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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40664 Summary Calendar TERRY L. BROWN, Plaintiff-Appellee, versus JOE E. KING, Etc.; ET AL., Defendants, R. A. GARCIA, Warden; WILLIAM STEPHENS, Assistant Warden; DUC VAN TRAN, DR., Defendants-Appellants. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-98-CV-128 -------------------- December 12, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges PER CURIAM:* R.A. Garcia, William Stephens, and Dr. Duc Van Tran appeal from the denial of their motion for summary judgment in this action under 42 U.S.C. § 1983 brought by Texas inmate Terry Brown. They argue that the magistrate judge erred by denying their summary judgment motion on the merits of their qualified immunity defense. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 01-40664 -2- We must determine the basis of our jurisdiction, on our own motion, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “[O]rders denying qualified immunity are immediately appealable only if they are predicated on conclusions of law, and not if a genuine issue of material fact precludes summary judgment on the question of qualified immunity.” Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). With respect to Tran, as noted by the magistrate judge, we perceive the existence of a material issue of fact that precludes summary judgment based on qualified immunity. Accordingly, we DISMISS the appeal as to Tran for want of jurisdiction. Although the magistrate judge also noted the existence of disputed issues of material fact as to Garcia and Stephens, these appellants argue on appeal that as a matter of law they are entitled to qualified immunity because they relied on the reports and recommendations of trained grievance investigators in denying Brown’s grievances. We agree with Garcia and Stephens that this argument, if accepted, would render immaterial any remaining factual disputes, and thus we have jurisdiction over their appeal. However, after reviewing both the summary judgment motion submitted by Garcia and Stephens as well as their reply brief on summary judgment, we conclude that this argument was not raised in the court below. Because Garcia and Stephens raise this issue for the first time on appeal, it is reviewed only for plain error. See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994)(applying, in civil case, plain-error  No. 01-40664 -3- analysis of United States v. Olano, 507 U.S. 725 (1993)). Plain error must be clear or obvious and must affect the appellant's substantial rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). In such a situation, the court has the discretion to correct errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. Garcia and Stephens admit in their brief to this court that it is not clear whether a prison warden may have liability for accepting the conclusion of a grievance investigator, and thus we conclude that there has been no plain error in the court below. We therefore decline to consider the argument raised for the first time on appeal. Accordingly, we AFFIRM the denial of qualified immunity as to Garcia and Stephens. DISMISSED IN PART AND AFFIRMED IN PART. 

In the United States Court of Federal Claims No. 10-244 Filed: January 31, 2017 **************************************** 26 U.S.C. §§ 6223 (Notice To * Partners Of Proceedings), 6226 * (Tax Equity And Fiscal * Responsibility Act Of 1982), BASR PARTNERSHIP, by and through * 7430 (Awarding Of Costs And WILLIAM F. PETTINATI, SR., Tax Matters * Certain Fees), 7522 (Content Of Partner, * Tax Due); * 28 U.S.C. § 2412 (Equal Access To Plaintiff, * Justice Act); * Treas. Reg. §§ 301.7430–1 v. * (Exhaustion Of Administrative * Remedies), 301.7430–4 THE UNITED STATES, * (Reasonable Administrative * Costs), 301.7430–5 (Prevailing Defendant. * Party); * TEX. BUS. ORG. CODE ANN. §§ * 11.051, 11.055, 152.002, * 152.703, 152.704, 152.705, * 152.708; * TEX. PROP. CODE ANN. § 113.019. **************************************** Thomas A. Cullinan, Sutherland Asbill & Brennan LLP, Atlanta, Georgia, Counsel for Plaintiff. Jacob Earl Christensen, United States Department of Justice, Tax Division, Washington, D.C., Counsel for the Government. MEMORANDUM OPINION AND FINAL ORDER GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFF’S MARCH 7, 2016 MOTION FOR LITIGATION COSTS BRADEN, Judge. On March 7, 2016, BASR Partnership filed a Motion For Litigation Costs, pursuant to Section 7430 of the Internal Revenue Code. To facilitate review of this Memorandum Opinion And Final Order, the court has provided the following outline: I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY. II. DISCUSSION. A. Plaintiff’s Argument. 1. BASR Is A “Prevailing Party.” 2. BASR Meets The Requirements of I.R.C § 7430(b). 3. Special Factors Require An Increase In BASR’s Attorney Fees Above The Statutory Maximum. 4. BASR’s Paralegal Fees And Other Costs Are “Reasonable.” B. The Government’s Response. 1. BASR Did Not Pay Or Incur Any Litigation Costs. 2. BASR Was Not A “Real-Party-In-Interest.” 3. The “Real-Parties-In-Interest” Have A Net Worth Above The Statutory Maximum. 4. BASR Is Not A “Prevailing Party,” Because It Did Not Make A “Qualified Offer.” The “Qualified Offer” Provision Does Not Apply, Because Tax Liability Was Not “In Issue.” The “Qualified Offer” Provision Does Not Apply, Because There Was No “Qualified Offer Period.” The Offer Was A “Sham.” 5. The Court Should Exercise Its Discretion To Deny Awarding Litigation Costs. 6. BASR’s Requested Litigation Costs Are Not “Reasonable.” BASR May Not Recover Attorney Fees Above The Statutory Maximum. BASR May Not Recover Litigation Costs Incurred In Connection With Proceedings Before The Internal Revenue Service And The United States Tax Court. BASR May Not Recover Paralegal Fees For “Merely Clerical Tasks.” BASR May Not Recover Litigation Costs Incurred In Connection With An Unsuccessful Discovery Motion. C. Plaintiff’s Reply. 1. BASR “Incurred” Litigation Costs, Required By Texas Partnership Law. 2. BASR Is A “Prevailing Party.” BASR Was A “Party” To The TEFRA Proceeding. Even if BASR Was Not A “Party,” BASR’s Partners Meet The Net- Worth Requirement. BASR Made A Proper “Qualified Offer.” 2  3. BASR’s Requested Litigation Costs Are “Reasonable.” 4. BASR Is Entitled To An Award Of Additional Attorney Fees Incurred In Connection With The March 7, 2016 Motion For Litigation Costs And Post- Trial Litigation. D. The Government’s Sur-Reply. E. Plaintiff’s Supplemental Filing. F. The Government’s Supplemental Response. G. The Court’s Resolution. 1. BASR Is A “Prevailing Party” Under I.R.C § 7430. BASR Is A “Party” Under I.R.C § 7430(c)(4). BASR Made A “Qualified Offer” And Is Therefore A “Prevailing Party” Under I.R.C § 7430(c)(4)(E). i. Tax Liability Was “In Issue” In This Case. ii. A “Qualified Offer” Was Made During The “Qualified Offer Period.” iii. The “Qualified Offer” Was Not A Sham. 2. BASR “Incurred” The Fees Paid To Sutherland Asbill & Brennan LLP. 3. BASR’s Litigation Costs Are “Reasonable.” BASR’s Attorneys Spent A “Reasonable” Number Of Hours On This Case. BASR May Recover “Reasonable” Supplemental Fees. The Requested Increase In The Statutory Rate Set Forth In I.R.C. § 7430(c)(1)(B)(iii) Is “Reasonable.” The Paralegal Fees Are “Reasonable.” Other Litigation Costs Are “Reasonable.” 4. BASR Meets The Requirements of I.R.C § 7430(b). 5. The Court’s Award Of Litigation Costs. III. CONCLUSION. 3  I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.1 On January 20, 2010, the Internal Revenue Service (“IRS”) issued a Notice Of Final Partnership Administrative Adjustment (“FPAA”) to William F. Pettinati, Sr., the Tax Matters Partner of the BASR Partnership, regarding the BASR Partnership’s federal income tax returns for tax years ended June 12, 1999 and December 22, 1999. Compl. Ex. A; Compl. ¶ 4. On April 16, 2010, the BASR Partnership, by and through its Tax Matters Partner, Mr. Pettinati, Sr., filed a Complaint in the United States Court of Federal Claims, pursuant to the judicial review procedures established by the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”). See 26 U.S.C. § 6226(a)(3)2 (“Within 90 days after [notice of a FPAA], the tax matters partner may file a petition for a readjustment of the partnership items for such taxable year . . . with the [United States] Court of Federal Claims.”). On October 29, 2013, the court issued a Memorandum Opinion And Final Order, determining that the IRS did not timely issue the FPAA and was time-barred by I.R.C. Section 6501(c). See BASR Partnership by & through Pettinati v. United States, 113 Fed. Cl. 181,194 (2013). On December 26, 2013, the Government appealed. ECF No. 55. On July 29, 2015, the United States Court of Appeals for the Federal Circuit affirmed the court’s Memorandum Opinion And Final Order. See BASR Partnership v. United States, 795 F.3d 1338, 1350 (Fed. Cir. 2015). On September 28, 2015, the Government filed a Petition For En Banc Rehearing. On November 12, 2015, the appellate court denied the Petition. On December 2, 2015, the Clerk of the Court issued the mandate of the United States Court of Appeals for the Federal Circuit. ECF No. 60. On March 7, 2016, BASR Partnership (“Plaintiff” or “BASR”) filed a Motion For Litigation Costs,3 with the United States Court of Federal Claims, pursuant to I.R.C § 7430 1 The relevant facts discussed herein are derived from the April 16, 2010 Complaint (“Compl.”) and exhibits (“Compl. Exs A–D”); exhibits attached to Plaintiff’s March 7, 2016 Memorandum in Support of Litigation Costs (“Pl. Mem. Exs. A–D”); the Appendix attached to the Government’s April 28, 2016 Opposition (Gov’t App. 1–295); the exhibits attached to Plaintiff’s May 9, 2016 Reply (“Pl. Reply Exs. A–E”); the exhibits attached to Plaintiff’s December 1, 2016 Supplemental Brief (“Pl. Supp. Exs. A–F”); and the court’s prior Memorandum Opinion and Final Order, BASR Partnership by & through Pettinati v. United States, 113 Fed. Cl. 181, 181–194 (2013). 2 The Internal Revenue Code, contained in Title 26 of the United States Code, is referred to throughout this Memorandum Opinion And Final Order as the “I.R.C.” 3 I.R.C § 7430(c)(1) defines “reasonable litigation costs” as including: (A) reasonable court costs, and (B) based upon prevailing market rates for the kind or quality of services furnished- (i) the reasonable expenses of expert witnesses in connection with a court proceeding, except that no expert witness shall be compensated at a rate in 4 together with a Memorandum In Support (“Pl. Mem.”) and exhibits (“Pl. Mem. Exs. A–D”).4 ECF No. 61. Therein, BASR requests an award for the following attorney and paralegal fees and costs: (1) $147,326 in attorney fees reflecting the time billed by Sutherland Asbill & Brennan LLP (“Sutherland Asbill”) at the statutory hourly rate;5 (2) $118,014 in addition to the statutory rate, because of the complexity of this case; and (3) $34,940.69 in paralegal fees and other costs. Pl. Mem. at 7–10. On March 16, 2016, the Government filed a Motion For Leave To Conduct Limited Discovery Related To Plaintiff’s Motion For Litigation Costs, For An Extension Of Time Within Which The Government May File a Response To Plaintiff’s Motion, And For An Order Limiting The Time Within Which Plaintiff Must Respond To Discovery. ECF No. 62. On the same day, BASR filed a Response. ECF No. 63. On March 17, 2016, the court convened a telephone status conference to discuss the Government’s motion. ECF No. 66, 3/17/16 TR at 1–12. Thereafter, the court entered an Order requiring BASR to “produce the client’s fee agreement, a copy of all legal bills sent to the client, and any proof of payment from the client.” ECF No. 64. excess of the highest rate of compensation for expert witnesses paid by the United States, (ii) the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case, and (iii) reasonable fees paid or incurred for the services of attorneys in connection with the court proceeding[.] I.R.C. § 7430(c)(1) (emphasis added). 4 These exhibits included: (1) Pl. Mem. Ex. A–July 12, 2012 letter to the United States Department of Justice sent by BASR’s counsel, marked “Qualified Offer Pursuant To 26 U.S.C § 7430 And Chief Counsel Notice (35)4(16)(12)-0A On Behalf Of Mr. William F. Pettinati, Sr., BASR Partnership, And All Other Partners (Direct And Indirect) Of BASR Partnership.” (2) Pl. Mem. Ex. B–(i) the Affidavit Of William Pettinati, Sr.; (ii) the Affidavit of William Pettinati, Jr.; (iii) the Affidavit of Virginia Pettinati; and (iv) the Affidavit of Andrew Pettinati. (3) Pl. Mem. Ex. C–BASR’s Bill Of Costs, and a table showing paralegal and litigation support assistant hours and other costs billed. (4) Pl. Mem. Ex. D–a table showing attorney hours billed. 5 The statutory hourly rate for attorney fees is set by I.R.C § 7430(c)(1)(B), and is indexed by IRS regulations for annual cost-of-living adjustments. For 2012, 2013, 2014, 2015, and 2016, the statutory rate was $180, $190, $190, $200, and $200 respectively. See I.R.C. § 7430(c)(1); see also Rev. Proc. 2011-52, 2011-45 I.R.B. 701; Rev. Proc. 2012-41, 2012-45 I.R.B. 539; Rev. Proc. 2013-35, 2013-47 I.R.B. 537; Rev. Proc. 2014-61, 2014-47 I.R.B. 860; Rev. Proc. 2015-53, 2015- 44 IRB 615. 5  On April 28, 2016, the Government filed an Opposition To Plaintiff’s Motion For Litigation Costs (“Gov’t Opp.”) with an attached Appendix (“Gov’t App. 1–295”), and requested Oral Argument. ECF No. 68. On May 9, 2016, BASR filed a Reply To The Government’s Opposition To Plaintiff’s Motion For Litigation Costs (“Pl. Reply”), and exhibits (“Pl. Reply Exs. A–E”) and requested that the court deny the Government’s request for Oral Argument. ECF No. 70. Therein, BASR also requested “fees for fees,” i.e., payment for the reasonable time and costs spent to recover claimed litigation costs. Pl. Reply at 22. Specifically, BASR requested fees for 24.9 partner hours and 59.6 associate hours, or an additional $24,860 in attorney fees, bringing the total request for litigation costs to $325,140.69. Pl. Reply at 23. On May 23, 2016, the Government filed a Motion For Leave To File Sur-Reply and attached a Sur-Reply thereto (“Gov’t Sur-Reply”). ECF No. 71. On May 24, 2016, the court granted the Government’s May 23, 2016 Motion. On October 26, 2016, the court convened an oral argument in Atlanta, Georgia, the venue requested by BASR’s counsel. ECF No. 73, 10/26/16 TR at 1–74. On December 1, 2016, BASR submitted a Supplemental Filing (“Pl. Supp. Mem.”), requesting an additional $11,879 in litigation costs incurred after the filing of the May 9, 2016 Reply, together with the Declaration of Timothy R. Lavender (“11/9/16 Lavender Decl.”), in support of the reasonableness of attorney fees requested, and additional affidavits reflecting the net worth of The Pettinati 1998 Gift Trust For Benefit Of (“f/b/o”) William F. Pettinati, Jr. and The Pettinati 1998 Gift Trust f/b/o Andrew Pettinati, and invoices sent to William F. Pettinati, Jr. by Sutherland Asbill for an additional $45,500 in attorney fees accrued since May 9, 2016. ECF No. 74. In sum, BASR requests a total of $337,019.69 in litigation costs. Pl. Supp. Mem. at 2. On December 7, 2016, the Government filed a Response (“Gov’t Supp. Resp.”). ECF No. 75. II. DISCUSSION. A. Plaintiff’s Argument. BASR argues that, as a “prevailing party” under I.R.C § 7430, it is entitled to litigation costs. Pl. Mem. at 2. 1. BASR Is A “Prevailing Party.” To be a “prevailing party,” a taxpayer must show that: (1) it substantially prevailed with respect to the amount in controversy; (2) the Government’s position was not substantially justified; and (3) statutory net-worth requirements are met. Pl. Mem. at 2 (citing Treas. Reg. § 301.7430- 5(a)). The taxpayer, however, need not establish the first two requirements, if it made a “qualified 6 offer” to the Government prior to the entry of a final judgment and that judgment was equal to or less than the offer. See I.R.C. § 7430(c)(4)(E)(i).6 On July 12, 2012, BASR made a “qualified offer” of $1 to the Government to settle the FPAA issued to BASR and the effect of those adjustments on BASR’s partners’ federal income tax liability. Pl. Mem. Ex. A. The Government did not accept BASR’s offer. Pl. Mem. at 3. Since the United States Court of Appeals for the Federal Circuit affirmed the court’s grant of summary judgment in the underlying case, the tax effect of the FPAA is $0, which is less than the amount of the “qualified offer” made by BASR. Pl. Mem. at 4. As such, BASR is a “prevailing party” within the meaning of I.R.C § 7430(c)(4)(A)(i). Pl. Mem. at 4. I.R.C § 7430(c)(4)(A)(ii) also requires that a “prevailing party” meet the net-worth eligibility requirement of the Equal Access To Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(2)(B). For partnerships, this amount is “less than $7 million and . . . less than 500 employees.” Pl. Mem. at 4 (citing I.R.C. § 7430(c)(4)(A)(ii).7 BASR and its partners did not have “a net-worth of more than $7 million nor did they have more than 500 employees at the time this action was filed.” Pl. Ex. B (3/7/16 Affidavit of William F. Pettinati, Sr.). 2. BASR Meets The Requirements of I.R.C § 7430(b). BASR adds that it has met all the requirements of I.R.C § 7430(b), specifying that litigation costs will not be awarded, unless: (1) the “prevailing party” exhausted all administrative remedies; (2) the attorney fees and litigation costs are allocable to the United States; and (3) the “prevailing party” did not unreasonably protract the proceeding. See I.R.C. § 7430(b). Ordinarily a “prevailing party” must file an appeal to the IRS Appeals Office to exhaust all administrative remedies to be eligible to recover reasonable litigation costs. Pl. Mem. at 6 (citing I.R.C. § 7430(b)(1); Treas. Reg. § 301.7430-1(b)). In this case, however, the IRS promulgated a regulation stating that “Appeals Office consideration will not be available for [‘]Son of Boss[’] transactions,” and the IRS characterized the transaction at issue in this case as a “Son of Boss” transaction. 6 I.R.C § 7430(c)(4)(E)(i) provides: A party to a court proceeding . . . shall be treated as the prevailing party if the liability of the taxpayer pursuant to the judgment in the proceeding (determined without regard to interest) is equal to or less than the liability of the taxpayer which would have been so determined if the United States had accepted a qualified offer of the party[.] I.R.C § 7430(c)(4)(E)(i). 7 I.R.C § 7430(c)(4)(A)(ii) cross references the EAJA, 28 U.S.C. § 2412(d)(1)(B), as to the net-worth requirement for a “prevailing party.” Section 2412(d)(1)(B) of the EAJA states that a “party” must meet certain requirements, and Section 2412(d)(2)(B) defines a party as “any partnership . . . the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(1)(B), (d)(2)(B). 7 Pl. Mem. at 6–7 (citing 2004-21 I.R.B. 965). BASR adds that all costs incurred in the litigation were allocable to the Government because the action began with the IRS’s issuance of the FPAA, and that BASR did not unreasonably protract the proceeding. Pl. Mem. at 7. 3. Special Factors Require An Increase In BASR’s Attorney Fees Above The Statutory Maximum. With respect to BASR’s requested increase in attorney fees, I.R.C § 7430(c) provides that “fees shall not be in excess of $125 per hour [indexed for cost of living adjustments] unless the court determines that a special factor, such as the limited availability of qualified attorneys for such proceeding, the difficulty of the issues presented in the case, or the local availability of tax expertise, justifies a higher rate.” I.R.C. § 7430(c)(1)(B)(iii) (emphasis added). BASR avers this case was “difficult” and concerned a “novel issue,” justifying a higher hourly rate. Pl. Mem. at 8 (quoting Estate of O’Neal v. United States, 90 A.F.T.R.2d 2002-7214, at *6 (N.D. Ala. 2002) (determining that the plaintiff was entitled to recover attorney fees under Section 7430 at twice the statutorily determined rate due to complexity of the tax issues involved)). In this case, BASR was unable to locate any local or national firm with tax expertise that would enter the representation at the statutory rate. Pl. Mem. Ex. B (3/7/16 Affidavits of William F. Pettinati, Sr., and William F. Pettinati, Jr.). For these reasons, BASR requests recovery of attorney fees at an hourly rate equivalent to $400 for time billed by Sutherland Asbill partners and $250 for time billed by its associates, or an additional $118,014. Pl. Mem. at 7–9. 4. BASR’s Paralegal Fees And Other Costs Are “Reasonable.” Paralegal fees are allowed under the EAJA, when the paralegal performs nonlegal work that a lawyer would have had to perform personally, but for the paralegal. Pl. Mem. at 10 (citing Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988) (holding that paralegal fees may be recovered at a market rate, but only to the extent that a paralegal performs work that would normally be done by an attorney), aff’d sub nom. Comm’r, I.N.S. v. Jean, 496 U.S. 154 (1990) (affirming the judgment of the United States Court of Appeals for the Eleventh Circuit); see also WHR Grp., Inc. v. United States, 121 Fed. Cl. 673, 679 (2015) (determining that plaintiff could recover paralegal fees at the cost of $145 per hour). With respect to other litigation costs, the United States Court of Federal Claims permits recovery under I.R.C § 7430 for “photocopying, courier, travel, transcript/deposition, court filing, fax, and Westlaw expenses.” Pl. Mem at 9 (citing Larsen v. United States, 39 Fed. Cl. 162, 170 (1997), appeal dismissed per stipulation, 152 F.3d 945 (Fed. Cir. 1998)). For these reasons, BASR requests $24,585 in paralegal fees (at a rate of $150 hour) and $10,355.69 in other litigation costs. Pl. Mem. at 9–10. B. The Government’s Response. 1. BASR Did Not Pay Or Incur Any Litigation Costs. The Government responds that BASR did not pay or incur any litigation costs. Gov’t Opp. at 5 (citing Estate of Palumbo v. United States, 675 F.3d 234, 239 (3d Cir. 2012) (“[A] party seeking fees under § 7430 must [pay or] incur the litigation expenses [i.e., the attorney and 8 paralegal fees and court costs] attendant to that proceeding.”)). Litigation costs are incurred when there is a legal obligation to pay them. Gov’t Opp. at 6 (citing Estate of Palumbo, 675 F.3d at 240). In this case, however, the engagement letters were addressed and counter-signed by William Pettinati, Sr. and his wife, Virginia Pettinati, and by William Pettinati, Jr. and, his wife, Karie Pettinati. Gov’t App. 3–5, 6–8. Sutherland Asbill billed the Pettinatis directly and was paid by Mr. Pettinati Sr.’s and Mr. Pettinati Jr.’s personal credit cards. Gov’t App 219–27, 263–83, 284– 95. Therefore, BASR did not pay nor incur any of the litigation costs. Gov’t Opp. at 7. Instead, those litigation costs were incurred and paid by William Pettinati, Sr., Virginia Pettinati, and William Pettinati, Jr. 2. BASR Was Not A “Real-Party-In-Interest.” The Government adds that the “real-party-in-interest” doctrine also bars an award of litigation costs in this case, since the individual Pettinati family members paid and incurred the litigation costs. Gov’t Opp. at 9–10. The Court of Claims has applied the “real-party-in-interest” doctrine to deny an award under the EAJA. See Wall Industries, Inc. v. United States, 15 Cl. Ct. 796, 799 (1988)). In Wall Industries, Inc., a taxpayer assigned all rights in the litigation to an accountant. Id. at 799. In that case, the Court of Claims determined that the taxpayer was ineligible for an award because it had not ‘incurred’ any legal expenses; rather the accountant had. Id. at 802–03. In addition, the United States Court of Appeals for the District of Columbia has held that the “real-party-in-interest” is the party “obligated to pay the fees under the pertinent fee arrangement.” Gov’t Opp. at 10 (citing Unification Church v. Immigration & Naturalization Service, 762 F.2d 1077, 1082 (D.C. Cir. 1985)). That federal appellate court held, “[i]f we were to award fees in this case on the basis that the individual appellants qualified under subsection (d)(2)(B)(i) [i.e., the net-worth requirements], we would open the door for the wholesale subversion of Congress’s intent to prevent large entities from receiving fees under subsection (d).” Unification Church, 762 F.2d at 1082. The Government concludes that “[u]nder Unification Church and Wall Industries, the real parties in interest with respect to [P]laintiff’s [M]otion [F]or [L]itigation [C]osts are William Pettinati Sr., Virginia Pettinati, and William Pettinati Jr., who paid and incurred the litigation costs[.]” Gov’t Opp. at 13. 3. The “Real-Parties-In-Interest” Have A Net Worth Above The Statutory Maximum. William Pettinati, Sr., Virginia Pettinati, and William Pettinati, Jr., however, do not meet the EAJA’s net-worth requirements, as they each possess a net worth greater than $2,000,000. Gov’t Opp. at 6 (citing 28 U.S.C. § 2412(d)(2)(B) (providing the net worth requirement for individuals under the EAJA)). BASR does not contest that William Pettinati, Sr. or Virginia Pettinati do not satisfy the net-worth requirements. Pl. Mem. at 6 n.5. In the absence of any evidence to the contrary, the court must assume that William Pettinati, Jr. also fails to meet the net-worth requirements. Gov’t Opp. at 9 (citing Foothill Ranch Co. v. Comm’r, 110 T.C. 94, 100 (1998) (“No evidence has been submitted relating to the net worth of [certain partners of the partnership] and, as a result, they have not met the net worth requirements.”)). 9  To the extent that William Pettinati, Jr. paid some of the litigation costs,8 not in his personal capacity, but as Trustee of the Pettinati 1998 Gift Trust f/b/o William Pettinati, Jr., the “[c]ourt should reject any attempt by [P]laintiff to re-write history in this fashion.” Gov’t Opp. at 14. The Sutherland Asbill engagement letter was signed by Mr. Pettinati, Jr. in his personal capacity. Gov’t App. 5.9 In addition, credit card statements evidence that Mr. Pettinati, Jr., paid his portion of the litigation costs with a personal credit card, not with trust assets. Gov’t App. 284–95. To the extent BASR argues that Mr. Pettinati, Jr. agreed to pay legal costs as trustee, instead of in his personal capacity, pursuant to an oral agreement, such an agreement is unenforceable under Texas law. Gov’t Opp. at 15. Texas law does not recognize an oral contract to pay for professional services where the contract is not to be performed within one year. See TEX. BUS. & COM. CODE ANN. § 26.01.10 Since Sutherland Asbill provided legal services for the Pettinatis since April 2011, any oral agreement was unenforceable, because services could and did extend for more than one year. Gov’t Opp. at 15. 4. BASR Is Not A “Prevailing Party,” Because It Did Not Make A “Qualified Offer.” The “Qualified Offer” Provision Does Not Apply, Because Tax Liability Was Not “In Issue.” The Government contends that BASR is not a “prevailing party,” because tax liability was not an issue in this case. Gov’t Opp. at 17. I.R.C § 7430(c)(4)(E)(i) provides that a party will be considered a “prevailing party,” if it made a “qualified offer;” I.R.C § 7430(c)(4)(E)(ii)(II), however, provides an exception to this rule. Gov’t Opp. at 17. Specifically, the “qualified offer” 8 BASR avers that, on behalf of the trust, William Pettinati, Jr. has paid $134,500 of the total of $337,019.69 in litigation costs requested. Pl. Supp. Mem. Ex. F. The remaining amount was paid by William Pettinati, Sr. and by Virginia Pettinati. Pl. Supp. Mem. Ex. F. For example, when signing as trustee, it was Mr. Pettinati, Jr.’s practice to clearly indicate 9 as much in the signature block, which is what he did when he signed the BASR Partnership Agreement as trustee. Gov’t App. 256 (signature page of 1998 BASR Partnership Agreement). 10 Section 26.01 of the Texas Business And Commerce Code provides: (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. (b) Subsection (a) of this section applies to . . . (6) an agreement which is not to be performed within one year from the date of making the agreement[.] TEX. BUS. & COM. CODE ANN. § 26.01(b)(6). In other words, under Texas law, any agreement to provide services that will last more than a year is within the statute of frauds. 10 provision does not apply to “any proceeding in which the amount of tax liability is not in issue.” Gov’t Opp. at 17 (quoting I.R.C. § 7430(c)(4)(E)(ii)(II) (emphasis added)). Here, “the [c]ourt’s . . . judgment in this case . . . did not determine the tax liability of any partner, or order any refund, but rather was limited to [re-determining] the adjustments made to BASR’s partnership items in the FPAA[.] The qualified-offer provisions therefore cannot be applied to determine whether any taxpayer’s liability pursuant to the judgment was equal to or less than it would have been under a qualified offer.” Gov’t Opp. at 19. The “Qualified Offer” Provision Does Not Apply, Because There Was No “Qualified Offer Period.” In addition, BASR’s offer to settle for $1 was not made during the “qualified offer period.” Gov’t Opp. at 20. I.R.C § 7430(g)(2) provides that the “qualified offer period” begins “the date on which the [first] letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the Internal Revenue Service Office of Appeals is sent.” Gov’t Opp. at 20 (quoting I.R.C. § 7430(g)(2)(A)). In this case, the IRS never sent a “letter of proposed deficiency” and so no “qualified offer period” ever commenced. Gov’t Opp. at 20. The FPAA issued to BASR by the IRS did not qualify as a “letter of proposed deficiency,” because it did not identify the tax due, interest, additional amounts, additions to the tax, and/or any assessable penalties. See I.R.C. § 7522. In addition, I.R.C. § 7430(g)(2)(A) specifies that the “qualified offer period” begins with the first letter of proposed deficiency that “allows the taxpayer an opportunity for administrative review.” Id. A FPAA, however, does not afford the taxpayer an opportunity for an IRS Office of Appeals administrative review, because a FPAA is considered a final administrative determination. Gov’t Opp. at 23 (citing I.R.C. § 6223(a)(2)). The Offer Was A “Sham.” In any event, BASR’s “qualified offer” was a “sham,” because it does not meet the requirements of I.R.C § 7430(g). Gov’t Opp. at 25. Although the statute does not define “offer,” that term is construed to mean “[t]he act or an instance of presenting something for acceptance[.]” BLACK’S LAW DICTIONARY 1253 (10th ed. 2014). In offering $1 as a proposed settlement, “[P]laintiff never satisfied the statutory requirement to make an ‘offer[,]’ because [P]laintiff never attempted to settle this case by presenting anything of significance[.]” Gov’t Opp. at 25. In fact, this “offer was not a good-faith attempt by [P]laintiff to settle this case, but . . . made for the purpose of shifting [P]laintiff’s litigation costs to the United States[.]” Gov’t Opp. at 27. 5. The Court Should Exercise Its Discretion To Deny Awarding Litigation Costs. Even if the court were to determine that BASR was eligible for an award of litigation costs, the court should exercise its discretion to deny an award in this case, because it would be unjust, under the circumstances, to require the Government to pay BASR’s litigation costs. Gov’t Opp. at 29. This is so, because the Pettinatis benefitted from an invalid “Son of Boss” tax scheme and avoided additional tax liability due to the IRS’s failure to issue the FPAA within the statute of limitations. See BASR Partnership, 113 Fed. Cl. at 194. 11  6. BASR’s Requested Litigation Costs Are Not “Reasonable.” Finally, if the court does grant an award of litigation costs, it should be substantially reduced because the amount requested by BASR is unreasonable and includes costs that are not recoverable under I.R.C § 7430. Gov’t Opp. at 30. BASR May Not Recover Attorney Fees Above The Statutory Maximum. The attorney fees requested by BASR are unreasonable, because: (1) the issues involved in this case were not difficult or complex;11 and (2) BASR failed to establish that there were no available attorneys with tax experience in the Houston, Texas area who would assume representation at the statutory rate, or that the prevailing market rate was higher than the statutory rate established by Congress. Gov’t Opp. at 31–34. BASR May Not Recover Litigation Costs Incurred In Connection With Proceedings Before The Internal Revenue Service And The United States Tax Court. The Government adds that the reasonable litigation costs that may be recovered under I.R.C § 7430 are limited to those “incurred in connection with such court proceeding.” I.R.C. § 7430(a)(2)(emphasis added). BASR, however, also seeks recovery for litigation costs incurred in a Collection-Due-Process (“CDP”) Hearing before the IRS, and for fees and costs incurred in related litigation before the United States Tax Court. Pl. Mem. Ex. C at 3 (entries include “Filing Fees – (U.S. Tax Court) Petition Filing Fee”); Pl. Mem. Ex. D at 3, 4, 5, 6, 7, 14, 15, 20, 21, 22, 23, 25, 26, 27 (entries include, for example, “Attention to tax lien”; “Attention to collection [due 11 The Government cites to Treasury Regulation § 301.7430–4, that explains the standard for when the IRS will pay administrative costs above the statutory rate. Treasury Regulation § 301.7430–4(b)(3)(iii)(E) provides that: In determining whether the difficulty of the issues justifies an increase in the $125 per hour limitation on the applicable hourly rate, the Internal Revenue Service will consider the following factors: (1) The number of different provisions of law involved in each issue. (2) The complexity of the particular provision or provisions of law involved in each issue. (3) The number of factual issues present in the proceeding. (4) The complexity of the factual issues present in the proceeding. Treas. Reg. § 301.7430–4(b)(3)(iii)(E). The Government argues that none of these factors were met, because this case involved a “pure question of law” that was “straightforward and narrow”—i.e., whether the fraud exception to the normal three year statute of limitations, I.R.C. § 6501(c)(1), applied only to cases in which the tax payer had the requisite fraudulent intent. Gov’t Opp. at 32. 12 process] issues”; “Conference . . . on CDP issues”; “Petitioning Tax Court regarding Notice of Determination”; “Attention to documents regarding IRS’s collection efforts”; “Answer to petition to Tax Court”; “Attention to collection case before the Tax Court”; and “Attention to motion to continue Tax Court case”). BASR may not recover any of these litigation costs. BASR May Not Recover Paralegal Fees For “Merely Clerical Tasks.” Work performed by paralegals is compensable only if it otherwise would have been performed by an attorney, e.g., not “purely clerical.” See Miller v. Alamo, 983 F.2d 856, 862 (8th Cir. 1993) (holding that paralegal work involving going to a library to locate cases was compensable, because it would otherwise have been performed personally by the plaintiff’s attorneys and so was not clerical in nature). In this case, the paralegals performed “printing out and organizing emails,” and “review and index discovery responses;” that is “purely clerical” and cannot be recovered under I.R.C. § 7430. BASR May Not Recover Litigation Costs Incurred In Connection With An Unsuccessful Discovery Motion. Finally, BASR cannot recover for time spent preparing a September 4, 2012 Motion To Compel (ECF No. 22) or for time spent preparing for the court’s September 6, 2012 telephone conference discussing that Motion and the Government’s September 4, 2012 Response, because BASR’s Motion was rendered moot by a subsequent court order. Gov’t Opp. at 39 (citing Miller, 984 F.2d at 871 (holding that the plaintiff could not recover fees for time spent on “unsuccessful motions.”)). C. Plaintiff’s Reply. 1. BASR “Incurred” Litigation Costs, Required By Texas Partnership Law. BASR replies that this case was a partnership-level proceeding brought by BASR’s tax matters partner and BASR incurred all of the litigation costs claimed, because it is legally liable to reimburse the partners for those fees and costs under Texas state law. Pl. Reply at 2, 3–4 (citing TEX. BUS. ORG. CODE ANN. §§ 11.052(b), 11.055, 152.703, 152.704(1); see also Long v. Lopez, 115 S.W.3d 221, 228 (Tex. App. 2003) (“If a partner reasonably incurs a liability in excess of the amount he agreed to contribute in properly conducting the business of the partnership or for preserving the partnership’s business or property, he is entitled to be repaid by the partnership for that excess amount.”)). The Government does not dispute that BASR’s partners engaged Sutherland Asbill to file this case on BASR’s behalf or that the majority of fees paid to Sutherland Asbill were for the legal services regarding BASR’s 1999 partnership tax returns. Pl. Reply at 2. But, BASR did not engage nor pay Sutherland Asbill, because BASR has no assets, and under Section 2.5 of BASR’s 13 Partnership Agreement, the Managing Partner12 is entitled “to reimbursement for reasonable out- of-pocket expenses incurred by him on behalf of the Partnership or in pursuance of his duties as Managing Partner.” Pl. Reply Ex. A § 2.5. Section 9.2 of the Partnership Agreement also states that “[e]ach Partner shall, to the extent permitted by law, be indemnified and held harmless by the Partnership from and against any and all . . . expenses (including reasonable legal fees and expenses) . . . arising from any and all claims, costs, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Partner may be involved.” Pl. Reply Ex. A § 9.2. The United States Supreme Court has held that, “[i]n applying the Internal Revenue Code, state law controls in determining the nature of the legal interest which the taxpayer has in property.” United States v. Nat’l Bank of Commerce, 472 U.S. 713, 714 (1985). BASR was organized in Texas, and Texas law requires that a partnership must reimburse partners who advance legal fees on the partnership’s behalf. Pl. Reply at 3 (citing Long, 115 S.W.3 at 228). Texas law also provides that a partner tasked with winding up a partnership’s business is authorized to prosecute and defend civil, criminal, or administrative suits on the partnership’s behalf. See TEX. BUS. ORG. CODE ANN. §§ 11.052(b), 11.055, 152.703. Partnerships are bound by these obligations, and all partners are liable to contribute funds in proportion to their partner shares to fulfill any obligations that arise as a result. See TEX. BUS. ORG. CODE ANN. §§ 152.704 (“A partnership is bound by a partner’s act . . . that is appropriate for winding up[.]”); 152.705(a) (“[T]he losses with respect to which a partner must contribute under Section 152.708(a) include losses from a liability incurred under Section 152.704.”); 152.708(a)(1) (“[E]ach partner shall contribute, in the proportion in which the partner shares partnership losses, the amount necessary to satisfy partnership obligations[.]”). Although BASR is “no longer a going concern” several of its partners incurred the litigation costs on its behalf, and each partner is required to contribute to the partnership to cover this obligation. Pl. Reply at 4. 2. BASR Is A “Prevailing Party.” BASR Was A “Party” To The TEFRA Proceeding. The Government’s “real-party-in-interest” argument is “backwards,” because the federal appellate court in Unification Church held that, under the “real-party-in-interest” doctrine, “the court shall consider . . . the qualification . . . of those parties that will be themselves liable for fees if court-awarded fees are denied.” Pl. Reply at 5 (quoting Unification Church, 762 F.2d at 1082 (emphasis added)). In this case, BASR is liable to its partners under Texas law and is therefore a “real-party-in-interest.” Pl. Reply at 5. In addition, the Government’s “real-party-in-interest” argument is contrary to the provisions of I.R.C § 7430 that allow a partnership to qualify for a fee award. I.R.C § 7430 derives its net-worth requirements from the EAJA, 28 U.S.C. § 2412(d)(2)(B), and that statute provides Under the terms of BASR’s Partnership Agreement, William F. Pettinati, Sr. is both the 12 Tax Matters Partner and the Managing Partner. Pl. Reply Ex. A §§ 2.1 (“From and as of the date of this Agreement, William F. Pettinati, Sr. shall be the Managing Partner.”), 7.8 (“Unless otherwise required by law, the tax matters partner within the meaning of [I.R.C. § 6231(a)(7)] shall be the Managing Partner.”). 14 that a “party” must be either an individual whose net worth does not exceed $2,000,000 or a partnership with a net worth that does not exceed $7,000,000 and does not have more than 500 employees. See I.R.C. § 7430(c)(4)(A)(ii); 28 U.S.C. § 2412(d)(2)(B). By the Government’s logic, “a court would always have to test the net worth of all of the partnership’s partners—who will always bear the litigation cost as partners in the partnership.” Pl. Reply at 5. “That is not the law.” Pl. Reply at 5. In fact, Treasury Regulation § 301.7430-5(g)(5) provides that a TEFRA partnership may recover fees under I.R.C. § 7430, provided that it meets the relevant net worth and size limitations. If the Government’s argument is correct, it would make that regulation superfluous. Pl. Reply at 6. Even if BASR Was Not A “Party,” BASR’s Partners Meet The Net- Worth Requirement. “Even if the [c]ourt were to find . . . that only BASR’s partners are ‘parties’ for purposes of [I.R.C. §] 7430, . . . this [c]ourt properly found that the partners in BASR were Bingle Investments LLC, Falba Investments LLC, Winding Oak Investments LLC, and Watermill Investments LLC,” but the Government did not appeal that finding and is precluded from now arguing to the contrary. Pl. Reply at 7. “[I]f the [c]ourt were to ‘look through’ the single-member LLCs for purposes of determining who may be a party for purposes of Section 7430 (which we believe would be contrary to the [c]ourt’s Order . . .), two of those four partners (the two Gift Trusts that owned Watermill Investments LLC and Winding Oak, Investments LLC respectively) meet the net-worth requirements. And each of those two trusts are legally liable to BASR and BASR’s other partners for their proportionate shares of the litigation costs . . . . Their proportional share of the litigation costs is $81,285.17. The [c]ourt should alternatively award that amount.” Pl. Reply at 8 (footnotes omitted). William Pettinati, Jr.’s net worth is irrelevant, however, because he has never been a partner in BASR. Pl. Reply at 8–9. “Although [William Pettinati, Jr.] was a beneficiary of the Pettinati 1998 Gift Trust f/b/o William Pettinati Jr., that trust is a complex trust that reports its own tax liability . . . but not its beneficiaries.” Pl. Reply at 9. Therefore, the Trust is legally liable for some of the fees that Mr. Pettinati, Jr. paid to Sutherland Asbill. Pl. Reply at 9.13 This is so, because Mr. Pettinati, Jr. “was empowered as trustee ‘to commence or defend . . . at the expense of the trusts, such litigation with respect to such trust estates as the Trustee considers advisable.” Pl. Reply at 9; see also Gov’t’ App. 238 (containing Section 4.1(r) of the 1998 Pettinati Trust Agreement). Texas law allows a trustee to “compromise, context, arbitrate, or settle claims of or against the trust estate or the trustee.” Pl. Reply at 9 (quoting TEX. PROP. CODE ANN. § 113.019). As such, the Trust is obligated to reimburse Mr. Pettinati, Jr. for the reasonable costs incurred during his term as Trustee. Pl. Reply at 10. In any event, the Government’s argument that William Pettinati, Jr. did not pay fees on behalf of the Trust “is absurd,” because “William Pettinati Jr.’s only interest in the outcome as this case was, as the [G]overnment recognizes, ‘as the beneficiary of the gift trust.’” Pl. Reply at 10 n. 6 (citing Gov’t Opp. at 14). 13 BASR avers that, on behalf of the trust, William Pettinati, Jr. has paid $134,500 of the total in $337,019.69 in the attorney and paralegal fees and litigation costs requested. Pl. Supp. Mem. Ex. F. The remaining amount was paid by William Pettinati, Sr. and by Virginia Pettinati. Pl. Supp. Mem. Ex. F. 15  BASR Made A Proper “Qualified Offer.” The Government also mischaracterizes the “qualified offer” provisions of I.R.C § 7430, by arguing that tax liability was not “in issue.” See I.R.C. § 7430(c)(4)(E)(ii)(II). Tax liability was “in issue,” as a partnership-level proceeding “bindingly determines all partnership items that feed directly into computing the partners’ tax liability.” Pl. Reply at 11 (citing I.R.C. § 6230(c)(4)). The Government’s contention that tax liability “in issue” means only “directly in issue” conflicts with United States v. Woods, 134 S. Ct. 557 (2013). In Woods, the United States Supreme Court held that federal courts have jurisdiction in TEFRA partnership-level federal-tax proceedings to determine penalties that affect tax-liability at the partner level, so that a federal court was “not required to shut its eyes” to the partner-level tax effects of partnership-level determinations. Id. at 564. The Government’s view also conflicts with a regulation implementing I.R.C. § 6404(g), a statute that suspends underpayment interest, after a certain amount of time has passed, and accrues again when the IRS sends the taxpayer a notice “specifically stating the taxpayer’s liability and the basis for the liability;” a FPAA is “sufficient notice” of tax liability to allow the interest to start accruing again. Pl. Reply at 12–13 (citing I.R.C. § 5404(g)(1)(A); Treas. Reg. § 301.6404- 4(a)(7)(ii)). In addition, either the issuance of the FPAA or the Government’s Answer commenced the “qualified offer period.” Pl. Reply at 13–15. Treasury Regulation § 301.7430–3(c)(3) treats a FPAA as a “notice of deficiency” that serves to start the “qualified offer period.” See Treas. Reg. § 301.7430-3(c)(3). For this reason, the United States Court of Appeals for the Fifth Circuit has held that a FPAA is the “functional equivalent of a notice of deficiency.” Sealy Power, Ltd. v. Comm’r, 46 F.3d 382, 385–85 (5th Cir. 1995) (holding that a FPAA is the functional equivalent of a notice of deficiency because it “serve[s] to afford affected taxpayers that the Commissioner has made a final administrative determination of their liability for particular tax years”). Alternatively, the Government’s August 10, 2010 Answer began the “qualified offer period,” as Treasury Regulation § 301.7430–7(c)(7) provides that the qualified offer period begins when the Government files its answer. BASR adds that the “qualified offer” of $1 was not a “sham,” as the Government argues, and there is no basis for the court to exercise its discretion to deny an award. Pl. Reply at 15–18. 3. BASR’s Requested Litigation Costs Are “Reasonable.” BASR contends that the attorney fees requested are “reasonable” because the legal issues involved were difficult as well as novel, and the requested hourly rate is in line with the prevailing rate in the community for complex litigation. Pl. Reply at 19. With respect to the fees and costs incurred regarding proceedings before the IRS and the United States Tax Court, those proceedings occurred because the IRS assessed tax and instituted collection actions against BASR’s partners while the TEFRA proceeding was pending in the United States Court of Federal Claims, and I.R.C § 7430 allows a taxpayer to recover “reasonable litigation costs incurred in connection with such court proceeding.” Pl. Reply at 20 (quoting I.R.C. § 7430(a)(2) (emphasis added)). To the extent that court is inclined to deny that portion of the fee request, it amounts to $21,395.14 As to 14 This amounts to 56.3 hours of associate time at $250 an hour and 18.3 hours of partner time at $400 an hour. Pl. Reply. Ex. E (showing time entries for collection case before IRS and United States Tax Court). 16 the Government’s objection that Sutherland Asbill’s paralegal work was “purely clerical,” a review of the work shows that paralegals organized documents and cite checked pleadings and briefs, all of which was work that “if not performed by the paralegal, would have been performed personally by the [plaintiff’s] attorneys.” Pl. Reply at 20 (quoting Miller, 983 F.2d at 862 (holding that paralegal work involving going to a library to locate cases was compensable because it otherwise would be performed personally by the plaintiff’s attorneys and was not purely clerical in nature)). In addition, the time Sutherland Asbill spent preparing the September 4, 2017 Motion To Compel was “reasonable.” Pl. Reply at 22. 4. BASR Is Entitled To An Award Of Additional Attorney Fees Incurred In Connection With The March 7, 2016 Motion For Litigation Costs And Post-Trial Litigation. BASR also requests additional “fees for fees,” to recover for litigation costs incurred to prepare and support the March 7, 2016 Motion For Litigation Costs. Pl. Reply at 22 (citing Larsen, 39 Fed. Cl. at 171 (awarding fees that “relate to the present dispute over plaintiff's general entitlement to fees and costs”)). Accordingly, BASR seeks additional attorney’ fees for 24.9 partner hours and 59.6 associate hours, or an additional $24,860 in attorney fees, bringing the total request to $325,140.69. Pl. Reply at 23. D. The Government’s Sur-Reply. The Government counters that BASR’s “new theory” that it incurred the litigation costs, because of the partners’ legal obligations under Texas partnership law has “no basis in law and fact.” Gov’t Sur-Reply at 2. First, “[t]he partners, rather than the partnership entity, are the parties in a TEFRA proceeding.” Foothill Ranch, 110 T.C. at 99. BASR’s Partnership Agreement states that BASR’s partners are: William Pettinati, Sr., Virginia Pettinati; and two gift trusts, i.e., the 1998 Gift Trust for William F. Pettinati, Jr., and the 1998 Gift Trust for Andrew P. Pettinati. Gov’t Sur-Reply at 2. Therefore, BASR’s partners are not single-member LLCs under the Partnership Agreement. Gov’t Sur-Reply at 3. Second, BASR is no longer a going concern and has “zero assets” to reimburse the Pettinatis for their litigation costs. Gov’t Sur-Reply at 4 (citing Pl. Reply Ex. C). “[T]he fact that BASR . . . has never reimbursed the Pettinatis for any of the litigation costs . . . and that the Pettinatis have not previously sought reimbursement from BASR, strongly indicates that BASR was never under any obligation to do so under the partnership agreement or Texas law[.]” Gov’t Sur-Reply at 4. BASR’s Partnership Agreement provides that BASR’s partners “have no obligation to make further contribution to the Partnership beyond their initial contributions,” and any obligation that BASR may have to indemnify its partners for legal fees is limited “to the extent of any Partnership Assets.” Gov’t Sur-Reply at 4 n.2. Moreover, BASR mischaracterizes Treasury Regulation § 301.7430-3(c)(3) to conclude that a FPAA must be treated as a notice of deficiency for purposes of triggering the “qualified offer period,” because that regulation specifies that a FPAA must be treated as a notice of deficiency, 17 “only for purposes of determining reasonable administrative costs under section 7430.”15 Gov’t Sur-Reply at 6 (quoting Treas. Reg. § 301.7430-3(c)(3) (emphasis added)). E. Plaintiff’s Supplemental Filing. BASR’s December 1, 2016 Supplemental Filing seeks additional attorney and paralegal fees for 24.6 hours spent by a partner at $400 an hour; 6.3 hours spent by an associate at $250 an hour; and 3.2 hours spent by a paralegal at $145 an hour,16 increasing the fee award by $11,879, or a total of $337,019.69. Pl. Supp. Mem. at 2. Included with the Supplemental Filing is a November 9, 2016 Declaration of Timothy R. Lavender, an attorney and partner at Kelley Drye & Warren, LLP in Chicago, Illinois, who testified that Sutherland Asbill’s billing rate for partners, associates, paralegals, and support staff was “respectively quite low,” in comparison to other professionals in Washington, D.C., with similar skills, experience, and reputation for tax matters. 11/9/16 Lavender Decl. at ¶¶ 2, 3, 5. In addition, the amount of time spent on this case was appropriate and reasonable. 11/9/16 Lavender Decl. at ¶ 4. F. The Government’s Supplemental Response. The Government responds to Mr. Lavender’s November 9, 2016 Declaration by arguing that the prevailing market rate in Washington, D.C. is not a “special factor” that would justify an increase in the statutory rate. See Pierce v. Underwood, 487 U.S. 552, 571–72 (1988) (holding that, with respect to the EAJA, the local or national market rate for legal services cannot be a special factor used to increase the rate beyond the statutory rate). Thus, Mr. Lavender’s Declaration that the rates requested for Sutherland Asbill are lower than the market rate for representation is irrelevant. Govt. Supp. Resp. at 2. Nor does Mr. Lavender’s November 9, 2016 Declaration address any “local availability of tax expertise” in Washington, D.C., (where the United States Court of Federal Claims is located), or in Houston, Texas (where Mr. William F. Pettinati, Jr., lives). Gov’t Supp. Resp. at 3. Moreover, the Government argues that the additional litigation fees—i.e., the fees incurred after the filing of the March 7, 2016 Motion For Attorney Fees—exceeded the current statutory rate of $200, and that BASR has made no showing that any special factor warrants an enhanced rate in this case. Gov’t Supp. Resp. at 3. 15 The Government also argues that BASR’s computation of costs incurred in connection with the separate proceedings before the IRS and the United States Tax Court was improper, and there were additional costs and fees incurred in connection with those proceedings. Gov’t Sur-Reply at 8. 16 Although BASR previously requested paralegal fees at a rate of $150 an hour (Pl. Mem. at 10), the $11,879 increase asked for in the December 1, 2016 Supplemental Filing results from a calculation of a rate for paralegals at $145 an hour ((24.6 x 400) + (6.3 x 250) + (3.2 x 145)=11,879). For sake of consistency, the court assumes that BASR intended all paralegal hours to be awarded at a rate of $150 an hour. 18  G. The Court’s Resolution. 1. BASR Is A “Prevailing Party” Under I.R.C § 7430. The first issue to be determined by the court is whether BASR is a “prevailing party” under I.R.C § 7430(a), that provides: [i]n any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty . . . the prevailing party may be awarded a judgment or a settlement for (1) reasonable administrative costs incurred in connection with such administrative proceeding with the Internal Revenue Service, and (2) reasonable litigation costs incurred in connection with such court proceeding. I.R.C. § 7430(a) (emphasis added). The term “prevailing party” is defined in I.R.C § 7430(c)(4) as: “any party in any proceeding which subsection (a) applies,” i.e., a party to any “administrative or court proceeding brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty[.]” A “party” to one of the proceedings referenced in I.R.C § 7430(c)(4) may not be considered a “prevailing party,” unless that party meets the net- worth requirements of section 2412(d)(2)(B) of the EAJA. See I.R.C. § 7430(c)(4)(A)(ii). Section 2412(d)(2)(B) of the EAJA defines a “party” as: (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) . . . any partnership . . . the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B). To be considered a “prevailing party” under I.R.C. § 7430, a “party” must also establish that it “substantially prevailed” with respect either to the amount in controversy or with respect to the most significant issue or set of issues presented, and also must show that the Government’s position was not “substantially justified.” I.R.C. § 7430(c)(4)(A)–(C). These requirements are waived, however, if the final judgment in the court proceeding is equal to or less than the amount of a party’s “qualified offer.” I.R.C. § 7430(c)(4)(E), (g). Therefore, in this case, the court must determine whether BASR is a “party” under I.R.C § 7430. The next step is to determine whether BASR properly made a “qualified offer.” See I.R.C § 7430(c)(4)(E). If each of these elements is established, BASR is entitled to be considered a “prevailing party.” 19  BASR Is A “Party,” Under I.R.C § 7430(c)(4). The Government argues that BASR was never a “party” in this case, that originated as a “petition for readjustment of partnership items,” filed by William F. Pettinati, Sr., in his capacity as BASR’s Tax Matters Partner, pursuant to I.R.C. § 6226. Compl. ¶ 1. Under I.R.C. § 6226(a), a tax matters partner may file a petition for a readjustment of a FPAA with the United States Court of Federal Claims. See I.R.C. § 6226(a)(3) (“Within 90 days after [notice of a FPAA], the tax matters partner may file a petition for a readjustment of the partnership items for such taxable year . . . with the Court of Federal Claims.”). I.R.C. § 6226(c) provides that the parties may include “each person who was a partner in [the] partnership at any time during [the relevant partnership taxable year].” I.R.C. § 6226(c) (emphasis added). The United States Tax Court has interpreted I.R.C. § 6226(c) as standing for the proposition that “the partners, rather than the partnership entity, are the parties in a TEFRA proceeding.” Foothill Ranch, 110 T.C. at 99 (citing I.R.C. § 6226(c)). The Rules of the United States Court of Federal Claims (“RCFC”) also provides, in Appendix F, that: [f]or purposes of this Appendix, the United States, the partner who filed the complaint, the tax matters partner, and each person who satisfies the requirements of Code Section[] 6226(c) . . . shall be treated as parties to the action. RCFC App’x F Rule 6(a). The April 16, 2010 Complaint did not identify the BASR partnership entity as a party; but William F. Pettinati Sr., was identified as a plaintiff, acting as BASR’s designated Tax Matters Partner. Compl. ¶¶ 2, 10. The following entities also were identified as partners of BASR under the subheading “The Parties”: (1) Bingle Investments LLC; (2) Falba Investments LLC; (3) Winding Oak Investments LLC; (4) Watermill Investments LLC; and (5) Cypress Investments, Inc. Compl. ¶¶ 8–9. Nevertheless, BASR argues that, as a partnership, it should be considered a “party” to this case for purposes of I.R.C § 7430, because of the relevant regulation promulgated by the Secretary of the Treasury. See Treas. Reg. § 301.7430–5(g)(5) (governing TEFRA partnerships seeking administrative fees pursuant to I.R.C § 7430). Treasury Regulation § 301.7430–5 provides that, “in cases involving partnerships subject to the unified audit and litigation procedures [of TEFRA], the TEFRA partnership meets the net worth and size limitations requirement” when its net worth does not exceed $7,000,000 and the partnership does not have more than 500 employees. Treas. Reg. § 301.7430–5(g)(5)(i). Treasury Regulation § 301.7430–5 provides the net-worth requirements for both TEFRA partnerships and for partners who are parties to a TEFRA partnership-level proceeding. See Treas. Reg. § 301.7430–5(g)(5) (providing that “in addition, each partner requesting fees pursuant to [I.R.C. §] 7430 must meet the appropriate net worth and size limitations set forth in paragraph (g)(1), (g)(2), or (g)(3) of this section.” (emphasis added)). Paragraph (g)(1) provides the net worth limitation for natural persons, (g)(2) provides the net worth limitations for estates and trusts, and paragraph (g)(3) provides that a “taxpayer that is a partnership . . . . meets the net worth and size limitations” if its net worth does not exceed seven million dollars and it does not have more than 500 employees. See Treas. Reg. § 301.7430–5(g)(1)–(3). 20  In short, this Regulation provides that either the TEFRA partnership or the individual partners may request litigation costs. See Treas. Reg. § 301.7430–5(g)(1)–(5). Paragraph (g)(3) provides the net worth requirement for the situation where the individual partners are partnerships. See Treas Reg. § 301.7430–5(g)(3) (providing the net worth and size limitations for taxpayers that are partnerships). Paragraph (g)(5) would be superfluous if it only applied to situations where an individual partner seeking attorney fees was a partnership; as the text states “the TEFRA partnership” must meet the net-worth requirements. See Treas. Reg. § 301.7430–5(g)(5). The placement of the article “the” designates that the TEFRA partnership, not only its partners, are subject to the net-worth requirements of I.R.C. § 7430 and may recover for attorney fees as a “party.” Therefore, the court has determined that a partnership that is subject to a TEFRA partnership-level proceeding is a “party” that may request litigation costs, subject to the statutory requirements of I.R.C § 7430, including the net-worth requirements of the EAJA. This interpretation is consistent with TEFRA, because it was enacted to “creat[e] a single unified procedure for determining the tax treatment of all partnership items at the partnership level, rather than separately at the partner level.” Keener v. United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009) (quoting In re Crowell, 305 F.3d 474, 478 (6th Cir. 2002)). As such, BASR was a partnership subject to a TEFRA partnership-level proceeding initiated by Mr. Pettinati, Sr. in his capacity as the Tax Matters Partner. And, both parties agree that BASR meets the net-worth requirements of the EAJA, 28 U.S.C. 2412(d)(2)(B), since it has a net worth of $0 and no employees. Pl. Reply Ex. C (5/9/16 Affidavit of William Pettinati Sr. stating that BASR has “zero assets”). This is less than the $7,000,000 net worth and 500 employee minimums set by the EAJA. See 28 U.S.C. § 2412(d)(2)(B). For these reasons, the court has determined that BASR is a “party” under I.R.C. § 7430(c)(4). BASR Made A “Qualified Offer” And Is Therefore A “Prevailing Party” Under I.R.C § 7430(c)(4)(E). BASR argues that it made a “qualified offer” and therefore is a “prevailing party” exempt from demonstrating that it “substantially prevailed,” with respect to the most significant issue or set of issues presented, because the court’s final judgment was equal to or less than the amount of BASR’s qualified offer. See I.R.C. § 7430(c)(4)(E). Therefore, the court must next determine whether the “qualified offer” rule applies to this proceeding, and whether BASR made a “qualified offer.” i. Tax Liability Was “In Issue” In This Case. I.R.C. § 7430(g)(1) defines a “qualified offer,” as a written offer that: (A) is made during the “qualified offer period;” (B) specifies the offered amount of the taxpayer’s liability (determined without interest); (C) is designated as a “qualified offer” for purposes of I.R.C. § 7430; and (D) remains open until the date of trial, the date of rejection, or until 90 days have elapsed, whichever occurs first. See I.R.C. § 7430(g)(1)(A)–(D). 21  The “qualified offer” rule, however, does not apply in “any proceeding in which the amount of tax liability is not in issue, including any declaratory judgment proceeding, any proceeding to enforce or quash any summons issued pursuant to this title, and any action to restrain disclosure under [I.R.C. §] 6110(f).” I.R.C. § 7430(c)(4)(E)(ii)(II). In this case, the Government argues that tax liability is not “in issue,” because, under TEFRA, partnership-level FPAA review proceedings do not determine the tax liability of any partner. Gov’t Opp. at 17. Instead, FPAA judicial review proceedings determine the tax treatment of partnership items. See I.R.C. § 6226(f) (“[The] court . . . shall have jurisdiction to determine all partnership items of the partnership for the partnership taxable year to which the [FPAA] relates, the proper allocation of such items among the partners, and the applicability of any penalty, addition to tax, or additional amount which relates to an adjustment to a partnership item.”). The tax liability of individual partners then are determined in subsequent proceedings at the partner level. See I.R.C. § 6230(a)(1)–(2) (providing procedures under which the IRS may make “computational adjustments” to the tax liability of individual partners); see also Woods, 134 S. Ct. at 563 (“Once the adjustments to partnership items have become final [under TEFRA], the IRS may undertake further proceedings at the partner level to make any resulting ‘computational adjustments’ in the tax liability of the individual partners.”). Although the Government is correct that the partners’ final tax liability is determined at the partner level, it is not correct that tax liability was not “in issue” in this case. The partnership- level FPAA review proceeding conclusively determines the tax treatment of all partnership items, determining each individual partner’s tax liability: [T]he treatment of partnership items on the partnership return . . . under the [FPAA], or under the decision of the court (whichever is appropriate) shall be conclusive. In addition, the determination under the FPAA or under the decision of the court (whichever is appropriate) concerning the applicability of any penalty, addition to tax, or additional amount which relates to an adjustment to a partnership item shall also be conclusive. Notwithstanding the preceding sentence, the partner shall be allowed to assert any partner level defenses that may apply or to challenge the amount of the computational adjustment. I.R.C. § 6230(c)(4) (emphasis added). As the United States Supreme Court recognized, the court in a partnership-level TEFRA proceeding is “not required to shut its eyes” to the tax consequences of the court’s decision, even if the “formal adjustment” of the partners tax liability will occur at a subsequent proceeding. See Woods, 134 S. Ct. at 565. The statute of limitations defense successfully raised by BASR in this case was held to be a partnership-level item by our appellate court. See BASR Partnership, 795 F.3d at 1354 (“[T]ax is paid only on the partner’s individual returns, but [a partnership’s] tax treatment is determined and assessed at the partnership level”); see also Keener, 551 F.3d at 1363 (holding that the statute of limitations is a “partnership item” under TEFRA); Prati v. United States, 603 F.3d 1301, 1307 (Fed. Cir. 2010) (“Based on Keener, we hold that the statute of limitations issue is a partnership item.”); see also I.R.C. §§ 6229 (providing the statute of limitations for assessing any tax attributable to a partnership item), 6501 (providing the statute of limitations for assessing tax under the I.R.C.). By raising this defense, BASR’s partners incurred no tax liability. In addition, that tax liability was “in issue” in this case is evident from the 22 Government’s April 28, 2016 Response, wherein the Government the potential effect of the FPAA, if it was not untimely under the statute of limitations: “victory [for the Government] would have resulted in increases in tax liability for BASR’s . . . partners . . . collectively equal to the tax on the $6.6 million gain passed through to them by BASR from the sale of the Pettinatis’ family business.” Gov’t Resp. at 27. ii. A “Qualified Offer” Was Made During The “Qualified Offer Period.” To be considered a “qualified offer,” the taxpayer’s offer must be made during the “qualified offer period.” I.R.C. § 7430(g)(1). The “qualified offer period” is defined as the period “beginning on the date on which the first letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the [IRS] Office of Appeals is sent” and “ending on the date which is 30 days before the date the case is first set for trial.” I.R.C. § 7430(g)(2)(A)–(B). On July 12, 2012, in response to the IRS’s January 20, 2010 FPAA, BASR sent the IRS a letter designated as a “qualified offer,” to settle all outstanding claims by the IRS with respect to the applicable tax years for which the FPAA was issued. Pl. Mem. Ex. A. Because the court decided this case on summary judgment, BASR’s offer was made more than 30 days before the date the case was first set for trial. The Government argues, however, that this offer was not made during the “qualified offer period” because the FPAA was not a “letter of proposed deficiency” that serves to commence the “qualified offer period” under I.R.C § 7430(g)(1). Gov’t Resp. at 20–21. The Government’s argument, however, is contrary to Treasury Regulation § 301.7430- 3(c)(3) that provides, for the purposes of determining reasonable administrative costs under I.R.C. § 7430, a FPAA is equivalent to a notice of deficiency that commences the “qualified offer period.”17 In addition, the United States Court of Appeals for the Fifth Circuit has held that “[a] FPAA is the functional equivalent of a notice of deficiency.” Sealy Power, Ltd. v. Comm’r, 46 F.3d 382, 385–85 (5th Cir. 1995). In Clovis I v. Comm’r, 88 T.C. 980, 981 (1987), the United States Tax Court also determined that: The FPAA is to [TEFRA litigation] what the statutory notice of deficiency is to tax controversies before [the United States Tax Court] that involve [an IRS] determination of a deficiency, i.e., it is the notice to affected taxpayers that [the IRS] has made a final administrative determination for the particular tax years. Id. 17 The Government concedes that Treasury Regulation § 301.7430-3(c)(3) treats the FPAA as a notice of deficiency that commences the “qualified offer period” for recovery of administrative costs under I.R.C § 7430. Gov’t Sur-Reply at 6. But, the Government argue that a FPAA is not a notice of deficiency for purposes of the litigation costs that BASR seeks in this case. Gov’t Sur-Reply at 6–7. 23  Nevertheless, the Government insists that a FPAA is not a “letter of proposed deficiency” because a FPAA does not specify any amount of tax due, as required by the I.R.C. § 7522. See I.R.C. § 7522(b)(3) (providing the required contents of “the [first] letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the Internal Revenue Service Office of Appeals.”). Under I.R.C. § 7522, the “letter of proposed deficiency,” must: describe the basis for, and identify the amounts (if any) of, the tax due, interest, additional amounts, additions to the tax, and assessable penalties included in such notice. An inadequate description under the preceding sentence shall not invalidate such notice. I.R.C. § 7522(a) (emphasis added). In other words, I.R.C. § 7522 does not, as the Government argues, require that the first “letter of proposed deficiency” specify an amount of tax due. Instead, this statute requires that the first “letter of proposed deficiency” specifies the amount of tax due, if any. The Government also argues that an FPAA is not a “letter of proposed deficiency,” because it is a “notice of a final partnership adjustment” that does not allow the taxpayer “an opportunity for administrative review” before the IRS Office of Appeals. Gov’t Opp. at 23 (citing I.R.C. § 7430(g)(2)(A)). But, the Secretary of Treasury has promulgated regulations that provide that a taxpayer still gets the full benefit of the “qualified offer” provisions, even if the taxpayer receives only a “final” notice of deficiency and never receives such notice in proposed form. See Treas. Reg. § 301.7430-7(e) example 14 (explaining that a taxpayer will be treated as making a “qualified offer” even if he only receives a final notice of deficiency). Moreover, the issuance of an FPAA does allow for some administrative review; specifically, the case will be returned to the IRS Office of Appeals if partners opt out of court proceedings by settling with the IRS. See I.R.C. § 6224(c) (governing settlement in TEFRA cases); Rev. Proc. 87-24, 1987-22 I.R.B. 23 (providing procedures pursuant to which the IRS Office of Appeals will consider settlement offers); see also Internal Revenue Manual (“I.R.M”) 8.19.12.13 (providing procedures to follow “if the [FPAA] case is later returned to [the IRS Office of] Appeals to settle”). For these reasons, the court has determined that the date of a FPAA is tantamount to a “letter of proposed deficiency” that commences the “qualified offer period” under I.R.C. § 7430(g)(2)(A)–(B). iii. The “Qualified Offer” Was Not A Sham. Next, the Government also argues that, even if BASR’s written offer was submitted during the “qualified offer period,” the offer was a “sham” and not a “qualified offer” since it was for $1. Gov’t Resp. at 27. According to the Government, an offer of $1 was “wholly unreasonable and, on its face, constituted nothing of significance for [P]laintiff to part with,” because a “victory [for the Government] would have resulted in increases in tax liability for BASR’s . . . partners . . . collectively equal to the tax on the $6.6 million gain passed through to them by BASR from the sale of the Pettinatis’ family business.” Gov’t Resp. at 27. 24  I.R.C § 7430(c)(4)(E)(i) requires only that taxpayer’s adjudged tax liability be equal to or less than the taxpayer’s “qualified offer.” I.R.C. § 7430(c)(4)(E)(i) (“A party . . . shall be treated as the prevailing party if the liability of the taxpayer pursuant to the judgment in the proceeding . . . is equal to or less than the liability of the taxpayer which would have been so determined if the United States had accepted a qualified offer of the party[.]”). This statute does not require any minimum amount or define the parameters of a “reasonable” offer, nor does it require that an offer be for a certain percentage of the taxpayer’s purported liability. See I.R.C. § 7430(c)(4)(E)(i). Indeed, the Government has offered no amount that BASR could have offered that would have been “reasonable.” In this case, the final judgment of the court not to sustain the FPAA on the basis that the FPAA was untimely issued resulted in $0 of tax liability for BASR’s partners. Because $1 is more than $0, the court has determined that BASR’s “qualified offer” complied with I.R.C. § 7430. 2. BASR “Incurred” The Fees Paid To Sutherland Asbill & Brennan LLP. Because BASR is a “prevailing party,” the court must next determine whether it “incurred” attorney fees, pursuant to I.R.C. § 7430(a)(2). The United States Court of Appeals for the Federal Circuit has held that a party “incurred” fees under the EAJA, only if that party had an obligation to pay those fees. See Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1582–83 (Fed. Cir. 1991) (holding that attorney fees are “incurred” only when there is an “express or implied agreement that the fee award will be paid over to the legal representative”). Other federal appellate courts have held that, with respect to I.R.C § 7430, “fees are incurred when there is a legal obligation to pay them.” Estate of Palumbo, 675 F.3d at 239–40; see also Morisson v. Comm’r, 565 F.3d 658, 662 (9th Cir. 2009) (holding that taxpayer incurs attorney fees “if he assumes either (1) a noncontingent obligation to repay the fees advanced on his behalf at some later time; or (2) a contingent obligation to repay the fees in the event of their eventual recovery”). In this case, BASR “incurred” litigation costs for purposes of I.R.C § 7430, because it has an obligation to pay the attorney and paralegal fees and other costs charged by Sutherland Asbill. The fee arrangement in this case were addressed to and signed by Mr. William F. Pettinati, Sr., Mrs. Virginia Pettinati, Mr. William F. Pettinati, Jr., and Mrs. Karie M. Pettinati. Gov’t App. 3– 8. The fee agreement did not mention that the fees were being advanced by the Pettinatis on behalf of BASR. Gov’t App 3 (“Dear Mr. and Mrs. Pettinati [Jr.] . . . we are pleased to be retained by you. . . .” (emphasis added)); Gov’t App 6 “Dear Mr. and Mrs. Pettinati [Sr.] . . . we are pleased to be retained by you. . . .” (emphasis added)). Under the fee agreements, legal fees were billed to and paid by the Pettinatis. Gov’t App. 9–218 (invoices addressed to Mr. and Mrs. Pettinati Sr.); Gov’t App. 263–283 (credit card statements showing personal credit card payments to Sutherland Asbill made by Mr. Pettinati Sr.); Gov’t App. 284–295 (credit card statements showing personal credit card payments to Sutherland Asbill made by Mr. Pettinati Jr.). BASR’s Partnership Agreement, however, states that the Managing Partner is entitled to “reimbursement for reasonable out-of-pocket expenses incurred by him on behalf of the Partnership or in pursuance of his duties as Managing Partner.” Pl. Reply Ex. A § 2.5. In addition, Section 9.2(a) states that, 25  each Partner shall, to the extent permitted by law, be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint and several, expenses (including reasonable legal fees and expenses), judgments, fines, settlements. and other amounts arising from any and all claims, costs, demands, actions, suits or proceedings civil, criminal, administrative, or investigative, in which the Partner may be involved. Pl. Reply Ex. A § 9.2(a) (emphasis added). Therefore, under the terms of the Partnership Agreement, BASR is obligated to repay its Partners for litigation costs incurred on its behalf. Moreover, BASR is a general partnership organized in Texas and Section 9.11 of the Partnership Agreement states that “[t]his Agreement shall be governed by and construed in accordance with the laws of the State of Texas, including the [Texas Uniform Partnership] Act.” Pl. Reply Ex. A. § 9.11. In addition, the United States Supreme Court has held that “[i]n the application of a federal revenue act, state law controls in determining the nature of the legal interest which the taxpayer had in the property.” Nat’l Bank of Commerce, 472 U.S. at 722 (internal quotation marks and citations omitted). As such, Texas law governs the obligations that BASR owes to its partners. Section 152.002 of the Texas Business Organizations Code (“TBOC”)18 provides, with respect to general partnerships, that: [The] partnership agreement governs the relations of the partners and between the partners and the partnership. To the extent that the partnership agreement does not otherwise provide, this chapter and the other partnership provisions govern the relationship of the partners and between the partners and the partnership. TEX. BUS. ORG. CODE § 152.002(a). The TBOC applies unless the Partnership Agreement provides otherwise.19 18 In 2003, the Texas Legislature adopted the TBOC in order to make Texas business organization law “more accessible and understandable” by “rearranging the statutes into a more logical order” and “eliminating repealed, duplicative, expired, executed, and other ineffective provisions.” Adoption Of The Business Organizations Code, 2003 Tex. Sess. Law Serv. Ch. 182, § 1.001 (codified as TEX. BUS. ORG. CODE § 1.001). The TBOC serves to replace “all the existing Texas Statutes relating to nonprofit and for-profit, private-entities” including the Texas Revised Partnership Act, the Texas Uniform Partnership Act, and other Texas statutes governing partnership entities. Daryl B. Robertson et al., Introduction To Texas Business Organization Code, 38 TEX. J. BUS. L. 57, 63 (2002). 19 TBOC Section 152.002(b) provides a list of statutory requirements that may not be fully waived by the Partnership Agreement, such as the duty of loyalty and the duty of care; these exceptions, however, do not apply in this case. See TEX. BUS. ORG. CODE § 152.002(b). 26  In this case, BASR’s Partnership Agreement states that the partners are entitled to reimbursement by the partnership for any legal expenses incurred on behalf of the partnership. Pl. Reply Ex. A §§ 2.5, 9.2(a). But, even if the Partnership Agreement did not expressly provide that the partners were entitled to reimbursement, the TBOC obligates BASR to repay its partners for litigation costs incurred on its behalf. Under TBOC Section 11.052(b), any “domestic entity,” i.e., a business organization governed by the TBOC,20 may prosecute or defend a civil, criminal, or administrative action while winding up its business. See TEX. BUS. ORG. CODE § 11.052(b); see also TEX. BUS. ORG. CODE §§ 11.055(b) (“During the winding up process, a domestic entity may continue prosecuting or defending a court action or proceeding by or against the domestic entity.”); 152.703(a) (“To the extent appropriate for winding up . . . a person winding up a partnership’s business may take the actions specified in Sections 11.052 [and] 11.055.”). The TBOC specifically provides that a partnership is bound by obligations undertaken by its partners during the winding up process. See TEX. BUS. ORG. CODE. § 152.704(1) (“After the occurrence of an event requiring winding up of the partnership business, a partnership is bound by a partner’s act that . . . is appropriate for winding up[.]”), § 152.705 (“[T]he losses with respect to which a partner must contribute . . . include losses from an [obligation] incurred under Section 152.704.”), § 152.708(a)(1) (“[E]ach partner shall contribute . . . the amount necessary to satisfy partnership obligations[.]”). Thus, although BASR is “no longer a going concern,” it remains bound by legal obligations undertaken by its partners. Pl. Reply at 4 Section 9.2(c) of BASR’s Partnership Agreement limits indemnification “to the extent of any Partnership assets.” Pl. Ex. A. § 9.2(c). In addition, with respect to additional capital contributions to the Partnership, Section 5.1 of the Partnership Agreement provides that “the existing Partners shall be permitted, but shall have no obligation, to make further contributions to the Partnership.” Pl. Ex. A. § 5.1. But, the fact that BASR is currently unable to reimburse the partners for the litigation costs advanced on its behalf does not change the fact that BASR is obligated to reimburse is partners. If the court awards BASR the litigation costs sought, BASR will in turn be obligated, under the terms of the Partnership Agreement and under Texas law, to indemnify the partners for the fees advanced upon its behalf.21 In the alternative, the Government argues that the “real-party-in-interest” doctrine bars an award of litigation costs. See Unification Church, 762 F.2d at 1082. In Unification Church, three individuals and the Unification Church (“the Church”) sought award of attorney fees under the 20 The TBOC defines the term “domestic entity” as “an organization formed under or the internal affairs of which are governed by this code.” TEX. BUS. ORG. CODE § 1.002(18). 21 In Oral Argument on October 26, 2016, BASR’s counsel represented that most of BASR’s partners performed their obligations under the partnership agreement. 10/26/16 TR at 8 (“And if the Government is looking for some state law action like a suit or something or some formal agreement, that they performed, they each kicked in their share.”). The only partner that did not contribute fees was the Andrew Pettinati Gift Trust, and “that’s because the trust has no assets and Andrew Pettinati is destitute.” 10/26/16 TR at 9. 27 EAJA. Id. at 1079. Under the plaintiffs’ fee arrangement with their attorney, only the Church was liable for payment of attorney fees, if the plaintiffs did not recover under the EAJA. Id. at 1082 (“The affidavit of plaintiffs’ counsel . . . discloses that, although he was “retained” by the individual plaintiffs to represent them [before the court], his “arrangement” for payment for his services is solely with the Unification Church[.]” (internal citations and quotation marks omitted)). Because the Church was the beneficiary of any fee award, the federal appellate court held that it was the “real-party-in-interest” for purposes of the EAJA. Id. at 1083 (“If we deny fees, the Church will pay the fees. If we award fees, [the Government] will pay the fees. The Church is the beneficiary of any award of fees, not the individual appellants, and thus the Church can fairly be characterized as the real party in interest.”). But since the Church had more than 500 employees, it was barred from receiving an award of litigation costs under Section 2412(d)(2)(B) of the EAJA, despite the other named plaintiffs being individuals with a net-worth below the statutory threshold. Id. at 1092. In this case, however, BASR is obligated to pay the litigation costs under Texas law and therefore is the “real-party-in-interest” with respect to the litigation costs, if the court-awarded litigation costs are denied. See Unification Church, 762 F.2d at 1082 (holding that “the court shall consider only the qualification[s] . . . of those parties that will be themselves liable for fees if court- awarded fees are denied.”). For these reasons, the court has determined the “real-party-in-interest” doctrine is not a bar to recovery. Because BASR was the “prevailing party,” that “incurred” the litigations costs, the court need not consider the net worth of BASR’s individual partners, i.e., William Pettinati, Sr., Virginia Pettinati, The Pettinati 1998 Gift Trust f/b/o William F. Pettinati, Jr. (“the 1998 Gift Trust”), and The Pettinati 1998 Gift Trust f/b/o Andrew Pettinati, when determining whether an award is permissible under I.R.C. § 7430.22 Cf. Gov’t Opp. at 9–13 (arguing that, even if BASR could be a considered a “party,” it did not “incur” the litigation costs at issue, because the “real-parties-in- interest” were the individual members of the Pettinati family). In addition, the Government’s argument that William F. Pettinati, Jr. paid a portion of Sutherland Asbill’s fees “on his own behalf as the interested beneficiary of the Pettinati 1998 Gift BASR asserted in the May 9, 2016 Reply that BASR’s partners were Bingle Investments, 22 LLC, Falba Investments LLC, Winding Oak LLC, and Watermill Investments LLC. Pl. Reply at 7. This assertion, however, is contradicted by the terms of the Partnership Agreement, that states: THIS AGREEMENT OF GENERAL PARTNERSHIP for BASR PARTNERSHIP, dated as of May 24, 1999 (the “Agreement”), by and between WILLIAM F. PETTINATI, SR.; VIRGINIA PETTINATI; WILLIAM F. PETTINATI, JR., as Trustee of the Pettinati 1998 Gift Trust for William F. Pettinati, Jr.; and ANDREW PETTINATI, as Trustee of the Pettinati 1998 Gift Trust for Andrew P. Pettinati (herein collectively referred to as the “Partners”, and individually, a “Partner”). Pl. Reply. Ex. A. at 1. 28 Trust for William F. Pettinati Jr.” and not as the trustee of that same trust, is irrelevant, because, in the judgment of the court, the fees in this case were “incurred” by BASR, so the court need not consider the net-worth of its individual partners. Gov’t Sur-Reply at 3 (arguing that William F. Pettinati, Jr. paid fees on his own behalf, as opposed to as trustee); Gov’t Opp. at 13–15 (same). But, in any event, Mr. Pettinati, Jr. was not a partner in BASR; the 1998 Gift Trust was. Mr. Pettinati, Jr. was, as trustee, empowered under the 1998 Trust Agreement to “commence or defend in the sole discretion of the Trustee, at the expense of the trusts, such litigation with respect to such trust estates as the Trustee considers advisable.” Gov’t App. at 238 (containing § 4.1(r) of the 1998 Trust Agreement). Mr. Pettinati, Jr. exercised that trustee power to defend BASR’s 1999 tax returns and the 1998 Gift Trust’s tax liability. 3. BASR’s Litigation Costs Are “Reasonable.” Because BASR is a “prevailing party,” that “incurred” litigation costs, the next step in the court’s analysis to determine whether the litigation costs requested for this case are “reasonable.” I.R.C. § 7430 provides that a “prevailing party” may be awarded “reasonable litigation costs” incurred during a tax case. See I.R.C. § 7430(a)(2) (emphasis added)). The United States Court of Appeals for the Federal Circuit has held that the court has “broad discretion” in determining whether litigation costs requested are “reasonable.” See Wagner v. Shinseki, 640 F.3d 1255, 1261 (Fed. Cir. 2011) (holding that a court has broad discretion in awarding attorney fees under the EAJA, but is not required to make an award in all cases where a party seeks supplemental or increased fees). BASR’s Attorneys Spent A “Reasonable” Number Of Hours On This Case. BASR requests fees for: 413.7 hours in 2012; 171.9 hours in 2013; 124.1 hours in 2014; 39 hours in 2015; and 44.1 hours in 2016. Pl. Mem. at 8. The Government objects to fees for the 69.4 attorney hours, and 8.3 paralegal hours, spent on: (1) the September 4, 2012 Motion To Compel (ECF No. 22) that court denied; (2) opposing the Government’s successful September 4, 2012 Motion For Protective Order (ECF No. 23); and (3) preparing for a telephone status conference convened by the court on September 6, 2012. Gov’t Opp. at 39 (citing Miller, 983 F.2d at 861). In Miller, the federal appellate court disallowed fees for time spent on unsuccessful motions. Id. Whether a motion was successful affects whether time spent preparing it was reasonably spent, but is not the only factor that a federal court may consider. For example, the United States Court of Appeals for the Fifth Circuit has allowed for recovery of attorney fees under I.R.C § 7430 for time spent preparing an unfiled summary judgment motion, determining it was reasonable as it allowed the attorney to organize his thoughts and trial strategy. See Ragan v. Comm’r, 210 F.3d 514, 520 (5th Cir. 2000) (determining that an attorney could recover fees for time spent preparing an unfiled summary judgment motion because the time spent was not “wasted,” and helped him prepare for trial). In this case, it was not unreasonable for BASR to seek or oppose discovery or prepare for a court conference. 29  Based upon the records submitted to the court and the November 9, 2016 Declaration of Timothy R. Lavender, the court has determined that BASR’s attorneys reasonably spent the following amount of hours on this case: 360.1 hours in 2012; 158.5 hours in 2013; 117 hours in 2014; 38.3 hours in 2015; and 44 hours in 2016. Pl. Mem. Ex. D; Pl. Reply Ex. E; see also 11/9/2016 Lavender Decl. ¶ 4 (“Based upon my review, it is my opinion that the time spent by Sutherland [Asbill] . . . was both appropriate and reasonable[.]”).23 Under I.R.C. § 7430(c)(1)(B)(iii), a “prevailing party” may recover “reasonable” attorney fees at a set statutory rate, indexed for cost of living adjustments.24 When fees for the hours spent in this case are calculated at the relevant statutory rate, the court has determined that BASR is owed a total of $133,623 for attorney fees. 25 BASR May Recover “Reasonable” Supplemental Fees. BASR requests supplemental attorney fees for the time spent preparing the initial March 7, 2016 Motion For Litigation Costs and subsequent litigation. A party may recover a supplemental fee award for time expended defending a fee request made under either the EAJA or under I.R.C § 7430. Pl. Reply at 22; Pl. Supp. Mem. at 2; see also Wagner, 640 F.3d at 1262 (holding that the United States Court of Appeals for Veterans Claims abused its discretion denying a request for supplemental attorney fees, when plaintiff successfully defended part of his EAJA fee request); Larsen, 39 Fed. Cl. at 171 (determining that plaintiff may be awarded fees pursuant to I.R.C § 7430 that “relate to the present dispute over plaintiff’s general entitlement to fees and costs.”). When calculating a supplemental fee award, a court is required to consider the 23 The court has deducted the 53.6 hours in 2012, the 13.4 hours in 2013, the 7.1 hours in 2014, and the 0.5 hours in 2015 that Sutherland Asbill spent in connection with proceedings before the IRS or the United States Tax Court. Pl. Reply Ex. E. In addition, the court has deducted an additional .2 hours in 2015 and .1 hours in 2016 that the court determined was spent in connection with United States Tax Court proceedings upon review of Plaintiff’s Exhibits. Pl. Mem. Ex. D at 26 (12/2/2015 entry for .2 hours for “Attention to multiple Tax Court notices; email to clients”); Pl. Mem Ex. D at 27 (2/11/2016 entry for .1 hours for “Attention to Tax Court orders on CDP cases”). See Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987) (holding that, pursuant to the EAJA, courts may not award “expenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court.”). 24 For 2012, 2013, 2014, 2015, and 2016, the statutory rate was $180, $190, $190, $200, and $200 respectively. See I.R.C. § 7430(c)(1); Rev. Proc. 2011-52, 2011-45 I.R.B. 701; Rev. Proc. 2012-41, 2012-45 I.R.B. 539; Rev. Proc. 2013-35, 2013-47 I.R.B. 537; Rev. Proc. 2014-61, 2014-47 I.R.B. 860; Rev. Proc. 2015-53, 2015-44 IRB 615. 25 For 2012, 360.1 hours were multiplied by the rate of $180, leading to a total of $64,818. This same process was followed for each of the following years, i.e., 158.5 hours were multiplied by $190, resulting in $30,115 for 2013; 117 hours were multiplied by $190, resulting in $22,230 for 2014; 38.3 hours were multiplied by $200 resulting in $7,660 for 2015; and 44 hours were multiplied by $200 resulting in $8,800 for 2016. 30 relationship between the amount of the fee award and the results obtained through the attorney fees application. See Wagner, 640 F.3d at 1259 (citing Jean, 496 U.S. at 163 n. 10). In this case, BASR has successfully defended the March 7, 2016 Motion for Litigation Costs almost in its entirety, with the exception of the litigation costs incurred in non-United States Court of Federal Claims proceedings. Otherwise, the court has determined that the amount of time spent defending the March 7, 2016 Motion for Litigation Costs was reasonable. For these reasons, the court has determined that BASR may recover supplemental fees as follows: 24.9 partner hours and 59.6 associate hours spent from February 23, 2016 to May 8, 2016 (Pl. Reply Ex. D); and an additional 24.6 partner hours and 6.3 associate hours, incurred from May 4, 2016 to October 25, 2016 (Pl. Supp. Mem. Ex. A). At the statutory rate for 2016,26 these additional 115.4 attorney hours result in an additional $23,080 in fees, for a total attorney fee award at the statutory rate in the amount of $156,703. The Requested Increase In The Statutory Rate Set Forth In I.R.C. § 7430(c)(1)(B)(iii) Is “Reasonable.” Congress has authorized the court to award attorney fees at a rate in excess of the statutory rate, if the court “determines that a special factor, such as the limited availability of qualified attorneys for such proceeding, the difficulty of the issues presented in the case, or the local availability of tax expertise, justifies a higher rate.” I.R.C. § 7430(c)(1)(B)(iii). In this case, BASR argues that an increase above the statutory rate is justified, and requests fees at a rate of $400 per hour for time billed by Sutherland Asbill’s partners and a rate of $250 per hour for time billed by Sutherland Asbill’s associates. Pl. Mem. at 9. BASR argues this increase is justified, because: (1) BASR’s partners were unable to locate qualified tax counsel, either locally or nationally, that would undertake representation at a $200 or less per hour rate; and (2) the legal issues were difficult, novel and complex. Pl. Mem. at 8–9; Pl. Mem. Ex. B (3/7/16 Affidavits of William F. Pettinati, Sr. and William F. Pettinati, Jr.). The Government, however, insists that the legal issues were not difficult or complex, and that BASR has not established that there were no available attorneys in either the Houston, Texas area (where William F. Pettinati, Jr. lives) or in the Washington, D.C. area (where the United States Court of Federal Claims is located). Gov’t Opp. at 31–34; Gov’t Supp. Resp. at 2–3. With respect to BASR’s first argument, the United States Court of Appeals for the Fifth Circuit has held that the “limited availability of qualified attorneys for such proceedings” factor refers only to attorneys possessing some “unique ‘nonlegal or technical’ abilities that contribute to the limited availability of attorneys capable of handling the litigation.” Cervin v. Comm’r of Internal Revenue, 200 F.3d 351, 353 (5th Cir. 2000). In Cervin, the court rejected the taxpayer’s claim that expertise in tax law and Texas state law qualified as a special factor justifying an increase in the statutory maximum. Id. In addition, a federal court has construed the “limited availability of qualified attorneys” to mean “an actual shortage of qualified attorneys who could handle the case rather than an inability to retain qualified counsel willing to take on the representation at the statutory maximum hourly rate.” U.S. v. Guess, 436 F. Supp. 2d 1143, 1155 26 See Rev. Proc. 2015-53, 2015-44 IRB 615 (“For fees incurred in calendar year 2016, the attorney fee award limitation under § 7430(c)(l)(B)(iii) is $200 per hour.”). 31 (S.D. Cal. 2006) (emphasis added). Therefore, although BASR provided affidavits showing that BASR’s partners were unable to locate attorneys willing to handle this case at or below the statutory rate, this does not qualify as a “special factor” justifying an increase in the statutory maximum rate. Pl. Mem. Ex. B (3/7/16 Affidavit of William Pettinati, Jr., explaining that “I was unable to locate counsel, locally or nationally, who would charge less than $200 an hour.”). With respect to BASR’s second argument, Treasury Regulation § 301.7430–4 provides guidance for the IRS about when to authorize “reasonable administrative costs” under the “difficulty of the issues” special factor, and provides that the following factors should be considered: (1) The number of different provisions of law involved in each issue. (2) The complexity of the particular provision or provisions of law involved in each issue. (3) The number of factual issues present in the proceeding. (4) The complexity of the factual issues present in the proceeding. Treas. Reg. § 301.7430–4(b)(3)(iii) (emphasis added).27 In the court’s judgment, BASR’s counsel was faced with complex issues of law regarding the interaction of two separate I.R.C. statutes of limitation at both the trial and appellate levels. See BASR Partnership, 795 F.3d at 1342–1350; see also id. at 1351–58 (O’Malley, C.J., concurring in judgment but offering a different interpretation of the statutes at issue). In addition, coming to the correct conclusion required the United States Court of Appeals for the Federal Circuit to examine “the overall statutory scheme of the [Internal Revenue] Code, the case law, and [I.R.C. Section] 6501(c)(1)’s historical roots.” Id. at 1342. For these reasons the court has determined that the complex, novel, and difficult issues presented warrant an increase to $400 an hour for partner time and $250 an hour for associate time. The Government, however, insists that BASR cannot recover any supplemental fees at a rate above the statutory maximum, because I.R.C § 7430 requires a separate showing of a “special factor” to justify an increased rate for supplemental fees incurred with respect to the fee litigation, apart from any special factors affecting the underlying tax litigation. Gov’t Supp. Resp. at 4 (citing Powers v. Comm’r, 43 F.3d 172, 183 (5th Cir. 1995) (holding that higher rate would not be awarded for supplemental fees, because there was no showing that any special factor justifies an increased rate for litigating the attorney fees motion)). 27 Although Treasury Regulation § 301-7430–4 governs rate increases for administrative costs paid under I.R.C. § 7430, the Government argues that it should be relied upon for determining rate increases for litigation costs as well. Gov’t. Opp. at 32. This is inconsistent with the Government’s position that a FPAA cannot be treated as a “letter of proposed deficiency” for the award of litigation costs, despite Treasury Regulation § 301.7430-3(c)(3) providing that a FPAA can be treated as a “letter of proposed deficiency” for purposes of the award of administrative costs. 32  In this case, the court has determined that the “special factors” to be considered include the “difficulty of the issues,” as evidenced by the Government’s arguments concerning numerous provisions of the Internal Revenue Code and Treasury Regulations,28 requiring multiple filings and an oral argument. For these reasons, the court has determined that BASR may recover fees at a $400 hourly rate for time spent on this case by partners and a $250 hourly rate for time spent on this case by associates. At these increased rates, BASR’s total award of attorney fees is $280,100. The Paralegal Fees Are “Reasonable.” BASR also requests paralegal fees, at an hourly rate of $150, for 163.9 hours on this case, and an additional 3.2 hours on the subsequent fee litigation. Pl. Supp. Mem. Ex. A; Pl. Mem. Ex. C at 4–11. Paralegal work is compensable only if it otherwise would be required to be done by an attorney. See Miller, 983 F.2d at 862 (“Work done by paralegals is compensable if it is work that would have been done by an attorney. If such hours were not compensable, then attorneys may be compelled to perform the duties that could otherwise be fulfilled by paralegals, thereby increasing the overall cost of legal services.”). In Miller, the prevailing party was awarded paralegal fees for library research to locate cases and preparing materials used by an attorney at oral argument. Id. In this case, Sutherland Asbill paralegals organized and proofed court filings that otherwise would have had to have been performed by an attorney. For example, paralegals proofed and citechecked motions and briefs, electronically-filed documents, and organized case files. Pl. Mem. Ex. C at 4–11. The court has determined this work is a compensable litigation cost under I.R.C § 7430. In addition, BASR is entitled to an additional 3.2 paralegal hours spent to review and revise the May 9, 2016 Reply. Pl. Supp. Mem. Ex. A. BASR, however, may not recover 4.6 paralegal hours related to proceedings before the United States Tax Court and the IRS. Pl. Mem. Ex. C at 4, 6, 7, 8, 9. With respect to the $150 paralegal hourly rate, the United States Supreme Court has held that, with respect to the EAJA, paralegal fees are recoverable at “prevailing market rates,” up to the statutory maximum for attorney fees. See Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 587, 590 (2008). The circumstances in this case present no reason to depart from this rule with respect to I.R.C § 7430. See Larsen, 39 Fed. Cl. at 167 (“Although the EAJA and I.R.C. § 7430 differ slightly, the court has [determined] that case law on the EAJA may be instructive in interpreting I.R.C. § 7430, which was promulgated to remedy a gap in the EAJA's coverage of tax suits.”). For these reasons, the court has determined that the $150 hourly rate requested is “reasonable,” and BASR is awarded $24,375 in paralegal fees. 28 The number of the arguments raised by the Government was noticed by the court in oral argument. 10/26/16 TR at 26 (THE COURT: “I must say I was surprised at the number of arguments that the Government has raised . . . I’ve never seen a brief that was this long for a fee argument for the Government.”). 33  Other Litigation Costs Are “Reasonable.” BASR also requests $10,355.69 in other litigation costs. Pl. Mem. Ex. C. “Reasonable” litigation costs include “photocopying, courier, travel, transcript/deposition, court filing, fax, and Westlaw expenses.” Larsen, 39 Fed Cl. at 170. In this case, BASR’s requested litigation costs include: court reporter fees (Pl. Mem. Ex. C at 1, 2); copying fees (Pl. Mem. Ex. C at 1); travel expenses for depositions (Pl. Mem. Ex. C at 2); courier costs (Pl. Mem. Ex. C. at 2, 3); travel expenses for oral argument (Pl. Mem. Ex. C at 3); and filing fees for notice of a Cross-Appeal to the United States Court of Federal Claims (Pl. Mem. Ex. C at 2). The court has determined that these costs are reasonable, however, BASR not recover $120 for filing fees incurred at the United States Tax Court. Pl. Mem. Ex. C at 1. The court has determined that BASR may recover $10,235.69 in other litigation costs. 4. BASR Meets The Requirements of I.R.C § 7430(b). 29 A “prevailing party” that has “incurred” “reasonable” litigation costs nevertheless may be barred from recovering attorney and paralegal fees and other costs, under I.R.C § 7430(b). Specifically, judgment for litigation costs may not be awarded if a “prevailing party” did not exhaust IRS administrative remedies. See I.R.C. § 7430(b)(1). In addition, a “prevailing party” 29 I.R.C.§ 7430(b) provides: (b) Limitations.— (1) Requirement that administrative remedies be exhausted.--A judgment for reasonable litigation costs shall not be awarded under subsection (a) in any court proceeding unless the court determines that the prevailing party has exhausted the administrative remedies available to such party within the Internal Revenue Service. Any failure to agree to an extension of the time for the assessment of any tax shall not be taken into account for purposes of determining whether the prevailing party meets the requirements of the preceding sentence. (2) Only costs allocable to the United States.--An award under subsection (a) shall be made only for reasonable litigation and administrative costs which are allocable to the United States and not to any other party. (3) Costs denied where party prevailing protracts proceedings.--No award for reasonable litigation and administrative costs may be made under subsection (a) with respect to any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted such proceeding. (4) Period for applying to IRS for administrative costs.--An award may be made under subsection (a) by the Internal Revenue Service for reasonable administrative costs only if the prevailing party files an application with the Internal Revenue Service for such costs before the 91st day after the date on which the final decision of the Internal Revenue Service as to the determination of the tax, interest, or penalty is mailed to such party. I.R.C. § 7430(b). 34 can only recover litigation costs allocable to the United States. See I.R.C. § 7430(b)(2). Moreover, no litigation costs may be awarded for any portion of court proceeding that has been “unreasonably protracted” by a “prevailing party.” See I.R.C. § 7430(b)(3). Exhaustion requires an appeal to the IRS Office Of Appeals. See Treas. Reg. § 301.7430- 1(b) (providing that exhaustion of administrative remedies requires an appeal to the IRS Office Of Appeals). The exhaustion requirement, however, applies only to tax matters “for which an Appeals office conference is available.” Treas. Reg. § 301.7430-1(b). In this case, the IRS issued the FPAA because the IRS determined this case concerned a “Son of Boss” transaction. But, the IRS has determined that “Appeals Office consideration will not be available for Son of Boss Transactions.” 2004-21 I.R.B. 965. Therefore, BASR has exhausted all administrative remedies. In addition, BASR did not unreasonably protract the proceeding, and instead attempted to resolve the matter by making a “qualified offer” and then later filing a Motion For Summary Judgment. I.R.C. § 7430(b)(3). And, all of the costs in this case are “allocable” to the United States, because they were incurred after the Government did not accept BASR’s “qualified offer.” I.R.C. § 7430(b)(2). For these reasons, the court has determined that I.RC. § 7430(b) does not apply in this case. 5. The Court’s Award Of Litigation Costs. Finally, the Government asks the court to exercise its discretion to deny an award of litigation costs and attorney fees to BASR. Gov’t Resp. at 29. The court has determined not to exercise its discretion in this fashion. BASR requests: 497.1 partner hours at a $400 hourly rate, and 411.1 associate hours at a $250 hourly rate. Pl. Mem. Ex. D, Pl. Reply Ex. D., Pl. Supp. Mem. Ex. A. Of these amounts, BASR incurred 18.6 hours of partner time and 56.3 hours of associate time on IRS and United States Tax Court proceedings. Pl. Reply Ex. E; Pl. Me. Ex. D 26–27. As previously discussed, the total of $301,615 in attorney fees requested needs to be adjusted downwards by $21,515 to a total of $280,100. In addition, BASR requests $25,065 in paralegal fees and $10,355.69 in other litigation costs. Pl. Mem. Ex. C; Pl. Supp. Mem. Ex. A. Likewise, the paralegal fees and other litigation costs need to be adjusted downwards by $690 and $120, respectively, to a total of $24,375 for paralegal fees and $10,235.69 in litigation costs. In sum, the total amount of the award is $314,710.69. 35  III. CONCLUSION. For these reasons, BASR’s March 7, 2016 Motion For Litigations Costs is granted, in part. The Clerk of the United States Court of Federal Claims is directed to enter judgment in favor of BASR in this case, in the amount of $314,710.69. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Judge 36 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60198 Summary Calendar ALEXEI IVANOV, Petitioner, versus IMMIGRATION AND NATURALIZATION SERVICE, Respondent. - - - - - - - - - - Petition for review of an order of the Board of Immigration Appeals USDC No. A70-690-548 - - - - - - - - - - February 4, 1999 Before DAVIS, DUHE’, and PARKER, Circuit Judges. PER CURIAM:* Alexei Ivanov petitions for review of the Board of Immigration Appeals’ decision dismissing his appeal from the immigration judge’s decision to deny his application for asylum and for a withholding of deportation. We have reviewed the record and the briefs and determine that the Board’s decision is supported by substantial evidence. See Carbajal-Gonzalez v. INS, 78 F.3d 194 197 (5th Cir. 1996). The petition for review is DENIED. * 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. 

