witt and Sanders supra, no abandonment for abuse of writ purposes could occur. Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986). Additionally, there is no evidence that the failure of petitioner to brief the issue on appeal was to "vex, harass, or delay" Sanders supra 373 U.S. at 18, 83 S.Ct. at 1078. Therefore, any contention that petitioner abused the writ by this "abandonment" is groundless. [4] Kuhlmann involved a situation in which defendant, after arraignment on charges of a 1970 robbery and murder, was confined in a cell with another prisoner who had previously agreed to act as a police informant. The defendant made incriminating statements, and the informant reported them to the police. Prior to trial, defendant moved to suppress the statements on the ground that they were obtained in violation of his Sixth Amendment right to counsel. The trial court denied the motion finding that the informant had obeyed a police officer's instructions not to question defendant about the crimes and that defendant's statements were "spontaneous" and "unsolicited". In 1972, defendant was convicted for common law murder and felonious possession of a weapon. The State Appellate Court affirmed. In 1973, defendant sought federal habeas corpus relief, asserting a Sixth Amendment violation based on the same grounds. The district court denied the writ, and the Court of Appeals affirmed. After the 1980 decision in United States v. Henry, 447 U.S. 264 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), which applied the "deliberately elicited" test of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) to suppress statements made to a paid jailhouse informant, defendant unsuccessfully sought to have his conviction vacated by the state courts. In 1982, defendant filed a habeas corpus petition in district court, again raising the Sixth Amendment claim. The district court denied relief, but the court of appeals reversed. [5] Powell, J. announced the judgment of the court. Burger CJ., Rehinquist and O'Connor, JJ., joined Powell's discussion of the "ends of justice" test. Brennan, J. dissented joined by Marshall, J. Stevens, J. dissented separately. White and Blackmun, JJ., did not join Powell's "ends of justice" discussion. [6] The most commonly recognized theory on dealing with four vote pluralities is the statement in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) that "when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five justices, `the holding of the court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.'" See Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Columbia L.Rev. 756 (1980) for a fuller discussion of the "narrowest grounds" approach. [7] If it is truly apparent that a "single factor" test is needed for the policy reasons set forth in Justice Powell's Kuhlmann opinion, this court feels the better analysis would be to extend the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), used in evaluating effectiveness of counsel issues on original habeas petitions, to the "ends of justice" question on successive petitions. This test would contemplate allowing reconsideration where there is a "reasonable probability that, but for [the denial of an independent psychiatric evaluation in preparation of an insanity defense that would have been a significant factor a trial], the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Restated simply, if the denial of the independent psychiatric evaluation in preparation for trial could reasonably have resulted in a different outcome, then reconsideration should be granted. This test has also been used as the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976), and in the test for materiality of testimony made unavailable to the defense by government deportation of a witness, United States v. Vallenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). This test would achieve the goals desired by Justice Powell and the three justices that joined his Kuhlmann opinion by (1) providing a clear rule for the district courts to apply, and (2) denying reconsideration to prisoners who have no chance of prevailing at retrial because "guilt is conceded or plain" Kuhlmann, 106 S.Ct. at 2626. The proposed test would also avoid problems where the "colorable showing of factual innocence" test does not logically apply. One example of these problems arises where a prisoner alleges constitutional error in the sentencing phase of a capital case. Guilt or innocence seems to be irrelevant in that context. See Kuhlmann, 106 S.Ct. p. 2622, n. 7 (Brennan, J. dissenting). [8] In Kuhlmann, the plurality noted the circuit below stated that the evidence of prisoner's guilt in that case "was nearly overwhelming." Kuhlmann, 106 S.Ct. at 2628. Here, the Eleventh Circuit stated, "[i]f ever there was an open and shut case, this is it ..." [9] Before Kuhlmann, a change in applicable law seemed to guarantee reconsideration in the Eleventh Circuit. This court is aware of no published case regarding successive petitioners in which the Eleventh Circuit has ever denied reconsideration where there was an intervening change in law which applied retroactively to a prisoner. Cf Young v. Kemp, 758 F.2d 514 (11th Cir.1985); Smith v. Kemp, 715 F.2d 1459 (11th Cir.1983); Fleming supra (granting reconsideration where intervening change applicable law occurred.)

337 F.Supp. 150 (1972) CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs, v. The UNITED STATES of America et al., Defendants. Civ. No. 71-C-1639. United States District Court, E. D. New York. January 20, 1972. *151 *152 Louis Walters, Asst. Corp. Counsel (J. Lee Rankin, Corp. Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, of counsel), for plaintiff. Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel), for intervening plaintiff, Bush Terminal Users Ass'n. William C. Mahoney, Washington, D. C., for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employes. John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y., for intervening plaintiff, State of New York. Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. Eastern District of New York, of counsel), for defendant, the United States. Theodore C. Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings, New York City, for defendant, Bush Terminal R.R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: In this action against the United States, the Interstate Commerce Commission, Bush Terminal Railroad and certain of the latter's officers and directors, the City of New York, joined by several intervenors, asks us to annul an order of the Interstate Commerce Commission dated December 13, 1971, in F.D. No. 25896, which authorized abandonment of the entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. The order, which was effective immediately, was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the Railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission's order.[1] On December 17, the City began this action and sought a temporary restraining order, see 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City's motion for a temporary injunction for argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of *153 a temporary restraining order was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary of Bush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations under the lease to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as "the Terminal Company." The Railroad, on October 23, 1969, filed an application under § 1(18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi-governmental bodies and labor organizations representing the Railroad's employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R.R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment of Operation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. Connecting Co. Operation, 257 I.C.C. 739, 743-44 (1944). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir. 1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), that this doctrine applies only when the lessor was a "carrier by railroad," see 49 U.S.C. § 1(18), when the lease was made; it claimed that the Terminal Company was not. On June 3, 1971, the examiner rendered a report recommending authorization of the abandonment. He found that, despite various promotional efforts, the Railroad's traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the Brooklyn area served by it; that the Railroad "has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim;" and that the property owned and leased by the Railroad was in such poor condition that an expenditure by it of approximately $930,000 would be required for *154 rehabilitation of roadway and marine equipment.[2] With the Railroad's long record of losses and negative net worth, these funds could not be obtained except from the parent. The examiner concluded that, despite undoubted hardship to users, which might require many to move, with consequent loss of employment opportunities and revenues to the City and the State, there was no alternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning the obligations of Terminal Company as lessor, the examiner concluded that this raised a factual issue of the lessor's earlier common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1(18) and (20). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the leased properties by the Terminal Company. Following the Commission's general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic advantages other than the termination of losses,[3] see Chicago, A. & S.R.R. Co. Receiver Abandonment, 261 I.C.C. 646, 652 (1946); Okmulgee Northern Ry. Co. Abandonment, 320 I.C.C. 637, 645-646 (1964); Manifestee & Repton R.R. Co. Abandonment, 324 I.C.C. 489, 492 (1964); Tennessee Central Ry. Co. Abandonment of Operations, 333 I.C.C. 443, 453-454 (1968), he declined to impose employee protective conditions. Exceptions and a reply thereto by the Railroad were filed with the Commission in early August. The City's, the Unions' and the Users Association's exceptions requested oral argument. On November 3, the Users Association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $25 per car. *155 The Railroad replied by letter. On December 13, the Commission, acting by Division 3, entered the order to which we have referred. This noted that the exceptions had raised "a substantial question of possible damage to the environment" as a result of the substitution of trucks for railroad cars but concluded that "any damage that may occur to environmental amenities by our approval of this application is to be outweighed by the proven economic harm that would result from its denial." It upheld the findings and conclusions of the examiner and decided that, save for the point just stated, the exceptions and reply thereto raised no new or material issue and were not of such a nature as to require the issuance of a report. After denying the petition of the Users Association for leave to file a petition to reopen the record, it adopted the hearing examiner's order of abandonment "as the order of the Commission, Division 3, effective on the date of service hereof," which was specified to be December 13. I. If we were to view the matter apart from certain special considerations urged by the plaintiff and intervenors, it would be clear that the order of abandonment was supported by substantial evidence at the time it was issued. Between 1959 and 1969, the Railroad's traffic declined from 618,053 to 459,685 tons. During the same period, traffic for four types of customers — tenants of the Terminal Company; tenants of an unrelated organization, Bush Terminal Associates; customers located on private sidings; and the Brooklyn Army base — fell from 13,490 to 4,165 cars, those from the Army base having later dwindled to zero. Losses have been incurred every year since 1959. These attained highs of $368,431 and $376,644 in 1966 and 1967; while the losses for 1968 and 1969 were less, $311,910 and $220,582, respectively, the Railroad persuasively claimed the reduction was due principally to the deferral of maintenance expenditures which would have to be made if it were required to continue operations. The balance sheet as of December 31, 1969, shows current assets of $451,242 and current liabilities of $1,990,754.[4] The story seems to be the familiar one of decreased usage and higher costs leading to deterioration of plant, and deterioration of plant then leading to further decrease in usage and still further deterioration, until a time finally comes when the operation grinds to a halt, with attendant hardship on the remaining users and the employees. Courts are not free to annul the Commission's decision to allow abandonment under such circumstances simply because greater wisdom at an earlier date on the part of all concerned might have preserved a valuable transportation enterprise. See Washington & Old Dominion Users Ass'n v. United States, 287 F.Supp. 528 (E.D.Va. 1968) (three-judge court); Asbury v. United States, 298 F.Supp. 589 (W.D.Va. 1969) (three-judge court). As the examiner said, "an unprofitable operation cannot be expected to continue indefinitely for the benefit of shippers who may be adversely affected but who do not furnish sufficient traffic to support a line, or to furnish transportation during periods when trucks experience difficulty operating, or for such commodities as may not be handled economically by trucks." Before the hearing examiner, the plaintiffs argued that the loss figures constituted only bookkeeping losses which must be disregarded because they reflect intercompany charges arising out of a leasing arrangement between a parent and a wholly owned subsidiary, and that the Railroad and its parent must be viewed as a single entity to obtain an accurate financial picture. The examiner had abundant basis for rejecting these arguments. The Commission had earlier found the leasing arrangement between the Terminal Company and the Railroad to be fair, 257 I.C.C. at 379-381, and the *156 examiner received and adopted new testimony reinforcing this conclusion. Apart from an annual fee of $25,000 for services such as telephones, casual engineering, and payroll accounting, which has remained unchanged since 1945 and which the Examiner permissibly found to be fair, indeed, low, payments were made for services actually rendered — such as maintenance work and managerial services of officers of the Railroad who are also officers of the Terminal Company — and for rent calculated on the basis of a basic rental component and a percentage rental component as provided in the lease. The percentage rental is 75% of the Railroad's net earnings from both its leased and owned properties; the basic rental is essentially an amount equivalent to property taxes, depreciation, and 5½% of the assessed value of the leased real estate and the agreed value of the other leased property. An owner would have incurred the various service and managerial expenses. No payment of percentage rental has been made since 1959, there having been no net earnings since that date. Finally, the basic rental provides less than a fair rate of return, at least under current conditions where prime corporate bonds command rates in the neighborhood of 7%. In fact, in 1966, 1967, and 1968, the Railroad's actual payments to the Terminal Company were less than the current charges other than rent;[5] if it had been independently operated and had bonds outstanding, it would long since have had to take advantage of § 77 of the Bankruptcy Act. In short, it does not appear that the intercompany charges were either improper or unreasonable. Much is sought to be made of the benefit which the parent received from the Railroad's losses in its consolidated income tax return, but did not pass on to the Railroad. Whatever bearing this might or might not have on a claim by the Terminal Company in the case of insolvency on the part of the Railroad, cf. Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 206 F.2d 495 (9 Cir.), cert. denied, 346 U.S. 910, 74 S.Ct. 241, 98 L.Ed. 407 (1953), the mere fact that, due to other income of the parent, the ultimate impact of the Railroad's losses may be less than if it stood alone, would not justify requiring railroad operations to be continued at a loss. Only the railroad business is to be considered in deciding whether an operation is unprofitable and should be abandoned. See Brooks-Scanlon Co. v. Railroad Comm'n, 251 U.S. 396, 399, 40 S.Ct. 183, 64 L.Ed. 323 (1919). This same principle also disposes of the contention that the parent, with its other profitable businesses, and the Railroad should be viewed as a single entity for financial accounting purposes, thus purportedly eliminating any showing of loss. Problems of constitutional dimensions would be raised by requiring a company to subsidize a losing railroad operation with non-railroad businesses, see id. — particularly in a case such as this where the railroad business has failed to show a profit for some ten years. For purposes of this abandonment proceeding, then, the Railroad's historical losses are real, substantial, and not exaggerated by intercompany transactions.[6] Relying on a lease provision obligating the lessor to make capital expenditures *157 with respect to the leased property, the plaintiffs advance a further argument that the serious condition of the equipment used by the Railroad is the result of the Terminal Company's failure to make necessary capital expenditures and the size of the estimated maintenance expenditures now necessary should therefore be appropriately discounted. More specifically, the lease provides that although the lessee is required to maintain the properties at its own expense, the lessor is obligated to make capital expenditures — if not occasioned by the lessee's failure to maintain — with the provisos that the lessor could terminate the lease if more than $100,000 of such capital expenditures were required in any year and that the lessee could either terminate the lease or make capital expenditures at the expense of the lessor if the latter failed to make necessary capital expenditures. There is evidence in the record which indicates that from 1960 through 1969 the Terminal Company made capital expenditures amounting to $786,751 with respect to the leased properties. This would suggest that only a little more than $200,000 additional capital could have been called upon in that ten year period to replace the large amount of rundown equipment being used by the Railroad. Even assuming that the lessee could have called upon the lessor to make additional major capital expenditures and that the result would have been a substantial reduction in the maintenance expenditures now necessary on the part of the lessee, it should be recognized that in fact any such capital expenditures must ultimately be paid for by the lessee since, among other things, the basic rental consists of a depreciation charge and an interest component. Thus, in the 1960 through 1969 period, depreciation charges payable to the Terminal Company by the Railroad amounted to $592,670. Also the record clearly shows that throughout much of that period the Railroad was in default in the payment of rent. By December 31, 1964, the Railroad owed the Terminal Company over four hundred thousand dollars and that sum increased to more than a million and a half by December 31, 1969. Indeed, since 1965, the annual increase in the Railroad's debit balance to the Terminal Company has exceeded $100,000. In light of these figures, it is very doubtful that the lessor has been obligated to make any capital expenditures for some time[7] — at the least, not since the Railroad has been in default on its rent. Consequently, we see no basis for discounting the substantiality of the maintenance expense facing the Railroad should it be required to continue operations. We have reviewed the evidence before the Commission concerning the Railroad's physical and financial condition at this length in order to delimit the extent to which reconsideration of the specific matters here discussed[8] will be necessary on the remand to be prescribed in what follows. Compare Massachusetts Bay Telecasters, Inc. v. FCC, 104 U.S.App.D.C. 226, 261 F.2d 55, 65 (1958), modified, 111 U.S.App.D.C. 144, 295 F.2d 131 (Cir.), cert. denied, 366 U.S. 918, 81 S.Ct. 1094, 6 L.Ed.2d 241 (1961). *158 II. Despite the bleak financial picture of the Railroad's past history and future prospects established before the hearing examiner, we are confronted with a serious argument by the plaintiff and intervenors that the Commission has acted here in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-47. Although this abandonment proceeding was initiated before NEPA became effective on January 1, 1970, all agency hearings and decision-making occurred long after the effective date. Consequently, we have no doubt that NEPA was applicable. Cf. Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F.Supp. 878, 880 (D.D.C.1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728, 743-744 (E.D. Ark.1971). While the Commission may initially have thought that, as a general matter, abandonment proceedings were not within the provisions of NEPA, subdivisions (A), (B), and (D), among others, of § 102(2), 42 U.S.C. § 4332(2), impose a number of duties on all federal agencies with respect to the consideration and exploration of the environmental effects of their decisions and plans, and the obligation of a federal agency to adhere to these subdivisions in all instances is essentially unqualified.[9] In addition, in cases of "major Federal actions significantly affecting the quality of the human environment," § 102(2) (C) requires the federal agency to include in its report a "detailed statement" which comprehensively considers the effect of the proposed action upon the environment and alternatives thereto. At the time of the hearings in this proceeding, it may not have been entirely clear from the statute or from the Interim Guidelines published by the Council on Environmental Quality (CEQ), 35 Fed. Reg. 7390-93 (May 12, 1970), revision proposed, 36 Fed.Reg.1398-1402 (Jan. 28, 1971), guidelines published, 36 Fed. Reg. 7724-29 (April 23, 1971), that a railroad abandonment proceeding, despite its potential for increase in the use of alternative modes of transportation with greater polluting effects, such as trucks, constituted the type of federal action which requires a detailed environmental statement as prescribed in § 102 (2) (C). However, the Commission has gone a long way to resolving whatever doubt there was on the question by its proposed rules which include railroad abandonment proceedings among those actions which may have a significant effect on the quality of the environment. See ICC Notice of Proposed Rule Making: Implementation of National Environmental Policy, App. A(d) (2), 36 Fed.Reg. 10807, 10809 (June 3, 1971). And although it is evident that the Commission has been slow in reacting to the directive of the CEQ, 35 Fed.Reg. 7390-93 (May 12, 1970), and of NEPA itself, that each federal agency establish formal procedures to guide the preparation of § *159 102(2) (C) environmental impact statements, this cannot, excuse the Commission's failure to consider adequately the provisions of NEPA once the Act had become effective. The examiner's report gave no consideration to the environmental implications of the abandonment of the Railroad's operations. None of the protestants had sought at the hearing to develop the record in this respect. The environmental issue was first raised by the City in its Exceptions to the examiner's report. It argued there that if 13,500 carloads — which it assumed to be the Railroad's annual traffic — were moved by truck, substantial additional tonnage of pollutants would be discharged.[10] The Railroad replied that these figures were highly exaggerated, particularly since much of the protestants' argument at the hearing and in their exceptions was not that users would turn to trucks but rather that they would move away as soon as their leases expire, or perhaps even before. Whatever the merits of these opposing views, it is apparent that there is likely to be some adverse environmental effect as a result of the abandonment. Yet the only agency consideration given the environmental issues is the cursory statement of Division 3 which we set out in the margin.[11] In our opinion, this is insufficient to establish compliance with, in particular, § 102(2) (B) & (D), much less with the detailed requirements of § 102(2) (C). We recognize that the Commission was here faced with a relatively new statute so broad, yet opaque, that it will take even longer than usual fully to comprehend its import. The protestants compounded an already difficult situation by waiting until the eleventh hour to raise an important question which would best have been considered from the outset. Further, we are not eager to remand for what may well be a largely ritualistic act. We have serious question whether, in view of the consistent record of losses and the large sums needed to remedy deferred maintenance and for capital expenditures and the unavailability of any likely source for these, there is any alternative to allowing abandonment here, despite adverse environmental effects. A recent offer by the Users Association, discussed infra, perhaps offers at least a glimmer of hope. But at this juncture the Railroad appears unable to continue, and has operated as long as it has only because the *160 Terminal Company has not pressed for collection of increasing amounts — now more than a million and a half dollars — owed to it. We find no indication in NEPA that Congress meant to authorize an agency to compel a parent or sister company to finance a losing subsidiary or affiliate simply because the latter's demise will have an unfortunate effect on the environment; and there would be the gravest doubt whether it constitutionally could under the circumstances here before us. See Brooks-Scanlon Co. v. Railroad Comm'n, supra, 251 U.S. 396, 399, 40 S.Ct. 183, 64 L.Ed. 323; Railroad Comm'n of State of Texas v. Eastern Texas R.R., 264 U.S. 79, 85, 44 S.Ct. 247, 68 L.Ed. 569 (1924); Pacific Tel. & Tel. Co. v. Tax Comm'n, 297 U.S. 403, 413, 56 S.Ct. 522, 80 L.Ed. 760 (1936) (Brandeis, J.); In re New York, N. H. & H. R. R., 304 F.Supp. 793, 801-803 (D.Conn.1969), aff'd in part and rev'd in part sub nom. New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970). On the other hand, such considerations do not justify the Commission's disregard of the law. The tardiness of the parties in raising the issue cannot excuse compliance with NEPA; primary responsibility under the Act rests with the agency. See Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1118-1119 (D.C.Cir. 1971); cf. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2 Cir., 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Isbrandtsen Co. v. United States, 96 F.Supp. 883, 892 (S.D.N.Y. 1951) (three-judge court), aff'd sub nom. A/S Ludwig Mowinckels Rederi v. Isbrandtsen Co., 342 U.S. 950, 72 S.Ct. 623, 96 L.Ed. 706 (1952). Furthermore, the legislative history indicates that one of the strong motivating forces behind NEPA, and § 102 in particular, was to make exploration and consideration of environmental factors an integral part of the administrative decision-making process. See S.Rep.No.91-296, 91st Cong., 1st Sess., U.S.Code Cong. & Admin.News, p. 2751; 115 Cong.Rec. 40416 (Dec. 20, 1969) (remarks of Senator Jackson). See also Calvert Cliffs', supra, 449 F.2d at 1112-1114. To permit an agency to ignore its duties under NEPA with impunity because we have serious doubts that its ultimate decision will be affected by compliance would subvert the very purpose of the Act and encourage further administrative laxity in this area. The systematic investigation of the abandonment of the Railroad's operations which NEPA requires may well reveal substantial environmental consequences and, given that the most recent offer of the Users Association may possibly provide an economic alternative to abandonment, compel further consideration of its propriety and necessity. In any event, preservation of the integrity of NEPA necessitates that the Commission be required to follow the steps set forth in § 102, even if it now seems likely that those steps will lead it to adhere to the present result. Thus, this proceeding must be remanded to the Commission for it to bring itself into compliance with the law. III. The plaintiff and intervenors in this action have relied heavily on the willingness of the Railroad's users to submit to a surcharge. At the close of the hearing before the examiner, the Users Association suggested that if the Commission were disposed to authorize abandonment, the users would be willing to pay a surcharge sufficient to enable the Railroad to operate without serious loss. In its brief the Association suggested a surcharge of $10 per car, which it claimed would produce added annual revenue of $130,000.[12] The examiner dealt with *161 this in a passage of his report, set forth in the margin.[13] Under the stimulus of a decision of Division 3 in Wellsville, Addison & Galeton R.R. Corp. Abandonment, 338 I.C.C. 604, served August 26, 1971, the Users Association, on November 3, filed a petition for leave to file a petition to reopen. This time the offer was upped to $25 per car, and was supported by affidavits of 21 shippers accounting for 2,000 carloads annually. As previously indicated, Division 3 denied leave to file. Finally, together with its brief in this action, the Users Association filed an affidavit which, in essence, puts forth its most recent and most substantial offer to pay a $25 surcharge. The affidavit purports to establish the willingness of 94 users, who ship and/or receive some 7,000 carloads annually, to pay such a surcharge. Were we not convinced that we must remand for further consideration of NEPA, we would dispose of the Users Association's three surcharge offers seriatim. First, we see no basis for quarreling with the examiner's rejection of the initial $10 offer on what little he had before him. The propriety of the refusal to consider the second offer turns on whether the Commission abused its discretion in denying the petition to reopen. While the Court of Appeals for this circuit has held that an order refusing to reopen is not "wholly immune from judicial examination," Cappadora v. Celebrezze, 356 F.2d 1, 5-7 (2 Cir. 1966); see also Blue Bird Coach Lines, Inc. v. United States, 328 F.Supp. 1331, 1337-1338 (W.D.N.Y.1971) (three-judge court), nevertheless, as recognized in the cases cited, the scope of review of such orders is exceedingly narrow. Courts must always bear in mind the warning of Mr. Justice Jackson: If upon the coming down of the order litigants might demand rehearings as a matter of law because of some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944). Here there were no "new circumstances" at all. There was only the fact that the examiner's report had made the likelihood of abandonment more vivid for more users than it had been at the hearing stage. Furthermore, the companies joining in the second offer represented only 2,000 carloads which means a maximum of $50,000 in added revenue, making the doubtful assumption that they would continue their present usage at the higher rates. The plaintiff's argument that the Commission's action here cannot be reconciled with that in the Wellsville case, supra, 338 I.C.C. 604, is without force.[14] There was, in short, *162 no abuse of discretion in the Commission's denial of the petition to reopen. Finally, the newly offered affidavit would, in the normal course, be properly excluded from consideration in this action. "The rule is well settled that proceedings [under 28 U.S.C. § 2321] are not de novo, and ordinarily it is improper to allow the Commission's findings to be attacked or supported by evidence which the Commission had no opportunity of considering." Wycoff Co. v. United States, 240 F.Supp. 304, 308 (D.Utah 1965) (three-judge court), citing Louisville & N. R. R. v. United States, 282 U.S. 740, 51 S.Ct. 297, 75 L.Ed. 672 (1931); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260 (1934); American Trucking Ass'ns, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953). See also Town of Inlet v. New York Cent. R. R., 7 F.Supp. 781, 784 (N.D.N.Y.1934) (three-judge court); Convoy Co. v. United States, 200 F.Supp. 10, 15-16 (D.Ore.1961) (three-judge court); Oklahoma Corporation Comm'n v. United States, 235 F.Supp. 803, 806-807 (W.D.Okl.1964) (three-judge court). The only exceptions to this rule are cases in which the jurisdictional facts doctrine of Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), is raised or, at least in former days, in which a rate order is attacked as confiscatory. Interstate Investors, Inc. v. United States, 287 F. Supp. 374, 386 (S.D.N.Y.1968) (three-judge court), aff'd, 393 U.S. 479, 89 S.Ct. 707, 21 L.Ed.2d 687 (1969). Otherwise, the court's function in a proceeding such as this is only to review the decision of the Commission in light of the record before it. See Sakis v. United States, 103 F.Supp. 292, 313 (D.D.C.) (three-judge court), appeal dismissed by stipulation, 344 U.S. 801, 73 S.Ct. 4, 97 L.Ed. 625 (1952). It is consistent with Mr. Justice Jackson's views concerning petitions to reopen that parties be obligated to develop the record fully before the Commission and not seek continually to introduce additional evidence. This assures that the Commission will be able to perform meaningfully the decision-making functions residing initially with it and that there is some semblance of finality and orderliness in the administrative process. Indeed, this most recent surcharge offer is a classic instance of evidence which could and should have been introduced before the trial examiner. But there is, in our opinion, more at stake here than the interests of the named parties. To be sure, the precise consequences for the City, its economy, and its people are not readily ascertainable; but the Railroad's demise will undoubtedly be followed by the relocation of at least some users with the attendant loss of jobs for employees, loss of business for the users' suppliers and customers, and ultimately both economic and physical deterioration in the local community. Against this background, we note the Users Association's contention that the additional $175,000 in revenue ensured by its most recent surcharge offer, when combined with a union offer to eliminate one train crew producing an estimated annual cost saving of $60,000, see note 6, would make the Railroad's continued operation economically feasible. Considered in the light of 1969 financial figures, the Users Association points out that approximately $175,000 in additional revenues plus a $60,000 cost saving would turn a $220,582 loss into a $14,418 profit. On the record before us we could only speculate on the correctness of the Users Association's position — although we do have certain fundamental doubts about its proffered calculations which the parties should seriously consider.[15] The necessity *163 of remand to the Commission for further consideration of the environmental issue allows us to avoid such unwarranted speculation and to give sway to the substantial element of public interest contained in this case by directing the Commission on remand to reopen the administrative record and reevaluate the propriety of abandonment in light of the additional evidence tendered to this court concerning the willingness of users to pay a $25 surcharge.[16] On remand, both sides should present the most recent financial and traffic figures available, thus permitting an accurate reappraisal of the Railroad's future economic prospects assuming a $25 surcharge were put into effect.[17] We consider our action here to be consonant with the general principle that there must be finality in the administrative process; we direct further consideration of the Railroad's financial prospects with the most recent surcharge offer only because we must remand for failure to comply with NEPA in any event. IV. In remanding this action to the Commission for further action we do not vacate its abandonment order of December 13, and thus we allow the Railroad to remain shut down pending further administrative action.[18] Although the Commission's failure to act in accordance with applicable law, specifically NEPA, would provide sufficient basis for vacating the Commission's order, see 5 U.S.C. § 706(2) (A), such action is not compelled. In reviewing the Commission's action, we sit as a court with equity powers, and as such may adjust relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of judicial review is consonant with that of the administrative proceeding itself, — to secure a just result with a minimum of technical requirements. Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221 (1939). See also Addison v. Holly Hill *164 Fruit Products, Inc., 322 U.S. 607, 619-622, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944). The special circumstances here justify our remanding for further consideration without the vacating of the Commission's order that would normally attend upon this. NEPA is a new and unusual statute imposing substantive duties which overlie those imposed on an agency by the statute or statutes for which it has jurisdictional responsibility. Initially harmonizing and integrating the special duties imposed by NEPA with an agency's traditional regulatory functions is not an easy task. What is more, the plaintiffs who now seek to benefit from the Commission's failure completely to perform the tasks imposed on it by NEPA exacerbated the problem by waiting until after the hearings were completed to raise the environmental question. While none of this can ultimately insulate unlawful administrative conduct from judicial correction, in the exercise of our equity powers we deem this sufficient, considering the seriously deteriorated condition of the Railroad, both physically and economically, as established by the evidence before the Commission, to warrant allowing the December 13 order to remain standing at this juncture for a short period while the Commission supplements the record on the environmental issue and then assesses whether its order should be in any way revised. Cf. Coffey v. Jordan, 107 U.S.App.D.C. 113, 275 F.2d 1 (1959). Even more clearly this is a wholly logical posture in which to have this action proceed insofar as the additional evidence with respect to the surcharge offer is concerned. We have already explored the evidence at length and found that there was substantial basis in the present record for the Commission's conclusions with respect to the Railroad's current financial condition and future economic prospects. Even assuming the most recent surcharge offer so substantially alters the Railroad's financial prospects as to make abandonment inappropriate, it is nonetheless merely additional evidence which could and should have been presented to the hearing examiner. Thus, we do not think that this evidence can impeach the present validity of the December 13 order on the record now before us. At most, under the special circumstances of this case, this additional evidence can and does warrant supplementary action by the Commission — albeit this action may ultimately impugn the continuing propriety of the December 13 order and warrant its revision. Cf. Fleming v. FCC, 96 U.S. App.D.C. 223, 225 F.2d 523 (1955); Massachusetts Bay Telecasters, Inc. v. FCC, supra, 261 F.2d at 65-67. We will, then, give the Commission ninety days to conduct whatever further proceedings it may wish concerning the environmental and surcharge issues, to make additional determinations, and to serve, and file with us, a supplemental report consistent with this opinion and the record of any further proceedings. The parties shall serve and file any further briefs within fifteen days after service of the supplemental report; we will hear additional argument if requested. We emphasize the need for expeditious action and holding the Commission to a strict time schedule because we are permitting the December 13 order to stand and the Railroad to remain shut down.[19] In the meantime, we will retain *165 jurisdiction, cf. Addison v. Holly Hill Fruit Products, Inc., supra, 322 U.S. at 619, 64 S.Ct. 1215, and will withhold decision of the motion for a preliminary injunction. Upon the filing of the supplemental report and record we shall deal with this matter as on final hearing. F.R.Civ.P. 65(a) (2). NOTES [1] We understand that arrangements were made whereby New York Dock Railway, apparently using some of the Railroad's equipment, handled distressed freight in the immediate vicinity of the City of New York. [2] The equipment used in the Railroad's operation is owned by the Terminal Company. Under the leasing arrangement, the Railroad is responsible only for maintenance expenses; capital expenditures with respect to the leased properties are the obligation of the Terminal Company. The cost of rehabilitating all the trackage used by the Railroad was estimated at $553,000. A marine consultant had testified that the operating machinery of the tug used by the Railroad was rattling, and that renewal of this plus other necessary tug repairs would cost $115,000. The short term cost of repairing the seven car floats used by the Railroad would be $280,000. These are all maintenance expenses which would have to be paid by the Railroad, leading to the $930,000 estimate. Substantial capital expenditures on the part of the Terminal Company are also needed. The condition and age of the six locomotives — four are more than 39 years old; two are more than 25 years old — used by the Railroad are such that it would be more advisable to replace them than to repair them. The cost of the three replacements which would be needed was estimated at $379,700. Similarly, the car floats were 25 to 47 years old and all but one leaked. The marine consultant testified that it would be more practicable to buy six new car floats than to repair the seven old ones. New car floats would cost $300,000 each. In arriving at the $930,000 estimate, the examiner included the $280,000 estimate with respect to short term repairs by the Railroad on the car floats while apparently assuming that the Terminal Company would also have to purchase six new car floats at $300,000 each. Review of the marine consultant's testimony suggests that he considered purchase of new car floats as a preferable alternative to repairing the old ones, obviating the need for the expenditure of $280,000 by the Railroad. But even after adjusting for this, the Railroad would still have to make a substantial expenditure of approximately $650,000 to rehabilitate its roadbed and marine equipment. Moreover, in the long run, capital expenditures by the Terminal Company are not a meaningful panacea for the Railroad's interrelated financial and maintenance woes, since under the rental terms the Terminal Company ultimately recoups capital expenditures from the Railroad, see infra. [3] The only property owned by the Railroad, the rails over 1.8 miles of City streets, is likely to have a negative salvage value in light of the City's demand that the Railroad not merely pave over the tracks but remove them and repave the streets. The salvage value of the leased equipment to the owner is nominal. [4] The latter figure includes accrued accounts payable of $1,718,426, of which $1,560,055 was due to the Terminal Company. [5] Furthermore, the Terminal Company has never charged the Railroad interest on its ever mounting debt. [6] Nor, taken alone, would the offer of the unions to eliminate one train crew have meaningfully alleviated the economic plight of the Railroad as established by the evidence before the hearing examiner. Even assuming the full annual cost of approximately $60,000 would be realized as savings, this would not be by any means sufficient to provide the Railroad with a reasonable possibility of bringing expenses into line with revenues, much less to ensure adequate funds for much needed maintenance. Whether, when combined with steps proposed to generate additional revenues, the cost saving produced by the elimination of one train crew would be enough to make the Railroad profitable once again is a separate question, see Part III infra. [7] Thus, while a problem of considerable interest would be raised if a parent used its power to prevent an operating subsidiary from exercising contractual rights against the parent, performance of which might have averted the conditions now requiring abandonment, cf. W. R. Grace & Co. v. CAB, 154 F.2d 271 (2 Cir.), cert. granted sub nom. Pan American Airways Corp. v. W. R. Grace & Co., 328 U.S. 832, 66 S.Ct. 1378, 90 L.Ed. 1608 (1946), dismissed as moot, 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 401 (1947), that question is not presented here. [8] We do not at this time decide whether the Commission was correct in concluding that the order of abandonment should not have been conditioned upon resumption of operations by the Terminal Company, or in refusing to impose labor protective conditions, since the further action by the Commission which we direct infra could make review of these questions unnecessary. [9] While § 102 contains the qualification "to the fullest extent possible," this does not appear to have been intended to relax the obligation of administrative authorities to perform the duties set forth in the section. To the contrary, the conference committee which added this language stated that its purpose is to make it clear that each agency of the Federal Government shall comply with the directives set out in [ § 102(2) ] unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible .... Thus, it is the intent of the conferees that the provision "to the fullest extent possible" shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section "to the fullest extent possible" under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance. Conference Report No. 91-765, 91st Cong., 1st Sess. (1969), U.S.Code Cong. & Admin.News, p. 2770. See also Port of New York Authority v. United States, 451 F.2d 783, 789 n. 26 (2 Cir. 1971). [10] The figures in the City's Exceptions, which were not otherwise of record, were: Emission Tons Per Year (low) (high) Assuming Assuming 26,314 trucks 59,200 trucks Carbon monoxide 14,000 31,000 Hydrocarbons 1,950 4,900 Oxides of Nitrogen 3,900 7,950 Particulate 310 600 [11] This, in full text, is It appearing, That, although a substantial question of possible damage to the environment has been raised, denial of the application herein will almost certainly result in the financial collapse of the applicant, which would, in effect, substitute economic waste for brief postponement of the envisoned environmental damage; and that under the balancing test prescribed by the court in Calvert Cliffs' Coordinating Committee, Inc., et al. v. Atomic Energy Commission, No. 24,839 (U.S.Ct. App., D.C.1971) [449 F.2d 1109], as in accordance with Section 102 of the National Environmental Protection Act, any damage that may occur to environmental amenities by our approval of this application is to be outweighed by the proven economic harm that would result from its denial . . . . [12] The Association used for its calculation an estimated traffic figure of 13,000 cars per year which was apparently derived from data available at that time for the years 1967, 1968, and 1969. More recent experience indicates that annual usage has since decreased by more than one-third, see note 15, infra. [13] No evidence was submitted in the record with respect to this proposal. The 12 protesting shippers, who are members of the Users Association, were not interrogated, and consequently were not cross-examined, concerning their willingness to pay an additional charge. The $130,000 figure was obviously based on all of applicant's traffic, and the Users Association, which has 32 members, was not authorized to speak for the over 300 other users of applicant's line, whether they are agreeable to the additional charge. Even if all shippers were willing to pay the additional $10 per car, the additional $130,000 in revenue would not convert the deficit operation to a profitable one, and would not provide funds for necessary rehabilitation. Also, there is no assurance that shippers would continue to tender the present amount of traffic at the increased rate. In fact, the contrary may be expected, in view of the history of declining traffic. [14] First, Division 3's reversal of a review board in the Wellsville case rested on a number of factors, of which Erie-Lackawanna's offer of increased divisions of revenue with the applicant, 338 I.C.C. at 608, was only one. Also, an offer of increased divisions between two carriers, which can be made immediately effective and will not adversely affect interline traffic, differs substantially from the offer of some shippers to submit to a surcharge on shipments they choose to make by rail, which might or might not be acceptable to others. Finally, the offer of increased divisions in Wellsville was fully developed in the original record, not a belated proffer four months after an examiner's adverse report and when decision was near. [15] In 1969 the Railroad handled approximately 13,000 carloads, whereas the very affidavit submitted by the Users Association to this court indicates that in 1971 the Railroad handled only some 8,000 carloads. If the amount of traffic handled by the Railroad has in fact declined so sharply, gross railway operating revenues today must be substantially less than in 1969 unless rate increases have occurred. Exactly what has happened to costs in the meantime is unclear. And even if the union's offer and the surcharge would cause the Railroad's operations to approach the break-even point, there must be some consideration of its immediate need to make large expenditures in order to repair its seriously deteriorated equipment. [16] Such a direction to reopen the administrative record to take in additional evidence where remand to the Commission is unavoidable on other grounds is not unprecedented, cf. Jarman v. United States, 219 F.Supp. 108, 119 (D.Md. 1963) (three-judge court). [17] Defendants have raised the question of the need for Commission action to make the surcharge binding on all users of the Railroad. Under 49 U.S.C. § 15(1), the Commission may act on its own motion to hold hearings and determine the reasonableness of a proposed rate. In its brief, the Commission argues essentially that the necessary rate-making hearing would be lengthy and complex; the Users Association seems to think not. In any case, we see no inherent obstacle to the Commission making a rate determination in the context of this proceeding. And certainly if the Railroad's traffic is now in fact only 8,000 carloads annually, see note 15, supra, the Users Association's affidavit purporting to establish the willingness of users representing some 7,000 carloads annually provides the Commission with substantial and crucial evidence that the rate increase would not make motor carrier service preferable to rail service. In short, it is possible that the surcharge will be shown to provide economic hope for the Railroad and that the rate increase produced by the surcharge will be shown to be reasonable, and thus we think justified, whatever administrative effort is necessary to investigate these matters. [18] In its brief in this action, the Railroad has argued that even if we were to vacate the Commission's order, our actions would neither remove nor be determinative of the legality of its self-imposed embargo. We find it unnecessary to pass upon this. [19] That this action to review the Commission's abandonment order has had to proceed with the Railroad already shut down and that we have now found it necessary to seek further agency consideration highlights the preferability of the Commission's usual practice of not making its orders of abandonment effective until 30 or 35 days after service. Indeed, the plaintiffs contend that on this ground alone the order was arbitrary, capricious, and an abuse of discretion. 5 U.S.C. § 706(2) (A). On the basis of the evidence before the Commission concerning the serious economic and physical condition of the Railroad we are not inclined so to conclude. Without doubt, immediate abandonment had a drastic effect on the users and employees of the Railroad. But all concerned had been on notice of the likelihood of abandonment for two and a half years. The Railroad had even offered the users the services of a transportation consultant to help them devise other means of transportation. Delay in the effectiveness of the order would have been of little significance here were it not now necessary to remand to the Commission for further action, and the matters which have delayed a speedy, final determination of the Railroad's future are ones which the plaintiffs could and should have presented to the hearing examiner long ago.

11-5060 Liang v. Holder BIA Grant, IJ Hom, IJ A079 399 984 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand thirteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.  UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Zhu La Liang, a native and citizen of the People’s Republic of China, seeks review of a November 8, 2011, order of the BIA, affirming the November 17, 2005, decision of Immigration Judge (“IJ”) M. Christopher Grant, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zhu La Liang, No. A079 399 984 (B.I.A. Nov. 08, 2011), aff’g No. A079 399 984 (Immig. Ct. Arlington, Nov. 17, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 I. Adverse Credibility Determination Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 1 Liang did not challenge the IJ’s denial of CAT relief before the BIA and does not meaningfully challenge it in this Court. Thus, the claim is forfeited. 2 Cir. 2009). In pre-REAL ID Act cases, such as this one, inconsistencies and other discrepancies may form the basis of an adverse credibility determination but must “bear a legitimate nexus” to the applicant’s claim of persecution and be “substantial” when measured against the record as a whole. Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). The agency, however, may rely on the cumulative effect of even minor inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). We conclude that substantial evidence supports the agency’s adverse credibility determination. In finding Liang not credible, the IJ reasonably relied in part on Liang’s demeanor, noting that she appeared very nervous when asked to explain inconsistencies in her testimony. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). We defer to this finding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang’s various statements in concluding she was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008) (holding that for purposes of analyzing a credibility determination, “[a]n inconsistency and an omission are functionally equivalent”); see also Secaida- 3 Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the fact of her forced abortion was material, and bore a “legitimate nexus,” to her claim that she had suffered past persecution, and, therefore, the omission of that fact during her credible fear interview formed a legitimate basis for the IJ’s adverse credibility determination. See Secaida-Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d at 166-67 n.3. The IJ also reasonably relied on discrepancies between: (1) Liang’s original and amended asylum applications with respect to the year in which the abortion occurred; (2) Liang’s and her husband’s testimony as to whether they had cohabited in China; and (3) Liang’s testimony and abortion certificate with regard to the date of the abortion procedure. Liang failed to provide compelling explanations for these discrepancies. See Majidi, 430 F.3d at 80-81. Furthermore, the IJ reasonably found implausible Liang’s assertion that she chose to delay marrying after discovering that she was pregnant despite her awareness of the significant risks associated with conceiving a child out of wedlock. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that where the IJ’s findings are “tethered to record evidence, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived,” we will not disturb the inherent implausibility finding). Finally, because Liang does not challenge the IJ’s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in Liang’s testimony, we identify no error in the agency’s denial of asylum and withholding of removal on credibility grounds. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). II. Due Process Despite the IJ’s failure to conduct a de novo hearing on remand as ordered by the BIA, Liang has not demonstrated that she was deprived of due process during her proceedings. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006). Indeed, nothing in the record suggests that Liang was prohibited from fully developing her testimony, that any of her evidence had been ignored, or that the IJ made a determination on issues about which she had no notice or opportunity to be heard. See id. Furthermore, Liang has not identified anything to suggest that the manner in which the IJ conducted her proceedings undermined their fairness. See id. 5 Finally, contrary to Liang’s contention, the IJ who certified the record and returned it to the BIA for adjudication of Liang’s appeal expressly declined to address the merits of the prior IJ’s decision, noting that such review was solely within the purview of the BIA. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 6 

                                                                  No. 2--95--0698 _________________________________________________________________                                  IN THE                        APPELLATE COURT OF ILLINOIS                              SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE       )  Appeal from the Circuit Court OF ILLINOIS,                  )  of Stephenson County.                              )     Plaintiff-Appellant,     )  No. 93--CF--422                              ) v.                            )                              ) JOHN A. GOEBEL,               )  Honorable                              )  Richard E. DeMoss,     Defendant-Appellee.      )  Judge, Presiding. _________________________________________________________________     JUSTICE HUTCHINSON delivered the opinion of the court:     The State appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995.  The State's motion to reconsider was denied, and this timely appeal was filed.  We reverse and remand.       The State petitioned this court for leave to supply us with additional authority; we granted the State's petition.  On appeal to this court, the State raises one issue:  whether reversal of the trial court's dismissal order is required, based on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996).  The State contends that the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse.  We agree with the State.     Defendant was charged by information with the offense of criminal sexual assault.  The information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse.  The amended information alleged:          "[Defendant], on or about the 10th day of November 1992     at and within Stephenson County, Illinois did commit the     offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of     Chapter 38, Illinois Revised Statutes *** Section 12--16(b) in     that said defendant, [a family member] of [D.R.], knowingly     committed an act of sexual conduct with [D.R.], who was under     18 years of age when the act was committed, in that said     defendant rubbed his penis against the buttocks of [D.R.]."     (Emphasis in original.)     Section 12--16(b) of the Criminal Code of 1961 reads in pertinent part:          "The accused commits aggravated criminal sexual abuse if     he or she commits an act of sexual conduct with a victim who     was under 18 years of age when the act was committed and the     accused was a family member."  720 ILCS Ann. 5/12--16(b)     (Smith-Hurd Supp. 1996).       The Criminal Code of 1961 defines "sexual conduct" in pertinent part as "any intentional or knowing touching or fondling by *** the accused *** of the sex organs *** of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused."  720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).     Defendant was tried before a jury on January 10-12, 1995.  The State's first witness was the victim, D.R.  D.R. testified to the events occurring on or about November 8 and 9, 1992, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy.  D.R. testified that the three of them, D.R., Tonya, and defendant, were painting the kitchen, and, by the end of the evening, D.R. had paint in her hair and clothes. She testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance.  Defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair.  D.R. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her.  He then "started rubbing his penis up and down on [her] butt."  D.R. also testified that defendant told her that she was too beautiful for her own good.       D.R. testified that another incident occurred at defendant's residence after a funeral sometime at the end of June 1992.   She testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina.  Defendant then exposed his penis to her, ejaculated, and instructed D.R. to taste the semen.       According to D.R.'s testimony, another incident took place at defendant's residence around October 1992.  D.R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs "so Darcy won't get suspicious."  She testified that they went upstairs and defendant turned on the television.  Defendant then proceeded to pull down D.R.'s pants, kiss her breasts and vagina, and put his finger in her vagina.       D.R. next testified to an incident occurring in mid to late June 1993 at defendant's newly purchased residence.  D.R., among others, was helping defendant renovate the residence prior to defendant and his family moving in.  D.R. testified that, on this occasion, she had just finished going to the bathroom, but, before she could pull up her underwear and pants, defendant came in and put his fingers on her vagina and talked about his sex drive.  D.R. testified that defendant then stopped, apologized, and said he could not help himself.  She testified they then took a tour of the house, and, while they were upstairs, defendant laid D.R. down, took her pants down, and lifted her shirt and bra, exposing her breasts.  D.R. testified that defendant then put his fingers in her vagina, kissed her breasts and vagina, and then attempted, but failed, to put his penis in her vagina.  Defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup.  D.R. testified she went downstairs, got the cup, went back upstairs, and defendant again told her to put her mouth on his penis.  D.R. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D.R.  D.R. testified that, during the ensuing conversation, defendant stated that "he didn't know if most [family members] did this but he thought they should because he was trying to teach [her]" about sex.       On cross-examination, counsel for defendant attempted to elicit from D.R. specific dates, times, and places of the incidents, and whether any witnesses were present.       Tonya, sister of D.R., testified next, and she recalled the events surrounding the November 8 and 9, 1992, incident.  Tonya testified that D.R. had taken a bath upstairs after painting that evening and had called for Tonya, but that defendant went upstairs instead.  She then testified that D.R. went to the basement to take a shower, and minutes later, while D.R. was still in the basement, defendant went downstairs.  On cross-examination, Tonya  testified as to her employment history, her knowledge of the June 1992 funeral, her recollection that defendant was in the basement with D.R. in November 1992, and the terms of her visitation with defendant.       The State's last witness was Officer Richard Roodhouse.  He testified about the investigation of the allegations against defendant.  Roodhouse testified that defendant acknowledged his hand "fell against her breast" on one occasion and, on another occasion, D.R. was getting up from a couch and she put her hand on defendant's groin or penis.  Roodhouse testified that defendant said he "didn't remove [either his hand from her breast or her hand from his groin or penis] right away because he had taken some psychology courses, and the *** courses had taught him not to do so because it would make that gesture appear dirty."  He also testified that defendant acknowledged taking the girls for rides in the country and talking about sex "because he didn't want [them] to be naive about sex."  Defendant also told Roodhouse that D.R. had the dates all wrong.       Defendant's brother, James, testified for the defendant. James  testified about the events surrounding the June 1992 funeral and his work schedule.       Defendant's brother, Bill, testified next about the events of the June 1992 funeral.     Six other witnesses testified that they helped remodel or observed the remodeling of defendant's new home.       Darcy, defendant's wife, testified next.  She testified as to the events surrounding the June 1992 funeral, the routine she typically followed, and observations she made during the remodeling of her and defendant's new home.       Defendant testified next.  Defendant categorically denied all incidents of sexual abuse.  Regarding the November 8 and 9, 1992, incident, defendant testified that both Tonya and D.R. were in the bathroom upstairs trying to get paint out of D.R.'s hair. Defendant testified that he told D.R., through the bathroom door, to go to the basement and let the shower water "beat [the paint] out" of her hair.  Defendant testified that Tonya stayed in the bathroom upstairs while D.R. went down to the basement and took a shower.  He testified that he stayed in the kitchen and did not go into the basement until D.R. had already gone back upstairs into the bathroom where Tonya was.  After that, he testified, he went to the basement and stoked the wood-burning furnace and was only in the basement for approximately five minutes.     Defendant acknowledged his conversations with Roodhouse regarding defendant touching D.R.'s breast and her touching his groin.  On cross-examination, defendant also testified to only two occasions, occurring years apart, when he was driving in the country that he talked with his daughters about sex.  Defendant testified regarding the psychology course that he took, but never finished, where he learned not to take his hand away from D.R.'s breast too quickly or remove D.R.'s hand from his groin or penis because it would make the gesture appear dirty.  Defendant also testified that on November 9, 1992, the only people painting and remodeling in his new house were himself, Tonya, and D.R.     Before the case was given to the jury for decision, defendant moved to have the charge dismissed.  Defendant argued that the charge did not state an offense and asserted that the evidence did not support a conviction.     After hearing the arguments of counsel, the trial court first denied the motion for a directed finding, stating that "the evidence is sufficient that a jury can reasonably find the defendant guilty of the charge."  The trial court then discussed defendant's motion to dismiss and determined that dismissal should be granted because the charge failed to state an offense.     In granting the motion, the trial court explained that an allegation regarding the child victim's buttocks did not charge the offense of aggravated criminal sexual abuse, relying on People v. Nibbio, 180 Ill. App. 3d 513 (1989).  However, after the parties filed post-judgment motions, the trial court reconsidered its reasoning.  On reconsideration, the trial court agreed with the State that sexual conduct includes the knowing touching of the victim's body by the penis of the accused.  However, to prosecute such a charge, the State must allege and prove that the touching was done "for the purpose of sexual gratification or arousal of the victim or of the accused."  720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).  Relying on People v. Edwards, 195 Ill. App. 3d 454 (1990), the trial court,  stated that that element was not alleged in the amended information and the order dismissing the charge would stand.     Before addressing the State's argument, we note that defendant failed to file a brief in this appeal.  However, because we find the issue presented relatively straightforward, we may decide this case without an appellee's brief in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (holding that a reviewing court should decide the merits of an appeal where the record is simple and the claimed error is such that a decision can be made easily without the aid of an appellee's brief); see also Exline v. Exline, 277 Ill. App. 3d 10, 13 (1995).     The State argues that reversal of the trial court's dismissal order is required, relying on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996).  The State contends that, based on DiLorenzo, the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse.       We are obliged to follow the precedents of our supreme court. A settled rule of law that contravenes no statute or constitutional principles should be followed under the doctrine of stare decisis unless it can be shown that serious detriment prejudicial to the public interest is likely to result.  Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 349 (1995).  Stare decisis is a policy of the courts to stand by precedent and leave settled points of law undisturbed.  Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).  Additionally, our appellate court lacks the authority to overrule or modify decisions of our supreme court.  People v. Woodard, 276 Ill. App. 3d 242, 245 (1995); Vonholdt v. Barba & Barba Construction, Inc., 276 Ill. App. 3d 325, 329 (1995).  Thus, it is our duty to examine the DiLorenzo decision and determine whether the material facts found by the Illinois Supreme Court in DiLorenzo are similar to or different from those facts in the present case.         In DiLorenzo, the defendant was charged with, inter alia, aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12--16(c)(1)(i) (now 720 ILCS Ann. 5/12--16(c)(1)(i) (Smith- Hurd Supp. 1996))).  The indictment was in writing, specifically named the alleged committed offenses, and provided citation to the relevant statutory provisions, date of the offense, county of its occurrence, and the defendant's name.  Further, the indictment, in the words of the statute, stated that the defendant committed the offense of aggravated criminal sexual abuse in that     "he, who was 17 years of age or older, knowingly committed an     act of sexual conduct with [C.R.] who was under 13 years of     age when the act was committed."     Following a bench trial, the defendant was found guilty of aggravated criminal sexual abuse and was sentenced; the appellate court affirmed.  The defendant appealed, asserting that the indictment was fatally defective in that the aggravated criminal sexual abuse charge failed to explicitly state that the alleged "sexual conduct" with C.R. was "for the purpose of sexual gratification or arousal of the victim or the accused" and also that the indictment failed to set forth with particularity the allegedly wrongful acts that constituted "sexual conduct."     The DiLorenzo defendant, like defendant in the present case, failed to challenge the sufficiency of the charging instrument in a pretrial motion.  Therefore, the supreme court declined to discuss the sufficiency of the charging instrument when attacked in a pretrial motion.    Because defendant in the present case also waited until the conclusion of the trial to attack the information's sufficiency, we too decline to address the issue of a pretrial attack of the charging instrument.       Instead, the DiLorenzo court stated that, when the sufficiency of a charging instrument is attacked for the first time on appeal, the standard of review is whether the charging instrument apprised the defendant of the precise offense charged with enough specificity to (1) allow preparation of her or his defense and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.  DiLorenzo, 169 Ill. 2d  at 321-22, citing People v. Thingvold, 145 Ill. 2d 441, 448 (1991).       The DiLorenzo court determined that the phrase "for the purpose of sexual gratification" or the definition of "sexual conduct" were unnecessary to its disposition and declined to distinguish our rationale in People v. Edwards, 195 Ill. App. 3d 454 (1990).  In Edwards, the defendant appealed two of his convictions of aggravated criminal sexual abuse on the grounds that the convictions were improperly charged.  The defendant argued that, because the charges were based upon the defendant's "sexual conduct" with the victim, the charging instrument should have included the relevant provision of the statute, "for the purpose of sexual gratification or arousal of the victim or the accused."  720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).     This court reversed those convictions, stating that reference to the definition of "sexual conduct" was essential to the offense of aggravated criminal sexual abuse.  Edwards, 195 Ill. App. 3d at 457.  In interpreting clauses and definitions in statutes, courts should construe those words in accordance with the statutory definition.  DeBois v. Department of Employment Security, 274 Ill. App. 3d 660, 664 (1995).  Because the charges in Edwards were, for the most part, expressed in the language of the "sexual conduct" definition and because the charges omitted the element that the relevant conduct was committed "for the purpose of sexual arousal or gratification," we held that the charges failed both to set forth fully the nature and elements of the offense and to be as fully descriptive as the language of the statute.  Edwards, 195 Ill. App. 3d at 457.     In disregarding the Edwards rationale, the DiLorenzo court theorized that, should the defendant have needed to know "some of the details" of the charge, the defendant could have filed a request for a bill of particulars.  Our supreme court concluded that the defendant was aware of the nature of the charges against him and that no impediment existed in the preparation of his defense as a result of the manner in which the indictment charged the offenses.  DiLorenzo, 169 Ill. 2d at 324-25.     We determine that the material facts in the case at bar are sufficiently analogous to the material facts of the DiLorenzo case. The amended information apprised defendant of the precise offense charged with enough specificity to allow preparation of his defense and to allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.  Our own review of the record indicates that defendant was fully cognizant of the nature of the charges against him, that he was being tried for "an act of sexual conduct with [D.R.]."  Defendant called 10 witnesses, including himself, to refute the specifically charged offense occurring on or about November 10, 1992, as well as the allegations surrounding the June 1992 incident taking place after the relative's funeral.  Though defendant did not specifically defend against each of the incidents to which D.R. testified, on at least two occasions in the report of proceedings defendant did offer a blanket denial of all allegations concerning sexual abuse of D.R. Counsel for defendant cross-examined D.R. in depth, attempting to elicit specific dates, places, times, and witnesses present. Furthermore, defendant even secured broadcast schedules from an area television station to defend against the alleged October 1992 incident.     Pursuant to the doctrine of stare decisis, we adhere to the decision of our supreme court in DiLorenzo and reverse the trial court's order dismissing the amended information charge against defendant.  To the extent our holding in Edwards is inconsistent with this result, Edwards is overruled.     Finally, we compare the date of the disposition of DiLorenzo with the pendency of the present case.  DiLorenzo was disposed of on February 15, 1996, while the instant case was dismissed by the trial court on May 3, 1995.  The State timely filed its appeal, thus effecting a continuation in the proceedings.  See 134 Ill. 2d R. 606.  In reversing the trial court's dismissal of the charging instrument, we recognize that our supreme court has the inherent power to give its decisions prospective or retrospective application.  See Berryman Equipment v. Industrial Comm'n, 276 Ill. App. 3d 76, 79 (1995).  Generally, a supreme court decision applies retroactively to cases pending at the time the decision is announced.  People v. Granados, 172 Ill. 2d 358, 365 (1996).  A decision will be applied retroactively unless the court expressly declares that its decision is a clear break with the past, such as when it explicitly overrules its own past precedent, disapproves a previously approved practice, or overturns a well-established body of lower court authority.  People v. Phillips, 219 Ill. App. 3d 877, 879 (1991).  Because the DiLorenzo decision offers no such declarations warranting only prospective application, its holding will be applied retroactively, and, thus, DiLorenzo is controlling in the appeal before us.     For the foregoing reasons, the judgment of the circuit court of Stephenson County is reversed, and the cause is remanded for further proceedings.     Reversed and remanded.     GEIGER and RATHJE, JJ., concur.

223 F.Supp.2d 286 (2002) Jeffrey E. SIMPSON, Plaintiff v. Cheryl GALLANT, et al., Defendants No. CIV. 02-15-B-K. United States District Court, D. Maine. September 25, 2002. Jeffrey E. Simpson, South Windham, ME, Pro se. Michael J. Schmidt, Esq., Wheeler & Arey, P.A., Waterville, ME, for Defendants. MEMORANDUM OF DECISION KRAVCHUK, United States Magistrate Judge. Jeffrey Simpson is seeking remedies for alleged violations of his constitutional right to have access to the telephone and mail services when he was a pretrial detainee at the Penobscot County Jail. (Docket Nos. 1, 7, 8, & 15.) A motion to dismiss filed by the defendants, Cheryl Gallant, Richard Clukey, and Edward Reynolds[1] was denied. *287 (Docket Nos. 26 & 31.) The parties have now consented to proceed before the magistrate judge.[2] Simpson has filed a motion for summary judgment (Docket No. 38) which he has since clarified to be a motion for partial summary judgment vis-à-vis a claim that he was unable to orchestrate bail in the period between October 20, 2001, through January 21, 2002, because he was denied access to a phone despite his express request to use the phone to arrange bail (Docket No. 52). The defendants have responded to this motion and have filed a cross motion for summary judgment as to all of Simpson's claims. (Docket No. 44.) I DENY Simpson's motion for summary judgment and GRANT summary judgment to the defendants on Simpson's claim that his constitutional rights were violated when his request to make a collect call to arrange bail was denied. As to the remainder of Simpson's claims relating to phone and mail access I conclude that Simpson has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a) and, because the defendants press for disposition on this ground, these claims are DISMISSED WITHOUT PREJUDICE. Background Broadly put, Simpson claims that while he was a pretrial detainee at the Penobscot County Jail he was placed in disciplinary segregation for violations of jail rules. During the period he spent in segregation he was completely denied access to the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. He was not allowed to send additional mail using his own postage. On January 21, 2002, Simpson was released from custody on bail that was posted by an associate. On February 21, 2002, Simpson was found not guilty on one charge after a jury trial. On February 14, 2002, all additional counts against Simpson triggering his detention from October 10, 2001, through January 21, 2002, had been dismissed. Simpson's theory of the case is that Penobscot County Jail policies pertaining to outgoing mail and its policy prohibiting the use of a phone for any reason by inmates not in good standing violated his right to prepare his defense and make bail. At the motion to amend/motion to dismiss juncture it was clarified that Simpson pursues these three defendants in their official capacities challenging the constitutionality of the Jail's policy or custom. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (observing that a § 1983 suit may be brought "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under § 1983").[3] Discussion A. Summary Judgment Standard Typically the summary judgment standard is phrased in terms of moving and nonmoving parties but in this instance the plaintiff and the defendants are cross-movants. *288 My determination below turns on the question of exhaustion of administrative remedies (with respect to which the defendants carry the burden) and whether or not there is a genuine dispute of material fact as to Simpson's single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrange bail. As I conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for Simpson on his motion, I have analyzed the record treating the defendants as the movants and Simpson as the nonmovant, an approach that favors Simpson. Summary judgment is appropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). The defendants bear the burden of showing that there is no material factual dispute. A disputed fact is material if it "has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). I must take Simpson's evidence as true, but only evidence that is supported by the affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Simpson's pro se status does not excuse him from meeting the summary judgment requirements. Parkinson v. Goord, 116 F.Supp.2d 390, 393 (W.D.N.Y.2000) ("[P]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment."). With respect to material facts (as opposed to legal argument[4]) I have drawn all reasonable inferences in favor of Simpson. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In undertaking the exhaustion inquiry, the defendants bear the burden of proof on this affirmative defense, see Casanova v. Dubois, 304 F.3d 75, 77-78 (1st Cir.2002), and may discharge their burden by demonstrating that their is no record evidence to support Simpson's case on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson's constitutional claims Simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, Simpson's failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. In re Spigel, 260 F.3d 27, 31 (1st Cir.2001). B. Exhaustion pursuant to § 1997e(a) As they did in their motion to dismiss the defendants press for dismissal of this entire action on the grounds that Simpson failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). In § 1997e(a) Congress provided: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal *289 law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In my recommended decision on the motion to dismiss I concluded that Simpson had adequately plead exhaustion for purposes of surviving the motion to dismiss.[5] As anticipated, the record on these cross-motions for summary judgment provides a better basis for making the exhaustion determination. The facts that are material to the exhaustion concern are as follows. The inmate grievance procedure for the Penobscot County Jail is not disputed by the parties. It is contained in the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights ... or to appeal a previous grievance decision. Jail personnel will provide inmates who wish to report a grievance (consistent with the definition) with a copy of the Grievance form used by the Penobscot County Jail. Completed grievances may be submitted directly to the Corrections Officer, Asst. Shift Supervisor or Shift Supervisor who will sign the grievance indicating receipt of the grievance, to include date and time. Once signed by the Receiving Officer, the inmate will be given a copy of *290 the submitted grievance. When a grievance is resolved, a copy of the written response/finding will be provided to the inmate within twenty-four (24) hours. An inmate may appeal a grievance decision to the next level of command for review, stating the reason for the appeal. Grievances that appear frivolous in nature or include obscenities or are unrelated to jail operations and activities will not be considered. Once the inmate has exhausted the internal grievance system, he/she may submit their grievance to the Maine Department of Correction or other review agency for external review. Upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. Inmate grievances addressed to the Maine Department of Corrections, State House Station # 111, Augusta, Maine 04333 or other review agency are considered legal/privileged correspondence. (DSMF Ex. 8 at 14.) Though the defendants contend that each inmate is given a copy of this policy upon arrival, Simpson states that he had to make a specific request for one and first had his copy on December 1, 2001. It is not disputed that Simpson arrived at the Penobscot County Jail on September 26, 2001, and was placed in the maximum security population. Either on October 20 or October 31[6] Simpson was placed in disciplinary segregation where he stayed until his release on bail on January 21, 2002. The only requests that Simpson submitted for telephone access, postage, or attorney visits were dated December 1, 2001, December 14, 2001, and January 6, 2002. On December 1, 2001, Simpson submitted a request form on which Simpson had written: "I need to make a collect call for bail pu[r]poses. I can not get through on this phone. Could I please make a 5 minute call." This request form was denied on the same date, the officer indicating: "As I already explained to you, you['re] not authorized use of the phone while in disciplinary lockup." On December 1 Simpson filed an inmate grievance stating: "I asked S[e]rge[a]nt Basso if I could use a phone to arrange bail. He said no, I was in lockup. I told him I have a constitutional right to make a call to arrange bail, talk to attorney, etc.[...] I am an unsentenced inmate. I need to arrange bail." This form indicates that an investigation was initiated on the same date and Sergeant Basso responded: "Inmate is in the [Lockup]. Policy F-140 states inmates not in good standing will NOT be allowed access to the collect call phones located in the dayroom areas. Therefore this does not meet the criteria of a defined grievance." In the section of the form that provides for "Action Taken," Basso checked, "No Action Warranted — Not a Defined Grievance." This notation is dated December 1, 2001. On December 6, 2001, Clukey, without further explanation, checked "Grievance Unfounded" in the section of the form dedicated to recording any administrative review and action. With respect to the defendants' assertion that Simpson did not appeal the denial of this December 1, 2001, grievance, Simpson argues that the defendants have not proven the negative: that the Department of Corrections did not receive or answer or defer an answer vis-à-vis Simpson's grievance. He cites to paragraphs in his affidavit that state that he *291 could not appeal the determination because Clukey had checked the box indicating that the grievance was unfounded. In order to appeal Simpson would have had to ask permission to submit a grievance to a shift leader and because of the characterization of the grievance as nongrievable, unfounded, and frivolous Simpson was denied grievance forms by Basso and two other jail officers. Simpson states that on December 19, 2001, he wrote a letter to the Commissioner of Corrections at the 111 Augusta State House address informing him that he wanted intervention on his behalf. He did not receive a response. Simpson avers that he sent a notarized letter in July 2002 asking for a resolution of this grievance and he has not received a reply. Simpson does not provide any documentation of these appeal efforts beyond a May 26, 2002, grievance form on which Simpson states that from April 30, 2002, onwards he had requested grievance forms three times and been denied the forms and permission to file a grievance. (Pl.'s Reply Mem. Ex 1.) On this form the failure is acknowledged by the jail personnel and the action taken is that Simpson was to be informed that he would be getting the forms. (Id.) As noted above, Simpson submitted two more requests to jail staff. On December 14, 2001, Simpson submitted an inmate request form stating: "I need to buy some cosmetics off the store cart also stamps. I am in lock up and was told to write shift leader." (DMSJ Ex. 3.) The response on the form is: "Stamp request denied — we will provide you with 3 stamps/week while you are in lock-up — hygiene pack request can be made out and submitted by Thursday of each week. You will have $1 deducted from your account for the hygiene pack if you want a shave card that will be an additional $1. You do not have any access to the store cart for anything while in lock-up. This request is to[o] late for this week." (Id.) Simpson did not file a grievance with respect to this request. On January 6, 2002, Simpson filled out an inmate request form indicating: "I need to use an unmonitored, non-recorded phone line to contact my attorney. My trial starts in approximately 1 week. It is extremely important." (Id. Ex. 4.) On the same date Simpson met with his attorney for approximately forty minutes. As a consequence of this person-to-person meeting the jail officers took no further action on the request and the form bears this notation: "Inmate's attorney came and visited him on this date (1-6-02) from 14:30 to 15:10 — non-contact." There is a check beside "Reviewed and no action warranted at this time." Simpson did not file a grievance with respect to the January 6, 2002, request.[7] I conclude that the only claim that Simpson has exhausted is his claim concerning the denial of access to the phone to attempt to make bail, an attempt that commenced on December 1, 2001. Though Simpson has no proof-positive of his efforts to appeal this determination to the Department of Corrections, he does have some proof that his efforts to file grievances (efforts some of which post-date the filing of this action perhaps) were not facilitated by the Jail as required by the policy. After all, exhaustion is an affirmative defense *292 and this court has no way of knowing without some presentation by the burden bearer as to the Department of Corrections' record on this matter, whether Simpson has submitted a grievance to the Department. Furthermore, the fact that jail personnel responded that this was not grievable — and they do not back-away from this position in these pleadings — suggests that it is not inequitable to estop them from arguing that Simpson has failed to exhaust. So while I conclude that Simpson has a right to a review of the merits of this claim, the other facets of this action have not been exhausted as required by § 1997e(a). See Nelson v. Rodas, 2002 WL 31075804, *4-6 (S.D.N.Y. Sept. 17, 2002) (examining status of the case law as to whether § 1997e(a) requires dismissal of the entire action if there are exhausted and nonexhausted claims, concluding that dismissing the nonexhausted claims without prejudice and proceeding on the exhausted claim was appropriate given that the parties and the court had already expended considerable resources on the action). With the defendants pressing this defense, these nonexhausted claims cannot be addressed by this court unless I determined that § 1997e(a) did not apply to this action. Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir.2002) (remanding case for determination of whether remedies have been exhausted, noting: "Although not jurisdictional the exhaustion requirement is nonetheless mandatory"). 1. Simpson's § 1997e(a) Status When He Brought this Action and the Unexhausted Claims The facts material to Simpson's status as a "prisoner" within the meaning of § 1997e(a) are undisputed. Simpson was released from the Penobscot County Jail on January 21, 2002, when he posted bail, only to return on January 26, 2002. He has been in State custody since January 26, 2002, and was housed for sometime at the Maine Correctional Center in South Windham, Maine. Simpson's original complaint and motion to proceed in forma pauperis were signed by Simpson on January 16, 2002, and a jail officer signed the certificate on the in forma pauperis form on the same date. Simpson represented in these pleadings that he was incarcerated at the Penobscot County Jail. These pleadings were docketed by the court's clerk on January 23, 2002, a date on which Simpson was on bail and thus not incarcerated at the Penobscot County Jail. As indicated in the recommended decision on the motion to dismiss, one judge in this District has concluded that the § 1997e(a) exhaustion requirement is not applicable to individuals who have been released from custody during the pendency of the federal action. See Murphy v. Magnusson, 1999 WL 615895 (D.Me. 1999) (not requiring § 1997e(a) exhaustion by a former-prisoner plaintiff who had been released from the defendant's custody after the filing of the complaint). Other Circuit Courts of Appeal have reached similar conclusions in addressing former-prisoner status and the exhaustion requirement, see Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.2002); Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999), and other limitations placed on prisoner suits by the Prison Litigation Reform Act (PLRA), Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir.2000) (attorney fee limitation of § 1997e(d)); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir.1998) (mental and emotional injury damages limitation of § 1997e(e)). Simpson's case is one that requires the court to look again at the question of how changes in the plaintiff's status from prisoner to non-prisoner and back to prisoner impact the exhaustion question. In Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31 (1st Cir.2002) the First Circuit made it clear that the exhaustion requirement *293 applied if exhaustion was logistically possible for the plaintiff, even if he was no longer a prisoner at the facility involved in the underlying allegations. Id. at 35. Thus, the exhaustion requirement perseveres even when the future plaintiff is removed from the location where the alleged rights violations occurred, but remains within the correctional system. Therefore Simpson, who is once again a prisoner in the state penal system, cannot raise continuing violations in the context of this lawsuit without exhausting his administrative grievances.[8] In terms of timing, section 1997e(a) clearly anticipates exhaustion prior to the bringing of a federal suit, starting as is does with the phrase, "No action shall be brought...." Thus, pragmatically speaking, the appropriate window for Simpson in terms of the exhaustion of his remedies would have been prior to January 16, 2002, when he completed and signed his paperwork for this suit. I conclude that what Simpson could have done to exhaust his administrative remedies after he filed this suit does not seem to be the appropriate point of reference; rather it is his ability to exhaust remedies prior to the commencement of the action that must be determined.[9] From the record in front of me it appears likely that Simpson mailed his complaint on or soon after January 16, 2002, from the Penobscot County Jail. Clearly he prepared and signed the filings by January 16, and the record indicates that he sent one legal letter on January 17, 2002. (DMSJ Ex. 6.) The First Circuit Court of Appeals has recently definitively adopted the "prisoner mail box" rule for purposes of determining when a prisoner's § 1983 pleading is "filed" for statute of limitations purposes. Casanova, at 79 ("[We] hold that the mailbox rule shall govern the determination of when a prisoner's § 1983 filing has been completed. So long as the prisoner complies with the prison's procedures for sending legal mail, the filing date for purposes of assessing compliance with the statute of limitations will be the date on which the prisoner commits the mail to the custody of prison authorities.")[10] Whether this action was "brought" within the meaning of § 1997e(a) when it was "filed" on January 17, 2002, or when it was docketed in this court on January 23, 2002, is not determinative *294 because the record now definitively establishes that although Simpson posted bail on January 21, 2002, he was reincarcerated on January 26, 2002, and remains in custody. Thus, unlike a former-prisoner plaintiff, Simpson would be subject to the strictures of § 1997e(a) if the court dismissed the action without prejudice; he would need to administratively exhaust each claim before bringing it to this forum. For a provision that is meant to lift some of the burden of prisoner litigation from the shoulders of the federal trial courts, section 1997e(a) has proven to be a prickly piece of legislation to apply given the variegations in the status of plaintiffs. See Rodriguez v. Ghoslaw, 2002 WL 1424586, *1 (S.D.N.Y.2002) ("Legislative and judicial efforts to reduce the burden of prison litigation on the district courts by creating procedural obstacles to prisoners' suits can sometimes have perverse effects."). In the present case Simpson has brought not only a claim that he was denied access to a phone to make bail arrangements, but he has also alleged that the jail's policy and procedures have limited his access to the courts by denying him the opportunity to consult with his attorney and the witnesses necessary for his trial. Those claims have not been the subject of any administrative grievances that I can discern. Though the wisdom of the strategy might be questioned in light of the summary judgment record before me, defendants continue to press for dismissal on that basis. Id. at *3 ("Defendant could have chosen to expressly waive the non-exhaustion issue and move instead for restoration of the summary judgment in his favor on the merits. Instead, he seeks a dismissal without prejudice. Under the PLRA, he is entitled to that remedy. Accordingly, the plaintiff's claim against defendant ... is dismissed without prejudice to future litigation on the same cause of action after exhaustion of any available administrative remedies."). They are entitled to that result under the PLRA. 2. The Exhausted Constitutional Claim The facts material to the denial of Simpson's request to make a collect call while in disciplinary segregation are as follows. Simpson was booked into the Penobscot County Jail on September 26, 2001, on charges of robbery and terrorizing. All inmates who are booked into the Jail are allowed two unmonitored telephone calls after the booking process has been completed. Simpson was in the maximum security population from September 26, 2001, through, at least, October 20, 2001. During this period Simpson had access to collect call phones located in the day room of his cell block. Simpson was placed in disciplinary segregation initially because he refused to obey an order issued by a correctional officer. Subsequently the Jail extended his disciplinary segregation (running until his release on bail on January 21, 2002) based on a series of subsequent disciplinary charges including: tampering or blocking a locking device; refusing to comply with an order; destroying, altering, or damaging jail property; lock tampering and leaving his cell during lock-down; placing a trash can full of water and feces on a TV stand; refusing to obey an order from a correctional officer; defecating on a piece of paper in front of his door; threatening a corrections officer; possession of contraband; and interference with an officer in the performance of his duties. (Gallant Aff. ¶ 9; Defs.' Reply to PMSJ Ex. A.)[11] *295 An inmate who violates the jail rules and is placed in disciplinary segregation is an inmate not in good standing. Inmates not in good standing are placed in disciplinary segregation and are subjected to restrictions including limitation on their telephone access. Pursuant to Penobscot County Jail Policy F-140, which covers inmate use of telephones, an inmate not in good standing will not be allowed access to collect call phones except as authorized by the shift supervisor or designee for a bona fide reason. Routine lawyer calls do not constitute a bona fide reason. With respect to alternative means of communication, inmates in disciplinary segregation are allowed postage for three personal one-ounce first-class letters each week and they have unlimited writing supplies and postage for the purposes of corresponding with attorneys, courts, or grievance review representatives. They can meet with their attorneys at any time subject to reasonable hour restrictions; these are restrictions that primarily require that the attorney not seek to meet with their client at the time when the inmates are sleeping, eating, or during a formal headcount. The intake log kept by the Jail staff shows that Simpson was allowed to meet with his attorney on October 22, 2001; October 28, 2001; November 2, 2001; January 6; 2002; January 8, 2002; January 15, 2002; and January 21, 2002. Simpson made one request to make a call to arrange bail on December 1, 2001. This request was denied, as described above in the discussion of exhaustion. Simpson asked the jail administrators to provide his associate's address for Simpson and they refused. The defendants assert that Simpson could have met with his attorney on any date that he was incarcerated in the Jail between September 26, 2001, and January 21, 2002. Simpson retorts that he could not arrange visits with his attorney on any day because he was denied phone calls to his attorney. Simpson's claim concerning interference with his ability to post bail falls under the Fourteenth Amendment umbrella that protects Simpson's right to "post-arrest procedural guarantees" such as bail. See Brady v. Dill, 187 F.3d 104, 108 (1st Cir.1999). Simpson's plaint concerning the Jail's policy of denying access to the collect phone can also be characterized as a condition of pretrial detention claim under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Therein the Supreme Court stated: [I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly *296 may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility. 441 U.S. at 539, 99 S.Ct. 1861 (footnotes and citations omitted). The concern underlying Bell is that the challenged conditions are not "imposed to sanction prior unproven criminal conduct," but are "imposed to enforce reasonable prison disciplinary requirements." Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315, 318 (1st Cir.1995). It is undisputed that Simpson was given access to two unmonitored calls when he first arrived at the jail in September 2001. It is also undisputed that he had ample access to the phone prior to his October disciplinary segregation. Even after his disciplinary segregation he had the ability to use the mail to reach individuals to help him arrange bail. He also had unlimited ability to send legal mail. Though Simpson argues that the jail officials were unwilling to help him find an address for his associate (making the phone his only recourse to his associate) this refusal to track down an address is not of Constitutional magnitude on its own. The extra delay of relying on the mail to contact his attorney or someone who could do some leg work for him, after Simpson had at least a month prior to his segregation where his phone access was not restricted, does not make this an unreasonable alternative to the phone and is an adequate safeguard of Simpson's right to arrange bail. See cf. Turner v. Safley, 482 U.S. 78, 88, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (observing, in a First Amendment context, that the availability of alternative method of communication was relevant to determining the scope of the burden imposed by the challenged regulation). I also note that Simpson filed one grievance with respect to his need to use the phone to arrange bail. Though the rebuff he received could give an inmate pause about the utility of pressing the matter, the record indicates that Simpson attempted no other avenues of either getting the Jail to allow him access to the phone by providing it with concrete information of how the call was going to allow him to make bail or attempting an alternative method of making the necessary contact beyond the request for his associate's address.[12] The record demonstrates that Simpson was able to meet with his attorney and send mail to him and others; surely others were as capable of helping Simpson locate the address as were the jail administrators. I do not mean to suggest by this analysis that the jail staff had no obligation to respond to Simpson's bail request because he had been unable to make bail initially or because he was in disciplinary segregation. A pretrial detainee's status vis-à-vis ability to post bail can change as a case unfolds and the Jail, given the right set of facts, could find itself confronting a deprivation of constitutional significance if its staff failed to take care to recognize the bona fide nature of bail requests, separate and distinct from routine contact with counsel. These facts do not present that circumstance. *297 With respect to Bell I must gauge whether the restriction or condition was "reasonably related to a legitimate goal" or, conversely, whether it was "arbitrary or purposeless." Bell, 441 U.S. at 539, 99 S.Ct. 1861. First I examine whether the denial of Simpson's request for a call on December 1, 2001, was done with an express intent to punish Simpson. See id.; see also Valdez v. Rosenbaum, 302 F.3d 1039, 1045-46 (9th Cir.2002). The defendants' initiated no action towards Simpson; rather they were reacting to his request. The denial of Simpson's request was pursuant to a policy that prohibited access to the phone for inmates not in good standing. The determination that Simpson's was not a bona fide reason to depart from this prohibition does not support a conclusion that the denial of Simpson's request for a call on December 1, 2001, was done with an express intent to punish Simpson. See Bell, 441 U.S. at 539, 99 S.Ct. 1861; see also Valdez v. Rosenbaum, 302 F.3d 1039, 1045-46 (9th Cir.2002). I must also consider whether a punitive intent can be inferred from the denial. Bell, 441 U.S. at 538-39, 99 S.Ct. 1861. Here I ask "`whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'" Id. at 538, 99 S.Ct. 1861 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). The purposes assigned to the denial of the request is that Simpson was in disciplinary segregation because of disorderly conduct including more than one incident of tampering with his door so as to release himself from lock-up (with one of these door tampering incidents occurring on December 1, 2001, the day of Simpson's phone call request.) He was also alleged to have been disobeying orders, threatening, and obstructing jail personnel. Simpson was considered a security risk. Not giving Simpson the special permission he needed under the jail policies to make the phone call is rationally related to minimizing the risk to Jail security. The single denial, particularly in light of the other avenues of communication left open to Simpson, was not excessive in relation to the defendants' justification. Simpson also stresses that the defendants have admitted that the phone policy/denial of request was partially punitive, aimed at sanctioning Simpson (and presumably other inmates not in good standing) for disorderly behavior. Simpson confuses the notion of punishment of a pretrial detainee for the unproven criminal conduct which is the basis for the detention with the notion of punishment for misconduct in the facility. The former is constitutionally impermissible; the latter is not, so long as the "particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective." Bell, 441 U.S. at 539, 99 S.Ct. 1861; see also Turner, 482 U.S. at 89, 107 S.Ct. 2254 ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.... Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration."). As indicated above I conclude that Simpson has failed to come forward with sufficient evidence to generate a trialworthy issue on this claim and summary judgment for the defendants is warranted. In re Spigel, 260 F.3d at 31. Conclusion For the reasons set forth above, I hereby GRANT the defendants summary judgment on Simpson's denial of access to the telephone to make bail claim and DENY *298 Simpson summary judgment on that same claim. Simpson's remaining claims are DISMISSED WITHOUT PREJUDICE. So ordered. NOTES [1] Edward Reynolds is now deceased. The parties have not yet moved to substitute the current sheriff. [2] Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge Margaret J. Kravchuk conduct all proceedings in this case, including trial, and to order entry of judgment. [3] The parties have provided factual statements pertaining to the issue of final decision-making authority and polices and procedures. There is no meaningful dispute on this score for purposes of making the municipal liability determination and my conclusions below make it unnecessary for me to set forth these facts in any detail. [4] Simpson's statement of material facts and his reply to the defendants' statement of facts are peppered with legal argument, including discussion of cases and argument on how I should construe the defendants' answers to his complaint; I have culled the material, properly-supported facts from these pleadings. [5] I wrote: Simpson alleges that he submitted a slip on December 1, 2001, requesting a phone call so that he could arrange bail and/or call a lawyer. When this request was denied Simpson submitted on the same day a Penobscot County Sheriff's grievance form indicating that he was a pretrial detainee and that he had a right to use the phone to arrange bail or call an attorney which was denied by Assistant Jail Administrator, Richard Clukey, who stated that it did not meet the criteria of a defined grievance and it did not present a grievable issue. On an unspecified date Simpson submitted a request form asking the jail administration to provide the address for his associate, providing them with his phone number and this request was denied. Regarding his mail privileges, Simpson submitted request forms on December 14, 2001, and January 11, 2002, concerning his mail privileges seeking permission to use his own funds to send additional letters and these requests were denied. Simpson has adequately plead exhaustion for purposes of this motion to dismiss. The defendants' argument that he could have done more does not sufficiently controvert Simpson's claims concerning his efforts to seek redress within the Jail. Compare Ray v. Kertes, 285 F.3d 287, 293, 295 (3d Cir.2002) (holding that the Prison Litigation Reform Act (PLRA) exhaustion requirement is an affirmative defense and that a prisoner need neither plead nor prove exhaustion to proceed under the PLRA, noting that the Second, Seventh, Ninth, and D.C. Circuits have so held) with Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000) (holding that a prisoner was required to "plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome"). (Docket No. 26.) Notably, since that decision the First Circuit has joined the Third Circuit (as well as the Second, Seventh, Eighth, Ninth, and D.C.) in concluding that exhaustion is an affirmative defense. Casanova, at 1042 n. 3. A Ninth Circuit panel has just reworked its Wyatt v. Terhune, 280 F.3d 1238 (9th Cir.2002) conclusion vis-à-vis exhaustion as an affirmative defense, adding, among other things, a discussion of the Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) pleading standard and providing that the defense should be treated as a matter of abatement pursued through Federal Rule of Civil Procedure 12(b) instead of a motion for summary judgment. Wyatt v. Terhune, 305 F.3d 1033, 2002 WL 31103012, *5-9 (9th Cir. 2002); Wyatt v. Terhune, 305 F.3d at 1033 (9th Cir.2002) (denying petition for rehearing en banc and withdrawing opinion published at 280 F.3d 1238). [6] The parties contest this date but the exact date is neither material to the exhaustion question nor the constitutional inquiry. [7] The defendants also state that Simpson's attorney sent Gallant a letter dated December 12, 2001, indicating that Simpson needed access to writing material and the mail for purposes of contacting his attorney and defense witnesses, and also requesting that Simpson be allowed phone access for these purposes. Gallant called the attorney on January 2, 2002, and left a message indicating that Simpson was in disciplinary segregation for three or four months and would not have access to the telephone but that he would have access to writing materials and the mail. She also said that the attorney could visit Simpson during reasonable hours. [8] This is not a situation such as I confronted in Dennison v. Prison Health Services, 2001 WL 761218, *2-3 (D.Me.2001). That plaintiff was a prisoner at the time of filing but was released entirely from custody during the pendency of her suit. I concluded that the § 1997e(a) concern was mooted by her release. Because Dennison raised an acute concern about the judicial efficiency of dismissing the complaint merely to see it re-filed shed of the § 1997e(a) requirement, I found the pragmatic approach advocated in a concurrence and dissenting opinion in an Eleventh Circuit case to be persuasive. See Harris v. Gamer, 216 F.3d 970, 985-86 (11th Cir. 2000) (Anderson, J., concurring; Tjoflat, J., concurring in part and dissenting in part). Nothing that has happened since my opinion in Dennison has changed my view that the problem of exhaustion under § 1997e(a) has to be approached with common sense. [9] I reject the defendants' argument that the date on which Simpson accomplished service on the defendants, April 5, 2002, should be determinative. [10] It is not clear whether the First Circuit would conclude that what is good for the common goose (a prisoner-favorable statute of limitations calculation) is good for the rare gander (a prisoner-adverse "filing" date for a § 1997e(a) determination). See also Morales-Rivera v. United States, 184 F.3d 109, 109 (1st Cir.1999) ("We hold that a pro se prisoner's motion under 28 U.S.C. § 2255 or § 2254 is filed on the date that it is deposited in the prison's internal mail-system for forwarding to the district court, provided that the prisoner utilizes, if available, the prison's system for recording legal mail."). [11] Simpson objected and moved to strike the statement of material fact containing the chronological sequence of these disciplinary infractions. (DFSM ¶ 7; Pl.'s Reply SMF ¶ 7.) In their reply to Simpson's response the defendants have provided a sheath of reports. (Def's Reply Ex. A.) Simpson's rumblings about the disciplinary proceedings and his contention that the Gallant affidavit does not support the statement because she had no personal knowledge of the hearings does not, by any stretch, generate a due process challenge to these charges. Though Simpson argues with the defendants' characterization of the disciplinary process, including whether or not he received a copy of his denied grievance in a timely fashion, Simpson clearly has not and cannot contest the validity of these determinations on due process grounds in this action. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The relevance is limited to the fact that Simpson was in disciplinary segregation for what the jail perceived to be a series of disciplinary infractions and, as framed in this case, a determination that the denial of access to bail claim was valid would not imply the invalidity of those disciplinary determinations. [12] Though the allegations of Simpson's complaint concerning access to the phone, mails, and his attorney, taken together supported a claim that the defendant's conduct interfered with his access to courts, this single episode does not support an access to court claim distinct from the analysis conferred here. His other generalized allegations have fallen by the wayside because he failed to exhaust the administrative procedure.