689 F.2d 189 *Hartv.Estelle 82-1150 UNITED STATES COURT OF APPEALS Fifth Circuit 9/27/82 1 N.D.Tex. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir. R. 18.

88 F.3d 318 65 USLW 2041 Robert GARCIA, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 92-8490. United States Court of Appeals,Fifth Circuit. July 3, 1996. Lonnie Ann Roach, Austin, TX, for plaintiff-appellant. Mollie S. Crosby, Austin, TX, Peter Rolf Maier, United States Department of Justice, Civil Division, Washington, DC, Ernest Carlos Garcia, Office of the United States Attorney, Austin, TX, Barbara L. Herwig, US Department of Justice, Civil Division, Washington, DC, for defendant-appellee. Appeal from the United States District Court for the Western District of Texas. Before WISDOM, BARKSDALE and EMILIO M. GARZA, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: 1 On remand from our en banc court, 62 F.3d 126 (1995), under the Westfall Act we must first decide whether, under Texas law, a federal employee acted within the scope of his employment, as so certified by the Attorney General; and second, if the employee was not within the scope, resulting in his being reinstated as defendant, we must decide whether the action remains in federal court. Whether the action so remains involves not only the pertinent provisions of the Westfall Act, but also jurisdictional concerns under Article III of the Constitution. Holding that the agent was not within the scope and that the action must remain in district court, we REVERSE and REMAND. I. 2 In early 1991, the Environmental Protection Agency dispatched one of its special agents from its Dallas office to Austin to assist for several days in a criminal investigation. While there, having had several drinks after 10:00 p.m., the agent was involved in an automobile accident with Robert Garcia. 3 Garcia brought this action in state court against the agent. But, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 28 U.S.C. §§ 2671-80 (the Westfall Act), the Attorney General certified that the agent was acting within the scope of his employment at the time of the accident, resulting in substitution of the United States as defendant and removal to federal court, § 2679(d)(2). (As discussed infra, removal was also under, inter alia, 28 U.S.C. § 1442.) 4 The United States moved to dismiss for failure to exhaust administrative remedies, as required by the Federal Tort Claims Act, 28 U.S.C. § 2675(a). Garcia countered by seeking remand to state court, asserting that, at the time of the accident, the agent was not acting within the scope of his employment and, accordingly, was not entitled to FTCA protection. The district court held that it could review the certification; that federal, not state, law controlled the scope question; and that, under either, the agent was acting within the scope. As a result, the action was dismissed for failure to exhaust. 5 On appeal, 22 F.3d 609 (1994), this panel held that the certification was not subject to judicial review, based upon a statement to that effect in Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990), and a subsequent unpublished opinion which, based on that statement, expressly so held. However, this panel recommended en banc review of this controlling precedent. 22 F.3d at 612. 6 Our en banc court agreed with the district court that certification is subject to judicial review, pursuant to the intervening holding to that effect in Gutierrez de Martinez v. Lamagno, --- U.S. ----, ----, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995). 62 F.3d at 127. But, contrary to the district court, our court held that the scope issue is reviewed under state law. Id. at 128. II. 7 We determine first whether, under Texas law, the EPA agent was acting within the scope of his employment. If he was not, he must be reinstated as defendant, and we must decide whether the action remains in federal court. A. 8 We review the scope issue de novo. Williams v. United States, 71 F.3d 502, 505 (5th Cir.1995). Under Texas law, an employee is within the scope if acting (1) within the general authority given by the employer, (2) in furtherance of the employer's business, and (3) for the accomplishment of the object for which employed. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.1971). There is a presumption that an employee involved in an accident while driving the employer's vehicle is within the scope. J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.Ct.App.--San Antonio, 1993, reh'g denied ). But, on the other hand, an employee involved in an accident while going to or returning from the place of employment is generally not within the scope. American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957). An exception applies when the employee "undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer's business with the express or implied approval of his employer". Id., 303 S.W.2d 370. 9 The Government contends that, when the accident occurred, the agent was on a special mission because he was on assignment in Austin. "If found to be on a special mission, the employee will be considered to be in the course and scope of his employment from the time that the employee commences the special mission until its termination, absent any deviation therefrom for personal reasons." Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex.Ct.App.--El Paso, 1993) (emphasis added). The deviation exception is consistent with the general rule that "when the servant turns aside, for however short a time, from the prosecution of the master's work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone". Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 241 (1952). 10 The factual scenario (provided by the agent's deposition) follows. The agent drove a government-owned vehicle and was provided with a gasoline credit card and per diem for food and lodging; but, the EPA does not reimburse for alcoholic beverages. His work involves irregular, unscheduled hours; during an investigation, his work day is not over until his "head hits the pillow". The agent could not "really say there was a time when [he] was through" with investigative activities on the day of the accident. On the other hand, there was "a point where you might have said or thought well, let's call it a day, go get something to eat". He did not know the time when he reached that point, "but it was late. It was late in the evening. 10:00." Because the agent was still pursuing investigative activities, he stopped at a restaurant in close proximity; once there, he considered eating, but did not. Next, he stopped at a second restaurant and again did not eat, but had several drinks. It is common for him to not eat if his stomach "doesn't feel right". (Although he did not remember how many drinks he had, his blood alcohol level was at least .2 later that night.) 11 The agent drove from the restaurant to a pharmacy. When he arrived, he became very ill in the parking lot. He then drove away; but, he did not testify as to where he was going. In fact, he did not "recall even leaving the parking lot"; instead, "the first thing I really remember is the EMS attendant telling me ... let me take you to the hospital". Concerning whether he remembered seeing Garcia's car prior to the collision, the agent only "remember[ed] stomping on the brakes and seeing lights". 12 Noting that "the concept of 'special mission' has escaped full definition in Texas", Chevron provides: "However, inherent in any applicable definition is the principle that an employee must be under the control of the employer or acting in furtherance of the employer's business to be on any such 'special mission' ". 847 S.W.2d at 356. Assuming arguendo that the agent's entire stay in Austin was a special mission, we conclude that this exception would not apply at the time of the accident, because the agent was then engaged in a personal deviation. Id. He apparently had completed work for the day (at the very least, temporarily) and stopped for dinner; he did not eat, but instead consumed alcohol; he then drove to a pharmacy; and his destination when he drove away from the pharmacy and had the collision is unknown. 13 Therefore, the agent was not within the scope of employment at the time of the accident. As a result, the United States cannot be substituted as defendant; the agent must be reinstated in that capacity.B. 14 Accordingly, we address whether the action must be remanded to state court. This turns, in part, on whether district court retention of the action is outside the jurisdictional boundaries set by Article III of the Constitution. If remand is not required, we are faced also with whether it is discretionary. 15 The issue at hand turns on § 2679(d)(1)-(3) of the Westfall Act, particularly subparts (2) (Attorney General certifies scope) and (3) (Attorney General refuses to so certify): 16 (1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident out of which the claim arose, any civil action ... commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the ... defendant. 17 (2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his ... employment at the time of the incident ..., any civil action ... commenced upon such claim in a State court shall be removed ... at any time before trial by the Attorney General to the district court of the United States.... Such action ... shall be deemed to be an action ... brought against the United States ..., and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of ... employment for purposes of removal. 18 (3) In the event that the Attorney General has refused to certify scope of ... employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his ... employment. Upon such certification by the court, such action ... shall be deemed to be an action ... brought against the United States ..., and the United States shall be substituted as the ... defendant.... In the event the petition is filed in a civil action ... pending in a State court, the action ... may be removed ... by the Attorney General to the district court.... If, in considering the petition, the district court determines that the employee was not acting within the scope of his ... employment, the action ... shall be remanded to the State court. 19 (Emphasis added.) 1. 20 Under subpart (d)(2), where, as here, an action is brought in state court against the federal employee and the Attorney General certifies scope, the action "shall be removed", "the United States shall be substituted", and the "certification ... shall conclusively establish scope ... for purposes of removal"; there is no whisper of remand. 28 U.S.C. § 2679(d)(2) (emphasis added). On the other hand, when the action is brought in state court and the Attorney General does not certify scope, but the court does so on request by the employee, subpart (d)(3) states that "the United States shall be substituted", the action "may [not shall ] be removed" by the Attorney General, and "[i]f ... the district court determines that the employee was not acting within the scope ..., the action ... shall be remanded to the state court". 28 U.S.C. § 2679(d)(3) (emphasis added). 21 In short, for an action filed in state court: (1) if the Attorney General certifies scope, subpart (d)(2) mandates removal to federal court, while, on the other hand, if the Attorney General does not so certify but the state court does, removal is discretionary; and (2) after removal, if the employee is not found within the scope, subpart (d)(3) expressly requires remand, but subpart (d)(2), which concerns an initial Attorney General certification, is silent on that point. These contrasts are most instructive. 22 Mitchell has dictum that subpart (d)(3) "does not give any indication that Congress left the court without the power to remand for lack of jurisdiction in cases in which the Attorney General has issued a certification" under subpart (d)(2). 896 F.2d at 131 n. 2 (emphasis in original). Besides this being dictum, the earlier discussed indication in Mitchell that an Attorney General's scope certification is not reviewable was rejected by Lamagno. Accordingly, we write on a clean slate. 23 Removal was not a factor in Lamagno; it was a diversity action filed in district court. At issue was reviewability vel non of the Attorney General's certification. As discussed, upon such certification in state court, subpart (d)(2) gives three clear commands: the action "shall be removed"; "the United States shall be substituted"; and the certification "shall conclusively establish scope of ... employment for purposes of removal". In holding certification reviewable (plurality opinion part III, --- U.S. at ----, 115 S.Ct. at 2236; that part was joined by Justice O'Connor, id. at ----, 115 S.Ct. at 2237), the Court was faced with the third clear command: certification "shall conclusively establish scope ... for purposes of removal". Therefore, as hereinafter discussed, it reasoned that this command was final, or nonreviewable, but that the "shall be substituted" command was not. It stated in part III: 24 Because the statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render. Under our reading, the Attorney General's certification that a federal employee was acting within the scope of his employment--a certification the executive official, in cases of the kind at issue, has a compelling interest to grant--does not conclusively establish as correct the substitution of the United States as defendant in place of the employee. 25 Id. at ----, 115 S.Ct. at 2236. 26 Upon concluding that the "shall be substituted" command was reviewable, the plurality was left with the resulting finality, or nonreviewability, accorded the "shall conclusively establish scope ... for purposes of removal" command. Along that line, plurality opinion part IV (which Justice O'Connor did not join) responded to the assertion that, upon rejection of the certification, remand to state court would be precluded, resulting in an action remaining in district court without jurisdiction, where there was no alternative basis for it, such as diversity. Id. For this hypothetical, part IV reasoned that there would be no "grave" Article III problem as a result of the action so remaining because "there was a nonfrivolous federal question, certified by the ... Attorney [General], when the case was removed to federal court". Id. (emphasis in original). 27 The modifier "grave" was used similarly in Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), which concerned the requirement that "[f]ederal officer removal under ... § 1442(a) must be predicated upon averment of a federal defense." Id. at 139, 109 S.Ct. at 970. In rejecting "[t]he Government's view, which would eliminate the federal defense requirement", id. at 136, 109 S.Ct. at 968, the Mesa Court stated: "Adopting ... [that] view would eliminate the substantive Art. III foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems." Id. at 137, 109 S.Ct. at 969 (emphasis added). The obvious parallels between similar concerns for removal and remand under §§ 1442 and 1447 on the one hand and under the Westfall Act on the other are discussed infra. 28 As noted, Justice O'Connor joined all but part IV of the Lamagno plurality opinion. --- U.S. at ---- - ----, 115 S.Ct. at 2237-38. One reason given for not joining that part was because it "all but conclusively resolves a difficult question of federal jurisdiction"--the one presented here--that was not at issue in Lamagno. Id. at ----, 115 S.Ct. at 2237. The dissent by Justice Souter, joined by the Chief Justice and Justices Scalia and Thomas, concluded that the Attorney General's certification is not reviewable, thus avoiding the Article III issue addressed in part IV. Id. at ---- - ----, 115 S.Ct. at 2238-43. 29 Critical, it seems, to Lamagno is the "sound general rule that Congress is deemed to avoid redundant drafting". Id. at ----, 115 S.Ct. at 2241 (Souter, J., dissenting) (citing Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189-90, 100 L.Ed.2d 836 (1988), and Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196-97, 105 S.Ct. 658, 662-63, 83 L.Ed.2d 582 (1985)); see --- U.S. at ----, 115 S.Ct. at 2238 (O'Connor, J., concurring). Under this general rule "a statutory interpretation that would render an express provision redundant was probably unintended and should be rejected". Id. at ----, 115 S.Ct. at 2241 (Souter, J., dissenting). 30 For an action removed under subpart (d)(3) (state court, not Attorney General, certified scope), upon a federal court rejecting the certification, the last sentence in that subpart--that the action "shall be remanded"--would be rendered redundant if remand was already required. Restated, under this general rule of construction, the "shall be remanded" provision in subpart (d)(3) is necessary in order for remand to be required. 31 Therefore, because this same provision is not found in subpart (d)(2), remand is not required for the scenario covered by that subpart--Attorney General certification rejected after removal. This conclusion flows from, among other things, a rule of construction parallel to the redundancy rule. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion". Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846-47, 112 L.Ed.2d 919 (1991) (internal quotation marks omitted) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)). Congress, by requiring remand in subpart (d)(3), obviously knew how to require it for (d)(2); it did not do so. That silence is deafening for purposes of our analysis. 32 Moreover, we conclude that, in addition to remand not being required for subpart (d)(2), it is not even permitted; the action must remain in district court. This reading is in harmony with removal being required under subpart (d)(2), when scope is certified by the Attorney General, but optional under subpart (d)(3), when it is not. It comports with Congress' clear desire that, if the Attorney General certifies scope, the action is to be conducted in federal, not state, court, as reflected in the subpart (d)(2) "shall conclusively establish scope ... for purposes of removal" command. 33 This reading is consistent also with part IV of Lamagno, as well as with footnote 10 in part III, joined by Justice O'Connor. That note explained that "Congress likely omitted [a] provision ... [in subpart (d)(2) ] to authorize remands, because it had decided to foreclose needless shuttling of a case from one court to another--a decision evident also in the Westfall Act language making certification 'conclusiv[e] ... for purposes of removal' ". --- U.S. at ---- - ---- n. 10, 115 S.Ct. at 2235-36 n. 10 (emphasis added). By retaining the action in federal court, Congress precluded the dilemma of it being sent back and forth between federal and state court if, later during the case, the scope decision is changed based on additional evidence. Of course, the same situation could develop after a required subpart (d)(3) remand, where the Attorney General did not certify scope. But, to state the obvious, Congress elected to expressly require remand in that subpart; it did not do so in (d)(2). Under the (d)(2) scenario, scope was certified by the Attorney General. The (d)(2) "conclusively establish" command reflects, again, the considerable weight given by the Congress to that certification. 34 Finally, the Lamagno dissent seems also to be of the view that a federal court must retain the action if, as Lamagno held, the Attorney General's certification is reviewable, and if it is rejected, because the dissent is concerned that an Article III jurisdiction problem arises in that situation. (As discussed supra, this is the point addressed in part IV of the Lamagno plurality opinion.) Needless to say, this problem would arise only if the action is not remanded to the state court. Furthermore, the dissent notes that 35 [t]he Court recognizes that there is nothing equivocal about the Act's provision that once a state tort action has been removed to a federal court after a certification by the Attorney General, it may never be remanded to the state system: "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal," 28 U.S.C. § 2679(d)(2). 36 Id. at ----, 115 S.Ct. at 2239 (Souter, J., dissenting) (emphasis added). 2. 37 Even though eight, if not all nine, members of the Lamagno Court appear to agree that the Westfall Act requires a district court to retain the action upon rejecting the Attorney General's certification, Lamagno leaves undecided whether that requirement exceeds Article III jurisdiction. As noted, the plurality finds that this Article III problem is not "a grave one", id. at ----, 115 S.Ct. at 2236 (plurality); but, the concurrence states that the Court "should not resolve that question until it is necessary for us to do so", id. at ----, 115 S.Ct. at 2237 (O'Connor, J., concurring), and the dissent finds that "there is a serious problem ... in requiring a federal district court, after rejecting the Attorney General's certification, to retain jurisdiction over a claim that does not implicate federal law in any way", id. at ----, 115 S.Ct. at 2239 (Souter, J., dissenting). 38 We agree with the Lamagno plurality that, because of the Attorney General's certification, there is an initial colorable federal question. Id. at ---- - ----, 115 S.Ct. at 2236-37. Accordingly, we agree likewise that there is no "grave" Article III problem in a district court retaining jurisdiction after rejecting the Attorney General's certification: 39 Whether the employee was acting within the scope of his federal employment is a significant federal question--and the Westfall Act was designed to assure that this question could be aired in a federal forum.... Because a case under the Westfall Act thus "raises [a] questio[n] of substantive federal law at the very outset," it "clearly 'arises under' federal law, as that term is used in Art. III." 40 Id. at ----, 115 S.Ct. at 2236-37 (plurality) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 1971, 76 L.Ed.2d 81 (1983)). See Verlinden, 461 U.S. at 491 & 497, 103 S.Ct. at 1970 & 1973 (Foreign Sovereign Immunities Act grant to "federal courts [of] subject-matter jurisdiction over ... civil actions by foreign plaintiffs against foreign sovereigns where the rule of decision may be provided by state law" is within bounds of Article III arising under clause). 41 We agree also with the Lamagno plurality that "considerations of judicial economy, convenience and fairness to litigants make it reasonable and proper for the federal forum to proceed beyond the federal question to final judgment once it has invested time and resources on the initial scope-of-employment contest". Id. at ----, 115 S.Ct. at 2237 (plurality) (internal quotation marks and brackets omitted) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)); see 28 U.S.C. § 1367 (supplemental jurisdiction). 42 Accordingly, we hold that, for subpart (d)(2), upon rejection of the Attorney General's certification, the district court retains jurisdiction and may not remand the action to state court. While the Lamagno dissent expressed concern that this provision of the Westfall Act "must at the very least approach the limit" of federal jurisdiction, we conclude that it does not "cross the line". --- U.S. ----, 115 S.Ct. at 2239 (Souter, J., dissenting). 3. 43 As was the case before Lamagno, the circuits are split on the issue at hand. Obviously, Lamagno 's recent construction of the Westfall Act casts new light on most of these decisions. Post-Lamagno, only two circuits have ruled on this issue; they also reach opposite results. (Heuton v. Anderson, 75 F.3d 357, 361 (8th Cir.1996) noted that the issue was left open by Lamagno, but did not reach it.) 44 In requiring remand to state court, the D.C. Circuit, in a post-Lamagno split decision in Haddon v. United States, 68 F.3d 1420, 1426-27 (D.C.Cir.1995), infers the power under subpart (d)(2) to remand from the express power to do so in subpart (d)(3), and reasons that 45 [a]llowing federal courts to remand cases to state courts under both [subparts] ... would ... neither erase the differences between these two [subparts] nor render Attorney General certifications meaningless. To the contrary, the essential benefit of the certification process--guaranteeing that scope of employment determinations are made in a federal forum--would remain. 46 Id. at 1426. The Haddon majority found support in the fact that its holding avoided the constitutional question of whether a district court was retaining an action without Article III jurisdiction, the point troubling the Lamagno concurrence and dissent. Id. at 1427. Haddon adopts the pre-Lamagno reasoning of Nasuti v. Scannell, 906 F.2d 802 (1st Cir.1990), which requires remand. 47 In the Eleventh Circuit, pursuant to pre-Lamagno decisions, remand is discretionary. Nadler v. Mann, 951 F.2d 301, 306 n. 9 (11th Cir.1992), stated that, for an action removed, as here, under § 2679(d)(2) and § 1442, where the employee was not within the scope, "judicial economy would not be compromised if the district court remanded the case to state court", and held that remand is discretionary. See Green v. Hill, 954 F.2d 694, 698 (11th Cir.1992), withdrawn & superseded in part on reh'g, 968 F.2d 1098 (11th Cir.1992). (Earlier, the Eleventh Circuit required remand, but quickly vacated that requirement. See S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1544, modified, 924 F.2d 1555 (11th Cir.1991), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991).) 48 Under a pre-Lamagno holding, the Third Circuit does not permit remand. Aliota v. Graham, 984 F.2d 1350, 1351 (3d Cir.), cert. denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993), concluded, based on the "plain language" of the subpart (d)(2) "conclusively establish" command, that "the district court has no authority to remand the case on the ground that the ... certification was erroneous". Id. at 1356. 49 In several of the pre-Lamagno cases, also blended into the decisional mix were initial remand orders by the district court and the general prohibition under § 1447(d) against appellate review of such orders. See, e.g., Aliota, 984 F.2d at 1354-57; Nasuti, 906 F.2d at 808-11; Mitchell, 896 F.2d at 130-31. This factor, considered with the remand provision of § 1447(c), was present in the Fourth Circuit's pre-Lamagno decision in Jamison v. Wiley, 14 F.3d 222, 237-39 & n. 18 (4th Cir.1994), which held, inter alia, that, for an action properly removed under § 1442(a)(1) as well as under the Westfall Act, a federal court lacks authority under § 1447(c) to remand to state court. Citing the above referenced Mesa v. California, 489 U.S. 121, 139, 109 S.Ct. 959, 970, 103 L.Ed.2d 99 (1989) (§ 1442(a) removal "must be predicated upon averment of a federal defense"), Jamison held that, because the removal petition raised a "colorable federal defense" (immunity under the Westfall Act), the action was "transform[ed from an] otherwise nonremovable state-law action into one that falls within the federal court's 'arising under' jurisdiction." 14 F.3d at 239. 50 Post-Lamagno, in Mangold v. Analytic Services, Inc., 77 F.3d 1442, 1450 (4th Cir.1996), in which the district court had ordered remand to state court, the Fourth Circuit held that, because "the effect recognized in Jamison surely must be the same" for actions removed only under the Westfall Act, remand is not permitted. Id. at 1453. 4. 51 Again, these circuits may soon reach results different from those prior to Lamagno. In any event, the "arising under" basis for jurisdiction in Jamison parallels the later analysis in part IV of Lamagno, which, as noted, did not involve removal and was, instead, a diversity action filed in district court. But, as also discussed, the part IV analysis assumed that the Westfall Act was the only jurisdictional basis. 52 As also noted, in addition to the Westfall Act, the action at hand, as in Jamison, was removed under, inter alia, § 1442. The Government now relies upon Lamagno in asserting that the Attorney General's certification raises a federal question, but also now relies upon Jamison (and previously, Mesa as well) in asserting that, if "a federal defense supports removal jurisdiction, the rejection of the defense does not divest a federal court's jurisdiction over the removed action". 53 In district court (1991-92), the Government did not present this jurisdictional contention which found support subsequently in Jamison (1994). Be that as it may, because of the plain language and structure of § 2679(d)(1)-(3), especially as read in the light of Lamagno, we need not seek jurisdictional support under the § 1442 scenario. As discussed, the Westfall Act, without more, requires that, upon the Attorney General's certification being rejected in a removed action, the action nevertheless remains in district court. This results in the same ultimate concerns about crossing the line of Article III jurisdiction that are present under the § 1442(a) scenario. But, the Westfall Act scenario provides a far more sound basis for jurisdiction than does that for § 1442. The Westfall Act basis is grounded in what we read as a clear and constitutional directive by the Congress that removed actions with an Attorney General certification are to remain in federal court. III. 54 Because the agent was not acting within the scope of his employment at the time of the accident, he must be reinstated as defendant; and, the district court must retain this action. Accordingly, we REVERSE and REMAND to the district court for further proceedings. 55 REVERSED and REMANDED. 56 EMILIO M. GARZA, Circuit Judge, specially concurring: 57 Because I agree that the EPA agent was not acting within the scope of his employment at the time of the accident, I concur in Part II.A of the majority's opinion. 58 I concur, however, only in the judgment of Part II.B. I agree that remand is not permitted under subpart (d)(2), and that the action must therefore remain in district court. 28 U.S.C. § 2679(d)(2). I do so, however, not for the tortuous reasoning set out in Part II.B, but because I believe that Congress, by the plain wording of § 2679 (entitled "Exclusiveness of remedy"), mandated that actions against an employee of the federal government, when certified by the attorney general, be brought in the United States courts, with the United States as the proper defendant. Conversely, Congress never intended to create jurisdiction in a federal court for a state action against an employee of the United States. See § 2679(d)(3). We are thus squarely presented in this case with the "difficult question of federal jurisdiction" that was not decided by the Supreme Court in Lamagno. Gutierrez de Martinez v. Lamagno, --- U.S. ----, ----, 115 S.Ct. 2227, 2237, 132 L.Ed.2d 375 (1995) (O'Connor, J., concurring in part). 59 Unlike Lamagno, where the parties' diverse citizenship provided an independent basis for maintaining the case in federal court, there is no remaining basis for federal jurisdiction in this case once we have rejected the scope certification. The majority is apparently comfortable to conclude, with the plurality in Lamagno, that because there is an "initial colorable federal question" at the time of removal and substitution, there is no "grave" Article III problem in having the district court retain the case. Maj. op. at ---- - ----; see also Lamagno, --- U.S. at ---- - ----, 115 S.Ct. at 2236-37 (plurality opinion). I am not as comfortable. As the dissent in Lamagno put it, this line of reasoning is "tantamount to saying the authority to determine whether a Court has jurisdiction over the cause of action supplies the very jurisdiction that is subject to challenge. It simply obliterates the distinction between the authority to determine jurisdiction and the jurisdiction that is the subject of the challenge...." Lamagno, --- U.S. at ----, 115 S.Ct. at 2240 (Souter, J., dissenting). A challenge to the scope certification is necessarily a challenge to the court's jurisdiction. See id. 60 Despite the majority's arguments to the contrary, I remain convinced that the result we have reached today "at the very least must approach the limit, if it does not cross the line" in defining the breadth of federal court jurisdiction authorized by the "arising under" Clause of Article III of the Constitution.1 Id. at ----, 115 S.Ct. at 2239 (Souter, J., dissenting). I refuse to believe that Congress intended this troubling result; I must instead conclude that Congress, in making the attorney general's certification conclusive for purposes of removal, intended that the scope certification, which provides the basis for federal jurisdiction, would remain unreviewable--thus also conferring exclusive jurisdiction under § 1346(b). These § 2679 issues--certification and jurisdiction--are inherently symbiotic. 61 Accordingly, I write to express my concern regarding the Article III issue raised by this case, and to respectfully urge the Supreme Court to revisit its determination of Congressional intent allowing review of the attorney general's scope certification under the Westfall Act in light of the troubling result the Lamagno opinion has produced in this case. 62 * Despite Lamagno 's holding, I continue to believe that Congress did not intend for the attorney general's certification of scope of employment to be reviewable by the courts. I begin with the premise that there is "no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. Sosa, 997 F.2d 1130, 1132 (5th Cir.1993) (quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)). It is also "incumbent upon us to read the statute to eliminate [serious constitutional doubts] so long as such a reading is not plainly contrary to the intent of Congress." United States v. X-Citement Video, Inc., 513 U.S. ----, ----, 115 S.Ct. 464, 472, 130 L.Ed.2d 372 (1994); Mesa v. California, 489 U.S. 121, 137, 109 S.Ct. 959, 969, 103 L.Ed.2d 99 (1989). 63 The plain language of each of the five subsections of § 2679(d) confirms the unreviewability of the scope certification. Section 2679(d)(1) states that after certification by the attorney general: (1) the United States shall be substituted for the defendant employee in any litigation arising out of the alleged incident and commenced in federal court, and (2) any such litigation shall be treated as a suit originally brought against the United States.2 Section 2679(d)(2) provides that after certification by the attorney general: (1) any litigation arising out of the alleged incident and commenced in state court shall be removed to the federal district court before the United States is substituted as defendant, and (2) the scope of employment issue shall be conclusively resolved for the purposes of removal.3 Section 2679(d)(3) provides that if the attorney general denies certification: (1) the federal district court may review that determination and certify the employee if it chooses, (2) any litigation commenced in state court shall be removed to the federal district court if a petition for court certification is filed, and (3) any litigation so removed will be remanded to state court if the petition is denied.4 Section 2679(d)(4) states that any suit brought against the United States pursuant to § 2679(d) shall be subject to 28 U.S.C. § 1346(b),5 and § 2679(d)(5) concerns the timeliness of claims brought under § 2679(d).6 Nowhere in the statute is judicial review of the attorney general's certification mentioned. 64 * The language of §§ 2679(d)(1) and (d)(4)7 plainly states that after certification by the attorney general, courts are required to substitute the United States as defendant and proceed with the case as if it had originally been filed against the United States. Section 2679(d)(1) provides that: "Upon certification by the Attorney General ... any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States...."8 Similarly, § 2679(d)(4) provides that: "Upon certification, any action or proceeding ... shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title...."9 I read the word "shall" as mandatory language, placing the substitution of the United States as defendant outside the district court's discretion. B 65 The remaining provisions of § 2679(d), if read in accordance with the rules of statutory construction, similarly reveal that Congress did not intend the attorney general's certification to be reviewable by the courts. 66 First, the language in § 2679(d)(2) that makes the attorney general's certification nonreviewable for purposes of removal is the logical extension of the language in § 2679(d)(1) and § 2679(d)(4) that precludes federal court review of the attorney general's certification. Significantly, the two subsections concern different courts and procedural stages, and the different roles certification plays in each. While § 2679(d)(1) applies exclusively to suits commenced "in a United States district court,"10 § 2679(d)(2) applies only to suits commenced "in a State court."11 Consequently, § 2679(d)(1) governs litigation "commenced" in a federal court,12 while § 2679(d)(2) governs the procedure by which suits reach a federal court--namely, removal.13 3] Finally, under § 2679(d)(1), certification causes the substitution of the United States as defendant; while under § 2679(d)(2), in addition to that substitution, certification also causes the state court to lose jurisdiction over the suit. Because neither § 2679(d)(1) nor (d)(4) addresses removal, Congress found it necessary in § 2679(d)(2) to extend expressly and explicitly the conclusiveness of the attorney general's certification to removal. Thus, § 2679(d)(2) states that certification by the attorney general "shall conclusively establish scope of office or employment for purposes of removal."14 67 Some pre-Lamagno opinions made the argument that the plain language in § 2679(d)(2) renders the plain language of § 2679(d)(1) ambiguous.15 The reasoning of this argument is flawed because the two subsections can and should be read in agreement. See Gallenstein v. United States, 975 F.2d 286, 290 (6th Cir.1992). When construing separate provisions of a statute, one general and one more particular, the more specific provision should only be given exclusive effect if the two provisions cannot be reconciled. Id. The language in § 2679(d)(1) is limited to "any civil action or proceeding commenced upon such claim in a United States district court;"16 accordingly, § 2679(d)(2), the subsection governing those procedural determinations made before a claim reaches the district court, expressly and logically extends the nonreviewability of the attorney general's certification to the removal process.17 Sections 2679(d)(1) and (d)(2), instead of being ambiguous, are rather consistent and complementary, given the different courts in which suits governed by § 2679(d) may be filed. 68 Second, § 2679(d)(3)'s provision for district court determination of scope demonstrates that if Congress had intended for the district court to consider scope after the attorney general's certification, it knew how to do so.18 Section 2679(d)(3) provides for limited judicial review of the attorney general's determination of scope by allowing the defendant employee to "petition the court to find and certify that the employee was acting within the scope of his office or employment" if "the Attorney General has refused." 28 U.S.C. § 2679(d)(3). Accordingly, it provides that if "the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court." Id. § 2679(d)(3). The fact that Congress included instructions for the district court to remand should it determine an employee was not within the scope of employment in § 2679(d)(3), but not in § 2679(d)(1), further evidences Congress's intent that the attorney general's certification be conclusive. See United States v. Lamere, 980 F.2d 506, 513 (8th Cir.1992) (holding that where language is included in one section of a statute but not another, it is presumed that exclusion was purposeful).19 69 Section 2679(d) provides a clear, cohesive, consistent, and comprehensive account of the reviewability of the attorney general's determinations of scope; and whether the plain language of § 2679(d)(1) is taken alone or in conjunction with that of §§ 2679(d)(2), (d)(3), and (d)(4), the statute does not in my opinion permit judicial review of the attorney general's decision to grant certification.II 70 Although essentially unaddressed by the Court in Lamagno, I believe that the statute's legislative history fully supports the determination that the attorney general's certification is unreviewable. I make this assertion even though prior to Lamagno, a number of circuits reached the opposite conclusion based on their reading of the statute's legislative history. However, these circuit opinions based their conclusions primarily on the views of a single legislator, as expressed in his questions to witnesses testifying at a House subcommittee hearing on a bill that was never enacted.20 71 * The subcommittee hearings that these courts relied as a foundation for their interpretation of § 2679(d) do not authoritatively support the proposition that the attorney general's certification is reviewable by the federal district court for two reasons.21 The testimony from the hearings on H.R. 4358,22 the bill that preceded H.R. 4612,23 is both ambiguous and contradictory. Representative Barney Frank, the sponsor of H.R. 4358, seemed to believe that under that bill, plaintiffs would have some method of "contesting certification" that was not available to defendant employees: 72 It seems to me the certification is a weapon against the employee, not against the plaintiff, because the plaintiff would still have the right to contest the certification if they thought the Attorney General were certifying without justification. 73 Hearings, supra note 20, at 128 (statement of Rep. Frank) (emphasis added). Although Representative Frank's comment has been frequently cited as support for judicial review,24 ] it demonstrates more than anything else that he was not yet clear on the procedural complexities of the bill's provisions. The bill under consideration at the time of the hearings contained no provisions for court review of the attorney general's determinations of scope,25 not even those that appear in the current § 2679(d)(3),26 and thus could not provide for disparate treatment of plaintiffs' and defendants' challenges to those determinations. 74 Robert Willmore, the Department of Justice representative who has been cited as "understanding that the certification issue would be subject to judicial review," Lehtinen, 913 F.2d at 1541, gave the following testimony: 75 I think the certification is the easiest way to get the scope issue resolved without having potentially years of litigation over whether an act was within scope. 76 Hearings, supra note 20, at 128 (testimony of Robert Willmore) (emphasis added). At least in this statement, Willmore appears to be under the impression that the attorney general's determinations of scope would not be subject to review.27 77 Lois Williams, a union representative who has also been cited as "understanding that the certification issue would be subject to review," Lehtinen, 913 F.2d at 1541, testified: 78 But let me just say that there is something about the Attorney General's having certified. It is formal. It is a determination. The question of deference to the Attorney General comes in. 79 Hearings, supra note 20, at 197 (testimony of Lois Williams) (emphasis added). Williams believed that "this proposal purports to make [the attorney general's] certification conclusive,"28 as is evidenced by her statement: 80 The proposed amendments are said to be similar to a certification procedure employed in the Federal Driver's Act [the old § 2679], an amendment to the FTCA. There is, however, a critical difference. The Attorney General's certification under the Federal Drivers Act, is, at least in some degree, reviewable by a court. The proposed legislation, however, purports to remove any review. It states: "This certification of the Attorney General shall conclusively establish scope of office or employment for the purposes of removal."29 81 It is clear that the hearings on H.R. 4358 do not support the contention that its participants understood the attorney general's certification to be subject to district court review. See Patterson v. Shumate, 504 U.S. 753, 760-62 & n. 4, 112 S.Ct. 2242, 2248 & n. 4, 119 L.Ed.2d 519 (1992) (stating that where the language of a statute is clear, that language, rather than "isolated excerpts from the legislative history," should be followed). B 82 Moreover, these scattered statements from congressional subcommittee hearings are not the most authoritative non-statutory evidence of legislative intent. In an analysis of legislative history, a court should begin with the most recent statement of authority and work backwards through the legislative record. In re Timbers of Inwood Forest Assocs., Ltd., 793 F.2d 1380, 1396 (5th Cir.1986) (ranking text of the enacted bill as most authoritative, followed by post-hearing amendments and committee reports), modified on reh'g on other grounds, 808 F.2d 363 (5th Cir.1987), aff'd, United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). A proper examination of the legislative history, beginning with H.R. 4612's amendments to § 2679(d) in 1988, demonstrates that Congress intended the attorney general's certification to be conclusive. 83 The 1988 amendments deleted from § 2679(d) language that expressly provided for district court review of the attorney general's certification.30 Prior to its amendment in 1988, § 2679(d) was not divided into subsections and dealt only with certification by the attorney general.31 The pre-1988 § 2679(d) (the "old § 2679(d)") consisted of just two sentences.32 The first provided that after certification, the attorney general could remove to a federal district court any litigation on the incident being conducted before a state court, and that the United States should then be substituted as defendant.33 In its second sentence, the old § 2679(d) provided for federal district court review of the attorney general's certification and for remand to the state court if the certification was found baseless.34 84 In 1988, legislation in the House of Representatives proposed amending the old § 2679(d).35 Under H.R. 4612, § 2679(d) was to be divided into four subsections.36 The first subsection provided that after certification by the attorney general, the United States shall replace the employee as defendant in all litigation on the incident commenced in a federal court.37 The second subsection provided that after certification by the attorney general, any litigation being conducted on the incident shall be removed to the federal district court.38 The third subsection provided that the attorney general's refusal to certify was reviewable by a federal district court.39 Finally, the fourth subsection provided that upon certification, any action subject to the first three paragraphs would proceed in the same manner as any action against the United States filed pursuant to 28 U.S.C. § 1346(b).40 85 Thus, H.R. 4612 proposed several important amendments to the old § 2679(d). First, it proposed making certification conclusive for litigation commenced in, as opposed to removed to, federal court. Second, H.R. 4612 proposed deleting language that explicitly provided for federal district court review of the attorney general's certification.41 1] The first half of the third subsection provided that a defendant employee could petition for court certification if the attorney general refused to certify.42 Upon the filing of such a petition in state court, however, the subsection provided that the attorney general could remove the state action to the federal district court.43 If the federal court denied the employee's petition for court certification, the subsection provided that the action would be remanded to the state court.44 Finally, subsection four made clear that upon certification, the federal district would have exclusive subject matter jurisdiction under § 1346(b). 86 We can presume that Congress purposefully deleted the old § 2679(d)'s reference to district court review of the attorney general's certification from the statute. Congress must be presumed to have knowledge of its previous legislation when making new laws. Hellon & Assocs., Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir.1992). Thus, Congress must have been familiar with each of the old § 2679(d)'s provisions, including its provision for district court review of that certification.45 While the other provisions were retained by the 1988 amendments almost verbatim in § 2679(d)(2), the language expressly empowering the federal district court to review the attorney general's certification was deleted entirely.46 "When legislators delete language, we may assume that they intended to eliminate the effect of the previous wording." Stewart v. Ragland, 934 F.2d 1033, 1037 n. 6 (9th Cir.1991). C 87 The subcommittee report that accompanied H.R. 4612, like the 1988 post-hearing amendments, is strong evidence of Congress' intent that the attorney general's certification not be subject to district court review. See In re Timbers, 793 F.2d at 1396 (ranking text of the enacted bill as most authoritative, followed by post-hearing amendments and committee reports). The report's summary of § 2679(d) emphasizes § 2679(d)(1)'s mandate that the United States be substituted as defendant after the attorney general's certification and discusses district court determination of scope only as an alternative route to certification, not as a means of decertification: 88 Section 6 [of the Westfall Act] would amend section 2679(d) of title 28 to require the United States to be substituted for a Federal employee as the sole defendant in a civil lawsuit whenever the Attorney General determines that the act or omission alleged to have caused the claimant's injuries was within the scope of the employee's office or employment. Once made, this determination also would require that any case filed in State court be removed to a Federal district court. If the Attorney General refuses to certify that an employee was acting within the scope of his office or employment, the employee is authorized to petition the Court for a ruling on this determination.47 89 The committee report also reveals that legislators enacted H.R. 4612, at least in part, precisely because they wanted to minimize the amount of fact finding required in scope of employment cases. This is evident from the report's discussion of why the Supreme Court's decision in Westfall v. Erwin48 necessitated the proposed legislation:[B]efore Westfall, most actions brought against Federal employees in their personal capacity were resolved through a summary judgment or dismissal early in the case. This early resolution of the case was possible because the employee could be shown to have been acting within the scope of employment, and therefore absolute immunity precluded recovery. Under Westfall, summary judgments and dismissals will no longer be readily available because the additional determination as to whether the employee exercised governmental "discretion" will always be a fact-based determination. Thus the transaction costs (i.e. litigation costs) and length of time needed to resolve the issue of discretion in these cases will be substantially increased, as will the uncertainty for the individual employee who is sued. 90 Committee Report, supra note 47, at 2. 91 These dual concerns, avoiding litigation costs and protecting employees from the possibility of being held personally liable for torts that they rationally believed they committed within the scope of their employment, are expressed throughout the committee report.49 Taken together, they account for the legislature's decision to make court determination of scope available only to the defendant employee who has been refused certification. While allowing employees to challenge such refusals in court might result in additional litigation costs, employees would enjoy greater protection against personal liability. To allow judicial review of certifications that are granted would frustrate the legislature's attempt both to protect employees and to decrease litigation time and expense. 92 Thus, the committee report on H.R. 4612, the bill that amended § 2679(d), also strongly suggests that Congress intended the attorney general's certification to be unreviewable. III 93 The Court in Lamagno rejected what it termed "a plausible construction" of the statute in favor of unreviewability because of policy considerations favoring judicial reviewability. "Because the statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind that federal courts are set up to render." Lamagno, --- U.S. at ----, 115 S.Ct. at 2236. While this traditional understanding may apply to executive determinations generally, I do not believe that it necessarily applies to the attorney general's certification determination under the Westfall Act. The attorney general's determination will, in almost every instance, constitute a waiver of sovereign immunity, a determination which was delegated by Congress to the executive branch. There is nothing necessarily disturbing about Congress's intention to make this type of determination unreviewable by the judiciary. A waiver of sovereign immunity by Congress is reviewed merely to determine that it is "unequivocal," and we will construe the waiver "strictly in favor of the sovereign." United States Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255 (1992). The sole function of such a review is to make certain that Congress in fact intended to waive sovereign immunity, not that it was proper or well advised. Accordingly, the normal presumption in favor of reviewability should not necessarily apply to the attorney general, who, in exercising his delegated authority, decides to waive sovereign immunity. 94 The Court's opinion in Lamagno, however, identifies an instance where the attorney general's determination may be made in circumstances at least arguably constituting a conflict of interest.50 In other words, there may be instances where the scope certification under the Westfall Act will effectively not constitute a waiver of sovereign immunity because it results in the case being dismissed.51 This anomalous situation should not, however, cause us to reject the controlling effect of unambiguous language in the statute. "Where the language of a statute is clear and unambiguous, courts should not undertake to add or to detract from its provisions. Any such revision should be effected by legislative, not juridical powers." Birdwell v. Skeen, 983 F.2d 1332, 1338 (5th Cir.1993). 95 As discussed above, I believe that the statute's unambiguous language, as well as its relevant legislative history, strongly suggest that Congress intended the attorney general's scope certification to be unreviewable. This conclusion also dictates my understanding as to why Congress could safely mandate exclusive jurisdiction in the federal courts under § 1346(b) upon certification. 28 U.S.C. § 2679(d)(4). The question of certification in this case is a mere prelude to the issue of jurisdiction, assuming that certification is not reviewable. It is clear that § 2679(d)(4) takes its cue from the previous three sections. Each presupposes that the United States is the proper defendant under the FTCA (not state law) and that jurisdiction would be exclusive under § 1346(d). Conversely, § 2679(d)(3) addresses the situation before us where there is no federal jurisdiction because the employee was found not to have been within the scope of his employment, requiring remand to the state court. In other words, the arguments supporting non-reviewability of the attorney general's scope certification necessarily supports exclusive jurisdiction under § 1346(b). 96 I believe that today's result, which indeed raises "grave" Article III concerns, supports this reading of the statute in favor of unreviewability. Once the scope certification is rejected, there can be no federal jurisdiction based on the substitution of the United States as party defendant. In this case there is also no jurisdiction based on diversity of citizenship. What then constitutes the basis for federal jurisdiction in this case? As stated above, I am not as comfortable as the majority to conclude that federal jurisdiction may properly rest on the fact that there is an "initial colorable federal question" at the time of removal. The Supreme Court has not yet fully addressed the implications of adopting a reading in favor of reviewability of the scope certification in light of these Article III concerns. I therefore respectfully urge the Court to revisit the issue of reviewability in light of the statute's clear language, relevant legislative history, and today's troubling result. 1 "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...." U.S. Const., Art. III, § 2, cl. 1 2 Section 2679(d)(1) provides in full that: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(1) (emphasis added). 3 Section 2679(d)(2) provides in full that: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such a claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. 28 U.S.C. § 2679(d)(2) (emphasis added). 4 Section 2679(d)(3) provides in full that: In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court. 28 U.S.C. § 2679(d)(3) (emphasis added). 5 Section 2679(d)(4) provides in full that: Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions. 28 U.S.C. § 2679(d)(4). 6 Section 2679(d)(5) provides in full that: Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if--(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. 28 U.S.C. § 2679(d)(5). 7 See supra notes 2 & 5 8 28 U.S.C. § 2679(d)(1) (emphasis added) 9 Id. § 2679(d)(4) (emphasis added) 10 28 U.S.C. § 2679(d)(1). See supra note 2 11 28 U.S.C. § 2679(d)(2). See supra note 3 12 28 U.S.C. § 2679(d)(1). See supra note 2 13 28 U.S.C. § 2679(d)(2) (requiring suits commenced in state courts "be removed without bond at any time before trial by the Attorney General to the district court of the United States"). See supra note 3 14 28 U.S.C. § 2679(d)(2). See supra note 3 15 For example, the Second Circuit suggested that the mandatory removal language in § 2679(d)(2) demonstrated that: "Had Congress intended to render the certification conclusive for purposes other than removal, it knew how to do so." McHugh v. University of Vermont, 966 F.2d 67, 72 (2d Cir.1992) 16 28 U.S.C. § 2679(d)(1) (emphasis added). See supra note 2 17 See supra note 3 18 See supra note 4 19 Congress would not explicitly provide in § 2679(d)(3) for district court review of the attorney general's failure to certify if it believed that federal district court review of the attorney general's determination of scope would be assumed, if not explicitly stated 20 See Legislation to Amend the Federal Tort Claims Act: Hearing on H.R. 4358, H.R. 3872, and H.R. 3083 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 100th Cong., 2d Sess. (1988) [hereinafter Hearings ] 21 The Second, Third, Sixth, Seventh, Ninth, and Eleventh Circuits relied upon the same hearings in determining whether or not the attorney general's certification is reviewable. See McHugh v. University of Vt., 966 F.2d 67 (2d Cir.1992); Melo v. Hafer, 912 F.2d 628 (3d Cir.1990), aff'd, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Arbour v. Jenkins, 903 F.2d 416 (6th Cir.1990); Hamrick v. Franklin, 931 F.2d 1209 (7th Cir.), cert. denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740 (9th Cir.1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538 (11th Cir.1990), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991) 22 The section of H.R. 4358 that contained proposed revisions to § 2679(d) read: Section 2679(d) of title 28, United States Code, is amended to read as follows: (d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding heretofore or hereafter commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. (2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending. Such action shall be deemed an action brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope for purposes of removal. (3) Upon certification, any actions subject to paragraph (1) or (2) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions. (4) Whenever an action in which the United States is substituted as the party defendant under this subsection is dismissed for failure to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. H.R. 4358, 100th Cong., 2d Sess. § 6 (1988). 23 H.R. 4612 was the bill that ultimately amended § 2679(d). See infra note 35 24 See, e.g., Melo, 912 F.2d at 642; Arbour, 903 F.2d at 421; Hamrick, 931 F.2d at 1209; Meridian Int'l Logistics, Inc., 939 F.2d at 744; Lehtinen, 913 F.2d at 1541 25 See H.R. 4358, supra note 22 26 See supra note 4 27 To the extent that Willmore's testimony indicates that he believed that the certification could be contested, Willmore's belief was also premised on the erroneous assumption, held by Representative Frank, that plaintiffs could bring a special challenge to the scope determination. See Hearings, supra note 20, at 128 (testimony of Robert Willmore) 28 Hearings, supra note 20, at 177 (statement of Lois Williams) (emphasis added) 29 Id. at 184 (statement of Lois Williams) (emphasis added) 30 Compare 28 U.S.C. § 2679(d) (1982) (amended 1988), infra note 31, with 28 U.S.C. § 2679(d) (1988), supra notes 2-6 31 Before the 1988 amendments, the entire text of § 2679(d) read as follows: Upon certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section [the subsection that makes a suit against the United States the exclusive remedy for a tort committed by a governmental employee within the scope of his employment] is not available against the United States, the case shall be remanded to the State court. 28 U.S.C. § 2679(d) (1982) (amended 1988) (emphasis added). 32 See id 33 See id 34 See id 35 After the hearings on H.R. 4358, the bill was amended and retitled H.R. 4612. H.R.Rep. No. 700, 100th Cong., 2d Sess. 9 (1988), reprinted in 1988 U.S.C.C.A.N. 5945. The amended bill retained all of the substantive changes to § 2679(d) proposed in H.R. 4358 but included a new and significantly different subsection that would become the current § 2679(d)(3). Congress passed the amended bill, H.R. 4612, and 28 U.S.C. § 2679(d) was revised accordingly 36 H.R. 4612, 100th Cong., 2d Sess. (1988) 37 Id. at § 6. See also 28 U.S.C. § 2679(d)(1), supra note 2 38 H.R. 4612 at § 6; 28 U.S.C. § 2679(d)(2), supra note 3 39 H.R. 4612 at § 6; 28 U.S.C. § 2679(d)(3), supra note 4 40 See 28 U.S.C. § 2679(d)(4), supra note 5 41 Compare 28 U.S.C. § 2679(d) (1982), supra note 31, with 28 U.S.C. § 2679(d) (1988), supra notes 2-6 42 See 28 U.S.C. § 2679(d)(3), supra note 4 43 See id 44 "If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court." See id 45 See § 2679(d) (1982) (amended 1988), supra note 31 46 Compare 28 U.S.C. § 2679(d) (1982) (amended 1988), supra note 31, with 28 U.S.C. § 2679(d) (1988), supra notes 2-6 47 H.R.Rep. No. 100-700, 100th Cong., 2d Sess. 1, 9 (1988), reprinted in 1988 U.S.C.C.A.N. pp. 5945, 5952 [hereinafter Committee Report ] (emphasis added) 48 Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988) 49 See, e.g., Committee Report, supra note 47, at 2 ("H.R. 4612 would provide immunity for Federal employees from personal liability for common law torts committed within the scope of their employment."). Later in the report, the following statement appears: Currently, in most cases, the federal government defends federal workers who are sued for common law torts committed within the scope of their employment. With such suits against federal workers foreclosed by the bill, there could be an increase in suits under the FTCA against the U.S. government. Nevertheless, we expect that total costs to the federal government would decline, because FTCA defenses usually cost less than personal liability defenses, and FTCA cases are almost always easier to settle than personal liability cases.... In addition, the immunity provided by H.R. 4612 could have a positive effect on worker performance and productivity to the extent that workers would not be worried about potential lawsuits. Id. at 11. 50 See Lamagno, --- U.S. at ----, 115 S.Ct. at 2237 (stating that the attorney general's "conflict of interest is apparent" where the certification would result in dismissal) (plurality opinion); id. at ----, 115 S.Ct. at 2238 (agreeing with the principle that prohibits anyone "to be a judge in his own cause") (internal quotation marks omitted) (O'Connor, J., concurring in part); but see id. at ---- - ---- & n. 5, 115 S.Ct. at 2242-43 & n. 5 (questioning whether this situation presents a genuine conflict of interest) 51 See id. at ----, 115 S.Ct. at 2230; 28 U.S.C. § 2680(k) (exception to FTCA's waiver of the United States' sovereign immunity for "[a]ny claim arising in a foreign country")

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN, Eonorable Cieo. Y. Sheppard Comptroller of Fublio Amounts Austin, Te.xas marm.Sboppsrli: t for 6a opinion lature, sutbor- antin payment to a Special Mstrl8t aoornell prior to the ; for tucuaplo, acfar , Iares The rwar Distrlet snee has msde and filed proper 717 passed at the late regular session of the 48th LegislatuGe, insoPar as pertiaent to your inquiry, Is as followst *tMotlon 1. Thst any person holding a State ot Mstrlot oStioe in the &ate of Texas, whether as a meruber of the exeout.kTe lef#elatite QC ju&ioial de- psrtments, when oalled i WO.the sdU* s)BFtiue OS dther the Btste orlatlonalWvernamts,isheNby mnorablc Cieo. ii. ,Shepparii - pwe 2 tUlthOX'iS& t0 file tit& the ~OEQtrOller of EQbliO AOcOunts Of the State, a statement or certirioate ia writing, to tbe effeot tbat be waives tbe pay- meat of his salary or pay Or the emolument5 of bf5 said officedurini; the pe~i0d ofbie5dlitary se+ vice ond authmldnk; the paymmt of euab salary, pay or 5Inoluments of his office to any other per- son, who, under t&e provi5ioxm oi any law of t.bia State io ;rppolnted or eltwted to temporlrrily ml1 such oitil offioe dur%ng the abe8noe of euob ~?f$- oer,euchwaivr or assigmasmt toternrinatelmm- dlately upon the release or discbarge of 5aid of- fleea from wch SdliterJ serece. *see. 2. 8ush waimr or assignmsnt sballbs suiiiOi6nt authority ror the mmptrollsr or public AMouat5 of the state of sexa to isuae state w5r- raata an&to pay susb jsrscm so holding susb off%- osr'opssitisndlWnghloaImmselnmlliikzy ser- rioe out OS appropriatl0ns me by the Legislature ror such office. 'Sec. 3. The filing wlth the Oomptroller o? RlbLto acoountu of State or *exe8 the of errah waiver orameignmemtpr0vldedrerin tbiolicf shall'mmrb~eoastrued~auyuourt 0r a.0 State to be a remtgaatioa fmm hi5 off300 by the person eaterlag the ntulty 6mece of the state or Yational l3wsrmnsnts or that his office is ~a- ant by reason tberbof. Wee. 4. The Up0rtance of this leglslatioa and the fact that many 21&e aul Dletriat otiiaars or the state of Texas are enterhg tbe mllity semi00 or tme state azul or the united St&se, whose OW'%oes are tlllsd by sUb8titute5, e~mlss- ionero and special Judges amI Others, and tbat apedal appropriation to pay oacb petsons 90 fill- ing the offices of those in tbe ndlitarj servloe fe insufficient anri insdeguate and, further, it is impossible to aceuratel~ detsmlne or antloipate tbe amunte or 5uc.b apprepriati0n5, creates an eaer- gamy andan%mperatirepubfio neee5sit~ tbattbs Constitutional Bule reqmkrlng bills to be read 011 three several days in @+a& Bonse be onopended, and the said Rule15 hsrew raspended,and tbatth%s dot take effect from and a?Mr its passage, and at is so taMBted.*  Obviously, this Act oontemplates tbat the war- rant to a Special District Judge, whether for salary or expensea, is to be paid frm the appropriation for Ms- triot Judges. Your inquiry is liudted to the matter of war- rauts in payrzeut 0r sontbly expense accOunt8. Tbe expenses allowed te a District Judge are pro- vided for in Article 0820 , of th0 Revisal Civil Statutes, as follows8 sAl1DistrietJudgee5 5 swbes engaged in tha disohsrge Of their effkcial duties in any county of this State otba than the oormty of their residsnce, shall be allarod their actual aud noeessary expeuses while actually engaged in the discharge oS socb tit&es, not to exoeed @.oo per day for hotel bills, aail Pot to exoeed 4 a mile rhea traveling w rallroad aud no I to exoaed 20# a mile wheu traveling hy private oouveyauoe, in going to sad returaing Prom tbe plaoe where such duties are disctlmrg~, traw3ling by the neasest praoti- cai route. 2uoh 5fflo5rs shall also roaeive the actual and necessary postage, tolerpaph arm telephone expenscls incurred by them in tbe actual disoharge or their duties.* DOS, uuder tbe provisions of gcotioa 1 of 8. B. Do. 717, above quoted, tho waiver by the absent Mstrict Judge, aud therefore the authority to pay the Special Ms- trict Judge, is limited t.O~.rthopaymnt of his salary or pay or the esoluuzents of' hio said office. St does not contemplate expenses whatsoever by the absent District Judge, Por hoer course till have inourred none. In our Opinion No. O-454$ addressed to pw, under date of hpril 20, lW2, no add3ed as iolloast ****. Cc find no law nor prsotslea or itcu of uppropriation bill providiug rsr pay- mmt by t&e State of traveling expouses to IfonoraBle (ieo. Si. Sheppard - page 4 Special Dfstriot Jut&%. In the abaenee of a law so providing, you are net wfhoEieed to issue warrants for the payment of traveling ex- penses of Special D&strict Judgee.n drticle 6#&21 OP the Revised Civil statutes oavers the subjed of salaries of apwial judges, but it contains no provieioa for expenses of any kind. Itern 14 of the current bienalal appropriation for the Jidioiary se&ion - Comptroller*s Department -- is as follomSt 'Spealal Dietriot Judges' salaries and regular District Judgeat expeusee ohm hold- ing court out ot their dIntrIot," $VSOO.~ for eimh fisoal yeor. Thle approprirtien, whatever my be the amming thereof with rospeet to expezmes, can not aheage the sltua- tioo, SOr it %s thoroughlysettled that aa appoprlatlen may not ~oeast.ltutiormlZy rithcl~n~money f'rarn the treamry In tho abseuee of a prf?vlously exietiq law wthoridng tho game. (Coast., Art. III, sets. 44) Incidentally, we crall yeur attention to the faot that the oorrespom.Ung approprirtfon ior~the foFthotmdng bienxdum in Item 6 is preeloelf the same as in the current appropriation. Tram what we have s&d it iollora that haLther k. ii. Bo. VI?, nor any other statute whlah we have been able to find, authoriz6m the ieouance of a varraut w you to pp9 expenses of a 8peaial Dfetriot Judge. 

858 N.E.2d 109 (2006) Terry KINSLOW, Individually and as Personal Representative of the Estate of Marshall Lee Kinslow, Deceased, Appellant-Plaintiff, v. GEICO INSURANCE COMPANY and Lucille Taylor, Appellees-Defendants. No. 49A04-0604-CV-197. Court of Appeals of Indiana. December 6, 2006. *110 Nathaniel Lee, Robert E. Feagley, II, Lee Cossell Kuehn & Love, LLP, Indianapolis, IN, Attorneys for Appellant. Mark D. Gerth, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Appellee. OPINION BARNES, Judge. Case Summary Terry Kinslow, individually and as personal representative of her husband's estate, appeals the trial court's entry of summary judgment in favor of GEICO Insurance Company ("GEICO"). We affirm. Issue The sole restated issue is whether the trial court properly concluded that GEICO is not required to provide uninsured motorist benefits to Kinslow. Facts On July 19, 2003, Kinslow and her husband, Marshall Kinslow, were on a motorcycle traveling westbound on 34th Street in Indianapolis. Lucille Taylor was traveling eastbound on 34th Street and attempted to make a left turn onto Rural Street. When she did so, she struck the Kinslows' motorcycle. Another vehicle struck the rear of the Kinslows' motorcycle, but it left the scene of the accident. The accident caused fatal injuries to Marshall and serious bodily injuries to Kinslow. At the time of the accident, the Kinslows were covered by two policies issued by GEICO, a general automobile policy and a specific motorcycle policy. Both policies had UM bodily injury limits of $100,000 per person and $300,000 per occurrence. Kinslow sued Taylor on her own behalf and on behalf of her husband's estate. She also sued GEICO, seeking recovery of uninsured motorist ("UM") benefits, which GEICO had refused to pay, related to the unknown vehicle that fled the scene of the accident. Taylor and Taylor's insurer settled with Kinslow for a total of $200,000, or $100,000 for Kinslow's own injuries and $100,000 for the fatal injuries suffered by Marshall. GEICO thereafter moved for summary judgment on the basis that Taylor's $200,000 payment completely set off any and all UM benefits it might have been required to pay Kinslow. The general automobile policy issued by GEICO read in part: LIMITS OF LIABILITY * * * * * 1. The limit of Bodily Injury Liability for Uninsured Motorists Coverage stated in the declarations for "each person" is the limit of our liability for all damages, including those for care or loss of services, due to bodily injury sustained by one person as the result of one accident. * * * * * The amount payable under this Coverage will be reduced by all amounts: (a) paid by or for all persons or organizations liable for the injury. . . . *111 App. p. 45. The motorcycle policy read in part: Limit of Liability * * * * * * 1. The limit of bodily injury shown on the Declarations as applying to "each person" is the maximum we will pay for all damages sustained by one person as a result of one accident covered by this Part. * * * * * Any amounts otherwise payable for damages under this coverage shall be reduced by: 1. All sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under the Liability coverage or Motorcycle Medical Payments coverage of this policy; and 2. All sums paid or payable because of the bodily injury under any workers' or workmen's compensation, disability benefits or any similar law. App. p. 32.[1] The trial court granted GEICO's summary judgment motion. Kinslow now appeals. Analysis Summary judgment is appropriate only if the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Bowman ex rel. Bowman v. McNary, 853 N.E.2d 984, 988 (Ind.Ct.App.2006). We must construe all facts and reasonable inferences drawn from those facts in favor of the nonmoving party. Bowman, 853 N.E.2d at 988. Our review of a summary judgment motion is limited to those materials designated to the trial court, and we must carefully review decisions on such motions to ensure that parties are not improperly denied their day in court. Id. Assuming that there was an uninsured motorist involved in the accident here, the question before us is strictly one of law involving interpretation of an insurance policy. The proper interpretation of an insurance policy, even if it is ambiguous, is generally a question of law appropriate for summary judgment. Progressive Ins. Co., Inc. v. Bullock, 841 N.E.2d 238, 240 (Ind. Ct.App.2006), trans. denied. Setoff provisions in UM and underinsured ("UIM") motorist policies have generated frequent litigation, often focusing on whether payment to an insured from a third party should be deducted from the total amount of damages sustained by the insured or from the limits of liability of the UM/UIM coverage. Kinslow argues for the former proposition in this case; that is, assuming (for example) that her and Marshall's total damages totaled $400,000,[2] Taylor's payment of $200,000 would be deducted from that amount, leaving GEICO liable for the remaining $200,000 in damages sustained. GEICO argues for the latter proposition, with which the trial court agreed; that is, Taylor's payment of $200,000 should be deducted from GEICO's policy limits for UM/UIM coverage that would apply to this case, or $200,000, leaving GEICO with zero liability, regardless of the total damages. In 1992, our supreme court decided two cases involving UM/UIM setoff provisions, *112 Tate v. Secura Insurance, 587 N.E.2d 665 (Ind.1992) and American Economy Insurance Company v. Motorists Mutual Insurance Company, 605 N.E.2d 162 (Ind.1992). In Tate, the UM/UIM portion of the policy had a provision stating, "Amounts payable will be reduced by . . . [a]mounts paid because of the bodily injury by, or on behalf of, persons or organizations who may be legally responsible." Tate, 587 N.E.2d at 668. The Tate court construed this language as meaning, "It is [the] amount of damages, not the coverage limit, which is the `amounts payable' to be reduced by the amount paid to Tate by or on behalf of the tortfeasor." Id. In American, the court considered a UM/UIM provision that stated, under a section denominated "LIMIT OF LIABILITY," as follows: "Any amounts otherwise payable for damages under this coverage shall be reduced by all sums . . . [p]aid because of the bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible." American, 605 N.E.2d at 164. This language was found to be distinguishable from the language considered in Tate. Id. Thus, the court held that the amount already recovered from the insured by a third party would be deducted from the insured's UIM policy limits, not the total damages sustained, unlike in Tate. Id. The court gave two reasons for this holding. First, the setoff clause was found within the "LIMIT OF LIABILITY" section of the policy. Id. Second, the court emphasized the following additional language in the policy: "The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay. . . ." Id. Ten years later, our supreme court granted transfer in Beam v. Wausau Insurance Company, 765 N.E.2d 524 (Ind. 2002), to address two different lines of interpretation involving UM/UIM setoff clauses that this court had developed after Tate and American. See Beam, 765 N.E.2d at 529. The policy at issue in Beam stated in part: D. LIMIT OF INSURANCE . . . 2. The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible, including all sums paid under the Coverage Form's LIABILITY COVERAGE. 3. Any amount payable for damages under this coverage shall be reduced by all sums paid or payable under any workers' compensation, disability benefits or similar law. Id. at 527. The court concluded that the policy was unambiguous and provided that any reduction for worker's compensation benefits the insured had received would "be taken from the amount of damages Beam incurred rather than from the policy limit." Id. at 530. It noted that the policy expressly provided for a reduction from the insured's "damages," not policy limits. Id. The court also stated that the phrase, "`under this coverage,' is a general phrase contained in insurance agreements that refers to the scope of the initial insuring agreement, not the dollar amount of the policy limit." Id. at 530-31. The "scope of coverage" was compensatory damages the insured was entitled to recover from the owner of an underinsured vehicle. The court concluded: any reduction for worker's compensation and disability benefits should come from [the amount of damages to which the insured was legally entitled], irrespective of whether that amount is above or below the policy limits. If that amount is above the limit, this helps the insured, and if it is below the limit, it helps the *113 insurer. We think this is not only a neutral rule, but also consistent with the language of the policy and its purpose to provide indemnity for covered losses subject to policy limits. Id. at 531. After reaching this conclusion, the court also noted that the insurance policy, immediately before the setoff provision regarding worker's compensation benefits, had explicitly used language unmistakably providing that any reduction had to be taken from the policy limits when it said, "The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible. . . ." Id. (emphasis added by Beam). Not surprisingly, Kinslow argues that this case is governed by Beam, while GEICO argues that American is controlling. Although GEICO argues that Beam "reaffirmed the validity of the American Economy opinion," it is not clear to us that that was the case. Appellee's Br. p. 9. The Beam court did not expressly state whether it was approving or disapproving of American. The language the Beam court considered is remarkably similar to the language the American court considered, yet the opinions reached opposite results. The only material difference between the policies is that the Beam setoff provision addressed worker's compensation benefits, while the American setoff provision referred more generally to any payments from those legally responsible. That difference seemed to play no part in the Beam court's analysis, however. Ultimately, we conclude that it is unnecessary to resolve whether Beam impliedly overruled American. We do not perceive much, if any, difference between the language of GEICO's policy and the policy language addressed by our supreme court in Beam. We also believe we are between a rock and a hard place here. As GEICO observes, there is a statute apparently directly on point that would compel a result opposite from Beam, Indiana Code Section 27-7-5-5(c). This statutory provision provides: The maximum amount payable for bodily injury under uninsured or underinsured motorist coverage is the lesser of: (1) the difference between: (A) the amount paid in damages to the insured by or for any person or organization who may be liable for the insured's bodily injury; and (B) the per person limit of uninsured or underinsured motorist coverage provided in the insured's policy; or (2) the difference between: (A) the total amount of damages incurred by the insured; and (B) the amount paid by or for any person or organization liable for the insured's bodily injury. Ind.Code § 27-7-5-5(c). Although this statutory provision has been in existence since 1987, few of the several cases decided since then regarding setoffs and uninsured or underinsured motorist coverage have mentioned the provision, including Beam.[3] The Tate court acknowledged its existence, but noted that the policy in that case had been issued before the provision was enacted. Tate, 587 N.E.2d at 668. The court, therefore, declined to consider the provision in deciding the setoff question before it because *114 when the policy was issued, "Indiana did not then require Secura to provide underinsured motorists coverage, nor did it impose statutory limits upon the nature and operation of such coverage." Id. (emphasis added). Such limits existed when GEICO issued these policies to the Kinslows. Kinslow fails to cite or analyze this statute in her brief. As a general matter, the statutes governing UM/UIM insurance are considered a part of every automobile liability policy the same as if written therein. United Nat'l Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind.1999) (addressing I.C. § 27-7-5-2). Additionally, UM/UIM legislation is to be liberally construed in a light most favorable to the insured. Id. at 459-60. It is also true, however, that the first step in interpreting any Indiana statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question. St. Vincent Hosp. and Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind. 2002). If a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id. at 704. "Clear and unambiguous statutory meaning leaves no room for judicial construction." Id. The language of Indiana Code Section 27-7-5-5(c) does not provide a set formula for calculating setoffs in all cases, but it does establish maximum and minimum parameters for the amount of recovery a plaintiff is entitled to as a result of a UM or UIM claim. Gardner v. State Farm Mut. Ins. Co., 589 N.E.2d 278, 281 (Ind.Ct. App.1992), trans. denied. We also conclude that the language of the statute is clear and unambiguous and is not open to interpretation. It says that the maximum UM or UIM bodily injury benefits to which an insured is entitled as the result of an accident is the lesser of the difference between the amount already recovered by the insured less the per person limit of UM/UIM coverage in the insured's policy, or the difference between the total amount of damages incurred by the insured and the amount already recovered by the insured. Applying this formula here, assuming total damages to the Kinslows of $400,000, payment by Taylor of $200,000, and UM policy limits under either GEICO policy of $200,000, the first calculation results in zero ($200,000—$200,000), while the second results in $200,000 ($400,000—$200,000). Obviously, the lesser of these amounts is zero. To allow Kinslow to recover anything under either GEICO policy would contravene clear and unambiguous statutory language. We cannot construe either policy in such a way. See, e.g., Harbour v. Arelco, Inc., 678 N.E.2d 381, 385 (Ind.1997) (noting that contracts that contravene a statute generally are "void"). To the extent our holding today might be seen to conflict with Beam, we note the following. First, we reiterate that Beam did not address the applicability of Indiana Code Section 27-7-5-5(c). Second, the factual scenario in Beam was different from that before us today. There, the total damages suffered by the insured— $701,371—were less than the UIM insurance limit at issue, $1 million. Under that scenario, it was consistent with the UM/ UIM maximum coverage statute to set off the worker's compensation payments from the total damages, rather than the UIM limit. Here, by contrast, Kinslow argues she and her husband sustained damages in excess of the applicable UM limit of $200,000. In such a case, Section 27-7-5-5(c) mandates that Taylor's payment of $200,000 be deducted from the UM limit, not the total damages. Although the UM/ UIM statutes require coverage for such claims in Indiana, it does appear that the *115 legislature also enacted certain mandatory limits for such coverage. Kinslow also contends that GEICO is not entitled to set off payments made by Taylor or her insurer because those were not payments made "on behalf of" the uninsured motorist, i.e. the vehicle that fled the scene. She relies primarily upon the Indiana Comparative Fault Act and accompanying case law, under which a defendant is not entitled to a credit against its liability when a nonparty defendant settles with the plaintiff. See R.L. McCoy, Inc. v. Jack, 772 N.E.2d 987, 991 (Ind. 2002). Kinslow, however, fails to explain why the Comparative Fault Act, which concerns apportionment of liability among all parties, should apply in the context of a case that is governed by a completely different statutory scheme and concerns limits on an insured's recovery from an insurer. Here, both GEICO policies state that the amount of UM coverage will be reduced by "all sums" paid to the insured by or on behalf of other parties. Indiana Code Section 27-7-5-5(c)(1) also requires consideration of "the amount paid in damages to the insured by or for any person organization who may be liable for the insured's bodily injury. . . ." (Emphasis added). This court has held that similar policy language, as well as the UM/UIM statutory setoff provision, required setoff from UM/UIM coverage of all amounts received by the insured from any tortfeasor, including non-motorist tortfeasors. Grain Dealers Mut. Ins. Co. v. Wuethrich, 716 N.E.2d 596, 599 (Ind.Ct.App.1999), trans. denied. There seems to be no dispute here that Taylor was at least partially responsible for the accident. Contrary to Kinslow's assertion, Taylor's or her insurer's $200,000 payment on her behalf must be set off against GEICO's $200,000 UM limits in this case because she was a person "who may be liable" for the Kinslows' injuries. We also note that the UM/UIM setoff statute seemingly would be meaningless if an insurer could only set off amounts paid to the insured by an uninsured motorist. Conclusion Indiana Code Section 27-7-5-5(c) applies in this case and clearly requires that the $200,000 paid by Taylor for the Kinslows' injuries must be set off against the available $200,000 UM limits of both GEICO policies at issue here. We affirm the trial court's grant of summary judgment in GEICO's favor. Affirmed. SULLIVAN, J., and ROBB, J., concur. NOTES [1] It appears Kinslow was seeking UM benefits under one or the other, but not both, of these policies, or total benefits of $200,000—$100,000 for her injuries and $100,000 for those of her husband. [2] We do not know the full monetary extent of the Kinslows' damages. [3] Beam noted eight cases from this court discussing whether a setoff clause in a particular policy's UM/UIM clause required payments to the insured from other sources to be deducted from the policy limits or from the total amount of damages. See Beam, 765 N.E.2d at 529 n. 3 & 4. Like Beam, none of these cases mentioned Indiana Code Section 27-7-5-5(c) when deciding the question.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3393 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Mario B. Valdez-Aldaba, * * [UNPUBLISHED] Appellant. * ___________ Submitted: June 5, 2009 Filed: July 23, 2009 ___________ Before BYE, COLLOTON, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Mario Valdez-Aldaba appeals the district court’s1 dismissal of his post- judgment motion seeking to modify his sentence to grant him credit for time served on a state sentence. The district court dismissed the motion as untimely under Federal Rule of Criminal Procedure 35(a). Valdez-Aldaba’s counsel has moved to withdraw. Because Valdez-Aldaba’s post-judgment motion was filed more than eighteen months after his sentencing, we conclude that the district court correctly denied it as 1 The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. untimely, whether it is characterized as a motion to correct a sentence under Rule 35(a), or as a motion for relief from an illegal sentence under section 2255. See 28 U.S.C. § 2255(f)(1) (indicating motion for relief from sentence under § 2255 must be filed within 1 year from date on which judgment of conviction became final); Fed. R. Crim. P. 35(a) (providing for correction of sentence “[w]ithin 7 days after sentencing”). Accordingly, we affirm and grant counsel’s motion to withdraw. ______________________________ -2- 2 

535 U.S. 1033 PIERCE COUNTY, WASHINGTONv.GUILLEN, LEGAL GUARDIAN OF GUILLEN ET AL., MINORS, ET AL. No. 01-1229. Supreme Court of the United States. April 29, 2002. 1 Sup. Ct. Wash. Motions of International Municipal Lawyers Association and Association of American Railroads for leave to file briefs as amici curiae granted. Certiorari granted. Reported below: 144 Wash. 2d 696, 31 P. 3d 628.

Fanning v. Fanning IN THE TENTH COURT OF APPEALS No. 10-91-238-CV      NITA KISSEL FANNING,                                                                                               Appellant      v.      WHITNEY ELY FANNING,                                                                                               Appellee From the 19th District Court McLennan County, Texas Trial Court # 88-4480-1                                                                                                      O P I N I O N                                                                                                            Nita Fanning appeals from a court order reducing her former husband's child-support payments from $3000 per month to $2250 per month. After a hearing on Whitney Fanning's motion to modify child support, the court found that his net resources were less than at the time of divorce. Because Nita Fanning was improperly denied discovery of documents essential to prove the net resources available to Whitney Fanning, we reverse the judgment and remand the cause for a new trial.       The Decree of Divorce was rendered by the trial court on June 30, 1990. Mr. Fanning filed his motion to modify on September 28, 1990. On May 9, 1991, the court set the hearing on the motion to modify for May 20. Also on May 9, Ms. Fanning served Mr. Fanning with a notice to take his oral deposition on May 17. The notice was accompanied by a subpoena duces tecum, requesting the production of all financial documents supporting his motion to modify at least twenty-four hours before the deposition. The request for production designated particular documents including bank depository records, personal and business expense records, financial statements, and tax returns reflecting Mr. Fanning's income since November 2, 1989. At Mr. Fanning's request, the deposition was rescheduled for May 24, 1991, and the hearing was rescheduled for May 30. Finally, the deposition was again rescheduled by Mr. Fanning for May 29, one day before the hearing.       On May 30, Ms. Fanning presented to the court a motion for sanctions related to Mr. Fanning's failure to comply with the requested discovery. At the beginning of the hearing Ms. Fanning's attorney informed the court that, although Mr. Fanning made no objections or claims of privilege to the discovery request, he produced only ten pieces of paper at the time specified in the amended notice of oral deposition. Mr. Fanning appeared at the deposition with incomplete records of bank deposits, but he refused to produce other records to substantiate his claimed reduction in income from his law practice. According to Ms. Fanning's attorney, during the deposition Mr. Fanning claimed for the first time that the requested financial documents were privileged.       Nevertheless, the court proceeded to hear evidence on Mr. Fanning's motion to modify without considering Ms. Fanning's motion for sanctions. Mr. Fanning testified that there had been a material and substantial change in his net resources since the entry of the divorce decree. The court overruled Ms. Fanning's objections to the conclusory nature of his testimony. At the time of the divorce, the amount of net resources available to Mr. Fanning was $19,000 per month. He offered, as evidence of a change in resources, copies of income-tax returns representing his income for 1989 and 1990. Ms. Fanning objected to the admission of both exhibits because they were a summary of financial records not in evidence and because Mr. Fanning had failed to provide such records during discovery.       Mr. Fanning testified that the 1989 return reflected a gross income of $251,000 and a net income of less than $180,000. Ms. Fanning objected to the introduction of the 1990 tax return, which was unsigned, as hearsay. She also objected to the introduction of his accountant's letter, attached to the return, as hearsay. Mr. Fanning testified that the 1990 return reflected gross receipts of $321,000 from his law profession, a gross income of $135,065, and taxes of $40,000. The court overruled Ms. Fanning's objections and admitted the two exhibits.       Finally, Mr. Fanning argued that, because of recent changes in the workers' compensation laws, his law practice was going to suffer. Although the court took judicial notice of the statutory changes, and Mr. Fanning testified that over half of his income was attributable to workers' compensation cases, he offered no evidence of how his practice had in fact been affected by the changes in workers' compensation practice generally.       Section 14.052(a) of the Family Code provides that the statutory guidelines for the support of a child "are intended to guide the courts in determining equitable amounts of child support in any suit affecting the parent-child relationship, including . . . actions involving . . . modification . . . ." According to section 14.053(a), "An order of child support shall be based on the `net resources' of the obligor and obligee . . . ." "Net resources" includes self-employment income: Income from self-employment, whether positive or negative, includes benefits allocated to an individual from a business . . . less ordinary and necessary expenses required to produce that income, but may exclude amounts allowable under federal income tax law as depreciation, tax credits, or any other business expenses shown by the evidence to be inappropriate to the determination of income for the purpose of calculating child support. (Emphasis added).       For the court to properly consider what business expenses are appropriately deducted from the gross income of Whitney Fanning's law practice, Nita Fanning must be able to conduct discovery of the financial documents supporting his calculations of net income. Without the requested documents, Ms. Fanning is unable to adequately challenge Mr. Fanning's testimony concerning his financial resources. Ms. Fanning properly requested discovery of Mr. Fanning's financial records, filed a motion for sanctions upon his refusal to produce documents that he asserted were privileged, sought a hearing on her motion before the hearing on Mr. Fanning's motion to modify, and objected to Mr. Fanning's evidence of net income because it was derived from the financial records withheld from her. Under these circumstances, we find that the denial of discovery deprived Ms. Fanning of access to material information needed to effectively cross-examine Mr. Fanning and to effectively challenge the accuracy of his testimony. The denial of discovery was material not only because it denied Ms. Fanning information needed to adequately present her case to the court, but also because it deprived the trial court of sufficient evidence on which to base a determination of Mr. Fanning's net resources, including his income from the law practice. We recognize the need to protect the confidentiality of the records of Mr. Fanning's law practice. However, this need not be an absolute bar to discovery because the court may order an in camera inspection of the documents to protect confidential client records. We find that the denial of discovery was such a denial of Nita Fanning's rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. As a result, we sustain Nita Fanning's second point of error, and, without reaching her other points, we reverse the judgment and remand the cause for a new trial.                                                                                    BOBBY L. CUMMINGS                                                                                  Justice Before Chief Justice Thomas,           Justice Cummings, and           Justice Vance Reversed and remanded Opinion delivered and filed November 18, 1992 Publish

128 B.R. 16 (1991) In re Joseph A. FERRETTI, Debtor. Bankruptcy No. 89-10846. United States Bankruptcy Court, D. New Hampshire. June 4, 1991. *17 *18 William Gannon, Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester, N.H., for debtor. AMENDED MEMORANDUM OPINION JAMES E. YACOS, Bankruptcy Judge. This case came on for a disclosure statement hearing on April 30, 1991 pursuant to 11 U.S.C. § 1125(a). I disapproved the proposed statement at that time. Because this disclosure statement is typical in many respects of the kind of disclosure statements this Court has been receiving, and finding objectionable, I have taken leave to discuss in an opinion much of what is required in disclosure statements in this Court. OVERVIEW The purpose of a disclosure statement is to provide "adequate information" to creditors to enable them to decide whether to accept or reject the proposed plan. The phrase "adequate information" has been deliberately left vague by Congress to give a bankruptcy court "wide discretion to determine on a case by case basis" whether the disclosure is reasonable. In re Dakota Rail, Inc., 104 B.R. 138, 143 (Bankr.D. Minn.1989). Many courts have adopted an extensive list of the type of information often needed in disclosure statements for guidance in drafting disclosure statements. See, e.g., In re Cardinal Congregate I, 121 B.R. 760 (Bankr.S.D.Ohio 1990); In re Dakota Rail, supra; In re Microwave Products of America, Inc., 100 B.R. 376 (Bankr. W.D.Tenn.1989); In re Scioto Valley Mortgage Co., 88 B.R. 168 (Bankr.S.D.Ohio 1988); In re Metrocraft Publishing Serv., Inc., 39 B.R. 567 (Bankr.N.D.Ga.1984). Those features which I believe should be considered for inclusion by disclosure statement drafters are as follows: 1. The circumstances that gave rise to the filing of the bankruptcy petition; 2. A complete description of the available assets and their value; 3. The anticipated future of the debtor, with accompanying financial projections; 4. The source of the information provided in the disclosure statement; 5. The condition and performance of the debtor while in chapter 11; 6. Information regarding claims against the estate, including those allowed, disputed, and estimated; 7. A liquidation analysis setting forth the estimated return that creditors would receive under chapter 7; 8. The accounting and valuation methods used to produce the financial information in the disclosure statement; 9. Information regarding the future management of the debtor, including the amount of compensation to be paid to any insiders, directors, and/or officers of the debtor; 10. A summary of the plan of reorganization; 11. An estimate of all administrative expenses, including attorneys' fees and accounts' fees; 12. The collectibility of any accounts receivable; 13. Any financial information, valuations or pro forma projections that would be relevant to creditors' determinations of whether to accept or reject the plan; 14. Information relevant to the risks being taken by the creditors and interest holders; *19 15. The actual or projected value that can be obtained from avoidable transfers; 16. The existence, likelihood and possible success of nonbankruptcy litigation; 17. The tax consequences of the plan; 18. The relationship of the debtor with affiliates. This list is by no means comprehensive. Nor must every debtor provide all the information on the list. The Court will decide what is appropriate in each particular case. Yet, information that is provided must be clear and comprehensible. I have previously ruled that disclosure statements should not contain overly technical language that the average creditor cannot readily understand. See In re Waterville Timeshare Group, 67 B.R. 412 (Bankr.D. N.H.1986). Other courts have agreed. See, e.g., In re Cardinal Congregate I, supra, at 766; In re Scioto Valley Mortgage Co., supra at 171. Indeed, one recent court has adopted "the Plain English Disclosure Statement Rule." In re Dakota Rail, supra, at 150. Another Court aptly phrased this requirement as follows: The burden of deciphering the meaning of the treatment of a claim should not be placed upon a creditor inexperienced with the technicalities of bankruptcy law at this early stage of a bankruptcy proceeding. * * * * * * Thus, it is important for these average investors/general unsecured creditors that the Disclosure Statement contain simple and clear language delineating the consequences of the proposed plan on their claims and the possible Code alternatives so that they can intelligently accept or reject the Plan. In re Copy Crafters Quickprint, Inc., 92 B.R. 973, 981 (Bankr.N.D.N.Y.1988). See generally Phelan and Cheatham, "Would I Lie to you? — Disclosure and Bankruptcy Reorganizations", 9 Securities Regulation Law J. 140 (1981) (subtitled "If we make it thick enough maybe no one will read it.") In short, a proper disclosure statement must clearly and succinctly inform the average unsecured creditor what it is going to get, when it is going to get it, and what contingencies there are to getting its distribution. This disclosure statement fails this test. Specific Problems 1. This disclosure statement is not titled "Amended" which it should be since it is amended from a previous statement. 2. This disclosure statement buries the treatment of creditors in general discussion about what the Bankruptcy Code provides or what the plan provides. A disclosure statement should not repeat these provisions, but should disclose their effect and their meaning in a particular case. (A general reference to a statutory provision may be acceptable.) For example, if there is treatment of certain kinds of administrative claims in a certain class, it is not necessary to inform the reader that the statute provides for priority treatment. It is only necessary to tell them what are the approximate amount of administrative claims in the estate and how that class will be treated. 3. In regards to general unsecured claims, a disclosure statement should not say, as this one does, that if all claims are allowed each creditor will get ten percent. Rather, the statement should inform the reader what the undisputed claims are, what the disputed claims are, what effect, if any, there will be on the distribution if disputed claims are or are not allowed, and when will distribution be made. This requires a total dollar amount projected for the undisputed claims, and a total dollar amount projected for the disputed claims should they be allowed over objections. 4. The disclosure statement states what the claims bar date is, and then it states "if the Court extends the Bar Date for filing any given claim, the date so set shall be the Bar Date, but only with respect to such claim." I am unaware that the claims bar deadline is material in this case, but if it is material then this should be *20 made more specific. This Court will very rarely modify the claims deadline except upon a very strong showing that a particular creditor should get some special treatment that other creditors do not get so I do not see the need for such a provision in a disclosure statement. 5. The disclosure statement provides a paragraph stating that no other disclosure should be provided to voters as to the affairs of the debtor other than what is in this disclosure statement. This is contrary to Century Glove, Inc. v. First American Bank of New York, 860 F.2d 94, 100 (3d Cir.1988), which held: Section 1125 seeks to guarantee a minimum amount of information to the creditor asked for its vote. * * * * * * The provision sets a floor, not a ceiling. Thus we find that § 1125 does not on its face empower the bankruptcy court to require that all communications between creditors be approved by the Court. Of course, this does not give parties a license to solicit votes based on falsehoods. When that occurs, the Court must use its equitable powers. See, e.g., In re Media Central, Inc., 89 B.R. 685 (Bankr.E.D. Tenn.1988); In re Gulph Woods Corp., 83 B.R. 339 (Bankr.E.D.Pa.1988). 6. The disclosure statement states in a paragraph that much of the information has not been subject to a certified audit so the debtor warrants or represents all the information is accurate. Obviously there is a "not" missing in the latter part of this statement. 7. The disclosure statement has a section entitled "Brief Explanation of Chapter 11." These paragraphs are verbose and have nothing to do with the average creditor figuring out whether to vote for the plan. In particular, I do not like creditors being told in effect that their vote doesn't matter because the Court can approve the plan over their vote anyway. For the average unsecured creditor it is quite confusing and inappropriate to solicit their vote and then go through a long litany as to why their vote doesn't mean anything anyway. 8. This disclosure statement has "special" definitions which relate to this plan, and "general" definitions which are simply a regurgitation of what the Bankruptcy Code provides and/or what the plan provides. These latter definitions are not necessary for disclosure statement purposes. It is counterproductive because it buries within those verbose provisions the things the average creditor wants to know about the nature of their claim, treatment, and whether they should vote for the plan. The more sophisticated creditors will already be aware of the detail of Bankruptcy Code provisions. 9. This disclosure statement states "the information regarding the debtor and the debtor's operations is qualified and supplemented by the information and financial reports submitted to this Court by the debtor." This is inappropriate and should not be in a disclosure statement. If something in those financial reports is important enough to be specifically referenced, it should be specifically disclosed in the disclosure statement, with annexed exhibits only if absolutely necessary. You cannot expect general creditors to go through various reports submitted to the court over the history of the case and try to figure out what qualifications and what supplementation might be there from what they read in the disclosure statement. Other courts have agreed. See, e.g., In re Cardinal Congregate I, supra, at 767. 10. The discussion regarding the treatment of Numerica Savings Bank's claim needs a more descriptive and specific treatment. At this time, I will leave it to the parties to negotiate. 11. The executory contract provisions is boiler plate language that doesn't tell you anything about this case. It states: Except for any unexpired leases or executory contracts as to which the debtor, prior to confirmation, has applied to the Court for assumption, or assumption and assignment, all unexpired leases and executory *21 contracts to which debtor is party shall be automatically rejected on confirmation, without further action by the debtor. This provision should be made more specific. If there is nothing to reject that should be stated. If there is something to reject that should be stated along with the possible unsecured claim that might come out of that rejection. 12. The section entitled "Effect of Confirmation" states the debtor shall be discharged from personal liability. This is unnecessary. This is an individual debtor, and, therefore, it simply is a discharge of the debtor from liability under the provisions indicated. The further statement that whether or not a proof of claim was timely filed or whether or not a claim was scheduled or listed by the debtor raises constitutional questions that this Court has not yet been called upon to rule upon and I do not want this in a disclosure statement. 13. The section entitled "feasibility of Plan" states that it is "virtually impossible to provide reasonable projections regarding Salty Dog, Inc. [a restaurant] income and expenses." It then says based on experience, however, the debtor believes the plan is feasible. This is totally inadequate for any unsecured creditor to vote on this plan. See In re Cardinal Congregate I, supra at 767. If it is virtually impossible to make projections then it is not possible to represent to creditors that this plan is feasible and can pay unsecured creditors ten percent of their claim. Moreover, I don't know how I could confirm a plan that is not shown to be feasible. Maybe the debtor believes the plan provides more for creditors than they would get in liquidation. But this Court is not in the business of confirming unfeasible plans of reorganization just because it otherwise would be a liquidation with no distribution to creditors. Conclusion Disclosure statements in this district must avoid boiler plate language and be specifically tailored to the individual case before the court. In addition, disclosure statements must be clear and concise. Finally, there is certain essential information that every disclosure statement should have in it. Adequate disclosure requires nothing less.

291 S.W.3d 179 (2009) Wesley and Tina SETH, Appellants, v. ST. EDWARD MERCY MEDICAL CENTER, Appellees. No. 07-1348. Supreme Court of Arkansas. January 22, 2009. *180 McHenry, McHenry & Taylor, by: Donna McHenry, Robert McHenry, and Greg Taylor, Little Rock, for appellants. Thompson and Llewellyn, P.A., by: William P. Thompson, Fort Smith, for appellee. ELANA CUNNINGHAM WILLS, Justice. Wesley and Tina Seth appeal from an order of the Sebastian County Circuit Court granting St. Edward Mercy Medical Center's (St.Edward) motion for summary judgment on the basis of the charitable immunity doctrine. The Seths first argue that the trial court erred because St. Edward waived any claim of charitable immunity from suit or liability and that the principle of estoppel prevents application *181 of the defense to St. Edward. Second, the Seths argue that the trial court erred in retroactively applying this court's decision in Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), and by refusing to allow amendment of their complaint to name St. Edward's pooled liability fund owner and/or its commercial liability insurer as proper party defendants. On February 18, 2004, the Seths filed a medical negligence suit against St. Edward, Arkansas Heart Center, Emergency Medicine Associates, and two doctors. The complaint also named St. Edward's unknown insurer in the event that St. Edward asserted a charitable immunity defense, and stated in paragraph seven of the complaint that St. Edward "may claim immunity from suit or tort liability as a charitable or non-profit entity," and "in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute." St. Edward filed an answer to the Seth's complaint on March 16, 2004, averring that it was a nonprofit corporation, denying negligence or causation, and asserting certain affirmative defenses. However, St. Edward specifically responded to paragraph seven of the Seths' complaint in its answer by stating, "No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied."[1] The Seths filed a motion for partial summary judgment on November 28, 2005, asserting that no factual issues remained to preclude determination of St. Edward's negligence. St. Edward filed a response to the answer on December 30, 2005, contending that genuine issues of material fact remained, but once again did not raise the defense of charitable immunity.[2] The trial court denied the Seths' motion. On January 24, 2007, St. Edward filed an amended answer to the Seths' complaint, asserting for the first time that it was entitled to charitable immunity from liability and suit. On the same date, St. Edward also filed a motion for summary judgment, requesting that the trial court dismiss the complaint against it because it was a charitable entity as a matter of law and, therefore, immune from tort liability. The Seths filed a response to St. Edward's motion for summary judgment, arguing that Arkansas law at the time the action arose and the complaint was filed required St. Edward to be named as a defendant because it was not immune from suit. Further, the Seths contended that St. Edward never asserted the defense of immunity from suit in its original answer or the amended answer, thus waiving such defense under Ark. R. Civ. P. 8 and 12 and under the principle of estoppel.[3] The Seths also argued that "[n]ew law," presumably Low, supra, should not be applied retroactively to this case. Alternatively, the Seths argued that if St. Edward was dismissed from the complaint, the court *182 should allow substitution of Sisters of Mercy, a Missouri corporation that managed a pooled liability fund for St. Edward, and/or St. Edward's separate commercial liability insurer as proper party defendants under the direct-action statute. The Seths also argued that they should be allowed to amend their complaint to add the individual employees of St. Edward as defendants under Ark. R. Civ. P. 15. The Seths did not file a separate motion to strike St. Edward's amended answer as provided by Rule 15(a). The trial court issued an order on May 9, 2007, granting St. Edward's motion for summary judgment "[p]ursuant to the case law as set forth in George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Low v. Insurance Co. of North America, et al, 364 Ark. 427, 220 S.W.3d 670 (2005) and Sowders v. St. Joseph's Mercy Health Center, 368 Ark. 466, 247 S.W.3d 514 (2007) and the cases and authorities cited in the respective cases." The Seths filed a timely notice of appeal after the trial court granted the Seths' motion to voluntarily dismiss all remaining defendants. This court's standard of review for summary judgment has been often stated as follows: Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material question of fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Sykes v. Williams, 373 Ark. 236, 240, 283 S.W.3d 209, 213 (2008). The Seths first argue that the trial court erred in granting St. Edward's motion for summary judgment on the basis of charitable immunity because St. Edward waived any defense based on its charitable status.[4] Specifically, the Seths' complaint stated that St. Edward "may claim immunity from suit or tort liability as a charitable or non-profit entity," and "in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute." After asserting that it was a nonprofit corporation, St. Edward responded to this paragraph of the complaint by stating, "No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied." Accordingly, the Seths assert that St. Edward denied that it would claim immunity from either suit or liability as a charitable entity, thus waiving the charitable immunity defense it later raised in the amended answer. *183 Under Ark. R. Civ. P. 8(c), "an affirmative defense must be set forth in the defendant's responsive pleading." Poff v. Brown, 374 Ark. 453, 454, 288 S.W.3d 620, 622 (2008). Although Rule 8 lists a number of affirmative defenses, "the list is not exhaustive and includes `any matter constituting an avoidance or affirmative defense.'" Id. The "failure to plead an affirmative defense can result in the waiver and exclusion of the defense from the case." Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008). This court has clearly stated that "charitable immunity is an affirmative defense that must be specifically pled." Neal v. Sparks Reg'l Med. Ctr., 375 Ark. 46, 289 S.W.3d 8 (2008) (citing Felton, supra). St. Edward did not affirmatively plead charitable immunity in its original answer, but contends that it may amend its answer under Ark. R. Civ. P. 12 and 15, because Rule 15 allows a pleading to be amended at any time, and charitable immunity is not a defense that is waived if not asserted in an original responsive pleading under Rule 12(h)(1).[5] Neal, supra, involved a similar situation as that presented in this case. The appellants in Neal filed a medical negligence action against Sparks Regional Medical Center (Sparks) in 2005. Under Arkansas precedent at the time the suit was filed against Sparks, a charitable entity was immune from liability but not suit; therefore, the appellants were required to file suit against Sparks, rather than against Sparks and its liability carrier. See Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); see also Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004) (declining to overrule Clayborn). Sparks filed an answer on September 8, 2005, stating that it was a "not-for-profit Arkansas corporation," but did not assert that it was a charitable entity or assert the defense of charitable immunity as to either liability or suit. In December 2005, this court handed down its decision in Low, supra, holding that a qualified charitable entity was immune from suit as well as liability, and that the Arkansas direct-action statute, Ark.Code Ann. § 23-79-210, required an action to be filed against the charitable entity's liability carrier. On January 26, 2007, Sparks filed an amended answer stating for the first time that it was entitled to charitable immunity. The appellants responded by filing a motion to strike Sparks's amended answer as prejudicial, but the trial court denied the motion, concluding that the amended answer did not raise any additional defenses, and was not, therefore, prejudicial. Sparks then filed a motion for summary judgment, and the appellants responded by requesting that they be allowed to substitute Sparks's liability carrier as the proper party defendant in an amended complaint. The trial court denied the request under Ark. R. Civ. P. 15(c) because the appellant had not proven that the liability carrier had knowledge of the suit within 120 days after it was filed, nor that it knew or should have known that the appellants would have brought the suit against it but for a mistake *184 concerning the identity of the proper party.[6] On appeal, this court first held that the trial court erred in ruling that Sparks's amended answer did not raise any new defenses, stating that "[m]erely asserting its status as a not-for-profit corporation is not equivalent to specifically raising the affirmative defense of charitable immunity, as not all not-for-profit organizations will be immune under the doctrine" Neal, 375 Ark. at 51, 289 S.W.3d at 11. We therefore held that charitable immunity had not been affirmatively pled in the original answer. This court further held that the trial court erred in allowing the amended answer because it resulted in prejudice to the appellants. At the time Sparks filed its original answer, "the appellants were still within the 120-day period for notifying [Sparks's liability carrier] of the suit for relation-back purposes under Ark. R. Civ. P. 15(c)." Id. However, when Sparks filed its amended answer asserting charitable immunity for the first time, it was too late to substitute the liability carrier as the proper party. The primary distinguishing factor between Neal and this case is that in Neal, the appellants filed a motion to strike Sparks's amended answer because it was prejudicial. Under Ark. R. Civ. P. 15(a) (emphasis added), "[w]ith the exception of defenses mentioned in Ark. R. Civ. P. 12(h)(1), a party may amend his pleadings at any time without leave of the court," unless, "upon motion of an opposing party, the court determines prejudice would result." If the court finds that prejudice results, it may strike the amended pleading. Thus, charitable immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Ark. R. Civ. P. 8. Because it is not a defense listed in Rule 12(h)(1), however, it may be raised in an amended answer under Ark. R. Civ. P. 15, unless there is a motion to strike the pleading, and the court finds that prejudice results. Here, when St. Edward filed its amended answer and motion for summary judgment on the same day, asserting charitable immunity for the first time, the Seths only filed a response to the motion for summary judgment. They did not file a motion to strike the amended answer as prejudicial. Accordingly, waiver of the defense of charitable immunity does not result under our Rules of Civil Procedure. In addition to waiver, the Seths argue in their first point for reversal that St. Edwards was estopped from asserting the charitable immunity defense based on the Seths' reliance on St. Edward's failure to assert charitable immunity in its original answer. However, this argument is not well developed. It consists of one sentence in the Seths' brief and includes no citations to authority or discussion of specific application of the factors of estoppel. This court has repeatedly held that "something more than a mere assertion of *185 an argument in the pleadings is required to preserve an issue for appellate review," Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 188, 60 S.W.3d 458, 461 (2001), and that we will not consider arguments without convincing argument or citations to authority. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). For their second point on appeal, the Seths argue that "the trial court erred when it determined it would apply Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005) retroactively." However, this one sentence is the extent of the argument. For the same reasons cited above on the issue of estoppel, we will not consider this argument. The Seths also argue that the trial court erred by refusing to allow them to amend their complaint to name Sisters of Mercy and/or St. Edwards commercial excess liability insurer as proper party defendants.[7] The trial court never ruled on this issue, raised in the Seths' response to the motion for summary judgment, and this court "will not review an issue where the circuit court has not first decided it." Sowders v. St. Joseph's Mercy Health Ctr., 368 Ark. 466, 477, 247 S.W.3d 514, 522 (2007). Affirmed. NOTES [1] St. Edward also reserved the right to "file additional pleadings or amendments to its pleadings," and to "assert additional defenses or claims." [2] This court issued the decision in Low, supra, on December 15, 2005, that held charitable entities are immune from suit and, therefore, the proper party defendant in a claim against a charitable entity is the entity's liability insurer. A petition for rehearing was filed in Low on January 3, 2005, and the court issued its mandate on January 19, 2005. [3] St. Edward claimed both immunity from suit and liability in its amended answer. In its motion for summary judgment and brief in support, St. Edward asserted that it is immune from liability rather than suit. However, St. Edward did cite Low, supra, in its brief in support and Low's holding that a charitable entity is immune from liability and suit. [4] The Seths, "for the purposes of this appeal," do not challenge St. Edward's status as charitable entity. [5] Ark. R. Civ. P 12(h)(1)(emphasis added) provides in pertinent part: (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading. [6] Rule 15(c) provides that: An amendment of a pleading relates back to the date of the original pleading when: (1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. [7] Ark. R. Civ. P. 15(a) provides that "a party may amend his pleadings at any time without leave of the court," with the exception of the defenses listed in Ark. R. Civ. P. 12(h)(1).

707 F.Supp.2d 114 (2010) AMERICAN PAPER RECYCLING CORP. v. IHC CORPORATION, MPS/IH, LLC, and Wilmington Paper Corp. Civil Action No. 09-10761-RGS. United States District Court, D. Massachusetts. April 23, 2010. *116 Carlo Cellai, Cellai Law Offices, P.C., Boston, MA, for American Paper Recycling Corp. Christopher S. Finnerty, Jeffrey S. Patterson, Nelson Mullins Riley & Scarborough LLP, Boston, MA, for MPS/IH, LLC. Charyn K. Hain, Varnum, LLP, Grand Rapids, MI, for Wilmington Paper Corp. Jeffrey R. Martin, Catherine Elizabeth Murillo, Burns & Levinson LLP, Boston, MA, for IHC Corporation. MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT STEARNS, District Judge. American Paper Recycling Corporation (APR), brought this action in Bristol Superior Court seeking to compel performance by defendants IHC Corporation (IHC)[1] and MPS/IH, LLC (MPS) of a waste paper sales contract. APR also seeks to enjoin the sale of waste paper by MPS to a competitor, Wilmington Paper Corporation (Wilmington). Defendants removed the case to the federal court on diversity grounds, and then moved to dismiss the Complaint. In the interim, APR filed an eight-count Amended Complaint alleging breach of contract and breach of the covenant of good faith and fair dealing against IHC and MPS, as well as tortious interference claims against MPS and Wilmington. On August 7, 2009, the court heard oral argument, after which it denied the motions to dismiss without prejudice, pending limited discovery. The court's margin Order read as follows. [T]he court grants the parties 120 days (until December 7, 2009) to conduct discovery limited to the nature of the acquisition of assets by MPS from Ivy Hill and the resulting corporate relationship between the two entities. The parties will also identify all issues related to any potential liability attributable to Wilmington on the count of tortious interference. The parties have since filed cross-motions for summary judgment.[2] The court heard oral argument on April 13, 2010. *117 BACKGROUND The following material facts are not in dispute or where disputed are viewed in the light most favorable to the relevant non-moving party. APR is an Illinois corporation engaged in the business of purchasing waste paper and other paper products for recycling. APR is registered as a foreign corporation in Massachusetts and has its principal office in Mansfield, Massachusetts. IHC is a subsidiary of Cinram (U.S.) Holdings, Inc. (Cinram). Cinram is the sole shareholder of IHC. Prior to the events giving rise to this litigation, Ivy (now IHC) was engaged in the business of manufacturing paper packaging for use in the media industry. Ivy operated plants in Terre Haute, Indiana, and Louisville, Kentucky.[3] As a by-product of its manufacturing business, Ivy generated significant quantities of recyclable waste paper. APR paid Ivy an agreed rate based on the volume and quality of the waste paper. On November 6, 1990, Ivy and APR entered into a Waste Paper Sales Contract (Sales Contract), under which Ivy agreed to sell all of its waste paper to APR. In return, APR provided Ivy with manufacturing equipment on generous terms. The Sales Contract, in relevant part, provided that: E. It is mutually agreed that the quantities, classification, price periods during which the Agreement shall be effective, packing, shipping and other provisions shall be as follows: 1. Entire accumulation of saleable waste paper stock generated at [Ivy] plants. * * * * 3. This Agreement shall continue throughout December 31, 2004, and shall be automatically renewed at the same terms unless written cancellation is given by either party 90 days prior to the expiration of this contract period. Beginning in February of 1991, Ivy and APR executed the first of ten amendments to the Sales Contract dealing with the provision by APR of additional processing equipment and financing to Ivy. In conjunction with several of these amendments, Ivy agreed to extensions of the Sales Contract. In November of 1993, APR undertook to "add[] baling equipment [and to build out space], for the purpose of gathering waste paper . . . at the Ivy Hill L.A. California Plant" at a cost of $386,515 to APR. Ivy in return granted APR the right to purchase ninety percent of its waste paper product for an additional ten years to January 1, 2015. A year later, in November of 1994, the parties executed Amendment # 4, under which APR provided additional baling equipment for Ivy's Louisville, Kentucky plant at a cost to APR of $65,545. Ivy agreed to extend the Sales Contract for an additional year to January 1, 2016. In March of 1996, the parties amended the Sales Contract a fifth time. APR agreed to install and finance additional baling equipment. In exchange, Ivy granted APR a right of first refusal for the purchase of all of the waste paper generated at the planned Burbank, California plant. Although the pre-printed amendment form included language extending the Sales Contract for an additional year, the provision was stricken by agreement of the parties. The Sales Contract was, however, extended for an additional year when, in July of 1996, Ivy and APR executed Amendment # 6, under which APR *118 agreed to supply Ivy with air conveyor equipment for the Los Angeles plant. Under Amendment # 7, executed on May 15, 2000, APR provided Ivy with zero-percent financing for an additional baling system for the Los Angeles plant, and Ivy agreed to extend the Sales Contract to January 1, 2018. When Ivy needed financing to repair two balers at its Terre Haute plant, APR again provided favorable terms. The resulting Amendment # 9 extended the Sales Contract to January 1, 2019. The final relevant amendment to the Sales Contract occurred on May 1, 2006. Under Amendment #10, APR agreed to finance a baler repair project at Ivy's Los Angeles plant, and Ivy agreed to a twenty-four-month extension of the Sales Contract. The final version of the Sales Contract, as modified by the series of amendments, was to expire on December 31, 2020. On April 9, 2009, pursuant to an Asset Purchase Agreement (APA),[4] Cinram sold substantially all of Ivy's assets to MPS in a cash-and-stock deal.[5] Under the terms of the APA, Cinram received $23,250,000 in cash and 7,750 shares of Series C Preferred Stock in Multi Packaging Solutions, Inc., the parent company of MPS.[6] The APA provided that: Buyer hereby purchases and acquires from the Company [Ivy], all of the right, title and interest in and to the Company's Assets, rights, properties and interest in properties of the Company of every kind, nature and description, whether real, personal or mixed, tangible and intangible, whether or not used in, held for usage in or otherwise relating to the Business (other than Excluded assets). . . . APA ¶ 1.1. Additionally, as part of the transaction, MPS agreed to assume substantially all of Ivy's liabilities. Assumed Liabilities. On the terms and subject to the conditions contained in this Agreement, simultaneously with the sale, transfer, conveyance and assignment to Buyer of Purchased Assets, Buyer hereby assumes all of the Liabilities of the Company [Ivy] relating to the Business other than the Excluded Liabilities. APA ¶ 2.1.[7] The APA then identified certain assets that would not be transferred including cash, pre-paid expenses, insurance policies, pre-paid taxes, corporate documents, bank accounts, certain employee benefit plans, and all real estate owned in fee simple. See id. In addition, Schedule 1.2(m) of the APA identified specific assets excluded from the sale, including: Waste Paper Sales Contract dated November 6, 1990, as amended by Amendment *119 # 1 dated February 19, 1991, Amendment # 2 dated November 26, 1991, Amendment #3 dated November 9, 1993, Amendment # 4 dated November 1, 1994, Amendment # 5 dated March 20,1996, Amendment #6 dated July 1, 1996, Amendment # 7 dated May 15, 2000, Amendment # 8 dated March 29, 2001, Amendment # 9 dated May 6, 2003 and Amendment # 10 dated May 1, 2006, between American Paper Recycling Corporation and [Ivy]. On April 16, 2009, Ray Wheelan, a MPS Vice-President, notified Kenneth Golden, APR's President, that MPS intended to consolidate the recycling business at the newly-acquired Terre Haute and Louisville plants with MPS's existing contract with Wilmington. Wheelan told Golden that APR's recycling services at these facilities were being terminated effective May 10, 2009. On April 24, 2009, Wheelan wrote to APR warning that "[y]ou need to stop scheduling pick ups at the Terre Haute and Louisville plants effective immediately. All pick ups have been discontinued." APR then filed this lawsuit. DISCUSSION Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A `genuine' issue is one that could be resolved in favor of either party, and a `material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment bears the initial burden of demonstrating that there is no genuine issue as to a material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To oppose the motion successfully, the non-moving party "may not rest upon the mere allegations or denials of his pleading. . . ." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the non-movant must submit "`sufficient evidence supporting the claimed factual dispute' to require a choice between `the parties' differing versions of the truth at trial.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), quoting Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975). On cross-motions for summary judgment, "the court must consider each motion separately, drawing inferences against each movant in turn." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997). The De Facto Merger Exception "Under generally accepted corporate law principles, the purchaser of the assets of another corporation does not assume the debts and liabilities of the transferor. The traditional rule is subject to four generally recognized exceptions: (1) the purchasing corporation expressly or impliedly agrees to assume the selling corporation's liabilities; (2) the transaction is a merger of the two entities; (3) the purchaser is a mere continuation of the seller corporation; and (4) the transaction is a fraudulent attempt to evade the seller's liabilities." Devine & Devine Food Brokers, Inc. v. Wampler Foods, Inc., 313 F.3d 616, 618 (1st Cir.2002), citing Dayton v. Peck, Stow & Wilcox Co., 739 F.2d 690, 692 (1st Cir.1984). See also 15 W. Fletcher, Cyclopedia of Law of Private Corporations § 7122, at 227-243 (1999).[8] Massachusetts law adheres "to *120 traditional corporate law principles that the liabilities of a selling predecessor corporation are not imposed on the successor corporation which purchases its assets unless [one of these four exceptions is met]." Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 359, 676 N.E.2d 815 (1997), citing Guzman v. MRM/Elgin, 409 Mass. 563, 566, 567 N.E.2d 929 (1991). In this instance, there is no dispute that the Sales Contract was expressly excluded from the transferred assets. Nor is there any contention that the transaction involved a fraudulent conveyance to MPS. Thus, the first and fourth exceptions do not apply. APR relies instead on the de facto merger and "mere continuation" exceptions. In determining whether to characterize an asset sale as a de facto merger, courts are to consider whether: (1) there is a continuation of the enterprise of the seller corporation so that there is continuity of management, personnel, physical location, assets, and general business operations; whether (2) there is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation; whether (3) the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and whether (4) the purchasing corporation assumes those obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. Goguen v. Textron, Inc., 476 F.Supp.2d 5, 12-13 (D.Mass.2007), quoting Cargill, 424 Mass. at 360, 676 N.E.2d 815. See also Guzman, 409 Mass. at 566, 567 N.E.2d 929. Of the four factors, "no single [one] is necessary or sufficient to establish a de facto merger." Goguen, 476 F.Supp.2d at 13, citing Cargill, 424 Mass. at 360, 676 N.E.2d 815. "When a de facto merger is alleged, the court must determine `the substance of the agreement [regardless of] the title put on it by the parties.'" In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution [Acushnet], 712 F.Supp. 1010, 1015 (D.Mass.1989). Here, APR argues that none of the four Cargill factors emblematic of a de facto merger applies. The court will consider each factor in turn. Continuity of the Enterprise MPS absorbed the bulk of Ivy's workforce, two of its physical plants, and its core business. However, "[i]n determining whether a de facto merger has occurred, courts pay particular attention to the continuation of management, officers, directors and shareholders." Cargill, 424 Mass. at 360, 676 N.E.2d 815. See also Dayton, 739 F.2d at 693. MPS did not retain key members of Ivy's management team, including Ivy's Chief Operating Officer, the Vice President of Finance, the Chief Engineer, the Plant Manager, the Controller, and the IT Director. It had none of the same officers or directors, and as noted below, the exchange involved an arms-length exchange of good and fair consideration, namely a substantial sum of cash and only a nominal interest in the shares of Multi Packaging Solutions, MPS's parent company. MPS discontinued a number of Ivy's previous vendors, *121 including vendors who had supplied the plants with paper, paper board, and corrugate. Finally, MPS chose to exclude the real property at the Louisville plant from the list of purchased assets, and instead chose to lease the property from Ivy-IHC. Cargill provides an instructive contrast. In that case, not only did the work force remain the same, the key manager stayed in place, and all of the other employees and key people (with one exception) remained the same, "maintaining their same positions and responsibilities." Cargill, 424 Mass. at 360, 676 N.E.2d 815. The owner of the former company became a director of the new company and its largest individual shareholder. Id. The new company "used the same telephone numbers [as the old company], the same trucks and the same equipment. [The old company's] customer lists and contracts were transferred to [the new company] all of whom were serviced just as they had been. . . ." Id. at 361, 676 N.E.2d 815. In short, the new became the old. Similarly, in Acushnet, the new company continued all of the old company's product lines, the president, vice-president and treasurer of the old company took the same titles and functions in the new company (as well as being made directors), the middle management remained intact, and even the banking and insurance facilities remained the same. "For all the world could tell from outward appearance, [the new company] had simply shortened its name." 712 F.Supp. at 1016. This factor weighs heavily against a de facto merger. Continuity of Shareholders The First Circuit, consistent with other courts and learned treatises, has observed that continuity of shareholders is one of the "key requirements" for application of the de facto merger doctrine. Dayton, 739 F.2d at 693. Continuity of the shareholders "is found where the purchaser corporation exchanges its own stock as consideration for the seller corporation's assets so that the shareholders of the seller corporation become a constituent part of the purchaser corporation." Id. (citations omitted). In this case, as consideration for the sale, Cinram received $23,250,000 in cash and 7,750 shares of Series C Preferred Stock in Multi Packaging Solutions. The shares, however, represent less than 3.2 percent of Multi Packaging Solutions' stock. Moreover, as the only Series C stockholder, Cinram has no voting rights, cannot transfer its shares, and holds the shares subject to a right of unilateral redemption by Multi Packaging Solutions. In Devine & Devine, a ten percent interest composed of voting stock did not suffice to impose successor liability under a de facto merger theory. 313 F.3d at 619. Although in Cargill, a twelve and one-half percent voting interest was sufficient to tip the balance, this was so because the sale was between two closely-held corporations and left the owner of the predecessor entity with a seat on the successor corporation's board of directors and the largest personal holding of shares of stock. See 424 Mass. at 361 n. 9, 676 N.E.2d 815. No members of Cinram's board of directors or any of its officers hold a similar position with MPS or were given individual shares of voting stock. This factor weighs decidedly against a de facto merger. Seller Corporation Ceases Its Former Business Operations A third emblematic factor is the immediate liquidation of the predecessor entity. The rationale underlying this exception is the protection of third parties, for example, consumers harmed by a product defect. "[W]hatever the reach of successor liability under the law of Massachusetts, the doctrine has no applicability *122 where . . . the original manufacturer remains in existence to respond in tort for its alleged negligence and breach of warranty." Roy v. Bolens Corp., 629 F.Supp. 1070, 1073 (D.Mass.1986). Here, Ivy did not dissolve after the sale and liquidate its assets so as to put them out of the reach of creditors, but remains in existence as IHC. It retained ownership of the real estate where the Louisville plant is located. It collects rents from MPS, and otherwise functions as a commercial landlord with assets, profits, and employees. As in Roy, because Ivy "is alive and well and able to respond in damages," id., a finding of a de facto merger is virtually precluded. Assumption of Obligations Necessary to Continue Normal Business Operations While MPS has continued Ivy's core business, operational changes since acquiring Ivy's manufacturing plants have replaced most of the management. MPS has discontinued or changed vendors, and did not take ownership of Ivy's real property where the Louisville plant is situated. On balance, this factor too weighs against the argument that MPS has simply continued Ivy's business without interruption or notice. Taking the four factors as a whole, and particularly the "key requirement" of continuity of management, officers, directors, and shareholders, it is clear that no de facto merger occurred. The Mere Continuation Exception Under the mere continuation exception, "the imposition of liability on the purchaser is justified on the theory that, in substance if not in form, the purchasing corporation is the same company as the selling corporation." McCarthy v. Litton Indus., Inc., 410 Mass. 15, 22, 570 N.E.2d 1008 (1991). Accordingly, "the indices of `continuation' are, at a minimum: continuity of directors, officers, and stockholders; and the continued existence of only one corporation after the sale of assets." Goguen, 476 F.Supp.2d at 14-15, citing McCarthy, 410 Mass. at 23, 570 N.E.2d 1008. As the minimum threshold is not met—there is no continuity of directors, officers or shareholders, or for that matter senior management—this exception has no applicability. Tortious Interference (Wilmington) To state a claim for intentional interference with contractual relations, a party must demonstrate that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break the contract; (3) the interference, in addition to being intentional, was improper in motive or means; and (4) plaintiff was harmed by the defendant's actions. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272, 571 N.E.2d 1363 (1991). "[S]omething more than intentional interference is required" to make out the tort. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815, 551 N.E.2d 20 (1990), adopting Restatement (Second) of Torts § 766 (1977). Cf. King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488 (1994) (where a corporate official is named as a defendant, the tort requires "actual malice" or "a spiteful, malignant purpose, unrelated to the legitimate corporate interest"); Blackstone v. Cashman, 448 Mass. 255, 261, 860 N.E.2d 7 (2007) (freedom of action with respect to corporate interests should not be restrained by a fear of personal liability). The actual malice standard is a heightened burden placed on plaintiff, and not an affirmative defense to be proved by the defendant. Id. at n. 10. The legitimate advancement of one's own economic interests is never "improper" for purposes of a tortious interference claim. Pembroke Country Club, Inc. v. Regency Sav. Bank, *123 62 Mass.App.Ct. 34, 39, 815 N.E.2d 241 (2004). As there is no plausible claim that Wilmington (which had an existing contractual relationship with MPS) acted out of any motive to gratuitously inflict harm on APR, or in accepting a corporate opportunity for the benefit of its own shareholders, acted with an improper motive or improper means (such as misrepresentation or coercion). It follows that there is no viable claim of tortious interference against Wilmington.[9] ORDER For the foregoing reasons, MPS's motion for summary judgment is ALLOWED as to Counts III, IV, and VII. Wilmington's motion for summary judgment is ALLOWED as to Count VI. Summary judgment is DENIED without prejudice as to all remaining Counts. The parties are directed to file a proposed further discovery plan within twenty-one (21) days of the date of this Order with a view to ultimate resolution of the case. SO ORDERED. NOTES [1] At the April 13, 2010 motion hearing, counsel for APR made an oral request to amend the caption of the Complaint to properly reflect IHC's new corporate name. Counsel for defendants did not object, and the court allowed APR's request. For purposes of this memorandum, the court will refer to IHC when addressing matters affecting the corporation after the date of the name change, and to Ivy Hill Corporation (Ivy) when referring to matters arising before. [2] In spite of the court's limited discovery order, defendants moved for summary judgment on all counts of the Amended Complaint. On April 8, 2010, APR filed a motion to defer the hearing on the summary judgment motions and for further discovery pursuant to Fed. R.Civ.P. 56(f). On April 12, 2010, the court issued an order limiting the hearing to those issues for which discovery had been authorized. [3] In addition to the Terre Haute and Louisville plants, Ivy at various times operated plants in Los Angeles and Burbank, California, and on Long Island in New York. [4] The APA was impounded by a February 19, 2010 Order of the court. Counsel have assented to the court's disclosure of relevant portions of the agreement for purposes of this opinion. [5] Prior to its sale to MPS, Ivy had undergone two prior acquisitions. Ivy was first purchased by Time Warner Company, which then sold Ivy to Cinram. In both of these transactions, the Sales Contract was included among the transferred assets. Neither acquisition impacted on APR's ability to continue to purchase Ivy's waste paper. [6] Multi Packaging Solutions, Inc., is a Delaware corporation and the sole owner of a second Delaware corporation, John Henry Holdings, Inc., which in turns owns MPS. [7] The excluded obligations listed at APA ¶ 2.2 are standard exclusions, including tax liabilities, employee benefit plans, environmental contamination, and liabilities covered by existing insurance contracts. [8] As noted in Fletcher, the absence of adequate consideration for the sale or transfer of assets is often regarded as a fifth exception. Adequacy of consideration is not at issue here. [9] Section 767 of the Restatement (Second) of Torts lists a number of non-exclusive factors to be considered in determining whether a defendant's conduct in intentionally interfering with a contract (or a prospective contractual relation) is improper: "(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference, and (g) the relations between the parties." None of these factors weigh against Wilmington.

494 F.2d 1295 *dVanamanv.U. S. 73-3544 UNITED STATES COURT OF APPEALS Fifth Circuit 5/14/74 1 N.D.Tex. AFFIRMED * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N

35 F.3d 553 Pujana-Menav.U.S. NO. 93-2226 United States Court of Appeals,Second Circuit. Aug 31, 1994 1 Appeal From: E.D.N.Y. 2 AFFIRMED.

In the Guited States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 17, 2020 * oe Kk OK HK OK KK KK KK K HK K KK K KH AND HUMAN SERVICES, Respondent. NATALIA A. AUGUSTINE, * * * Petitioner, * No. 18-1558V * Vv. * Special Master Dorsey * SECRETARY OF HEALTH * * * * * * kk KK OR KK OK KK KK KK K KOK K ORDER CONCLUDING PROCEEDINGS! On January 17, 2020, petitioner filed a Stipulation of Dismissal in the above-captioned case, attached hereto as Appendix A. Accordingly, pursuant to Vaccine Rule 21 (a), the above-captioned case is hereby dismissed without prejudice. The Clerk of the Court is hereby instructed that a judgment shall not enter in the instant case pursuant to Vaccine Rule 21(a). IT IS SO ORDERED. ' Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. iW Dated: / ~l7Z-4OA, O 70a Nora Beth Dorsey Special Master IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS NATALIA A. AUGUSTINE, Petitioner, Vv. No. 18-1558V Special Master Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. JOINT STIPULATION OF DISMISSAL It is hereby stipulated by and between the parties, the following matters: 1. On October 9, 2018, petitioner filed a Petition for Vaccine Compensation. 2. The parties hereby stipulate pursuant to Vaccine Rule 21(a) that this action shall be ais Respondgffks Counsel: dismissed. Petitioner : JENNIFER I\. REYNAUD 933 West End Road Trial Attorn Downers Grove, IL 60515 Torts Branch, Civil Division (630) 310-1949 U.S. Department of Justice [email protected] P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 305-1586 <= [email protected] pamp:_O/ //3/L0P0O Received - USCFC JAN 17 2020 

510 U.S. 1055 Colev.Houston, Warden, et al. No. 93-6662. Supreme Court of United States. January 10, 1994. 1 Appeal from the C. A. 8th Cir. 2 Certiorari denied. Reported below: 22 F. 3d 306.

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ANNIINA SUOMINEN GUYAS, NOT FINAL UNTIL TIME EXPIRES TO Former Wife, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appellant, CASE NO. 1D14-0289 v. PAUL GUYAS, Former Husband, Appellee. _______________________________/ Opinion filed October 8, 2014. An appeal from the Circuit Court for Leon County. Barbara K. Hobbs, Judge. Kristin Adamson, Tallahassee, for Appellant. John C. Kenny, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. PADOVANO, WETHERELL, and MAKAR, JJ., CONCUR. 

761 F.2d 60 119 L.R.R.M. (BNA) 2798, 37 FairEmpl.Prac.Cas. 1243,37 Empl. Prac. Dec. P 35,224,102 Lab.Cas. P 11,472 Marie R. COTE, Plaintiff, Appellee,v.JAMES RIVER CORPORATION, Defendant, Appellee.United Brotherhood, Local # 75, Defendant, Appellant. No. 84-2037. United States Court of Appeals,First Circuit. Argued April 3, 1985.Decided May 6, 1985. Howard B. Lenow, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, Mass., was on brief, for defendant, appellant. Raymond K. Clement, Groveton, N.H., with whom Patrick T. Hayes, Baker & Hayes and James R. Laffan, Lebanon, N.H., were on brief, for Marie R. Cote. Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges. TORRUELLA, Circuit Judge. 1 The United Brotherhood, Local # 75 (Union), appeals to this court from an order of the United States District Court for the District of New Hampshire denying its motion for attorney's fees and expenses. 2 Appellee, Marie R. Cote, filed a complaint in January, 1984, against the Union and her former employer, the James River Corporation, alleging causes of action under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621, et seq. (ADEA) and the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., (Title VII). Prior to bringing this action, Cote had filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging illegal discrimination for having been passed over for promotion. The Union was not named as a party in this complaint. After reviewing the complaint in the lawsuit, the Union's counsel notified Cote's attorney that the court had no jurisdiction over the Union in this matter, because it had not been named as a party in her administrative action. When the plaintiff's attorney did not act upon this information, the Union filed a motion requesting that the claim against it be dismissed on these grounds. 3 Shortly thereafter, at a preliminary pretrial conference held before the magistrate, Cote's counsel, Mr. Hayes, indicated that the Union was being sued not for having itself discriminated on the basis of sex or age, but for having failed to sufficiently help the employee with her complaint against the company. The magistrate suggested to appellee's attorney that a more accurate claim against the Union would be a breach of the duty of fair representation and set a deadline for the plaintiff to amend her complaint. The Union's counsel, at the status conference or immediately thereafter, explained to Hayes that such a claim would be clearly time-barred by the Supreme Court's ruling in Del Costello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which requires such actions to be filed within six months of the alleged breach by the Union.1 The Union proceeded to file another motion to dismiss in response to Cote's amendment to her complaint. This second motion, as was the first, was granted without regard to the substantive merits when the plaintiff failed to file an opposition to the motion. 4 The trial court found no evidence of harassment, subjective bad faith, or capricious action on the part of the plaintiff. It found that it was not incautious for the local counsel to decide to proceed as recommended by the magistrate. We agree, but only up to a point. Once put on notice that her last possible cause of action, the violation of a duty of fair representation, was time-barred, Cote should have determined whether this was so. "A plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. " Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978) (emphasis added). We find that once Cote was alerted to the Del Costello decision, it became clear that there were no grounds on which she could prevail. We, therefore, find that after this point, when it became unreasonable to continue litigation, the defendant is entitled to attorney's fees which it reasonably incurred in the continuance of its defense. The decision of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. 5 Reversed and remanded. 1 That the action was not filed within six months of the alleged breach is undisputed

316 F.Supp.2d 262 (2004) Jennifer Evans DAUGHERTY, Plaintiff v. GENESIS HEALTH VENTURES OF SALISBURY, INC., Defendant No. CIV. AMD 03-2103. United States District Court, D. Maryland. May 10, 2004. *263 Robin R. Cockey, Cockey Brennan and Maloney, Salisbury, MD, for Plaintiff. Darryl G. McCallum, J. Michael McGuire, Shawe and Rosenthal LLP, Baltimore, MD, for Defendant. MEMORANDUM OPINION DAVIS, District Judge. Plaintiff, Jennifer Evans Daugherty, was employed as a Certified Nursing Assistant for the defendant, Genesis Health Ventures of Salisbury, Inc., at a long term nursing facility from July 20,2001, until she was terminated on or about October 15, 2001. It is undisputed that plaintiff was terminated because defendant would not accommodate lifting and other restrictions on her ability to perform essential functions of her job in consequence of her pregnancy. Plaintiff instituted the present action seeking damages pursuant to Title VII of the Civil Rights Act of 1964, specifically the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k).[1] Discovery has concluded and now pending is defendant's motion for summary judgment. No hearing is necessary. For the reasons stated below the motion shall be granted. A party moving for summary judgment is entitled to a grant of summary judgment only if no issues of material fact remain for the trier of fact to determine at trial. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Mere speculation by the non-movant cannot stave off a properly supported motion for summary judgment. See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). "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." Fed.R.Civ.P. 56(e). See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy, 929 F.2d at 1012. To be sure, all permissible inferences must be drawn in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348. As mentioned above, there is no dispute that plaintiff was terminated based on restrictions imposed by her doctor on the performance of her job duties. Further, it is not disputed that plaintiff could not perform certain of her duties, e.g., lifting more than 75 pounds. The gravamen of plaintiff's claim is that defendant's failure to provide "light duty" assignments to pregnant workers such as plaintiff violates the PDA. Defendant responds that its refusal to assign "light duty" work to pregnant nursing staff employees is not discriminatory within the meaning of the PDA because it has a longstanding policy of withholding "light duty" assignments for all employees who have work restrictions other than those employees with such restrictions as a result of on-the-job injuries. Such employees, on account of state workers' *264 compensation laws, must be paid substantial remuneration (directly or through relevant insurance) whether or not they perform "light duty." In other words, under the defendant's policy, the existence of which is not substantially challenged by plaintiff, any man or woman nursing staff employee who is temporarily disabled from performing the essential functions of his or her job as a result of a non-work-related disability is not eligible for "light duty." Nor is it genuinely disputed by plaintiff that defendant's policy is rooted in the economic realities of the nursing home industry, i.e., that it is justified by "business necessity." As described by defendant, the policy reflects the following reality: As a long-term care facility, it is critical that Genesis employ nurses and nursing assistants who can provide direct patient care, including, but not limited to, lifting and transporting [its] residents who are unable to ambulate by themselves. As a result, Genesis requires its Certified Nursing Assistants to be able to lift, push and pull at least 75 pounds .... One reason for [the policy of not assigning light duty to any employee other than an employee injured on-the-job] is that [its] nursing home centers operate under tight budgetary constraints as well as stringent state and federal regulations. Failure to provide a sufficient staff of nursing assistants who are able to give direct patient care, which involves, among other things, lifting and transporting patients, could jeopardize [defendant's] license to operate as a long-term care facility. Offering light duty to employees who are injured off the job or become pregnant would put a tremendous strain on [defendant's] ability to provide direct patient care, as [defendant] would be directing resources that had been budgeted for those employees who are able to give direct patient care toward those who cannot. On the other hand, Genesis feels a special obligation toward those who have been injured on the job, and [is] obligated to pay them regardless of whether they are at work. Def's Exh. 3, at ¶¶ 4, 5, and 7. Plaintiff has failed to marshal any evidence to call into question the bona fides of defendant's limited "light duty" policy, although she has argued vigorously that the policy is unfair if not arbitrary. That may be, but plaintiff has not remotely shown that the policy has ever been applied in a discriminatory manner.[2] Nor has plaintiff mounted a serious challenge to the economic justifications for the policy. Thus, although the parties have devoted much attention to various proof schemes, including the "shifting burdens" paradigm based on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), this is a simple case of undisputed, intentionally disparate treatment. As a matter of law, however, the disparate treatment of pregnant nursing staff who are able to perform only "light duty" (compared to those needing "light duty" because they were injured on-the-job) does not rise to the level of unlawful discrimination.[3] Although the Fourth *265 Circuit has not addressed the specific question, the clear weight of precedent is that an employer is not required to treat disability arising from pregnancy more favorably than it treats other forms of temporary disability. See Armstrong v. Flowers Hospital, 33 F.3d 1308, 1317 (11th Cir.1994)("Statements in the legislative history make it clear that the PDA does not require employers to extend any benefit to pregnant women that they do not already provide to other disabled employees.")(collecting cases). Rather, the rule seems to be that disability arising from pregnancy cannot be singled out for less favorable treatment. Id. In this case, it is undisputed by plaintiff that defendant treats all disabilities among the nursing staff that arise other than on-the-job equally: such employees are not eligible for light duty. Accordingly, defendant is entitled to judgment as a matter of law.[4] ORDER In accordance with the foregoing Memorandum Opinion, it is this 10th day of May, 2004, by the United States District Court for the District of Maryland, ORDERED (1) That the defendant's motion for summary judgment is GRANTED; and it is further ORDERED (2) That JUDGMENT IS HEREBY ENTERED IN FAVOR OF DEFENDANT AGAINST PLAINTIFF; and it is further ORDERED (3) That the Clerk shall CLOSE THIS CASE. NOTES [1] Plaintiff has abandoned her claim under the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq. [2] Notably, some weeks before she learned she was pregnant, plaintiff had suffered an on-the-job injury and had been assigned to light duty tasks. Nevertheless, plaintiff has not identified a single instance of a male employee or a non-pregnant female employee who received such an accommodation for an off-the-job disability. [3] Plaintiff testified on deposition to certain comments made by managerial employees of the defendant, both at the time she was hired and around the time she disclosed she was pregnant, that were suggestive of an "anti-pregnancy" attitude on the part of defendant generally. As a matter of law, however, those comments do little more than reflect the explicit policy which I conclude on this record does not rise to the level of "discrimination." In other words, it is clear that defendant had an "animus" toward pregnant nursing staff employees who have substantial work restrictions, just as it had an "animus" toward nursing staff employees (male and female) who, on account of injuries or illnesses suffered off-the-job, must be replaced by new hires under the "no light duty" policy. As mentioned above, the disparate treatment here is clearly intentional, but it does not equal unlawful discrimination, because the disparate treatment complained of does not involve a classification that singles out pregnancy-based disability for less favorable treatment. [4] Plaintiff makes a belated (and only passing) reference to a "disparate impact" theory of discrimination. In the Fourth Circuit, an individual suing for disparate treatment discrimination generally may not rely on a disparate impact theory other than in a "pattern and practice" or class action proceeding. See Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-62 (4th Cir.1998), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). This is not such a case. In any event, there is nothing "facially neutral" about defendant's policy; it explicitly excludes pregnancy (together with all other off-the-job disabilities) from eligibility for light duty assignments.

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs September 10, 2009 STATE OF TENNESSEE v. ALFRED GENE BULLOCK Appeal from the Criminal Court for Fentress County No. 9346 Shayne Sexton, Judge No. M2008-01284-CCA-R3-CD - Filed December 17, 2009 After the entry of a best-interest plea to felony child abuse, a Fentress County trial court denied judicial diversion for Appellant, Alfred Gene Bullock. The trial court sentenced Appellant to three years as a Range I, standard offender. Appellant appeals the denial of judicial diversion. After a review of the record, we determine that the trial court considered the factors required for the grant or denial of judicial diversion and did not abuse its discretion in denying judicial diversion to Appellant. Accordingly, the judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed. JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE , J., joined and J.C. MCLIN , J., Concurred in Result. Paul Crouch, Allardt, Tennessee, for the appellant, Alfred Gene Bullock. Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; William Paul Phillips, District Attorney General, and John G. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Factual Background Appellant was indicted by the Fentress County Grand Jury in January of 2008 for aggravated child abuse of a child under six years old. In March of 2008, Appellant entered a best-interest guilty plea to one count of felony child abuse of a child under six years of age. There was no agreement as to Appellant’s sentence.  The trial court held a sentencing hearing on May 8, 2008. At the hearing, the trial court learned that Appellant, who was twenty-two years of age at the time of the hearing, was in the military and had served a tour of duty in Iraq for approximately one year. When Appellant returned from Iraq, he married Tammy Mayer, a woman that he had met on the internet and had known for a few months prior to his deployment. This marriage ended after two months. At the time of the incident which gave rise to the indictment, Appellant was married to Holly Bullock. Appellant and Ms. Bullock were married on June 30, 2007, after dating for about two months. Ms. Bullock had a three-year-old son, T.L.1 Lori Martin, Ms. Bullock’s mother, testified at the hearing. Ms. Martin explained that she tried to visit her daughter, grandson, and Appellant frequently at their home in Clarksville, Tennessee. During these visits, Ms. Martin observed that Appellant was very stern with T.L. In particular, Ms. Martin noticed that Appellant constantly told T.L. that he was doing things “wrong.” In December of 2007, Appellant, Ms. Bullock, and T.L. came to stay with the Martins for the Christmas holidays. The family arrived on December 15, 2007. Ms. Martin noticed immediately that Appellant was very strict about bedtime, telling T.L. that he was “watching [him] like a hawk.” Ms. Martin recalled one particular incident in which Appellant spanked T.L. because he would not take a nap after church, even though the child had not eaten lunch and it was nearly 1:30 p.m. Appellant allowed the child to “eat in the room” but informed everyone that the child was “not coming out . . . till he’s [taken] a nap.” Ms. Martin expressed her concern about Appellant’s behavior to her daughter. Specifically, she felt that the discipline was too aggressive for a three-year old. Several days later, Ms. Martin walked by the bathroom and saw T.L. inside. T.L. looked at her and said, “Hi, Mamaw.” Almost immediately, Appellant walked by, spanked T.L. and told him to stop “playing around.” Ms. Martin described an incident that occurred on the morning of December 24, 2007. Ms. Bullock made a bowl of cereal for T.L.’s breakfast. When T.L. got the cereal, he said a short prayer and then started to eat. Appellant did not see the child pray and, according to Ms. Martin, “flew up off the couch just a getting it towards” the child. Ms. Martin told Appellant that T.L. said a prayer, and Appellant asked if she was lying. Later that evening, Ms. Martin tried to give parenting advice to Appellant. She informed him that some children do not take naps once they turned three. The next day, Ms. Martin turned on a video camera that was in the spare bedroom where Appellant, Ms. Bullock, and T.L. were sleeping. Ms. Martin thought that Appellant would probably take the child back to the room for a nap while the rest of the family visited Ms. Martin’s mother at 1 It is the policy of this Court to refer to minor victims of child abuse by their initials. -2- her home. When Ms. Martin listened to the videotape2 that evening around 10:30, she heard Appellant threaten T.L. and snap his belt. Then about fifteen minutes later, Appellant started hitting T.L. Ms. Martin counted between twenty-seven and thirty blows that Appellant inflicted on the child. When Ms. Martin discovered what Appellant had done to the child, her husband told Appellant to leave the house because he hurt T.L. Appellant admitted that he spanked the child but denied that he hit the child twenty-seven to thirty times. The police were notified, and Appellant was arrested. The police and the family took photographs of the child’s injuries. T.L. had difficulty sleeping the night of the incident and awoke with a nightmare several nights later. He even informed Ms. Bullock that Appellant hurt him. Ms. Bullock confirmed at the hearing that she was married to Appellant and expecting his child. At the time of the hearing, she was nearly seven months pregnant. However, Ms. Bullock expressed her intent to get a divorce once Appellant was convicted. Ms. Bullock informed the court that she was “shocked” when Appellant admitted that he spanked T.L. so many times. Ms. Bullock testified that she had never seen Appellant use alcohol or drugs and that Appellant had never physically abused her during their relationship. Ms. Bullock felt that Appellant’s behavior would prohibit her from allowing or trusting Appellant to be alone with her children ever again. Appellant testified at the hearing. He claimed that he was shocked when confronted with the accusation that he had spanked T.L. twenty-eight times. In fact, Appellant did not believe the claims until he heard the tape of the incident at the preliminary hearing. After hearing the tape, Appellant did not deny responsibility for his actions. Instead, Appellant expressed gratitude for being allowed to see “the person that [he] was becoming.” Appellant apologized for his actions and expressed hope that Ms. Bullock and T.L. could forgive him some day in the future. Appellant described his actions as “wrong and barbaric” and recognized that he was trying to be a father to T.L. in “the wrong way.” Appellant admitted that, at the time of the beating, he thought that he could spank the child “a little bit . . . then [he would] get the point and go to sleep.” Appellant admitted that he had harmed himself on one prior occasion after getting mad at a squad leader. Appellant punched a wall so hard that he broke his pinky finger. Several witnesses testified in Appellant’s behalf. They confirmed that Appellant’s behavior and attitude were different after his tour of duty in Iraq. They all described Appellant as a good person. After Appellant was arrested, he completed an anger management workbook and was also given a parental and mental assessment from the Department of Children’s Services. The results of 2 The video camera was pointed at a particular area of the room. Therefore, it does not contain images, only audio. -3- the assessment indicated that Appellant suffered from posttraumatic stress disorder. Appellant indicated his willingness to receive a psychiatric consultation and/or a medical exam. At the conclusion of the hearing, the trial court denied judicial diversion, making findings on the record relating to the denial. The court noted that Appellant treated the victim with exceptional cruelty during the commission of the offense and that Appellant abused a position of private trust, which resulted in emotional and mental harm to the victim. The trial court also noted that Appellant had served in the military in “an admirable fashion” but in the end concluded that the circumstances of the offense, including Appellant’s own statement that he had become a “monster,”3 led the court to the conclusion that there was “no basis to consider [Appellant] for judicial diversion.” The trial court described Appellant’s actions as “criminal” and “completely unnecessary and outside the realm of any modern or medieval parenting that was acceptable.” As a result, the trial court sentenced Appellant to three years as a Range I, standard offender. Appellant filed a timely notice of appeal, seeking a review of the trial court’s denial of diversion. Analysis On appeal, Appellant argues that the trial court erred in denying judicial diversion because the trial court “did not consider and comment to all the factors” necessary to deny diversion and “erred in finding mental and emotional damage to the child when no facts or evidence was offered to support that finding.” Specifically, Appellant argues that the trial court “took statements out of context, improperly created evidence . . . , and most importantly, failed to explain on the record the specific reasons for his determination.” Further, Appellant argues that there was no evidence of mental or emotional damage to the victim and that no proof was presented by the State to support that allegation. The State, on the other hand, posits that the trial court “went through a lengthy and thorough analysis of the factors that weighed against diversion” and that the judge’s decision is supported by the record. Judicial diversion is similar to pretrial diversion. However, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). Judicial diversion allows a defendant who is judged guilty to, “upon successful completion of a diversion program, receive an expungement from all ‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313(b)). “The effect of discharge and dismissal under the diversion statute ‘is to restore the person . . . to the status the person occupied before such arrest or indictment or information.’” Id. (quoting T.C.A. § 40-35-313(b)). A final disposition of the case does not occur until either the 3 The trial court took this statement from the presentence report in which Appellant told an officer during his statement that he was “sorry for not recognizing the anger and stress inside me before it grew into a monster.” -4- defendant successfully completes the diversion program or violates a condition of his release. State v. Teresa Dockery, No. E2001-01493-CCA-R3-CD, 2002 WL 1042187, at *2 (Tenn. Crim. App., at Knoxville, May 23, 2002), perm. app. denied, (Tenn. Nov. 4, 2002); State v. Glenna Kidd, No. 01C01-9808-CR-00344, 1999 WL 298309, at *1 (Tenn. Crim. App., at Nashville, May 13, 1999). Judicial diversion may be ordered only with the consent of a “qualified defendant.” T.C.A. § 40-35-313(a)(1)(A). A qualified defendant is one who: (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought; (b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or Class B felony; and (c) Has not previously been convicted of a felony or a Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i)(a), (b), & (c). Abuse of discretion is the proper standard upon which to review the denial of an application for judicial diversion. State v. Paul David Cable, No. 03C01-9409-CR-00349, 1995 WL 328796, at *2-3 (Tenn. Crim. App., at Knoxville, June 1, 1995). When a defendant contends that the trial court committed error in refusing to grant judicial diversion, we must determine whether the trial court abused its discretion by denying the defendant’s request for judicial diversion. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). In other words, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Id.; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The criteria that the trial court must consider in determining whether a qualified defendant should be granted judicial diversion are similar to those considered by the prosecutor in determining suitability for pretrial diversion and includes the following: “(1) the defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical and mental health; and (6) the deterrence value to the defendant and others.” Parker, 932 S.W.2d at 958; see also Cutshaw, 967 S.W.2d at 343-44. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as of the defendant. See Parker, 932 S.W.2d at 958; Cutshaw, 967 S.W.2d at 344; State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). After hearing the evidence, the trial court concluded that the circumstances of the offense were extreme but noted that Appellant had a non-existent criminal history. The trial court noted Appellant’s willingness to attend treatment and acknowledgment of his problem. However, the trial court recognized that there was a risk “for this type of event to occur again.” The trial court found -5- that Appellant had not shown that he had dealt with his mental health issues, stressing that Appellant’s mental instability led to “extreme violence” against a child, incapable of defending himself. The trial court considered Appellant’s service in the military to be “admirable” but found the need and duty to protect the public from incidents such as this. In other words, the trial court concluded that the need for deterrence was high and that judicial diversion was not an option, in part, due to the fact that Appellant treated the victim with exceptional cruelty during the commission of the offense and abused a position of private trust as one of the caregivers for T.L. The trial court felt that incarceration would depreciate the seriousness of the offense and pointed out the fact that the beating was brutal. Appellant makes an argument that the trial court improperly considered mental and emotional damage to the child where there was no evidence of damage introduced by the State. Thus, Appellant contends, the “court should not have considered this issue since it was not an element of the crime” and there was “no proof” presented by the State. The trial court talked about the mental and emotional damage suffered by the victim as part of the circumstances of the offense. This is one of the criteria the trial court is to use in order to determine whether to grant a qualified defendant judicial diversion. There is no requirement, as Appellant suggests, that the trial court can only consider things that are elements of the offense. We agree that aside from Ms. Martin’s testimony regarding T.L.’s nightmare right after the offense, there is no evidence in the record concerning emotional damage to the child. We also agree that the trial court did not specifically state on the record which factors weighed in favor of diversion and which ones did not. Nevertheless, the court noted that the extreme circumstances of the offense warranted the denial of judicial diversion. Based on the record before us we cannot conclude the trial court abused its discretion in this case. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed. ___________________________________ JERRY L. SMITH, JUDGE -6- 

902 F.2d 1573 Buhr (Karla N.)v.Gomes (William) NO. 89-2190 United States Court of Appeals,Eighth Circuit. JAN 17, 1990 1 Appeal From: D.Neb. 2 AFFIRMED.

1 Mass. App. Ct. 12 (1972) 294 N.E.2d 434 ANDREW PAANANEN vs. WILLARD A. RHODES. Appeals Court of Massachusetts, Plymouth. November 21, 1972. December 29, 1972. Present: ROSE, GOODMAN, & ARMSTRONG, JJ. Charles R. Desmarais for the defendant. Reubin M. Winokur (Lawrence I. Winokur with him) for the plaintiff. GOODMAN, J. In this action of tort the plaintiff, Andrew Paananen, sought to recover under a declaration alleging that on January 16, 1963, he was employed by the defendant to do carpentry work, logging and landscaping work at a girls camp in Hanson, Massachusetts; that he was injured in the course of his employment; that this work had been determined to be hazardous employment by the Commissioner of the Department of Labor and Industries; and that the defendant was not insured under the Workmen's Compensation Act as required by law. The action is based on G.L.c. 152, § 66, as amended through St. 1959, c. 478, under which proof of negligence is not required. See Opinion of the Justices, 309 Mass. 571, 598.[1] The case was submitted to a jury after the defendant's motion for a directed verdict was denied; the jury returned a verdict for the plaintiff. The issue before us is the *14 sufficiency of the evidence. We deal with only one aspect of the case. The plaintiff alleged and had the burden of establishing (Ferris v. Grinnell, 353 Mass. 681, 683; Sullivan v. Quinlivan, 308 Mass. 339) that the Commissioner of Labor and Industries had determined the plaintiff's employment to be hazardous and therefore all "employees therein [were] ... required to be covered...." G.L.c. 152, § 1 (4) (c), as amended through St. 1960, c. 306. For this purpose there was introduced in evidence a publication entitled, "HAZARDOUS EMPLOYMENTS on all types of Construction Projects as determined by the Commissioner of the Department of Labor and Industries under the provisions of Paragraph (d),[2] of Definition (4), of Section 1, of Chapter 152, of the General Laws, as amended by Chapter 680, of the Acts of 1956" (underlining in original). This title is followed by a list which includes (among other occupations) "Landscaper," "Carpenter and Joiner" and indented under the latter classification: "Floor Layer Carpenter," "Shop & Mill Carpenter," and "Wharf & Bridge Carpenter." Each page of the list has a two-line caption: "Construction Projects" and, directly below, "Hazardous Occupations." The document bears a date, January 11, 1957, and a notation that the publication was approved by the State Purchasing Agent. However, all that appears in the bill of exceptions as to the plaintiff's employment on the date when he was injured is his testimony that he was "... working as a landscaper and carpenter, was walking on a steep bank next to a pond where there were some bushes and trees and he was going to get them cleaned up...." He slipped while cutting bushes. There is nothing in the bill of exceptions to indicate that the plaintiff's employment was in any way connected with a construction project as that term is ordinarily used. For this reason the defendant's exceptions must be sustained. We are aware of Fisher v. Ciaramitaro, 345 Mass. 199, *15 201, in which the plaintiff proved the requirement of coverage and retained a verdict in an action under G.L.c. 152, § 66, on the basis of a document dated June 19, 1961, in which the Commissioner of Labor and Industries certified that the occupation of carpenter was on January 11, 1957 (the date on the document introduced in this case), "determined to be hazardous employment," and that such determination had "been in effect since that date and ... [was] still in effect." In that case the plaintiff was a carpenter and was injured while fixing leaks on the roof of a house. The Commissioner's certification seems to have been accepted by both parties in lieu of the regulation which was apparently not in evidence. In this case the publication introduced in evidence does not purport to be the exact determination as made by the Commissioner of Labor and Industries and filed with the Secretary of State as a regulation pursuant to G.L.c. 30A, § 5 (see G.L.c. 30A, § 1 (5)).[3] The regulation itself is not before us, and we generally do not take judicial notice of administrative regulations. Building Inspector of Wayland v. Ellen M. Gifford Sheltering Home Corp. 344 Mass. 281, 285. Finlay v. Eastern Racing Assn., Inc. 308 Mass. 20, 26-27 Passanessi v. C.J. Maney Co. Inc. 340 Mass. 599, 604. But see Gentile, petitioner, 339 Mass. 319; Commonwealth v. Berney, 353 Mass. 571; Commonwealth v. Minicost Car Rental, Inc. 354 Mass. 746. We are particularly reluctant to do so in this case since the defendant has not had an opportunity to litigate the applicability of the regulation itself, the meaning of which "might depend on the precise wording." Passanessi v. C.J. Maney Co. Inc. 340 Mass. 599, 604. In deciding whether in our discretion to order judgment for the defendant or grant a new trial (G.L.c. 231, § 122;[4]*16 Vallavanti v. Armour & Co. 264 Mass. 337, 341-342) we have taken into consideration the history of the litigation and that it is questionable whether the plaintiff proved that his injury was connected with his employment at the Hanson camp. Under all the circumstances, judgment should be entered for the defendant. In view of our decision, it is unnecessary to deal with the defendant's exception to the trial judge's refusal to hear the defendant's motion for a new trial on the ground that the defendant had declined to waive his bill of exceptions. Exceptions sustained. Judgment for the defendant. NOTES [1] The plaintiff's declaration originally entered on January 4, 1965, alleged an injury in Vermont on June 29, 1962. Subsequently on April 22, 1966, the declaration was amended by adding a second count alleging the injury at the Hanson camp. The case was transferred to the Third District Court of Plymouth on March 31, 1967 (see G.L.c. 231, § 102C. as amended through St. 1962, c. 305). There was a finding for the defendant, and the case was retransferred to the Superior Court. Prior to actual trial in the Superior Court, the plaintiff waived the count based on the Vermont injury. [2] Redesignated "c" by St. 1960, c. 306. [3] See 1962 Report of the Attorney General, page 54 (referring to the Commissioner of Labor and Industries, and his duties under G.L.c. 152, § 1, in the Schedule of Agencies subject to the State Administrative Procedure Act). [4] Section 122 applicable by its terms to the Supreme Judicial Court is made applicable to the Appeals Court by G.L.c. 211A, § 5 (inserted by St. 1972, c. 740), and reads as follows: "The appeals court shall be vested with all powers and authority necessary to carry into execution its judgments, decrees, determinations and orders in matters within its jurisdiction according to the rules and principles of common law and the Constitution and laws of the commonwealth, and subject to the appellate jurisdiction, supervision and superintendence of the supreme judicial court." See § 10 granting to the Appeals Court, "... concurrent appellate jurisdiction with the supreme judicial court, to the extent review is otherwise allowable...."