983 F.Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a Division of Mohawk, Inc., and Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, D. Kansas. October 22, 1997. *978 *979 *980 *981 Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, Michael G. Chalos, Richard M. Ziccardi, George J. Tsimis, New York City, for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Overland Park, KS, for Defendant Holiday Mansion. Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS, John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Alex B. Marconi, Patrick X. Fowler, Snell & Wilmer L.L.P., Phoenix, AZ, for Defendant Mercury Marine. MEMORANDUM AND ORDER EARL E. O'CONNOR, District Judge. This matter is before the court on the motion for summary judgment of defendant Mercury Marine ("Mercury") on plaintiff's complaint (Doc. # 73), and defendant Mercury's motion for summary judgment on defendant Holiday Mansion's cross-claim (Doc. # 124). After careful consideration of the parties' briefs and evidentiary materials, the court is prepared to rule. For the reasons stated below, Mercury's motion on plaintiff's complaint is granted as to counts I, II, V, VIII, and IX, granted in part and denied in part as to counts IV and VII, and denied as to counts III and VI. Mercury's motion is granted as to all counts on defendant Holiday Mansion's cross-claim. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2511-12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. "[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts *982 as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan.Rule 56.1. In this diversity case, we ascertain and apply Kansas law with the objective that the result obtained in federal court should be the same result as in a Kansas court. See Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). With respect to plaintiff's fraud claims under Kansas law, federal law standards for granting summary judgment apply. See Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477 U.S. at 252, 255, 106 S.Ct. at 2512, 2513-14, the United States Supreme Court held: we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.... Consequently, where the ... "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Allegations of fraud must be proven by clear and convincing evidence. See Rajala v. Allied Corp., 919 F.2d 610, 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, 6 (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on its fraud claims. See Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 (D.Kan.1995); Sprague v. Peoples State Bank, Colby, Kan., 844 F.Supp. 662, 667 (D.Kan.1994); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, 1431 (D.Kan.1993). Analysis I. Mercury's Motion For Summary Judgment On Plaintiff's Complaint. A. Factual Background. For purposes of defendant's motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non-movant, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Plaintiff Sithon Maritime Company ("Sithon") was organized in December 1994 for the purpose of obtaining exclusive government issued permits to operate a high speed ferry boat service to shuttle passengers between two of three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating with defendant Holiday Mansion for the possible purchase of four 50-passenger ferry boats. Mr. Vagianos advised Holiday Mansion that the boats needed to achieve a cruising speed of at least 24 knots for the anticipated ferry service and that the ferry boats would run 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be powered by either two Mercury 7.3L diesel engines and Bravo III stern drives or by two Volvo diesel engines and stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos that the Mercury engines had more horsepower and would allow the boats to go faster than boats equipped with the Volvo engines. Mr. Byquist told Mr. Vagianos that he would contact Mercury to confirm that Mercury's engines would meet Mr. Vagianos' speed requirements. Mr. Vagianos testified that Mr. Byquist told Mr. Vagianos that he received assurances from Mercury personnel that its propulsion system would enable the Holiday Mansion ferry boats to attain a cruising speed of 24 knots and a maximum speed of 28 knots. Mr. Byquist denies making this statement to Mr. Vagianos. Mr. Byquist testified that (1) no one at Mercury told anyone at Holiday Mansion that the boats sold to Sithon would travel 24 knots cruising speed or 28 knots maximum speed when equipped with the Mercury stern drive engines; (2) no one at Mercury endorsed using the Mercury stern drive engines with the boats sold to Sithon; and (3) no one at Mercury told Holiday Mansion that the boats sold to Sithon would be a proper application for the Mercury stern drive engines. *983 Before purchasing the boats, Sithon requested and received from Mr. Brown of Holiday Mansion a letter representing that the boats equipped with Mercury engines would have a cruising speed of 24 knots and a maximum speed of 28 knots. Mr. Brown testified that he had no factual basis for making the representation and that he did not consult with anyone at Holiday Mansion or Mercury before making the representation. Holiday Mansion asked Alan Fila of Mercury for the proper gear drive ratio and propeller pitch for the boats. After consulting with various Mercury employees, Mr. Fila recommended to Holiday Mansion a gear drive ratio of 1.65 to 1 with 20-pitch propellers. On or about January 5, 1995, Sithon agreed to purchase the four passenger ferry boats from Holiday Mansion. In manufacturing the boats, Holiday Mansion set the gear ratios and purchased propellers in accordance with Mr. Fila's recommendations. A Mercury field engineer visited the Holiday Mansion factory and inspected the installation of the Mercury engines and stern drives into one of the four boats. In February 1995, Mr. Vagianos of Sithon received a copy of a Mercruiser/Mercury operation and service manual from Holiday Mansion. Warranty information is contained in the manual starting at the top of page 84. The actual "Warranty Policy" is on pages 86 and 87 and contains eleven numbered paragraphs. Paragraph 10 of the warranty policy provides: WARRANTIES OF MERCHANTABILITY AND FITNESS ARE EXCLUDED FROM THIS WARRANTY. IMPLIED WARRANTIES ARE LIMITED TO THE LIFE OF THIS WARRANTY. SOME STATES OR COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. Sithon received the four ferry boats from Holiday Mansion in April. On May 19, 1995, Sithon commenced its ferry boat operations in Northern Greece. Within days, the propulsion systems of all four boats began to experience various mechanical problems during operation. The four boats could reach speeds of only 16 knots when empty and approximately 12 to 13 knots when full. On June 1, Holiday Mansion advised Mercury that the Mercury propulsion systems installed on Sithon's boats were not working properly. On June 5, Jim Puddy of Mercury's International Service Department concluded that the boats required a 2 to 1 gear drive ratio and that the Bravo III stern drives should be replaced with Bravo II stern drives. Mercury implemented these changes on the boats in June 1995. On or about July 6, the propulsion systems on the Sithon ferries continued to malfunction. In particular, the hard rubber hubs of the new propellers on the Bravo II stern drives melted during operation. As a result of the propeller and other mechanical problems, Sithon was forced to take three of its four boats out of service. On July 10, another Mercury representative advised Holiday Mansion that the 2 to 1 gear drive ratio would over-torque the engines and cause propeller hubs to be more susceptible to failing. In mid-July, Mercury concluded that the passenger boats were too heavy for the Mercury engines. On at least two occasions in July 1995, a Sithon boat lost all propulsion power. On one occasion, a Sithon boat filled with passengers broke down at sea in the middle of the night. The passengers were stranded until another boat could be located to pick up the passengers. In early August 1995, Mercury replaced two of the 7.3L diesel engines in one of Sithon's boats with two new engines. The two new engines had lower horsepower than the original engines in an attempt to address the problems of overheating and wear. A Mercury representative observed the installation of these two new engines and conducted various tests on the boat. Mercury subsequently sent six additional engines for installation into Sithon's boats. Four of the six engines were installed. Sithon's boats *984 continued to experience many of the same mechanical problems in 1996. B. Breach Of Contract (Count VIII). Sithon alleges that Mercury breached its contract with Sithon for the sale of the four ferry boats. Sithon claims that the following evidence establishes that a contract existed between Mercury and Sithon: (1) Mercury provided Holiday Mansion with information regarding the speed performance of the boats, (2) Mercury recommended to Holiday Mansion the gear ratio and propeller pitch size for the propulsion systems to be used on the boats, and (3) a Mercury field engineer inspected and approved the installation of the Mercury propulsion systems in Sithon's passenger boats. Sithon has failed to present sufficient evidence to raise an issue of material fact as to whether a contract for sale of the boats existed between Sithon and Mercury. The Kansas Supreme Court has held repeatedly that "[i]n order to form a binding contract, there must be a meeting of the minds on all essential terms." Albers v. Nelson, 248 Kan. 575, 580, 809 P.2d 1194, 1198 (1991); see Sidwell Oil & Gas Co., Inc. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107, 1110 (1981). "To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract." Sidwell, 230 Kan. at 84, 630 P.2d at 1113 (quoting Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957, 962 (1976)). Sithon has not offered any evidence which tends to establish a meeting of the minds between Mercury and Sithon regarding the terms for sale of the four ferry boats. Although Sithon contracted with Holiday Mansion, Mercury was not a party to the contract. Sithon also has failed to come forward with any evidence of the alleged terms of the sales contract between Mercury and Sithon. Mercury is not liable on the contract between Holiday Mansion and Sithon by supplying Holiday Mansion with various parts or even by recommending specific actions to be taken on Sithon's boats. Accordingly, the court will grant summary judgment in favor of defendant Mercury on count VIII of Sithon's complaint. C. Express Warranty Regarding Speed (Count I). Sithon alleges that Mercury breached its express warranty that the passenger boats, if equipped with the Mercury propulsion systems, would attain a cruising speed of at least 24 knots. Sithon's claim is based on section 2-313 of the Kansas Uniform Commercial Code ("UCC"). See Kan.Stat.Ann. § 84-2-313(1)(a) ("[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise."). "Express warranties are those for which the buyer bargained; they go to the essence of the bargain, being a part of its basis, and are contractual, having been created during the bargaining process." Corral v. Rollins Protective Services Co., 240 Kan. 678, 685, 732 P.2d 1260, 1266 (1987) (quoting 67A Am.Jur.2d, Sales § 690). "It is clear that for there to be an express warranty there must be an explicit statement, written or oral, by the party to be bound prior to or contemporaneous with the execution of the contract." Id. To prevail on its claim, Sithon must prove that Mercury made an express warranty to Sithon regarding what speed the boats could achieve if equipped with the Mercury engines and that Sithon relied upon the warranty. See Owens-Corning Fiberglas Corp. v. Sonic Development Corp., 546 F.Supp. 533, 541 (D.Kan.1982). Mercury contends that it never made any express warranty to Sithon regarding the speed of the ferry boats. Sithon's only evidence on this point consists of the testimony of Mr. Vagianos of Sithon. Mr. Vagianos testified that Mr. Byquist of Holiday Mansion told him that an unnamed Mercury representative told Mr. Byquist that the boats equipped with Mercury engines could attain a cruising speed of 24 knots and a maximum speed of 28 knots. Mr. Byquist specifically denies making this statement to Mr. Vagianos. Mr. Vagianos' testimony regarding *985 what Mercury represented to Mr. Byquist constitutes inadmissible hearsay. Mr. Vagianos was not present when the Mercury representative allegedly made the statement to Mr. Byquist. Sithon offers the statement of the unnamed Mercury representative for the truth of the matter asserted. The statement, however, does not fall within any of the exceptions to the hearsay rule. Even if the court considers Mr. Vagianos' testimony, Sithon has not produced sufficient evidence to show that Mercury ever made any explicit statements to Sithon regarding the speed of the boats as required for an express warranty claim. In this case, the absence of a direct relationship between Mercury and Sithon is fatal to Sithon's express warranty claim regarding speed of the boats. See Wight v. Agristor Leasing, 652 F.Supp. 1000, 1011 (D.Kan.1987); AgriStor Leasing v. Meuli, 634 F.Supp. 1208, 1219 (D.Kan.1986). Although an express warranty claim can be premised on an indirect relationship between the buyer and manufacturer, as when the buyer relies on a manufacturer's advertisement before purchasing the product from a third party, no such facts are present in this case. See, e.g., Cricket Alley Corp. v. Data Terminal Sys., Inc., 240 Kan. 661, 665, 732 P.2d 719, 723 (1987) (citing comment to Kan.Stat.Ann. § 84-2-313). Moreover, Sithon has not alleged or presented any evidence to establish that Holiday Mansion was in any way acting as Mercury's agent with respect to the alleged representations of boat speeds made by Holiday Mansion. Sithon argues that a disputed issue of fact exists because there is some evidence which indicates that Mercury made representations as to expected speed of boats to two other customers. Sithon argues that this evidence is contrary to Mercury's position that it does not discuss with its customers expected speeds of boats equipped with Mercury engines. Although Sithon's evidence raises a disputed issue as to whether Mercury has made representations regarding the speed of boats to some of its customers, the evidence does not create a disputed factual issue as to whether Mercury made any representations to Sithon regarding the speed of the boats it purchased from Holiday Mansion. For the above reasons, the court will grant summary judgment in favor of defendant Mercury on count I of Sithon's complaint. D. Breach Of Contract (Count IX). Sithon alleges that Mercury breached its contract with Sithon to repair and correct the mechanical problems with the propulsion systems. Mercury first maintains that Sithon has failed to establish that a binding contract existed between the parties. As noted above, to form a binding contract, "there must be a meeting of the minds on all essential terms." Albers, 248 Kan. at 580, 809 P.2d at 1198. "To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract." Sidwell, 230 Kan. at 84, 630 P.2d at 1113 (internal quotation omitted). Sithon claims that there is sufficient evidence for the trier of facts to find that a binding contract existed between Sithon and Mercury. The court has sifted through plaintiff's reference to 53 statements of fact and underlying documentation, which allegedly support its breach of contract claim. Only two of the statements of fact are even arguably relevant to the issue of whether a contract to correct and repair the propulsion systems existed. At most, plaintiff has presented evidence that (1) on June 5, 1995, Holiday Mansion sent Mercury a letter stating that Sithon is ready to go to the American Embassy and their lawyers regarding the problems with the boats, (2) a Mercury representative stated in a June 5, 1995 internal memorandum that Mercury is willing to do a customer relations repair on the boats at no cost to Sithon or Holiday Mansion, and (3) Mercury representatives told a Sithon representative in July 1995 that the new Bravo II engines would allow the engines to work at the correct RPM. Based on the record evidence, no reasonable juror could find the necessary "meeting of the minds" between Sithon and Mercury. There is no *986 evidence to show with reasonable certainty that the minds of the parties met upon the same matter and agreed upon the terms of the contract. See Sidwell, 230 Kan. at 84, 630 P.2d at 1113. Therefore, the court will grant summary judgment in favor of defendant Mercury on count IX of plaintiff's complaint. E. Express Warranty Regarding Repairs (Count II). Sithon alleges that Mercury expressly warranted that it would correct all of the mechanical problems connected to the propulsion systems on Sithon's boats. Mercury argues that Sithon's claim fails because express warranties cannot arise unless there is a contract for sale. Express warranties, however, are not limited to contracts for sale and may be present in any type of contract. See Corral, 240 Kan. at 684, 732 P.2d at 1265. As noted above, "for there to be an express warranty there must be an explicit statement, written or oral, by the party to be bound prior to or contemporaneous with the execution of the contract." Id. In addition, plaintiff must establish that he relied upon the express warranty made by the defendant. See Owens-Corning, 546 F.Supp. at 541. Sithon's express warranty claim regarding repairs fails for several reasons. First, Sithon has not presented any evidence of an explicit oral or written statement by Mercury of a warranty regarding repairs. Moreover, Sithon has not presented sufficient evidence to establish that Sithon and Mercury ever executed a contract. Although Kansas courts do not require a direct buyer-seller relationship as a predicate for an express warranty claim, there must be some contract. See Corral, 240 Kan. at 685, 732 P.2d at 1266 (contract required); Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 751, 675 P.2d 887, 895 (1984) ("[T]he law permits a non-privity buyer to recover for direct economic loss if the remote seller has breached an express warranty."); Fullerton Aircraft Sales & Rentals, Inc. v. Beech Aircraft Corp., 842 F.2d 717 (4th Cir. 1988) (applying Kansas law, privity of contract not required). Here, Sithon does not present evidence of any contract executed subsequent or contemporaneous with the alleged express warranty to correct and repair the propulsion systems. With no contract, there are no express warranties. Finally, Sithon has not established that it took any actions in reliance on the alleged representations made by Mercury. The vague statement made by a Holiday Mansion representative that Sithon may go to its attorneys is insufficient to show that Sithon relied on any alleged warranty regarding repairs made by Mercury. Accordingly, defendant Mercury is entitled to summary judgment on count II of Sithon's complaint. F. Covenant Of Good Faith And Fair Dealing (Count V). Sithon alleges that Mercury breached the covenant of good faith and fair dealing under section 1-203 of the Uniform Commercial Code. See Kan.Stat.Ann. § 84-1-203 ("Every contract or duty within this act imposes an obligation of good faith in its performance or enforcement."). Sithon argues that such a duty exists in this case because of the alleged contracts between Sithon and Mercury for the sale of the boats and for repair of the propulsion systems. As noted above, Sithon has not presented sufficient evidence to establish that either contract exists. Therefore, the court will grant summary judgment in favor of defendant on count V of plaintiff's complaint. G. Implied Warranty Of Merchantability (Count III) And Fitness For A Particular Purpose (Count IV). Sithon alleges that Mercury breached an implied warranty of merchantability because the Mercury propulsion systems were not fit for the ordinary purpose of being used in passenger ferry boats. See Pl's Compl. ¶ 85. Sithon also alleges Mercury breached an implied warranty of fitness for a particular purpose because (1) Mercury knew at the time it installed the engines that an express requirement of the sales contract between Sithon and Holiday Mansion was that the ferry boats could travel at 24 knots cruising speed and 28 knots maximum speed and (2) Mercury knew at the time it repaired the engines in the Summer of 1995 that Sithon *987 required that the ferry boats could travel at 24 knots cruising speed and 28 knots maximum speed. See Pl's Compl. ¶¶ 95-97. Mercury argues that all of Sithon's claims for implied warranties fail because Mercury disclaimed such warranties and there was no privity of contract between Sithon and Mercury. In addition, Mercury argues that Sithon failed to present sufficient evidence in support of its implied warranty of fitness claims because there is no evidence that Mercury knew of Sithon's speed requirements. The court will separately address each of Mercury's arguments. 1. Disclaimer Of Implied Warranties. Mercury argues that all of Sithon's claims for implied warranties fail because Mercury properly excluded the implied warranties of merchantability and fitness pursuant to the Kansas UCC. See Kan.Stat.Ann. § 84-2-316(2). Mercury argues that no Kansas case has addressed the issue of how a remote manufacturer can exclude implied warranties. Mercury concludes that no "basis of the bargain" requirement can logically be imposed where there was no bargain between Sithon and Mercury. We agree that a basis of the bargain requirement seems inapplicable to disclaimers of implied warranties by remote manufacturers. The other requirements of the Kansas UCC, however, are relevant. To exclude the implied warranty of merchantability, a party must mention the word "merchantability" in the exclusion and, if the exclusion is in writing, it must be conspicuous. See id. To exclude the implied warranty of fitness, the exclusion must be in writing and conspicuous. See id. Mercury's disclaimer is contained on page 87 of its operation and service manual. There is a title "Warranty Information" at the top of page 84 of the manual. The actual "Warranty Policy" is on pages 86 and 87 and contains eleven numbered paragraphs. The disclaimer at issue appears in the tenth paragraph. The disclaimer provides: WARRANTIES OF MERCHANTABILITY AND FITNESS ARE EXCLUDED FROM THIS WARRANTY. IMPLIED WARRANTIES ARE LIMITED TO THE LIFE OF THIS WARRANTY. SOME STATES OR COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. Mercury certainly meets the requirements of mentioning the word "merchantability" and having the exclusion in writing. The critical issue, however, is whether Mercury's disclaimer is conspicuous. The Kansas Uniform Commercial Code provides: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type or color.... Whether a term or clause is "conspicuous" or not is for decision by the court. Kan.Stat.Ann. § 84-1-201(10). "In determining conspicuousness of a disclaimer, the court must consider the entire document." Kelley Metal Trading Co. v. Al-Jon/United, Inc., 812 F.Supp. 185, 189 (D.Kan.1993) (citing J & W Equipment, Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d 862, 866 (1980)). "Contrasting type, ink color, and type size are relevant factors in the determination, but they are not the sole arbiters." Kelley, 812 F.Supp. at 189 (citing J & W Equipment). Although the disclaimer in the instant action is in capital letters, the court finds that the disclaimer is not conspicuous when viewed in light of the entire document. In particular, the exclusion appears on page 87 of an operation and maintenance manual, a document neither party signed and a document Sithon did not receive until after it agreed to purchase the Holiday Mansion boats equipped with Mercury engines. In addition, the disclaimer appears near the end of the warranty policy and is not set off from the text around it except by capital letters. We note that other parts of the manual have been set off with more distinctive features. *988 For the above reasons, the court finds that Mercury's disclaimers did not exclude the implied warranties of merchantability and fitness as to Sithon. 2. Privity Of Contract. Mercury also argues that all of Sithon's implied warranty claims are barred because there is no privity of contract between Mercury and Sithon. "[I]mplied warranties are imposed by operation of law in Kansas on public policy grounds and without regard to whether the parties to the implied warranty are in `privity' or whether the loss suffered is purely economic when the product is such that it would be inherently dangerous if defectively manufactured." Fullerton, 842 F.2d at 721 (4th Cir.) (applying Kansas law) (citing Professional Lens, 234 Kan. 742, 755, 675 P.2d 887, 898-99 (1984)); see Boehm v. Fox, 473 F.2d 445, 449 (10th Cir.1973) ("An implied warranty will be imposed by operation of law on the basis of public policy and privity of contract is not essential.") (citing Evangelist v. Bellern Research Corp., 199 Kan. 638, 433 P.2d 380 (1967)). As noted previously, there is no contractual privity between Sithon and Mercury. In addition, Sithon seeks economic losses in this action. Therefore, to withstand summary judgment on its implied warranty claims, Sithon must establish that engines used for passenger boats can be inherently dangerous if defectively manufactured. In Professional Lens, the alleged defective product was a computer and its hard disc component part, which the court found were not inherently dangerous products. 234 Kan. at 755, 675 P.2d at 898. In other cases, however, courts have held that an aircraft and an automobile tire are inherently dangerous products. See Fullerton, 842 F.2d at 718, 720-22 (alleged defect was "abnormal vibrations" on an aircraft); B.F. Goodrich Co. v. Hammond, 269 F.2d 501, 506 (10th Cir.1959) (tire allegedly did not protect against blow outs). Although no court apparently has decided this precise issue under Kansas law, we conclude that engines for passenger boats fall into the category of inherently dangerous products if defectively manufactured. Indeed, on at least two occasions, Sithon's boats equipped with Mercury engines lost all propulsion power while at sea. The passengers on the boats were stranded and subject to the threat of personal injury. Although privity of contract is not required in this case, Sithon has not provided any authority for the proposition that an implied warranty can arise without any contract at all. Under Kansas law, there must be some contract before an implied warranty of fitness for a particular purpose can arise. See Corral, 240 Kan. at 678, 732 P.2d at 1261, Syl. ¶ 6 (purpose of implied warranties is to protect party from loss where the subject matter of the contract fails to conform to the normal commercial standard or meet the party's known particular purpose). Indeed, section 315 of the Uniform Commercial Code provides that the implied warranty of fitness arises only "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required." Kan.Stat.Ann. § 84-2-315 (emphasis added). Applying the above principles, the court finds that privity of contract is not required for Sithon to maintain its implied warranty of merchantability claim or its implied warranty of fitness claim at the time the engines were installed in the ferry boats. The existence of a sales contract between Sithon and Holiday Mansion may be sufficient to create implied warranties running from Mercury to Sithon. On the other hand, Sithon's claim that an implied warranty of fitness arose when Mercury repaired the propulsion systems in the Summer of 1995 is barred. The court determined previously that Sithon did not present sufficient evidence of a contract to repair between Sithon and Mercury. Without any contract in the Summer of 1995, no implied warranty of fitness could arise. The court also finds that Sithon has failed to present sufficient evidence in support of such a claim. See infra, section 3, Evidence Of Implied Warranty Of Fitness Regarding Speed Of The Ferry Boats. For the above reasons, the court will grant summary judgment in favor of defendant Mercury on Sithon's implied warranty of fitness claim with respect to Mercury's *989 repair of the propulsion systems in the Summer of 1995. 3. Evidence Of Implied Warranty Of Fitness Regarding Speed Of The Ferry Boats. As noted above, Sithon alleges that an implied warranty of fitness from Mercury arose, both at the time the engines were installed and when they were subsequently repaired, that the ferry boats could travel at 24 knots cruising speed and 28 knots maximum speed. With respect to both of these claims, Sithon has failed to present sufficient evidence to establish either (1) Mercury had reason to know that Sithon required water craft that could travel 24 knots cruising speed and 28 knots maximum speed or (2) Mercury had reason to know that Sithon was relying on Mercury to select engines which would enable the water craft to achieve these specified speeds. See Kan.Stat.Ann. § 84-2-315. Accordingly, the court will grant summary judgment in favor of defendant Mercury on both of these claims. Although the court finds in favor of defendant Mercury on the two specific claims for implied warranties of fitness regarding speed of the ferry boats, the court will not grant summary judgment in favor of defendant Mercury on count IV in its entirety. Liberally construing Sithon's complaint, the court finds that Sithon's claim under count III that Mercury breached an implied warranty of merchantability, i.e., the propulsion systems were not fit for the ordinary purpose of being used in passenger ferries also may be pled as a claim under count IV that Mercury breached an implied warranty of fitness, i.e., the propulsion systems were not fit for the particular purpose of being used in passenger ferries. The parties did not specifically address in their briefs whether use of the Mercury propulsion systems in passenger ferry boats is an ordinary or particular use of the systems. Therefore, the court will not dismiss count IV in its entirety at this time. For all of the above reasons, the court will deny Mercury's motion for summary judgment on counts III and IV with respect to Sithon's claim of an implied warranty that the Mercury propulsion systems were not fit for the purpose of being used in passenger ferries. The court will grant summary judgment in favor of Mercury on count IV of Sithon's complaint with respect to Sithon's claim of implied warranties of fitness, both at the time the engines were installed and when they were subsequently repaired, that the water craft would achieve a cruising speed of 24 knots and a maximum speed of 28 knots. H. Fraud (Count VII). Sithon alleges in its complaint that Mercury failed to inform Sithon, both at the time Mercury originally installed the propulsion systems and when it subsequently repaired the propulsion systems, that the boats sold could not reach speeds of 24 knots cruising speed and 28 knots maximum speed. See Pl's Compl. ¶¶ 126-27, 129-30. These two related fraud claims are based on the legal theory of fraud through silence. To prevail on a claim of fraud through silence, plaintiff must show by clear and convincing evidence: (1) defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) defendant was under an obligation to communicate the material facts to the plaintiff; (3) defendant intentionally failed to communicate to plaintiff the material facts; (4) plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) plaintiff sustained damages as a result of defendant's failure to communicate the material facts to the plaintiff. [citation omitted.] OMI Holdings, Inc. v. Howell, 260 Kan. 305, 344-45, 918 P.2d 1274, 1299 (1996) (quoting Lesser v. Neosho County Community College, 741 F.Supp. 854, 863 (D.Kan.1990)). The court will analyze the above elements separately with respect to each fraud claim. *990 1. Disclosure Of Speeds At Time Of Engine Installation. Sithon first argues that Mercury failed to inform Sithon at the time Mercury installed the engines that the boats equipped with the Mercury propulsion systems could not reach speeds of 24 knots cruising speed and 28 knots maximum speed. Mercury argues that none of the evidence presented by Sithon in its opposition memorandum is relevant to this claim. The court agrees. Sithon has failed to present clear and convincing evidence in support of its fraud claim. First, Sithon has not presented any evidence that Mercury knew at the time the engines were installed what speeds the boats could achieve if equipped with the Mercury propulsion systems. Sithon also has not established that it could not have discovered this information by the exercise of reasonable diligence. Sithon likewise has failed to present any evidence in support of the other elements of a fraudulent omission claim. In particular, Sithon has failed to present any evidence that Mercury intentionally withheld any speed estimates of the boats from Sithon at the time of engine installation or that Sithon justifiably relied on Mercury to communicate this information. In light of the lack of evidence presented by Sithon, the court will grant summary judgment in favor of defendant Mercury on Sithon's claim that Mercury failed to disclose at the time Mercury installed the engines that the boats could not achieve a cruising speed of 24 knots and a maximum speed of 28 knots. See Pl's Compl. ¶¶ 126-27. 2. Disclosure Of Speeds At Time Of Repair. Sithon also contends that Mercury failed to inform Sithon at the time of repair in the Summer of 1995 that the boats equipped with the repaired Mercury propulsion systems could not reach speeds of 24 knots cruising speed and 28 knots maximum speed. Sithon has presented some evidence in support of this claim in its opposition memorandum. Sithon has presented evidence that (1) Mercury knew what speed the boats could achieve after repair and replacement of the propulsion systems, (2) Mercury knew that some of the repairs and changes would reduce the cruising speed of the boats, and (3) Mercury failed to advise Sithon of this information. In their voluminous briefs, neither party specifically discussed this claim factually or with respect to the legal elements of a fraudulent omission claim. Therefore, the court will deny defendant Mercury's motion for summary judgment on this claim. Although the court will not grant summary judgment on Sithon's second fraud claim, the court doubts that the record evidence would be sufficient to withstand a properly supported motion for judgment as a matter of law. In particular, there does not appear to be any record evidence which establishes that (1) Sithon could not have discovered the information regarding speed of the boats by the exercise of reasonable diligence or (2) Sithon justifiably relied on Mercury to communicate such information. Mercury argues in the alternative that Sithon should be required to replead its fraud claim with particularity. The court finds that Sithon's complaint provides Mercury sufficient notice of the particular fraud allegation. The requirement that fraud shall be stated with particularity primarily is to allow the defendant to prepare an adequate responsive pleading. See Todaro v. Orbit Int'l Travel, Ltd., 755 F.Supp. 1229, 1234 (S.D.N.Y.1991); United Nat'l Records, Inc. v. MCA, Inc., 609 F.Supp. 33, 38 (N.D.Ill. 1984). By analogy to the time requirements for pleading defenses under rule 12, a rule 9(b) objection is waived unless made as a separate motion prior to or concurrent with the filing of a responsive pleading. See Todaro, 755 F.Supp. at 1234; MCA, 609 F.Supp. at 38-39. Here, Mercury was on sufficient notice of Sithon's fraud allegations to prepare a detailed answer. Although Mercury raised a general objection under rule 9(b) in its answer, there is no evidence to suggest that Mercury was precluded from drafting an adequate responsive pleading because of the lack of particularity in Sithon's fraud claims. Of course, Sithon may be required to state its fraud claim with more particularity in the pretrial order. *991 3. Sithon's New Fraud Theories. Sithon alleges numerous new fraud theories in its opposition brief and its surreply memorandum. In sum, Sithon argues that Mercury withheld information of the shortcomings of the propulsion systems, knew that it could never repair or improve the performance of the propulsion systems, and nevertheless assured Sithon that it would correct the performance problems. Sithon argues that it relied on Mercury's repeated assurances and accordingly suffered the destruction of its business. Sithon cannot change its fraud theory at this late date. At this point, there is no pretrial order in the case. Pursuant to the Scheduling Order, however, any motions to amend the pleadings by the plaintiff were due on January 2, 1997. Plaintiff has not filed any motions to amend or motions to extend the deadline for filing motions to amend. Therefore, plaintiff's fraud claims are governed by its complaint. The court will not consider the new fraud theories presented in plaintiff's opposition memoranda. Plaintiff cannot present claims that are "moving targets," particularly with respect to claims of fraud which are governed by a heightened standard of pleading. In a footnote, Sithon requests leave to amend its fraud claims to add several new fraud theories. The court will deny Sithon's request for the reasons set forth above. In addition, Sithon has failed to comply with rule 15.1 of the Rules of Practice for the District of Kansas governing motions to amend the pleadings. In particular, Sithon failed to set forth a concise statement of the amendment sought and failed to provide a copy of the proposed amended complaint to the court. Without briefing on the motion or a copy of the proposed amended complaint, the court cannot analyze many of the factors relevant to motions to amend, such as Sithon's delay in seeking the amendment or any prejudice to Mercury. See Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993). Based on the record before us, however, we note that any proposed amendment by Sithon to add the referenced fraud claims likely would be futile. Sithon has not set forth facts which establish that (1) Mercury was under an obligation to communicate the material facts to Sithon, (2) Mercury intentionally failed to communicate the material facts to Sithon, or (3) Sithon justifiably relied on Mercury to communicate the facts to Sithon. For the above reasons, Sithon's request to amend its complaint is denied. I. Strict Liability In Tort (Count VI). Sithon alleges that the Mercury propulsion systems were defective and unreasonably dangerous to Sithon's boats. Sithon, as the ultimate purchaser of the propulsion systems, claims that Mercury is responsible for any damages from the propulsion systems under the legal theory of strict liability. Mercury moves for summary judgment on the ground that Sithon suffered only economic loss and therefore cannot recover in tort. In Kansas, "an action for damages from a product's qualitative defects alone without proof of the product's dangerousness cannot sound in tort." Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (10th Cir.1984); see Winchester v. Lester's of Minnesota, Inc., 983 F.2d 992, 996 (10th Cir.1993); AgriStor Leasing v. Meuli, 634 F.Supp. 1208, 1217 (D.Kan.1986). Thus, the repair or replacement of a defective product itself is considered economic loss for which a plaintiff generally cannot recover in tort. See Winchester, 983 F.2d at 996 (citing East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986)). Here, Sithon seeks recovery for damage to the propulsion systems and the water craft, as well as lost profits resulting from the failure of the propulsion systems. Although damage to a defective product itself often is characterized as economic loss, courts have allowed recovery of such losses if the product was "unreasonably dangerous." See Champlain Enterprises. Inc. v. United States, 945 F.Supp. 468, (N.D.N.Y.1996) (applying Kansas law) (plaintiff can recover for damage to the aircraft if plaintiff establishes that the aircraft was unreasonably dangerous); Fordyce Concrete, Inc. v. Mack Trucks, Inc., 535 F.Supp. 118, 126 (D.Kan.1982) (physical damage upon a defective product or upon other property resulting from an unreasonably *992 dangerous defective product is recoverable); see also Elite Professionals, Inc. v. Carrier Corp., 16 Kan.App.2d 625, 625, 633, 827 P.2d 1195, 1197, 1202 (1992) (damage to meat inside refrigeration unit did not constitute economic loss, issue of fact as to whether truck refrigeration unit was unreasonably dangerous); Mississippi Power & Light Co. v. Branson Aircraft Corp., 797 F.Supp. 871, 873 (D.Colo.1992) (applying Kansas law) ("tort recovery for injury to the defective product is not barred by the economic loss rule if the plaintiff is attempting to recover property damages, as distinguished from purely economic damages."). In Fordyce, we held that "the Kansas Supreme Court, if faced with the question before us, would once again follow the explicit language of § 402A [of the Restatement (Second) of Torts] and allow plaintiff to recover for physical damage to property resulting from an unreasonably dangerous defective product regardless of whether the damage is inflicted upon the defective product or upon other property." In Fordyce, we relied on Kansas cases that consistently interpreted section 402A broadly, permitting expansive recovery under a strict liability in tort theory. See id.; Kennedy v. City of Sawyer, 228 Kan. 439, 445-46, 618 P.2d 788, 794 (1980) (imposing liability for property damage incurred by bystanders or third parties under strict liability "is based on a desire to achieve maximum protection for the injured party and to promote the public interest in discouraging the marketing of products having defects that are a menace to the public."). We now must decide whether Sithon has presented sufficient evidence that Mercury's propulsion systems were unreasonably dangerous to survive summary judgment. The Kansas Supreme Court has found that a condition is unreasonably dangerous "if it is dangerous when used in the way it is ordinarily used considering the product's characteristics and common usage, and is dangerous to the extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics." Jenkins v. Amchem Prods., Inc., 256 Kan. 602, 623-24, 886 P.2d 869, 882 (1994), cert. denied, ___ U.S. ___, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995). Mercury has not offered any evidence to controvert Sithon's evidence that its passenger boats lost all propulsion power on two occasions and broke down while at sea. On one occasion, the boat filled with passengers broke down in the middle of the night. The passengers were stranded, frightened, and many of them were screaming because of the threat of personal injury. Based on the record evidence, we cannot conclude as a matter of law that the Mercury propulsion systems were not unreasonably dangerous. If Sithon establishes at trial that the Mercury propulsion systems were unreasonably dangerous, Sithon may be able to recover on its strict liability claims for damages to the propulsion systems and its water craft. Neither party has addressed whether Sithon also can recover lost profits in the event it can establish that the propulsion systems were unreasonably dangerous. In light of the absence of briefing on this point, the court will not decide the issue at this time. For all of the above reasons, the court will deny Mercury's motion for summary judgment as to count VI of Sithon's complaint. II. Mercury's Motion For Summary Judgment On Holiday Mansion's Cross-Claim. Mercury has filed a motion for summary judgment on Holiday Mansion's cross-claim. Holiday Mansion has failed to file a response to this motion. Pursuant to rule 7.4 of the Rules of Practice for the District of Kansas, the court will consider defendant's motion as uncontested. Ordinarily, such motions are granted without further notice. A. Factual Background. For purposes of defendant's motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non-movant, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Mr. Byquist, Holiday Mansion's vice president and individual in charge of the day-to-day operations of the company, testified that *993 he did not know if Holiday Mansion's allegation that Mercury represented what specific speeds Sithon's boats could achieve was true or the basis of the allegation. Mr. Byquist also testified that (1) no one at Mercury told anyone at Holiday Mansion that the boats sold to Sithon would travel 24 knots cruising speed or 28 knots maximum speed, or at any speed, when equipped with the Mercury stern drive engines; (2) no one at Mercury endorsed using the Mercury stern drive engines with the boats sold to Sithon; and (3) no one at Mercury told Holiday Mansion that the boats sold to Sithon would be a proper application for the Mercury stern drive engines. Mr. Brown of Holiday Mansion faxed a letter to Sithon on January 3, 1995, representing that the boats equipped with Mercury engines would have a cruising speed of 24 knots and a maximum speed of 28 knots. Mr. Brown testified that he had no factual basis for making the representation and that he did not consult with anyone at Holiday Mansion or Mercury before making the representation. B. Breach Of Express Warranty (Count I). Holiday Mansion alleges that Mercury expressly warranted that the engines would reasonably and properly perform. As noted previously, to prevail on an express warranty claim, a party must establish (1) there was an explicit written or oral statement of warranty prior to or contemporaneous with the execution of a contract and (2) reliance on the warranty statement. See Owens-Corning, 546 F.Supp. at 541. The only record evidence of an express warranty by Mercury to Holiday Mansion is contained in Mercury's operation and service manual. The warranty provides in relevant part that the Mercury stern drive power package, inboard engine, and accessories are warranted "to be free from defects in material and workmanship. This warranty shall apply only to pleasure craft and light-duty craft applications." Holiday Mansion has not offered any evidence suggesting either that (1) the Mercury engines and stern drives failed because of a defect in materials or workmanship or (2) the Mercury propulsion systems were used in a "light-duty craft" application. In the absence of such evidence, Holiday Mansion cannot establish that Mercury breached its express warranty. Indeed, the only record evidence on this point suggests that Mercury fulfilled its warranty obligations by supplying replacement engines and drive units for the boats at virtually no cost to Sithon or Holiday Mansion. Therefore, the court will grant summary judgment in favor of Mercury on count I of Holiday Mansion's cross-claim. C. Negligent Misrepresentation (Count II). Holiday Mansion alleges that Mercury negligently misrepresented that the 49-foot passenger boats, "when loaded with passengers, fuel and other miscellaneous items, could reasonably and appropriately operate for needed periods of time at cruising speed in excess of 20 knots [] with a maximum speed in excess of 24 knots." To prevail on its claim, Holiday Mansion must establish: (1) Mercury supplied false information to Holiday Mansion to benefit and guide Holiday Mansion in a business transaction; (2) Mercury intended to influence the transaction by providing the information; (3) Mercury was negligent in obtaining or communicating the information; and (4) Holiday Mansion reasonably relied and acted upon the information which caused Holiday Mansion to suffer damages. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604, 876 P.2d 609, 616 (1994) (adopting section 552 of the Restatement (Second) of Torts). Holiday Mansion has not presented any evidence that Mercury ever made the alleged representation regarding speed. Indeed, Holiday Mansion's representatives testified that no such representation was made. Mr. Byquist, Holiday Mansion's vice president and individual in charge of the day-to-day operations of the company, testified that he did not know if Holiday Mansion's allegation was true or the basis of the allegation. Mr. Byquist also testified that (1) no one at Mercury told anyone at Holiday Mansion that the boats sold to Sithon would travel 24 knots cruising speed or 28 knots maximum speed, or at any speed, when equipped with the *994 Mercury stern drive engines; (2) no one at Mercury endorsed using the Mercury stern drive engines with the boats sold to Sithon; and (3) no one at Mercury told Holiday Mansion that the boats sold to Sithon would be a proper application for the Mercury stern drive engines. Finally, Mr. Brown of Holiday Mansion faxed a letter to Sithon on January 3, 1995, representing that the boats would have a cruising speed of 24 knots and a maximum speed of 28 knots. Mr. Brown testified that he had no factual basis for making the representation and that he did not consult with anyone at Holiday Mansion or Mercury before making the representation. In light of the above evidence, no reasonable juror could find that Mercury supplied Holiday Mansion with false information. Accordingly, the court will grant summary judgment in favor of Mercury on count II of Holiday Mansion's cross-claim. D. Negligence (Count III). Holiday Mansion alleges that Mercury "failed to use appropriate and reasonable care in selecting the Mercury engines and stern drives it did, which would not and could not operate at the desired cruising and maximum speeds." Holiday Mansion also alleges that Mercury "negligently and improperly failed to undertake and perform any and all testing that was needed to ascertain and make certain that its representations were reasonable and appropriate." Holiday Mansion has not presented any evidence in support of these allegations. First, the uncontested evidence establishes that no one at Mercury represented to Holiday Mansion that the boats could achieve certain cruising or maximum speeds and that no one at Mercury was aware of the desired cruising and maximum speeds. Moreover, Holiday Mansion has not presented any evidence suggesting that Mercury was negligent in selecting the engines for the passenger boats. For the above reasons, the court will grant summary judgment in favor of Mercury on count III of Holiday Mansion's cross-claim. E. Common Law Indemnity (Count IV). Holiday Mansion claims that it is entitled to indemnity from Mercury for any judgment that may be entered against Holiday Mansion on Sithon's claims. Mercury argues that Holiday Mansion has no legal right to indemnity under Kansas law. There is no evidence of any indemnity agreement between Holiday Mansion and Mercury. In addition, "the statutory adoption of comparative negligence in Kansas has had the effect of abrogating the concept of indemnification based on the dichotomy of active/passive negligence." Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 642, 666 P.2d 192, 199 (1983) (citation omitted). In the absence of any factual or legal basis for indemnification, the court will grant summary judgment in favor of defendant Mercury on count IV of Holiday Mansion's cross-claim. IT IS THEREFORE ORDERED that defendant Mercury Marine's motion for summary judgment on plaintiff's complaint (Doc. # 73) is granted as to counts I, II, V, VIII, and IX, granted in part and denied in part as to counts IV and VII as discussed herein, and denied as to counts III and VI. IT IS FURTHER ORDERED that defendant Mercury Marine's motion for summary judgment on defendant Holiday Mansion's Cross-Claim (Doc. # 124) is granted.

718 S.E.2d 145 (2011) STATE of North Carolina v. Terry Adonis BALDWIN. No. 325P11. Supreme Court of North Carolina. October 6, 2011. Anne Bleyman, for Baldwin, Terry Adonis. Amanda Little, Assistant Attorney General, for State of N.C. Peter S. Gilchrist, III, District Attorney, for State of N.C. ORDER Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 1st of August 2011 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is *146 "Allowed by order of the Court in conference, this the 6th of October 2011." Upon consideration of the petition filed on the 1st of August 2011 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 6th of October 2011."

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,575-06 RONALD MIXON, Relator v. TRAVIS DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 100459 IN THE 147TH JUDICIAL DISTRICT COURT FROM TRAVIS COUNTY Per curiam. O R D E R Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 147th Judicial District Court of Travis County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. In these circumstances, additional facts are needed. The respondent, the District Clerk of Travis County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); or stating that Relator has not filed an application for habeas corpus in Travis County. Should the response include an order designating issues, proof of the date the district attorney's office was served with the habeas application shall also be submitted with the response. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order. Filed: October 12, 2011 Do not publish

119 F.Supp.2d 485 (2000) Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent No. 4:CV-99-1879. United States District Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under 28 U.S.C. [§] 2241." Michel is a native and citizen of Haiti who is currently a detainee of the Immigration and Naturalization Service (INS). He is subject to a final order *486 of deportation issued December 3, 1997, but INS has not been able to effectuate the deportation, apparently due to slow action on the part of Haiti. Succinctly stated, Michel seeks release on bond pending his removal. Before the court is the report and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition be denied. DISCUSSION: I. STANDARD A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F.Supp. 1238, 1239 (M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir.1990). Michel has filed objections to the report and recommendation which we review de novo. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel had been convicted twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Second Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I.N.S., 206 F.3d 253 (2d Cir.2000). See also 8 U.S.C. § 1229b(c)(6). The removal is based on Michel's two convictions for crimes of moral turpitude. While the appeal was pending, Michel requested release on a $15,000.00 bond. The District Director in New York denied the request and notified Michel that he had the right to appeal to the BIA. No appeal from the denial was filed. Originally, Michel was released on bail by an immigration officer. However, the immigration judge revoked bail, stating that Michel was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow. Given the above recitation, the issues before this court are limited. Michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. Also, there is no question regarding deportability, as any such question is answered by the Second Circuit's affirmance of the order of removal. Further, Michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 F.3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. As recited by the magistrate judge, Michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90-day *487 removal period violated his right to due process. Report and Recommendation at 3 (quoting Petitioner's Amended Reply to Respondent's Brief at 1). III. JURISDICTION As a preliminary matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 U.S.C. § 1226(e). The undersigned judge so held in Jacques v. Reno, 73 F.Supp.2d 477 (M.D.Pa.1999). In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our Court of Appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. Id. at 393 (citing Sandoval v. Reno, 166 F.3d 225, 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir.1999)). The petitioner in Chi Thon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him. Id. at 393. The statutory provision on which we relied in Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226(e).[1] We turn, then, to the merits of the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90-day period for removal has expired. The claim is asserted as arising under the Due Process Clause of the Fifth Amendment. Once an alien is ordered "removed," INS[2] is afforded a 90-day period in which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alien is subject to detention during the removal period. Sec. 1231(a)(2). After expiration of the 90-day period, the alien may be released under specified conditions. § 1231(a)(3). While aliens such as Michel who are deportable under § 1227(a)(2)(A)(ii) must be detained pending a final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detention and conditions of release). Michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i.e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic *488 disagreement between the parties is the extent to which Michel's asserted liberty interest is cognizable under the substantive component of the Due Process Clause. This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v. Reno, 94 F.Supp.2d 546 (M.D.Pa.2000), Judge Rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. (A) Other Authority In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possession and for attempted robbery in unrelated events. He was ordered to be deported in 1995 because he lacked a valid visa, he committed a crime involving moral turpitude, and he committed two crimes for which the sentences imposed were greater than five years. Important in the analysis was the fact that the petitioner was paroled into the country, meaning that he had not been admitted formally and was considered to have the status of an applicant for admission, despite his lengthy residence in the United States. Id. at 392 and n. 1. The petitioner claimed that Viet Nam's refusal to take him back meant that he was subject to virtually indefinite detention. Id. at 392-393. The Third Circuit first reviewed the applicable provisions of the Immigration and Nationality Act, both before and after amendment through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Because both versions of the statutes granted INS the authority to detain or release on conditions, there was no need to determine which version applied. Id. at 394-395. There are conflicting constitutional and policy considerations at issue in that Congress has attempted to insulate the national community from potentially dangerous criminal aliens, and aliens released from custody have a great potential to abscond, but those aliens have due process rights. Id. at 395. The problem was to find a way of satisfying these conflicting interests. The Third Circuit first noted that the exclusion of aliens is a matter generally for the political branches and that, in many instances, the exercise of the power over naturalization and immigration would be unacceptable if applied to citizens. Id. at 395-396. Still, an alien is a "person" entitled to substantive due process protection and, in some circumstances, procedural due process. Id. at 396. The Third Circuit then reviewed a number of cases involving the detention of excludable aliens in which courts found no substantive due process violation. The one exception was a case decided before INS promulgated regulations relating to periodic parole review for Mariel Cubans. Also, one case involved a deportable alien whose continuing detention was upheld, subject to the same regulations. Id. at 396-397. The Third Circuit summarized these holdings as follows: ... [T]here is no constitutional impediment to the indefinite detention of an alien with a criminal record under a final order of exclusion, deportation, or removal if (1) there is a possibility of his eventual departure; (2) there are adequate and reasonable provisions for the grant of parole; and (3) detention is necessary to prevent a risk of flight or a threat to the community. Id. at 397. Therefore, while recognizing that the "entry fiction" is precisely that, a fiction, *489 and that detention indeed is tantamount to punishment, the Third Circuit concluded that continued detention for lengthy periods was permissible as long as adequate provisions for parole are available. Id. at 397-398. Its holding was limited to excludable aliens, with no views expressed on the applicability of the same principles in cases involving deportable aliens. Id. at 398 n. 7. Because the regulations governing parole review for the Mariel Cubans satisfied the Due Process Clause if applied properly, and negotiations were underway with Viet Nam (so that detention could not be said to be permanent), INS was given 30 days to conduct the necessary parole review or the petitioner would be released. Id. at 398-399. For present purposes, the upshot of Chi Thon Ngo is that, at least as applies to excludable aliens, prolonged detention does not violate due process as long as the type of review described therein is provided. The question becomes whether the same principle will apply to deportable aliens. One of the cases cited by Judge Rambo in Sombat Map Kay is Binh Phan v. Reno, 56 F.Supp.2d 1149 (W.D.Wash.1999) (en banc).[3] In that case, the five judges of the Western District of Washington sat en banc to review five "lead cases" so that they would have a common framework for analyzing due process claims in a large number of immigration cases then pending. Id. at 1151. In an opinion by Chief Judge Coughenour, the court first reviewed the statutory and regulatory framework, determined that it had jurisdiction under § 2241, and rejected a government argument that administrative exhaustion was required before the court should entertain the claims. Id. at 1151-1153. It then turned to the petitioners' due process arguments. Initially, the court noted that all aliens have liberty interests under the Fifth Amendment, but that excludable aliens are limited in that interest to the procedure explicitly authorized by Congress due to the entry fiction. Id. at 1153-1154. However, because lawfully admitted aliens develop ties that go with permanent residence, their constitutional status changes, and they are entitled to greater protection under the Due Process Clause. Id. at 1154. See also id. at 1154 n. 6 (referring to the foregoing principle as the "assimilation doctrine"). Having noted that the first question in substantive due process analysis is a careful description of the asserted right, the court rejected the government's description of the right as the right to be released into the United States pending removal. Rather, the right is the fundamental interest in liberty generally. Id. at 1154. Because the described right is fundamental, the questioned government action is subject to "strict scrutiny," meaning that "a deprivation will comport with due process only if it is narrowly tailored to serve a compelling government interest." Id. at 1154-1155 (citation omitted). Applying this standard, the court looked at the asserted government goals in detaining deportable criminal aliens and whether the detention is excessive in light of those goals. It also examined the goals in the context of the government's (or at least the political branches') usual plenary authority over immigration matters. It rejected a more deferential standard because *490 there was no need to extend such deference beyond the deportation order, as the governmental interests asserted (prevention of flight and protection of the public) are domestic, and not foreign policy, matters. Id. at 1155. The court concluded that, balanced against the likelihood that the government would effectuate removal and the dangerousness of the individual alien, the detention of an alien did not comport with substantive due process when there is no realistic chance that the alien will be removed. Id. at 1155-1156. Diametrically opposed to Binh Phan is Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.1999), reh'g en banc denied, cert. granted, ___ U.S. ____, 121 S.Ct. 297, ___ L.Ed.2d ____ (2000). The petitioner in that case had a complicated history relating to his country of origin because his parents were "displaced persons" in Germany in the aftermath of World War II. Both parents were from historically disputed territory which, at various times, was independent Lithuania, territory of Nazi Germany, or part of the Soviet empire. In addition, Germany requires birth of German blood for citizenship, as opposed to birth on its territory (as would apply in the United States). The complications arising from this parentage prevented easy resolution of the problem of finding a country willing to accept the petitioner after removal from the United States. In addition, the Dominican Republic, the country of origin of the petitioner's wife, did not respond to inquiry from INS. Regardless, the petitioner had been admitted lawfully to the United States but had committed offenses which left him subject to a final order of deportation. He was detained by INS as a flight risk. Id. at 283-284. The Fifth Circuit also reviewed the statutory and regulatory context of the petition and found jurisdiction. Id. at 285-288. It then reviewed precedent concerning the sovereign's power to control immigration matters, describing this power as "essentially plenary." Id. at 288-289. While aliens have rights as "persons" for purposes of the Fifth Amendment, those rights are limited by the sovereign's plenary powers. Thus, while an illegal alien cannot be sentenced to hard labor without due process, id. at 289 (citing Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896)), the constitutional rights of aliens may be restricted when they conflict with the sovereign's plenary power. Id. (citing, inter alia, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (citizens had First Amendment interest in listening to communist agitator, but government could exclude agitator; by implication, agitator's interest in speech did not outweigh plenary power)). The Fifth Circuit then distinguished Wong Wing, in which the alien was summarily punished to a year at hard labor and thereafter to removal from the United States. The Supreme Court itself noted in that opinion that detention pending deportation is not the same as detention as punishment for being illegally present in this country because the former is necessary to the deportation proceedings. Zadvydas at 289 (quoting Wong Wing at 980; removal proceedings "would be in vain" if the alien could not be detained). The Fifth Circuit then restated the principle that excludable aliens could be detained for an indefinite period of time pending removal, citing its prior holding in a case involving Mariel Cubans. Id. at 290 (citing Gisbert v. U.S. Attorney General, 988 F.2d 1437 (5th Cir.1993)). It rejected the petitioner's argument that, as a deportable alien, he had greater substantive rights than an excludable alien. The difference in rights applies to the procedural protections applicable to the decision to deport, as compared to the decision to exclude, and does not affect substantive rights once there has been a decision to deport or exclude. Id. Next, the court engaged in an analysis of whether the petitioner's detention in fact could be considered permanent, and *491 determined that it could not, at least not until potential avenues for finding a country which would accept him were exhausted. Id. at 291-294. It then returned to the question of a deportable alien's substantive rights. With respect to excludable aliens, when they seek to enter this country, they are requesting a privilege rather than asserting a right. Exclusion therefore is not a deprivation of rights but a denial of a privilege, which, in combination with the deference due in immigration matters, means that the decision is not subject to procedural limitations. Moreover, most substantive rights are constrained by the government's need to control immigration. Id. at 294. To the extent that substantive rights are infringed in a manner unconnected to the immigration power, an excludable alien may assert such rights. This would include the right to be free from malicious infliction of cruel treatment. Id. at 295. In contrast, resident aliens are entitled to procedural due process prior to removal. This right arises from their continued presence in the country and the ties that naturally arise therefrom. Still, the plenary power is not extinguished, and the fact that the standard for evaluating the procedures used is lower than would be applied in the case of a citizen demonstrates the continued viability of the plenary power. Id. (also collecting cases). Nothing in the case law reviewed, however, indicated that a deportable alien has greater substantive rights than excludable aliens when the right asserted and the government interest asserted are the same. Id. In the circumstances presented here, the national interest in effectuating deportation is identical regardless of whether the alien was once resident or excludable. When a former resident alien is—with the adequate and unchallenged procedural due process to which his assertion of a right to remain in this country entitles him—finally ordered deported, the decision has irrevocably been made to expel him from the national community. Nothing remains but to effectuate this decision. The need to expel such an alien is identical, from a national sovereignty perspective, to the need to remove an excludable alien who has been finally and properly ordered returned to his country of origin.... Whether the party to be deported is an excludable or a former resident, the United States has properly made its decision and earnestly wishes—if for no other reason than to save the cost of detention—to deport the detainee. And deportation itself is not punishment.... Id. at 296 (citations omitted). The Fifth Circuit continued by pointing out that the fact that deportation cannot be effected immediately is not a ground for distinguishing between deportable and excludable aliens. In both instances, the government's interest is in preventing crimes against the populace and preventing flight which would defeat the deportation decision. The court emphasized that society must tolerate levels of recidivism from citizens but need not be so generous to non-citizens. Also, the legitimacy of the government's concern about flight is reflected in the fact that the event has occurred with some frequency. Id. at 296-297. To the extent that a resident alien has an interest greater than that of an excludable alien, that interest is in the procedural protections honored in making the deportation decision, and that difference disappears once the final decision is made. Id. at 297. For these reasons, the Fifth Circuit concluded that INS could detain deportable aliens subject to the same limitations (good faith efforts to effect deportation, along with reasonable parole and periodic review procedures) as apply to the detention of excludable aliens subject to prolonged detention. Id. The court specifically rejected the conclusions reached by the Western District of Washington. Id. at 297 n. 20. *492 Even more recently, the Tenth Circuit addressed the same issues in Duy Dac Ho v. Greene, 204 F.3d 1045 (10th Cir.2000). The petitioners (two cases were consolidated on appeal) were both natives and citizens of Viet Nam who entered the United States lawfully but were subjected to final orders of removal for having committed aggravated felonies. Id. at 1048. The district court granted petitions under § 2241 after reading the governing statutes as not authorizing continued detention and concluding that continued detention violated the petitioners' substantive due process rights. Id. at 1049-150. For reasons not relevant to this discussion, the Tenth Circuit concluded that it had jurisdiction and that the statutes permitted indefinite detention. Id. at 1050-1057. In addressing the substantive due process argument, the court first noted that it was not bound by a prior opinion in which the constitutional analysis was viewed properly as dicta. Id. at 1057. The court next characterized the asserted right not as a general right to be free of incarceration without a criminal trial, but as a right to be at large in the United States, the very right denied them by the final orders of removal. The rationale was that their petition in effect was a request to be readmitted to the United States. Id. at 1058. Although aliens present in the United States are persons for purposes of the Fifth Amendment, the petitioners' heightened constitutional status was stripped by the final orders of deportation and they stood as applicants for admission, with no greater expectations than first-time applicants. Id. at 1058-1059. Addressing the argument of one petitioner who claimed greater rights as a former lawful resident alien, the Tenth Circuit relied on Zadvydas and found no distinction between former resident aliens and excludable aliens. Id. at 1059. It therefore concluded that the petitioners had no due process right, substantive or procedural, of which they were deprived through the denial of "their application for entry," and the district court's judgment was reversed. Id. at 1060. One judge dissented in Duy Dac Ho, essentially for the reasons recited in Binh Phan. Duy Dac Ho at 1060-1063. The final case to be taken into consideration is Kim Ho Ma v. Reno, 208 F.3d 815 (9th Cir.2000). In that case (an appeal of one of the five lead cases in Binh Phan), the Ninth Circuit concluded that the Immigration and Nationalization Act does not confer authority on INS to detain indefinitely any alien subject to removal whose country of origin will not permit repatriation. We believe that § 1231(a)(6) plainly allows detention where it states that specified aliens "may be detained beyond the removal period..." Moreover, in Chi Thon Ngo (at 394-395), the Third Circuit held that § 1231(a) authorizes indefinite detention of excludable aliens, and the same provision applies to deportable aliens. It follows that the Third Circuit's statutory analysis directly contradicts Kim Ho Ma and the principles discussed therein cannot be said to be the law of this circuit. We therefore address Kim Ho Ma no further. It also should be noted that the Supreme Court has granted petitions for certiorari in Zadvydas and Kim Ho Ma, and has consolidated the cases. Zadvydas v. Underdown, ___ U.S. ____, 121 S.Ct. 297, ____ L.Ed.2d ____ (2000). While further guidance on the issue before us therefore appears forthcoming, we do not defer disposition of the pending matter because we resolve it in favor of INS. That is, we conclude that Michel is subject to continued detention with periodic review. In effect, the status quo is maintained thereby, a result which would not differ if we awaited the Supreme Court's disposition of Zadvydas. We therefore do not do so. (B) Opinions of Other Middle District Judges As noted, in Sombat Map Kay, Judge Rambo concluded that the detention of a deportable alien whose country of origin *493 would not accept him violated his right to substantive due process. Her reasoning essentially parallels that of Binh Phan. She began with a review of the relevant statutes and regulations, as well as general substantive due process principles. Sombat Map Kay at 548-549. She then rejected INS's position that the right at issue was release into the national community, deciding instead that the asserted right was to be free from restraint behind bars. Id. at 549. Because the fundamental right to liberty was at issue, strict scrutiny applies. Id. at 549-550. Examining the interests at issue, Judge Rambo agreed that the government asserted three legitimate regulatory purposes: executing the petitioner's removal, preventing flight before removal, and preventing danger to the community. The latter two derived solely from the first, but still could be considered compelling. Id. at 550. She also recognized the sovereign authority to control the borders through immigration laws, but found the principle inapposite. That is, the petitioner sought to be released from detention pending removal and could not be considered "at the border" in the sense in which the entry fiction normally applies. Id. at 550-551. Also, the plenary power applies to exclusion and deportation of aliens, not to their detention, so that "the government's interests are not at their maximum level, and the government's power is not plenary." Id. at 551 (also citing Binh Phan for the principle that the interests at stake are domestic, not international, matters). While recognizing that the petitioner's conviction was for a serious offense, and that he had admitted other serious acts, Judge Rambo noted that, when the likelihood of deportation is low or nonexistent, the government's primary purpose in detention "is nonsensical, and the other derivative purposes cannot support indefinite detention." Id. She then pointed out that length of detention is an important factor in strict scrutiny analysis. Id. at 551-552. At some point, the length of detention exceeds any regulatory need and becomes merely punitive in nature. Id. at 552. Judge Rambo then concluded the strict scrutiny analysis by pointing out that the petitioner had not committed any acts subjecting him to discipline while detained and had completed several programs. His family had indicated it would provide him with a home and other assistance if released. It appeared, then, that the risk of flight or dangerousness was low, and he had been detained for some two years with little chance of repatriation at any time in the foreseeable future. Judge Rambo therefore concluded that the prolonged detention was excessive. Id. at 552-553. Turning to INS's argument that Chi Thon Ngo was binding, Judge Rambo distinguished the case as limited to excludable aliens, as specified therein. Sombat Map Kay at 553 and n. 9 (citing Chi Thon Ngo at 398 n. 7). She then reviewed authority supporting the proposition that aliens who have been admitted to the country have greater constitutional status than excludable aliens. Once again, that status is premised on the "entry fiction," which has no applicability beyond the stage at which a determination is made concerning admission. Id. at 553-554. Judge Rambo then rejected the holdings of Duy Dac Ho and Zadvydas as essentially expanding the entry fiction to deportable aliens. Also, the court in Zadvydas did not identify the level of analysis (strict scrutiny, rational basis, or some intermediate level) which it was applying. Sombat Map Kay at 554-556. Finally, Judge Rambo found it inappropriate to expand the entry fiction beyond the context for which it was created, i.e. permitting detention of aliens physically present in the country pending a determination of admissibility. Rather, language employed by the Third Circuit in Chi Thon Ngo supported her reasoning by taking length of detention into consideration. Sombat Map Kay at 556-557. She therefore granted the writ of habeas corpus, directing INS to release the petitioner *494 subject to conditions, absent a showing within 90 days that removal was likely in the foreseeable future. Id. at 557. In Cuesta Martinez, Judge Caldwell disagreed with Judge Rambo and followed Zadvydas. After a discussion of the applicable terminology, he turned to INS's contention that Chi Thon Ngo applied, despite the stated limitation on its holding. Judge Caldwell first noted that the petitioner's position was based on Binh Phan and then noted Judge Rambo's reliance thereon, continuing with a summary of the holding in Sombat Map Kay. Cuesta Martinez at 649-650. He also pointed out the contrary holdings in Zadvydas and Duy Dac Ho, and several district court opinions which followed Binh Phan. Cuesta Martinez at 650. Judge Caldwell emphasized that aspect of the reasoning in Zadvydas equating the status of both excludable aliens and aliens subject to a final order of deportation. Of importance is the fact that neither has any further right to remain in the United States, as all that remains is to effectuate repatriation. The interest from a national sovereignty perspective is identical. Cuesta Martinez at 650-651 (quoting Zadvydas at 296). In contrast, the principles underlying Binh Phan are derived from Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), which established the assimilation doctrine discussed above. That doctrine, however, is inapplicable once a final order of removal issues because it applies to the procedural protection afforded a deportable alien, and the alien's ties to this country are severed by the final order. Cuesta Martinez at 651. Judge Caldwell then distinguished another case cited in Sombat Map Kay, Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). That case dealt with an alien paroled into the country who sought discretionary withholding of deportation based on persecution in her home country. The Supreme Court held that the parole did not allow her to assert that right, which was available to deportable aliens. The opinion simply has nothing to say about the rights of deportable aliens whose right to remain has been terminated. Cuesta Martinez at 652. The next issue addressed was the purported failure of the court in Zadvydas to recognize that the law acknowledges an "acquired constitutional status" based on the fact of admission. Cuesta Martinez at 652 (quoting Thien Van Vo v. Greene, 63 F.Supp.2d 1278, 1283 (D.Colo.1999)). Judge Caldwell pointed out that the entry fiction ultimately derives from statutory, not constitutional, authority. The purpose is to determine what immigration proceeding is available to the alien based on his status as deportable or excludable, while constitutional analysis seeks to determine what liberty interest may be asserted. The interest (freedom from confinement) would be the same regardless of the alien's status as deportable or excludable. Judge Caldwell therefore agreed with the analysis of Zadvydas and concluded that the Chi Thon Ngo approach would be appropriate for analyzing the claim before him. Cuesta Martinez at 652. Examining the parole reviews provided to the petitioner, Judge Caldwell concluded that INS was in substantial compliance with the procedure prescribed by the Third Circuit. To the extent it was not, there were good reasons (INS was awaiting a psychological report before providing written notification). The writ of habeas corpus was denied without prejudice to the petitioner's right to bring a future action based on future events. Id. at 652-653. (C) Our Determination Having reviewed these cases, we conclude that Judge Caldwell and the Fifth Circuit have the better of the argument. Rather than merely state as much or reiterate the holdings of the cases consistent with this view, we set forth our reasons for disagreeing with Judge Rambo and the Western District of Washington in some detail. *495 Initially, we have some difficulty with the manner in which Judge Rambo reached her ultimate conclusion which is unrelated to the deportable/excludable distinction. After determining that the petitioner's right to be free from confinement outweighed the government's interest in effecting removal, as well as concluding that the derivative interests in public safety and flight risk failed as a matter of law once the interest in effecting removal was outweighed, Judge Rambo proceeded to examine the individual petitioner's dangerousness and flight risk. Sombat Map Kay at 552. However, once there was a determination that INS cannot detain a deportable alien if removal is not likely, the only questions are whether removal is likely and whether INS in fact is detaining the alien. The reasons for detention already had been found constitutionally inadequate, and any further balancing would be of no consequence. See Cuesta Martinez at 650 ("In these circumstances, the alien's liberty interest in being free from incarceration outweighs as a matter of law the government's interest in detention, even if there is evidence that the alien is a risk to the community, or possibly a flight risk."; citing Sombat Map Kay). Apart from that problem, however, we disagree with the view expressed in Binh Phan and its progeny that the right at issue is the freedom from incarceration. The fact of the matter is that, because no other country will accept the alien, the only place to which the alien may be released is the United States. However, as a result of the final order of removal, there is no right to be at large in the United States. In fact, there is no general right for non-citizens to be at large within the United States, and even the right of citizens to be at large is subject to limitations. See generally Zadvydas at 297 n. 19 (examples of citizens detained for protection of the public). As stated above, an alien's entry into the United States (and therefore the state of being at large within our national community) is a privilege, not a right. Stated differently, to say that there is a right to freedom from incarceration necessarily implies a right to the opposite, i.e. that there is a right to be at large in the community. Since the necessary obverse does not exist for aliens, it is improper and an oversimplification to characterize the right as simply the freedom from incarceration. Rather than finding that failing to distinguish between excludable and deportable aliens after a final order of removal improperly expands the entry fiction, we believe that making this distinction improperly expands the assimilation doctrine. The cases granting heightened constitutional status to aliens once admitted to the United States all refer to the process that is due before a final order of removal may issue. The idea is that an alien who has lived in this country for an extended period of time will have established ties through employment, family, friends, etc., which should not be taken away lightly. INS therefore is required to evaluate the case more carefully and with greater procedural protections than would apply to an alien subject to exclusion, who presumably would not have the ties to the community to the extent a resident alien would have. However, once the order of removal becomes final, the resident alien no longer has a right to participation in our society and the ties which may have been established are no longer a significant consideration. Giving the former resident alien greater substantive rights expands the assimilation doctrine to cases to which it has not applied previously and into a context for which it was not intended. That the assimilation doctrine is not subject to expansion is reflected in Chi Thon Ngo, in which the petitioner had been paroled into the United States in 1982. Presumably, such a person would establish the same sorts of community ties as a person formally admitted, yet he still was considered excludable for purposes of the applicable *496 proceedings, and did not have any heightened constitutional status for purposes of release pending removal. Conversely, we do not see how failing to distinguish between deportable and excludable aliens in this context is necessarily an expansion of the entry fiction at all. Rather, it is an equation of the liberty interest on the part of the two "classes" of aliens. That is, neither has a right to be in the United States and is subject to repatriation at the earliest possible opportunity. The only difference in their circumstances was that the deportable alien was once a resident, and the interest to which that residence gave rise has been honored through greater procedural protections prior to the removal order. Once honored, the interest is extinguished for purposes of any further constitutional analysis, and the difference in circumstances no longer exists. The two are identical for purposes of any further due process analysis. This holding is not an expansion of the entry fiction; it is a limitation on the assimilation doctrine, which (as Judge Caldwell pointed out) had no constitutional basis to begin with, but ultimately derived from immigration law. Another way of viewing this matter is to compare the asserted right to the right to personal liberty enjoyed by citizens. Reduced to its basic form, the holding of the cases finding a deportable/excludable alien distinction for substantive due process purposes is that a deportable alien subject to a final order of removal may not be detained by INS if there is no chance that removal will be effected in the foreseeable future. That is, the alien has an absolute right to parole under these conditions, despite having been afforded all necessary procedural protections before a final determination was made to deport the alien. A citizen charged with a serious criminal offense, however, may be held without bail pending trial despite not having been afforded all of the necessary procedural protections before a final determination of guilt may be made. This conclusion flies in the face of logic. Another way to view this matter is to take an example, albeit an extreme example. Suppose that a resident alien was arrested for an attempt to murder a prostitute, an offense which would render him deportable. While INS has custody, it is discovered that the alien is Jack the Ripper. Great Britain, after determining that its interest in pursuing criminal prosecution is outweighed by the danger of having such a person within its borders, might well decline extradition or repatriation. The logic of Binh Phan and its progeny would lead to a determination that the Ripper has an absolute right to be at large within our borders once his criminal sentence expires, a plainly unacceptable result. While our example tends to the extreme, we use it only to point out there are people, such as aliens subject to a final order of removal, who have no right to be at large in the United States and as to whom the governmental interest in protecting the public outweighs any right against prolonged detention. Viewed from this perspective, the governmental interest cannot be seen as derivative of the interest in effecting the removal. Rather, it is an independent and important interest; actually, one of the (if not the single) most important of governmental interests. In this context, we note our disagreement with Binh Phan and its progeny that the matter is entirely domestic. While a foreign nation's refusal to accept return of its nationals may be said to diminish the international or foreign relations aspect of the matter, the fact remains that the person in detention is an alien, not a citizen, and is subject to removal as soon as possible and with no right to be in the United States. The matter remains one of immigration law and not domestic law, and the plenary power remains in effect. We also disagree with the characterization of detention pending removal as necessarily punitive. In Chi Thon Ngo, the *497 Third Circuit noted that characterizing prolonged detention as anything but punishment would be "puzzling to petitioner, who remained in jail under the same conditions as before the state released him, although his status had technically changed from that of a state inmate to an INS `detainee.'" Id. at 397-398. Referring to the legal fiction that the detained alien is "free," the court added, "It is similarly unrealistic to believe that these INS detainees are not actually being `punished' in some sense for their past conduct." Id. at 398. See also Sombat Map Kay at 550 n. 7 (quoting the latter statement). The problem with relying on this quotation for a finding that detained aliens are being punished is that the "some sense" does not refer to the constitutional sense, or at least in a sense that the Constitution is being violated. That is, it is only when detention no longer satisfies a rational, non-punitive purpose that the detention becomes unconstitutional punishment. Zadvydas at 297 and n. 19. For all of these reasons, we agree with Judge Caldwell, the Fifth Circuit, and the Tenth Circuit that there is no reason to distinguish between deportable and excludable aliens for purposes of detention pending removal. The reasoning of Chi Thon Ngo therefore applies in cases involving deportable aliens subject to a final order of removal. Such aliens may be detained by INS subject to periodic review for parole, including a thorough review of the alien's risk of flight and/or danger to the community. (D) Other Due Process Argument In addition to the deportable/excludable distinction discussed above, Michel argues that an analysis of the sufficiency of the parole review procedure has not been made. Actually, a more thorough argument would be that the procedures fail such a test. Regardless, the Third Circuit undertook such an analysis in Chi Thon Ngo, which is binding on us. The analysis suggested by Michel would be superfluous. Because of the conclusion we reach, we do not examine the effect of the fact that Haiti is simply slow to accept deportees, as opposed to nations which do not accept deportees. That is, Michel's situation is one of a slower process than normal, but there is no basis for a conclusion that removal will not be effected or is highly unlikely to be effected. Since INS is providing periodic review under these circumstances, the distinction is not material. V. REMOVAL PERIOD Michel adds an argument that the magistrate judge misapplied the removal period provision. The statute provides in part: Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the "removal period"). . . . . . The removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(A), (B). In reciting the procedural history of the case, the magistrate judge indicated that the BIA dismissed Michel's appeal on October 27, 1998, rendering the removal order administratively final and establishing January 25, 1999, as the end of the 90-day removal period. However, the Second Circuit issued a stay on February 9, 1999, and vacated the stay when it affirmed the BIA on February 4, 2000. Report and Recommendation at 2. According to Michel, the *498 magistrate judge's later conclusion that he had only recently fallen within the release provisions of § 1231 is incorrect. This argument is based on a premise that there can be only one removal period, and that the magistrate judge was incorrect in reading the statute to allow the removal period to restart after the stay was vacated. Actually, that is the only rational reading of the statute. According to Michel's reading, once the removal order became final and the removal period began, that was the only period of time which could be designated as the removal period. However, the statute provides that the removal period begins on the latest of several dates. The passing of one date does not stop the operation of the statute. In a sense, the only way to apply the statute to a given situation is retrospectively. That is, the removal period begins when the removal order becomes final. If a court issues a stay, the removal period begins when the stay is lifted. Therefore, the only way to determine when the removal period begins, or began, is to look at what events already have occurred. If there is another potential event, there is another potential beginning date for the removal period. The only sensible reading of this provision is that INS is required to effectuate the removal within 90 days of certain events, but will have another 90 days if another one of the designated events occurs at a later date. The obvious reason for this is that INS's authority to effect the removal is suspended due to the occurrence of the later event (such as a stay order). In Michel's case, the magistrate judge correctly determined that the removal period began on February 4, 2000, so that the instant petition is premature. VI. CONCLUSION Based on the foregoing, we conclude that a deportable alien subject to a final order of removal may be detained by INS beyond the 90-day removal period. An alien subject to such detention is entitled to periodic review for purposes of release on conditions as described in Chi Thon Ngo. The time for such review begins on the date that the order becomes administratively final, the date on which any stay ordered by a court is vacated, or the date on which the alien is released from detention or confinement for other than immigration process. The beginning date of the 90-day removal period is not altered by the fact that one of these events may have occurred at an earlier time. An order consistent with this memorandum will issue. ORDER For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT: 1. The report and recommendation (record document no. 18) of the magistrate judge is adopted as the holding of the court, as supplemented hereby. 2. Petitioner Jean Patrick Michel's exceptions (record document no. 19) to the report and recommendation are construed as objections to the report and recommendation under LR 72.3 of the Local Rules for the Middle District of Pennsylvania, and are overruled. 3. Michel's petition (record document no. 1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. 4. The clerk is directed to close the file. NOTES [1] We noted in Jacques that our analysis might be in conflict with that applied in cases decided by the Third Circuit, which in turn we felt were in conflict with Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). However, the Third Circuit precedent was distinguishable, and we therefore were able to resolve Jacques so as to avoid any conflict with Third Circuit decisions. Jacques at 481-482. In DeSousa, the Third Circuit read American-Arab far more narrowly than we did in Jacques. We do not believe that we have any further authority to read American-Arab as we see fit, but must do so in light of DeSousa. See also Liang v. I.N.S., 206 F.3d 308 (3d Cir.2000). [2] Although the governing statutes refer to the authority and duties of the Attorney General, responsibility for immigration matters has been delegated to INS, and so we refer to INS for present purposes. Also, we refer to the codified version of the statutes for ease of reference and reading. [3] In Kim Ho Ma v. Reno, 208 F.3d 815 (9th Cir.2000), the Court of Appeals for the Ninth Circuit conducted a statutory analysis and determined that INS lacks authority to detain an alien beyond the 90-day removal period if the alien cannot be returned to his or her native land due to the absence of a repatriation agreement. Ma was one of the cases consolidated for en banc review in Binh Phan, and has been consolidated with Zadvydas v. Underdown (discussed later in this opinion) for review by the Supreme Court on certiorari. For present purposes, then, Binh Phan has been abrogated and Ma represents the law of the Ninth Circuit. The reasoning of Binh Phan, however, has been adopted by a number of district courts and it remains an important opinion. See Cuesta Martinez at 650 (collecting cases). It is for this reason that we undertake our examination of Binh Phan.

41 So.3d 224 (2010) ODUM v. STATE. No. 2D10-1573. District Court of Appeal of Florida, Second District. July 28, 2010. Decision without published opinion Affirmed.

875 F.2d 862 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 88-1465. United States Court of Appeals, Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and JOHN D. HOLSCHUH, District Judge*. PER CURIAM. 1 The Secretary of Health and Human Services ("Secretary") found that claimant Gloria Cooley ("Cooley") became disabled on May 23, 1984. Cooley appeals the Secretary's determination of her onset date, arguing she is entitled to an earlier date. For the reasons that follow, we affirm the finding of disability, but reverse the district court's determination of Cooley's onset date. I. 2 Cooley applied for disability insurance benefits on March 25, 1982. Her application was denied initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 10, 1984. On November 15, 1984, the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. Cooley then filed for judicial review in the district court. 3 On November 6, 1985, the district court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub.L. No. 98-460). The ALJ conducted two more hearings, on May 19 and July 22, 1986. On January 8, 1987, the ALJ found Cooley disabled by an anxiety-related disorder pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.06, with an onset date of May 23, 1984. He characterized Cooley as suffering from post-traumatic stress disorder, aggravated by personality and anxiety problems. He found that she was never capable of returning to her past relevant work after she was injured in April 1981, but she could do unskilled work between April 1981 and May 23, 1984. The Appeals Council adopted the ALJ's recommendations. 4 Cooley continued to object to the 1984 onset date and reinstated her action for judicial review. Both Cooley and the Secretary moved for summary judgment. The matter was referred to the magistrate, who recommended granting Cooley's motion for summary judgment. The magistrate believed the medical evidence established that Cooley's ability to concentrate became substantially impaired in April 1981. Therefore, the hypothetical question relied upon by the ALJ which assumed she could concentrate did not accurately portray her impairment, and the vocational expert's response to the deficient question was not evidence that Cooley could perform unskilled work between April 1981 and May 1984. 5 The district court rejected the magistrate's recommendation and affirmed the Secretary's decision that Cooley became disabled on May 23, 1984. The district court did not address the magistrate's concerns with the ALJ's hypothetical question. Cooley then filed a timely appeal with this court. 6 Cooley was born April 5, 1946, and was thirty-five years old when she was injured on April 6, 1981, while working as a health instructor at M.L. King High School in Detroit. According to the injury report she filed with the Board of Education, Cooley was monitoring a hallway when she heard a commotion in a girls' restroom. She went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. The students rushed to leave, and Cooley's head and body were squeezed and smashed several times as she became trapped between a brick wall and a door that was repeatedly thrown open by fleeing students. Cooley reported suffering bruises on her face and body. Later, in August 1981, when she underwent the first of numerous physical and neurological examinations, she reported that she lost consciousness during the restroom incident. Cooley's mental and emotional condition deteriorated significantly between April 1981 and May 1984. 7 Cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. She experiences speech, reading and vision difficulties; becomes fatigued and overwhelmed frequently and easily; and has remained severely depressed, withdrawn and is frightened by other people and her inability to think and speak clearly and coherently. Cooley's complaints and symptoms are documented in an extensive medical history. 8 Between June 1981 and May 1983, Cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and a speech therapist. She was hospitalized from May 23, 1984, through June 20, 1984, because of the increasing severity of her impairments and her withdrawal from normal life activities. At admission, she was anxious, easily overwhelmed, depressed and fearful.1 II. A. 9 Our scope of review is limited to the inquiry of whether the Secretary's findings are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing for substantial evidence, we must examine the record taken as a whole. Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 852 (6th Cir.1986). 10 Because the ALJ found that Cooley was never capable of returning to her past relevant work, the burden shifted to the Secretary to show by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary of Health & Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The theoretical ability to engage in some type of work is not enough; the Secretary must make "a finding supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir.1978). "Substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a 'hypothetical question,' but only 'if the question accurately portrays [the claimant's] individual physical and mental impairments.' " Varley, 820 F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984)). B. 11 Cooley asserts the Secretary did not show by substantial evidence that she could perform specific jobs. The pertinent part of the ALJ's opinion provides: 12 While the evidence of record does suggest the existence of a mental impairment going back to 1981, the undersigned finds that, given the minimal clinical findings in the record prior to May of 1984, the claimant's mental impairment, while severe, did not preclude her from performing a full range of unskilled work. While the testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching job at that time and that her mental impairment probably precluded her from using or transferring her vocational skills, there is nothing in the record indicating that the claimant's mental impairment would have impacted upon her ability to perform unskilled work prior to May of 1984. The undersigned further finds that prior to May 1984, the claimant could have performed those unskilled ... jobs identified by the vocational expert, and that these jobs existed in significant numbers in the local economy. 13 J.A. at 232-33 (emphasis supplied). 14 Striking in the above passage is the ALJ's declaration that "there is nothing in this record indicating" that Cooley could not perform unskilled work prior to May 1984. This statement reflects a mistaken view of the case. As Buress and Varley make clear, the focus is not on what is absent from the record, but what evidence is in the record to prove that Cooley had the vocational qualifications to perform specific jobs. 15 The Secretary's proof of Cooley's residual functional capacity consisted of the testimony of vocational expert Michael Rosko, to whom the ALJ posed two hypothetical questions. The first question satisfies the Varley standard of accuracy, as the ALJ asked Rosko to consider a hypothetical forty-year-old woman who suffered through Cooley's undisputed physical and mental impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self-esteem, nightmares, fear of teenagers, fear of telephone calls, frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustrated and overwhelmed, and severely impaired concentration. Assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and that the impairment of her concentration "would probably preclude all jobs--skilled and unskilled for this hypothetical person." 16 Cooley attacks the second hypothetical question, in which the vocational expert was asked to assume the same impairments as above, except the woman's impairments did not substantially interfere with her concentration. He testified this second hypothetical woman could not return to her past relevant work, but "there would be some unskilled jobs that generally fall within the parameters of this hypothetical question." He testified there were approximately 20,000 strictly sedentary, unskilled jobs in the Detroit metropolitan area which she could perform, but if she tired easily and needed to lie down, she could not perform these jobs. 17 Cooley argues the second question is deficient because there is no evidence in the record that her concentration was intact between April 1981 and May 1984. She criticizes the question as failing to portray her individual physical and mental impairments accurately as required by Varley, and asserts it cannot serve as substantial evidence. We agree. A review of the medical evidence in this case indicates that from the beginning of the record, one of the most frequently discussed and documented of Cooley's impairments is her inability to concentrate, her inability to remember, her inability to focus sufficiently to utter complete sentences without needing to stop and reflect midway through. 18 We find other defects in the second hypothetical question as well. For example, the vocational expert assumed the hypothetical woman's continual and severe headaches were controlled by medication. But there is no evidence that Cooley's headaches have ever been controlled or relieved. Similarly, the vocational expert testified that the hypothetical woman could not perform unskilled jobs if she tired easily and needed to lie down during the day. It is undisputed that Cooley is easily overwhelmed, both mentally and physically, and must lie down often because of fatigue. 19 In our analysis it may appear that we are weighing evidence or resolving conflicts therein, which would be outside our scope of review. But the Varley inquiry of whether the Secretary produced substantial evidence that Cooley had retained the qualifications to perform specific jobs demands evaluation of the second hypothetical question, its failure to accurately portray Cooley's physical and mental impairments, and the resulting deficiency in the Secretary's evidence. The hypothetical questions the Secretary relies upon for substantial evidence must adhere to the claimant's actual mental and physical impairments; in this case, the second hypothetical question did not.2 III. 20 For the foregoing reasons, the judgment of the district court is REVERSED, and this case is REMANDED with the instruction that Cooley's onset date of disability be fixed at April 6, 1981. * Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by designation 1 The deterioration of Cooley's mental abilities is also documented. In November 1981, she scored in the normal range of intellectual ability, with a full-scale IQ of 95, a performance IQ of 86, and a verbal IQ of 103. By September 1984, her intellectual abilities had declined to the below average range, with a full-scale IQ of 87, a performance IQ of 80, and a verbal IQ of 95. By February 1986, Cooley's intellectual abilities had deteriorated to the point where she could score only in the borderline range on intelligence tests, with a full-scale IQ of 72, a performance IQ of 67, and a verbal IQ of 78 2 Because we find the Secretary's decision lacked substantial evidence, we need not address Cooley's alternate argument that she was rendered disabled by an organic brain disorder rather than an anxiety-related disability

476 F.Supp. 974 (1979) Shirley A. ONLEY v. Detective Herman W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o National Central Bank and National Central Bank. Civ. A. No. 79-1304. United States District Court, E. D. Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, Philadelphia, Pa., for plaintiff. *975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa., J. K. Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN, District Judge. Disappearance of cash which plaintiff, an employee of defendants Penn Dairies, Inc. and Penn Supreme (Penn), claimed to have deposited on behalf of her employer with defendant National Central Bank (Bank), July 10, 1978, led to an investigation which culminated in plaintiff's arrest two months later. Plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County dropped the charges shortly before the Bank discovered the missing deposits stuck in the night depository in January 1979. Plaintiff then commenced this action alleging violations of the Fourth, Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C. § 1983.[1] Defendants, who now move to dismiss the complaint, include Penn, the Bank, two Penn employees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster. Specifically, plaintiff charges that the Penn and Bank employees acted under color of state law and conspired to deprive her of constitutional rights by maliciously making misleading and false statements to Detective Simms "when they knew or in the exercise of reasonable investigation and care would have known (that the accusations) would result in the arrest and prosecution of the plaintiff" for violation of 18 Pa.Cons.Stat. Ann. § 3927(a)(Purdon).[2] On September 15, 1978, relying in part on statements made by the Penn and Bank employees, Simms executed a complaint before a Lancaster County Justice of the Peace, who determined that probable cause existed to believe that plaintiff committed the theft. With the warrant that issued upon the complaint Simms arrested plaintiff, who now alleges that the criminal proceedings were "instituted and continued against the plaintiff ... wholly without ... probable cause" and thus violative of the Fourth Amendment. The instant situation is therefore unlike Baker v. McCollan, ___ U.S. ___, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), in which the respondent did not attack the validity of the warrant under which he was arrested. In fact in Baker the respondent's 1983 claim was based on a sheriff's actions after, not before, arrest.[3]Id. at ___, 99 S.Ct. 2689. In the case at bar plaintiff does attack the validity of the arrest warrant. Arrest without probable cause is a constitutional violation. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). The issue therefore arises whether an allegation of simple negligence states a claim for relief under § 1983; more specifically, whether Detective Simms is liable under § 1983 if he negligently caused plaintiff to be arrested upon less than probable cause. *976 Although the Supreme Court has expressly reserved deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), it has opined that the appropriate answer is "more elusive than it appears at first blush" and "may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2692. See also Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the court held that a specific intent to violate a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were intended to violate a person's civil rights was necessary for a § 1983 action to lie. Neither the Fourth nor Fourteenth Amendments guarantees that only the guilty will be arrested. And the Due Process Clause specifically does not mandate that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2695, quoting Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). A fortiori, due process does not require exhaustion of every conceivable precaution to avert arresting an innocent person. Many courts agree that simple negligence may not form the predicate of a § 1983 claim. Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973) ("mere negligence, in the absence of conduct which shocks the conscious, in giving or failing to supply medical treatment to prisoners will not suffice"); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974) ("an isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequence of his conduct"); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972) (mere negligence by a state prison doctor does not support a claim of denial of federal constitutional rights); Patzig v. O'Neil, 577 F.2d at 848 ("police personnel may have acted negligently, perhaps even callously; but such actions do not amount to the `intentional conduct characterizing a constitutional infringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish a constitutional violation, the indifference must be deliberate and the actions intentional"); Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972) (plaintiff must adduce proof of either "wrongful intention or culpable negligence"); Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976) (en banc) (a jailer whose errors in a record-keeping system fall outside of his realm of responsibility cannot be found liable if he has acted reasonably and in good faith); Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972) (more than an isolated incident of negligence must be alleged); Jamison v. McCurrie, 565 F.2d 483, 486 (7th Cir. 1977) ("there is no constitutional cause of action for mere negligence on the part of police officers . . .. Plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights"); McDonald v. Illinois, 557 F.2d 596, 601 (7th Cir. 1977) ("for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of . . . defendants"); Brown v. United States, 486 F.2d 284, 287 (8th Cir. 1973) ("we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983"). Cf. Procunier v. Navarette, 434 U.S. at 568, 98 S.Ct. at 863 ("one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983") (Burger, C. J., dissenting). See also Stringer v. Chicago, 464 F.Supp. 887, 890 (N.D. Ill. 1979), Croswell v. O'Hara, 443 F.Supp. 895, 898 (E.D. Pa. 1978), Schweiker v. Gordon, 442 F.Supp. 1134, 1138 (E.D. Pa. 1977), and Jones v. McElroy, 429 F.Supp. 848, 863 (E.D. Pa. 1977).[4] *977 To distill from these disquisitions the appropriate standard by which to evaluate plaintiff's claims is no simple matter. Nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff's rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. See also Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), Reese v. Nelson, 598 F.2d 822, 827 (3d Cir. 1979), and Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. 1978) and compare with Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ("It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances coupled with good-faith belief that afford a basis for qualified immunity of executive officers for acts performed in the course of official conduct"). Assuming the truth of plaintiff's allegation that Simms was negligent in determining probable cause, Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), United States v. New Wrinkle, Inc., 342 U.S. 371, 72 S.Ct. 350, 96 L.Ed. 417 (1952), under the above described standard Simms' negligence did not rise to a level actionable under § 1983. Plaintiff concedes that Detective Simms relied only in part on his conversations with the Penn and Bank employees, logical and potentially knowledgeable people for Simms to question. Independent investigation may have corroborated their information. Absent knowledge of a history of antipathy between these employees and plaintiff or some other indicia to alert Simms to suspect the employees' credibility and to make detailed inquiry, Simms acted reasonably. Prior to arresting plaintiff Detective Simms submitted his findings to the scrutiny of a neutral judicial officer who agreed that probable cause existed. This is not a situation, therefore, where a police officer made a warrantless arrest upon his own sole evaluation of probable cause. An evil intent, recklessness or deliberate indifference to the consequences of his actions is not discernible. To hold that Simms' failure to ascertain that the Penn and Bank employees' information may have been the product of malice constituting reckless negligence sufficient to give rise to a § 1983 claim would impose herculean obligations on law enforcement officers. Such possibilities inhere in any situation in which private citizens provide information to an investigating officer. Unless the motivation for providing false or misleading information is readily apparent, a law enforcement officer cannot investigate or attempt to pierce the asserted for the actual motive behind every statement provided to him. Otherwise a police officer could never conclude that he had probable cause. Defendant City of Lancaster is also not liable for Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular . . . a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. (emphasis in the original) Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Nor are the other defendants liable; without Simms there is no "color of state law". For private persons to be liable under § 1983 they must be "jointly engaged with state officials in the prohibited action". Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 *978 S.Ct. 1598, 1605-06, 26 L.Ed.2d 142 (1970). Defendants' motions to dismiss will be granted. NOTES [1] Plaintiff invokes jurisdiction of this Court pursuant to 28 U.S.C. § 1343(3). [2] This statute makes (a) person who obtains property upon agreement or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount ... if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition guilty of theft. Plaintiff also appends state claims for libel, slander, false arrest, false imprisonment, malicious prosecution and negligence at law and seeks attorney's fees under 42 U.S.C. § 1988. [3] Respondent had been taken into custody by Dallas, Texas, police and detained for three days after running a red light. Police records had indicated that he was wanted in Potter County on another charge. Actually, the Potter County offense had been committed by respondent's brother, who had masqueraded as respondent. Claiming that the Potter County sheriff was negligent in failing to investigate and learn of the mistaken identity, respondent brought this action under § 1983. The Supreme Court held that "(w)hatever claims this situation might (give) rise to under state tort law . . . it gives rise to no claim under the United States Constitution" and therefore none under § 1983. Id. at ___, 99 S.Ct. at 2694. Respondent, however, made no claim that the arrest was constitutionally deficient. [4] There is contrary authority within this district, Norton v. McKeon, 444 F.Supp. 384 (E.D. Pa. 1977) and Culp v. Devlin, 437 F.Supp. 20 (E.D. Pa. 1977), but the "naked possibility" of a § 1983 claim based on simple negligence cannot be adduced as "powerful argument for its realization". C. Karnow, Saul Bryer, The Bushnell Lectures, 1976-1977 (unpub. ms.) at 50.

358 F.2d 1002 Martha W. BROWN, Individually and as Agent and Attorney for William D. Brown, III, Grady W. Brown, Philip B. Brown and Martha Brown Wilsonv.The UNITED STATES. No. 141-65. United States Court of Claims. April 15, 1966. William D. Brown, Monroe, La., attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, Monroe, La., of counsel. Edward L. Metzler, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM:* 1 According to the petition, which was filed on April 30, 1965, the plaintiffs are the widow and surviving children of William Dennis Brown, Jr., and, as such, they are the owners through inheritance of farmlands situated in East Carroll Parish, Louisiana. The lands in question are suitable for the production of rice; and prior to and during the crop year 1958, such lands received a rice acreage allotment of 307.5 acres in accordance with the provisions of the Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during the early part of that year, provided (among other things) for the establishment by the Secretary of Agriculture, on a calendar year basis, of a national acreage allotment for rice (7 U.S.C. § 1352 (1952)), for the apportionment of the national acreage allotment among the several rice-producing States (7 U.S.C. § 1353(a) (1952)), and for the allocation of each State acreage allotment "to farms owned or operated by persons who have produced rice in the State in any one of the five calendar years immediately preceding the year for which such apportionment is made on the basis of past production of rice in the State by the producer on the farm taking into consideration the acreage allotments previously established in the State for such owners or operators; abnormal conditions affecting acreage; land, labor, and equipment available for the production of rice; crop rotation practices; and the soil and other physical factors affecting the production of rice * * *" (7 U.S.C. § 1353(b) (1952, Supp. V)). 2 On June 4, 1958, the provision of the Agricultural Adjustment Act of 1938, as amended, relating to the allocation of each State acreage allotment for rice at the farm level was further amended by Public Law 85-443 (72 Stat. 177). The petition alleges that, by virtue of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs' lands are located were changed from the "farm" basis to the "producer" basis, and that the rice acreage allotment of 307.5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 and subsequent years, with the result that the plaintiffs were allocated only 79.9 acres for the production of rice in 1959 and subsequent years, the remaining 227.6 acres of the original 307.5-acre allotment being allocated to tenants who had theretofore participated in the gross proceeds of the rice produced from the plaintiffs' lands. This action, according to the petition, amounted to a taking of the plaintiffs' property for public use without just compensation, in violation of the Fifth Amendment to the Constitution of the United States; and the plaintiffs seek to recover $68,280 as compensation in the present action. 3 The petition forthrightly states that the "Plaintiffs have also instituted suit before the United States District Court for the Western District of Louisiana, Monroe Division, seeking further redress and adjudication in connection with the circumstances here set forth * * *." 4 The defendant filed a motion to dismiss the petition in this court, on the ground that the Court of Claims lacks jurisdiction of the case because of 28 U.S.C. § 1500 (1964), which declares that: 5 The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 6 A copy of the complaint filed by the plaintiffs in the United States District Court for the Western District of Louisiana was attached to the defendant's motion to dismiss. The complaint in the District Court case was filed on April 29, 1965, or the day before the plaintiffs filed their petition in the Court of Claims case. 7 The defendants in the District Court case were the United States, the Louisiana Agricultural Stabilization and Conservation Committee, and the East Carroll Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the Agricultural Adjustment Act of 1938, as amended, in the State of Louisiana and in East Carroll Parish. The operative facts alleged in the District Court case are the same as the facts alleged in the petition in this court. However, in the District Court case, the plaintiffs asserted alternatively (1) that the administrative officials misconstrued and misapplied the amendment of June 4, 1958, in depriving the plaintiffs of 227.6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous rice acreage allotment; or (2) that if the amendment of June 4, 1958, has been properly construed and applied by the administrative officials, then the provisions of the amendment, as so construed and applied, have deprived the plaintiffs of their property without just compensation, in violation of the Fifth Amendment to the Constitution of the United States. In either event (according to the plaintiffs' allegations in the District Court case), they have been wrongfully deprived of 227.6 acres of their rice acreage allotment for 5 years, and they are entitled to recover compensation at the rate of $6,828 per year for each of the 5 years. The plaintiffs further said in the District Court case that they are asserting a separate claim for each year (doubtless having in mind the $10,000 limitation imposed by 28 U.S.C. § 1346(a) (2) (1964) on the jurisdiction of District Courts with respect to suits against the United States). 8 On October 1, 1965, this court, noting that "plaintiffs have previously filed suit in the U.S. District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim remains pending in the said District Court" [emphasis added], dismissed the petition, without prejudice, on the basis of 28 U.S.C. § 1500, supra. 9 Plaintiffs moved for rehearing (in October 1965) on the ground that, in the District Court, the Government had moved to dismiss the alternative claim for just compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1965, had sustained the Government's motion and had dismissed on jurisdictional grounds the plaintiffs' claim for compensation. This court has ascertained that no appeal has been taken from that ruling and that the period for appeal has now expired. At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs' petition in this court. 10 In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant's motion to dismiss. Our earlier order of dismissal was predicated on the fact that the other "claim remains pending in the said District Court." That is no longer true, and the claim is no longer "pending in any other court." In this situation, we do not believe that 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation. The District Court has decided that this claim is beyond its jurisdiction and plaintiffs have acquiesced in that ruling. Unless they can proceed in this court they will be unable to attempt to obtain a determination of the merits of this monetary claim. Section 1500 was designed to require an election between two forums both of which could presumably grant the same type of relief. See Casman v. United States, 135 Ct.Cl. 647 (1956); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 945 ff., 170 Ct.Cl. 389, 393 ff. (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). But Section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal which is without jurisdiction. Once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute for dismissal of the claim pending here. The plaintiffs could undoubtedly file a new petition, without any bar through Section 1500; it does not seem fair or make sense to insist that that must be done — with the limitations difficulties it may well entail. Tecon Engineers, Inc., supra, teaches that the section should be given a reasonable and just construction, not a doctrinaire or purely technical one. In that light, plaintiffs should now be able to proceed in this court. 11 Our prior holdings do not call for any different result. In British American Tobacco Co. v. United States, 89 Ct.Cl. 438, 441 (1939), cert. denied, 310 U.S. 627, 60 S.Ct. 974, 84 L.Ed. 1398 (1940), the other suit could and did proceed on the merits; in fact, this court emphasized several times that the determination of the other court was on the merits. In Wessel, Duval & Co. v. United States, 124 F.Supp. 636, 637-638, 129 Ct.Cl. 464, 466 (1954), the district court suit was still pending and there was no reason at all to believe that that tribunal lacked jurisdiction.1 In those circumstances this court refused to defer action pending the outcome of the suit in the district court but applied 28 U.S.C. § 1500 to dismiss the Court of Claims suit at once. In Los Angeles Shipbuilding & Drydock Corp. v. United States, 152 F.Supp. 236, 138 Ct.Cl. 648 (1957), the district court plainly had jurisdiction of the claim and this court held that the plaintiff had elected that tribunal as the desired forum over the Court of Claims. National Cored Forgings Co. v. United States, 132 F.Supp. 454, 132 Ct.Cl. 11 (1955), also involved another pending suit clearly within the jurisdiction of the district court in which it was brought. All of these cases, and the others involving Section 1500, were quite different from this case in its present posture. 12 Plaintiffs' motions for rehearing are granted, the dismissal without prejudice of plaintiffs' petition ordered on October 1, 1965, is vacated and set aside, defendant's motion to dismiss the petition is denied, and the case is returned to the trial commissioner for further proceedings. Notes: * The court has borrowed substantially from an opinion by Trial Commissioner Mastin G. White at an earlier stage of the case 1 This court held expressly that the district court had exclusive jurisdiction

698 F.2d 1221 Moorev.Union Mut. Life Ins. Co. 80-1633 UNITED STATES COURT OF APPEALS Sixth Circuit 2/5/82 1 E.D.Mich. AFFIRMED

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas GRANT, Defendant-Appellant. Nos. 99-12052, 99-13303. United States Court of Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court for the Middle District of Florida. (Nos. 98-00198-CR-T-26C and 93-00083-CR-T-26B), William J. Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO*, District Judge. CARNES, Circuit Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, use of a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to convict him on the failure to appear and the conspiracy charges; and whether statements of an alleged co-conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions "yes." The affirmative answer to the third one requires that we reverse Grant's conviction on the conspiracy and use of a firearm charges. I. BACKGROUND A. FACTS In early 1993, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson and discussed Wilson's plan to have Mozas smuggle 2000 pounds of marijuana from Jamaica into the United States, which Wilson would then sell. Jamaican police seized the marijuana which was to be smuggled in, however, so the transaction was not consummated. Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, for which he would be paid 18,000 pounds of marijuana. Wilson agreed to market that marijuana * Honorable Anthony A. Alaimo, U.S. District Judge for the Southern District of Georgia, sitting by designation. for Mozas. Upon inspection, Wilson deemed the marijuana to be of poor quality, but set out to market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine, and Wilson agreed to assist in selling it. Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine from Mozas, Wilson advised Mozas that $100,000 had been transferred into Wilson's bank account and that the funds would be available the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier's check for $100,000. Mozas and Wilson then returned to the undercover residence. Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed leaving the restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where Wilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant. Wilson arrived at the undercover residence carrying a bundle underneath his shirt. The agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, or $150,000 total. Wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $50,000 in United States currency. Mozas then instructed Detective Michael Joyner to bring the cocaine to the residence. Joyner brought the cocaine and Wilson showed him the $100,000 cashier's check and $50,000 cash. Wilson told Mozas that Grant was in Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put down $15,000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming "police, police, police." Within one minute of being informed that Wilson had been arrested, the undercover agents observing the Pathfinder saw Grant and his brother quickly run from the restaurant and depart in the Pathfinder. Grant drove slowly by the location where Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $11,208. After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, however, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $16,000 in cash. Grant had a passport bearing his photograph and name which documented that he had left Jamaica on March 18, 1993. Grant admitted to Aston that he had been speaking to Wilson on the telephone before Grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in Wilson's transaction anymore and had decided to leave. Grant was released on bond on March 26, 1993. Four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show cause hearing for revocation of Grant's bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4, 1993, the clerk's office sent notice of that scheduled hearing to Grant. After Grant failed to appear for the show cause hearing, a warrant was issued for his arrest. On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses—both bearing his photograph, but one in his name and one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the United States. He explained to the detective that the fugitive warrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs agents and that he failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge. B. PROCEDURAL HISTORY A superseding indictment was returned on March 19, 1998 charging Grant with one count of conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was convicted by a jury on both counts on May 19, 1998. On May 14, 1998 Grant was indicted for failing to appear at the May 17, 1993 show cause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant was convicted of that charge on October 7, 1998. At a consolidated sentencing hearing on June 18, 1999, Grant was sentenced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. Grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Grant appeals his convictions on several grounds. Among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from Wilson at trial was improperly excluded, in violation of Federal Rule of Evidence 806.1 II. DISCUSSION A. THE JURISDICTIONAL QUESTION As a threshold matter, we must decide whether Grant's appeal of the conspiracy and firearms charges is timely. After Grant's consolidated sentencing hearing, the district court entered one judgment as to both cases. The judgment bore the district court case numbers for the conspiracy and firearms charges (93-83-CR- T-26B) and for the failure to appear charges (98-198-CR-T-26C). The judgment was entered on June 24, 1999 as to case number 98-198-CR-T-26C, and on June 28, 1999 as to case number 93-83-CR-T-26B. On June 28, 1999, Grant filed a notice of appeal which stated that he was appealing "the Judgment and Committment [sic] entered in this action on June 18, 1999."2 The notice of appeal, however, bore only one case number, 98-198-CR-T-26C (the failure to appear case). On August 31, 1999, Grant filed a second notice of appeal bearing case number 93-83-CR-T-26B (the 1993 drug case), along with a "motion to submit an out-of-time appeal," which indicated that case number 93-83-CR-T-26B had been inadvertently omitted from the first notice of appeal due to a clerical error. On October 1, 1999, the district court granted the motion to file out of time. "The timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate 1 Because of our holding on this issue, we need not decide the other issues Grant raises in his appeal, including Brady violations and an Apprendi challenge to his sentencing. 2 Although the district court judge signed the judgment on June 22, 1999, the judgment states that the date of imposition of sentence is June 18, 1999, which was the date that the sentence was orally pronounced. Cf. United States v. Morrison, 204 F.3d 1091, 1093-94 (11th Cir.2000) ("imposition of sentence" in Federal Rule of Criminal Procedure 35(c) means the oral pronouncement of it, not the time the written judgment is entered). jurisdiction." United States v. Ward, 696 F.2d 1315, 1317 (11th Cir.1983) (citations omitted). Pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant in a criminal case must file a notice of appeal within 10 days after the entry of the judgment. Grant's second notice of appeal, regarding the 1993 drug case, was not filed within this 10 day window. Rule 4(b) authorizes a 30 day extension upon a finding by the district court that the failure to file within the original period resulted from "excusable neglect." Fed. R.App. P. 4(b)(4). Grant's second notice of appeal, however, was filed on August 31, 1999, more than 30 days late, and therefore does not fall within the Rule 4(b)(4) window, either. Nonetheless, Federal Rule of Appellate Procedure 3(c)(4) provides that "[a]n appeal must not be dismissed for informality of form or title of the notice of appeal." The advisory committee notes to that Rule state that "so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with." Fed. R.App. P. 3 advisory committee note. Further, "the [R]ule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal." Id.; see also Smith v. Barry, 502 U.S. 244, 248-49, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992) ("If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal."). Although Grant's first notice of appeal only references case number 98-198-CR-T-26C, it also states that he appeals "from the Judgment and Committment [sic] entered in this action on June 18, 1999." As we have mentioned, a consolidated sentencing hearing on both cases was held in the district court, and there was only one judgment and commitment order entered for both cases. That leads us to conclude that a timely notice of appeal was filed from the single judgment and commitment order, even though that notice of appeal mentioned only one of the two case numbers. We hold that Grant's first notice of appeal indicates an intent to appeal both cases and that we do have jurisdiction. See Cobb v. Lewis, 488 F.2d 41, 44 (5th Cir.1974) ("Courts of appeals have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal."), abrogated on other grounds, Kotam Elects., Inc. v. JBL Consumer Prods., Inc., 93 F.3d 724 (11th Cir.1996). B. SUFFICIENCY OF EVIDENCE TO CONVICT ON THE FAILURE TO APPEAR CHARGE Grant argues that there was insufficient evidence to support his conviction for failure to appear in violation of 18 U.S.C. § 3146(a)(1), because there was no direct evidence that he received notice of the May 17, 1993 hearing on the order to show cause. He suggests that we conduct a de novo review of the evidence. We cannot try the case de novo but instead must sustain the verdict if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). In deciding whether there was, we view the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences and credibility choices. Id.; United States v. Middleton, 690 F.2d 820, 827 (11th Cir.1982). The evidence shows without dispute that the clerk's office sent Grant notice of a hearing on an order to show cause concerning modification or revocation of his bond, which was scheduled for May 17, 1993, and that Grant did not appear at that hearing. He was arrested almost five years later, and at the time of his arrest he was using an alias. He also told the arresting detective that he had skipped bond and fled the country in order to avoid prosecution. He admitted to the detective that he knew there was a warrant issued for his arrest and said that he had been using a false name to avoid arrest. He specifically said that he had failed to appear in court. That is more than sufficient evidence to support the conviction. C. SUFFICIENCY OF THE EVIDENCE TO CONVICT ON THE CONSPIRACY CHARGE Next, Grant contends that there was insufficient evidence to establish that he knowingly agreed to join or participate in a conspiracy with Wilson to possess and distribute cocaine and marijuana.3 He argues that his presence and association with Wilson, coupled with evidence of flight, is insufficient to sustain his conspiracy conviction. In order to establish the existence of a drug conspiracy between Grant and Wilson, the government must prove that there was an agreement between the two of them to violate the narcotics laws. See United States v. Farris, 77 F.3d 391, 394 (11th Cir.1996); United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.1983). The existence of a conspiracy can be established by either direct evidence or circumstantial evidence, such as inferences drawn from conduct. Farris, 77 F.3d at 394; Blasco, 702 F.2d 1330. The evidence supporting Grant's involvement in the conspiracy, viewed in the light most favorable to the conviction, is as follows. Grant traveled from Jamaica to Florida on March 18, 1993, the same day that Wilson traveled from Jamaica to Florida to conduct the cocaine transaction and one day before the transaction occurred. Grant then met Wilson at a bank, they left the bank together, and they drove by the residence where 3 Grant does not challenge the sufficiency of the evidence to support his conviction on the firearms charge. the cocaine transaction was to occur. Grant and Wilson then went to a restaurant, and after a short while Grant drove Wilson, who now possessed $50,000 in currency, to the residence of the undercover agent. At that residence, Wilson took delivery of one kilogram of cocaine and left after telling the agent that he was going to deliver the cocaine to the buyer. At the time of Wilson's arrest, almost immediately after his departure from the residence, he was on the telephone with Grant. Following his arrest, Grant admitted to the agent that while he was in Jamaica he had been contacted by Wilson to come to the United States to participate in a marijuana transaction. Grant was arrested after a high-speed flight from the area following Wilson's arrest, and there were loaded weapons and a large amount of cash in the vehicle. Grant later fled the country in order to avoid prosecution. Based on this evidence, a reasonable jury could find beyond a reasonable doubt, as the jury in this case did, that Grant was guilty of conspiracy to possess with intent to distribute cocaine and marijuana. See Farris, 77 F.3d at 394-95. D. THE RULE 806 ISSUE At trial, the government used as evidence against Grant statements that had been made by co-conspirator Wilson during the course of the conspiracy. Those statements were admitted under Federal Rule of Evidence 801(d)(2)(E), which allows co-conspirator statements to be admitted as substantive evidence against a defendant. Agent Mozas testified extensively regarding statements Wilson had made to him during the course of the conspiracy while Mozas was acting undercover. Those statements involved: (1) Wilson's plans to import marijuana into the United States; (2) Wilson's claims that he had a partner in Jamaica who was his neighbor; (3) Wilson's comments that he had buyers who would assist him in distributing marijuana and cocaine; and (4) Wilson's intent, after purchasing one kilogram of cocaine from the undercover agent, to take the cocaine to his partner for testing and evaluation. The statements of Wilson that Mozas testified about on direct examination did not directly mention Grant, but on cross-examination when asked whether Grant was ever present during any of the transactions between the undercover agents and Wilson, Mozas testified that Wilson had told him Grant was in Homosassa Springs and did not want to meet with anyone. Grant attempted to impeach the Wilson conspiracy statements that had been put into evidence through Mozas' testimony by introducing an affidavit which an attorney for Grant had obtained from Wilson in Jamaica. The affidavit was executed after the conspiracy ended and following Wilson's deportation to that country. The affidavit contained Wilson's sworn statements: that Grant had no knowledge of Wilson's actions in consummating the drug deal with the agents; that Wilson had falsely told the undercover agents he had a partner because Wilson did not want them to think he was acting alone; that Wilson had asked Grant to meet him in Tampa to loan him money; that none of the $50,000 in cash Wilson possessed came from Grant; and that Wilson had lied to the undercover agents about Grant not wanting to meet with anyone because Wilson was carrying a large amount of cash and wanted the undercover agents (whom he believed to be criminals) to think he had a partner. The district court refused to admit any of Wilson's affidavit statements, however, finding that they were not inconsistent, as required by Rule 806, with the statements of Wilson admitted through Mozas' testimony. Federal Rule of Evidence 806 provides, in relevant part: When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. Fed.R.Evid. 806. The government's principal argument mirrors the district court's reasoning that none of the statements in Wilson's affidavit are inconsistent with or contradictory to Wilson's conspiracy statements which were admitted through Mozas' testimony. The government points out that none of Wilson's conspiracy statements which were admitted at trial specifically identify Grant as Wilson's partner or as the source of any money used in the transaction. The only testimony that specifically identifies Grant, which was that Wilson had told the agents Grant was in Homosassa Springs and did not want to meet anyone, was elicited by Grant on cross-examination of Wilson and was not, the government contends, contradicted by anything in Wilson's affidavit. The government's conception of inconsistency is too narrow. Although Grant was specifically identified by Mozas only during cross-examination, his testimony in its entirety did circumstantially link Grant to the conspiracy. At the very least, it indicated that Wilson had a co-conspirator. The government attempted to avoid Rule 806 by carefully ensuring that Mozas, in testifying about Wilson's statements during the conspiracy, never specifically identified Grant as Wilson's co-conspirator, at least on direct examination, and then presenting other evidence indicating that Grant was Wilson's co-conspirator.4 Wilson's statements in the proffered affidavit, however, indicate that he had no co-conspirator and, further, that Grant had no involvement in Wilson's drug transactions. The Rule 806 test is not whether the inconsistent statements relate to the identity of co-conspirators; that's not what the Rule says. Instead, it says that "any" evidence is admissible "which would be admissible ... if [the] declarant had testified as a witness" from the stand. Fed.R.Evid. 806. If Wilson had been called as a witness and testified, for example, that he was taking the cocaine he was buying to his partner to test and evaluate it, his affidavit statements indicating that he had lied to the agents when he told them he had a partner would surely be admissible. Likewise, if Wilson had testified and during cross-examination had said that Grant did not want to meet with anyone, his affidavit statement that he had lied about that would be admissible to impeach him. The test is whether the out-of-court statements would have been admissible for impeachment purposes had the co-conspirator statements been delivered from the witness stand by the co-conspirator himself, not as hearsay about what he said during the conspiracy but as contemporaneous in-court statements. The government's position in this case echos its unsuccessful argument in United States v. Wali, 860 F.2d 588 (3d Cir.1988), which involved a remarkably similar Rule 806 issue. That case involved Abdul Wali's conviction on charges of conspiracy to import Schedule I controlled substances in violation of 21 U.S.C. §§ 846 & 963. Wali, 860 F.2d at 589. An undercover DEA agent testified at Wali's trial as to statements made during the conspiracy by a drug kingpin, Stanley Karl Esser, which implicated a person named "Hadji" as the source of narcotics. Id. The district court, however, denied Wali's attempt to impeach Esser's credibility by admitting inconsistent statements Esser had made to the undercover DEA Agent and to Dutch authorities which exonerated Wali. Id. at 589-90. On appeal, the government argued that Esser's exculpatory statements were not inconsistent and therefore not admissible pursuant to Rule 806, because in his inculpatory co-conspirator statements "Esser 4 That other evidence included the fact that Grant traveled from Jamaica to Florida on the same day that Wilson did, met Wilson at a bank and left with him, and they drove by the undercover residence together. Grant and Wilson also went to a restaurant together, before Grant drove Wilson, who possessed $50,000 in cash, to the undercover residence. At the time of his arrest, Wilson was on the telephone with Grant, and Grant admitted that while he was in Jamaica Wilson had contacted him to come to the United States to participate in a marijuana transaction. Grant was also arrested after a high-speed flight shortly after Wilson's arrest in a vehicle containing two firearms and a large amount of cash. Grant later fled the country to avoid prosecution. never stated that Abdul Wali was either the source of his narcotics or the 'Hadji' who supplied him." Id. at 591. The government claimed that Wali's identity as the "Hadji" who supplied the narcotics was established only circumstantially through evidence other than the co-conspirator statements. Id. The Third Circuit rejected that argument, holding that although Esser's co-conspirator statements never specifically identified Wali as the "Hadji" who was the source of his narcotics, the government had used those statements to prove the existence of a conspiracy to import drugs, thereby inculpating Wali. Id. The Third Circuit's analysis in Wali is sound and fits snugly onto our facts. The government used Wilson's co-conspirator statements to help establish the existence of a conspiracy to distribute cocaine and marijuana, which is one of the elements of the crime charged against Grant. The statements in Wilson's affidavit were inconsistent with the existence of any conspiracy at all, and for that reason were inconsistent with his co-conspirator statements. The government's first fallback argument is that even if the co-conspirator statements of Wilson admitted at trial were inconsistent with the affidavit statements, the affidavit is inadmissible under Federal Rule of Evidence 4035 because its probative value is outweighed by its prejudicial effect. That is not the ground upon which the district court excluded the evidence. Nonetheless, the government maintains that the affidavit evidence would be unfairly prejudicial because the statements, if believed, would provide Grant with a complete defense, rather than merely impeaching Wilson's co-conspirator statements admitted through Mozas. Rule 403 is an "extraordinary remedy," United States v. Utter, 97 F.3d 509, 514-15 (11th Cir.1996) (citation omitted), whose "major function ... is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect," United States v. Cross, 928 F.2d 1030, 1048 (11th Cir.1991) (internal quotation omitted). The Rule carries a "strong presumption in favor of admissibility." United States v. Church, 955 F.2d 688, 703 (11th Cir.1992). Wilson's inculpatory co-conspirator statements were important pieces of evidence in the government's case. The impeaching statements in the affidavit would serve to cast doubt on Wilson's credibility and would have significant 5 Federal Rule of Evidence 403 provides, in relevant part: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ... Fed.R.Evid. 403. probative value for that purpose. Whatever prejudice to the government that might occur from admitting the affidavit statements could not substantially outweigh their probative value, anymore than it could if those affidavit statements had been admitted for impeachment following live testimony of Wilson to the same effect as his co-conspirator statements. The evidence of the affidavit statements could do no more than impeach and could not provide "a complete defense" if the government requested the limiting instruction to which it would have been entitled. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733, 145 L.Ed.2d 727 (2000) ("A jury is presumed to follow its instructions."). The government's second fallback argument is that Wilson's affidavit statements were properly excluded from evidence because they were particularly unreliable, even though that was not the basis of the district court's ruling. The government points out that Wilson continued to inculpate Grant in the conspiracy after his arrest and before a federal grand jury, and only gave statements exculpating Grant after he had been deported to Jamaica and was no longer subject to prosecution for perjury.6 The government maintains that because the statements in the affidavit were so unreliable, admitting them would not have affected the outcome of the trial—sort of a harmless error argument. The government's argument on this point is more than a little inconsistent with its Rule 403 argument that the affidavit statements were terribly prejudicial to its case. Putting that inconsistency aside, however, Rule 806 made the statements admissible for impeachment purposes, and the point of admitting inconsistent statements to impeach is not to show that they are true, but to aid the jury in deciding whether the witness is credible; the usual argument of the party doing the impeaching is that the inconsistent statements show the witness is too unreliable to be believed on important matters. See United States v. Graham, 858 F.2d 986, 990 n. 5 (5th Cir.1988) ("[T]he hallmark of an inconsistent statement offered to impeach a witness's testimony is that the statement is not hearsay within the meaning of the term, i.e., it is not offered for the truth of the matter asserted, see Fed.R.Evid. 801(c); rather, it is offered only to establish that the witness has said both 6 Federal Rule of Evidence 806 provides that if the credibility of the declarant is attacked, it may be supported by any evidence which would be admissible for those purposes if he testified as a witness. We have no occasion to express a view upon whether the other out-of-court statements of Wilson, such as his grand jury testimony, will be admissible once his affidavit statements come into evidence. Likewise, we do not have occasion to decide at this time whether, by giving affidavit statements as Wilson did in this case, a co-conspirator waives his privilege against self-incrimination. Nor do we express any view on whether, if the government attempts to depose the co-conspirator affiant or call him to the stand, and he refuses to answer questions on the subject matter addressed in his affidavit statements, those statements must be stricken. 'x' and 'not x' and is therefore unreliable."). Given all the circumstances of this case, that strategy might well have worked to undermine the probative effect of Wilson's co-conspirator statements to such an extent that the verdict on the conspiracy charge would have been different. For that reason, we reverse Grant's conviction on that charge. As to Grant's conviction for using a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c), the conspiracy was the only drug trafficking crime that the indictment alleged as that essential element of the firearms charge. Accordingly, the exclusion of the affidavit statements also requires reversal of Grant's conviction on the firearms charge. III. CONCLUSION There was sufficient evidence to support Grant's conviction for failure to appear and we AFFIRM his conviction on that charge. We do have jurisdiction over Grant's appeal of the conspiracy and firearms charges, and there was sufficient evidence to support Grant's conviction on those charges. However, the district court erroneously excluded Wilson's statements contained in his affidavit and, accordingly, we REVERSE the judgment of conviction and sentence for both the conspiracy and firearms charges, and REMAND for further proceedings consistent with this opinion. 

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018 (D.C. No. 1:06-CV-01121-WJ-CG) TOM HAVEL, Administrator, (D. N.M.) San Juan County Detention Center; MYA DONALDSON, Administrator, Medical Department San Juan County Detention Center, Defendants-Appellees. ORDER AND JUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant Kevin Sanchez filed a complaint in district court under 42 U.S.C. § 1983 claiming that he received negligent medical treatment while he was incarcerated in the San Juan County New Mexico Detention Center. The * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment to defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “On account of [plaintiff’s] pro se status, we liberally construe his filings, but hold him to the same rules of procedure as other litigants.” Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). We have jurisdiction under 28 U.S.C. § 1291, and, after our de novo review of the grant of summary judgment, Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. In May 2006, plaintiff brought a state-court action against defendant Havel and Correctional Healthcare Management alleging false imprisonment and medical negligence. Because plaintiff’s claims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez v. Havel, No. CV-06-562-3 (N.M. 11th Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I). Plaintiff then filed the instant action in federal court making substantially the same allegations regarding medical negligence that he did in state court but including Mya Donaldson as an additional defendant. With regard to the claims against defendant Havel, the district court correctly concluded that the doctrine of claim preclusion barred plaintiff’s attempt to relitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barred the claims against defendant Donaldson. We -2- therefore affirm the judgment of the district court for substantially the reasons stated by that court. Plaintiff’s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing because plaintiff cannot proceed with this action in the first instance. Further, there is no factual support for plaintiff’s charge that the court was biased against him because of his inmate status or because he was not a state or city employee. Plaintiff’s charge in his “closeing [sic] statement and facts” that certain individuals conspired to intercept his outgoing legal mail was not included in the complaint and thus not before the district court. As such, it will not be considered on appeal. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). To the extent plaintiff asserts error in the court’s denial of his motion to reopen the case, construed as a Fed. R. Civ. P. 59(e) motion, we find no abuse of discretion in that decision. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Plaintiff’s motion for judgment in his favor is DENIED. Plaintiff’s motion for leave to proceed on appeal without prepayment of costs or fees is GRANTED. Plaintiff is reminded of his obligation to continue making partial payments pursuant to 28 U.S.C. § 1915(b) until the filing fee is paid in full. -3- The judgment of the district court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge -4- 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00077-CV IN RE KEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION1 ------------ The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus is denied. Relator shall pay all costs of this original proceeding, for which let execution issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. MCCOY, J. would request a response. DELIVERED: March 14, 2011 1 See Tex. R. App. P. 47.4, 52.8(d). 

45 Md. App. 489 (1980) 413 A.2d 1365 CARLTON G. BEALL v. CECELIA M. BEALL. No. 1065, September Term, 1979. Court of Special Appeals of Maryland. Decided May 8, 1980. *490 The cause was argued before MOORE, LOWE and COUCH, JJ. J. Frederick Garner, with whom was C. Calvert Lancaster on the brief, for appellant. Steven Rosen, with whom were Willoner, Calabrese & Rosen, P.A. on the brief, for appellee. MOORE, J., delivered the opinion of the Court. This appeal concerns an alleged option agreement and a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for Prince George's County (Melbourne, J.) found the agreement unsupported by consideration and dismissed plaintiff's bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George's County from Pearl Beall. At that time, the property was farmed by Pearl's son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvin was married to Cecelia M. Beall, the defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three sides by the farm bought by the plaintiff; and it is that parcel that is the subject of this dispute. On the day that plaintiff contracted to buy Pearl's farm, he obtained a three-year option to purchase Calvin's and *491 Cecelia's parcel for $28,000.00. The option recited a consideration of $100.00 which was paid by check. In 1971, the parties executed a new option, for five years, but on the same terms and reciting an additional $100.00 consideration. This 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page: "As of October 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years — Feb. 1, 1976 to Feb. 1, 1979. /s/ Calvin E. Beall /s/ Cecelia M. Beall." It is this purported extension that forms the basis for plaintiff's bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelia now holds the fee simple title by right of survivorship. In letters dated May 24, 1978 and September 14, 1978, the plaintiff advised Cecelia that he was electing to exercise the option. He scheduled settlement for October 5, 1978. As the chancellor found: "It is undisputed in this case that Mr. Carlton Beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract." Cecelia refused to attend settlement, and this suit for specific performance ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt that the option agreements were not supported by consideration in that "no benefit ... flowed to Cecelia Beall." In addition, as to the 1975 alleged option, the chancellor ruled: "[T]here is no consideration recited in that extension or purported extension of the original *492 option contract. And the one extension that had occurred in the interim, even then would also fail because there is no consideration stated in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines." On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with Calvin, the deceased husband of the defendant. II Under Maryland law it is clear that "an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration." Blondell v. Turover, 195 Md. 251, 256, 72 A.2d 697, 699 (1950). In other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. Goldman v. Connecticut General Life Insurance Co., 251 Md. 575, 581, 248 A.2d 154, 158 (1968). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. It is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option. When, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes "a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance...." Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. The failure of consideration destroys the irrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the *493 period stated in the option or until revoked. It has been recognized that equity will enforce a resulting contract despite lack of consideration for the option: "While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made." 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts § 263 (1963). See generally Kahn v. General Development Corp., 40 Del. Ch. 83, 92, 174 A.2d 307, 312 (1961) (failure of consideration "destroyed the irrevocability of the option"). Burkhead v. Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) (option without consideration was "mere offer to sell which defendants might have withdrawn at any time before acceptance"); Rose v. Minis, 41 N.J. Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simply a naked revocable authority"). Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $28,000. The offer was open until February 1, 1979, but it was revocable at any time by action of Calvin and Cecelia Beall. As stated in the case of Holifield v. Veterans' Farm & Home Board, 218 Miss. 446, 450, 67 So.2d 456, 457 (1953): "It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. Since there was no consideration paid by the Veterans' Farm and Home Board and *494 Mauldin for the option, it could have been revoked by the Holifields at any time before the Veterans' Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises." (Emphasis added.) This statement is generally in accord with the Maryland cases, supra. The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity.[1] These issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor's findings under the "clearly erroneous" standard. Md. Rule 1086. But our review is dependent upon the existence of factual findings on the issues material to the case. Such findings were not made below. It was error for the chancellor to dismiss plaintiff's bill of complaint at the close of his case. A new trial, in accordance with this opinion, is necessitated. Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result. NOTES [1] We express no opinion concerning the validity of the chancellor's finding that there was no consideration for the option.

927 F.Supp. 171 (1996) Ernest HALFHILL, d/b/a Halfhill Trucking, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95-484. United States District Court, W.D. Pennsylvania. March 7, 1996. *172 *173 Stephen I. Richman, Ceisler, Richman & Smith, Washington, PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon, Duff, Paleudis & Estadt, St. Clairsville, OH, for plaintiff. Michelle O. Gutzmer, United States Attorney's Office, Pittsburgh, PA, Charles M. Flesch, Robert S. Attardo, United States Department of Justice, Tax Division, Washington, DC, for United States of America Internal Revenue Service. MEMORANDUM OPINION BLOCH, District Judge. Presently before the Court is defendant's motion for partial summary judgment. For the reasons set forth in this opinion, the Court will grant the defendant's motion. I. Background The facts of record are as follows. In 1978, plaintiff purchased a tractor trailer and started a trucking company called Halfhill Trucking (HT), a sole proprietorship. Plaintiff operated HT as a leasing venture; that is, plaintiff leased HT's truck to various interstate commerce carriers and also provided a truck driver who hauled loads for the carriers. During 1978 and the first half of 1979, plaintiff's son, Ken Halfhill (Halfhill), was HT's sole truck driver. Although Halfhill's primary duty was to drive the truck, Halfhill also had the authority to negotiate with the carriers regarding future leasing of HT's truck. HT, via plaintiff, paid Halfhill based on a percentage of what the carriers paid to lease the truck. During the 1978-1979 period, plaintiff treated Halfhill as his employee and issued him federal Form W-2's. Plaintiff also paid the required federal employment taxes, including social security and unemployment taxes, on Halfhill's earnings. In the middle of 1979, however, Halfhill left HT and became an employee of Sentle Trucking (Sentle). Plaintiff thus decided to modify HT's business, leasing HT's truck to only one carrier — Sentle. Subsequently, in late 1981, Sentle's business was deteriorating and Sentle's exclusive lease with plaintiff expired. Plaintiff did not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT in a manner more similar to when plaintiff had started the company. Specifically, HT's trucks were leased to different carriers and Halfhill, who had left Sentle, as well as other individuals, drove HT's trucks for the carriers. All of the drivers of HT's trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks, as Halfhill was paid in the past. From 1982 until mid-1990, however, plaintiff did not treat the individuals who drove HT's trucks as employees. Rather, plaintiff considered the drivers, including Halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiff did not pay employment taxes on the drivers' compensation. Eventually, in light of tax assessments levied by the Internal Revenue Service, plaintiff paid employment taxes for his drivers for the second half of 1990 in the amount of $49.24. After paying this amount, plaintiff filed an administrative claim seeking a refund of the same. The IRS denied the plaintiff's administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. Plaintiff claims that he is entitled to this refund on the ground that HT's drivers are independent contractors, not his employees. Moreover, plaintiff contends that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the Revenue Act of 1978 — which exempts certain employers from tax liability when they have in good faith misclassified their employees as independent contractors. Defendant contests plaintiff's entitlement to a refund, asserting that HT's drivers are, in fact, employees of plaintiff and that plaintiff is not entitled to protection under § 530 of the Revenue Act of 1978. Moreover, defendant filed a counterclaim against plaintiff seeking to recover $222,720.45 of unpaid employment taxes assessed against plaintiff for *174 the 1988 through 1990 tax years. Plaintiff denies liability with regard to the defendant's counterclaim for the same reason that he asserts that he is entitled to a refund. At this time, defendant has moved for summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the Revenue Act of 1978.[1] II. Discussion Summary judgment may be granted 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). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who 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 of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's evidence as true. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The non-moving party "must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or ... vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). If the non-moving party does produce contradictory evidence, however, then the "believability and weight of the evidence remains the province of the factfinder." Big Apple, 974 F.2d at 1363. In this case, defendant asserts that it is entitled to summary judgment with regard to plaintiff's claim that he qualifies for relief from tax liability under § 530 of the Revenue Act of 1978. More specifically, defendant asserts that plaintiff is not entitled to protection under § 530 because he cannot meet § 530's "consistency requirement." Plaintiff, on the other hand, contends that there are material issues of fact in dispute with regard to this claim that preclude a grant of summary judgment. A. Federal employment taxes and § 530 of the Revenue Act of 1978 Under the Internal Revenue Code, "employers must pay social security and unemployment taxes on behalf of their employees." Hospital Resource Personnel, Inc. v. United States, 68 F.3d 421, 424 (11th Cir.1995).[2] "These taxes are known collectively as `employment taxes.'" Id. "Employers are only required to ... pay these *175 employment taxes, however, in regard to payments to `employees,' not to `independent contractors.'" Id. "In connection with payments to `independent contractors,' employers only have to send annual information returns, on Form 1099 to the worker and on Forms 1096 and 1099 to the IRS, indicating the income paid [to the independent contractor] during the year." Id.; see also Boles Trucking, Inc. v. United States, No. 95-1826, 77 F.3d 236, 238-39 (8th Cir.1996). In light of these tax consequences, their proper characterization of the employment relationship is vital. Under certain circumstances, however, an employer who has mistakenly treated its employees as independent contractors — and has thus failed to pay the required employment taxes — may be relieved of its tax liability pursuant to § 530 of the Revenue Act of 1978. Congress created the "safe harbor" provisions of § 530 in order to alleviate "what was perceived as overly zealous pursuit and assessment of taxes and penalties against employers who had, in good faith, misclassified their employees as independent contractors." Boles Trucking, Inc., supra, at 239; see also In re Rasbury, 141 B.R. 752, 761 (N.D.Ala.1992). Section 530 provides in relevant part that: (a) Termination of certain tax liability. — (1) In general. — If (A) for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period, and (B) in the case of periods after December 31, 1978, all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period are filed on the basis consistent with the individual not being an employee, then ... the individual shall be deemed not to be an employee unless the taxpayer had no reasonable basis for not treating such individual as an employee. * * * * * * (3) Consistency required in the case of prior tax treatment. — Paragraph (1) shall not apply with respect to the treatment of any individual for employment tax purposes ... if the taxpayer (or predecessor) has treated any individual holding a substantially similar position as an employee for purposes of employment taxes for any period beginning after December 31, 1977. Section 530 of the Revenue Act of 1978, P.L. 95-600, § 530, 92 Stat. 2763 (1978), reprinted in 1978 USCCAN 2.[3] Thus, § 530 is essentially a defense to an otherwise valid claim against a taxpayer who has failed to pay employment taxes because he has treated employees as independent contractors. See Murphy v. United States, No. 93-C-156-S, 1993 WL 559362, at *2 (W.D.Wis. October 22, 1993). "Accordingly, the party claiming § 530 protection has the burden to show entitlement to [such] protection." Id. As made clear by the plain language of § 530, a taxpayer qualifies for relief under § 530 only if the taxpayer can show that: (1) the taxpayer has not treated any individual as an employee who holds a substantially similar position as those classified as independent contractors (the substantial consistency requirement); (2) the taxpayer has filed all required federal tax returns on a basis consistent with the taxpayer's treatment of an individual as an independent contractor (the reporting consistency requirement); and (3) the taxpayer had a reasonable basis for treating the individual as an independent contractor. See, e.g., Henry v. United States, 793 F.2d 289, 291 (Fed.Cir.1986); Henderson v. United States, No. 90-1064, 1992 WL 104326, at *3 (W.D.Mich. February 18, 1992); Murphy, supra, at *2. As one Court has stated, the "keys to gaining access to the [protection of § 530] are found, first, in the consistent treatment of all similarly situated individuals, and second ..., [on] accurate, complete filing of all required tax forms." Erickson v. Commissioner, 172 B.R. 900, 912-13 (D.Minn.1994). *176 B. Application of § 530 to the instant case In this case, however, the Court finds that the evidence of record demonstrates that plaintiff cannot meet the requirements of § 530 set forth above. More specifically, the record demonstrates that plaintiff did not treat all individuals who held similar positions as independent contractors, failing § 530's "substantial consistency requirement." Indeed, plaintiff treated his only driver, Halfhill, as an employee in 1978 and 1979, but from 1982 through 1990, plaintiff treated all the individuals who drove HT's trucks, including Halfhill, as independent contractors. The type of work performed by Halfhill in the 1970's, however, was substantially similar to the work performed by all of the drivers in the 1980's; these individuals drove HT's trucks, negotiated with carriers regarding the leasing of HT's vehicles, and were paid a percentage of what HT's trucks actually earned. Thus, because plaintiff has inconsistently labeled individuals who performed similar job functions, he is not entitled to § 530's shelter. See also Lowen Corp. v. United States, 785 F.Supp. 913, 915-16 (D.Kansas 1992); Erickson, 172 B.R. at 913; Nash v. United States, No. 93-5877, 1995 WL 655588, at *1 (E.D.Pa. November 7, 1995) (all holding that inconsistent treatment of workers precludes relief under § 530).[4] Contrary to the Court's findings, plaintiff has argued that there are material issues of fact in dispute with regard to whether plaintiff has satisfied § 530's consistency requirements. More specifically, plaintiff contends that the evidence indicates that plaintiff actually started a new business in 1982, borrowing the name of his first business. Therefore, plaintiff argues that the fact that he treated Halfhill as an employee in 1978 and 1979 is irrelevant and because he treated all of his drivers consistently for the period that his new business was in operation — 1982 through 1990 — he is entitled to protection under § 530. The Court, however, finds plaintiff's arguments to be unpersuasive for the following reasons. First, the provisions of § 530 look to whether a "taxpayer" or a "taxpayer's predecessor" has treated workers consistently, not to the actions of a particular business. In this case, plaintiff cannot dispute that he was the same taxpayer from 1978 through 1990.[5] In fact, plaintiff used the same employer identification number on his IRS filings throughout this period. Moreover, a reasonable factfinder could not conclude, based on the record before the Court, that plaintiff ever started a "new" business. Although plaintiff indicated in his deposition that he did so, when questioned more thoroughly, plaintiff stated that he believed he started a new business simply because of the way he treated his drivers for tax purposes. (See defendant's Exhibit A-1, pp. 167-68). This testimony, coupled with the alleged "new" business' same name, function, and ownership as the alleged "old" business, demonstrate that plaintiff did not, in fact, start a different company. Finally, even if plaintiff had started another business, the evidence indicates that the first business was a predecessor of the second business, and the consistency requirements would, therefore, apply to the period that both businesses were in operation, i.e., 1978 through the present. In sum, the Court finds that defendant is entitled to summary judgment with regard to plaintiff's claim to relief under § 530 because the plaintiff cannot satisfy § 530's substantial consistency requirement. Therefore, the Court will grant the defendant's motion for partial summary judgment. NOTES [1] The Court notes, and the defendant does not dispute, that even if the Court grants this motion, plaintiff will still be entitled to a refund if the plaintiff can demonstrate that the drivers of HT's trucks are independent contractors, not employees. [2] Congress has imposed social security taxes on the employer under the Federal Insurance Contribution Act (FICA). 26 U.S.C. § 3101, et seq. Congress has imposed unemployment insurance taxes on the employer under the Federal Unemployment Tax Act (FUTA). 26 U.S.C. § 3301, et seq.; see also Hospital Resource Personnel, Inc., 68 F.3d at 424 n. 5. [3] Although § 530 was never codified, it is reproduced in the notes following § 3401 of the Internal Revenue Code. (See defendant's brief at p. 12, n. 7). [4] The Court also notes that the record demonstrates that plaintiff fails § 530's "reporting consistency requirement" because plaintiff did not file the required federal returns on a basis consistent with his treatment of Halfhill as an independent contractor. The Court need not, however, rely on this ground. [5] HT is a sole proprietorship operated by plaintiff and, therefore, plaintiff is the party responsible for paying taxes for this business.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 18 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 02-1522 v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDER AND JUDGMENT * Before EBEL, HENRY, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United States after deportation for an aggravated felony in violation of 8 U.S.C. §§ * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1326(a) and (b)(2). He appeals the district court's denial of his motion to dismiss the indictment and raises an issue regarding his sentence. Counsel appointed to represent defendant on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the district court’s denial of Mr. Ortega-Guzman’s motion to dismiss the indictment and we affirm the conviction. I. BACKGROUND Mr. Ortega-Guzman, a Mexican citizen, was deported by the United States in August 2001. He had previously been convicted of an aggravated felony in Colorado state court. He subsequently returned to the United States without lawful permission, and, in March of 2002, he was arrested in Weld County, Colorado, where state authorities charged him with driving without a license and without valid insurance. Convicted of both charges, he spent ten days in jail, after which the Immigration and Naturalization Service took him into custody. The federal government indicted him for violating 8 U.S.C. § 1326(a) and (b)(2), charging that he illegally re-entered the United States after deportation and that he did so after being convicted of an aggravated felony. Mr. Ortega-Guzman moved to dismiss the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. The district court denied the motion. -2-  After the district court rejected this motion to dismiss the indictment, Mr. Ortega-Guzman pleaded guilty to the charged offense. His “Rule 11 Plea Statement,” which the parties submitted in lieu of a formal plea agreement, was unconditional, that is, it preserved no issues for appeal. The district court accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all the requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Mr. Ortega-Guzman’s motion for a downward departure, Mr. Ortega-Guzman was sentenced to 57 months’ imprisonment. II. DISCUSSION Mr. Ortega-Guzman has asked his counsel to appeal the district court’s denial of his motion to dismiss the indictment and to challenge the denial of the motion for downward departure. Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he should so advise the court and request permission to withdraw. Counsel must in addition submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744. -3-  Mr. Ortega-Guzman Defendant was notified of his right to file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. In his Anders brief, counsel first dismisses the possibility that the district court erred in denying the motion to dismiss the indictment. As noted above, however, Mr. Ortega-Guzman’s plea agreement preserved no issues for appeal. See United States v. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) (Rule 11 requires a defendant to reserve the specific issue to be appealed). In the absence of a conditional plea, a defendant who pleads guilty admits to all of the factual allegations contained in the indictment and the legal consequences of those acts. See United States v. Broce, 488 U.S. 563, 569-70 (1989); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman does not challenge the “voluntary and intelligent character” of his guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for collaterally attacking his deportation proceeding. -4-  Next, Mr. Ortega-Guzman challenges the district court’s failure to grant him a downward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowledged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. See United States v. Castillo, 140 F.3d 874, 889 (10th Cir. 1998). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant's sentence. We find nothing in the record to indicate that the sentence imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. Accordingly, we are without jurisdiction to consider such a challenge. See United States v. Sanchez, 146 F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a). III. CONCLUSION Accordingly, we AFFIRM the judgment of the district court denying Mr. Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM the conviction, and we GRANT counsel’s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge -5- 

374 So.2d 929 (1979) Richard GRAHAM v. STATE. 4 Div. 685. Court of Criminal Appeals of Alabama. March 27, 1979. Rehearing Denied April 17, 1979. *930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee. LEIGH M. CLARK, Retired Circuit Judge. Appellant was indicted for murder in the first degree of "Donna M. Wilcynski, by stabbing her with a knife or other sharp instrument." A jury found him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He was sentenced accordingly. Appellant submits as the only issue on appeal: "Whether or not sufficient evidence was presented to sustain the verdict of first degree murder." We have no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. The only controverted issue on the trial was whether defendant-appellant committed the homicide. The record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer(s); that they were the only persons in the apartment of the victim at Byrd Apartments, Ozark, when she was killed, between 11:00 P.M. and midnight on April 11, 1978. Her death resulted from multiple stab wounds in various parts of her body, from front to back and from head to feet. They were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of them in his testimony as shown by six complete pages of the record. That she was dead before or immediately after the completion of the stabbing of her, there can hardly be any doubt. Her body was not discovered until late in the afternoon on April 12, 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at the apartment, that she was nowhere to be seen, that her apartment was locked and that efforts to get her to the door were futile. One of them called an officer and soon thereafter a number of them arrived. Upon arrival of the officers, a master key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. He promptly secured the scene and sent for an investigator of the Police Department of Ozark, *931 who soon arrived; he looked at the body in the bathtub, and then observed a three-year-old child in the bedroom of the apartment. He then called the coroner and personnel from the crime laboratory and secured the building for a thorough and accurate on-the-premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at the scene. Blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items of evidence were taken into custody. The victim's body in the bathtub was lying on its back. All but the face was covered with sheets and other coverings from her bed. Upon removal of the bed coverings, her body was completely nude. There was no water in the bathtub; the drain thereof was closed. The floor of the bathroom was dry, but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim's bedroom and in the child's bedroom were wet. A test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. Bloodstains were found at several places in the apartment, including the mattress and the box springs of victim's bed, the floor, walls, curtains, and on the outside handle of the door to the apartment. The furniture in the bedroom appeared to be ransacked. The living room appeared to be normal. There were pry marks on the outside of a window to the apartment. The evidence, consisting of the testimony of twenty-seven witnesses and numerous exhibits, is almost, if not entirely, free of substantial conflict. Witnesses for the State may be grouped: (1) Those testifying as to conduct of defendant while at Byrd Apartments on Sunday, April 9, 1978, (2) Those testifying as to his conduct at Byrd Apartments the night of the murder, April 11, 1978, (3) A few who heard noises in the victim's apartment between 11:00 P.M. and midnight, April 11, (4) Expert and lay witnesses as to the condition and contents of the victim's apartment at the time her body was discovered therein in the late afternoon of April 12, (5) Witnesses, chiefly expert witnesses, as to (a) the condition of the corpse, (b) fingerprints, (c) samples of blood found in the victim's apartment, (d) samples of hair from victim's apartment, (e) what was revealed by a search of defendant and his home, (f) statements made by defendant after the murder and (g) what was found in defendant's automobile that he was driving the night of the murder. Evidence on behalf of defendant consisted of defendant's own testimony as to his conduct on Sunday, April 9, and on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior to his going to the Byrd Apartments on April 11 and his return to their home after midnight of the night of the murder. Some of the witnesses for the State who testified as to the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they saw him at the courtyard with his young son Sunday morning; that there was a "cookout" party that afternoon and that defendant and his son and the victim and her daughter, the child who was in the victim's apartment the night of the murder, were at the party; that defendant played with Mrs. Wilcynski's child, and inquired of some at the party as to Mrs. Wilcynski. There was some evidence that he attempted to converse with Mrs. Wilcynski but that she did not talk with him. Captain William Dortch, of the United States Army, a friend of appellant (a warrant officer of the Army) had an apartment at the Byrd Apartments. Defendant was visiting Captain Dortch on Sunday, April 9. According to defendant's testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. *932 Appellant returned to the apartment complex on the evening of April 11. As much of the testimony is merely cumulative as to undisputed facts, no attempt will be made to particularize the testimony of all of the individual witnesses or to name all of them. Mrs. June Napier, who had seen appellant in the courtyard on Sunday afternoon, testified also that as she was unloading groceries from her automobile on the night of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. She said, "I told him that was all right, that I could get them and he said, `Well, I understand how it is. It's awful hard to raise children alone, isn't it?' and I told him that I wasn't alone. ". . . "I took the groceries in the house and he just came in with a sack of groceries and put them down and— ". . . "He was talking to me and I can't remember what he was saying, because I was in a hurry and trying to get dinner ready before Vincent [her husband] came home. I was a few minutes late, and— my little girl cut her finger. She just came out of the bathroom, and I hadn't put up Vincent's things, and she got a razor blade and cut her finger with it, and he picked her up and took her in the bathroom and fixed it up. Then he was just talking to her and I was putting away my groceries and stuff, and a while later Vincent came in." Mrs. Napier further testified that while defendant was in the apartment and before her husband returned, she was going "back and forth getting things out of the car and trying to get dinner ready" and that she noticed defendant drinking a bottle of beer. She said that when her husband arrived, a friend, Jeff Parker, was with him and that defendant remained at the apartment and sat down and talked with Mr. Napier and Jeff Parker. She did not stay with the three men but went into the bedroom. While the door of the bedroom was closed, she heard her husband say, "Don't go in there, because my wife is nursing the baby," and when she heard him say that she "just pulled my blouse down and laid the baby down, and he came in there and put his arm around me, and he said, `Which way is the bathroom.'" She then left the bedroom and went into the room where her husband was, and she assumed defendant went into the bathroom, which other evidence shows that he did. According to additional testimony of Mrs. Napier, she was not certain as to the time defendant left the apartment of the Napiers'. She remembered that he was still there at 10:00 o'clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. She said he must have gone "around 10:45, or something like that" or that it "must have been about 10:30." She said that "about a quarter to eleven," while she was returning from her automobile with some clothes of her husband to be washed, and was going up the stairs to the floor of her apartment, she saw defendant near the stairwell across from Mrs. Wilcynski's apartment. While at or near the stairwell he said to Mrs. Napier: "What hours does your husband work? When can I see you again? What is your phone number?" Instead of replying to defendant, Mrs. Napier said that she just "went on up the stairs," that "I didn't say anything to him, it scared me." She saw him no more that night. Mr. Vincent Napier testified that as he returned to the apartment that night, accompanied by Jeff Parker, he saw defendant sitting at the table in the dining room with a beer; he walked past defendant, went to the kitchen and talked with his wife and returned and introduced himself to the defendant. They sat and talked, and Napier and Parker and defendant played dominoes. Mrs. Napier had gone into the back bedroom where the baby was; the defendant went toward the bathroom, and he told defendant to knock on the door, that *933 his wife might be nursing the baby; after two or three minutes defendant came back to the table where they were playing dominoes. He said that about nine o'clock, defendant went for a can opener and returned in about five minutes, that defendant left "around eleven ... maybe a little before or after." His wife returned to the apartment from her trip downstairs to the automobile, shortly after the defendant left. Captain Bill Dortch testified that he lived on the same floor of the apartment as Mrs. Wilcynski and about three or four apartments from her. He had known defendant in connection with their military work. He had not lived at the Byrd Apartments long. He lived alone. Defendant had visited him the Sunday before the murder and had helped him move to the apartment. On the day of the murder, defendant came to the apartment at about 5:30 P.M. Dortch owned a motorcycle that he "used to store... right under the stairwell." Defendant left Dortch's apartment "around 7:30 or 8:00." He was going to get something to eat, some hamburgers for both of them; he returned "between 8:30 and 9:00" but only stayed a few minutes. Further testimony was as follows: "Q He came back to your apartment at what time? "A He came back—you mean after the second time? "Q Right. "A That was 10:30, because I was laying on the couch waiting for him to bring the food, and when the door opened I got up. "Q Is there any special reason that you know it was 10:30? "A Yeah, because I was lying on the couch and I was expecting hamburgers, and I checked my watch, and I said, `Well, it is kind of late to worry about the hamburgers.' "Q When he came back at 10:30 what did you and he do? "A Well, just discussed what he was doing and why he didn't have the hamburgers. "Q Okay, did you—how many drinks had you had that night? "A Maybe—I would say about two drinks that night, because I wasn't feeling good. That's why I was lying on the couch. "Q Okay, and you say that Mr. Graham left your apartment some time between 12:00 and 12:30, is this correct? "A That is correct. "Q But you are not sure of the time between 12:00 and 12:30? "A That is correct. "Q Is there any special way that you could point down that he left your apartment between 12:00 and 12:30? "A Well, the reason why I say between 12:00 and 12:30 is because after he left, I went in the ice box and got something to eat, and then—see my door was still unlocked, because I didn't walk with him to the door. He just closed the door himself, and after I finished eating, then I went and locked the door and checked the time and it was 12:35. I know it didn't take that long for me to go right to the refrigerator—." At one time during the testimony of Captain Dortch, he said: "Q Did you go to sleep during the time that he was there and the time he— "A Yeah, I was sleeping part of the time." Clyde Hamilton, Jr., seven years old, testified that on the night of the murder, while he was looking for his frisbee in the apartment house hallway, he saw defendant come out of an apartment at the same time that Mrs. Wilcynski came out of her apartment and defendant "went up to her and started talking to her, but then when he went up, I left." He didn't know the time that this occurred, but stated it was after dark. Clyde's father testified that Clyde, Jr., was out of the apartment looking for his frisbee from "almost exactly 8:30 by my watch" and came back in about fifteen or twenty minutes with his frisbee. He had previously seen defendant at Byrd Apartments, once at the cookout on April 9 and again in between "7:10 and 7:30" when *934 defendant was "with—I don't know the man's name but he was a captain and he lived in apartment 15; a black man, and they were outside, on the sidewalk and I spoke to them as I went by." John McGraw, who lived in apartment No. 9 next door to Mrs. Wilcynski's apartment, testified that as he returned to his apartment from work "about 10:30" he saw defendant standing in front of the victim's door next to the stairwell talking to some lady. He said the lady was going up the stairs; that defendant asked the lady if she would like to go to "a party or park" but that the lady said "something like, `I will have to ask my husband'"; that the lady went up the stairs. There were three witnesses as to noises in the victim's apartment on the night of the murder: (a) Mrs. Rose Teich testified that between 11:00 and 11:30 she heard Mrs. Wilcynski scream, a short, sharp scream. She said she screamed about four or five times; that her husband went downstairs to investigate and returned saying "I can't see anything." (b) John Hamby, who also lived in an apartment next to the victim's, testified that about "11:40 or 11:41" he heard noise, a banging, in her apartment, and he thought "somebody was taking a shower in the apartment." (c) A stipulation between the parties was agreed upon and admitted in evidence as the sworn testimony of William Tharp, that "about 11:35 or 11:37" when he returned to his apartment the night of the murder he heard "a long lingering scream next door, then it got quiet." The victim's mother testified that no jewelry was missing from the apartment after the murder. A large number of hairs were obtained from the scene of the murder, some from the victim, some from the bed and some from other places in the apartment. Many hairs were obtained from defendant, after he was taken into custody, from various portions of his body. There were also some hairs taken from defendant's dog. State Toxicologist John Kilborn examined the hairs taken from the apartment and the hairs obtained from the head and other areas of defendant and compared the two groups of hairs. He testified in part as follows: "Q Will you tell the jury the similarities that you found from the known hairs from Richard Graham's head and from the scene; step by step, the things that were identical. "A Well, out of all the 286 hairs I found, there were 3 that can be identified as Negroid hairs. Two of these are very small and really considered too small to make any type of comparison; only identified the race. The third hair which was submitted, contained in a plastic bag, labeled `from the top sheet,' this hair was compared with the hair of Mr. Graham, found that all of these characteristics were identical. We found that there was a medium type cuticle with ragged scale pattern, and the diameter was identical and the variation in diameter was very little, it was identical between the known and the unknown, the pigmentation of the hair—there extreme clumping of the pigment granules and these granules were located on the edge of the hair. The medulla was absent. There was no evidence of artificial treatment, like dying or bleaching. On the cross section, both hairs were extremely flat, and the pigmentation was identical. In the hair received from the scene, or submitted to me as identified from the scene, hair was not a complete hair, it was a broken hair. There was no root to examine, and the tip—the tip was indeed present, it was very frayed, and I couldn't ascertain whether or not the tip was present. "Q Then your conclusion of comparison is what? "A That microscopically the hair identified to me from the top sheet is identical to that of Mr. Graham's head hair." On cross-examination of Mr. Kilborn he testified that hair can be transferred from person to person and as to the possibility thereof without any physical contact. The latter part of his testimony on cross-examination was as follows: *935 "Q Johnny, if on 9 April, 1978, Rick Graham had been playing with the child of Donna Wilkinski, is it possible that a hair from his head was transferred to the child, who in turn, transferred it to that apartment? "A Well, without actual knowledge of the circumstances it would be difficult for me to say. I would once again say that hairs can be transferred. "Q Johnny, is it possible that this hair came from another individual other than Rick Graham? "A Yes, sir, this is possible." M. R. Nowicki testified that he was with defendant on the day before defendant was arrested, which other evidence shows was approximately one week after the murder, at the office of the Ft. Rucker preschool, that they discussed some matters at the preschool with reference to the work there and in the course of the conversation, the witness asked defendant to call him thereafter and defendant then asked for the phone number of the witness. His testimony continued as follows: "I gave it to him, and he said, `Where is that?', and I said, `It's at the Headquarters Building,' and he said, `Oh, you are up there now?', and I said, `Yes.' He went on to say, `I suppose you have heard my name mentioned up there lately?', I said in a kidding manner, `No more than usual, what did you do this time?' I had not heard anything prior to that time. He said to me, `Well, I am the number one suspect in a murder case in Ozark.' . . . "A He further said to me, `I was there.' He paused and he said, `I was at her apartment that night.'" State Toxicologist Chap McCracken, Jr., who performed an autopsy on the body of Mrs. Wilcynski and testified extensively as to his examination of her body and the scene of the murder, testified also that in the process of the investigation of the murder he examined the automobile that defendant had purportedly driven the night of the murder. As to this, his testimony was in part as follows: "Q Did you find any bloodstains in Richard Graham's automobile? "A Yes, I did. "Q And where did you find them? "A I found two small red-brown stains on the steering wheel of the automobile. They gave a positive presumptive test for the presence of blood, and small sizes of stains precluded more specific examination. "Q Could you tell the age of that? "A They were relatively fresh. "Q What? "A Relatively fresh, not ancient. "Q Did you find any more blood in there? "A No, sir." By the testimony of State's witnesses, it was shown that the initial investigators of the crime found a "partial shoe print" on the carpet of the apartment of the victim. The section of the carpet with the partial shoe print was removed and admitted in evidence. As to it, Mr. Dale Carter, a criminalist and director of the Enterprise Laboratory of the Alabama Department of Toxicology and Criminal Investigation, testified: "A It's a piece of carpet with a partial footprint—reddish stained footprint on it. "Q And do the reddish stains show positive presumptive tests for blood? "A Yes, sir. "Q And where did you extract that piece of carpet? "A It was identified as being from the living room by the wall of the outside window. "Q Now, on this piece of carpet, did you measure the size of the partial shoe print? "A Yes, sir, I did as best I could. "Q Okay. "A Three and a half inches at the widest and eight and a half at the longest. ". . . . "Q Now, in your opinion, was this print made by a tennis shoe? "A In my opinion, this print was made by a shoe having a smooth sole and heel with no pattern. *936 "Q So then you would further state in your opinion that this print was not made by a tennis shoe? "A I can't state that because I have seen smooth bottom tennis shoes, even though they are not common. I myself own a pair." When State Toxicologist McCracken was asked on cross-examination whether the shoe print in the carpet was made by a tennis shoe, he replied, "If it were a flat soled tennis shoe, it could have. They are not common, but they are not uncommon." When asked whether it matched any of the shoes in the apartment occupied by the victim, he said, "I did not see anything it matched." Mrs. Graham, wife of defendant, testified that her husband came home "around one o'clock" the night of the murder. He ate something and went to bed. She said he had on "a white sweat shirt, a blue jeans, and sneakers" or tennis shoes. She did not wash any of the clothes prior to the time the search warrant was executed; "his blue jeans were still on the bar where he left it at, I did not wash it."; his shirt and his socks were sitting on the table when the search was commenced. She said that one of the officers looked at the same pants he had on the night of the murder. She said that the officers executing the search warrant went "through all of his shoes and all of his clothes and everything." According to her testimony, defendant had not worn the pants introduced in evidence, upon which there was testimony as to blood, in a "long time," that the pants were in a small box sitting in the corner in the kitchen on the floor, when the officers found them, that they were with a bunch of old clothes that she had taken to a garage sale to try to sell and had brought back home. Her husband was not wearing the pants the night of the murder. On the day before the search was made, her husband was in the kitchen cutting a cake and cut his finger. She told him to put a bandage on his finger, but he said, "It will heal faster if you don't put something on it." On cross-examination, she said she did not know whether her husband washed the shirt he wore the night of the murder between that time and the day of the search. According to the testimony of defendant, he and his son spent most of Sunday morning and afternoon at the Byrd Apartments, where he went to visit Captain Dortch, who asked him to stay over for the cookout. Except in the respect that he claimed that he was not as immodest and extrovertive in his behaviour as some of the testimony for the State indicated, there was no substantial conflict between his testimony and that of witnesses for the State. He said that his son, Christopher, played with "Therese," the victim's daughter. After some time he went outside and played with them and other children. He gave them "pony rides on my knee." He said, "I had my son sitting on one lap and had "Teresa" over here to get her up on the other leg and give them a ride. She didn't want to get up at one time, so I didn't force her." Mrs. Wilcynsky came out and brought some cold drinks for all the children. He had a conversation with Mrs. Wilcynski and asked one of the men he knew about her. He said he left the apartments about 5:00 P.M., which was earlier than some of the witnesses for the State said he left. According to the testimony of defendant, he arrived at Captain Dortch's apartment about 5:20 or 5:25 P.M. April 11. They sat around and talked until between 7:30 and 8:00. He had had a drink with Captain Dortch. Captain Dortch suggested at that time that defendant get them something to eat. As he went out of the apartment, he saw Mrs. Napier's daughter, Emily, and was having a conversation with her, when he saw Mrs. Napier arrive. He went into detail as to his conversation with Mrs. Napier. He started up the stairs with the bag of groceries and went with her and Emily into the apartment. There was little difference between his testimony and the testimony of Mr. and Mrs. Napier as to what happened at the apartment of the Napiers. He left about 9:00 P.M. to go to Captain Dortch's apartment to get a can opener, and as he left Captain Dortch's apartment with the *937 can opener, he saw Mrs. Wilcynski at the stairwell next to her apartment. He mentioned to her about the good time that his son had had playing with Mrs. Wilcynski's daughter the preceding Sunday. He said he did not go into Mrs. Wilcynski's apartment but went directly back to the apartment of the Napiers. He left that apartment again "shortly after 10:00." While going to Captain Dortch's apartment, he saw Mrs. Napier coming into the apartment building near the stairwell next to Mrs. Wilcynski's apartment and had conversation with her for a few moments and went to Captain Dortch's apartment and stayed there until "about 12:30." There was little difference between the testimony of defendant and that of Mr. Nowicki as to the conversation between the two. The defendant knew at that time that he was a suspect; his house had been searched and he had heard his name called in connection with the murder. The chief difference in his testimony and that of Mr. Nowicki was that defendant said that he had been at the "apartments where she lived on that night," instead of "at her apartment." According to further testimony of defendant, he wears a "size 10 or 10 ½" shoe. The shoes he had on at trial were eleven and five-eights inches long and four inches wide on the outside. On the night of the murder he had on a white sweat shirt, with the emblem "U. S. Army Aviation School" on it, a pair of athletic shorts with a similar emblem on the corner in white print and a pair of black and white sneakers, or "tennis shoes, or gym shoes, or whatever you call them." He exhibited to the jury his finger that he said he cut with a knife on Thursday morning after the murder. He did not put a bandaid on it right away but did after he saw that it wasn't going to stay closed. When the officers came out and searched his house they looked at about everything there, about all his clothes, "at least one of every pair of my shoes," took them out to the driveway and examined them and then started "bringing it back in one by one after they were satisfied with it, until they finally got to that light pair of pants that they found in the kitchen." They had obtained the pants from a box in the kitchen with a bunch of old clothes. His testimony as to them was substantially the same as that of his wife. He had not worn the particular pants, according to his recollection, since about six months or a year prior to the murder. Defendant moved for an exclusion of the evidence at the end of State's evidence, requested in writing and was refused the general affirmative charge in the defendant's favor at the conclusion of all the evidence, and filed a motion for a new trial, which the trial court overruled. There seems to be little difference of view between the parties as to the applicable principles to be applied as to the sufficiency of the evidence to justify denial of a motion to exclude the evidence, the refusal of the general affirmative charge requested in writing, or the denial of a motion for a new trial presenting an issue as to the sufficiency or weight of the evidence. The difference between them is as to the application of those principles to the evidence in this case, each arguing for his [its] side of the issue, without reference to any precedent in which the evidence was similar or the circumstances comparable. In most cases in which there is a serious dispute as to the sufficiency of the evidence to support a guilty verdict, there is a sharp conflict in the evidence as to material facts, some of the witnesses swearing one way and others another. In such cases, the task of an appellate court is generally easier than otherwise, for it can then lean more comfortably upon the responsibility of the trial court, as well as the trial jury, both of whom are in a better position to determine which witnesses have testified truthfully and which falsely. We do not have such a situation in the instant case, in which there is little, if any, material conflict in the evidence. On the question of the guilt or innocence of defendant of the crime charged, the evidence against him is entirely circumstantial; the evidence in his favor is both direct and circumstantial. It is a mistake, a common one, to denigrate the nature of circumstantial *938 evidence by considering it as inferior to direct evidence. That fallacy has been denounced, with the clarity of a clarion, by some of the greatest judicial minds of Alabama, state and federal, speaking from a wealth of wisdom and experience. Included, in the sequence of their statements, are Judge Seybourn H. Lynne, in United States v. Bostwick, N.D.Ala. (on appeal at 5 Cir., 218 F.2d 790); the late Judge Aubrey M. Cates, Jr., in Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270; Judge J. Russell McElroy, as now found in the third edition of his treatise on Alabama evidence, Gamble, McElroy's Alabama Evidence, § 212.01, and Judge John O. Harris, now our Presiding Judge, in Creel v. State, 53 Ala.App. 504, 301 So.2d 267, and subsequent cases. In comparing the relative strength of circumstantial and direct evidence and in declining to give preference to either, the reference is to the two kinds of evidence in general. It is axiomatic that in some cases the direct evidence may be stronger than the circumstantial evidence therein and in other cases the circumstantial evidence may be stronger than the direct evidence therein. At times, where there are both kinds of evidence that are irreconcilable and lead to opposite determinations as to the truth that is proved by the evidence taken as a whole, either direct evidence or circumstantial evidence may prevail over the other. To say that each "is entitled to the same weight" as the other is not to say that in every case each has the same weight as the other. It can be readily seen that circumstantial evidence can be more credible than direct evidence, for circumstances, when shown to be true, are disinterested and unbiased, while direct evidence must come from witnesses who are often either interested or biased, or both, or for other innate human weakness are unreliable in purportedly stating what they have seen or heard. Circumstantial evidence is often strong enough to so discredit direct evidence as to show that the direct evidence is not true, whether intentionally or mistakenly untrue. But if there is true direct evidence, such as truthful testimony of a witness that he, in fact, saw a person commit a crime, such testimony is not vitiated by circumstantial evidence, however unquestionably true it is and however strong it may be to the contrary. To conclude otherwise is to defy the principle that truth is never inconsistent with truth. The foregoing considerations lead us to special consideration of direct evidence in the case that is in conflict with strong circumstantial evidence of defendant's guilt. We should, and we do, in our general consideration of the evidence, include the direct evidence of defendant that is diametrically opposed to a conclusion of guilt, but for the special consideration of this time we refer particularly to the testimony of one of the witnesses for the State, Captain Bill Dortch. In its argument in its brief on appeal as to the testimony of Captain Dortch, appellee states: "Bill Dortch stated that Appellant returned to his apartment at approximately 10:30 p. m. and stayed until 12:00 or 12:30 a. m. Dortch also testified that he was sleeping during part of this time. Appellant, in his brief, maintains that this testimony established his alibi. This testimony, however, was contradicted by Mrs. Napier, who stated that she encountered the Appellant at 11:00 p. m. while she was returning from her car...." Although Dortch's answer to one question asked him on direct examination could understandably lead to the conclusion reached in the second sentence of the above quoted statement in appellee's brief, such conclusion is shown to be incorrect by a consideration of his testimony as a whole. By this it is not meant that there was any conflict in his testimony, merely that an answer of the witness, when considered in connection with the question asked him, was ambiguous, which ambiguity was clarified by other testimony of the witness. We have hereinabove set forth the particular question and answer and now repeat it: "Q Did you go to sleep during the time that he was there and the time he— "A Yeah, I was sleeping part of the time." *939 It is to be observed that the witness by his answer interrupted counsel before he had completed the question. The witness obviously jumped at his conclusion as to what was meant by the question, which conceivably could be reasonably interpreted as appellee has done, but for other testimony that leads to a different conclusion: "Q Okay, did Mr. Graham, between 10:30 and whatever time he left, did he leave at any time when he was in your apartment? "A No. "Q Were you and him carrying on a conversation the whole time? "A Yes, sir. "Q Were you looking at him this whole time? "A He was physically there. "Q And you were not asleep any of this time between 10:30 and 12:00? "A When he came in the door, he woke me up. "Q Between 10:30 and the time he left your apartment; you testified to between 12:00 and 12:30, not leave your apartment between 12:00 and 12:30. "A That's correct." The weakness of alibi testimony generally has been perennially considered. In many, if not most, cases there was such uncertainty or vagueness about the time of the crime or the time of the presence of defendant at another place that it could reasonably be said that he could have been at the place of the crime at the time of its commission. In many of the cases witnesses testifying as to an alibi were closely related to defendant and their interest in the outcome tended to discredit them. In almost all of such cases, the witnesses were not witnesses called by the State. The fact that Captain Dortch was called by the State as a witness does not in and of itself make his testimony any more credible than if he had been called by defendant, but it is a factor to be considered, along with all the other evidence and the respective contentions of the parties. It is to be seen that appellant's argument to the discredit of his alibi testimony is not correctly premised. Different from most cases in which an alibi is claimed and supported by considerable evidence, it seems to us that we are here faced with the positive testimony of a witness which, if true, establishes the presence of defendant at an apartment different from the one in which the murder was committed at the same time the murder was committed, and that fact would establish his innocence. It seems to us that the most reasonable conclusion to reach from the testimony of Captain Dortch is that defendant was not in the apartment of the victim of the murder at the time she was killed and, therefore, he did not kill her, or that Captain Dortch knowingly testified falsely. Whatever our individual thoughts may be on the subject, the record in and of itself, to which alone we can look, does not support the latter alternative. We view his evidence as strongly in favor of defendant on the merits of the case. There is nothing in the evidence or in the briefs of parties to lead us otherwise. We would not be justified in looking elsewhere for an answer. One of the grounds of the motion for a new trial referred to the evidence as to part of a hair from the bed of the victim that expert testimony showed had the same physical qualities and characteristics as hair from defendant's head. The Court in its order overruling defendant's motion for a new trial said: "The Court will take judicial notice of the scientific fact that a positive identification cannot be made by comparing a hair sample of an unknown origin with a hair sample of known origin. However, hair does possess a unique series of characteristics and a disputed hair can be compared for similarities with other human hair whose origin is known. Therefore, the Court finds that it was competent for the State Toxicologist, who was familiar with and an expert on the properties of human hair, to testify as to his analysis of the hair found at the scene of the crime and the hair taken from the body and head of the defendant." Though there was some value to the State in the testimony as to the resemblance of a *940 piece of hair taken from the bed of the victim and hair from defendant's head, it seems that it is not questioned that "positive identification" of defendant was not made by that comparison. It seems to us that neither side gained much by such testimony, even though each side gained some. The gain for the State is emphasized by the State's insistence as to the amount of its value as evidence. On the other hand, there is something to be said for the fact that out of the large number of hairs that were taken from the scene of the crime, there was only one piece of a hair tested that resembled defendant's hair and that only three hairs were Negroid. Moreover, the presence of a piece of defendant's hair in the bed of the victim is not irreconcilable with his claimed innocence, when due consideration is given to the undisputed evidence that defendant had played with the victim's three-year-old child two days before the murder. The evidence as to small stains on the steering wheel of defendant's automobile a few days after the murder that "gave a positive presumptive test for the presence of blood" is heavily relied upon by appellee, as it doubtless was on the trial. The toxicologist said that the "small sizes of stains precluded more specific examination," that the stains were relatively fresh. Whether fresher than the blood of the victim murdered two days before, there is no evidence. Appellee also refers to the blood upon a leg of appellant's pants as evidence in its favor. It is a circumstance calculated to be in favor of appellee when considered in connection with all the other evidence, but we find no answer to the position taken by appellant that the particular trousers were not the trousers that were worn by him the night of the murder. Whether true or not and whether strong or not, the evidence is undisputed that he was wearing shorts.[1] Not only did he say so, but Clyde Hamilton, Jr., when questioned about seeing defendant talking with Mrs. Wilcynski at the door of her apartment, testified: "Q Clyde, you say you saw him talking with her there at the door, and you didn't see him go in, did you? "A (Shaking head negatively). "Q Did you see Donna when she came walking around the apartment? "A No, she came out and she had short cut pants—Levis, she cut them and I didn't know where she was going. "Q And what did this man sitting here have on, do you remember? "A He had short blue pants, and I don't remember what kind. "Q Do you remember his shirt? Was it a white shirt, a sweat shirt, do you know what I mean? "A Yeah, but it wasn't—I don't—it was a short sleeve shirt, you know, what you said, but I don't know what color it was." On the subject of the clothing worn by defendant the night of the murder, the following testimony was given by Mr. Vincent Napier, with whom defendant spent considerable time: "Q Okay, what kind of clothes was Mr. Graham wearing that night? "A He had a sweat shirt, and maybe jeans or something casual [which we interpret casual]. I'm not sure. He was dressed like he might have been working out or something. "Q Okay, do you recall if he had on jeans? "A No, I couldn't say jeans or—I'm not for sure. "Q What about his shoes? "A No, sir. "Q But you say you do remember he looked like he had been working out or jogging? "A Something like that, or exercising. "Q Those are the type of clothes he had on that night? "A Yes, sir." The jury was entitled to the evidence presented to it as to that which stood the presumptive test as to blood on the steering wheel and on the trousers, but in our effort *941 to determine whether the evidence is sufficient to meet the test to which it must be subjected on this appeal, it is our view that it is not strong. This in light of all the evidence but without giving much weight to the evidence as to defendant's having cut his finger as constituting the source of any blood upon his trousers. Although the prosecution obtained an order of court requiring fingerprints of defendant that were made, there is no evidence tending to connect defendant with the crime by any of the numerous fingerprints lifted from the scene of the crime. No effort is attempted to be made to explain the presence of the partial footprint on the carpet of the victim's apartment. To say that it was defendant's would be purely a guess. The evidence indicates, although it does not conclusively show, that it was not. We conclude that there is much circumstantial evidence to support the verdict. A determination of its exact weight as compared with direct evidence, and some circumstantial evidence, to the contrary, may be extremely difficult, but it cannot prevail unless it is so strong that it cannot reasonably be reconciled with the theory that defendant is innocent. It is not sufficient to support a conviction if it does not exclude to a moral certainty every other reasonable hypothesis but that of the guilt of the accused. Failure to meet that test resulted in a reversal in Sumeral v. State, supra, and such test has heretofore been uniformly applied. Ellison v. State, 254 Ala. 428, 48 So.2d 176 (1950); Burgett v. State, 37 Ala.App. 469, 70 So.2d 429 (1954); Byrd v. State, 37 Ala.App. 121, 73 So.2d 376, cert. denied 261 Ala. 697, 73 So.2d 378 (1954); Whatley v. State, 37 Ala.App. 706, 75 So.2d 182 (1954); Bluth v. State, 38 Ala.App. 692, 92 So.2d 685 (1957); Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977). We would be required to say, as difficult as it may be to do so with satisfaction, whether there was sufficient evidence to warrant a refusal of the general affirmative charge in favor of defendant, if there had been no motion for a new trial raising the question of the sufficiency of the evidence. As there was such a motion for a new trial and it was overruled, we need only apply the test whether, after giving the learned trial judge the favorable presumption that is due him, the verdict is so contrary to the weight of the evidence that it is clear that it is palpably wrong or unjust. Skinner v. State, 22 Ala.App. 457, 116 So. 806 (1928); Davis v. State, 33 Ala. App. 299, 34 So.2d 15, cert. denied, 250 Ala. 240, 34 So.2d 17 (1948); Barker v. State, 55 Ala.App. 322, 315 So.2d 129, cert. denied, 294 Ala. 752, 315 So.2d 130 (1975); Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977). The test we are to apply is not whether we think that appellant is guilty. A verdict finding a defendant guilty in a criminal case is wrong and unjust, even though defendant is guilty, if the evidence of his guilt is not strong enough to meet the legal test required as stated above. Such a verdict, when properly challenged, cannot stand, even though there is strong reason to believe that if all of the true facts were known and shown in evidence guilt would be conclusively established. After giving the trial court the favorable presumption to which it is entitled, we conclude that, irrespective of whether appellant is guilty, the verdict is so contrary to the weight of the evidence that it is clear that the verdict is palpably wrong and unjust. By so holding we do not say that there is disagreement between us and the jury as to the guilt of defendant, but that the verdict is palpably wrong and unjust by reason of the extent of its contrariety to the weight of the evidence now before us. The defendant's motion for a new trial should have been granted. The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby reversed and rendered. REVERSED AND RENDERED. *942 HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur. TYSON and DeCARLO, JJ., dissent. TYSON and DeCARLO, Judges, dissenting. While we agree that the evidence in this cause against the appellant is largely circumstantial, nevertheless we are of the opinion that the evidence is sufficient to support the verdict. NOTES [1] The writer has examined the exhibit that constitutes the pants upon which the stain of blood was found. They are ankle-length and are labeled, "100% polyester."