Case: 19-10981 Document: 00515471464 Page: 1 Date Filed: 06/30/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-10981 June 30, 2020 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KELLY M. STAPLETON, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:10-CR-157-1 Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Kelly M. Stapleton has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Stapleton has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous * 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: 19-10981 Document: 00515471464 Page: 2 Date Filed: 06/30/2020 No. 19-10981 issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

351 F.Supp. 543 (1972) Roy WOOD et al., Plaintiffs, v. Frederick Corbet DAVISON, Individually and as President of the University of Georgia, et al., Defendants. Civ. A. No. 17396. United States District Court, N. D. Georgia, Atlanta Division. December 7, 1972. *544 Sandy McCormack, Lowry, Henritze & McCormack, Athens, Ga., for plaintiffs. Arthur K. Bolton, Atty. Gen., H. Andrew Owen, Jr., Asst. Atty. Gen., Atlanta, Ga., for defendants. SIDNEY O. SMITH, Jr., Chief Judge. I. This action was brought following denial of use of University of Georgia facilities for a conference and dance to be sponsored by the Committee on Gay *545 Education.[1] Plaintiffs are students at the University of Georgia and members of the Committee on Gay Education, a homosexual group whose purpose is to provide information about homosexuality. The Defendants are various administrative officials of the University of Georgia, a state-supported educational institution, and members of the Board of Regents of the University System of Georgia. The conference and dance for which facilities were denied were scheduled for November 11, 1972, the complaint and motion for a Temporary Restraining Order were filed on November 9, 1972, and a hearing was held on November 10, 1972. By agreement of the parties, the hearing was made a final hearing on the merits under Fed.R.Civ. P. 65 and an Order was issued restraining the denial of facilities. This opinion will provide final disposition of the cause.[2] The Committee was formed in the school year of 1971-72 and sought recognition as a student organization under then existing procedures that required University "approval" of organizations. On May 10, 1972, the Committee, while still seeking recognition, sought and secured a Temporary Restraining Order from the Superior Court of Clarke County to allow a dance scheduled for that date. During the summer other social events were held by the Committee, all passing without incident. When school opened this fall, University officials instituted a new student organization scheme calling for "registration"[3] rather than the previous "recognition" framework, the Committee duly registered, and on September 28, 1972, began scheduling activities for the Fall Quarter. They requested facilities, which the University makes available on a "priority" basis to registered student organizations,[4] for a regional conference to organize a Southeastern homosexual organization and dance. Nearly a month later campus officials denied the request for the conference and dance in a letter dated October 23, 1972, set forth fully in the margin.[5] Plaintiffs exhausted their administrative remedies *546 by appeal to the Board of Regents, who refused on November 8, 1972, to reverse the decision of the University officials.[6] II. Plaintiffs contend that the Defendants' denial of University facilities is an infringement on their first amendment rights of freedom of speech, assembly and association. The court agrees. Although University administrators once had an almost unrestricted power to deal with students under the theory of in loco parentis, it is now clear that constitutional restraints on authority apply on campuses of state supported eductional institutions with fully as much sanction as public streets and in public parks. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); Wright, The Constitution on the Campus, 22 Vanderbilt L.Rev. 1027 (1969). In Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) the Supreme Court dealt explicitly with this concept stating that it "can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate." Id. at 506, 89 S.Ct. at 736. In addition to protection of "pure" and "symbolic" speech the first amendment protects rights of assembly, De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) and association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L. Ed.2d 1488 (1958); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed. 2d 796 (1957). It is in this context that the right of a student organization to be recognized or to have access to University facilities should be considered. Based upon the first amendment, courts have required officials of institutions of higher education to recognize certain student organizations. University of Southern Mississippi Chapter of MCLU v. University of Southern Mississippi, 452 F.2d 564 (5th Cir. 1971); ACLU of Virginia, Inc. v. Radford College, 315 F.Supp. 893 (W.D.Va.1970); and Associated Students of Sacramento State College v. Butz, Civil No. 200795 (Super.Ct. Sacramento, California, February 15, 1971). (Recognition of homosexual organization.) The Supreme Court has recently addressed the question of student organizations and their right to exist on a college campus. Healey v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In this case the University of Connecticut had denied recognition to a local chapter of the Students for a Democratic Society (SDS). The court found that denial of University recognition affected first amendment rights of the SDS members and held that recognition could be denied only under narrowly limited circumstances. The issue in Healey was recognition whereas the issue in the present case is access to University facilities. However, this distinction does not diminish the applicability and import of Healey to *547 the case at bar. The Court there determined that denial of facilities was the primary means by which the organization members' freedom of expression was infringed as evidenced in the following statement: "The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes." Id. at 189, 92 S.Ct. at 2346. At this juncture it should be clearly understood that this ruling is not designed to and it should not be interpreted as limiting the University's control over its campus and facilities. A college or university has the right to adopt and enforce reasonable, non-discriminatory rules and regulations governing the utilization of its facilities. Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970); Esteban v. Central Missouri State College, 415 F.2d 1077 at 1089 (8th Cir. 1969) cert. den. 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548. The control exercised by the administrative officials, though, must conform to the Constitution and laws of the United States. Such conformity dictates equal application of reasonable and unambiguous regulations.[7] Thus, the issue presented to this Court is upon what grounds may University officials base a denial of University facilities to an organization which has complied with all the applicable University regulations. This Court has been able to glean from the cases only three circumstances under which university facilities may be denied to a registered campus organization: (1) refusal to abide by reasonable regulations, (2) a demonstrated danger of violence or disruption at the meeting, and (3) that the meeting itself would violate either state or federal law. See Blasi, Prior Restraints on Demonstrations, 68 Mich.L.Rev. 1482 (1970). (1) The first basis for withholding facilities was enunciated in Healey. The Supreme Court determined that a university may impose certain "reasonable standards respecting conduct" on an organization's activities, and recognition could be denied if that organization refused to abide by such standards. Healey, 408 U.S. at 193, 92 S.Ct. 2338. In the present case, the University requires any organization applying for campus facilities to sign a statement that it will comply with all University rules and regulations. The Committee has agreed to do so, and the University has not established that the Committee will do otherwise. (2) The second ground upon which denial of facilities can be based has received judicial condonation under several names. For instance, the Court in Tinker stated that actions are prohibitable which "materially and substantially disrupt the work and discipline of the school." 393 U.S. at 513, 89 S.Ct. at 740. However, there must be substantial evidence to warrant the conclusion that violence or disruption will erupt if a particular activity is allowed to take place on campus. In short, there must be objectively demonstrated a "clear and present danger" of violence before refusal can be bottomed thereon. See generally Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (concurring opinion); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L. Ed.2d 430 (1969). The Court in Healey found that there was insufficient evidence to indicate that the SDS would be a disruptive influence on campus. The *548 only indication of impending violence was the unsubstantiated fear of University officials which "constituted little more than the sort of `undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.' [citing Tinker]" Id., 408 U.S. at 191, 92 S.Ct. at 2351. In the case before us, there likewise has been presented no evidence which indicates violence and disruption might evolve from the activities proposed by the Committee. To the contrary, two dances such as requested here have been sponsored previously with no violence accompanying them in any way. (3) The third and final justification that the University might offer for denial of facilities is that the meeting itself might be unlawful. Sellers v. Regents of University of California, 432 F.2d 493 (9th Cir. 1970). If a meeting did contemplate criminal activity, then the University could deny facilities. For example, a group organized to advocate legalization of drugs could meet to discuss legitimate means of repealing drug laws, but it could not conduct a "smoke in" or "shoot in." Again the University requires a statement from the sponsoring organization that it will comply with all federal and State laws, and the Committee signed such a statement. The University stipulated that it had no evidence that the meeting for which facilities had been requested by the Committee would result in any activity which in itself would be illegal under existing state or federal law. The invoking of any justification for denial amounts to a prior restraint on first amendment freedoms that places a "heavy burden" on the University to justify denial. Healey, 408 U.S. at 184, 92 S.Ct. 2338, 33 L.Ed. 2d 266. Should the University choose to deny facilities on these grounds or the basis that applicable rules and regulations have not been followed, it must inform the requesting organization of its decision within a reasonable time prior to the date planned for the activity. It should also provide the organization with the grounds upon which the decision was based. If the irregularity can be cured, the organization should be so informed and provided an opportunity to eliminate the basis of the denial. There should also be provided some framework within which the organization might be heard concerning the grounds for denial. This need not be a constitutional full-blown adversary proceeding with an elaborate appellate process, but only some reasonable opportunity for the organization to meet the University's contentions. "Notice and an opportunity to be heard" should suffice in such an instance. Cf. Dixon v. State Board of Education, 294 F.2d 150 (5th Cir. 1961). Of course, if after approval, but during the activity or immediately prior to the activity, it becomes apparent that one of the above bases for denial will transpire, the University need not sit idly by while trying to prepare a notice to the organization denying access to the facilities. The University can and should take immediate summary steps to curtail violence and disruption, criminal activity, or conduct proscribed by applicable University rules and regulations. Turning briefly to the reasons for denial presented by the University in the present case, it is apparent that these defendants acted out of a desire to preserve the integrity of the University as they know it. The president testified that he considered such activities as proposed by the Committee to be not within the best interests of the University community. It is of course the concern of every college official to maintain an academic environment on his campus that is conducive to intellectual pursuits. However, these officials no longer make decisions that go unnoticed by citizens outside the college community or that go unchallenged by those within that community. University presidents have the unenviable task of trying to maintain a *549 precarious balance between the rights of members of the academic community and the wishes of the taxpayers and alumni who support that community. Nevertheless, it is not the prerogative of college officials to impose their own preconceived notions and ideals on the campus by choosing among proposed organizations, providing access to some and denying a forum to those with which they do not agree. As noted by the Supreme Court in Tinker: "In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." 393 U.S. at 509, 89 S.Ct. at 738, 21 L.Ed.2d 731. The court in Healey specifically rejected the notion that recognition could be denied by campus officials because an organization's philosophies are "counter to the official policy of the college." 408 U.S. 169, 187, 92 S.Ct. 2338, 2349, 33 L. Ed.2d 266 (1972).[8] Since none of the reasons advanced by Defendants for denial of facilities to the Committee are constitutionally sufficient, plaintiffs are entitled to the relief prayed. This memorandum opinion is filed in support of the injunction already entered. It is so ordered. NOTES [1] The complaint is based on 42 U.S.C. §§ 1983, 1985 (1970). This court has jurisdiction under 28 U.S.C. § 1343(3) (1970). [2] Plaintiffs sought actual and punitive damages of over a million dollars, but these damage claims have been waived by plaintiffs. [3] Rules and Regulations of the University of Georgia regarding Student Organizations require that organizations register annually and submit to the University the following information: (1) The name of the organization. (2) Name, address and phone number of the chief officer. (3) Name, address and phone number of faculty advisor. (4) A list of not more than three student officers authorized to reserve space, encumber funds or request services. (5) Statement of purpose of the organization. (6) Schedule of meetings and programs. (7) Requirements of membership. The Rules and Regulations further provide that "registration or any of the privileges accompanying registration may be denied any group only as a penalty assessed by the student judiciary." [4] University of Georgia "Regulations Regarding Authorized Use of University Facilities" provides that: "3. University facilities shall be allotted on a `first come' basis as long as there are facilities available." [5] "Dear Mr. Wood: The requests of the Committee on Gay Education to use facilities of the University on the date of November 11, 1972, are denied. The University recognizes the rights of individual students to express opinions and assemble peaceably. The University's primary mission is education and strives for this in the areas of teaching and learning, research, and service. Activities which dilute this effort or do not seem to promote the general well being of the University and its personnel must be considered carefully. The particular activities for which facilities are requested are not encompassed in the purpose of the University and introduce an element which is believed to be not in the best interest of the University. The activities seem to go beyond and conflict with the educational purpose in apparently promoting and encouraging acts contrary to state law. Sincerely, William D. Powell, Director, Student Activities/University Union." [6] The Board of Regents undertook to resolve this issue when it was placed before it in the form of an appeal. According to the normal policies of the Board, a committee was appointed to hear the appeal which hearing was scheduled for November 24, 1972. Of course, since this was after the proposed dance any resolution of the issue would be too late, and it was necessary for plaintiffs to seek relief in this court. [7] The University of Georgia has submitted to the court a pamphlet containing some of the regulations regarding the registration of student organizations and the procedures by which an organization can utilize campus facilities. Although incomplete at this time, the regulations set forth in this pamphlet appear to be reasonable and constitute a foundation upon which to structure more complete regulations. [8] President Davison also expressed some concern over the fact that the plaintiffs hoped to have conferees from other schools in attendance and there is likewise legitimate concern over non-student "outsiders". There is evidence in the record showing that other regional and national conferences have been conducted on the University campus with speakers and conferees from throughout the United States. Should the University desire in the future to restrict its facilities only for the use of students on its campus or students from the state of Georgia or elsewhere, rules and regulations to this effect could be adopted so long as they were uniformly applied to all groups. Under such a set of regulations, however, the University could not allow any non-students on campus for conferences and might thereby defeat the interests of the state in having continuing adult education. The choice is simply between barring all non-students from campus meetings on the one hand and allowing student sponsored groups with outside participants on the other hand; or restricting some facilities to one purpose or another.

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________ No. 92-2433 UNITED STATES, Plaintiff, Appellee, v. HERMAN L. BREWTON, Defendant, Appellant. __________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Andrew A. Caffrey, Senior U.S. District Judge] __________________________ ___________________ Before Torruella, Cyr and Boudin, Circuit Judges. ______________ ___________________ Herman L. Brewton on brief pro se. _________________ A. John Pappalardo, United States Attorney, and Paul V. ____________________ _______ Kelly, Assistant U.S. Attorney, on brief for appellee. _____ __________________ May 11, 1993 __________________ Per Curiam. Appellant appeals from the denial of his ___________ motion to correct sentence. He contends that his sentence for unlawfully possessing a firearm after having been convicted of a felony (hereafter, felon in possession), 18 U.S.C. 922(g), should not have been enhanced under 18 U.S.C. 924(e) because the offense of conviction (felon in possession) is not a "violent felony." We disagree with the appellant's argument and affirm the district court's November 23, 1992 order. We start with the words of the relevant statutes. Section 922(g) of title 18 states as follows: (g) It shall be unlawful for any person - (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; . . . to . . . possess . . . any firearm . . .. Appellant does not deny that he possessed a firearm in violation of 18 U.S.C. 922(g) after having been convicted of a felony. Section 924 of title 18 sets forth the penalties for various crimes, including section 922(g) felon in possession offenses. Section 924(e) reads as follows: (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person -2- shall be . . . imprisoned not less than fifteen years . . .. Appellant did not dispute below that he had at least "three previous convictions . . . for a violent felony or a serious drug offense." He argued instead that section 924(e)'s 15 year mandatory minimum sentence should not be imposed on him because the offense of conviction -- felon in possession -- was not itself a violent felony or serious drug offense. The plain language of section 924(e) does not require that the offense of conviction itself be a violent felony or a serious drug offense for section 924(e)'s mandatory 15 year prison term to apply. Rather, it says that any defendant who has at least three previous violent felony or serious drug ________ offense convictions when he unlawfully possesses a firearm in violation of section 922(g) must be sentenced to at least fifteen years in prison. Bypassing section 924(e)'s plain language, appellant reads United States v. Doe, 960 F.2d 221 (1st Cir. 1992), to _____________ ___ say that the offense of conviction itself must be a violent felony before section 924(e)'s 15 year term applies. Appellant's reading is wrong. In Doe, the defendant -- like ___ appellant -- had been convicted of being a felon in possession in violation of 18 U.S.C. 922(g). In addressing whether Doe was subject to 924(e)'s mandatory minimum 15 ___ year prison term, we determined that a prior felon in _____ possession conviction could not properly be counted as one of -3- the "three previous convictions . . . for a violent felony" within the meaning of 18 U.S.C. 924(e) because felon in possession was not necessarily a violent crime. Doe in no ___ manner requires the offense of conviction itself to be a violent crime. Next, appellant contends that the district court erred in holding that appellant was a career criminal under U.S.S.G. 4B1.1 because 4B1.1 specifically does not apply if the offense of conviction (felon in possession) is not a violent felony and, under both Doe and a 1991 amendment to ___ U.S.S.G. 4B1.1, application note 2, felon in possession is not a violent felony. While appellant correctly reads 4B1.1, appellant misunderstands the record, for there is no indication the district court applied 4B1.1 to appellant. Appellant was not sentenced pursuant to U.S.S.G. 4B1.1. Rather, the presentence report, to which appellant filed no objection, calculated appellant's sentence under U.S.S.G. 2K2.1(a)(2)(1987), the guideline which applied to 18 U.S.C. 922(g) offenses, and U.S.S.G. 5G1.1(b) (statutory minimum sentence imposed when it is greater than the maximum of the applicable guideline range). Appellant received the statutory minimum sentence, 15 years. 18 U.S.C. 924(e). Consequently, appellant's argument is meritless. -4- We have addressed the arguments appellant raised below in his Rule 35 motion and papers, and we find them without merit. We do not address new matter (e.g. whether appellant's predicate offenses constituted violent felonies) raised for the first time in appellant's appellate brief. Affirmed. ________ -5-

156 F.Supp. 652 (1957) Robert Lee PINION, Libellant, v. MISSISSIPPI SHIPPING COMPANY, Inc., Respondent. No. 2990 Admiralty. United States District Court E. D. Louisiana, New Orleans Division. October 31, 1957. *653 *654 Raymond H. Kierr, Samuel C. Gainsburgh, New Orleans, La., for libellant. Terriberry, Young, Rault & Carroll, William E. Wright, New Orleans, La., for Mississippi Shipping Co., Inc. Bienvenu & Culver, P. A. Bienvenu, New Orleans, La., for Charles Ferran & Co., Inc. J. SKELLY WRIGHT, District Judge. Alleging unseaworthiness, libellant, an employee of an independent ship repair contractor, seeks to recover from the respondent ship owner for injuries sustained by him in a fall from a scaffold while repairing a salt water pipeline aboard the SS Del Mar. Respondent makes the defense of laches and, alternatively, denies unseaworthiness as well as the application of the doctrine of liability without fault as to a ship repair man. Under Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the respondent also impleads the independent contractor, Charles Ferran & Co., Inc., libellant's employer, and makes claim over against it for any award which may be made to libellant Pinion. The repair work in suit was performed pursuant to a written contract between respondent and Ferran, under which contract Ferran agreed to make various general home port repairs to the SS Del Mar. In particular, the contract required Ferran to "Furnish the necessary labor, material and/or equipment" to carry out the work of renewing "approx. 10 ft. of 1" pipe and fittings in salt water supply line to lavatories in Stateroom A-9." This line extended vertically from the lavatory connection in the stateroom through the deck thereof into the ship's baggage room below. After dropping vertically from the overhead into the baggage room a short distance, the line then angled off horizontally from a 90° elbow for a distance of one foot, and thence again horizontally from a second 90° elbow a distance of approximately two feet where it was connected with a 2-inch pipe line via a reducer. The horizontal pipe and fittings were slightly over ten feet above the deck of the baggage room. The only scaffolding equipment provided to reach the pipe was a three-foot ladder, used to place baggage in the high baggage racks, and a wooden plank eight inches wide. Pinion and his helper made a scaffold from these two pieces of equipment by placing one end of the plank on a shelf in the baggage room and the other end on top of the three-foot ladder. At the time of his injury, Pinion had cut the one-inch pipe near the two-inch reducer and, working with his hands above his head to reach the pipe, was in the act of exerting pressure with a wrench applied to the horizontal pipe between the two elbows in an effort to unscrew it. While thus exerting pressure, the vertical pipe which extended through the overhead broke immediately above the elbow, causing Pinion to lose his balance on the narrow eight-inch scaffold and fall to the deck, striking his back on a baggage rack. *655 Citing Seas Shipping Co., Inc., v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, libellant maintains that the vessel was unseaworthy in that the pipe on which he was working was wasted by corrosion to such an extent that it broke under pressure from his wrench. He also alleges that he was required to use scaffolding provided by the ship which was inadequate in size, dimension and stability, that the scaffolding rendered his working conditions unsafe and, therefore, the vessel unseaworthy. Respondent ship owner shows that the libel in suit was not filed until one year and seventeen days after Pinion's accident. Applying the Louisiana one-year statute of limitations[1] by analogy, respondent maintains that Pinion's claim is barred by laches. In the alternative, respondent argues that its vessel may not be deemed unseaworthy because of a defect in the pipe which Pinion was sent aboard to remove. Nor is the vessel unseaworthy, respondent says, because of the allegedly inadequate scaffolding for the simple reason that under the contract with Pinion's employer, Ferran was required to furnish equipment necessary to perform the repairs. Respondent also makes the point that Pinion was not a seaman or a longshoreman and, consequently, the doctrine of liability without fault for unseaworthiness has no application in the premises. The defense of laches is without merit. While it is true that a state statute of limitations may be used as a guide in admiralty, it is not to be applied mechanically. Where it is shown that the delay in filing the libel was excusable and the respondent not prejudiced by the delay, the defense of laches is not successfully made. Gardner v. Panama Railroad Co., 342 U.S. 29, 72 S.Ct. 12, 96 L. Ed. 31. Here the libel was filed just seventeen days after one year had run. The shortness of the delay itself indicates quite clearly that no prejudice could have resulted therefrom. Possibly the best evidence that no prejudice resulted from the delay is the competent and comprehensive manner in which respondent's case was presented. There is no indication whatever that respondent's defense was in any way impaired by the delay in filing the libel. Nor was the delay in filing the libel the result of inexcusable neglect. Ferran, Pinion's employer, through its insurer, paid compensation to Pinion for fifty-two weeks under the Longshoremen's and Harbor Workers' Compensation Act.[2] Immediately the year had run, Pinion's compensation was stopped, Ferran and its insurer apparently thinking that with the Louisiana statute of limitations of one year, no third-party action could successfully be brought against the ship owner and, consequently, no claim over could be made by the ship owner against Ferran. Instead of cooperating with its employee in bringing and prosecuting third-party action, as is contemplated by the Longshoremen's and Harbor Workers' Compensation Act,[3] Ferran sought to keep Pinion satisfied by compensation until the danger of the third-party action was past. Under the circumstances, the short delay in bringing the libel did not amount to inexcusable neglect on the part of Pinion. On the merits, this case involves the interplay of doctrines recently announced by the Supreme Court concerning the relationship of ship owners, independent maritime contractors and their employees. In Seas Shipping Co., Inc., v. Sieracki, supra, the warranty of seaworthiness, announced as to seamen in Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and many other cases,[4] was extended to include a longshoreman. In Pope & Talbot, *656 Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, the warranty was extended to include an employee of an independent ship repair company. On the theory of implied indemnity arising out of breach of contract, Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., supra, recognized the claim over against the independent stevedore or ship repair employer where an employee of the independent contractor has recovered from the ship owner for injuries received by him and caused by unseaworthiness of the vessel created by the independent contractor. Applying these principles to the contentions of libellant, Pinion, the charge of unseaworthiness in the vessel because of the defect in the pipe must be deemed unfounded. As contended by Pinion, Sieracki, supra, and Hawn, supra, do teach the doctrine of liability without fault based on the warranty of seaworthiness which, applied to the law of the sea, means that unseaworthiness in the vessel, indiscernible even by reasonable inspection, nevertheless renders the vessel liable for personal injuries to workmen resulting therefrom. The non-delegable duty of the ship owner is to furnish a reasonably seaworthy vessel and no amount of due care can absolve him of that legal responsibility. Socony-Vacuum Oil Co. v. Smith, supra; The Arizona v. Anelich, supra; The Osceola, supra. Reasonably seaworthy, however, is a relative term. It does not mean that the vessel must be perfect in all respects at all times. It does mean that the vessel must be reasonably fit to perform the job at hand. Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 75 S. Ct. 382, 99 L.Ed. 354. Although the warranty of seaworthiness continues while the vessel is alongside the dock in a safe harbor,[5] what may be unseaworthiness to a seaman on the high seas may not be to a ship repair man called aboard the vessel in port to repair or to replace part of her equipment. Bruszewski v. Isthmian S. S. Co., 3 Cir., 163 F.2d 720; Byars v. Moore-McCormack Lines, 2 Cir., 155 F.2d 587. Here libellant, a ship repair man, was aboard the vessel to replace pipe which was wasting away under the corrosive influence of salt water. He knew the pipe had outlived its usefulness, hence its replacement. Under these circumstances, the ship owner did not warrant the seaworthiness of the pipe, or of the vessel in respect to the pipe. Bruszewski v. Isthmian S. S. Co., supra; Byars v. Moore-McCormack Lines, supra. Quite the converse. By paying Pinion's employer to replace it, the ship owner in effect warranted that the pipe was unseaworthy, that it should not be relied on, that it was dangerous. Under these circumstances, it would be absurd to hold that the vessel herself was unseaworthy and that her owner is liable in damages because of defective pipe which libellant was brought aboard to replace. Libellant, however, is on much firmer ground with respect to his charge of unseaworthiness by reason of the scaffolding he was required to use in effecting the repairs. An eight-inch board suspended in air is hardly a safe place from which to work, especially where that work includes reaching above one's head and applying pressure on a wrench in the hope of unscrewing, rather than breaking, rusted pipe. It is difficult enough to balance oneself on an eight-inch plank without also being required to perform the arduous work therefrom which Pinion was required to perform. Pinion's fall from that scaffolding when the pipe broke was a direct result of its inadequacy. It unquestionably was unsafe equipment with which to work. As such, it rendered the vessel unseaworthy and her owner liable in damages. Mahnich v. Southern Steamship Co., supra. *657 Respondent's suggestion that the eight-inch plank which formed part of the scaffolding may have been brought aboard the vessel by Ferran cannot save the ship owner from liability for failure to furnish a seaworthy vessel. Whoever furnished the scaffolding, it was still the nondelegable duty of the ship owner to furnish Pinion adequate equipment and a safe place to work. Alaska Steamship Co., Inc. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L.Ed. 798. The fact that Pinion was injured as a result of the unseaworthy equipment makes the ship owner liable for his damages, irrespective of fault. Alaska Steamship Co., Inc. v. Petterson, supra; Pope & Talbot, Inc., v. Hawn, supra; Seas Shipping Co., Inc., v. Sieracki, supra; Mahnich v. Southern Steamship Co., supra. Respondent also suggests that if the scaffolding was inadequate, Pinion was in the best position to make that appraisal. But a person entitled to the warranty of seaworthiness does not assume the risk of unseaworthy equipment. In Mahnich v. Southern Steamship Co., supra [321 U.S. 96, 64 S.Ct. 459] where claim of unseaworthiness was also based on an unseaworthy scaffold, the Court said: "Whether petitioner knew of the defective condition of the rope does not appear, but in any case the seaman, in the performance of his duties, is not deemed to assume the risk of unseaworthy appliances." And in Palermo v. Luckenbach Steamship Co., 78 S.Ct. 1, the Supreme Court reversed a judgment of the Second Circuit, 246 F.2d 557, which denied recovery to a longshoreman who was injured when he, knowing a safe alternate passageway was available, elected to return to his work via a ship passageway he had reason to believe was unsafe. Respondent also denies the warranty of seaworthiness to ship repair workers such as Pinion. It admits that the Supreme Court in Pope & Talbot, Inc., v. Hawn, supra, applied the warranty to Hawn, a ship repair worker, but it seeks to distinguish that case on its facts by suggesting that Hawn, at the time of his injury by falling through an open hatch, was aboard to repair the vessel's grain loading equipment. Since grain loading equipment has something to do with stevedoring work, which the Supreme Court in Sieracki, supra, in applying the warranty of seaworthiness to a longshoreman, said was historically performed by seamen, it would equate the work of Hawn to the work of a longshoreman and thus distinguish it from the replacement of pipe leading to a lavatory. It argues, in effect, that the warranty of seaworthiness was applied to Hawn because at the time of his injury he was performing work traditionally performed by a seaman and that here Pinion was not. The short answer to this argument is that the SS Del Mar herself regularly carries a plumber-machinist as a member of her crew. And a plumber-machinist is precisely the type of seaman qualified to repair or replace short lengths of one-inch pipe. If the warranty of seaworthiness applies to landsmen aboard vessel performing work historically performed by seamen, it should certainly be applied to landsmen aboard performing work currently performed by seamen In its claim over against Ferran, respondent points to the contract between the parties which required Ferran to "Furnish the necessary labor, material and/or equipment" to carry out the repair work on the SS Del Mar. It argues that if it is held liable herein by reason of Ferran's failure to provide proper scaffolding equipment, then Ferran is obligated to reimburse it for damages caused by the independent contractor's breach of its contract. Respondent is supported in this contention by Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., supra, which held that even in the absence of an express agreement of indemnity, the contractor was obligated to reimburse the ship owner for damages caused by the contractor's *658 breach of contract and that Section 5[6] of the Longshoremen's and Harbor Workers' Compensation Act does not bar this relief. On the authority of that case, therefore, this court finds respondent's claim over against Ferran must be recognized. Decrees accordingly. NOTES [1] LSA-C.C. art. 3536. [2] 33 U.S.C.A. § 901 et seq. [3] 33 U.S.C.A. § 933. [4] Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075; Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; The H. A. Scandrett, 2 Cir., 87 F.2d 708; cf. The Edwin I. Morrison, 153 U.S. 199, 14 S.Ct. 823, 38 L.Ed. 688. [5] Seas Shipping Co., Inc., v. Sieracki, supra. [6] 33 U.S.C.A. § 905.

432 F.Supp. 10 (1976) McLOUTH STEEL CORPORATION v. JEWELL COAL AND COKE COMPANY, INC., et al. Civ. No. 3-76-91. United States District Court, E. D. Tennessee, N. D. June 14, 1976. *11 E. H. Rayson, Franklin J. McVeigh, Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, Tenn., Dickinson, Wright, McKean, Cudlip & Moon, W. Gerald Warren, Douglas D. Roche, Detroit, Mich., for plaintiff. Sam F. Fowler, Jr., Robert S. Young, Knoxville, Tenn., for defendants. MEMORANDUM ROBERT L. TAYLOR, District Judge. This is an action by a minority shareholder, McLouth Steel Corp., to compel the payment of dividends by the two defendant corporations, Jewell Coal and Coke Company, Inc. and Jewell Smokeless Coal Corporation, and the directors of those corporations. Before the Court is defendants' motion to transfer the case to Abingdon, Virginia pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides as follows: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." (emphasis added) The threshold issue in this case is whether the Western District of Virginia is a district where plaintiff's action "might have been brought." The courts are in agreement that such a district is one where: (1) the proposed transferee district has subject matter jurisdiction, (2) the defendants are amenable to service of process, and (3) venue is proper. 1 Moore's Federal Practice ¶ 0.145[6.-1]. These three factors will be examined seriatim. Subject Matter Jurisdiction The Western District of Virginia would have subject matter jurisdiction of this action on the basis of diversity of citizenship. For diversity purposes, plaintiff is a citizen of Michigan because it is incorporated in Michigan and has its principal place of business there. 28 U.S.C. § 1332(c). The defendant corporations are citizens of Virginia and the individual defendants are citizens of Tennessee. Therefore, complete diversity of citizenship exists. *12 Personal Jurisdiction The Virginia Legislature has enacted a long arm statute which has been interpreted by the Supreme Court of Virginia as reaching as far as is permissible under the Fourteenth Amendment of the United States Constitution. Carmichael v. Snyder, 209 Va. 451, 164 S.E.2d 703 (1968). There is no question that the corporate defendants are amenable to process in Virginia because they are incorporated in Virginia and do business there. The individual defendants are citizens of Tennessee and work in their capacities as directors at the corporate executive offices in Knoxville. As directors of Virginia corporations, the individual defendants have had not only "minimum," but significant contacts with the State of Virginia. They control mining and manufacturing operations which are carried out primarily in Virginia and hold their offices as directors by virtue of Virginia corporate charters. For these reasons, they must be considered to be "doing business" in Virginia for the purposes of Virginia's long arm statute. Such a construction is consistent with the Due Process Clause of the Fourteenth Amendment. Cf. Wagenberg v. Charleston Wood Products, Inc., 122 F.Supp. 745 (E.D.S.C.1954). Venue The general venue statute, 28 U.S.C. § 1391(a), provides as follows: "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." There can be no dispute that the Court's power to transfer the case at bar is limited to transferring it to a district where the case might have been brought originally. This is to say that a transfer cannot be made to a court where venue would have been improper had the suit been originally filed in the proposed transferee court. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Glazer v. Colonial Village Corp., 232 F.Supp. 892 (E.D. Tenn.1964). It is settled that whether an action "might have been brought" in the proposed transferee court must be decided with reference to the federal venue statutes. Annot., 7 A.L.R. Fed. 9, § 20[c] (1971) and cases cited therein. Defendants contend that venue is proper in the Western District of Virginia because that is the district "in which the claim arose." For the reasons stated below, we cannot agree. The gravamen of the complaint made herein is that the defendant corporate directors in failing to declare dividends have acted arbitrarily and unreasonably and that such action constitutes a breach of trust. Complaint, 8. The members of the board of directors of the defendant corporation, or a majority thereof, are indispensable parties to this litigation. The proof in the original action will necessarily center around whether the directors have acted in good faith and have exercised sound business discretion in failing to declare dividends. 11 Fletcher Cyc. Corp. (Perm.Ed.), §§ 5325-26 (1971). Indeed, the action is closely akin to an action for fraud or breach of trust against the directors. Id. Thus, it is readily apparent that the proof will be focused on the actions or inactions of the individual defendants with regard to their alleged failure to declare reasonable and proper dividends. It is not disputed that these individuals reside in the Eastern District of Tennessee, nor is it disputed that the corporate decision-making takes place primarily in Knoxville — the situs of the executive and sales offices of the defendant corporations. It is of little moment that all the operating personnel and facilities of the defendant corporations are located in Virginia. The claim asserted does not arise out of corporate operations in Virginia but rather out of decisions made by the directors in Knoxville. See Altman v. Central of Georgia Railway, 124 U.S.App.D.C. 155, 363 F.2d 284, 285-86, cert. den., 385 U.S. 920, 87 S.Ct. 231, 17 L.Ed.2d 144 (1966). *13 Defendants, through their Michigan counsel, urged the following on the district court in Detroit in the brief in support of their alternative motion to transfer the case to this Court: "It is clear from the nature of this action that plaintiff's witnesses will not be its own employees nor will its exhibits consist of its own documents. Rather, it will be expected to use the testimony of the individual defendants and the records of the corporate defendants, all of which are in Knoxville. * * * * * * ". . . [T]he individual defendants reside in Knoxville and therefore keep their records there. * * * * * * "Here, the conduct complained of took place in Knoxville at Board of Directors Meetings." Brief of Michigan Counsel for Defendants at 2, 5, 7. (emphasis added)[1] Even if the Court were to utilize the liberal "weight of contacts" approach to determine where the claim arose which has been espoused by some courts dealing with antitrust cases, e. g., California Clippers, Inc. v. United States S. F. Ass'n., 314 F.Supp. 1057, 1063 (N.D.Cal.1970); Philadelphia Housing Authority v. American Radiator & S. San. Corp., 291 F.Supp. 252, 260-61 (E.D.Pa.1968), this approach favors laying venue in the Eastern District of Tennessee. The overt acts of refusing to declare dividends occurred in Knoxville at meetings of the board of directors of the defendant corporations. The injurious effects, if any, of these overt acts were felt most directly in Michigan by plaintiff and not in Virginia. Finally, it should be noted that defendant cannot waive venue by moving to transfer the case under 28 U.S.C. § 1404(a). Johnson & Johnson v. Picard, 282 F.2d 386, 388 (6th Cir. 1960); Annot., 7 A.L.R. Fed. 9, § 22[b] (1971). For the reasons stated we conclude that the claim in the present case can only be considered to have arisen in the Eastern District of Tennessee and not in Virginia. Venue, therefore, would not have been proper in Virginia on the ground that the claim arose there. Although the parties have not raised the question, the Court has considered whether venue lies in the Western District of Virginia on the theory that plaintiff is a resident of that District for the purposes of venue. A sound argument can be made that plaintiff is a resident of the Western District of Virginia by virtue of 28 U.S.C. § 1391(c), which provides as follows: "A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." The Courts are split as to whether this section defines the residence of both corporate plaintiffs and defendants, or whether, by reason of the words "may be sued," it only defines the residence of corporate defendants. Standing alone, the first clause of § 1391(c), "a corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business . . ." appears to apply solely to corporate defendants. A number of courts, however, have concluded that the second clause of § 1391(c), "and such judicial district shall be regarded as the residence of such corporation for venue purposes," provides a blanket definition of residence for all corporate parties. Professor Wright has aptly summarized the reasoning behind each view of § 1391(c): *14 "On its face it would appear that the special definition of corporate residence is applicable to a corporate plaintiff, since § 1391(c) provides that `such judicial district shall be regarded as the residence of such corporation for venue purposes.' Although both the courts and the commentators were divided on this point, a majority of the early cases reached this result. They reasoned that the quoted language was a nullity unless it applied to corporate plaintiffs, since the first half of the section fully covers the cases of the corporate defendant. Further it seemed anomalous to treat a corporate defendant differently from a corporate plaintiff. The view to the contrary was that the Reviser of the Judicial Code did not intend to broaden venue for corporate plaintiffs. . . . "In 1961, however, the Fourth Circuit held § 1391(c) inapplicable to the corporate plaintiff, and later cases have tended to follow this decision, as the only reasoned appellate decision in point. The Fourth Circuit rejected the argument that the second clause is a redundancy if not applicable to the corporate plaintiff. It said that this language was needed to assure [among other things] that corporations of different states may be joined as defendants in a district of common operation. . . . "The matter might well have been settled along the lines of the Fourth Circuit decision, but in 1967 the Supreme Court expressly refused to pass on the question, which it called `a difficult one, with far-reaching effects . . . .'"[2] C. Wright, Law of Federal Courts § 42, at 155-56 (1971) (footnotes omitted). By the following language, Professor Wright has indicated that he favors a broad reading of § 1391(c) so as to include corporate plaintiffs: "Since the Supreme Court has left the matter open, other courts must examine the question independently, and there is still hope that it will ultimately be held that § 1391(c) means what it says, thus avoiding treating legislative language as meaningless. The availability of transfer under 28 U.S.C.A. § 1404(a) will prevent any abuse of this liberalized venue provision." Id. at 156. Professor Moore has also recognized the conflicting views on this issue: "The cases are in conflict as to whether § 1391(c) applies to a corporate plaintiff, or is limited to a corporate defendant. Some courts which have considered the subject have held § 1391(c) equally applicable to corporate plaintiffs on the theory that half the statute is superfluous without such an interpretation." 1 Moore's Federal Practice ¶ 0.142[5.-1-3], at 1414 (1974). He has made it clear that he prefers a limited reading of § 1391(c) so as to limit its application to corporate defendants: "While we are sympathetic with the result reached by the courts that hold § 1391(c) applies to a corporate plaintiff, as well as to a corporate defendant, we do not believe they have correctly construed the provision." Id. at 1415. The cases holding that § 1391(c) defines the residence of corporate plaintiffs as well as defendants are legion. See, e. g., Strick Corp. v. Cravens Homalloy (Sheffield) Ltd., 352 F.Supp. 844 (E.D.Pa.1972); Hadden v. Barrow, Wade, Guthrie & Co., 105 F.Supp. 530 (N.D.Ohio 1952); Freiday v. Cowdin, 83 F.Supp. 516 (S.D.N.Y.1949). See Note, Federal Venue and the Corporate Plaintiff, 37 Ind.L.J. 363 (1962); 1 Moore's Federal Practice ¶ 0.142[5.-1-3] nn. 50, 55c and numerous other cases cited therein. An equally significant number of courts have held to the contrary. See e. g., Manchester Modes, Inc. v. Schuman, 426 F.2d 629 (2d Cir. 1970); Carter-Beveridge Drilling Co. v. Hughes, 323 F.2d 417 (5th Cir. 1963); Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co., 272 F.Supp. 826 (W.D.Tenn.1965), aff'd on other grounds 382 F.2d 830 (6th Cir. 1968). See 1 Moore's *15 Federal Practice ¶ 0.142[5.-1-3] n. 55b and numerous other cases cited therein. The Fourth Circuit has adopted the view that § 1391(c) applies only to corporate defendants. Robert E. Lee & Co. v. Veach, 301 F.2d 434 (4th Cir. 1961), cert. den., 371 U.S. 813, 83 S.Ct. 23, 9 L.Ed.2d 55 (1962). Although the Fourth Circuit's decisions are not binding on this Court, they are binding on the proposed transferee court in the Western District of Virginia. Thus, if this case were originally filed in that District, the Court would have been required to dismiss it had venue been challenged. For this reason, we are constrained to hold that venue is improper in the Western District of Virginia on the theory that plaintiff, by virtue of its doing business there, is a resident of that District. Finally, defendants rely on the unreported decision of the Tennessee Supreme Court in Brown v. Greer, No. 146-Knox (Feb. 19, 1974), for the proposition that the Court should decline to exercise its jurisdiction because this case involves the internal affairs of a foreign corporation. An examination of Greer reveals that it is in accord with the following approach delineated by the United States Supreme Court: "There is no rule of law, moreover, which requires dismissal of a suitor from the forum on a mere showing that the trial will involve issues which relate to the internal affairs of a foreign corporation. That is one, but only one, factor which may show convenience of parties or witnesses, the appropriateness of a trial in a forum familiar with the law of the corporation's domicile, and the enforceability of the remedy if one be granted." Koster v. Lumbermens Mutual Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1946). In treating the "internal affairs doctrine" as but one facet of the doctrine of forum non conveniens, the Koster Court limited its holding to cases in which a district court refuses jurisdiction on a showing of "much harassment" by a defendant and the forum chosen "would not ordinarily be thought a suitable one to decide the controversy." 330 U.S. at 532, 67 S.Ct. at 835. Furthermore, there is authority that federal courts are not bound to follow the decisions of the courts of the states in which they sit with regard to the doctrine of forum non conveniens. Lapides v. Doner, 248 F.Supp. 883 (E.D.Mich.1965); 1A Moore's Federal Practice ¶ 0.317[2] (4th ed. 1974). Even if it were assumed, arguendo, that this Court was obliged to follow the decision of the highest court of the State of Tennessee with regard to the doctrine of forum non conveniens, we could not conclude under the facts and circumstances of this case that the Eastern District of Tennessee is so unsuitable as a forum to warrant invocation of this rather extreme doctrine. In a case factually similar to the case at bar, the Court of Appeals for the District of Columbia held that the District Court, in relying on grounds similar to those advanced by defendant herein, erroneously dismissed a shareholders' suit under the doctrine of forum non conveniens. Altman v. Central of Georgia Ry., 124 U.S.App.D.C. 155, 363 F.2d 284 (1966), rev'g, 254 F.Supp. 167 (1965), cert. den., 385 U.S. 920, 87 S.Ct. 231, 17 L.Ed.2d 144 (1966). For the foregoing reasons, it is ORDERED that defendants' motion to transfer pursuant to 28 U.S.C. § 1404(a), or alternatively, that the Court decline jurisdiction because this case involves the internal affairs of a foreign corporation be, and the same hereby is, denied. NOTES [1] This case was originally filed in the United States District Court for the Eastern District of Michigan. Defendants moved to dismiss for want of personal jurisdiction, or alternatively, for transfer to the Western District of Virginia or this District. The motion was sustained on the ground that personal jurisdiction was wanting. As the Court understands it, present counsel for defendants did not prepare or brief the motion to transfer. [2] The Supreme Court decision referred to in the above-quoted language is Abbott Laboratories v. Gardner, 387 U.S. 136, 156 n. 20, 87 S.Ct. 1507, 18 L.Ed. 681 (1967).

IN THE SUPREME COURT OF TEXAS ══════════ No. 19-0260 ══════════ IN RE COMMITMENT OF GREGORY A. JONES ══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS ══════════════════════════════════════════ PER CURIAM A civil-commitment trial conducted under chapter 841 of the Texas Health and Safety Code is generally governed by the Texas Rules of Civil Procedure, which provide that a verdict may be rendered by the agreement of ten members of a jury of twelve. However, by statute, a civil- commitment verdict finding that the defendant is a sexually violent predator must be unanimous. We are asked to decide whether a final verdict for the defendant declining to find that the defendant is a sexually violent predator must likewise be unanimous. 1 In the event that agreement of ten out of twelve jurors is sufficient to reach such a verdict, we must determine whether the trial court’s error in instructing the jury that unanimity was required was harmful in this case. The court of appeals held that the trial court committed harmful error when it declined to submit an instruction explaining that a verdict for the defendant required only ten votes and accordingly reversed the 1 By “final verdict for the defendant declining to find that the defendant is a sexually violent predator,” we mean that the jury answers “no” to the charge question asking whether the jury finds that the defendant is a sexually violent predator. In the event an insufficient number of jurors can agree on an answer, e.g., if six answer “yes” and six answer “no,” the result is a mistrial, not a verdict. See Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 225 (Tex. 1986). trial court’s judgment and commitment order. Because we agree with the court of appeals that the trial court erred but disagree that the error was harmful in this case, we reverse the court of appeals’ judgment and reinstate the judgment of the trial court. Gregory A. Jones was convicted of several attempted sexual-assault offenses in 2001. In January 2017, just under two years before Jones’s sentence discharge date, the State of Texas brought a civil suit against Jones to commit him as a sexually violent predator (SVP) under Texas Health and Safety Code chapter 841. See TEX. HEALTH & SAFETY CODE § 841.003(a), (b) (providing that a person is a “sexually violent predator” for purposes of chapter 841 if he “is a repeat sexually violent offender”—i.e., he “is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses”—and “suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence”). The case was tried to a jury, and two expert witnesses testified for the State. 2 Jones also testified. The jury charge asked one question: “Do you find beyond a reasonable doubt that GREGORY A. JONES is a sexually violent predator?” Jones requested an instruction explaining that a unanimous verdict was required to answer “yes” to that question, but that only ten out of twelve votes were required to answer “no.” The trial court declined to submit the requested instruction. Instead, the trial court instructed the jury that “all 12 of the jurors must agree upon the answer made and to the verdict” and did not distinguish between “yes” and “no” answers. During deliberations, the jury requested definitions of terms and portions of the record to review testimony. After five-and-a-half hours, the jury declared that it was deadlocked, and the 2 In addition to the 2001 convictions, the expert testimony addressed other nonsexual assault convictions that were not included as predicate offenses in the State’s petition. 2 trial court issued a modified Allen charge urging the jury to continue deliberating. 3 After another hour and a half of deliberation, the jury returned with a unanimous verdict for the State finding that Jones was an SVP. The trial court rendered judgment on the verdict and ordered Jones civilly committed for treatment and supervision in accordance with chapter 841. Jones appealed, arguing that the evidence was legally and factually insufficient to find him an SVP and that the trial court committed harmful error when it declined to submit Jones’s 10–2 instruction to the jury.4 The court of appeals held that the evidence was sufficient to support the jury’s finding but nevertheless reversed the judgment and remanded the case for a new trial, concluding that the trial court committed harmful error in declining to submit Jones’s instruction. 571 S.W.3d 880, 881 (Tex. App.—Fort Worth 2019). The State petitioned this Court for review. Texas Health and Safety Code chapter 841 provides that “a civil commitment proceeding is subject to the rules of procedure and appeal for civil cases” but that, “[t]o the extent of any conflict between this chapter and the rules of procedure and appeal for civil cases, this chapter controls.” TEX. HEALTH & SAFETY CODE § 841.146(b). Thus, we must evaluate whether and to what extent chapter 841’s requirements for commitment verdicts conflict with the relevant procedural rules. The pertinent rule of civil procedure for jury verdicts provides, with one exception discussed below, that “a verdict may be rendered in any cause by the concurrence . . . of the same 3 See Allen v. United States, 164 U.S. 492, 501–02 (1896) (upholding a federal trial court’s charge urging jurors to continue deliberating and to consider the views of their fellow jurors). Allen charges are permitted in Texas courts so long as they are not impermissibly coercive. See Stevens, 563 S.W.2d at 228–29. 4 The State, as appellee, did not argue that unanimity is required for a “no” verdict but argued only that the trial court’s failure to submit a 10–2 instruction was not harmful. 3 ten or more members of an original jury of twelve.” TEX. R. CIV. P. 292(a). Meanwhile, chapter 841’s provisions governing commitment verdicts provide: (a) The judge or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. Either the state or the person is entitled to appeal the determination. (b) A jury determination that the person is a sexually violent predator must be by unanimous verdict. TEX. HEALTH & SAFETY CODE § 841.062. Subsection (a) addresses the standard of proof for an SVP finding, while subsection (b) addresses juror agreement. Under subsection (b), there is no question that for a jury to find that a person is an SVP, the jury must do so unanimously. Id. § 841.062(b). Because subsection (b) conflicts with Texas Rule of Civil Procedure 292(a) in that regard, subsection (b) controls. See id. §§ 841.062, .146(b); TEX. R. CIV. P. 292(a). But subsection (b) addresses only the number of votes needed for a “yes” verdict, that is, a verdict for the State finding “that the person is a sexually violent predator.” TEX. HEALTH & SAFETY CODE § 841.062(b) (emphasis added). Subsection (b) says nothing about the number of votes needed for a “no” verdict, that is, a verdict for the defendant declining to find that the defendant is an SVP. 5 Had the Legislature intended for subsection (b) to apply to both “yes” and “no” verdicts, it could easily have done so, for example, by requiring unanimity for a “determination of whether the person is a sexually violent predator.” See Zanchi v. Lane, 408 S.W.3d 373, 380 (Tex. 2013) (noting that if the Legislature had intended the service-of-citation rule to apply to service of expert reports in a health care liability claim, it “knew how to do so”). 5 We note that a negative answer to a charge question means only that the party bearing the burden of proof has failed to carry that burden and is not a positive finding of the converse of the question. See Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016). Similarly, a verdict is simply “a written declaration by a jury of its decision.” TEX. R. CIV. P. 290. Thus, in a civil-commitment proceeding under chapter 841, a “no” verdict reflects a jury’s determination that the State failed to prove beyond a reasonable doubt that the defendant is an SVP. 4  The State argues that allowing different numbers of jurors to agree for “yes” and “no” verdicts in this case would be unprecedented. But the Texas Civil Practice and Remedies Code provides for just such an asymmetry with respect to awards of exemplary damages. See TEX. CIV. PRAC. & REM. CODE § 41.003(d)–(e). 6 In line with those provisions, this Court has approved model jury instructions that include an instruction requiring unanimity for a “yes” verdict as to malice or gross negligence in order to award exemplary damages but requiring only ten jurors to agree to reach a “no” verdict. See TEX. R. CIV. P. 226a, Approved Instructions. Thus, an asymmetry in votes required for a “yes” verdict versus a “no” verdict is nothing new. The State attempts to distinguish verdicts for exemplary damages by pointing out that the jury need not be unanimous on the threshold liability finding, but the State is incorrect; the statute requires a unanimous verdict on both “liability for and the amount of exemplary damages.” TEX. CIV. PRAC. & REM. CODE § 41.003(d). The State also notes that Texas Rule of Civil Procedure 292 specifically requires unanimity for a “yes” verdict on exemplary damages, arguing that the Legislature has more explicitly distinguished between unanimous and 10–2 verdicts for exemplary damages than for civil commitment. See TEX. R. CIV. P. 292(b). But both the exemplary-damages statute and the civil-commitment statute are silent about 10–2 verdicts, so the inclusion of the unanimity requirement for a “yes” verdict on exemplary damages in Rule 292 does not answer the 6 Those subsections provide: (d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages. (e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court: “You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous.” TEX. CIV. PRAC. & REM. CODE § 41.003(d)–(e). 5 question of whether a 10–2 “no” verdict is allowed for exemplary damages—never mind civil commitment. The State also argues that section 841.062 is ambiguous and therefore presents arguments based on legislative history, opinions by courts in other states, and public policy. But section 841.062 is not ambiguous. Furthermore, it is generally in the Legislature’s discretion to decide when a verdict must be unanimous. The State’s legislative-history and public-policy arguments are that because the purpose of civilly committing an SVP is to protect the public, any reading of the statute that makes it more likely that such a person would not be committed is incorrect. Not only does that argument ignore the text, but it also does not address the pertinent question, which is how to determine that a person is an SVP in the first place. In sum, because the plain language of section 841.062(b) applies only to a “yes” verdict, Texas Rule of Civil Procedure 292(a) applies to a “no” verdict. Thus, a unanimous verdict is required to find that a defendant is an SVP, but only ten votes are necessary to reach a verdict for the defendant declining to find that the defendant is an SVP. Consequently, a defendant who requests that the jury be instructed to that effect is entitled to the submission of such an instruction. The trial court accordingly erred when it denied Jones’s request. However, the trial court’s error is reversible only if it was harmful. Texas Rule of Appellate Procedure 44.1(a) provides: (a) No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. 6 TEX. R. APP. P. 44.1(a). 7 Thus, the rule presents two scenarios in which a trial court’s error could be harmful: (1) by causing the rendition of an improper judgment; and (2) by preventing the appellant from properly presenting his appeal. Under either prong, the trial court’s legal error must have “probably” caused the harm. It is unclear whether the court of appeals based its conclusion of harm on the trial court’s rendition of an improper judgment, on Jones’s being prevented from properly presenting his appeal, or on both. For example, the harm standard that the court of appeals recited—whether “the appellate court is reasonably certain that the jury was not significantly influenced by issues erroneously submitted to it”—is taken from an opinion of this Court decided under the prevented- from-presenting prong. See 571 S.W.3d at 891 (citing Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 227–28 (Tex. 2005)). But the court of appeals also deemed it significant that the requested instruction related to a “contested, critical issue,” citing an opinion of this Court decided under the improper-judgment prong. See id. (citing Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 225 (Tex. 2010)). The parties are similarly not explicit about which prong they are addressing. Under the improper-judgment prong, an appellate court must review the entire record to determine whether the trial court’s error probably caused the rendition of an improper judgment. Crump, 330 S.W.3d at 225. In the jury-instruction context, that inquiry focuses on what the jury could be expected to consider and conclude based on the information presented to it, such as the evidence the trial court admitted and the instructions the trial court submitted. See, e.g., id. at 225– 7 Texas Rule of Appellate Procedure 61.1 provides a substantially identical rule for review by this Court. See TEX. R. APP. P. 61.1. 7 27; Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009); Shupe v. Lingafelter, 192 S.W.3d 577, 579–80 (Tex. 2006). The prevented-from-presenting prong, on the other hand, generally applies when something prevents an appellate court from evaluating harm under the improper-judgment prong. For example, when a trial court submits both valid and invalid theories of liability in a single broad- form jury question, it is impossible to determine whether the jury based its verdict on the valid theory or the invalid one. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000). The trial court’s error in that circumstance is harmful because an appellate court cannot determine from the record whether the error probably caused the rendition of an improper judgment. See Columbia, 284 S.W.3d at 865. Thus, the proper inquiry under the prevented-from-presenting prong is whether the appellate court can review the record to determine whether the trial court’s error probably caused the rendition of an improper judgment. See id. at 864–65. If the trial court’s error prevents the appellate court from doing so, the error is harmful unless, at least in the jury- instruction context, the appellate court is “reasonably certain that the jury was not significantly influenced by” the error. Romero, 166 S.W.3d at 227–28 (quotation omitted). In this case, the prevented-from-presenting prong does not apply because the record contains evidence enabling us to determine that the trial court’s failure to submit a 10–2 instruction did not probably cause the rendition of an improper judgment. Namely, the jury’s unanimous verdict finding that Jones is an SVP shows that the trial court’s error did not affect the jury’s verdict. We have explained that a juror should vote based on her “deliberate judgment, sound reflection, and conscientious convictions.” Kindy v. Willingham, 209 S.W.2d 585, 587 (Tex. 8 1948). If a party suspects that the jury did not reach its verdict in that manner, the party may challenge the verdict on the basis that the verdict was the result of “chance or lot” or that the court’s charge, including an Allen charge, was impermissibly coercive. See id.; Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 228–29 (Tex. 1978). But Jones does not challenge the jury’s method of deliberation or the court’s modified Allen charge. Thus, we must presume that the jurors voted the way they did because they were conscientiously convinced of the result they reached. The jury’s unanimous finding that Jones is an SVP means that each member of the jury was convinced— based on the evidence presented, the charge assigned, and the instructions given—that Jones is an SVP. Because the members of the jury all came to that conclusion, an instruction explaining that a vote of ten of the jurors was sufficient for a verdict declining to find that Jones is an SVP would not have changed the outcome of this case. Jones argues that the length of time the jury spent deliberating indicates that the jurors were divided or undecided on the question submitted to them. That may be so. But because the jury ultimately voted unanimously for a “yes” verdict and Jones does not challenge the jury’s method of deliberation or the court’s modified Allen charge, we must presume that the jurors voted the way they did because it was their conscientious conviction. If the jurors had been unable to agree, the trial court could have declared a mistrial. See Fleet v. Fleet, 711 S.W.2d 1, 2–3 (Tex. 1986). But all twelve jurors ultimately voted “yes,” and Jones has provided us no basis on which to second-guess their deliberation process. Because it is apparent from the face of the record that the trial court’s failure to submit the requested 10–2 instruction did not probably cause the rendition of an improper judgment, the trial court’s legal error was harmless, and the court of appeals erred in reversing and remanding for a 9 new trial. Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and reinstate the judgment of the trial court. TEX. R. APP. P. 59.1. OPINION DELIVERED: April 24, 2020 10 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DUAL, INCORPORATED, Plaintiff-Appellant, v. No. 97-1228 SYMVIONICS, INCORPORATED, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CA-96-1084-A) Argued: July 15, 1997 Decided: September 12, 1997 Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges. _________________________________________________________________ Affirmed by unpublished opinion. Senior Judge Phillips wrote the opinion, in which Judge Murnaghan and Senior Judge Butzner joined. _________________________________________________________________ COUNSEL ARGUED: Raymond Donald Battocchi, GABELER, BATTOCCHI & GRIGGS, L.L.C., McLean, Virginia, for Appellant. Michael Joseph Klisch, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., McLean, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PHILLIPS, Senior Circuit Judge: Dual Incorporated (Dual) sued Symvionics, Inc. (Symvionics), alleging fraud and breach of contract arising out of unsuccessful efforts to negotiate for Dual a subcontract under Symvionics's prime contract to build a flight simulator. The district court granted sum- mary judgment in favor of Symvionics on all counts. Finding no error, we affirm. I In the fall of 1994, the United States Air Force (USAF) solicited bids to produce a flight simulator for its A-10 attack aircraft. Sym- vionics decided to pursue the bid, discussed the proposed costs with USAF, and sought a subcontractor for the cockpit portion of the simu- lator. After discussing the price constraints with two other potential subcontractors, Symvionics initially chose Dual to be the proposed subcontractor for its simulator bid, largely because Dual agreed to limit its costs for the project to USAF's expectations. On November 2, 1994, Symvionics and Dual entered into a Team- ing Agreement (Agreement). The Agreement provided that Dual would submit a proposal to Symvionics for the simulator cockpit and that Symvionics would then submit its proposal to USAF using Dual as its subcontractor. The Agreement required Symvionics to "exert its best efforts to the extent practical to produce the proposal . . . which will cause . . . the acceptance of Dual as the Subcontractor." The Agreement also provided, In the event [Symvionics] is awarded the Contract for this program, [Symvionics] and [Dual] agree to negotiate in good faith and proceed in a timely manner to conclude a mutually acceptable subcontract for supply of the aforesaid 2  data and support which is to be provided by [Dual], as described in [Dual's] technical/cost proposal for this effort. In January 1995, Dual submitted a written cost proposal to Sym- vionics for its portion of the bid, and Symvionics included Dual's analysis as part of its bid to USAF in February. Dual's proposed costs had increased substantially between October 1994 and January 1995, and USAF informed Symvionics that Dual's proposed costs were excessive. Symvionics then conducted a "should cost analysis," con- sisting of an independent check of Dual's costs and an exploration of the industry to determine whether Dual's proposed costs were unusual. USAF suggested that Symvionics submit another proposal using figures from another cockpit subcontractor, and in March 1995 Symvionics submitted a bid using figures for the cockpit subcontract from Flight Safety International. Symvionics did not, however, with- draw its February bid using Dual as its subcontractor. In August 1995, in response to USAF's continuing concern about its costs, Dual agreed to reduce its costs to a"firm fixed price" of $1,322,722 for the first simulator cockpit and a corresponding smaller amount for subsequent units. That month, based in part on Dual's agreement, USAF awarded the prime contract to Symvionics based on the February 1995 bid that included Dual as the subcontractor. Dual then asked Symvionics for a preliminary order to allow Dual to begin its work. Symvionics responded with a long, detailed pur- chase order. Believing the complexity of the order to be premature, Dual requested a simpler document and drafted a"Letter Subcon- tract." After some negotiation and minimal changes offered by Sym- vionics, the parties signed the Letter Subcontract allowing Dual to begin work on the project but limiting it from "incur[ring] obligations exceeding $100,000." The Letter Subcontract specifically contem- plated that Dual would meet the $1,322,722 "not to exceed" figure for the first cockpit. Dual began its work on the project, and at Dual's request, Symvionics extended Dual's cost ceiling under the Letter Subcontract to $450,000. Meanwhile, Symvionics and Dual began negotiating the subcon- tract. In November 1995 the parties prepared a "Systems Requirement Review" for USAF, and soon thereafter Symvionics submitted a first 3 draft of the subcontract to Dual. Dual did not respond to this draft until February 1996, but neither Fred Dual, the owner of Dual, nor Joe Calandrino, Dual's primary negotiator, could identify any evi- dence of bad faith on the part of Symvionics during these preliminary negotiations. Dual and Symvionics disagreed substantially as to the technical requirements of the subcontract, and their negotiators spent March and April ironing out these disputes. By April 30 all of these disputes had been resolved. In early May 1996, Dual informed Symvionics that its costs for the first unit had increased significantly, in a range between $200,000 and $400,000 over the "not to exceed" price, due to revised estimates from Dual's vendors. Symvionics had already agreed to increase this amount by $50,000, to $1,372,722, due to delays in furnishing Dual with certain technical information. When Calandrino informed Law- rence Barraza, Symvionics's chief executive, of the new price increases, Barraza became concerned that Symvionics might lose the simulator contract because of the difficulties in completing the sub- contract. Barraza pointed to USAF's Preliminary Design Review (PDR), scheduled for June 3-5, and advised Dual that failure to exe- cute the subcontract by that date could jeopardize the project. On May 17, Dual concluded that its costs would run to approxi- mately $1,750,000, and on May 21 Symvionics declared this to be unacceptably high. The parties continued to negotiate, however, and on May 24, Dual informed Symvionics that it could build the cockpit for $1,500,000. Later that day, Symvionics made a counteroffer of $1,422,722, an amount $50,000 greater than the highest amount to which the parties had previously agreed. Symvionics's counteroffer also included a proposed waiver of any claims by Dual for program delays through May 24. On May 28, Dual responded by accepting Symvionics's offer except for the proposal to waive their claims, and asked Symvionics to accept or reject that offer by the next day. Symvionics asked Dual to stop its work on the subcontract on May 28, but expressly did not terminate the negotiations. From May 28 until June 3, the date of the PDR, however, Barraza could not contact any of the Dual officials responsible for the contract. On June 3, Bar- raza decided to reject Dual's counteroffer and terminate negotiations with Dual. That same day, Dual tried to inform Symvionics that it 4 would accept all of the terms of Symvionics's May 24 offer without reservation, but Symvionics refused to accept this capitulation. Bar- raza testified in deposition that he decided to discontinue the negotia- tions after learning from a USAF official that Dual had gone to USAF to offer its services on the project regardless of Symvionics's involve- ment. Barraza testified that he regarded this communication as inap- propriate and it cemented his decision to terminate the negotiations. Symvionics ultimately subcontracted with Armstrong Laboratories, an arm of USAF, to build the cockpits. Dual filed suit in the Circuit Court for Arlington County, Virginia, alleging fraud and breach of contract. Symvionics removed the case on diversity of citizenship grounds to the United States District Court for the Eastern District of Virginia. After discovery, Symvionics moved for summary judgment under Fed. R. Civ. P. 56(e), alleging there were no genuine issues of material fact and that it was entitled to judgment on all claims as a matter of law. The district court deter- mined that Symvionics had not acted fraudulently in inducing Dual to enter into the Teaming Agreement, and that Symvionics had not breached any of the terms of that Agreement, and therefore granted Symvionics's motion. This appeal followed. II We review a district court's grant of summary judgment de novo. See Kimsey v. City of Myrtle Beach, S.C., 109 F.3d 194, 195 (4th Cir. 1997). In order to prevail, the moving party must establish that its opponent cannot "make a showing sufficient to establish the existence of an element essential to that party's case," and that he or she there- fore is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the non-moving party has the burden of proof at trial, Fed. R. Civ. P. 56(e) requires him or her to "go beyond the pleadings" to designate specific facts demonstrating a genuine issue of material fact for trial. Id. at 324. We view the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Kimsey, 109 F.3d at 195. After some initial confusion, the parties have agreed that California law governs this case. Dual claims first that Symvionics fraudulently 5 induced it to enter into the Teaming Agreement, in that at the time the Agreement was executed, in November 1994, Symvionics had no intention of honoring its terms. Dual produced no direct evidence to support its claim, however, pointing only to the fact that Symvionics did not accept Dual's final offer in June 1996. As Dual acknowledges, the Teaming Agreement did not require Symvionics ultimately to enter into the subcontract with Dual, but only to negotiate in good faith to arrive at such a subcontract. Despite Dual's arguments, noth- ing in Symvionics's actions until June 1996 even arguably serves as circumstantial evidence to support a claim of fraud. Rather, Sym- vionics acted in a manner fully consistent with the teaming agree- ment: It submitted a proposal to USAF including Dual as a subcontractor, then allowed Dual to begin work while spending many months trying to negotiate the final subcontract. Dual points to Sym- vionics's consultation with Flight Safety International in its second proposal to USAF, but Symvionics did not at that time withdraw its bid naming Dual, and ultimately USAF accepted Symvionics's bid using Dual as the subcontractor. Fred Dual and other Dual representa- tives also concede that Symvionics was acting in good faith when they began the subcontract negotiations late in 1995, acknowledging in effect that at that time Symvionics intended to complete the sub- contract. In short, Dual presents nothing to create a question of mate- rial fact as to any fraud on the part of Symvionics. Dual also contends that Symvionics violated the Teaming Agree- ment in two different ways. First, Dual argues that the Agreement obligated Symvionics to secure USAF approval of Dual as a subcon- tractor, an obligation which would have limited Symvionics's ability not to choose Dual as the subcontractor. The only evidence presented by Dual to support this critical contention, however, is found in Fred Dual's assertion to that effect in deposition and it is unsupported by any official rule or regulation to that effect. In fact, USAF contracting agents testified in deposition that USAF does not restrict prime con- tractors in any way in choosing their subcontractors, and therefore any USAF "approval" would have been entirely ineffective. Conse- quently this argument cannot support any claim for damages for its breach, and summary judgment was appropriate. Finally, Dual claims that Symvionics breached the Teaming Agree- ment in failing to negotiate in good faith to complete the subcontract. Symvionics argued before the district court and here that the Teaming 6 Agreement terminated by its terms in November 1995, and that the Teaming Agreement's good faith provision was an unenforceable "agreement to agree." We agree with the district court that under Cali- fornia law, as stated in Racine & Laramie, Ltd., Inc. v. California Dep't of Parks and Recreation, 11 Cal. App. 4th 1026, 1032 (Cal. Ct. App. 1992), parties may contract to create the obligation to negotiate in good faith with one another, so long as the obligation does not go so far as to require an agreement on a subsequent contract. See also Thompson v. Liquichimica of America, Inc., 481 F. Supp. 365, 366 (S.D.N.Y. 1979). Though Dual appears to acknowledge that the Teaming Agreement expired by its terms in November 1995, Fred Dual testified that Barraza verbally agreed to extend the Agreement until the subcontract was signed. Without considering that possibility, we conclude that Dual has not created a genuine issue of material fact as to Symvionics's good faith. Dual acknowledges that Symvionics initiated the negotiations in good faith, and authorized $450,000 of work for Dual to begin the project. Even as Dual's proposed costs rose, Symvionics made efforts to accommodate them. Then, after months of negotiation and agreeing on virtually every issue, Symvionics made an offer on May 24 that, if timely accepted, would have bound Symvionics to subcontract with Dual. Dual does not attempt to argue that the terms of that offer were extravagant or frivolous; in fact Dual tried to accept that offer several days later. Rather, the contention is based entirely on the fact that Symvionics decided to terminate negotiations just before Dual announced its intention to accept Symvionics's offer. Symvionics has presented several reasons for terminating the negotiations at that time, notably the imminent PDR and Dual's independent communication to USAF, that are fully consistent with its previous efforts to negotiate in good faith. Dual has not presented evidence to support the crucial allegation that Symvionics acted in bad faith in spurning Dual, and not just in its best interests as a government contractor. Summary judgment was therefore appropriate. III In sum, we agree with the district court that Dual failed to create a genuine issue of material fact as to any of its claims. Accordingly we affirm the district court's grant of summary judgment. AFFIRMED 7 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-10-00134-CR WILLIAM EDWARD MARCHBANKS APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY ---------- OPINION ---------- In two points, appellant William Edward Marchbanks appeals his convictions for aggravated assault against a public servant and aggravated robbery.1 We affirm. 1 See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (Vernon Supp. 2010), § 29.03(a)(2) (Vernon 2003).  Background Facts One afternoon in August 2009, Richland Hills Police Department Officer Zachary Gibson was working at a Dillard’s department store.2 Gibson saw appellant take two stacks of shirts off a display in the men’s department and run outside the store. Gibson, who was in uniform, identified himself as a police officer and ran toward appellant as appellant entered into his car. Appellant shut his driver’s side door, but his window was down, so Gibson grabbed appellant’s shirt, told him to get out of the car, and tried to pull him out. Appellant did not get out of the car; instead, he revved his motor, placed the car in the forward gear, and quickly accelerated while Gibson was hanging out of the window. Gibson told appellant, ―Stop the car. You’re going to kill me.‖ Eventually, another car hit appellant’s car, which threw Gibson off of the car, injuring him. Other police officers stopped appellant, found the shirts he had stolen (valued at $849.83), and arrested him. A grand jury indicted appellant for aggravated assault against a public servant and aggravated robbery. Appellant pled not guilty to both offenses. The jury convicted him of both offenses and assessed his punishment at thirty-eight years’ confinement for aggravated assault and thirty-five years’ confinement for aggravated robbery. The trial court sentenced appellant accordingly, and he filed notice of this appeal. 2 Gibson worked for the Fort Worth Police Department at the time of the trial. 2  Standard of Review Both of appellant’s points concern the trial court’s decisions to deny his motions for mistrial. We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard and must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Orr v. State, 306 S.W.3d 380, 403 (Tex. App.—Fort Worth 2010, no pet.) (citing Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007)); see Ratliff v. State, 320 S.W.3d 857, 863 (Tex. App.—Fort Worth 2010, pet. ref’d); West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003, pet. ref’d) (explaining that we are ordinarily deferential to a trial court’s decision to deny a motion for mistrial). Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Orr, 306 S.W.3d at 403; see Ratliff, 320 S.W.3d at 863. A mistrial is appropriate only for a narrow class of highly prejudicial and incurable errors and may be used to end trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Orr, 306 S.W.3d at 403 (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)); see also Grotti v. State, 209 S.W.3d 747, 776 (Tex. App.—Fort Worth 2006) (―The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.‖), aff’d, 273 S.W.3d 273 (Tex. Crim. App. 2008). Denial of First Motion for Mistrial In his first point, appellant argues that the trial court abused its discretion by denying the motion for mistrial that he made in the middle of the trial. During 3 Gibson’s initial cross-examination by appellant’s counsel, he repeatedly denied punching appellant while hanging out of appellant’s car; Gibson said that appellant moved his head on his own and that there was ―no haymaker by any means.‖ But after Gibson’s initial testimony concluded, during a lunch break, the prosecutor listened to one of the videos that had been admitted into evidence and heard Gibson say on the video that he had sucker punched appellant. After the prosecutor disclosed that fact to appellant’s counsel, appellant requested a mistrial based on the State’s nondisclosure of exculpatory evidence in advance of the trial court’s discovery deadline. The trial court denied appellant’s motion but allowed appellant to recall any witnesses to more fully develop the issue. Before resting its case, the State recalled Gibson. He said that he did not remember punching appellant. But he did not deny punching appellant because he had said that he did so on the day of appellant’s offenses.3 Appellant contends that the trial court should have granted a mistrial because the State violated his right to due process by knowingly using perjured testimony from Gibson. A prosecutor’s knowing use of perjured testimony ―violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.‖ Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App. 1993); see also Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (―The 3 When the State asked Gibson why he did not remember punching appellant, he said, ―I don’t remember a whole lot once the whole incident took place, once the adrenaline kicked in . . . .‖ Later, he said, ―If I stated [that I punched appellant], then I did. I’m not denying that.‖ 4 principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness.‖). ―If the prosecution presents false testimony which relates to an essential element of the offense, and fails to correct its own testimony, then reversal will naturally follow.‖4 Onate v. State, 62 S.W.3d 208, 211 (Tex. App.—El Paso 2001, pet. ref’d) (emphasis added); see Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002); Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986) (―If the prosecution presents a false picture of the facts by failing to correct its own testimony when it becomes apparent that the testimony was false, then the conviction must be reversed.‖) (emphasis added). Even if we assume, for the sake of argument, that Gibson’s initial testimony that he did not punch appellant qualifies as perjury,5 the State 4 In some circumstances, a witness’s perjury may be imputed to a prosecutor who lacks actual knowledge of the testimony’s falsity. See Castellano, 863 S.W.2d at 480–81 & n.3; Ex parte Adams, 768 S.W.2d 281, 291–92 (Tex. Crim. App. 1989); Page v. State, 7 S.W.3d 202, 208 (Tex. App.— Fort Worth 1999, pet. ref’d) (explaining that a police officer’s knowledge may be imputed to a prosecutor). 5 A witness does not commit perjury by testifying falsely because of a reasonable mistake, such as faulty memory. See Tex. Pen. Code Ann. § 37.02 (Vernon 2003) (requiring an intent to deceive to sustain a perjury conviction); De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (explaining that perjury does not occur when a witness honestly but mistakenly believes a statement to be true when made). 5 thereafter acted precisely according to what the authority cited above requires; it corrected Gibson’s misstatement by informing appellant’s counsel about Gibson’s recorded admission and recalling Gibson to account for the misstatement. See Losada, 721 S.W.2d at 311. Thus, we hold that the trial court did not abuse its discretion by denying appellant’s motion for mistrial on the basis of the State’s alleged use of perjured testimony. See Orr, 306 S.W.3d at 403. Next, appellant argues that the trial court should have granted a mistrial because the State failed to timely disclose exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963). As we have explained, Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative duty under the Due Process Clause of the Fourteenth Amendment to turn over to the accused all exculpatory or impeachment evidence, irrespective of the good faith or bad faith of the prosecution, which is favorable to the defendant and is material to either guilt or punishment. This duty attaches as soon as the information comes into the prosecutor’s possession, with or without a request from the defense for such evidence, and the information must be disclosed to the accused in time to put it to effective use at trial. A due process violation occurs if: (1) the prosecutor fails to disclose evidence; (2) the evidence is favorable to the defendant; and (3) the evidence is material. Favorable evidence is ―material‖ if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Franks v. State, 90 S.W.3d 771, 796 (Tex. App.—Fort Worth 2002, no pet.) (citations omitted); see Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 6 2002); Proctor v. State, 319 S.W.3d 175, 184 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Before appellant’s trial began, the State gave appellant’s counsel copies of videos related to the altercation between appellant and Gibson, including the video that contained Gibson’s admission that he had punched appellant. If appellant’s counsel did not learn about Gibson’s admission upon receiving the videos, he became aware of it during the middle of the trial, at a time in which he could (and did) question Gibson about it and use it extensively during his closing jury argument. ―If the defendant received [favorable evidence] in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it might have and should have been.‖ Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999); see Juarez v. State, 439 S.W.2d 346, 348 (Tex. Crim. App. 1969); State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.— Amarillo 1998, pet. ref’d) (―[T]here is no Brady violation if the defendant receives the evidence in time to put it to effective use.‖); Givens v. State, 749 S.W.2d 954, 957 (Tex. App.—Fort Worth 1988, pet. ref’d). Appellant does not argue that he would have used Gibson’s admission differently or more effectively had he known about it sooner. He asserts, however, that the State’s express disclosure of appellant’s admission came ―so late that the disclosure and subsequent recall of Gibson could not dispel the images already placed in the jury’s mind from his earlier testimony‖ and that this 7 problem was ―compounded by the [p]rosecutor in jury argument telling the jury that the impeaching evidence was not true.‖ The record does not support this argument. After appellant’s counsel learned of Gibson’s recorded admission, counsel spent the majority of the remainder of the guilt phase of the trial focusing on whether Gibson punched appellant and whether that fact contradicted Gibson’s original testimony.6 During the State’s closing argument, it conceded that Gibson’s admission of punching appellant had occurred, stating, [W]e can no more stand before you and say that Officer Gibson never said anything about a sucker punch any more than the defense can get up here and say that the defendant didn’t commit aggravated robbery or aggravated assault on a public servant, because guess what, both of those are on video. It is what it is. In the remainder of the State’s argument, it did not expressly contend that the punch had not occurred; instead, it argued that the punch was irrelevant to the jury’s consideration of appellant’s guilt.7 6 Appellant’s only witness, who enhanced the video of the altercation between appellant and Gibson, testified for the sole purpose of establishing that appellant’s head movement corresponded with Gibson’s arm entering appellant’s car. 7 The prosecutor said, So let’s just assume for the sake of argument that Officer Gibson did hit him. The 12 of you go back there, and you-all agree he hit him. So what? What does that have to do with the elements of the offense that are in this indictment, that are in this Court’s charge that have to be proven? Nothing. 8  For all of these reasons, we hold that the trial court did not abuse its discretion by denying appellant’s motion for mistrial based on an alleged Brady violation. We overrule appellant’s first point. Denial of Second Motion for Mistrial In his second point, appellant contends that the trial court abused its discretion by denying his motion for mistrial because of an allegedly improper jury argument by the State. Appellant’s trial counsel spent the majority of his closing argument discussing Gibson’s inconsistent testimony about punching appellant.8 After appellant’s counsel concluded the argument, the State contended in its final jury argument that appellant was using a ―smoke screen‖ by talking about Gibson’s acts rather than appellant’s offenses. The prosecutor said, ―What the defense is doing is what we call jury nullification.‖ Appellant’s counsel objected, stating, ―It’s outside the record. There is no definition of that.‖ The trial court sustained the objection and instructed the jury to disregard the argument, but the trial court denied appellant’s motion for mistrial. 8 Appellant’s counsel said in part, You are judging the evidence in this case, so based upon what you saw, how it went down, how he had to be brought back, would you buy a used car from [Gibson]? . . . .... I think with all due respect, he’s young enough to learn a lesson, and he needs to learn a lesson now before he’s on patrol in the City of Fort Worth. I think the lesson he needs to learn and the message you need to send is you got -- you got to tell the truth. . . . 9  To be permissible, the State’s jury argument must fall within one of the following four general areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Appellant contends on appeal that the State’s ―jury nullification‖ argument was improper because it (1) was not a proper response to his counsel’s argument, (2) attempted to ―accuse defense counsel of improper conduct and in so doing was striking at the accused over and through the shoulders of his counsel,‖ (3) denied him a fair trial by ―imputing a false motive to defense counsel’s argument,‖ and (4) was ―designed to and did deprive‖ appellant of constitutional and statutory protections. These contentions, however, do not match the objection at trial, which was that ―jury nullification‖ was undefined and that the State’s argument was ―outside the record.‖ To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A 10 reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Lugo v. State, 299 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004)). The requirement that a trial objection comport to a complaint on appeal applies to jury argument points. See Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 965 (2003); Coffey v. State, 796 S.W.2d 175, 179–80 (Tex. Crim. App. 1990); Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976) (holding that a contention on appeal that the State’s jury argument commented on a defendant’s failure to testify was forfeited because at trial the defendant objected on the ground that the argument was ―outside the record‖); Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (―At trial, appellant objected on the grounds that the State’s argument improperly shifted the burden of proof; here, he contends that the State improperly commented on post-arrest silence. . . . [A]ny error is waived.‖). Because appellant’s trial objection to the State’s jury argument is inconsistent with his complaints on appeal, we hold that he forfeited his second point, and we overrule the point. 11  Conclusion Having overruled both of appellant’s points, we affirm the trial court’s judgments. CHARLES BLEIL JUSTICE PANEL: GARDNER and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment). PUBLISH DELIVERED: May 5, 2011 12 

426 So.2d 392 (1983) R.B. MARDIS & Mrs. Stella Mardis, Plaintiffs-Appellees, and Tallulah Production Credit Association, Plaintiff-in-Intervention, Appellant, v. Thomas I. HOLLANGER, Jr. & Janet Hollanger, Defendants-Appellees, and Bank of Morehouse, Defendant-in-Intervention, Appellee. No. 15167-CA. Court of Appeal of Louisiana, Second Circuit. January 17, 1983. Writ Denied March 25, 1983. *393 Voelker, Ragland, Brackin & Crigler by William B. Ragland, Jr., Lake Providence, for plaintiff-in-intervention, appellant. Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for defendant-in-intervention, appellee. Farrar, Perry & Jefferson by Harvey Perry, Monroe, for defendants-appellees. Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ. JASPER E. JONES, Judge. Tallulah Production Credit Association (PCA) appeals an adverse judgment in a rule to rank mortgages ancillary to this executory proceeding to enforce a first mortgage on property in Morehouse Parish, Louisiana. The rule was tried and judgment was rendered recognizing the mortgage held by the Bank of Morehouse as a second mortgage and the mortgage held by PCA as a third mortgage. We affirm. The Facts This case arises from the business dealings of Thomas Hollanger. Hollanger and several relatives, individually and through corporations, were engaged in extensive farming operations in north Louisiana and south Arkansas. In early 1978 Hollanger and Hollanger and Bracewell Rice Farms, Inc., a corporation owned one-half by Mr. and Mrs. Hollanger and one-half by Hollanger's brother-in-law and his wife, were negotiating with Farmer's and Merchant's Bank (FMB) of Stuttgart, Arkansas, to arrange a crop loan. FMB required security before the loan could be made. The Hollangers purchased a large tract of land in Morehouse Parish from Mr. and Mrs. R.B. Mardis on February 3, 1978. Part of the price was given in the form of a note for $598,078 which was secured by a mortgage on the Mardis tract. This mortgage is acknowledged to be the first mortgage on the land. Also on February 3, 1978, the Hollangers executed and endorsed a $300,000 demand *394 note payable to "Ourselves." This note is also secured by a collateral mortgage on the Mardis tract. This mortgage was recorded on February 3, 1978, shortly after the mortgage securing the Mardis note. We will hereinafter refer to the $300,000 demand note as the "mortgage note." On February 4, 1978, Hollanger delivered the mortgage note and a certified copy of the collateral mortgage to FMB. This note was given to secure both individual and corporate loans then existing or to be advanced in the future. That day Hollanger acting for the corporation borrowed from FMB $45,000 represented by a note payable on or before February 20, 1978. On March 1, 1978, Hollanger, acting individually and for the corporation executed a note, payable to FMB, in the amount of $450,000. This note represented the crop loan and the consolidation of the existing corporation loan of February 4, 1977. On April 24, 1978, the Hollangers transferred the Mardis tract to Hollanger and Bracewell Rice Farms, Inc. On December 4, 1978, Hollanger, individually and for the corporation, executed a note in the amount of $540,000 payable to FMB. This note was a renewal of the March 1 note. Hollanger and Bracewell Rice Farms, Inc., through its president, Thomas Hollanger, executed and endorsed a demand note in the amount of $1,500,000 on April 16, 1979. This note was secured by a collateral mortgage covering the Mardis tract executed that day. Hollanger, as corporate representative, also executed a written agreement pledging the $1,500,000 note to PCA to secure existing and future loans. In late 1979 or early 1980 intra-family friction developed over the business operations. A division of assets was arranged and the Hollangers emerged with total ownership of Hollanger and Bracewell Rice Farms, Inc.[1] Following the corporate changes, Hollanger was unable to meet his and the corporation's obligations to FMB. FMB then refused to renew the December 4, 1978, note. Hollanger arranged alternate financing through the Bank of Morehouse which agreed to buy Hollanger's loan from FMB. On February 22, 1980, Hollanger and his attorney, Harvey Perry, went to Stuttgart. Hollanger, acting for the corporation, executed a note for $304,187.50 representing the balance remaining on the December 4, 1978, note. Perry and a vice-president of FMB executed a trust agreement under which Perry was made an "escrow agent" for the delivery of certain items, including the note for $304,187.50, and the mortgage note to the Bank of Morehouse. Perry took the items to Bastrop, Louisiana, and delivered them to the Bank of Morehouse which electronically transferred payment of the price to FMB. On March 23, 1980, Hollanger, acting for the corporation, executed a note in the amount of $300,000 payable to the Bank of Morehouse. This note represented a renewal of the February 22, 1980, note purchased from FMB. Mr. and Mrs. Mardis commenced this executory proceeding to enforce their mortgage on May 2, 1980. PCA filed this rule on May 5, 1982, contending that its mortgage is second only to the mortgage held by the vendor's and superior to the mortgage the Bank of Morehouse holds which it obtained from FMB. After the rule was tried the district judge rendered the judgment complained of and PCA appealed. PCA sets out four assignments of error. It contends that the trial judge erred in finding that: 1) the collateral mortgage note was pledged to FMB; 2) the collateral mortgage note was pledged to secure the FMB hand note executed on February 22, 1980, and the collateral mortgage retained its rank after the hand note was transferred by FMB to the Bank of Morehouse; *395 3) no reissue or repledge of the collateral mortgage note was required after the hand note was acquired by the Bank of Morehouse; and 4) no novation of the debt occurred when the new hand note was issued on March 23, 1980 to the Bank of Morehouse. Assignment # 1 Through this assignment of error appellant contends that the mortgage note was never pledged because of the failure of the parties to comply with the requirements of C.C. art. 3158 as stated in New Orleans Silversmiths v. Toups, 261 So.2d 252 (La. App. 4th Cir.1972), writ refused, 262 La. 309, 263 So.2d 47 (1972). In Toups the court listed four requirements for retrospective ranking under LSA-C.C. art. 3158: 1) a valid initial pledge; 2) each succeeding loan specifically secured by the pledge; 3) agreement at the time of the original pledge that it would secure existing and future obligations; and 4) the pledged instrument must remain in the hands of the pledgee. Appellant first contends that there was no valid pledge and, therefore, the first requirement is lacking. The only formality required for the pledge of a negotiable note is delivery. American Bank & Trust Company v. Straughn, 248 So.2d 73 (La.App. 1st Cir. 1971), writ denied, 259 La. 746, 252 So.2d 450 (1971); Baker Bank & Trust Company v. Behrnes, 217 So.2d 461 (La.App. 1st Cir. 1968); Acadiana Bank v. Foreman, 343 So.2d 1138 (La.App. 3d Cir.1977); affirmed, 352 So.2d 674 (La.1977). However, for there to be a pledge the formality of delivery must be coupled with an agreement that the note stands as security for existing or future debts. People's Bank & Trust Co. v. Campbell, 374 So.2d 741 (La.App. 3d Cir. 1979), writ refused, 376 So.2d 1268 (La. 1979). The mortgage note and a certified copy of the collateral mortgage were delivered to FMB on February 4, 1978, by Hollanger. Thus, the formality of delivery is present. Appellant strenuously argues that there is no pledge because there was no agreement to pledge. This argument is not founded upon the evidence. At the trial of the rule Thomas Hollanger testified as follows: Q. I believe you basically testified, Mr. Hollanger, the reason this collateral mortgage dated February 3, 1978, was prepared was a requirement of the Farmers and Merchants Bank? A. That's true. Q. And as I understand your testimony, they stated they would have to have a mortgage on your farm, the Mardis Tract, before they would loan you money for your crop loan, is that correct? A. Correct. Q. When you took—uh did you take that collateral mortgage note to the Farmers and Merchants Bank on February 4, 1978? A. Yes. Q. And from that time until today has that collateral mortgage note gotten into your hands? A. No. Q. Who did you pledge that note for? A. Myself and the corporation. Q. Was that crop loan that you received as a result of pledging that note was it ever paid off? A. No. Q. The balance ... was the balance the lowest balance was that which the Bank of Morehouse purchased, is that correct? A. That's correct. Q. During that period of time, was that mortgage note ... did that mortgage note remain in the hands of the Farmers and Merchants Bank as security for that loan? A. It did. Q. Was that—uh note to secure any other advances by the Farmers and Merchants Bank? A. Any future advances or past money I had borrowed. [Rec. 583-4.] *396 The FMB official Hollanger dealt with was deceased at the time of trial. Mr. Carl Gunner, executive vice-president of FMB, testified at trial. Gunner testified that he was familiar with the lending practices of FMB and that loans of the amount involved here would not have been made without a mortgage on immovable property as security. He further testified that the only reason FMB would have had the mortgage note was as security for the various hand notes. The testimony of Hollanger and Gunner shows that it was the parties' intent and agreement that the mortgage note, and through it the collateral mortgage, secure both existing and future loans. There was a valid initial pledge and the first requirement of Toups is met.[2] Appellant also argues that the second requirement of Toups is lacking because the succeeding hand notes were not secured by a pledge of the mortgage note. With respect to the mortgage note the collateral mortgage provides: "The note may be issued and pledged by MORTGAGOR... to secure loans and advances made or to be made..." The record shows that the Hollangers and FMB had agreed that the pledge of the mortgage note would secure both existing and future personal and corporate debts. When the pledge agreement specifically provides that the pledge is to secure existing and future debts the second requirement of Toups is met. Tallulah Production Credit Ass'n v. Turner, 391 So.2d 885 (La. App. 2d Cir.1980), writ refused, 396 So.2d 900 (La.1981). As the agreement between the Hollangers and FMB provides that the pledge is to secure both existing and future debts the second requirement of Toups is met.[3] This assignment of error is without merit. Assignment # 3 Through this assignment of error appellant contends that the fourth requirement of Toups, that the pledged instrument remain continuously in the hands of the pledgee, is lacking. Appellant bases this contention on the fact that the mortgage note was transferred to the Bank of Morehouse when it purchased the February 22, 1980, note from FMB. Appellant concludes that this transfer required a repledge of the mortgage note and that the collateral mortgage can rank only from the date it was repledged. The thing the Bank of Morehouse bought from FMB was a debt represented by the February 22, 1980 note. That note was secured by a pledge of the mortgage note and through it by the collateral mortgage. The pledge is an accessory of the primary obligation. LSA-C.C. art. 1771;[4]Franklin v. Bridges Loan & Inv. Co., Inc., *397 supra. The sale of an obligation includes its accessories. LSA-C.C. art. 2645.[5] The transfer of a hand note also transfers the collateral mortgage note pledged to secure it. In re Elliott, 385 F.Supp. 1194 (M.D.La.1974); Smith v. Shippers' Oil Co., 120 La. 640, 45 So. 533 (1908); Richey v. Venture Oil & Gas Corp., 346 So.2d 875 (La.App. 4th Cir.1977). In Smith, the supreme court stated the rule that a pledgee cannot sell the thing pledged except to satisfy the debt for which it was pledged. However, the court also recognized that the pledgee could sell the note representing the primary debt and transfer the pledged securities to the purchaser as security for the sold note. Appellant seems to obliquely contend that the pledge was extinguished because the mortgage note was returned to the pledgor. However, the facts do not bear out this assertion. The mortgage note was never in the physical possession of the pledgee after February 4, 1978. It was given to Mr. Perry by FMB only after he executed a trust agreement providing that he was an escrow agent for the delivery of this note and other documents to the Bank of Morehouse. Under these circumstances the note was never even in the constructive possession of Hollanger. The fourth requirement of Toups was fulfilled.[6] This assignment of error is without merit. Assignment # 2 Through this assignment of error PCA contends that the mortgage note was not validly pledged until February 22, 1980, and therefore, the collateral mortgage is outranked by its mortgage which ranks from April 16, 1979. A collateral mortgage ranks from the date the mortgage note is pledged. Wallace v. Fidelity National Bank, 219 So.2d 342 (La.App. 1st Cir.1969), writ refused, 253 La. 1083, 221 So.2d 517 (1969); Installment Plan, Inc. v. Justice, 209 So.2d 68 (La.App. 4th Cir.1968); Rex Finance Company v. Cary, 145 So.2d 672 (La.App. 4th Cir.1962), affirmed, 244 La. 675, 154 So.2d 360 (1963); First Guaranty Bank v. Alford, supra. The merit of this assignment depends on the date on which the mortgage note was pledged. If it was prior to April 16, 1979, this assignment is without merit. For the reasons previously discussed with respect to Assignments 1 and 3 the mortgage note was pledged on February 4, 1978, and the collateral mortgage ranks from that date. This assignment is without merit. Assignment # 4 Through this assignment appellant contends that a novation occurred when the March 23, 1980, note was executed to replace the February 22, 1980, note and that, therefore, a repledge of the security was required. The linchpin of this contention is whether a novation occurred. Novation requires the specific intent to do so and cannot be presumed. LSA-C.C. art. 2190;[7]Acadiana Bank v. Foreman, supra; Sterlington Bank v. Terzia Lumber & Hardware, Inc., 146 So.2d 233 (La.App. 2d Cir.1962). The intent to novate the debt must clearly result from the agreement or acts of the parties. Sterlington Bank. *398 There is no indication in the record that the parties desired or intended to effect a novation. Instead it appears that all they desired to do was to issue a new note representing the amount owed on the existing debt. The new note in the amount of $300,000 reflects that the balance of the debt had been slightly reduced by a partial payment. Taking a new note in partial renewal of an old one upon which a payment is made does not operate as a novation, or extinguishment, of the original debt or the pledge securing it. Davis v. Welch, 128 La. 785, 55 So. 372 (1911); Smith, Howard & McCoy, Inc. v. Acme General Con. Inc., 152 So.2d 596 (La.App. 2d Cir.1963), writ refused, 244 La. 663, 153 So.2d 881 (1963); Beasley v. Martin, 253 So.2d 801 (La.App. 2d Cir.1971). This assignment of error is without merit. For the foregoing reasons the judgment is affirmed at appellant's costs. NOTES [1] The corporate name was subsequently changed to Hollanger Rice Farms, Inc. [2] Appellant's reliance on Franklin v. Bridges Loan & Inv. Co., Inc., 371 So.2d 294 (La.App. 2d Cir.1979), for the proposition that there was no pledge is misplaced. There no debt ever came into being and the court held that because of the accessorial nature of pledge there could be no pledge when there was never a debt for it to secure. In this case a debt was created on the day of the pledge and a debt has constantly been in existence since that time. [3] Durham v. First Guaranty Bank of Hammond, 331 So.2d 563 (La.App. 1st Cir.1976), writ refused, 334 So.2d 431 (La.1976), and First Guaranty Bank v. Alford, 366 So.2d 1299 (La. 1978), relied on by appellant are inapposite. In Durham, the hand note and collateral mortgage note contained no reference to each other and the debtor denied any intent to secure the hand note with the mortgage note. Here, though some of the hand notes do not refer to the mortgage note, the debtor testified that the mortgage note was intended to secure those notes. In Alford, it was held that a pledged note secured no notes other than the single note designated in the pledge agreement. In the instant case it was agreed that the mortgage note would secure both existing and future debts not only one note as in Alford. [4] LSA-C.C. art. 1771: A principal contract is one entered into by both parties, on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; such as a suretyship, mortgage and pledge. [5] LSA-C.C. art. 2645: The sale or transfer of a credit includes every thing which is an accessory to the same; as suretyship, privileges and mortgages. [6] We also note that the third requirement of Toups is met as the parties had agreed at the time of the original pledge that it would secure existing and future debts. [7] LSA-C.C. art. 2190: Novation can be made only by persons capable of contracting it; it is not presumed; as the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.