299 F.Supp.2d 166 (2004) Timothy MULDROW, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. No. 02-CV-6080L. United States District Court, W.D. New York. February 3, 2004. *167 *168 Timothy Muldrow, Attica, NY, pro se. Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow ("Muldrow"), filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of two counts of second degree murder. For the reasons set forth below, Muldrow's § 2254 petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 28, 1993, Muldrow participated in the execution-style murder of two people in their home. There was a third victim who survived after being shot in the face. The motivation for the killings was to silence witnesses to previous murders committed by a drug-dealing associate of Muldrow named Jerold Usher ("Usher"). Two days after the shootings, the police seized five guns and other contraband from Muldrow's apartment. Testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test-fired from a third gun were consistent with those used to shoot the other two victims. Muldrow was indicted jointly with two of the three co-defendants, Raymond Stubbs ("Stubbs") and Anthony McGee ("McGee"), on two counts of murder in the second degree (New York Penal Law ("P.L.") §§ 125.25(1) and 20.00); two counts of felony murder (P.L. §§ 125.25(3) and 20.00); one count of attempted murder in the second degree (P.L. §§ 125.25, 110.00, and 20.00); and one count of assault (P.L. §§ 120.10 and 20.00). Muldrow, Stubbs and Anthony were tried jointly. The fourth perpetrator, Thearthur Grimes ("Grimes"), was tried separately because he confessed to the police that he was present when the murders were committed and implicated Muldrow and McGee as the gunmen. After a jury trial in Monroe County Court, Muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of imprisonment of 25 years to life on each count. Muldrow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, 2000. The Court of Appeals denied leave to appeal on September 20, 2000. This federal habeas corpus petition followed. DISCUSSION Muldrow asserts two grounds for entitlement to habeas relief, both of which stem from his appellate counsel's alleged incompetence.[1] First, Muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts at his trial: McGee was acquitted of all counts of the indictment, Stubbs was convicted on all counts of the indictment, and Muldrow was convicted on the felony murder counts only. Muldrow claims that each co-defendant was required to be acquitted or convicted of the same counts of the indictment in order for the verdicts to be consistent. *169 A claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001). Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. 746 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (citations omitted). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 U.S. at 754, 103 S.Ct. 3308; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. Muldrow's appellate counsel raised three important issues in a thorough appellate brief to the Fourth Department, crafting persuasive arguments as to why the consent to search Muldrow's apartment given by his brother was invalid and why the trial court abused its discretion in allowing David Crutcher ("Crutcher"), who suffered from schizophrenia, to testify at trial. These two issues in particular were of the utmost importance to Muldrow's case, since the ballistics evidence from the guns seized from his apartment, together with Crutcher's testimony, strongly linked him to the murder. In contrast, the repugnant verdict issue urged by Muldrow in this habeas petition was neither significant nor promising on appeal, and it was entirely reasonable for Muldrow's appellate counsel to omit it. Because Muldrow has failed to demonstrate that his appellate counsel's performance was unreasonable, he cannot meet the first prong of the standard by which ineffective assistance claims are judged. However, even if he could establish that his appellate counsel's lawyering was deficient, Muldrow has not demonstrated that he was prejudiced by the deficiency. Because Muldrow and his codefendants were indicted and charged individually for the crimes of murder, as well as in accordance with accomplice liability pursuant to P.L. § 20.00,[2] it is clear that there were, in fact, no inconsistencies in the verdicts. Respondent correctly notes that the jury had to assess the evidence against each of three defendants *170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is of no legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincing as to the defendant (McGee) who was acquitted. Thus, the issue now raised by Muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel's neglect in pursuing the issue because there was no "reasonable probability" that the omitted issue would have succeeded even had it been argued on appeal. See Torres v. Irvin, 33 F.Supp.2d 257, 267 (S.D.N.Y.1998) (even if petitioner could establish that appellate counsel's advocacy was deficient, he suffered no prejudice because no "reasonable probability" that the omitted claims would have succeeded) (citing Mayo, 13 F.3d at 534); Angel v. Garvin, 2001 WL 327150 at *10 (S.D.N.Y. Apr.3, 2001) (finding that petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence). Moreover, an allegedly inconsistent verdict does not present a constitutional violation. Therefore, such a claim is not even cognizable on habeas review. The Supreme Court explained in United States v. Powell that where truly inconsistent verdicts have been reached, the most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.... It is equally possible that the jury, convinced of guilt, properly reached its conclusion ... then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense. 469 U.S. 57, 58, 64-65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (internal quotations and citation omitted); see also Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("Inconsistency in a verdict is not a sufficient reason for setting it aside."); United States v. Acosta, 17 F.3d 538, 544-45 (2d Cir.1994) ("Even assuming that the verdict against Acosta was inconsistent with the verdicts as to his codefendants, we find no basis for relief, for it has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty."); Savage v. Berbary, 1991 WL 147371 at *2 (W.D.N.Y. July 22, 1991) ("Alleged inconsistencies in state court verdicts are not a proper ground for federal habeas corpus intervention...."); Billups v. Costello, 1992 WL 170650 at *4 (S.D.N.Y. July 6, 1992) ("As long as a conviction is the result of a fair trial at which legally sufficient evidence has been adduced, its inconsistency with another verdict does not create a constitutional defect."). As his second ground for habeas relief, Muldrow claims that his appellate counsel was ineffective in failing to argue that he was improperly convicted of felony murder in light of the prosecution's alleged failure to prove a necessary element of burglary, the underlying felony charged in this case. Petitioner's Habeas Brief, Dkt. # 2 at 11. I find that this argument lacks merit and that counsel was justified in not raising it. Under New York law, all degrees of burglary require proof that the defendant "knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein." See, e.g., P.L. § 140.25. Muldrow complains that "the trial proof was absent as to that intended *171 crime," leaving "the jury to speculate as to the intended crime." Dkt. # 2 at 12. As respondent points out, the prosecution need not establish what particular crime the intruder intended to commit in order to satisfy the elements of burglary under New York law. Respondent's Habeas Brief, Dkt. # 5 at 8 (citing People v. Mackey, 49 N.Y.2d 274, 279, 425 N.Y.S.2d 288, 401 N.E.2d 398 (1980) (the New York Penal Law "definition of burglary is satisfied if the intruder's intent, existing at the time of the unlawful entry or remaining, is to commit any crime")); accord People v. Gaines, 74 N.Y.2d 358, 362 n. 1, 547 N.Y.S.2d 620, 546 N.E.2d 913 (1989). Moreover, it is not necessary for the intended crime to be committed. Rather, "the intent necessary can be inferred from the circumstances of the entry itself." Mackey, 49 N.Y.2d at 279, 425 N.Y.S.2d 288, 401 N.E.2d 398. Muldrow contends that the prosecution never proved that he entered the house. Dkt. # 2 at 12. Although the gunmen were wearing black hats and their faces were partially concealed by their clothing, there was more than adequate circumstantial evidence at trial placing Muldrow at the scene of the crime. Crutcher, who lived in an apartment commandeered by Stubbs, McGee and Muldrow to sell cocaine, see Tr. at 1265-73, 1301, overheard Muldrow and his associates planning to kidnap the witnesses to the murder committed by Usher, see id. at 1280-87. Crutcher paid a friend to steal a car for him which he in turn provided to the defendants.[3]Id. at 1293-1300. On the night of the murder, Stubbs showed Crutcher four guns in a bedroom at the apartment and said, "`[T]his is what we're going to use tonight.'" Id. at 1302-03. Later that evening, when the defendants left in search of the witnesses, Crutcher observed Muldrow armed with one of the guns Stubbs had shown him earlier. About 45 minutes later, Crutcher testified that Stubbs returned to the apartment acting in an extremely emotional manner and demanded to know whether Muldrow, McGee or Grimes had called. Id. at 1316-19. The ballistics evidence provided further corroboration linking Muldrow to the shootings. Testing of the bullets recovered at the scene established that two of the guns found in Muldrow's apartment fired the bullets that killed one of the victims. The bullets fired at the second murder victim and the wounded victim shot were consistent with having come from a third gun found in Muldrow's apartment. In addition, Muldrow fled when the police stopped the car in which he was riding, but was caught after a foot chase. His unprovoked flight from the authorities reasonably could be viewed by the jury as an indicator of guilt. See United States v. Amuso, 21 F.3d 1251, 1259 (2d Cir.) (jury could rationally infer that flight was indicative of guilty conscience), cert. denied, 513 U.S. 932, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994); Stone v. Stinson, 121 F.Supp.2d 226, 243 (W.D.N.Y. 2000) (petitioner's flight from Buffalo to Virginia following shootings could properly be considered by the jury as indicative of guilt); see also United States v. Malizia, 503 F.2d 578, 582-83 (2d Cir.1974) ("Evidence of flight, like any other circumstantial evidence, has consistently been admissible as evidence of guilt if considered with other facts of the case."), cert. denied, 420 U.S. 912, 95 S.Ct. 834, 42 L.Ed.2d 843 (1975). There was ample testimony from which the jury could have inferred that Muldrow *172 unlawfully entered the victims' home and intended to commit a crime while there. Consequently, the argument that the prosecution failed to prove all the elements of the burglary underlying the felony murder charge likely would not have succeeded on direct appeal. Appellate counsel thus acted reasonably in failing to raise it, and Muldrow was not prejudiced by the omission of this meritless argument from his appeal. I find that Muldrow was represented ably by the public defender on his direct appeal, and that his claims of ineffective assistance of appellate counsel are without merit. CONCLUSION For the reasons stated above, Timothy Muldrow's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Muldrow has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. 28 U.S.C. § 2253. Further, I certify that any appeal from this order would not be taken in good faith. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438, 444, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). IT IS SO ORDERED. NOTES [1] Muldrow raised both of these claims in an application for a writ of error coram nobis which was summarily denied by the Fourth Department on April 27, 2001. See Petition, Docket ("Dkt.") # 1 at 8. Thus, the claims are exhausted and properly before this Court on habeas review. [2] The third and fourth counts of the indictment, each charging murder in the second degree in violation of P.L. §§ 125.25 and 20.00, state that the defendant "while acting alone or with one or more persons, committed or attempted to commit...." [3] Crutcher was deemed to be an accomplice as a matter of law based on his role in procuring the vehicle allegedly used by the defendants in their commission of the murders.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2039 ___________ Randy P. Rumsey, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Jo Anne B. Barnhart, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12, 2002 ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. ___________ PER CURIAM. Randy P. Rumsey appeals from the district court's1 dismissal, for lack of jurisdiction, of his petition for review of an agency determination that his claim for disability insurance benefits was barred by administrative res judicata. We affirm. 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, adopting the Report and Recommendation of the Honorable Beverly Stites Jones, United States Magistrate Judge. A federal district court's jurisdiction to review decisions regarding disability benefits is governed by 42 U.S.C. § 405(g). That section provides for review only of a "final decision of the Commissioner . . . made after a hearing." An agency's application of res judicata2 or refusal to reopen a prior determination is not a "final decision" within the meaning of section 405(g). King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996). But there is a narrow exception where the Commissioner reconsiders the merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F.2d 507, 508 (8th Cir. 1985)). Such a claim is treated as having been reopened as a matter of administrative discretion and is, therefore, subject to judicial review to the extent it has been reopened. Id. The Commissioner dismissed Rumsey's current application for disability insurance benefits as duplicative of an earlier, unsuccessful claim that alleged the same disability. After a hearing, an Administrative Law Judge ("ALJ") dismissed Rumsey's present claim as barred by the final decision in his earlier claim. The ALJ did not consider the merits of the earlier claim, but, as the district court noted, merely "made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for reopening the previous claim had been met." Because the ALJ did not reopen Rumsey's earlier claim, and because its dismissal for res judicata was not a "final decision" within the purview of 42 U.S.C. § 405(g), we have no jurisdiction to review it. We affirm the judgment of the district court. 2 Under the Commissioner's regulations, a request for a hearing may be dismissed as precluded by the doctrine of res judicata. 20 C.F.R. § 404.957(c)(1). And this court has endorsed the application of res judicata in an administrative context. Rush v. Sec'y of Health and Human Servs., 738 F.2d 909, 914 (8th Cir. 1984). -2- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3- 

525 S.E.2d 278 (2000) Laura Lee COMBS v. VIRGINIA ELECTRIC & POWER COMPANY, et al. Record No. 990534. Supreme Court of Virginia. March 3, 2000. *279 David D. Walker (George R. Walton, Mechanicsville, on brief), for appellant. Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George W. Marget, *280 III; Hunton & Williams, on brief), Richmond, for appellee. Present: CARRICO, C.J., COMPTON,[1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, Justice. In this personal injury action, the sole question is whether the circuit court correctly ruled that an employee's exclusive remedy against an employer is under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through -1310. Because we conclude that the employee suffered an "injury by accident arising out of and in the course of . . . employment," Code § 65.2-101, we will affirm the circuit court's judgment sustaining the employer's special plea in bar. FACTS AND PROCEEDINGS Virginia Electric and Power Company (Virginia Power) arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by Virginia Power's employees was voluntary. Virginia Power advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. The plaintiff, Laura Lee Combs, was an employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in the aerobics class and, while doing so, developed a severe headache. The aerobics instructor assisted Combs in lying down and then called Virginia Power's Employee Health Services (EHS), as she had been instructed to do by the EHS coordinator of health programs. The EHS receptionist answered the call and informed Sharon Robinson, EHS coordinator of administrative support, that someone in the aerobics class had a headache and needed some medication. Shortly thereafter, Robinson went to the aerobics room to determine what was happening with regard to Combs. When Combs' head pain did not subside, she was taken to the EHS "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. After she went to the "quiet room," Combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone. Approximately two hours after Combs entered the "quiet room," Robinson checked on Combs and discovered that Combs had vomited on herself and was in a coma-like state. Robinson then called security. Combs was eventually transported by ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. She subsequently underwent two neurological operations. After release from the hospital, she entered a rehabilitation center where she received therapy for her partial paralysis and cognitive brain damage. On April 30, 1996, Combs filed a motion for judgment against Virginia Power and four of its employees, alleging that the defendants owed her a duty to "have in place proper procedures, and to properly train ... personnel, so that employees using EHS could do so without harm to themselves and detriment to their well-being." Combs further asserted that the defendants breached these duties and were negligent by, inter alia, failing to properly train non-medical personnel working in EHS; failing to implement procedures to provide appropriate medical care to Virginia Power employees who seek treatment at EHS, especially when licensed healthcare professionals are unavailable; and failing to provide proper medical care and treatment when Combs suffered a medical emergency, thereby leaving her unattended for approximately two hours before calling security and *281 a rescue squad. Finally, Combs alleged that the defendants' negligence proximately caused her injury and damages.[2] In response, the defendants filed grounds of defense and a "Special Plea of Workers' Compensation Bar." In the special plea, they asserted that the exclusivity provision of the Act, Code § 65.2-307, barred Combs' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim.[3] Accordingly, the defendants asked the court to dismiss Combs' action. After reviewing the parties' memoranda, the circuit court sustained the special plea and dismissed Combs' action with prejudice. In a letter opinion, the court concluded that the aggravation and acceleration of Combs' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment with" Virginia Power, and that her action was therefore barred by the exclusivity provision of the Act. We awarded Combs this appeal. ANALYSIS "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry in this appeal is whether Combs' injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code § 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then Combs' claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim. I. INJURY BY ACCIDENT This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, we held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident[,] or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. The circuit court found all these factors present with regard to Combs' injury, and we agree. At the outset, it must be emphasized that Combs' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation, and/or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache during the aerobics class. Thus, Combs' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced the first onset of symptoms is irrelevant to the question whether she sustained an "injury by accident." The record in this case, in particular Combs' motion for judgment, demonstrates that she suffered an "injury by accident" under Code § 65.2-101. The particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted *282 from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143, 149 (1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). II. ARISING OUT OF EMPLOYMENT The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, we have repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 215 Mass. 497, 102 N.E. 697 (1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Id. at 697; accord Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962); Bradshaw, 170 Va. at 335, 196 S.E. at 686. In Virginia, we apply an "actual risk test," meaning that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public's exposure generally to similar risks. Lucas, 212 Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal connection between Combs' injury and the conditions of her employment, then her injury arose out of her employment. See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) ("An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed."). Combs argues that EHS was not actually a clinic for the treatment of employee health problems and that, therefore, it was not a condition of her employment. Thus, she contends that her injury did not "arise out of" her employment. Assuming that Combs is correct about the purpose of EHS, the fact remains that on the day in question, the risk of employment was the alleged negligent emergency medical treatment by EHS personnel, which aggravated her pre-existing aneurysm. Combs was exposed to this risk or condition of employment solely because she was a Virginia Power employee. The public generally would not have been exposed to the same risk because only Virginia Power employees could utilize EHS. In fact, Combs alleged in her motion for judgment that Virginia Power and its employees owed certain duties to her "so that employees using EHS could do so without harm to themselves and detriment to their well-being," and that the defendants violated those duties, thereby causing injury to her. She further asserted that the employee defendants were acting within the scope of their employment when they allegedly injured her. Combs, nevertheless, argues that her situation is like that of the employee in Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705 (1994), because she did not involuntarily, or out of "default[]" as the circuit court found, seek medical treatment at EHS. In Taylor, an employee visited a doctor at his employer's *283 clinic for treatment of a heart condition. The employee ultimately suffered a fatal heart attack at home although the doctor had advised him that he was not suffering from heart disease. Id. at 103-04, 444 S.E.2d at 706-07. This Court concluded that the employee's risk of exposure to negligent treatment by the doctor was not an actual risk of employment because the employee voluntarily opted to use the doctor at the employer's clinic. He was not required to do so by his employer, nor was he treated by that doctor because he became ill at work. Id. at 107, 444 S.E.2d at 708. In contrast, Combs suffered her severe headache while participating in the aerobics class at Virginia Power's office. While taking part in that class was not required by Virginia Power, EHS personnel treated Combs because of her status as a Virginia Power employee. In fact, the aerobics instructor called EHS when Combs became ill because Virginia Power's EHS coordinator had directed the instructor to do so. Thus, the risk that led to Combs' injury was part of her work environment. See Briley, 240 Va. at 198, 396 S.E.2d at 837. Additionally, the fact that her injury was the aggravation of a pre-existing condition does not alter the result that her injury arose out of her employment. See Ohio Valley Const. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) ("When an injury sustained in an industrial accident accelerates or aggravates a pre-existing condition, death or disability resulting therefrom is compensable under the Workers' Compensation Act."). Combs' pre-existing aneurysm united with an actual risk of her employment to produce her injury. III. IN THE COURSE OF EMPLOYMENT "The phrase arising `in the course of' [employment] refers to the time, place, and circumstances under which the accident occurred." Johnson, 237 Va. at 183, 376 S.E.2d at 74. "An accident occurs `in the course of the employment' when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto." Bradshaw, 170 Va. at 335, 196 S.E. at 686; accord Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner, 203 Va. at 208, 123 S.E.2d at 396. Combs argues she was not performing any duty of her employment at the moment when she initially needed emergency medical treatment. As she correctly notes, the pre-existing aneurysm was not caused by her employment, and she was participating in an aerobics class during her lunch hour when she first experienced the headache. Thus, she contends that "the reason she ended up at EHS was not in any way connected with her employment[,]" and, therefore, that her injury did not occur during the course of her employment. We do not agree. Combs' position on this issue overlooks several salient facts. First, Combs is not seeking redress for the onset of the symptoms associated with the aneurysm but for the aggravation of that pre-existing condition. The aggravation of the aneurysm occurred after EHS personnel responded to the call for assistance from the aerobics instructor, during Combs' period of employment, and at a place where she could reasonably be if she became ill at work, i.e., the "quiet room." The only reason that EHS responded to that call was because Combs was a Virginia Power employee. Thus, Combs "was injured at a place where she was reasonably expected to be while engaged in an activity reasonably incidental to her employment" by Virginia Power. Briley, 240 Va. at 198, 396 S.E.2d at 837. Her injury therefore occurred "in the course of" her employment. CONCLUSION For these reasons, we conclude that Combs' injury was an "injury by accident arising out of and in the course of [her] employment" with Virginia Power, Code § 65.2-101, and is therefore compensable under the Act. Her action in the circuit court is thus barred by Code § 65.2-307. Accordingly, we will affirm the judgment of the circuit court. Affirmed. NOTES [1] Justice Compton participated in the hearing and decision of this case prior to the effective date of his retirement on February 2, 2000. [2] Combs also filed a claim with the Virginia Workers' Compensation Commission on May 23, 1996. Virginia Power subsequently filed a report regarding the accident with the Commission. [3] Code § 65.2-307 provides that "[t]he rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee ... on account of such injury...."

766 F.Supp.2d 797 (2011) In the Matter of the COMPLAINT OF PRIDE OFFSHORE, INC., as Owner of the J/U Pride Wyoming for Exoneration from, or Alternatively, Limitation of Liability. Civil Action No. H-08-3109. United States District Court, S.D. Texas, Houston Division. February 2, 2011. *798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out of damage allegedly caused when a jack-up rig, the PRIDE WYOMING, detached from its moorings during Hurricane Ike in September 2008. Pride Offshore, Inc.,[1] the rig owner, filed a complaint in exoneration or alternatively for limitation of liability, (Docket Entry No. 1), and Century Exploration New Orleans, Inc. filed a claim, (Docket Entry No. 47). Pride Offshore moved for summary judgment, arguing that the economic-loss rule precludes Century Exploration's claim. (Docket Entry No. 75). Century Exploration responded with a different theory and asked for leave to amend. (Docket Entry No. 77). Pride Offshore replied, arguing that this court should grant its motion for summary judgment and deny Century Exploration's motion to amend as futile. (Docket Entry No. 78). For the reasons explained below, this court grants Pride Offshore's motion for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An amended complaint must be filed by February 25, 2011. I. Background The PRIDE WYOMING was a 250-foot mat slot jack-up rig operating in the Gulf *799 of Mexico. (Docket Entry No. 1 ¶ 4). When Hurricane Ike struck in September 2008, the rig was located in Ship Shoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5). The hurricane blew the rig off its location, causing it to sink. (Id. ¶ 6). Parts of the PRIDE WYOMING's wreckage settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPS). (Id. ¶ 7). Pride Offshore filed this complaint on October 20, 2008. (Docket Entry No. 1). On August 18, 2009, Century Exploration filed its claim, alleging that part of the wreckage from the PRIDE WYOMING "struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Century had property interests in one such pipeline and contributed to its repairs." (Docket Entry No. 47, ¶ 3). Century Exploration claimed approximately $21 million in damages "caused solely by, and ... wholly due to, the unseaworthiness of the J/U Pride Wyoming, the negligence of her master and crew, and the negligence of her owners and operators." (Id. ¶¶ 5-6). On January 11, 2010, Century Exploration amended to add allegations of recklessness and intentional misconduct. (Docket Entry No. 63 ¶ 5). Neither version of the claim alleged that Century Exploration was aware of Pride Offshore's contract to use the TGPC pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is that Century Exploration's amended claim is insufficient because it fails to allege that Pride Offshore knew of Century Exploration's contract with TGPC. The second is that Century Exploration lacks evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. II. Analysis A. The Legal Standards Pride Offshore's motion concerns the application of the Robins Dry Dock rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the Supreme Court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party's property. "Their loss arose only through their contract with the owners— and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong." Id. at 308-09, 48 S.Ct. 134 (citations omitted). "Although criticized from time to time, Robins Dry Dock remains good law." Allders Int'l Ltd. v. United States, No. 94 CIV. 5689(JSM), 1995 WL 251571, *2 (S.D.N.Y. Apr. 28, 1995). "The Fifth Circuit continues to apply the Robins Dry Dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract." Norwegian Bulk Transport A/S v. Int'l Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir.2008) (citing Amoco Transport Co. v. S/S MASON LYKES, 768 F.2d 659 (5th Cir.1985)). "Since the Amoco Transport decision, the Fifth Circuit ... has not recognized exceptions to the rule in Robins Dry Dock outside of the context of collision cases." Id. at 413 (citations omitted). The first ground Pride Offshore asserts in moving for summary judgment rests on the sufficiency of Century Exploration's amended complaint. "[A] summary-judgment motion may be made on the basis of the pleadings alone, and if this is done it *800 functionally is the same as a motion to dismiss for failure to state a claim ...." 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713, at 222-23 (3d ed. 1998) (citations omitted). A complaint may be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Twombly abrogated the Supreme Court's prior statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 562-63, 127 S.Ct. 1955 ("Conley's `no set of facts' language... is best forgotten as an incomplete, negative gloss on an accepted pleading standard...."). To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court explained that "the pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) ("[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal."); see also United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004) ("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion." (internal citation omitted)). However, a plaintiff should be denied leave to amend a complaint if the court determines that "a proposed amendment ... clearly is frivolous, advancing a claim or defense that is legally insufficient on its face ...." 6 WRIGHT, MILLER & KANE § 1487, at 732-33; see also Ayers v. Johnson, 247 Fed.Appx. 534, 535 (5th Cir.2007) (unpublished) (per curiam) ("`[A] district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.'" (quoting Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir.1999))). The second basis for Pride Offshore's motion is the sufficiency of the evidence in the record to raise a disputed fact issue material to Century Exploration's claim. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 *801 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by "`showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). "A fact is `material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). When the moving party has met its Rule 56(a) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007). "This burden will not be satisfied by `some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'" Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008). B. Whether Century Exploration's Amended Claim Sufficiently Alleges Intentional Interference with Its Contractual Relations Century Exploration's amended claim alleges that Pride Offshore acted recklessly and intentionally. Citing Nautilus Marine, Inc. v. Niemela, 170 F.3d 1195, 1196-97 (9th Cir. 1999), Pride Offshore argues that "there is no exception to the Robins Dry Dock rule for intentional or reckless conduct." (Docket Entry No. 75 at 6). Century Exploration responds that Pride Offshore overstates the holding of Nautilus Marine. According to Century Exploration, the Ninth Circuit in Nautilus Marine did not rule that a defendant intentionally interfering with a contract would be covered by the economic-loss rule. Instead, the court ruled only that a defendant acting without knowledge of the contract in question would be covered by that rule. (Docket Entry No. 77 at 3 (citing Nautilus Marine, 170 F.3d at 1196-97)). Century Exploration argues that Pride Offshore "intentionally placed a patently inadequate rig on the [sea floor], knowing that it would not withstand hurricane force conditions and would not remain on site. Pride, a long-time driller on the [Outer Continental Shelf] knew that if the rig came loose, it would certainly damage subsea pipelines which permeate the seabed. Pride also knew that the producers on the [Outer Continental Shelf] would have contracts with pipeline owners to transport the oil and gas to shore, and knew that the damage to the pipelines would cause the production facilities to shut down." (Docket Entry No. 77 at 6). The arguments that Century Exploration makes in its response are not alleged in its claim, even as amended. Century Exploration's amended claim does not refer to Pride Offshore's knowledge of its contract with TGPC. Acknowledging this *802 gap, Century Exploration asks leave to file an amended complaint reciting these factual allegations. (Id. at 6 n. 4). Pride Offshore argues that the proposed amended claim would be futile. Pride Offshore faults Century Exploration for: fall[ing] short of alleging that [Pride Offshore] ever had actual knowledge of Century's contracts with TGPC. Century is simply trying to ignore the requirement that [Pride Offshore] have actual knowledge of the contracts because it could never prove such an allegation, and it is attempting to get by with merely alleging reckless allision. However, as the Ninth Circuit made clear, `an intent to allide does not equate to an intent to interfere with the defendant's contract.' [Pride Offshore] must have had actual knowledge of Century's contract with TGPC and let its drilling rig loose in a hurricane in order to interfere with a particular contract. Century knows it is unable to even plausibly allege that [Pride Offshore] had actual knowledge of Century's contracts with TGPC, or intentional interference with these contracts, and therefore Century's proposed pleadings amendment would be futile. (Docket Entry No. 78 at 4-5) (footnote, citation, and alterations omitted). In responding to Century Exploration's arguments, Pride Offshore appears to have scaled back its characterization of the Nautilus Marine court's holding. In the response, Pride Offshore characterizes the case as holding that "an intent to allide does not equate to an attempt to interfere with the defendant's contract." (Docket Entry No. 78 at 5 (quoting Nautilus Marine, 170 F.3d at 1197) (alterations omitted)). This accurately reflects the holding. The Ninth Circuit distinguished the facts before it from those in "cases holding that Robins Dry Dock does not preclude recovery for intentional interference with contract relations." Nautilus Marine, 170 F.3d at 1197. "The key to these cases," the court explained, "is not merely that the tort is intentional, but that the tortfeasor knew of the plaintiff's contractual relation and intended to interfere with it. Nautilus has not stated a claim of intentional interference with contractual relations, however, precisely because it did not allege, and could not show, such knowledge and intent." Id. (citations omitted). Century Exploration's characterization of the holding is consistent. Because Century Exploration has effectively sought leave to amend without filing a proposed amended complaint, it is difficult to determine whether it proposes to allege that Pride Offshore knew of specific contracts between Century Exploration and TGPC or that Pride Offshore knew that Century Exploration had to have contracts with some pipeline owner. To provide a sufficient basis to rule on the futility claim, Century Exploration will be granted leave to file an amended complaint. The allegations in an amended claim will enable Pride Offshore to clarify the basis for its motion to dismiss and enable this court to rule whether the allegations are sufficient. The motion for summary judgment based on the adequacy of the pleadings is granted, with leave to amend. C. Whether Century Exploration Has a Proprietary Interest in the Pipeline Pride Offshore also argues that summary judgment is appropriate under Robins Dry Dock for any claim based on Pride Offshore's negligence on the basis that the undisputed facts show that Century Exploration did not have a proprietary interest in the damaged pipeline. Courts consider three factors to determine whether a plaintiff's interest is proprietary: "actual possession or control, responsibility *803 for repair and responsibility for maintenance." IMTT-Gretna v. Robert E. Lee SS, 993 F.2d 1193, 1194 (5th Cir.1993) (summary calendar) (citing Tex. Eastern Trans. v. McMoRan Offshore Explor., 877 F.2d 1214, 1225 (5th Cir.1989)). If a plaintiff cannot meet any of the factors, the case must be dismissed. Id. In its response, Century Exploration explains that it "does not rely upon" a proprietary interest in the pipeline to justify recovery. (Docket Entry No. 77 at 1-2). This statement, as Pride Offshore points out, abandons the negligence claim. Century Exploration does not concede that Pride Offshore is correct. In a footnote, citing no authority, Century Offshore argues: With respect to the proprietary interest issue, the evidence is, and [Pride Offshore] does not dispute, that subsequent to the pipeline damage, Century contributed to the cost of repairs. One of the critical indicia of proprietary interest is liability for repairs. The fact that Century incurred this liability post-accident is immaterial. Century's contribution to repairs is sufficient evidence of its proprietary interest. At a minimum, Century is entitled to recover its contribution to the repair costs. (Id. at 2 n. 1). Pride Offshore responds in a footnote of its own, also without citing authority: "Although `responsibility for repairs' is one factor considered in determining whether a proprietary interest existed at the time of the damage, Century has already admitted that it was not responsible for repairs to the [pipeline] at the time of the alleged damage." (Docket Entry No. 78 at 2 n. 3). Century Offshore has acknowledged that it has no proprietary interest in the pipeline. Its contribution to the repair costs does not raise a fact issue as to whether it has a negligence claim against Pride Offshore seeking to recover such payments. The motion for summary judgment based on the absence of a proprietary interest in the damaged pipeline is granted. III. Conclusion Pride Offshore's motion for summary judgment is granted for the reasons set out above. Century Exploration may amend its complaint no later than February 25, 2011. NOTES [1] The parties have noted that for the purpose of this proceeding, Seahawk Drilling, Inc. is the successor-in-interest to the plaintiff, Pride Offshore, Inc. (Docket Entry No. 50 at 1 n. 1). For simplicity, the plaintiff is referred to as Pride Offshore.

202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE. No. 13236. United States Court of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Angeles, Cal., for appellant. John W. Olson, Los Angeles, Cal., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This action is for damages for personal injury sustained by appellee in consequence of the disintegration of an allegedly defective panel raiser head manufactured by appellant, an Illinois corporation, and shipped by it to appellee's employer in California, of which state appellee is a resident. A verdict awarding damages was returned and a judgment entered thereon. 2 On appeal from that judgment, Woodworkers Tool Works v. Byrne, 9 Cir., 191 F.2d 667, this court held with appellee on the merits. But a motion of appellant to quash the service of summons had been denied by the trial court, and we thought, 191 F.2d at pages 670-673, that the showing before the court at the time the motion was ruled on, going to the issue whether appellant had constituted one Preuer by law an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however, that during the course of the trial substantial oral evidence had been received tending to show the existence of the necessary agency relationship between appellant and Preuer, and we summarize this evidence, 191 F.2d at page 673; but it was further noted that the trial judge regarded the jurisdictional problem as having already been determined, hence had not taken the oral evidence into account except for such bearing as it might have on the merits. 3 We were of opinion that the issue of the validity of the service, inasmuch as it was one of due process, was open to further examination and that the evidence adduced on the trial might properly be considered as supplementing the original showing on that issue. We said, 191 F.2d at page 673, that "if there be added to the evidence which was before the court at the time of the denial of the motion to quash the service of the summons the evidence adduced at the trial, particularly that of Preuer hereinbefore referred to there might be a basis to sustain a conclusion that Woodworkers Tool Works had made Preuer its agent. This issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remand it will be necessary for the court below to make an appropriate finding upon the present record." 4 After consideration and disposition of the remaining issues the court made the following order: "To the end that the court below may determine the question of whether the evidence now in the record is sufficient to sustain Byrne's contention that Woodworkers Tool Works made Woodworkers Supply Company, viz., Preuer, its agent for the service of process in California, we vacate the judgment and remand the cause with the direction to the court below to proceed to determine that issue. If the court determines the evidence of agency to be sufficient it will possess the authority to reinstate the judgment."1 5 Neither party petitioned for a rehearing. 6 Upon remand the trial court on the existing record made appropriate findings of fact as shown in the footnote,2 and concluded that at and prior to time of service appellant was doing business in California through Preuer as its agent, and had by law constituted him its agent in California to receive service of process in its behalf. The judgment was ordered reinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court's finding of agency. Is the point now open to inquiry? We think not. This court's original decision constitutes the law of the case. It clearly implied that on the evidence in the record the issue was one of fact for the trial court's determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. We would have been obliged to reverse the judgment outright. Nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought it proper to undertake at that juncture the very considerable and perhaps wholly futile task of passing on the merits. Taking the opinion by its four corners we construe it as holding that the trial court's finding of fact was to be accepted as conclusive of the question of the validity of the service. 8 True, the rule we apply here is not a compulsive principle akin to res judicata. The phrase law of the case expresses rather the general practice of the courts to decline to reopen what they have already in effect decided. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152. Cf. People of State of Illinois ex rel. Hunt v. Illinois Central R. Co., 184 U.S. 77, 91, 22 S.Ct. 300, 46 L.Ed. 440. The rule is grounded in large part on the policy of ending litigation, and in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. And it has been pointedly observed that if the practice were not followed, changes in the personnel of the court would produce confusion. Clary v. Hoagland, 6 Cal. 685; Oakley v. Aspinwall, 13 N.Y. 500, 501. For a comprehensive statement of the doctrine and for citations of the almost numberless cases bearing on it, see 5 C.J.S., Appeal and Error, § 1821 et seq.; 21 C.J.S., Courts, § 195 et seq. 9 Application of the doctrine in this instance would result in no injustice or hardship since a trial on the merits has already been had. 10 Affirmed. Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costs of the appeal 2 "That Elmer Preuer is the sole proprietor of Woodworkers Supply Company; that defendant, Woodworkers Tool Works, a corporation, was engaged in selling its products in California through the agency of said Woodworkers Supply Company; that the panel raiser head involved in this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a running course of business every year and sold some of its items at all times in California through said Woodworkers Supply Company on a commission basis; that defendant's business of selling its products in California through the agency of said Woodworkers Supply Company was continuous and systematic; that said panel raiser head as well as other products of defendant sold in California were shipped by defendant company directly to the purchasers through orders received from Woodworkers Supply Company and paid for by purchasers through said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, Woodworkers Tool Works, as their identity of names implies."

J-A08035-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK R. SURRATT : : Appellant : No. 469 WDA 2018 Appeal from the Judgment of Sentence Entered January 10, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 26, 2019 Erik R. Surratt appeals from the judgment of sentence entered following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Surratt claims that in fashioning his sentence, the PCRA1 court erroneously considered him an adult, failed to consider whether he was capable of rehabilitation, and failed to consider the Miller factors. We affirm. Surratt was one of three individuals involved in a shooting that resulted in the death of two victims and one victim being wounded. Surratt shot one of the victims that died. Surratt was approximately 17 ½ years old at the time of the murders. A jury convicted Surratt of two counts of first-degree murder and other offenses. In 2008, the trial court sentenced Surratt to two life ____________________________________________ 1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. J-A08035-19 sentences without parole and 25 to 50 years’ incarceration for the remaining charges. This Court affirmed the judgment of sentence. In 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller and Montgomery. At the resentencing hearing, Surratt presented five witnesses. One of the witnesses was a forensic social worker who testified to Surratt’s rehabilitation. Following two hearings, the PCRA court resentenced Surratt to 40 years’ incarceration to life imprisonment. Surratt filed a post-sentence motion which the trial court denied. This timely appeal followed. On appeal, Surratt raises the following issues: I. Whether the lower court erred and abused its discretion in imposing a 40-year minimum sentence because the Court failed to acknowledge or appropriately consider the factors laid out in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. II. Whether the lower court erred and abused its discretion by placing excessive weight on the facts of the crime rather than focusing on Miller’s central question of whether the juvenile is capable of rehabilitation. The facts of the murder are not determinative in assessing permanent incorrigibility. III. Whether the lower court erred and abused its discretion by impermissibly considering Mr. Surratt to be an adult at the time of the offense, repeatedly referring the “arbitrary line” the U.S. Supreme Court had drawn between offenders under the age of 18 and those who are 18 and older. The Court does not have the discretion to make a finding contrary to the United States Supreme Court’s “legal conclusion[s] . . . and the facts (scientific studies) underlying it” when it concerns the inherent traits associated with adolescent development. See Commonwealth v. Batts, 163 A.3d 410, 437 (Pa. -2- J-A08035-19 2017). Because the Commonwealth failed to introduce any new evidence at the resentencing hearing, the Court also lacked competent evidence to make the aforementioned finding. Surratt’s Br. at 6-7. Surratt’s first two claims challenge discretionary aspects of his sentence. See Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. 2018) (concluding claims that trial court failed to consider Miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence). As such, we must first determine whether: (1) the appeal is timely; (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial question is raised. See Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt has satisfied the first three factors. We now address whether he has raised a substantial question. Surratt maintains that the PCRA court imposed an excessive sentence and failed to consider his mitigating factors. He claims that the PCRA court incorrectly “considered [him] an adult at the time of the crime, and focused on the life without parole sentences imposed on [his] adult co-defendants.” Surratt’s Br. at 14-15. He also maintains that the sentence imposed by the court is excessive for a crime that was committed by a juvenile and is “contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the Sentencing Code.” Id. at 15. -3- J-A08035-19 Surratt’s claim of an excessive sentence paired with a claim that the court failed to consider his mitigating factors raises a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015). Therefore, we will address the merit of his claims. We review a challenge to discretionary aspects of sentencing for an abuse of discretion. See Commonwealth v. Derry, 150 A.3d 987, 997 (Pa.Super. 2016). An abuse of discretion exists where “the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.” Id. (quoting Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa.Super. 2007)). Surratt claims that the PCRA court “wholly failed to consider [his] individual, juvenile characteristics – focusing instead on the details of Surratt’s crime, improperly considering Surratt as an adult, and weighing the life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He argues it failed to consider his juvenile characteristics as referenced in Miller. To begin, the PCRA court was not required to consider the Miller factors. The Miller2 factors must be considered “when a juvenile is exposed to a potential sentence of life without the possibility of parole[.]” Commonwealth ____________________________________________ 2These factors include such things as “immaturity, impetuosity, and failure to appreciate risks and consequences; . . .” Batts II, 163 A.3d at 438 (quoting Miller, 567 U.S. at 477-78). -4- J-A08035-19 v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019); see also Batts II, 163 A.3d at 432. Here, the Commonwealth did not seek a life-without-parole sentence, and thus, the court was not required to consider the Miller factors. Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9 (Pa.Super. filed May 10, 2019) (“In cases where the Commonwealth does not seek a life- without-parole sentence, the application of the Miller factors is not required”). While Surratt maintains that the PCRA court improperly considered him an adult, we disagree. The PCRA court conceded it had to reconsider Surratt’s sentence pursuant to Miller and Montgomery because Surratt was under the age of 18 at the time of the murders. However, the court observed that the age of majority was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his actions during his crimes.3 See N.T., 12/6/17, ____________________________________________ 3 The court explained why it believed that Surratt was mature at the time of committing the murders as follows: The Court: And you have to understand how I feel about this crime. It may well be that he has completely turned his life around, and at least for the sake of argument I will accept that. And at the time this happened, we are talking - - the Supreme Court case talks about juveniles. There is no question in my mind that Mr. Surratt was an adult. I mean, he was six months away from 18. He was sophisticated. He had, for the very least, engaged in criminal activity for three or four years before this happened. I mean, he was running wild. He was running with a bunch of, as far as I can tell, criminals. He was a sophisticated person. . . . We are not talking about a six-year old, who accidently shoots the -5- J-A08035-19 at 111-12. It went on to say, “As I said before, this was a - - for lack of a better term - - this is the behavior of an adult.” N.T., Reconsideration Hearing, 3/7/18 at 9 (emphasis added). It did not say that he was, in fact, an adult. This claim is thus meritless. Surratt’s additional claim that the court solely considered the facts of the crime without taking into consideration Surratt’s potential for rehabilitation or his mitigating evidence also fails. He argues that the facts here are similar to Batts II because there was an improper “significant focus on the facts of Surratt’s crime . . . to the exclusion of considering his personal history and development as a juvenile.” Surratt’s Br. at 20. We disagree. After Miller and Montgomery, Batts was resentenced to life without parole. Batts II, 163 A.3d at 450. The Court concluded that because there was “ample positive support relative to Batts’ potential for rehabilitation[,]” remand was necessary for the trial court to “‘provide [Batts] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Id. (quoting Miller, 567 U.S. at 479) (brackets in Batts II). It found that the trial court’s opinion made clear “that its conclusion that Batts’ ____________________________________________ neighbor, or even a ten-year old who accidently shoots the neighbor or accidently does one thing or another. This was a planned premeditated - - this is as premeditated as you can possibly get. N.T., 12/6/17, at 111-12. -6- J-A08035-19 actions were not the result of his ‘unfortunate yet transient immaturity’ was based exclusively on the fact that the murder was ‘deliberate and premedi[t]ated.’” Id. at 446 (quoting Sentencing Court Opinion). The facts before us are not the same. First, at the resentencing, Surratt was not sentenced to life without parole, but rather two concurrent terms of 40 years’ to life imprisonment. Second, the PCRA court was within its rights to consider the facts of the case in fashioning Surratt’s new sentence, as they are one of the permissible sentencing factors. The Sentencing Code explicitly provides that when selecting from the statutory sentencing alternatives, “the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The court’s consideration of the facts of Surratt’s crime was not improper. See Commonwealth v. Blount, 207 A.3d 925,937-38 (Pa.Super. 2019) (concluding trial court properly considered Section 9721(b) factors when resentencing juvenile pursuant to Montgomery and Miller). Additionally, the court was made aware of Surratt’s potential for rehabilitation by Surratt’s sentencing memorandum and letters written in Surratt’s support. It also heard testimony Surratt offered as mitigating evidence and received a presentence investigation report (“PSI”). Thus, the -7- J-A08035-19 trial court “consider[ed] the particular circumstances of the offense and the character of [Surratt], with reference to [Surratt’s] prior criminal record, age, personal characteristic, and potential for rehabilitation,” in fashioning Surratt’s sentence. Lekka, -- A.3d --, 2019 WL 2064541, at *6 (affirming judgment of sentence of 45 years to life imprisonment following resentencing hearing); see also Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016) (stating that there is an assumption that court is aware of information provided in PSI, including mitigating factors). Surratt also maintains that the PCRA court improperly “weigh[ed] the life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. This claim warrants no relief. The court explained that it was concerned about how the co-defendants’ sentences would compare with Surratt’s sentence. [The Court]: There is also the issue, and I brought this up the last time we were here, is I have three other people who are going to spend the rest of their lives in jail without the possibility of parole because of the fact that they were over 18 and they were over the artificial line. N.T., 1/10/18, at 7. While the court acknowledged its discomfort in the disparity of sentences, it nonetheless recognized that Surratt was not beyond rehabilitation and therefore concluded that while his co-defendants received life without parole, the same was not an appropriate sentence for Surratt. See Machicote, 206 A.3d at 1115 (stating there is a presumption against a sentence of life without parole for juvenile and may be rebutted by proving -8- J-A08035-19 that juvenile is incapable of rehabilitation); see also Trial Court Opinion, filed 8/29/18, at 4 (stating it “did not find beyond a reasonable doubt, that [Surratt] is incapable of rehabilitation”). Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/26/2019 -9- 

486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, 1986. *857 Stephen L. Laiche and William B. Faust, III, Asst. Attys. Gen., New Orleans, for the State. J. Michael McDonald and David E. Stanley, Baton Rouge, for defendant. Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ. WATKINS, Judge. Michael Burge was originally charged by a single grand jury indictment with three counts of first degree murder. Prior to trial on the merits, the indictment was amended to reduce each charge to second degree murder in violation of LSA-R.S. 14:30.1. Thereafter, defendant withdrew his former plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. Following trial by jury, defendnat was convicted on each count as charged by the amended indictment. The trial court sentenced defendant to a term of life imprisonment, without benefit of parole, probation, or suspension of sentence, on each count. The sentences for counts one and two are to be served consecutively to each other and to any other sentence defendant *858 is now serving. The sentence for count three is to be served concurrently. Defendant brings this appeal urging ten assignments of error: 1. The trial court erred in failing to suppress the confession of the defendant. 2. The trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. The trial court erred in not granting a mistrial after two violations of its order of sequestration of witnesses. 4. The trial court erred in failing to grant a mistrial after the misconduct and harassment of defense witnesses by the state. 5. The trial court erred in failing to grant a mistrial after harassment by the state of the defendant. 6. The trial court erred in failing to grant a mistrial after improper conduct of the prosecution by referring to a nickname of the defendant in violation of court order. 7. The trial court erred in failing to grant a judgment of acquittal. 8. The trial court erred in failing to grant a mistrial or a new trial because of the cumulative prejudicial effect of the acts of the state and prosecution. 9. The trial court erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred in admitting into evidence the autopsy report of Dr. Cavalier. It is conceded by defendant that, shortly after midnight on a Sunday night, he fatally stabbed Ricky Gray, Mark Vincent and Lester Allen with a knife fashioned from a sharpened file. A fourth individual, Darryl Washington, was also stabbed by defendant, but he survived.[1] At the time of the instant offenses, defendant and the victims were all inmates of Louisiana State Penitentiary at Angola, housed in Magnolia 3 dormitory. Magnolia 3 dormitory is a prison structure capable of housing sixty inmates, who sleep in one large room with their individual beds arranged side by side in several long rows. Prison personnel characterize the facility as an appropriate placement for an inmate who is not easily integrated into the general prison population. After making a formal request for protection because of difficulties encountered in another placement at Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in that facility. Shriver and defendant, both white inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver and a group of several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver's locker box during the Friday preceding the stabbing incident and stole several items. Larry Thomas admitted that defendant asked to have half of his and Shriver's things returned; however, Thomas was unwilling or unable to comply. Thomas maintains that defendant threatened to recover his property "one way or another." Warren Cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, Shriver, Lester Allen and Mark Vincent during the afternoon immediately preceding the stabbing incident. Cain characterized Allen's and Vincent's response to defendant's request to have his property returned as one of indifference. Defendant was advised to seek return of his property whatever way he wanted. Defendant and defense witnesses, Al Bates and Aubrey Thompson, maintain that, when questioned about returning defendant's property, Lester Allen advised defendant to get a knife or "check out." However, defendant testified that he did not request a transfer from Magnolia 3 dormitory because he did not want to be separated from Shriver. Rather, defendant *859 retrieved a homemade knife from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10:00 p.m.; and the dormitory television was turned off at midnight. All inmates were expected to be in bed by midnight. James Slaven, the correctional officer on duty when the stabbing incident occurred, made a head count at 12:30 a.m. Officer Slaven recalled that defendant, Shriver, and Warren Cain were all awake when that count was made. While Officer Slaven was in the shower room reporting his head count, four inmates were stabbed. When the lights were turned on, Officer Slaven observed defendant standing by his bed with a knife in his hand. Defendant's knife, in reality a sharpened file, was held in place by a glove or by gauze wrapped around his hand. No other weapons were found in the dormitory "shake down" following this incident. As defendant was escorted from the dormitory, he remarked to Captain John Purpera of the prison security staff, "I stabbed all four of them." Accounts of the stabbing incident differ greatly. Inmates Warren Cain and Mark Duhon testified that they saw defendant get out of his bed and proceed to stab Ricky Gray and Mark Vincent as they lay in bed. Gray occupied a bed immediately adjacent to defendant's bed. Vincent's bed was located on the other side of Gray's bed. While Gray and Vincent were being stabbed, Shriver went to Lester Allen's bed and hit Allen with a sock containing batteries. With Gray and Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who occupied the bed immediately adjacent to Allen's bed. Washington was stabbed several times but managed to grab a radio which he hurled against a post. Robert Shriver acknowledged that he had a sock filled with batteries and was also aware that defendant had brought a knife into the dormitory. He claims ignorance as to Ricky Gray's or Mark Vincent's role in the fight. Rather, Shriver contends that the fight began when Lester Allen approached his bed and said, "Come on and do something for me." In response to that proposition, Shriver got out of his bed, which was positioned end on end relative to defendant's bed, and struck Allen with the sock full of batteries. Defendant came to Shriver's assistance. Defendant's version of the incident is supported in part by the testimony of fellow inmates, Al Bates, Aubrey Thompson and Donald Fontenot. Defendant maintains that when Shriver and Allen first started arguing he put on a glove and placed the homemade knife in his left hand. Defendant denied utilizing any tape or gauze to wrap his hand. When defendant got up to help Shriver, he was attacked by Ricky Gray and Mark Vincent. Gray had a knife in his right hand, and Vincent appeared unarmed. Defendant grabbed Gray's right hand; and defendant, Gray and Vincent fell onto a bed. Defendant described his encounter with Gray and Vincent: "[W]e was kinda rassling (sic), all three of us on the bed, standing up, falling back down, and I was just stabbing." After Gray and Vincent were incapacitated, defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen "once or twice". Defendant did not know if Allen had a weapon. Defendant and Shriver were neither bruised nor cut as a result of the incident. Dr. Emile Laga performed autopsies on Ricky Gray and Mark Vincent. Dr. Laga noted that Gray had four stab wounds to the upper, left half of his body. One deep wound penetrated the front wall of his heart. No defensive injuries were found on Gray's extremities. Dr. Laga was certain that the assailant and Gray had been face to face when Gray was stabbed, and he hypothesized that Gray might have been in a supine position. Vincent suffered two stab wounds to his chest. Again, one wound penetrated the cardial sac, and Dr. Laga was certain that the assailant and Vincent had been face to face when Vincent was stabbed. *860 Dr. Debra Cavalier, who performed the autopsy of Lester Allen, noted two stab wounds, one positioned in the mid-abdomen and the other on Allen's right side. Allen also had two cuts on his face and a laceration on his forehead. Again, no defensive wounds were located on Allen's hand or forearms, and Dr. Cavalier opined that Allen and his assailant had been face to face during the attack. ASSIGNMENT OF ERROR NUMBER 1: By this assignment, defendant contends that the trial court erred by failing to suppress a written statement made by him. Defendant argues that his written statement was tainted because prior to making that statement he had been taken into custody and orally questioned about the incident without having been advised of his Miranda rights. In addition, defendant contends that his written statement was involuntary because he was not advised by his interrogators, prior to making that statement, that any of the victims of the stabbing incident had died. Testimony from the hearing on the motion to suppress reveals that a series of oral statements was made by defendant after he was escorted from the interior of Magnolia 3 dormitory. The first statement was to Captain John Purpera of the prison security force. As defendant was being led from the crime scene, he spontaneously remarked to Captain Purpera, who had just arrived on the scene, "I got all four of them." The trial court found that Captain Purpera had asked no questions, that defendant's statement was freely and voluntarily given, and, thereby, it was admissible at trial. Defendant does not contest that ruling on appeal. Defendant was then handcuffed and placed in custody as the suspect of a homicide by Lieutenant Dallas Constance. From that point in time, defendant was in the immediate and personal control of an officer. Accordingly, his freedom was restricted beyond that of an ordinary inmate. Without advising defendant of his Miranda rights, Lt. Constance asked defendant why he had stabbed a fellow inmate. Defendant replied that he had stabbed four inmates. The trial court suppressed defendant's statement to Lt. Constance, finding that any questioning at that point should have been preceded by advising defendant of his constitutional rights. That particular ruling is not contested; however, defendant urges that the circumstances surrounding the giving of that statement, and an oral statement to Warden Ross Maggio, served to taint his later written statement. According to his testimony at the hearing on the motion to suppress, Warden Maggio first spoke with defendant about 1:00 a.m. on the walkway outside Magnolia 3 dormitory. Warden Maggio stated that the primary focus of this conversation with defendant was to determine if any inmates, who remained in Magnolia 3 dormitory, were in danger because of the stabbing incident. Without advising defendant of his Miranda rights, Warden Maggio asked defendant what had happened. Defendant testified at the hearing that he answered Warden Maggio's questions because he wanted to explain the incident. Defendant did not feel compelled to answer. Defendant's response to this questioning was described as detailing the same basic sequence of events which defendant later set forth in his written statement. The trial court did not rule on the admissibility of defendant's oral statement to Warden Maggio because the state indicated that it would not seek to introduce it at trial. At approximately 2:40 a.m., defendant was taken to Capt. Purpera's office. In the presence of Deputy Ivy Cutrer of the St. Francisville Sheriff's Office, Assistant Warden Prentice Butler, Deputy Warden C.M. Lensing, and Warden Ross Maggio, defendant was fully advised of his Miranda rights and executed a written waiver. Thereafter, defendant detailed the antagonism which existed among various inmates housed at Magnolia 3 dormitory and outlined the scenario which culminated in *861 the instant stabbing incident.[2] Handwritten notes of defendant's oral statement were taken by Deputy Warden Lensing and prepared in typed form. At approximately 3:30 a.m., defendant read and signed the typed statement, which was ruled admissible by the trial court and introduced into evidence by the state. In written reasons for judgment on the motion to suppress, the trial court relied on Oregon v. Elstad, ___ U.S. ___, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), in rejecting defendant's contention that his written statement was tainted by the earlier unadvised questioning of Lt. Constance and Warden Maggio. The United States Supreme Court recently decided in Oregon v. Elstad, supra, that a careful and thorough administration of Miranda warnings may cure the condition that rendered previous unwarned statements inadmissible.[3] The Miranda warning, itself, when properly administered, conveys the relevant information and thereafter a suspect's choice whether or not to exercise a privilege to remain silent should ordinarily be viewed as an act of free will. The United States Supreme Court reasoned that there is no basis for presuming coercive effect where the suspect's initial inculpatory statement, although technically in violation of Miranda, was voluntary. In the instant case, defendant acknowledged during the hearing on the motion to suppress that he did not feel compelled to answer Warden Maggio's initial questions. Defendant also admitted that he was anxious to explain his side of the incident. We do not find that Warden Maggio's initial questioning of defendant was coercive or a deliberately conceived improper tactic to obtain defendant's initial statement. At that point in time, Warden Maggio's primary concern was to protec those inmates remaining in Magnolia 3 dormitory. The scene was one of confusion following a violent confrontation which left three inmates dead. Cf. New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). As Justice O'Connor explained in Oregon v. Elstad, supra: It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. 105 S.Ct. at 1293-1294. Therefore, under Oregon v. Elstad, the relevant inquiry to be made in determining *862 whether a post-Miranda statement is admissible is whether it was voluntarily made. In addition, Louisiana statutory law requires that, before a confession or inculpatory statement may be introduced in evidence, the state must prove affirmatively and beyond a reasonable doubt that the statement was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; La.C.Cr.P. art. 703(G); State v. Nathan, 444 So.2d 231 (La.App. 1st Cir.1983), cert. denied, 445 So.2d 1232 (La.1984). In this context, defendant argues that the action of the interrogating officers in withholding knowledge of the inmates' deaths constituted a form of inducement or coercion, rendering his written statement inadmissible as not being freely and voluntarily made. Once a defendant alleges specific instances of police misconduct in reference to a statement, it is incumbent upon the state to specifically rebut each instance. State v. James, 459 So.2d 28 (La.App. 1st Cir.1984). The trial court's conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Collins, 470 So.2d 549 (La.App. 1st Cir.1985). The decision of the trial court on the question of whether the confession was voluntarily given is entitled to great weight and will not be overturned on appeal unless it is not supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981). At the hearing on the motion to suppress, defendant testified that he inquired about the health status of the inmates he had stabbed. Only Warden Maggio recalled discussing that topic with defendant. In response to defendant's inquiry, Warden Maggio advised defendant that he was not fully aware of the condition of those inmates. However, he noted that defendant was positioned in such a location that he would have been able to see medical personnel moving at least one inmate's body from the interior of the dormitory. In written reasons for judgment, the trial court noted: "... by the sheer brutality of the stabbing attacks, Burge was fully aware of the high probability that one or all of the victims would die as a result." Assuming for the sake of argument, that defendant did not know the fatal effect of the wounds he had inflicted upon his fellow inmates, this fact alone would not compel a conclusion that defendant's statement was not freely and voluntarily made. Cf. State v. James, supra. The Louisiana Supreme Court has established that the central determination of voluntariness is whether the statement was the product of the defendant's free and rational choice. State v. Richey, 364 So.2d 566 (La.1978). Making that determination requires an examination of the totality of the circumstances. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Defendant knew at the least that his victims were in extremely serious condition after having been stabbed by him a number of times. He was also aware of the illegal nature of his act. The record supports the conclusion that defendant fully understood his rights and the consequences of waiving them. Defendant's statement was the product of his free and rational choice, despite the fact that he may not have had knowledge of the fatal effects of his criminal actions. In light of all the circumstances, the record supports the trial court's conclusion that the defendant's statement was freely and voluntarily made and thus admissible. Moreover, since defendant's testimony at trial is free of any constitutional taint and of equal cast with his prior inculpatory statement, we find admission of his statement, even if improper, was harmless error beyond a reasonable doubt. La.C. Cr.P. art. 921. See, State v. Robertson, 464 So.2d 760 (La.App. 1st Cir.1984), writ denied, 467 So.2d 534 (La.1985). ASSIGNMENT OF ERROR NUMBER 2: By means of this assignment, defendant contends that the trial court erred by failing *863 to suppress inflammatory, prejudicial photographs depicting the victims and the crime scene. The admission of allegedly gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value. State v. Johnson, 475 So.2d 394 (La.App. 1st Cir.1985), writ denied, 478 So.2d 143 (La.1985). Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place or thing depicted, are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984). The record indicates that the trial court closely examined each photograph submitted at the hearing on the motion to suppress, rejecting those which were repetitious or of little probative value. After examining the contested photographs, we find no error in the trial court's ruling that the probative value of those admitted photographs outweighs any prejudicial effect. Accordingly, these photographs were properly admitted over defense counsel's objection. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER 3: By this assignment, defendant contends that the trial court erred by failing to grant a mistrial after the state violated the witness sequestration order on two different occasions. In the first instance, the record reveals that during the course of the trial, defense counsel noted of record that he had personally observed the prosecutor meeting with several prospective witnesses during a noontime recess. The witnesses in attendance were identified by the prosecutor as Dr. Emile Laga and Dr. Debra Cavalier. Dr. Laga performed the autopsies on Ricky Gray and Mark Vincent, and Dr. Cavalier performed the autopsy on Lester Allen. The prosecutor admitted that he had met with these two physicians and others; however, he maintained that each autopsy was discussed on an individual basis with the respective physician. Dr. Laga had just taken the witness stand when the objection was voiced and, outside the presence of the jury, confirmed the prosecutor's characterization of the meeting. Dr. Laga also testified that his prospective testimony was not influenced by that meeting. In denying the defense motion, the trial court relied on Dr. Laga's testimony and the fact that the witnesses at issue had been called to testify as medical experts. In the second instance, defense counsel noted of record that defendant's father, Al Burge, had observed the prosecutor engaged in conversation with two state witnesses, Lt. Constance and Capt. Purpera, during a noontime recess prior to their testifying at trial. Under examination by the trial court, the prosecutor stated that he had not told either witness about testimony of prior witnesses but had asked each officer individually, in the presence of the other officer, about policy on transferring an inmate within the Louisiana State Penitentiary. At the time of defense counsel's objection, both officers had already testified during trial on the merits. The trial court noted that each officer's testimony had been of a limited nature and substantially the same as his respective testimony during the hearing on the motion to suppress defendant's confession. Finding no particular breach, the trial court denied defendant's motion. Louisiana Code of Criminal Procedure article 764 provides for sequestration of witnesses upon the court's own motion or upon request of the state or of the defense. The purpose of sequestration is to assure that a witness will testify as to his own knowledge of events, to prevent the testimony of one from influencing the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Nolan, 457 So.2d 1246 (La. App. 1st Cir.1984), writ denied, 462 So.2d 190 (La.1984). It is within the sound discretion of the trial court to permit witnesses who have violated the order to testify. *864 This may be done where the purpose of the sequestration order has not been thwarted or there is no evidence that the witness's testimony has been tainted. Id. We find no prejudice to defendant arising from the trial court's application of the sequestration rule in this case. There is no evidence that any witness' testimony was tainted by the prosecutor's casual approach to the sequestration order. Dr. Laga and Dr. Cavalier testified as expert witnesses called to address different factual considerations. Although Lt. Constance and Capt. Purpera were questioned about internal transfer of inmates, the subject matter of the group meeting, this was not "a major issue in the case" as defendant contends in brief. Defendant, himself, freely admitted during his testimony at trial that he had not sought to be transferred from Magnolia 3 Dormitory because he did not want to be separated from Robert Shriver. Defendant was not concerned that procedural obstacles attendant to requesting that relief would have served to thwart his efforts. For the foregoing reasons, this assignment of error is without merit. ASSIGNMENTS OF ERROR NUMBERS 4 AND 5: By means of these assignments, defendant contends that the trial court erred in failing to grant a mistrial due to harassment of the defendant and defense witnesses by the state. The alleged harassment is based on the assertion that defendant and defense witnesses, Wayne Martin and Daniel Holmes, were moved by Louisiana State Penitentiary personnel to administrative lockdown, i.e., a cell block situation, several days prior to commencement of trial on the merits. Before these individuals testified at trial, defense counsel noted his objection of record citing possible prejudice "if these people come to court and don't want to testify because the power of the State has been brought upon them." However, the record reveals that defense counsel's fears were not realized. Wayne Martin and Daniel Holmes each testified fully as to his knowledge of relevant circumstances surrounding the incident. On cross-examination, each admitted that his testimony at trial was not adversely affected by his transfer within the penitentiary. Defendant also took the stand on his own behalf. In detailing the relationship between Robert Shriver and Lester Allen, defendant noted they had, at one time, been housed together in the "dungeon". In defining the term "dungeon", defendant provided: "It is [sic] proper term would be administrative lockdown. It is where they put you when you [sic] waiting to go to court, or you have a rule infraction or you check out." Thus, contrary to defense counsel's voiced concerns, defendant apparently perceived placement in administrative lockdown as a routine administrative procedure which might be implemented prior to an inmate's courtroom appearance. The record clearly reveals that the anticipated prejudicial impact did not materialize. In addition, it was not demonstrated that internal movement of these prisoners was grounded on any consideration other than appropriate operation of the penal system. Under these circumstances, these assignments of error are without merit. ASSIGNMENT OF ERROR NUMBER 6: By this assignment, defendant contends that the trial court erred by failing to grant a mistrial following improper comment by the prosecutor, who referred to defendant's nickname in violation of a court order. The record reveals that defendant filed a motion in limine seeking inter alia to prevent the state from referring to defendant's prison nickname of "Iron Mike" in the presence of the jury. During the hearing on that motion, the prosecutor suggested that a definitive ruling be deferred. Thereafter, the trial court noted: "If his (defendant's) character is at issue, I'm not going to try to prevent that. If his character is not at issue, I'll instruct the State not to use that nickname." During cross-examination of defendant, the prosecutor asked defendant his nickname after defendant acknowledged that *865 he was regarded as a strong inmate. Before defendant could respond, defense counsel objected; and the trial court sustained the objection. No further relief was sought. If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial. State v. Michel, 422 So.2d 1115 (La.1982). Moreover, assuming for the purpose of argument that the prosecutor's question was improper, the general rule regarding reversible error due to improper questioning requires a clear showing that the matters complained of are of such an extremely prejudicial nature that defendant was deprived of a fair and impartial trial. See, State v. Morris, 404 So.2d 1186 (La.1981). In this instance, no such showing was made. The prosecutor's question did not reveal defendant's nickname. In addition, through defendant's opening statement, the jury learned that prisoners routinely referred to each other by nicknames. Thus, the fact that defendant was known by a nickname was entirely customary. In view of the foregoing, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER 7: By means of this assignment, defendant contends that the trial court erred by failing to grant his motion for post-verdict judgment of acquittal. Defendant acknowledges that he stabbed his fellow inmates and that the stab wounds caused their deaths. It is defendant's contention that he was justified in killing Ricky Gray, Mark Vincent, and Lester Allen in self-defense or in defense of Robert Shriver. A defendant in a homicide prosecution who asserts that he acted in self-defense does not have the burden of proof on that issue because the state bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self-defense. State v. Brown, 414 So.2d 726 (La.1982). LSA-R.S. 14:20, in pertinent part, provides: "A homicide is justifiable: (1) when committed in self-defense by one who reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and that killing is necessary to save himself from that danger...." It is also justifiable "to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person." LSA-R.S. 14:22. However, an aggressor or one who brings on difficulty, as a general rule, cannot claim the right of self-defense unless he withdraws from the conflict in good faith and indicates his intention of abandoning the difficulty. LSA-R.S. 14:21. The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Brown, supra. As often happens, eyewitnesses presented the jury with conflicting accounts of the incident. Defense witnesses suggest that defendant was initially attacked by Ricky Gray and Mark Vincent and while wrestling with both men, he stabbed each man several times. State witnesses, Warren Cain and Mark Duhon, testified that they saw defendant get out of his bed and proceed to stab Ricky Gray and Mark Vincent, who were lying in adjacent beds. This account was corroborated by forensic evidence detailing the situs of the wounds and by the lack of evidence suggesting a struggle. The trier of fact is free to accept or reject in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31 (La.App. 1st Cir.1984). Apparently, the jury exercised its lawful prerogative and chose to believe the outline of events presented by the state. Moreover, Shriver's own account of his and defendant's confrontation with Lester Allen fails to *866 support justification for stabbing the unarmed Allen. Shriver testified that he answered Allen's proposition by striking Allen with a sock filled with batteries. By the time defendant intervened in that fist fight, Allen had already fallen back onto his bed and had stopped fighting, thereby negating justification for use of deadly force. The law cannot permit even a harassed and threatened inmate of a penal institution to take the law into his own hands, arm himself, attack his enemy with a knife, and then, because of prior threats, claim justification for a homicide which follows. After consideration of all the state's evidence, we conclude that any reasonable trier of fact could have found that the state carried its burden in establishing beyond a reasonable doubt that the homicides of Ricky Gray, Mark Vincent, and Lester Allen were not committed in self-defense or in defense of Robert Shriver. For the foregoing reasons, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER 9: By means of this assignment, defendant contends that the trial court erred by failing to grant a mistrial or to seat an alternate juror after one juror viewed defendant shackled. The record reveals that, during the course of the instant trial, defense counsel noted of record that he had observed one of the jurors downstairs in the courthouse waiting for transportation home after trial had been adjourned for the day. As that juror waited, defendant was brought downstairs in handcuffs and shackles to be transported from the courthouse to Louisiana State Penitentiary at AngoLa.Defendant moved for a mistrial on the basis of this inadvertent sighting. In denying the defense motion, the trial court acknowledged that it too had observed the juror waiting for transportation. However, at that point in the trial, the jury was already fully aware of defendant's status as an inmate of the Louisiana State Penitentiary at AngoLa.The trial court weighed the need for security in transporting defendant and the juror's prior knowledge of defendant's inmate status in determining that the inadvertent sighting did not prejudice defendant. We find that the trial court did not abuse its discretion in refusing to grant a mistrial. Under the circumstances, the possibility that on one occasion a juror may have seen the defendant shackled does not appear to have so prejudiced defendant as to warrant relief on appeal. Mistrial is a drastic remedy and should only be granted on a showing of substantial prejudice. State v. Murphy, 463 So.2d 812 (La.App. 2d Cir.1985), writ denied, 468 So.2d 570 (La. 1985). There is no showing that defendant's presumption of innocence was destroyed or that any juror was influenced by seeing defendant in handcuffs and shackles. Accordingly, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER 10: By means of this assignment, defendant contends that the trial court erred by admitting into evidence the autopsy report of Lester Allen prepared by Dr. Cavalier. The record reveals that following the examination of Dr. Cavalier the state sought to introduce into evidence the autopsy report of Lester Allen. Defendant grounded his contemporaneous objection to its admission on an allegation that the state had failed to provide him with a copy of that report in response to defendant's discovery request. Following a bench conference held off the record, the trial court overruled the objection finding that the state's failure to furnish the report was inadvertent and that defendant was neither surprised nor prejudiced by this omission. The state's failure to comply with discovery procedures will not automatically demand a reversal. See La.C.Cr.P. art. 729.5; State v. Faulkner, 447 So.2d 1139 (La.App. 1st Cir.1984), writ denied, 449 So.2d 1345 (La.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 164, 83 L.Ed.2d 100 (1984). We agree with the trial court's reasoning *867 and find no undue surprise or prejudice. Before trial, defense counsel was aware of, and sought to take advantage of, the inadvertent error. Defense counsel was aware prior to trial testimony of Dr. Cavalier that she had performed the autopsy on Lester Allen. [See assignment of error number three.] In addition, existence of the autopsy report was revealed during direct examination of Dr. Cavalier. Rather than seeking a recess, defense counsel chose to vigorously participate in examination of that witness. Under these circumstances, we find this assignment of error without merit. ASSIGNMENT OF ERROR NUMBER 8: By this assignment, defendant urges that the cumulative effect of the above referenced errors was so prejudicial as to preclude defendant's receiving a fair trial. For reasons more fully set forth in our treatment of defendant's other arguments urged on appeal, we find this assignment of error meritless. The conviction and sentence are therefore affirmed. CONVICTION AND SENTENCE AFFIRMED. NOTES [1] The attack on Darryl Washington does not form a part of this prosecution. [2] In pertinent part, defendant stated that after Robert Shriver and Lester Allen started fighting he got up from his bed and retrieved a knife from his pillow. Defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen "a couple of times". Defendant was attacked by Ricky Gray and Mark Vincent and also stabbed each of those inmates "a couple of times". [3] We note that by adoption of Article I, § 13 of the 1974 Louisiana Constitution, Louisiana incorporated the prophylactic rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See State In The Interest of Dino, 359 So.2d 586 (La.1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978). Decisions of the United States Supreme Court, although given careful consideration, do not necessarily control or dictate decisions by Louisiana courts construing the Louisiana Constitution, nor replace the independent judgment of the Louisiana courts so long as the state decisions do not infringe on federal constitutional rights. The decision of Oregon v. Elstad is well grounded in law and supported by strong policy considerations. It advances the legitimate interests of the criminal justice system without sacrificing the individual rights guaranteed by the constitution. Exercising the independent judgment of this Louisiana court, we adopt the Oregon v. Elstad holding (that a voluntary unwarned statement in a non-coercive environment does not "taint" a subsequent statement made after full warnings and waiver) as applicable to cases arising under Article I, § 13 of the Louisiana Constitution, for the sound reasons set forth in the majority opinion of the United States Supreme Court.

FILED United States Court of Appeals Tenth Circuit June 9, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT CLARENCE E. GRISSOM, JR., Plaintiff-Appellant, v. No. 10-3245 (D.C. No. 5:09-CV-03128-SAC) RAY ROBERTS, Warden, El Dorado (D. Kan.) Correctional Facility; DANIEL A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility; GEORGE MCNICKLE, M.D., El Dorado Correctional Facility; DON THOMPKINS, El Dorado Correctional Facility; R. SHERMAN, CSII, El Dorado Correctional Facility; C. CASTLMAN, COII, El Dorado Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT * Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  Clarence E. Grissom, Jr., a Kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. BACKGROUND Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court screened his form complaint and numerous other filings under 28 U.S.C. § 1915A and entered a screening order. In that order, the district court identified three claims in his form complaint: (1) use of excessive force on August 27, 2008, at the El Dorado Correctional Facility; (2) denial of medical care for injuries sustained during that incident; and (3) creation of a false disciplinary report to cover up the incident. These claims were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, told Mr. Grissom to come to his cell door to be restrained while they removed his wheelchair. Mr. Grissom resisted the order, responded obscenely, and threw water at Officer Jackson. Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive pulmonary disease, used pepper spray on him. Officer Jackson then called a “Condition 30,” which resulted in the arrival of a team of correctional officers. Unidentified members of that team hit Mr. Grissom with an electric shield while he was in his wheelchair, then forcibly removed him from his cell and carried him -2- to the shower, where they held him under hot water. He sustained a broken nose and facial bruises. Thereafter, Mr. Grissom was laid down, his underwear was cut off, and he was rolled onto his side so that defendant Bokor, an advanced registered nurse practitioner (A.R.N.P.), could administer an albuterol inhaler. A.R.N.P. Bokor looked at his face but provided no treatment. The next day, both of his eyes were black and blue, and his right eye was swollen shut. He requested medical treatment but was denied. Later, Officer Jackson, Officer Castlman, and A.R.N.P. Bokor created an allegedly false disciplinary report to justify their actions, charging Mr. Grissom with battery and disobeying orders. Mr. Grissom was found guilty and given sixty days of disciplinary segregation, forty dollars in fines, and ninety days “‘L.G.T.’” R. at 167. 1 Based on these allegations, Mr. Grissom requested damages and the termination of defendants’ employment. In its screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom’s request that he be permitted to use his wheelchair while in segregation, which was set forth in an attachment to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. The court further concluded that for the same reasons, still other claims, scattered throughout the attachments to his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised. The court informed Mr. Grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants; motions, exhibits, or other papers were not proper for that purpose. The court also provided him an overview of joinder under the Federal Rules of Civil Procedure. The district court then dismissed two defendants, Correct Care Solutions and the El Dorado Minimum Clinic, because neither was a “person” for § 1983 purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out that Mr. Grissom failed to adequately identify the personal participation of defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 (citing, inter alia, Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). Thus, the court gave Mr. Grissom an opportunity to file a supplemental complaint alleging the necessary participation. The district court also instructed Mr. Grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to his excessive force claim, the court reasoned that Mr. Grissom’s own statements and exhibits showed that “he was combative, disruptive, and very disrespectful”; he refused to obey orders”; he “had a history of battering or attempting to batter correctional officers”; and he “refused to be restrained and had thrown a cup of water on Jackson.” R. at 179-80. “Under such circumstances,” the court -4- concluded, “the use of some physical force such as pepper spray can hardly be considered repugnant to the conscience of mankind.” Id. at 180. 1 Moreover, the court noted that Mr. Grissom had not alleged severe pain or lasting injury as a result of the pepper spray, as required under Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983). Therefore, the court concluded, Mr. Grissom had not advanced sufficient factual allegations to show an Eighth Amendment violation based on Officer Jackson’s use of pepper spray or his call for a Condition 30. Turning to the physical injuries Mr. Grissom alleged were caused by the forced removal from his cell, the district court observed that he had not described acts by any specific defendant that caused those injuries. Rather, he alleged he was beaten by a team of correctional officers. Therefore, the court permitted him to file a supplemental complaint to provide additional factual allegations of personal participation by named defendants. The district court next concluded that Mr. Grissom’s allegations did not support his claim that he was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom’s filings indicated that A.R.N.P. Bokor immediately gave him an albuterol inhaler and examined his broken nose and facial injuries. Mr. Grissom did “not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any 1 The district court apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). -5- ‘substantial harm’ suffered as a result of any delay in treating his broken nose or facial injuries.” Id. at 184 (applying standards set out in Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), and Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). Nor had he identified the officer who denied his request for medical treatment the next day as one of the named defendants. Again, the district court instructed Mr. Grissom that he could file a supplemental complaint to remedy these deficiencies. The district court further concluded that Mr. Grissom’s claim that Officers Jackson and Castlman and A.R.N.P. Bokor filed a false disciplinary report could be raised only in a writ of habeas corpus because it “involve[d] good time and the possibility of entitlement to a speedier release.” R. at 185 (citing Preiser v. Rodriguez, 411 U.S. 475 (1973)). The court also reasoned that Mr. Grissom could not recover damages on this claim unless he could show that his conviction of the charged offenses was “‘invalidated.’” R. at 186 (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994), and citing Edwards v. Balisok, 520 U.S. 641 (1997), for its extension of Heck to loss of good time credit in prison setting)). 2 Based on its analysis, the district court gave Mr. Grissom thirty days in which to file a supplemental complaint. Mr. Grissom filed a timely supplement, 2 Mr. Grissom also filed two motions requesting an injunction or a temporary restraining order with regard to the conditions of his later confinement at a different correctional facility. The court denied the motions on the ground that neither one provided a sufficient factual or legal basis for such relief. Mr. Grissom has not challenged these denials on appeal. -6- and he also filed numerous other papers outside the allotted time. The district court reviewed all of these filings and concluded that Mr. Grissom had not remedied the deficiencies in his complaint and had ignored most of the directions in the court’s screening order. The court found no mention of defendants McNickle, Thompkins, or Sherman in any of the additional filings, and no allegation that defendant Roberts had personally participated in any of the events underlying the three claims set out in the initial form complaint. Thus, the court dismissed the claims as to these defendants. Similarly, the court could find no specification of “which named defendant, if any, took acts that actually caused the injuries to his nose and face during [the] forced [cell] move.” R. at 490-91. Nor did the court find any additional allegations showing “either that [Officer] Jackson used more force than was reasonably necessary under the[] circumstances or that [he] applied the pepper spray and called a Condition 30 other than in a ‘good faith effort’ to restore institutional order.” Id. at 491. 3 Accordingly, the district court dismissed the excessive force claim without prejudice for failure to state a claim on which relief may be granted. The district court next concluded that Mr. Grissom failed to remedy the deficiencies in his claim that he was denied medical treatment. Although he appeared to claim that Officer Jackson had denied his request to see A.R.N.P. 3 The district court apparently was relying on Sampley, 704 F.2d at 495, which it had cited in its screening order, see R. at 178. -7- Bokor, he also stated that he had another inmate contact A.R.N.P. Bokor, who said there was nothing she could do “‘to fix [his] broken nose because it ha[d] been broken twice before and it wouldn’t do any good to fix it.’” Id. at 493 (quoting Supplement to Complaint, id. at 192). The court determined that this concession, read in light of Mr. Grissom’s continued failure “to allege that any particular treatment was prescribed or medically necessary for his broken nose beyond the immediate examination that was provided,” id. at 493, indicated nothing more than a difference of opinion on a matter of medical judgment, which is not actionable under the Eighth Amendment, see Estelle v. Gamble, 429 U.S. 97, 106-07 (1976). Consequently, Officer Jackson’s alleged denial of Mr. Grissom’s request for treatment also failed to state a claim under the Eighth Amendment. Therefore, the district court dismissed the claim of denial of medical treatment. The court next considered a multitude of claims described in the numerous filings Mr. Grissom submitted in response to the screening order, concluding that none of them were included in the original complaint, none had been added by a proper amendment, and none were properly joined because Mr. Grissom did not show they were related to the incident underlying the claims in his original complaint. Accordingly, the court dismissed all those claims without prejudice. This appeal followed. -8- II. DISCUSSION We review de novo the district court’s dismissal for failure to state a claim. Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). “We review the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Id. (quotation omitted). In his appellate brief, Mr. Grissom provides a selective restatement of his factual allegations, but the full extent of his legal argument is that he thought what he did “was fair,” and he disagrees with “the way [he] was judged for not understanding the procedure.” Aplt. Br. at 4. These limited “arguments” are insufficient to merit appellate review, even taking into account that Mr. Grissom is not represented by an attorney. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (concluding that pro se appellant forfeited right to appellate review of dismissal of complaint because he did not present any reasoned arguments supported by record citations or legal authority). Nonetheless, we have exercised our discretion to review the record and the applicable law, see id. at 841, and we see no error in the district court’s handling of this case. The court is commended for its considerable patience in providing Mr. Grissom a detailed explanation, in plain English, of the deficiencies in his complaint, and in providing him an opportunity to cure those deficiencies. Accordingly, we AFFIRM the judgment of the district court for substantially the same reasons set out in its screening order and its dismissal -9- order. Mr. Grissom’s motion to proceed on appeal without prepayment of fees is granted, and we remind him that he is obligated to continue making partial payments until the entire fee has been paid. Entered for the Court Wade Brorby Senior Circuit Judge -10- 

165 Pa. Commonwealth Ct. 573 (1994) 645 A.2d 474 BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs June 6, 1994. Decided July 8, 1994. Reargument Denied August 17, 1994. *577 Thomas R. Kellogg, for appellant. John L. Hall, for appellee. Before COLINS and PELLEGRINI, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Appellant, Amrit Lal, appeals from an order of the Court of Common Pleas of Chester County, sitting in equity, ordering injunctive relief and appointing an agent for Appellant to manage Appellant's apartment complex known as "Scarlett Manor Apartments," in order to bring it into compliance with the Borough of Kennett Square's (Borough) housing and building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to bring an end to almost five years of continuous litigation with Appellant. From the time Appellant purchased Scarlett Manor Apartments, in March 1988, when they were apparently in a good state of repair and free of any Housing Code (Code) violations, until December 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effort to compel Appellant's compliance. As noted by the trial court judge, The Honorable Thomas J. Gavin, who had personally heard more than one hundred (100) cases involving Appellant's rental real estate, "[Appellant] is the *578 single most litigious person in the history of Chester County."[1] (T.C. Opinion at 5, December 8, 1993.) According to the trial court, Appellant's obstructive conduct usually conformed to the following pattern: Following inspections, the borough would communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution of same. Several months would pass, often with another intervening inspection, but no corrective action taken. More letters would be generated and ultimately defendant would agree to remedy the deficiencies by a date certain. It is important to note that the defendant was always given leeway to select a date by which the repairs, or deficiencies, would be corrected. The corrective date would come and go with no action by defendant, whereupon the borough would issue citations. Hearings would then be scheduled before the district court (District Court 15-3-04) where the defendant would or would not appear to defend. Whether found guilty by the District Justice or in absentia, an automatic appeal would be taken to the Court of Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. In each case numerous pre-trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre-imposition of sentence, nominal fines would be imposed. Invariably, post-verdict motions would be filed, no corrections made and the defendant sentenced accordingly. Thereafter, motions to vacate sentence and/or appeals would be filed with the deficiencies still uncorrected. The deficiencies *579 cited by the borough, by way of example and not limitation, run the gamut from countless vectors (a polite euphemism for cockroaches) scurrying about the apartments to defective and/or leaking and/or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. (T.C. Opinion at 2-3, December 8, 1993). As a result of this delay and vexatious conduct, the Borough filed a complaint asking for the extraordinary remedy of appointment of an agent to manage the apartments and correct the Code violations. In response, Appellant filed preliminary objections which were denied, and Appellant was given leave to file an answer to the Borough's complaint within twenty (20) days. Appellant failed to file an answer within the time allowed, and instead appealed the trial court's denial of his preliminary objections, via a petition for review, to this court. Appellant's petition to vacate Judge Gavin's order denying his preliminary objections was denied by Judge MacElree of the Chester County Court of Common Pleas. Appellant was notified that a default judgment would be taken if he did not file an answer within ten (10) days, and when such answer was not filed, a default judgment was entered and a final hearing to frame an appropriate final decree was scheduled. The final hearing concluded on November 19, 1993, which resulted in the appointment of an agent to manage the apartment buildings in order to correct the problems and bring them into compliance with the Borough's ordinances. Meanwhile, Appellant's legal maneuverings continued with, inter alia, a petition to quash the Borough's request for a final hearing to fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, continuing requests for production of documents after a protective order had been granted, and a motion to disqualify the court's appointed agent. On appeal to this Court, Appellant raises eleven issues for our review, three of which have been waived by failure to *580 raise them in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2); Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Borough Council for Borough of Millbourne v. Bargaining Committee of Millbourne Borough Police, 109 Pa.Commonwealth Ct. 474, 531 A.2d 565 (1987). We will therefore consider the remaining issues on their merits. First, Appellant argues that Judge Gavin should have recused because of animosity to Appellant. Judge Gavin denied the motion stating that his actions do not evince any bias towards Appellant. (T.C. Opinion at 2, December 17, 1993.) Like his post-trial motions, Appellant's brief on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court's animosity, Judge Gavin's threat to hold Appellant in contempt for continuing to cross-examine a witness, Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates that the first questions Appellant asked on cross-examination of Mr. Marguriet, the Manager and Code Enforcement Officer of the Borough, concerned the deeds of properties owned by other landowners, and a case pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin's ruling. Yet, Appellant continued to ask irrelevant questions, until he repeated some he had attempted to ask earlier, and at that point, Judge Gavin warned Appellant to cross-examine only on relevant issues, or risk a contempt citation. (R. 40a-50a.) Judge Gavin remained remarkably patient while Appellant asked one irrelevant question after another, but his repeated rulings were ignored. His warning was therefore warranted, and his threatened use of his contempt powers was entirely proper. *581 In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself/herself the symptoms of bias and prejudice. If the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse of discretion. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Knight, 421 Pa.Superior Ct. 485, 618 A.2d 442 (1992). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continued to ask totally irrelevant questions. Therefore, there is no merit to Appellant's claim that Judge Gavin should have recused. Next, Appellant claims that the enforcement of the Borough's ordinances was discriminatory against the low income groups which reside in Scarlett Manor and against Appellant, who claims to be a "member of a minority group, being an Asiatic Indian." Appellant not only failed to prove that there was discriminatory enforcement of the Building Code, but has failed to allege any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Harasty v. Borough of West Brownsville, 50 Pa.Commonwealth Ct. 186, 412 A.2d 688 (1980). We will not recapitulate the facts of this case, but suffice to say that the Borough's ordinances were enforced against Appellant because Appellant had violated these ordinances numerous times, there had been numerous complaints by the tenants and others, and because Appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal standards of habitability. (Plaintiff's Exhibit 1 and 3.) Therefore, we find no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant relies on Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881 (1990), where an adjudication and decree nisi were entered which ordered the convening of a meeting within ten (10) days *582 of entry of the final order, and also invited the parties to submit post-verdict motions within ten (10) days. The petitioners filed their motions on the tenth day, but prior to their receipt the chancellor disposed of the ultimate issue in the case. The Supreme Court held that the petitioners were denied due process when they were denied the right to file exceptions or post-trial motions. This case is readily distinguishable from Reading Anthracite. First, although the December 8, 1993 filing was labeled an opinion and order, Appellant had the opportunity and did file post-trial motions which were thoroughly addressed and considered by the trial court. Moreover, the court was not required to enter a decree nisi because a judgment by default had already been entered. Panther Valley Television Co. v. Borough of Summit Hill, 372 Pa. 524, 94 A.2d 735 (1953). Thus, Reading Anthracite is inapplicable here, and there is no merit to this argument. Next, Appellant claims that the trial court erred in failing to insure that the party intending to purchase the Scarlett Manor was represented at the hearing, and that the tenants were joined as parties. The issue of the necessity of joining the tenants has been waived because it was not raised at the hearing or in post-trial motions. Moreover, notwithstanding Appellant's allegations regarding a potential buyer for his property, the buyer remains unnamed and unproven in the record. When Appellant's attorney, Mr. Kalmbach, was asked about this buyer, he responded that the Borough was more involved in the negotiations for sale than he was. (R. 84.) However, the attorney for the Borough stated that the Borough knew very little about the potential sale, apart from what was told them by Appellant months before. The Borough never saw a copy of the alleged agreement of sale and never knew the name of the alleged, potential buyers. (R. 83-85.) Appellant did not offer any more specific information about the buyers during the hearing, although he was given every opportunity to do so. Instead, he continued to rely on his and his attorney's assertions that the sale was imminent. *583 (R. 85.) The court cannot join a person or persons in a proceeding when it has not been given information as to the identity of such persons, and when it has received no evidence confirming an interest in the property which would be affected by the court's proceedings. Therefore, there is no merit to Appellant's allegation of trial court error on this issue. Next, Appellant claims that the relief ordered was not a proper exercise of the equitable powers of the court because he made substantial efforts to provide decent housing for the tenants and to comply with the general intent of the ordinance. Appellant cites his own testimony and that of his manager, Mr. Ayra, both of whom the court specifically found not credible. As an example of Mr. Ayra's testimony, he made the incredible statement that perhaps he failed to notice certain Code violations because he made inspections only in the evening. (R. 167a). Although he claimed to have called repair persons to correct the problems, he did not produce a single receipt or cancelled check to prove that they had undertaken the repairs they claimed to have accomplished. As factfinder in the evidentiary hearing, the trial court was free to disregard Appellant's testimony and make findings as to credibility. Commonwealth v. Nunez, 312 Pa.Superior. Ct. 584, 459 A.2d 376 (1983). In no uncertain terms, the trial court found Appellant incredible and disregarded the testimony he and Mr. Ayra offered. Next, Appellant claims that the trial court had an adequate remedy at law, and therefore equitable relief should not have been granted. Citing School District of West Homestead v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970), Appellant argues that the trial court had no jurisdiction to consider this action in equity because: (1) there is a constitutionally valid statute, the Borough's citation procedures, which provide an explicit and exclusive administrative remedial process, with review by the Court of Common Pleas; and (2) the statutory remedy is adequate and compliance with the statutory remedy will not cause irremedial harm. *584 The Borough Code provides that boroughs are specifically vested with the power to enforce housing ordinances by instituting appropriate actions or proceedings in law or in equity. The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(24). Although there are explicit legal and administrative procedures for serving citations for violations of the Borough's housing ordinances, under the Borough Code, they are not the exclusive remedies available to the authorities, and the courts may proceed in equity. The trial court held that the inadequacy of the available legal remedies was proven by evidence that Code violations continue unabated, notwithstanding the filing of multiple actions by the Borough against Appellant. (T.C. Opinion at 10, December 8, 1993). In explaining this holding the trial court stated, "The borough has tried amicably and legally for five years to compel defendant to meet those minimum standards its other citizens are required to adhere to . . . If equitable relief is not granted, the borough will continue to be frustrated in its legitimate efforts to enforce its housing codes." (T.C. Opinion at 8-9, December 8, 1993). Equity has jurisdiction notwithstanding a failure to pursue an available statutory remedy if that remedy is inadequate. While this Court is reluctant to favor equity over administrative remedies, it is appropriate to take equity jurisdiction to avoid a multiplicity of actions. Temple University v. Department of Public Welfare, 30 Pa.Commonwealth Ct. 595, 374 A.2d 991 (1977). We hold that the remedies at law, the hundreds of citations for violations of the housing code received by Appellant, have been inadequate to insure their enforcement. Thus, the safety and the habitability of the premises can not be guaranteed, and the health and welfare of the tenants residing in Appellant's apartment complex is endangered. Therefore, it was perfectly appropriate for the court to provide equitable relief in the form of appointment of an agent to manage the Scarlett Manor apartments. *585 Appellant next claims that the court erred in failing to open the default judgment. The decision to open a default judgment is left to the sound discretion of the trial court, which must determine that: (1) the petition to open was promptly filed; (2) there was a reasonable excuse for failure to respond; and (3) a meritorious defense must be shown. Southeastern Pennsylvania Transportation Authority v. DiAntonio, 152 Pa.Commonwealth Ct. 237, 618 A.2d 1182 (1992). Appellant cannot meet any part of this test. First, judgment by default for failure to answer the Borough's complaint was entered on September 10, 1993. Appellant did not file his petition to open until December 13, 1993. Although he states he relied on his petition for review of the trial court's dismissal of his preliminary objections, which were filed in this court, to stay the proceedings on the default judgment so that he did not need to file an answer, such reliance was misplaced. Pa.R.A.P. 1701(b)(6) provides that the trial court may proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review. Here, Appellant attempted to appeal a nonappealable interlocutory order, which this court dismissed on two different occasions, September 15, 1993 and October 29, 1993, and therefore the trial court properly continued to proceed in this matter while the appeals were pending. Even if we were to accept that Appellant were relying on his petitions for review to stay the proceeding, he still waited for over a month to file his petition to open after his petitions to this Court were dismissed. Thus, the petition to open was not promptly filed, and there is no reasonable excuse for Appellant's failure to respond to the trial court's order to file an answer to the Borough's complaint. Moreover, as we have discussed, no meritorious defense, which has been defined as a defense sufficient to justify relief if proven, Id., was offered. As discussed above, all Appellant's defenses are without merit and are therefore insufficient to justify relief. Therefore, the trial court did not err in refusing to open the default judgement. *586 Finally, Appellant claims that the decree should be vacated because the court did not require that the agent appointed by the court to manage Appellant's property post bond pursuant to Pa.R.C.P. No. 1533(d). Rule 1533(d) provides that a "receiver" must give security for the faithful performance of his duty as the court shall direct, and shall not act until the security is paid. Here, however, an "agent" was appointed, similar to the agent required by the Borough Code, Section 8-107, which requires an owner of any apartment building to register a person to serve as a responsible local agent. Traditionally a person seeking a receiver does so to protect property in which he or she has an interest. Levin v. Barish, 505 Pa. 514, 481 A.2d 1183 (1984); Northampton National Bank of Easton v. Piscanio, 475 Pa. 57, 379 A.2d 870 (1977).[3] Here, the agent was not appointed to protect the assets of a party which has a property interest in Appellant's property; he was only appointed to manage the property in compliance with local ordinances, as would a responsible local agent. Moreover, the appointment does not divest Appellant of his interest in the property; he retains the power to repair and maintain his property if he so chooses. Therefore, we find no merit to Appellant's claim that the trial court erred in failing to require the agent to post security. We believe that the repetitious and frivolous nature of this appeal entitles the Borough to the award of reasonable counsel fees pursuant to Section 2503(7) of the Judicial Code, 42 Pa.C.S. § 2503(7) and Pa.R.A.P. 2744(1). Gossman v. Lower Chanceford Township Board of Supervisors, 503 Pa. 392, 469 A.2d 996 (1983). Moreover, in In the Matter of Appeal of Richard Michael George, 101 Pa.Commonwealth Ct. 241, 515 A.2d 1047 (1986), and Patel v. Workmen's Compensation *587 Appeal Board (Sauquoit Fibers Co.), 103 Pa.Commonwealth Ct. 290, 520 A.2d 525, appeal denied, 515 Pa. 616, 530 A.2d 869 (1987), we held that we are clearly authorized, under Pa.R.A.P. 2744, to sua sponte impose on the appellant the sanction of paying the reasonable counsel fees of the appellee, and while we did not at that time award fees, we held that such abuse of this Court's appeals process may in the future result in the imposition of such sanctions. Here, Appellant has so clearly abused the legal process that we now impose on Appellant, sua sponte, the sanction of paying reasonable counsel fees. This appeal was a result of Appellant's refusal to respond to the Borough's complaint in equity, and instead twice appealing the trial court's preliminary rulings. Then, when Appellant suffered a judgement by default, brought on by his own intentional conduct, he filed this appeal, raising numerous, frivolous issues designed to obstruct and delay the equitable relief ordered by the trial court. Accordingly, we affirm the trial court's order in its entirety, and remand to the trial court for the calculation of reasonable fees incurred by the Borough in this appeal, to be paid by Appellant. ORDER AND NOW, this 8th day of July, 1994, the order of the Court of Common Pleas of Chester County in the above-captioned matter is affirmed. Further, the case is remanded to the trial court for calculation of reasonable attorney's fees incurred by the Borough in this appeal, to be paid by Appellant. Jurisdiction relinquished. NOTES [1] The trial court noted that Appellant has a Ph.D. and a law degree, and the level of sophistication of his pleadings and his ability to manipulate the rules shows he was not a typical pro se litigator. Rather, he was more an unlicensed lawyer of considerable skill. (T.C. Opinion at 6, December 8, 1993.) [2] Although Appellant raised more than fifty (50) issues in the trial court he still has waived the following issues: (1) The Building Code of the Borough of Kennett Square was unconstitutional as it bears no reasonable relationship to the health, safety, morals or general welfare of the community; (2) There is no basis for equity jurisdiction because by its inaction the Borough brought about the conditions of which it complains; (3) The Court was in error to exclude certain evidence. [3] It was held in DeAngelis v. Commonwealth Land Title Insurance Co., 467 Pa. 410, 358 A.2d 53 (1976), that it was improper to appoint a receiver when the party petitioning for such an appointment does not have a lien on the property in question, and only has contract rights to the property which have not been reduced to judgment. Thus, the petitioning party did not have sufficient property rights in the disputed property to force the appointment of a receiver.

244 F.Supp.2d 1250 (2003) HORIZON HOLDINGS, L.L.C. f/k/a Horizon Marine L.C.; Geoffrey Pepper; Cassandra O'Tool; and John O'Tool; Plaintiffs, v. GENMAR HOLDINGS, INC.; Genmar Industries, Inc.; and Genmar Manufacturing of Kansas, L.L.C, Defendants. No. 01-2193-JWL. United States District Court, D. Kansas. February 11, 2003. *1255 Floyd R. Finch, Jr., Blackwell Sanders Peper Martin LLP, George A. Hanson, Stueve Helder Siegel LLP, Kansas City, MO, Nicole T. Bock, Blackwell Sanders Peper Martin LLP, Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO, for Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L.C., Kansas City, MO, Holly S.A. Eng, Judith Williams-Killackey, Thomas Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, Rosalee M. McNamara, Tedrick A. Housh, III, Timothy K. McNamara, Lathrop & Gage L.C., Kansas City, MO, for Defendants. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing company. Specifically, plaintiffs Horizon Holdings, LLC f/k/a Horizon Marine LC (hereinafter "Horizon") and Geoffrey Pepper claimed that defendants breached both the express terms of the purchase agreement entered into between the parties and the duty of good faith and fair dealing implied in the purchase agreement. Plaintiffs Horizon and Mr. Pepper further claimed that defendants made a variety of fraudulent misrepresentations to them for the purpose of inducing plaintiffs to enter into the purchase agreement. In addition, plaintiffs Cassandra O'Tool and John O'Tool alleged that defendants breached the employment agreements signed by them. Ms. O'Tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. Finally, Ms. O'Tool and Mr. Pepper claimed that defendants unlawfully terminated their employment in retaliation for Ms. O'Tool's and Mr. Pepper's complaints of pregnancy discrimination. For a more thorough understanding of the facts of this case, please see the court's order resolving defendants' motions for summary judgment, Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D.Kan.2002). In November 2002, plaintiffs' claims were tried to a jury and, at the conclusion of the trial, the jury returned a verdict in favor of plaintiffs Horizon and Mr. Pepper on their breach of contract claim in the amount of $2,500,000. The jury also found in favor of the O'Tools on their claims that defendants breached the O'Tools' employment contracts and awarded Ms. O'Tool the sum of $63,200 and Mr. O'Tool the sum of $20,313. The jury found in favor of defendants on all other claims. This matter is presently before the court on three post-trial motions-plaintiffs' motion to alter or amend the judgment (doc. # 197); plaintiffs' motion for attorneys' fees, costs and expenses (doc. # 198); and defendants' renewed motion for judgment as a matter of law pursuant to Rule 50(b) or, in the alternative, motion for remittitur *1256 and/or new trial pursuant to Rule 59 (doc. # 199). As set forth in more detail below, plaintiffs' motion to alter or amend the judgment is granted only to the extent that a typographical error in the judgment will be corrected and is otherwise denied; plaintiffs' motion for attorneys' fees, costs and expenses is granted in part and denied in part; and defendants' renewed motion for judgment as a matter of law, for remittitur and/or for a new trial is denied. I. Defendants' Renewed Motion for Judgment as a Matter of Law, for Remittitur and/or for New Trial Defendants seek post-trial relief on all aspects of the jury's verdict that are favorable to plaintiffs. The primary thrust of defendants' post-trial motion concerns the jury's verdict of $2.5 million in favor of Horizon and Mr. Pepper on the breach of contract claim. According to defendants, this award constitutes a windfall unsupported by the facts or the law. Defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost earn-out. In the alternative, defendants contend that the award must be remitted or a new trial must be granted on lost earn-out damages. Defendants also seek judgment as a matter of law on the jury's liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the express or implied terms of the purchase agreement. Similarly, defendants move for judgment as a matter of law on the O'Tools' claims for breach of their respective employment agreements or for a remittitur of those verdicts. Finally, defendants assert that they are entitled to a new trial because the court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. A. The Jury's Verdict in favor of Plaintiffs Horizon and Geoff Pepper on their Breach of Contract Claim The court first addresses defendants' argument that they are entitled to judgment as a matter of law on the jury's liability finding with respect to Horizon and Mr. Pepper's breach of contract claim. Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir.2001), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, "points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir.2002). In determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. See Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir.2001). In essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury could properly return a verdict for the nonmoving party. See Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of law in favor of the moving party if "there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47). In their papers, defendants assert that, as a matter of law, they did not breach the express terms of the purchase *1257 agreement or the implied terms of the purchase agreement. The jury was instructed that they could find in favor of plaintiffs on plaintiffs' breach of contract claim if they found that plaintiffs had proved a breach of one or more express terms or a breach of the implied duty of good faith and fair dealing. See Jury Instruction 12. Because the court concludes that there was ample evidence presented at trial to support a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to address defendants' arguments concerning whether the evidence was sufficient to support a finding that defendants had breached any express terms of the purchase agreement. According to defendants, plaintiffs' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because it purports to "add wholly new terms to the contract" and "requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of Delaware law." [1] This is, of course, an accurate statement of Delaware law. See, e.g., Cincinnati SMS A Limited Partnership v. Cincinnati Bell Cellular Systems Co., 708 A.2d 989, 992 (Del. 1998) ("Delaware observes the wellestablished general principle that ... it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement."). Nonetheless, principles of good faith and fair dealing permit a court to imply certain terms in an agreement so as to honor the parties' reasonable expectations when those obligations were omitted, in the literal sense, from the text of the written agreement but can be understood from the text of the agreement. Id. In determining whether to imply terms in an agreement, the proper focus is on "what the parties likely would have done if they had considered the issue involved." Id. Nothing in this court's instructions to the jury would have permitted the jury to "rewrite" the purchase agreement or to inject into that agreement wholly new terms. In fact, the jury was instructed, entirely consistent with Delaware law, that they should consider "whether it is clear from what was expressly agreed upon by the parties that the parties would have agreed to prohibit the conduct complained of as a breach of the agreement had they thought to negotiate with respect to that matter." See Jury Instruction 12. Defendants argue in their papers that Mr. Pepper did not demonstrate at trial that the parties would have agreed to prohibit the challenged conduct if they had thought to negotiate about such conduct. Of course, defendants also made this argument to the jury. The jury rejected the argument and there was more than sufficient evidence presented at trial to support that conclusion. For example, the jury could have readily concluded that, in light of the express agreement that plaintiffs would have an opportunity to realize up to $5.2 million in earn-out consideration (defined in the agreement itself as part of the "purchase price"), that the parties would have agreed, had they thought about it, that defendants would not be permitted to undermine Mr. Pepper's authority as president of Genmar Kansas; to abandon the Horizon brand name entirely; to mandate production of Ranger and Crestliner brands at the Genmar Kansas facility to the detriment of the Horizon brand; or to reimburse Genmar Kansas at only "standard cost"[2] for the manufacture of Ranger *1258 and Crestliner boats thereby impairing realization of the earn-out. If the jury concluded that defendants had engaged in such conduct (and there was sufficient evidence to draw such a conclusion), then the jury was free to conclude that such conduct was inconsistent with the spirit of the agreement concerning the earn-out consideration and that such conduct constituted a breach of the implied covenant of good faith and fair dealing. In short, there is evidence in the record upon which a jury could properly return a verdict for Horizon and Mr. Pepper on their breach of contract claim. Judgment as a matter of law, then, is not appropriate. Defendants also assert that they are entitled to judgment as a matter of law on Horizon and Mr. Pepper's breach of contract claim because plaintiffs failed to present evidence upon which a reasonable jury could have concluded that defendants acted in bad faith. In support of this argument, defendants point to a Delaware Supreme Court decision defining "bad faith" as "the conscious doing of a wrong because of a dishonest purpose or moral obliquity; it is different from the negative idea of negligent in that it contemplates a state of mind affirmatively operating with furtive design or ill will." See Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund. II, L.P., 624 A.2d 1199, 1209 n. 16 (Del. 1993). According to defendants, the evidence concerning defendants' course of conduct demonstrates only that defendants were attempting to make a profit and that no evidence was presented that defendants were acting with any furtive design or ill will. As an initial matter, the jury was instructed that a "violation of the implied covenant of good faith and fair dealing implicitly indicates bad faith conduct." See Jury Instruction 12. Thus, the court's instruction certainly requires that defendants' conduct reflect some element of bad faith. While the jury was not required to find specifically that defendants acted with furtive design or ill will in order to find that defendants had breached the covenant of good faith and fair dealing, defendants have not directed the court to any cases suggesting that proof of a breach of the duty of good faith and fair dealing is inadequate in the absence of proof of some furtive design or ill will. Certainly, the Desert Equities case does not suggest such a conclusion. There, the court defined "bad faith" only for purposes of contrasting the nature of that claim with a fraud claim in explaining why it was rejecting the defendants' argument that a plaintiff must plead with particularity under Rule 9(b) a claim of bad faith. See 624 A.2d at 1208. The court, then, rejects defendants' suggestion that evidence of some furtive design or ill will was necessary for a finding of liability on plaintiffs' claim that defendants breached the covenant of good faith and fair dealing. See True North Composites, LLC v. Trinity Indus., Inc., 191 F.Supp.2d 484, 517-18 (D.Del.2002) (rejecting argument that claimant must prove that the other party acted "with furtive design or ill will" in order to prove a breach of the covenant of good faith and fair dealing). In any event, even assuming that plaintiffs were required to prove that defendants acted with furtive design or ill will *1259 in order to prove a breach of the covenant of good faith and fair dealing, copious evidence was presented at trial demonstrating that defendants acted with the requisite "dishonest purpose" or "furtive design." There was ample evidence, for example, that defendants had ulterior motives for acquiring Horizon Marine, including the desire to remove a potentially significant competitor from the market and the desire to obtain a facility in the "southern" market dedicated primarily to the production of Ranger boats. There was also substantial evidence demonstrating that defendants' course of conduct was intended to benefit defendants' bottom line to the financial detriment of Mr. Pepper. In that regard, the jury could reasonably have concluded that defendants' efforts to undermine Mr. Pepper's authority as president of Genmar Kansas and their decisions to abandon the Horizon brand name entirely, to mandate the production of Ranger and Crestliner brands at the Genmar Kansas facility and to reimburse Genmar Kansas at only "standard cost" for the manufacture of Ranger and Crestliner boats were all designed to either force Mr. Pepper to quit his employment (thereby extinguishing Mr. Pepper's right to collect any earn-out) or prevent Mr. Pepper from achieving the profit margins necessary to realize his earn-out (because the formula pursuant to which the earn-out was calculated was weighted heavily in favor of the production of Horizon boats). While defendants urge that such a characterization of the evidence simply makes no sense because defendants themselves made no money on the Horizon Marine acquisition (an argument that defendants presented at length to the jury), the evidence was sufficient to support the conclusion that defendants believed (but were ultimately incorrect) that they could still turn a profit through the production of Ranger and Crestliner boats at Genmar Kansas while simultaneously preventing Mr. Pepper from realizing any earn-out by stifling the production of Horizon boats and reimbursing Genmar Kansas only at standard cost for the production of other boats. Simply put, ample evidence was presented from which the jury could reasonably conclude that defendants' conduct, taken as a whole, was in "bad faith," regardless of how that phrase is defined. In sum, the evidence presented at trial was more than adequate for the jury to conclude that defendants breached the implied covenant of good faith and fair dealing. Defendants' motion on this issue is denied. B. The Jury's Award of $2.5 Million for Lost Earn-Out Consideration Defendants contend that they are entitled to judgment as a matter of law on Horizon and Mr. Pepper's claim for damages for two separate but related reasons. First, defendants assert that plaintiffs presented no evidence whatsoever for the jury to ascertain what position plaintiffs would have been in if the purchase agreement had been properly performed. Second, defendants assert that Delaware law precludes any recovery because Genmar Kansas was a new business with no profit history and no evidence was presented from which the jury could conclude that Genmar Kansas was reasonably certain to realize the gross profit margins necessary to achieve any earn-out under the agreement. In the alternative, defendants seek an order remitting the award to nominal damages of one dollar or a new trial on the issue of damages. 1. Judgment as a Matter of Law The jury was instructed that if they found that defendants had breached the purchase agreement and that plaintiffs sustained damages as a result of that *1260 breach, then Horizon and Mr. Pepper were entitled to compensation "in an amount that [would] place them in the same position they would have been in if the purchase agreement had been properly performed." See Jury Instruction 13. According to defendants, plaintiffs made no effort to explain to the jury how, assuming defendants had performed their contractual obligations in good faith, Genmar Kansas would have ever met the requisite gross profit margins or generated the gross revenues necessary to entitle them to substantial earn-out payments. Stated another way, defendants urge that there was simply no evidence presented at trial that Genmar Kansas would have been profitable absent defendants' breach of the purchase agreement. The evidence presented at trial, however, was more than sufficient to permit the jury to conclude that Genmar Kansas would have been profitable absent defendants' breach. Mr. Pepper, for example, testified on the second day of his direct examination that, in his mind, the requisite 13 percent gross profit margin was reasonable and obtainable based on his prior experience with other industry boat companies. According to Mr. Pepper, he had worked for other companies where the gross profit margins ranged from 15 percent to 30 percent, so the 13 percent figure seemed "low" to him. Mr. Pepper further testified that during the time that he was responsible for directing Lowe's manufacturing operations,[3] Lowe achieved gross profit percentages in the range of 30 percent. Mr. Pepper cautioned, however, that he needed a certain level of autonomy with respect to the management of Genmar Kansas to ensure that Genmar Kansas would realize the profits and revenues necessary for Mr. Pepper to obtain the earnout. Specifically, Mr. Pepper testified on the first day of his direct examination that he sought (and received) assurances from Mr. Oppegaard and Mr. Cloutier that they would "allow [him] to do what is necessary in managing the company to obtain that earn-out." According to Mr. Pepper, Mr. Oppegaard further assured him that he would be in control of Genmar Kansas' operations and that he would be able to make the "operation decisions necessary" to obtain the earn-out. The evidence presented at trial was also sufficient from which the jury could conclude that Horizon Marine, just prior to defendants' acquisition, was about to "break into the black" and turn a profit. Mr. Pepper, for example, testified on the first day of his direct examination that Horizon Marine was enjoying significant progress in late 1997 and the first six months of 1998. Mr. Pepper fully expected Horizon Marine to start making a profit in 1998. Indeed, the opinions and perspectives of other people associated with the acquisition lent additional credence to Mr. Pepper's beliefs. Mr. Pepper testified on direct examination, for example, that Bill Ek, a consultant for defendants who visited the Horizon Marine facility in November 1997, was "amazed" at "how far [Horizon Marine] had come in such a short period of time." Mr. Oppegaard testified on cross-examination that Mr. Ek had advised him that Mr. Pepper was "the best product development person in the industry." Similarly, the jury heard testimony on the first day of Mr. Pepper's direct examination that Mr. Oppegaard was impressed and excited about what Mr. Pepper had been able to accomplish with Horizon Marine in a short period of time. In fact, Mr. Oppegaard, after meeting Mr. Pepper and visiting Horizon Marine for the first time, sent an internal memorandum *1261 to his executive team in which he described Mr. Pepper and the Horizon product as "a major competitor if left alone to grow." Mr. Oppegaard also testified on cross-examination that he anticipated that Horizon Marine would grow very fast. From this evidence, a reasonable jury could infer that if defendants had allowed Mr. Pepper to direct the daily operations of Genmar Kansas, then Mr. Pepper would have been able to achieve the requisite gross profit margins to realize the earnout. See Harrington v. Hollingsworth, 1992 WL 91165, at *4 (Del.Super.Ct. Apr. 15, 1992) (in breach of contract case, lost income damages not speculative where commercial fisherman testified that had the defendant constructed his larger commercial fishing boat on time, he would have been able to catch more sea bass and double his annual income; fisherman's testimony was sufficient to establish damages with reasonable probability where his projections were based on bass fishing industry, an industry with which plaintiff was familiar and in which he had participated for 20 years). Moreover, defendants attempted to demonstrate at trial-through both argument and the examination of witnessesthat plaintiffs' claim for damages based on the earn-out was unreasonable because it was uncertain whether the company would have been able to meet the requisite profit margins and revenues. Defendants' efforts in that regard apparently had some impact-the jury awarded only half of the total earn-out consideration. Presumably, then, the jury concluded that plaintiffs had not proved loss of the total earn-out amount with reasonable certainty. Finally, any doubt concerning the amount of damages sustained by plaintiffs is resolved against defendants. As the breaching party, defendants "should not be permitted to reap advantage from [their] own wrong by insisting on proof which by reason of [their] breach is unobtainable." See E. Allan Farnsworth, Contracts § 12.15 at 922 (2d ed.1990); accord Restatement (Second) of Contracts § 352 cmt. a (Any doubts in the proof of damages are resolved against the party in breach because "[a] party who has, by his breach, forced the injured party to seek compensation in damages should not be allowed to profit from his breach where it is established that a significant loss has occurred."). In a related argument, defendants contend that they are entitled to judgment as a matter of law on plaintiffs' claim for damages because, under Delaware law, "a new business with no profit history cannot obtain lost profit damages." See Defs. Br. at 7. On its face, then, defendants' argument is premised on the idea that plaintiffs' damages for lost earn-out consideration is the equivalent of an award for damages based on lost profits. Given the nature of the earn-out consideration at issue in this case, however, it is simply not appropriate to subject plaintiffs' claim for damages to a traditional lost profits analysis. To be sure, Genmar Kansas' profitability was an important component of the earnout formula. However, unlike those cases in which one party seeks to recover lost profits when the issue of whether that party could reasonably expect such profits is in dispute, the parties here agreed at the outset of their relationship that it was reasonable for Mr. Pepper to expect an additional $5.2 million in earn-out consideration pursuant to a formula developed by defendants. Indeed, the parties agreed that the earn-out consideration was part of the total purchase price for the acquisitionan agreement that is reflected in Article 2 of the contract, which states that the "Cash Consideration and the Earn-Out Consideration described in Section 2.2 below are referred to in this Agreement in *1262 the aggregate as the `Purchase Price.'" See Trial Ex. 227a § 2.1. As Mr. Pepper explained on the second day of his direct examination, defendants initially proposed the earn-out consideration as "more of an incentive-type thing" separate and apart from the purchase price. However, after multiple discussions during which Mr. Pepper, Mr. Oppegaard and Mr. Cloutier all agreed that the earn-out was obtainable and that Mr. Pepper would be given the requisite autonomy to obtain the earn-out, defendants ultimately agreed to include the earn-out as part of the purchase price. While both parties agreed at trial that the earn-out was not a "guarantee," ample evidence was presented that all parties believed there to be "reasonable probability" that Mr. Pepper would realize the full amount of the earn-out. Indeed, on his direct examination, Mr. Pepper testified that both Mr. Cloutier and Mr. Oppegaard assured him that the earn-out was obtainable. On his cross-examination, Mr. Pepper testified that he advised his investors in writing that "the management of Horizon believes there is a reasonable probability that ... the earn-out consideration will be achieved." Similarly, Mr. Cloutier testified on direct examination that he he believed at the time of the transaction that Mr. Pepper had a "very realistic" opportunity to achieve the earn-out. Moreover, on cross-examination, Mr. Cloutier testified that he believed that the earn-out portion of the purchase agreement was achievable based in part on defendants' own internal projections. In their papers, defendants now characterize their assurances and beliefs that the earn-out was obtainable as mere "pre-contractual guesswork" and contend that to permit plaintiffs to recover damages based on such guesswork without considering Genmar Kansas' "actual performance" is to provide plaintiffs with an "unwarranted windfall." This argument, however, ignores the significance of the jury's implicit finding-that Genmar Kansas' actual performance would have been different (indeed, it would have been profitable) had defendants performed their obligations under the purchase agreement consistent with plaintiffs' reasonable expectations. In other words, the jury apparently found that defendants' conduct, including undermining Mr. Pepper's managerial authority and requiring increased production of multiple models of Ranger boats, had the effect of rendering Mr. Pepper unable to perform as he had planned, unable to operate Genmar Kansas appropriately and ultimately unable to succeed in achieving any earnout consideration. For these reasons, defendants' reliance on the actual performance of Genmar Kansas as a basis for judgment as a matter of law is misplaced. In sum, the court rejects defendants' attempt to analyze plaintiffs' claim for damages as one for lost profits. The jury's award of $2.5 million is not speculative and is supported by evidence that Genmar Kansas would have been profitable and that the earn-out would have been obtainable if defendants had performed in good faith their obligations under the purchase agreement. 2. Remittitur As an alternative to their argument that they are entitled to judgment as a matter of law on plaintiffs' claim for damages in the form of lost earn-out, defendants maintain that this court should enter a remittitur reducing the $2.5 million verdict to nominal damages of one dollar in light of the "utterly speculative nature" of the lost earn-out damages. Of course, the court has already concluded that the jury's award of $2.5 million was not speculative, so the motion for remittitur is denied. In any event, under Delaware law, the court may order a remittitur only if the verdict *1263 "is so grossly out of proportion as to shock the Court's conscience." See Gillenardo v. Connor Broadcasting Delaware Co., 2002 WL 991110 at *10 (Del.Super.Ct. Apr.30, 2002) (citing Mills v. Telenczak, 345 A.2d 424, 426 (Del.1975)); see also Century 21 Real Estate Corp. v. Meraj Int'l Investment Corp., 315 F.3d 1271, 1281 (10th Cir.2003) (in assessing measure of damages awarded pursuant to contract containing choice of law provision, district court must follow chosen state's law-absent any argument that choice of law provision is unenforceable-including that state's law concerning remittitur). Again, the jury had before it sufficient evidence to conclude that plaintiffs would have realized a significant portion of the earn-out consideration had defendants performed in good faith their obligations under the contract. The $2.5 million verdict represents exactly half of the entire earnout portion of the purchase agreement and exactly half of what the plaintiffs sought to recover on their breach of contract claim. The award is not excessive, it is not unreasonable, it does not shock the court's conscience and, thus, it will not be remitted. See id. at 1282-83 (affirming district court's refusal to remit $700,000 verdict on breach of contract claim, despite concerns about reliability of testimony concerning lost profits and "unrealistic" projections; district court reviewed award under "shock the conscience" standard). 3. New Trial Defendants' final arguments with respect to the jury's verdict on plaintiffs' breach of contract claim is that they are entitled to a new trial because the verdict is against the weight of the evidence and the result of passion and prejudice. Delaware law permits a district court to set aside a verdict and order a new trial only if "the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result." See Gannett Co. v. Re, 496 A.2d 553, 558 (Del. 1985). For the reasons set forth above in connection with defendants' motion for judgment as a matter of law, the court concludes that evidence presented at trial was sufficient for the jury to have reached the result that it did. Similarly, for the reasons explained above, the court cannot conclude that the verdict is so clearly excessive as to indicate that it was the result of passion or prejudice. See Yankanwich v. Wharton, 460 A.2d 1326, 1332 (Del.1983) ("A verdict will not be disturbed as excessive unless it is so clearly so as to indicate that it was the result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law."). The jury's verdict of $2.5 million on plaintiffs' breach of contract claim will stand. C. The Jury's Verdicts in favor of Cassandra O'Tool and John O'Tool The jury also found in favor of Cassandra O'Tool and John O'Tool on their claims that defendants breached the O'Tools' employment contracts. The jury awarded Ms. O'Tool the sum of $63,200 and Mr. O'Tool the sum of $20,313. Defendants assert that they are entitled to judgment as a matter of law on the O'Tools' claims for breach of their employment contracts or, in the alternative, that they are entitled to a remittitur reducing the damages awarded to the O'Tools. For the reasons explained below, defendants' motion is denied. 1. Judgment as a Matter of Law At trial, Cassandra and John O'Tool argued that defendants breached the express terms of their respective employment agreements. Specifically, the O'Tools maintained that, pursuant to the express language of their employment agreements, defendants could not discharge Mr. or Ms. O'Tool prior to the end *1264 of an initial three-year employment period except in four narrow circumstances and that they were not discharged for any of those four reasons. In support of their argument, the O'Tools highlighted for the jury section 3 and section 7 of their employment agreements: 3. Term of Employment. This Agreement shall have a term of three (3) years, subject to earlier termination pursuant to the provisions of Section 7 hereof. * * * * * * 7. Termination and Severance. (a) This Agreement may be terminated prior to the end of the three (3) year term by Genmar Kansas for (i) cause, (ii) lack of adequate job performance as determined by Genmar Kansas' President and the President of Genmar Holdings, (iii) death of Employee, or (iv) disability of Employee. (b) In the event Genmar Kansas terminates Employees employment for any reason other than termination for cause, death or disability Employee shall be entitled to six (6) months of severance pay at the base salary Employee is earning on the date of such termination. Defendants attempted to convince the jury, and now the court, that the O'Tools were terminated for "lack of adequate job performance" consistent with section 7 of their employment contracts. The jury clearly rejected defendants' argument and, in finding that defendants breached the O'Tools' employment contracts, concluded that the O'Tools were not terminated for inadequate job performance or any other reason set forth in section 7. Indeed, ample evidence was presented at trial to support the jury's conclusion. In that regard, the jury could have concluded (and presumably did conclude) that the O'Tools were terminated not because of any performance issues but because of their familial ties with Geoff Pepper, the key individual with whom defendants were attempting to sever their relationship. In other words, the jury could have easily concluded from the evidence presented at trial that defendants terminated Mr. and Mrs. O'Tool because defendants believed it would be awkward to retain the O'Tools after terminating Geoff Pepper. Another possibility, equally supported by the evidence, is that the jury concluded that the O'Tools were terminated for inadequate job performance but that the assessment of their job performance was not, as required by section 7, "determined by Genmar Kansas' President and the President of Genmar Holdings." Specifically, the jury could have concluded that Mr. Pepper was still serving as the president of Genmar Kansas during the relevant time period and that Mr. Pepper had not determined that his daughter and son-inlaw were performing inadequately. Moreover, the jury could have concluded from the evidence presented at trial that Mr. Oppegaard, the president of Genmar Holdings, had simply not made an assessment of the O'Tools' job performance. In fact, Mr. Oppegaard testified at trial that he had never discussed with Mr. Pepper the adequacy of the O'Tools' job performance and that he did not make the decision to terminate the O'Tools. Defendants also reiterate their argument (made at the summary judgment stage, to the court at the close of plaintiffs' case and to the jury throughout the trial) that Section 12 of the O'Tools' employment agreements eviscerates any notion that the O'Tools were guaranteed employment for a three-year term.[4] Section 12 of the *1265 agreement, entitled "Miscellaneous," contains the following sentence: "This Agreement shall not give Employee any right to be employed for any specific time or otherwise limit Genmar Kansas' right to terminate Employees employment at any time with or without cause." As the court noted in its summary judgment order, however, any ambiguity created when sections 3 and 7 are read together with section 12 was for the jury to resolve and defendants certainly are not entitled to judgment as a matter of law on the O'Tools' breach of contract claims based on the language of section 12. See Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123, 1146 (D.Kan.2002). Moreover, the jury could have concluded that section 12, read literally, gives only Genmar Kansas the right to terminate an employee for any reason whatsoever and that, in contrast, Genmar Holdings and Genmar Industries are bound by the language of sections 3 and 7. In sum, the court certainly cannot conclude as a matter of law that the O'Tools were terminated for lack of adequate job performance consistent with section 7 of their employment agreements or that the O'Tools were not guaranteed any specific term of employment. The record contains more than sufficient evidence upon which the jury could properly return a verdict for the O'Tools on their breach of contract claims. 2. Remittitur In the alternative, defendants urge that the damages awarded by the jury to the O'Tools are excessive and against the weight of the evidence and, as a result, they ask the court to enter an order of remittitur reducing the awards. The court begins with defendants' arguments concerning the jury's award of $63,200 to Ms. O'Tool. According to defendants, Ms. O'Tool's lost wages for the relevant time period were only $52,000 and thus, the jury must have awarded Ms. O'Tool more than $11,000 in lost MIP earnings (a bonus pursuant to defendants' Management Incentive Program). Defendants urge that the $52,000 in lost wages must be reduced because the jury failed to deduct from this amount any wages that Ms. O'Tool could have earned if she had made reasonable efforts to obtain other employment. Of course, the burden was on defendants to prove that Ms. O'Tool failed to mitigate her damages. See Leavenworth Plaza Assocs., L.P. v. L.A.G. Enterprises, 28 Kan.App.2d 269, 272, 16 P.3d 314 (2000) (citing Kelty v. Best Cabs, Inc., 206 Kan. 654, 659, 481 P.2d 980 (1971); Rockey v. Bacon, 205 Kan. 578, 583, 470 P.2d 804 (1970)).[5] Defendants spent very little time on this issue at trial. They presented no evidence regarding any specific jobs that might have been available to Ms. O'Tool and, in contrast, plaintiffs presented evidence reflecting that Ms. O'Tool did, in fact, attempt to find alternative employment but was unsuccessful. Ultimately, defendants simply failed to carry their burden on the mitigation issue. Defendants further contend that the jury's calculation of Ms. O'Tool's lost MIP earnings was inaccurate. Consistent with the evidence presented by plaintiffs at trial, the jury apparently awarded Ms. O'Tool approximately $11,000 in lost MIP earnings, *1266 representing 20 percent of Ms. O'Tool's salary. Significantly, defendants do not contest that Ms. O'Tool's employment agreement provided that her MIP compensation would be 20 percent of her salary assuming that both Genmar Holdings and Genmar Kansas met their operating profit goals. Moreover, defendants do not contest that 20 percent of Ms. O'Tool's salary over the relevant 15-month period at issue (the time of her termination through the time when Ms. O'Tool's employment contract would have expired) would be roughly $11,000.[6] Rather, defendants urge that the jury incorrectly assumed that both Genmar Holdings and Genmar Kansas would have met their operating profit goals during the relevant time frame-an assumption that defendants characterize as "clearly erroneous" in light of the fact that Genmar Kansas never reached the operating profits necessary to generate MIP payments. Similarly, defendants contend that the jury improperly calculated Mr. O'Tool's lost MIP earnings when it awarded him $20,313. In that regard, the jury's verdict represents only lost MIP earnings as it was undisputed that Mr. O'Tool earned more money in his subsequent job than he would have earned if he had stayed at Genmar Kansas. Defendants do not dispute that Mr. O'Tool's employment contract provided that his MIP compensation would be 25 percent of his salary (assuming that both Genmar Holdings and Genmar Kansas met their operating profit goals). Defendants also do not dispute that the jury's verdict of $20,313 represents almost to the penny 25 percent of Mr. O'Tool's annual salary of $65,000 over the course of 15 months.[7] Again, defendants maintain only that the jury incorrectly assumed (or wildly speculated) that both Genmar Holdings and Genmar Kansas would have met their operating profit goals during the relevant time frame and that, in fact, Genmar Kansas never met the requisite profit goals. Of course, defendants had the opportunity to make this argument to the jury and did, in fact, make this argument to the jury. The jury, as it was entitled to do, rejected this argument and plainly adopted plaintiffs' theory, thoroughly developed at trial, that Genmar Kansas would have reached its operating profit goals but for defendants' breach of their obligations under the purchase agreement, including their duty of good faith and fair dealing. In short, the jury's award of $63,200 to Ms. O'Tool and $20,313 to Mr. O'Tool does not shock the conscience of this court and, thus, no remittitur will be issued. See Dougan v. Rossville Drainage Dist, 270 Kan. 468, 486, 15 P.3d 338 (2000) (court has the power to issue a remittitur where a verdict is so manifestly excessive that it shocks the conscience of the court); see also Century 21 Real Estate Corp. v. Meraj Int'l Investment Corp., 315 F.3d 1271, 1281 (10th Cir.2003) (in assessing measure of damages awarded pursuant to contract containing choice of law provision, district court must follow chosen state's law-absent any argument that choice of law provision is unenforceable-including that state's law concerning remittitur). *1267 D. Remaining Arguments in Support of New Trial Finally, defendants assert that they are entitled to a new trial pursuant to Federal Rule of Civil Procedure 59(a) in light of two "substantial errors of law" committed by the court. Specifically, defendants contend that the court erred in admitting parol evidence of the parties' negotiations prior to the execution of the purchase agreement and that the court erred in its instruction to the jury regarding the appropriate standard for determining whether defendants breached the implied covenant of good faith and fair dealing. The court addresses each of these arguments in turn and, as explained below, rejects both arguments. 1. Admission of Parol Evidence In their motion, defendants initially argue that the court erred when it admitted, over defendants' objection, parol evidence of the parties' negotiations to support plaintiffs' claim that they were fraudulently induced into executing the purchase agreement. Curiously, defendant concedes (in the same paragraph) that the law permits such evidence to prove fraudulent inducement. What defendants are really arguing is that parol evidence is inadmissible to prove bad faith in a breach of contract claim and that the jury should not have been permitted to consider evidence of the parties' negotiations (and, more specifically, oral assurances made to plaintiffs by defendants prior to the execution of the agreement) in connection with plaintiffs' claim that defendants breached the implied duty of good faith and fair dealing.[8] While defendants objected at trial to the admission of parol evidence concerning the parties' negotiations, they did not, once the court ruled that such evidence was clearly admissible with respect to plaintiffs' fraud claim, request a limiting instruction or even raise the issue of whether such evidence was admissible with respect to plaintiffs' breach of contract claim. In fact, defendants concede, as they must, that they failed to request a limiting instruction. Defendants, however, urge that parol evidence is a rule of substantive law that is not waived by the failure to object to its admission. See Carey v. Shellburne, Inc., 224 A.2d 400, 402 (Del.1966). While this is certainly time, there is nonetheless an evidentiary objection-relevance under Federal Rules of Evidence 401 and 402-that defendants should have made (and did not) if they desired to preclude the jury from considering such evidence with respect to plaintiffs' breach of contract claim. Because defendants failed to raise a timely objection to the admission of such evidence on that basis and request a limiting instruction, the court reviews the admission of the evidence under the "plain error" standard. See Fed.R.Evid. 103(d). The court readily concludes that the admission of evidence concerning the parties' negotiations prior to executing the purchase agreement was not plain error. In fact, the point largely is moot because the court, even if defendants had brought the issue to the court's attention at trial, would have permitted the jury to consider such evidence in connection with plaintiffs' claim that defendants breached the implied covenant of good faith and fail" dealing. In other words, the court would have overruled any objection that defendants might have made in this regard. *1268 The parol evidence rule requires the court to exclude "extraneous evidence that varies or contradicts the terms of a unified written instrument." True North Composites, LLC v. Trinity Indus., Inc., 191 F.Supp.2d 484, 514 (D.Del.2002) (citation omitted). Because defendants have not shown (much less argued) that the evidence presented at trial concerning the parties' negotiations varied or contradicted the terms of the purchase agreement, such evidence simply does not require invocation of the parol evidence rule. Moreover, because the purchase agreement was silent with respect to the majority of the issues discussed by the parties prior to the execution of the agreement (e.g., the number of Ranger boats that Genmar Kansas would be expected to produce or whether Genmar Kansas would be expected to produce any sister-brand boats at all), evidence concerning the parties' pre-acquisition negotiations is entirely appropriate to provide context for plaintiffs' claim that defendants breached their duty of good faith and fair dealing. See id. at 514-15 (denying motion for new trial based on court's alleged error in admitting parol evidence of transaction underlying written agreement because evidence provided context to good-faith-and-fair-dealing claims and testimony did not vary or contradict the terms of the agreement). In other words, evidence concerning what the parties discussed prior to executing the agreement, to the extent such evidence, as here, does not contradict the agreement, is entirely relevant to whether defendants breached the covenant of good faith and fair dealing because the parties' reasonable expectations at the time of the contract formation determine the reasonableness of the challenged conduct. See id. at 516 (evidence concerning course of dealings between the parties prior to execution of agreement was relevant to claim that party breached the covenant of good faith and fair dealing because such evidence illuminated the parties' expectations of each other at the time of contract formation). To conclude, then, defendants have not shown that the parol evidence rule required exclusion, at least for purposes of plaintiffs' breach of contract claim, of evidence concerning the parties' negotiations prior to the execution of the purchase agreement. The court rejects defendants' contention that it erred by allowing the jury to consider such evidence. 2. The Good Faith and Fair Dealing Instruction Defendants' final argument in support of their motion for a new trial is that the court erred in its instruction to the jury concerning the duty of good faith and fair dealing. In its instructions, the court explained the duty, under Delaware law, as follows: [T]he law imposes a duty of good faith and fair dealing in every contract. This duty is a contract term implied by courts to prevent one party from unfairly taking advantage of the other party. This duty includes a requirement that a party avoid hindering or preventing the other party's performance. The implied covenant of good faith and fair dealing emphasizes faithfulness to an agreed common purpose and consistency for the justified expectations of the other party. The parties' reasonable expectations at the time of the contract formation determines the reasonableness of the challenged conduct. A violation of the implied covenant of good faith and fair dealing implicitly indicates bad faith conduct. In determining whether defendants breached the implied covenant of good faith and fair dealing, you may consider whether it is clear from what was expressly agreed upon by the parties that *1269 the parties would have agreed to prohibit the conduct complained of as a breach of the agreement had they thought to negotiate with respect to that matter. See Jury Instruction 12. The court's instruction, in large part, was based on an instruction given by another federal court applying Delaware law concerning the duty of good faith and fair dealing, True North Composites, LLC v. Trinity Indus., Inc., 191 F.Supp.2d 484 (D.Del.2002). In True North, the court, faced with a motion for a new trial based an alleged errors in the good faith and fail dealing instruction, reviewed its instruction and found it to be "consonant with Delaware law." Id. at 517-18. Specifically, the court noted that its instruction "tracks the language of § 205(a) of the Restatement (Second) of Contracts (1979), which has been used by Delaware courts to explain the duty of good faith." Id. at 518.[9] In short, the court readily concluded that its instruction on the duty of good faith and fair dealing was not in error. Id. Defendants urge, as they did at the instruction conference, that any proper instruction on the duty of good faith and fair dealing under Delaware law must require a finding that the conduct at issue involved "fraud, deceit or misrepresentation." Defendants' proposed instruction, for example, contained the following sentence that the court expressly rejected: "To prove defendants breached the implied duty of good faith and fair dealing in the Purchase Agreement, plaintiffs must demonstrate that defendants engaged in conduct of fraud, deceit or misrepresentation." See Def. Proposed Instruction 5. This proffered language is derived from Corporate Property Associates 6 v. Hallwood Group Inc., 792 A.2d 993 (Del.Ch.2002), a trial court decision from the Court of Chancery in Delaware. In that case, a commercial dispute, the Vice Chancellor stated that a claimant seeking to prove a breach of the implied covenant of good faith and fair dealing "must also demonstrate that the conduct at issue involved `an aspect of fraud, deceit or misrepresentation.'" Id. at 1003. At the instruction conference, defendants relied solely on the Corporate Property case to support their proffered instruction. Indeed, defendants did not direct the court to any other Delaware case-much less a Delaware Supreme Court case or a federal case interpreting Delaware law-in which a court required a finding of fraud, deceit or misrepresentation to support a breach of the covenant of good faith and fair dealing in the context of a commercial transaction. As the court explained at the conference, the trial court in Corporate Property cites only to Merrill v. Crothall-American, Inc., 606 A.2d 96, 101 (Del.1992) in support of the "fraud, deceit or misrepresentation" language. The Merrill case involved an employment-at-will contract and the court held that when the conduct of an employer in the employment-at-will context rises to the level of fraud, deceit or misrepresentation, then the employer will have violated the implied covenant of good faith and fair dealing. Id. Interestingly, the Merrill court, in turn, relies on two cases from two other state courts in support of its conclusion that an element of fraud, deceit or misrepresentation must be present before an employer violates the covenant of good faith and fail' dealing. Id. Those cases, Magnan v. Anaconda Indus., Inc., 37 Conn.Supp. 38, 429 A.2d 492 (1980) and A. John Cohen Ins. v. Middlesex Ins. Co., 8 Mass.App.Ct. 178, 392 N.E.2d 862 (1979), *1270 both arise in the employment-at-will context. In the limited and unique context of employment-at-will, requiring an employee to prove that his or her employer's conduct amounted to fraud in order to show a breach of the duty of good faith and fair dealing is entirely consistent with the notion of an at-will employment relationship. For in the absence of a showing of fraud, the covenant of good faith and fair dealing could not operate in the employment-at-will context without wholly defeating the benefit for which the parties bargained-the employer's ability to discharge the employee and the employee's ability to quit his or her employment for good reason, bad reason or no reason at all. Stated another way, parties to an at-will employment relationship are generally not subjected to any good faith standard.[10] On the other hand, in the context of a commercial transaction like the one presented here, the implied covenant of good faith and fair dealing-as it is typically applied (i.e., without a requirement of fraud)-does not conflict with the benefit for which parties to a commercial transaction generally bargain. For these reasons, the court reiterates its belief that the trial court in Corporate Property incorrectly incorporated into the commercial context the "fraud, deceit or misrepresentation" language from the employment-at-will context of Merrill.[11] Defendants, for the first time, now also cite to a Delaware Supreme Court case that they assert rejects the distinction that this court has drawn between the commercial context and employment-at-will context. Specifically, defendants rely on Cincinnati SMSA Limited Partnership v. Cincinnati Bell Cellular Systems Co., 708 A.2d 989 (Del.1998) and contend that in Cincinnati Bell the Delaware Supreme Court "made clear that the same standard applied by the Delaware court in Merrill should also be applied in the commercial contract context." Defendants' characterization of the Cincinnati Bell case is simply inaccurate; in fact, that case supports this court's conclusion that any requirement that a party prove fraudulent conduct to demonstrate a violation of the duty of good faith and fair dealing is limited to the employment-at-will context. In Cincinnati Bell, the Delaware Supreme Court reviewed a decision by the Court of Chancery dismissing, pursuant to Rule 12(b)(6), a good faith and fair dealing claim arising in the context of a limited partnership agreement. Id. at 990. Specifically, the Delaware Supreme Court affirmed the lower court's conclusion that the implied covenant of good faith and fair dealing could not provide a basis for implying additional noncompete obligations in a limited partnership agreement where the agreement's noncompete clause was unambiguous. Id. at 993-94. In so holding, the Cincinnati Bell court emphasized that "implying obligations based on the covenant of good faith and fair dealing is a cautious enterprise." Id. at 992. *1271 Tracing the development of the implied covenant under Delaware law, the court in Cincinnati Bell noted that the Merrill case was the first case in which the court "first recognized the limited application of the covenant to inducement representations in at-will employment contracts." Id. The Cincinnati Bell court further noted that in Merrill, the court "was careful to heed the legal right of employers to pursue a certain amount of self-interest in the creation of contractual relationships" and "held that, to plead properly a claim for breach of an implied covenant of good faith and fair dealing in the inducement of employment, a plaintiff must allege `an aspect of fraud, deceit or misrepresentation.'" Id. at 992-93 (quoting Merrill, 606 A.2d at 101-02). The court in the Cincinnati Bell case then stated, "[t]his Court should be no less cautious or exacting when asked to imply contractual obligations from the written text of a limited partnership agreement." Id. at 993. Defendants argue that this single sentence clearly illustrates an intent by the Delaware Supreme Court to incorporate the fraud standard of the employment-at-will context into the commercial transaction context. A full reading of Cincinnati Bell, however, indicates that the court was simply stressing the narrow scope of the implied covenant and that application of the covenant is a "cautious enterprise." Id. at 992-93. There is no indication in Cincinnati Bell that the court utilized the fraud standard of Merrill in resolving the appeal. In short, Cincinnati Bell in no way suggests that the jury in this case should have been instructed that plaintiffs were required to prove that defendants acted fraudulently in order to prove a breach of the implied covenant and, more importantly, the court believes that the Delaware Supreme Court, if faced with the issue, would refuse to adopt such a requirement. Moreover, defendants' construction of Delaware law on good faith and fair dealing is illogical as it would render a good faith and fair dealing claim entirely duplicative of a fraud claim. In fact, defendants essentially contend that plaintiffs' good faith and fair dealing claim should be converted into one of fraud. Under defendants' theory, then, plaintiffs could not prevail on their good faith and fair dealing claim without also prevailing on their fraud claim. Any distinction, then, between the two claims would be lost. Such a result would be untenable, as the Delaware Supreme Court obviously recognizes a distinction between the two claims. See Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199, 1207-08 (Del.1993) (distinguishing claim of fraud from allegations of bad faith). Finally, defendants contend that the court's instruction on the duty of good faith and fair dealing was erroneous because it failed to inform the jury that plaintiffs were required to show affirmative acts of bad faith on the part of defendants. The court's instruction advised the jury that a violation of the implied covenant of good faith and fair dealing "implicitly indicates bad faith conduct." While defendants may have preferred different language concerning bad faith, they have not identified how the court's instruction departs from or incompletely portrays Delaware law. Moreover, defendants have not demonstrated why plaintiffs' proof of a breach of the duty of good faith and fair dealing is inadequate without further proof of affirmative acts of bad faith conduct. The court, then, rejects defendants' argument that the instruction was erroneous. See True North, 191 F.Supp.2d at 517-18 (rejecting argument that instruction was erroneous because it failed to advise that the claimant must prove that the other party acted in bad faith where movant failed to show how the court's instruction was inconsistent with Delaware law). *1272 11. Plaintiffs' Motion to Alter or Amend the Judgment The judgment entered on November 21, 2002 states that plaintiffs Horizon and Mr. Pepper shall recover on their breach of contract claim "the sum of $2,500,000.00, with interest thereon at the rate of 1.46 percent per annum as provided by law." Plaintiffs move to alter or amend the judgment to reflect the parties' contractually agreed interest rate of 2 percent per month.[12] In that regard, the relevant section of the purchase agreement executed by the parties states as follows: In the event that the Non-Defaulting Party is entitled to receive an amount of money by reason of the Defaulting Party's default hereunder, then, in addition to such amount of money, the Defaulting Party shall promptly pay to the Non-Defaulting Party a sum equal to interest on such amount of money accruing at the rate of 2% per month (but if such rate is not permitted under the laws of the State of Delaware, then at the highest rate which is permitted to be paid under the laws of the State of Delaware) during the period between the date such payment should have been made hereunder and the date of the actual payment thereof. See Purchase Agreement, Section 13.2(b) (Trial Exhibit 227a). Defendants oppose plaintiffs' motion for three reasons. According to defendants, the contractual rate of interest specified in the purchase agreement is preempted by the standard rate contained in 28 U.S.C. § 1961; plaintiffs have waived their right to have the judgment accrue interest at the parties' contractually agreed rate; and the contractually agreed rate is not permitted under Delaware law. As set forth below, the court concludes that parties are free to contract for a rate other than that specified in 28 U.S.C. § 1961 and, thus, the federal statute does not supersede the parties' agreement. Nonetheless, because the court concludes that plaintiffs have waived their right to assert the rate set forth in the purchase agreement by not preserving their claim of entitlement to such rate in the pretrial order and by failing to raise the issue until after the entry of judgment, the court denies plaintiffs' motion to alter or amend the judgment to the extent plaintiffs seek to enforce the rate established in the purchase agreement. A. Whether Section 1961 Supersedes the Contractually Agreed Rate Defendants contend that 28 U.S.C. § 1961, the federal statute governing post-judgment interest, must govern the award of post-judgment interest in this case despite the parties' contractual agreement for a different rate. Section 1961 states, in relevant part, that "[i]nterest shall be allowed on any money judgment in a civil case recovered in district court" and that [s]uch interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of the fifty-two week United States Treasury bills settled immediately prior to the date of the judgment." 28 U.S.C. § 1961(a). In support of their argument, defendants direct the court to Wilmington Trust Co. v. Aerovias de Mexico, S.A. de C.V., 893 F.Supp. 215, 220 (S.D.N.Y.1995), *1273 where the court calculated post-judgment interest at the section 1961 rate despite a contractual agreement providing for a higher rate. In that case, the district court simply stated that the language of section 1961(a) is mandatory and must govern the interest rate on any judgment debt: The language of [section 1961(a) ] is mandatory: once a claim is reduced to judgment, the original claim is extinguished, and a new claim, called a judgment debt, arises. Section 1961(a) governs the interest rate on this judgment debt. Carte Blanche (Singapore) v. Carte Blanche (Int.), 888 F.2d 260 (2d Cir.1989), citing Kotsopoulos v. Asturia Shipping Co., 467 F.2d 91 (2d Cir.1972). Id. at 220-21. The Wilmington case, however, is not entirely helpful for purposes of this court's analysis of whether parties can contract for a rate of interest different from the rate set forth in section 1961(a). In that regard, the district court in Wilmington did not expressly address whether the parties could contract around the federal statute. Rather, the court seemed to assume that the parties would not be permitted to do so under Second Circuit precedent. However, Carte Blanche and Kotsopoulos, the Second Circuit cases upon which the Wilmington court relies, do not stand for the proposition that parties cannot contract for a different rate of interest. In Kotsopoulos, a maritime case, the issue before the Second Circuit was only whether state law or federal law would determine the appropriate rate of post-judgment interest in admiralty and maritime cases. See 467 F.2d at 94-95. Similarly, the Second Circuit in Carte Blanche did not address whether parties to a contract could provide for a rate different than the standard rate set forth in section 1961(a). There, the Circuit held that an arbitrator could not impose a postjudgment interest rate different than the rate established in section 1961(a). See 888 F.2d at 268-69 (district court judgment affirming an arbitration award is governed by section 1961(a) rather than rate set forth in arbitration award). Plaintiffs, on the other hand, urge that nearly every Circuit Court of Appeals to have addressed this issue has concluded that the parties can agree to an interest rate other than the standard one contained in 28 U.S.C. § 1961. For example, the Seventh Circuit in Central States, Southeast & Southwest Areas Pension Fund v. Bomar National, Inc., 253 F.3d 1011 (7th Cir.2001), affirmed a district court's award of post-judgment interest pursuant to the rate agreed upon in a pension trust agreement rather than the standard rate contained in section 1961(a). In so doing, the Seventh Circuit stated that "[i]t is well established that parties can agree to an interest rate other than the standard one contained in 28 U.S.C. § 1961." Id. at 1020. In support of its statement, the Seventh Circuit cites to the Fifth Circuit's decision in Hymel v. UNC, Inc., 994 F.2d 260, 265 (5th Cir.1993). In Hymel, the Fifth Circuit "noted" that the district court was correct when it awarded post-judgment interest at a rate of 9 percent per annum pursuant to express language contained in a promissory note executed by the parties. Id. at 265-66. The Circuit summarily rejected the argument that section 1961 applies in every case without exception and, in doing so, cited to another Fifth Circuit case, In re Lift & Equipment Service, Inc., 816 F.2d 1013 (5th Cir.1987). See id. In In re Lift, a case arising out of the bankruptcy court, the parties disputed whether the creditor was entitled to post-judgment interest under Louisiana law or under section 1961(a), 816 F.2d at 1018. The Fifth Circuit, however, rejected both arguments and, embracing a view that none of the parties had espoused, applied the interest *1274 rate set forth in the written assignment of accounts receivable. Id. In so doing, the Circuit stated, "While 28 U.S.C. § 1961 provides a standard rate of post-judgment interest, the parties are free to stipulate a different rate, consistent with state usury and other applicable laws." Id. While the Fifth Circuit in In re Lift offered no explanation for its conclusion, it cited to a Ninth Circuit decision, Investment Service Co. v. Allied Equities Corp., 519 F.2d 508 (9th Cir.1975). In that case, the district court judge applied the interest rate agreed upon by the parties in a promissory note. Id. at 511. The guarantor of the loan argued that the assignee of the note was only entitled to the legal rate of interest under Oregon state law. See id. The Ninth Circuit rejected the argument: It is true that the contractual duty here is discharged by merger once the judgment is entered on the note. Restatement of Contracts § 444. However, upon entry of the judgment the legal rate of interest applicable should apply unless the parties have agreed in the note that some other rate of interest shall apply. Corbin on Contracts § 1045 (1962). Id. The court's reliance on Corbin, however, is somewhat puzzling in that Corbin does not purport to draw any conclusion about the effect of a judgment on the parties' contractual agreement to a different rate and it does not address a contractual agreement for post-judgment interest; rather, the section cited by the Ninth Circuit deals only with the payment of interest as "agreed compensation" for a breach of the contract. See Arthur Linton, Corbin on Contracts § 1045 (Interim ed.2002) (expressly stating that section 1045 addresses neither a contract right to interest nor statutory rights thereto, but only interest recoverable as compensatory damages for a breach of contract). In any event, the court ultimately applied Oregon's legal-rate-of-interest statute, which specifically provides that parties to a contract can agree to a higher rate of interest provided that such rate does not exceed the maximum rate allowed by law. See id. The court concedes at the outset that the cases relied upon by plaintiffs, to the extent those cases purport to stand for a well-recognized rule that parties are free to contract for an interest rate other than the rate established in section 1961(a), are problematic in certain respects. In large part, the cases offer very little analysis as to why parties would be able to contract around the seemingly mandatory language of section 1961(a). Moreover, in several of the cases, the precise issue was not one that the court had to decide and, thus, any conclusions about the issue would be mere dicta. Nonetheless, it is clear that the Seventh, Fifth and Ninth Circuits consider it beyond dispute that parties are free to contract for whatever post-judgment interest rate they choose. In addition, the Fourth Circuit, albeit in an unpublished decision, expressly adopted the Fifth Circuit's Hymel decision in affirming a district court's award of post-judgment interest at a rate set forth in a stock redemption agreement as opposed to the rate set forth in section 1961(a). See Carolina Pizza Huts, Inc. v. Woodward, 67 F.3d 294, 1995 WL 572902, at *3 (4th Cir.1995). Moreover, at least one district court has declined to award post-judgment interest at the section 1961(a) rate where the parties stipulated to the entry of a judgment which provided for interest at a higher rate. See In re Connaught Properties, Inc., 176 B.R. 678, 684-85 (Bankr.D.Conn.1995). In the end, the court is called upon to resolve a difficult legal issue on which the Tenth Circuit has not been called to opinean issue that is rendered that much more difficult in light of the dearth of on-point *1275 analysis by other courts. After carefully weighing both sides of the issue, the court ultimately believes that the Tenth Circuit would likely concur with those Circuits that have held that parties should be and are able to contract for a rate other than the rate set forth in section 1961(a). While section 1961 without a doubt uses mandatory language, the court concludes that Congress intended it to be mandatory in the sense that a district court or other third party (e.g., an arbitrator) has no discretion to award a different rate of interest or to decline to award post-judgment interest. See, e.g., Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1104 (7th Cir.1990) (section 1961(a) allows the judge no discretion to deny the interest authorized by that section); Carte Blanche, 888 F.2d at 269 (the language of section 1961 is mandatory and its terms do not permit the exercise of judicial discretion in its application). The court, however, can discern no sound reason why Congress would have intended that parties themselves could not agree to a different rate. Thus, the court rejects defendants' contention that section 1961(a) supersedes the rate agreed upon by the parties in the purchase agreement. B. Whether Plaintiffs Waived the Right to Assert, the Contractually Agreed Rate Defendants also oppose plaintiffs' motion to alter or amend on the grounds that plaintiffs waived the right to assert the 2% per month rate by failing to include that rate in the pretrial order. Plaintiffs concede that they did not articulate in the pretrial order their claim of entitlement to a higher rate of post-judgment interest. Nonetheless, plaintiffs contend that no such claim needed to be asserted in the pretrial order. As explained below, the court disagrees with plaintiffs on this point. In their papers, plaintiffs rely to a large extent on the legal principles that an award of post-judgment interest is mandatory, see Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 103 F.3d 80, 81 (10th Cir.1996), and, as such, must be made regardless of what was demanded in the complaint or stated in the pretrial order. See Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1104 (7th Cir.1990); 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2664 at 186-87 (1998). However, the issue is not whether plaintiffs were required to request post-judgment interest in the pretrial order to receive an award of post-judgment interest. The law is clear (and defendants do not dispute) that plaintiffs are entitled to post-judgment interest, at least at the rate established in 28 U.S.C. § 1961(a), despite their failure to request such an award in the pretrial order. The issue as this court sees it is whether plaintiffs are entitled to an award of post-judgment interest at the higher rate of interest specified in the purchase agreement when no such request was made in the pretrial order. It is axiomatic that a Rule 59(e) motion cannot be used to raise a new issue that could have been raised prior to judgment. See Steele v. Young, 11 F.3d 1518, 1520 n. 1 (10th Cir.1993); 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.1995). In other words, Rule 59(e) is "aimed at re consideration, not initial consideration" and, thus, a party may not rely on Rule 59(e) to raise an argument which could, and should, have been made before judgment issued. United States ex rel, Noyes v. Kimberly Constr., Inc., 43 Fed.Appx. 283, 286-87 (10th Cir.2002) (emphasis in original). Despite plaintiffs' insistence that they did not need to raise the issue prior to judgment, *1276 it is beyond dispute that plaintiffs could have raised the issue prior to judgment. Unlike an award of postjudgment interest pursuant to 28 U.S.C. § 1961, the award sought by plaintiffs here was not necessarily a "given." In that regard, while defendants assert only legal arguments in opposition to plaintiffs' claim of entitlement to the higher rate of interest, it is possible that defendants could have sought to raise factual arguments in opposition to the claim. For example, defendants could have asserted that section 13.2(b) was altered by plaintiffs after the contract was signed.[13] Had defendants so asserted, then they would have been entitled to have the jury resolve that dispute. Because a court is not permitted to give relief under Rule 59(e) "if this would defeat a party's right to jury trial on an issue," see Wright, Miller & Kane, supra, § 2810.1, then the fact that one in the place of defendants might have had fact-based defenses available renders plaintiffs' request for award of postjudgment interest pursuant to the purchase agreement the type of request that cannot be raised for the first time pursuant to Rule 59(e). According to plaintiffs, defendants were nonetheless on notice that plaintiffs would assert a claim of entitlement to an award of postjudgment interest at the higher rate because defendants executed the purchase agreement and are charged with knowledge of the contents of that agreement. The court finds this argument disingenuous as it is clear that plaintiffs themselves did not remember (or perhaps even recognize) that the purchase agreement provided for a higher rate of interest until very late in the litigation process. Indeed, section 13.2(b) provides not only for postjudgment interest, but prejudgment interest-a remedy that plaintiffs failed to request at any time during the course of the litigation (and a remedy that plaintiffs acknowledge they cannot now seek). Plaintiffs' failure in that regard demonstrates to the court that they were not aware of or did not remember the contents of section 13.2(b). Moreover, while section 13.2(a) provides for a prevailing party to recover reasonable attorneys fees, plaintiffs did not assert a claim for fees in the pretrial order. This also demonstrates to the court the likelihood that plaintiffs had not considered the contents of section 13.2 in connection with this case at any time prior to entry of the pretrial order. Only after defendants asserted in the pretrial order a right to recover fees did plaintiffs scour the purchase agreement looking for the source of defendants' claim. At that point, after the entry of the pretrial order, plaintiffs moved to amend the pretrial order to assert a claim for fees. The court granted that motion because defendants, who had asserted a claim for the recovery of fees pursuant to the purchase agreement, were not prejudiced by the addition of that claim in that they clearly had knowledge of that portion of the contract and they had not demonstrated that plaintiffs' right to recover fees would affect the trial of the case in any way. The court concludes that defendants were entitled to notice from plaintiffs-prior to trial and, hopefully, at least by the date of entry of the final pretrial order-that plaintiffs intended to seek postjudgment interest at the contractual rate. Such notice would have enabled defendants to ascertain *1277 whether they had any good faith factual arguments to raise in the face of section 13.2(b)-factual arguments that could have been presented to the jury. Moreover, such notice would have permitted defendants to assess fully the risk of bringing this case to trial. More specifically, defendants would have been able to ascertain the total potential exposure that they might face if the jury, as they did, returned a verdict in favor of plaintiffs. Indeed, the interest rate set forth in the contract-2 percent per month-would expose defendants to an additional $600,000 per year in indebtedness to plaintiffs on a verdict of $2.5 million, assuming the jury's verdict is upheld on appeal. In short, the court believes that defendants were entitled to actual notice that plaintiffs' recovery might encompass this significant amount. In sum, plaintiffs' motion to alter or amend the judgment is denied to the extent plaintiffs seek an award of post-judgment interest pursuant to the interest rate set forth in the parties' purchase agreement. C. Whether Delaware Law Prohibits Application of the Contractually Agreed Rate Because the court denies plaintiffs' motion on the grounds that plaintiffs waived their right to assert the higher interest rate found in the purchase agreement, the court need not address defendants' argument that the higher rate is not permitted under Delaware law. Nonetheless, in the interest of judicial economy in the event the parties' appeal this court's decision to the Tenth Circuit, the court notes, without elaborating in full detail, that it would conclude that the higher rate established in the contract is permissible under Delaware law. The Delaware law governing post-judgment interest is codified at section 2301 of Title 6 of the Delaware Code and states, in relevant part, as follows: Any lender may charge and collect from a borrower interest at any rate agreed upon in writing not in excess of 5% over the Federal Reserve discount rate including any surcharge thereon, and judgments entered after May 13, 1980, shall bear interest at the rate in the contract sued upon. Where there is no expressed contract rate, the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due; provided, that where the time from which interest is due predates April 18, 1980, the legal rate shall remain as it was at such time. Id. § 2301(a). The court agrees with defendants that section 2301(a) clearly provides that no interest rate can exceed 5% over the federal discount rate and rejects plaintiffs' argument that because the judgment in this case was entered after May 13, 1980, section 2301(a) permits interest to accrue at a contractually agreed rate. However, as plaintiffs highlight in their papers, section 2301(c) expressly provides that there is "no limitation on the rate of interest which may be legally charged for the loan or use of money, where the amount of money loaned or used exceeds $100,000, and where repayment thereof is not secured by a mortgage against the principal residence of any borrower." While defendants urge that this provision does not apply because it is limited to the context of a unsecured loan between a lender and a borrower, section 2301(a) on its face would also appear to apply only to lenders and borrowers. Thus, if subsection (a) applies to the purchase agreement (as defendants urge that it does), then subsection (c) would have to apply as well. In any event, defendants are precluded under Delaware law from challenging the *1278 contractual rate as usurious. See Del. Code. tit. 6 § 2306 ("No corporation ... or limited liability company ... shall interpose the defense of usury in any action."). For these reasons, the court would conclude that the rate of interest agreed upon by the parties in the purchase agreement is not prohibited by Delaware law. III. Plaintiffs' Motion for Attorneys' Fees, Costs and Expenses The purchase agreement executed by the parties provides that the prevailing party shall be entitled to recover from the defaulting party all costs and expenses, including reasonable attorneys' fees, incurred in connection with enforcing the terms of the purchase agreement. See Purchase Agreement, Section 13.2(a) (Trial Exhibit 227a). Pursuant to this provision of the contract, and having prevailed on their breach of contract claim, plaintiffs Horizon and Mr. Pepper seek attorneys' fees and expenses totaling $846,740.35.[14] As set forth below, with the exception of a few minor adjustments, the court grants plaintiffs' motion.[15] The parties have stipulated to the reasonableness of all billing rates and, thus, the court need not address that issue. To the extent defendants do oppose plaintiffs' fee request, that opposition is both exceedingly narrow and easily resolved. Defendants assert that plaintiffs' request is simply too exorbitant because of the "limited success" achieved by plaintiffs at trial. To be clear, defendants have not articulated any objections to any specific portion of the fee request or plaintiffs' billing records and they do not contest any specific time entries. Instead, defendants assert only a general objection to the fee request as unreasonable. Indeed, in the face of a request for nearly $850,000 in fees and expenses, defendants have submitted a brief that is less than 9 pages in length. Defendants suggest in their papers that they are relieved of the burden of objecting to specific portions of plaintiffs' fee request because, according to defendants, plaintiffs have failed to meet their burden of showing that the request is reasonable. The court disagrees. To meet their burden of proving the number of hours reasonably spent on the litigation, plaintiffs "must submit meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." United Phosphorus, Ltd. v. *1279 Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir.2000) (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir.1998)). The district court, then, may reduce the number of hours when the time records provided to the court are inadequate. Id. at 1233-34. The court has reviewed the billing records submitted by plaintiffs and those records are more than adequate to meet plaintiffs' burden. Defendants also invite the court to dissect plaintiffs' billing records in an effort to determine or "approximate" those fees that are attributable to the breach of contract claim and those fees that are attributable to the unsuccessful claims. The court, however, is not obligated to comb the record to ferret out deficiencies in plaintiffs' submission. It is defendants' obligation to direct the court to such deficiencies if they believe such deficiencies exist. See Public Serv. Co. of Colorado v. Continental Casualty Co., 26 F.3d 1508, 1521 (10th Cir.1994) ("We do not feel that the trial judge was obligated to comb the evidence before him-consisting of voluminous attorney billing records-to ferret out gaps or inconsistencies in the evidence presented on the fees."); see also United States ex rel. C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1549 (10th Cir.1987) ("[T]he trial court is not responsible for independently calculating a `reasonable' fee."). Nonetheless, the court has reviewed the billing records and, in large part, concludes that plaintiffs' fee request is a reasonable one. The court will, however, deduct from plaintiffs' request fees of $67.50 for work performed by attorney Normal Siegel on April 15, 2002 and fees of $585.00 for work performed by attorney Amy Baumann on August 14, 2002. It is apparent from plaintiffs' papers that they intended to deduct these fees from their request (and to request fees for attorney time only to the extent work was done by the two primary lawyers involved in the case-George Hanson and Todd McGuire) but, presumably by oversight, neglected to do so. Similarly, the court will deduct fees of $3195.00 incurred during July 2002 in connection with plaintiffs' motion to compel discovery. Again, plaintiffs' papers indicate that they intended to deduct these fees from their request, having already recovered this sum from defendants by virtue of this court's July 25, 2002 order, but the billing records indicate that this deduction was not, in fact, made. To reiterate, then, aside from these minor deductions, the court has reviewed the billing records and, in the absence of any specific objection to plaintiffs' request and in the absence of any evidence that the hours claimed by plaintiffs are unreasonable, concludes that plaintiffs' fee request is a reasonable one. See Robinson v. City of Edmond, 160 F.3d 1275, 1279, 1285-86 (10th Cir.1998) (plaintiffs requested $186,000 in fees and defendants generally objected to this request as unreasonable but specifically articulated objections to only $43,000 of the request, leaving $142,000 in requested attorney's fees "not separately contested;" district court abused its discretion in reducing fee award in part because the end result was a fee award that was below the "unrebutted," "unchallenged," and "uncontested" amount of the fee request); Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir.1995) (affirming trial court's fee award in part because defendants failed to proffer any evidence that the hours claimed were unreasonable and, instead, simply made unsubstantiated allegations that the fees were duplicative and exorbitant in nature). Defendants' general objection to plaintiffs' request is that the request is simply unreasonable in light of plaintiffs' "limited success"-plaintiffs prevailed only on their "relatively simple" contract claim. In the context of this litigation, however, a verdiet *1280 of $2.5 million is a substantial victory for plaintiffs and there was nothing "simple" about the contract claim. Rather, the case presented complex commercial issues and plaintiffs' counsel successfully developed those issues at trial. Indeed, Mr. Pepper and Horizon's breach of contract claim-the claim on which plaintiffs ultimately succeeded-encompassed a claim that defendants had breached the implied covenant of good faith and fair dealing, a claim that is often difficult for judges and lawyers to comprehend let alone lay persons on a jury. To prove plaintiffs' claim at trial, plaintiffs' counsel could not rely on an express term of the contract and could not point to one specific act that constituted defendants' breach. Instead, counsel was required to convey to the jury that defendants' entire course of conduct (conduct that spanned over 18 months) breached an "implied" duty to act in "good faith." Despite the sheer volume of evidence needed to describe and place in context defendants' course of conduct, coupled with the need to fit that evidence into amorphous concepts like "good faith" and "implied duty," plaintiffs' counsel achieved a multimillion dollar verdict for his clients. For these reasons, the court readily concludes (and defendants cannot seriously dispute) that plaintiffs obtained excellent results at trial. See Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1120 (10th Cir.2001) (proper focus is on the overall relief obtained). No blanket reduction is warranted and plaintiffs' counsel is deserving of a fully compensatory fee. See Hensley v. Eckerhart, 461 U.S. 424, 433-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In a related vein, defendants contend that plaintiffs are only permitted to recover those reasonable fees and expenses incurred in connection with the pursuit of their contract claim. Defendants contend that plaintiffs are improperly attempting to recover fees and expenses associated with the numerous claims on which plaintiffs did not prevail at trial and that the time and labor required to present evidence to the jury that defendants breached the purchase agreement was "only a small part of that actually expended by plaintiffs' counsel." The court rejects this argument, too. As an initial matter, plaintiffs' papers demonstrate that plaintiffs' counsel have already excluded from their request those hours associated with discrete research and other work related to plaintiffs' statutory discrimination claims, including hours spent working with plaintiffs' expert witness concerning plaintiffs' potential damages under Title VII. See Robinson, 160 F.3d at 1281 (prevailing party must make a good faith effort to exclude from request those hours that are excessive, redundant or otherwise unnecessary). In any event, in light of the fact that most, if not all, of the unsuccessful claims were intertwined with the successful breach of contract claim through a common core of fact or related legal theories, any reduction of fees would be inappropriate. See id. at 1283 (reversing district court's reduction of fee award on the grounds that plaintiffs achieved only partial success where all unsuccessful claims were intertwined with the successful claims). The law is clear that when a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the court or jury did not adopt each contention raised. See Hampton, 247 F.3d at 1120 (citing Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir.1995)) (affirming district court's refusal to reduce fee award based on alleged limited success; all of the claims were similar and stemmed from the same set of facts). Indeed, the Supreme Court has cautioned that a court should exclude an unsuccessful claim from a fee award only if that claim is "distinct in *1281 all respects" from the successful claim. See Hensley, 461 U.S. at 440, 103 S.Ct. 1933. Utilizing this standard (a standard that defendants do not even reference in their papers), the court simply cannot conclude that any of plaintiffs' unsuccessful claims are unrelated to the pursuit of the ultimate result achieved. Indeed, any attempt to divide the hours expended in this case on a claim-by-claim basis would be difficult and unjust. Nearly all of the claims pursued by plaintiffs-particularly plaintiffs' fraud and breach of contract claims-centered on the same core of facts. Any investigation or development of the fraud claim would necessarily have encompassed plaintiffs' breach of contract claim (and vice versa) as both claims required careful scrutiny of the parties' pre-contractual negotiations and the parties' conduct throughout the course of the contractual relationship. Thus, it is not surprising to this court that the billing records of plaintiffs' counsel, in large part, do not distinguish between claims. See id. at 435, 103 S.Ct. 1933 ("Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis."). Moreover, the Tenth Circuit has emphasized the importance of allowing litigants the "breathing room" necessary to raise alternative legal grounds that seek the same result and, thus, focusing on the actual result of the trial rather than dividing attorneys' fees by the number of successful claims. See Robinson, 160 F.3d at 1283. For the foregoing reasons, the court rejects defendants' contention that a blanket reduction of fees is warranted and, with the exception of the minor adjustments noted above, grants plaintiffs' motion for fees and costs and expenses. IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs' motion to alter or amend the judgment (doc. # 197) is granted in part and denied in part. Specifically, the motion is granted to the extent that a typographical error in the judgment shall be corrected and is otherwise denied; plaintiffs' motion for attorneys' fees, costs and expenses (doc. # 198) is granted in part and denied in part and the court awards plaintiffs fees, costs and expenses in the amount of $842,-892.85; and defendants' renewed motion for judgment as a matter of law pursuant to Rule 50(b) or, in the alternative, motion for remittitur and/or new trial pursuant to Rule 59 (doc. # 199) is denied. IT IS FURTHER ORDERED BY THE COURT THAT the clerk of the court shall amend the judgment to reflect this court's award of $842,892.85 in attorneys' fees, costs and expenses. The amended judgment should also be corrected to reflect that the jury returned a verdict on November 21, 2002 as opposed to November 12, 2002. IT IS SO ORDERED. NOTES [1] The parties do not dispute that Delaware law governs plaintiffs' claim that defendants breached the terms of the purchase agreement, as that agreement contains an express choice-of-law provision. [2] The undisputed evidence at trial was that "standard cost" was the amount that it actually cost Genmar Kansas to build the boat in terms of labor, material and overhead. In other words, Genmar Kansas was not making any profit on Ranger or Crestliner boats and, in most instances, was actually losing money on these boats because Genmar Kansas was not operating at maximum efficiency. Profits on these boats that were built on the production line in the Genmar Kansas facility were earned by Ranger and Crestliner when they in turn sold the boats to their dealer network. [3] Lowe is another aluminum boat manufacturing company. Mr. Pepper worked for Lowe for nearly ten years; ultimately Lowe was purchased by defendants. [4] In their papers, defendants also assert that section 4 of the employment agreements supports their argument that the O'Tools were not guaranteed a specific term of employment. Defendants, however, have not mentioned section 4 at any time prior to filing their renewed motion and certainly did not highlight this section for the jury. [5] The parties do not dispute that Kansas law governs the O'Tools' breach of contract claims as the O'Tools' employment contracts contained a provision identifying Kansas law as the parties' choice of law. [6] In their papers, defendants assert that 20 percent of Ms. O'Tool's salary is only $8320. That figure, however, is based on Ms. O'Tool's annual salary of $41,600 instead of the total salary that Ms. O'Tool would have earned over the relevant 15-month period. [7] When Mr. O'Tool's annual salary is translated into a monthly salary, and that monthly salary is multiplied by 15 months (measured from the time of Mr. O'Tool's discharge through the time when Mr. O'Tool's employment contract would have expired), his total lost salary is $81,249.90 (65,000/12 = $5,416.66 per month x 15). Twenty-five percent of $81,249.90 is $20,312.47. [8] This argument presupposes that the jury considered such evidence in connection with plaintiffs' breach of contract claim. Defendants, of course, have no way of knowing that the jury did, in fact, consider such evidence in its assessment of the breach of contract claim. [9] While the court in True North referenced § 205(a) of the Restatement (Second), that Restatement does not contain a § 205(a); the court intended to reference comment a of § 205. [10] For this reason, many states, including Kansas, have held that there is simply no implied covenant of good faith and fair dealing in the employment-at-will context. See, e.g., St. Catherine Hosp. of Garden City v. Rodriguez, 25 Kan.App.2d 763, 765, 971 P.2d 754 (1998) (Kansas does not recognize any good faith obligation in the employment-at-will context) (citing cases). [11] It may be that the court in Corporate Property was simply using the fraud language as a short-hand for the concept of bad faith. The point, however, is that the court fails to explain why it is utilizing that language and fails to provide any insight into the significance, if any, of that language, such as whether a party bringing a good faith and fair dealing claim would be held to proving the elements of fraud (e.g., false representation, scienter and reliance) in order to prevail. [12] In their motion to alter or amend, plaintiffs also point out that the judgment entered on November 21, 2002 contains a typographical error in that the judgment states that the verdict was returned by the jury on November 12, 2002. The jury, however, returned its verdict on November 21, 2002. The judgment will be corrected, and plaintiffs' motion will be granted, in this respect. [13] No one, of course, is suggesting that plaintiffs did so; the court is simply posing a hypothetical for illustrative purposes to demonstrate that there might have been factbased defenses available to defendants had the issue been raised by plaintiffs. Thus, because plaintiffs were not necessarily automatically entitled to the higher rate, the court rejects plaintiffs' contention that Federal Rule of Civil Procedure 54(c) requires an award of post-judgment interest at the higher rate irrespective of the contents of the pretrial order. [14] Plaintiffs' fee request covers the time period ending December 31, 2002. To the extent plaintiffs intend to recover fees, costs and expenses incurred in January 2003 in connection with responding to defendants' motion for judgment as a matter of law and filing their initial fee application, plaintiffs must file a motion for a supplemental award of fees, as those figures are not presently before the court. To the extent plaintiffs intend to seek fees in connection with defending an appeal filed by defendants, plaintiffs must direct such a request to the Tenth Circuit. See, e.g., San Juan Prods., Inc. v. San Juan Pools of Kansas, Inc., 849 F.2d 468, 477 (10th Cir.1988). [15] Because plaintiffs' fee request stems from a contractual fee provision, plaintiffs' request is subject to far less scrutiny than a request made pursuant to a fee-shifting statute and the court does not possess the same degree of equitable discretion to deny such fees as it has when applying a statute providing for a discretionary award. See United States ex rel. C.J.C, Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1547-50 (10th Cir.1987) (remanding claim for attorneys' fees made pursuant to contractual fee provision where district court reduced the fee and, in doing so, applied the wrong standard and scrutinized the fee request too closely). In such cases, fees are "routinely awarded" unless the trial court determines that an award consistent with the request would be inequitable or unreasonable. Id. at 1548.

320 F.3d 691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.John SERPICO and Gilbert Cataldo, Defendants-Appellants, Cross-Appellees. No. 02-1702. No. 02-1726. No. 02-1925. United States Court of Appeals, Seventh Circuit. Argued October 31, 2002. Decided February 20, 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner (argued), Office of U.S. Attorney, Crim. Div., Chicago, IL, for U.S. Matthias A. Lydon (argued), Winston & Strawn, Chicago, IL, for John Serpico. Jeffrey Schulman (argued), Wolin & Rosen, Chicago, IL, Donald Hubert, Hubert, Fowler & Quinn, Chicago, IL, for Gilbert Cataldo. Before RIPPLE, MANION, and EVANS, Circuit Judges. TERENCE T. EVANS, Circuit Judge. 1 For 12 years, John Serpico and Maria Busillo held and abused various influential positions with the Central States Joint Board ("CSJB"), a labor organization that provides support to its member unions. Among other responsibilities, Serpico and Busillo controlled the management of the unions' money. The pair, along with longtime friend and business associate Gilbert Cataldo, collaborated on three schemes involving the misappropriation of the unions' funds. Two of those schemes are the focus of this appeal by Serpico and Cataldo (Busillo has not appealed her conviction). 2 In their "loans-for-deposits" scheme, Serpico and Busillo deposited large sums of union money in various banks. In exchange, the two received overly generous terms and conditions on personal loans totaling more than $5 million. In the more complicated hotel loan kickback scheme, several groups entered into the 51 Associates Limited Partnership, which planned to construct a hotel. The partnership was unable to obtain financing for the construction of the building without first securing a commitment for a mortgage loan that would guarantee repayment of the construction loan after the hotel was built. Serpico used union funds to make a mortgage loan to the developers, after which Mid-City Bank agreed to make the construction loan. In exchange for Serpico's help in securing the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West & Company, for "consulting services" that Cataldo never actually performed. Cataldo then kicked back $25,000 to Serpico by paying Serpico's share of a $50,000 investment into an unrelated business project (the Studio Network project) in which the two were partners. 3 Serpico, Busillo, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close of the evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convicted Serpico and Busillo on mail fraud charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme. 4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $333,850, the amount paid to Cataldo, for the hotel loan kickback scheme. For the loans-for-deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would have earned had Serpico purchased CDs at banks offering the highest interest rates instead of those offering him special deals on his personal loans. The court totaled loans from Capitol Bank as well as six others, estimating the loss to be between $30,000 and $70,000. The court thus increased Serpico's base offense level of 6 by 9 levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust (19 total). Serpico and Cataldo were sentenced to 30 and 21 months in prison, respectively. 5 Serpico and Cataldo (collectively "Serpico" as we go forward) appeal, challenging the verdicts and the application of the sentencing guidelines on a number of grounds. In its cross-appeal, the government also contests the application of the sentencing guidelines. 6 First, Serpico argues that his convictions should be overturned because his schemes did not "affect" a financial institution. The 5-year statute of limitations for mail and wire fraud offenses under 18 U.S.C. § 3282 is extended to 10 years "if the offense affects a financial institution," 18 U.S.C. § 3293(2), and Serpico could not have been prosecuted without that extension. Serpico claims that an offense only "affects a financial institution" if the offense has a direct negative impact on the institution. The district court instructed the jury that the schemes affected the banks if they "exposed the financial institution[s] to a new or increased risk of loss. A financial institution need not have actually suffered a loss in order to have been affected by the scheme." 7 Although Serpico agreed to the jury instruction, he now points to United States v. Agne, 214 F.3d 47, 53 (1st Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir.2000), to support his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the bank "experienced no realistic prospect of loss," so it did not have to reach the question of whether the bank must suffer an actual loss. Agne, 214 F.3d at 53. Similarly, Ubakanma simply held that "a wire fraud offense under section 1343 `affected' a financial institution only if the institution itself were victimized by the fraud, as opposed to the scheme's mere utilization of the financial institution in the transfer of funds." Ubakanma, 215 F.3d at 426. Neither side here argues that "mere utilization" is sufficient; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 Several courts, including this one and the Fourth Circuit, which produced Ubakanma, have concluded that an increased risk of loss is sufficient in similar contexts. See, e.g., United States v. Longfellow, 43 F.3d 318, 324 (7th Cir.1994) (quoting United States v. Hord, 6 F.3d 276, 282 (5th Cir.1993) ("risk of loss, not just loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d 890, 907 (4th Cir.2000); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990), p. 217 (The mail interstate carrier wire fraud statute "can be violated whether or not there is any [loss or damage to the victim of the crime] [or] [gain to the defendant]."). 9 More importantly, the whole purpose of § 3293(2) is to protect financial institutions, a goal it tries to accomplish in large part by deterring would-be criminals from including financial institutions in their schemes. Just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection for financial institutions is much more effective if there's a cost to putting those institutions at risk, whether or not there is actual harm. Accordingly, we find no error in the district court's jury instruction. 10 Serpico next argues that, even if the district court correctly interpreted § 3292(2), his schemes did not "affect" a financial institution because they did not create increased risks for the banks involved in the schemes. Essentially, Serpico claims that the banks in both schemes were willing participants who would not have chosen to participate unless it was in their best interests (that is, factoring in the risks, they expected to make money on the deals). But the mere fact that participation in a scheme is in a bank's best interest does not necessarily mean that it is not exposed to additional risks and is not "affected," as shown clearly by the various banks' dealings with Serpico. 11 For example, the hotel loan kickback scheme affected Mid-City even though Mid-City believed it would make money on the deal. Mid-City made a $6.5 million construction loan, one it obviously would not have made if it believed the risks associated with the loan outweighed the expected payoff. But the loan, as all loans do, did carry some risk. Since Mid-City did not want to be a long-term real estate lender, it agreed to the loan only after Serpico misappropriated Midwest Pension Plan ("MPP") funds in making the MPP's $6.5 million end-mortgage loan (which meant that, if all went well, Mid-City would quickly be repaid). Therefore, Mid-City never would have been exposed to the risks of its loan absent Serpico's scheme because it never would have made the loan. 12 Serpico responds that MPP's $6.5 million essentially guaranteed the loan, so there was no risk to Mid-City. But, under the terms of the loan, if the hotel was not completed on time and under budget, the money MPP put up would be returned to it. That would leave Mid-City with a risky long-term loan it didn't want. On top of that, the kickback scheme increased the chances that the project would run into trouble. Certainly a construction project is more likely to be delayed when those running it and putting up the money for it are doing so illegally, making them subject to the disruption of investigation and arrest at any time. 13 The loans-for-deposits scheme shows even more dramatically that a bank can take on higher risk while acting in what it believes to be its own best interests. Banks, including Capitol Bank (which no longer exists as a result of punishments it received after pleading guilty to conspiring with Serpico and Busillo to defraud the CSJB entities), decided the benefits from the deposits made it worth the risk of loss resulting from the generous terms and conditions of the loans it gave Serpico. But the fact remained that the bank made risky loans at low interest rates that it never would have made absent the scheme. 14 In fact, at trial, Serpico's counsel told the court that "if the defendants were convicted of a loans-for-deposits scheme, that conduct in and of itself would mean that they affected a financial institution" and "I don't know I could conceivably argue that the particular scheme did not affect a financial institution." He now tries two arguments. In addition to arguing that the bank was acting in its own best interest, Serpico claims that a financial institution is not "affected" if it is an active perpetrator in the offense. We find that argument unpersuasive. It is not supported by Ubakanma, as Serpico claims, and we find it hard to understand how a bank that was put out of business as a direct result of the scheme was not "affected," even if it played an active part in the scheme. 15 Next, Serpico argues that he was prejudiced by the admission of evidence relating to various charges on which the district court acquitted him before the case went to the jury. In United States v. Holzer, 840 F.2d 1343, 1349 (7th Cir.1988), we addressed almost this very issue: 16 When, as is often the case (it was here), the jury acquits a defendant of some counts of a multi-count indictment, the defendant is not entitled to a new trial on the counts of which he was convicted, on the theory that the conviction was tainted by evidence, which the jury heard, relating to the counts on which it acquitted.... No rule of evidence is violated by the admission of evidence concerning a crime of which the defendant is acquitted, provided the crime was properly joined to the crime for which he was convicted and the crimes did not have to be severed for purposes of trial. It makes no difference, moreover, whether the jury acquits on some counts or the trial or reviewing court sets aside the conviction. 17 Serpico notes that his case is different in that the admitted evidence here concerned claims that the court dismissed before they reached the jury. Still, the Holzer reasoning applies. No rule of evidence was violated, and the district court did not abuse its discretion in failing to award a new trial to Serpico. 18 We also reject Serpico's claims that his conviction should be overturned or he is entitled to a new trial because there was not sufficient evidence to convict him and that the record does not permit a confident conclusion that Serpico is guilty beyond a reasonable doubt. Given the evidence, the jury reasonably concluded that the $333,850 payment to Cataldo was made in exchange for the loan from Serpico and that some of that $333,850 trickled down to Serpico. 19 Similarly, we reject Cataldo's claim that the district court abused its discretion in denying his severance motion. To succeed, Cataldo must show that he was "unable to obtain a fair trial, not merely that a separate trial would have offered [him] a better chance of acquittal." United States v. Bruce, 109 F.3d 323, 327 (7th Cir.1997). Cataldo claims he should have been tried separately because there was a gross disparity in the evidence presented against him and his co-defendants. But a "simple `disparity in the evidence' will not suffice to support a motion for severance," United States v. Caliendo, 910 F.2d 429, 438 (7th Cir.1990). Moreover, the trial court instructed the jury to consider the evidence against each defendant individually, and juries are presumed to be capable of following such limiting instructions. United States v. Williams, 858 F.2d 1218, 1225 (7th Cir.1988). Because there is no reason the jury here could not follow that instruction, the district court did not abuse its discretion in denying Cataldo's motion. 20 Finally, both Serpico and the government challenge the district court's application of the sentencing guidelines. Serpico challenges the calculation of the loss from both schemes. With regards to the hotel loan kickback scheme, Serpico claims that the union entities suffered no loss because the loan was repaid (the district court found the loss attributable to both defendants to be $333,850, the amount paid to Cataldo). But Serpico's theory fails to consider the fact that, although none of the $6.5 million was lost, more money could have been earned. Obviously, the 51 Associates partnership was willing to pay (and did pay) an extra $333,850 in order to secure the loan. That money could have gone to the union entities instead of Cataldo if Serpico had been acting in the entities' best interests instead of his own. See generally United States v. Briscoe, 65 F.3d 576, 589 (7th Cir.1995) (kickbacks "represent money that should have gone to the Union" and, as such, were properly included in the loss calculation). 21 We also reject Serpico's alternative argument that he (individually, as opposed to with Cataldo) should only be accountable for the $25,000 that Cataldo kicked back to him. Serpico and Cataldo are each accountable for "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." USSG § 1B1.3(a)(1)(B). Since Serpico knew money was going to be paid back to Cataldo for work he never did, the district court correctly held him responsible for the full $333,850 loss. 22 Serpico also argues that, in computing the losses from the loans-for-deposits scheme, the district court should not have included losses arising from CD purchases from banks other than Capitol because the court did not have sufficient evidence to support a conclusion that the scheme extended to those banks. But the 12-year pattern of union deposits into banks from which Serpico simultaneously sought personal loans, combined with documents from Gladstone-Norwood Bank and Exchange Bank suggesting that loans were approved in order to secure union deposits, presented sufficient evidence. 23 In its cross-appeal, the government first claims the district court applied the wrong offense guideline. The district court calculated the defendants' sentences under § 2F1.1 (the fraud guideline), but the government argues it should have applied § 2E5.1 (the benefit plan bribery guideline) during sentencing. We review the district court's selection of the applicable guideline section de novo. United States v. Dion, 32 F.3d 1147, 1148 (7th Cir.1994). 24 Clearly, the government wants it both ways; having chosen to prosecute Serpico under the mail fraud statute, it wants him sentenced based on bribery. As unjust as this practice might seem in a case like this (Serpico essentially would be sentenced for a crime, bribery, he could not have been charged with because the statute of limitations had run), the guidelines not only allow but even encourage this scheme, which someone could argue is a little like an old bait-and-switch. Under § 1B1.2(a), however, the district court is instructed to "[d]etermine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)." USSG § 1B1.2(a) (1990). The commentary to that section elaborates: "When a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which guideline section applies based upon the nature of the offense conduct charged in the count of which the defendant was convicted." § 1B1.2, comment. (n.1). In other words, as in United States v. Hauptman, 111 F.3d 48 (7th Cir. 1997), the sentencing judge should endeavor to locate the "essence" of the defendant's conduct, not merely the name attached to the statute violated. 25 Therefore, § 1B1.2(a) encourages the district court to find an appropriate guideline section to fit the conduct (not just the charge). Section 2F1.1 of the 1990 guidelines, under which Serpico was convicted and sentenced, notes: 26 [T]he mail or wire fraud statutes, or other relatively broad statutes, are used primarily as jurisdictional bases for the prosecution of other offenses.... Where the indictment or information setting forth the count of conviction (or a stipulation as described in § 1B1.2(a)) establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1. 27 § 2F1.1, comment. (n.13). 28 The indictment charged that Serpico "sought and received a substantial personal benefit and kickback in exchange for influencing" the MPP to provide the $6.5 million loan, which is closer to bribery than mail fraud (in § 2E5.1, a "bribe" is "the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient." § 2E5.1, comment. (n.1)). Similarly, the loans-for-deposits scheme was basic bribery, with Serpico promising union deposits to the banks in exchange for favorable personal loans. Therefore, the district court should have sentenced Serpico and Cataldo under § 2E5.1. 29 Finally, the government argues that the district court erred by failing to consider the approximately $475,000 that Serpico derived from the loans-for-deposits scheme through his investment in Studio Network. The government argues that it showed that Serpico invested $25,000 in the partnership in 1983, then sold his share 5 years later for $500,000. The government claims that the district court should have used Serpico's gain as an alternative measure of loss under § 2F1.1 (which also would be used under § 2E5.1). See § 2F1.1, comment. (n.8) ("The offender's gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss."). 30 We have interpreted § 2F1.1 of the 1990 guidelines to require that the amount of loss be based on "the net detriment to the victim." See United States v. Mount, 966 F.2d 262, 265. Therefore, the defendant's gain should only be used when the loss to the victim cannot be reasonably estimated (as the 2001 guidelines make clear: "The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined."), § 2B1.1, comment. (n.2(B)). The district court reasonably estimated the loss from the loans-for-deposits to be equal to the additional amount the union entities could have earned at banks offering more favorable rates on CDs. To use the $475,000 that Serpico earned suggests that the unions would have received an astounding 1,900 percent return on their investments, a wholly unsubstantiated claim. 31 To summarize: We affirm the convictions and the loss calculations but remand for sentencing under § 2E5.1. 32 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