14 Ill. App.3d 493 (1973) 302 N.E.2d 651 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES DENNIS, Defendant-Appellant. No. 56988. Illinois Appellate Court — First District (5th Division). September 14, 1973. James J. Doherty, Public Defender, of Chicago, (John T. Moran, Jr., Assistant Public Defender, of counsel,) for appellant. Edward V. Hanrahan, State's Attorney, of Chicago, (Elmer C. Kissane, Ricky Petrone, and Mrs. Patricia Bobb, Assistant State's Attorneys, of counsel,) for the People. Reversed and remanded. Mr. PRESIDING JUSTICE DRUCKER delivered the opinion of the court: Defendant Charles Dennis was found guilty, after a jury trial, of armed robbery and sentenced to imprisonment in the penitentiary for a period of not less than 40 nor more than 80 years. The conviction was upheld on direct review in People v. Dennis, 47 Ill.2d 120, 265 N.E.2d *494 385. On April 20, 1971, he filed a post-conviction petition alleging that the sentence imposed was a punishment for his having exercised his constitutional right to a trial by jury and requesting that the trial judge recuse himself from ruling on the petition. The petition was supported by an affidavit of his trial attorney that a two to four year sentence offer had been made. On June 23, 1971, the petition was dismissed, without an evidentiary hearing, for failure to show "deprivation of any constitutional rights or safeguards guaranteed to" the defendant. On appeal defendant claims that (1) the allegation that his sentence was punishment for refusal to plead guilty alleged the deprivation of a substantial constitutional right, and (2) the trial judge should have recused himself because he was a material witness to his allegation. The State argues that the direct review of the conviction is res judicata of issues raised in the petition. The facts of this case are set out in detail in the 16 page opinion of the Illinois Supreme Court which accompanied the motion to dismiss. The evidence showed the defendant to be one of three persons who, with the help of a sawed-off shotgun, robbed a Chicago cab driver. One co-defendant pled guilty and was placed on probation for five years, and the charge against the other co-defendant was "nolle prossed." The record indicated that the key allegation of the petition was the following: "4. That viewing the above set out facts, must lead a resonable [sic] person to the logical conclusion that the grossly excessive sentence was imposed because petitioner chose to exercise his constitutionally guaranteed right to a trial by jury." Opinion • 1 The State concedes that "a sentence which is a punishment for exercising the right to a trial by a jury is a constitutional deprivation" (see People v. Moriarity, 25 Ill.2d 565, 185 N.E.2d 688) but argues that the question was waived by petitioner's failure to raise it on direct appeal. It cites People v. Derengowski, 44 Ill.2d 476, 479, 256 N.E.2d 455, wherein the court stated: "[I]t is not within the view of the Act to have claims determined which could have been presented upon a direct review of the conviction (People v. Doherty, 36 Ill.2d 286), and to this end we have consistently held that when an appeal is taken, as it was in this case, the judgment of the reviewing court is res judicata not only as to all issues actually raised, but also as to those issues which could have been raised but were not, the latter issues being deemed to have been waived." • 2 However, where fundamental fairness requires it, the rule of *495 waiver will be relaxed. (People v. Hamby, 32 Ill.2d 291, 294, 205 N.E.2d 456.) In the case at bar the precise issue raised by the post-conviction petition was not considered by the Illinois Supreme Court in its opinion. (People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385.) Moreover, the allegations made by petitioner can be proven only by facts (if they do exist) outside the record, and therefore the issue could not have been raised on direct review. The affidavit of defendant's trial counsel indicates that Judge Holzer represented "that he would impose a sentence of two to four years, State Penitentiary, if petitioner would enter a plea of guilty to both indictments," and that the two Assistant State's Attorneys said they would recommend a sentence of two to five years. We therefore believe that the issue now raised is not barred by the waiver rule. • 3 The allegations in the petition along with the fair inferences to be drawn therefrom and the supporting affidavits sufficiently raise the issue of whether the petitioner was denied a constitutional right. Therefore, the judgment is reversed and the cause is remanded with directions to conduct an evidentiary hearing. We agree with petitioner that the hearing should be conducted by a judge other than Judge Holzer whose testimony will likely be required at the hearing. See People v. Jones, 7 Ill. App.3d 146, 148, 287 N.E.2d 227. The judgment of the circuit court of Cook County is reversed and the case remanded for an evidentiary hearing on the petition. Reversed and remanded with directions. LORENZ and SULLIVAN, JJ., concur.

689 N.E.2d 344 (1997) 294 Ill. App.3d 113 228 Ill.Dec. 472 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald MANUEL, Defendant-Appellant. Nos. 1-95-4163, 1-96-2144. Appellate Court of Illinois, First District, Fourth Division. December 31, 1997. *346 Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (John S. Young, Mundelein, of counsel), for Defendant-Appellant. Richard A. Devine, State's Attorney, County of Cook (Renee Goldfarb, James E. Fitzgerald, Kim A. Novi, Asst. State's Attorneys, of counsel), for Plaintiff-Appellee. Justice WOLFSON delivered the opinion of the court: Before his cocaine delivery trial, the defendant Gerald Manuel challenged the admissibility of recordings of his telephone conversations with an informant and a drug enforcement agent. He was unsuccessful. At trial, the jury heard the conversations where the defendant negotiated terms and conditions for the sale of cocaine. After a jury trial, Manuel was found guilty of delivering more than 100 grams, but less than 400 grams, of cocaine in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill.Rev.Stat.1991, ch. 56½, par. 1401(a)(2)(B) (West 1992)); (now 720 ILCS 570/401(a)(2)(B) (West 1992)). The sentencing range for this offense is 9 to 40 years. Manuel was sentenced to 12 years imprisonment. After trial, Manuel filed an appeal from his conviction and sentence. Before any appeal briefs were submitted, however, Manuel filed a pro se post-conviction petition. The trial court summarily dismissed the post-conviction petition without an evidentiary hearing. Now, in this consolidated appeal, we address Manuel's direct appeal from his conviction, as well as his appeal from the denial of post-conviction relief. We affirm the trial court's orders in both proceedings. FACTS At trial, the following evidence was presented: *347 Chris Robinson (Robinson) was a convicted felon with an extensive criminal history. Then, between September 1992 and January 1993, he came under investigation for dealing in cocaine. He made five deliveries to undercover agents during this time period and a warrant was issued for his arrest. On April 6, 1993, Robinson turned himself in to the FBI. He later pled guilty to the five deliveries. He knew he could be facing a sentence of up to 150 years imprisonment because of the five deliveries and his past criminal history. Therefore, when the FBI asked for his cooperation, he agreed to be an informant in the hope of obtaining leniency. On April 8, 1993, while represented by legal counsel, Robinson signed an agreement to cooperate with the government law enforcement officers in exchange for a promise that his cooperation would be taken into consideration at the time of sentencing. Robinson then disclosed information about one of his Chicago drug suppliers, known to him as "Tate," but later identified as defendant, Gerald Manuel. Robinson said he had been obtaining drugs from Manuel for the past year. Robinson would purchase between two and 14 ounces of cocaine from Manuel every week or two. Robinson also socialized with Manuel over the past year. Their relationship was friendly. In addition to revealing this source, Robinson agreed to arrange for an undercover agent to purchase cocaine from Manuel and to accompany this agent at the purchase. Sometime on April 12th or 13th, Robinson paged Manuel from Springfield and, when Manuel called back, made arrangements for this drug purchase. On April 14th Robinson paged Manuel again, this time from the offices of the Springfield State Police. Robinson explained that whenever he paged Manuel he entered a special code number—"223"—which identified him to Manuel as the caller. Manuel phoned Robinson at the station. The conversation was recorded with Robinson's permission. A tape-recording of this conversation was entered into evidence. In this conversation, Robinson told Manuel he had a buyer—female—who was willing to purchase 1/4 of a "key" or "kilo" of cocaine (about nine ounces) for $7,000. The $7,000 price apparently was high, but Robinson told Manuel he could "juice" the buyer. Robinson explained to the jury this meant Manuel could overcharge her. During this conversation, Robinson told Manuel his last delivery was "no good" and he lost "3Gs" because of the poor quality of the cocaine that was delivered. Robinson explained to the jury "3Gs" meant $3.000. On April 15, 1993, Robinson drove to the Chicago area in the company of FBI Agent Ranck and Illinois State Police Officer Marks. At about 1 p.m., Robinson met Agent Yorli Huff, a female officer for the Northeast Metropolitan Enforcement Group (NEMEG, now called MEG of Cook County), a multi-jurisdictional drug task force. They met at the Hillside Police Department at 30 Wolf Road. From this station, Robinson paged Manuel. Manuel answered the page, calling a phone hooked up to a recording device at the Hillside Police Station. With the written consent of both Agent Huff and Robinson, their phone conversations with Manuel were recorded. This recording, too, was placed into evidence. In this conversation, Manuel agreed to deliver cocaine to Robinson's buyer. He told Robinson and Huff to meet him at 7650 Greenwood in Chicago. This location, said Robinson, was a residence where he typically met with Manuel. Robinson had been there numerous times before. Robinson, wearing a "body wire" (recording device), rode with Huff to this location. MEG officers Lewis and Beavers, riding in another unmarked car, were among the approximately 20 State police, Chicago police, and Cook County Sheriff's officers assigned to the operation to provide back-up. At about 4:15 p.m., Robinson arrived at 7650 Greenwood. He got out of the car alone and went to the second-floor residence. Manuel called him there and told him to wait for him. Robinson went outside for a while, then returned to the residence, and received a second call from Manuel at about 4:30 p.m. During this second conversation Robinson told Manuel to be sure to bring him four *348 ounces of "raw" (powder cocaine) to make up for his last bad deal. Robinson went back outside and Manuel arrived at about 5 p.m., riding in a cream-colored Cadillac driven by a man later identified as (co-defendant) Patterson[1]. Patterson went inside the residence, but Manuel met with Robinson in the street and then came over to meet Huff, who was sitting in the car. After meeting Huff, Manuel told Robinson to follow him. Manuel got back into his Cadillac with Patterson and drove off. Robinson attempted to follow, but Patterson began driving fast and "crazy." Huff called off the deal and the officers regrouped at a police station at 71st and Cottage Grove. From this location Robinson again paged Manuel. Manuel returned the call and Robinson complained about his driving. Manuel explained that he saw a car following them and thought it might be the police. Robinson allayed Manuel's fears by explaining that the car following them was Huff's "security." Having been reassured, Manuel again agreed to go through with the deal. He told them to meet him in the Walgreen's parking lot at 127th and Halsted. Officer Judge testified at trial. He was part of the surveillance team providing backup for the drug purchase. Before Robinson and Huff arrived at the Walgreen's parking lot, Officer Judge noticed a blue Nissan Maxima, with license plate number WXH 925, enter the Walgreen's parking lot. A man he identified as Patterson drove the car into the lot, parked it, and then got into a cream-colored Cadillac. The officer identified Manuel as the driver of the Cadillac. The Cadillac then left the parking lot. Later, at about 6 p.m., Robinson and Huff pulled into the parking lot. According to Robinson's testimony, MEG agents Lewis and Beavers, who had been identified as Huff's "security," followed them into the Walgreen's parking lot. Soon the cream-colored Cadillac pulled into the lot. Patterson got out of the Cadillac and went into the Walgreen's store. Manuel walked over to Robinson and asked to meet Huff's "security." Huff and Robinson then brought Manuel over to the other car, where he shook hands with Officer Lewis. Officer Lewis showed Manuel a black money bag containing $7,000. He did not turn over the money to Manuel. Manuel, Robinson testified, seemed uneasy. He walked around the officers' car and suggested that Huff's "security" looked like detectives. Nevertheless, he walked back to Robinson's car with Robinson and Huff, got in, and negotiated with Huff for the sale of the cocaine. Huff told Manuel she would not pay until she saw the drugs. Manuel handed a car key to Robinson and told him the key belonged to the blue Nissan Maxima parked in the lot. The drugs were in the car, he said. The three of them exited Robinson's car. With Manuel's permission, Robinson gave the key to Huff and she walked over to the Maxima. When Huff started to open the passenger compartment of the car, Manuel corrected her and told her to open the trunk. Huff opened the trunk, but it appeared empty. Then Manuel came over and pulled up the lining in the trunk to expose a brown paper bag. Huff retrieved the bag from the trunk and looked inside. She saw two plastic bags, one containing off-white or brownish "chunks," and a second containing an off-white powder. Huff said the stuff "looked good." This was a signal to the many officers in the area to move in and effect the arrest of Manuel and Patterson. Within minutes, both Manuel and Patterson were arrested in the Walgreen's parking lot. Neither of them was found to be in possession of any weapons. Along with the testimony of Agent Huff, Agent Lewis, and Chris Robinson, the State presented the testimony of Richard Paulas, Assistant Director of the Illinois State Police Lab at Maywood. In 1993, he had been working as a forensic chemist at the facility and performed identifying tests on the substances Agent Huff recovered from Manuel and suspected to be cocaine. Paulas testified that the "chunky" off-white substance found in the plastic bag marked as exhibit 3A *349 weighed 243.0 grams. Further tests indicated that the substance contained cocaine in a "free base" form. The other plastic bag, marked as exhibit 3B, contained a more powdery substance. This, too, tested positive for the presence of cocaine, in a "salt" form. The form of the cocaine, Paulas explained, accounted for the different ways the two substances reacted to the various tests. Paulas did not determine the purity of the substances and did not know the percentage of cocaine in the two samples. He testified only that both substances tested positive for the presence of cocaine in each of the three confirmation tests he performed. In addition to the live witness testimony, the State offered into evidence the tape recordings of phone conversations Manuel had with Robinson and Agent Huff, as well as recordings obtained from the body wire worn by Robinson during the course of the drug transaction. A certified copy of Manuel's application for license number WXH 925, registered to a blue Nissan Maxima, also was admitted into evidence. The following stipulation by the State and defense counsel also was entered: "It would be stipulated between the parties, the People of the State of Illinois and the defense, between defense counsel Deborah Grohs and Kevin Smith, that the recordings and conversations were made pursuant to Chapter 725, Illinois Compiled Statues, Article 108A, and that Larry Wayne, AKA Chris Robinson, consented for all recorded conversations, and the conversations were recorded on April 14, 1993, and April 15th, 1993, and the equipment to record the conversations was in proper working condition, and accurately recorded the conversations on tape, and the chain of custody of all tape recordings was correct and proper at all times, and that each original tape contains an accurate recording of the conversations that occurred, that all copies of the tapes are true and accurate reproductions of the original tapes, and that Northeast Metropolitan Enforcement Group Agent Yorli Huff and Larry Wayne, AKA Christopher Robinson, listened to all of the tapes and assisted in the preparation of the transcripts of all." The defense presented no witnesses. After hearing arguments by counsel and instructions from the court, the jury found defendant guilty of delivering more than 100 grams, but less than 400 grams, of cocaine. A post-trial motion was filed. Before sentencing, the trial court addressed this motion, refuted each and every issue raised, and denied the motion for new trial. Manuel then was sentenced to 12 years imprisonment. DECISION Motion to Suppress State's Use of Audiotapes The first issue on appeal is whether the trial court erred when it refused to suppress the audio tape-recordings of conversations between Manuel and the confidential informant, Chris Robinson. Manuel contends the State did not comply with the requirements of section 108A-3 of the Code of Criminal Procedure (725 ILCS 5/108A-3 (West 1994)), when it obtained judicial approval for the use of an eavesdropping device. Section 108A-3 states, in pertinent part: "(a) Where any one party to a conversation to occur in the future has consented to the use of an eavesdropping device to overhear or record the conversation, a judge may grant approval to an application to use an eavesdropping device pursuant to the provisions of this section. Each application for an order authorizing or subsequently approving the use of an eavesdropping device shall be made in writing upon oath or affirmation to a circuit judge, or an associate judge assigned for such purpose pursuant to Section 108A-1 of this Code, and shall state the applicant's authority to make such application. Each application shall include the following: * * * * * * (2) * * *(c) the identity of the party to the expected conversation consenting to the use of an eavesdropping device * * *." 725 ILCS 5/108A3(a)(2) (West 1994). In the present case, the confidential informant, Chris Robinson, gave written consent to the overhear and recording of conversations *350 he had with the defendant. However, the section 108A-3 application stated that "Larry Wayne (alias)" was the consenting party. Also, the consent form Robinson signed identified Robinson as "Larry Wayne (alias)" and that is how Robinson signed the form. Manuel contends that the State's use of an alias when identifying Robinson as the consenting party was legally insufficient and the trial court should have suppressed all audio tape-recordings to which Robinson consented. In response, the State argues the trial court properly admitted the audiotapes into evidence. The court's ruling, says the State, may be supported for three separate reasons: (1) the State was not required to obtain section 108A-3 judicial approval for these recordings, so any alleged defect in the application is immaterial; (2) identifying the consenting party by an alias is legally sufficient under section 108A-3; and (3) even if the article 108A application was not legally proper, the error was harmless. In People v. Herrington, 163 Ill.2d 507, 206 Ill.Dec. 705, 645 N.E.2d 957 (1994), the supreme court reversed the trial court's suppression of an audiotape obtained under conditions nearly identical to this case. The Herrington court ruled that the audiotape of the conversation between the victim of a sexual offense and the perpetrator was admissible without article 108A authorization, where the victim telephoned the perpetrator from the police station, at the direction of the police, and the conversation was recorded with the victim's permission. Reading into the eavesdropping statute (720 ILCS 5/14-2 (West 1994)) an exclusion where the person consenting to the recording is also a party to the conversation, the Herrington court said, "The recording of a conversation by a party to that conversation was simply a means of preserving a more accurate account of what he had heard." (Emphasis added.) Herrington, 163 Ill.2d at 510, 206 Ill.Dec. 705, 645 N.E.2d 957. See also People v. Siwek, 284 Ill.App.3d 7, 219 Ill.Dec. 444, 671 N.E.2d 358 (1996) (where consent is given by one party to the conversation, the other party has no legitimate expectation of privacy and eavesdropping does not occur). Even if we were to ignore the clear directive of Herrington and interpret the eavesdropping statute as requiring article 108A judicial authorization where the conversation is being recorded for law enforcement purposes, and the targeted subject is unaware of the recording of his conversation, there is no basis for suppressing the audiotapes in this case. The State applied for and obtained article 108A authorization for recording Manuel's conversations with Robinson. We find no principled reason for invalidating the judicial authorization that was granted simply because the State's application identified the consenting party by an alias. The statute states that the application must include "the identity of the party to the expected conversation consenting to the use of an eavesdropping device." 725 ILCS 5/108A-3(a)(2) (West 1994). The statute does not require the consenting party to be identified in any particular way. A defendant's Fourth Amendment rights are not abridged when an affiant to a search warrant uses a fictitious name. See People v. Stansberry, 47 Ill.2d 541, 268 N.E.2d 431 (1971); People v. O'Kiersey, 46 Ill.2d 198, 263 N.E.2d 488 (1970). An affidavit given for the purpose of obtaining article 108A authorization for recording a defendant's conversations is analogous to an application for a search warrant. The affiant's use of an alias is acceptable where the issuing judge is told the name is fictitious. There is no allegation that the informant does not exist, nor is there any doubt that Robinson exists, since he testified at trial. Also, there is no question that the judge issuing the article 108A authorization was aware that the affiant's name was an alias, since that fact was noted in the affidavit. The informant did not provide reasonable grounds for the judge's order. He was not asked to. That information came from law enforcement agents. The only purpose of the informant's affidavit was to establish that *351 one party to the anticipated conversations in fact consented to the recording. At trial, the defense stipulated to the fact that "Larry Wayne, AKA Chris Robinson," consented to the recording of his conversations with Manuel. Since the purpose and reasoning behind requiring article 108A authorization were satisfied and the State gained no tactical advantage by using an alias, any technical defect in the State's compliance with the statutory requirements of article 108A does not require suppression. See People v. O'Toole, 226 Ill.App.3d 974, 169 Ill.Dec. 31, 590 N.E.2d 950 (1992)(where the error could not have altered the trial court's determination that an eavesdropping device should have been authorized, the error doesn't require suppression); People v. Rogers, 141 Ill.App.3d 374, 95 Ill.Dec. 660, 490 N.E.2d 133 (1986). For all the reasons stated above, the motion to suppress was properly denied. Other Crimes Evidence In his second issue on appeal, Manuel contends that the trial court erred in allowing the State to introduce "other crimes" evidence, i.e., evidence of his previous drug deals with Robinson. The trial court ruled that this evidence was admissible as "course of conduct" evidence. We agree. This writer has addressed the issue elsewhere: "Any analysis of FRE 404(b) must be confined to other crimes, wrongdoings, or acts. That is, the conduct must have been extrinsic to the matter being tried, not contained in it, not part of it. Courts also call this extrinsic conduct evidence "other acts" or "uncharged misconduct" evidence. For example, a defendant's prior heroin sale to Adam is extrinsic to the charge that he sold heroin to Baker. The prior sale may be offered to prove the defendant's knowledge or intent in connection with the sale to Baker. It may not be offered as character evidence, that is, to show he is the kind of person who is more likely to have made the sale to Baker. When the prior conduct is intrinsic to the matter being charged, belonging to it, part of it, or, as some cases say `inextricably intertwined' or a `continuing course of conduct,' FRE 404(b) is not implicated, and the general principles of relevance apply. Intrinsic evidence can be part of the episode being tried, or it can consist of necessary preliminaries to the matter being tried." Mauet, Wolfson, Trial Evidence, ch. V, p. 102 (1997). Illinois has adopted the same treatment of "other crimes" evidence. See People v. Bartall, 98 Ill.2d 294, 74 Ill.Dec. 557, 456 N.E.2d 59 (1983); People v. Davis, 248 Ill.App.3d 886, 891, 187 Ill.Dec. 660, 617 N.E.2d 1381 (1993) ("other offenses" or "extrinsic acts" evidence includes not just offenses but other bad or wrongful acts and may not be admitted to demonstrate defendant's propensity to commit the crime charged, but may be admitted if it is relevant to establish any other material question). See also, Cleary and Graham's Handbook of Illinois Evidence (6th edition 1994), article IV, § 404.5, p. 218: "Moreover, where the evidence of the act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and the rule relating to `other crimes' evidence is not implicated, simply because such evidence formed an integral and natural part of the witness's account of the circumstances surrounding the offenses for which the defendant was indicted." In the present case, Robinson's testimony, as well as the references in the audiotapes to Robinson's previous drug deals with Manuel, were not, strictly speaking, "other crimes" evidence. Though the prior deals were not part of the same episode, they were a necessary preliminary to the current offense. Thus, the rules of evidence concerning "other crimes" evidence was not implicated and the evidence was admissible under ordinary relevancy principles. In this case, the evidence was relevant to show Manuel's course of conduct and his illicit relationship with Robinson. Though defense counsel did not actually raise an entrapment defense, references were made to defendant being "ensnared" by the government and to Robinson's desire to cut *352 himself a better deal. The State was entitled, therefore, to show Manuel's willingness to be involved with someone he had been dealing with. The evidence also provided an explanation of an aspect of the crime not otherwise understandable. That is, the conversations regarding the prior sale of cocaine to Robinson in which the quality of cocaine had been bad explained why Manuel delivered an additional four ounces of cocaine in addition to the nine ounces of cocaine bargained for by Huff. Even if the evidence were "other crimes" evidence, it would be admissible if offered for any purpose other than to establish character and propensity to commit the crime. See People v. LeCour, 273 Ill.App.3d 1003, 210 Ill.Dec. 245, 652 N.E.2d 1221 (1995). Intent, knowledge, purpose, motive, common design, plan, scheme, absence of mistake, opportunity or preparation, or the circumstances of the crime that would be otherwise unclear are proper and valid reasons for admitting "other crimes" evidence. People v. Kimbrough, 138 Ill.App.3d 481, 93 Ill.Dec. 82, 485 N.E.2d 1292 (1985). Whether we analyze the admission of the evidence of prior drug deals with Robinson as "other crimes" evidence or merely assess the evidence under normal relevancy standards, we find no abuse of discretion in the trial court's decision to admit this evidence. Audiotapes and their transcripts The next two issues concern the audiotapes and their transcripts. Defendant contends that the trial court erred because it allowed the jury "unlimited access" to the transcripts throughout trial and because it did not instruct the jury the transcripts were not evidence. Manuel also complains the trial court should not have allowed the audiotapes to go into the jury room during deliberations. With regard to the transcripts, we find no abuse of discretion in the trial court's actions. When the transcripts were first distributed to the jurors during Robinson's testimony, defense counsel complained to the judge that the jurors were reading them instead of listening to the testimony. The court refused to take the transcripts away because the State said the transcripts were going to be used during Robinson's examination. Defense counsel then asked for alternative relief ___ that the jury be instructed to stop reading the transcripts until directed to do so. The court instructed the jury according to counsel's suggestion. Later on, when the State completed its examination of Robinson, defense counsel again complained that the jury had been reading the transcripts even when the audiotapes were not being played. The court said, "I wish you would have said something before." The court then immediately had the transcripts collected from the jury. The trial court, in granting the alternative relief, corrected the problem perceived by defense counsel. Later, when the same problem was brought to his attention, the transcripts were removed. There is no evidence of prejudice stemming from the court's rulings, nor does defendant suggest in what way he was prejudiced. We find nothing inappropriate about the court's actions. We also note defendant has not cited a single case in support of his claim that the court erred. In addition, the trial court properly instructed the jury with regard to the transcripts. First, when the trial court distributed the transcripts to the jurors, it told them the transcripts were to be only used as an aid and were not to be considered evidence themselves. Later, at the close of the trial, the court instructed the jurors to disregard testimony or evidence that had been refused or stricken; that evidence received for a limited purpose should not be considered for any other purpose; and the evidence to be considered consisted only of the testimony and exhibits entered into evidence. The transcripts were not entered into evidence or provided to the jury during deliberations. It should be noted, too, that defense counsel never requested a specific instruction regarding the transcripts at the close of trial. Because the instructions given by the court, taken as a whole, properly instructed the jurors regarding the evidence, there was *353 no error caused by the court's failure to specifically instruct the jurors, at the close of trial, that the transcripts were not evidence. We also find no error in the trial court's exercise of its discretion when it decided, over defense objection, to send the audiotapes in with the jury during deliberations. We see no reason to treat audiotapes any differently than other evidentiary exhibits. Such evidence may be used by the jury during deliberations at the discretion of the trial court. People v. Rogers, 123 Ill.2d 487, 123 Ill.Dec. 963, 528 N.E.2d 667 (1988) (the decision of whether to allow the jurors to take exhibits into the jury room is left to the sound discretion of the trial court). In this case, the defense made several claims regarding the quality of the tapes and suggested that the State "created" the transcripts because the tapes were not understandable. Under these circumstances, it was appropriate for the jurors to have access to the tapes during deliberations so that they could determine, for themselves, the extent to which the tapes confirmed the State's claim that defendant willingly was involved in the delivery of an illegal substance. Sentence Defendant contends the trial court abused its discretion when it sentenced him. He claims the trial court relied on two improper aggravating factors—the seriousness of the societal harm caused by drug-related crime and the compensation he received for committing the crime. These factors are implicit in the offense, says defendant, and should not have been considered in aggravation. Defendant also contends that the trial court failed to consider his rehabilitative potential—the fact he had no prior convictions or juvenile record and had previously attended college— when imposing sentence. As the State points out, no post-sentencing motion was filed in this case and under the mandates of section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1994)), as interpreted by the supreme court in People v. Reed, 177 Ill.2d 389, 226 Ill.Dec. 801, 686 N.E.2d 584 (1997), this issue is waived. Even if the issue were not waived, the record does not support defendant's position. The record shows during the sentencing hearing defense counsel suggested to the court that a number of factors in mitigation were present, but that none of the aggravating factors existed. In response, the court indicated that it saw things differently. Then the court went through the list of aggravating factors, commenting on each. Though no one was "injured" by this offense in the traditional sense, the court said that the sale of drugs causes harm to everyone in the chain of purchase, including children. The court also found the second aggravating factor—receiving remuneration— applied since Manuel was in the business of selling drugs for profit. The court also noted the evidence indicated Manuel had been in the drug business for some time. Though Manuel had no prior arrests or convictions, the court said it could not ignore the evidence of Manuel's criminal history—that this was not a one time, isolated incident. The court also considered that no one induced or forced Manuel to commit the crime. There is nothing in the court's comments which indicate it improperly emphasized any of the aggravating factors. The court's remarks indicate only that it was taking into account the nature of the offense. Nor did the court fail to consider Manuel's rehabilitative potential. A trial court's decision on the proper sentence to be imposed, especially when it is within the statutory range, is entitled to great deference. People v. Miller, 286 Ill.App.3d 297, 221 Ill.Dec. 788, 676 N.E.2d 309 (1997). The trial judge is in a better position to assess the situation and determine a proper sentence. On review, it is presumed the trial court gave proper consideration to all factors, including rehabilitative potential, and the defendant has the burden of affirmatively showing the contrary. Miller, 286 Ill.App.3d at 304, 221 Ill.Dec. 788, 676 N.E.2d 309. A sentence will not be altered on review unless the trial court abused its discretion. People v. Streit, 142 Ill.2d 13, 19, 153 Ill.Dec. 245, 566 N.E.2d 1351 (1991). *354 There has been no affirmative showing the trial court used improper reasoning when fashioning a sentence, nor do we find the court abused its discretion by imposing a 12 year sentence when the statutory range was between 9 and 40 years. Appeal of the Dismissal of the Post-Conviction Petition In the consolidated appeal from the dismissal of Manuel's post-conviction petition without an evidentiary hearing, Manuel argues only one issue: the ineffective assistance of trial counsel. He contends his trial counsel was ineffective because (1) a "fatally flawed" entrapment defense was presented, (2) no investigation was made regarding the whereabouts of the blue Nissan Maxima, and (3) the cross-examination of State witnesses was "meaningless." In People v. Olinger, 176 Ill.2d 326, 341-42, 223 Ill.Dec. 588, 680 N.E.2d 321 (1997), our supreme court said: "A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right; rather an evidentiary hearing is required only when the allegations of the petition, supported by the record or accompanying affidavits, makes a substantial showing of a violation of a constitutional right." The only constitutional right defendant claims he was denied is the effective assistance of counsel. In order for a defendant to succeed on a claim of ineffective assistance of counsel, however, he must show (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance so prejudiced defendant that there is a reasonable probability that the outcome of the trial would have been different without counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Simms, 168 Ill.2d 176, 213 Ill.Dec. 576, 659 N.E.2d 922 (1995). A reviewing court may reject a claim of ineffective assistance of counsel by finding that defendant was not prejudiced by counsel's representation without determining whether counsel's performance was deficient. People v. Lear, 175 Ill.2d 262, 222 Ill.Dec. 361, 677 N.E.2d 895 (1997); People v. Erickson, 161 Ill.2d 82, 90, 204 Ill.Dec. 231, 641 N.E.2d 455 (1994). The first argument—that one of counsel's "main focus" was an entrapment defense—is not supported by the record. As defendant acknowledges, counsel never said the defense would rely on entrapment. To show that one of counsel's "main focus" was entrapment, defendant makes reference to a single statement by counsel. We have reviewed the transcripts of this two-day trial. The record does not support defendant's claim that this isolated reference to entrapment constituted a "focus" on entrapment as a defense. The next point — counsel's failure to investigate the whereabouts of the blue Nissan Maxima — is irrelevant. In his argument, Manuel merely speculates that the Maxima was an "evidentiary key to the defense." There is nothing to support this claim, nor can we imagine in what way the Maxima could have assisted Manuel's defense. Simply, counsel's failure to investigate this collateral matter could not be evidence of a deficiency. Lastly, Manuel claims trial counsel's cross-examination of State witnesses was "meaningless." Once again, however, the record does not support Manuel's claim. In fact, during the cross-examination of Huff, counsel succeeded in showing her hostility to the defense by her reluctance to answer simple questions. The court commented on this and rebuked the witness for her obstructionist attitude. This may have been defense counsel's strategy—to decrease this witness's credibility in the eyes of the jurors and to curry some sympathy. In light of the overwhelming evidence, defense counsel was left with little else to do. In any event, we cannot say the record demonstrates trial counsel failed to subject the State's case to "meaningful adversarial testing." See People v. Nunez, 263 Ill.App.3d 740, 200 Ill.Dec. 379, 635 N.E.2d 718, (1994). Since there is no basis to defendant's claim that he received ineffective assistance of counsel, it was not error for the trial court *355 to have dismissed the post-conviction petition without an evidentiary hearing. CONCLUSION Defendant Gerald Manuel's conviction for the delivery of more than 100 grams, but less than 400 grams, of cocaine and the 12 year sentence imposed are affirmed. The trial court's dismissal of defendant's post-conviction petition is also affirmed. AFFIRMED. CERDA, P.J., and McNAMARA, J., concur. NOTES [1] Patterson's bench trial for the same offense was held simultaneously with Manuel's jury trial.

Altman v Kelly (2015 NY Slip Op 04076) Altman v Kelly 2015 NY Slip Op 04076 Decided on May 13, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D. LASALLE, JJ. 2014-01336 (Index No. 09-2063) [*1]Peter Altman, respondent, vSteven Kelly, defendant, Islip Pizza Restaurant, Inc., doing business as Gino's Tuscany Restaurant, appellant. Ryan & Conlon, LLP, New York, N.Y. (Elizabeth Malang of counsel), for appellant. Kenneth J. Ready, Mineola, N.Y. (Gregory S. Gennarelli of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant Islip Pizza Restaurant, Inc., doing business as Gino's Tuscany Restaurant, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated October 16, 2013, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against it, and denied its cross motion pursuant to CPLR 3123(b) for leave to withdraw the admissions contained in its response to the plaintiff's notice to admit. ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendant Islip Pizza Restaurant, Inc., doing business as Gino's Tuscany Restaurant, is denied without prejudice to renewal upon completion of discovery, and the cross motion of the defendant Islip Pizza Restaurant, Inc., doing business as Gino's Tuscany Restaurant, for leave to withdraw the admissions contained in its response to the plaintiff's notice to admit is granted. This action arises out of a motor vehicle accident between the plaintiff's motorcycle and a motor vehicle owned and operated by the individual defendant, Steven Kelly. The plaintiff commenced this action against Kelly and Kelly's employer, Islip Pizza Restaurant, Inc., doing business as Gino's Tuscany Restaurant (hereinafter Islip Pizza). The plaintiff alleged that Islip Pizza was liable for Kelly's negligence under the doctrine of respondeat superior. As relevant to this appeal, in a notice to admit pursuant to CPLR 3123, the plaintiff sought Islip Pizza's admission that, at the time of the collision, Kelly was "in the course of his employment" with Islip Pizza, was "acting in the scope of his employment" with Islip Pizza, and was "acting in furtherance of the business activities of" Islip Pizza. Islip Pizza timely responded to the plaintiff's notice, and it admitted each of the listed items. Thereafter, the plaintiff moved for summary judgment on the issue of liability against the defendants. Islip Pizza opposed the motion, and cross-moved for leave to withdraw its admissions, contending, among other things, that the notice to admit was improper inasmuch as it sought admissions of ultimate conclusions in the action. Islip Pizza also submitted evidence tending to support its contention that Kelly was not, at the time of the accident, acting in the course of his [*2]employment with Islip Pizza, in the scope of that employment, or in furtherance of Islip Pizza's business. The Supreme Court denied Islip Pizza's cross motion to withdraw its admissions and granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against it. Islip Pizza appeals from so much of the order as denied its cross motion and granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against it. Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, "the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry" (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by "eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper" (DeSilva v Rosenberg, 236 AD2d 508, 508; see Priceless Custom Homes, Inc. v O'Neill, 104 AD3d 664, 664-665; Voigt v Savarino Constr. Corp., 94 AD3d 1574, 1575; Washington v Alco Auto Sales, 199 AD2d 165, 165; Villa v New York City Hous. Auth., 107 AD2d 619, 619-620; see generally 7th Ann Rep of Jud Council [1941] at 307-308). Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission "on such terms as may be just" (CPLR 3123[b]; see Torres v McCormick, 35 AD3d 443, 444; Felice v St. Agnes Hosp., 65 AD2d 388, 395). Here, Islip Pizza's liability depends entirely on whether it is liable for Kelly's acts under the doctrine of respondeat superior. The plaintiff's requests to admit thus were addressed to the core legal and factual issues pertaining to Islip Pizza (see Priceless Custom Homes, Inc. v O'Neill, 104 AD3d at 664-665; Stanger v Morgan, 100 AD3d 545, 546; Riner v Texaco, Inc., 222 AD2d 571, 572; Gomez v Long Is. R.R., 201 AD2d 455, 456). Moreover, the facts underlying the determination of whether Islip Pizza is liable for Kelly's alleged negligence may be obtained through discovery, including depositions of the defendants (see Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890, 893; DeSilva v Rosenberg, 236 AD2d at 509). Under the circumstances, Islip Pizza's cross motion to withdraw its admissions should have been granted (see Torres v McCormick, 35 AD3d at 444; cf. Webb v Tire & Brake Distrib., Inc., 13 AD3d 835, 838). In the absence of Islip Pizza's admissions, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law against Islip Pizza on the issue of liability (cf. 5Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772). Accordingly, that branch of the plaintiff's motion which sought summary judgment against Islip Pizza on the issue of liability must be denied, without prejudice to renewal after the completion of discovery (see CPLR 3123[b]; cf. DeSilva v Rosenberg, 236 AD2d at 509). BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

Case: 15-40754 Document: 00513383374 Page: 1 Date Filed: 02/17/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40754 Conference Calendar United States Court of Appeals Fifth Circuit FILED February 17, 2016 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. LUIS ANGEL DELVALLE, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:14-CR-826-1 Before DAVIS, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Appealing the judgment in a criminal case, Luis Angel Delvalle raises an argument that is foreclosed by United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), which held that knowledge of drug type and quantity is not an element of a 21 U.S.C. § 841 offense. The motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. * 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. 

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557- 1030; [email protected] SJC-11475 COMMONWEALTH vs. PAUL STEWART. Plymouth. March 6, 2014. - August 7, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.1 Controlled Substances. Habitual Offender. Constitutional Law, Search and seizure, Investigatory stop, Probable cause, Reasonable suspicion. Threshold Police Inquiry. Probable Cause. Search and Seizure, Threshold police inquiry, Reasonable suspicion, Search incident to lawful arrest, Fruits of illegal search, Probable cause. Indictments found and returned in the Superior Court Department on July 23, 2008. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the cases were tried before Judith Fabricant, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. James P. Vander Salm for the defendant. Zachary Hillman, Assistant District Attorney (Melissa L. Brooks, Assistant District Attorney, with him) for the Commonwealth. 1 Justice Ireland participated in the deliberation on this case prior to his retirement.  2 Michael J. Fellows, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. William W. Adams, for Tari Richardson, amicus curiae, submitted a brief. GANTS, J. A Superior Court jury convicted the defendant of possession of a class B substance (cocaine) with intent to distribute, in violation of G. L. c. 94C, § 32A (c).2 After that guilty finding, in the second part of a bifurcated trial, the jury found that the defendant had previously been convicted in 2006 of distribution of a class B substance and in 1994 of assault and battery by means of a dangerous weapon, and that he had been committed to prison for not less than three years on each of these prior convictions. As a result, the defendant was sentenced both under G. L. c. 94C, § 32A (d), which provides for a sentence of not less than five years nor more than fifteen years in State prison where a defendant is convicted of a violation of § 32A (c) after an earlier conviction of that offense, and under G. L. c. 279, § 25, as a habitual offender, which requires that the defendant "be punished by imprisonment in the [S]tate prison for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced," which the judge determined to be the statutory maximum of fifteen years in State prison. In an unpublished memorandum and 2 The jury found the defendant not guilty of possession of cocaine with intent to distribute in a school zone.  3 order pursuant to rule 1:28 of the Appeals Court, a panel of that court affirmed both the conviction and the sentence. Commonwealth v. Stewart, 81 Mass. App. Ct. 1135 (2012). We granted the defendant's application for further appellate review. On appeal, the defendant claims that the judge erred in denying his motion to suppress, that the defendant was prejudiced by the admission of statements made by the prosecutor and some of the Commonwealth's witnesses that suggested that the defendant was known to be a drug dealer, and that the sentence was illegal because he was sentenced both as a subsequent offender and as a habitual criminal. We conclude that the motion to suppress should have been allowed and therefore vacate the defendant's conviction. Because the conviction is vacated and there is no significant likelihood that the case can be tried without the evidence that has been suppressed, we do not reach the trial or sentencing issues.3 Motion to suppress. We summarize the facts as found by the motion judge, supplementing those findings with evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), and cases cited. 3 We acknowledge the amicus briefs submitted by the Committee for Public Counsel Services and counsel for Tari Richardson.  4 In the early evening of May 22, 2008, Sergeant Detective William Dwan, and Officers Peter Chu, John Ryle, and Brian Linehan of the Boston police department were returning to the police station in an unmarked sport utility vehicle after completing an undercover assignment. In Boston's theater district, Dwan observed the defendant walking on Washington Street followed by two men and one woman. The woman was counting currency. Dwan recognized the defendant because he had arrested him for the distribution of "crack" cocaine to an undercover police officer three years earlier in the same area. The officers observed the group turn onto Hayward Place, a narrow one-way street which, in the officers' experience, was a popular area for drug use, because drug users could "duck into a number of doorways on the side street." The officers parked near the intersection of Hayward Place and the Harrison Avenue extension. From that vantage point, Dwan "observed the group huddle together in a doorway for a brief period of time, exchange something, and then separate." The woman and one of the men walked toward Washington Street, while the defendant and the other man walked down Hayward Place in the direction of the officers. After the defendant had separated from the man with whom he had been walking and walked alone a short distance, Ryle and Chu left the vehicle and approached the defendant. Ryle displayed his police  5 badge and ordered the defendant to stop and identify himself. The defendant complied. Shortly thereafter, Dwan approached and asked the defendant where he had been. The defendant denied that he had been at Hayward Place or had met others there. Dwan then inquired about the contents of the thin nylon backpack that the defendant was carrying, which "was noticeably weighed down with an object." The defendant stated that the backpack contained his cellular telephone charger. Dwan asked for permission to search the bag, whereupon the defendant removed the bag and handed it to him. Dwan removed a hard box that was designed to look like a cigarette package, but was "noticeably heavier." At this point, the defendant changed his mind and told Dwan that he could not look in the bag. On opening the box, Dwan discovered that it was a digital scale, which contained a white powder residue that he believed to be cocaine. The defendant was then arrested for possession of cocaine. In the search of the defendant that immediately followed, the officers found money and a plastic bag containing twelve smaller packages of cocaine. The defendant moved to suppress all evidence seized as a result of his stop and subsequent arrest. The motion judge found that the officers had probable cause to believe that the defendant had participated in a drug transaction at the time they stopped him, based on their observations, experience, and  6 familiarity with the defendant. Accordingly, the motion judge concluded that the officers searched the defendant incident to a valid arrest, and denied the defendant's motion to suppress. A panel of the Appeals Court affirmed the denial of the motion to suppress, albeit on different grounds. Commonwealth v. Stewart, 81 Mass. App. Ct. 1135. The panel concluded that the officers' observations of "what they believed, based on their training and experience, to be a street-level drug transaction" created "at least reasonable suspicion to stop the defendant and inquire further into his activities." The panel also concluded that the reasonable suspicion ripened into probable cause after the defendant lied about where he had just been. Id. We accept the judge's findings of fact unless clearly erroneous. Commonwealth v. Leahy, 445 Mass. 481, 485 (2005), citing Commonwealth v. Sicari, 434 Mass. 732, 746-747 (2001), cert. denied, 534 U.S. 1142 (2002). Applying this standard, we accept all the judge's findings except one: his finding that Dwan "observed an exchange of an unknown object." A careful look at Dwan's testimony reveals that he did not see such an exchange, but inferred from what he saw that an exchange had occurred. Dwan testified that he had an unobstructed view of the four persons after they "huddled together," but could see only "their upper torso area." When initially asked, "Did you  7 see any exchange at all," he answered, "No, I didn't." The prosecutor later read Dwan an excerpt from his grand jury testimony, where he had stated, "On this occasion, I watched all three [sic] parties walk together, stop halfway up on Haeyward Place, and appear to make an exchange at that location." The prosecutor attempted to rephrase Dwan's grand jury testimony by asking, "[Y]ou testified that you saw an exchange, correct?" Dwan answered, "yes," even though that was not what he said to the grand jury; he said there that they "appear[ed] to make an exchange." There was no evidence at the motion hearing, either from what Dwan testified to at the hearing or before the grand jury, that Dwan actually observed an exchange. Our finding that Dwan did not see an exchange, but simply inferred from what he knew and saw that an exchange had occurred, is supported by the absence of any evidence as to who participated in the exchange. If Dwan truly had observed an exchange, he could have testified to who made the exchange; he did not. Consequently, there was no evidence that the defendant participated in the exchange that Dwan inferred had happened during the "huddle." We conclude that the investigatory stop of the defendant was supported by reasonable suspicion. "A police officer may make an investigatory stop 'where suspicious conduct gives the officer reasonable ground to suspect that a person is  8 committing, has committed, or is about to commit a crime.' . . . The action of the officer 'must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience.'" Commonwealth v. Gomes, 453 Mass. 506, 510-511 (2009), quoting Commonwealth v. Wilson, 441 Mass. 390, 394 (2004). In view of Dwan's experience in drug investigations, he had reasonable grounds to suspect that he had witnessed a drug transaction based on the information he had earlier acquired (that the defendant, three years earlier, had been arrested for distributing narcotics to an undercover police officer in the theatre district of Boston) and that he had just acquired from his observations (three persons followed the defendant down a narrow street often used by drug users, with the woman counting currency as she walked, and then all four huddled briefly together in a doorway, before they dispersed). Based on reasonable suspicion, the officers lawfully stopped the defendant and questioned him as to what had just happened. But reasonable suspicion alone was not sufficient to allow Dwan lawfully to open the hard cigarette box, where there was nothing to suggest that a weapon was inside.4 4 On appeal, the Commonwealth does not argue that the officers were justified in opening the cigarette box based on a reasonable belief that the defendant was armed and dangerous, and that the cigarette box may have contained a weapon. See Commonwealth v. Gomes, 453 Mass. 506, 512 (2009).  9 Nor was opening the cigarette box lawful based on the defendant's initial consent to Dwan's looking inside his backpack, where the defendant had withdrawn his consent before Dwan opened the cigarette box. A consent to search can be withdrawn or limited at any time before completion of the search. United States v. Mitchell, 82 F.3d 146, 151 (7th Cir.), cert. denied, 519 U.S. 856 (1996), citing Florida v. Jimeno, 500 U.S. 248, 252 (1991). See, e.g., Commonwealth v. Caputo, 439 Mass. 153, 163 (2003), quoting United States v. Dichiarinte, 445 F.2d 126, 129 n.3 (7th Cir. 1991) ("defendant's consent may limit the extent or scope of a warrantless search"); 4 W. LaFave, Search and Seizure § 8.1 (c) at 58 (5th ed. 2012) ("consent usually may be withdrawn or limited at any time prior to the completion of the search"). Although evidence found during the search before the withdrawal of the consent may be lawfully admitted, a search must end on the withdrawal of consent where there is no other legal justification. See United States v. Mitchell, supra; 4 W. LaFave, Search and Seizure, supra. Consequently, as the motion judge and the Appeals Court recognized, Dwan's opening of the cigarette box was lawful only if it was a search incident to arrest, supported by probable cause. We therefore turn to the question whether there was probable cause to arrest the defendant at the time the box was opened.  10 "[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). Probable cause may be established where the "silent movie" observed by an experienced narcotics investigator reveals "a sequence of activity consistent with a drug sale at a place notorious for illicit activity in narcotics." Commonwealth v. Santaliz, supra at 242. In Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998), we concluded that probable cause existed where experienced narcotics officers observed a man who was known to have been arrested previously for narcotics sales engage in the following "silent movie" sequence: the man approached the passenger side of a vehicle that had stopped at a street curb, put his head inside the open window and appeared to exchange words with the driver (the defendant), who was alone in the vehicle; the man ran away, only to return one minute later and exchange something with the driver of the vehicle, and then the man walked away and the vehicle drove off. Similarly, in Commonwealth v. Santaliz, 413 Mass. at 241, we found probable cause (although we "found the case 'close'") where an experienced narcotics officer saw this  11 "silent movie" sequence: the defendant was seated near a woman on the front porch of a "soup kitchen" known as a place of high incidence of drug activity when a taxicab stopped in front of the building; the woman took something from her waistband and handed it to the defendant; the defendant silently handed the object to a person in the taxicab, who gave the defendant money in return; the person left in the taxicab, and the defendant gave the money to the woman. Id. at 239-240. The "silent movie" sequence in this case is comparable but with two significant differences: first, Dwan inferred that an exchange of something occurred but did not see an exchange; and, second, there was no evidence that the defendant exchanged anything himself. As to the first difference, in each of the cases cited by the motion judge and by the Commonwealth where probable cause was found based on the inference of an illegal exchange, an officer saw the defendant make an exchange with another person. See Commonwealth v. Kennedy, 426 Mass. at 704 ("Morales reached into the vehicle toward Kennedy, while Kennedy reached toward Morales"); Commonwealth v. Santaliz, 413 Mass. at 240 ("The defendant handed the object to the woman, and she gave him money"). See also Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 286 (2003) (officers observed woman pass cash "through the rolled-down front-seat passenger's window to the passenger"); Commonwealth v. Gant, 51 Mass. App. Ct. 314, 315 (2001) (officer  12 "saw the defendant exchange something with Gonzalez"). Although we do not require "that an officer must actually see an object exchanged," the suspect's movements, as observed by the officer, must provide factual support for the inference that the parties exchanged an object. Commonwealth v. Kennedy, supra at 710. See Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011), quoting Commonwealth v. Kennedy, supra at 711 ("While we reject a per se rule that an officer must actually see an object exchanged to have probable cause to arrest," failure to see such exchange "weakens the Commonwealth's probable cause showing"). Here, the officer testified that the defendant and three companions huddled in a doorway, but his view was limited to their "upper torso area" and he did not testify to seeing the defendant make any hand movements suggesting an exchange or to seeing any object passing between the defendant and any of his companions. See, e.g. Commonwealth v. Levy, 459 Mass. at 1011 (finding no probable cause where "[n]o officer saw an actual exchange of any kind"). As to the second difference, in each of the cases cited above, the apparent exchange involved only two persons, with one of them being the defendant, so if there was any exchange, there was no doubt that the defendant participated in it. Here, the defendant huddled with three individuals so, if there was an exchange, there was no certainty that the defendant participated  13 in it. The failure to observe an actual exchange and the number of suspects who could have participated in any such exchange, when considered together, significantly weaken the weight of the Commonwealth's evidence. Although that evidence is sufficient for reasonable suspicion, it falls short of probable cause. The defendant's false denial that he had been on Hayward Place or had met others there permits the reasonable inference that something occurred during that "huddle" that the defendant did not want to admit to the police and strengthens the suspicion that the defendant had participated in a drug transaction. We recognize that, in some instances, the added inferential weight of a false denial may be sufficient to turn reasonable suspicion into probable cause. See Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) ("Implausible answers to police questions will, with other facts, support a finding of probable cause to conduct a search"). But we conclude here that, even when this inference is added to the weight of the totality of the evidence known to the officers before Dwan opened the cigarette box, the evidence still falls short of probable cause. There inevitably is a narrow line separating reasonable suspicion from probable cause, but in this "silent movie," where the observing police officer saw four people in a huddle but did not see the defendant himself (or anyone) actually make an exchange, the inference of an actual  14 distribution of a controlled substance involving the defendant falls on the reasonable suspicion side of that line.5 Therefore, we conclude that there was no probable cause to make an arrest when the cigarette box was opened, and that the opening of that box cannot be justified as a search incident to arrest. Because the seizure of the plastic bag containing cocaine and the cash found during the search of the defendant was a fruit of the illegal search of the cigarette box, the cocaine and the cash should have been suppressed. Where the prosecution's case rested primarily on the defendant's possession of these items, the admission of the cocaine and cash was not harmless beyond a reasonable doubt. The defendant's conviction must therefore be vacated and a new trial ordered. Because we vacate the conviction and doubt that the Commonwealth realistically can retry the case without the suppressed cocaine, we do not reach the issue regarding the legality of the defendant's sentence. Nor need we reach the 5 We recognize that probable cause is an objective test, and does not depend on whether the officers subjectively believed there was probable cause, see Commonwealth v. Franco, 419 Mass. 635, 639 (1995), citing Commonwealth v. Hason, 387 Mass. 169, 175 (1982), but we note that Dwan, an experienced sergeant detective who had been in the drug control unit for nine years before this incident, did not arrest the defendant after he lied about his whereabouts. Instead, Dwan placed the defendant under arrest only when Dwan saw the cocaine residue on the digital scale inside the cigarette box and even then arrested the defendant for possession of the cocaine residue, not for whatever happened during the "huddle" a few minutes earlier.  15 issue whether a substantial risk of a miscarriage of justice arose from statements made by the prosecutor and some of the Commonwealth's witnesses that suggested that the defendant was known to be a drug dealer. Conclusion. Because the defendant's motion to suppress should have been allowed, and the admission of the evidence that should have been suppressed was not harmless beyond a reasonable doubt, we vacate the defendant's conviction and remand the case to the Superior Court to allow the Commonwealth the opportunity to decide whether it will enter a nolle prosequi or proceed with a new trial. So ordered. 