313 F.Supp. 337 (1970) Margaruite J. BRANCH, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant. Civ. A. No. T-4561. United States District Court, D. Kansas. April 22, 1970. *338 *339 *340 Reginald LaBunker, Topeka, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendant. MEMORANDUM OF DECISION TEMPLAR, District Judge. This proceeding was instituted by plaintiff against the Secretary of Health, Education and Welfare as is authorized by and pursuant to Section 205(g) of the Social Security Act, 42 U. S.C. § 405(g), for the purpose of obtaining a judicial review of a final decision of the Secretary denying her application for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. § 416(i) and 423. An affidavit being filed, this Court, on April 25. 1969, entered an order granting plaintiff leave to sue forma pauperis without securing costs. Both parties in this action have submitted motions for summary judgment together with briefs to support their respective positions. The plaintiff filed her application to establish a period of disability on February 28, 1968, as provided in Section 416(i), and for disability insurance benefits, as provided under Section 423 of the Act. Claimant alleged, in substance, that she became unable to work because of a badly sprained back on September 23, 1967. The application was denied initially and on reconsideration. On December 11, 1968, a hearing was conducted before the hearing examiner of the department, at which the plaintiff was present without an attorney. The hearing examiner filed his decision denying plaintiff's application on December 30, 1968. The appeals Council upheld the decision of the hearing examiner upon the plaintiff's request for review. The hearing examiner's decision became the final decision of the Secretary of Health, Education and Welfare. The claimant will meet the earnings requirement until June 30, 1972. The hearing examiner determined that, in view of the claimant's limited education and age, training for sedentary work would not be profitable for her. In his determination that the claimant is not entitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings: "FINDINGS OF FACT "1. The claimant is approximately 59 years of age and she has an eighth grade education. "2. The claimant has worked as a laundry worker, waitress, maid, and nurse's aide. "3. In September 1967 the claimant began to suffer from back pain and she was treated for the condition at St. Francis Hospital, Topeka, Kansas. "4. Orthopedic examination of the claimant's back in May 1968 resulted in a diagnosis of mild musculoligamentous strain residuals with underlying mild lumbar degenerative joint disease. "5. The claimant has not attempted to secure work since leaving her employment with the A. T. & S. F. Hospital, Topeka, Kansas, in 1967. "6. While the claimant's back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse's aide for a period of twelve months or more and she is currently able to engage in this type of activity. "CONCLUSION OF LAW "The claimant has not been prevented from engaging in substantial, gainful activity for a period of twelve months *341 or more at any time prior to the date of this decision and she is presently able to work as a waitress, laundry helper, or nurse's aide." (Record P. 9, 10). The primary issue before this Court is whether or not there is substantial evidence to support the Secretary's decision that plaintiff was not entitled to a period of disability or to disability insurance benefits and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. The definition of disability set forth in § 423(d) (1) provides: "(d) (1) The term `disability' means— (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * *." "(2) For purposes of paragraph (1) (A)— (A) an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. * * *" * * * * * * "(3) For purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." * * * * * * "(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require." The word "any" as used in the phrase "any substantial gainful activity" must be read in light of what is reasonable and not what is merely conceivable. See Huneycutt v. Gardner, 282 F.Supp. 405 (M.D.N.C.1968). This Court recognizes that judicial review of final decisions of the Secretary is a defined and limited one. See Folsom v. O'Neal, 250 F.2d 946 (10th Cir. 1957); Gordon v. Celebrezze, 253 F.Supp. 779 (D.Kan.1965); Jones v. Celebrezze, 246 F.Supp. 701 (D.Kan. 1965); and Shonk v. Gardner (Templar, J., No. T-4354, unreported). The Court pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. 1966), that findings of fact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, "if there is substantial evidence to support them. Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. See Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). This Court is aware of the principle that the Act should be construed liberally in favor of a party seeking its benefits. See Davidson v. Gardner, *342 370 F.2d 803 (6th Cir. 1966); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965); and Ketcherside v. Celebrezze, 209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to try a case de novo and that it must not abdicate its traditional function to scrutinize the entire record in order to determine whether the conclusions made by the Secretary are rational and if the court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, then the court is bound to modify or reverse the Secretary's findings with or without remanding the case for rehearing. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F.Supp. 264 (D. Kan.1969). The plaintiff's age, education, training, experience, and physical and mental capabilities are of considerable importance in determining her rights to disability benefits under the Act. See Ellerman v. Flemming, 188 F.Supp. 521 (D.Mo.1960) and Aniol v. Flemming, 188 F.Supp. 233 (D.Kan.1960). The record discloses that claimant resides at 627 W. 17th Topeka, Kansas, has a seventh grade education, and was approximately 59 years of age at the time of the hearing. There is some discrepancy as to the level of education attained by the claimant. Although the hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished the seventh grade. In her request for reconsideration (Record P. 67) the claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51). The claimant testified that she is married, but separated, and has eight children living. (Record P. 21). The claimant's past work record may be summarized as follows: waitress for a number of years; nurse's aide; worked for a laundry as an ironer; and worked as a maid at the Santa Fe Hospital, which was her most recent employment. Additional testimony offered by the claimant may be summarized as follows: The claimant does not have a driver's license or a car, but she is able to use the public buses. She testified that she is 5' 3" and weighs 139 lbs., although she used to weigh 165 lbs. The claimant stated that she weighed 165 when she got hurt, then in response to a question of the hearing examiner she stated that she weighed up in the 40's in September 1967. She worked for Santa Fe Hospital for 3 years as a maid, and the work involved scrubbing, dusting, washing windows and waxing. The claimant testified that while she was scrubbing the floor, the bed broke and she slipped. She stated that she went to St. Francis Hospital and was there for 12 days. She further stated that she had doctored with Dr. Rook and took treatments at the Santa Fe Hospital before she had to quit at Santa Fe. She said that she felt better for a while after being released. She testified that she received a workmen's compensation settlement. The claimant said that she did not look for any work after the injury occurred because she is not able to work. In relation to her back she stated that whenever she does a lot of stooping, scrubbing or anything like that, or standing on her feet any length or period of time it bothers her. She has not had any surgery on her back but the doctor said she might have to, although he did not advise it now. She testified that she stays home and watches television, and that she is able to make her meals and take care of her personal needs. She cannot do any mopping, ironing, scrubbing, washing, lifting or anything like that because it bothers her. She does not wear a back brace, and the doctor has not suggested that she should. She takes the medicine the doctor gives her and heat treatments. The heat treatments consist of heating towels *343 in hot water and putting them on a heat pad. In regard to house cleaning the claimant dusts and things like that. She visits her daughters and she has company once in a while. The claimant's support consists of $83 a month from welfare. In reference to a question about attempting to find work as a waitress she stated that she did not think she could stand up on her feet that long. She testified that steady walking bothers her, and she does not think she could stand up as a waitress carrying heavy trays and plates. She indicated that she likes to work and wishes she could. She stated that her back feels worse when she gets up and around during the day and when she turns over at night it bothers her, but the heat treatments help a lot. The doctor has not suggested that she should exercise for the back condition, but said she could not do any heavy work. She indicated that her back feels worse when she goes to bed than when she gets up. Two of the claimant's daughters testified that they clean house for her. They do the scrubbing, ironing, washing and waxing. One of the daughters testified that in her opinion her mother's back condition would keep her from working as a maid. In the claimant's hospital admission report dated October 1, 1967, Dr. Kirk Miller, M.D., claimant's personal physician, stated the admission diagnosis as "Low back syndrome" and "Constipation". (Record P. 45) In this report Dr. Miller noted the claimant's chief complaint was low back pain and he gave the following summary of claimant's illness: "About two weeks ago, while mopping at Santa Fe Hospital, patient noted gradual onset of low back pain. It became so severe that it was finally necessary for her to quit work. I have been seeing her in my office during the past week at which time she was put on muscle relaxants and diathermy, but all to no avail. She still continued to have her pain. It was decided to put her in the hospital where we could obtain some studies, possibly a myelogram; in any event, to treat her more intensively with heat and bed-rest and traction." (Record P. 45) The doctor made the following physical examination findings in this same report: "Well developed, well nourished, 57-year old female appearing younger than stated age, not appearing acutely or chronically ill. HEENT * * * Pupils round, regular, equal, react well to light and on accomodation. Ear canals and drums clear. Pharynx clear. Neck supple; no thyroid enlargement. Chest clear to percussion and auscultation. Heart reveals regular sinus rhythm; no murmurs or enlargement. Abdomen soft; no masses, spasms, tenderness; LKSB not felt. Extremities relatively unremarkable. There is considerable tenderness to deep palpation over the lower lumbar spine and just lateral to the lower lumbar spine around L-4, L-5 bilaterally." (Record P. 45) In the hospital discharge report dated October 12, 1967, Dr. Miller noted: "Patient was admitted with a 2-weeks history of low back pain; she has had one previous episode. Admitted for conservative treatment of back condition and possible myelogram if she did not clear. Px revealed considerable tenderness to palpation over the lower lumbar spine and just lateral to the lower lumbar spine around L-4, L-5, bilaterally. WBC revealed slight shift to the left, which was normal with 70 polys, 22 lymphs. IVP negative. Quantitative urine for culture was negative. Chest film normal. Spine films revealed degeneration and/or herniation of the L-4, L-5 disc. "Patient was placed in bed and given a Kapok pad warm heat treatment to her lower back. She was given Ultrasound daily to lower back by the physiotherapy department, placed on Darvon-65 *344 p. r. n. pain. Over a period of a week back pain gradually disappeared. During this period of time she also noted frequent urination and nocturia 3-4m. Urinary studies were carried out which were negative. She recovered completely from back pain after 12 days in the hospital and she is being sent home today taking no medication except Darvon p. r. n. She will continue her Parafon Forte, if necessary. It is decided that she can return to work if her back pain disappears. Her work seems to aggravate her condition and it may be necessary for her to find some other profession because of this difficulty." (Record P. 47) Dr. Miller indicated his final diagnosis in the hospital discharge report as: "Degeneration and/or herniation of L-4, L-5 disc Frequent urination, cause undetermined" (Record P. 57) In another report dated March 20, 1968, Dr. Miller stated his diagnosis as "Low back syndrome with probable herniation of L-4 to L-5 disk." (Record P. 51) The following history of the patient was given by Dr. Miller in this report: "This patient originally injured her back while working for the Santa Fe Hospital in the Winter of 1966-1967. At that time her anterior thigh muscles hurt while mopping, and she was off of work for 10 days. Again on September 11, 1967 while scrubbing a floor, her back began to hurt and has been hurting ever since. She was put on Parafon Forte, given diathermy treatment, a bed-board was suggested for her, and she had to use moist heat at home, and treatment continued from September 25th until October 1st, 1967 without much relief. She was hospitalized at St. Francis Hospital from October 1 to October 12, 1967, and her back was considerably improved. When seen on October 23, 1967, it was felt she could return to work and do light work. At that time she was given Darvon Compound and feeling much better. She was seen again in November and December of 1967, and January and February of 1968, at monthly intervals, at such time she stated that she had some soreness occasionally. Straight legraising was O.K. bilaterally except for slight soreness on the left when elevated to 90 degrees. It was felt that she would be able to continue to work in a sedentary type job but she should never again do heavy lifting or mopping such as she had done previously." (Record P. 48) Dr. Miller further noted in this same report that "Because of this patient's limited educational background (8th grade) it will probably be difficult for her to obtain sedentary type of occupation which will be required for her with her difficulty." (Record P. 51) In a report dated May 13, 1968, Dr. W. L. Beller, a radiologist, to whom the claimant had been referred by Dr. Donald D. Hobbs, stated as his conclusion the following: "Moderate degenerative disc disease at the L4 level. Mild rotoscoliosis of the dorsolumbar spine. No other significant abnormality is apparent." (Record P. 58) Dr. Donald D. Hobbs, specialist in orthopedic surgery, submitted a report dated May 27, 1968, in which he noted that the claimant complained of persistent low back pain with aching discomfort aggravated by bending and stooping. In this report Dr. Hobbs made the following findings upon examination of the claimant: "Examination today reveals an alert, co-operative woman in no apparent distress. She moves about the examining room with normal gait. Does heel and toe walking without evidence of muscle weakness. There is no significant evidence of guarding on performance of trunk motions. Range of motion of the lumbar spine in flexion, extension and lateral flexion is essentially normal. The patient complains of increased discomfort on left lateral *345 flexion and on hyperextension. There is mild tenderness over the paravetebral musculature on the left with deep palpation. No significant gluteal sciatic notch tenderness. The patient complains of pain on any attempted mobilization of the left lower extremity, hip-knee flexion, straight leg raising or simple rotary motions of the hip joint. Certainly there is no appreciable limitation of straight leg raising and Laseque's test is negative. Domarque, Trendelenburg, Ober and Ely tests are all negative. The neurologic check including motor, sensory and reflex activity over the segmental distribution of the lumbosacral plexus is entirely physiologic. Babinski's sign is bilaterally absent. The popliteal stretch test is entirely negative." (Record P. 61) Dr. Hobbs stated his impression as "Mild musculo-ligamentous strain residuals with underlying mild lumbar degenerative joint disease" and he concluded his report by saying "It is my impression that this patient is a suitable candidate for moderate work activity perhaps to exclude excessive bending, stooping and heavy lifting." Dr. Miller submitted a supplemental report dated August 16, 1968, in which his diagnosis was: "1. Low back syndrome, probable herniation of L-4 to L-5 disc. 2. Chronic rhinitis." (Record P. 72) Dr. Miller further stated in this report: "I saw the patient on March 25, 1968, at which time she had subsequently had a mild urinary tract infection prior to this time which was cleared up. She was having difficulty with leg cramps. A calcium and phosperous determination were obtained and found to be within normal limits. The patient stated that her back was well at that time. I saw the patient again on April 19, 1968 at which time her back was bothering her off and on but not as sore as usual. She had an acute bronchitis for which she was treated with expectorants, decongestants and given a course of inhalation therapy. She continued this until April 27, 1968, at which time was quite recovered from the infection. I did not see the patient again until August 10, 1968, at which time she stated that she was still having some back trouble. She reported that she had stooped over one time last week and her back hurt her for only one day. She also stated that it hurt her to do any scrubbing or any physical work. She also had a chronic rhinitis. For the rhinitis I gave her some decongestants and sprays. She stated that she was taking Darvon Compound 65 PRN for her back difficulty." (Record P. 69) The hearing examiner noted that the claimant "seemed somewhat younger than her stated age of 59, and about her stated height and weight of 5 feet 3 inches and 139 pounds, respectively." (Record P. 8) He also stated that the claimant "exhibited no significant signs or symptoms of any mental or physical impairments during the hearing." (Record P. 8) In the disability interview report the interviewer indicated that claimant displayed no difficulty with walking, speaking, sight, hearing, use of hands and arms, breathing, sitting, reading, writing, responding, language, or comprehending. (Record P. 55) The finding of disability in a social security disability case involves a two-step finding. First, there must be a finding that the claimant has a medically determinable physical or mental impairment. Second, assuming such impairment is found to be present, there must be a finding of whether the impairment, in fact, causes an inability to engage in any substantial gainful activity. See Knelly v. Celebrezze, 249 F. Supp. 521 (M.D.Pa.1965), and Burrell v. Finch, 308 F.Supp. 264 (D.Kan.1969). The first finding may require the application of objective and subjective evidence and the second is almost an entirely *346 subjective determination. See Mauldin v. Celebrezze, 260 F.Supp. 287 (D.S. C.1966). Certain elements of proof should be considered in making a finding of claimant's ability or inability to engage in any substantial gainful employment, and they are: objective medical facts and clinical findings; diagnoses and expert medical opinions of treating and examining physicians; subjective evidence of pain and disability testified to by claimant and other lay witnesses; and the educational background, work history and present age of claimant. See Morgan v. Gardner, D.C., 254 F. Supp. 977, and Huneycutt v. Gardner, supra. As the defendant stated in his brief there is no question whether plaintiff has a back impairment and back pain because all the medical evidence indicates that she does. The defendant also correctly stated that the key question is whether that impairment and the attending pain are so severe that plaintiff is unable to engage in substantial gainful activity. (Defendant's Brief P. 5) The first portion of the two-step test has been met in that the plaintiff has a medically determinable impairment. The second part of the test as to whether that impairment and accompanying pain are so severe that the claimant is unable to engage in any substantial gainful activity is mainly a subjective determination. This Court is well aware of the fact that pain can be so severe as to be disabling in itself, with or without objective symptoms. See Bailey v. Cohen, (Templar, J., No. T-4266, unreported). The test is not whether the impairment, subjective or objective, would be disabling to a theoretical person but instead whether the subjective complaint independently or together with other impairments is disabling to this particular claimant. See Shonk v. Gardner, (Templar, J., No. T-4354, unreported); Burrell v. Cohen, supra; and Franklin v. Secretary of Health, Education and Welfare, 393 F.2d 640 (2d Cir. 1968). Subjective symptoms should be evaluated with due consideration for credibility, motivation, and medical evidence of impairment. See Dvorak v. Celebrezze, supra. The burden of proving disability under the Social Security Act is with the claimant, See McMillin v. Gardner, 384 F.2d 596 (10th Cir. 1967), and this burden need not be carried beyond a reasonable doubt. See Rose v. Finch, 303 F.Supp. 35 (W.D.Va.1969). In the present case the plaintiff testified before the hearing examiner that she could perform certain household chores and that she could take care of her personal needs. A claimant need not be completely helpless, bedfast or at death's door in order to sustain her claim for disability benefits. See Perkins v. Ribicoff, 201 F.Supp. 332 (E.D.Ark.1961). The ability to do light housework does not constitute a true test of ability to engage in substantial gainful activity. See Murphy v. Gardner, 379 F.2d 1 (8th Cir. 1967); Jarvis v. Ribicoff, 312 F.2d 707 (6th Cir. 1963); and Mims v. Celebrezze, 217 F. Supp. 581 (D.Colo.1963). The plaintiff in this case does have an impairment, a back condition, and there is testimony and evidence that she suffers some pain. The hearing examiner determined that the plaintiff could work as a waitress, laundry helper, or nurse's aide, occupations in which she had formerly engaged in. The Secretary does not have the duty of finding a specific employer for a specific job. See Gardner v. Brian, 369 F.2d 443 (10th Cir. 1966). In Statzer v. Cohen, 297 F.Supp. 874, 877 (W.D.Va.1969) the Court stated: "The question here is not whether the claimant would be hired by an employer if he applied for work, but rather, whether he is physically and mentally capable of performing work which exists in significant numbers in the national economy." Two of the examining physicians found, in effect, that the plaintiff could return to some type of work, either sedentary *347 or moderate, although not to her former employment. Dr. Miller noted in one of his reports that "Because of this patient's limited educational background (8th grade) it will probably be difficult for her to obtain sedentary type of occupation which will be required for her with her difficulty." (Record P. 51) This last notation is only an opinion of Dr. Miller, and this determination is for the Secretary to make after a review of all the proceedings in the case. The type of substantial gainful activity that a disability claimant can be found able to engage in must be both substantial and gainful, realistically judged by his education, training and experience. See Jones v. Gardner, 282 F.Supp. 56 (W.D. Ark.1966), and Nichols v. Gardner, 361 F.2d 963 (8th Cir. 1966). The fact that a claimant for disability benefits could not work without pain or discomfort does not satisfy the test for disability under the act. See Coomes v. Ribicoff, 209 F.Supp. 670 (D.Kan.1962). It must be remembered that the Social Security Act is not to be interpreted as unemployment compensation insurance. See Celebrezze v. Sutton, 338 F.2d 417 (8th Cir. 1964), and Richard v. Celebrezze, 247 F.Supp. 183 (D.Minn.1965). The plaintiff's attorney stated in his brief: "The problem in plaintiff's case is not whether there is waitress, laundry helper, or nurses aide work available, and whether she would be hired if she applied for those jobs that the hearing examiner determined that plaintiff could do, but rather whether under the medical evidence and plaintiff's own testimony she could perform those occupations on a `sustained basis' to the extent that she could have been `substantially gainfully employed' during the past two years." (Brief P. 8) The finding of the hearing examiner that the claimant is able to work as a waitress, laundry helper or nurse's aide is not entirely supported by the objective and subjective factors considered in this case. Employment as a waitress could not be considered in any sense of the imagination as "sedentary" or "moderate" work activity. The plaintiff testified that she worked as an ironer for the American Linen Company for about eight months, but she left this employment when the company closed down. It is to be noted in this case that the plaintiff has made no effort to seek substantial gainful employment of any type. There is evidence that the plaintiff has a back impairment with accompanying pain; there is evidence that the plaintiff should not return to her former work as a maid at the Santa Fe Hospital; and there is evidence that the plaintiff is able to perform some type of work. The only evidence contrary to the plaintiff's ability to work is the plaintiff's belief that she cannot work. In the case of Carden v. Gardner, 352 F.2d 51, 52 (6th Cir. 1965) the Court stated: "* * * it is also the rule that where the Secretary has found from the evidence that the claimant is able to engage in a former trade or occupation, such a determination `precludes the necessity of an administrative showing of gainful work which the appellant was capable of doing and the availability of any such work.'" After considering the objective and subjective factors in this case the Court concludes that plaintiff is able to work as a nurse's aide and may be able to work as a laundry helper, occupations in which she was once engaged. There is evidence and testimony in this case that the plaintiff received a small, lump sum workmen's compensation settlement. A determination of disability by a state or some other agency is not binding on the Secretary in a social security disability benefits case. See Neel v. Ribicoff, 204 F. Supp. 914 (D.Or.1962); Dupkunis v. Celebrezze, 323 F.2d 380 (3rd Cir. 1963); Sampson v. Flemming, 189 F.Supp. 725 (D.Kan.1960); and Stancavage v. Celebrezze, 209 F.Supp. 781, reversed on other grounds 323 F.2d 373 (3rd Cir. 1963). *348 The plaintiff's attorney makes reference in his brief to the fact that the claimant was without representation of counsel during the proceedings. In Hullom v. Burrows, 266 F.2d 547, 548 (6th Cir. 1959), cert. den. 361 U.S. 919, 80 S.Ct. 262, 4 L.Ed.2d 187, it was said: "The Sixth Amendment to the Constitution of the United States, which provides that in criminal prosecutions the accused shall have the assistance of counsel for his defense, does not apply to civil cases." In his decision the hearing examiner stated that "* * * claimant did not have a representative, but was fully advised by the Hearing Examiner of her right to be represented, which right was waived by the claimant." (Record P. 5) There is no evidence in the record that the hearing examiner made any inquiry regarding claimant's representation at the hearing. Apparently the claimant did receive a notice of hearing which included information concerning representation, which read in part, "While it is not required, you may be represented at the hearing by an attorney or other qualified person of your choice, if you desire assistance in presenting your case." (Record P. 14) It then discussed the payment of a fee to the attorney or other representative. A claimant's lack of counsel in a social security disability benefits case does not require reversal of a decision denying benefits if the claimant had a fair opportunity to be heard, full opportunity to present evidence, and was not prejudiced by the absence of counsel. See Meola v. Ribicoff, 207 F.Supp. 658 (S.D.N.Y.1962). It is worthy of note in this case that the plaintiff was represented by an attorney in her workmen's compensation claim, which occurred prior to the proceedings in this case, and two letters from the plaintiff's attorney relating to the workmen's compensation claim were submitted at the hearing. The plaintiff's attorney in her workmen's compensation claim is the same attorney now representing the plaintiff on this review. The plaintiff was given a full and fair hearing before the hearing examiner even though she was not represented by counsel. Plaintiff's attorney stated in his brief at page 3 that plaintiff weighed 165 pounds when hurt and she weighed 139 pounds at the time of the hearing. This statement is not supported by the evidence and testimony in the case. The plaintiff testified that she weighed 165 pounds until she was hurt, but in response to a question of the hearing examiner as to whether she weighed 165 pounds in September 1967 she stated that she weighed in the 40's then. (Record P. 21, 22) In the hospital admission report, Dr. Miller noted in his systemic review that claimant had lost 10 pounds in the last year. (Record P. 45) There is no evidence or testimony in this case that the plaintiff suffered a substantial loss of weight because of her injury or that any weight loss contributed adversely to her condition. Plaintiff's counsel cited two Kansas workmen's compensation cases, Hanna v. Edward Gray Corp., 197 Kan. 793, 421 P.2d 205, and Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535, in support of the proposition that the testimony of the plaintiff as to the duration of disability is to be considered as well as medical testimony. Although these two state cases involved workmen's compensation, the proposition is one which would be considered by the Secretary in reaching his decision in a social security disability benefits case. It was not overlooked in the present case. The Secretary's determination is final if supported by substantial evidence. Any conflicts in the evidence or in reasonable inferences to be drawn therefrom is for the Secretary and not for the Court to resolve. Even if there is only a slight preponderance of evidence on one side or the other the Secretary's findings must be affirmed. See Ferrell v. Gardner, 260 F.Supp. 996 (S. D.W.Va.1966). This Court has carefully examined the record and briefs submitted in this case and concludes that the *349 findings of the Secretary are supported by substantial evidence except for the finding that the plaintiff could work as a waitress. This Court is convinced that the record fails to disclose that the plaintiff's impairment is of sufficient severity as to be disabling within the meaning of the Social Security Act. For the above reasons, the Court must conclude that the decision of the Secretary be affirmed, the motion of the defendant for summary judgment is granted, and the complaint be dismissed. It is so ordered.

638 So.2d 176 (1994) Vickie BROADWAY and Husband Michael E. Broadway, Appellants, v. BAY HOSPITAL, INC., d/b/a HCA Gulf Coast Hospital, Appellee. No. 92-2337. District Court of Appeal of Florida, First District. June 14, 1994. Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants. Ann J. Tipton of Baker, Duke & Tipton, P.A., Pensacola, for appellee. *177 PER CURIAM. This cause is before us on appeal from a final order dismissing appellants' second amended complaint with prejudice. Appellants contend (1) that the trial court erred in finding that they were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, for medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint; and (3) that section 766.203(2), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice of the claim and a corroborating expert opinion, is unconstitutional. We reverse as to the first issue and, consequently, do not reach the second and third issues. The second amended complaint alleged that plaintiff/appellant Vickie Broadway was a patient at appellee's hospital in July 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee's breach of its duty to use reasonable care in maintaining its premises and breach of its duty to warn Ms. Broadway of latent hazards. Appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had failed to comply with the presuit screening requirements of chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudice under section 766.206(2), Florida Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" is defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes. The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 (Fla. 1993), citing NME Properties, Inc. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991). Not every wrongful act by a health care provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993). From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. We hold that the trial court erred in dismissing the complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984), requires affirmance of the order below. In Neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. The complaint on its face alleged breach of a professional standard of care. The order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith. BOOTH, JOANOS and MINER, JJ., concur.

640 S.W.2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, County Judge, Respondent. No. 01-82-0583-CV. Court of Appeals of Texas, Houston (1st Dist.). September 3, 1982. *759 Frank L. Mauro, Wommack, Denman & Mauro, Lake Jackson, for relator. Charles Stevenson, Asst. Dist. Atty., Angleton, for respondent. OPINION DUGGAN, Justice. This is an original mandamus proceeding in this court wherein relator seeks a writ of mandamus to compel the respondent, who is the County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, relator's name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge. The jurisdiction of this court has been invoked pursuant to Tex.Elec.Code Ann. art. 13.41 (Vernon Supp.1982) and Tex.Rev. *760 Civ.Stat.Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated. Relator's position may be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for independent candidates. He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex.Elec.Code Ann. art. 13.12 (Vernon Supp.1982), and b) providing a written application signed by 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run-off election for the position of County Judge was required. Relator asserts further that he has communicated with respondent on five separate occasions between July 12, 1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator's name has not been certified. In this connection he says further that unless respondent puts relator's name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex.Elec. Code Ann. art. 13.56(f) (Vernon Supp.1982) if relator is declared ineligible before the 44th day before election day (November 2, 1982), his name may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator's application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the very position which respondent now holds. In response to all of the foregoing respondent's stance may be summarized briefly as follows: Before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. The duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Further, says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute. Provisions of the Election Code concerning the contents of an independent candidate's application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. Tex.Elec.Code Ann. art. 13.50, (Vernon Supp.1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No application shall contain the name of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run-off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. An application may not be circulated for signatures until the day after the general primary election day, or if a runoff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void. Subdivision 5. In addition to the person's signature, the application shall show each *761 signer's address, the number of his voter registration certificate, and the date of signing. Respondent contends further that the names of those persons who signed relator's application prior to the date of the primary runoff election are not valid and may not be counted. Respondent's key position in challenging the sufficiency of the application's conformity with the requirements of the Election Code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. Respondent asserts that 133 of the signatures are invalid because they were obtained before June 6, 1982; further, that 221 more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures. Coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.—Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.—Houston [14th Dist.] 1982, no writ). In addition, the authorities are clear that the Courts of Appeals have no authority to issue writs of mandamus unless the facts are established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.—Austin 1978, no writ); Donald v. Carr, 407 S.W.2d 288 (Tex. Civ.App.—Dallas 1966, no writ). We are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.—Galveston 1952, no writ); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ); Shields v. Upham, 597 S.W.2d 502 (Tex.Civ.App.—El Paso 1980, no writ). VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982 By respondent's own figures, there were 133 signatures falling into this category. No fact issue whatever is involved in reaching that determination. In concluding whether the signatures on relator's application should be counted if the signature date is prior to June 6, 1982, the date of the run-off election, but after the date of the general primary, Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) is determinative. We quote therefrom as follows: An Application may not be circulated for signatures until the day after the general primary election day or if a run-off primary election is held for the office sought by applicant, until the day after the runoff primary election day. (Emphasis added.) The emphasized language is the heart of the matter because it is uncontroverted that there was no runoff election for the office of County Judge of Brazoria County in 1982. We hold, therefore, that the questioned 133 signatures obtained before June 6, 1982 are valid and should be added to the 268 signatures recognized as valid by respondent. In so holding we not only follow the clear wording of the statute, but we have the benefit of Tex.Atty.Gen.Op. No. DAD-49 (1982) which states the question as follows at page 1. 1. Under Subdivision 4 of Article 13.50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. At page 2 the answer to such question is given as follows: "1. V.A.T.S. Election Code, art. 13.50, subd. 4, states, in part: *762 An application may not be circulated for signatures until the day after the general primary election day, or if a runoff election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void. Therefore, the answer to your first question is yes. Of course, no signatures could be counted if they were dated before the day after the general primary election. SUFFICIENCY OF ADDRESS Respondent approaches this matter by saying that the question raised is whether or not an address is sufficient if it fails to include the city in which it is located. Going further, he asserts that there are 221 insufficient addresses which fall into two categories: (1) no address listed, (2) no city listed. He says that those signatures with no address listed at all are clearly insufficient and with this we agree. But he does not say in his brief how many of these signatures there are so we must turn to his verified exhibit C attached to his original answer to petition for writ of mandamus. Exhibit C is Mike Sandel's letter to respondent dated July 8, 1982 wherein Sandel, as Director of the Data Processing Department of Brazoria County, summarized the errors found in relator's application. In the category of "Incomplete Address" he lists 221 signatures. Thus, to determine how many signatures are incomplete because no address is listed, one must look to relator's application, also attached to respondent's verified answer. When this is done, it is apparent that no more than five or six such signatures are involved. These are found at pages 7, 15, 46, 47 and 55 of relator's application. On the assumption most favorable to respondent, there are six such signatures with no address whatever shown. This then leaves 215 signatures which provide the crucial issue before this court. Is an address which fails to include the city in which it is found sufficient or insufficient as a matter of law? Subdivision 5 of article 13.50 requires that in addition to a signature: ... the Application shall show each signer's address, the number of his voter registration certificate and the date of signing. Relator urges that the quoted language is broad and does not require specificity in the address provided by a voter who signs an independent candidate's application. Respondent candidly admits that counsel has been unable to find a single case dealing with the meaning of "address" as it appears in Tex.Elec.Code Ann. art. 13.50, subd. 5, (Vernon Supp.1982). Relator cites Tyler v. Cook, 573 S.W.2d 567 (Tex. Civ.App.—San Antonio 1978), rev'd on other grounds, 576 S.W.2d 769 (Tex.1978). In Tyler, party candidates for various county offices sought by mandamus to prevent the printing of the names of three independent candidates upon the official general election ballot. The addresses on the independent candidates' applications were challenged because they did not contain street addresses or rural route addresses. By reviewing the 1978 Voter's Registration List for the County involved, the San Antonio Court of Civil Appeals observed that the addresses for the signers of the applications shown on the Voter's Registration List were the same as the addresses the members of the Court noted on the applications of the independent candidates. Respondent, in turn, cites and discusses numerous cases wherein the address requirements under another statute, article 13.08(d), have been construed. He points out that all such cases have held that the recital in a nominating petition of the street address of a signator, without specifying the city in which the street was located, is insufficient as a matter of law. Shields v. Upham, supra; Pierce v. Peters, 599 S.W.2d 849 (Tex.Civ.App.—San Antonio 1980, no writ); Gray v. Vance, 567 S.W.2d 16 (Tex. Civ.App.—Dallas 1978, no writ). We hold that there are an additional 215 valid signatures on relator's application where such signatures have given street address, P.O. box number or rural route *763 number but have not designated the city or town. In reaching this conclusion we have again been aided by Tex.Atty.Gen.Op. No. Dad-49 (1982) concerning the sufficiency of recitals in the application of a non-partisan or independent candidate for a place on the general election ballot. Looking to that opinion in paragraph "2" of page 1 we find the following question posed: 2. Under Subdivision 5 of Article 13.50, what amount of information is needed to satisfy the requirement of a "signer's address"? If the other information given, along with the list of registered voters in the county, is sufficient to identify a signer as a qualified voter in a particular county, does the address satisfy the requirements of the statute? For example, if a person's street address and the voter's registration number are listed, but there is no city designation, can the signature be counted if the signer's name can be found on the voter's registration list which will provide the city he lives in? The answer to the posed question is found at pages 2, 3 and 4 of the opinion as follows: 2. In Tyler v. Cook, 573 S.W.2d 567, 570 (Tex.Civ.App.—San Antonio 1978), reversed on other grounds 576 S.W.2d 769 (Tex.1978), the court said: "As pointed out above, art. 13.50 does not expressly require ... that the addresses be stated with any degree of specificity." The same court, however, in a decision construing art. 13.08(d), stated: It is clear that the legislature intended that something more be given than a post office box or a mere recital of the city of the voter's residence. There is no reason to believe that language clearly indicating that a description of an address which designates no more than the city in which the voter resides is not sufficient, contemplates that the giving of a street number, without a designation of the city, would be sufficient. `201 Main Street' gives even less information than `San Antonio, Texas'. Pierce v. Peters, 599 S.W.2d 849, 851 (Tex.Civ.App.—San Antonio, 1980, no writ). A comparison of art. 13.098(d) and art. 13.50, subd. 5, will show that the statutory language construed in Pierce, supra, is somewhat more specific than the statutory language in question. Art. 13.08(d) provides, in part: ... The petition must show the following information with respect to each signer: His address (including his street address if residing in a city, and his rural route address if not residing in a city), his current voter registration certificate number (also showing the county of issuance if the office includes more than one county), and the date of signing... Art. 13.50, subd. 5, provides: In addition to the person's signature, the application shall show each signer's address, the number of his voter registration certificate, and the date of signing. The legislative purpose of both of the above-cited statutes is to allow verification of signatures. Furthermore, the language used is mandatory, not directive. "Provisions of election laws governing what is required of candidates are mandatory." Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ). Therefore, it is my opinion that for a signature on an application pursuant to art. 13.50 of the Election Code to be valid it must be accompanied by all four of the required items of information. However since the statutory language in question is not specific as to what detail is required in the address, I am of the opinion that it is unnecessary to reject a signature for a technical deficiency in the recital of the address, where the recital is sufficient for the purpose of verifying the signature. The El Paso Court of Civil Appeals, construing art. 13.08(d), said, "The Election Code does not require just a petition which may be verified. It requires specified information ..." Shields v. Upham, 597 S.W.2d 502, 504 (Tex.Civ.App.—El Paso 1980, no writ). This applies as well to independent candidates' applications under art. 13.50. However, the legislature has apparently chosen to be somewhat less specific in its requirements under art. 13.50. *764 SUMMARY An application of an independent candidate for a place on the general election ballot must comply with the mandatory provision of V.A.T.S. Election Code, art. 13.50, subds. 4 and 5. Each signature on the application must be accompanied by the signer's address, the number of his voter registration certificate, and the date of signing. The omission of any one of these items is fatal to that signature. The language of art. 13.50, subd. 5, does not require that the signer's address be stated with any certain degree of specificity. An otherwise valid signature should not be rejected when the recital of the signer's address is sufficient for the purpose of verification. (Emphasis added.) Respondent's Exhibit C at page 2 thereof recognizes 268 valid signatures. To this figure we now add the 133 signatures obtained after the general primary election but prior to June 6, 1982 and the 215 signatures disallowed by respondent because of the alleged insufficient address. By this calculation we find that relator's application included 616 valid signatures and that he is entitled to the relief sought. DUTY AND RESPONSIBILITY OF COUNTY JUDGE Tex.Elec.Code Ann. art. 13.52 (Vernon Supp.1982) provides what the County Judge is to do upon the applicant's having fulfilled the requirements of the article. Upon receipt of an application which conforms to the above requirements ... the county judge shall issue his instruction to the ... county clerk of the county directing that the name of the candidate in whose favor the application is made shall be printed on the official ballot in the independent column under the title of the office for which he is a candidate.... (Emphasis added.) We hold, therefore, that the election code is mandatory rather than directive as to what the county judge shall do once he receives an application meeting the statutory requirements. The writ of mandamus will be issued ordering respondent, Edwin E. Brewer, County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas the name of relator, Harmon Hoot, as a candidate for the office of County Judge of Brazoria County, Texas. His name is to be put on the general election ballot as soon as practicable, but, in any event, prior to September 18, 1982. DYESS, J., joins in this opinion. DOYLE, J., dissents. DOYLE, Justice, dissenting. I respectfully dissent from the majority opinion ordering that the name of the relator, Harmon Hoot, be placed on the general election ballot as an independent candidate. It is undisputed that the provisions of the Election Code with reference to the placing of the names of independent candidates upon the general election ballot are mandatory and must be strictly complied with. McWaters v. Tucker, 249 S.W.2d 80 (Tex. Civ.App.—Galveston 1952, no writ); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.— Dallas 1976, no writ). The respondent has raised several irregularity issues in connection with the relator's application which warrant serious consideration. Two of such issues concern the sufficiency of addresses appearing on the application and the adequacy of the affidavit required by article 13.51. It is undisputed that if the challenged signers' addresses and affidavits are not allowed to stand, the relator's application would not have the required signatures. The Election Code, article 13.50, Subdivision 5, provides in part, that "the application shall show each signer's address, ...." The Legislature has not defined "address" in the article. Therefore, we are required to give the word its meaning based on ordinary usage. The addresses under challenge in the case before us fail to include the city in which a number of the signers live. In Tyler v. Cook, 576 S.W.2d 769 (Tex.Sup.Ct.1980), the Texas Supreme *765 Court did not rule on a similar address challenge, finding it unnecessary in order to decide the question before it. However, I can not conceive of an address as employed in the ordinary course of usage, as being complete and meaningful, that gives only a house number or post office box number, and omitting all reference to a city. The cases that have considered the address question under Article 13.08 of the Elec.Code, have uniformly held that the omission of the name of the city in a signer's address is fatal to that name. Shields v. Upham, 597 S.W.2d 502 (Tex.Civ.App.—El Paso 1980, no writ); Gray v. Vance, 567 S.W.2d 16 (Tex. Civ.App.—Fort Worth 1978, no writ); Pierce v. Peters, 599 S.W.2d 849 (Tex.Civ. App.—San Antonio 1980, no writ). Under the rationale found in these cases, I fail to see how the address requirement would be interpreted differently for a signer under Article 13.50 than from one under Article 13.08. With or without the specificity as to address set out in Article 13.08(d), I think we are required to give the word "address" its ordinary meaning until the Legislature defines it. As to a signer of an application under Article 13.50 of the Election Code making an affidavit to the effect that he has not "voted at either the general primary election or the runoff primary election of any party," when the runoff primary election is yet to come, we are confronted with an impossible situation. No signer can make such an affidavit under the present wording of the statute. In Tyler v. Cook, supra, the dissent of Chief Justice Cadena, of the San Antonio Civil Appeals Court in 573 S.W.2d 567 at page 571, summarizes my position on the affidavit. He states: Unless we attribute an almost complete lack of knowledge of grammar to our legislators, we cannot escape the conclusion that the statutory scheme requires that the signatures be gathered after the general primary election or the runoff primary election, as the case may be. It is utter foolishness to require a person to state that he has not participated in an event which is not to occur until some future date. In reversing Tyler v. Cook, supra, Justice Barrow of the Texas Supreme Court reasoned similarly. I would deny the mandamus and order the cause dismissed.

Fourth Court of Appeals San Antonio, Texas October 11, 2018 No. 04-18-00475-CV IN THE INTEREST OF N.F.M. AND S.R.M., From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Appellant has filed a motion for an extension of time to file the appellant’s brief because, in part, appellant’s motion for en banc reconsideration regarding this court’s briefing order is still pending. Appellant requests an additional 20 days from the date this court rules on appellant’s en banc motion. We grant the motion for an extension of time in part and ORDER that the deadline for redrawing the appellant’s brief, set by this court’s September 21, 2018 order, is suspended pending further order of this court. _________________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of October, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court 

Order filed October 6, 2016 In The Fourteenth Court of Appeals ____________ NO. 14-15-00634-CV ____________ POWELL DORFAYE, ET AL, Appellant V. BRECKENRIDGE AT CITY VIEW APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1064270 ORDER On August 12, 2015, this court abated this appeal because appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 15-33972. See Tex. R. App. P. 8.2. Through the Public Access to Court Electronic Records (PACER) system, the court has learned that the bankruptcy case was closed on October 21, 2015. The parties failed to advise this court of the bankruptcy court action.  Unless within 20 days of the date of this order, any party to the appeal files a motion demonstrating good cause to retain this appeal, this appeal will be reinstated and dismissed for want of prosecution. PER CURIAM 

252 N.J. Super. 660 (1991) 600 A.2d 525 THELMA LAUTENSLAGER, PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, DEFENDANT. Superior Court of New Jersey, Law Division Union County. Decided June 28, 1991. *661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs.), for plaintiff. Hal R. Crane, Corporate Counsel for Supermarkets General Corporation. OPINION MENZA, J.S.C. Defendant moves for partial summary judgment. The question presented is which statute of limitations is applicable to a NJLAD case based on employment discrimination. On May 11, 1989, the plaintiff filed a complaint alleging a continuing pattern of employment discrimination on the part of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends that she was denied promotional opportunities from 1979 to the present, and that positions for which she was equally qualified were given to younger, usually male employees. Count One of the Complaint alleges violations of the New Jersey Laws Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq. The defendant moves for a partial dismissal of the plaintiff's claims on the grounds that the two-year statute of limitations governing personal injury actions controls the NJLAD claim. The defendant contends, therefore, that all claims of discrimination that relate to events prior to May 11, 1987, are time barred by application of the statute. The plaintiff argues that the two-year statute is inapplicable to her claims, and that N.J.S.A. 2A:14-1, which provides a six-year statute for actions sounding in property rights, is the most befitting for discrimination claims. The NJLAD statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. The limitation of actions statutes provide: *662 Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-1). Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-2). In Leese v. Doe, 182 N.J. Super. 318, 440 A.2d 1166 (Law Div. 1981), the court addressed the question of which statute of limitations was applicable to the NJLAD claims based on sex discrimination. The court held that the plaintiff's employment discrimination claim was governed by the six year statute of limitations set forth in N.J.S.A. 2A:14-1. In doing so, the court analogized the NJLAD claim to a claim brought under its federal counterpart, 42 U.S.C. § 1981 and cited as authority for its holding the case of Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir.1978). The Davis case held that a petitioner's § 1981 complaint was one which sounded in property rights, and was therefore actionable under Pennsylvania's six-year statute. The Davis court said: Plaintiff's complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis' interest in personal security, but rather involves unlawful interference with her rights as an employee. Mrs. Davis implicitly asserts a right to good faith efforts by an employer to correct instances of co-worker racial harassment and a right not to be discharged for complaining of such incidents. Essentially, Mrs. Davis complains that U.S. Steel Supply demeaned her and fired her because of her race. (Id. at p. 338). In Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984), the court, also relying on Davis, held that the six year statute was applicable to a NJLAD case based on sexual harassment. The court said: *663 The relief sought by plaintiff is the key to characterization of a cause of action for statute of limitation purposes, and as in Davis, [i]n terms of legal relief, plaintiff's complaint does not seek damages for bodily injury.' (Id. at p. 1214). The Davis case, the premise for the Leese and Skadegaard cases, was reversed by the United States Supreme Court in Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). In that case, which involved racial discrimination, the Supreme Court held that federal courts should select the most applicable state statute of limitations for § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. The court said: Section 1981 has a much broader focus than contractual rights ... [It] asserts in effect that competence and capacity to contract shall not depend on race. It is thus part of a federal law barring racial discrimination, which, as the court of appeals said, is a fundamental injury to the individual rights of a person ... The Court of Appeals was correct in selecting the Pennsylvania 2-year limitation period governing personal injury actions. (Id. at 661-662, 107 S.Ct. at 2620-2621). In White v. Johnson & Johnson, 712 F. Supp. 33 (D.N.J. 1989), the District Court applying Goodman rejected Leese and Skadegaard, and held that the two year statute was applicable. The court said: The New Jersey Supreme Court has not yet ruled on the appropriate statute of limitations in an action under NJLAD. (citation omitted). In the absence of an authoritative pronouncement from the state's highest court, the task of a federal court is to predict how that court would rule.' (citation omitted). ........ The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N.J. Super. 318, 321, 440 A.2d 1166, 1168 (Law Div. 1981), which ruled that the six-year statute pertaining to claims for injury to property governs NJLAD claims ... Importantly, however, both Leese and one of the federal cases following it based their holding on the Third Circuit case that was overruled by Goodman in the § 1981 context, namely, Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic consequences, it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the aggrieved. ........ *664 The Court can only assume that if the issue were before the highest court of New Jersey, that court would do as the Superior Court did in Leese and look to federal law for guidance, but would find the current federal guidance (in contrast to what existed at the time of Leese), to favor application of the personal injury statute of limitations to NJLAD claims. Thus, the Court agrees with defendants the New Jersey Supreme Court would most likely apply the two-year limitations period of N.J.S.A. § 2A:14-1 [sic][1] to NJLAD claims. (Id. at 37-38). Although there are no New Jersey decisions which have specifically addressed the question, it appears that the New Jersey courts do apply the six year statute of limitations. In Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App.Div. 1984), rev'd on other grounds, 102 N.J. 30, 505 A.2d 580 (1986), cert. den., 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 38 (1986), a case decided before Goodman, the Supreme Court, in reversing the Appellate Division held that the federal age discrimination in employment act preempted a state court action which was brought under NJLAD after the expiration of the statute of limitations governing the federal act. Although the Supreme Court did not specifically state the statute of limitations applicable to NJLAD claims, the Appellate Division did do so but did it in dicta and without explanation. The court said: Defendant contends here that the action is barred by the time limitations expressed in the New Jersey Law Against Discrimination and the statute of limitations, N.J.S.A. 2A:14-2. ........ ... [W]e conclude that the applicable time limitation is that stated in N.J.S.A. 2A:14-1 "6 years next after the cause of action shall have accrued. (197 N.J. Super. p. 473-474, 485 A.2d 312). And in Fisher v. Quaker Oats, 233 N.J. Super. 319, 559 A.2d 1 (App.Div. 1989), the court, in the first sentence of its opinion, framed the issue in the case by stating, "On this appeal, we must determine whether the 6 year period permitted for the filing of an age discrimination complaint under our Law Against Discrimination ... has been preempted by the shorter limitation period of the federal Age *665 Discrimination in Employment Act." (At 320, 559 A.2d 1, citing the Nolan case as authority). No explanation was thereafter offered by the court as to the reason why the six year statute of limitation was applicable to NJLAD. The quandary then is this: the Leese case, a law division case, and the Skadegaard case, a federal district court case, each of which held that the six year statute was applicable, was based on a federal circuit court case subsequently reversed by the Supreme Court. The White case also a federal district court case, concluded that the two year statute is applicable and two appellate division cases have stated in dicta, and without explanation, that the six year statute is applicable. It would seem that the best way for this Court to determine which statute of limitations is applicable to NJLAD is through an evolutionary analysis of N.J.S.A. 2A:14-1 and N.J.S.A. 2A:14-2. The history of New Jersey's statutes of limitations was detailed by the Supreme Court in the case of Earl v. Winne, 14 N.J. 119, 101 A.2d 535 (1953). This history is as follows: As of February 7, 1779, New Jersey has an "Act for the Limitation of Actions," consisting of 17 subsections. The first two sections of that act are relevant to this inquiry. The first section was the six-year limitation period. Among other things, it explicitly governed "all actions of account and upon the case, except actions for slander ..." The second section, a four-year statute, covered trespass actions involving direct physical harm such as "assault, menace, battery, wounding and imprisonment ..." A third section applied a two-year statute to "actions upon the case for words," presumably a reference to libel. In 1874, the statute was revised. The revised statute retained the six-year statute for all actions ... upon the case, and the four-year statute for trespass vi et armis. *666 In 1896, the legislature again revised the statute adopting a new section which retained the two-year limitation for "action upon the case for words," i.e., libel, but added to the two-year statute "all actions for injuries to the person caused by wrongful act, neglect or default of any person ... The phrase "injuries to persons" was meant to embrace only direct physical injury torts such as "assault, menace, battery, wounding, ..." etc. That new section, the precursor of New Jersey's current two-year statute impliedly repealed Section Two, the four-year statute for trespass vi et armis. It did not repeal the applicability of the six-year statute to actions on the case. In a 1934 revision, the six-year statute continued to apply to all "actions in the nature of actions upon the case," and was designated R.S. 2:24-1. The two-year statute that originally specified "menace, assault, mayhem, etc.," was replaced by the language of the 1896 revision referring to "injuries to the person" and libel and slander were given a one-year statute in Section Three, now designated R.S. 2:24-3. In a "recent revision" referred to but not identified by date in Earl, section One of the Act was rewritten and the phrase "any tortious injury to the rights of another" was substituted for specific common law references to "action on the case." See Earl v. Winne, 14 N.J. 119, 129-32, 101 A.2d 535). The historical analysis makes it clear that the words in the current statute, N.J.S.A. 2A:14-1 (formerly R.S. 2:24-1), "any tortious injury to the rights of another," means all actions "in the nature of actions on the case", whereas, the phrase "injuries to persons," contained in N.J.S.A. 2A:14-2, (formerly R.S. 2:24-2 refers to actions in trespass vi et armis. How is a NJLAD case to be characterized? Is it an action in the nature of an action on the case or is it one characteristic of a trespass vi et armis? An action on the case, in Black's Law Dictionary, 51 (4th Ed. 1968), is defined as: *667 It is founded on the common law or upon acts of Parliament, and lies generally to recover damages for torts not committed with force, actual or implied' or having been occasioned by force where the matter affected was not tangible, or the injury was not immediate but consequential, or where the interest in the property only in reversion, in all of which cases trespass is not sustainable ... In the progress of judicial contestation it was discovered that there was a mass of tortious wrongs unattended by direct and immediate force, or where the force, though direct, was not expended on an existing right of present enjoyment. A trespass is defined as: An unlawful act committed with violence, actual or implied, causing injury to the person, property or relative rights of another. ........ In practice a form of action, at the common law, which lies for redress in the shape of money damages for any unlawful injury done to the plaintiff, in respect either to his person, property or rights, by the immediate force a violence of the defendant. (Id. at 1674). In Osborne v. Butcher, 26 N.J.L. 308 (1857), the New Jersey Supreme Court commented on the distinction between the two common law actions. In that case, the plaintiff filed an action of trespass vi et armis against the defendant for obstructing a road used by the plaintiff for egress from his farm. In holding that the action was properly brought as an action on the case, the court stated: The gravamen is the obstruction of a by-road, and thereby depriving the plaintiff of its use. The obstructing and blocking up of the road may have been direct, immediate, willful, and forcible, but that was not to, or upon the land of the plaintiff or to his possession; it was not direct and immediate to him. The injury to him was the depriving him of the use of the by-road by reason of such obstruction. It was indirect and consequential, and therefore the subject of an action on the case, and not of trespass. (Id. at 309-10). And in H.J. Jaegar Research Laboratories v. Radio Corporation of America, 90 F.2d 826, 827 (Cir.1937), the court, in characterizing a cause of action under the Sherman Anti-Trust Act as one similar to an action on the case, said: ... the Acts of New Jersey ... follow the British statute of James I in limiting actions of case to six years. That action was created to meet a recognized need in the administration of justice, namely, a special form of action for particular cases where the ancient form of action did not provide a remedy. ........ *668 `Actions of the case are founded on common law or upon acts of Parliament, and lie generally to recover damages for torts not committed by force, actual or implied;' ... (Id. at 827). (quoting 1 Chit.Pl. 133 and 142). Historically, therefore, an action of trespass was proper for injury caused by a direct application of force, while an action on the case governed injuries which were indirect and consequential. The language of the current statutes of limitations is derivative of the common law limitation period. N.J.S.A. 2A:14-2 was intended by the legislature to cover claims of actual, physical injury such as negligence, assault and battery, and actions for trespass vi et armis. N.J.S.A. 2A:14-1 was intended to cover indirect injuries, actions on the case. Thus, in Earl v. Winne, supra, the court held that since the tort of false imprisonment involved "immediate wrongs accompanied by force to the person," and the torts of abuse of process and malicious prosecution involved only indirect action against the person, the former tort was covered by the two-year statute, while the latter torts were covered by the six-year statute. And in Canessa v. Kislak, Inc., 97 N.J. Super. 327, 235 A.2d 62 (Law Div. 1967), the court held that the six-year statute of limitations is applicable to a claim for the tort of "invasion of privacy" involving the appropriation of one's name and likeness. The court reasoned that the two year statute of limitations set forth in N.J.S.A. 2A:14-2 only governs those claims involving direct physical injury and since an invasion of privacy is not an immediate physical affront, but rather a deprivation of a property right, and therefore an indirect tort, it is governed by the six year statute of limitations. Id. at 351, 235 A.2d 62. Employment discrimination is an offensive, personal violation resulting in deprivation of one's right to equal employment opportunity. It is not a direct personal injury in the traditional sense but rather an indirect one such as that suffered by the farmer in Osborne v. Butcher whose driveway was wrongfully obstructed. The farmer's injury is that he cannot gain access to his house. The employee's injury is the deprivation of the *669 right to employment. Both are indirect injuries; as such, both are in the nature of "actions on the case." Under the circumstances, this Court is of the opinion that NJLAD claims are characteristic of common law actions on the case. They are therefore governed by the six year statute of limitations: N.J.S.A. 2A:14-1. Defendant's motion for summary judgment is denied. NOTES [1] See N.J.S.A. 2A:14-2.

Fourth Court of Appeals San Antonio, Texas June 10, 2016 No. 04-16-00336-CV IN THE INTEREST OF M.S.M., A CHILD, From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014PA02012 Honorable Richard Garcia, Judge Presiding ORDER The trial court signed a final judgment on April 28, 2016. Because appellant did not file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on May 18, 2016. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 2, 2016. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C). It is therefore ORDERED that appellant file, within fifteen days from the date of this order, a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). All other appellate deadlines are suspended until further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court 

206 Okla. 199 (1952) 242 P.2d 448 RYAN v. ANDREWSKI et al. No. 34583. Supreme Court of Oklahoma. March 25, 1952. Champion, Champion & Wallace, Ardmore, and Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, for defendants in error. GIBSON, J. The parties appeared in the trial court in the same order as they appear in this court and will generally be referred to as plaintiffs and defendants. On August 20, 1947, Dan Ryan filed his petition in this action naming as defendants H.C. Andrewski, L.L. Robinson and the Prudential Insurance Company of America. He alleged a partnership between himself and the personal defendants and the issuance by the Prudential of ten separate insurance policies on his life, all payable to the partnership. He further alleged a dissolution of the partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a change, naming his wife as beneficiary, they had failed and refused so to do. He tendered the cash or loan value of the policies and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary as designated by him. On motion the petition was amended, naming the wives of the plaintiff and personal defendants as parties, it appearing that the wives were included as partners in the partnership agreement. Dan Ryan died October 14, 1948, and the action was revived with his widow, as executrix of his estate, named as a party plaintiff. Issue was joined and the case tried to the court. The Insurance Company pleaded that it was a stakeholder and *200 paid the proceeds of the policies into court, and is not a party to this appeal. Judgment was rendered for defendants, and plaintiffs appeal. On June 1, 1943, Dan Ryan, Jesse Willis Ryan, his wife, and the named defendants entered into a written partnership agreement to operate under the trade name "Oklahoma Distributing Company" to engage in the manufacture, sale and distribution of beer and other beverages, each partner acquiring an undivided one-sixth interest in all assets. The three husbands were named as managing partners. It was agreed that insurance on the life of each managing partner, in the sum of $50,000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the partnership. It was provided that a partner could terminate the partnership on specified notice, with the nonterminating partners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase, and further: "Upon any sale as herein provided the nonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall not be liable for any of its unsatisfied obligations or liabilities." Policies totaling $50,000 were purchased on the life of each of the three managing partners. In the application for Mr. Ryan's policies (ten in number, each for $5,000), Dan I. Ryan was named as "Proposed Insured", Oklahoma Distributing Company was "Applicant", and the beneficiary was named "Oklahoma Distributing Company of Ardmore, Oklahoma, a partnership, as such partnership now exists or may hereafter be constituted." Attached to each policy was the following endorsement: "Provisions as to Ownership and Control of the Policy "Subject to such limitations, if any, as may be hereinafter set forth, all legal incidents of ownership and control of the Policy, including any and all benefits, values, rights and options conferred upon the Insured by the Policy or allowed by the Company and any ultimate interest as beneficiary conferred upon the Insured or the Insured's estate by the Policy, shall belong to the following Owner: Oklahoma Distributing Co. of Ardmore, Okla., a partnership, as such partnership now exists or may hereafter be constituted." Thereafter the Company assigned all of the policies to Schlitz Brewing Company as collateral security for a loan of $100,000 payable in monthly payments. About nine months after its organization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed by all partners. Among other things, it provided that the partnership was dissolved by mutual agreement; that each of the four remaining partners was to receive an undivided 1/4th interest "in and to all of the business assets and properties, real, personal and/or mixed, including accounts receivable and cash on hand remaining after the distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan"; that each of the Ryans was to receive in cash out of partnership assets an amount equal to 1/6th of the total net worth of the partnership at the time of its dissolution. Further, that the distributions so made were in full liquidation of said partnership, and the remaining four partners agreed to hold the Ryans harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited by a certified public accountant and on his determination of the total net worth of the partnership Ryan and his wife were paid the sum of $65,118.04 for their 2/6ths interest in the enterprise. *201 The insurance policies were not specifically mentioned in the dissolution agreement. Some time later Mr. Ryan became ill. He began a series of requests or demands upon the Insurance Company and his former partners, contending that the Distributing Company as it then existed did not own the policy and requesting that the policies be returned and that his wife be named beneficiary. These negotiations were fruitless, and more than three years after dissolution of the partnership Mr. Ryan filed this action. Plaintiffs contend that the judgment is not supported by the evidence and is contrary to law. It is said that the policies were not disposed of in the written agreement of dissolution and that each partner was entitled to his pro-rata share of the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. The argument overlooks the provision of the dissolution agreement wherein there was distributed to the four remaining partners "all of the business assets and properties, real, personal and/or mixed ... after the distribution of the cash herein distributed to Dan Ryan and Jesse Willis Ryan etc.", and it overlooks the designated beneficiary which was the Distributing Company "as such partnership now exists or may hereafter be constituted." The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, at that time, they had no cash value, but throughout the existence of the partnership the partners treated all policies as a business asset and property, and they had used the same to obtain a large loan for partnership use, which loan had not been repaid at the time of the dissolution. As a part of the agreement that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. The premiums had been paid by the partnership and the sole beneficiary was the partnership. Miller v. Hall, 65 Cal. A.2d 200, 150 P.2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. The case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. Defendants say that a beneficiary irrevocably designated as such in a life policy has a vested right not subject to change at the insured's hand. In making this contention defendant is supported by the great weight of authority. "It is held by the great weight of authority that the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unless the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change." Condon v. New York Life Ins. Co. of New York, 188 Iowa 658, 166 N.W. 452. The opinion cites many cases from various jurisdictions in support of the rule announced. See, also, Page v. Detroit Life Ins. Co., 11 Tenn. App. 417; Ruckenstein v. Metropolitan Life Ins. Co., 263 N.Y. 204, 188 N.E. 650. At the time of the dissolution agreement all policies were pledged with Schlitz Brewing Company to secure the partnership loan, and there was an unpaid balance of $70,000 on that debt. "Where partner contracted with his copartner that he should be beneficiary of partner's life policy, partner's attempt to change beneficiary after dissolution of partnership when partner owed money to copartner held ineffective (Rev. St. 1925, art. 5048)." Smith v. Schoellkopf (Tex. Civ. App.) 68 S.W.2d 346. While admitting that the partnership had an insurable interest in the life of Mr. Ryan, at the time the policies were written, plaintiffs say that there is no insurable interest possessed by *202 the partnership which continued after the dissolution. "An insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest and pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary's lack of insurable interest. St. 1935, p. 636, sec. 10110." Jenkins v. Hill, 35 Cal. A.2d 521, 96 P.2d 168. Defendants say that a valid designation of a beneficiary remains so after the latter's insurable interest or relationship ceases, or, otherwise stated, insurable interest of the beneficiary of a life policy at the time of the death of the insured is immaterial, if it existed when the policy was issued. In support of this contention defendants cite Sinclair Refining Co. v. Long, 139 Kan. 632, 32 P.2d 464, which was a case in many respects similar to the present one. In the opinion the Kansas Supreme Court said: "... As applied to the situation here presented, the authorities generally are, and the recent ones practically ananimous, that the policy is not a mere contract of indemnity, but is a contract to pay to the beneficiary a certain sum in the event of the death of the insured. The authorities are practically unanimous also in support of the rule that where the insurable interest exists when the policy is issued, and a valid contract of insurance is then effected, it is not defeated by the cessation of the insurable interest unless the terms of the policy so provide. We quote from some of the leading authorities on this question: "In Grigsby v. Russell, 222 U.S. 149, 32 S.Ct. 58, 59, 56 L. Ed. 133, 36 L.R.A. (N.S.) 642, Ann. Cas. 1913B, 863, it was held: `A valid policy (of insurance) is not avoided by the cessation of the insurable interest, even as against the insurer, unless so provided by the policy itself.' "In Conn. Mut. Life Ins. Co. v. Schaefer, 94 U.S. 457, 24 L. Ed. 251, it was held: `A policy of life insurance originally valid does not cease to be so by the cessation of the assured's party's interest in the life insured, unless such be the necessary effect of the provisions of the instrument itself.' "In Wurzburg v. N.Y. Life Ins. Co., 140 Tenn. 59, 203 S.W. 332, L.R.A. 1918E, 566, it was held: `A manufacturing company has an insurable interest in the life of its manager, who is its guiding spirit and is largely carrying on its business. Where a manufacturing company took out a valid policy on the life of its general manager, who later severed his connection with the company, and it paid all premiums until his death, it was entitled to the whole of the insurance.'" We need not lengthen this opinion with the many additional citations, but we observe that defendants' above proposition is sustained by the great weight of authority. These involved insurance policies were business policies purchased for the protection of the partnership, and were designed to enchance the growth and success of the partnership undertaking. The designation of the beneficiary was an irrevocable designation. All partners then intended, just as set out in the provision of the policies, that all legal incidents of ownership and control of their respective policies and all benefits and rights conferred on the insured by the policies should belong to the Oklahoma Distributing Company as it then existed or as it might thereafter be constituted. The use of the policies for partnership purposes was intended from the day the partnership agreement was executed. Their continued use as collateral for the Schlitz Company loan until that debt was paid was contemplated by all parties when the dissolution agreement was signed, — an obligation which the remaining partners assumed while the plaintiffs were to be released therefrom. At that time the obligation was in excess of the total amount of Mr. Ryan's policies. It was then contemplated by the parties that the continuing partnership, of the four remaining partners, would meet that obligation. There is nothing in the record to indicate that the parties intended that as soon as the four remaining *203 partners used their own money to pay off the Schlitz indebtedness they would turn the policies over to Mr. Ryan or that he was to receive any further benefit from them. In all these transactions the insurance policies were treated as partnership property. Under the dissolution agreement Ryan and wife were paid cash for their interests in the partnership as specified in the partnership agreement in the event of a withdrawal of any partner. After use of the cash needed to pay them, "all of the business assets and properties, real personal and mixed" were assigned to the four remaining partners. Ryan and wife joined in this assignment. None of the assets were itemized or given specific mention. The insurance policies of all partners were and had been treated as business assets. In the audit upon which the amounts due to Ryan and wife were computed, the prepaid premiums were listed as assets. Thus Ryan and wife were reimbursed for their pro-rata share of premiums theretofore paid and withheld from all partners during the operation of the business. It cannot be said that the failure to mention the policies in the agreement was due to an oversight since the same thing could be said of any other assets. None was given specific mention. The parties intended the assignment to cover all assets remaining after the cash payment, and so said. Plaintiffs contend that the court erred in refusing to permit Mrs. Ryan to testify as to her understanding as to the taking out of the insurance policies. Following the court's ruling the plaintiffs tendered the following written offer of proof: "Plaintiff's Tender in Connection with Testimony of Jesse Willis Ryan, Wife of Deceased. "2. That Mrs. Ryan, wife of deceased, if permitted to testify would testify that it was her understanding as a partner that the insurance was only to be carried on Dan Ryan's life during the existence of the Partnership." To avoid the rule against use of parol evidence to vary the terms of a written agreement, plaintiffs contend that parol evidence was admissible to show that the written agreement was not intended to cover the subject of the policies, and cite 32 C.J.S. 1027, and numerous cases dealing with the admission of evidence to show the intent of the parties where the written instrument is ambiguous. We do not find ambiguity in the contract. As heretofore stated the parties were disposing of business assets and they had treated the policies as business assets. The offer was in conflict with the rule against admission of parol evidence to vary the terms of a written contract. Defendants also contend that there was error in the refusal of evidence that the omission of provision for disposition of the insurance policies was because of a mutual mistake of the parties. Mrs. Ryan was permitted to testify that the insurance policies were not mentioned or considered in the negotiations of settlement. There was no evidence of a mutual mistake of fact and no offer of evidence to establish a mutuality of mistake. There was no plea for reformation of the settlement contract because of a mutual mistake. The trial court did not err in refusing to admit the suggested testimony. Affirmed.

137 F.3d 1420 98 Cal. Daily Op. Serv. 1704, 98 Daily JournalD.A.R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner,v.UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. No. 97-70139. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, CA, for petitioner. Peter Giannini, Los Angeles, CA, for real party in interest, Malone. Petition for Writ of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, currently incarcerated in California, is under sentence of death both in that state and in Missouri. His federal habeas petition in California is in its initial stages. By contrast, habeas review of Malone's Missouri conviction and sentence is almost complete; the Eighth Circuit has the case under submission. Because Malone's Missouri execution date may be imminent, the governor of Missouri made a formal request to the governor of California asking that Malone be released into Missouri's custody. See Uniform Criminal Extradition Act, Cal.Penal Code §§ 1547-1556.2 and Mo.Rev.Stat. §§ 548.011-548.300. The governor of California agreed and the two entered into an executive agreement providing for Malone's extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and also sought a stay from the district court with jurisdiction over his California-based habeas petition. The district court granted the requested relief; it entered an order staying the extradition unless certain conditions were met (most notably, that Missouri submit to the district court's jurisdiction). In its petition for a writ of mandamus California seeks to have that ruling reversed. 2 Mandamus is not to be used as a substitute for an appeal: "[A] court of appeals has no occasion to engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983). See also Calderon v. United States Dist. Court, 134 F.3d 981, 983-84 (9th Cir.1998) (mandamus not available when petitioner could have filed direct appeal); Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983) (same); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) (same). The district court's order was not a final judgment, so the state could not have appealed it under 28 U.S.C. § 1291. But was it the kind of interlocutory order that could have been appealed as of right pursuant to 28 U.S.C. § 1292? 3 Under 28 U.S.C. § 1292(a)(1) interlocutory injunctions are immediately appealable.1 That the district court here did not label its order an injunction is not dispositive. In determining whether an order is appealable under section 1292(a)(1), we consider the substantial effect of the order. See Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir.1981) (looking not to form of district court's order but to its actual effect); Santana Prods., Inc. v. Compression Polymers, Inc., 8 F.3d 152, 154 (3rd Cir.1993) (same); Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir.1990) (same); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2962 (2d ed.1995) (same). 4 At Malone's request, the district court entered an order prohibiting California from turning him over to Missouri. Were the state to ignore the order and release Malone into Missouri's custody, it could surely be brought before the district court to answer contempt charges. This order thus restrains a party, on penalty of contempt, from taking an action that it could otherwise take. We have no trouble concluding that the order is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).2 5 Because California could have obtained review of the district court's order through an ordinary appeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U.S. 500, 508 n. 4, 99 S.Ct. 2445, 2449 n. 4, 61 L.Ed.2d 30 (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198-99 (9th Cir.1981). But it did not.3 The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While we harbor serious doubts about the district court's order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 Section 1292(a) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998) 2 Because the order is not explicitly labeled an injunction, it is arguable that the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), would have had to have been satisfied before an immediate appeal could have been taken. Carson held that, to be appealable under section 1292(a)(1), a district court ruling must (1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the only effective way to challenge it. Id. at 84, 101 S.Ct. at 996-97. Carson involved an order denying relief; it is unclear whether Carson also applies when the order in question grants injunctive relief. For the reasons explained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1466-67 (3rd Cir.1989), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determine the appealability of orders granting relief, see e.g., Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987), and other times not, see e.g., United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1441 (9th Cir.1994). Here it doesn't matter. We have already held that the first Carson requirement is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) 3 The time to file a notice of appeal expired on January 26, 1997; the state filed its petition on February 12, 1997

141 S.E.2d 632 (1965) 264 N.C. 401 George W. JONES, Employee, v. MYRTLE DESK COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier. No. 690. Supreme Court of North Carolina. May 5, 1965. *633 C. T. Kennedy, Thomasville, and Haworth, Riggs, Kuhn & Haworth, High Point, for plaintiff. Lovelace & Hardin, High Point, for defendants. PER CURIAM. Counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. These contentions have been fully considered in our review of the record. However, we find nothing which justifies a remand of the cause or a reversal of the judgment below. Review in Supreme Court is limited to questions of law and legal inference. The findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. The record in this case contains competent supporting evidence for each finding of fact. The findings are positive and cover all crucial facts upon which the right to compensation depends. The facts found support the conclusion that plaintiff's injury did not arise out of and in the course of his employment with defendant employer. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680. Affirmed.

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, 2011 Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER Before KELLY, HARTZ, and HOLMES, Circuit Judges. This matter is before the court on consideration of Appellant’s petition for panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we GRANT Appellant’s petition for panel rehearing. The previous Order Denying Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11- 2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate of Appealability is substituted in its place. Entered for the Court, ELISABETH A. SHUMAKER, Clerk  FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 19, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before KELLY, HARTZ, and HOLMES, Circuit Judges. Petitioner Richard Kirby, a former New Mexico state prisoner proceeding pro se, 1 seeks a Certificate of Appealability (“COA”) to appeal the district court’s * This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Kirby is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). denial of: (1) his 28 U.S.C. § 2254 habeas petition; (2) his “Petition for Coram Nobis,” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which the district court construed as a second or successive § 2254 habeas petition. Mr. Kirby also seeks to challenge the district court’s refusal to expand the record or grant an evidentiary hearing below. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Kirby’s request for a COA on all claims and dismiss his appeal. BACKGROUND Mr. Kirby was convicted by jury in state court of fraud over $250. 2 His conviction was “based on evidence that [he] hired Loren Collett to design a website for him, and then failed to pay Mr. Collett.” R., Vol. I, at 25 (State Ct. Mem. Op., filed May 10, 2005). More specifically, as described by the federal magistrate judge in this case: 2 The New Mexico fraud statute in effect when Mr. Kirby was indicted and convicted read, in part: “Whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($250) but not more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-16-6 (1987); see also R., Vol. I, at 35 (State v. Kirby, 161 P.3d 883, 884 (N.M. 2007)) (“Defendant was charged with one count of fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M. Stat. Ann. § 30-16-6 (1987))). The statute was amended in 2006. Under the amended fraud provision, fraud over $250 but less than $500 is a misdemeanor, while fraud over $500 but less than $2,500 is a fourth degree felony. See N.M. Stat. Ann. § 30-16-6 (2006). 3  Kirby owned a small business. He hired the victim, Loren Collett, to design and develop a website and the two entered into a website design contract under which Kirby was to pay Collett $1,890 for his design services. Collett provided the designs and incorporated them into Kirby’s website, but Kirby did not pay him. When Collett allegedly changed the password to prevent Kirby from utilizing the designs, Kirby, who claims he was the “designated administrator” of the website, had the web space provider reset the password thereby blocking Collett’s attempts to secure the designs pending payment for services. Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended Disposition, filed Nov. 4, 2010). The New Mexico district court sentenced Mr. Kirby to eighteen months’ incarceration, followed by one year of supervised release. The conviction and sentence were ultimately affirmed by the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information asserting that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18- 17B, and therefore his sentence should be increased by four years as required by that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a noncapital felony in this state . . . who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge . . . is a habitual offender and his basic sentence shall be increased by four years.”). The trial court agreed and issued an amended judgment, which added four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence. Mr. Kirby then appealed the sentence enhancement. 4  In September 2008, while the sentence appeal was pending in state court, Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Mexico. In December 2009, Mr. Kirby filed a “Petition for Coram Nobis” with the federal district court, which both informed the court that the state courts had rejected his sentence appeal and asserted several challenges to the sentence enhancement. 3 “[A]s of August 19, 2010, Kirby had completed both the original and enhanced sentences, as well as the period of parole associated with the fraud conviction.” R., Vol. I, at 869. In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the law,” id. at 873; (2) his due-process rights were violated because “the New Mexico fraud statute is vague as applied to him,” id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id. at 881; (4) there was insufficient evidence adduced at trial to demonstrate “that someone other than [Mr. Kirby] owned the website,” a required element under the state fraud statute, id. at 882–83; (5) the restitution award issued against him was impermissible, id. at 883–84; (6) his “due process rights were violated by the 3 The State initially sought dismissal of the habeas application on the ground that Mr. Kirby’s appeal of the sentence enhancement was still pending, and thus his available state-court remedies had not been exhausted. However, Mr. Kirby’s petition for coram nobis established that his sentence enhancement had become final with the New Mexico Supreme Court, which satisfied the exhaustion requirement. 5 prosecution’s failure to disclose that a fact witness, Rob Narvaez, would also be called upon as an expert to give testimony as to the value of the web page work,” id. at 884; (7) his trial counsel was ineffective, id. at 885–86; (8) the trial court impermissibly limited the testimony of two defense witnesses, id. at 886; (9) there was insufficient evidence adduced at trial “to show that the website had a market value of over $250,” id. at 887–88; and (10) “his conviction violates due process principles because a fraud conviction cannot be based on unfulfilled promises or statements as to future events,” id. at 888. Mr. Kirby also raised several challenges to the habitual-offender sentence enhancement, and requested that the district court expand the record. Adopting the recommendations of the magistrate judge, the district court first held that Mr. Kirby’s challenges to the sentence enhancement—raised in his petition for coram nobis, “which the [district court] construe[d] as a supplement[al] [habeas] pleading,” id. at 867—were moot because he had completed his sentence and probation and had not demonstrated any collateral consequences flowing from the enhancement. The district court also rejected all of Mr. Kirby’s challenges to his conviction and original sentence, refused to permit an expansion of the record, and dismissed the initial habeas petition with prejudice and his supplemental habeas petition (i.e., the coram-nobis petition regarding the sentence enhancement) without prejudice. The district court declined to grant Mr. Kirby a COA. 6  Mr. Kirby then filed a Rule 59(e) motion, which essentially reargued several of the issues that had been previously raised and rejected in the federal habeas proceedings. The district court concluded that “Kirby’s motion constitutes a second or successive petition,” and dismissed it for lack of jurisdiction because the petition had not been authorized by this court under 28 U.S.C. § 2244(b). Id. at 946 (Mem. Op. & Order, filed Mar. 25, 2011). Mr. Kirby now seeks a COA to appeal the district court’s denial of his § 2254 habeas petition, his supplemental § 2254 habeas pleading (i.e., his coram- nobis petition), and his Rule 59(e) motion. Mr. Kirby also seeks to challenge the district court’s refusal to expand the record or grant an evidentiary hearing. In total, he raises nine challenges on appeal: (1) the district court erred in denying Mr. Kirby’s Rule 59(e) motion; (2) the evidence failed to conform to the unopposed jury instructions; (3) his conviction violates his due-process rights because it involved an unforeseeable interpretation of the state fraud statute; (4) his due-process rights were violated because the state fraud statute is vague as applied to him; (5) there was insufficient evidence produced at trial to demonstrate that someone other than Mr. Kirby owned the website; (6) there was insufficient evidence produced at trial to demonstrate that the website had a value in excess of $250; (7) his conviction should be vacated because a fraud conviction cannot be predicated on unfulfilled promises; (8) the district court erred in holding that the challenges to his sentence enhancement were moot; and (9) the 7 district court erred in refusing to expand the record or hold an evidentiary hearing. Each issue is addressed in turn. DISCUSSION I. Standard of Review A COA is a jurisdictional prerequisite to this court’s review of a habeas application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). We will issue a COA only if the applicant “makes a ‘substantial showing of the denial of a constitutional right.’” Clark, 468 F.3d at 713 (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show ‘that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Put differently, “the applicant must show that the district court’s resolution of the constitutional claim was either ‘debatable or wrong.’” Id. (quoting Slack, 529 U.S. at 484). Furthermore, when the district court denies relief to an applicant “on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling.’” 8 Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484). To the extent that the state court decided Mr. Kirby’s claims on the merits, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies, and we must incorporate AEDPA’s “deferential treatment of state court decisions . . . into our consideration of [Mr. Kirby’s] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, Mr. Kirby is entitled to federal habeas relief only if he can show that the state court’s adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); accord Phillips v. Workman, 604 F.3d 1202, 1209 (10th Cir. 2010). When making our determination, “[w]e presume the factual findings of the state court are correct unless the petitioner rebuts that presumption by ‘clear and convincing evidence.’” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011) (quoting 28 U.S.C. § 2254(e)(1)). II. Dismissal of Rule 59(e) Motion for Lack of Jurisdiction Mr. Kirby’s first issue asks “[w]hether the district court’s characterization 9 of [his] timely Rule 59(e) Motion . . . as a successive petition” and the court’s consequent dismissal of his motion for lack of jurisdiction constitute error. Aplt. Combined Opening Br. & Appl. for COA at 4 [hereinafter Aplt. Combined Br.]. To the extent that Mr. Kirby is challenging the district court’s characterization of his Rule 59(e) motion as a second or successive petition, his position is untenable. Mr. Kirby’s motion plainly reargues the issues presented to and rejected by the district court in the habeas proceeding. Cf. United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (stating that “a purported Rule 60(b) motion that ‘in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction’ is actually a second or successive habeas petition” (quoting Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006))). Furthermore, it is well-settled that “[a] district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim until this court has granted the required authorization [under§ 2244(b)],” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008), and it is undisputed that Mr. Kirby did not seek (or obtain) such authorization. Consequently, the district court did not err in dismissing the successive petition for lack of jurisdiction. Reasonable jurists could not disagree with this outcome. III. Jury Instructions and Law of the Case Mr. Kirby frames his second issue in the following manner: Whether the unopposed jury instruction “This website belonged 10  to someone other than the defendant” became an element of the case and formed the law of the case[,] and because the only evidence presented at trial on the status of the ownership of the website was from the alleged victim stating “Mr. Kirby was the owner and administrator”, the conviction must be vacated? Aplt. Combined Br. at 5. To the extent that Mr. Kirby is raising a sufficiency-of-the-evidence challenge regarding whether someone other that Mr. Kirby owned the website—a required element of the fraud charge—we address that contention in Part VI infra. However, insofar as Mr. Kirby is bringing a challenge related to the jury instructions or the law-of-the-case doctrine, he did not raise these issues before the district court. Generally, we “will not consider an issue raised for the first time on appeal.” Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993). Mr. Kirby’s failure to argue for application of the plain-error standard in this instance “surely marks the end of the road for [this] argument for reversal not first presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). 4 IV. Due Process—Fair Warning Under Mr. Kirby’s next claim, he argues that his due-process rights were violated because he was not given fair warning of the statute’s scope. As the 4 In fact, Mr. Kirby raises several arguments for the first time on appeal, and nowhere in his briefing before this court does he assert that the plain- error standard should apply to these claims. Accordingly, as discussed throughout this Order, all of Mr. Kirby’s late-blooming challenges are clearly waived. 11 district court framed it, “Kirby attacks his state-court fraud conviction on the grounds that he was convicted of a new and novel principle of law in violation of due process that neither the statute nor any prior judicial decision has fairly disclosed to be within the statute’s scope.” R., Vol. I, at 916 (Mem. Op. & Order Adopting Magistrate Judge’s Proposed Findings & Recommended Disposition, filed Dec. 30, 2010) (internal quotation marks omitted). “This ‘novel principle,’ according to Kirby, is the principle that the designer of web pages may be found to be the owner of the website on which they are displayed.” Id.; see Aplt. Combined Br. at 11 (arguing that he was not given “fair warning . . . in language a person of ordinary intelligence would [understand] that a webpage designer would own the website they designed the pages for”). Mr. Kirby presented this challenge in his state post-conviction proceedings. The New Mexico Supreme Court—“having considering [Mr. Kirby’s] petition, and being sufficiently advised [on the matter]”—denied his due-process challenge. R., Vol. I, at 94 (Order, dated Aug. 8, 2008). Applying AEDPA deference, the district court (adopting the magistrate judge’s recommendation) held that the New Mexico Supreme Court’s adjudication of this claim was neither contrary to nor an unreasonable application of Supreme Court precedent. 5 Id. at 5 The magistrate judge concluded, and the district court agreed, that “[t]he New Mexico Supreme Court’s disposition of Kirby’s state habeas petition, though summary, qualifies as a disposition on the merits and is therefore entitled to deferential review.” R., Vol. I, at 876 (citing Aycox v. Lytle, 196 F.3d 1174, (continued...) 12 879, 919. Before this court, Mr. Kirby has utterly failed to demonstrate that he is entitled to relief—that is, he has not shown “that reasonable jurists would find the district court’s assessment of the [due process] claim[] debatable or wrong.” Slack, 529 U.S. at 484. In his combined brief, Mr. Kirby spends three pages laying out what he deems to be the applicable legal framework for his due-process challenge, citing the holdings of both the Supreme Court and the Tenth Circuit. However, he does not even attempt to explain why he is entitled to relief under that framework, and he makes no effort to specifically discuss the district court’s resolution of this claim, much less explain how reasonable jurists could debate the correctness of that resolution. This is insufficient to carry his burden. Specifically, Mr. Kirby’s conclusory assertion that his due-process rights were violated—without any factual foundation or legal analysis to support his claim—does not entitle him to relief. See, e.g., Walker v. Gibson, 228 F.3d 1217, 5 (...continued) 1177–78 (10th Cir. 1999)). In Aycox, we noted that “a summary decision . . . can constitute an ‘adjudication on the merits’ for purposes of § 2254(d), provided that the decision was reached on substantive rather than procedural grounds.” 196 F.3d at 1177. This is particularly true where “[t]here is no evidence . . . that the state court did not consider and reach the merits of [the petitioner’s] claim.” Id. In this case, the New Mexico Supreme Court’s explicitly stated that it had “considered” and “be[en] sufficiently advised [on]” the issue before denying it, R., Vol. I, at 94, and there is no indication that the denial was based on procedural grounds. Furthermore, Mr. Kirby does not object to the district court’s characterization of the New Mexico Supreme Court’s decision. Accordingly, the district court properly applied AEDPA’s deferential standard of review to this claim. 13 1240 (10th Cir. 2000) (stating that “unsupported and undeveloped [habeas] issues” do not entitle a petitioner to relief (quoting Moore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir. 1999)) (internal quotation marks omitted)), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001). Accordingly, he is not entitled to a COA on this issue. V. Due Process—Vagueness Mr. Kirby brings a second, related due-process challenge, arguing that the fraud statute is vague as applied to him. More specifically, he argues that the statute is void for vagueness because neither the statute nor any prior judicial decision put him on notice that his actions—i.e., preventing Mr. Collett from accessing the web pages he created and copyrighted—were subject to criminal liability. The district court, accepting the magistrate judge’s recommendation, held that Mr. Kirby was not entitled to habeas relief on this claim. “Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” R., Vol. I, at 880 (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)) (internal quotation marks omitted). The district court concluded that the fraud statute—providing that “[f]raud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations,” N.M. Stat. Ann. § 30- 14 16-6—was not unconstitutionally vague as applied to Mr. Kirby because “[a] person of ordinary intelligence would understand that the designer of the web pages has an ownership interest in the website on which the pages are displayed,” R., Vol. I, at 880. Thus, “[e]ven if Kirby owned the domain name and the webspace, Collett owned the designs and the copyright to the pages displayed on the website,” and “[b]y blocking Collett from accessing the website before paying him for the designs, Kirby should have known that his conduct was at risk for criminal liability.” Id. at 880–81. Reasonable jurists could not disagree with this outcome. Mr. Kirby first argues that the decision of the New Mexico Supreme Court, and the recommendation of the federal magistrate judge, were based on a factual error—viz., “the fallacious premise that [he] had barred access to Collett.” Aplt. Combined Br. at 15. The district court considered and rejected this argument. Reasonable jurists could not debate the correctness of this resolution. 6 Assuming, arguendo, that the factual determination that Mr. Kirby excluded or barred Mr. 6 The district court apparently viewed Mr. Kirby’s factual-error challenge as part and parcel of his request to expand the record. However, we are constrained to disagree. Before the district court, Mr. Kirby raised his factual- error argument in the context of his objections to the magistrate judge’s recommendation. See R., Vol. I, at 890. The argument was not necessarily a component of his request for leave to expand the record. Moreover, in seeking a COA from this court, Mr. Kirby is quite clear that the factual-error argument is part of his vagueness challenge. Although we do not view the factual-error issue as falling under the umbrella of Mr. Kirby’s request to expand the record, as noted above, we conclude that the district court’s ultimate resolution of the challenge could not be debated by reasonable jurists. 15 Collett was incorrect, Mr. Kirby would still not be entitled to relief because that determination was not “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Section 2254(d)(2) does not instruct federal courts to determine whether the state court made a correct determination, but rather whether the state court made an unreasonable determination. In this case, Mr. Collett stated that “the password [was] changed from what [he] had changed it to,” and he “did [not] know what the password had been changed to.” Dist. Ct. Doc. 37-2 at 57 (Aug. 13, 2010). He further stated that the change “kept [him] from removing all the files [he] had created,” and that he could “no longer access it” because Mr. Kirby “had taken control of the website.” Id. Thus, based on this testimony, it cannot be said that the factual determination that Mr. Kirby excluded or barred Mr. Collett was unreasonable. The district court correctly rejected Mr. Kirby’s factual-error argument. As to the legal merits of the vagueness challenge, we conclude that Mr. Kirby is not entitled to a COA on this issue. Our holding is based on substantially the same grounds as articulated by the magistrate judge and adopted by the district court. In order to succeed under this challenge, Mr. Kirby was required to demonstrate that the New Mexico fraud statute failed to give him “fair warning, at the time of [his] conduct . . . , that the act for which [he] now stand[s] convicted was rendered criminal by the statute.” Bouie v. City of Columbia, 378 U.S. 347, 355 (1964). His challenge can “be overcome . . . [if] reasonable 16 persons would know that their conduct is at risk” under the statute. Maynard, 486 U.S. at 361. As the magistrate judge correctly concluded, and the district court recognized, “[a] person of ordinary intelligence would understand that the designer of the web pages has an ownership interest in the website on which the pages are displayed,” R., Vol. I, at 880—especially when the designer has not been paid for that design work. Therefore, “[b]y blocking Collett from accessing the website before paying him for the designs, Kirby should have known that his conduct was at risk for criminal liability.” Id. at 880–81. Reasonable jurists could not disagree with this outcome. Mr. Kirby argues, as he did before the district court, that “there is a need for [the] court to locate a published decision[] with fundamentally similar facts[,] prior to Kirby’s actions[,] to be able to [overcome] the vagueness challenge [and thereby] allow affirmation of Kirby’s conviction.” Aplt. Combined Br. at 17 (emphasis added). Contrary to Mr. Kirby’s assertion, however, this statement does not reflect the Supreme Court’s (or Tenth Circuit’s) vagueness jurisprudence. It appears, as the district court noted, that Mr. Kirby may be confusing the vagueness doctrine with the doctrine of qualified immunity. To defeat a claim of qualified immunity, a plaintiff must demonstrate that the constitutional right allegedly violated “was clearly established at the time of the alleged unlawful activity,” Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1199 (10th Cir. 2009); “[o]rdinarily, in order for the law to be clearly 17 established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains,” Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (emphasis added), overruled in part by Williams v. City & Cnty. of Denver, 99 F.3d 1009 (10th Cir. 1996). The law of qualified immunity, however, has no bearing on whether Mr. Kirby has successfully asserted a vagueness challenge. Accordingly, this argument is unavailing. 7 Mr. Kirby is not entitled to a COA on this claim. VI. Sufficiency of the Evidence—Ownership of the Website Mr. Kirby next argues that there was insufficient evidence to support his conviction. More specifically, he argues there was not “any evidence, much less substantial evidence, produced at trial [to demonstrate] that someone other than [Mr. Kirby] owned the website.” Aplt. Combined Br. at 18. 8 In assessing a 7 Mr. Kirby also briefly argues that we should apply the rule of lenity in this case and construe the fraud statute in his favor. First, it appears that Mr. Kirby is raising the rule-of-lenity argument for the first time on appeal. Thus, it is waived. See supra note 4 and accompanying text. In any event, “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what [the legislature] intended.” Barber v. Thomas, 130 S. Ct. 2499, 2508–09 (2010) (citations omitted) (internal quotation marks omitted). It cannot be said in this case that there is “grievous ambiguity or uncertainty in the statute.” Id. at 2508. Thus, this argument is unpersuasive. 8 As the magistrate judge explained: The jury was instructed that to find Kirby guilty of fraud, the (continued...) 18 sufficiency-of-the-evidence challenge, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The New Mexico Supreme Court reviewed this claim under the Jackson standard and held that “a rational jury could have concluded that Collett owned the website and its contents, and that Kirby had therefore committed fraud by taking property that belonged to someone other than himself.” R., Vol. I, at 883. This holding was based on evidence presented at trial, which included “the contract between Collett and Kirby, testimony that Collett owned the computer programming that made the web pages viewable, and testimony that Kirby changed the password and locked Collett out of access to his copyrighted pages.” Id. The district court, accepting the magistrate judge’s recommendation, concluded that the state court’s “determination was a proper application of Jackson based on the facts of this case,” and thus it was “neither contrary to nor an unreasonable application of federal law.” Id. Reasonable jurists could not 8 (...continued) State had to prove the following three elements beyond a reasonable doubt: (1) Kirby intended to “deceive or cheat” Collett; (2) Kirby had “obtained a website”; and (3) the website belonged to someone other than Kirby. R., Vol. I, at 874 (emphasis added). Mr. Kirby does not contest the sufficiency of the evidence as to the first two enumerated elements. 19 disagree with this conclusion. Before this court, Mr. Kirby’s only argument is that Mr. Collett testified that “Mr. Kirby was the owner and administrator” of the website, and that the state court “did not have the authority to usurp Collett’s testimony that Kirby owned the website.” Aplt. Combined Br. at 19. As the district court correctly pointed out, however, a rational jury could have found that the web pages belonged to Mr. Collett based on the other evidence presented at trial, despite Mr. Collett’s allegedly conflicting statement. See, e.g., McDaniel v. Brown, 130 S. Ct. 665, 673 (2010) (“Jackson requires a reviewing court to review the evidence in the light most favorable to the prosecution. Expressed more fully, this means a reviewing court faced with a record of historical facts that supports conflicting inferences must presume . . . that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” (citations omitted) (internal quotation marks omitted)). Accordingly, this argument is without merit, and Mr. Kirby is not entitled to a COA on this claim. VII. Sufficiency of the Evidence—Value of the Website Mr. Kirby next contends that there was insufficient evidence to demonstrate that the website had a market value of over $250. 9 He first takes issue with the 9 As noted above, the state fraud statute in effect at the time Mr. Kirby was indicted stated that “[w]hoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($250) but not more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.” (continued...) 20 standard of review applied by the district court, which he suggests was an “unreasonable application” of Supreme Court case law. Aplt. Combined Br. at 19. More specifically, he argues that the district court incorrectly analyzed this claim under the Jackson framework when it “should have been resolved by asking whether the . . . error had a substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 19–20 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)) (internal quotation marks omitted). It is well-established that “[t]he controlling standard for insufficient evidence claims asserted by state habeas petitioners was established by the Supreme Court in Jackson v. Virginia.” Johnson v. Mullin, 505 F.3d 1128, 1134 (10th Cir. 2007); accord Schlup v. Delo, 513 U.S. 298, 330 (1995) (stating that, on habeas review, “the standard of Jackson v. Virginia . . . governs review of claims of insufficient evidence”). On the other hand, the standard urged by Mr. Kirby—articulated in Brecht v. Abrahamson—is a harmless-error standard, which is only applied once a reviewing court has determined that a constitutional error has been committed. See, e.g., Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011) (en banc) (“If constitutional error is committed, we look to whether ‘the prejudicial impact of constitutional error in [the] state-court criminal trial’ rises to 9 (...continued) N.M. Stat. Ann. § 30-16-6 (1987) (emphasis added). Thus, the government was required to prove beyond a reasonable doubt that “the value of the property misappropriated” was more than $250. 21 the ‘substantial and injurious effect standard set forth in Brecht v. Abrahamson.” (alteration in original) (emphasis added) (quoting Fry v. Pliler, 551 U.S. 112, 120, 121 n.3 (2007))). Accordingly, Mr. Kirby’s argument regarding the standard of review is without merit. Next, Mr. Kirby argues that there was insufficient evidence to demonstrate that the website had a value of more than $250 because “[t]he record does not support any reference to the value of the website [itself],” but “only deals with suggested value to the work [done] on the web pages.” Aplt. Combined Br. at 20. The state court rejected this argument, “not[ing] that Kirby had agreed to pay Collett $1,890 for designing the web pages and that [a witness] testified [that] the work Collett provided was worth $600 to $700.” R., Vol. I, at 888. The federal district court concluded that Mr. Kirby was not entitled to habeas relief on this claim because, “even if there were no evidence as to the value of the website itself, a rational jury could reasonably infer that the value of the website was at least equal to the value of the design service.” Id. Thus, the state court’s adjudication of the matter was not contrary to nor an unreasonable application of federal law. Reasonable jurists could not disagree with this outcome. Mr. Kirby does not even attempt to undermine the evidence presented regarding the agreement to pay Mr. Collett $1890 or the witness’s $600-to-$700 valuation of the work provided by Mr. Collett. Viewing that evidence in the light most favorable to the government, a rational jury could have concluded that the 22 value of the website was more than $250. Accordingly, Mr. Kirby is not entitled to a COA on this claim. VIII. Fraud Predicated on Promises as to Future Events Mr. Kirby next argues that his conviction should be vacated because a fraud conviction cannot be predicated on unfulfilled promises as to future events—e.g., future payment for website services rendered. The state appellate court found this argument unavailing, noting that although under New Mexico law “an action for fraud will ordinarily not lie as to a pattern of conduct based on promises that future events will take place, . . . there are exceptions to this rule,” and that Mr. Kirby’s actions fell within one of those exceptions recognized under state law. R, Vol. I, at 27. In this federal habeas proceeding, the district court rejected this claim, endorsing the magistrate judge’s conclusion that “the issue was a matter of state law, and not reviewable on habeas.” Id. at 924. Reasonable jurists could not disagree with this outcome. The Supreme Court has made clear that “it is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” id. (alteration in original) (quoting Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)) (internal quotation marks omitted); yet, that is precisely what Mr. Kirby asked the district court to do here. He points to 23 no Supreme Court case law supporting his position. Accordingly, he is not entitled to a COA on this issue. IX. Mootness of Sentence-Enhancement Challenges Mr. Kirby next asserts that the district court erred in dismissing his sentence-enhancement challenges—presented in his supplemental habeas pleading (i.e., coram-nobis petition) 10—as moot. The district court determined that the sentence-enhancement challenges were moot because Mr. Kirby had completed his sentence and had not demonstrated any collateral consequences flowing from the enhancement. Reasonable jurists could not disagree with the district court’s mootness determination. 10 Under our case law, a district court generally “must follow certain procedures before recharacterizing pro se pleadings as claims under §§ 2254 or 2255.” Davis v. Roberts, 425 F.3d 830, 835 (10th Cir. 2005). However, in this case, we see no reason to disturb the district court’s reclassification. First, Mr. Kirby does not argue that the district court was required to follow any such procedures before recharacterizing his petition as a supplemental habeas pleading. Additionally, the rule that courts should not sua sponte convert a pro se pleading into a habeas petition is based “‘largely [on the] concern that a subsequent § 2255 [or § 2254] motion would be considered successive’ and barred under AEDPA except ‘in very limited circumstances.’” United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (quoting United States v. Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000)). Thus, we have generally applied this rule “in cases where the recharacterized petition would have been the petitioner’s first § 2255 [or § 2254] petition,” thereby “prevent[ing] a prisoner from raising a legitimate claim in a subsequent [habeas] petition.” Id. at 1246. In this case, however, the district court did not transform Mr. Kirby’s coram-nobis petition into his first habeas petition. Mr. Kirby had already filed his first § 2254 petition, and the district court was simply supplementing the claims raised in the initial petition with those raised in the supplemental pleading. Therefore, we will not revisit the district court’s conclusion that this petition constituted a supplemental habeas pleading. 24  Habeas claims will become moot upon a petitioner’s release from custody unless the petitioner establishes that “sufficient collateral consequences flow from the underlying judgment and the completed sentence to save the appeal from mootness.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). On appeal, Mr. Kirby does not even attempt to defeat the mootness determination by identifying any collateral consequences of the sentence enhancement. 11 Instead, he argues that his sentence-enhancement challenge is actually a “challenge to the jurisdiction of the state court to enhance [his] sentence,” which “is in fact a challenge to the conviction, not the sentence[] therefore defeating the mootness determination by the district court.” Aplt. Combined Br. at 25. However, by acknowledging that he is indeed challenging “the jurisdiction of the state court to enhance [his] sentence,” id. (emphasis added), Mr. Kirby’s argument defeats itself; it is clear that the focus of his challenge is the sentence enhancement, not the underlying conviction. Accordingly, because Mr. Kirby has failed to demonstrate any collateral consequences flowing from the now-completed term of the sentence enhancement, the district court did not err in dismissing the challenges as moot. See Kirby v. Janecka, 379 F. App’x 781, 784 (10th Cir. 11 Although collateral consequences are generally presumed in the context of a challenge to a petitioner’s conviction, that presumption has not—as the district court noted—been applied in the context of a challenge to a sentence enhancement, nor does Mr. Kirby argue that it should be applied in that context. See, e.g., United States v. Hernandez-Baide, 146 F. App’x 302, 304 (10th Cir. 2005). 25 2010) (holding that the petitioner’s “claim is moot because it challenges only the state court’s enhancement of his already-completed sentence, and [he] has failed to show any continuing collateral consequences stemming from that enhancement”); Lucero v. McKune, 340 F. App’x 442, 444 (10th Cir. 2009) (holding that the petitioner’s release from prison mooted his claim that his sentences were impermissibly increased because he failed to demonstrate collateral consequences associated with his previous incarceration). 12 X. Evidentiary Hearing or Expansion of the Record In his final claim, Mr. Kirby argues that the district court erred in “prohibiting expansion of the record to include evidence discovered and/or provided after trial and denying an evidentiary hearing on the matter.” Aplt. Combined Br. at 22. The sole piece of newly discovered evidence that Mr. Kirby identifies before us in seeking a COA, 13 which he previously sought to present to 12 Mr. Kirby also argues that his sentence enhancement violated the Double Jeopardy Clause of the Fifth Amendment. However, this too is a challenge to the state court’s authority to impose the sentence enhancement; it is not an attack on the underlying conviction. Accordingly, Mr. Kirby’s sentence challenge based upon the Double Jeopardy Clause is likewise moot. 13 Although Mr. Kirby may have sought to present additional evidence to the district court in connection with his request to expand the record or obtain an evidentiary hearing, he only cites to us the GTFS in arguing that the district court erred in refusing to grant relief. Thus, he has abandoned any challenge based on those other pieces of evidence. See, e.g., Tran v. Tr. of State Colleges in Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997))); cf. United States v. (continued...) 26 the district court, was a “Good-Time-Figuring-Sheet (GTFS) that was generated by the [New Mexico Department of Corrections] and obtained by [Mr. Kirby] after the sentence had been enhanced,” which he argues would have supported his “challeng[e] [to] the jurisdiction of the state court to enhance [his] sentence.” Id. at 24. That is, this newly discovered evidence was offered to support one of the sentence-enhancement challenges presented in his supplemental habeas pleading (i.e., coram nobis petition). As discussed above, however, those claims are moot. Consequently, Mr. Kirby’s challenge to the district court’s refusal to admit this newly discovered evidence is likewise moot. Even if this issue were not moot, Mr. Kirby would still not be entitled to relief. Under the Supreme Court’s recent decision in Cullen v. Pinholster, habeas “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” 131 S. Ct. 1388, 1398 (2011). Mr. Kirby’s request to expand the record or to hold an evidentiary hearing seeks to place additional evidence before the federal district court that was not part of the record before the state court. This is no longer permitted under Cullen. Thus, Mr. Kirby is not entitled to an expansion of the record or an evidentiary hearing. See Atkins v. Clarke, 642 F.3d 47, 47 (1st Cir. 2011) (“The Supreme Court’s new 13 (...continued) Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (concluding that the applicant waived his claim on appeal “because he failed to address that claim in either his application for a COA or his brief on appeal”). 27 decision in Cullen v. Pinholster requires that we reject this appeal from a denial of a request for an evidentiary hearing in relation to a petition for habeas corpus.” (citation omitted)); see also Champ v. Zavaras, No. 10-1308, 2011 WL 2411002, at *9–10 (10th Cir. June 16, 2011) (“Mr. Champ’s requests to expand the record and to hold an evidentiary hearing to further develop the record aim to place new evidence before the federal court that was not a part of the state-court record. Under Cullen, this is no longer permitted.”); cf. Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011) (“Under [Cullen], . . . the district court erred by conducting the evidentiary hearing and by relying on evidence from that hearing . . . . Pape’s federal habeas petition . . . must be adjudicated under § 2254(d)(1) and Pape ‘must overcome the limitation of § 2254(d)(1) on the record that was before the state court.’” (quoting Cullen, 131 S. Ct. at 1400)). Accordingly, we can discern no error in the district court’s refusal to authorize the expansion of the record or an evidentiary hearing. CONCLUSION For the reasons set forth above, we DENY Mr. Kirby’s request for a COA on all claims and DISMISS his appeal. ENTERED FOR THE COURT Jerome A. Holmes Circuit Judge 28 