254 Kan. 632 (1994) 867 P.2d 1034 STATE OF KANSAS, ex rel. ROBERT T. STEPHAN, Attorney General, Petitioner, v. THE HONORABLE JOAN FINNEY, Governor of the State of Kansas, Respondent. No. 69,616 Supreme Court of Kansas. Opinion filed January 27, 1994. Carla J. Stovall, special assistant attorney general, argued the cause, and Robert T. Stephan, attorney general, and Jeffrey A. Chanay, of Entz & Chanay, of Topeka, were with her on the briefs for petitioner. *633 Pedro L. Irigonegaray, of Irigonegaray & Associates, of Topeka, argued the cause, and Elizabeth R. Herbert and Robert V. Eye, of the same firm, were with him on the briefs for respondent. David V. Schneider, of Topeka, was on the brief for amicus curiae Kansans for Life at Its Best. The opinion of the court was delivered by LOCKETT, J.: In accordance with Senate Resolution 1844, dated March 30, 1993, the Attorney General filed this mandamus and quo warranto action to determine the Governor's authority to negotiate compacts with Indian tribes which authorize casino gambling or other Class III gaming on Indian lands which is not specifically authorized by Kansas statute or by the Kansas Constitution. Respondent removed the matter to the federal courts. The federal court subsequently remanded the action to this court. After remand, at a prehearing conference the parties agreed that the issues would be limited to: 1. What is a lottery as that term is used in Art. 15, § 3 of the Kansas Constitution? 2. Did the adoption of Art. 15, § 3c alter the broad definition of lottery previously expressed in Kansas judicial decisions? 3. What effect do the provisions in the Kansas Criminal Code relative to gambling (K.S.A. 21-4302 through 21-4308) have on the issues herein, with particular reference to Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179 (10th Cir. 1993)? 4. With reference to the status of casino-type (Class III) gambling or gambling devices in Kansas, is there a distinction between the terms "permits" or "are legal," and, if so, the significance thereof in this litigation? To answer Issues 3 and 4, federal law must be applied. The interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state and federal courts and must be followed. Murray v. State, 226 Kan. 26, Syl. ¶ 1, 596 P.2d 805 (1979). The interpretation of the constitution of the State of Kansas and the laws of Kansas by the Supreme Court of Kansas is controlling upon the federal and all Kansas courts. Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P.2d 731 (1958). *634 The federal courts are the proper forum to answer the federal questions posed in Issues 3 and 4, which relate both to the Johnson Act, 15 U.S.C. § 1171 et seq. (1988), and the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. (1988). We will only address the state constitutional questions found in Issues 1 and 2. Since the admission of Kansas to the Union in 1861, the Kansas Constitution has provided that "[l]otteries and the sale of lottery tickets are forever prohibited." Kan. Const. art. 15, § 3. Statutory prohibitions of lotteries and the sale of lottery tickets were enacted in 1895. See L. 1895, ch. 152, §§ 1-6, codified in G.S. 1909, §§ 2856 through 2861 and later as G.S. 1949, 21-1501 through 21-1506. On November 4, 1986, Kansas citizens amended the Kansas Constitution to authorize a state-owned and operated lottery, providing: "Notwithstanding the provisions of section 3 of Article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by a concurrent resolution approved by a majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game." Kan. Const. art. 15, § 3c. In 1990, the Kansas Legislature extended the life of "a state-owned lottery" indefinitely. L. 1990, ch. 370. On October 17, 1988, the IGRA became law. The act classifies gaming into three categories and the provisions for regulation differ depending upon the class. Class I gaming is defined as "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6) (1988). Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribe and is not subject to the IGRA. 25 U.S.C. § 2710(a) (1988). Class II gaming on Indian lands is also within the jurisdiction of the Indian tribe, but it is subject to the IGRA and is regulated in part by the National Indian Gaming Commission. 25 U.S.C. § 2710(a)(2); 25 U.S.C. § 2705 (1988); 25 U.S.C. § 2706 (1988). Class III gaming is defined *635 as "all forms of gaming that are not class I gaming or class II gaming." 25 U.S.C. § 2703(8). Class III gaming generally includes "slot machines, casino games including banking card games, horse and dog racing, pari-mutuel, jai-alai, and so forth." S. Rep. No. 100-446, 100th Cong., 2nd Sess. 5 (1988), reprinted in 1988 U.S. Code Cong. & Ad. News 3071, 3073. Banking card games are those games in which the players play against the house and the house acts as banker; non-banking card games are those in which players play against each other. 1988 U.S. Code Cong. & Ad. News at 3079. Class III games may be operated on Indian lands in states that permit such gaming activities and are to be regulated pursuant to a tribal-state compact. 25 U.S.C. § 2710(d)(1), (3). Under the provisions of the IGRA, Indian tribes are allowed to conduct casino-type gambling on Indian lands only if "located in a State that permits such gaming for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(d)(1)(B). On July 10, 1992, we held that the Governor had the authority to enter into negotiations with the Kickapoo Nation, but, in the absence of an appropriate delegation of power by the Kansas Legislature or legislative approval of the compact, the Governor had no power to bind the State to the terms thereof. State ex rel. Stephan v. Finney, 251 Kan. 559, 583, 836 P.2d 1169 (1992) (Finney I). On March 4, 1993, the Kansas Tribal-State Gaming Compact Act (KTSGCA) was enacted into law. The KTSGCA established the procedures for negotiating tribal gaming compacts with the State. On March 30, 1993, Senate Resolution 1844 required the Attorney General to bring an action to determine the Governor's authority to negotiate compacts authorizing casino gambling and other Class III gaming on Indian lands in light of the gaming prohibitions contained in the Kansas Constitution and Kansas statutes. On March 31, 1993, pursuant to the KTSGCA, Governor Joan Finney submitted to the Joint Committee on Gaming Compacts two proposed compacts between the State of Kansas and (1) the Prairie Band of Potawatomi Indians and (2) the Kickapoo Nation. The compacts provide for a wide range of casino-type gambling, including blackjack, poker, roulette, and keno. On March 31, 1993, pursuant to the KTSGCA, the proposed tribal-state compacts were submitted to the House and Senate of the Kansas *636 Legislature. On April 2, 1993, the Senate voted to reject both compacts, reasoning, in part, that approval would be premature absent a judicial determination of the issues raised in S. Res. 1844. On April 15, 1993, the Attorney General filed this mandamus and quo warranto action. Respondent caused the action to be removed to federal court. Upon hearing, the United States District Court found that because the petitioner's claims for relief could be resolved without deciding or addressing a substantial issue of federal law, the petition does not arise under federal law. The federal court then remanded the case to this court. At oral argument, counsel for respondent made two challenges to the jurisdiction of this court to hear the matter. Respondent first claims that "whether Kansas is a state subject to the provisions of the Indian Act" had already been decided in Finney I. Petitioner claims that respondent misconstrues the primary issue of the present case and that "whether Kansas is a state subject to the provisions of the Indian Act" is a federal question which only the federal courts have jurisdiction to determine. We agree with petitioner that this is a question for the federal courts to consider. We need not discuss this challenge further. Respondent then asserts that the primary issue is whether Kansas is subject to the provisions of the IGRA as to Class III gaming. Respondent points out that the federal court which remanded this action to this court had jurisdiction to decide that issue. Petitioner notes that by contending that the IGRA controls this decision, respondent is repeating an earlier argument to support removal of the action to federal court. Petitioner also points out that respondent's assertion ignores the fact that after respondent removed this action to the federal courts, the case was remanded to the Kansas Supreme Court by the federal district court because the primary question required an interpretation of the Kansas Constitution. The Kansas Supreme Court is the proper forum to decide the State constitutional issues raised by the petitioner. Respondent's claim that this court is without jurisdiction has no merit. I. WHAT IS A LOTTERY AS THAT TERM IS USED IN ART. 15, § 3 OF THE KANSAS CONSTITUTION? *637 Art. 15, § 3 of the Kansas Constitution provides: "Lotteries. Lotteries and the sale of lottery Lotteries Lotteries tickets are forever prohibited." This provision was adopted as part of the Kansas Constitution by the Wyandotte Convention in July 1859 and ratified by the electors later that year. Judicial Branch Interpretation Since 1891, the Kansas Supreme Court has defined lottery in examining entrepreneurial attempts to circumvent the constitutional ban on lotteries. In State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984 (1891), the Attorney General sought to forfeit the charter of the Kansas Mercantile Association, which was conducting a business known as "playing policy." Under the arrangement, a person, for an investment of from five cents to one dollar, would purchase a "vendor's certificate." The certificate entitled the buyer to a lead pencil and the selection of three numbers. The numbers were handed in to the association's offices. A drawing was held twice a day on the stage of Hanson's Opera House in Kansas City. There, 78 numbers were placed inside a wheel, which was then spun for 30 minutes. A blindfolded boy would withdraw 12 numbers at a noon drawing and 13 numbers during the evening drawing. The numbers were posted on a blackboard and were sent to association offices in Atchison, Wichita, Leavenworth, and several out-of-state locations. If a purchaser's three numbers had been drawn, the purchaser would win a prize ranging from 45 cents to $2,500. We construed the word lottery "in the popular sense, with a view of remedying the mischief intended to be prevented." 45 Kan. at 353. Examining cases from other jurisdictions which found such activities as a gift sale of books, prize concerts, prize tickets which included a newspaper subscription, and raffles to be lotteries, we found the reasoning in a New York case, Wilkinson v. Gill, 74 N.Y. 63 (1878), dispositive. New York had a statute outlawing lotteries. In Wilkinson, a similar scheme, also called "playing policy," was challenged. The New York appellate court reasoned: "The word `lottery' has no technical legal meaning. .. . It is defined by Webster, `a scheme for the distribution of prizes by chance, or the distribution *638 itself,' and he defines `lot' as `that which causes, falls or happens; that which in human speech is called chance, fortune, hazard,' and `to draw lots' is `to determine an event by drawing one thing from a number, whose marks are concealed from the drawer, and thus determining an event.' Worcester defines `lottery' as `a hazard in which sums are ventured for a chance of obtaining a greater value.' The language of FOLGER, J., in 56 N.Y. 424 [1874], may be adopted as a result of the accepted definitions. `Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out by the public, what and how much he who pays the money is to have for it, that is a lottery.'" 74 N.Y. at 66. Relying on Wilkinson, we declared the association's charter null and void after concluding that the association's business was "a scheme for the distribution of prizes by chance," and that a purchaser did so "to try his luck at `fortune's wheel,' and not to get a lead pencil." 45 Kan. at 355. In In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707 (1895), Smith was arrested for operating a lottery in Wyandotte County. He sought release on a writ of habeas corpus, contending that since there was no statute making the operation of a lottery a crime, he should be released. We rejected this argument, finding that he was charged under a statute which made punishable, by fine or imprisonment, engaging "in any unlawful calling whatever." 54 Kan. at 706. In so doing, we reinforced the constitutional prohibition against lotteries and defined a lottery as "a hazard in which sums are ventured for a chance at obtaining a greater value." 54 Kan. at 707. In Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708 (1895), defendant was a partner in an Ottawa dry goods store. To stimulate business, Davenport put a small box containing $25 in the store window along with a sign stating that anyone who purchased at least 50 cents worth of goods would be given a key which might unlock the box. If it did, the money belonged to that purchaser. Keys would be tried in the box approximately two months after the box was placed in the window. Davenport was arrested and charged with violating Ottawa city ordinances prohibiting the sale of lottery tickets and running a gambling house. He was found guilty and appealed, contending his enterprise was not a lottery because the element of consideration was lacking. We disagreed, reasoning that when a purchaser bought *639 goods during this period, the purchaser was also purchasing a chance to win the money in the box. 54 Kan. at 717. We found no distinction between this case and Mercantile. 54 Kan. at 718. In State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929 (1936), defendant implemented a "bank night" as an advertising means of increasing theater ticket sales. The theater deposited a certain amount of money in a bank account. Anyone 16 years or older was permitted to register to win the money, whether buying a theater ticket or not. Each registered person was assigned a number. On the designated "bank night," the numbers were put in a box, from which the winning number was selected. The Attorney General brought a quo warranto action to enjoin the theater, contending that "bank night" was a lottery. Both parties argued that the three necessary elements in a lottery were a prize, a chance, and a consideration. Defendant argued "bank night" was not a lottery, reasoning that since the purchase of a theater ticket was not required to register to win, the element of consideration was lacking. We disagreed, finding that the increased ticket revenue generated by bank nights was sufficient consideration coming directly or indirectly from those entitled to the chances. 144 Kan. at 700. We held: "The `bank night' theater plan as set out in the answer of the defendant in this quo warranto action, and copied in the opinion, is held to include the three necessary elements of prize, chance and consideration, sufficient to make it a policy or scheme of drawing in the nature of a lottery as prohibited by article 15, section 3, of the constitution of the state of Kansas, and as described and defined in R.S. 21-1501." 144 Kan. 687, Syl. ¶ 1. In State v. Brown, 173 Kan. 166, 244 P.2d 1190 (1952), Brown was charged with violating G.S. 1949, 21-1502, which prohibited the possession or sale of a lottery, or similar, ticket. Brown had 823 punchboards in his possession and had sold punchboard tickets. Brown contended that the punchboard was not a lottery ticket. We rejected this argument, labeling it a "distinction without a difference." 173 Kan. at 169. Reviewing the earlier Mercantile, Davenport, and Fox Theatre cases, we found "little difficulty in concluding that the punchboards described in the information are gambling devices and/or schemes designed for the distribution of prizes by chance and hence, within the meaning *640 of that term as used in our constitution and statutes, must be regarded as `lotteries' per se." 173 Kan. at 169. In State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418 (1955), the challenge to lotteries arose from parimutuel betting on greyhound races in Sedgwick County. G.S. 1949, 21-1510 permitted wagering on races two weeks each year. The Sedgwick County Attorney sought to enjoin the operation as violating the art. 15, § 3 prohibition against lotteries. Bissing, the race track operator, contended that the operation did not constitute a lottery or the sale of lottery tickets and that the statute permitted wagering two weeks during the year. The trial court adopted Bissing's theory and denied an injunction for the remainder of the two-week wagering period, but enjoined the operations for the remainder of the calendar year. The State appealed the denial of the injunction. We reversed. First, we reviewed learned treatises on lotteries, finding that authorities agreed that the essential elements and ingredients of a lottery are: (1) consideration, (2) prize, and (3) chance. 178 Kan. at 117. Next, we referred to the statutory definition of a lottery contained in G.S. 1949, 21-1506: "The term `lottery,' as used in this act, includes schemes for the distribution of money or property among persons who have given or agreed to give a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name." 178 Kan. at 117. Citing the public policy of Kansas prohibiting lotteries and the former cases involving attempts to circumvent the prohibition, we reasoned that "an undertaking whereby persons pay a consideration for the chance to receive money or property constitutes a lottery." 178 Kan. at 118. (Emphasis in original.) We therefore held that parimutuel betting on dog races constituted a lottery and the sale of lottery tickets. 178 Kan. 111, Syl. ¶ 4. In State ex rel. v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97 (1970), we determined that tuning in a giveaway television program was not consideration; therefore, the game was not a lottery. Highwood Service, Inc., owned a Topeka television station which intended to broadcast a program called "Dialing For Dollars." The program involved cutting sections of local telephone directories into segments containing 20 names, placing them in a rotating cage, drawing one slip at random, selecting one name *641 from the slip, and telephoning that person. If the person called knew a predesignated code number and the amount in the jackpot, the person won. The code number and jackpot could be determined from watching the programs. If the person telephoned answered incorrectly, or was not reached, that person received a prize of one dollar. The program was designed to increase the viewing audience for advertising purposes. The Attorney General sought to enjoin the program, contending it was a lottery. The trial court ruled that the program was not a lottery within the meaning of K.S.A. 21-1501 (Corrick). The State appealed. The parties agreed that the elements of prize and chance were present in the program. However, they differed with respect to the element of consideration, with the defendant asserting that element was lacking. Distinguishing the Fox Theatre "bank night" case for requiring some overt act of participation, such as registering to win, we found: "What does, and what does not, provide the consideration necessary to the operation of a lottery has been the subject of much judicial verbiage to which, at this time, we shall not add materially. It is sufficient here to observe that, in our opinion, the bounds of reason would be exceeded were we to say that the requirement of consideration has been fully met whenever a TV fan turns the dial of his machine to Dialing for Dollars and then relaxes in his easy chair awaiting the call which he hopes will bring him fortune." 205 Kan. at 823. After a brief review of the constitutional prohibition against lotteries, and of lottery definitions, we concluded that in 1859, when the constitution was adopted, and in recent years as well, the common understanding of a lottery included a "consideration of value" which did not encompass the act of tuning in a giveaway television program in one's home. 205 Kan. at 826-27. In 1969, the Kansas Legislature, in establishing a Kansas Criminal Code, revised the laws of this state concerning gambling. See L. 1969, ch. 180. The former statutes, including K.S.A. 21-1501 through 21-1506 (Corrick), prohibited specific activities such as lotteries. The new statutes defined prohibited conduct generally. The 1971 Kansas Legislature created a "bingo" exception to the definition of gambling. L. 1971, ch. 111, § 1. Codified as K.S.A. 1971 Supp. 21-4302, the amendment defined, in subsection *642 (2), a lottery as an enterprise "wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance." Subsection (3) excluded as "consideration" money paid to participate "in any bingo game or a game of chance with comparable characteristics." In State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972), the bingo exception was challenged. At a gambling raid at the American Legion Club in Iola, agents from the Attorney General's office saw two patrons in close proximity to five slot machines. They were charged with gambling; the acting club manager was charged with possession of a gambling device. The trial court held as a matter of law that no crime had been committed because of the bingo exception in K.S.A. 1971 Supp. 21-4302. The State appealed. The issue on appeal was whether the phrase "bingo and games of comparable characteristics" included slot machines. We began our discussion by deciding that the issue could not be decided without considering and discussing the elements of a lottery, and, in so doing, making a determination of the constitutionality of the bingo law. 210 Kan. at 443. Justice Owsley's well-reasoned opinion for the court, striking down the bingo law as unconstitutional, is worth repeating, for it summarizes the history of art. 15, § 3 and its underlying principles: "Article 15, section 3 of the Kansas Constitution provides: `Lotteries and the sale of lottery tickets are forever prohibited.' "Although this constitutional provision was undoubtedly borrowed from states previously admitted to statehood, it is apparent that the framers of the constitution of this state conscientiously determined that prohibiting lotteries forever was a method of promoting a sound basis for the welfare and growth of this state. Since its adoption, many efforts have been made by persons and organizations to circumvent this constitutional provision. Such efforts have generally been made for profit, seeking to elicit money from those who cannot refrain from the instinctive weakness of humanity to gamble. "This court has steadfastly adhered to the constitutional provision by striking down such efforts. (The State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707, [sale of lottery tickets]; The State, ex rel., v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d *643 386, [punchboards]; State v. Brown, 173 Kan. 166, 244 P.2d 1190, [punchboards]; State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418, [parimutuel betting on dog races].) "It has been firmly established from these cases as the law of this state that a lottery has three essential elements; namely, (1) consideration, (2) prize, and (3) chance. "In State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97, we held that the turning of a dial of a television set to a certain program which awarded prizes did not constitute `consideration' within the meaning of K.S.A. 21-1501 (repealed L. 1969, ch. 180) and Article 15, section 3 of the Kansas Constitution. We also stated at page 825: `But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts....' "The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions, but to govern future contingencies. "Although a constitution is usually a declaration of principles of fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing. Our constitution put a ban on lotteries and the sale of lottery tickets in plain, unambiguous terms and emphasized the intent of the framers by the use of the language `shall be forever prohibited in this state.' Prohibitory provisions in a constitution are self-executing to the extent that anything done in violation of them is void. "It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself. (16 C.J.S. Constitutional Law, § 13.) Any attempt by the legislature to obliterate the constitution so construed by the court is unconstitutional legislation and void. Whenever the legislature enacts laws prohibited by judicially construed constitutional provisions, it is the duty of the courts to strike down such laws. "The legislature, by enacting the statutes in question, attempted to declare that `consideration' shall not include money paid to participate in a bingo game. The legislature, in effect, sought to remove `consideration' as one of the elements of a lottery. In so doing, the legislature exceeded its constitutional power. The constitution must be interpreted and given effect as the paramount law of the state, according to the spirit and intent of its framers. A legislative enactment in evasion of the terms of the constitution, *644 as properly interpreted by the courts and frustrating its general and clearly expressed or necessarily implied purpose, is clearly void. "The fact that the statute prohibits a profit to any private shareholder, member or employee of an organization exempt from tax, does not create immunity for an enterprise which violates the provisions of the constitution. We cannot insert into our constitution an exception that the framers failed to make. Their reasoning could have been in accord with Harriman Institute of Social R. v. Carrie Tingley C.C. Hospital, 43 N.M. 1, 84 P.2d 1088 (1938), which said: `Now the gambling spirit feeds itself with as much relish upon a charity lottery as upon any other kind. If the average person be consumed with a desire to take a chance and get something for nothing, it matters not to him whether the promoter makes a profit or that the profit goes to charity. Indeed, if it does go to charity, his participation wears a cloak of piety otherwise denied it. He thus may be persuaded to purchase tickets oftener and in larger volume because operated in the name of charity or religion. The point we seek to make is that widespread participation in a charity lottery is just as baneful in its effect upon the public as widespread participation in any other kind of lottery. And we think it will be conceded, indeed we feel this court has said as much, that our lottery statutes sought to prevent widespread participation in any kind of lottery.' (pp. 6, 7.) "It is immaterial whether slot machines have `comparable characteristics' to bingo since bingo in the context of the statutes falls before the mandate of the constitution. Statutory provisions which attempt to legalize bingo or the use and possession of slot machines are inconsistent with our constitution. "It is not our proper function to express any opinion with respect to the moral aspects of either operators or players of bingo. We recognize that many respectable persons look upon bingo as an innocent and harmless recreation, and the benefits of bingo are frequently applied to worthwhile religious and charitable purposes. "In view of the foregoing it is our holding that the bingo exception to the gambling laws passed by the 1971 legislature is unconstitutional and void." 210 Kan. at 444-46. The historical thread in Kansas, then, has been from complete prohibition to the authorization and regulation of well-defined forms of gambling. It is clear that the term lottery was broadly defined in Kansas judicial decisions to encompass all forms of gambling which involve consideration, chance, and prize. Clearly, the term lottery, as used in art. 15, § 3 of the Kansas Constitution, has been defined by this court as any game, scheme, gift, enterprise, or similar contrivance wherein persons agree to give valuable consideration for the chance to win a prize or prizes. See State ex rel. Stephan v. Finney, 251 Kan. 559, 569, 836 P.2d 1169 (1992) (Finney I). *645 II. DID THE ADOPTION OF ART. 15, § 3c ALTER THE BROAD DEFINITION OF LOTTERY PREVIOUSLY EXPRESSED IN KANSAS JUDICIAL DECISIONS? In 1974, the constitution was amended by Kansas voters to permit bingo games to be conducted by bona fide nonprofit religious, charitable, fraternal, educational, and veterans organizations. Kan. Const. art. 15, § 3a. (L. 1974, ch. 461). The Senate resolution proposing the amendment did not provide an explanatory note for the voters. In 1986, Kansas voters amended the constitution to permit parimutuel wagering in horse and dog racing and authorize the State to own and operate a lottery. Sixty-four percent of Kansas voters approved the passage of art. 15, § 3c in the November 1986 general election (515,893 for; 291,411 against). Art. 15, § 3b, which permits parimutuel betting in horse and dog racing, provides: "Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may permit, regulate, license and tax, at a rate not less than 3% nor more than 6% of all money wagered, the operation or conduct, by bona fide nonprofit organizations, of horse and dog racing and parimutuel wagering thereon in any county in which: (a) A majority of the qualified electors of the county voting thereon approve this proposed amendment; or (b) the qualified electors of the county approve a proposition, by a majority vote of those voting thereon at an election held within the county, to permit such racing and wagering within the boundaries of the county. No off-track betting shall be permitted in connection with horse and dog racing permitted pursuant to this section." The House resolution proposing this amendment included an explanatory note on the ballot that informed the voter: "This proposed amendment would authorize the legislature to permit, license, regulate and tax horse and dog races and parimutuel wagering on such races, conducted by nonprofit organizations, in any county where a majority of the voters have approved this proposition or a later proposition authorizing the conduct of the races and wagering in their county but would prohibit off-track betting. "A vote for the proposed amendment would permit horse and dog racing with parimutuel wagering in any county where a majority of the voters approve this proposition or a later proposition authorizing the conduct of the races and wagering in their county but would prohibit off-track betting. *646 "A vote against the proposed amendment would continue the current prohibition against parimutuel wagering on horse and dog races." L. 1986, ch. 416, § 2. Art. 15, § 3c, which permits a state-owned lottery, provides: "Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by a concurrent resolution approved by a majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game." This proposed amendment also included an explanatory statement to be printed on the voting ballot, which read: "This proposed amendment would authorize the legislature to provide for a state-owned and operated lottery. "A vote for the proposed amendment would permit the legislature to provide for operation of a state-owned and operated lottery until June 30, 1990, with authority for the legislature to authorize the operation of such lottery after that date by adopting a concurrent resolution by a majority vote of all members of each house during the regular session of the legislature in 1990. The legislature shall provide by law for informing the public of the odds of winning prizes in the lottery. "A vote against the proposed amendment would continue the current prohibition against such lotteries." L. 1986, ch. 414, § 2. Legislation was enacted after the passage of each constitutional amendment, regulating bingo (K.S.A. 79-4701 et seq.), allowing horse and dog racing with parimutuel betting (K.S.A. 74-8801 et seq.), and allowing a state-owned and operated lottery (K.S.A. 74-8701 et seq.). Since 1891, we have construed the term "lottery" to include any act of gaming which included the elements of consideration, chance, and prize. It is presumed that the legislature acts with full knowledge as to judicial decisions on prior law. State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988). Before 1974, Kansans did not have legalized gambling and lotteries in any form. Against this general backdrop, Kansas entrepreneurs sought devices to spur business and skirt the constitutional prohibition. Until 1974, we struck down every attempt to circumvent the constitutional ban from "playing policy" numbers (State ex rel. *647 v. Mercantile Association, 45 Kan. 351, 25 Pac. 984 [1891]) to theater bank nights (State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929 [1936]) to parimutuel betting (State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418 [1955]) to bingo and slot machines (State v. Nelson, 210 Kan. 439, 502 P.2d 841 [1972]). Soon after the Nelson decision, the Kansas voters passed the first amendment to the art. 15 prohibition against lotteries by permitting bingo games to be conducted by bona fide nonprofit organizations. Art. 15, § 3a. Since then, the constitutional prohibition has been amended twice to allow horse and dog racing, and parimutuel wagering thereon, art. 15, § 3b, and the authorization of a "state-owned and operated lottery." Art. 15, § 3c. We have reviewed how this court has defined lottery prior to the passage of the constitutional amendment to allow state-owned lotteries. There is little evidence in the record of what the Kansas legislators and voters thought or intended when approving art. 15, § 3c to permit all forms of gambling involving consideration, chance, and prize. We will now examine how the executive and legislative branch have acted since the amendment was approved. The Executive Branch Interpretation The executive branch's actions are represented by the opinions of the Attorney General. The following Attorney General opinions indicate that the executive branch's interpretation of the meaning of the term lottery as used in art. 15, § 3c includes casino gambling. The first inquiry concerned whether § 3c allowed the State to participate in a multi-state lottery. Att'y Gen. Op. No. 87-16. The opinion stated the legislature did not intend to specifically preclude multi-state lotteries in the proposed constitutional amendment that later became § 3c. Both the legislature and the voters understood the purpose of the lottery amendment was to raise revenue and that a multi-state lottery met the revenue raising aspect of the intent of the amendment. Therefore, the Attorney General opined, "It appears that the intent of the voters in approving the lottery was to allow closely regulated gambling and to raise money for the state. A multi-state lottery would not be repugnant to the intent of the constitutional provisions." *648 In response to a legislator's inquiry regarding the import of the IGRA the Attorney General noted an earlier opinion by stating: "In ... No. 87-38 we concluded that, because the term lottery has been defined broadly by the Kansas courts to include any game involving the three elements of consideration, chance and prize, and since article 15, section 3c does not limit the types of games the state may conduct, the state is constitutionally authorized to operate any game involving the three elements `be it "lotto" or "casino gambling"'." Att'y Gen. Op. No. 91-119. The most detailed explanation was issued by the Attorney General in February 1987, in response to a question posed by a state legislator whether the game of "lotto" was authorized under art. 15, § 3c of the Kansas Constitution. The Attorney General opined: "The constitutional provision as voted on and passed by the Kansas electorate did not define or restrict the term `lottery,' nor did it define or restrict itself to any specific games. The definitional responsibility of defining `lottery' is therefore passed to the courts of this state. State v. Nelson, 210 Kan. 439, 445 (1972). In Nelson, the Court stated that `[t]he definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time.' Id. at 445. "In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11 (1961), the Court stated that a constitution is not to be narrowly or technically construed but its language `should be held to mean what the words imply to the common understanding of men.' This position was adopted in the later case of State, ex rel., v. Highwood Services, Inc., 205 Kan. 821 (1970), when the court used resources available around the time the Kansas Constitution was adopted in 1859 to define `lottery.' The Court wrote in Highwood at 825 and 826 that `in ascertaining the meaning of constitutional provisions courts should consider what appears to have been the intendment and understanding of the people at their adoption. (See, also, State v. Sessions, 84 Kan. 856, 115 Pac. 641).' Thus, in defining the term `lottery' the Court has adopted common usage definitions. "In Highwood, the Court's research included the following: `In Abbott's Law Dictionary, published in 1879, we have found this definition of a lottery: "A scheme for the distribution of prizes by chance, among buyers of the chances. "Such schemes were formerly very common, were authorized by law, and were even set on foot, in many instances, by the authorities, for raising revenue for public or benevolent purposes. In view of the ill effects of the element of gambling involved, they are now very generally made unlawful." *649 `Foremost among the citations appended to the text, the author has placed the following: "A lottery is a distribution of prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize. United States v. Olney, 1 Abb. U.S. 275 (1868)." `Webster's Third New International Dictionary, unabridged, (1964) conveys much the same idea as it defines lottery: "a scheme for the distribution of prizes by lot or chance; esp.: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them, usu. as determined by the numbers on tickets as drawn at random (as from a lottery wheel)." `To similar effect, see Oxford Illustrated Dictionary (1962) and The Random House Dictionary of the English Language, the Unabridged Edition (1967).' "The court has refined the various definitions into three required elements in order to be recognized as a lottery in Kansas. `The court has held that the essential elements of a lottery are three: (1) consideration, (2) prize, and (3) chance. (State, ex rel. v. Bissing, 178 Kan. 111, 283 P.2d 418).' Highwood, 205 Kan. at 823. Using this three element definition the court has adhered to the constitutional provision banning lotteries and struck down such efforts prior to Kan. Const. Art. 15, sec. 3c. `The State, ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 70, [sale of lottery tickets]; The State, ex rel. v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d 386, [punch boards]; State v. Brown, 173 Kan. 166, 244 P.2d 1190, [punch boards]; State, ex rel. v. Bissing, 178 Kan. 111, [parimutuel betting on dog races].' Nelson, 210 Kan. at 444. "In considering the lottery provision, numerous individuals and state agencies advanced definitions for the term lottery. Included in the minutes were reports that `new forms of lottery games are constantly being invented,' Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Ross Mills, Legislative Research Department, Attachment A., and `there are currently several types of lottery products being played ... weekly game or draw lottery ... instant lottery ticket ... online system ... numbers game ... pick four.' Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Secretary of Revenue Harley Duncan, Attachment B. "It was further presented that some states have restricted their lottery to specific games. Minutes of the House Federal and State Affairs Committee, January 21, 1986, testimony of Patrick J. Hurley, Attachment C. The Kansas Legislature did not preclude any specific game or games with the language used in 1986 Senate Concurrent Resolution 1609, L. 1986, ch. 414. "In Attorney General Opinion No. 87-16, this office indicated that: `[t]he intent and understanding of both the legislature and the people seems to have been to have a government controlled lottery as a revenue *650 raising measure. Minutes of the House Federal and State Affairs Committee, January 21, 1986, testimony of Secretary of Revenue Harley Duncan, Attachment A. `It appears that the intent of the voters in approving the lottery was to allow closely regulated gambling and to raise money for the state. A multi-state lottery would not be repugnant to the intent of the constitutional provisions.' "In our judgment, the game `lotto' would fall within the scope of the Kansas constitutional `lottery' amendment since it is an unrestricted provision. The lottery could include both an active game and a passive game. An active game has been recognized as a lottery game in which the player takes action to determine the outcome by choosing a number or set of numbers to bet on, attempting to match the numbers later drawn. A passive game is a lottery game in which the player takes no active part in determining the outcome; the ticket sold is either a winner or a loser, and no choices of numbers are made. Minutes of the House Federal and State Affairs Committee, January 16, 1986, testimony of Secretary of Revenue Harley Duncan. Attachment B. Again, to be recognized as a lottery the three (3) essential elements must be present in either an active or passive game. "The Kansas Supreme Court in Highwood, supra, came to the conclusion that: `In short, we entertain the opinion that not only in 1859, when the constitution was adopted, and in 1895, when K.S.A. 21-1506 was enacted, but in recent years as well, the common understanding of a lottery entertained by men in general has been that a consideration of value must flow from those who participate. We gravely doubt that had the ordinary man in the streets in 1859 been able to envision the advent of television he would have characterized as a lottery the give-away program known as Dialing for Dollars.' 205 Kan. at 826. "In keeping with the court pronouncement that the definition must remain constant and should withstand the test of time, any game, no matter the extent of player participation or the title assigned to the game, be it `lotto' or `casino gambling,' as long as it is state owned and operated and involves the essential elements discussed above, it would be classified as a lottery. "It is therefore our opinion that a state-owned and operated lottery could include any game or combination of games as long as there is consideration, chance and prize involved in each game. Such a game would not be repugnant to the intent of the constitutional provision." Att'y Gen. Op. No. 87-38. The next inquiry by the legislature was whether a constitutional amendment was, inter alia, required in order to prohibit casino gambling in the state. Att'y Gen. Op. No. 92-1. The Attorney General opined that a constitutional amendment was not required *651 and that the legislature could statutorily prohibit specific types of gaming so long as no one, including the State, could operate that type of game. The final relevant Attorney General opinion concerned whether video lottery games fell within the category of Class II gaming under the IGRA. Att'y Gen. Op. No. 92-46. The Attorney General concluded that video lottery games fell under Class III gaming as defined by the IGRA and not Class II. The Attorney General's interpretation of the meaning of the term "lottery" as used in art. 15, § 3c is, then, any game involving the three elements of consideration, chance, and prize, and this definition includes casino gambling. LEGISLATIVE ACTION Petitioner contends that the adoption of art. 15, § 3c substantially altered the broad definition of lottery previously expressed in Kansas judicial decisions. Petitioner claims that the intent of the legislature, which proposed the amendment, and the voters who approved it was not to allow every form of game involving chance, consideration, and prize. Petitioner asserts this intent to authorize and implement a very limited form of gambling known as a "lottery" is shown by the amendment's use of the term "state-owned lottery." Respondent, on the other hand, argues that the clear language of the amendment, unhindered by limitation or definitions, should prevail, despite what the legislators may have intended. Moreover, respondent contends the simultaneous passage of the parimutuel wagering and lottery amendments indicated a general desire by Kansas voters to allow Class III gaming in Kansas. Petitioner asserts that the legislative history indicates that the legislature intended to permit only the type of lottery games played in certain states. From all the testimony for and against the proposed amendment to allow a state-owned lottery, plus the attendant publicity generated by lotteries in other states (see Minutes of House Committee on Federal and State Affairs, January 21, 1986, p. 2), we note that the discussion was unmistakably focused on the lottery proposed by the legislature and similar to those already existing in the states operating lotteries. There is no indication that during the hearings and debate the legislature *652 intended to define what constituted a "state-owned lottery" or attempted to limit what types of gambling the State could constitutionally own and operate. Enabling legislation codified as the Kansas Lottery Act, K.S.A. 74-8701 et seq., set the initial scope of the State lottery. K.S.A. 74-8710 provides for the adoption of rules and regulations governing the establishment and operation of the State lottery. The legislature restricted the variety of lottery games to be conducted: "Temporary and permanent rules and regulations may include but shall not be limited to: (a) The types of lottery games to be conducted, including but not limited to instant lottery, on-line and traditional games, but not including games on video lottery machines." Respondent argues it does not matter what the legislators intended when passing art. 15, § 3c to permit a state-owned lottery. As authority, respondent cites Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 802 P.2d 584 (1990). Colorado Interstate concerned the exemption of merchants' and manufacturers' inventory from ad valorem taxation pursuant to art. 11, § 1 of the Kansas Constitution, which had been approved by Kansas voters in 1986. The issue before this court was whether stored natural gas owned by public utilities fell within the merchants' and manufacturers' inventory exemption. Despite arguments that the legislative framers of the amendment did not intend to exempt the stored natural gas of public utilities, we applied the clear language of the amendment and "what persons of common understanding would imply from the words used therein," and found that the natural gas stored by utilities was exempt. 247 Kan. at 662-63. Respondent asserts that, like Colorado Interstate, in applying the clear language of the amendment and what persons of common understanding would give to the words in question, this court is bound to continue its broad interpretation of the term lottery when construing Art. 15, § 3c. We agree the respondent is correct in its analysis that Colorado Interstate could be the cornerstone of our decision. We also note that while the constitutional ban against lotteries may be self-executing, the amendment to the constitution, § 3c, creates an exemption which is not self-defining. Because the constitutional provision is not self-defining, *653 the definitional function is a function of the courts. We could also follow the sound reasoning of the Attorney General and reach the same conclusion. We choose not to follow either of these paths but instead will note the clear path the legislature has followed from 1895 to the present to determine the question. In L. 1895, ch. 152, § 6, the legislature defined the term "lottery" to include "schemes for the distribution of money or property, among persons who have given or agreed to give, a valuable consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name." This court defined lottery in 1891 in State ex rel. v. Mercantile Association, 45 Kan. 351, 353-54, 39 Pac. 708 (1891). The Kansas Criminal Code enacted by the legislature now contains a broad prohibition against gambling, gambling operations, and gambling devices. See K.S.A. 21-4302 through 21-4308. "Gambling" is defined as making a bet or entering or remaining in a gambling place with intent to make a bet, to participate in a lottery, or to play a gambling device. K.S.A. 21-4303. Significantly, the legislature defined a "bet" as "a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value." The legislature then stated, "A bet does not include: ... (e) a lottery operated by the state pursuant to the Kansas lottery act." (Emphasis added.) K.S.A. 21-4302(1). Furthermore, a lottery is defined as "an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance," but this definition does not include "a lottery operated by the state pursuant to the Kansas lottery act." (Emphasis added.) K.S.A. 21-4302(2). Finally, "consideration" does not include "sums of money paid by or for participants in any lottery operated by the state pursuant to the Kansas lottery act." (Emphasis added.) K.S.A. 21-4302(3)(b). The legislature clearly has indicated that gambling operated by the State pursuant to the Kansas Lottery Act is not included in the criminal prohibition against gambling. The bills and concurrent resolutions submitted to the legislature since 1990 indicate the interpretation of art. 15, § 3c by the legislative branch is that the constitution permits the State to operate casino gambling, and a constitutional amendment is required *654 to permit a private entity to operate casino gambling. In 1990, a concurrent resolution was proposed in the Senate to amend the constitution to allow the legislature to permit, regulate, license, and tax the operation or conduct of off-shore casino gambling on certain riverboats by private operators. S. Con. Res. 1647. This resolution died on general orders. In 1993, a concurrent resolution was proposed again to amend the constitution to allow a single casino gambling establishment to be located on or adjacent to the parimutuel racetrack operated in Kansas City, Kansas, as well as on Indian reservations. The proposed constitutional amendment would contain an explanatory statement for voters indicating a vote against the amendment "would continue the current prohibition applying to casino gaming." S. Con. Res. 1608. This resolution has been held over for the 1994 legislative session. In 1992, three bills were introduced to amend and supplement the Kansas Lottery Act to allow the State lottery agency to operate and conduct casino gambling on excursion boats, S.B. 620, S.B. 772, and H.B. 3191. S.B. 620 and H.B. 3191 died in committee. S.B. 772 was killed on final action in the Senate. None of the bills required that the state-owned casino gambling on excursion boats bills be submitted to the voters as a constitutional amendment. In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision. In interpreting and construing the constitutional amendment, the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that cause the amendment to be submitted. A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to persons of common understanding. State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, Syl. ¶ 4, 473 P.2d 97 (1970). A constitution should not be interpreted in any refined or subtle sense but should be held to mean what the words imply to the common understanding of persons. State v. Sessions, 84 Kan. 856, Syl. ¶ 1, 115 Pac. 641 (1911). When interpreting the constitution, each word must be given due force and appropriate meaning. Colorado Interstate Gas Co. v. Board *655 of Morton County Commr's, 247 Kan. at 660; State, ex rel., v. Hines, 163 Kan. 300, 304, 182 P.2d 865 (1947). The importance of understanding the intentions of the legislature in proposing the amendment cannot be understated. "`[T]he polestar in the construction of constitutions is the intention of the makers and adopters.'" Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939) (quoting 11 Am. Jur., Constitutional Law § 61). Where the purpose of the framers of constitutional provisions is clearly expressed, it will be followed by the courts. Here, terms of such provisions are not entirely free from doubt; therefore, they must be construed as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, and the words employed should be given a practical interpretation which will give them effective operation and suppress the mischief at which they were aimed. Hunt v. Eddy, 150 Kan. 1, Syl. ¶ 3. To obtain the object and purpose contemplated at the time art. 15, § 3c was adopted, we have reviewed (1) the interpretation of the judicial branch of the term lottery in art. 15, § 3 since 1891 and (2) the Attorney General opinions. In addition, we have noted the legislature's 1895 definition of a lottery and followed the legislative history of the statutes banning lotteries and gambling and the amendments to the constitutional prohibition of lotteries; pointed out that the explanatory statement to the proposed amendment informed the voters that a vote against the amendment would continue the current prohibition (art. 15, § 3) against such lotteries; observed that the bills introduced during legislative sessions since the approval of art. 15, § 3c to allow the State lottery agency to operate and conduct casino gambling on excursion boats follow the Attorney General opinions and do not require a constitutional amendment for passage; and, finally, noted that the legislature did not include a lottery operated by the State pursuant to the Kansas Lottery Act in the general prohibition against gambling. Contrary to petitioner's position, a reading of the legislative history prior to and subsequent to when the constitutional amendment was enacted leaves no doubt that the legislature intended but one result: the advent of a state-owned and operated lottery, developed, organized, and operated to provide revenue and not *656 limited to lotteries such as those functioning in other states. A state-owned lottery, as that term is used in art. 15, § 3c of the Kansas Constitution, means any state-owned and operated game, scheme, gift, enterprise, or similar contrivance wherein a person agrees to give valuable consideration for the chance to win a prize or prizes. Article 15, § 3c of the Kansas Constitution is not self-executing. Implementation of additional forms of state-owned and operated gambling must be enacted by the legislature. Judgment is entered for the respondent in accordance with the opinion herein. McFARLAND, J., dissenting: I disagree with the majority opinion's construction of both art. 15, § 3 and art. 15, § 3c. Since the admission of Kansas to the Union in 1861, art. 15, § 3 has provided: "Lotteries and the sale of lottery tickets are forever prohibited." In determining what the prohibited conduct is, the applicable principles of constitutional construction must be stated. These were summarized in Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 660, 802 P.2d 584 (1990), as follows: "In Board of Wyandotte County Comm'rs v. Kansas Ave. Properties, 246 Kan. 161, 786 P.2d 1141 (1990), we held: `In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision.' Syl. ¶ 2. `In interpreting and construing the constitutional amendment, the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that cause the amendment to be submitted.' Syl. ¶ 3. A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to men of common understanding. State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, Syl. ¶ 4, 473 P.2d 97 (1970). A constitution should not be interpreted in any refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. State v. Sessions, 84 Kan. 856, Syl. ¶ 1, 115 Pac. 641 (1911). When interpreting the constitution, each word must be given due force and appropriate meaning. State, ex rel., v. Hines, 163 Kan. 300, 304, 182 P.2d 865 (1947)." *657 The importance of understanding the intentions of the makers and adopters was emphasized in Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747 (1939), as follows: "`The polestar in the construction of constitutions is the intention of the makers and adopters.' (11 Am. Jur., Constitutional Law, § 61.)" Syl. ¶ 2. "Where the purpose of the framers of constitutional provisions is clearly expressed it will be followed by the courts. Where terms of such provisions are not entirely free from doubt, they must be construed as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, and the words employed should be given a practical interpretation which will give them effective operation and suppress the mischief at which they were aimed." Syl. ¶ 3. The basic scheme of lottery has remained unchanged at all times pertinent hereto. Illustrative of such definition is the following from Webster's Third New International Dictionary 1338 (1986): "1: a scheme for the distribution of prizes by lot or chance; esp: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them usu. as determined by the numbers on tickets as drawn at random (as from a lottery wheel) — see DUTCH LOTTERY, INTEREST LOTTERY 2: the occasion of selection of prizes by lot." An excellent discussion of the history of lotteries in America is found in Clotfelter and Cook, Selling Hope: State Lotteries in America (1989). The authors, in chapter 3, The Fall and Rise of Lotteries, document the following sequence of events. In 1566 Queen Elizabeth I chartered the first English government lottery. The Virginia Company's Jamestown settlement was, in part, financed by a lottery held in 1612. In colonial America, lotteries were a popular means of financing public projects. All the colonies had lotteries. Between 1766 and 1775, Rhode Island authorized 43 such lotteries. Construction of some of the buildings at Harvard, Yale, Princeton, and Columbia was financed by lotteries. During the Revolutionary War, lotteries were used to supply and support the troops. Lotteries were viewed as a sort of "voluntary tax" with a contingent profitable return. Between 1790 and 1833, Pennsylvania authorized 60 lotteries to benefit most religious denominations. Increasingly, however, lotteries were run by private individuals, with a resultant increase *658 in abuse and fraud. Opposition to lotteries spread rapidly in the early 1800's. In Phalen v. Virginia, 49 U.S. (8 How.) 163, 168, 12 L.Ed. 1030 (1850), the Court stated: "Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; and it plunders the ignorant and simple." One of the interesting aspects of the Phalen decision is that, while concerned with the legality of Virginia's authorized lottery, no effort was made to define lottery, presumably because the term was so well understood. Between 1833 and 1860, lotteries were abolished in all but three states. In this historical context, it is not surprising that Kansas saw fit to forever prohibit lotteries and the sale of lottery tickets. Due to the well-established nature of lotteries, prohibiting just lotteries would not wholly remedy the ills as a lottery could be held far from the borders of Kansas with its tickets being sold in Kansas. Prohibition of both lotteries and the sale of lottery tickets was, therefore, necessary. The use of the term lottery tickets is significant as other forms of gambling do not involve the sale of tickets. The majority opinion relies on our case law to reach its conclusion that: "[a] lottery, as that term is used in art. 15, § 3 of the Kansas Constitution, means any game, scheme, gift, enterprise, or similar contrivance wherein persons agree to give valuable consideration for the chance to win a prize or prizes." Syl. ¶ 1. This definition could equally serve as a definition of gambling. Inherent in any gambling activity is the risking of something of lesser value for the chance to obtain something of greater value. A lottery is a form of gambling, but not all gambling involves a lottery. As Justice (now Chief Justice) Holmes stated in his dissent in State ex rel. Schneider v. Kennedy, 225 Kan. 13, 37, 587 P.2d 844 (1978): "Certainly no one can argue with the statement that a saloon is a place that sells liquor. However, to say, as the majority does, that because a saloon *659 sells liquor, all places that sell liquor are saloons, is tantamount to saying that because chickens have feathers, all birds with feathers are chickens." The majority opinion discusses the various cases in which art. 15, § 3 has been construed. It is important to go through those cases from a different perspective. The first such case is State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984 (1891). The activity in question therein was "playing policy." For the payment of money, a person received a lead pencil and the opportunity to select three numbers. Later, in another location, a drawing would be held from a wheel. If the three numbers selected were drawn, the participant won money far in excess of his or her purchase cost. This court construed the word lottery "in the popular sense, with a view to remedying the mischief intended to be prevented." 45 Kan. at 353. In holding this was a lottery and that the lead pencil was not the object of the "purchase," this court relied on Wilkinson v. Gill, 74 N.Y. 63 (1878), which had invalidated a similar scheme on the basis it was a lottery. The New York court stated: "The word `lottery' has no technical legal meaning. .. . It is defined by Webster, `a scheme for the distribution of prizes by chance, or the distribution itself,' and he defines `lot' as `that which causes, falls or happens; that which in human speech is called chance, fortune, hazard,' and `to draw lots' is `to determine an event by drawing one thing from a number, whose marks are concealed from the drawer, and thus determining an event.' Worcester defines `lottery' as `a hazard in which sums are ventured for a chance of obtaining a greater value.' The language of FOLGER, J., in 56 N.Y. 424 [1874], may be adopted as a result of the accepted definitions. `Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out by the public, what and how much he who pays the money is to have for it, that is a lottery.'" 74 N.Y. at 66. The significant aspect of Mercantile Association and Wilkinson is that both involved true lotteries. The same can be said of State v. Brown, 173 Kan. 166, 244 P.2d 1190 (1952); State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929 (1936); and Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708 (1895). There was no need in any of them to fine tune the definition of lottery or to distinguish it from other forms of gambling. *660 The issue in the above cases was whether the lottery scheme in question was a prohibited gambling endeavor. Without all three basic gambling elements — consideration, prize, and chance — the lottery scheme was not prohibited. Not all lottery-type operations involve gambling. For example, a drawing for a door prize is a lottery arrangement but is not gambling if no consideration is paid. We then come to State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418 (1955), where, in my opinion, the train jumped the track. At issue was a statute which permitted parimutuel betting on greyhound races in Sedgwick County for a two-week period each year. The court held parimutuel dog racing was a lottery as it involved an undertaking whereby persons pay a consideration for the chance to receive money or property. Such a conclusion, in my opinion, was erroneous. Skill, study, and experience do not increase one's chances for winning a lottery. Lottery winning is wholly a matter of random selection — in other words, a matter of chance. It is true that a novice dog race bettor can be a winner based on pure luck, but the experienced professional has a far greater chance of winning. He or she will look over the field (usually eight dogs) and study the competition, the track records of each dog, the starting position of each dog, the condition of the track, how each dog normally runs (fast breaking vs. stretch runner, etc.), how recently each dog last raced, and innumerable other factors in making a knowledgeable estimate of the sequence in which the dogs will finish. This is a far cry from having only the hope and desire that the numbers he or she designated will be drawn out of a box or the right numbered pingpong balls will pop out of the machine. Dogs do not win races on the basis of random or chance selection. The basic elements of a lottery are absent in parimutuel betting on what are, essentially, sporting events. The court in Bissing took the requirements for determining whether an activity involved gambling and made them the definition of lottery, which is only one form of gambling. This was error. Next, chronologically, the majority cites State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97 (1970), authored by Justice Fontron. At issue was whether a Dialing for Dollars *661 television program was a lottery. The court held it was not as no consideration was paid directly or indirectly by the participants. But for the lack of consideration, the Dialing for Dollars scheme contained the elements of a true lottery. Significantly, in discussing the art. 15, § 3 prohibition against lotteries, the court stated: "But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts. We have heretofore had occasion to lay down general guidelines for its exercise. In Higgins v. Cardinal Manufacturing Co., [188 Kan. 11, 360 P.2d 456 (1961)], we observed that a constitution is not to be narrowly or technically construed but its language `should be held to mean what the words imply to the common understanding of men' (p. 18); that in ascertaining the meaning of constitutional provisions courts should consider what appears to have been the intendment and understanding of the people at their adoption. (See, also, State v. Sessions, 84 Kan. 856, 115 Pac. 641.) "Our limited research has brought to light no lay or legal dictionary of an 1859 vintage, the year the Kansas Constitution was adopted by the Wyandotte Convention. However, in Abbott's Law Dictionary, published in 1879, (a not too distant era) we have found this definition of a lottery: `A scheme for the distribution of prizes by chance, among buyers of the chances. `Such schemes were formerly very common, were authorized by law, and were even set on foot, in many instances, by the authorities, for raising revenue for public or benevolent purposes. In view of the ill effects of the element of gambling involved, they are now very generally made unlawful.' "Foremost among the citations appended to the text, the author has placed the following: `A lottery is a distribution of prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize. United States v. Olney, 1 Abb. U.S. 275.' (1868.) "Relying on the Abbott text, we feel justified in assuming that the common conception of a lottery about or near the time of the adoption of article 15, § 3; was much the same as it was in 1895, when the legislature enacted K.S.A. 21-1506 requiring the consideration from lottery participants to be `valuable.' Webster's Third New International Dictionary, unabridged, (1964) conveys much the same idea as it defines lottery: `a scheme for the distribution of prizes by lot or chance; esp.: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them, usu. as determined by the numbers on tickets as drawn at random (as from a lottery wheel).' "To similar effect, see Oxford Illustrated Dictionary (1962) and The Random House Dictionary of the English Language, The Unabridged Edition (1967)." 205 Kan. at 825-26. *662 All of the lottery definitions contained in Highwood apply only to a true lottery, and the court concluded that such was their meaning of a lottery in 1859 when the Wyandotte Convention adopted art. 15, § 3. This brings me to the final case cited by the majority, State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972). The case came before this court as follows: Criminal charges were filed against the defendants after they were caught in a gambling raid at an American Legion Club. Slot machines were present. Two defendants were charged with gambling and the third with operating a gambling establishment. At the time, K.S.A. 1971 Supp. 21-4302 exempted from criminal anti-gambling statutes any bingo game or a game of chance with comparable characteristics if operated by a tax-exempt organization. The sole issue presented was whether slot machines had comparable characteristics to bingo and, thus, were within the bingo exception. No constitutional issue was raised or argued. Over the vigorous disagreement of Justice Kaul, the majority raised, sua sponte, the constitutional issue of whether the bingo exemption statute was violative of art. 15, § 3. The majority, with no discussion of the intent in the adoption of art. 15, § 3, chronologically listed earlier cases and stated, "It has been firmly established from these cases as the law of this state that a lottery has three essential elements; namely, (1) consideration, (2) prize, and (3) chance." 210 Kan. at 444. On this basis, the court held bingo had all three elements and could not be exempted by statute from art. 15, § 3. Thus, whether or not slot machines had comparable characteristics as bingo really became irrelevant. Here again, the court confused the elements of gambling with the requirements of a specific form of gambling, a lottery. Under its circumstances, little precedential value should be afforded to Nelson. Interestingly, one of the cases cited in Nelson in support of its decision under art. 15, § 3 is State, ex rel., v. Fair Association, 89 Kan. 238, 131 Pac. 626 (1913), which was an effort to shut down a racetrack bookmaker under the anti-bookie criminal statute. The Supreme Court found such an operation was not lawful. A demurrer to the complaint was overruled on appeal. The opinion contains no reference to art. 15, § 3, although it was decided in a much closer time frame *663 to 1859 than was the other animal racing case, State, ex rel., v. Bissing, 178 Kan. 111. In my opinion, Bissing is an aberrant decision, and should be overruled or, at least, criticized and not followed herein. Following State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, which is not inconsistent with any of the earlier cited cases when analyzed, except for Bissing, I would construe lottery to be what it was intended to be at the time of its adoption — a true lottery, not a synonym for gambling in general, as the majority opinion asserts. If my position on art. 15, § 3 had been adopted by the majority, there would be no reason to discuss Issue No. 2, construction of art. 15, § 3c. However, the majority has not, so I turn to art. 15, § 3c, which provides: "State-owned and operated lottery. Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by concurrent resolution approved by majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game." Even with the majority's construction of art. 15, § 3, there are independent grounds for holding that § 3c applied only to a state-owned and operated lottery, which is a true lottery and, thus, like art. 15, § 3a and § 3b, is a narrow exception to the broadly defined lottery in art. 15, § 3. In determining the intent of the makers and adopters of § 3c in 1986, we are in an area of first impression, as the same has not been previously construed. As would be expected on a controversial issue, the legislative record is extensive. Proponents and opponents were vigorous in their respective presentations. Proponents argued for it as a new source of badly needed state revenue. Opponents felt that a state-run lottery was an unacceptable way to raise state funds and presented figures that it would not raise as much money for state coffers as the proponents argued it would. Statistics from other states having experienced state-run lotteries were introduced. In determining legislative intent, it is necessary to view all of the *664 record objectively and not engage in "looking over a crowd and picking out your friends." Mortier v. Town of Casey, 154 Wis.2d 18, 39, 452 N.W.2d 555 (1990). It can truthfully be said that there is not even a suggestion or even hint, in the vast amount of material presented on this issue, that passage of art. 15, § 3c would authorize the State to own or operate any form of gambling other than a true lottery. Here again, Clotfelter and Cook's book Selling Hope: State Lotteries in America, assists in setting the stage. The following statistics and comments therefrom are pertinent. The book was published in 1989. Chapter 8, page 139, State Politics and the Lottery Bandwagon, begins: "For the first six decades of the twentieth century lotteries were prohibited throughout the United States. New Hampshire broke the ice in 1963, and first New York and then the rest of the Northeast followed by the mid-1970s. During the 1980s states in every region adopted lotteries, and by 1988 two-thirds of the nation's population lived in states that were actively promoting the sale of a commodity that had been illegal twenty-five years earlier." The authors then state, at page 150: "In terms of the specific politics of lottery adoption, regional influence is enhanced by the fact that a lottery in one state will attract players from neighboring states. Until Indiana and Wisconsin established their own lotteries, for example, Illinois lottery outlets had numerous customers from those neighboring states; for those out-of-state players who did not want to make the trip themselves, `runners' ensured that Illinois tickets were available in the state office buildings in Indianapolis and from certain bus drivers in Madison. Thus when one state adopts a lottery, the effect is to undercut arguments against adoption in neighboring states. Since their residents can now play (albeit inconveniently), and do, moral concerns and public interest arguments seem moot. And if state residents are going to play the lottery anyway, why should the neighboring state enjoy the benefits? Hence the dominoes begin falling in the region. Governor John Carlin of Kansas, grumbling about the new lottery in Missouri, explained his change of heart this way: `I've never backed a lottery before. But not having one when your neighbor has one is like tying one hand behind your back.'" Let us now look at the specific language of art. 15, § 3c which provides: "State-owned and operated lottery. Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned *665 lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by concurrent resolution approved by majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game." (1) If lottery, as used in art. 15, § 3 was considered to be a synonym of gambling, a self-executing amendment exempting state-owned or operated gambling enterprises — a simple "art. 15, § 3 shall not apply to state-owned or operated gambling operations or games" — would accomplish the purpose, or (2) if it was intended that the State be exempted from art. 15, § 3 and that the legislature be left to determine what forms of gambling would be permitted, the proposed amendment could have so provided. Instead, § 3c provides: "Notwithstanding the provisions of section 3 of article 15 ... the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery...." The amendment permits a lottery and refers to that one lottery as such lottery. Even authority to operate the one lottery would have expired in 1990 unless its operation was authorized by the concurrent resolution. The enabling legislation, codified as the Kansas Lottery Act, K.S.A. 74-8701 et seq., is totally harmonious with the construction that only true lottery games were authorized, listing as it does the types of lottery games (K.S.A. 74-8710) referred to in the majority opinion. The majority opinion states Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 802 P.2d 584 (1990), could be the "cornerstone of our decision." I disagree therewith. In Colorado Interstate, we were construing a constitutional provision which exempted merchants' and manufacturers' inventory from ad valorem tax. The pipeline companies were in the business, inter alia, of buying and selling natural gas. During seasonal periods of slack demand, the excess would be stored for sale during peak demand times. This stored gas was held to be inventory and the pipelines were construed to be merchants as to such stored gas. This result required neither a strained construction of "merchant" or "inventory" — just ordinary meanings. In the case before us, an erroneous interpretation of art. 15, § 3 *666 is being held to control the language of the clearly worded art. 15, § 3c, where all of its legislative history supports giving the words employed their common and ordinarily understood meanings. I would construe art. 15, § 3c to mean just what it says — the State is exempted from art. 15, § 3 only to own and operate a lottery. A lottery is a commonly understood term. If someone walked into a room full of people and yelled he had just won $100 in the lottery, no one would interpret this to mean the speaker had just had a lucky day at the dog track, a great night playing poker or blackjack, or a lucky streak playing slot machines. Lottery is not a legal term. Its usage in art. 15, § 3c should be given its commonly understood meaning which is consistent with its entire legislative history. My position may be summarized as follows. At the time of the adoption of art. 15, § 3 in 1859, lottery had a well-established common meaning. Participants pay for the opportunity to have a chance to win something of greater value. A participant selects his or her numbers. If these numbers are selected at a future drawing (or other random means), the holder of the ticket wins. Winning numbers may be predetermined at random in scratch-off or punchboard versions. The early cases decided by this court involved what were clearly lottery schemes. The issue was whether they had the necessary elements of gambling in them. Not all lottery-type activities involve gambling. The elements of gambling are consideration, prize, and chance. Drawings for door prizes are, for example, lottery arrangements, but are not gambling where no consideration is paid. The Dialing for Dollars scheme in the Highwood Service, Inc., case, was a lottery but did not involve gambling, as the element of consideration was missing. These cases were dealing with lottery-type operations. The question was essentially whether they were lotteries involving the elements of gambling. Other forms of gambling were not involved. State, ex rel., v. Bissing, 178 Kan. 111, 283 P.2d 418 (1955), came along and took the consideration, prize, and chance elements of gambling discussed in the earlier cases and applied them to decide that parimutuel dog races were lotteries. This is a gross misapplication of the earlier cases. In State v. Nelson, 210 Kan. *667 439, this error was repeated. The result of this error is that under these two cases all types of gambling became lotteries. This was not the holding of the cases relied on in these decisions. I would simply apply the term lottery to the well-established specific type of gambling that it is as shown by the common understanding in State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P.2d 97 (1970), and the historical material included herein. Art. 15, § 3c should be construed to authorize just what its clear language provides — to permit the State to own and operate a lottery. To hold otherwise further compounds the error of Bissing and Nelson by carrying them over to a separate constitutional provision which is before us for the first time for judicial construction. Before concluding, it is appropriate under the circumstances relative to how and why this action was brought to make some comments on issues 3 and 4, which the majority declined to determine. The Indian Gaming Regulatory Act (IGRA) (25 U.S.C. § 2701 et seq. [1988]) requires a state to negotiate if it "permits" class III gaming. Section 1175 of the older Johnson Act (15 U.S.C. § 1171 et seq. [1988]) prohibits gambling devices in Indian country. The IGRA waives the Johnson Act if such devices "are legal" in the State in which the Indian land is located. Determination of both "permits" and "are legal" involves consideration of a state's constitutional and statutory law. In Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993), the Tenth Circuit held that the importation of video lottery terminals onto Indian land violates the Johnson Act and that the IGRA does not waive application of the Johnson Act because such gambling devices are not legal in the State of Oklahoma. The determination that the gambling devices were not legal was based wholly on the Oklahoma criminal statute prohibiting gambling devices. The "permits" and "are legal" requirements are the subject of considerable federal litigation relative to other states. The majority has determined that a federal court should decide these issues as to what Kansas permits and what gambling devices are legal in the State. CONCLUSION I would hold that art. 15, § 3 prohibits only lotteries and the sale of lottery tickets, and such prohibition does not include casino *668 gambling. Casino gambling is, however, prohibited by the Kansas criminal statutes pertaining to: gambling (K.S.A. 1993 Supp. 21-4303); commercial gambling (K.S.A. 1993 Supp. 21-4304); permitting premises to be used for commercial gambling (K.S.A. 1993 Supp. 21-4305); dealing in gambling devices (K.S.A. 1993 Supp. 21-4306); and possession of gambling devices (K.S.A. 1993 Supp. 21-4307). Alternatively, if the terms "lotteries" and the "sale of lottery tickets" as used in art. 15, § 3 are construed to include casino gambling (as does the majority opinion), then art. 15, § 3c should be construed to be an exception to art. 15 § 3 (as are art. 15, § 3a and § 3b), which permits only a state-owned and operated lottery as that term is commonly understood and was intended by the makers of the amendment. This is consistent with the rule of construction that exceptions to a general provision are to be construed narrowly. See National Collegiate Realty Corp. v. Board of Johnson County Comm'rs, 236 Kan. 394, 690 P.2d 1366 (1984). Casino gambling would, therefore, be prohibited by art. 15, § 3 and the provisions of the Kansas Criminal Code stated in the preceding paragraph. Finally, even if "lotteries" and "a lottery" as used in art. 15, § 3 and in art. 15, § 3c, respectively, are both construed broadly, as does the majority opinion, then casino gambling remains unlawful in Kansas. This result arises from the fact that art. 15, § 3c is not self-executing. The amendment states the legislature "may provide" for a state-owned and operated lottery. The enabling legislation is the Kansas Lottery Act, K.S.A. 74-8701 et seq. Under the Act, the State may operate only what are true lottery games. The exceptions in the Kansas Criminal Code relative to gambling which exempt the state-owned lottery activities are limited to the "lottery" operated under the Kansas Lottery Act. Thus, even if the Kansas Constitution is construed to permit the legislature to authorize the State to own and operate casino gambling, the legislature has not done so. Therefore, casino gambling is unlawful in Kansas. HOLMES, C.J., and ABBOTT, J., join in the foregoing dissenting opinion.