508 F.2d 673 In the Matter of COMPUTER UTILIZATION, INC., Bankrupt.John A. PACE, Appellant,v.COMPUTER UTILIZATION, INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 20, 1975. James F. Menefee, Dallas, Tex., for appellant. Philip I. Palmer, Jr., Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex., for other interested parties. Appeal from the United States District Court for the Northern District of Texas. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges. THORNBERRY, Circuit Judge: 1 Computer Utilization, Inc. (CUI), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to filing, CUI had retained John A. Pace, a Dallas attorney, to handle various collection matters. It is undisputed that prior to filing, Pace had performed a considerable amount of services in the various collection matters, but had not billed CUI for those services. Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter XI petition, CUI did not schedule Pace either as an unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangement based upon the petition on September 16, 1971. 2 In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the arrangement does not discharge his claim. We disagree and affirm the decision below. 3 Pace and CUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered prior to the filing of the petition. As to those services, Pace clearly had a provable claim at the time of filing. The fact that Pace had not yet billed CUI is immaterial. He had already performed the services and CUI had incurred the obligation to pay for them. 11 U.S.C. 35(a) provides '(a) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part . . ..' 11 U.S.C. 35(a)(3) excepts from the discharge provision those debts that 'have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.' 4 The record testimony in the court below makes it clear that Pace cannot claim the benefit of the exception. Pace himself testified that he had actual knowledge of the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U.S.C. 35(a), adoption of the arrangement discharged Pace's claim for services rendered prior to the filing of the petition. 5 As part of his claim, Pace seeks to recover for services rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44. The claim for those services is also barred. Becker v. Stewart, 402 F.2d 500 (5th Cir. 1968); In re HydroCarbon Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert. denied, 396 U.S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Collier Bankruptcy Manual P62.06 (2d Ed. 1974). 6 Pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. He then argues that CUI failed to comply with the notice requirements for discharge of executory contracts under Chapter XI, preventing discharge of his claim. Pace's proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead he sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor is payment. See Stell Mfg. Co. v. Gilbert, 372 F.2d 113 (5th Cir. 1962). 7 Pace worked closely with the bankrupt when CUI instituted the Chapter XI proceedings. He was fully aware of the company's financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own rights. The district court properly denied Pace's claims for attorney's fees, and properly issued the injunction under 11 U.S.C. 35(c)(3). 8 Affirmed.

[Cite as State v. Housley, 2020-Ohio-1143.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF OHIO : : Appellate Case No. 2019-CA-12 Plaintiff-Appellee : : Trial Court Case No. 2016-CR-348 v. : : (Criminal Appeal from TIMOTHY H. HOUSLEY : Common Pleas Court) : Defendant-Appellant : ........... OPINION Rendered on the 27th day of March, 2020. ........... PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellant TIMOTHY HOUSLEY, #A730-882, P.O. Box 209, Orient, Ohio 43146 Defendant-Appellant, Pro Se ............. FROELICH, J.  -2- {¶ 1} Timothy H. Housley appeals from the trial court’s denial of his “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” For the following reasons, the trial court’s judgment will be affirmed. {¶ 2} In October 2016, Housley pled guilty in the Miami County Court of Common Pleas to trafficking in drugs, a second-degree felony, and two counts of possession of drugs, both third-degree felonies. The parties agreed to a five-year sentence, and the State agreed to take no position on judicial release. At sentencing, the trial court imposed five years for Count 1 and 12-month sentences for Counts 2 and 3, to be served concurrently. The court further ordered Housley to pay restitution of $125 and court costs, and it suspended his driver’s license for two years. Housley did not appeal his conviction. {¶ 3} In July 2017, Housley sought judicial release, which was denied. {¶ 4} In December 2017, the State filed an application for the destruction or disposal of evidence seized from Housley by the Troy Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of additional property seized by the police, including a safe. The trial court denied Housley’s motion for lack of jurisdiction. Housley appealed the trial court’s ruling. See State v. Housley, 2d Dist. Miami No. 2018-CA-4, 2018-Ohio- 4140. The outcomes of Housley’s 2018 appeal and a subsequent appeal related to Housley’s motion for return of property are not relevant to this appeal. {¶ 5} On December 14, 2017, Housley moved to withdraw his guilty plea due to ineffective assistance of trial counsel. He claimed that he declined to pursue his motion  -3- to suppress and accepted a five-year plea offer because defense counsel indicated that he would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that his counsel acted deficiently by “coercing and allowing [him] to plead guilty” because (1) he was illegally detained by the Troy Police Department, which would have been raised at the scheduled suppression hearing, (2) the charges in the information were void, (3) he did not help prepare, ship or traffic hashish, liquid hashish and/or marijuana, (4) the State lacked probable cause to arrest him on the charges to which he pled, and (5) defense counsel did not inform Housley that the drugs could be reanalyzed. Housley asserted that counsel did not provide him complete discovery and that he (Housley) was innocent of the charges. Housley also argued that the State violated the plea agreement when it objected to Housley’s motion for judicial release.1 {¶ 6} In April 2018, the trial court denied Housley’s motion to withdraw his plea. Housley did not appeal the trial court’s ruling. {¶ 7} On March 7, 2019, Housley filed a “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” Housley emphasized that the State acknowledged in its appellate brief in Case No. 2018-CA-4 that Housley was a visitor at the home that was searched and where drugs were found that brought about the charges in this case (2016-CR-348). Housley argued that the information was exculpatory, that the State had violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclose it, and that the State’s actions divested the trial court of 1 The State’s response to Housley’s motion for judicial release was filed after the trial court denied Housley’s motion. Shortly after the filing of Housley’s motion to withdraw his plea, the State withdrew its response to Housley’s motion for judicial release and indicated that the State had no position on any future motion for judicial release filed by Housley.  -4- subject matter jurisdiction. Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that he did not reside at the residence and that Housley had not established ownership and possession of the safe and computers at issue. {¶ 8} The State opposed Housley’s motion to vacate, construing the motion as a petition for postconviction relief. The State asserted that it fully complied with Brady, that Housley’s petition was untimely, and that his claim of newly exculpatory evidence was “blatantly false.” Housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief or a Civ.R. 60(B) motion. He again asserted that the State’s Brady and discovery violation was a jurisdictional defect. {¶ 9} The trial court denied Housley’s motion, concluding that it had subject matter jurisdiction over Housley’s criminal case for drug trafficking and possession of drugs. The court noted that the “primary issue raised by Defendant is that his constitutional rights were violated by the State because he was a mere visitor in the house of the co- defendant, and the State withheld this exculpatory information from him.” The court found that Housley’s claim fell with R.C. 2953.21, governing petitions for postconviction relief, although Housley insisted that he was not seeking relief under that statute. The court concluded that such a claim would be untimely and that Housley’s being a visitor to the house was not exculpatory as residency was not an element of the charges to which he pled guilty. {¶ 10} Housley appeals from the trial court’s ruling, raising arguments similar to those in his motion to vacate. {¶ 11} As an initial matter, we find no error with the trial court’s conclusion that it  -5- had subject matter jurisdiction over Housley’s criminal case. “Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdiction over all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article IV, Section 4(B). {¶ 12} Pursuant to R.C. 2931.03, a court of common pleas “has original jurisdiction of all crimes and offenses, except in the case of minor offenses * * *.” See, e.g., State ex rel. Kerr v. Pollex, Ohio Slip Opinion No. 2020-Ohio-411, __ N.E.3d __, ¶ 7 (common pleas court had subject matter jurisdiction, pursuant to R.C. 2931.03, over defendant’s criminal case for forgery and tampering with evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131 N.E.3d 1, ¶ 8 (common pleas court has subject matter jurisdiction over felony cases). {¶ 13} Housley originally was indicted on two counts of trafficking in drugs, illegal manufacture of drugs, and two counts of possession of drugs, all felonies. He subsequently pled guilty to amended charges of trafficking in drugs and two counts of possession, as charged by information. All of the charges fell within the subject matter jurisdiction of the Miami County Court of Common Pleas. {¶ 14} In general, where a trial court “erred in the exercise of its jurisdiction” but “did not act without jurisdiction,” the resulting judgment is voidable rather than void. Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 15. Housley asserts that the judgment in his case is void due to the actions of the State, specifically  -6- the prosecution’s failure to disclose all required evidence and the police’s allegedly unlawful behavior in detaining him and interviewing him. While, under some circumstances, the actions of the State may subject a conviction to collateral attack in a postconviction proceeding, the State’s alleged conduct in this case did not deprive the trial court of subject matter jurisdiction. {¶ 15} Housley further claims that the trial court should not have reviewed his motion as a petition for postconviction relief, as he did not seek relief under R.C. 2953.21 or Civ.R. 60(B). The nature of a motion is not necessarily governed by its title. When a motion is filed subsequent to a direct appeal (or the expiration of time for filing a direct appeal), claims the denial of constitutional rights, seeks to render the judgment of conviction void, and asks for vacation of the judgment and sentence, the motion is properly construed as a petition for postconviction relief. See, e.g., State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997); State v. Cline, 2d Dist. Champaign No. 2013 CA 51, 2014-Ohio-4503, ¶ 7. Housley’s motion, although titled as a motion to vacate a void judgment, met the criteria for a petition for postconviction relief. The trial court did not err in construing his motion as such. {¶ 16} Pursuant to R.C. 2953.21(A)(2), Housley was required to file a petition for postconviction relief “no later than three hundred sixty-five days after the expiration of the time for filing the [direct] appeal.” Housley was convicted on November 30, 2016, and he did not appeal. He therefore was required to file his petition for postconviction relief by December 30, 2017, absent an excuse for his untimeliness under R.C. 2953.23. Housley filed his motion to vacate on March 7, 2019, well beyond the deadline for filing a petition for postconviction relief.  -7- {¶ 17} Housley asserts, albeit under a Brady argument, that he recently learned that the State knew him to be a visitor to the residence where drugs were found. However, whether Housley was a visitor or, instead, a resident of the home was within Housley’s knowledge at the time of his conviction. Such information was not newly discovered. Accordingly, Housley has not provided a basis to excuse the untimeliness of his petition/motion. {¶ 18} Moreover, even if we were to consider Housley’s argument that the State withheld discovery and Brady material when it allegedly failed to inform him that it knew that he was a visitor, we would find no merit to Housley’s claim. {¶ 19} Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.2d 125, ¶ 24, citing Brady at 87. In order to establish a Brady violation, the defendant must demonstrate that (1) the prosecution failed to disclose evidence upon request; (2) the evidence was favorable to the defendant; and (3) the evidence was material. State v. Wade, 2d Dist. Clark No. 06-CA-108, 2007-Ohio-6611, ¶ 12. Evidence suppressed by the State “shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” State v. Aldridge, 120 Ohio App.3d 122, 145, 697 N.E.2d 228 (2d Dist.1997), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus. {¶ 20} “The rule in Brady only applies to evidence unknown to the defendant at the  -8- time of the trial.” State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625, ¶ 17. {¶ 21} Here, Housley has not demonstrated a Brady or discovery violation by the State. The page of the State’s appellate brief upon which Housley relies simply noted that Housley had argued that he was a visitor at the residence; the State did not concede that he was a visitor or cite to evidence establishing where Housley lived. And, Housley has not identified any evidence that was withheld by the State, either related to his residency or otherwise. Moreover, as stated above, whether Housley was or was not a visitor, rather than a resident, was within Housley’s knowledge at the time of his arrest and throughout his case. Accordingly, even considering Housley’s motion on the merits, Housley has not demonstrated that a Brady or discovery violation occurred to warrant the vacation of his conviction. {¶ 22} The trial court’s judgment will be affirmed. ............. HALL, J. and WELBAUM, J., concur. Copies sent to: Paul M. Watkins Timothy Housley Hon. Jeannine N. Pratt 

T.C. Memo. 2008-272 UNITED STATES TAX COURT HOWARD & REBECCA PATE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10006-07. Filed December 9, 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, Judge: Respondent determined deficiencies of $16,339 and $19,409 in petitioners’ Federal income taxes for 2003 and 2004, respectively. Respondent also determined penalties under section 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues for decision are: (1) Whether the Pate Association and Pate Joint Venture are disregarded for Federal  - 2 - tax purposes and their income for the years in issue is attributed to petitioners; (2) whether petitioners are liable for self-employment tax; (3) whether petitioners are entitled to any deductions beyond those conceded by respondent; and (4) whether petitioners are liable for the penalties under section 6662(a). Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Petitioners resided in Texas at the time that they filed their petition. During 2003 and 2004, petitioner Howard W. Pate (Mr. Pate) conducted a business as a pipeline inspector and consultant. Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko). Anadarko reported nonemployee compensation on Forms 1099-MISC, Miscellaneous Income, that it issued to Mr. Pate for those years. The amounts received by Mr. Pate and reported as nonemployee compensation were $98,200 for 2003 and $107,065 for 2004. During 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full time as a school teacher for the Bryan Independent School District in Bryan, Texas. Petitioners had two young children living at home during the years in issue.  - 3 - Petitioners owned approximately 52 acres of land in Bryan, Texas. By the end of 2004, petitioners maintained no more than 30 cows on the property. They did not sell any cows or calves during 2003 or 2004. Petitioners did not maintain books and records of their cattle activity or any record showing profit and loss from that activity. Mr. Pate was away from home on business much of the time, leaving Ms. Pate and their children to feed the cattle. Petitioners’ cattle activity was not conducted in a businesslike manner and was not operated with an actual and honest profit objective. Petitioners filed Forms 1040, U.S. Individual Income Tax Return, for 2003 and 2004. The amounts paid to Mr. Pate in relation to his business, $98,200 for 2003 and $107,065 for 2004, were initially set out as gross income on Schedules C, Profit or Loss From Business. Petitioners, however, reduced these gross income amounts to zero by claiming “other expenses” of equal amounts. Petitioners supposedly validated these Schedule C expenses by noting that the business was “pass thru” and a “Form 1099 issued to above taxpayer ID# are properly reported” for 2003 “on Schedule E, page 2. Joint Venture” and for 2004 “on Form 1120 S”. The gross income set out on each Schedule C was therefore not included in the computation of taxable income. The 2003 Schedule E, Supplemental Income and Loss, reflected a much smaller amount of income, $49,820, than that set out on  - 4 - Schedule C, $98,200. Petitioners reported that this income had been earned by the “Pate Joint Venture”. Petitioners filed the 2004 Form 1120S, U.S. Income Tax Return for an S Corporation, for a so-called Pate Association that used the same address as petitioners’ residence. The Form 1120S reported gross receipts of $107,289, claimed cost of goods sold of $15,594 and business deductions of $63,959, and reported net business income of $27,736. The Pate Association and Pate Joint Venture were concepts that, in Mr. Pate’s words, “put all of our stuff under one and so we could file everything as one to make it easy for us to file our income tax.” Mr. Pate did not know whether the Pate Association and Pate Joint Venture were one and the same or two separate entities. These two concepts, which had no purpose other than to reduce petitioners’ Federal income taxes, had been suggested by Richard Ohendalski, a certified public accountant (C.P.A.) associated with the Legacy Group. Employees of the Legacy Group prepared petitioners’ income tax returns for 2003 and 2004. As a result of the manner in which their Federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self-employment tax due on Mr. Pate’s business profit. In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and  - 5 - the nature of the specific items claimed were not disclosed on petitioners’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible business expenses. Only the following amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs $309 Utilities and phone 1,809 Automobile 18,948 Dues & fees 216 Legal/accounting 425 2004 Automobile 21,890 Telephone 904 OPINION A taxpayer has the right to elect a business form to minimize or altogether avoid the incidence of taxation by any means that the law permits. See Gregory v. Helvering, 293 U.S. 465, 469 (1935). While a taxpayer is free to adopt a corporate or partnership form of doing business, the entity must have been organized for a substantial business purpose or actually engage in substantive income-producing activity in order to be recognized as a separate taxable entity. See Commissioner v. Culbertson, 337 U.S. 733, 743 (1949); Moline Props., Inc. v. Commissioner, 319 U.S. 436, 439 (1943). The Government, however, is not required to simply accept a taxpayer’s election of business form where that form is unreal. Higgins v. Smith, 308  - 6 - U.S. 473, 477 (1940). Instead, the Government should disregard such an entity, as any other result would allow the schemes of the taxpayer to supersede the law. Id. Mr. Pate testified and petitioners do not deny that they adopted their tax-reporting methodology solely for tax reasons. The so-called Pate Association and Pate Joint Venture had no business purpose. They merely supported a methodology designed to avoid reporting and paying Federal income tax and self- employment tax on Mr. Pate’s earnings during the years in issue and to allow the amounts and the nature of particular expenses to be concealed. Petitioners could not provide credible evidence that the Pate Association and Pate Joint Venture were viable entities separate from petitioners for Federal tax purposes. Because these “entities” have no economic substance and separate legal existence, the income in issue is attributed to petitioners and subject to Federal income tax. With respect to their liability for self-employment taxes, petitioners’ brief asserts the following frivolous position: Self-employment tax In the notice of deficiency respondent seeks to assert self-employment tax. Self-employment taxes are imposed only upon the operations of a “trade or business”. “Trade or business” is defined in the Internal Revenue Code as “...the performance of the functions of a public office.” See IRC 7701(a)(26). Self-employment tax also depends upon the definition of “trade or business” as in IRC 162. IRC section 162 makes no changes to the code wide definition in section 7701 as applies to petitioner.  - 7 - Section 7701(a)(26) provides that, for purposes of the Internal Revenue Code, “The term `trade or business’ includes the performance of the functions of a public office.” Frivolous arguments based on converting the term “includes” in a section of title 26 to “includes only” have been soundly rejected. See United States v. Ward, 833 F.2d 1538, 1539 (11th Cir. 1987); United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985). Petitioners’ argument is patently fallacious and deserves no further consideration. See Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984). Petitioners are liable for self-employment tax on the net income of Mr. Pate’s business as a pipeline inspector and consultant. See generally secs. 1401(a), 1402(b); sec. 1.1402(a)-1, Income Tax Regs. Although copies of various receipts and schedules were marked as exhibits at trial, petitioners did not provide any testimony or otherwise explain the amounts claimed as deductions that were not substantiated to the satisfaction of respondent. Respondent did not stipulate that the exhibits established that petitioners incurred expenses in the conduct of the trade or business or with the intention of making a profit or that they reflected ordinary and necessary business expenses. The documents are not self-proving and, to the extent that they are legible, include many items that are not deductible. They are not reliable evidence of deductibility. It is impossible to tell  - 8 - from the record which items supported the deductions respondent agreed to. The parties dispute whether petitioners’ cattle activity was engaged in for profit and whether expenses related to it would be deductible under section 162. Petitioners’ brief makes several factual arguments that are not supported by the evidence. The limited evidence in the record is to the effect that petitioners did not conduct the activity in a manner demonstrating an actual and honest profit objective. See sec. 1.183-2(a), Income Tax Regs. We need not conduct a detailed analysis of the factors, however, because petitioners have not identified or explained on their tax returns or during their testimony the items in dispute that they claim related to the cattle activity. Petitioners have not presented any testimony or evidence that they are entitled to deductions beyond those respondent conceded, and they have failed to satisfy their burden of proving that they are entitled to deductions. See sec. 7491(a)(2); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Hradesky v. Commissioner, 65 T.C. 87 (1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976). Section 6662(a) provides a penalty in an amount equal to 20 percent of the portion of an underpayment which is attributable to various factors, including negligence, disregard of rules or regulations, or any substantial understatement of income tax. See sec. 6662(b)(1) and (2). Respondent has the burden of  - 9 - production with respect to any penalty. See sec. 7491(c). The evidence produced establishes erroneous tax return reporting and improper deductions resulting in a substantial understatement of income tax. Although petitioners claim to have relied upon the advice of a C.P.A. in adopting their filing methodology, they did not present evidence of what information they gave the return preparers or what advice the accountant gave them before filing the returns for the years in issue. See Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 100 (2000), affd. 299 F.3d 221 (3d Cir. 2002). They have failed to identify any reasonable basis for the methodology or any other ground for reducing the understatement of tax subject to the penalty. See sec. 6662(d)(2)(B). The penalties are appropriate and will be sustained. We have considered the other arguments of the parties, and they are either without merit or need not be addressed in view of our resolution of the issues. To reflect respondent’s concessions, Decision will be entered under Rule 155. 

915 F.2d 1559 Adnan International Marketing, Inc., Adnan, Inc., ManheimBMW, Inc., t/a Manheim Motorsv.Hamilton Bank, Manheim National Bank, Seese (Ronald),Lenhart (Raymond), Marks (Merrit), Kauffman (James),Dimariano (Gary), Light (Ronald E.), a/k/a Light (Ronald),Blatz (John), a/k/a Blatz (John W.), John W. Blatz, Inc. NO. 90-1286 United States Court of Appeals,Third Circuit. SEP 12, 1990 Appeal From: E.D.Pa., Reed, J. 1 AFFIRMED.

576 So.2d 666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d/b/a B & P Used Motors. Civ. 7845. Court of Civil Appeals of Alabama. February 6, 1991. *667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a hearing in which the employee, Jimmy Hastings, was awarded workmen's compensation benefits, he moved for an amended judgment, requesting double compensation pursuant to § 25-5-8(e), Code 1975. That code section provides: "Penalties for failure to secure payment of compensation; injunctions. — Any employer required to secure ... compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $25 nor more than $1,000. In addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that awarded the employee benefits made no finding concerning whether the employer had failed to secure workmen's compensation insurance. However, upon the employee's motion to amend the final judgment, the court entered the following order: "The claim for the penalty under the aforesaid code section [§ 25-5-8(e)] was not made a part of the plaintiff's complaint and was not litigated on trial of this cause. Further, there is no evidence before the court of whether the defendants have opted to be self-insurers, under sub-paragraph (b) of the aforesaid code section, as they have the right to do." This court has previously determined that the double award penalty provision of § 25-5-8(e), Code 1975, is mandatory. Rush v. Heflin, 411 So.2d 1295 (Ala.Civ. App.1982). In fact, this court specifically noted in Rush that "there is no legal right to relief from a penalty which is required to be imposed by law." Further, because the code section was found to be valid, this court held that "it had to be applied by the trial court." Rush at 1296. However, the trial court in this case refused to impose the penalty for two reasons. First, the trial court determined that no claim for the penalty was made as a part of the employee's complaint and that the issue was not litigated. Second, the trial court found that no evidence was presented concerning whether the employer had elected to be a self-insurer. (Such an election, if proven, would have removed the employer from the application of the penalty provision. § 25-5-8(b), Code 1975.) Concerning the trial court's finding that no claim for the penalty was made or litigated, we note the following. The employee's complaint requested such benefits as he was entitled to pursuant to the workmen's compensation laws of Alabama. Further, the court is bound to grant whatever relief is appropriate in a case based on *668 the facts proved, regardless of whether the complaint specifically demanded such relief. Rule 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 So.2d 517 (Ala.1985). The following testimony was given by Pat Hancock, the employer's wife, who worked as a clerical employee of the employer: "MR. BAKER: When Mr. Hastings was hurt, you went to the hospital in Fort Payne and guaranteed his hospital bill, did you not? "MRS. HANCOCK: Yes, sir. "MR. BAKER: Did you tell them it was workmen's compensation? "MRS. HANCOCK: No, sir, because we didn't have workmen's comp. "MR. BAKER: You did not have any workmen's comp. coverage at the time of this injury? "MRS. HANCOCK: No, sir." ". . . "MR. MCGEE (employer's lawyer): Did you, in fact, make arrangements at the hospital for the medical bills? "MRS. HANCOCK: Yes, sir. ". . . "MR. MCGEE: Why did you do that? "MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured that it was because he had got hurt on our property, it was our responsibility." From this testimony, we find that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that the employee failed to specifically request this relief in his complaint. Johnson. In short, because the employer had no workmen's compensation insurance as required by law, the penalty was due to be imposed. Rush. However, we must now examine whether the trial court's second legal conclusion correctly prevented the employee from recovering the double benefits penalty. We recognize that the provisions of § 25-5-8 do not set out who has the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously addressed by the appellate courts of this state. However, because proof of self-insurance would prevent an employer from having to pay the double penalty provision, we find that establishing such proof should properly be the employer's burden. In Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930), our supreme court was confronted with the question of who had the burden of proof with regard to establishing the number of employees regularly employed by an employer. In that situation, the court noted that because the code section concerning the number of employees operated to remove the employer from having to comply with workmen's compensation laws, "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners, 220 Ala. at 566, 126 So. at 629 (citation omitted). Similarly, proof of self-insurance in this case would remove the employer from having to comply with the workmen's compensation laws, and we find that "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners. Our examination of the record discloses that the employer in this case failed to offer any evidence tending to establish that he was self-insured. In fact, all of the testimony previously referred to indicates just the opposite. Likewise, we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen's compensation act because he did not have enough employees; however, the court found otherwise. The employer made no contention that he was exempt from the workmen's compensation laws due to his having been authorized by the director of industrial relations to operate as a self-insurer. Consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25-5-8(e). This case is reversed and remanded with directions that the trial court enter a judgment consistent with this opinion. *669 REVERSED AND REMANDED WITH DIRECTIONS. THIGPEN and RUSSELL, JJ., concur.

695 S.W.2d 954 (1985) STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant. Supreme Court of Tennessee, at Jackson. August 12, 1985. *956 James V. Ball, Arch B. Boyd, III, Memphis, for appellant. W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., for appellee. OPINION HARBISON, Justice. Appellant was convicted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence. In the late afternoon of April 21, 1982, appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was at that time not quite 23 years of age. He and two other youths had been "cruising" in an automobile belonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. Leaving his aunt's parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellant returned to the automobile as did the only one of his companions who had left it. The other had remained in the driver's seat. The three were seen leaving the area at a high speed. A witness was able to furnish some description of appellant and the 15-year-old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on *957 the license plate. The automobile was discovered by police the next day and identified as belonging to appellant's aunt. It was not until November, some seven months later, in connection with an unrelated criminal incident, that police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant a few days later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and killed Mr. Allen but contending that the shooting was accidental, rather than intentional. The 15-year-old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. He later indicated to another relative that Lipscomb could have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted robbery was appellant's own idea. He also testified that he had left the automobile after appellant, and that appellant accosted Mr. Allen some distance away. Lipscomb denied being present at the shooting, but testified that he heard two shots. He said that appellant then came running back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then shot him twice. Appellant was taller than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw the youths running from the area where Mr. Allen had fallen. Appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury-out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb and to the police that he had shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Ella Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of Lipscomb and appellant's statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support their verdict, and appellant's attack upon the sufficiency of the convicting evidence is without merit. Similarly without substance is the contention of appellant that the State's evidence fails to show premeditation and malice. Murder in the first degree is defined in T.C.A. § 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S.W.2d 854, 860-861 (Tenn. 1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). In this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from "killing" to "murder" by 1977 Tenn. Pub. Acts ch. 51, § 1, had the effect of abolishing the felony-murder rule. We do not so construe the statute and did not do so in Johnson, supra, in which the homicide occurred in 1980. Appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. The trial judge, however, held a full pre-trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. As previously *958 indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen's death and would so inform the police. At the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's statement contains the words "aggravated assault" rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen was being investigated. We find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr. Allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. In his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the Tennessee statute authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this Court. We therefore see no need to examine these assignments in detail but will briefly mention some of them. Appellant insists that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the State. This contention was rejected in Houston v. State, 593 S.W.2d 267 (Tenn. 1980), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. Further, Rule 12.3(b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. Also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S.W.2d 738, 742 (Tenn. 1981). Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat those discussions here. Appellant has advanced a five-part challenge to the felony-murder rule in cases involving murder in the first degree. These contentions were considered in State v. Sheffield, 676 S.W.2d 542, 551 (Tenn. 1984), where identical arguments were considered and rejected. Many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or abettor. Appellant has assigned as error the failure of the trial judge to permit individual examination of prospective jurors. There is no contention made in this case that any reversible error occurred during the lengthy jury examination. Further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was in fact permitted. This matter lay within the discretion of the trial judge, and we find no abuse of that discretion. See State v. Workman, 667 S.W.2d 44, 49 (Tenn. 1984). In two assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys undertook to remove *959 a book from counsel table and to refer to it. The book had reference to techniques in creating a reasonable doubt in the defense of criminal trials. The trial judge sustained a portion of the objections of defense counsel, and the remaining argument of the prosecutor was clearly directed toward rebuttal of the contention of counsel for appellant that reasonable doubt had been created in this case. Indeed the principal thrust of the closing argument of counsel for the defendant was insufficiency of evidence and reasonable doubt in a number of respects, and the prosecutor was clearly entitled to respond to these contentions. In our opinion, taken in context, nothing which occurred in connection with this incident could possibly have affected the results of the trial. In his final issue on appeal, counsel for appellant urges that the trial court committed reversible error in charging one of the statutory aggravating circumstances pertaining to an escape or an attempt to escape from lawful arrest or prosecution. The State had not insisted upon this circumstance, but at the conclusion of all of the evidence, the trial judge felt that this issue was raised by the evidence sufficiently to warrant an instruction. Whether or not the trial judge was correct in this regard, the jury did not find that the appellant had committed the homicide under circumstances falling within the parameter of that statute. Accordingly it did not impose the death penalty under that aggravating circumstance or find that appellant was guilty thereof. The issue is therefore probably moot. The trial judge objected significantly to the procedure outlined by this Court in previous decisions,[1] requiring the trial judge to charge the jury only on those aggravating and mitigating circumstances fairly raised by the evidence. He felt that a different procedure was preferable, but finally did undertake to emphasize those which the parties contended were applicable or which the court felt had been fairly raised. There was evidence contained both in appellant's signed statement and in the testimony that the victim of the homicide in the present case, Mr. Allen, had resisted appellant's attempt to rob him and had "tussled" with him. Indeed it was the primary insistence of appellant that the shooting was accidental and was the result of this struggle. It is basic statutory law in this state that a private person may arrest another for an offense committed in the presence of the arresting individual, or for a felony not committed in his presence. A private person may also arrest when a felony has been committed and he only has reasonable cause to believe that the arrested person committed it. See T.C.A. §§ 40-7-109(a)(1), (2), (3). A private person may even break into the dwelling house of an individual who has committed a felony after giving proper notice of his intention to make the arrest. T.C.A. § 40-7-112. While the evidence in this case was brief, there was proof from which a trier of fact might have found that Mr. Allen did attempt to confine or apprehend his assailant. The charge given, therefore, was not without foundation in the record, and reversible error was not committed in permitting the jury to consider it. Since the jurors did not base their sentence on this circumstance, however, we need not consider the preponderance or weight of the evidence on the point. The only aggravating circumstance found by the jurors, and the one on which the death penalty was based, was that the appellant committed the murder while engaging or attempting to engage in a robbery. T.C.A. § 39-2-203(i)(7). The evidence overwhelmingly establishes the guilt of appellant in this respect. In State *960 v. Prichett, 621 S.W.2d 127, 140-141 (Tenn. 1981), the Court held that the death penalty could properly be imposed under this aggravating circumstance even though "the felony of robbery may have been used by the jury to establish that the murder was murder in the first degree... ." We adhere to that holding, and are of the opinion that the "underlying felony" may be used as an aggravating circumstance at the sentencing phase of the trial. In this case there is hardly any suggestion of mitigating factors which could possibly outweigh the outrageous and totally antisocial behavior of the accused in committing this shocking homicide. The jurors were certainly not obligated to accept appellant's contention that the shooting was accidental. It was, under a clearly legitimate view of the evidence, a deliberate shooting and an attempt to remove the identity of a possible prosecuting witness, after a planned attempt at the robbery of an elderly, innocent person. It is indeed difficult, if not impossible, to explain away two fatal shots as being accidental and unintentional. This elderly victim was left by his robber on the street to die without any attempt to render aid or assistance. The accused was nearly 23 years of age. He had a criminal record, but this was not introduced before the jury. He saw fit not to take the stand at either the guilt or the sentencing phases of his trial. He was afforded a full and fair trial, and there is nothing to indicate any mitigating circumstances which could have outweighed the clearly aggravating circumstance which was proved and which was found by the jury. It is, of course, part of the duty of this Court under the applicable statutory provisions to review a death sentence and to determine whether it was imposed in any arbitrary fashion. The Court is also required to determine whether the evidence supports the jury's finding of an aggravating circumstance and its finding of the absence of any mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances. The Court is also required to determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. T.C.A. § 39-2-205(c). We have examined the record and the briefs and arguments of counsel with these provisions before us. We are of the opinion that the death penalty was justified in this case, and that its imposition was neither arbitrary nor disproportionate. In several other cases the death penalty has been approved where the homicide occurred during the perpetration of an armed robbery. See State v. Harries, 657 S.W.2d 414 (Tenn. 1983); State v. Johnson, 632 S.W.2d 542 (Tenn. 1982); State v. Coleman, 619 S.W. 112 (Tenn. 1981); Houston v. State, 593 S.W.2d 267 (Tenn. 1980). Numerous other cases could be cited, but we think that the foregoing sufficiently illustrate the proposition that a deliberate, wanton murder committed during the course of or in an attempt to commit an armed robbery is sufficient to warrant the death penalty where the jury finds no mitigating circumstances whatever. The judgment of conviction and the sentence are affirmed. Unless stayed or otherwise ordered by proper authority, the sentence will be carried out as provided by law on October 18, 1985. Costs are taxed to appellant. COOPER, C.J., and FONES and DROWOTA, JJ., concur. BROCK, J., files a dissent. BROCK, Justice, dissenting. I concur in the opinion of the Court in all respects except the imposition of the death penalty. With respect to the imposition of the death penalty, I adhere to the views expressed in my dissenting opinion in State v. Dicks, Tenn., 615 S.W.2d 126 (1981). NOTES [1] E.g., State v. Buck, 670 S.W.2d 600, 608 (Tenn. 1984).

758 F.2d 649 U.S.v.Masters 81-6657 United States Court of Appeals,Fourth Circuit. 3/7/85 1 D.S.C. AFFIRMED

Order entered April 12, 2016 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00963-CR CORNELIUS TURNER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-52355-M ORDER The Court GRANTS appellant’s April 11, 2016 motion to extend time to file his brief. We ORDER appellant’s brief filed as of the date of this order. /s/ LANA MYERS JUSTICE 

11 Cal.App.2d 357 (1936) H. B. RASMUSSEN, Respondent, v. FRESNO TRACTION COMPANY (a Corporation) et al., Appellants. Civ. No. 1745. California Court of Appeals. Fourth Appellate District. January 21, 1936. W. H. Stammer, Everts, Ewing, Wild & Everts, A. W. Carlson and Richard H. Reeve for Appellants. David E. Peckinpah and Harold M. Child for Respondent. Barnard, P. J. This is a motion to dismiss the appeal or affirm the judgment. [1] We have frequently held that such a motion should not be granted where it appears, after examination of the opening brief and the papers filed in support of the motion, that the case cannot be decided without examining the entire record. (Brown v. Gow, 126 Cal.App. 113 [14 PaCal.2d 322]; Ross v. Mahoney, 134 Cal.App. 199 [25 PaCal.2d 268]; Barr v. Hall, 9 Cal.App.2d 426 [49 PaCal.2d 1124].) At least two of the points raised on this appeal could not be decided without a complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he goes outside of the opening brief and the moving papers and presents matters which require a study of the entire record. An examination of the opening brief and the moving papers indicates that the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the assistance of the respondent. The motion is denied. Marks, J., and Jennings, J., concurred.

37 F.3d 477 UNITED STATES of America, Plaintiff-Appellee,v.Samuel William DONAGHE, Defendant-Appellant. No. 93-30058. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1993.Decided Sept. 30, 1994. Sheryl Gordon McCloud, Seattle, WA, for defendant-appellant. Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before: BROWNING, NORRIS, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. 2 * On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. Sec. 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors--he had been convicted of four such offenses previously--the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office. 3 On March 8, 1990, the district court revoked Donaghe's probation pursuant to 18 U.S.C. Sec. 3563 because he had violated conditions of probation. Specifically, Donaghe had possessed a firearm, failed to inform the Probation Office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, again under pre-Guidelines law. 4 On appeal, this court vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, 925 F.2d 284 (9th Cir.1991). United States v. Donaghe, No. 92-30183, 978 F.2d 716 (Table), 1992 WL 317200, 1992 U.S.App. LEXIS 29342 (9th Cir. Sept. 15, 1992). At resentencing on January 22, 1993, the district court adopted the Presentence Report ("PSR") that calculated Donaghe's criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0-6 months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. II 5 When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court not to depart from the Guidelines based on Donaghe's conduct during probation. Instead, we stated that "[i]f the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. It may consider Donaghe's probation-violating conduct for its effect on the weighing of those departure factors." Donaghe, 1992 WL 317200, at * 1, LEXIS 29342, at * 3. 6 We relied on White to reach this conclusion. In that case, this court held that for resentencing under 18 U.S.C. Sec. 3565,1 the district court could not use probation conduct to "directly increase a sentence." White, 925 F.2d at 286. The court stated that the district court could depart from the Guidelines range, "provided that facts warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completely irrelevant to sentencing under Sec. 3565(b)2.... [T]he sentencing court can consider the conduct in determining whether to depart from the initial guideline range.... In other words, the court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant's subsequent actions." Id. 7 The Guidelines provide two means of departing upward from a sentence range: adjusting the criminal history category when the Guidelines do not adequately reflect the seriousness of the offender's past conduct or the likelihood that he or she will commit other crimes, under U.S.S.G. Sec. 4A1.3, p.s., and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the Guidelines, according to U.S.S.G. Sec. 5K2.0, p.s. 8 In evaluating these adjustments, the reviewing court does "not search the record for permissible reasons for departure; instead, [it] analyze[s] the reasons actually given by the district court." United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir.1990). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that "were known to the Court at the time of the original sentence and would have justified an upward departure." First, Donaghe had been convicted between 1967 and 1973 of several sex-related crimes involving minors. Second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality with pedophilia." For the upward departure to be valid, all these factors must be proper bases for departure. Id. (If the district court "considered both proper and improper bases for departure, 'we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors,' and must therefore vacate the sentence and remand for resentencing") (citation omitted). 9 * As a basis for its departure, the district court relied on its determination that Donaghe's criminal history category inadequately reflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(e)(1), (3). The Guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(d)(2), (3). Donaghe's misconduct occurred fifteen years prior to the initial sentencing. 10 However, the commentary to section 4A1.2 creates an exception for sentences imposed outside these time periods where the court finds "evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G. Sec. 4A1.2, comment. (n. 8). If the misconduct meets this description, "the court may consider this information in determining whether an upward departure is warranted." Id. 11 * Donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. The government has the burden of demonstrating that such similarity exists. United States v. Starr, 971 F.2d 357, 362 (9th Cir.1992). The government argues that the crimes are similar because Donaghe was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were "inextricably linked." 12 The government's argument must fail. Although there may be a causal link between Donaghe's tendency toward sexually abusing children and the false application--because of his criminal behavior, he was in trouble and wanted to flee the country--this does not make the two crimes similar. The government's reasoning does not comport with this court's understanding of similarity, which requires a much closer likeness. For instance, in Starr, we held that possession of stolen property and embezzlement were similar to bank robbery, because all were "crimes of theft." 971 F.2d at 362. We did not require "[i]nquiry into the specific facts of the prior convictions." Id. And, in United States v. Cota-Guerrero, 907 F.2d 87 (9th Cir.1990), we concluded that past convictions for assault with a deadly weapon and assault and battery were similar to possession of a firearm by a felon because "they show a propensity toward violence and a willingness to use force." Id. at 89. As in Starr, we did not examine the particular facts surrounding each crime but instead concentrated on their general characteristics. 13 Child molestation and passport fraud have no characteristics in common. Unlike the crimes in Starr and Cota-Guerrero, they cannot be categorized together as crimes of fraud or of violence. They are linked only by the specific circumstances of this case, a factor not viewed as relevant. The crimes, thus, are not similar under the section 4A1.2 commentary. 2 14 The commentary to section 4A1.2 also creates an exception for serious dissimilar past crimes. Donaghe argues that this part of the commentary is not applicable to his case because it was introduced by amendment effective November 1, 1992 and his original sentencing occurred on November 21, 1988. We agree. 15 The amendment to the commentary of section 4A1.2 has been designated a clarifying change. U.S.S.G.App. C n. 472. Normally, when an amendment is deemed clarifying rather than substantive, it is applied retroactively. U.S.S.G. Sec. 1B1.11(b)(2). However, it will not be applied retroactively when, as here, it would violate the ex post facto clause. United States v. Smallwood, 35 F.3d 414, 417-18, n. 8 (9th Cir.1994). Thus, the 1992 amendment to the commentary to section 4A1.2 does not apply. 3 16 Section 4A1.3 also allows a court to depart because the criminal history category does not adequately reflect the likelihood that the offender will commit other crimes. The PSR improperly included Donaghe's 1968 diagnosis as a homosexual deviant as a factor for departure. Homosexuality is no longer categorized as a psychiatric disorder. Diagnostic and Statistical Manual of Mental Disorders (1987) (DSM-III-R). Further, the fact that someone is a homosexual is not indicative of his or her propensity to commit crimes. See Beam v. Paskett, 3 F.3d 1301, 1310 (9th Cir.1993) ("It goes without saying that society has abandoned its earlier belief that homosexuality presents a danger to the community."), cert. denied, --- U.S. ----, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994). 17 Although the PSR's notation that Donaghe was also diagnosed as an untreatable pedophile might be a reason for believing that he will commit other crimes, the court did not make factual findings supporting the existence of this factor, United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc), other than to mention the outdated psychiatric report. Since it is not at all clear from the PSR that the twenty-five year old psychiatric evaluation is still valid or that a pedophile is likely to continue to molest children, the court's limited factual findings do not support the diagnosis as a basis for departure. 18 The district court also identified a January 1992 psychological evaluation, which concluded that Donaghe may continue his criminal behavior. Since this evaluation was not available as a factor at the initial sentencing, it cannot be a departure factor. B 19 The district court also based its departure on its determination that Donaghe's offense level was inadequate. Section 5K2.0 provides for adjusting an offense level if the offense involves "factors in addition to those identified that have not been given adequate consideration by the Commission," or "if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate." U.S.S.G. Sec. 5K2.0, p.s. The pending criminal investigation of Donaghe for possible sexual misconduct with his nephew was a fact available at the initial sentencing and was a departure factor listed in the PSR. The government argues that the incident of passport fraud was atypical, because Donaghe's motive was to escape possible prosecution for sexual misconduct. The government contends that this justifies an upward departure in the offense level. 20 There is no mention in the Guidelines that the Sentencing Commission considered the reasons why a person might want to obtain a false passport. However, the version of section 5K2.0 in effect in November 1988 stated that "[h]arms identified as a possible basis for departure from the guidelines should be taken into account only when they are relevant to the offense of conviction." U.S.S.G.App. C n. 358. Intending to use the false passport for the purpose of escaping criminal prosecution is not an element of the crime of making a false statement in a passport application. See 18 U.S.C. Sec. 1542. Since Donaghe's reason for wanting a fake passport is not relevant to the offense of falsifying the application, that reason could not be a basis for increasing the offense level in 1988. See, e.g., United States v. Cervantes Lucatero, 889 F.2d 916, 917 & n. 1 (9th Cir.1989) (holding upward departure inappropriate where it was based on district court's determination that offender's reason for entering United States illegally was not to seek work and help his family but to "live off the land" and "violate its laws"). 21 The district court also identified as a factor supporting an increase in offense level the fact that "Judge Ingram in the original sentence imposed a special condition that he not be around minor children.... And the conduct for which Donaghe stands having committed on the revocation are all directly related to that conduct in the original sentence." The fact that Donaghe violated this probation condition was not available at the initial sentencing and so cannot be a departure factor. C 22 Because all of the factors considered by the district court were improper bases for departure, we must vacate the sentence and remand for resentencing. Montenegro-Rojo, 908 F.2d at 428. At resentencing, the district court must not base its departure on Donaghe's diagnosis as a homosexual, the similarity between passport fraud and sexual misconduct, Donaghe's prior molestation convictions or any of Donaghe's conduct during probation. III 23 Donaghe argues that the departure from a sentencing range of 0 to 6 months to a sentence of 60 months was unreasonable. A district court abuses its discretion in departing upward if it "gave no reason or justification for the extent of its departure." United States v. Beck, 992 F.2d 1008, 1009 (9th Cir.1993). The district court must make an "effort to tie the departure to the Guidelines," through a "reasoned explanation of the extent of the departure founded on the structure, standards and policies of the Act and Guidelines." United States v. Ramirez-Jiminez, 967 F.2d 1321, 1329 (9th Cir.1992) (quoting Lira-Barraza, 941 F.2d at 745). This is generally accomplished, in a case of inadequate criminal history, by "analog[izing] to higher criminal history categories." Beck, 992 F.2d at 1109. "Ordinarily, the court should determine whether a defendant's actual criminal history most closely resembles the next higher criminal history category before concluding that the defendant's record is so severe that comparison to a higher category is warranted." Starr, 971 F.2d at 363. 24 The district court here made no attempt to explain the extent of the departure when it adopted the recommendations of the PSR. The PSR calculated the new offense level of 24 (resulting in a sentencing range of 51 to 63 months) by adding to Donaghe's original level four offense a ten level increase for the two rape convictions, a five level increase for the solicitation to commit assault conviction, a three level increase for possession of a firearm, and a two level increase for his attempted solicitation of assault. These numbers appear to have been chosen at random; the report does not explain any rationale behind them. Neither does the report attempt to analogize Donaghe's supposedly unusual offense or inadequate criminal history to the next highest level or category. 25 Finally, the PSR conflates departures in offense level and in criminal history category. As explained above, some of the departure factors identified in the PSR are the type that might support an increased criminal history category, while others are the kind that might support a higher offense level. But the report increases only Donaghe's offense level and does not explain upon which of the factors it relies. It cannot rely on all the factors because some, like the prior convictions, could possibly support only a higher criminal history category. 26 We vacate the sentence and remand because the district court abused its discretion by not adequately explaining the extent of the departure. At resentencing, the district court must explain the extent of its departure by analogizing the increased criminal history category or offense level to the next relevant category or offense level.3 IV 27 Donaghe argues that the district court improperly ordered his sentence to run consecutively with his state law sentences for the probation-violating crimes. He points to the current language of section 5G1.3(b), providing for concurrent sentences. However, since we apply the Guidelines effective on the date of sentencing, United States v. Warren, 980 F.2d 1300, 1304 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 397, 126 L.Ed.2d 344 (1993), we must apply the version of section 5G1.3(b) in force in November 1988. 28 The version of section 5G1.3 effective in November 1988 stated, "[i]f at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences." U.S.S.C.App. C n. 289. Donaghe was serving a state sentence when the district court ordered consecutive sentences. Thus, applying the 1988 version to Donaghe's situation, the district court's imposition of consecutive sentences was appropriate.4 V 29 Donaghe argues that the district court cannot impose a period of supervised release on resentencing after probation revocation. His claim is not persuasive because the authorities he cites address resentencing after the revocation of supervised release. See 18 U.S.C. Sec. 3583; United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990). 30 However, the controlling statute for resentencing after probation revocation is 18 U.S.C. Sec. 3565. The court in Behnezhad emphasized the difference between sections 3583 and 3565. After concluding that section 3583 did not allow a new term of supervised release, the court explained that section 3565 allowed for "greater flexibility to create terms of punishment for violations of probation." 907 F.2d at 899. "[W]hen a court revokes probation, it has the flexibility to structure a new sentence that may include probation, incarceration, fines and supervised release." Id. Therefore, the court did not err in imposing a three year term of supervised release. VI 31 Donaghe requests that the panel remand the case to a new judge. In United States v. Arnett, 628 F.2d 1162 (9th Cir.1979), the court stated that the relevant factors for making this decision are "(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness." Id. at 1165 (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc)). 32 The Ninth Circuit has remanded under the first factor when the error was created by the judge. United States v. Larios, 640 F.2d 938, 943-44 (9th Cir.1981); United States v. Doe, 655 F.2d 920, 928-29 (9th Cir.1980). Here, Judge Tanner erred in identifying factors supporting departure that were not available at the initial sentencing. Also, he adopted the PSR's sentence recommendation, which relied on Donaghe's probation-violating conduct to justify an extreme upward departure, without explaining what "new light [the conduct] sheds on where to sentence within the original Guidelines range or whether or how much to depart." Donaghe, 1992 WL 317200, at * 1, 1992 U.S.App. LEXIS 29342, at * 3. 33 Although Judge Tanner created the error, there is no significant showing that he was biased against Donaghe. Reassignment to a new judge is not necessary to preserve the appearance of justice. VII 34 Because all of the departure factors identified by the district court were improper, we vacate the sentence and remand. Also, the district court's failure to explain the extent of the departure requires us to remand. However, the imposition of three years supervised release and consecutive sentences was proper. 35 AFFIRMED in part, REVERSED in part, VACATED and REMANDED. 1 This statute provides that on resentencing after probation revocation, the district court must impose "any other sentence that was available ... at the time of the initial sentencing." 18 U.S.C. Secs. 3565(a) and 3565(b) 2 Although the facts in White involved probation revocation under Sec. 3565(b), the court explained that Sec. 3565(a) used the same language, and so the case's analysis applied to both sections. Id. at 286 n. 1 3 Donaghe argues that on remand the Revocation Table of U.S.S.G. Sec. 7B1.4 should control resentencing. This table establishes sentencing ranges by taking account of criminal history categories and probation-violating conduct. However, in United States v. Dixon, 952 F.2d 260 (9th Cir.1991), the Ninth Circuit held that this section contradicted 18 U.S.C. Sec. 3565(a). Section 3565(a) requires the court to impose a sentence that was "available ... at the time of the initial sentencing," while the Revocation Table "require[s] courts to impose sentences that, in many cases, were not 'available' at the time of initial sentencing." Id. at 261. To the extent that the Guidelines conflicted with the statute, the court found them invalid. Id. at 260. Therefore, the district court should not be guided by the Revocation Table at resentencing 4 The government argues that U.S.S.G. Sec. 7B1.3(f), p.s. governs this question. However, in November 1988, that section did not exist

Case: 11-41328 Document: 00512042106 Page: 1 Date Filed: 11/02/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 2, 2012 No. 11-41328 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTEMIO LOMAS Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-770-2 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* A jury convicted Artemio Lomas of one count of conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession with intent to distribute 100 kilograms or more of marijuana in violation of § 841(a)(1), (b)(1)(B). The district court sentenced Lomas to three concurrent terms of 151 months in prison. Lomas argues for the first time on appeal that the district * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-41328 Document: 00512042106 Page: 2 Date Filed: 11/02/2012 No. 11-41328 court erred in calculating the drug quantity attributable to him under the Sentencing Guidelines by using the gross weight rather than the net weight. Because Lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011); United States v. Sparks, 2 F.3d 574, 589 (5th Cir. 1993). Simply put, Lomas has not demonstrated that the court used the gross weight rather than the net weight. Neither the trial testimony nor the presentence report (PSR) referenced either gross weight or net weight. Furthermore, the district court was entitled to rely on the jury’s finding that Lomas conspired to possess with intent to distribute 1000 kilograms or more of marijuana and Lomas’s admission that the facts in the PSR were correct. See United States v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005); United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). In light of the trial testimony, the jury’s finding, and Lomas’s admission, Lomas has not show that the district court committed any error, and certainly not clear or obvious error, when it relied on the drug quantity indicated in the PSR. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). AFFIRMED. 2 

978 A.2d 6 (2009) 2009 VT 48 STATE of Vermont v. Timothy MUMLEY. No. 08-114. Supreme Court of Vermont. May 8, 2009. *7 Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. Kenney, South Burlington, for Defendant-Appellant. *8 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. Defendant Timothy Mumley appeals from a jury conviction for attempted kidnapping in violation of 13 V.S.A. §§ 9, 2405(a)(1)(D). Defendant argues that the Chittenden District Court committed reversible error when it denied his motion to suppress statements he made to police while in custody. We agree, and reverse. ¶ 2. Defendant's conviction arises from an incident that occurred on October 20, 2006. On that date, defendant allegedly tried to pull a woman into his pickup truck while she was pushing her child in a stroller on a Winooski sidewalk. Defendant was arrested and taken to the Winooski Police Department, where he was questioned by a detective in an interrogation room. The entire interrogation was video-recorded. ¶ 3. Prior to questioning defendant, the detective warned defendant of his privilege against self-incrimination and his right to counsel as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 13 V.S.A. § 5234. He read defendant his warnings one-by-one, from a Miranda-waiver form. The form listed each of the Miranda rights followed by the question "Do you understand?" and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied "yes" to each of these questions. The detective recorded defendant's replies on the form. ¶ 4. Underneath the Miranda-rights portion of the form was the title "Waiver," and the following paragraph: I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive them and talk with you now. I understand that I am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning. Under this paragraph was a space for the date and time and a space for a signature or "time of taping." ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: "I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive ...." The detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred: Detective: Do you want to talk to me? Defendant: What about? Detective: Ah, what, ah ... you can talk to me, you can tell me to pound sand. You know, those are your rights, okay? Now, it doesn't affect them one way or the other. What I'm concerned about is that, I want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. But this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. That's something. It's your choice you know. Defendant: Which is what? Detective: Do you understand what is going on here at all? Defendant: No, no, I don't. Detective: Well, as I stated over at your apartment, you're under arrest for attempted kidnapping. Defendant: Okay. *9 ¶ 6. The detective made no more attempts to secure a waiver of defendant's rights to silence and to an attorney. Eventually, defendant answered some of the detective's questions. ¶ 7. Defendant sought to suppress the statements he made during the interrogation. In his motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that the waiver was invalid under Miranda. Defendant also argued that the detective violated his rights by failing to secure a recorded waiver as required by 13 V.S.A. § 5237. Section 5237 provides that a person who has been informed of his or her right to counsel as required by § 5234 may waive those rights: in writing, or by other record, ... if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved. 13 V.S.A. § 5237. The State responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his Miranda rights, and that defendant's waiver was valid under § 5237 because it was video-recorded. ¶ 8. The district court denied defendant's motion. It concluded that "assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his Miranda rights and the consequences of waiving them," defendant made a valid implicit waiver of his Miranda rights. The court then concluded that because this waiver was recorded on video it was valid under § 5237. ¶ 9. At trial, the complainant testified that defendant tried to pull her into his black pickup truck while she was pushing her child in a stroller on a sidewalk, returning home from the post office. She further testified about the encounter as follows. As the complainant walked north on Weaver Street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. She was walking northward on the west side of Weaver Street, and defendant was travelling northward in the wrong lane of traffic, weaving around parked cars, so that he was in the lane of traffic adjacent to her. During this portion of the encounter the complainant threatened to call the police. At some point, defendant proceeded ahead of her to the intersection of Weaver and Union Streets and turned left onto Union Street. She proceeded to the same intersection, crossed Union Street, and turned left, walking on the north side of Union Street. While the complainant was walking on Union Street, defendant, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the wrong lane of traffic again, stopped the truck, and attempted to grab her and pull her into his pickup. Defendant drove off when the driver of a green Ford in the oncoming lane of Union Street honked the horn twice. ¶ 10. One eyewitness testified for the State. The witness testified that while traveling north on Weaver Street in her green Ford Taurus, she noticed that traffic had stopped because of a dark pickup truck that had stopped in the middle of the road two cars in front of her. She testified that the man in the pickup truck was speaking with someone on the sidewalk. According to the witness, after she honked her horn twice, the truck "took off," and the witness then observed the complainant, "visibly upset ... motoring towards the *10 end of [Weaver] [S]treet." In contrast to the complainant's testimony, the witness testified that the truck did not turn left on Union Street, but rather either continued straight or turned right, and that the witness did not turn left on Union Street. The witness testified that after observing the encounter she continued straight on Weaver Street. ¶ 11. The arresting officer and a detective also testified for the State. The officer testified that defendant's truck and license plate number matched the description given by the complainant. The detective testified that the complainant correctly identified defendant in a photo lineup. The detective also testified that, during the interrogation at the police station, defendant admitted: (1) that he had seen the complainant; (2) that he had driven by her several times; (3) that the complainant spoke to him; (4) that the complainant told defendant that she was calling the police; and (5) that, when asked why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 12. At trial, the defense argued that the complainant's story was improbable and that neither defendant nor the eyewitness made a left on Union Street toward the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he did not make a valid waiver of his Miranda rights because: (a) silence in response to a request to waive does not constitute waiver; and (b) the court failed to properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518-20, 536 A.2d 921, 922-23 (1987). Defendant also argues that the waiver was invalid under § 5237 because: (a) that section requires waivers to be affirmative, express, and recorded; and (b) the trial court failed to consider the factors set forth in the statute. Finally, defendant makes several arguments regarding the court's refusal to view—or to allow the jury to view—the vehicle defendant was driving at the scene of the alleged crime. We agree with defendant that the court erred in not evaluating the factors set forth in Malinowski and § 5237, and do not reach the balance of his arguments. ¶ 14. Under the United States Supreme Court's landmark decision in Miranda, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S. at 475, 86 S.Ct. 1602; see also State v. Stanislaw, 153 Vt. 517, 529, 573 A.2d 286, 293 (1990) ("The State bears a heavy burden in showing a waiver of Miranda rights."). Courts may find that a defendant knowingly and intelligently waived his Miranda rights only "upon an inquiry into the totality of the circumstances surrounding the interrogation." Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (citing Miranda, 384 U.S. at 475-77, 86 S.Ct. 1602). "The totality approach permits— indeed, it mandates—inquiry into all the circumstances surrounding the interrogation." Id. at 725, 99 S.Ct. 2560. We noted in Malinowski that in Fare v. Michael C. the United States Supreme Court specifically mandated a totality-of-the-circumstances approach to evaluating Miranda waivers. 148 Vt. at 522, 536 A.2d at 924. In order for a court to find that a defendant has made a knowing and intelligent waiver, we require it to make findings regarding the "defendant's experience, education, background, intelligence or capacity to understand the warnings and the meaning of a waiver." Id.; see also State v. Tribble, 2005 VT 132, ¶ 27, 179 Vt. 235, 892 A.2d 232 ("In reviewing whether a *11 defendant made a valid waiver, we consider the totality of the circumstances."). ¶ 15. In addition to our case law, our statutory law requires courts to consider the circumstances under which a defendant waives the privilege against self-incrimination and the right to counsel as guaranteed by Miranda and § 5234 before concluding that the waiver was valid. Under § 5237, a defendant's waiver is valid if the court finds that "he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law." In making such findings, "[t]he court shall consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved." Id. (emphasis added). Although the statute's discretionary "such factors as" language affords trial courts flexibility in choosing which factors to consider, the mandatory "shall" creates a requirement impervious to judicial discretion. See Town of Victory v. State, 174 Vt. 539, 544, 814 A.2d 369, 376 (2002) (mem.) ("Use of the word `shall' in a statute generally means that the action is mandatory...."). In short, under § 5237, a court must consider factors indicating whether a defendant acted with full awareness of his rights, and the consequences of waiving those rights, before finding that the defendant knowingly and intelligently waived them. ¶ 16. Here, the trial court's decision and order denying defendant's motion to suppress contains no consideration of factors indicating a knowing and intelligent waiver of Miranda rights as required by Fare and Malinowski, and no consideration of factors indicating his awareness of his § 5234 rights and the consequences of waiving them as required by § 5237. Instead, as far as we can tell from its order, the court reached its conclusion that defendant made a valid waiver of his rights by "assuming ... that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his ... rights and the consequences of waiving them." The trial court erred under Malinowski and § 5237 by failing to make the required inquiry. ¶ 17. The State argues that defendant failed to preserve the issue we address above, and, alternatively, that any erroneous admission did not prejudice defendant's case. Neither argument has merit. ¶ 18. The State contends that defendant did not preserve the argument that his waiver was invalid because his motion to suppress the statements at issue argued only that there was no waiver at all. This Court has long held that issues not presented at trial may not be raised on appeal. See, e.g., Lanphere v. Beede, 141 Vt. 126, 129, 446 A.2d 340, 341 (1982) ("Contentions not raised or fairly presented to the trial court are not preserved for appeal."); Bebee v. Steel, 2 Vt. 314, 316 (1829) (same). However, where a litigant's argument is clear enough for the trial court to evaluate it and for an opponent to respond to it, the claim is adequately preserved for appeal. EBWS, LLC v. Britly Corp., 2007 VT 37, ¶ 12, 181 Vt. 513, 928 A.2d 497. ¶ 19. We read defendant's motion to suppress as arguing primarily that he did not waive his Miranda and § 5234 rights, and arguing alternatively that any implied waiver was not knowing and intelligent, and therefore was invalid. In support of his motion, defendant explicitly cited Stanislaw for the proposition that the State must prove a "knowing and intelligent" waiver, and argued that "[t]he detective's conduct in this matter could not more closely match Miranda's scenario of an invalid waiver." Although we would not *12 place a trial court in error regarding an issue it did not have the opportunity to address, the trial court here had that opportunity. Moreover, the trial court referenced the factors it was required to consider, but erred by making an assumption instead of making the required factual findings. Defendant placed the issue of validity squarely before the trial court and thus preserved it. ¶ 20. The State's argument that any erroneous admission of statements was harmless and nonprejudicial also fails. Under the Vermont Rules of Criminal Procedure, "[a]ny error ... which does not affect substantial rights shall be disregarded." V.R.Cr.P. 52(a). "For the error to be harmless, the reviewing court must find beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error." State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176, 845 A.2d 337. When conducting a harmless-error analysis to determine whether the jury would have convicted without the offending evidence, we consider the extent to which the offending evidence was inculpatory, whether it was cumulative or duplicative of other evidence, and how prominent it was at trial. See State v. Keith, 160 Vt. 257, 265-66, 628 A.2d 1247, 1252-53 (1993) (considering whether erroneously admitted evidence was inculpatory or exculpatory), overruled on other grounds by State v. Brillon, 2008 VT 35 ¶ 42, 183 Vt. 475, 955 A.2d 1108;[1]State v. Lynds, 158 Vt. 37, 42, 605 A.2d 501, 503 (1991) (considering prominence of erroneously admitted evidence at trial and presence or absence of corroborating and contradictory evidence). Analyzing these factors helps us understand how heavily the jury was likely to have relied on the evidence. ¶ 21. Here, the trial court erroneously admitted five statements that defendant made to police while in custody: (1) that defendant had seen the complainant; (2) that he had driven by her several times; (3) that the complainant spoke to him; (4) that the complainant told him that she was calling the police; and (5) that, when the detective asked him why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 22. The extent to which the statements were inculpatory or duplicative varied. Defendant's statement that he had seen the complainant placed him at the scene of the alleged attempted kidnapping. Similarly, defendant's statements that the complainant spoke to him, that she threatened to call the police, and that he did not know why she would do so, constituted an admission that there had been an interaction between them. However, all of these statements were corroborated by eyewitness testimony, the complainant's testimony, or both. ¶ 23. Most prejudicial was defendant's statement that he drove by the complainant several times. This statement substantially undermined the defense's theory of the case. The defense argued that defendant may have had an interaction with the complainant, but that he never turned left on Union Street toward the site of the alleged attempted kidnapping or turned his truck around. The eyewitness's testimony that neither she nor defendant turned left on Union Street tended to support the defense's theory and discredit the complainant's version of events. Defendant's statement that he drove past the complainant several times had the potential *13 to cast significant doubt on the defense's theory and to bolster the complainant's story. Additionally, because the eyewitness in the green Ford testified that defendant went straight or right at the intersection of Weaver and Union, defendant's statement that he drove past the complainant several times is corroborated by the complainant's testimony alone. ¶ 24. All of defendant's statements to police were fairly prominent at trial. In addition to offering them into evidence, the State referred to defendant's statements in its opening and closing statements. In its opening, the State explained that the evidence would show: [Defendant] admitted that he had seen this—a woman, this person pushing a stroller. He also made statements that there was a conversation. And he also told the police that at some point the woman mentioned to him, that she mentioned something about calling the police and the police asked [defendant], "Why would she say that?" And [defendant]'s response was, "I don't know." Defendant's statements were introduced at trial through the detective who interrogated him, and were central to the detective's testimony. The prosecuting attorney referred to them four additional times while questioning the detective. In its closing, the State summarized the erroneously admitted statements and suggested what inferences the jury could draw from them: Does he admit to [the detective] that he was in Winooski? You bet. Does he admit to [the detective] that he saw a young woman? You bet. Does he admit to [the detective] that he saw that stroller? Yup. Does he admit that he actually had a conversation with this woman? Yup. Does he admit that he heard her say, "I'm going to call the police." Yes.[2] ¶ 25. In short, defendant's erroneously admitted statements to police were harmful enough to his case and prominent enough at trial to have prejudiced defendant's case. In the aggregate, they create a reasonable doubt as to whether the jury would have rendered a guilty verdict without them, and thus require us to reverse defendant's conviction and remand for proceedings consistent with this opinion. ¶ 26. In conclusion, the trial court erred by admitting defendant's custodial statements without conducting the required totality-of-the-circumstances inquiry into the validity of defendant's waiver. Because we cannot conclude beyond a reasonable doubt that the error was harmless, we reverse. Reversed and remanded. NOTES [1] The United States Supreme Court recently overruled Brillon on grounds unrelated to today's decision. Vermont v. Brillon, ___ U.S. ___, ___, 129 S.Ct. 1283, 1287, 173 L.Ed.2d 231 (2009). [2] The record indicates that the State's closing argument continued as follows: But then an interesting thing happened. By this time he knows he's in trouble and he decides to shift the blame away from him to her and he tells the police officer this story about driving up Weaver Street or driving in Winooski and he sees a woman acting weird and she's saying something, he doesn't have a clue what she's saying, she's yelling at him, and so instead of just passing by and just going home, by the way, it's raining at this point, instead of going home, he turns around and comes back to get another look at her. The statements referred to in this part of the State's closing argument were not entered into evidence and were not objected to by defendant. We therefore do not evaluate their potential effect on the jury verdict.

255 F.2d 929 Frank CASTILLO, Jr., et al.v.Honorable Carl A. HATCH, United States District Judge for the District of New Mexico. No. 5869. United States Court of Appeals Tenth Circuit. May 14, 1958. On application for leave to file petition for writ of mandamus. Joseph L. Smith, Henry A. Kiker, Jr., and Patricio S. Sanchez, Albuquerque, N. M., for petitioners. John D. Robb, Albuquerque, N. M., for respondent. Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges. PER CURIAM. 1 Leave to file petition for writ of mandamus denied.

628 So.2d 773 (1993) George D. EUBANKS v. Jo Ann HALL. AV92000080. Court of Civil Appeals of Alabama. July 23, 1993. *774 D.E. Brutkiewicz, Jr., of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. Crosby and L. Brian Chunn of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellee. THIGPEN, Judge. This is a malicious prosecution case. Jo Ann Hall filed suit against George D. Eubanks in September 1991, charging him with malicious prosecution and seeking $1 million in damages. She alleged that the complaint resulted from an arrest warrant which Eubanks had sworn against Hall, charging her with criminal charges, and that she sustained damages, including legal expenses, although the criminal proceedings terminated in her favor. Following a jury trial, the jury returned a verdict favoring Hall in the amount of $10,000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial; that the trial court erred in denying his motion for a directed verdict; and that the trial court improperly refused to use his proffered jury instructions regarding punitive damages. At the outset, we note that jury verdicts are presumed to be correct. Uphaus v. Charter Hospital of Mobile, 582 So.2d 1140 (Ala.Civ.App.1991). Malicious prosecution actions, however, are not favored in law, and face stringent limitations. Uphaus, supra. The elements of an action for malicious prosecution are: "(1) a judicial proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the part of the defendant; (4) termination of the judicial proceeding favorably to the plaintiff; and, (5) damages." Empiregas, Inc., of Elberta v. Feely, 524 So.2d 626, 627 (Ala.1988). Testimony adduced at trial reveals that Eubanks apparently was tried in an August 1991 criminal proceeding, and, according to Hall, her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to "get" the witnesses who testified against him. Hall testified that approximately one month after Eubanks's trial, she and another woman were cleaning crabs on Hall's property on Tensaw Island when Eubanks's son and his cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman got into a boat to bait the crab baskets in the river, Eubanks's son and nephew deliberately maneuvered close to Hall's boat, splashing Hall with water. She testified that Eubanks's son was on a "kneeboard" and was riding in the water behind the boat, and that at that time, they came so close that she believed that their boat would hit them. She stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. They then told the boys that they were going to call the water patrol. At trial, Eubanks's nephew disputed Hall's version of events. Eubanks's nephew testified that after the alleged incident, he called the police for Eubanks's son, and that Eubanks's son told the police that Hall cursed them, and that there was a paddle and gun involved. The nephew also testified that Eubanks actually signed the complaint at the police's behest, because Eubanks's son and nephew were too young to sign the complaint. Although Hall was charged with harassment and menacing, the trial court granted Hall's motion for judgment of acquittal in September 1991, and Hall filed suit against Eubanks for malicious prosecution that same month. Eubanks first contends that the trial court erred in admitting, over his objection, testimony regarding his prior acts. Jerry Crowe, another witness in Eubanks's criminal trial, testified that after that trial, Eubanks harassed him in various ways, including discharging firearms near Crowe's house, making numerous phone calls to him, and by harassing him while driving. A person's character, when offered for the purpose of showing his conduct on a specific occasion, *775 may not be proven by evidence of his specific acts or conduct. Mayfield v. State, 591 So.2d 143 (Ala.Crim.App.1991); C. Gamble, McElroy's Alabama Evidence, § 26.01 (4th ed. 1991). Hall argues that Crowe's testimony was proffered not to show that Eubanks acted in conformity therewith in signing the complaint, but rather to establish Eubanks's malice towards the witnesses who testified against him at his criminal trial. Malice, for purposes of a malicious prosecution action, may be inferred from want of probable cause or it may be inferred from the circumstances surrounding and attending prosecution. Thompson v. Kinney, 486 So.2d 442 (Ala.Civ.App.1986). "This is because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact." Thompson at 445. The element of malice may be inferred from the conduct of the defendant if no other reasonable explanation exists for his actions. Johnson v. Smith, 503 So.2d 868 (Ala.Civ. App.1987). Therefore, Crowe's testimony was admissible for the narrow purpose of establishing Eubanks's malice towards the witnesses. Eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. A directed verdict in favor of a defendant is proper only when there is no evidence to support one or more of the elements in the plaintiff's cause of action. Smith v. Wendy's of the South, Inc., 503 So.2d 843 (Ala.1987). Eubanks argues that Hall had failed to prove he lacked probable cause for instigating the judicial proceedings against Hall. Probable cause is the state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail. Empiregas, supra. The issue of probable cause must go to a jury when the material facts are in dispute, as in this case. Harris v. Harris, 542 So.2d 284 (Ala.Civ.App.1989). The question of probable cause being a jury question, the trial court properly refused Eubanks's motion for a directed verdict. Eubanks last contends that the trial court erred in refusing to give one of his jury instructions. Specifically, the trial court refused Eubanks's request to charge the jury that in order to award punitive damages, the jury must find by "clear and convincing evidence" that he lacked probable cause to instigate criminal proceedings against Hall. Eubanks cites Ala.Code 1975, § 12-21-12(a), in support of this contention; however, this section establishes the "substantial evidence" rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instant case. It appears that Eubanks intended to cite Ala.Code 1975, § 6-11-20, as requiring that the absence of probable cause be proven by clear and convincing evidence in awarding punitive damages. We find, however, that this statute requires "clear and convincing evidence" only for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. Ala.Code 1975, § 6-11-20(a). Nowhere does this statute require that the absence of probable cause be proven by the same standard. Moreover, we find that the issue of punitive damages was properly submitted to the jury. See Delchamps, Inc. v. Larry, 613 So.2d 1235 (Ala.1992). A court cannot be reversed for its refusal to give a charge that is not expressed in the exact and appropriate terms of the law. Johnston v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). The trial court instructed the jury that it must be "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action against Hall, and this was not reversible error. See also Alabama Pattern Jury Instructions, § 24.05. Based on the foregoing, we find that the judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P.J., and YATES, J., concur.

506 So.2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Florida, Appellee. Nos. 85-2338 to 85-2345. District Court of Appeal of Florida, Second District. April 29, 1987. James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Appellant, James L. Percival, appeals the judgments and sentences entered in eight cases. We find that the trial court erred by requiring appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future by a court in another county. We, accordingly, remand with instructions to strike that requirement from the judgments and sentences, but affirm in all other respects. Appellant was originally placed on probation for two years in Hillsborough County after pleading nolo contendere to the charge of dealing in stolen property. Less than five months later, the state filed seven informations in Hillsborough County charging appellant with ten counts of robbery and one count of attempted robbery. Appellant pled nolo contendere to these charges in exchange for the trial court's agreement that he would not be sentenced to serve more than fifteen years in prison. Although the guidelines scoresheet is not contained in the record, the record reveals that the prosecutor advised the trial court at sentencing that appellant's scoresheet reflected a presumptive sentence of twelve to seventeen years. Defense counsel neither disagreed with nor objected to the prosecutor's statement. The trial court denied the state's request to depart from the presumptive sentence and, pursuant to its agreement with appellant, imposed five years imprisonment for dealing in stolen property and fifteen years imprisonment for each of the other eleven charges. All of the sentences were to be served concurrently. Over defense counsel's *67 objection, however, the trial court granted the state's request to require these sentences to be served consecutively to a sentence to be imposed at a later date on charges pending against appellant in Pinellas County. Appellant filed timely notices of appeal which have been consolidated for purposes of appeal. We reject appellant's contention that we must remand for resentencing because there is no scoresheet in the record. Appellant's sentences were entered pursuant to an agreement with the trial court. See Lawson v. State, 497 So.2d 288 (Fla. 1st DCA 1986); Rowe v. State, 496 So.2d 857 (Fla. 2d DCA 1986), petition for review granted, No. 69-606 (Fla. March 20, 1987). Additionally, the record reflects that a scoresheet was prepared, that the trial court was informed of appellant's score and presumptive sentence, and that the trial court did not depart from the presumptive sentence. The mere absence of the scoresheet in the record is, therefore, irrelevant. See Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), petition for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, with appellant's contention that the trial court erred in requiring his sentences to be served consecutively to a sentence which had not yet been imposed on other charges pending against him. The sentence imposed by a trial court must commence on a definite date, Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975), and may only be required to be served consecutively to an existing sentence. See Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983); Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981). In this case, the trial court did not know when, if ever, the Pinellas County sentence would be imposed or what length the sentence would be. Under these circumstances, the trial court erroneously ordered appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future. We, accordingly, remand with instructions that the trial court strike that portion of appellant's sentences which requires the sentences to run consecutively to appellant's expected Pinellas County sentence. We affirm the judgments and sentences in all other respects. Affirmed in part, reversed in part, and remanded. DANAHY, C.J., and SCHOONOVER and SANDERLIN, JJ., concur.