519 F.Supp. 991 (1981) AFFILIATED CAPITAL CORPORATION, et al., Plaintiffs, v. CITY OF HOUSTON, et al., Defendants. Civ. A. No. H-79-1331. United States District Court, S. D. Texas, Houston Division. July 7, 1981. *992 *993 *994 Charles J. Brink, Houston, Tex., for plaintiffs. Stephen D. Susman, Susman & McGowan, Houston, Tex., for plaintiffs. Rufus Wallingford, Fulbright & Jaworski, Houston, Tex., for defendants City of Houston and Mayor McConn. Richard B. Miller, Baker & Botts, Houston, Tex., for defendant Gulf Coast Cable Television. MEMORANDUM AND ORDER CARL O. BUE, Jr., District Judge. I. The Pending Motions and The Court's Ruling Various post-trial motions are pending before the Court: (1) plaintiff's Motion for Injunctive Relief and for Entry of Judgment in Accordance with the Verdict; (2) defendant McConn's Motion for Judgment on the Verdict; (3) defendant Gulf Coast's Alternative Motions for Judgment on the Verdict, Judgment Notwithstanding the Verdict or for New Trial; and (4) defendants City of Houston's and McConn's Motion for Judgment Notwithstanding the Verdict. Having considered the record of this case, the issues addressed in the memoranda, and the arguments of counsel, the Court rules as follows with regard to the motions: (1) plaintiff's motion should be denied in its entirety; (2) defendants' motions for judgment on the verdict or for new trial should be denied; and (3) defendants' motions for judgment notwithstanding the verdict should be granted.[1] In this complex and protracted anti-trust case which resulted in a jury verdict for the plaintiff, the instant rulings by the Court are necessarily expanded upon at length in light of the trial record to explain the reasoning utilized in reaching a decision adverse to plaintiff. The issues basically revolve around the meaning of two of the jury's answers to interrogatories propounded at the close of the evidence and the Court's obligation under the law at this stage of the trial to uphold the verdict if supported by the record. While persuaded that the plaintiff's proof can be viewed as advancing a second theory of conspiracy to limit competition for cable franchises separate and apart from the boundary agreements, this Court finds no evidence apart from the boundary agreements of a conspiracy which caused harm to plaintiff. Since the jury found such boundary agreements were not part of a conspiracy in unreasonable restraint of trade, the necessary nexus between a conspiracy and plaintiff's failure to receive a cable franchise is lacking. Accordingly, the defendants must prevail, and a judgment notwithstanding the jury verdict in their favor will be granted. II. The Contentions of the Parties The jury was instructed that in order to find that any of the defendants violated Section 1 of the Sherman Act, they had to find the following essential elements by a preponderance of the credible evidence: (1) that the particular defendant entered into a conspiracy or agreement with one or more other persons; and *995 (2) that the object of this conspiracy or agreement was to divide and allocate territories and thereby eliminate plaintiff or others as competitors for cable television franchises in Houston; or that the object of this conspiracy was to limit competition to those persons who participated in the agreement. Instruction No. 12, Jury Charge. Further, they were instructed as follows: It is established that Gulf Coast agreed to divide or allocate the territories within which certain cable television companies would apply for a franchise, specifically with the Houston Cable and Westland groups. The question for you to determine is whether such agreements were made as part of a conspiracy which constituted an unreasonable restraint of trade which had a substantial adverse effect on competition. Also with regard to Gulf Coast, you must determine whether Gulf Coast engaged in a conspiracy with one or more other persons to limit competition for cable television franchises in Houston. If you determine that Gulf Coast entered such a conspiracy, you must determine whether that conspiracy constituted an unreasonable restraint of trade. With regard to the City of Houston and Mayor McConn, if you determine from a preponderance of the evidence that either of those defendants participated in or acted in furtherance of a conspiracy to divide or allocate the territories within which the cable television companies would apply for a franchise with the purpose of excluding plaintiff from a franchise, or of a conspiracy to limit competition for cable television franchises, you must next determine whether such alleged conspiracy constituted an unreasonable restraint of trade, which had a substantial adverse effect on competition. Instruction No. 17, Jury Charge. In conformity with the instructions, two interrogatories concerning liability on separate conspiracy theories, one specifically related to boundary agreements and one related to a conspiracy independent of those agreements, were submitted to the jury. The first interrogatory encompassed the issue of whether the established boundary agreements were part of an illegal conspiracy,[2] and the jury responded with a negative answer. The third interrogatory encompassed the issue of whether any of the defendants participated in an illegal conspiracy to ensure that only co-conspirators would receive franchises,[3] and the jury responded affirmatively, finding that defendants Gulf Coast, City of Houston and Jim McConn participated.[4] The jury then found causation and damages in affirmative answers to Interrogatories Nos. 5 and 6. *996 Defendant Gulf Coast contends that it is entitled to judgment based on the negative answer to Interrogatory No. 1, for the following reasons: (1) Given the finding that the boundary agreements were not part of an unlawful conspiracy, there is no evidence to support an affirmative answer to Special Interrogatory 3; (2) The finding that the boundary agreements were not part of an unlawful conspiracy precludes an affirmative answer to Special Interrogatory 5 — that an unlawful conspiracy proximately caused injury to plaintiffs' business or property — since there is no evidence of any unlawful conspiracy contributing to plaintiffs' failure to obtain a franchise other than testimony linking the boundary agreements with such failure; and (3) The finding that the boundary agreements were not part of an unlawful conspiracy resolves all arguments against the applicability of Noerr-Pennington to the facts of this case and renders that doctrine controlling as a matter of law. Defendants City of Houston and McConn contend that they are entitled to judgment on the following grounds, inter alia: I. In light of the jury's answer to Special Interrogatory No. 1, there is no evidence to support the jury's answers to Special Interrogatories Nos. 3 and 5.... II. In light of the jury's answer to Special Interrogatory No. 1, the evidence is conclusive that all other actions of the Mayor and the City of Houston were within the scope of the legislative process, and are exempted from antitrust liability.... Plaintiff asserts that it has never taken the position that the boundary agreements simply were a more specific and all-inclusive description of the conspiracy to limit competition. Instead, plaintiff's theory throughout the course of proceedings was that "the boundary agreements were illegal standing alone[5] as well as being part of the conspiracy to limit competition", and plaintiff asserts that the boundary agreements "were not the only acts that [it] put in evidence to establish the existence of a conspiracy to limit competition."[6] Plaintiff characterizes the conspiracy addressed in Interrogatory No. 3 as one in which the "co-conspirators agreed to limit competition from non-conspirators, including plaintiff..., [and agreed] to limit competition with each other."[7] *997 III. The Test for Sufficiency of the Evidence and The Relevant Proof On motions for ... judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, .... The motions for ... judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc); accord, Bazile v. Bisso Marine Company, 606 F.2d 101, 104 (5th Cir. 1979), cert. denied, ___ U.S. ___, 101 S.Ct. 94, 66 L.Ed.2d 33 (1981). Pursuant to the Court's obligation to implement that standard, the Court carefully has reviewed documentary evidence and testimony in the light most favorable to plaintiff, and has analyzed comprehensively the plaintiff's assertions regarding the inferences to be drawn therefrom. The Court concludes that with regard to liability of defendants for a conspiracy to limit competition of non-conspirators and to limit competition among co-conspirators, that is, whether such a conspiracy existed independent of the boundary agreements and whether defendants Gulf Coast, City of Houston and McConn participated in it, substantial evidence exists in the record to create a likelihood that reasonable persons could reach different conclusions. With regard to evidence of a causal relationship between that conspiracy and plaintiff's failure to be awarded the franchise for which it applied, however, the record presents insufficient evidence, and the Court concludes that reasonable persons could not decide otherwise. Accordingly, the Court finds *998 that the absence of evidence of causation cannot support a verdict in plaintiff's favor based on an affirmative answer to Interrogatory No. 5. A. The Issue of Liability The Court agrees with plaintiff that the jury's affirmative answer to Interrogatory No. 3 reflects its "apparent conclusion that the conspiracy to limit competition was an agreement or understanding that franchises would be awarded only to those applicants that were approved by Gulf Coast and other nondefendant participants", and with defendant Gulf Coast that "apparently [the jurors believed that] there was some conduct wholly unrelated to the boundary agreements which was legally cognizable as a conspiracy in unreasonable restraint of trade to limit competition for cable franchises." As defendants have contended, plaintiff focused throughout the case on the boundary agreements and the negotiations surrounding them, as is apparent from plaintiff's pleadings and proof.[8] The jury's rejection of plaintiff's predominant theory, however, will not suffice to resolve the question of whether proof exists in the record to support a theory which plaintiff espoused but did not emphasize. In Plaintiff's Brief Demonstrating Inferences from the Evidence, plaintiff identifies many excerpts from the testimony as well as related documentary evidence from which inferences can be drawn to support the existence of a separate theory of conspiracy to limit competition that is not contingent upon evidence concerning boundary agreements. Plaintiff has reached the correct result in its analysis of the evidence. The Court has determined, however, that some of the proof identified by plaintiff is inappropriate for consideration because that evidence relates solely to boundary agreements encompassed in Interrogatory No. 1. In order to demonstrate clearly the evidence apart from that of boundary agreements which tends to show the existence of, and acts done in furtherance of, a conspiracy to exclude non-conspirators and to limit competition among co-conspirators, the Court feels obligated to set forth a summary of the history of the franchise process followed in Houston and a detailed recitation of the evidence which demonstrates that the conspiracy encompassed in Interrogatory No. 3 existed. 1. History of Franchising Process Between July 1978 and August 1978 several applications for cable television franchises were filed with the City: Gulf Coast, the first; Houston Cable; Meca; Houston Community Cable; and G. B. Communications. In September 1978, Westland also made application, and plaintiff, Affiliated Capital, having divested itself of ownership of a savings and loan association and thereby becoming eligible to apply for a franchise, hired an attorney to assist it in obtaining a franchise. In October 1978, the City hired a consultant, Robert Sadowski, to evaluate the applications; the consultant's employment was terminated in November, 1978. Also in October, plaintiff announced by letter to City Council its intention to apply for a franchise, and in November, City Council sent to plaintiff an application form. Plaintiff filed its application on November 16, 1978, and filed a supplemental application on November 28, 1978. The November 29, 1978 City Council agenda contained six cable television ordinances: Gulf Coast; Houston Cable; Meca; Houston Community; Westland; and G. B. Communications. At the November 29 meeting, the ordinances were tabled until December 13, 1978, and plaintiff was granted a hearing on its application on December 12, 1978. *999 After plaintiff's presentation on December 12, plaintiff's application was referred to the Public Service Department for evaluation, and all of the ordinances were tabled again so that the franchises could be referred to the public service and legal departments for their recommendations. On December 20, 1978, written recommendations from those departments for the following applicants were made to City Council: Houston Community; Meca; Houston Cable; Westland; Gulf Coast; and Affiliated Capital. On the same date, the following ordinances were passed upon first reading: Gulf Coast; Houston Cable; Westland; and Houston Community. The franchise ordinance applications of Meca and plaintiff were tabled for one (1) week. On January 10, 1979, the franchise ordinances of Gulf Coast, Houston Cable and Westland were passed on the third and final reading. Inasmuch as Gulf Coast's franchise contained within it all of the area plaintiff had applied for, the approval of Gulf Coast effectively preempted plaintiff's application. 2. Evidence of Conspiracy Within that framework plaintiff asserts that many of defendants' acts demonstrate the existence of agreements that "were designed to ensure that only those companies participating in the understandings would receive cable television franchises, to ensure that participating companies would not be in the position of having to compete with each other with regard to the terms of the contractual commitments each would offer the City in order to obtain a franchise, and to ensure that competitors who did not participate would be prevented from obtaining franchises." With regard to that assertion, the Court's task is to ascertain what evidence in the record tends to prove plaintiff's contentions apart from the evidence which relates solely to the boundary agreements found by the jury not to be part of the conspiracy. The Court acknowledges that even though the jury responded negatively with regard to the boundary agreements, evidence pertaining to those agreements could demonstrate the parties' intent to conspire, when considered cumulatively with independent evidence of the conspiracy. See, e. g., United Mine Workers of America v. Pennington, 381 U.S. 657, 670 n.3, 85 S.Ct. 1585, 1593 n.3, 14 L.Ed.2d 626 (1965); United States v. Southern Motor Carriers Rate Conference, 439 F.Supp. 29, 47 (N.D.Ga. 1977). In light of the jury's finding, however, evidence pertaining to those agreements, or inferences to be derived therefrom, cannot be considered as evidence sufficient to prove the existence of the conspiracy; evidence of other conduct, wholly unrelated to the boundary agreements, and independently demonstrating, directly or circumstantially, that a conspiracy existed, must be present in the record to sustain the jury's affirmative answer to Interrogatory No. 3. For purposes of identifying such evidence, the Court recounts below all of the proof plaintiff has designated which the Court agrees independently will support the existence of the second theory of a conspiracy. Where other portions of the evidence cited by plaintiff in its brief as supporting the second conspiracy are omitted, it is because this Court views such evidence as related solely to boundary agreements. By omitting those portions, the Court rules that, when stripped of their boundary content, the acts identified by plaintiff are no evidence of, and can evoke no inferences of, the existence of a conspiracy to limit competition.[9] *1000 By late August 1978, Clive Runnells, on behalf of Gulf Coast, had agreed with Meca that they would be friendly competitors.[10] Testimony of Clive Runnells. Al Levin, Affiliated Capital's lawyer during the franchising process, testified that by September 20, 1978, he contacted Bill Chamberlain, an agent of Gulf Coast. Chamberlain told him that Gulf Coast's attorney Bill Olson "was a pushing force of the cable TV situation at that point." Levin further testified that he then contacted Olson and Olson told him, "as far as I am concerned, Al, it's too late; the pie has already been cut."[11] Olson added: "Al, tell Billy [Goldberg] he is too late on this one." "[Olson's] words were, `the City is locked up by five franchises.'" On the day before this telephone conversation between Levin and Olson, Olson had told Jonathan Day, an attorney for Houston Cable, that Olson was "trying to put map together" and that "most of areas are defined on eastern side." Plaintiff's Exhibit 63. On September 28, 1978 a lawyer for Houston Cable wrote to the lawyer for Gulf Coast regarding the franchise ordinance: Enclosed is a copy of the proposed cable television ordinance marked to show deletions and additions, including some recommended by our FCC counsel. Also enclosed is an unmarked copy for your convenience. The enclosed form of the proposed ordinance has been placed in our word processing equipment. Consequently, any changes or additions you wish to make can be easily accommodated. As we discussed, the enclosed form should be considered as an internal working draft so that we can reach an agreed proposal to present to the city. Plaintiff's Exhibit 14. A week later he wrote another letter recounting that they had met on this franchise ordinance, and noting their discussions of various provisions of this proposed ordinance, including the provision with respect to the percentage of the City's interest in the gross revenues from the ordinances: Enclosed is a revised form of CATV ordinance with the changes we discussed at our last meeting in Section 8.G; Section 10.B; Section 11.D; Section 12.H, J, and M; and Section 23.A. Also enclosed is a suggested revision to Section 20.A regarding the three percent of gross revenue issue in the event we are unsuccessful in limiting the franchise fee to regular subscriber service. If you have further comments or suggestions regarding this proposed form of ordinance, please let me know. Plaintiff's Exhibit 15. None of the referenced sections of the proposed ordinance relates to boundaries. *1001 In October 1978, Runnells and others met with Mayor McConn. At that meeting, Runnells was informed that McConn wanted Westland to have a franchise. Westland had applied for a portion of the area sought by Gulf Coast, and the Mayor indicated to Gulf Coast that a general area, Westbury-Meyerland, was what he wanted Westland to have.[12] Testimony of Clive Runnells; Testimony of James McConn. On November 22, 1978, notice of the November 29th City Council agenda indicated that six (6) ordinances, five of which ultimately were approved, would be considered. On November 27, 1978, the attorney for Houston Cable, one of the applicants scheduled on the upcoming agenda, sent a final proposed cable television ordinance to the City Attorney: Enclosed is a revised form of the proposed cable t.v. ordinance which includes the modifications made this week-end. In order to meet the proposed time schedule, any further revisions must be agreed by 12 noon on Tuesday, November 28. Final proofing of the enclosure will be completed by that time. Plaintiff's Exhibit 29. He also sent a copy of the ordinance to Gulf Coast's attorney, who had discussed it with the lead counsel for Houston Cable earlier that morning: Enclosed is the proposed cable t.v. ordinance which Jonathan Day discussed with you this morning. Also enclosed is a copy of the transmittal letter to the City attorney. I have marked significant changes in red in order to facilitate your review. If you have any questions or comments, please let me know. Plaintiff's Exhibit 30. The next day Houston Cable's attorney sent copies of the ordinances to the ultimately successful applicants. The proposed ordinances were complete except for the names of the applicants and their proposed service area. Plaintiff's Exhibits 32 & 189. The successful applicants then filled in the blanks with their names and service areas, and forwarded the ordinances to the City Attorney. Some applicants sent their proposed ordinances back *1002 to the Houston Cable Attorney who then forwarded them to the City. Plaintiff's Exhibit 35. The agenda for the City Council meeting of November 29, 1978 contained six (6) cable television franchises, not including plaintiff's, Plaintiff's Exhibit 33; those ordinances had been placed on the agenda on or before November 22, 1978, Plaintiff's Exhibit 174.[13] When Affiliated attorney Levin heard of this, he contacted Assistant City Attorney Adrian Baer. Baer relayed the following information to Levin: [T]he Mayor and City Council had made their decision, and [Baer] said, `I learned this directly from the Mayor, the franchises are non-exclusive, he does not know about the areas, it's still being worked out by Williams and Baer ... so the net result will be a de facto exclusive." He [, Baer,] explained to me that there were — the decisions as to who was going to get what areas, specifically in terms of the actual boundaries, were still under negotiations, but the decision as to who was fait accompli. Testimony of Al Levin; Plaintiff's Exhibit 106. After an on-site inspection of Gulf Coast's Bellaire facilities, Sadowski, the consultant hired by the City of Houston, told Earle, Director of Public Service, and Baer, Assistant City Attorney, that he would reject Gulf Coast's application. The next morning, Sadowski was fired. One day later a messenger from Earle retrieved the notes Sadowski had made concerning the applications. In his notes, Sadowski had not recommended that Gulf Coast's application be rejected, in spite of his oral *1003 suggestion to that effect to Earle and Baer, and he testified that he would have made no substantive changes in his report after the visit to Gulf Coast's facilities. He had recommended in his report, however, that Gulf Coast be given a smaller franchise area than that for which it had applied. When Sadowski's notes were typed by someone in the City, that recommendation was deleted. Moreover, other significant changes were reflected in the typed version of the notes Sadowski had turned over to Earle's messenger: his recommendations that Houston Community Cable, Houston Cable, and Columbia (Westland) be rejected were changed to recommendations that they should continue to be considered; and his statement that Cablecom had presented the only satisfactory application was omitted. Testimony of Robert Sadowski. Prior to the plaintiff's hearing before City Council on December 12, 1978, McConn suggested to Goldberg that Affiliated seek a franchise in another area of the City rather than in the area sought by Gulf Coast. McConn testified as to his motivation for the suggestion: "I thought that, in trying to really help Mr. Goldberg, it was pretty obvious to me that Gulf Coast had the muscle and that Mr. Goldberg did not." At the City Council hearing on plaintiff's application which was conducted on December 12, 1978, the following comments were made by Councilman Goyen: Mr. Goldberg, let me address Council's wisdom. As these applications came in, they were sent to the Legal Department. Obviously, a number of lawyers got together and did whatever they did. I was not privy to it nor did I want to sit in on any meeting. Apparently, they came up with the formula that those applicants agreed upon. I was hoping that your situation might end up in the same pot as the others, whereby there would be some kind of recommendation coming before this Council, and this Council would not have to carve from one to give to another, which we have not had to do in the past and which I do not want to do now nor do I intend to. I do not want to taketh away and giveth to somebody else, because I haven't had to do that in the past. You have a very competent attorney, and the other people have very competent attorneys. What I would like to see done, and it might take a motion to get this done, is to send this to the Legal Department and try to work something out. Plaintiff's Exhibit 150 at 27-28. Subsequently, the Council discussed how to proceed with plaintiff's application, and Councilman Mann made the following suggestions: I want to make a substitute motion that the [plaintiff's] application be referred to the Legal Department, and they in turn can contact these other applicants who have come forward and see if they can work out something. .... If you take this, fine, then see how much Gulf Coast is going to knock off this other group on farther down and then around and around. .... Substitute motion that this application be referred to the Legal Department and Public Service, and they are to contact the other people that have ordinances and guarantee that these boundaries are being adjusted between them, and they report back to Council. Plaintiff's Exhibit 150 at 37, 39, 40. Also at that hearing, Mann indicated his knowledge of a house-count survey that had been conducted by Gulf Coast. Plaintiff's Exhibit 150 at 25. The survey resulted in a comparison between the area plaintiff was applying for and an area that was within Houston Cable's application, Plaintiff's Exhibit 84, and was conducted in conjunction with a proposal by Gulf Coast that if Houston Cable would give the identified area to Gulf Coast, then Gulf Coast would be willing to give plaintiff its area. Testimony of Al Levin. A document, prepared sometime between November 28, 1978, and December 20, 1978, by Assistant City Attorney Baer bears an alternative boundary description *1004 for the Gulf Coast franchise including the Houston Cable area, with Baer's notation: "I-10 line shifted to Hwy. 290 without Goldberg's tract — contingency." Plaintiff's Exhibit 56. City Council favored Gulf Coast's franchise, which subsumed the area plaintiff had applied for, and at trial several councilmen and Mayor McConn testified as to their reasons therefor. McConn's concern was to keep politically influential groups content: Q You didn't want to step on anybody's political toes, did you? A Not if I could avoid it. Q You didn't want to make any type of political decision where some powerful person like Walter Mischer would be unhappy, did you? A Not if I could avoid it. Q And if all of the parties could work things out, then you wouldn't have to make any type of decision, other than approving their agreements, isn't that correct? A Yes, generally that is correct, yes, sir. Q And isn't that what you wanted to happen? A That would have been beautiful, if it could have happened that way. Q But when it didn't happen and you had to make the choice between Southwest Houston and Gulf Coast, you stated that the other — you thought the other people were more politically powerful than Southwest, isn't that correct? A Yes, sir. I don't know if I said that, but I'll say it now. Testimony of James McConn. Councilman Goyen testified by deposition that he would have voted for Affiliated Capital's application if "on the 20th, Mr. Goldberg had come in and Mr. Runnells had come in, Mr. Mischer had come in, and all the principals had come in, and a piece of Houston had been carved out for Mr. Goldberg with no objection by anybody." Councilman Robinson testified that he would have supported Affiliated Capital's application if plaintiff had been able to work something out with Gulf Coast to give him what he wanted. Councilman Westmoreland testified that he did not disagree with his prior deposition testimony that Affiliated had been unable to work out any type of arrangement with Gulf Coast, and for that reason Westmoreland voted in favor of Gulf Coast.[14] *1005 Finally, plaintiff's expert witness, Martin Malarkey, testified at length about the detrimental results of the noncompetitive franchising process in Houston, and about the benefits to residents of other cities where the process has involved competition on the merits of the applications. According to his testimony, the benefits include lower rates, provisions for sanctions in the event of noncompliance by the franchisee, provisions for performance bonds, and provisions requiring city approval prior to changes in ownership or control of the franchises. Further, he testified that normally the city itself prepares the franchise ordinance, rather than allowing applicants to do so. Having reviewed the entire record and excised the portions of the evidence which relate solely to boundary agreements, the Court is persuaded that sufficient evidence was presented for the jury to infer that each of the defendants had participated in a conspiracy to limit competition from non-conspirators and to limit competition among co-conspirators. Defendant McConn has asserted that none of the evidence apart from that related to boundary agreements tends to demonstrate his involvement in any conspiracy as described by plaintiff. The Court concludes that a review of the above-recited evidence belies McConn's contention. Defendant Gulf Coast asserts that inasmuch as its general partner, Clive Runnells, was the sole decision-maker on behalf of Gulf Coast and was exonerated by the jury, Gulf Coast cannot be liable even if a conspiracy is supported by the evidence. Preliminarily, the Court observes that Chamberlain and Olson were agents of Gulf Coast and acted on behalf of Gulf Coast in many of the contacts with the City. Secondarily, even though the jury found that plaintiff failed by a preponderance of the evidence to prove that Runnells participated in the conspiracy, the jury could have considered evidence of the acts of Runnells, in combination with those of other agents of defendant, in deciding that the corporate defendant participated in the conspiracy. B. The Issue of Causation Plaintiff asserts that evidence of causation necessarily is inferential and that, having considered all of the evidence which supports the existence of the second theory of conspiracy, "the jury could have concluded that when Affiliated was directed to negotiate with its competitors for a place in the franchise package, it was not the boundary agreements that injured plaintiff, but the unwillingness of the private participants in the conspiracy to divide up the pie any further." With regard to that assertion, defendant Gulf Coast counters that, "In other words, causation lay in the unwillingness of the private parties further to amend their boundary agreements on a voluntary basis. In the absence of them, the issue would not have arisen. This hardly can be said to represent evidence apart from the boundary agreements of a conspiracy which caused harm to plaintiffs." The Court is constrained to agree with defendant. The five franchises which ultimately were awarded and which were represented among the ordinances considered by City Council on December 20, 1978, covered the entire city.[15] Accordingly, even though one could infer from the evidence that the successful applicants' refusal to accommodate plaintiff resulted in plaintiff's not having its franchise application approved, the sole reason that plaintiff failed to receive a franchise was that Gulf Coast refused to readjust boundary agreements previously made. Had the boundary agreements not been made, the city well might not have been covered by the successful applicants' franchises. The boundaries, however, were established before the ordinances were considered by Council. The applicants thereby *1006 had eliminated the primary, and perhaps only, concern of the Council,[16] and the applicants declined to accommodate plaintiff by renegotiating or readjusting those boundaries previously agreed upon. The jury clearly found that those boundary agreements were not part of a conspiracy in unreasonable restraint of trade in their answer to Interrogatory No. 1. Thus, the agreements to allocate and divide territory cannot be considered as evidence proving causation of plaintiff's injury, and no other evidence in the record, either direct or inferential, provides the necessary connection between the second theory of conspiracy to exclude non-conspirators and the plaintiff's failure to receive a franchise. The testimony elicited by plaintiff from its expert witness further demonstrates that what plaintiff established was a causal relationship between the applicants' agreements to eliminate overlaps in territory and the plaintiff's failure to be awarded a franchise, rather than a relationship between the agreement to exclude non-conspirators and plaintiff's injury. The sum of plaintiff's direct evidence of causation is revealed in the following excerpts from the testimony of Martin Malarkey. Preliminarily, plaintiff asked its expert to opine whether overlapping franchises should have been awarded. Q Does it make any sense to you, Mr. Malarkey, from your experience, if you are granting franchises, to grant overlapping areas? Does it make economic sense to do that, sir? A Two franchises for the same area? Q Yes, sir. A No, sir, it does not. Q Sir, if a franchise that a city does award does not overlap, then where is there any competition in the cable industry? .... A Competition takes place when the city advertises for bids, for applicants to come in and offer to provide service to an entire community or given parts of the community. Q So the competition takes place in the franchising process — A Absolutely. Q — itself? A Yes, sir. Testimony of Martin Malarkey, February 4, 1981. Plaintiff then asked about the correlation between overlapping franchise areas and competition on the merits of the applications: Q Sir, if applications were filed by several companies for the same areas, and if overlaps between these applicants were not resolved by agreement or any way else, based upon your experience in other cities would there have been competition on the merits of these applicants? A Absolutely. Q By the way, sir, other than what you have heard about Houston, in '78, are you aware of any market where the applicants, either before or after they were selected by City, got together, themselves, and eliminated boundary overlaps between them? A No, sir. I have never — I have not heard of that. Testimony of Martin Malarkey, February 4, 1981. As indicated by the excerpts of testimony recounted below, all of plaintiff's causation questions which were related to plaintiff's failure to receive a franchise sought to establish a connection between that failure and the boundary agreements. Plaintiff did ask its expert witness many questions related to the causal connection between the non-competitive nature of the Houston franchising process and the detrimental effects on consumers in Houston; however, any injury inflicted on the public cannot be substituted for the direct injury of which plaintiff complained and for which plaintiff sought damages. The following questions were posed by plaintiff to its expert: *1007 Q Based on those three assumptions,[17] sir, that I gave you, do you have an opinion as to whether the elimination of all other boundary disputes prior to December 20 contributed to Affiliated's failure to obtain a franchise? A Yes, it certainly did. Q Could you explain that opinion, sir, to the ladies and gentlemen of the jury? A Yes, sir, I will try to. If we assume that Westland and Houston Cable were not as well qualified as Gulf Coast and Affiliated Capital —first of all, the die was cast at this point in time, and when you have large companies that have already agreed on the boundaries Affiliated Capital wouldn't have had a chance, regardless of how qualified it was. But given the fact that there were overlaps and that Affiliated Capital and Houston—I beg your pardon and Gulf Coast were equally qualified, then council could have given this portion that was under contention back to Gulf Coast and given what Affiliated Capital requested to Affiliated Capital. Gulf Coast would have ended up with an even larger section than they have today. And if you wanted to assume that Westland was equally as well qualified, and that had been granted to Westland and this portion had been granted to Gulf Coast and Affiliated Capital would have been given the area that they had applied for, Gulf Coast today would have had still a larger area than it has. Testimony of Martin Malarkey, February 5, 1981. The expert witness also discussed the reasons he believed that an applicant would have incentive not to engage in competition with another applicant for the same area: Q Based upon your experience in cable television was it in the economic interest of each applicant in this market to avoid competing with the other applicants for the same territory? A It certainly was. Q Sir, have you prepared a list of the reasons you believe an applicant has an incentive not to engage in competition with another for the same area? .... Q Mr. Malarkey, this chart, which reads, "Incentive for Applicants to Agree on Areas That They Will Seek," will you describe for us, sir, what the first incentive is? A Well, the first one, in effect, says let's avoid having any losers altogether, in effect. Let's just have winners in this process; avoid one of the applicants being denied a franchise or getting less than the desired area. Q Could you explain to us, sir, what the second incentive to avoid competition would be? A Well, that is fairly self-explanatory. I said here avoid the need to compete on the merits, as to the ability and services and the rates offered. In a highly competitive procedure there would have been very substantial competition with regard to the—not only the financial aspect, but the services, the programming to be offered and the charges that they were going to ask for those services. That was completely out, here in Houston. Q And the third factor, sir? A Well, as I understand it, a referendum in the State of Texas only requires *1008 a rather limited number of signatures, and the applicants here in Houston have been pretty well divided up, and the last thing in the world they wanted to face is a referendum, which would upset these procedures and perhaps force the City to go into a competitive franchising process. Testimony of Martin Malarkey, February 4, 1981. A review of that testimony indicates that the expert believed that one reason applicants might wish to agree on territories is that they thereby would ensure their own success and a second reason is that they would not have to compete on other franchise terms. Thus, plaintiff elicited testimony from its expert which demonstrates that the boundary agreements were the foundation of and incentive for not only the objective of the conspiracy but also the other agreements among applicants which prove the existence of the conspiracy. The Court perceives that evidence as being in direct contradiction to plaintiff's assertion that, "The jury could have concluded that the boundary agreements were not `part of' the conspiracy because all competition between the applicants had already been eliminated by agreement not to compete on franchise terms. Once the successful applicants agreed not to compete against each other on the merits and to limit competition from outsiders, boundary agreements were simply incidental to and not `part of' the conspiracy." Although plaintiff appropriately can argue that the jury is free to consider any reasonable inference from the evidence, including that above, what plaintiff's expert described to the jury was a reverse situation from what plaintiff now argues was inferred by the jury:[18] the applicants agreed on boundaries for the reason that they thereafter, and consequently, would ensure their success and would not have to compete on other terms. The jury's finding that the boundary agreements, which plaintiff's evidence demonstrated were the essential factor in plaintiff's failure to get its franchise approved, leaves plaintiff in the dilemma of having proved that a second theory of conspiracy existed to exclude non-conspirators and to limit competition among co-conspirators, but of having presented no proof other than that of boundary agreements which connects that conspiracy to plaintiff's failure to obtain its franchise. *1009 Plaintiff's expert then proceeded to explain what he ascertained were the results of Houston's non-competitive franchising process, which he previously had characterized as non-competitive on the ground that territorial overlaps had been eliminated. None of those results tended to show a connection between the conspiracy the jury found and plaintiff's injury. The only result articulated by Malarkey which might relate to plaintiff's injury is the first: "Applicants were not considered on the merits." Malarkey explained that result as meaning that "there was absolutely no consideration given to the merits of each of the applicants with regard to programming, prices to be charged, technical aspects. Of course, the financial aspect." Testimony of Martin Malarkey, February 4, 1981. That result, however, cannot be relied upon to establish the necessary connection, because Malarkey also testified that all applications, including plaintiff's, were well below standard and not at all informative as to many important aspects of a franchise application. The only factor on which Malarkey concluded that plaintiff was better qualified than any of the five ultimately successful applicants was plaintiff's financial capability to build the cable system that it had applied for. Thus, the only conclusion that reasonably can be inferred from the expert's testimony is that none of the applications was considered on the merits because the five successful applicants had eliminated that necessity by entering into boundary agreements and thereby presenting a ready-made package to City Council. The evidence recited herein constitutes all of the evidence which plaintiff presented on causation. The Court concludes that none of the evidence tends to demonstrate any cause for plaintiff's failure to be awarded a franchise other than the fact that the successful applicants made agreements with regard to what territories they would seek. Accordingly, the jury's affirmative answer to Interrogatory No. 5 on causation is totally unsupported by probative evidence in the record of this trial, and cannot be upheld. IV. The Propriety of Injunctive Relief Plaintiff has requested two forms of injunctive relief: (1) prohibition against further agreements in restraint of trade; and (2) voiding of the franchise granted to Gulf Coast. Plaintiff asserts that it has standing to obtain both types of injunctive relief, and that with regard to the voiding of Gulf Coast's franchise, plaintiff has standing both as a competing applicant and as a potential consumer of cable television services in the area awarded to Gulf Coast.[19] Having been denied its motion for entry of *1010 judgment, plaintiff is not entitled to any form of injunctive relief; however, the Court engages in the following analysis to demonstrate that, even had plaintiff prevailed, it would not have been awarded injunctive relief in any form for the reason that plaintiff lacks standing to seek such relief. Injunctive relief pursuant to the antitrust laws is "available even though the plaintiff has not yet suffered actual injury...; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur." Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969) (citations omitted). "[A] private plaintiff may obtain injunctive relief against such violations only on a showing of `threatened loss or damage'; and this must be of a sort personal to the plaintiff." United States v. Borden Company, 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954) (citation omitted). A private plaintiff "must not only show the violation of the antitrust laws, but show also the impact of the violations upon him, i. e., some injury (or threatened injury where injunctive relief only is sought) proximately resulting from the antitrust violation." Credit Bureau Reports, Inc. v. Retail Credit Company, 476 F.2d 989, 992 (5th Cir. 1973) (citations omitted). With regard to the first requested form of injunctive relief, plaintiff makes the following contention: The franchise ordinances are, by their terms, nonexclusive. Accordingly, even in the absence of an order voiding Gulf Coast's franchise, subsequent applicants —including plaintiff, whose application is still pending—are not precluded from receiving a franchise to serve part of the City of Houston. The jury determined that defendants Mayor McConn, the City of Houston, and Gulf Coast participated in a conspiracy to limit competition for cable television franchises. The City may be called upon to act on an application for a cable television franchise between now and the time the franchises expire by their terms. Moreover, at the expiration of the franchise term, the City will certainly have to act on applications for franchises. Accordingly, it is appropriate that the defendants be enjoined from participating in the future in a conspiracy to limit competition for cable television franchises. With regard to plaintiff's assertion involving nonexclusive franchises and its still-pending application, the Court observes that plaintiff's expert witness testified at trial that awarding two (2) franchises for the same area would not be economically feasible. Accordingly, plaintiff's threatened injury comprised of having its pending application disapproved even if Gulf Coast's franchise is not voided is extremely remote at best. If Gulf Coast's franchise is not voided, and plaintiff accepts an award of a franchise within Gulf Coast's territory, plaintiff would be making a decision contrary to its economic interest. Accordingly, the Court concludes that the likelihood that plaintiff would suffer injury from having its current application turned down cannot constitute the "significant threat of injury" required by the Zenith holding. With regard to plaintiff's threatened injury at the expiration of the current franchise period, the Court is compelled to point out that Mr. Goldberg testified at trial that he had given up on getting a franchise and wanted only to be compensated for his loss. Further, at the hearing on the post-trial motions plaintiff's counsel assured the Court that plaintiff would not seek a cable television franchise in Houston, even if Gulf Coast's franchise were voided and the area for which plaintiff originally had applied became available. In light of that assertion, the Court has difficulty identifying any significant threat of injury to the plaintiff when the current franchises expire. Thus, the Court concludes the plaintiff has failed to identify any threatened injury "of a sort personal to the plaintiff", as required by the United States Supreme Court in Borden, and plaintiff's entitlement to seek an injunction prohibiting defendants from *1011 participating in agreements in restraint of trade must fail. For the same reasons, plaintiff also is not entitled to seek injunctive relief in the form of voiding Gulf Coast's franchise. Plaintiff admonishes the Court that it must consider the public interest as well as the private interest in its resolution of the injunction issue. The Court acknowledges that the citizens of Houston likely were injured in the form of receiving inferior cable television services as a consequence of the non-competitive franchise process which is reflected in the record of this cause. The Court's concern for the public interest, however, is limited by the perimeters of the case before it and cannot obviate in this instance the necessity for plaintiff to have standing to seek injunctive relief. Plaintiff asks, "If this plaintiff does not have standing, what plaintiff would?" This inquiry is rhetorical at best in light of the allegations of plaintiff's first amended complaint which represent plaintiff only as a competing applicant, and in light of plaintiff's untimely attempt to amend its complaint further to reflect the status of potential consumer. The latter status, as plaintiff apparently belatedly recognized, provides the answer to plaintiff's question. As defendant Gulf Coast points out, the relevant antitrust statute "does not dispense with the requirement of standing for a private plaintiff nor does it create attorneys general with authority to vindicate public interests out of private plaintiffs who have no private interests to be served." In determining that the private injunction action under the antitrust laws supplements and does not supplant Government enforcement of the antitrust laws, the Borden Court observed that "it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. ... the private plaintiff may be expected to exercise [his injunctive remedy] only when his personal interest will be served." United States v. Borden Company, supra, 347 U.S. at 518, 74 S.Ct. at 706. Having brought suit as a competing applicant to serve its personal interest of recouping money damages for loss of its franchise, plaintiff may not now persuade the Court to grant an injunction either on the basis that the Court has an obligation to act as guardian of the public interest, or on the ground that plaintiff must be permitted belatedly to change its status as well as the complexion of the case so that plaintiff can be characterized as a member of the cable-consuming public. In the current posture of the case plaintiff clearly has no standing to seek injunctive relief. Finally, the Court must agree with defendants that voiding Gulf Coast's franchise would afford plaintiff an opportunity to seek a double recovery, regardless of whether plaintiff would avail itself of such opportunity. Had the record supported the jury's verdict, plaintiff would have received actual damages which were calculated on the basis of the fair market value of the franchise plaintiff did not receive. For the Court then to void Gulf Coast's franchise and thereby enable plaintiff to compete again, and possibly be awarded the opportunity to earn that amount a second time, would provide to plaintiff a double recovery. As a competing applicant, plaintiff elected to pursue a full damage remedy for its injury; injunctive relief is available only when no adequate remedy at law can be obtained. Plaintiff may not have both a remedy at law and one in equity.[20] *1012 V. The Immunity/Exemption Doctrines Defendant Gulf Coast contends that even if the acts relied upon by plaintiff to prove the existence of a conspiracy to exclude non-conspirators would support the jury's finding that such a conspiracy existed, those acts fall within the scope of the Noerr-Pennington doctrine which would render Gulf Coast immune from antitrust liability. See United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (hereinafter Pennington); Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (hereinafter Noerr). Inasmuch as the Court has concluded that the jury verdict in favor of plaintiff cannot be sustained because of the deficiency of evidence of causation, defendant Gulf Coast need not rely on the Noerr-Pennington doctrine to avoid liability. For the same reason, defendants City of Houston and McConn need not rely on the immunity/exemption doctrines which they have asserted preclude their liability, refer to discussion at 1023-1029, infra. Nevertheless, the Court will analyze those doctrines in order to demonstrate that they would have been inapplicable on the current record, even if plaintiff had prevailed on the causation issue. A. Noerr-Pennington Immunity In Noerr, truckers sued their competitors, the railroads, for violations of the Sherman Act which were premised on the railroads' having conducted a "publicity campaign against truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers." Noerr, supra, 365 U.S. at 129, 81 S.Ct. at 525. In reversing the judgment holding that the railroads' campaign had violated the antitrust laws, the Supreme Court held that "at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had." Id. at 139-40, 81 S.Ct. at 531. Prior to so ruling, the Court had observed that "It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors." Id. at 139, 81 S.Ct. at 530. The Court further found that a contrary construction of the Sherman Act not only would deprive public officials of valuable sources of information on matters affecting their decision-making but also would deprive people of their right to petition with regard to issues significantly affecting their own interests. Id. The Pennington Court reaffirmed and expanded the Noerr doctrine by finding that, regardless of their intent or purpose, joint efforts to influence public officials do not constitute illegal conduct, "either standing alone or as part of a broader scheme itself violation of the Sherman Act." Pennington, supra, 381 U.S. at 670, 85 S.Ct. at 1593. Pennington involved a counterclaim of a small mine operator which alleged, inter alia, that the labor union and large mine operators had approached the Secretary of Labor and the Tennessee Valley Authority with certain proposals intended to drive small mine operators out of business. The Court found that such acts were exempt from Sherman Act coverage pursuant to the doctrine of Noerr.[21] *1013 In both Noerr and Pennington, the Supreme Court articulated circumstances wherein certain activities could be excepted from the protection accorded petitioning, and therefore justify applicability of the Sherman Act. The Noerr Court provided the following exception to the immunity doctrine: "There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." Noerr, 365 U.S. at 144, 81 S.Ct. at 533. The Pennington Court noted certain errors which the lower courts had made regarding damages, and in the course of that discussion concluded that "The conduct of the [private parties] did not violate the Act, the action taken to set a minimum wage ... was the act of a public official who is not claimed to be a co-conspirator, and the jury should have been instructed, ... to exclude any damages ... suffered as a result of the [public official's] ... determinations." Pennington, 381 U.S. at 671, 85 S.Ct. at 1594 (footnote omitted) (emphasis added). Pursuant to this Court's analysis of the law on Noerr-Pennington, the jury was instructed fully on the two exceptions to the doctrine. With regard to the co-conspirator exception derived from Pennington, they were charged, in substance, as follows: "Joint efforts truly intended to influence public officials to take official action do not violate the antitrust laws even though the efforts are intended to eliminate competition, unless one or more of the public officials involved was also a participant in an illegal arrangement or conspiracy." Instruction No. 18. In the same Instruction the Noerr sham exception was explained: "The petitioning activity must be genuine. Protection does not extend to purported petitioning that is in fact a mere sham to cover what actually is nothing more than an attempt to interfere directly with the business of a competitor. That is, protection does not extend to activities that are merely a pretext for inflicting on plaintiff an injury not caused by any governmental action." Thus, over the objection of Gulf Coast, the jury was permitted to consider two ways in which Gulf Coast would be prohibited from availing itself of Noerr-Pennington immunity, and in answer to Interrogatory No. 3., the jury found that Gulf Coast was not entitled to that immunity. Inasmuch as the Court concludes, for the reasons recited below, that the validity of the public official co-conspirator exception is well supported in the case law, and the justification for invoking the exception clearly is sustained by the record herein, the Court sees no need to analyze the facts of this case as they relate to the second exception, that involving sham activities, which first was espoused in Noerr.[22] *1014 In order to relate to this case those decisions in which courts have recognized the co-conspirator exception, the Court will outline the evidence tending to demonstrate that McConn and certain public officials acting as agents for the City not only were involved actively in the conspiracy to exclude non-conspirators but also directed certain of the activities of co-conspirators. The Court concludes that these actions amply demonstrate that McConn did more than merely agree to support the efforts of private conspirators. Cf. Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220, 230 (7th Cir. 1975) (Court found that inasmuch as Congress did not intend the Sherman Act to apply to "combined efforts to induce legislative action, [it could not have intended] the Act to apply if a member of the legislative body agreed to support those efforts." Id. at 230). Preliminarily, the Court points out some of the background of the franchising process that was revealed during trial. The Court acknowledges that such facts are not evidence of the conspiracy; however, they should be brought out not only to demonstrate the elected representatives' lack of concern for obtaining the best available cable television services for the citizens of Houston, but also to provide at least a partial explanation for the ease with which the conspiracy in restraint of trade was formulated and perpetrated. Plaintiff's expert witness testified that the franchising process is important in assuring that consumers get the best possible cable television services at the lowest possible rates. He further said that the way for a city to ensure vigorous competition for areas designated for cable television services is to invite applications from everyone who would be interested, and that the customary way for the city's interest to be exhibited is through advertisements in various trade journals. The expert opined that in 1978, Houston was a very attractive market for cable operators who vigorously would have competed for a franchise. The City, however, did not advertise its interest in acquiring cable television services, nor did it use any other method to invite a variety of applications. Further, he testified that franchise applications customarily are evaluated by persons knowledgeable in the field, and that when consultants are retained, they generally are brought in at the beginning of the process. A consultant usually would be involved in various aspects of the process, including the following: (1) drafting a franchise ordinance for submission to the city; (2) preparing requests for proposal documents and instructions to bidders; (3) evaluating each application, individually as well as comparatively; and (4) drafting the enabling ordinance. Although the first application for a cable television franchise in Houston was filed in July of 1978, the City did not hire a consultant until October. Having missed the preliminary steps described above, the consultant began an evaluation of the applications, but his employment was terminated in November 1978, before he prepared a final report. The testimony as to why he was fired was conflicting; however, at least Councilman Westmoreland felt that the Council could accomplish the franchising process without the benefit of the consultant's assistance.[23] Malarkey also testified that normally a city incorporates into the franchise ordinance *1015 the promises made by applicants during the franchise process. The City of Houston did not do that, and in the expert's opinion, the City now cannot enforce the promises the applicants made either to City Council or in their applications. As a result of the kinds of activities identified above, the City received and reviewed applications, all of which were below standard in Malarkey's opinion. With that background, the Court will proceed to identify the activities of public officials in Houston which clearly demonstrate that the City and McConn participated in the conspiracy. Much of the same evidence previously has been recounted in the discussion of liability, at 999-1005, supra; however, the Court deems necessary a repetition of that evidence relating solely to the co-conspirator exception. Thereafter, the Court will apply to that evidence the decisions in which various courts have concluded that participation of public officials in the alleged conspiracy precludes the availability of Noerr-Pennington immunity. 1. Evidence of Official Involvement In September 1978, Westland made an application for a franchise within the area for which Gulf Coast had applied. One of the persons involved in the Westland group was McConn's attorney and others were his personal friends. In order to ensure Westland's success, McConn called representatives of Gulf Coast to his office in October, informed them that he felt Westland should have a franchise, and instructed them to go out and talk with the Westland group. Testimony of Clive Runnells. Subsequently, Runnells, on behalf of Gulf Coast, met with Westland because he felt that the Mayor's message was "loud and clear" that Westland would get a franchise. On November 27, 1978, the attorney for Houston Cable sent a final proposed cable television ordinance to the City Attorney, apprising the City Attorney of modifications the applicants had made and setting a timetable for any further revisions. Plaintiff's Exhibit 29. The next day, Houston Cable's attorney sent copies of the ordinances to the ultimately successful applicants. The proposed ordinances were identical in all material respects and were complete except for the names of the applicants and their proposed service area. Plaintiff's Exhibits 32 & 189. The successful applicants then filled in the blanks with their names and service areas, and forwarded the ordinances to the City Attorney. Some applicants sent their proposed ordinances back to the Houston Cable Attorney who then forwarded them to the City. Plaintiff's Exhibit 35. The agenda for the City Council meeting of November 29, 1978 contained six (6) cable television franchises, not including plaintiff's, Plaintiff's Exhibit 33. When Affiliated attorney Levin heard of this, he contacted Assistant City Attorney Adrian Baer. Baer told Levin that the Mayor and City Council already had decided. Baer further told Levin, "I learned this directly from the Mayor, the franchises are non-exclusive, he does not know about the areas, it's still being worked out by Williams and Baer ... so the net result will be a de facto exclusive." Baer also explained to Levin that the decisions as to who was going to get what areas, specifically in terms of the actual boundaries, were still under negotiation, but the decision as to who was fait accompli. Testimony of Al Levin; Plaintiff's Exhibit 106. After an on-site inspection of Gulf Coast's facilities, the consultant hired by the City told two City officials that he would reject Gulf Coast's application. The next morning, the consultant was fired and subsequently his notes concerning the applications were picked up by a messenger from the City. The consultant had recommended in his report that Gulf Coast be given a smaller franchise area than that for which it had applied. When his notes were typed by someone in the City, that recommendation was deleted. Moreover, other significant changes were reflected in the typed version of the notes he had turned over to the City's messenger: his recommendations that Houston Community Cable, Houston Cable, and Columbia (Westland) be rejected *1016 were changed to recommendations that they should continue to be considered; and his statement that Cablecom had presented the only satisfactory application was omitted. Testimony of Robert Sadowski. Prior to the plaintiff's hearing before City Council on December 12, 1978, McConn suggested to Goldberg that Affiliated seek a franchise in another area of the City rather than in the area sought by Gulf Coast. McConn testified as to his motivation for the suggestion: "I thought that, in trying to really help Mr. Goldberg, it was pretty obvious to me that Gulf Coast had the muscle and that Mr. Goldberg did not." At the City Council hearing on plaintiff's application, which was conducted on December 12, 1978, Councilman Goyen addressed the following remarks to Goldberg: "I do not want to taketh away and giveth to somebody else, because I haven't had to do that in the past. You have a very competent attorney, and the other people have very competent attorneys. What I would like to see done, and it might take a motion to get this done, is to send this to the Legal Department and try to work something out." Plaintiff's Exhibit 150 at 27-28. Subsequently, Councilman Mann made the following suggestion: "I want to make a substitute motion that the [plaintiff's] application be referred to the Legal Department, and they in turn can contact these other applicants who have come forward and see if they can work out something." Plaintiff's Exhibit 150 at 37. Also at that hearing, Mann indicated his knowledge of a house-count survey that had been conducted by Gulf Coast in conjunction with a proposal by Gulf Coast that if Houston Cable would give a certain area to Gulf Coast, then Gulf Coast would be willing to give plaintiff its area. Testimony of Al Levin. A document, prepared sometime between November 28, 1978 and December 20, 1978, by Baer contains an alternative boundary description for the Gulf Coast franchise which includes the Houston Cable area, and has Baer's notation as follows: "I-10 line shifted to Hwy. 290 without Goldberg's tract—contingency." Plaintiff's Exhibit 56. Mayor McConn testified that he ultimately voted in favor of Gulf Coast, which vote effectively precluded plaintiff's being successful, in order to keep certain influential political groups content. Councilman Goyen testified by deposition that he would have voted for Affiliated Capital's application if "on the 20th, Mr. Goldberg had come in and Mr. Runnells had come in, Mr. Mischer had come in, and all the principals had come in, and a piece of Houston had been carved out for Mr. Goldberg with no objection by anybody." Councilman Robinson testified that he would have supported Affiliated Capital's application if plaintiff had been able to work something out with Gulf Coast to give plaintiff what it wanted. Councilman Westmoreland testified that he did not disagree with his prior deposition testimony that Affiliated had been unable to work out any type of arrangement with Gulf Coast, and for that reason he voted in favor of Gulf Coast. The public officials' acknowledged motivations prompted them to instruct plaintiff to try to negotiate with the other applicants, which actions, in the view of this Court, constitute more than mere acquiescence in private conspirators' plans or mere support of private parties' efforts to induce favorable legislative results. The actions of Mayor McConn were those of an active co-conspirator not content merely to accede to the wishes of private parties. In addition, the actions of the councilmen and other agents of the City demonstrate the City's vigorous involvement in orchestrating certain aspects of the conspiracy. 2. Legal Basis for the Co-Conspirator Exception The rulings of the Supreme Court in Noerr and Pennington were derived from fact situations involving private parties who allegedly had conspired to induce governmental action. Neither case involved an allegation that any governmental entity or official had participated in or acted to promote the conspiracy. Accordingly, this Court must look to the progeny of Noerr and Pennington not only to determine the *1017 viability of an exception arising out of a public official's being a co-conspirator but also to define the contours of such an exception. In Harman v. Valley National Bank of Arizona, 339 F.2d 564 (9th Cir. 1964), the Court considered the sufficiency of the allegations contained in plaintiff's complaint, and reversed the district court's dismissal of the complaint. In discussing the validity of defendants' Noerr contentions, the Court found that Noerr would not necessarily preclude the applicability of the Sherman Act on two grounds: (1) the petitioning activities were alleged to be but one element in a larger scheme; and (2) the acts of the State Attorney General were alleged to be those of a participating conspirator. Id. at 566. For the second ground, the Court relied on the question reserved by the United States Supreme Court in Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1942) concerning whether the state action exemption to the Sherman Act would apply if the state or its municipality participated in a conspiracy, and concluded that the Noerr Court had not held that the Act would be inapplicable in such a situation. The Pennington Court subsequently has ruled that joint efforts to petition a public official are not violative of the antitrust laws even when they are part of a larger, illegal scheme. Accordingly, to the extent that the Harman Court held to the contrary, its decision no longer is good authority. The second ground relied on in Harman, however, remains viable in the view of this Court.[24] In Duke & Company, Inc. v. Foerster, 521 F.2d 1277 (3rd Cir. 1975), the plaintiff alleged that three municipal corporations, three private corporations and one individual, sued both individually and in his official capacity as a county commissioner, entered into an agreement to boycott malt beverages manufactured by plaintiff in the municipal facilities operated by defendants. The district court dismissed the complaint against the three municipal corporations and the individual in his official capacity, pursuant to the authority of Parker, Noerr and Pennington. The Third Circuit concluded that defendants were not entitled to a state action exemption pursuant to Parker, and in ruling that Noerr-Pennington immunity also was unavailable to the official and entity defendants, the Court concluded the following: In neither [Noerr nor Pennington] was it alleged that the governmental entity had collaborated to promote the conspiracy. Where the complaint goes beyond mere allegations of official persuasion by anti-competitive lobbying and claims official participation with private individuals in a *1018 scheme to restrain trade, the Noerr-Pennington doctrine is inapplicable. See Harman v. Valley National Bank of Arizona, 339 F.2d 564 (9th Cir. 1964). Parker reserved judgment on such an alleged combination of public and private entities. After Goldfarb [Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572] however, it is clear that when there is an allegation of governmental participation in such a combination to the benefit or detriment of private parties, and when the activities of the public body are not compelled by the state acting as a sovereign, a claim has been stated under the antitrust laws. No protection is afforded to such a combination under the doctrine of Noerr-Pennington. We conclude that the allegations of the complaint state an antitrust claim against these defendants despite their governmental status. Id. at 1282 (emphasis in original) (footnote omitted).[25] In Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, 557 F.2d 580 (7th Cir. 1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), reinstated, 583 F.2d 378 (7th Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979), the Court reviewed, inter alia, the sufficiency of one count of plaintiffs' complaint which contained allegations that the park district, a unit of local government, had agreed with a private-party potential concessionaire that said concessionaire would make an economically unrealistic proposal for concession rights at five municipal golf courses. Plaintiffs, who had been concessionaires at the golf courses, alleged that the proposal was used to coerce them into a five percent sales taxing, and a price raising/fixing scheme. Plaintiffs alleged that they refused to be coerced and subsequently lost their leases and concessions. Thereafter the co-conspirator concessionaire was awarded concession rights at all five golf courses. The concessionaire defendant invoked Noerr-Pennington immunity, claiming that its role in the case was nothing more than that of a successful bidder. The Kurek Court distinguished the decision in Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220 (7th Cir. 1975), and concluded that if plaintiffs could prove their allegations, Noerr-Pennington would provide no defense. First, the Kurek Court found that the actions of the concessionaire in presenting the proposal knowing that it would be used by the park district to coerce plaintiffs into conduct violative of the antitrust laws were "not essentially dissimilar to activities the Sherman Act was meant to proscribe." 557 F.2d at 593. Second, the Court observed the following: Nor is the fact that [the concessionaire] combined or conspired with governmental officials dispositive, for both of Noerr's premises with respect to that point are undercut by the factual setting of this case. Our determination that the Park District and its officials had no state mandate or authority to engage in the activities attacked here necessarily reduces the applicability of the reasoning of Noerr to the degree it is based on the need of governmental units for citizen input in making decisions that Parker holds to be outside the scope of the Sherman Act. See Duke & Company Inc., supra, 521 F.2d at 1282. The Noerr decision also rests on a refusal to impute to Congress an intent to invade the constitutional `right of the people ... to petition the Government for a redress of grievances.' .... We have some difficulty understanding how a contract proposal to a governmental unit falls within the ambit of that right, ... but even if it does, we think it clear that agreement with government officials to pressure others into an antitrust violation does not. Id. at 593-94 (emphasis in original). As a third reason for inapplicability of Noerr-Pennington, *1019 the Court concluded that plaintiffs possibly could prove that the concession proposal was a mere sham. Id. at 594. Other courts have indicated that the participation of a public official in an illegal conspiracy precludes relief pursuant to the Noerr-Pennington doctrine. For example, in overruling an earlier decision of the same court and thereby granting defendants' motions for summary judgment, the Court in In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568 (N.D.Cal.1981), observed that the sham exception to the Noerr-Pennington doctrine "may apply where the public officials are themselves participants in the conspiracy." Id. at 588 (citation omitted). Plaintiff, a car rental company, alleged that two other car rental companies engaged in a conspiracy to eliminate competition in the on-airport rental market and, in furtherance of that conspiracy, jointly influenced and engaged with airport authorities to adopt and enforce certain standards ... regarding eligibility.... [Plaintiff] alleged that those standards and requirements precluded it from competing in the on-airport car rental market [in certain cities]. [Plaintiff] also alleged that defendants entered into contracts with airport authorities which prohibited other car rental operators from entering the ... market and established unreasonably high minimum guarantees, that they opposed applications of other car rental companies in bad faith, and that they fixed rental rates in the on-airport market. Id. at 589 (footnote omitted). The Court then reviewed the evidence relevant to Noerr-Pennington that plaintiff had presented in opposition to defendants' motion for summary judgment: Plaintiff ... offers evidence said to show that defendants' representatives coordinated their negotiations with the Port ... and met jointly with Port officials to discuss the terms of the lease agreements ... and to present standards and criteria which the Port should require of lessees, including minimum guarantees.... Among the terms discussed were concession fees, ... [and] criteria which a company should have to meet to provide airport service.... Finally, defendants participated in a series of meetings with Port officials in which they unsuccessfully opposed on economic grounds the entry of additional car rental companies into the on-airport market. Id. at 588. The Court then summarized what plaintiff had demonstrated by its evidence and concluded that Noerr-Pennington was applicable: a trier of fact could find that defendants, separately and jointly, negotiated with the Port over the various terms of the lease agreements which, as finally executed, required car rental companies ... to meet certain qualifications and pay guaranteed minimum fees, but did not preclude the Port from entering into such agreements with other companies. Even if ... the terms for which defendants negotiated were favorable to them and unfavorable to plaintiff and served to delay plaintiff's entry into this market ... these facts, if they state a claim cognizable under the Sherman Act at all, prove nothing other than a classic case for application of the Noerr-Pennington doctrine. Id. at 588-89 (emphasis in original). This Court acknowledges that Noerr-Pennington as applied in the adjudicatory setting permits closer scrutiny of activities than in the legislative setting and allows denial of immunity for actions which would be condoned in the context of the legislative process. See, e. g., California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972). Those considerations, however, do not preclude the Court from referring to decisions involving adjudicatory processes, for the analyses involved in those decisions can be instructive for the legislative context. In Mason City Center Associates v. City of Mason City, Iowa, 468 F.Supp. 737 (N.D. Iowa 1979), plaintiff alleged that private developers entered into an agreement with *1020 the city to plan a downtown center on the express condition that the city would prevent any person or firm from planning or constructing a regional shopping center that would compete with the downtown center. Plaintiffs sought to construct a center on a tract of land which required rezoning. The city zoning commission denied the application for rezoning and the denial was affirmed by the city council. Plaintiffs alleged that the denial was pursuant to, and in furtherance of, the council members' agreement with the private developers. In denying defendants' motion to dismiss for failure to state a claim, which was based, inter alia, on the state action exemption of Parker, and the Noerr-Pennington doctrine, the Court concluded the following with regard to the applicability of Noerr-Pennington: to the extent this case presents allegations that the private developers entered into an anticompetitive agreement with the City of Mason City and its Council permanently to exclude competing developers from the relevant market, it raises at least one important factual issue relating to defendants' possible intent or purpose to deprive plaintiffs of any meaningful access to the City's zoning mechanisms and procedures. See, e. g., California Motor Transport Co. v. Trucking Unlimited, .... On that basis alone this case is distinguishable from Noerr and Pennington. Id. at 745 (emphasis in original)[26] In Federal Prescription Service, Inc. v. American Pharmaceutical Association, 484 F.Supp. 1195 (D.D.C.1980), a mail order pharmacy alleged that the national association of pharmacists, the only defendant, acting alone or in concert with various named co-conspirators pursuant to anticompetitive policies established by its House of Delegates, restrained plaintiff's interstate sale of prescription drugs by mail. The Court found that the "state agency that sanctioned or initiated [various] anti-competitive activities had, through its membership, consistently expressed economic allegiance to [the association] and opposition to mail order." Id. at 1209. Observing that the conduct of administrative officials is *1021 subject to closer scrutiny than that of state legislators, and that conduct is less protected when the focus of administrative decisionmaking shifts to discretionary judgments concerning commercial considerations, the Court concluded that "[b]ecause the ... Board itself was part of the illegal conspiracy its administrative processes could not be invoked or applied fairly ... with respect to [plaintiff's business]." Further, the Court found that, "as a consequence the challenged Board action is tainted as a sham." Id. at 1209 (citations omitted). In Israel v. Baxter Laboratories, Inc., 466 F.2d 272 (D.C. Cir. 1972), plaintiffs asserted that the defendants conspired to keep plaintiffs' drug ... off the interstate market and out of competition with ... a similar drug sold by defendants Baxter and Travenol, by influencing the Food and Drug Administration to deny fair consideration of the new drug applications filed by plaintiffs.... that defendants (who include an official of the FDA) carried out this conspiracy by suppressing, concealing and misconstruing information concerning the two drugs before the FDA; by arranging for the employment as a consultant to the FDA of a medical doctor who had a financial interest in Baxter, ...; by applying an unfair standard in judging [plaintiffs' drug]; and by misrepresenting the safety and efficacy of [plaintiffs' drug]. Id. at 274. In the context of defendants' Noerr-Pennington contentions, the Court observed that plaintiffs had alleged "that the real purpose of defendants' joint efforts is to preclude, not induce, fair FDA consideration of the safety and efficacy of plaintiffs' drug ..., and as such should be viewed as falling within the `sham' exception to Noerr-Pennington." Id. at 279. Pursuant to its obligation to take all of the allegations in the complaint as true, the Court remanded all issues to the district court. Having analyzed the above-identified decisions and compared the facts thereof to the evidence presented in the instant cause, the Court concludes that the co-conspirator exception to Noerr-Pennington is applicable herein to deny immunity to Gulf Coast. The activities of the Mayor, various members of City Council and employees of the City amply demonstrate that the Houston franchising process involved more than successful petitioning efforts by private parties who persuaded public officials to support them. The evidence herein reveals active participation, and orchestration by public officials in an anticompetitive agreement. In asserting that Noerr-Pennington immunity applies to the facts of this case, defendants rely primarily on the decision in Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220 (7th Cir. 1975). This Court perceives as necessary a detailed analysis of that case in order to demonstrate that the ruling therein is not dispositive of the finding by this Court that the co-conspirator exception precludes the applicability of Noerr-Pennington. The Seventh Circuit affirmed the dismissal of plaintiff's second amended complaint on the basis of the Noerr-Pennington doctrine. Plaintiff, a cable television company which applied for and failed to receive a franchise in Rockford, sued the following: (1) the company which did get the franchise, CATV; (2) CATV's affiliate which operates WCEE-TV in Rockford; (3) four individuals associated with those companies; and (4) the mayor and an alderman of the city. In substance, plaintiff alleged the following: WCEE-TV and its officers planned to obtain the exclusive cable television franchise in Rockford; organized a company, CATV, for that purpose; induced the mayor and an alderman to oppose plaintiff's application by making a campaign contribution to each of those officers; and succeeded, with the help of the mayor and the alderman, in persuading the city council not only to award the franchise to CATV but to refuse plaintiff's successive applications without affording plaintiff a hearing. 516 F.2d at 224. Having recounted the material facts and analyzed the reasoning of the major Supreme *1022 Court decisions pertinent to the immunity issue before it, the Seventh Circuit concluded that those decisions could be synthesized as follows: The Sherman Act does not apply to otherwise valid governmental action that results in a restraint of trade or monopoly. Parker v. Brown. Nor does the Sherman Act apply to concerted efforts to induce government to take such lawful action, if those efforts are genuine. Noerr. Such efforts constitute political activities which Congress did not intend to regulate by the Sherman Act. This is true even though the purpose and effect of the concerted activities is to eliminate competition. Noerr; Pennington. When the concerted activities occur in a legislative or other non-adjudicatory governmental setting, they are not within the Sherman Act even though they include `conduct that can be termed unethical,' such as deception and misrepresentation. Noerr; Pennington. This is true even when the concerted efforts are `part of a broader scheme itself violative of the Sherman Act.' Pennington. When, however, the concerted activities occur in an adjudicatory setting, unethical conduct that would not result in antitrust illegality in a legislative or other non-adjudicatory setting may demonstrate that the defendants' activities are not genuine attempts to use the adjudicative process legitimately and may therefore result in illegality, including illegality under the antitrust laws. (This is `the "sham" exception in the Noerr case, as adapted to the adjudicatory process.' 404 U.S. at 516, 92 S.Ct. at 614.) California Motor Transport. Id. at 227-28 (emphases in original). The Court then discussed the plaintiff's allegations that the mayor and the alderman had participated as co-conspirators and determined that such allegations would not suffice to take the case outside of the scope of Noerr-Pennington. Distinguishing Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1942) by finding that the case before it was not one "in which the agency of the government itself is alleged to be part of the conspiracy...", 516 F.2d at 229, and recognizing that Pennington involved the act of a public official who was not claimed to be a co-conspirator, the Seventh Circuit concluded that, even in light of plaintiff's allegation that the mayor and alderman had received substantial sums as campaign contributions in exchange for their support: Nothing in the Noerr opinion or any other case of which we are aware suggests any reason for believing that Congress, not having intended the Sherman Act to apply to combined efforts to induce legislative action, did intend the Act to apply if a member of the legislative body agreed to support those efforts. Id. at 230 (emphasis in original). This Court acknowledges that the franchise applicants in Houston could have conspired among themselves to petition the City for legislative action favorable to them even if their purpose had been to eliminate or limit competition from others not subscribing to their joint efforts. The evidence before this Court, however, encompasses much more than such petitioning activities on the part of private parties. Indeed, said evidence presents more than public officials' mere support of the efforts of private parties, public officials' unethical conduct, or the alleged participation of public officials in a conspiracy simply through their influence in favor of private parties on the legislative body taking the action. The evidence presented herein demonstrates clearly that the Mayor and the City itself, through the conduct of its agents and employees, not only supported the lobbying efforts of Gulf Coast and communicated with applicants about franchise terms, see In re Airport Car Rental Antitrust Litigation, supra, at 589, but also manipulated certain aspects of the conspiracy. The facts of this case exceed those considered by the Pennington and Metro Cable courts; for, herein are presented not only allegations but proof by a preponderance of the evidence that a public official and a governmental entity actively *1023 conspired with private participants in violations of the Sherman Act.[27] B. State Action Exemption and Legislative Process Immunity Two corollary doctrines which could be relied upon by the governmental defendants are the state action exemption derived from Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1942) and its progeny, and legislative process immunity derived from such decisions as Duke & Company, Inc. v. Foerster, 521 F.2d 1277 (3rd Cir. 1975). With regard to immunity arising out of public officials' functioning within the legislative process, the jury was instructed, in part, as follows: Lawful activities of such a legislative body, or lawful activities of individual members of such a legislative body, or of employees providing administrative assistance to such a legislative body are not activities prohibited by the antitrust laws when such lawful activities are part of or occur in the course of the legislative process. Instruction No. 19. In answering Interrogatory No. 3 affirmatively, and finding in Interrogatory No. 4 that the City and McConn were liable, the jury clearly determined that the acts committed by or on behalf of those defendants were outside of the scope of the legislative process. This Court concludes that the record amply supports that jury finding. The Duke Court observed that the proposition that "Noerr-Pennington immunity covers a state governmental entity which `listens to anti-competitive pleas' [d]oubtlessly ... is correct so long as the public body acts within its legal discretion and in what it considers the public interest." 521 F.2d at 1282. This Court's analysis below of the requisites of the Parker state action exemption demonstrates that pursuant to state law, the City of Houston had the right not only to engage in the cable television franchising process, but also to award franchises. That authority alone, however, does not suffice to meet the standard prescribed by the Duke Court. What becomes most strikingly apparent in the record of the Houston franchising process is that the interests of or benefits to the citizens of Houston who would receive cable television services was of minimal, if any, concern to the Houston City Council or to the Mayor. The council's unwillingness to assess the applications prior to approving them cannot be characterized as being in the public interest. Further, the acts of members of council and the Mayor are not deemed by this Court to be either within the intent of the State legislature or within the actors' legal discretion. Thus, the criteria for legislative process immunity are not satisfied. Further, inasmuch as the evidence clearly reveals that McConn acted outside of the scope of his responsibilities as a city official by actively participating in the agreement to ensure the failure of non-conspirators, this Court is compelled to deny him any individual immunity. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1942), the Supreme Court held that the antitrust laws were not intended to apply to state action, thus creating an exemption for certain state decisions and actions resulting in restraint of trade or monopoly. The Parker doctrine as well exempts "anticompetitive conduct engaged in as an act of government by ... subdivisions [of the State], pursuant to state policy to displace competition with regulation or *1024 monopoly public service." Lafayette v. Louisiana Power & Light Company, 435 U.S. 389, 413, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978). The City raised the Parker state action doctrine in various pretrial motions, but has not reurged its applicability in the post-trial motions now being considered. The Court, however, deems necessary an analysis of the City's position pursuant to Parker because a synthesis of the many decisions reviewed hereinabove indicates that a relationship exists between the availability of Noerr-Pennington immunity and the validity of the state, or state subdivision, action involved. The Parker Court reserved the question of the availability of its exemption when the governmental entity itself is alleged or proven to be a co-conspirator with private parties: "[W]e have no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade, ...." Parker, 317 U.S. at 351-52, 63 S.Ct. at 314. Various courts have emphasized that unresolved issue of Parker in analyzing the applicability of Noerr-Pennington political activity immunity. See, e. g., Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra; Duke & Company v. Foerster, supra; but see, Harman v. Valley National Bank of Arizona, supra, wherein the Court observed that making "Sherman Act liability depend upon ultimate resolution of often difficult questions of law and fact relating to the validity or propriety of solicited governmental action `would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade' and `would raise important constitutional questions' ...." Id. at 566, quoting Noerr, 365 U.S. at 137-38, 81 S.Ct. at 529-530; In re Airport Car Rental Antitrust Litigation, supra. The Noerr Court itself observed that "where a restraint upon trade ... is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out." 365 U.S. at 136, 81 S.Ct. at 529, citing United States v. Rock Royal Co-op, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; Parker v. Brown, supra. Further, the dual underpinnings of the Noerr decision demonstrate the Supreme Court's recognition of the interplay between the government's right to represent the people and its concomitant need to receive information from its constituency, and the people's right freely to inform the government of their wishes. Noerr, 365 U.S. at 137 & n.17, 81 S.Ct. at 529 & n.17. Thus, Noerr was based not only on First Amendment considerations, but also on the concept confirmed in Parker. See, e. g., Wilmorite, Inc. v. Eagan Real Estate, Inc., 454 F.Supp. 1124, 1136 (N.D.N.Y.1977), aff'd, 578 F.2d 1372 (2d Cir. 1978), cert. denied, 439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d 655 (1978). The Third Circuit, in Duke & Company v. Foerster, 521 F.2d 1277 (3rd Cir. 1975), reasoned as follows: Parker reserved judgment on such an alleged combination of public and private entities. After Goldfarb, however, it is clear that when there is an allegation of governmental participation in such a combination to the benefit or detriment of private parties, and when the activities of the public body are not compelled by the state acting as sovereign, a claim has been stated under the antitrust laws. No protection is afforded to such a combination under the doctrine of Noerr-Pennington. Id. at 1282 (emphasis in original). In finding that plaintiff's allegations that two public officials had participated in a conspiracy in violation of the Sherman Act were insufficient to preclude applicability of Noerr-Pennington, the Seventh Circuit, in Metro Cable, observed that the case before it was not one "in which the agency of government itself is alleged to be part of the conspiracy, the question reserved in Parker v. Brown...." Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220, 229 (7th Cir. 1975). This Court interprets the decisions rendered pursuant to the authority of Noerr, Pennington and Parker as suggesting *1025 the following result. When a restraint of trade is the result of valid governmental action which was induced by the joint efforts of private parties, those joint efforts are shielded by Noerr-Pennington immunity. When, however, the governmental action is rendered invalid by the illegal, not merely unethical, conduct of the governmental entity acting as a co-conspirator, the joint efforts of the private parties are not automatically entitled to immunity. Further, inasmuch as the governmental entity can act only through its agents, who are public officials, the illegal acts of those officials in their official capacities become the illegal acts of the entity. If participation of the entity in a conspiracy taints the petitioning process, the same conduct of the entity's agents necessarily must taint the process. Where municipalities, or their agents acting in official capacities, are proven, along with private parties, to have engaged in a conspiracy in restraint of trade, the result is that the actions which the private parties sought to induce were unlawful and therefore rendered at least invalid if not non-governmental. See In re Airport Car Rental Antitrust Litigation, supra, at 587 where the Court made the following observation: This is not a case in which the agencies themselves are charged with having engaged in activities violating the antitrust laws. It must be distinguished from the cases in which the municipalities along with private parties were alleged to have engaged in exclusionary activities. ... In those cases the governmental character of the activity under Parker v. Brown and Lafayette was critical to the application of the antitrust laws to the public agencies. No such issue is present here. Plaintiff has made no showing that the public agencies' actions defendants sought to induce were, or would have been unlawful in themselves and therefore not governmental. Id. at 587 (citations and footnote omitted). The Noerr Court found that "the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly." Noerr, 365 U.S. at 136, 81 S.Ct. at 529. In part, the Court so concluded because a contrary interpretation of the Act "would substantially impair the power of government to take actions through its legislature ... that operate to restrain trade", id. at 137, 81 S.Ct. at 529, for the reason that governments acting on behalf of the people rely on the people being able freely to inform the government of their wishes. Thus, the Noerr Court established a nexus between the exemption for valid governmental actions in restraint of trade pursuant to Parker and the people's protected right to petition the government for such actions pursuant to Noerr, and subsequently Pennington. In the case before this Court, the awarding of the franchises is a power accorded to the Houston City Council pursuant to State law, and that ultimate action is not challenged. That ultimate action was not rendered non-governmental by the actions of defendants herein. The conduct of defendants during the franchising process, however, was illegal, and, therefore, this Court concludes that the legislative action sought by the private parties was rendered invalid by that illegal conduct. Accordingly, the first underpinning of Noerr is weakened; the participation of the public officials in the illegal conspiracy resulted in the private parties' petitioning to induce invalid governmental action. The circumstances of this case do not present the unfairness to petitioning parties, or the uncertainty of result for persons attempting to persuade governmental bodies that concerned the courts in Harman v. Valley National Bank of Arizona, supra, at 566, and In re Airport Car Rental Antitrust Litigation, supra, at 586. This Court perceives no injustice in depriving Gulf Coast of Noerr-Pennington immunity on facts which demonstrate not only that public officials actively participated in an illegal conspiracy but also that the private parties involved were aware of and sought such participation. *1026 Defendants have asserted that the two doctrines, Parker and Noerr-Pennington, are not interdependent. That view finds support in the decisions rendered by the Harman Court and the In re Airport Car Rental Antitrust Litigation Court. This Court, however, believes that the concerns of those courts are not instructive of the circumstances of this case, as explained hereinabove. Further, defendants' assertion does not satisfactorily consider the unresolved question in Pennington regarding a public official who is alleged to be a co-conspirator. As this Court has explained previously, the conduct of a public official acting in his or her official capacity becomes the conduct of the entity. Accordingly, the unresolved question in Pennington can be viewed, in certain circumstances, as coextensive with the question reserved by the Parker Court concerning the import of co-conspirator activities on the part of a state or its municipality. See Parker, 317 U.S. at 351-52, 63 S.Ct. at 313-314. Even if defendants are correct, however, the determination of whether municipal action is exempt from antitrust liability pursuant to Parker is pertinent to whether the private parties seeking such action may invoke Noerr-Pennington immunity. Assuming that Noerr-Pennington immunity for private parties is not contingent on the governmental action's being exempt pursuant to Parker, at the very least, the involvement of public officials in an illegal agreement "reduces the applicability of the reasoning of Noerr to the degree it is based on the need of governmental units for citizen input in making decisions that Parker holds to be outside the scope of the Sherman Act." Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra, at 593. Accordingly, this Court engages in the following analysis of the state action exemption pursuant to Parker to demonstrate that the City's actions during the franchising process are not encompassed by that exemption.[28] Pursuant to Lafayette v. Louisiana Power & Light Company, supra, a subdivision of the State, such as the City of Houston, may claim exemption from antitrust liability on the authority of Parker. Inasmuch as "subordinate units of [state] government ... are not entitled to all of the federalistic deference that the state would receive", Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra, at 589, courts have engaged in case-by-case analyses to determine the applicability of the state action doctrine to various governmental actions or laws and certain tests have emerged. See, e. g., California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); Lafayette v. Louisiana Power & Light Company, supra; Cantor v. Detroit Edison Company, 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). The decisions reveal that different standards have been applied to private parties claiming state action exemption and to municipalities claiming such exemption from antitrust liability. Compare Cantor v. Detroit Edison Company, supra with Lafayette v. Louisiana Power & Light Company, supra. Any assertion that Gulf Coast would have made regarding the applicability to it of Parker immunity clearly would have been foreclosed by the requirement that a private party must show that anti-competitive activities were "compelled by *1027 direction of the State acting as a sovereign." Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975); see also, Cantor v. Detroit Edison Company, supra; United States v. Southern Motor Carriers Conference, Inc., 467 F.Supp. 471, 481-83 (N.D.Ga.1979); cf. California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., supra, 445 U.S. at 105, 100 S.Ct. at 943 (in deciding that the state plan for wine pricing was not protected state action, the Court articulated a two-pronged standard for Parker antitrust immunity: "the challenged restraint must be `one clearly articulated and affirmatively expressed as state policy' [and] the policy must be `actively supervised' by the State itself.") Id. at 105, 100 S.Ct. at 943, quoting Lafayette v. Louisiana Power & Light Company, supra, 435 U.S. at 410, 98 S.Ct. at 1135, 100 S.Ct. at 943. Thus, on the facts of the instant case, Gulf Coast could not have satisfied the standard of Goldfarb or of California Liquor. See also Guthrie v. Genesee County, New York, 494 F.Supp. 950, 958 (W.D.N.Y. 1980) ("if the County itself cannot claim to be `exempt' from the antitrust laws by virtue of its status, the a fortiori [the private party] has no greater claim to the state action exemption ..., especially since it is alleged that [the private party] and the County ... have engaged in the same conduct.") Id. at 958 (emphasis in original); cf. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 56 (1st Cir. 1966), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). (In deciding that the Authority was an instrumentality of the government and exempt pursuant to Parker, the Court remarked as to the private-party defendants that "If, as we have found, the Authority's conduct was lawful here, it would be an unreasonable restriction on its freedom to hold that the other defendants acted illegally in having aided it." Id. at 56). The determination of whether the City of Houston, as a subordinate unit of State government, would be entitled to an exemption pursuant to Parker requires more comprehensive analysis. The Lafayette Court concluded that only anticompetitive conduct that is engaged in by a subdivision of the state pursuant to state policy is exempted by the Parker doctrine. Lafayette v. Louisiana Power & Light Company, supra, 435 U.S. at 413, 98 S.Ct. at 1136. The Court also emphasized that the state policy must be one "clearly articulated and affirmatively expressed" as such, and that the implementation thereof must be "actively supervised" by the state as policymaker, id. at 410, 98 S.Ct. at 1135. The state subdivision, however, need not be able "to point to a specific, detailed legislative authorization", id. at 415, 98 S.Ct. at 1138. Instead, "an adequate state mandate for anticompetitive activities of cities ... exists when it is found `from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.'" Id. at 415, 98 S.Ct. at 1138, quoting the Fifth Circuit Court of Appeals in the decision below, 532 F.2d 431, at 434. Pursuant to Article 11, Section 5 of the Texas Constitution, Houston is a home rule city. In Texas, a home rule city has "`full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized [it] to do.'" Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.Sup. Ct.App.1975), quoting Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282. Accordingly, the legislature does not make grants of power to such cities; however, limitations on their powers may derive from general law, the Constitution or the city charter. As defendant City has pointed out with regard to cable television franchising, The power to franchise cable television clearly falls within the plenary power granted to the City of Houston under the home rule city amendment. There are no legislative limitations proscribing the power of home rule cities to franchise cable television. In fact, the legislature of the State of Texas has codified this power with an express grant to home rule cities of full franchising power. Tex.Rev. Civ.Stat. Art. 1175, § 12 and Art. 1181. *1028 The only proscription on cable television franchising is set forth by the Texas Constitution which provides that franchises must be non-exclusive and non-perpetual. Texas Constitution, Art. 1 § 17. The absence of legislative limitations on home rule cities' powers to grant franchises, and even the full power of self government with regard to all matters not otherwise limited cannot render the City of Houston's actions with regard to the cable television franchising process equivalent to those of the state for purposes of a Parker v. Brown, supra, exemption from antitrust liability. The "court must examine the state statute which purportedly contains the authorization for the anticompetitive conduct ..." Guthrie v. Genesee County, New York, supra, at 955, particularly because "where there are numerous subordinate units of government of a given type, each of the same status under state law, it is more difficult to say that the actions of any one of them are undertaken pursuant to `the state['s] command,' ... or that `[t]he state ..., as sovereign' imposed any anticompetitive restraints resulting from such actions."[29]Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra, at 589, quoting Parker v. Brown, supra, 317 U.S. at 352, 63 S.Ct. at 314. The various statutes and constitutional provisions applicable to the cable television franchising issue herein demonstrate no intent on the part of the Texas legislature that the franchising process in home rule cities is to be anticompetitive. The award in other Texas cities of one franchise covering the entire city, rather than multiple, non-overlapping franchises, does not belie this Court's assessment of the legislative intent. The plaintiff's expert testified that such awards were the results of vigorous competition during the franchising processes. None of the pertinent provisions or statutes reveals clearly and affirmatively an intent to displace "competition with the kind of regulation and monopoly service contemplated by the Supreme Court under the `state action' doctrine." Mason City Center Associates v. City of Mason City, Iowa, 468 F.Supp. 737, 746 (N.D. Iowa 1979). Further, none of the cited provisions indicates that the State actively supervises the implementation of any anticompetitive policy addressed to franchising, even if such a policy could be said to exist. To the contrary, Article 1181 of the Texas statutes gives the exclusive power and authority to make a grant of such a franchise to the governing authority of the home rule city. The Court concludes that "the numerosity and potential variety of [franchising] practices of [home rule cities] ... suggest that `the State's policy is neutral' on any given [franchise] practice and that there is no `statewide program' which would require the sort of comity-based respect evident in Parker." Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra, at 590, citing Cantor v. Detroit Edison Company, supra, 428 U.S. 579, at 585, 96 S.Ct. at 3115 (emphasis in original). *1029 [A]bsent state authority which demonstrates that it is the intent of the state to restrain competition in a given area, Parker-type immunity ... may not be extended to anti-competitive government activities. Such an intent may be demonstrated by explicit language in state statutes, or may be inferred from the nature of the powers and duties given to a particular government entity. Duke & Company, Inc. v. Foerster, supra, at 1280 (emphasis in original). Nothing in the legislative enactments reviewed by this Court indicates either explicitly or implicitly that the intent of the State is either to restrain competition in the cable television franchising process or to direct home rule cities to do so. Nor do the pertinent provisions reveal that the legislature contemplated the kind of activity complained of and proven herein. See, e. g., Guthrie v. Genesee County, New York, supra. Accordingly, the Court concludes that the state action exemption doctrine of Parker and its progeny is unavailable to the City and to McConn, see, e. g., Duke & Company, Inc. v. Foerster, supra, as well as being unavailable to Gulf Coast. VI. Conclusion For the reasons stated hereinabove, the Court hereby orders the following: (1) plaintiff's Motion for Injunctive Relief and for Entry of Judgment in Accordance with the Verdict is denied; (2) plaintiff's Motion for Leave to File its Second Amended Complaint is denied; (3) defendants' motions for judgment on verdict or for new trial are denied; and (4) defendants' motions for judgment notwithstanding the verdict are granted. Counsel will present an appropriate final order for entry by the Court within twenty (20) days hereafter. NOTES [1] Plaintiff also has filed a motion for leave to file a second amended complaint, in which the only new allegations are those related to plaintiff's standing as a consumer within the Gulf Coast franchise area to seek injunctive relief against Gulf Coast. Inasmuch as the conclusions reflected in this Order render plaintiff's standing as a consumer a moot issue, the Court hereby denies that motion. [2] That interrogatory provides, in its entirety, as follows: PLAINTIFF'S BURDEN OF PROOF INTERROGATORY NO. 1 It is established that two or more franchise applicants, including defendant Gulf Coast, participated in agreements on boundary lines so as to divide the geographic areas for which these applicants would seek cable television franchises. Do you find from a preponderance of the credible evidence that these agreements were part of a conspiracy in unreasonable restraint of trade, in violation of Section 1 of the Sherman Act? Answer "yes" or "no". ANSWER: No If you have answered Interrogatory No. 1 "yes", answer Interrogatory No. 2. If you have answered Interrogatory No. 1 "no", answer Interrogatory No. 3. [3] That interrogatory provides, in its entirety, as follows: INTERROGATORY NO. 3 Do you find from a preponderance of the credible evidence that one or more of the defendants participated in a conspiracy in unreasonable restraint of trade to limit competition for cable television franchises, in violation of Section 1 of the Sherman Act? Answer "Yes" or "No". ANSWER: Yes If you have answered Interrogatory No. 3 "yes", answer Interrogatory No. 4. If you have answered Interrogatory No. 3 "no", answer Interrogatory No. 5. [4] Before the case was submitted to the jury, all defendants proposed that Interrogatories I and 3 be combined in a single question. Plaintiff objected on the ground that combining the two questions materially would alter plaintiff's theory of the case. [5] Plaintiff had requested a per se instruction on the boundary agreements, which the Court concluded could not be submitted to the jury. [6] The Court cannot agree with plaintiff's characterization of the jury's answer to Interrogatory No. 1 as a finding only "that plaintiff had not proved by a preponderance of the evidence that two agreements on boundary lines were part of a conspiracy in unreasonable restraint of trade, in violation of Section 1 of the Sherman Act." (emphasis added). Neither Instruction No. 17, refer to pp. 995-996, supra, nor Interrogatory No. 1, refer to note 2, supra, was phrased to include exclusively Gulf Coast's agreements with Houston Cable and Westland. The jury was instructed to determine whether "such" agreements on boundary lines were part of a conspiracy, and the Court is persuaded that the intent of the jury instructions as well as that of the jury in responding to Interrogatory No. 1, was that all agreements to allocate and divide territories which were made among franchise applicants were encompassed by the language of the inquiry relating thereto. Accordingly, the Court concludes that the jury found that plaintiff had failed to prove that any boundary agreements which were made among applicants were part of an illegal conspiracy. [7] In discussing the differences in the two liability interrogatories, and the necessity of submitting separate questions, plaintiff observes that, "The jury ... [was] asked whether [the boundary agreements] were proven to be part of a conspiracy in restraint of trade, and they said "no," while at the same time determining that there was a conspiracy in restraint of trade." Defendant Gulf Coast's analysis of the jury's answers to the two interrogatories provides an explanation of the jury's intent in so answering: Thus the jury must have concluded that the boundary agreements were not part of a conspiracy in unreasonable restraint of trade `to limit competition for cable television franchises.' Nevertheless, they answered the third interrogatory in the affirmative, apparently believing there was some conduct wholly unrelated to the boundary agreements which was legally cognizable as a conspiracy in unreasonable restraint of trade to limit competition for cable franchises. The Court agrees with plaintiff that "Special Verdict 1 is a narrower, not a more precise, inquiry than Special Verdict 3," and remains of the opinion that submission of separate liability interrogatories was not only necessary for consistency with the plaintiff's theory that the boundary agreements were part of a conspiracy but were not intended to constitute an all-inclusive and exclusive description of the conspiracy, but was compelled by an evaluation of the evidence which had been presented to the jury. See Boeing Company v. Shipman, 411 F.2d 356, 374-75 (5th Cir. 1969) (en banc) ("A mere scintilla of evidence is insufficient to present a question for the jury.... There must be a conflict in substantial evidence to create a jury question."). Further, the Court concludes that, on the basis of the evidence which was presented to the jury, the interrogatories were constructed to avoid answers which would create irreconcilable conflict and, in fact, the answers present no such conflict. Accordingly, the Court declines to treat Gulf Coast's alternative motion as one for new trial. The Court is required to "`search for a view of the case that makes the jury's answers consistent.' ... Even if a conflict exists, [the Court] must inquire whether the inconsistency can nonetheless be read as `a consistent expression of intent that [defendants are] either liable or excluded from liability.'" Special Promotions, Inc. v. Southwest Photos, Ltd., 559 F.2d 430, 432 (5th Cir. 1977), quoting Gonzales v. Missouri R. R. Co., 511 F.2d 629, 633 (5th Cir. 1975) and Griffin v. Matherne, 471 F.2d 911, 916 (5th Cir. 1973). This Court perceives no difficulty in viewing the answers to interrogatories 1 and 3 as a consistent expression of intent that defendants are liable for participation in a conspiracy to limit competition, notwithstanding that the boundary agreements were not part of the conspiracy. As is reflected in the analysis at 1005-1010, infra, the deficiency arises in the sufficiency of evidence to support a finding that said conspiracy was causally related to plaintiff's injury. Additionally, the Court observes that it is unpersuaded by defendants' assertions that plaintiff raises new, previously unpled, theories by its assertion that the conspiracy of Interrogatory No. 3 encompassed an illegal agreement to exclude non-conspirators from competition, and to limit the competition among co-conspirators. Review of Plaintiff's First Amended Complaint at ¶ 38 & ¶ 39, and plaintiff's Joint Pretrial Order of January 12, 1981, at 11-14, indicates that plaintiff espoused its theory of the case consistently throughout the course of proceedings. [8] Defendants make much of plaintiff's closing argument and the focus therein on boundary agreements. The Court acknowledges that the content of the closing argument tends to demonstrate further that plaintiff concentrated heavily on proving the boundary agreements and relied to a large extent on the existence of the agreements to prove an antitrust violation. Relying on the closing arguments, or utilizing their content for any aspect of the resolution of these motions, however, is impermissible inasmuch as nothing contained therein constitutes evidence. [9] For example, plaintiff cites a reference by Clive Runnells to discussions between Gulf Coast and other applicants in a letter he wrote to his partners on August 29, 1978. Plaintiff's Exhibit 10. Plaintiff asserts that an inference can be drawn therefrom that successful applicants had agreed to cooperate rather than compete. An examination of the entire paragraph from which the reference to discussions is extracted reveals that Runnells was referring to the areas the applicants had applied for and was correlating that information to Gulf Coast's chances of being successful in obtaining the area for which it had applied. He specifically made reference to boundary negotiations with other applicants: Regarding the Houston franchise application, I trust you have been kept informed by the newspaper articles and other information received over television and radio. To clarify the situation, enclosed is a map which appeared in the Houston Chronicle which more or less defines the areas each applicant has applied for. There is another applicant appearing this coming Wednesday afternoon, and at this time we do not know what area they will ask for. As you may or may not know, the deadline for applications has been set by the City for September 1. In light of the fact our application was the first to appear before City Council, and we have had discussions with other applicants, we feel fairly certain if franchises are granted we should receive the franchise for the southwest part of Houston. We have agreed to give up to the Walter Mischer et al. group the area from Katy Freeway to 290, excluding Spring Valley Village. We do not know exactly where we will stand with the Storer group, for we know they would like part of our south area, but at this time we have not reached any accommodation with them. Plaintiff's Exhibit 10. [10] Prior to that time Gulf Coast and Houston Cable had met concerning boundaries, Testimony of Clive Runnells; the jury could have found those discussions and ensuing agreement to be evidence of the applicants' intent to limit competition. [11] Defendants assert that this testimony can refer only to boundary agreements. The Court concludes that, in light of the testimony regarding the City's being "locked up", allusions to "cutting the pie" reasonably are not confined to territories. An inference can be derived from that testimony that the defendants had decided who would get franchises regardless of what geographic areas the franchises would cover. [12] In developing the evidence concerning the Westland matter, plaintiff further asserts the following with regard to the testimony about the November 20, 1978 meeting between Gulf Coast and Westland which was scheduled at the Mayor's direction: Clive Runnells testified that there were two separate and distinct aspects of the meeting between Gulf Coast and Westland. First, Gulf Coast received Westland's agreement to take a different boundary than it had applied for. Second, Runnells testified that it was "a good possibility" that the Westland meeting "was an insurance policy that if City Council followed the Mayor's wishes that [Gulf Coast] wouldn't get [their] application denied in its entirety." Testimony of Clive Runnells, Jan. 29, 1981, at 47-48, App. Exh. 10. This again, provides an inference of the nature of the understanding: those applicants party to the understanding who were willing to cooperate rather than compete would get franchises, and others, including plaintiff, would not. An examination of Runnells' testimony on that matter reveals that Runnells felt that because Gulf Coast had made an accommodation with Westland on boundaries, Gulf Coast's application likely would not be rejected in its entirety by City Council if City Council followed the Mayor's wishes with regard to Westland's application. The conditioning of the "insurance policy" on the boundary agreements is inescapable, however, and the Court perceives no possible inference from that testimony that the boundaries and the "insurance policy" were two separate and distinct aspects of the meeting. Furthermore, no possible inference can be drawn that the willingness to cooperate rather than to compete had any frame of reference other than cooperation with regard to boundary agreements. The testimony of Runnells on January 29, 1981 with the regard to that matter was as follows: Q Well, sir, the fact of the matter is you did receive two things from the Westland meeting, did you not, and the first thing you received was their agreement to take a different boundary than they had applied for, that's number one, they didn't snuggle up under your soft belly? A It could be construed as that, yes, sir. Q The second thing you received, was it not, Mr. Runnells, was an insurance policy that if city council followed the mayor's wishes that you wouldn't get your application denied in its entirety, that was the second thing you received, wasn't it, sir? A I — Q That was a possibility? A That was a good possibility, yes, sir, but I don't say it was an insurance policy. I feel we received nothing from it. Testimony of Clive Runnells. [13] In analyzing the evidence, the Court is obligated to give plaintiff the benefit of all reasonable inferences which can be derived from the evidence which was presented to the jury. Plaintiff's assertions with regard to the agenda are as follows: The evidence also shows that the ordinances were placed on the agenda for the November 29 Council meeting on or before November 22. Plaintiff's Exh. 174, Supp. App. Exh. 2. Clearly the five ordinances were placed on the agenda before the City knew the agreed-to boundaries for the five franchises, since the Council was not provided with the completed ordinances and a map of the boundaries until November 29. Plaintiff's Exh. 35, App. Exh. 13. This evidence permits an inference that the successful applicants were assured of their success before the City knew what boundaries had been agreed to, or even whether boundaries had been agreed to. Additionally, the fact that the attorneys for the applicants worked over the weekend of November 25 and 26, and knew of the deadline imposed by the Council meeting on November 29, Plaintiff's Exh. 29, App.Exh. 11, indicates that they knew then that they would be the successful applicants. Defendants City of Houston and McConn make certain assertions concerning the import of that evidence which tend to demonstrate the tenuous nature of that proof as support for plaintiff's position: Plaintiff also argues that the mere appearance of the five (5) successful applicants on the agenda is further evidence of a conspiracy to exclude plaintiff. What the plaintiff does not point out is the fact that it would have been virtually impossible for plaintiff to even have been considered, much less excluded, in light of the fact that the first serious step which plaintiff took toward acquiring a franchise was the completion of its questionnaire and its filing only two days prior to the posting of the agenda. [November 16, 1978. Further, plaintiff did not file its supplemental application until November 28, 1978.] Since the agenda, by law, must be posted a certain number of days prior to Council action, it is completely illogical to infer that some conspiracy exists simply because counsel for the applicants which appeared on the agenda, and the City Attorney, continued their negotiations as to franchise language and boundaries after the agenda was posted. If Council was going to vote on the ordinances on November 29, it was incumbent that the ordinances be in final form by that date. Plaintiff's Exhibits 29 and 30 demonstrate conclusively that negotiations were still proceeding on the terms of the franchise as late as the weekend of November 25 and 26, and, indeed, "significant changes" were made in the terms of the ordinance during that negotiating session. (See Plaintiff's Ex. 30). The Court further points out that the ordinances were scheduled for a first reading on November 29, 1978, and three readings were required before approval was final. Plaintiff's Exhibit 150 at 39-40. Nevertheless, the Court must consider the agenda evidence because it possibly might support an inference favorable to plaintiff, particularly when it is considered in combination with evidence concerning Baer's conversation with Levin about the agenda, which is described at 1001-1003, infra. [14] Defendants assert that the evidence of what Councilman Goyen said at the December 12 hearing, of the contingency proposal by Gulf Coast and of the councilmen's reasons for favoring Gulf Coast cannot be considered because all of that evidence concerns boundary agreements, which agreements the jury determined were not unlawful. Interrogatory No. 1 which the jury answered negatively asked whether the boundary agreements were part of the conspiracy, not whether the boundary agreements themselves were illegal. The plaintiff's inconsistent interpretations of the jury's answer to that question, however, demonstrate how illusory is its assessment of what was intended by the jury to be the scope of its negative answer. In one place in Plaintiff's Brief Demonstrating Inferences from the Evidence, plaintiff asserts that "The jury was not asked whether the boundary agreements were themselves unreasonable restraints of trade; they were asked whether they were proven to be part of a conspiracy in restraint of trade...." In another place in the same brief, plaintiff asserts that "Since the words `part of' were never defined, the jury might simply have ignored them or (which would amount to the same thing) construed them to mean that the boundary agreements had to share all the characteristics of a conspiracy in unreasonable restraint of trade as defined in the instructions, including anti-competitive purpose, unreasonableness, and causation." The latter interpretation of the jury's answer is equivalent to saying that the jury found that the boundary agreements were not unlawful. The Court believes that the more reasonable interpretation of the jury's answer to Interrogatory No. 1 is that the jurors thereby intended to convey that they perceived nothing wrong in the applicants' having made boundary agreements. Resolution of the issue, however, is unnecessary to the Court's determination of whether the evidence under examination falls within the scope of Interrogatory No. 3. Interrogatory No. 1 specifically addressed boundary agreements which had been accomplished; the jury's negative answer thereto, accordingly, cannot preclude consideration as independent evidence of a conspiracy either the City officials' encouragement to applicants to adjust further the agreements already made, or Gulf Coast's attempts to adjust further the agreement between itself and Houston Cable. [15] Between December 20, 1978 and January 10, 1979, a further adjustment was made between applicants with regard to the boundaries of the Meca and Houston Community Cable franchises. Plaintiff's Exhibits 41 & 97. That readjustment, however, does not alter the facts that on December 20, 1978 and January 10, 1979, the five prevailing franchise applications covered the entire geographical area of the city. [16] Clive Runnells testified that sometime before July 17, 1978 he had "received word from City Hall that if boundaries could be agreed to, City Hall would be happy about it." [17] The assumptions were as follows: Q The first assumption I would like you to accept, Mr. Malarkey, is that the decision between Gulf Coast and Affiliated Capital was made on the merits on December 20. Can you accept that? A Yes, sir. Q Will you accept another assumption, sir, that Gulf Coast and Affiliated Capital were equally qualified, as the Public Service and Legal Department said? A Yes, sir. Q I would like you also to assume, sir, that Gulf Coast was more qualified than Houston Cable or Westland, all right? A Yes, sir. Testimony of Martin Malarkey, February 5, 1981. [18] In one part of its brief, plaintiff characterizes the expert's testimony in the same way that the Court has done, that is, that the boundary agreements were the focal point and the initiating cause of the conspiracy: For example, consider the fact that plaintiff's expert testified that the purpose of the boundary agreements was to remove any incentive for the conspirators to compete as to franchise terms. See Testimony of Martin Malarkey, Feb. 4, 1981. The jury may have believed, however, the conspirators agreed not to compete on franchise terms, and generally to be "friendly competitors," without regard to whether they overlapped with one another. The four results of the noncompetitive franchising process to which Mr. Malarkey testified, id. at 57-61, would have occurred without regard to boundary overlaps if the conspirators simply agreed not to compete as to franchise terms. Said assertion was made in the context of plaintiff's identifying the evidence which would support the existence of the conspiracy addressed in Interrogatory No. 3. Plaintiff's characterization of what the jury "may have believed" is appropriate with regard to the existence of the conspiracy in light of the other evidence which the Court believes was presented on that issue. In the context of isolating evidence of causation, however, the testimony of plaintiff's expert constitutes the sum of what plaintiff presented, and all the jury had before it was the evidence that the pre-packaged deal which resulted from previous boundary agreements was the factor that caused plaintiff's failure to have its franchise application approved. The Court perceives no difference in result, even when plaintiff's failure to be approved is described as having arisen out of the combination of the City's instructions to plaintiff to seek approval of the other applicants who already had agreed on boundaries and those applicants' subsequent refusal to readjust prior agreements or to surrender territory identified pursuant to those agreements, in order to make room for plaintiff. Plaintiff wanted and applied for only an area that would have infringed upon the territory Gulf Coast had identified and applied for after Gulf Coast agreed on boundaries with other applicants. Plaintiff failed to receive its franchise because Gulf Coast and the other applicants refused further to adjust their boundaries to accommodate plaintiff. [19] Concerning plaintiff's status as a competing applicant, defendants in essence contend that plaintiff has sought damages for the loss of its franchise at the fair market value of the franchise and that plaintiff therefore is not entitled to a double recovery by having the Gulf Coast franchise voided and thereby being able to compete again for the franchise. Plaintiff counters that it "is a proper person to seek injunctive relief even if defendants are correct in their assertion that as a potential competitor plaintiff lacks standing because it has been compensated for the value of the franchise it sought." Further, plaintiff asserts that it has such standing as a potential consumer on the basis of its first amended complaint; however, plaintiff has moved for leave to file a second amended complaint which alleges with specificity its standing to seek injunctive relief as a potential consumer. The Court does not agree that the allegations of plaintiff's first amended complaint suffice to accord plaintiff standing as a potential consumer. Further, the Court has denied plaintiff leave to file its second amended complaint, refer to note 1, supra, not only because the issue is moot in light of the rulings herein, but also because the Court is unpersuaded that fairness would compel such a result or that the traditional rules of equity would allow it. As defendant Gulf Coast points out, this eleventh-hour request should be estopped by the maxim that he who comes to equity must come with clean hands. Even if plaintiff's post-trial effort to amend its complaint cannot be characterized as an act of bad faith, at least it is perceived by this Court as an untimely effort to change the posture of the lawsuit so that plaintiff can seek a double recovery. In asserting that a post-trial evidentiary hearing on plaintiff's entitlement to injunctive relief as a potential consumer would not prejudice the rights of any defendant, plaintiff apparently overlooks the fact that the trial on the merits was consolidated with the injunction hearing. The Court is unpersuaded that the facts of this case require that plaintiff be given a second opportunity either to plead or to prove a different theory of its case. [20] Gulf Coast points out another deficiency in the broad scope of injunctive relief sought by plaintiff: [E]ven if Affiliated were to be accorded standing as a single member of the purchasing public, it would then encounter another traditional rule that `equity acts specifically' and affords the petitioner in equity the specific thing to which it is entitled. 30 C.J.S. Equity § 101 (1965). If it were shown ... that as a result of antitrust violations Affiliated, the private purchaser, had been foreclosed from the possibility of receiving `data transfer, burglar and fire alarm protection, and the like' ..., then its equitable relief would be formulated around those services. Equity would not act to require forfeiture of an entire franchise covering 40% of the City of Houston when a remedy could be afforded in terms of specific services for a specific customer. [21] The United States Supreme Court has determined that the doctrine of Noerr and Pennington also applies to the adjudicatory functions of administrative agencies and to judicial proceedings, but that it must be adapted when applied in such a context. See California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1971), wherein the Supreme Court analyzed and defined the contours of the sham exception to Noerr-Pennington in the context of adjudicatory proceedings. Inasmuch as the City Council in the instant cause was acting in a legislative capacity during the franchising process, see, e. g., Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220 (7th Cir. 1975), the decisions involving an adjudicatory setting have only ancillary application to this case. The Court, however, finds the decisions instructive even if they are not dispositive of the issues herein. [22] Most courts have reserved the sham exception label for circumstances in which the conduct of the private parties is questionable, that is, where the activities of the private parties are not genuinely engaged in to petition government for action in the parties' self-interest, but are engaged in solely to inflict some injury on another party. See, e. g., Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, 557 F.2d 580 (7th Cir. 1977), vacated and remanded, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), reinstated, 583 F.2d 378 (7th Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). Some courts, however, also have applied the sham exception label in situations where the conduct of a public official is challenged. Thus, those courts have determined that when a public official is alleged to be a co-conspirator, no separate exception to Noerr-Pennington is created; instead such a situation falls within the sham exception. See, e. g., In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568 (N.D.Cal.1981); Federal Prescription Service, Inc. v. American Pharmaceutical Association, 484 F.Supp. 1195, 1209 (D.D.C.1980). Other courts have decided that the public official as co-conspirator represents an entirely separate exception to Noerr-Pennington, rather than being part of the sham exception rather than public conduct. Those courts have indicated that separate-exception-view either by determining, without mentioning sham, that Noerr and its progeny would not bar applicability of the Sherman Act, see, e. g., Duke & Company, Inc. v. Foerster, 521 F.2d 1277 (3rd Cir. 1975) and Harman v. Valley National Bank of Arizona, 339 F.2d 564 (9th Cir. 1964), or by engaging in a bifurcated analysis of the co-conspirator exception and the sham exception, see, e. g., Kurek v. Pleasure Driveway & Park District of Peoria, Illinois, supra. The result of either analysis, of course, would be the same: the conduct of the private parties is infected or invalidated by the illegal conduct of the public officials, thereby precluding the private parties from invoking Noerr-Pennington immunity. [23] At trial various of the elected representatives who participated in the selection process indicated that they have little, if any, comprehensive knowledge of cable television systems. Indeed, the record without exception reflects that the Mayor and council really never cared to obtain such knowledge; instead they preferred to place their imprimatur on the substantive aspects of a proposal agreed upon by the favored applicants. [24] Five years after Harman, the Ninth Circuit had occasion to affirm a summary judgment for private-party defendants in a case which involved, inter alia, allegations that county commissioners had participated in a conspiracy resulting in the award to one defendant of an exclusive garbage collection franchise by the county commission. Sun Valley Disposal Company, Inc. v. Silver State Disposal Company, 420 F.2d 341 (9th Cir. 1969). Plaintiff had relied on two cases, including Harman, in support of the co-conspirator exception which it urged. The Sun Valley Court remarked on the erosion of the first prong of Harman by the subsequent Pennington decision; however, the Court did not overrule Harman or even comment specifically on the co-conspirator prong of that case. The concurring Judge opined that the co-conspirator prong of Harman was not affected by Pennington, and that plaintiff simply had failed to identify enough facts to create a disputed issue. Id. at 344 (Browning, J., concurring in part). In distinguishing the other case upon which plaintiff relied, however, the Sun Valley majority observed that "government units ... are seldom free from personal interest and outside influences, but the Sherman Act was not intended to regulate this type of activity. There is support for this view in that Noerr ... holds that so long as the official's action is itself lawful, the action is without the scope of the federal antitrust laws even if the motive for the action was a personal one." Id. at 342. Preliminarily, this Court observes that the evidence herein demonstrates clearly that this case involved more than the officials' having personal interests and being influenced by outsiders. Secondarily, inasmuch as the discussion on a public official being a co-conspirator was not dispositive of the Court's ruling in Sun Valley, this Court is not persuaded that the co-conspirator ground of Harman is no longer good authority. [25] The Third Circuit was analyzing circumstances wherein the governmental entities, rather than the private parties, were claiming Noerr-Pennington immunity. This Court, however, concludes that the reasoning in that case also would apply to preclude Noerr-Pennington immunity for the private-party defendant herein. [26] The Mason City Center Court held that a more complete factual record had to be developed before the Court could determine whether "Noerr-Pennington political-speech immunity" would preclude plaintiffs' claim. Mason City Center Associates v. City of Mason City, Iowa, 468 F.Supp. 737, 745 (N.D. Iowa 1979). The facts of the Mason City Center case indicate that the Court therein was analyzing an adjudicatory rather than a legislative process. Further, the Court's reference to "access barring" indicates that the analysis was of an adjudicatory process, inasmuch as most courts have confined the use of that term and concept to an adjudicatory rather than a legislative/executive setting. See, e. g., California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Mark Aero, Inc. v. Trans World Airlines, 580 F.2d 288 (8th Cir. 1978); Federal Prescription Service, Inc. v. American Pharmaceutical Association, 484 F.Supp. 1195 (D.D.C.1980); Wilmorite, Inc. v. Eagan Real Estate, Inc., 454 F.Supp. 1124 (N.D.N.Y.1977), aff'd, 578 F.2d 1372 (2d Cir. 1978), cert. denied, 439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d 655 (1978). Cf. Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220, 231-32 (7th Cir. 1975) (Court engaged in an analysis of "access-barring" in the context of the legislative process). Although "access-barring" well might constitute an appropriate method of analysis in cases involving legislative action, this Court need not engage in such an analysis in order to reach the conclusion that the facts herein bring the instant cause within the co-conspirator exception. This Court, however, finds the Mason City Center reasoning particularly instructive in spite of the different context and the different method by which that Court reached its result. Two reasons exist for this Court's reliance on the Mason City Center reasoning concerning the co-conspirator exception: (1) the function of the city council in that case in affirming the action of the zoning commission was very similar to the function of the Houston City Council during the franchising process; and (2) in support of its decision about the applicability of Noerr-Pennington, that Court cited several cases involving the legislative/executive context as well as those it cited wherein the alleged scheme had involved the courts or administrative bodies. Although the standard for determining whether certain activities involving the courts or administrative decision-makers constitute corruption of those bodies is less strict than the standard which is applied to similar activities designed to induce legislative action, corruption of legislative bodies is not eliminated as a consideration when a court must decide whether Noerr-Pennington applies. [27] In Parmelee Transportation Company v. Keeshin, 292 F.2d 794 (7th Cir. 1961) the Court affirmed the district court's granting of defendants' motions for summary judgment, finding, inter alia, that plaintiff's allegation that wrongful conduct on the part of a member of the Interstate Commerce Commission facilitated plaintiff's competitor in receiving a monopoly baggage-transfer contract from the railroads did not allege a violation of the antitrust laws. The Court in Cow Palace, Ltd. v. Associated Milk Producers, Inc., 390 F.Supp. 696 (D.Colo. 1975), granted defendant's motion to dismiss, finding that plaintiff's allegation that the alleged conspiracy included representatives of the United States government was insufficient to preclude applicability of Noerr-Pennington because the Ninth Circuit had disapproved its decision in Harman v. Valley National Bank of Arizona, 339 F.2d 564, a case primarily relied upon by plaintiff. [28] An unresolved question exists regarding whether the Parker doctrine "would protect not only the state itself, but private parties acting under state mandate." United States v. Southern Motor Carriers Rate Conference, Inc., 467 F.Supp. 471, 479 (N.D.Ga.1979). See Cantor v. Detroit Edison Company, 428 U.S. 579, 594-95, 96 S.Ct. 3110, 3119-3120, 49 L.Ed.2d 1141 (1976) (plurality opinion) wherein the Court left open the availability of a Parker exemption to private parties in "cases in which the State's participation in a decision is so dominant that it would be unfair to hold a private party responsible for his conduct in implementing it, ...." Id. at 594-95, 96 S.Ct. at 3119. In this case, Gulf Coast has not contended that it is entitled to an exemption pursuant to Parker. The Court, however, briefly has analyzed the decisions pertaining to the Parker exemption for private parties in order to demonstrate that Gulf Coast could not have availed itself of that exemption on the record developed at trial. Refer to discussion at 1026-1027, supra. [29] Home rule cities in Texas include those with populations of 5000 or more, Art. 11, § 5, Texas Constitution, and the Court assumes that numerous cities of that size exist in the State. Plaintiff's expert witness testified that other cities in Texas have engaged in cable television franchising processes different from the process in Houston. As a result of the competition inherent in those franchising processes, the expert testified that the benefits to the citizens of those cities were greater than any benefits derived in Houston. In light of the number of home rule cities and the various ways in which each could implement or has implemented the statutory franchising authority, the Court can conclude that the Texas legislature intended for home rule cities to have freedom to decide how best to conduct the franchise process. That intent, however, is far afield from the intent urged upon the Court by the City defendant's invocation of Parker immunity: that the City of Houston's decision to engage in an anticompetitive process was equivalent to an affirmatively expressed state policy, or was sanctioned by the legislature. This Court declines to decide that the State's grant of full powers of self-government to home rule cities must be viewed as a legislative grant to Houston to implement a "state policy" requiring not only restraint of trade in cable television franchising but also participation of Houston public officials in a conspiracy to restrain trade.

870 P.2d 1252 (1994) The PEOPLE of the State of Colorado, In the Interest of J.L.P., S.D.P., W.J.P. and C.P., Children, Appellants, And Concerning M.L.P., Respondent-Appellee, and Oglala Sioux Tribe, Intervenor-Appellee. Nos. 92CA1007, 92CA1777. Colorado Court of Appeals, Div. III. February 10, 1994. *1255 David Littman, P.C., Gaynell Gavin, Denver, guardian ad litem. No appearance for respondent-appellee. Fredericks, Pelcyger, Hester & White, Mark C. Tilden, Boulder, for intervenor-appellee. Opinion by Judge TAUBMAN. In this dependency and neglect proceeding concerning two children, W.J.P. and C.P., guardian ad litem, Gaynell Gavin (GAL), appeals the order of the juvenile court transferring jurisdiction to the Oglala Sioux (Tribe) tribal court under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq. (1988). The GAL also appeals the juvenile court's order limiting the scope of the record and its refusal to hold a permanency planning hearing during the pendency of the appeal. We affirm. In September 1990, the Denver Department of Social Services (DDSS) filed a dependency and neglect petition against M.L.P. (father) and S.R.P. (mother), involving their minor children, two of whom are W.J.P. and C.P., ages 7 and 6, respectively. Because the children were enrolled members or eligible for enrollment in the Oglala Sioux Tribe, see 25 U.S.C. § 1903(4) (1988), the Tribe was notified of the proceedings pursuant to the ICWA in October 1990. The children were adjudicated dependent and neglected and placed in the custody of DDSS in April of 1991. A treatment plan for the father was ordered. The mother is now deceased. In approximately October 1991 the Tribe intervened and requested that jurisdiction be transferred to the tribal court. The GAL requested a plan regarding the care and custody of the children from the Tribe. She also attempted to obtain information regarding the Tribe's plans for the children through interrogatories and a request for production of documents. The Tribe refused to supply a custody plan or comply with the GAL's discovery requests because it took the position that these requests interfered with tribal sovereignty and the ICWA. The proceedings dealing with two older children were transferred to the Tribe by stipulation. Later, the GAL sought to compel discovery and the Tribe requested a protective order. At a motions hearing, the juvenile court granted the Tribe's request for a protective order and requested additional briefing on whether good cause existed to prevent transfer of the matter to the Tribe. The juvenile court reserved the right to make findings on this matter based on the briefs *1256 and without conducting a subsequent hearing. It later found that good cause did not exist to retain jurisdiction and transferred the matter to the Tribe. The GAL appealed. In June 1992, a division of our court granted a stay of execution of transfer of jurisdiction pending appeal. The GAL submitted her designation of the record to which the Tribe objected as being overbroad. A motions panel of this court remanded the motion for determination by the juvenile court. The juvenile court granted the Tribe's motion to exclude documents not related to the transfer of jurisdiction issue. The GAL also requested a family interactional evaluation and a permanency planning hearing after the juvenile court had transferred jurisdiction to the Tribe and after a notice of appeal had been filed. The juvenile court denied the motion because it believed it lacked jurisdiction. I. Transfer of Jurisdiction Presenting an issue of first impression in Colorado, the GAL argues that the juvenile court improperly transferred jurisdiction to the Tribe when good cause existed for it to retain such jurisdiction. We disagree with the GAL's contention. A. The Indian Child Welfare Act The ICWA was enacted to prevent the separation of large numbers of Indian children from their families and tribes caused by adoption or foster care placement in non-Indian homes by state child welfare entities. The Congressional findings that were incorporated into the ICWA reflect the sentiment that no resource is more vital to the continued existence and integrity of Indian tribes than their children. 25 U.S.C. § 1901 (1988). Hence, the ICWA provides Indian tribes with jurisdiction to determine child placement and adoption. At the core of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. 25 U.S.C. § 1911 (1988) provides a dual jurisdictional scheme. 25 U.S.C. § 1911(a) (1988) establishes exclusive jurisdiction in the tribal courts for proceedings involving an Indian child "who resides or is domiciled within the reservation of such tribe...." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The provision applicable here, 25 U.S.C. § 1911(b) (1988), creates concurrent jurisdiction between the state in which the child resides and the tribe. It states: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either party, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe. Thus, even for an Indian child who lives off reservation, the tribal court is still the preferred jurisdiction under the Act absent a showing of "good cause" to the contrary. See In re Robert T., 200 Cal.App.3d 657, 246 Cal.Rptr. 168 (1988). B. Standard of Review Whether good cause exists to retain jurisdiction is within the juvenile court's discretion. In re Dependency & Neglect of A.L., 442 N.W.2d 233 (S.D.1989); In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333, 1335 (1988). This determination is necessarily made on a case-by-case basis, after careful consideration of all the circumstances of the case. In re Wayne R.N., supra. Thus, our review is limited to an examination of the record to determine whether substantial evidence supports the juvenile court's finding. In re Robert T., supra; In re Wayne R.N., supra. C. Good Cause Good cause is not defined in the ICWA. Instead, the Bureau of Indian Affairs *1257 (BIA) has issued guidelines for determining whether good cause exists. Department of Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Welfare Custody Proceedings—Part III, 44 Fed.Reg. 67,583 (1979) (BIA Guidelines). Although the BIA followed the notice and comment rulemaking procedures of the federal Administrative Procedure Act, the Guidelines were not published as regulations out of deference to state and tribal courts and because they were not intended to have binding legislative effect. See BIA Guidelines, supra, at 44 Fed.Reg. 67,584. The Guidelines represent the BIA's interpretation of the Act, however, and are useful in interpreting its provisions. In re Robert T., supra. Furthermore, a number of states have addressed the transfer of jurisdiction issue using these Guidelines. Accordingly, we consider them to be persuasive authority here. The burden of establishing good cause not to transfer jurisdiction is on the party opposing the transfer. In Interest of Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060 (1990) (citing BIA Guidelines, supra). The party attempting to prevent the transfer must establish good cause with clear and convincing evidence that the best interests of the child would be injured by such a transfer. In re M.E.M., 195 Mont. 329, 635 P.2d 1313 (1981). The BIA Guidelines state that good cause not to transfer jurisdiction exists when the child's tribe does not have a tribal court or when any of the following circumstances exist: (i) The proceeding was at an advanced stage when the petition to transfer was received or the petitioner did not file the petition promptly after receiving notice of the hearing; (ii) The Indian child is over twelve years of age and objects to the transfer; (iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses; (iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe. BIA Guidelines, 44 Fed.Reg. 67,591 (1979). D. Proper Transfer of Jurisdiction The GAL first contends that because the Tribe requested the transfer of jurisdiction at such a late stage in the proceedings good cause existed not to transfer. We disagree. The BIA Guidelines provide that a transfer request shall be made promptly after receiving notice of the proceedings. BIA Guidelines, supra, at 44 Fed.Reg. 67,590. A number of courts have denied transfer on grounds of lack of timeliness, but we find those cases factually distinguishable from the situation here. For example, in People in Interest of J.J., 454 N.W.2d 317 (S.D.1990), the tribe did not request transfer of jurisdiction until the case was on appeal and the Indian appellant had lost the custody fight in the trial court. The South Dakota Supreme Court denied the transfer request. Here, in contrast, the father was not attempting to find a more favorable forum and the proceedings before the juvenile court had not been completed when the tribe requested the transfer of jurisdiction. The California Court of Appeals, in In re Robert T., supra, also denied transfer of jurisdiction because the tribe's request came 16 months after a permanency planning hearing and preadoption placement of the Indian child with an acceptable foster family under the ICWA. Here, the Tribe intervened one year after it received notice of the proceedings. Moreover, a permanency planning hearing had not been held, nor were the children placed in foster care that would have culminated in adoption in compliance with the ICWA. See 25 U.S.C. § 1915(a) and (b) (1988). The record also demonstrates that the father had orally informed the court in *1258 September 1991, less than a year after the Tribe had been notified, that the Tribe intended to intervene and request transfer of jurisdiction. The BIA Guidelines state that a request for transfer made orally by a parent or the Tribe of the Indian child shall be reduced to writing by the court and made part of the record. BIA Guidelines, supra, 44 Fed.Reg. at 67,590. Thus, this notification can be construed as a prompt request for transfer of jurisdiction. Furthermore, a finding of timeliness is merely one consideration in determining whether good cause exists, a decision ultimately within the juvenile court's discretion. Accordingly, since a determination of timeliness must be made on a case-by-case basis, we conclude that the juvenile court did not abuse its discretion in finding that the motion to transfer jurisdiction was timely. Next, the GAL argues that undue hardship would result if the Tribe were to obtain jurisdiction. Again, we disagree. The BIA Guidelines apply a modified doctrine of forum non conveniens. BIA Guidelines, supra, at 44 Fed.Reg. 67,591. The GAL contends that in the present case, most of the witnesses and evidence are in Denver. However, the GAL did not present any evidence on this point at the preliminary hearing or through affidavits attached to her trial memorandum opposing the transfer of jurisdiction, nor did she seek to obtain this type of information from the Tribe through discovery. Thus, the juvenile court did not abuse its discretion regarding this element of good cause in transferring jurisdiction. Finally, the GAL argues that good cause existed to retain jurisdiction because it was not in the best interests of the children to transfer jurisdiction. Again, we disagree. The primary purpose of the ICWA is to "protect the best interests of Indian children and to promote stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families...." 25 U.S.C. § 1902 (1988). Nevertheless, the "best interests of the child" standard as used in other custody proceedings, see generally § 14-10-124, C.R.S. (1987 Repl.Vol. 6A), is not one of the good cause factors enumerated in the BIA Guidelines and has only been applied in a few states. See People in Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983); In re Robert T., supra. In contrast, some state courts have rejected the application of the best interest of the child standard used in custody disputes and have adopted the BIA Guidelines exclusively. See In re Interest of Armell, supra. Thus, in In re T.S., 245 Mont. 242, 801 P.2d 77, 80 (1990), the Montana Supreme Court stated: [T]his `best interests of the child' test should not be confused with the `best interests of the child' test applied ... in custody determinations between parents in a dissolution. It should also not be confused with the criteria used to determine child abuse, neglect, and dependency and to terminate parent-child legal relationships.... Similarly, the Utah Supreme Court concluded that issues of bonding and ultimate placement of the child were not proper considerations when the court was deciding the issue of jurisdiction. In re Adoption of Halloway, 732 P.2d 962 (Utah 1986). There, the Utah court stated, "We must defer to the experience, wisdom, and compassion of the Navajo tribal courts to fashion an appropriate remedy. We hope that the tribal courts will consider ... the value of the stability in [the child's] placement and will recognize the strong bonds [the child] had developed with his adoptive parents." In re Adoption of Halloway, supra, at 972. We adopt the reasoning contained in this line of cases because we conclude that the adoption of a best interests of the child standard would defeat the purpose of the ICWA. The United States Supreme Court has interpreted 25 U.S.C. § 1911(b) to presume jurisdiction with the Tribe. Mississippi Band of Choctaw Indians v. Holyfield, supra. Thus, under the ICWA the determination *1259 of the best interests of the child lies with the Tribe. See In re Appeal of Pima County Juvenile Action, 130 Ariz. 202, 635 P.2d 187, 189 (1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) ("The Act is based on the fundamental assumption that it is in the Indian child's best interests that its relationship to the tribe be protected."). Accordingly, the juvenile court properly transferred jurisdiction without consideration of the elements of the best interests of the child set forth in § 14-10-124, C.R.S. (1987 Repl.Vol. 6B). The GAL also argues that the application of the BIA Guidelines without consideration of the best interests of the child violates the Equal Protection Clause of the Fourteenth Amendment and Colo. Const., Art. II, § 25. However, we do not address this issue because it was raised for the first time in the reply brief. People v. Czemerynski, 786 P.2d 1100 (Colo.1990). E. Failure to Hold a Hearing The GAL further argues that the juvenile court erred when it failed to hold a hearing before determining whether good cause existed to retain jurisdiction. We disagree. The GAL relies on In re G.L.O.C., 205 Mont. 352, 668 P.2d 235 (1983), which held that a hearing on the question of whether jurisdiction should be transferred is required to provide due process to those involved in the process. In In re G.L.O.C., the Indian child's indigent parent, who was also Indian, was not provided with counsel as required by the ICWA and was unable to challenge the Tribe's request for transfer of jurisdiction. The Montana Supreme Court determined that the father's due process rights had been violated since he could not participate in the transfer proceedings. Accordingly, the court vacated the district court's order transferring jurisdiction. Here, unlike In re G.L.O.C., the father, GAL, and the tribe participated in preliminary arguments and briefing on the issue of transfer of jurisdiction. At the preliminary hearing, the juvenile court heard argument on the transfer of jurisdiction from each party. It then requested additional briefing on the issue of good cause. In its oral and written orders, the juvenile court reserved the right to rule on the transfer of jurisdiction issue without further hearings. None of the parties objected. Under the circumstances presented here, we conclude that due process was afforded to all parties, and we find no error in the juvenile court's transfer without further hearing. II. Discovery The GAL next contends that the juvenile court abused its discretion when it denied her discovery request and granted the Tribe's motion for protective order. The denial of discovery, she argues, effectively prevented her from obtaining any information which would demonstrate that good cause existed for the juvenile court to retain jurisdiction over the matter. We disagree. Discovery is a matter squarely within a trial court's discretion. In re Marriage of Mann, 655 P.2d 814 (Colo.1982). Protective orders may be granted by a trial court to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. C.R.C.P. 26(c). Protective orders must be decided on the basis of the particular facts before the court. Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). Here, the juvenile court denied the discovery request and granted the protective order because it found that the information sought through discovery would be fundamentally unfair and burdensome to the Tribe: [T]he tribal court has had little opportunity to evaluate the children, to develop a plan or to have much contact with the families involved. And so, to put the burden on them [sic] to establish a plan that would be better than the plan established by the state court would disadvantage them [sic] every time. *1260 We agree with the trial court's analysis. Additionally, we agree with the Tribe's argument that the discovery request here would interfere with tribal sovereignty. See generally Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) (when Congress has wished states to exercise jurisdiction over Indian tribes it has expressly granted that jurisdiction). Our review of the interrogatories and request for production of documents convinces us that the GAL attempted to obtain information regarding the ultimate disposition of the proceedings by the Tribal Court. This discovery request is analogous to a discovery request attempting to obtain information on how the juvenile court would have resolved these issues. Just as such a request would have been improper to seek from the juvenile court, the GAL's discovery request infringed on the sovereignty of the Tribe to determine the outcome of the proceedings. Indeed, as we have stated earlier, it is not the juvenile court's job under the good cause exception of the ICWA to resolve custody and placement issues, but to determine which court has jurisdiction to resolve these issues. Thus, we conclude the trial court properly exercised its discretion in granting a protective order in this case. III. Juvenile Court's Limitation of the Record on Appeal The GAL also argues that the juvenile court abused its discretion by granting the Tribe's motion to narrow the record on appeal which the GAL had designated pursuant to C.A.R. 10(a). We conclude that the juvenile court was not the proper forum for resolution of this issue, but that any error arising from the limitation it imposed is harmless error. See C.R.C.P. 61. The purpose of C.A.R. 10 is to ensure that the appellate court will be given sufficient information to arrive at a just and reasoned decision. The record need not be all-inclusive. City of Aurora v. Webb, 41 Colo.App. 11, 585 P.2d 288 (1978). C.A.R. 10(a)(1) designates certain documents which must be included in the record on appeal, "together with any other documents which by designation of either party or by stipulation are directed to be included...." Thus, an appellant has the right to designate whatever documents he or she believes pertinent to the appeal to be included in the record on appeal. Further, C.A.R. 10(e) provides certain procedures for correction or modification of the record. Thus, disputes concerning whether the record truly discloses what occurred in the trial court, omissions, or misstatements may be corrected by the trial court. Significantly, however, "all other questions as to the form and content of the record shall be presented to the appellate court." C.A.R. 10(e). Here, the GAL submitted a designation of record requesting "all papers, documents, motions, reports, court orders, and records regarding Case No. 90 JN 453, which is provided by Rule 10 of the Colorado Appellate Rules" and transcripts from certain hearings. The Tribe sought to exclude from the record on appeal documents which it did not believe related to the issues on appeal, namely, all documents not related to whether the juvenile court had properly transferred jurisdiction to the Tribe and whether the juvenile court had correctly denied the GAL's discovery requests. It did not seek to exclude portions of the record based upon omissions, misstatements, or the truth of what occurred in the trial court. A motions panel of our court remanded the objection to the juvenile court. Granting the Tribe's motion, the juvenile court limited the record to only those records and transcripts relevant to these issues. Under the circumstances presented, we conclude that the procedure followed here resulted only in harmless error. C.A.R. 10(e) provides that, except for disputes concerning the truth of what occurred in the trial court, omissions, or misstatements, all other questions regarding the form and content of the record "shall be presented to the appellate court." In light of this language, we conclude that, rather than remanding to the juvenile court, we should *1261 have reviewed the record pursuant to the Tribe's motion to limit the record. Nevertheless, the record designated on appeal has afforded us full and complete opportunity to consider the other issues the GAL has raised on appeal, the propriety of transfer of jurisdiction to the Tribe, and whether the juvenile court properly granted the Tribe's motion for protective order limiting discovery. Thus, we have been able to determine these issues with all relevant documents and transcripts at our disposal and supplementation of the record at this time to include additional documents from an earlier point in this litigation would serve no useful purpose. Accordingly, any error arising from our improperly having the juvenile court address the matter was harmless. IV. Refusal to Hold a Permanency Planning Hearing Finally, the GAL argues that the juvenile court improperly denied her motion to conduct a family interactional evaluation and hold a permanency planning hearing. We disagree. After an appeal of a final judgment has been perfected, the trial court is without jurisdiction to entertain any motion or any order affecting the judgment. People v. District Court, 638 P.2d 65 (Colo.1981). Here, the juvenile court denied the GAL's motions because it did not want to take "further action which would impact the finality of that [transfer of jurisdiction] decision and, possibly the decision of the Court of Appeals." Such ruling was proper. Furthermore, if the juvenile court had conducted a permanency planning hearing during the appeal, that hearing could have interfered with an issue on appeal: whether good cause existed to retain jurisdiction. See In re Robert T., supra (timely request to transfer jurisdiction should precede the permanency planning hearing). Judgment affirmed. CRISWELL and DAVIDSON, JJ., concur.