Case: 11-30209 Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 18, 2012 No. 11-30209 Summary Calendar Lyle W. Cayce Clerk SEAN C. WALKER, Plaintiff-Appellant v. JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER, Director of Nursing at B.B. Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary, Defendants-Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM:* Sean C. Walker, Louisiana prisoner # 126912, appeals the dismissal of his 42 U.S.C. § 1983 complaint against numerous defendants, including the head of administration of B.B. Sixty Rayburn Correctional Center (the head of administration). Walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs after he was attacked and * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-30209 Document: 00511890671 Page: 2 Date Filed: 06/18/2012 No. 11-30209 injured by his cellmate. The district court dismissed Walker’s complaint as frivolous and/or for failure to state a claim upon which relief could be granted; however, the judgment failed to mention Walker’s claims against the head of administration, although it specifically dismissed Walker’s claims against the other defendants. Under 28 U.S.C. § 1291, federal appellate courts have jurisdiction to hear appeals from “‘final decisions’” of district courts. Witherspoon v. White, 111 F.3d 399, 401 (5th Cir. 1997). Generally, a judgment adjudicating the rights of fewer than all of the parties is not a final decision in the absence of a Federal Rule of Civil Procedure 54(b) certification directing entry of final judgment as to those parties. Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. 1990). In circumstances in which a court order is ambiguous as to what parties and claims are being disposed of and “the district court clearly intend[ed] to effect a final dismissal of a claim, we will construe [the district court’s] order accordingly, despite ambiguous language that might indicate otherwise.” Picco v. Global Marine Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990). The head of administration was served with Walker’s complaint and amended complaint; thus, he was a party to the suit. See Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987). Although the district court’s judgment was silent regarding Walker’s claims against the head of administration, the court might have intended that the judgment be final in light of the fact that the district court also denied Walker’s motion for leave to amend the complaint to substitute Robert C. Tanner as the head of administration because Walker had failed to state a claim against Tanner. See Picco, 900 F.2d at 849 n. 4. We conclude that we should order a limited remand to allow the district court to indicate whether the judgment of February 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not it now will enter a final judgment. 2  Case: 11-30209 Document: 00511890671 Page: 3 Date Filed: 06/18/2012 No. 11-30209 IT IS ORDERED that a limited remand occur for the district court to enter an order or judgment as indicated. Proceedings on this appeal are stayed pending the receipt of the district court’s order or other response. 3 

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 2, 2006 No. 05-11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97-00238-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO MACHADO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT and CARNES, Circuit Judges and HODGES,* District Judge. CARNES, Circuit Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation.  I. In March 1997 a grand jury indicted Gregorio Machado on thirteen counts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuant to 18 U.S.C. § 982. After reaching a plea agreement with the government, Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver provision and a detailed forfeiture provision through which Machado pledged “to fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located.” That provision included a detailed list of all the money and items that were to be forfeited. Machado says that the value of those listed items was approximately $12 million at the time of the indictment. On July 28, 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordance with the plea agreement, and stated that “[t]he United States has not dismissed Count I or the forfeiture count at the very end.” The court responded, “Count II through XI[I] are dismissed. Count I and the forfeiture count remain in full force and effect.” The formal judgment in the case, which was entered on July 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: “A separate Forfeiture order shall be entered in this cause.” On March 11, 1998, about seven months later the government filed a motion for an order of forfeiture. The following day the district court granted the motion and entered a preliminary order of forfeiture. On the government’s motion, the district court on April 24, 1998 entered an amended order to include additional property. A final order of forfeiture was entered on July 14, 1998, nearly a year after sentencing. Machado did not attempt to appeal any of those orders, including the final order of forfeiture. Instead, on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to Fed. R. Cr. P. 41(e), requesting a return of “all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions.” In that motion Machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents returned to 3 Machado. The government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed a pro se motion for sanctions which was ultimately denied. On April 23, 2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60(b)(4) a pro se motion for relief from that order “in light of this Circuit’s decision in United States v. Petrie, 302 F.3d 1280, 1284–85 (11th Cir. 2002).” Machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. Because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4) motion on that ground was not an abuse of discretion. We never reached the merits of Machado’s claim. On May 17, 2004, Machado filed pursuant to Rule 60(b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17, 2004, explaining that Rule 60(b) cannot be used to challenge criminal forfeiture orders. Again, we did not reach the merits of Machado’s claim. 4  On December 17, 2004, which was six years and five months after the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of the forfeited property. This one asserted that he was proceeding under Fed. R. Cr. P. 41(g) and the All Writs Act, 28 U.S.C. § 1651(a). In February 2005 the district court denied the motion in a three-sentence order: “This cause came before the Court upon Defendant’s Motion for Return of Property Pursuant to Fed. R. Crim. P. Rule 41(e) . . . filed December 17, 2004. The Court having reviewed the pertinent portions of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant’s Motion for Return of Property is Denied. Done and ordered in Chambers, at Miami, Florida this 7th Day of February, 2005.” Thereafter Machado filed his notice of appeal, and we appointed counsel to represent him. II. At the heart of all Machado’s arguments and efforts is his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure 32(d)(2), which was in effect when Machado was sentenced, stated that: “At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment.” Fed. R. Cr. P. 32(d)(2) (1997). 5 Machado contends that the district court’s failure to comply with Rule 32(d)(2) when it sentenced him on July 28, 1997 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on July 14, 1998. The government’s position is that Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. ____, ____, 126 S. Ct. 403, 405-07 (2005). We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “within 10 days after the later of . . . the entry of either the judgment or the order being appealed . . . .” Fed. R. App. P. 4(b)(1)(A)(i). Under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. Fed. R. App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. See id. Filing a timely notice of appeal is “mandatory and jurisdictional” and if a defendant fails to do so, a court of appeals is “without jurisdiction to review the decision on the merits.” See Budinich v. Becton Dickinson and Co., 486 U.S. 196, 6 203, 108 S. Ct. 1717, 1722 (1988); accord United States v. Cartwright, 413 F.3d 1295, 1299–1300 (11th Cir. 2005) (criminal defendant’s failure to file a timely notice of appeal under Rule 4(b) requires dismissal for lack of jurisdiction); United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2005) (defendant’s “failure to file a timely or effective notice of appeal renders us without jurisdiction to consider the merits of the petitioner’s claims”); United States v. Hirsch, 207 F.3d 928, 930–31 (7th Cir. 2000) (if the notice of appeal is untimely the “appeal must be dismissed for want of jurisdiction”); United States v. Rapoport, 159 F.3d 1, 2–3 (1st Cir. 1998) (same); United States v. Christunas, 126 F.3d 765, 768–69 (6th Cir. 1997) (Rule 4(b) compliance “is a jurisdictional prerequisite which this court can neither waive nor extend”); United States v. Marbley, 81 F.3d 51, 52 (7th Cir. 1996) (same); United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986) (time limits on filing a notice of appeal are “mandatory and jurisdictional”); United States v. Whitaker, 722 F.2d 1533, 1534 (11th Cir. 1984) (“Failure to file a timely notice of appeal leaves the appellate court without jurisdiction.”). The final order of forfeiture about which Machado complains was entered on July 14, 1998 and the ten days he had to file his notice of appeal ran out on July 24, 1998.1 Assuming that the district court might somehow have found excusable 1 A preliminary order of forfeiture is a final and immediately appealable order if it finally determines the defendant’s rights in the forfeited property. United States v. Gross, 213 7 neglect and granted Machado thirty more days for that reason, the last possible date for filing the notice of appeal was August 23, 1998, which was forty days after the district court entered the order. See Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 1997). Machado missed that deadline. Indeed, he never filed a notice of appeal from the order which he seeks to have set aside. Even if we agreed with Machado’s suggestion at oral argument that his Rule 41(e) motion for return of documents could be construed as an appeal from the final order of forfeiture, it still came too late. The Rule 41(e) motion was filed on September 4, 1998, well after the deadline for filing his notice of appeal. And even if the deadline could have been extended under Rule 4(a)(5) for excusable neglect, the maximum extension would have been thirty days, or until August 23, 1998, and the notice of appeal came after that date. We are aware, of course, that “subject-matter jurisdiction . . . can never be forfeited or waived” and “[c]onsequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); see also F.3d 599, 600 (11th Cir. 2000). However, in this case the preliminary order was amended to include additional property and so did not finally determine Machado’s interest in all the property. Thus, Machado’s time for appeal in this case ran from the entry of the final order of forfeiture on July 14, 1998. Cf. Christunas, 126 F.3d at 768–69 (refusing to consider for lack of jurisdiction a criminal defendants’ appeal from a final order of forfeiture holding that he should have timely appealed in accordance with Rule 4(b) the preliminary order of forfeiture because it was final as to him). 8 Arbaugh v. Y& H Corp., ___ U.S. ___, ___, 126 S. Ct. 1235, 1240 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). That principle is not, however, an exception to the requirements for appellate jurisdiction, and if those requirements are not met we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction. Arbaugh does not hold or intimate that concerns about the district court’s jurisdiction to enter an order or judgment trump a lack of appellate jurisdiction to review a district court judgment. Neither Arbaugh nor any other binding decision holds that a court of appeals always has appellate jurisdiction to decide whether the district court had jurisdiction. Otherwise, an appeal could be filed months, years, or even decades late. See Des Moines Navigation & R.R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 S. Ct. 217 (1887) (upholding the res judicata effect of a prior decision in spite of the argument that the court lacked jurisdiction to render a judgment in the prior case); United States v. Valadez-Camarena, 402 F.3d 1259, 1260–61 (10th Cir. 2005) (rejecting a jurisdictional challenge to a final conviction and sentence and refusing to consider the merits because the case was no longer pending for purposes of Federal Rule of Criminal Procedure 12(b)(3)); United States v. 9 Hartwell, 448 F.3d 707, 720–21 (4th Cir. 2006) (Williams, J., concurring) (noting that when a criminal defendant failed to file a direct appeal “his conviction and sentence became insulated from jurisdictional challenge except in a collateral proceeding, such as a proceeding under 28 U.S.C.A. § 2255” and the conviction and sentence must be treated as valid for subsequent motions); III. Although we lack jurisdiction to review whether the district court had jurisdiction to enter the final order of forfeiture in July 1998, we do have jurisdiction to review whether the district court erred in denying his Rule 41(g) motion for return of property in February of 2005. The difference is that Machado did file a timely notice of appeal from the order denying that Rule 41(g) motion. We review de novo the attendant legal issues, United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the equitable equation of the district court’s decision to deny a Rule 41(g) motion only for abuse of discretion. See id. at 974 (citing Gaudiosi v. Mellon, 269 F.2d 873, 881–82 (3d Cir.1959) (reviewing for abuse of discretion the district court’s decision to apply the equitable doctrine of unclean hands)); United States v. Bennett, 423 F.3d 271, 274 (3d Cir. 2005) (“In most Rule 41(g) cases demanding return of forfeited property, we review the District Court’s decision to exercise its equitable jurisdiction for 10 abuse of discretion.” (internal quotation marks and alteration omitted)). Rule 41(g) states: “A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized.” Fed. R. Cr. P. 41(g). The district court can exercise equitable jurisdiction over a Rule 41(g) motion filed after criminal proceedings have ended. United States v. Martinez, 241 F.3d 1329, 1329 (11th Cir. 2001). “[I]n order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands.” Howell, 425 F.3d at 974. The district court properly denied Machado’s Rule 41(g) motion, because the exercise of equitable jurisdiction in his favor would be inequitable. It would return to a criminal the fruits of his crimes, giving him an illicit multi-million dollar windfall. It would give back to him property that he voluntarily forfeited to the government as part of a valid plea agreement, an agreement which gave him ample consideration in return. Having gotten the full benefit of his bargain, it would be inequitable to allow Machado to escape the burdens. Even if Machado were not barred by equitable principles from obtaining the relief he seeks, his claim would be time barred. “When an owner invokes Rule 41(g) after the close of all criminal proceedings, the court treats the motion for 11 return of property as a civil action in equity.” Howell, 425 F.3d at 974. Civil actions filed against the government are subject to a six year statute of limitation. 28 U.S.C. § 2401(a) (“[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”). Because Rule 41(g) actions filed after the close of the criminal proceedings are treated as civil actions, they are subject to the six year statute of limitation in § 2401(a). See United States v. Sims, 376 F.3d 705, 708–09 (7th Cir. 2004) (holding that § 2401(a) applies to a Rule 41(g) motion); United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004) (same); United States v. Rodriguez Aguirre, 264 F.3d 1195, 1210 (10th Cir. 2001) (same); United States v. Minor, 228 F.3d 352, 359 (4th Cir. 2000) (same); Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000) (same). A legal claim is not like a fine wine that gets better with age. It is more like milk, which spoils after its expiration date. The six-year statute of limitations began to run when the final order of forfeiture was entered against Machado on July 14, 1998. His December 17, 2004 Rule 41(g) motion offered up a claim that had been rendered legally unpalatable by the passage of time. IV. The All Writs Act, 28 U.S.C. § 1651(a), adds nothing to Machado’s case. It 12 provides that: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has instructed that this source of federal court power must only be used in “extraordinary circumstances.” Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403, 96 S. Ct. 2119, 2124 (1976). As the Court has explained: “The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). As we put it two years ago, “[t]he Act does not create any substantive federal jurisdiction,” but instead it is only “a codification of the federal courts’ traditional, inherent power to protect the jurisdiction they already have, derived from some other source.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099–1100 (11th Cir. 2004). The district court did not abuse its discretion in declining to exercise 13 jurisdiction under the All Writs Act. This is not an extraordinary case that merits use of extraordinary authority. Machado had adequate remedies available to him. He could have timely appealed the final order of forfeiture in accordance with appellate Rule 4(b). Another procedure which supplies jurisdiction to determine whether this type of relief should be granted is Rule 41(g). As we have already explained, because Machado’s claim seeks relief that would not be equitable, and because he waited too late to file his Rule 41(g) motion, his claim cannot succeed under that provision. We will not use the All Writs Act as a fix all provision to plug up holes in a party’s position, holes through which any claim to relief has drained out. V. Finally, Machado asserts that the order of forfeiture violates his due process and double jeopardy rights and that we should fashion an equitable remedy to correct those violations. Machado does not have a valid due process or double jeopardy claim, and even if he did he would not have a viable procedural basis through which to assert it. The law provides appeals for the purpose of raising claims like these, and he failed to appeal. AFFIRMED. 14 

206 Ga. 477 (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTING COMPANY et al v. REDWINE, Revenue Commissioner; et vice versa. 16887, 16901. Supreme Court of Georgia. January 12, 1950. Rehearing Denied February 17, 24, 1950. *483 MacDougald, Troutman, Sams & Schroder, and Dan MacDougald Jr., for plaintiffs. Eugene Cook, Attorney-General, and M. H. Blackshear Jr., Assistant Attorney-General, for defendant. CANDLER, Justice. (After stating the foregoing facts.) 1. There is set out above a copy of the enrolled act as attached to and made a part of the petition as amended. As enrolled the act shows on its face that taxation on wines is included in the title and in the body. The plaintiffs in error contend that there were irregularities during the process of the legislation such as to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, "to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines," were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. Instead, it is contended that those words were composed and inserted by some agency or method other than the joint action of the two houses after the bill was voted on and passed. Further, it is contended that the words, "and that the caption be amended accordingly," were written underneath the body of the amendment, but that the same were not constitutionally sufficient to authorize the first above-quoted words which were written into the title. The petition as amended attempts to show the facts relied on by photostatic copies of the bill, its amendment during process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the *484 State Constitution, alleged to be violated, as follows: article III, section 1, paragraph 1 (Code, Ann. § 2-1301), reading: "The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives," the contention being that the alleged new matter inserted in the manner alleged constitutes an unlawful delegation of legislative authority in violation thereof; article III, section VII, paragraph VII (Code, Ann. § 2-1907), reading: "Every bill, before it shall pass, shall be read three times, and on three separate days, in each House, unless in cases of actual invasion, or insurrection, but the first and second reading of each local bill, shall consist of the reading of the title only, unless said bill is ordered to be engrossed," it being contended that, the entire act not being read, this clause was violated; article III, section VII, paragraph VII (Code, Ann. § 2-1908), reading: "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof," the contention in this connection being that the act having made reference in the body to wines, without having reference to the same in the title, is in violation of this provision; and article I, section I, paragraph III (Code, Ann. § 2-103), reading: "No person shall be deprived of life, liberty, or property, except by due process of law," it being contended that the legislature undertook to have the caption changed after the act passed and did so in terms so vague, uncertain, and indefinite as not to apprise anyone thereof. Before a determination of the questions above presented, it is obvious that consideration must be given to the effect thereon of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (69 S. E. 725), it was held: "A duly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements; and it is not permissible to show, by the legislative journals or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was *485 any irregularity in its enactment." See also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), and Williams v. MacFeeley, 186 Ga. 145 (197 S. E. 225). A case cited and relied on by the plaintiffs in error is Solomon v. Commissioners of Cartersville, 41 Ga. 157. It held that an act of the General Assembly signed by Rufus B. Bullock, Governor, May 26, 1869, was invalid because it was not signed within the time prescribed by the Constitution. The Solomon case, supra, was cited in DeLoach v. Newton, supra, and the court, after discussing the possible uses of the legislative journals, said: "A possible use for them might arise on the construction of an act. In Solomon v. Commissioners of Cartersville, 41 Ga. 157, the journals of the General Assembly were consulted to ascertain when the legislature adjourned. In Gormley v. Taylor, 44 Ga. 76, a query was put on this subject." Evidently the court in DeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners of Cartersville, supra, any obstacle to reaching its decision. Neither do we, in this case, find anything in it to prevent us from following DeLoach v. Newton, Atlantic Coast Line R. Co. v. State, and Williams v. MacFeeley (supra), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the Governor, and where the issue is not whether or not the Governor did actually sign the bill within the time required by the Constitution. The plaintiffs in error argue that the decided cases in this State on the question of conclusive presumption of an enrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail with the facts here involved, the principles in the cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to the same rule in this case. Thus, we reach the conclusion that where, as in this case, a copy of an enrolled act purporting to contain the signatures of the Speaker of the House, Clerk of the House, President of the Senate, Secretary of the Senate, and the Governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contention that a portion of the title was composed and inserted by some method or agency in an irregular manner during the process of its passage, neither the *486 legislative journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment; and, accordingly, this court cannot consider violations of the State Constitution that are dependent on being so shown. 2. The act is assailed as being in violation of article III, section VII, paragraph VIII of the State Constitution (Code, Ann. § 2-1908), particularly the portion thereof reading, "No law shall pass which refers to more than one subject matter," because, as the plaintiffs in error contend, it embraces legislation on "malt beverages" and "wines." Specifically it is contended that the regulation, control, and taxation of malt beverages is a separate subject-matter from that of wines. Seeking to illustrate, it is insisted that they have been dealt with as a separate series of legislation; that in certain court decisions the term "malt beverages" has been held not to include "wines"; that legislative declarations in the wine act of 1935, to the effect that the same was to promote temperance and prosperity of the people of Georgia and foster the growing of grapes, fruits, and berries on Georgia farms, indicate that wines are recognized by the legislature as being in a different subject-matter category from that of malt beverages; and that executive and administrative treatment has recognized them as separate. The "subject" of an act, within the meaning of the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the act. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); 50 Am. Jr. 172, § 191; Mayes v. Daniel, 186 Ga. 345, 353 (198 S. E. 535). In Whitley v. State, 134 Ga. 758 (68 S. E. 716), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject-matter provision of the State Constitution was invoked and held not to be applicable, it being pointed out that "all these things were germane to and formed a part of the general purpose of the act. They were not so entirely distinct and different as to constitute different subject-matters within the meaning of the paragraph of the constitution." See also Carroll v. Wright, 131 Ga. 728 (63 S. E. 260). Looking to the language of the act in the instant case, the general purpose is illustrated by words and figures *487 that unmistakably stand out as indicating that an increase in excise taxes is the thing chiefly sought. Whatever may have been the reasons prompting the legislature in the year 1935 to deal separately with malt beverages (Ga. L. 1935, pp. 73-81) and wines (Ga. L. 1935, pp. 492-4), or amending the same separately afterwards, it does not appear to us that the terms, "malt beverages" and "wines" are so incongruous per se that they could not be dealt with in a single act for a purpose that was applicable. Although the original wine act of 1935 legalized the making of domestic wines and exempted from taxation wine made from Georgia grapes, fruits, and berries, the tax-free provision was eliminated by an act approved March 30, 1937 (Ga. L. 1937, p. 851), and a tax was prescribed to be levied and collected on domestic wines and foreign wines graduated on alcoholic content. Since that time the amended act has contained levies of taxes upon wines of all classes, and the original theory of tax exemption on wine made from Georgia grapes, fruits, and berries has no longer obtained. It is true that the levies against wines made from Georgia products have been at a lower rate than other wines. Rationally, however, the declarations in the original wine act of 1935, to the effect that promotion of temperance and prosperity for Georgia people and to foster and encourage the growing of grapes, fruits, and berries in Georgia, were more in harmony with the act when it first legalized domestic wines with a limited alcoholic content, without taxes, than now apply since the amendments letting in foreign as well as domestic wines and permitting an increased alcoholic content. The question in McKown v. Atlanta, 184 Ga. 221 (190 S. E. 571), and McCaffrey v. State, 183 Ga. 827 (189 S. E. 825), was whether a law or ordinance pertaining to "malt beverages" comprehended "wines" within that term. No such issue is involved here, and those cases are not applicable. In view of the foregoing, the act now under consideration does not contain a dual subject-matter within the meaning of the constitutional provision that no act shall contain more than one subject. 3. The plaintiffs in error contend that section 2-a of the act unconstitutionally discriminates against them, in that a tax of $1 per gallon is levied on wine manufactured in Georgia from out-of-State grapes as against a ten-cents-per-gallon levy on *488 wine of the same class manufactured from Georgia raw materials. The constitutional provisions alleged to be violated are as follows: denial of due process and equal protection as guaranteed by the Fourteenth Amendment to the Constitution of the United States, especially that portion thereof reading, "nor shall any State deprive any person of life, liberty or property without due process of law"; nor deny any person within its jurisdiction the equal protection of the laws"; and burdening interstate commerce, as forbidden by article 1, section 8, paragraph 3, especially the portion reading: "The Congress shall have Power . . . To regulate commerce . . among the several States." It is insisted that the definition of foreign wines, making applicable the taxation, illustrates the unconstitutionality claimed. The definition reads: "Foreign wines are hereby defined and declared to be wines which are imported in whole or in part in the State of Georgia or manufactured in the State of Georgia from products imported in whole or in part from without the State and produced by natural fermentation." The United States Supreme Court has held in State Board of Equalization v. Young's Market Co., 299 U. S. 57 (57 Sup. Ct. 77, 81 L. ed. 38), Mahoney v. Joseph Triner Corp., 304 U. S. 401 (58 Sup. Ct. 952, 82 L. ed. 1424), and Indianapolis Brewing Co. v. Liquor Control Commission of the State of Michigan, 305 U. S. 391 (59 Sup. Ct. 254, 83 L. ed. 243), that the Twenty-first Amendment to the Constitution of the United States renders inoperative asserted violations of such provisions as due process, equal protection, and interstate commerce, where State action within the subject-matter of the Twenty-first Amendment is involved. Beer and beer dealers were involved in the alleged discrimination in the Indianapolis Brewing Co. case, supra. Upon the basis of the Twenty-first Amendment to the Constitution of the United States, this court in Scott v. State, 187 Ga. 702 (2 S. E. 2d, 65), held that a statute imposing a tax on distilled spirits imported into the State and making it a misdemeanor to possess unstamped liquor did not violate the commerce clause of the Federal Constitution on the ground that it prohibited purchase of distilled spirits outside of the State for the purchaser's own use. The plaintiffs in error cite U. S. v. Frankfort Distilleries, 324 U. S. 293 (65 Sup. Ct. 661, 89 L. ed. 951), *489 and Jatros v. Bowles, 143 Fed. 2d, 453, and claim the same as authority for their contention that the Twenty-first Amendment does not immunize the portion of the act involved from the effect of the commerce clause. The Frankfort Distilleries case, supra, involved an alleged conspiracy in fixing prices in violation of the Sherman Act, and it was pointed out that it was not being enforced in that case in such manner as to conflict with the law of Colorado. Jatros v. Bowles, supra, involved Emergency War Price controls which rested under the war powers. Neither of the two last-mentioned cases conflicts with the right of the State's authority to determine conditions upon which liquor can come into its territory and what will be done with it after it gets there. Therefore, they are not applicable to the question here. Mason v. State, 1 Ga. App. 534 (5) (58 S. E. 139), holds that "wine" is included in the definition of the term "intoxicating liquors." The Twenty-first Amendment embraces "wine" such as is the subject-matter dealt with in the portion of the act under attack in this case. If the portion of the act is discriminatory, it is outside the pale of protection of the due-process and equal-protection clauses of the Fourteenth Amendment and the commerce clause of the Federal Constitution by reason of the Twenty-first Amendment thereof. Therefore, we cannot consider the grounds of discrimination and unconstitutionality which are raised by the plaintiffs in error and discussed in this division of the opinion. (a) Likewise, there is no merit in the contention here made that section 2-a of the act of 1949 (Ga. L. 1949, Ex. Sess. p. 5) offends article 1, section 1, paragraph 2 of the Constitution of 1945 (Code, Ann., § 2-102), which declares "Protection to person and property is the paramount duty of government, and shall be impartial and complete." 4. In view of the above rulings, there was no error in sustaining the general demurrers, which attacked the petition as amended on grounds that no cause of action was set out, nor did the allegations warrant the granting of the equitable relief prayed. Because of said rulings on these general demurrers, it becomes unnecessary to pass on the special demurrers brought up by the cross-bill of exceptions. Judgment affirmed on the main bill of exceptions. All the *490 Justices concur, except Wyatt and Head, JJ., who dissent from division 2 of the opinion and the judgment of affirmance, Duckworth, C. J., and Almand J., concur specially. Cross-bill of exceptions dismissed. All the Justices concur. ALMAND, Justice. I concur in the ruling in division 1 of the opinion only because of prior unanimous decisions of this court, cited in the opinion. I think that these previous decisions are wrong and should be overruled, but since a sufficient number of members of the present court to overrule these cases do not agree with me, I am bound by these prior rulings. I am authorized to say that Chief Justice Duckworth concurs in this special concurrence.

278 U.S. 282 (1929) BOTANY WORSTED MILLS v. UNITED STATES. No. 31. Supreme Court of United States. Submitted April 23, 1928. Argued November 20, 1928. Decided January 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. *283 Mr. Nathan A. Smyth for petitioner. Solicitor General Mitchell for the United States. *284 A brief on behalf of Mr. A.G. Lacy, as amicus curiae, was filed by special leave of Court on motion of the Solicitor General. MR. JUSTICE SANFORD delivered the opinion of the Court. The Botany Worsted Mills, a New Jersey corporation engaged in the manufactured of woolen and worsted fabrics, made a return of its net income for the taxable year 1917 under the Revenue Act of 1916[1] and the War Revenue Act of 1917.[2] By § 12(a) of the Revenue Act it was provided that in ascertaining the net income of a corporation organized in the United States there should be deducted from its gross income all "the ordinary and necessary expenses paid within the year in the maintenance and operation of its business and properties." Under this provision the Mills deducted amounts aggregating $1,565,739.39 paid as compensation to the members of its board of directors, in addition to salaries of $9,000 each. It paid an income tax computed in accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenue assessed an additional income tax against it. Of this, $450,994.06 was attributable to his disallowance of $783,656.06 of the deduction claimed as compensation paid to the directors, on the ground that the total amount paid as compensation was unreasonable and the remainder of the deduction as allowed represented fair and reasonable compensation. The Mills, after paying the additional tax, filed a claim for refund of this $450,994.06. The claim was disallowed; and the Mills thereafter, in September 1924, by a petition in the Court of Claims sought to recover this sum from the United States, with *285 interest — alleging that the disallowance of part of the compensation paid the directors was illegal.[3] After a hearing on the merits the court, upon its findings of fact, dismissed the petition upon the ground that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 C. Cls. 405. And this writ of certiorari was granted. The first question presented is whether the Mills is precluded from recovering the amount claimed by reason of a settlement. Sec. 3229 of the Revised Statutes,[4] provides that: "The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal case arising under the internal-revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney-General, he may compromise any such case after a suit thereon has been commenced. Whenever a compromise is made in any case there shall be placed on file in the office of the Commissioner the opinion of the Solicitor of Internal Revenue, . . . with his reasons therefor, with a statement of *286 the amount of tax assessed, . . . and the amount actually paid in accordance with the terms of the compromise."[5] The Government did not claim that there had been a compromise under this statute, but contended in the Court of Claims that, irrespective thereof, an agreement of settlement had been entered into between the Mills and the Commissioner under which the Mills had accepted the partial disallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of which it still enjoyed, and was therefore estopped from seeking a recovery. As to this matter the findings of fact show that after the Mills had paid the amount of the tax shown by its original return, an investigation of its books disclosed to the Commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating to the compensation (or, as it was termed, bonus) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. After much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the Mills and the chief of the special audit section of the Bureau of Internal Revenue and other of his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed upon, and the claim as to reserve was allowed. Thereupon the Mills prepared and filed an amended return based upon the figures agreed upon in the conferences, with documentary evidence which it had *287 agreed to furnish; and the additional assessment was made in accordance with this return.[6] The court, in sustaining the Government's contention, said: "With the payment of the tax under the circumstances surrounding this case the agreement, which is mentioned in the record as a `gentleman's agreement,' became in legal effect an executed contract of settlement"; and that, as the Mills was seeking to recover to account of the particular item which it regarded as unfavorable to its interests, and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be allowed a recovery. The Mills contends that the Commissioner had not been given, at the time in question, any authority, either in express terms or by implication, to compromise tax cases except as provided in § 3229; that this statute in granting such authority under specific limitations as to the method to be pursued, negatived his authority to effect a valid and binding agreement in any other way; that as the Government could not have been estopped by the unauthorized transactions of its officials, the Mills likewise could not be estopped thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these contentions. In the brief for the United States filed in this Court the Solicitor General states that the question whether such an informal adjustment of taxes as was made in this case is binding on the taxpayer, is submitted for decision in deference to the opinion of the Court of Claims and the importance of the question — but no argument is made in support of the Government's previous contention that the Mills was estopped from questioning *288 the settlement. And, on the contrary, it is stated that — "Before and since the date of the alleged settlement in this case Congress has evidently proceeded on the theory that no adjustment of a tax controversy between representatives of the Bureau of Internal Revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. The authority of officers of the United States to compromise claims on behalf of or against the United States in strictly limited. . . The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding." And further, that "No ground for the United States to claim estoppel is disclosed in the findings." Independently of these concessions, we are of the opinion that the informal settlement made in this case did not constitute a binding agreement. Sec. 3229 authorizes the Commissioner of Internal Revenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of the Solicitor of Internal Revenue setting forth the compromise be filed in the Commissioner's office. Here the attempted settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in the Commissioner's office. We think that Congress intended by the statute to prescribed the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner's office; *289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc. R.R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288, 296. It is plain that no compromise is authorized by this statute which is not assented to by the Secretary of the Treasury. Leach v. Nichols (C.C.A.) 23 F. (2d) 275, 277. For this reason, if for no other the informal agreement made in this case did not constitute a settlement which in itself was binding upon the Government or the Mills. And, without determining whether such an agreement, though not binding in itself, may when executed become, under some circumstances, binding on the parties by estoppel, it suffices to say that here the findings disclose no adequate ground for any claim of estoppel by the United States. We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled. This brings us to the question whether on the findings of fact the Mills is entitled to recover the portion of the additional tax attributable to the disallowance of $783,656.06 of the amount paid to the directors which it had claimed as a deduction.[7] Under § 12(a) of the Revenue Act of 1916 the Mills was not entitled to this deduction unless the amount paid constituted a part of its "ordinary and necessary expenses" in the maintenance and operation of its business and properties. And in this suit the burden of establishing *290 that fact rested upon it, in order to show that it was entitled to the deduction which the Commissioner had disallowed, and that the additional tax was to that extent illegally assessed. The Court of Claims, however, made no finding that the amount disallowed by the Commissioner constituted a part of the ordinary and necessary expenses of the Mills. The findings are silent as to this ultimate fact — essential to a recovery by the Mills — and only show certain circumstantial facts relating to the payment made to the board of directors. Where the Court of Claims does not make a finding upon the ultimate question of fact upon which the rights of the parties depend, but merely makes findings as to subsidiary circumstantial facts which bear upon it, such findings will not support a judgment unless the circumstantial facts as found are such that the ultimate fact follows from them as a necessary inference and may be held to result as a conclusion of law. See United States v. Pugh, 99 U.S. 265, 269; Winton v. Amos, 255 U.S. 373, 395. The findings show that for many years it has been the practice of many corporations engaged in the woolen manufacturing business to base the compensation of the directors and executive officers upon a percentage of profits. Upon the organization of the Mills in 1890 the stockholders adopted a by-law providing that at the close of the business year the net profits should be distributed by paying a dividend of 6 per cent to stockholders and applying the balance remaining as follows: (a) placing 5 per cent in a reserve fund; (b) paying 25 per cent "As a bonus to the board of directors"; and (c) paying 70 per cent as additional dividend to the stockholders. The stockholders amended this by-law in 1903 by increasing the bonus of the board of directors to 40 per cent; in 1905, by providing, instead of a "bonus," that "compensation" *291 equal to 40 per cent should be "paid to the board of directors for their services"; and in 1908, by reducing such compensation to 32 per cent [that is 30.08 per cent of the net profits.] This by-law remained in force until after the taxable year 1917; and during the entire period "compensation" was paid to the directors in accordance therewith. From the outset the determination of the total amount of profit and of the aggregate amount payable to the board of directors was made by the board itself; and it likewise determined the basis of the apportionment among the several directors of the aggregate amount payable to the board as a whole. No contract was made with any director as to what his compensation should be other than such as was implied from his election and service as a member of the board in accordance with the by-law and the customary practices of the company, which each knew. At all times each director also held a position as an executive officer or manager of a department of the Mills. The gross assets of the Mills increased from $1,114,149.63 in 1890 to $28,893,777.12 in 1917; and its net assets, including reserves, from $37,136.35 to $10,999,862.48. Its net income increased from $784,334.44 in 1910 to $7,953,512.80 in 1917; and the amount paid the directors in pursuance of the by-law increased, with some fluctuations, from $268,444.19 in 1910, to $400,935.18 in 1915, $693,617.16 in 1916, and $1,565,739.39 in 1917.[8] In 1917 there were the members of the board, so that if the total amount had been apportioned ratably, each would have received $156,573.93. And in that year each member of the board, in addition to the part of the aggregate in fact apportioned to him individually, also received a salary of $9,000. *292 The findings do not show the nature or extent of the services rendered by the board of directors or its individual members, either as directors, executive officers or department managers — the amounts apportioned and paid to each director — the basis of apportionment, whether the nature and extent of their individual services, the amount of their stockholdings, or otherwise — the value of their services — or the reasonableness of the purported compensation. We do not find it necessary to determine here whether the amounts paid by a corporation to its officers as compensation for their services cannot be allowed as "ordinary and necessary expenses" within the meaning of § 12 (a), merely because, and to the extent that, as compensation, they are unreasonable in amount.[9] However this may be, it is clear that extraordinary, unusual and extravagant amounts paid by a corporation to its officers in the guise and form of compensation for their services, but having no substantial relation to the measure of their services and being utterly disproportioned to their value, are not in reality payment for services, and cannot be regarded as "ordinary and necessary expenses" within the meaning of the section; and that such amounts do not become part of the "ordinary and necessary expenses" merely because the payments are made in accordance with an agreement between the corporation and its officers. Even if binding upon the parties, such an agreement does not change the character of the purported compensation or constitute it, as against the Government, an ordinary and necessary expense. Compare 20 Treas. Dec., Int. Rev., 330; Jacobs & Davies v. Anderson (C.C.A.), 228 Fed. 505, 506; *293 United States v. Philadelphia Knitting Mills Co. (C.C.A.), 273 Fed. 657, 658; and Becker Bros. v. United States (C.C.A.), 7 F. (2d) 3, 6. In the light of this principle it is clear that the findings do not show, as a matter of necessary inference resulting as a conclusion of law, that the amount paid the directors in excess of the $782,083.33 allowed by the Commissioner,[10] constituted part of the ordinary and necessary expenses of the Mills. On the contrary, as this amount so greatly exceeded the amounts which, as a matter of common knowledge, are usually paid to directors for their attendance at meetings of the board and the discharge of their customary duties, and was much greater than the amounts that had been paid in prior years,[11] and as there is no showing as to the amounts paid the individual directors, in addition to the salaries of $9,000 which each received — presumably for his service as an executive officer or department manager — or as to the nature, extent or value of their services, the findings raise a strong inference that the unusual and extraordinary amount paid to the directors was not in fact compensation for their services, but merely a distribution of a fixed percentage of the net profits that had no relation to the services rendered. Therefore, as the Mills has not sustained the burden of showing that the amount disallowed by the Commissioner was in fact part of its ordinary and necessary expenses, the judgment must, for this reason, be Affirmed. MR. JUSTICE HOLMES agrees with the result. NOTES [1] 39 Stat. 756, c. 463. [2] 40 Stat. 300, c. 63. [3] Sec. 3226 of the Revised Statutes had been previously amended by § 1318 of the Revenue Act of 1921, 42 Stat. 227, 314, c. 136, so as to provide that no suit or proceeding should be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected until a claim for refund or credit had been duly filed with the Commissioner of Internal Revenue; and further amended by § 1014(a) of the Revenue Act of 1924, 43 Stat. 253, 343, c. 234, so as to provide that such suit or proceeding might be maintained, whether or not such tax had been paid under protest or duress. And the right of the Mills to maintain this suit, although the tax had not been paid under protest or duress, is not questioned by the Government. [4] U.S.C., Tit. 26, § 158. [5] Since the date of the settlement here involved §§ 1312 and 1313 of the Revenue Act of 1921, § 1006 of the Revenue Act of 1924, and § 1106(b) of the Revenue Act of 1926 have dealt specifically with agreements in writing made by a taxpayer and the Commissioner, with the approval of the Secretary, that the previous determination and assessment of a tax shall be final and conclusive. [6] The findings indicate inferentially that some tax claims of the Mills for two other years were also included in the settlement; but the precise facts do not appear. [7] This is claimed in the brief filed for the Mills; and in the oral argument its counsel specifically stated that the Mills relied on the sufficiency of the findings and made no request that the case be remanded to the Court of Claims for additional findings, as the Solicitor General had suggested. [8] The figures for some other years are also given in tabulated statements included in the findings. [9] Later, by § 214(a) of the Revenue Act of 1918, 40 Stat. 1057, c. 18, it was specifically provided that the "ordinary and necessary expenses" should include "a reasonable allowance for salaries or other compensation for personal services actually rendered." [10] The amount allowed, it may be noted, was, in itself, $481,934.02 more than the average of the amounts that had been paid in the seven years immediately preceding, and $88,466.17 more than the greatest amount that had been paid in any one year. [11] See note 10, supra.

359 F.2d 886 Application of Albert BOWERS and James C. Orr. Patent Appeal No. 7584. United States Court of Customs and Patent Appeals. May 12, 1966. Evelyn K. Merker, Leon Simon, Washington, D. C., for appellants. Clarence W. Moore, Washington, D. C. (Jack E. Armore, Washington, D. C., of counsel), for Commissioner of Patents. Before RICH, Acting Chief, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.* SMITH, Judge. 1 Syntex Corporation is the common assignee of the appealed application1 and the 2 patents2 relied upon for the rejection. Different joint inventors are named in the application and in the patents. Albert Bowers, one of the nominal appellants here, is one of the joint inventors in the appealed application and in the 2 above named patents. The appealed application is senior in filing date to the applications upon which the patents were issued. 2 The Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants' application as "unpatentable over" claim 1 of the Bowers and Edwards patent and affirmed the rejection of appealed claim 13 as being "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 Closely related subject matter is disclosed in the patents and the application on appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the presence in the steroid structure of a 2-methyl group instead of a hydrogen atom. 4 It was the examiner's position that the 2-methyl compounds of the appealed claims are so closely related to the hydrogen containing, or 2-desmethyl, compounds of the indicated patent claims as to be, in the words of the Board of Appeals, "obvious therefrom to those skilled in the art." 5 The statutory basis for the rejection is not clear from the record. While using certain of the language of 35 U.S.C. § 103, in affirming the examiner's rejection,4 the board does not explain how the patents, issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the invention here claimed. Earlier filed applications of "another" describing the invention claimed in a later filed application are prior art under 35 U.S.C. § 102(e) and as such are available for consideration in a 35 U.S.C. § 103 "obviousness" rejection Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304. However, the rule does not warrant a rejection under 35 U.S.C. §§ 102 or 103 on patents that issued on later filed applications. Such references are clearly excluded by the precise language of sections 102(e) and 103. 6 The opinion of the board seeks to justify the rejection in its statement: 7 * * * The Examiner rules that, in view of this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of the appealed claims, since appellants' assignee had received patent protection on essentially the same inventions in the Bowers and Edwards and the Bowers and Berkoz patents. * * * * * * * * * 8 It is unfortunate that the issue of "double patenting" was not raised at the earliest possible date * * *. 9 There is no objection of record concerning this being a new ground of rejection. 10 Subsequent to the decision of the board, a petition for rehearing was filed in which the separate nature of the involved inventions was pointed out and discussed. Later, and subsequent to our decision of May 14, 1964 in In re Robeson, 331 F.2d 610, 51 CCPA 1271, appellants filed a letter of June 19, 1964, in which the Board of Appeals was requested to consider the disclaimer, filed concurrently therewith, in which they disclaimed: 11 * * * the terminal portion of the term of the above identified application Serial No. 138,265 as would extend beyond October 2, 1979, the expiration date of U. S. Patent No. 3,056,814, with respect to Claims 1-12, and as would extend beyond March 19, 1980, the expiration date of U. S. Patent No. 3,082,220, with respect to Claim 13. 12 Appellants' letter of June 19, 1964 refers to our Robeson decision as being "directly in point" and argued: 13 * * * that the attached disclaimer obviates the basis of the double patenting rejection of claims 1-13 on appeal, over the common assignee's Patent No. 3,056,814 and No. 3,082,220. The disclaimer precludes any extension of the monopoly since it provides for the expiration of the above identified application, if patented, simultaneously with Patent Nos. 3,056,814 and 3,082,220. 14 In its decision on the petition for reconsideration, the board considered the contents of the letter of June 19, 1964, and criticized one of the signatures appearing on the disclaimer. It then stated: 15 Assuming that this paper were a disclaimer operative to disclaim the indicated portions of a patent granted on the instant applications, we could give it no weight in the present appeal because it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465, 332 F.2d 816] 141 USPQ 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. * * * 16 Subsequently appellants filed a new disclaimer to overcome the board's criticism as to form which was accepted and has been duly recorded in the United States Patent Office. By order of the court upon granting appellants motion to correct diminution of record, which was not objected to by the Solicitor for the U. S. Patent Office, this new disclaimer was added to the record. The Solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims and the patent claims. 17 We find that we are here dealing with different inventions. As pointed out in appellants' brief: 18 It is apparent that a single invention is not involved. The inventions of the involved application and those of the reference patents are not identical; they are different and distinct inasmuch as the inventions differ in the presence of a CH2 grouping at a specific position in the complex steroid molecule. It is clear that the claims of the Bowers and Orr application, which was the first filed application, define an invention separate and different from those defined in the reference patents owned by the same assignee. 19 Appellants also point out in their brief that "Each invention would be patentable absent the other," which is not disputed by the Patent Office. The brief then continues: 20 It is clear that separate, distinct and nonidentical inventions are described in the application at bar and in the patented inventions. It is therefore contended that a terminal disclaimer is appropriate in the case at bar to overcome a double patenting rejection under the holding of In re Robeson and In re Kaye. 21 As we stated in Kaye, supra, 332 F.2d at 819, 51 CCPA at 1468, in reference to Robeson, supra: 22 In that case we held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, it seems to us that the board's position must stand or fall on the issue of whether our decisions in Robeson, supra, and Kaye, supra, as stated by the board, "apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity." 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to be obviated by the terminal disclaimer were predicated in each case on the same inventorship. However, we find this to be a distinction without legal significance in the present context. 25 Statutory authority for the terminal disclaimer here in issue is found in 35 U.S.C. § 253, the second paragraph of which provides: 26 In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 It is to be noted that the parties authorized by the statute to file the terminal disclaimer are "any patentee or applicant." It seems clear that Congress intended that the remedies of this section were also to be available to assignees in view of the express provision of 35 U.S.C. § 100(d) that: 28 (d) The word "patentee" includes not only the patentee to whom the patent was issued but also the successors in title to the patentee. 29 The statutory provisions thus support appellants' position and are contrary to the solicitor's arguments. 30 The solicitor argues that the common assignee here, in effect, seeks to circumvent sections 102(e) and 103 by filing a terminal disclaimer. This argument lacks substance as here there can be no resort to those sections. Where the inventorship is different and there is a common assignee, as here, the first filed application which issues as a patent is "by another" and if the invention claimed in the second application is "described" in the first application, it is available under section 102(e) as prior art which is relevant for consideration under section 103. If the second filed application issues first, there can be no resort to section 102(e) to establish it as prior art under section 103 as against the first filed application. This results from the controlling effect which is given under the statute to the United States filing dates. Sections 102 (e) and 103 provide grounds of rejection which are distinct and separate from "double patenting," requiring different inquiries and representing mutually exclusive grounds for rejecting claims. Where there are separate inventions and the ground of rejection is double patenting, based on the alleged unlawful timewise extension of monopoly, the rejection may be overcome by a terminal disclaimer. 31 We are of the opinion, therefore, that the common assignee of the appealed application and the involved patents is entitled to proceed under 35 U.S.C. § 253. 32 The solicitor relies on two decisions in other courts, Sterling Varnish Co. v. Louis Allis Co., 145 F.Supp. 810 (E.D.Wis. 1956), aff'd on rehearing, 149 F.Supp. 826 (1957); and Hays v. Reynolds, 242 F.Supp. 206 (D.C.1965), aff'd, Hays v. Brenner, 357 F.2d 287 (D.C. Cir. 1966). The solicitor has extracted from these two cases the rule that a common assignee may not file a terminal disclaimer to obviate a double patenting rejection. Upon analysis of the cases we find they do not support such a rule. 33 In the Sterling case the court sustained a defense of double patenting in a suit for patent infringement (145 F.Supp. 810). The two patents issued to the same inventor (a fact apparently overlooked by the solicitor) and were assigned to the plaintiff. Both patents related to coating an electrical winding with varnish, the later issued patent being a continuation-in-part of the first. The first patent required that the winding be coated by "rotating" in the varnish while the second patent required that the winding be coated by "contacting" or "immersing" the winding in the varnish. Also the first patent called for "heating" the winding to the temperature of the varnish while the second patent required that the winding be "highly heated" or "at a temperature not below 275° F." The court found the invention to be the same in both patents, the alleged differences being no more than the "mere use of obviously alternate, immaterial and equivalent terms." 145 F.Supp. at 815. 34 Plaintiff filed a terminal disclaimer as to the later issued patent after the court's decision and on plaintiff's motion to modify the decision the court found the two patents claimed the "same invention" and held that the terminal disclaimer was "legally insufficient," (149 F.Supp. 829) relying on our decision in In re Siu, 222 F.2d 267, 42 CCPA 864. In Siu we held that when in fact a second application claimed the same subject matter as a previously issued patent, a double patenting rejection was proper and a terminal disclaimer would not overcome such a rejection. The Sterling and Siu decisions are not applicable to the fact situation here in which the appealed application and the issued patents in fact claim different inventions.5 Thus in the instant case, unlike the situation in Sterling and Siu, there are clearly three inventions involved and the respective claims define different subject matter. 35 In Hays a rather complex record clouds the issue ultimately decided by the courts. Hays' claims were rejected in view of a patent to Keating. The Hays application and the Keating patent were commonly assigned. The application on which the Keating patent issued, although having a later filing date than the Hays application, was, however, a continuation-in-part of three applications filed prior to Hays. The examiner's answer before the board stated two grounds of rejection of the appealed Hays' claims: first, as "unpatentable over the claims of the Keating patent;" and second, as "lacking invention over the Keating parent case No. 598,215, as noted in the Keating patent." The examiner argued that the filing date of the Keating parent case had not been overcome. 36 The board in its decision affirming the examiner refers to the first ground of rejection as "double patenting." Concerning the second basis for the rejection, the board stated: 37 Appellant has filed no reply to this rejection and inasmuch as we find no obvious error therein it is sustained.6 38 In a civil action under 35 U.S.C. § 145 in the District Court, District of Columbia, the position of the Patent Office was that the Hays claims stood rejected on two grounds: (1) double patenting based on the claims of the Keating patent; and (2) that the subject matter claimed by Hays was obvious in view of a prior disclosure by Keating. The filing date of the parent application of Keating and the subject matter carried over into the Keating patent was relied on by the Patent Office. The solicitor disclaimed any reliance on the Keating abandoned application alone. The solicitor explained that this had been the position of both the examiner and the board. 39 The District Court in its decision utilized both "double patenting" and section 103 language in finding for the Commissioner. The findings of fact make it clear that the court found the subject matter claimed by Hays would have been obvious to one of ordinary skill in the art having the benefit of the work done previously by Keating. The record shows that the District Court relied on the earlier filing date of Keating. In double patenting situations, of course, the filing date is of no concern, which suggests to us that the real basis for the decision of the court was 35 U.S.C. § 103. 40 The briefs filed in the Court of Appeals, District of Columbia, in the Hays case and that court's opinion leave no doubt that the statutory basis for refusing a patent to Hays was 35 U.S.C. § 103, and this notwithstanding some of the District Court's findings of fact and conclusions of law. 41 The solicitor stated in his brief before the Court of Appeals in the Hays case: 42 * * * Hence, it is clear from the record that Keating's parent application, which was filed on July 16, 1956 antedates the application at bar. Section 120 of Title 35 USC makes that date the effective date of all subject matter disclosed in Keating's patent which is also disclosed in the parent abandoned application. 43 * * * * * * 44 * * * Hays' purported invention is a narrow improvement over the Keating invention * * * [and] that improvement must be evaluated in accordance with statutory standards (35 U.S.C. § 103) to determine whether appellants are entitled to a patent based on the claims at issue. 45 In view of the fact that Keating's work, as disclosed in the abandoned application and carried forward into the issued patent, was subject matter "described in a patent granted on an application for patent by another [Keating] filed in the United States before the invention thereof by the applicant [Hays]" it was prior art under 35 U.S.C. § 102(e) and 103; Hazeltine Research, Inc. v. Brenner, supra. Despite this fact, both parties injected some double patenting language into the issue before the Court of Appeals.7 46 The Court of Appeals in its opinion refused to consider the merits of any alleged double patenting rejection: 47 Appellants' principal effort before us is limited to showing that, while the Hays "invention" may be obvious under 35 U.S.C. § 103, "in any event the claims of Hays define a different and significantly different invention from the invention pointed out by the claims of Keating and thus the double patenting rejection is obviated by the terminal disclaimer." (Emphasis in appellants' brief.) In answering this contention, we find it unnecessary to undertake an analysis of the differences between the Keating patent and the Hays application, or to determine whether the Hays "invention" is different from the Keating invention. Since appellants' contention for patentability based on the filing of the terminal disclaimer assumes obviousness, § 103 is an absolute bar to the grant of a patent. (357 F.2d at 289) 48 We agree with the Court of Appeals in Hays that a terminal disclaimer will not obviate a rejection for obviousness in view of the prior art under 35 U.S.C. § 103. That situation is not presented here and the solicitor's reliance on the Hays decision is misplaced. The facts here, however, present a case in which the filing of a terminal disclaimer, as permitted under section 253, is effective to overcome a rejection based only on double patenting. The different chemical compounds defined in the respective claims are different inventions. The claims specify these differences and thus do not define the same invention. In re Siu, supra. 49 In summary, where there are in fact separate inventions, each of which is considered patentable over the prior art absent a patent on the other, a rejection based upon double patenting can be obviated by the filing of a terminal disclaimer under 35 U.S.C. § 253 which may be filed by a common assignee. 50 In view of the foregoing, the decision of the board is reversed. 51 Reversed. Notes: * United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Chief Judge WORLEY, pursuant to provisions of Section 294(d), Title 28, United States Code 1 Bowers and Orr, Ser. No. 138,265, filed Sept. 15, 1961 for "Cyclopentanophenanthrene Derivatives and Process." 2 Bowers and Edwards, Patent No. 3,056,814 issued Oct. 2, 1962, filed Nov. 2, 1961; Bowers and Berkoz, Patent No. 3,082,220 issued Mar. 19, 1963, filed Feb. 21, 1962 3 An additional reference cited by the examiner "to show the state of the art" was not made a part of the record before this court. We therefore do not consider its teachings in this appeal 4 It is clear from the following statement in the examiner's answer that the rejection was based on obviousness under 35 U.S.C. § 103: Claims 1-12 are rejected as being unpatentable over claim 1 of copending application Serial No. 149,502, of common assignee, now U. S. Patent No. 3,056,814. It is the Examiner's position that the claimed 2-methyl compounds are so closely allied to the 2-desmethyl compounds set forth in the reference, as to be obvious to those skilled in the art and therefore unpatentable under the terms of 35 U.S.C. 103. * * * * * * * * Claim 13 has also been rejected as being unpatentable over claim 16 of copending application Serial No. 175,680, of common assignee, now U. S. Patent No. 3,082,220, for the same reasons as set forth in the prece[e] ding paragraph. * * * * * * * * In view of the cited references, the instant claimed 2-methylated compounds are deemed obvious to those skilled in the art and therefore unpatentable under the terms of 35 U.S.C. 103. * * * No such rejection is warranted under section 103. In view of the later filing date of the reference patents they cannot properly be considered as prior art for purposes of a section 103 rejection. 5 InSterling, sections 102(e) and 103 were inapplicable during prosecution because of the same inventorship and copendency. In Siu, involving different inventorship and a common assignee, the patent issued on the earlier filed application. The Patent Office pursued the narrower ground of rejection, double patenting, because the patent claimed the same subject matter as in the second application. 6 On petition for rehearing the board adhered to its original decision stating a reply to the second rejection during oral argument was no substitute for written argument. On petition to the Commissioner, reopening of prosecution of the case was denied because an action had been commenced in the District Court. In view of the arguments made in the District Court and Court of Appeals, the solicitor apparently preferred to pursue a rejection under section 103, discussed infra in the text, and did not rely on the alleged failure of Hays to reply to the rejection 7 Appellant apparently tried to avoid the section 103 obviousness rejection by calling it "double patenting" so as to argue that a terminal disclaimer obviated the rejection. The solicitor apparently wished to characterize the issues in In re Robeson and in In re Kaye, supra, as involving section 103, which they did not While in those cases we held that an "obvious" type double patenting rejection could be overcome by filing a terminal disclaimer, that does not mean that a section 103 rejection for obviousness may be similarly overcome. Under section 103, a reference patent is available for all it fairly discloses to one of ordinary skill in the art. There is no inquiry as to what is claimed therein. In the "obviousness" type of double patenting rejections, the test is not what would be obvious to one of ordinary skill in the art from reading the specification on the claims. In re Sarett, 327 F.2d 1005, 51 CCPA 1180. Rather, the inquiry is much more limited in nature and the patent is considered only to compare the invention defined in the patent claims with the invention defined in the application claims. 52 KIRKPATRICK, Judge (concurring). 53 The opinion in this case is a logical extension of the reasoning of the Court in In re Robeson, 331 F.2d 610, 51 CCPA 1271, and In re Kaye, 332 F.2d 816, 51 CCPA 1465. The rationale of those decisions requires the reversal of the board's decision in the present case and, for that reason only, I concur.

125 Ariz. 53 (1980) 607 P.2d 372 AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Corporation, Appellant and Cross-Appellee, v. RANIER CONSTRUCTION CO., INC., Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied March 11, 1980. *54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne L. Burton, Michael Green, Phoenix, for appellant and cross-appellee. Thomas W. Murphy, Pago Pago, American Samoa, for appellee and cross-appellant. GORDON, Justice: This appeal involves a suit for breach of a construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co., Inc. (Ranier). After trial by jury, a verdict was returned for Ranier in the amount of $130,000 and for American in the amount of $10,000 on its counterclaim. The trial judge determined that neither party was entitled to recover attorney's fees from the other. Both parties appeal. Having jurisdiction pursuant to 17A A.R.S., Rules of Civil Appellate Procedure, Rule 19(e), we reverse the judgment in favor of Ranier and the court's disposition of attorney's fees. American contracted with Ranier to construct a building for $517,286.30. To date, American has paid Ranier $457,247.47. The contract required American to make monthly progress payments for 90% of the work completed each month upon the issuance by the architect of a certificate for payment. American refused to make the final payment, consisting of the 10% retained each month and the amount due for work completed after the date of the last progress payment. It claimed that Ranier had breached the procedural requirements of the contract and had failed to construct the building in a workmanlike manner and in accordance with the plans and specifications. Ranier subsequently instituted suit for breach of the contract, to recover funds retained under the contract and damages for delays and lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faulty construction and delays. The jury returned a single verdict for Ranier in the amount of $130,000 and a single verdict for American in the amount of $10,000. American appeals the verdict in favor of Ranier. Ranier cross appeals the trial court's refusal to award attorney's fees to Ranier as the prevailing party.[1] At the close of Ranier's case and again at the close of all the evidence, American moved for a directed verdict, which was denied. One of the grounds urged by American was that Ranier had failed to meet a condition precedent to the right to final payment, because it had failed to procure from the architect a final certificate for payment as provided in the contract. *55 American renews this argument on appeal, contending that the court erred in denying its motion for a directed verdict. Article 7 of the contract provides: "Final payment constituting the entire unpaid balance of the Contract Sum shall be paid by the Owner to the Contractor within thirty (30) days after Substantial Completion of the Work * * * provided the work has then been completed * * * and a final Certificate for Payment has been issued by the Architect." Issuance of the final certificate for payment is governed by paragraph 9.7.2 of the General Conditions of the contract: "Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due and payable." The architect issued a certificate of substantial completion,[2] but Ranier admits that a final certificate for payment, as provided for in the contract, was never applied for or obtained. American asserts, and it is undisputed by Ranier, that it was Ranier's responsibility to procure issuance of the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the formal requirements of the contract in other respects. Ranier cites as examples the fact that change orders, although done at the owner's request, were not signed by the owner; that on occasion the owner even ordered changes to be made without execution of a formal change order; that extensions of time were granted both formally and informally; and that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. We disagree. Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment. See, e.g., City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411 (1957). Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right. Occidental Life Insurance Co. v. Jacobson, 15 Ariz. 242, 137 P. 869 (1914); see Bolo Corp. v. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970). The waiver of one right under a contract does not necessarily waive other rights under the contract. See O'Malley v. Cummings, 86 Ill. App.2d 446, 229 N.E.2d 878 (1967). Thus, even if American did waive other rights under the contract relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for *56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F.2d 540 (7th Cir.1969). Ranier does not indicate any evidence, nor does any evidence appear in the record, that the parties ever disregarded any of the terms of the contract relating to payments. Accordingly, we find no waiver.[3] Ranier also argues, alternatively, that certain acts by American[4] prevented fulfillment of the condition precedent, thereby excusing performance. We fail to perceive how these acts prevented Ranier from seeking a final certificate of payment from the architect. Similarly, we reject Ranier's assertion that seeking a final certificate of payment would have been a futile act, because American had already demonstrated its unwillingness to co-operate by refusing to sign the certificate of substantial completion. The failure of American to sign the certificate of substantial completion has nothing to do with Ranier's obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from American is due. Moreover, even if Ranier is correct in assuming that American would not have made the final payment had Ranier sought and received the final certificate of payment from the architect, Ranier is not excused from the contractually-imposed duty of acquiring the certificate. Without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment[5] had been completed and that the contract was, thus, fully performed. At the trial, in fact, the architect testified that after he issued the certificate of substantial completion, the building was not complete, and items on the "punch" list remained unfinished.[6] We agree with American that the final certificate for payment is not "procedural chaff." It is a major substantive right, which "serves a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans and specifications, spurs him to stay with the job and, upon completion, furnishes the main incentive to make conforming corrections." Loyal Erectors, Inc. v. Hamilton & Son, Inc., 312 A.2d 748, 755 (Me. 1973). The trial court erred in failing to direct a verdict in American's favor because of Ranier's *57 non-compliance with the condition precedent of obtaining a final certificate of payment. American challenges the jury's award to Ranier on several other grounds, which we need not consider, because we reverse on the basis of the court's denial of American's motion for a directed verdict. We next address the issue of attorney's fees raised by Ranier. The contract between American and Ranier provides for attorney's fees in the following language: "In the event of litigation between the parties hereto arising out of this Contract or the performance of the Work hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees in addition to any other damages allowed by law." Supplementary General Conditions, Paragraph 15.3. The trial judge would not allow either party to recover attorney's fees from the other, because he believed that both parties had breached their agreements, and he considered this finding implicit in the jury's verdicts. Because of our decision today reversing the judgment in favor of Ranier, American is clearly the prevailing party and is entitled to recover attorney's fees by the above express provision of the contract. The judgment in favor of Ranier is reversed and remanded to the trial court with directions to enter judgment in American's favor upon Ranier's complaint and to award attorney's fees to American. HOLOHAN, V.C.J., and HAYS and CAMERON, JJ., concurring. STRUCKMEYER, Chief Justice, dissenting. I cannot agree with the disposition of this case by the majority of this Court. In order that the case be placed in perspective, certain facts should be emphasized. Eight years ago, Ranier Construction Company entered into a contract by which it agreed to construct an office building for American Continental for $517,286.30. Approximately three years later, Ranier brought this suit for damages for partial nonpayment of the cost of constructing the building. American Continental asserted that Ranier had not constructed the building in conformity with standards of good workmanship and that no final certificate for payment had been issued by the architect as required by the contract. American Continental counterclaimed against Ranier for an amount necessary to put the building in compliance with the construction agreement. After a trial and a view of the building by the jury, a verdict of $130,000 was returned in favor of Ranier, and $10,000 in favor of American Continental on its counterclaim. American Continental employed the architectural firm of Haver, Nunn & Nelson, Inc., by separate written agreement, to prepare the plans for the building and to supervise its construction. By the specific language of paragraph 2.2.2 of the construction contract, the architect was made the owner's agent. American Continental early became dissatisfied with the progress of the work, and the delay in completion of the contract became one of its grounds for refusal to pay Ranier the balance due on the contract. By paragraph 8.3.1 of the construction contract, as amended, it is provided: "If Contractor is delayed at any time in the progress of the Work by an act * * of the Owner or Architect or by any employee of either, or by any separate contractor employed by Owner, or by changes ordered in the Work * * * then the Contract time shall be extended by a Change Order for a reasonable period of time as determined by the Architect to cover such occurrences." The evidence at the trial established that the architect had extended by change order every delay of which American Continental complained. (By amended subparagraph 2.2.10, either party was authorized to bring an action "concerning the matter decided by the architect.") The construction contract also provided by paragraph 3.2.4, "The owner shall issue *58 all instructions to the Contractor through the Architect." American Continental early breached this clause of the contract by placing a personal representative on the job site who gave orders directly to sub-contractors as well as the contractor's personnel working on the job. By the construction agreement, when the work on the building was substantially completed, Ranier was authorized to request the architect to issue a Certificate of Substantial Completion. A Certificate of Substantial Completion is issued by the architect when the building is in such a condition that the owner can occupy it. At that time, the responsibility for insurance and maintenance of the property becomes the owner's. Accompanying the Certificate of Substantial Completion is what is called the "final punch list." This is a list of matters to be corrected or completed before the architect will issue a Certificate of Final Payment. Copies of the Certificate of Substantial Completion and "final punch list" were issued by the architect and delivered to Walter Bush, President of American Continental, for his signature on October 10, 1973. However, Bush refused to accept the architect's "final punch list", submitting a list of things with which he required Ranier to comply before the building would be acceptable to him. Lawrence Blesh, President of Ranier Construction, Inc., later testified at the trial without contradiction: "Q Did Ranier comply with the punch list that the architect prepared? A Yes, we did. Q Did Mr. Bush himself prepare his own punch list? A Yes, he did. Q Did you attempt to comply with that? A We attempted to." Eventually an impasse developed with the architect supporting Ranier against Bush's demands for further corrections as being unreasonable. Blesh testified: "Q Was payment demanded by you from Mr. Bush? A Yes. Q Mr. Bush refused to make payment? A Yes, he did." Blesh, in bringing suit, obviously treated Bush's conduct, including his refusal to make payment, as an anticipatory breach. "We have recognized that an action may be maintained for breach of contract based upon the anticipatory repudiation by one of the parties to the contract. Sarle v. School Dist. No. Twenty-Seven of Pima County, 32 Ariz. 96, 255 P. 994. It is well established that in order to constitute an anticipatory breach of contract there must be a positive and unequivocal manifestation on the part of the party allegedly repudiating that he will not render the promised performance when the time fixed for it in the contract arrives. Mobley v. New York Life Ins. Co., 295 U.S. 632, 55 S.Ct. 876, 79 L.Ed. 1621, 99 A.L.R. 1166; Salot v. Wershow, 157 Cal. App.2d 352, 320 P.2d 926; Atkinson v. District Bond Co., 5 Cal. App.2d 738, 43 P.2d 867; Preston v. Love, 240 S.W.2d 486 (Tex.Civ.App. 1951); 4 Corbin on Contracts § 973 (1951); 5 Williston on Contracts § 1324 (rev. ed. 1937); Restatement of the Law of Contracts § 318." Diamos v. Hirsch, 91 Ariz. 304, 372 P.2d 76 (1962). One further fact should be stressed. In December 1973, prior to the bringing of this action, American Continental took possession of the building and has been occupying and using it for the purpose for which it was built ever since. It is clear from the most cursory perusal of the facts in this case that when ultimately an impasse developed, Bush treated the construction contract as at an end. It is of no significance or materiality to this lawsuit as to who was at fault in causing the final repudiation[1] because even if we assume *59 that it was Ranier, the law does not foreclose the right to recover for the proper work done under the contract and for materials which were furnished to the building. American Continental acquired a building which the architect said was substantially completed in conformity with the plans and specifications. "The common-law rule required literal performance of building contracts, but the American courts generally hold that substantial performance of such contracts will support a recovery either on the contract or on a quantum meruit basis. Three reasons are given for that holding. One is that materials and labor upon a building are such that even if rejected by the owner of the land he receives benefit thereof. Since the owner receives the benefits of the builder's labor and materials, it is equitable to require the owner to pay for what he gets. The second reason is that it is next to impossible for a builder to comply literally with all the minute specifications in a building contract. And the third is that the parties are presumed to have impliedly agreed to do what is reasonable under all the circumstances with reference to the subject of performance. 6 R.C.L., page 667, Sec. 343; 9 Am.Jur., page 30, Sec. 40; 17 C.J.S. Contracts § 508, page 1085; Hickory Investment Co. v. Wright Lumber Co., 152 Miss. 825, 119 So. 308." Standard Millwork & Supply Co. v. Mississippi Steel & Iron Co., 205 Miss. 96, 38 So.2d 448 (1949). The California Court of Appeals, in Martin v. Karsh, 142 Cal. App.2d 468, 298 P.2d 635, 636-637 (1956), put it this way: "The law is settled in this state, that in the case of building contracts, especially where the owner has taken possession of the building and is enjoying the fruits of the contractor's work, no literal compliance with the contract in all details and no absence of all defects and imperfections is required to entitle the contractor to recovery on the contract, but that he can have such recovery after substantial performance in good faith, if the deviations and imperfections do not substantially affect the usefulness of the building for the purposes for which it was intended, subject to an allowance for damages if the owner has suffered any by reason of the failure to perform strictly." The Rhode Island court, in Ferris v. Mann, 99 R.I. 630, 210 A.2d 121 (1965), said: "The common-law rule that there must be complete or absolute performance with the terms of a building contract for plaintiff to recover the agreed consideration has long since been relaxed in this country. It has been repeatedly held in a number of jurisdictions that where the builder has not wilfully deviated from the specifications of a contract and all that remained to be done in order to constitute performance within the meaning of the contract is of a trivial or minor nature, the builder is entitled to recover the contract price with adjustments made by the court to compensate defendant for the unfinished or unsatisfactory work. See Connell v. Higgins, 170 Cal. 541, 150 P. 769, Sgarlat v. Griffith, 349 Pa. 42, 36 A.2d 330, and Pelletier v. Masse, 49 R.I. 408, 143 A. 609." 210 A.2d at 124. The Missouri Court of Appeals, in Talbot-Quevereaux Const. Co. v. Tandy, 260 S.W.2d 314, 316 (1953), said: "In the case of substantial but defective performance, where the contractor sues for the contract price and the owner defends by way of recoupment, the owner, upon proof of defective performance, is entitled to have the contractor's recovery reduced by the amount that would reasonably be required to remedy the defects and make the structure conform to the plans and specifications. Spink v. Mueller, 77 Mo. App. 85; Walter v. Huggins, 164 Mo. App. 69, 148 S.W. 148." And see Jim Arnott, Inc. v. L & E, Inc., 539 P.2d 1333, 1336 (Colo. App. 1975), wherein the court said: *60 "If it appears that a contractor has substantially performed his contract, then he is entitled to the contract price, less an offset for the cost to remedy the deficiencies. The purpose of the doctrine of substantial performance is to avoid injustice where a building contractor has performed all major aspects of the construction and the owner seeks to avoid payment for inconsequential defects in the work." The foregoing statements beyond question reflect the status of the law in Arizona. In Cracchiolo v. Carlucci, 62 Ariz. 284, 157 P.2d 352 (1945), a building contract was entered into for the construction of a tourist court or motel near Tucson. The owner took possession of the motel and opened it for business. He refused to pay some $14,000 on the contract and for extras, claiming non-performance of the contract in accordance with the plans and specifications. It was established that the contractor failed to regrade and repave the motel driveway. This Court said: "Where a contract has been partly performed by one party and the other has derived a substantial benefit therefrom, the latter cannot refuse to comply with its terms simply because the former fails to complete performance. Where there has been part performance and there is a breach of a promise which goes only to a part of the consideration and the breach may be compensated for in damages, the breach does not relieve the other party from his obligation to perform his promise. * * * We believe [these principles] to be applicable to the facts here." 62 Ariz. at 292, 157 P.2d at 355. When Ranier finally left the job, the construction contract was ended, irrespective of who was responsible for causing its ultimate repudiation. The enforcement by this Court of a condition in the contract which had obviously been renounced, forecloses any recovery by the contractor for his labor and materials put into the building, even though the architect had issued a Certificate of Substantial Completion, and American Continental had occupied the building, thereby unjustly enriching the owner.[2] The jury, after a twelve-day trial devoted to evidence concerning Ranier's work and after a view of the building, brought in a verdict for Ranier for $130,000 and offset that verdict with a verdict for American Continental on its counterclaim for $10,000. The ultimate absurdity resulting from the Court's opinion is that the owner of the building gets $10,000 for either deficiencies or delays in construction from the contractor, but the contractor is never paid for his work and materials. The order of this Court reversing the judgment of the trial court with directions to enter judgment in American Continental's favor upon Ranier's complaint and, in addition, awarding attorney's fees to American Continental is a gross miscarriage of justice. I dissent. NOTES [1] We note that Ranier is not appealing the jury's $10,000 verdict in favor of American, and we, therefore, do not consider that facet of the judgment. [2] Issuance of the certificate of substantial completion is provided for in Paragraph 9.7.1 of the General Conditions of the contract: "9.7.1. When the Contractor determines that the Work or a designated portion thereof acceptable to the Owner is substantially complete, the Contractor shall prepare for submission to the Architect a list of items to be completed or corrected. The failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. When the Architect on the basis of an inspection determines that the Work is substantially complete, he will then prepare a Certificate of Substantial Completion which shall establish the Date of Substantial Completion, shall state the responsibilities of the Owner and the Contractor for maintenance, heat, utilities, and insurance, and shall fix the time within which the Contractor shall complete the items listed therein. The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of the responsibilities assigned to them in such Certificate." [3] Because we find no waiver, we need not address American's contentions that waiver must be specially pleaded and that Ranier failed to plead it. [4] The president of American at one point, in a fit of anger, broke a panel of drywall with an ax to protest what he considered shoddy workmanship. He also hired a special supervisor who Ranier claims improperly began giving orders directly to the workmen. [5] The list of items to be completed is provided for in Paragraph 9.7.1 of the General Conditions of the contract. See footnote 2 infra. [6] The dissenting opinion discusses another argument to support Ranier's contention that failure to fulfill the condition precedent should not preclude it from bringing suit for the contract price. This is the theory that the contract had been repudiated, thereby obviating the necessity to comply with the condition precedent. We are convinced that the facts of the case do not support repudiation. American's refusal to make the final payment may not be equated with a denial on its part of its obligation to pay under any circumstances, no matter what Ranier did, thereby bringing the contract to an end. While refusing to pay, American continued to demand that Ranier complete the punch list, a clear indication that American considered the contract extant. As stated in its answer, American refused to make final payment because it believed that Ranier had not completed construction according to the contract plans and specifications. Thus, American thought that its duty to make final payment had not yet arisen according to the terms of the contract, not that its contractual obligation was forever terminated. Additionally, the dissent relies on the doctrine of substantial performance, apparently satisfied that Ranier's deviations were so trivial as to give rise to the doctrine, despite contradictory evidence. By express provision of the contract, the parties set up a system of progress payments whereby the agreed upon value of full compliance by Ranier with the plans and specifications called for within the contract, and as vouched for by the architect, was the final payment by American. To allow the doctrine of substantial performance to operate here would fly in the face of the original intent of the parties and would nullify the contract. [1] The court instructed the jury: "First, in regard to Ranier's complaint if you find that American Continental did not breach the contract, your verdict must be for American Continental. If, however, you find that American Continental breached the contract, your verdict must be for Ranier, * *." Manifestly, the jury must have found that American Continental breached the contract. [2] The court instructed the jury: "As one of its defenses to Ranier's claims that American Continental has breached the contract by failing to pay the entire amount agreed upon for construction, American Continental has alleged that Ranier has failed or omitted to establish that it has performed certain conditions precedent. * * * a condition precedent is a fact which must exist or occur before a duty to perform a contractual obligation arises. In this case, if the contract includes conditions precedent those conditions must have been satisfied before Ranier is entitled to release of the retention and final payment, unless you find that American Continental has by its conduct waived its right to rely on performance of those conditions precedent. To constitute waiver there must be voluntary and intentional relinquishment of a known right. It may be expressly stated or inferred by conduct." The jury could have concluded that when American Continental advised Ranier that it would not pay the balance of the contract, such conduct terminated the contract, thus waiving the condition that payment was dependent on the architect's issuance of a Certificate of Final Payment. But irrespective, if American Continental's conduct is not within the outer limits of waiver, it clearly falls within the doctrine of estoppel in pais, a doctrine courts invoke to promote the ends of justice and to prevent injury and inequitable consequences.

170 S.W.3d 26 (2005) Conrad STROMBERG, et al., Respondents/Cross-Appellants, v. Kevin J. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent. No. ED 83912. Missouri Court of Appeals, Eastern District, Division Two. June 28, 2005. Motion for Rehearing and/or Transfer Denied August 4, 2005. Application for Transfer Denied September 20, 2005. *27 Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant. Gregory D. O'Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., Hillsboro, MO, for Respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied August 4, 2005. ROBERT G. DOWD, JR., Judge. State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $80,000 in damages for negligence and conversion in connection with an $80,000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with a fire insurance claim. On appeal, State Bank argues the trial court *28 erred in granting judgment in favor of Stromberg because (1) under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000,[1] liability for conversion is limited to the plaintiff's interest in the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. On cross-appeal, Stromberg argues the trial court erred in denying him damages by way of interest in its application of Section 408.040. We affirm in part and reverse and remand in part. Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground with buildings located in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred to as the Moores) for a purchase price of $100,000, receiving $7,000 at closing and taking back a note and Deed of Trust for $93,000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note secured by the Deed of Trust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of fire insurance in the amount of $80,000 was issued on the property naming Complete Auto Repair, the Moore's company, as the insured and Stromberg as the mortgagee.[2] On June 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d/b/a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the amount of $80,000 which was the total amount of coverage under its policy and made the draft payable to Complete Auto Repair and Stromberg. Kevin Moore received the draft by mail. Stromberg and the Moores met in late July or early August to discuss division of the Draft without reaching any agreement as to its division because the amount the Moores owed Stromberg on the Deed of Trust on the date of the fire was approximately $92,000.[3] On August 11, 1998, Kevin Moore presented the Draft, purportedly endorsed by both payees, for deposit into his business account at State Bank. Stromberg testified he did not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair to endorse the Draft for him. Linda Tucker, teller for State Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Kevin Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know Stromberg and, at the time of deposit, she did not require identification or verification that Stromberg's signature was correct and genuine. She further testified that there was a partnership resolution on file for *29 Complete Auto Repair showing the signature of Kevin Moore but not that of Stromberg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank. Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified that the bank had no relationship with Stromberg nor did he know of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg's signature. Handwriting expert, William Storer, testified that it was his opinion the signature of Stromberg was not genuine. Before discovering the Draft had been deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had deposited the Draft into State Bank over the forgery of his signature. Stromberg took back the real estate at the foreclosure sale. Stromberg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. After discovering the Draft had been deposited without his consent, Stromberg notified State Bank sometime in November of 1998 of the forgery and later received a phone call from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he found out about it.[4] Stromberg sent a letter to State Bank after it had been confirmed the Draft was forged. Stromberg demanded return of the Draft proceeds. State Bank, through Richard Francis, denied Stromberg's demand. This case was presented for trial. After trial, the trial court entered a judgment granting damages for conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows. On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against State Bank on the Draft, Stromberg elected his remedy and now cannot pursue a claim for conversion against State Bank. In related points, State Bank argues that liability for conversion is limited to a plaintiff's interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. We disagree. In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We accept all evidence and inferences favorable to the judgment, and disregard all *30 contrary inferences. P & K Heating and Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court's factual findings if supported by substantial evidence in the record. Id. The election of remedies doctrine, a doctrine of estoppel, originates from the theory that "where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo. banc 1993)(quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)). The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co., 534 S.W.2d 83, 94 (Mo. App.1976). "Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action." Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47 (1937)). To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co. v. Teha Inc., 48 S.W.3d 80, 82 (Mo.App. E.D.2001). Here, based on the record, there is no election of remedies problem. First, Stromberg did not recover full satisfaction for his losses. While Stromberg recovered his property through foreclosure at a value of $80,000, he was still deprived of the insurance proceeds because of State Bank's conversion. Second, rather than suffering a single wrong, Stromberg suffered a double wrong. The Moores defaulted on their mortgage obligations under the Deed of Trust and, in addition, State Bank negligently accepted a forged endorsement. Stromberg's theory for recovery against the Moores is not repugnant to his theory for recovery against State Bank. Therefore, as a matter of law, Stromberg's foreclosure action against the Moores is not inconsistent with his claim for conversion against State Bank. See Twellman, 534 S.W.2d at 94 (holding that remedy of purchaser of treasurer's check against person who forged the endorsement on the check and remedy against the bank which issued the check and paid it over the forged endorsement were not inconsistent); see also Davis v. Hauschild, 243 S.W.2d 956, 960 (Mo. banc 1951)(holding that claim by plaintiff against defendants for deficiency judgment after foreclosure on the Deed of Trust was not barred by the pursuit in an earlier case of a remedy for breach of covenant in the Deed of Trust because remedies were consistent). Under the facts of this case, Stromberg had no choice of remedies against State Bank. The only remedy Stromberg had against State Bank was for conversion pursuant to Section 400.3-420. At trial, Stromberg testified he had no way of knowing the Draft had been deposited until he was informed of the deposit by American Family and that information was received in November of 1998 after foreclosure. Stromberg had no choice of remedies because he had no knowledge of the fraud until several months after the act took place in August of 1998. Therefore, at the time of the foreclosure, Stromberg did not have "full knowledge of all facts," as the election of remedies doctrine requires. *31 See Skandia America Reinsurance Corp., 857 S.W.2d at 846. Similarly, State Bank's argument that Stromberg would receive a "double benefit" by receiving the property by foreclosure in addition to $80,000 resulting from the conversion is unpersuasive.[5] As mentioned earlier, Stromberg suffered two separate wrongs and had a separate remedy for each wrong. Stromberg foreclosed on the property as a result of the Moore's default and, in a separate action, Stromberg pursued State Bank for conversion because State Bank allowed Moore to wrongfully receive payment of the Draft. Section 400.3-420(a) provides in pertinent part as follows: An instrument is . . . converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. [Emphasis added.] Here, State Bank's acceptance of the Draft outside of Stromberg's presence and without requiring verification that Stromberg's signature was genuine violated the provisions of Section 400.3-420(a). Therefore, under Section 400.3-420(b), which states that "the measure of liability is presumed to be the amount payable on the instrument," Stromberg was entitled to receive the face value of the Draft. Finally, State Bank's argument that Stromberg's claims against State Bank should be precluded under Section 400.3-406, the doctrine of unavoidable consequences and the doctrine of laches, is equally without merit.[6] Because Stromberg was unaware of the forgery until November, he cannot be charged with failing to take reasonable steps to timely notify State Bank of the wrong. The record reveals Stromberg reported the forgery to State Bank within a day of its discovery. The trial court correctly applied the law. Under the facts of this case, we find there was no election of remedies problem, Stromberg was entitled to the face value of *32 the Draft, and the doctrine of laches and the doctrine of unavoidable consequences are inapplicable. Points one, two, and three are denied. On cross-appeal, Stromberg argues the trial court erred in denying him an award of damages by way of interest in its application of Section 408.040. Stromberg argues that instead of applying Section 408.040, the trial court should have applied Section Sections 408.020 and 537.520 in awarding damages by way of interest. We agree. In general, "in actions of trover, or actions in the nature of trover, for the conversion of property, interest or the equivalent of interest on the value of the property converted may be recovered." Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628, 632 (Mo.1966). Similarly, "in actions for conversion, in order to give the injured party full indemnity, interest is allowed on the value of the property from the date of its conversion." Id. The rate of interest allowable is that prescribed by Section 408.020. Id.; Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 158 (Mo.App.S.D.1987). Here, Stromberg challenges that part of the trial court's judgment which states as follows: No prejudgment interest is awarded since the Plaintiffs did not comply with § 408.040 R.S.Mo. and Uniform Commercial Code does not provide for payment of interest. See §§ 400.3-112(4); 400.3-420. Moreover, there is no evidence that State Bank received a benefit from its conduct. The seminal case relating to conversion damages is Independence Flying Service v. Ailshire, 409 S.W.2d 628 (Mo.1966). The Independence Flying Service case involved an action for conversion of certain buildings. Id. at 629. As in the present case, the matter was tried without a jury on the issue of damages and the trial court denied interest to the plaintiffs. Id. at 631. In Independence Flying Service, the Missouri Supreme Court reversed the trial court's denial of interest by stating that in actions for conversion, in order to give the injured party full indemnity, interest is allowed from the date of conversion under Section 408.020. Id. at 632. Moreover, Section 537.520 allows for damages "in the nature of interest, over and above the value of goods at the time of conversion or seizure." Therefore, in a case for conversion, the allowance of interest from the date of conversion is part of the damages element of the case. See Commercial Credit Corp. v. Joplin Auto. Auction Co., 430 S.W.2d 440, 445 (Mo.App. 1968) (holding that award under Section 537.520 in "nature of interest in trover for wrongful conversion is a measurement of damages by the ruling rate of interest,— not as interest, but by way of compensatory damages"). State Bank's contention that it received no benefit from the deposits is not relevant to the issue of damages. The loss to Stromberg is the gravamen of the offense and as in Independence Flying Service, good faith or lack of malice is not a sufficient reason for denying the claim for interest. Independence Flying Service, Inc., 409 S.W.2d at 631. Moreover, we find the trial court misapplied Sections 400.3-112 and 400.3-420[7] in the denial of interest. Section 400.3-112(a) states in part that "[u]nless otherwise provided in the instrument, . . . an *33 instrument is not payable with interest." Here, the trial court improperly relied on Section 400.3-112 in ruling as it did, because the Draft in this case did not provide for interest. Moreover, Section 400.3-112 does not provide for the event of a wrongdoing. When the Draft was presented, there was no interest noted, therefore no interest was paid. However, once the Draft was converted, the law of trover and conversion was applicable because of the language contained in Section 400.3-420, which states that the law of conversion applies to instruments. The law of conversion allows interest from the date of conversion in cases, such as here, where a bank's negligence results in a forged endorsement of an instrument. Hoppe v. First Midwest Bank of Poplar Bluff, 899 S.W.2d 879, 884 (Mo.App. S.D.1995). Therefore, Stromberg is entitled to interest as of the date of conversion under Sections 408.020 and 537.520. The final issue Stromberg challenges is State Bank's assertion that the trial court properly denied "prejudgment interest" because the notice provision of Section 408.040 was not complied with by Stromberg. Section 408.040 states that if a demand for settlement at a stated figure is made, subject to the notice requirements, and it goes unanswered and the judgment award exceeds that amount demanded, the plaintiff is entitled to prejudgment interest. Section 408.040.2. Section 408.040 does not apply in the instant case because interest is a part of the damages in a conversion case. Stromberg did not seek "prejudgment interest" as defined by Section 408.040, but sought damages for his loss under the law of trover and conversion, Section 400.3-420, which includes interest for the loss of draft proceeds. The trial court erred in applying the provisions of Section 408.040. Interest in the amount of 9 percent, pursuant to Section 408.020, should be added to the judgment relating back to August 11, 1998, the date of forgery and conversion. The trial court's judgment is affirmed with respect to the award of $80,000 and reversed and remanded for the trial court to add interest pursuant to Sections 408.020 and 537.520. BOOKER T. SHAW, P.J. and KATHIANNE KNAUP CRANE, J., concur. NOTES [1] The U.C.C. has been adopted by the Missouri legislature and is incorporated into the Missouri statutes. See Chapter 400 of the Missouri Statutes. Unless otherwise indicated, all further references are to RSMo 2000. [2] Originally the fire policy was issued through Custom Insurance but coverage was later changed to American Family for the same amount and with the same loss payees. [3] The record reveals the last payment Stromberg received from the Moores was in May 1998. [4] Stromberg testified that he had called American Family after the foreclosure sale on November 10, 1998 and at that time American Family informed him, for the first time, the Draft had been negotiated. [5] Travers v. Universal Fire & Cas. Ins. Co., 34 S.W.3d 156 (Mo.App. W.D.2000), Fire Ins. Exchange v. Bowers, 994 S.W.2d 110 (Mo. App. S.D.1999), Economy Preferred Ins. v. Schomaker, 900 S.W.2d 249 (Mo.App. E.D. 1995) cited by State Bank are factually distinguishable from the case at bar. As State Bank admits, these cases dealt with a mortgagee's cause of action against the insurance company under the policy following foreclosure and not, as here, against a third-party bank for conversion under the U.C.C. Moreover, in the cases cited by State Bank, when the debt was extinguished following foreclosure, so was the mortgagee's interest. Here, after foreclosure, the amount owed by the Moores was approximately $92,000, $12,000 more than the assessed value of the recovered property. Therefore, Stromberg's debt was not extinguished by the foreclosure. [6] Section 400.3-406 states as follows: (a) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection. (b) Under subsection (a), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss. (c) Under subsection (a), the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under subsection (b), the burden of proving failure to exercise ordinary care is on the person precluded. [7] Section 400-3.420(a) states the law applicable to conversion also applies to instruments. Section 400-3.420(b) states the measure of liability is presumed to be the amount payable on the instrument, not to exceed the amount of the plaintiff's interest in the instrument.

774 F.2d 456 Helen PASSARO, Individually and as Executrix of the Estateof Ramon Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. 85-927. United States Court of Appeals,Federal Circuit. Sept. 25, 1985. Richard F. Silber, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellant. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Spooner. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Advocate Gen., Dept. of the Army, Washington, D.C., of counsel. Robert T. Seiwell, Media, Pa., argued, for appellee. Before DAVIS, BENNETT, and BISSELL, Circuit Judges. BENNETT, Circuit Judge. 1 The government appeals a judgment entered against it on October 23, 1984, by the United States Claims Court following its opinions in Passaro v. United States, 4 Cl.Ct. 395 (1984), and 5 Cl.Ct. 754 (1984). The judgment awarded the widow of a military retiree an accrued annuity and future benefits under the Armed Forces Survivor Benefit Plan, Pub.L. No. 92-425, 86 Stat. 706-713 (1972).1 The appeal presents narrow but significant issues of Claims Court jurisdiction and statutory interpretation. We vacate and remand.I 2 The Survivor Benefit Plan (SBP) was enacted on September 21, 1972, to establish a new system of benefits for the survivors of military retirees, replacing the Retired Serviceman's Family Protection Plan (RSFPP). The latter, a self-financing program permitting a service member to provide a percentage of his retired pay as an annuity for his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 The SBP employed a new concept which made automatic the rights of survivors of military members who retired on or after September 21, 1972, unless the member affirmatively chose not to participate in the plan. If the member elected not to participate in the plan the statute required that his spouse be notified of the decision. Section 1448(a). This section also made an election not to participate in the plan irrevocable if not revoked before the date on which the member first became entitled to retired pay. 4 Major Ramon Passaro, appellee's husband, retired from the United States Army on November 1, 1968. He elected not to participate in the RSFPP, choosing instead to receive full retirement pay. Those who, like Major Passaro, had retired before the SBP became law were not, however, left out altogether. While it was provided in section 1455(3)(a) that the SBP applies "to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act," it was further provided in section 1455(3)(b) that "[a]ny person who is entitled to retired or retainer pay on the effective date of this Act may elect to participate in the Survivor Benefit Plan ... before the first anniversary of that date." 5 The Department of the Army contacted all service members who had previously retired and explained to them the benefits and procedures provided by the Survivor Benefit Plan. This was done on several occasions. A bulletin was first sent out describing the SBP. The bulletin was followed by a circular and then by a letter which included a form, which when filled out and returned would extend the benefits of the SBP to those who were already retired. A "final notice" provided a "box" to check on a postal card indicating the retiree's intention. Major Passaro received these communications and affirmatively elected not to participate in the SBP by checking the box indicating his intention. He signed and dated the card on September 4, 1973, which was within the then-existing time limit for a binding answer. 6 Four years after Major Passaro's death, his widow inquired about survivor benefits and was told by the Army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor's annuity through reduced retirement pay. Her successful suit in the Claims Court and this appeal by the government followed. II 7 The Claims Court agreed with Mrs. Passaro that the requirement that the spouse be notified of a nonelection of SBP benefits applies to service members who retired both before and after the effective date of the 1972 Act. The court, thus, assuming jurisdiction of a claim for money damages believed to be due, undertook to fashion an equitable remedy for Mrs. Passaro by deeming her late husband to be a member of the SBP. We think that the court exceeded its jurisdiction and misread the statute. 8 The Claims Court reached its judgment by writing into the Act a notice requirement it does not have. Congress knew how to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. Section 1448(a) required notification but section 1455(3)(a) specified that it applied to "any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act." In other words, section 1448(a) applies to a service member who is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448(a) reads in pertinent part: 9 (a) The Plan applies to a person who is married or has a dependent child when he becomes entitled to retired or retainer pay unless he elects not to participate in the Plan before the first day for which he is eligible for that pay. If a person who is married elects not to participate in the Plan at the maximum level, that person's spouse shall be notified of the decision. 10 Thus, only a service member automatically enrolled by the Act could make an election not to participate before the first day for which he is eligible for retired or retainer pay. Those entitled to pay before September 21, 1972, were permitted by Congress to elect to participate rather than not to participate. The notice provision, therefore, does not apply to a service member who is already entitled to retired or retainer pay. No principle of statutory construction permits such a notice provision to be implied where it was excluded by Congress. 11 Our views coincide with the administrative interpretation made and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly, it agrees also with the intent of Congress which has amended the SBP five times and has never seen fit to alter the interpretation given administratively to the spousal notice provisions with respect to pre-SBP retirees.2 This is persuasive evidence to support our interpretation of congressional intent in the matter. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974). 12 The Claims Court has given weight to tangential remarks of two congressmen to support its interpretation of legislative history. We have carefully examined the entire legislative history including the statements alluded to and reach a contrary conclusion from the court below. There is no support for concluding that Congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the SBP. There is no statement in the hearings and congressional reports on this legislation suggesting that the United States would be liable to suit in money damages with respect to a claim by a widow of a pre-SBP retiree whose husband failed to enroll in the plan. Pertinent language of other committee members and the House and Senate Reports clearly differentiate between the pre-SBP retiree, and the service member yet to retire, on the points about spousal notice and election in and election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. We hold that the administrative interpretation has been both reasonable and correct. The court should have taken a less expansive view of the claim by inquiring whether the administrative interpretation of the law was reasonable rather than whether it was the interpretation the court would have desired. III 13 The judgment below was premised on jurisdiction which did not exist. It was held that the Tucker Act, 28 U.S.C. Sec. 1491 (1982), provided the necessary jurisdiction here and reliance was placed on the holding in Barber v. United States, 676 F.2d 651, 230 Ct.Cl. 287 (1982). That case does not help Mrs. Passaro. In Barber, the claimant was the widow of a service member who, unlike Mrs. Passaro's husband, retired after the enactment of the SBP and, therefore, was automatically enrolled in the plan. Sergeant Barber elected out of the plan on the eve of his retirement and no notice was given to his spouse as required by the statute. The Court of Claims held that Mrs. Barber thus had a Tucker Act claim for money due under a substantive right created by the SBA statute, as clarified by legislative history. Here, however, only an affirmative decision by Major Passaro to participate in the plan would create a vested interest in his widow upon his death. The factual and legal situations in the two cases are obviously dissimilar. Absent a presently due money claim, therefore, the Claims Court had no jurisdiction in the present case to fashion what it described as equitable relief. Equity, to the extent that it can be administered by the Claims Court, exists as an incident of general jurisdiction under the Tucker Act when that Act is invoked, as it has been here. Pauley Petroleum, Inc. v. United States, 591 F.2d 1308, 1315-17, 219 Ct.Cl. 24 (1979), cert. denied, 444 U.S. 898, 100 S.Ct. 206, 62 L.Ed.2d 133 (1979). 14 We hold that nothing in the SBP statute expressly, or by implication, mandates that money damages are available as a remedy for the interpretation by the Army or other military departments that the SBP statute does not require notification of the spouses of pre-SBP retirees who failed or refused to participate in the plan. CONCLUSION 15 The judgment of the Claims Court is vacated and the case is remanded to that court with the instruction that it dismiss this suit for lack of jurisdiction under the Tucker Act. 16 VACATED and REMANDED. 1 All section references herein are to the 1972 Act 2 See Pub.L. No. 94-496, 90 Stat. 2375 (1976); Pub.L. No. 95-397, 92 Stat. 843 (1978); Pub.L. No. 96-402, 94 Stat. 1705 (1980); Pub.L. No. 97-35, 95 Stat. 383 (1981); Pub.L. No. 97-252, 96 Stat. 718 (1982)