914 F.2d 1375 Roberto Antonio AGUILERA-COTA, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 88-7389. United States Court of Appeals,Ninth Circuit. Submitted Oct. 30, 1989.Decided Sept. 21, 1990. Rosemary J. Esparza, Los Angeles, Cal., for petitioner. Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Michael C. Johnson, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent. Petition for Review of an Order By the Board of Immigration Appeals. Before NORRIS, REINHARDT and TROTT, Circuit Judges. REINHARDT, Circuit Judge: 1 Roberto Antonio Aguilera-Cota petitions for review of the decision of the Board of Immigration Appeals (the "BIA") holding him ineligible for asylum. We grant the petition for review, reverse the BIA's decision and remand so that the Attorney General may exercise his discretion under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1990) (the "Act"). FACTS 2 Roberto Antonio Aguilera-Cota fled El Salvador in March of 1984. Before he fled the country, Aguilera worked for the Central Board of Elections during the 1983-1984 presidential elections. As a government employee, he had been issued a government identification card. Although he was politically neutral, he did not feel safe working for the government. In early March, Aguilera received a threatening letter with his name on it. The handwritten, anonymous note was left under his door at home, and it warned him to quit his job or pay the consequences. Aguilera destroyed the note. Several days later, an unidentified man came to his house looking for him. The man questioned his sister concerning Aguilera's whereabouts and his job with the government. He told her he was going to return. Aguilera, fearing for his life, fled El Salvador a few days later, and on March 18, 1984, entered the United States. Aguilera's cousin had been killed by gunshots around the time that Archbishop Romero was assassinated, and his niece had been wounded by bullets when the guerrillas and the military engaged in combat in front of his home. Before he entered government service, Aguilera's house had been ransacked by the military at one o'clock in the morning, and he had twice been forced off buses and interrogated and detained by the army. STANDARD OF REVIEW 3 We review the BIA's factual findings under the "substantial evidence" standard. Rivas v. INS, 899 F.2d 864, 866 (9th Cir.1990) (citing Dias-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986)). "Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo." Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988). DISCUSSION 4 Under Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), an alien qualifies for refugee status and is eligible for asylum if he can demonstrate a well-founded fear of persecution. The "well-founded fear" standard has both an objective and subjective component. The objective component " 'requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution.' " Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (quoting Rebollo-Jovel v. INS, 794 F.2d 441, 443 (9th Cir.1986)). "That the objective facts are established through credible and persuasive testimony of the applicant does not make those fears less objective." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984). The subjective component requires that the applicant have a genuine concern that he will be persecuted. Id. 5 It is not seriously contested that the petitioner has a subjective fear of persecution. However, here, as in so many similar asylum cases, the principal question we must confront is whether that subjective fear has a sufficient objective basis. To the extent that any question exists with respect to the genuineness of petitioner's fear, it is answered by our decision regarding the objective component. 6 In Cardoza-Fonseca, 767 F.2d at 1453, aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434, we held that "asylum applicants must present 'specific facts' through objective evidence to prove either past persecution or 'good reason' to fear future persecution."1 Documentary evidence establishing past persecution or threat of future persecution is usually sufficient to satisfy the objective component of the well-founded fear standard. Id. at 1453. But we have also recognized that refugees frequently do not possess documentary evidence regarding such events. "Authentic refugees rarely are able to offer direct corroboration of specific threats." Bolanos-Hernandez, 767 F.2d at 1285. Where the evidence is not available, the applicant's testimony will suffice if it is credible, persuasive, and specific. "If the alien's own testimony about a threat, when unrefuted and credible, were insufficient to establish the fact that the threat was made, it would be 'close to impossible for [any political refugee] to make out a case for [asylum.]' " Id. (quoting McMullen v. INS, 658 F.2d 1312, 1319 (9th Cir.1981)). 7 Aguilera's testimony reveals that his fear of persecution was based primarily on two closely related events: In March 1984, while working for the Central Board of Elections, he received a threatening note. The typed anonymous note warned him to quit his job or pay the consequences. Several days later, a stranger came to his house looking for him. The stranger asked his sister many questions about him, including a number of questions relating to his employment with the government, and told her that he was going to return. Aguilera fled El Salvador several days later.2 8 The BIA and the Immigration Judge (the "IJ") committed a number of legal errors in reaching the conclusion that Aguilera did not have a well-founded fear of persecution. 9 First, the BIA and the IJ failed to recognize that Aguilera fell within the definition of refugee because of his imputed "political opinion." Refugees are persons who flee their native land because of "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A) (1990). Even though Aguilera did not express a "political opinion" in the typical fashion, he fits within the statutory definition of that term under the doctrine of imputed political opinion. Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987). The threats were based on his employment and presumed support of the government. The anonymous note warned him to quit his government job or pay the consequences. In short, he was specifically threatened because of his perceived adherence to the government's cause. 10 As we have previously held, "In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of a political opinion, one must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the person guilty of a political opinion, then the person is at risk." Id. Thus, it is not crucial whether the individual actually espoused the views of the government or whether he was a high level or low level employee; what is determinative is what the persecutors thought. See also Rivas, 899 F.2d at 867 ("An alien makes out a case of likelihood of persecution on the basis of imputed political belief if [he] can establish that [his] alleged persecutor is likely to accuse [him] falsely of holding certain political beliefs or engaging in certain political acts and that [his] persecutor is likely to harm [him] on the basis of that accusation.") In this case, the undisputed evidence is that Aguilera's status as a government employee caused the opponents of the government to classify him as a person "guilty" of a political opinion. In the conditions of civil unrest which persist in El Salvador, Aguilera and others similarly situated are not always given the opportunity to clarify such misunderstandings before termination with prejudice occurs.3 11 The second significant legal error was the use by the BIA and the IJ of an improper standard in evaluating Aguilera's testimony. As a result, they failed to give the proper weight to testimony essential to his case.4 A review of the IJ's decision reveals that in assessing whether Aguilera met the objective component of the well-founded fear test, the IJ imposed a far more stringent burden on petitioner than we deemed permissible in Cardoza-Fonseca and Bolanos-Hernandez. This error materially affected the outcome of the proceedings. 12 It is clear that Aguilera's testimony concerning the threatening note and the visit by a stranger shortly thereafter constitutes "specific evidence" sufficient to "support a reasonable fear that the petitioner faces persecution." Rodriguez-Rivera, 848 F.2d at 1002. The IJ, however, did not believe that the note should be accorded much weight because the petitioner did not know who wrote it and because he did not retain it. Aguilera testified that the note was not signed and that he destroyed it after reading it. There is nothing novel about the concept that persecutors cannot be expected to conform to arbitrary evidentiary rules established by the Immigration and Naturalization Service; neither Salvadoran leftists nor Middle Eastern terrorists, such as members of the PLO or the Hezbollah, have been given adequate notice that our government expects them to sign their names and reveal their individual identities when they deliver threatening messages. We have previously tried to make it clear that asylum applicants are not required to produce documentary evidence of events such as those involved here. As we have said, "Persecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution." Bolanos-Hernandez, 767 F.2d at 1285; see also Zavala-Bonilla v. INS, 730 F.2d 562, 565 (9th Cir.1984) (the petitioner "could hardly ask the authorities in El Salvador to certify that she would be persecuted should she return"). 13 Nor does Aguilera's inability to identify the precise source of the threat render his fear of persecution less justifiable; in fact, an anonymous note may cause even greater anxiety than a signed one, since in the case of an anonymous threat one cannot identify the potential source of harm and may legitimately assume, at least in a violent and chaotic society, that the party making the threat has the ability to carry it out. Moreover, the fact that the petitioner did not possess the note for the IJ to read was irrelevant. As we have noted, "refugees sometimes are in no position to gather documentary evidence establishing specific or individual persecution or a threat of persecution." Cardoza-Fonseca, 767 F.2d at 1453. The last thing a victim may want to do is to carry around a threatening note with him. Doing so could cause extended detention, questioning or even torture or death, whichever side happened by chance to stop and search him. When the correct legal standard is applied, it is clear that Aguilera's testimony concerning the note strongly supports his objective fear of persecution. 14 With respect to the visit by the stranger to petitioner's house, it is equally clear that the IJ committed a serious error when he failed to accord sufficient weight to Aguilera's testimony. In discounting the importance of the interrogation that occurred, the IJ stressed that the stranger never fulfilled his promise of returning to petitioner's home after his initial visit. However, this fact is obviously of no importance. Petitioner left the country in fear for his life a few days after the stranger's appearance at his home and his receipt of the threatening note. Thus, it is wholly without significance that the stranger did not return. There was clearly no need for him to do so. Aguilera heeded the warning in the note, left his government position after the stranger's first visit, and fled the country. Again, it was clear error for the IJ, and thus the BIA to discount this evidence for so arbitrary and illogical a reason. A decision based on reasoning that is patently erroneous cannot stand.5 15 The IJ also found that Aguilera was "not entirely credible" as a witness. We review credibility findings under a substantial evidence standard. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987). "Although an immigration judge's credibility findings are granted substantial deference by reviewing courts, a trier of fact who rejects a witness's positive testimony because in his or her judgment it lacks credibility should 'offer a specific, cogent reason for [his] disbelief.' " Id. (citations omitted). The IJ must not only articulate the basis for a negative credibility finding, but those reasons must be substantial and must bear a legitimate nexus to the finding. Thus, there must be a rational and supportable connection between the reasons cited and the conclusion that the petitioner is not credible. In cases of this nature, where the principal and frequently only source of evidence is the petitioner's testimony, it is particularly important that the credibility determination be based on appropriate factors. 16 The fact that an IJ considers a petitioner not to be credible constitutes the beginning not the end of our inquiry. As we have stated, "When the Immigration Judge provides specific reasons for questioning a witness's credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible." Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988). This is the case, for example, when the IJ makes an adverse credibility finding based on petitioner's "evasiveness." Turcios, 821 F.2d at 1400.6 We do not accept blindly an IJ's conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion, and determine whether the reasoning employed by the IJ is fatally flawed. It is not enough that the IJ has arrived at point B from point A, or that others might also; the question we must answer is: was it reasonable to do so? In Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986), for example, the IJ questioned the petitioner's credibility because of his failure to marry the mother of his children. We held that it was impermissible for the IJ to base his negative credibility finding on the petitioner's personal choices in this area. Id. "In short, the information relied upon by the IJ to question [the petitioner's] credibility reveals nothing about whether or not [the petitioner] is an honest individual, or whether or not he feared for his safety in [his native land]. The IJ had no legitimate, articulable basis to question [the petitioner's] credibility...." Id. at 1338 (citations omitted). 17 Here, the IJ questioned Aguilera's credibility because Aguilera's oral testimony included information not set forth in his asylum application. Aside from the IJ's complaint that Aguilera had no proof that the threatening note had been delivered, the only basis for the credibility determination was the IJ's observation that Aguilera had failed to list on his application the two collateral incidents involving his relatives. The IJ's finding--if indeed a statement that an individual is "not entirely credible" may be termed a finding--is not supported by substantial evidence. The requisite nexus is lacking. Aguilera's failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for a finding of a lack of credibility. In short, the basis for the IJ's finding does not meet the test of legitimacy. See id. 18 Forms are frequently filled out by poor, illiterate people who do not speak English and are unable to retain counsel. Under these circumstances, the IJs cannot expect the answers provided in the applications to be as comprehensive or as thorough as they would be if set forth in a legal brief. In Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986), we reversed the IJ's finding that the petitioner was not a credible witness. There the IJ had based his finding on inconsistencies in the record such as the date the petitioner joined a paramilitary group and the fact that he had listed two children on his asylum application when in fact he had four children. We reversed the IJ and the BIA, stating that such " 'trivial errors' do not constitute 'a valid ground upon which to base a finding that an asylum applicant is not credible.' " Id. (citation omitted). See also Vilorio-Lopez, 852 F.2d at 1142 (minor inconsistencies in the testimony of two individuals regarding the date of the incident, the length of time the men were sheltered from the death squad, and whether payment was made for their accommodation were not an adequate bases for an adverse credibility finding). If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding,7 a fortiori minor omissions cannot. 19 Clearly, Aguilera did not lie or misrepresent the facts on his asylum application. The IJ offered no explanation why Aguilera's failure to mention the two collateral incidents in his application made him "not entirely credible," since there were no contradictions between the information set forth in the application and his testimony. At the hearing, Aguilera testified that his cousin was killed by gunshots around the time that Archbishop Romero was killed, and that his niece was wounded by bullets when the guerrillas and the military engaged in combat in front of his home. While he did not specifically refer to these two incidents in his application, he did subsequently submit copies of his cousin's death certificate and a newspaper article describing the incident involving his niece to support his oral testimony. Nothing suggests that the petitioner changed his account of the events between the time he completed the asylum application and the time he gave his oral testimony. A failure to state each and every ground for a claim of political asylum at the time of the initial application should not prejudice that claim, and particularly not where the petitioner subsequently provides documentation to support his testimony. Thus, the IJ's finding that petitioner lacked credibility for this reason is wholly without merit, or, as Damaize-Job puts it, not "legitimate." 787 F.2d at 1338. 20 Moreover, on a matter as important as this, if an asylum applicant's plea is to be rejected and he is to be returned home--possibly to face renewed threats to his life--simply because an IJ doubts his credibility, the IJ must make a more explicit and direct finding that he is untruthful than was made here. The mere statement that a petitioner is "not entirely credible" is not enough. As we did in Turcios, "[w]e find that the statement of reasons given for rejecting [Aguilera's] detailed testimony inadequate and that substantial evidence does not support the adverse credibility finding." Turcios, 821 F.2d at 1399.8 21 Other than the minor omission and the other insignificant reasons given by the IJ, there is in the case before us "a 'total absence of contradictory evidence' in the record as a whole that potentially undermines [the petitioner's] credibility." Damaize-Job, 787 F.2d at 1338. Under these circumstances, we accept the testimony as true. We explained the reasons we do so in Damaize-Job, saying "[w]e presume that if the IJ had any additional reasons to doubt [the petitioner's] credibility, the IJ would have stated so in the decision below. Because the IJ expressed no further concerns, and the only explicitly articulated reasons rested on impermissible factors, then we conclude from the IJ's opinion that [the petitioner] was an otherwise credible witness." Id. (citation omitted). 22 It is clear from a reading of the IJ's opinion that wholly aside from the credibility question, he found Aguilera's testimony insufficient to establish eligibility for asylum. We discussed the IJ's reasons for reaching that conclusion earlier, and pointed out the legal errors on which the conclusion was premised.9 The evidence adduced by Aguilera, when properly credited and when viewed in light of the applicable legal principles, compels the opposite conclusion--namely, that Aguilera is eligible for asylum. We have previously held in other cases in which Salvadorans were subject to threats by extremists that evidence of the type adduced here is sufficient to establish a well-founded fear of persecution. In most of these cases, the evidence consisted solely of the petitioner's own testimony. In a number of the cases involving threats of violence to Salvadorans, we even held that the petitioner's testimony met the more stringent standard of clear probability of persecution,10 while a fortiori satisfying the well-founded fear of persecution standard. See, e.g., Canjura-Flores v. INS, 784 F.2d 885, 889-90 (9th Cir.1985) (efforts of the National Guard to locate the petitioner, combined with the death of an uncle, and prior participation in a leftist organization, were sufficient to establish a clear probability of persecution, and thus a fortiori a well-founded fear); Rivas, 899 F.2d at 873 (although the petitioner was politically neutral, she established a clear probability of persecution, and thus a fortiori a well-founded fear, because the government attributed the political opinions of guerrilla family members to her); Artiga Turcios v. INS, 829 F.2d 720, 724 (9th Cir.1987) (incidents involving guerrillas with threatening appearance, searching and asking for the petitioner by his military name, were sufficient to meet the clear probability of persecution standard, and thus a fortiori the well-founded fear standard); Turcios, 821 F.2d at 1403 (in spite of his political neutrality, the petitioner, arrested and tortured for conversing and associating with a known leftist, demonstrated a clear probability of persecution, and thus a fortiori a well-founded fear of persecution); Bolanos-Hernandez, 767 F.2d at 1288 (the petitioner's determination to remain neutral, in spite of efforts of the guerrillas to recruit him and their threat to kill him if he did not join their forces, was sufficient to demonstrate a clear probability of persecution, and thus a fortiori a well-founded fear of persecution). For purposes of the instant petition for review, Aguilera was required to meet the lesser standard only. 23 We have reviewed the record in full, and there is no evidence which suggests that Aguilera does not qualify for refugee status. Or to put it conversely, the record conclusively demonstrates that Aguilera is eligible for asylum relief. As in Blanco-Comarribas v. INS, 830 F.2d 1039, 1043 (9th Cir.1987), "We find, based on the record in this case, that [the petitioner] should have been granted refugee status." Under such circumstances, all that remains is for us to "remand [the petitioner's] claim to the Attorney General so that he may exercise his discretion under section 208(a) of the Act." Id. When a refugee has established a well-founded fear of persecution, the appropriate remedy is a reversal of the BIA's decision regarding eligibility for asylum and a remand to the Attorney General so that he may determine whether to grant that relief. See also Canjura-Flores, 784 F.2d at 890 ("Accordingly, we remand [the petitioner's] asylum claim to the Attorney General so that he may exercise his discretion."); Rivas, 899 F.2d at 873 (same); Artiga Turcios, 829 F.2d at 724 (same); Turcios, 821 F.2d at 1403 (same); Bolanos-Hernandez, 767 F.2d at 1288 ("Because the Board erroneously determined that [the petitioner] was not eligible for asylum, the Attorney General has not had the opportunity to exercise his discretion in determining whether to grant this relief. We remand so that the Attorney General may now do so in accordance with the factors enumerated in 8 C.F.R. Sec. 208.8 (1983)."). 24 Here, as in Bolanos-Hernandez, 767 F.2d at 1288, "When the correct legal standards are applied, it is clear that the decision to deport [the petitioner] is not supported by substantial evidence...." Because the BIA's decision is not supported by substantial evidence and because, when his testimony is credited, Aguilera has conclusively demonstrated a well-founded fear of persecution, we reverse and remand for the Attorney General's exercise of his discretion under section 208(a) of the Act. 25 REVERSED AND REMANDED. TROTT, Circuit Judge, dissenting: 26 8 U.S.C. Sec. 1158(a) provides that the Attorney General may in his discretion grant asylum to an alien who qualifies as a "refugee" within the meaning of 8 U.S.C. Sec. 1101(a)(42)(A) (1990). Section 1101(a)(42)(A) defines a "refugee" as, in relevant part, an alien "who is unable or unwilling to return to" his country of nationality "because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion...." To meet this standard, Aguilera-Cota must show his fear of persecution is "both subjectively genuine and objectively reasonable." Blanco-Comarribas, 830 F.2d 1039, 1042 (9th Cir.1987) (citing Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir.1986)). 27 Substantial evidence supports the Board's finding that Aguilera-Cota failed to establish a well-founded fear of persecution. Single episodes of the ransacking of his house by the military, his receipt of a threatening anonymous note instructing him to resign from his temporary low-level job with the Salvadoran Board of Elections, and an inquiry made at his home regarding his job by a stranger; two episodes of his nearly being drafted by the Salvadoran military; and violence against his relatives unlinked to any danger to himself (all occurring more than five years ago) do not establish an objectively reasonable basis for fear of persecution. Aguilera-Cota has not shown that his "predicament is appreciably different from the dangers faced by all his countrymen." Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1394 (9th Cir.1985). Evidence of generalized violence in a country by itself is insufficient to support a claim for "refugee" status. See, inter alia, Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987); Rebollo-Jovel v. INS, 794 F.2d 441, 448 (9th Cir.1986), Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984). A national draft does not constitute persecution. Rodriquez-Rivera v. INS, 848 F.2d 998, 1005 (9th Cir.1988); Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986) (per curiam). Aguilera-Cota has not shown persecution on account of his political neutrality as a form of political opinion. See Rodriguez-Rivera, 848 F.2d at 1005. Similarly, he has not shown persecution of Salvadorans who, like him, worked for the Board of Elections.1 Further, evidence in the record suggests he is motivated by a desire to avoid the draft, not a genuine fear of persecution. 28 Moreover, the Immigration Judge made a specific adverse finding as to Aguilera-Cota's credibility, finding that "as a witness, [he] is not entirely credible." This finding extends both to whether his "fear" was genuine as well as to whether it was objectively reasonable. The majority opinion sweeps this finding away, paying only lip service to the requirement that we grant substantial deference to a trier of fact who rejects a witness's positive testimony because it lacks credibility. 29 In his written opinion of June 27, 1986, the Immigration Judge said the following: 30 Finally, this so-called note that the respondent allegedly received while he was working for the government is not a basis for a well-founded fear of persecution. First of all, it is difficult to believe why anyone would be interested in a low-level employee of the El Salvadoran government and would be interested in serving him with any note to quit his employment. Respondent, of course, has no idea who slipped the note under the door. The note was never shown to anyone else. We only have the respondent's testimony that he did in fact receive a note. Respondent as a witness is not entirely credible. His testimony in the hearing varies from the information submitted on the application for asylum. He mentions incidents in his testimony that are not brought out or even mentioned in the application for asylum.... The man that came to his home looking for him in his absence (almost always it seems that these things happen in respondent's absence ) does not provide us with sufficient information to determine who was looking for him or why. This so-called stranger apparently never returned to his home because his family continued [sic] to reside in the same home today. It is difficult for me to see after a period of more than two years why respondent would have any fear if he were to return to El Salvador today. (Emphasis added) 31 What more was the Immigration Judge to do? He cited prior inconsistent statements, reasons to believe aspects of Aguilera-Cota's testimony were made up, apparently phantom strangers and disappearing bearers of notes, and claims that on their face are hard to swallow. Plus, an alternative explanation for his flight appears on the record: he wishes to avoid military duty. In my view, the majority opinion inappropriately substitutes its view of the witness's credibility for that of the Immigration Judge, and it does so, with all respect, in disregard of basic principles of standard of review jurisprudence. In Blanco-Comarribas, the immigration judge stated: "I have observed [the respondent's] physical demeanor on the witness stand, and it appears to be candid, credible and sincere." 830 F.2d at 1042. That was all it took to establish the requisite subjective fear. Here, the immigration judge explained his view of the adverse credibility of the petitioner, but we relegate his observations and findings to the trashpile, finding diaphanous excuses for everything. 32 I would affirm the decision of the Board of Immigration Appeals. 1 To the extent that the Supreme Court declined "to set forth a detailed description of how the 'well-founded fear' test should be applied," 480 U.S. at 448, 107 S.Ct. at 1221, our opinion on this issue continues to be controlling law in this circuit 2 Prior to these incidents, the petitioner had experienced other episodes that caused him concern. Before he entered government service, his home was ransacked by the military at one o'clock in the morning. They searched for weapons, subversive flyers, and propaganda materials throughout the house. Aguilera was not at home during the raid. Thus, Aguilera, in addition to being a target of persecution by the government's opponents, may also have been a subject of harrassment by the government itself. Aguilera also mentions two other incidents in which he was forced off buses and interrogated and detained by the military, but we do not consider them particularly relevant to his claim for asylum. A reasonable interpretation of the latter two incidents would suggest only that Aguilera might, if his luck ran out, be pressed into military service some day 3 Moreover, a strong case can be made that persecution based on status as a government employee is covered by another phrase in the statute as well. Although the association or membership clause refers specifically to social groups, the consequences of affiliating oneself with an employer that is anathema, from a social or political standpoint, to armed political rebels would seem clearly to constitute the type of danger contemplated under the refugee provision. See 8 U.S.C. Sec. 1101(a)(42)(A) (1990) 4 Because the BIA affirmed the determination of the IJ with only a conclusory discussion of the legal issues, we assume it generally agreed with the IJ's discussion of them. Accordingly, we focus on the IJ's decision 5 The IJ also erred by improperly discounting collateral evidence which was clearly relevant to Aguilera's application. The IJ found it "difficult to understand" how the death of Aguilera's cousin, who was merely one of "a number of people killed at the same time," and the injury of his niece could possibly affect Aguilera. In addition to the emotional and personal toll these incidents inflicted on the petitioner, the violence was critical background evidence of the general conditions in his country. "[G]eneral information concerning oppressive conditions is relevant to support specific information relating to an individual's well-founded fear of persecution." Zavala-Bonilla, 730 F.2d at 564; see also Bolanos-Hernandez, 767 F.2d at 1285 ("It should be obvious that the significance of a specific threat to an individual's life or freedom is not lessened by the fact that the individual resided in a country where the lives and freedom of a large number of persons are threatened. If anything ... that fact may make the threat more serious or credible."). The evidence presented was crucial in forming a complete picture of the conditions and the fear under which Aguilera lived in El Salvador 6 Whether a witness is evasive can be determined objectively from an examination of the record. Demeanor evidence may present a somewhat different problem. We need not consider here, however, how we review an IJ's determination regarding a petitioner's demeanor. In this case, neither the IJ nor the BIA relied on any observations regarding Aguilera's demeanor 7 We have previously held that a petitioner's admission that he lied to the INS about his citizenship does not support a negative credibility finding. Turcios, 821 F.2d at 1400-01. We require IJs to evaluate such statements in light of all the circumstances of the case 8 The government contends that the petitioner failed to raise the credibility issue before the BIA and thereby waived that issue. We disagree. The petitioner's challenge to the IJ's conclusion that his testimony failed to carry the burden of proof is sufficient to comprehend the credibility component of that finding. Moreover, since petitioner's application was supported almost exclusively by his own testimony, there would obviously be no purpose at all to an appeal if it did not include a challenge to the credibility determination. In any event, the parties are in agreement that the BIA adopted the IJ's finding that the petitioner was "not entirely credible." 9 As noted supra, the BIA's opinion appears to accept generally the IJ's legal and factual analyses, and neither party suggests otherwise. We also note that the BIA ruled against petitioner after a plenary review of the record and the issues, having first decided to deny the INS' motion for summary affirmance 10 In Cardoza-Fonseca, 480 U.S. at 441, 107 S.Ct. at 1218, the Supreme Court clearly delineated the distinction between the two standards. In order to obtain withholding of deportation under section 243(h), the individual must show that his life "would be threatened" if deported, a more stringent standard than under section 208(a). The latter section requires only a showing of well-founded fear of persecution. We have held that "an alien who has met the clear-probability standard has, a fortiori, demonstrated a well-founded fear of persecution." Bolanos-Hernandez, 767 F.2d at 1288 1 It is also noteworthy that the United States Department of State's Bureau of Human Rights and Humanitarian Affairs issued an advisory opinion to the effect that Aguilera-Cota failed to establish a well-founded fear of persecution in El Salvador

FILED Dec 20 2016, 6:55 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Samuel J. Beasley Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Timothy L. Hahn, December 20, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1603-CR-623 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Linda Ralu Wolf, Appellee-Plaintiff. Judge Trial Court Cause No. 18C03-1310-FB-40 Brown, Judge. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 1 of 28 [1] Timothy L. Hahn appeals his conviction for aggravated battery as a class B felony. Hahn raises three issues which we revise and restate as: I. Whether the trial court improperly denied his motion for discharge under Ind. Criminal Rule 4(B); II. Whether the trial court abused its discretion in denying Hahn’s motion to dismiss based on Indiana’s successive prosecution statute; and III. Whether the trial court erred in refusing Hahn’s proposed jury instructions regarding the definitions of accomplice liability and attempt. We affirm. Facts and Procedural History [2] On August 30, 2013, Kaley Mooney and her boyfriend, Sam Bright, were at Gene’s Bar in Muncie, Indiana. Doug and Sheila Shaw lived across a parking lot that was adjacent to the bar and were outside with Sheila’s sister, Brandy, and Brandy’s husband, Joshua Ireland. [3] As Mooney and Bright were leaving the bar, Hahn pulled his car into a parking space and Mooney and Bright and the Shaws heard arguing coming from the parked car. Hahn “was hitting on the girl” and “[p]ulling her hair and stuff in the front seat.” Transcript at 287. Hahn and the woman in the passenger seat, Renee Ruble, 1 exited the car. While Hahn and Ruble were arguing, the Shaws 1 Sheila testified that Renee’s last name was Rumble. At other points in the record, Renee’s last name is spelled Ruble. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 2 of 28  “hollered over,” informing Hahn not to put his hands on the woman. Id. at 120. Hahn cursed and yelled, and he and Ruble told the Shaws that they needed to mind their own business. [4] Sheila walked off the porch with nothing in her hands and argued with Ruble. Doug walked off the porch and approached the scene without a weapon. Ruble swung and hit Sheila, knocking her to the ground. Hahn entered onto the Shaws’ yard and started swinging a woman’s purse at Doug. [5] After the purse straps broke, Hahn told Doug “I’ve got something for you,” walked over to the car, retrieved a baseball bat, returned to the scene, started swinging it at Doug, and made contact. Id. at 311. Mooney called 911 at 11:32 p.m. Hahn swung the bat “probably a good ten (10) times” and made contact with Doug “probably a good four (4) or five (5) times for sure.” Id. at 86. Doug was defending himself and had his arms up a few times trying to block himself from being hit by the bat. He turned and lifted his leg, but eventually fell back. Sheila yelled at Hahn to stop. Doug suffered a gash on his left arm, a cut by his left eye, bruising, and fractures in his arm and leg. Hahn and Ruble entered the car and “took off.” Id. at 88. [6] Muncie Police Officer Gregory Skaggs received the dispatch regarding a fight in progress at the bar as well as a description of Hahn’s vehicle. Officer Skaggs observed a vehicle matching that description and followed Hahn’s vehicle for “[a]t the most maybe a couple of minutes.” Id. at 159. Officer Skaggs then initiated his emergency lights and siren, Hahn’s vehicle stopped, Officer Skaggs Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 3 of 28  stopped, and then Hahn’s vehicle started going again and made two different turns before eventually stopping again. [7] Officer Skaggs waited for backup to arrive given the nature of the call, and Officer Mike Nickens arrived. Hahn was angry and verbally abusive toward the officers and told them that they beat him and that they planted stuff on him just to take him to jail. The officers arrested him for battery and failing to stop. [8] On September 4, 2013, the State charged Hahn with battery by means of a deadly weapon as a class C felony under cause number 18C03-1309-FC-27 (“Cause No. 27”). On September 9, 2013, the court held an initial hearing, Hahn requested a speedy trial and a public defender, and the court scheduled a jury trial for November 6, 2013. On September 19, 2013, Hahn filed a motion to reduce his $20,000 bond, which the court later denied. On October 2, 2013, Hahn posted bond. On October 7, 2013, the court held a hearing at which Hahn’s counsel appeared, and the jury trial date was confirmed. On October 9, 2013, Hahn’s bonding company moved to void his bond, and the court granted the motion the same day. On October 17, Hahn was erroneously released from jail and was returned to jail on October 29, 2013. [9] On October 29, 2013, the trial court granted the State’s motion to dismiss Cause No. 27, and, on that same day, the State charged Hahn under cause number 18C03-1310-FB-40 (“Cause No. 40”), the cause from which this appeal arises, with Count I, aggravated battery as a class B felony, Count II, resisting law Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 4 of 28  enforcement as a class D felony, and Count III, operating a vehicle while intoxicated endangering a person as a class A misdemeanor. [10] On November 14, 2013, an initial hearing was held at which Hahn appeared without counsel and stated that these charges and the evidence to support them were submitted in August when he was originally charged with a class C felony, that at that time he invoked his right to a fast and speedy trial, that he was scheduled for jury trial on November 6th, and that he was very confused. After some discussion, the court stated that Cause No. 27 was dismissed without prejudice, and after further discussion, the court appointed a public defender, entered a plea of not guilty on Hahn’s behalf, and scheduled an omnibus date of December 5, 2013. Hahn then asked “Is this in regards to a fast and speedy ma’am?” Id. at 8. The following exchange then occurred: THE COURT: Oh it is. You are well within seventy (70) days by making that request today. We anticipated that you would make that request sir. [Hahn]: Thank you. THE COURT: Your jury trial is set for January 6, 2014. So that’s within the seventy (70) days of your request today. Id. An entry in the chronological case summary dated November 17, 2013, states in part: “Cause set for speedy jury trial on January 6, 2014, at 9:00 a.m. at request of Defendant.” Appellant’s Appendix II at 9. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 5 of 28 [11] On November 22, 2013, a public defender filed an appearance for Hahn. On December 2, 2013, Hahn filed a Motion for Continuing Objection, signed by himself, with respect to the dismissal of Cause No. 27 and the refiling of the information in Cause No. 40. The same day, the court entered an order striking Hahn’s pro se filing pursuant to Ind. Trial Rule 11 because Hahn was represented by counsel at the time. [12] On December 5, 2013, Hahn’s counsel filed a motion for continuance of a pretrial conference scheduled for that day and a motion to withdraw. The court granted the motion to withdraw. On December 10, 2013, another public defender filed an appearance for Hahn and filed a motion for a continuance alleging that he needed additional time to prepare for a pretrial conference. The court granted the motion to continue and scheduled a pretrial conference for December 19, 2013. [13] On December 19, 2013, the court held a pretrial conference in Cause No. 40 at which Hahn’s counsel stated that he would come in and listen to recordings of certain hearings, and that he was not going to compromise Hahn’s right to have his trial on January 6, 2014. The court confirmed the January 6 trial date. [14] On December 30, 2013, the State filed a motion to continue the jury trial under Cause No. 40, indicated that Hahn had requested a fast and speedy trial, and requested that Hahn be released from incarceration. That same day, Hahn filed a motion to dismiss pursuant to Criminal Rule 4(B) asserting that he had been “held on a probation violation allegation in Cause No. 18C02-0812-FA-09 Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 6 of 28  based in large part on the allegations in [Cause No. 27], which are the same allegations giving rise to the current charge.” Id. at 56. He also asserted that he “was apparently mistakenly released from custody by the Delaware County Jail from approximately October 17, 2013 until October 29, 2013.” Id. [15] At a hearing held that same day, Hahn’s counsel argued that Hahn asked for a speedy trial in August. The court granted the State’s motion to continue, ordered Hahn’s immediate release, scheduled a jury trial for April 28, 2014, and scheduled a hearing regarding Hahn’s motion to dismiss pursuant to Criminal Rule 4(B). [16] On January 9, 2014, the State filed a response to Hahn’s motion to dismiss, and on February 20, 2014, the court held a hearing on the motion. Hahn’s counsel asserted that Hahn requested a speedy trial on September 9, 2013, and that he was released on October 17, 2013 and was apprehended on October 29, 2013. On March 21, 2014, the court issued an order denying Hahn’s motion to dismiss, stating in part: 8. An initial hearing was held on [Cause No. 40] on November 14, 2013 in which [Hahn] again requested a fast and speedy trial. The Court set the jury trial for January 6, 2014 (fifty-four (54) days after he made the request in Cause No. [40]). 9. [Hahn] was released from incarceration on December 30, 2013. 10. Criminal Rule 4(B) applies only to an accused who is held in jail. Goudy v. State, 689 N.E.2d 686 (Ind. 1997)[, reh’g denied]. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 7 of 28  11. In summary, [Hahn] was released from the Delaware County Jail on October 17, 2013. And then [Hahn] was released within seventy (70) days of his request on November 14, 2013, said release from incarceration occurred on December 30, 2013. Therefore, [Hahn] has no recourse under Criminal Rule 4(B) because he is not in jail. Id. at 77. [17] On September 30, 2015, the State filed a motion to dismiss Count III, operating a vehicle while intoxicated endangering a person as a class A misdemeanor, and alleged that there was a duplicate filing under cause number 18H01-1402- CM-341 (“Cause No. 341”) and that Hahn had pled guilty under that cause number on or about September 23, 2014. The court granted the State’s motion to dismiss Count III. [18] On January 11, 2016, prior to the commencement of a jury trial in Cause No. 40, Hahn filed a motion to dismiss Counts I and II in that cause and argued that “[b]ecause the charged offenses are based on the same conduct and/or on part of a single scheme or plan as the offenses previously charged in [Cause No. 341], the offenses alleged in the Information in this cause could have been – and, therefore, should have been – joined with the offenses charged in [Cause No. 341] under Ind. Code 35-34-1-9,” and that prosecution in this case was barred by Ind. Code § 35-41-4-4. Id. at 151. The prosecutor argued: [S]imply because the OWI was separated out and went to City Court, doesn’t mean the other two (2) cases, other two (2) charges can’t continue. In fact, the resisting law enforcement with a vehicle and aggravated battery could not have been Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 8 of 28  charged in City Court very simply. They are felonies; the OWI was a misdemeanor. And that was the only thing charged in the City Court case, was the OWI. Transcript at 36-37. The prosecutor also argued that the aggravated battery and fleeing from the scene were distinct from operating while intoxicated. The court denied Hahn’s motion on the basis that Counts I and II were distinct. [19] At the jury trial, Mooney, Bright, Officer Skaggs, Officer Nickens, Sheila, Doug, and others testified. After the State rested, Hahn testified that a group of people were sitting on the porch of the nearby house, that he and Ruble were not arguing, that Ruble exited the car and argued with a woman on the porch, and that he exited the car. He testified that he picked up Ruble’s purse which she had dropped when he heard a beer bottle break, and that, after Sheila and Ruble started fighting, Doug placed himself in between him and the women. He stated that he looked at Doug and said that he just wanted “to get [Ruble] off the ground and get in the bar,” and Doug said, “she’s getting what she’s getting,” that he tried to walk around Doug, Doug swung a first punch to his jaw, Hahn threw a punch striking Doug in the jaw, and Doug looked at him and said, “now you’re dead.” Id. at 431-432. Hahn then swung the purse at Doug so that he “could get [Ruble] up off the ground and get in the bar.” Id. at 433. He also testified that a second bottle was thrown from the porch as he was swinging the purse at Doug. He stated that he was scared because the bottle was thrown, people were coming off the porch, and his friend was on the ground with another woman. He also testified that Doug came after him after Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 9 of 28  he retrieved the bat and that Ireland remained on the porch and he thought the second bottle was thrown from the porch. [20] Jeffrey Lehman testified that he knew Hahn since childhood, that he was walking down the sidewalk that night and observed an argument between two groups, Ruble threw the first punch, 2 Sheila also hit Ruble, Hahn struck Doug with Ruble’s purse, the purse handles broke, a man threw a beer bottle toward Hahn, Hahn struck Doug a couple more times, and a man grabbed another full beer and threw it at Hahn again. Lehman testified that he went inside the bar, told the bartender what was happening, went back outside, saw Hahn in his car, Hahn told him to tell his sister what happened, and then Hahn left. [21] Hahn’s proposed final instruction No. 2 stated: A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same level or class as the crime attempted. Ind. Code Ann. § 35-41-5-1 (West) 2 Lehman testified: “So, [Ruble], I think it was [Ruble], I am not positive, I am pretty sure [Ruble] threw a punch.” Transcript at 504. On cross-examination, the prosecutor asked: “The female with the defendant, you said threw the first punch?” Id. at 518. Lehman answered affirmatively. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 10 of 28  Appellant’s Appendix III at 225. Hahn also offered proposed instruction No. 4 which stated: A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person: (1) has not been prosecuted for the offense; (2) has not been convicted of the offense; or (3) has been acquitted of the offense. Ind. Code Ann. § 35-41-2-4 (West) Id. at 227. [22] As to Hahn’s proposed instruction No. 2, Hahn’s counsel argued that Ireland committed a felony by throwing the bottle even if the bottle missed. The prosecutor argued that Ireland was not on trial, that attempt is not relevant with respect to someone who is not charged, and that if the instruction was given the State would have to prove only that Hahn attempted a crime of aggravated battery. The court found that the use of force instruction addressed the issue, that Hahn’s counsel could address his concerns through that instruction, and it denied Hahn’s proposed instruction No. 2. [23] With respect to Hahn’s proposed final instruction No. 4, his counsel argued that the Shaws and the Irelands acted in concert and that the jury needed to Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 11 of 28  understand that if a person is acting with the intent that a felony be committed by somebody else and they aid or induce or cause them to do that, that they can be held responsible. The prosecutor contended that it was not a proper instruction because it would be related to only the person being charged. The court denied proposed instruction No. 4 and stated that Hahn’s counsel could make his arguments relating to the use of force instruction. [24] The court gave Final Instruction No. 16 regarding self-defense which stated: It is an issue whether the Defendant acted in self-defense or the defense of another person. A person may use reasonable force against another person to protect himself from what the Defendant reasonably believes to be the imminent use of unlawful force. A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably believes that deadly force is necessary to prevent serious bodily injury to himself or to a third person, or to prevent the commission of a felony. However, a person may not use force if: He is committing a crime that is directly and immediately connected to this incident. He is escaping after the commission of a crime that is directly and immediately connected to this incident. He provokes a fight with another person with intent to cause bodily injury to that person. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 12 of 28  He has willingly entered into a fight with another person or started the fight, unless he withdraws from the fight and communicates to the other person his intent to withdraw and the other person nevertheless continues or threatens to continue the fight. The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense. Id. at 209. [25] The jury found Hahn guilty of aggravated battery as a class B felony and not guilty of resisting law enforcement as a class D felony. The court sentenced him to fifteen years to be served consecutive to the sentence in cause number 18C02-0812-FA-9. Discussion I. [26] The first issue is whether the trial court improperly denied Hahn’s motion for discharge under Ind. Criminal Rule 4(B). Hahn argues that his conviction for aggravated battery cannot stand because the court violated his right to a speedy trial pursuant to Criminal Rule 4(B). 3 He argues that his release due to a mistake of the State should, at most, toll the seventy-day period for as long as 3 Hahn also argues that his conviction for operating while intoxicated in Cause No. 341 cannot stand because the trial court violated his right to a speedy trial pursuant to Ind. Criminal Rule 4(B)(1). Hahn pled guilty in Cause No. 341 and this appeal relates to Cause No. 40. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 13 of 28  he was released, that he took no action inconsistent with his request for a speedy trial, and he did not waive, abandon, or acquiesce in a trial setting beyond the seventy-day limit established by his initial request. [27] The State argues that a defendant’s decision to demand a seventy-day deadline for trial should not be blindly presumed to remain his or her choice even when more complex charges or more severe consequences are at issue, and notes that Hahn did not object to the trial setting of January 6, 2014. The State asserts that the record reflects Hahn’s recognition that more serious charges had been filed and that, while his trial should not be unduly delayed, it would be better to begin it on January 6, 2014. It points out that Hahn was not a stranger to the criminal justice system, having been twice convicted of robbery during these proceedings, and it is not unreasonable to expect a defendant in Hahn’s position to articulate his wishes. The State also argues that reversal is not warranted even if Hahn’s statements at the November 14, 2013 hearing were construed as an objection and points to the motion for continuance filed by his counsel on December 10, 2013, and the December 19, 2013 hearing at which his counsel did not object or ask for discharge. [28] “The broad goal of Indiana’s Criminal Rule 4 is to provide functionality to a criminal defendant’s fundamental and constitutionally protected right to a speedy trial.” Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). “It places an affirmative duty on the State to bring the defendant to trial, but at the same time is not intended to be a mechanism for providing defendants a technical means to escape prosecution.” Id. The Indiana Supreme Court has noted that Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 14 of 28  “though Rule 4(B)’s intent is to effectuate the rights guaranteed by the Sixth Amendment to the U.S. Constitution and Article 1, Section 12 of the Indiana Constitution, we emphasize that reviewing Rule 4(B) challenges is separate and distinct from reviewing claimed violations of those constitutional provisions.” Id. [29] Ind. Criminal Rule 4(B)(1) provides, in pertinent part: If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. [30] “The purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in jail for more than 70 days after requesting an early trial.” Williams v. State, 631 N.E.2d 485, 486 (Ind. 1994), reh’g denied. “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for which he seeks a speedy trial . . . .” Cundiff v. State, 967 N.E.2d 1026, 1031 (Ind. 2012). [31] “The onus is on the State, not the defendant, to expedite prosecution.” Jackson v. State, 663 N.E.2d 766, 769 (Ind. 1996). A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Id. A movant for an early trial must maintain a position which is reasonably consistent with the request that he has made. Wilburn v. State, 442 N.E.2d 1098, 1103 (Ind. 1982). “[I]t is incumbent Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 15 of 28  upon defendant to object at the earliest opportunity when his trial date is scheduled beyond the time limits prescribed by Ind. R. Crim. P. 4(B)(1).” Smith v. State, 477 N.E.2d 857, 861-862 (Ind. 1985). “This requirement is enforced to enable the trial court to reset the trial date within the proper time period.” Dukes v. State, 661 N.E.2d 1263, 1266 (Ind. Ct. App. 1996). “A defendant who permits the court, without objection, to set a trial date outside the 70-day limit is considered to have waived any speedy trial request.” Stephenson v. State, 742 N.E.2d 463, 488 (Ind. 2001), cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002). [32] “[I]n cases where the issue is a question of law applied to undisputed facts, the standard of review—like for all questions of law—is de novo.” Austin, 997 N.E.2d at 1039. In those cases where a trial court makes a factual finding of congestion or emergency under Criminal Rule 4 based on disputed facts, the standard of review for appellate courts is the clearly erroneous standard. Id. at 1040. [33] In Cause No. 27, Hahn moved for a speedy trial at the initial hearing on September 9, 2013. Even assuming, without deciding, that Hahn’s September 9, 2013 motion in Cause No. 27 also applied to Cause No. 40, and not considering the time period between October 17, 2013 until October 29, 2013, when he was released from custody, we cannot say that his arguments warrant reversal. [34] Based upon Rule 4(B), he was to be brought to trial within seventy days of his September 9, 2013 motion or by November 18, 2013. At the November 14, Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 16 of 28 2013 hearing, Hahn indicated that he had previously invoked his right to a fast and speedy trial, but did not object to the trial court’s scheduling of the trial date for January 6, 2014, which was outside of the seventy-day time period. He asked whether the scheduling of an omnibus date on December 5, 2013, was “in regards to a fast and speedy,” the trial court stated, “[y]ou are well within seventy (70) days by making that request today,” and that it anticipated that he would make that request, and Hahn did not assert that he was not making a request for a speedy trial that day but rather merely stated, “[t]hank you.” Transcript at 11. We also observe that the trial court mentioned that the trial was scheduled for January 6, 2014, at the December 19, 2013 pretrial conference, and Hahn’s counsel did not object to the trial date. We conclude that he waived his speedy trial request. See Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997) (addressing defendant’s argument relating to Ind. Criminal Rule 4(B) and holding that “defendant waived his earlier speedy trial request by acquiescing in the setting of an omnibus date, and by necessary implication, a trial date, beyond the seventy day limit permitted by Criminal Rule 4(B)(1)”), reh’g denied; Wright v. State, 593 N.E.2d 1192, 1195 (Ind. 1992) (holding that “it was reasonable to assume that [the defendant] had abandoned his request for a speedy trial” where the defendant “waited nearly a month before filing an objection to the later trial date”), cert. denied, 506 U.S. 1001, 113 S. Ct. 605 (1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007); Smith, 477 N.E.2d at 862 (holding that “[i]nsofar as no timely objection was made by defendant to the trial date being scheduled beyond the seventy- day time limit, defendant’s request for an early trial date is deemed waived and Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 17 of 28  therefore defendant is not entitled to a discharge under Ind. R. Crim. P. 4(B)(1)”); Jacobs v. State, 454 N.E.2d 894, 898 (Ind. Ct. App. 1983) (holding that the assertion of a speedy trial violation was untimely when it was raised three days after the court rescheduled the trial date). [35] To the extent Hahn asserted a second motion for a speedy trial at the November 14, 2013 hearing, the Indiana Supreme Court has held that a second request for a speedy trial is an abandonment of the first request for a speedy trial. See Minneman v. State, 441 N.E.2d 673, 677 (Ind. 1982) (“When a defendant files a motion for early trial under Ind. R. Crim. P. 4(B), such filing constitutes an abandonment of previous motions for early trial filed by that defendant.”), cert. denied, 461 U.S. 933, 103 S. Ct. 2099 (1983); Mickens v. State, 439 N.E.2d 591, 595 (Ind. 1982) (observing that the defendant had filed multiple requests for a speedy trial and holding that the defendant abandoned his initial speedy trial motion by pursuing plea negotiations and by making a second motion rather than by seeking discharge on the basis of the initial motion); Rutledge v. State, 426 N.E.2d 638, 640 (Ind. 1981) (“Under the circumstances of this case then, when on January 17, 1979, appellant requested that he be tried within the next succeeding seventy-day period, rather than discharged upon the basis of his first motion, he is deemed to have abandoned that first motion.”); see also 16B INDIANA PRACTICE § 19.3 (“A motion for a continuance or a second request for an early trial would also be inconsistent with a prior request for an early trial and would therefore waive the right to be tried within seventy days of the earlier request.”) (footnotes omitted). To the extent Hahn asserted a second motion Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 18 of 28  for a speedy trial under Rule 4(B) at the November 14, 2013 hearing, he was to be brought to trial within seventy days of his motion or by January 27, 2014. [36] On December 30, 2013, the court ordered Hahn’s immediate release. Given his release prior to the expiration of the seventy-day period, we find that the objective of Ind. Criminal Rule 4(B) was satisfied and he was no longer entitled to the benefits of that Rule. See Williams, 631 N.E.2d at 487 (“Once released from custody, a defendant receives no further benefit from Crim. R. 4(B).”). Accordingly, the trial court did not err by denying Hahn’s motion for discharge under Ind. Criminal Rule 4(B). 4 II. [37] The next issue is whether the trial court abused its discretion in denying Hahn’s motion to dismiss based upon the successive prosecution statute. Hahn argues he was convicted of operating while intoxicated in Cause No. 341 for the same conduct that was charged in Count III of Cause No. 40 relating to the events that occurred on August 30, 2013. He asserts that the charges of aggravated battery, resisting law enforcement, and operating a vehicle while intoxicated in Cause No. 40 all occurred within a few minutes. [38] The State argues that this case is not within the scope of the successive prosecution statute because it did not file a new additional charge against Hahn, 4 Hahn mentions Ind. Criminal Rule 4(C), but does not develop an argument. Accordingly, this issue is waived. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 19 of 28  and that Hahn did not provide the trial court or this Court with a record of Cause No. 341. The State also argues that his argument fails even if the successive prosecution statute applies because his intoxicated driving as charged under Cause No. 341 was temporally distinct and involved different conduct and bore no necessary relationship to the conduct alleged in Counts I and II in Cause No. 40. [39] Because Hahn appeals the trial court’s denial of a motion to dismiss, we review the trial court’s decision for an abuse of discretion. Thompson v. State, 966 N.E.2d 112, 117 (Ind. Ct. App. 2012) (citing Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App. 2007)), trans. denied. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or when the court misinterprets the law. Id. Ind. Code § 35-34-1-8 governs motions to dismiss by a defendant and provides in part that “[t]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.” Ind. Code § 35-34-1-8(f). “Because the defendant has the burden of proof, the denial of his motion is a negative ruling, reversible only if the evidence is without conflict and leads inescapably to the conclusion that he is entitled to dismissal.” Gregory v. State, 596 N.E.2d 270, 271 (Ind. Ct. App. 1992), trans. denied. [40] Ind. Code § 35-41-4-4 is titled “When prosecution barred for different offense” and provides: (a) A prosecution is barred if all of the following exist: Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 20 of 28  (1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts. (2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter. (3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution. (b) A prosecution is not barred under this section if the offense on which it is based was not consummated when the trial under the former prosecution began. [41] The Indiana Supreme Court has held that the words “should have been charged” in Ind. Code § 35-41-4-4(a)(3) must be read in conjunction with Indiana’s joinder statute which provides in part: A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution. Ind. Code § 35-34-1-10(c). See Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002). The Court has also held that “[n]either 35-34-1-10(c) nor 35-41-4-4(a)(3) has been interpreted to automatically bar successive prosecutions for separate offenses which are committed at the same time or during the same general Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 21 of 28  criminal episode.” Seay v. State, 550 N.E.2d 1284, 1288 (Ind. 1990), reh’g denied. [42] Ind. Code § 35-34-1-9 governs joinder of offenses and provides in part: (a) Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses: (1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. [43] “Where the State chooses to bring multiple prosecutions for a series of acts constituting parts of a single criminal transaction, it does so at its own peril.” Williams, 762 N.E.2d at 1219. “To determine whether contemporaneous crimes are part of a single scheme or plan, we examine ‘whether they are connected by a distinctive nature, have a common modus operandi, and a common motive.’” Id. at 1220 (quoting Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct. App. 1995), reh’g denied, trans. denied (citations omitted)). [44] The parties agree that Count III, operating a vehicle while intoxicated endangering a person as a class A misdemeanor, in Cause No. 40 was based on the same general conduct, that being driving while intoxicated endangering a person on August 30, 2013, as the charge to which Hahn pled guilty in Cause Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 22 of 28  No. 341. See Appellant’s Brief at 30 (“[H]e was convicted of Operating While Intoxicated in [Cause No. 341] for the same conduct that was charged in Count 3 of [Cause No. 40] . . . .”); Appellee’s Brief at 24 (“The OWI charge in [Cause No. 341] was not new to Hahn’s case in [Cause No. 40]; the OWI charge in [Cause No. 341] was Count III of [Cause No. 40].”). However, the parties disagree as to what specific conduct was alleged in Count III in Cause No. 40 and the conduct to which Hahn pled guilty to in Cause No. 341, i.e., whether it was Hahn’s driving to the bar or driving away after the encounter with the Shaws. The State asserts that Hahn’s intoxicated operation of a vehicle was complete when he drove into the bar’s parking lot. Hahn asserts that the “operating and resisting charges were based upon the same conduct (driving a car away from Gene’s bar immediately following the incident), and, the State argued, were motivated by the incidents that had just happened at Gene’s,” yet Hahn does not cite to the record for the proposition that the charge in Cause No. 341 related to operating the vehicle after the incident. Appellant’s Brief at 31. [45] Hahn relies upon Williams v. State, 762 N.E.2d 1216 (Ind. 2002). In that case, an undercover detective encountered the defendant in the parking lot of an apartment complex on October 12, 1998, approached him, purchased a rock of crack cocaine, and then broadcast a description of the defendant. 762 N.E.2d at 1217. As he began to walk away from the undercover detective, the defendant saw several police cars coming toward him, ran toward a building about a hundred yards away, and locked himself in an apartment. Id. Officers Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 23 of 28  obtained the building manager’s consent to search the apartment where they found the defendant, arrested him for residential entry, and discovered two rocks of crack cocaine hidden in his sock. Id. at 1218. [46] The State charged the defendant with residential entry and possession of cocaine (the “Court 9 charges”), the defendant agreed to plead guilty to possession of cocaine as a class D felony and serve 915 days in jail, and the State agreed not to file “habitual or B felony” charges against him. Id. After that plea was negotiated on December 8th or 10th and before the conviction was entered on December 29, 1998, the State charged the defendant in a different room of the same court with dealing cocaine within 1,000 feet of a school as a class A felony and possession of cocaine within 1,000 feet of a school as a class B felony (the “Court 20 charges”), and these charges related to the defendant’s sale of drugs to the undercover detective on October 12th. Id. The defendant pled not guilty to the Court 20 charges, and the State added a charge that the defendant was an habitual offender. Id. The defendant moved to dismiss the Court 20 charges, and the court denied the motion. Id. [47] On appeal, the Indiana Supreme Court disagreed with the trial court’s finding that the defendant’s entry into a locked apartment after fleeing police was an intervening act sufficient enough for them to have two separate cases. Id. at 1220. The Court observed that after buying the cocaine, the undercover detective radioed his description and sent another officer “up there.” Id. During a pre-trial hearing, the defendant testified that when he turned around “and took a few steps” five or six police cars had arrived. Id. He ran and the Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 24 of 28  police pursued him into an unoccupied apartment. Id. The Court concluded that the facts show that the Court 9 and Court 20 charges were based on a series of acts so connected that they constituted parts of a single scheme or plan and should have been charged in a single prosecution. Id. [48] On one hand, if the conduct to which Hahn pled guilty in Cause No. 341 involved his driving away from the bar and fleeing the scene of the battery, then Williams could arguably be relied upon to conclude that Counts I and II should have been charged in Cause No. 341. On the other hand, if, as argued by the State, the conduct in Cause No. 341 involved driving to the bar and prior to any encounter with the Shaws, then we could not say that such an offense was connected with Counts I and II in Cause No. 40 by a distinctive nature, a single or common motive, or modus operandi. See Thompson v. State, 966 N.E.2d 112, 118-119 (Ind. Ct. App. 2012) (holding that the trial court properly denied the defendant’s motion to dismiss where the defendant’s prior conviction for driving while suspended had no apparent connection to the drug manufacturing and sales occurring in the house and was merely transportation), trans. denied. The record does not include a copy of the charging information or the guilty plea transcript from Cause No. 341 and does not indicate whether the operating while intoxicated charge in Cause No. 341 related to Hahn’s act of driving the vehicle to the bar or to his driving away following the incident with the Shaws. As Hahn does not demonstrate that Cause No. 341 related to operating a vehicle after the incident with the Shaws, he has not met his burden and we cannot say that Counts I and II in Cause No. 40 should have been charged in Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 25 of 28  Cause No. 341. As noted, Ind. Code § 35-34-1-8(f) provides that “[t]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.” Ind. Code § 35-34-1-8(f). Under these circumstances, we cannot say the trial court abused its discretion in denying Hahn’s motion to dismiss. III. [49] The next issue is whether the court abused its discretion in instructing the jury. Generally, “[t]he purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion. Id. at 1163-1164. To constitute an abuse of discretion, the instruction given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83 (2000). [50] Before a defendant is entitled to a reversal, he must affirmatively show that the erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d 859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind. Ct. App. 2005)), trans. denied. An error is to be disregarded as harmless unless it Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 26 of 28  affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule 61). [51] Hahn argues that his proposed final instructions Nos. 2 and 4 would have made clear to the jury that had he reasonably believed that Doug was acting in accord with the man throwing bottles, and/or the two women fighting Ms. Ruble, that Ireland had attempted to commit a felony, and that he would have been justified in using deadly force, provided the remaining elements of self-defense were satisfied. He also contends he was prejudiced because, if Doug was acting in concert with the man throwing bottles, then Hahn was equally justified in using deadly force against Doug in an effort to escape the threats the two men posed. [52] The State argues that the trial court did not abuse its discretion because Hahn’s self-defense claim was centered around his story that Shaw had threatened to kill him and that Ireland had not remained on the porch but had advanced to the confrontation and thrown two beer bottles. It points out that the trial court noted and Hahn apparently agreed that the instruction on self-defense which was given to the jury would allow Hahn to argue his theory of self-defense without specifically instructing the jury on attempt. The State also argues that Hahn fails to show error in the trial court’s refusal to give his proposed instructions. [53] Hahn does not cite authority for the proposition that instructions on attempt and accomplice liability are required under these circumstances. The court Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 27 of 28  gave the jury final instruction No. 16 which provided that a person may use reasonable force against another person to protect himself from what the defendant reasonably believes to be the imminent use of unlawful force, and that a person is justified in using deadly force if he reasonably believes that such force is necessary to prevent serious bodily injury to himself or to a third party or to prevent the commission of a felony. The court referenced the self-defense instruction and informed Hahn’s counsel that he could make his arguments regarding attempt and accomplice liability through that instruction. During closing argument, Hahn’s counsel argued that Doug and Ireland acted together, that Doug aided, induced, and caused Ireland to throw the bottles, and that Ireland’s throwing of the beer bottle constituted a felony. [54] In light of the instruction regarding self-defense, we cannot say that the instructions taken as a whole misstated the law or misled the jury or that Hahn’s substantial rights were prejudiced in light of his closing arguments regarding attempt and accomplice liability. Conclusion [55] For the foregoing reasons, we affirm Hahn’s conviction for aggravated battery as a class B felony. [56] Affirmed. Robb, J., and Mathias, J., concur. Court of Appeals of Indiana | Opinion 18A05-1603-CR-623 | December 20, 2016 Page 28 of 28 

139 F.Supp.2d 147 (2001) DUNKIN' DONUTS INCORPORATED, Plaintiff, v. GAV-STRA DONUTS, INC., et al., Defendants. No. Civ.A. 99-11526-PBS. United States District Court, D. Massachusetts. April 10, 2001. *148 *149 Robert L. Zisk, Thomas M. Finan, Schmeltzer, Aptaker & Sheppard, Washington, DC, Jeffrey L. Karlin, Schmeltzer, Aptaker & Sheppard, P.C., Washington, DC, Robert A. Murphy, Casner & Edwards, Boston, MA, Joan M. Griffin, Testa, Hurwitz & Thibeault, Boston, MA, Thomas P. Carroll, Stephen J. Vaughan, Schmeltzer, Aptaker & Shepard, P.C., Washington, DC, Eric L. Yaffe, Schmeltzer, Aptaker & Shepard, P.C., Washington, DC, for Plaintiff. Frank J. Teague, Mills & Teague, Douglas M. Brooks, Martland & Brooks, Harold Brown, Law Office of Harold Brown, L. Seth Stadfeld, Weston Patrick Willard & Redding, Andrea B. Aptowitz, Harold Brown & Associates, Boston, MA, Fatema Dahodwala, John J. Washburn, Gerald Venezia, North Reading, MA, Stephen J. Reid, Blish & Cavanagh, Providence, RI, A. David Mazzone, Boston, MA, for Defendants. MEMORANDUM AND ORDER SARIS, District Judge. I. INTRODUCTION Plaintiff Dunkin' Donuts Incorporated *150 ("Dunkin' Donuts") brings this action[1] against franchisee Gav-Stra Donuts, Incorporated ("GSDI") and its shareholders Michael Gavriel, Cathy Gavriel, and George Stratis to enforce termination of the franchise agreement and to require Defendants to comply with their post-termination obligations. Dunkin' Donuts moves for partial summary judgment on the ground that Michael Gavriel's conviction for tax fraud involving GSDI's Dunkin' Donuts franchise gives it the contractual right to terminate the franchise agreement. After a hearing, the Court ALLOWS Plaintiff's motion on both counts against all Defendants, enjoins Defendants from further use of Dunkin' Donuts trademarks, and awards attorney's fees to Plaintiff. II. BACKGROUND The following facts are undisputed except where stated. George Stratis and Michael Gavriel first met when Stratis worked as a baker at a Dunkin' Donuts franchise owned by Gavriel. Stratis, a Greek immigrant, saved $100,000 and approached Gavriel about starting their own Dunkin' Donuts franchise as business partners. The two agreed on a division of labor. Stratis would work at the store full time providing active day-to-day management. Gavriel would provide his experience in franchising (as a shareholder in four franchise operations), dealing with suppliers, and dealing with Dunkin' Donuts. As Stratis speaks little English, Gavriel and he communicated primarily in Greek. The shareholders agreement stated that Stratis and Gavriel would each own 50 percent of the stock of GSDI, that Stratis would lend the corporation his $100,000 for five years at 10 percent interest per year, and that Gavriel would either lend $70,000 to the company or secure bank financing for the company. (He later secured a $70,000 loan for GSDI from Mercantile Bank.) Stratis and Gavriel signed a franchise agreement with Dunkin' Donuts, the franchisor, on April 30, 1990 and began operating the franchise store at 210 Harvard Avenue in Allston, Massachusetts. While Stratis understood that the purpose of the agreement with Dunkin' Donuts was to be licensed as a franchisee, he did not fully understand the conversations at the signing because they were in English. Nevertheless, he signed the documents as Gavriel instructed him. The franchise agreement lists Michael Gavriel, Cathy Gavriel, George Stratis, and Gav-Stra Donuts, Inc. as the "individuals or entity hereinafter referred to collectively as `FRANCHISEE.'"[2] The contract provides: [FRANCHISEE shall not] ... do or perform, directly or indirectly, any ... act injurious or prejudicial to the goodwill associated with DUNKIN' DONUTS PROPRIETARY MARKS and the DUNKIN' DONUTS SYSTEM. (¶ 8.A.1.) FRANCHISEE agrees to comply promptly with all applicable laws, rules, regulations, ordinances and orders of public authorities including, but not limited to, health departments, Board of Fire Underwriters and other similar organizations. (¶ 5.Q.) Unless otherwise specified, the franchisee has a 30-day cure period. (¶ 9.B.3.) However, no cure period is available if the franchisee "falsifies financial data." (¶ 9.B.4.) If *151 a franchisee fails to cure a default, following notice, or if the agreement is terminated, the franchisee must pay to Dunkin Donuts damages, costs, expenses, interest at 18 percent per annum and attorneys' fees. (¶ 9.C.2.) Upon termination, the franchisee must also immediately cease using Dunkin Donuts' methods, proprietary marks, trade secrets, confidential information, operating manuals and the like. (¶ 9.F.2.) The individual defendants also personally guaranteed performance under the Franchise Agreement, including Paragraph 8, which contains the goodwill provision. Defendants also guaranteed and agreed that Paragraph 8 "shall be binding on each of us personally, as if we were the franchisee." Michael Gavriel's Criminal Activity In December 1998, Gavriel pled guilty to a criminal Information charging him with conspiracy to defraud the United States by impeding and impairing the lawful government functions of the Internal Revenue Service. United States v. Gavriel, No. 98-10282 (D.Mass. Sept. 10, 1998). He was sentenced on June 15, 1999 to two years probation and payment of a $5,000 fine and a $100 special assessment, and was ordered to file accurate tax returns for the years he did not do so. His plea and sentence, as well as his connection to Dunkin' Donuts, were publicized in restaurant trade magazines, an accounting news publication, and in at least one newspaper of general circulation. The criminal Information states that between 1983 and 1997, Michael Gavriel executed a scheme with West Lynn Creamery ("West Lynn"), Dunkin' Donuts' approved vendor of dairy products, to defraud the IRS. Gavriel ordered products from the creamery, which then generated inflated invoices for those purchases. Gavriel used his franchises, including GSDI, to issue checks to pay the false invoices. West Lynn then issued rebate checks either to Gavriel directly or to the Community Credit Union of Lynn to repay Gavriel's personal loans.[3] Between 1990 and 1992, Gavriel fraudulently converted from GSDI over $40,000 via the creamery rebate scheme and another $23,000 by writing corporate checks for personal use and manipulating payments between GSDI and Gavriel's other corporate entities. He filed false personal tax returns with the IRS for each year from 1992 to 1996. He also failed to report this rebate income on GSDI's tax returns. Thus, GSDI's tax returns for those years were also false because they included higher costs and smaller profits than should have been reported. (However, as defendants point out, the rebates were not reported to the IRS because they were not received by GSDI). Although the IRS has never taken any action against GSDI, the corporation did file amended returns in 1997 as soon as it received the funds after the state court litigation. State Court Proceedings Stratis filed an action against Gavriel in Norfolk Superior Court on August 13, 1992 after his son, Efstratios "Steve" Stratis, reviewed GSDI's financial records and raised questions about some of Gavriel's transactions. When he filed the suit, Stratis successfully moved for a temporary restraining order preventing Gavriel from entering the premises or involving himself *152 in the business in any way. GSDI also informed the IRS in 1994 of Gavriel's criminal scheme. After a fourteen-day bench trial, Stratis prevailed on his claim of breach of fiduciary duty. In addition to giving GSDI monetary compensation for the converted funds, the court gave Stratis control over GSDI operations by permanently enjoining the Gavriels from interfering in any way with the operation of the business, including entering onto its premises except by permission of George Stratis or his agent. Since 1992, Stratis and his son have operated the franchise without involvement by Gavriel. The business prospered. At the time of judgment, gross sales had increased to $16,000 per week.[4] In June 1999, Gavriel filed suit against Stratis and GSDI in Suffolk Superior Court asserting that Stratis' negligent operation of the franchise was jeopardizing GSDI's franchise relationship with Dunkin' Donuts. Gavriel sought a preliminary injunction restraining any expenditures from GSDI's operating accounts. The Superior Court denied the motion and ruled that in light of the injunction from Stratis' suit, any further proceedings should occur in Norfolk Superior Court. Gavriel v. George Stratis and Gav-Stra Donuts, Inc., No. 99-2685H (Mass. Superior Ct. June 9, 1999). Gavriel has not pressed any of these claims. In October 2000, Stratis and GSDI filed a complaint against Dunkin' Donuts in Norfolk Superior Court to recover all damages and legal fees incurred in defending against Dunkin' Donuts' claims in the instant case. Gav-Stra Donuts, Inc. et al. v. Dunkin' Donuts Inc. et al., No. 00-01492 (Mass. Superior Ct. Oct. 2, 2000). In addition, that complaint challenges Dunkin' Donuts' refusal to permit a ten-year renewal of the Franchise Agreement. That case is pending. Actions by Dunkin' Donuts On October 12, 1998, Dunkin' Donuts sent Michael Gavriel (with a copy to Stratis) a Notice of Default/Notice to Cure, stating that the franchisor had become aware of the U.S. Attorney's Information against Gavriel and that Gavriel's actions, if true, "may constitute material breaches of the franchise agreements and grounds for termination." (Notice of Default/Notice to Cure, at 3.) After this Notice, Dunkin' Donuts attempted to negotiate with Gavriel for a termination of interests in the franchise. When that failed, Dunkin' Donuts issued to Gavriel's attorney a Notice of Termination on June 24, 1999. The notice cites violations of ¶ 8.A.1 and ¶ 5.Q of the Franchise Agreement as reasons for termination. Although Stratis and GSDI did not receive copies of that notice, they did receive a Supplemental Notice of Termination dated September 24, 1999, which cites the same contractual violations stated in the original Notice of Termination sent to Gavriel and demands immediate compliance with all post-termination obligations set forth in Paragraph 9 of the Franchise Agreement, including the cessation of use of all Dunkin' Donuts trademarks. By its terms, the franchise agreement expired on April 16, 2000. It was not renewed. To date, GSDI — with Stratis and son as managers — continues to operate the store. There is a dispute over when Dunkin' Donuts became aware of Gavriel's misconduct. GSDI and Stratis contend that they "promptly informed" Dunkin' Donuts representatives *153 of the misconduct upon learning of it themselves in 1992. Dunkin' Donuts claims that it had no knowledge of the rebate scheme until learning that Gavriel had been criminally charged in 1998, and that immediately thereafter, the franchisor issued the Notice of Default/Notice to Cure. III. DISCUSSION A. Summary Judgment Standard Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Barbour v. Dynamics Research Corp., 63 F.3d 32, 36-37 (1st Cir.1995) (quoting Fed. R.Civ.P. 56(c)), cert. denied, 516 U.S. 1113, 116 S.Ct. 914, 133 L.Ed.2d 845 (1996). To prevail on summary judgment, the moving party must show that there is an absence of evidence to support the non-moving party's position. Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this requirement, the burden shifts to the non-moving party to establish the existence of at least one factual issue that is both genuine and material. LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To oppose summary judgment successfully, the non-moving party "may not rest upon the mere allegation or denials of his pleading," but must set forth specific facts showing that there is a genuine issue for trial. LeBlanc, 6 F.3d at 841 (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36. B. Breach of Contract Claim against Michael Gavriel Dunkin' Donuts argues that Michael Gavriel breached the goodwill provision (¶ 8.A.1) of the franchise agreement. I agree. Many courts have concluded that a franchisee's guilty plea to criminal charges arising out of the operation of the franchise is injurious and prejudicial to the franchisor's goodwill. Dunkin' Donuts Inc. v. Panagakos, Bus. Franchise Guide (CCH) ¶ 11,174 (D.Mass. May 13, 1997) (Stearns, J.) (holding that "no reasonable jury could find that Panagakos' involvement in a tax evasion scheme intimately connected with the operation of his Dunkin' Donuts franchise was not a material breach" of ¶ 8.A.1 of the franchise agreement); Dunkin' Donuts Inc. v. Chieng-Eung Thiem, CV 93-0419-JSL (Tx), slip op. at 3 (C.D.Cal. Mar. 9, 1993) (granting summary judgment for plaintiff upon finding intentional underreporting of sales to the taxing authorities to be a breach of the goodwill provision of the franchise agreement); Palombi v. Getty Oil Co., 501 F.Supp. 158, 162 (E.D.Pa.1980) (granting oil supplier's motion for summary judgment on service station's claim of improper termination of franchise agreement because service station operator's conviction for price gouging injured supplier's reputation for integrity and fairness); Serubo Cadillac Co., Inc. v. Cadillac Motor Car, Div. of General Motors Corp., Civ. A. No. 79-613, 1986 WL 4524, at *9 (E.D.Pa. April 15, 1986) (holding that pleas of guilty *154 and subsequent sentencing for tax evasion adversely affected GM's reputation and thus were adequate grounds for GM's termination of the car dealership agreement). Cf. Shell Oil Co. v. Altina Assoc., Inc., 866 F.Supp. 536, 541-42 (M.D.Fla.1994) (holding under the Petroleum Marketing Practices Act that tax evasion charges filed against the franchisee resulted in loss of goodwill and was grounds for termination of the franchise agreement). Dunkin' Donuts also argues that Gavriel's criminal conduct violated the "obey all laws" provision (¶ 5.Q) of the franchise agreement. I agree again. See Chieng-Eung Theim, CV 93-0419-JSL (Tx), slip op. at 3 (granting summary judgment on Dunkin' Donuts' breach of contract claim, holding that the franchisee breached I 5.Q of the Dunkin' Donuts franchise agreement by underreporting sales to the taxing authorities); Dunkin' Donuts Inc. v. Chetminal, Inc., Bus. Franchise Guide (CCH) ¶ 11,290 (S.D.Fla. Oct. 30, 1997) (holding that sales of cigarettes to minors in the store was an incurable ¶ 5.Q violation); Dunkin' Donuts Inc. v. Taseski, 47 F.Supp.2d 867, 877 (E.D.Mich.1999) (enforcing franchisor's termination of franchise agreement when franchisees stipulated that they underreported sales, underpaid their obligations and falsified financial records). Because Michael Gavriel is defined to be a "franchisee," Michael Gavriel's tax fraud conspiracy arising out of the operations of the franchise constitutes a breach of the "goodwill" and "obey all laws" provisions of the franchise agreement. C. Defenses of George Stratis and GSDI 1. Cure Nonetheless, Stratis argues that neither GSDI nor he should be held responsible for Gavriel's criminal conduct since they were not involved in any way in his crime. Unfortunately, the franchise agreement lists each party individually and clearly states that these parties are regarded collectively as the "franchisee." Therefore, the unlawful act of one is the unlawful act of all. See Restatement (Second) of Contracts, § 288(2) (1979) ("Unless a contrary intention is manifested, a promise by two or more promisors is a promise that the same performance shall be given."); id. § 289(1) ("where two or more parties to a contract promise the same performance to the same promisee, each is bound for the whole performance thereof"). The default and termination provisions are triggered when any listed individual commits an unlawful act. The harder question is whether Gav-Stra and Stratis cured any default caused by Michael Gavriel's criminal conduct. Paragraph 9 of the Franchise Agreement deals with franchisees' defaults. With certain exceptions, the Franchise Agreement provides for a 30-day cure period. GSDI and Stratis claim they cured Gavriel's defaults by uncovering his illegal activities; obtaining a preliminary injunction in 1992 in state court; recovering all diverted monies and properly accounting for those monies for tax purposes; reporting Gavriel's illegal conduct to Dunkin' Donuts in 1992; and reporting Gavriel's illegal conduct to the IRS which resulted in Gavriel's criminal conviction. Defendants point out that these cures took place before Dunkin' Donuts sent a notice of default. Dunkin' Donuts argues that the notice to cure provision does not apply to breaches involving dishonesty that diminishes a company's good will. See Panagakos, Bus. Franchise Guide (CCH) ¶ 11,174 (stating that franchisee's criminal conduct in engaging in tax evasion justified termination of the franchise agreement without an opportunity to cure). Cf. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d *155 12, 20 (1st Cir.1996) ("By its very nature injury to goodwill and reputation is not easily measured or fully compensated in damages. Accordingly, this kind of harm is often held to be irreparable."); 6 Corbin on Contracts § 1266, at 23 (1997 Supp.) ("There was a frustration of purpose when a breach involving fundamental dishonesty by one party occurred, because no amount of payment for past thefts by [defendant] could ever restore the business trust and confidence which plaintiff wanted to have in its distributors."). This case is more complicated than Panagakos because here one co-franchisee made his best efforts to cure the dishonesty of another co-franchisee. However, the genie had been let out of the bottle before defendants had a chance to stop it. Despite these good faith efforts, there was media coverage referring to Gavriel as a Dunkin' Donuts franchisee. Another problem with this otherwise sympathetic argument is that the agreement provides in ¶ 9.B.4 that no cure period is available if the franchisee falsifies "financial data." In other words, the parties agreed that falsification of financial data was an incurable breach. Because Gavriel, who was an officer and agent of GSDI, intentionally falsified Gav-Stra's financial data (by overstating expenses and understating profits), and caused false tax returns to be filed, the contract does not give even the innocent defendants an opportunity to cure the breach. 2. Alleged Material Breach of Contract by Plaintiff GSDI and Stratis argue that Dunkin' Donuts did not fully perform its own contractual obligations to provide developmental and advisory assistance to GSDI as a franchise, and thus is not entitled to recover for breach against defendants. It is well-settled that a material breach of contract by one party excuses the other party from performance as a matter of law. See HRPT Advisors, Inc. v. MacDonald, Levine, Jenkins & Co., P.C., 43 Mass.App.Ct. 613, 626 n. 16, 686 N.E.2d 203 (1997); Restatement (Second) of Contracts §§ 237, 242. "A material breach of an agreement occurs when there is a breach of `an essential and inducing feature of the contract[ ].'" Lease-It, Inc. v. Massachusetts Port Auth., 33 Mass.App. Ct. 391, 396, 600 N.E.2d 599 (1992) (quoting Bucholz v. Green Bros. Co., 272 Mass. 49, 52, 172 N.E. 101 (1930)). Such a breach must go "to the root of the contract." Aerostatic Engr. Corp. v. Szczawinski, 1 Mass.App.Ct. 141, 145, 294 N.E.2d 521(1973). Not all breaches of contract by one party will excuse performance by the other. In evaluating a breach of contract, the Court must determine "whether the defendant's breach entitled the plaintiff merely to recovery for that breach while continuing to abide by the contract, or was so material in all the circumstances as to justify the plaintiff in throwing the contract over and suing for the total breach." Center Garment Co. v. United Refrigerator Co., 369 Mass. 633, 638, 341 N.E.2d 669 (1976). Compare Ward v. American Mutual Liability Ins. Co., 15 Mass.App. Ct. 98, 101, 443 N.E.2d 1342 (1983) (finding defendant's wrongful discharge in violation of employment contract to be a breach so material as to release the employees from further contractual obligations) with Gibson v. City of Cranston, 37 F.3d 731, 737 (1st Cir.1994) (finding failure of school board to provide evaluations of superintendent insufficient to establish a material breach of her contract). Specifically, defendants claim that Dunkin' Donuts violated ¶ 2.E of the Franchise Agreement, which requires it to assist the franchise by providing "operating procedures to assist the franchisee in developing *156 ... approved sources of supply[,]" when it selected West Lynn Creamery as the sole approved vendor of dairy products and required franchises to do business with this corrupt vendor. Dunkin' Donuts has submitted undisputed evidence that West Lynn Creamery was not the sole approved vendor of dairy products; Hood is another. Even if it were the sole approved vendor, defendants have produced no evidence that Dunkin' Donuts approved West Lynn Creamery as a source of supply with knowledge of the corrupt rebate scheme. Second, defendants claim a violation of ¶ 2.F, which requires Dunkin' Donuts "to make available to the franchisee any assistance that may be required, based on the experience and judgment of Dunkin' Donuts, in the preopening, opening and initial operation of the Dunkin' Donuts shop and in conforming to the requirements of the Dunkin' Donuts system." Defendants claim that Dunkin' Donuts failed to participate in the Norfolk Superior Court suit against Gavriel brought years after the opening. However, such litigation assistance is not required by ¶ 2.F. Finally, defendants argue that this failure to assist in the litigation violates ¶ 3.A, which requires Dunkin' Donuts "[t]o maintain a continuing advisory relationship with the Franchise, including consultation in the areas of marketing, merchandising, and general business operations." However, failure to participate in litigation among co-franchisees is not failure to consult in the area of "general business operations." Even if there were glitches in the provision of assistance by Dunkin' Donuts to defendants, there is no evidence they went to the heart of the contract so as to excuse defendants' contractual obligations. Indeed, all the alleged failure by Dunkin' Donuts came well after the criminal activity of Gavriel was in full swing. 3. Good Faith and Fair Dealing GSDI and Stratis further argue that Dunkin' Donuts' termination violated the covenant of good faith and fair dealing, implied in every contract under Massachusetts law, which requires that "neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Piantes v. Pepperidge Farm, Inc., 875 F.Supp. 929, 938 (D.Mass.1995) (quoting Anthony's Pier Four, Inc. v. HBC Assoc., 411 Mass. 451, 471, 583 N.E.2d 806 (1991)). The argument fails for two reasons. First, "[t]he implied covenant of good faith cannot override the express terms of a contract." Dunkin' Donuts Inc. v. Panagakos, 5 F.Supp.2d 57, 64 (D.Mass.1998) (Stearns, J.). The franchise agreement gives Dunkin' Donuts the right to terminate the contract if the franchisee defaults (or, where applicable, fails to cure defaults) on any of the agreement's obligations. Second, there is no evidence of fraud, deceit or misrepresentation by Dunkin' Donuts that would allow a court to find a breach of good faith. As his deposition demonstrated, Gavriel's belief that Dunkin' Donuts knew about the illegal creamery rebate program was not based on facts, but merely speculation. See Panagakos, 5 F.Supp.2d at 64 (finding no breach of good faith where franchisor was contractually authorized to terminate the franchise agreement and where there was no evidence of fraud); Piantes, 875 F.Supp. at 940 (same); Health Plans, Inc. v. New York Life Insur. Co., 898 F.Supp. 941, 947-48 (D.Mass.1995) (rejecting argument that there was a breach of good faith where defendant's premium rate increase and decision to terminate coverage were consistent with the express terms of the contract). Moreover, defendants contend that Dunkin' Donuts knew that Gavriel *157 had been in monetary disputes with other franchisees, and failed to disclose this past history to Stratis. There is evidence that an inspector in late 1991 or early 1992 disclosed to defendants that Gavriel had been involved in monetary irregularities in another shop in Watertown. There is no evidence, however, that Dunkin' Donuts or its agents knew about Gavriel's dishonesty at the time the Franchise Agreement was signed. 4. Waiver To succeed on the waiver defense, GSDI and Stratis must meet the "uncompromising" standard for waiver under Massachusetts law: proof of "clear, decisive, and unequivocal conduct on the part of an authorized representative ... indicating that [it] would not insist on adherence to the [agreement]." Panagakos, 5 F.Supp.2d at 60 (quoting Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 992 (1st Cir.1988)). Toward this end, GSDI and Stratis argue that Dunkin' Donuts failed to terminate the contract in 1992 when it first learned of Gavriel's misconduct; the first notice of default came six years later in 1998. The dispute over when Dunkin' Donuts first learned of the misconduct is immaterial. Whether Dunkin' Donuts knew about the scheme or not, it took no affirmative steps to waive its contractual right to terminate. Such affirmative conduct is essential to a waiver claim; mere silence on the part of Dunkin' Donuts does not satisfy GSDI's and Stratis' burden of establishing the clear, decisive, and unequivocal conduct required for waiver. Id. at 61. At most, Dunkin' Donuts failed to respond to Stratis' requests for assistance in ending and prosecuting Gavriel's misconduct. When judged by the uncompromising standard for waiver, this lack of response does not constitute a waiver. 5. Laches The laches argument also fails. Laches consists of two elements: 1) unreasonable delay in pursuing a claim, and 2) prejudice to the opposing party resulting from that delay. USL Capital v. New York 30, 975 F.Supp. 382, 386 (D.Mass. 1996). Even if Dunkin' Donuts did delay in terminating the franchise agreement, there is no evidence that GSDI and Stratis suffered any prejudice from the delay. If anything, the record suggests that Stratis and his franchise store prospered during that time. 6. Equitable Estoppel GSDI and Stratis also advance an equitable estoppel defense. "[E]stoppel, as an instrument of equity, has the power to extinguish a party's contractual rights even absent evidence of a waiver...." Panagakos, 5 F.Supp.2d at 61. The elements of an equitable estoppel claim are: 1) a representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made; 2) an act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made; and 3) detriment to such person as a consequence of the act or omission. Hoppe v. Baxter Healthcare Corp., 878 F.Supp. 303, 312-13 (D.Mass.1995). GSDI and Stratis argue that Dunkin' Donuts approved the West Lynn Creamery as a vendor knowing that it was involved in the unlawful rebate scheme. There is no evidence to support this contention. 7. Public Policy Finally, GSDI and Stratis contend that it would violate public policy to penalize them for Gavriel's misconduct. "It is a principle universally accepted that *158 the public interest in freedom of contract is sometimes outweighed by public policy, and in such cases the contract will not be enforced." Beacon Hill Civic Assoc. v. Ristorante Toscano, Inc., 422 Mass. 318, 321, 662 N.E.2d 1015 (1996); see Restatement (Second) of Contracts § 179. Stratis argues that to punish him by terminating his franchise agreement is to discourage lawful citizens from identifying and reporting criminal conduct. It is an argument analogous to whistleblower protections in the employment context. See Mass.Gen.L. ch. 149, § 185 (providing cause of action for employees discharged for reporting violations of public policy). Courts have consistently invoked public policy concerns to protect at-will employees who report an employer's criminal conduct to public authorities or to superiors within the company. See, e.g., Shea v. Emmanuel Coll., 425 Mass. 761, 763, 682 N.E.2d 1348 (1997) (commenting that the reporting of suspected criminal activity should not be discouraged by the threat of discharge); Smith v. Mitre Corp., 949 F.Supp. 943, 951 (D.Mass. 1997) (concluding that blowing the whistle within the company on fraud and false claims by a government contractor is "sufficiently important to command the invocation of the [public policy] exception"). It is a tempting analogy because Stratis was a conscientious, honest franchisee throughout the Gavriel ordeal. However, unlike the prototypical whistleblower case, Dunkin' Donuts is not terminating its franchise agreement with Stratis as retaliation for identifying and reporting Gavriel's criminal conduct, but rather because Gavriel and GSDI breached the material terms of the contract. The Supreme Judicial Court "consistently has interpreted the public policy exception narrowly," King v. Driscoll, 418 Mass. 576, 582, 638 N.E.2d 488 (1994), and a federal court sitting in diversity should be loathe to extend state law. See Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1449 (1st Cir.1995). Therefore, while it might be appropriate to extend whistleblower protection to certain franchisor-franchisee relations (i.e., where a franchisee is terminated for exposing criminal activities by the franchisor), this is not one. D. Trademark Infringement Claim Dunkin' Donuts also claims that Gavriel, Stratis, and GSDI are separately liable for trademark infringement. To show trademark infringement under the Lanham Act, 15 U.S.C. § 1125(a), plaintiff must show that it owns the mark in question, that the defendant's mark is similar to or the same as the plaintiff's mark, and that defendant's use of the mark is likely to cause confusion among consumers. I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 43 (1st Cir.1998). The continued use of a trademark after breach of a franchise agreement is alone dispositive of the infringement issue. See S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 376 (3rd Cir.1992) (holding that franchisee's continued use of franchisor's trademark amounted to infringement under the Lanham Act where franchise agreement was properly terminated for franchisee's failure to pay royalties); Burger King Corp. v. Majeed, 805 F.Supp. 994, 1002 (S.D.Fla.1992) (noting the "well-settled doctrine that a terminated franchisee's continued use of its former franchisor's trademarks, by its very nature, constitutes trademark infringement"). GSDI's franchise agreement with Dunkin' Donuts expired on April 16, 2000 and was not renewed. GSDI continues to operate its franchise store despite the validly terminated/not renewed contract. Accordingly, this Court holds that Dunkin' Donuts prevails on its claim for trademark infringement. IV. ORDER For the foregoing reasons, the Court ALLOWS Dunkin' Donuts Motion for Summary *159 Judgment (Docket No. 17) against all remaining Defendants Michael Gavriel, Cathy Gavriel, George Stratis and GSDI on Counts I and II. The Court also enjoins Defendants from further using the Dunkin' Donuts trademarks, and orders defendants to take appropriate steps to terminate the franchise. The Court also awards attorney's fees as provided by the Franchise Agreement. NOTES [1] The amended complaint alleges ten counts against multiple parties. The allegations relevant to this summary judgment motion are breach of contract (Count I) and trademark infringement (Count II). Ms. Cathy Gavriel has not opposed the motion for summary judgment. [2] Cathy Gavriel's name is written in by hand. [3] It is unclear to whom the checks were made payable after the Credit Union loans were paid off. Plaintiff asserts that some of the post-loan repayment checks were made payable to GSDI. Defendants Stratis and GSDI dispute this, claiming that the checks were never issued to the corporate franchisee. The criminal Information states that funds were made payable to "entities controlled by Gavriel," but does not specifically mention GSDI. [4] After the judgment entered, Dunkin' Donuts failed GSDI in various periodic inspections. Defendants claim that this was a harassing tactic designed to force defendants to sell the franchise at an unfair price. Dunkin' Donuts denies this allegation. The Court need not resolve this dispute which is not material to the breach of contract claim and has sparked yet another lawsuit.

977 S.W.2d 865 (1998) Ex Parte Roy Lester LAFON, Appellant. No. 05-98-00712-CR Court of Appeals of Texas, Dallas. November 3, 1998. *866 Michael Curran, Jouette and Curran, McKinney, for Appellant. Tom O'Connell, Criminal District Attorney, McKinney, for Appellee. Before THOMAS, C.J., and BRIDGES and ROACH, JJ. OPINION THOMAS, Chief Justice. Roy Lester Lafon appeals the trial court's denial of relief requested in an application for writ of habeas corpus. In his application, appellant challenged the voluntariness of a no contest plea that resulted in his conviction for driving while intoxicated. See TEX.CODE CRIM. PROC. ANN. arts. 11.05, 11.09 (Vernon 1977). Appellant contends the trial court abused its discretion in rejecting his claim that the attorney who represented him at the plea proceeding rendered ineffective assistance of counsel in violation of the Sixth Amendment. We disagree with appellant and affirm the trial court's order denying relief. PROCEDURAL BACKGROUND A visiting judge convicted appellant on September 22, 1995 of driving while intoxicated (DWI) after appellant entered a no contest plea. The visiting judge assessed punishment at two years' probation with thirty days' confinement as a condition of probation. The same day, appellant's retained counsel filed a notice of appeal. No brief was ever filed in the appeal, however, and on October 21, 1997, this Court abated the appeal and ordered the trial court to conduct a hearing to determine why appellant's brief had not been filed and whether he desired to prosecute the appeal. The trial judge normally assigned to the county court conducted the hearing and found that appellant did not wish to pursue the appeal. The judge also found that retained counsel made no effort to prosecute the appeal because that was what appellant wished. After the appeal was reinstated, retained counsel filed a motion to withdraw the notice of appeal, to which appellant agreed, on the ground that there was no justiciable issue for the court of appeals to decide. This Court granted the motion and withdrew the appeal. The trial court then ordered appellant's probationary period to begin. Appellant was scheduled to start serving his thirty-day commitment on March 2, 1998. Appellant's new retained counsel then filed the application for writ of habeas corpus and obtained an order from the trial judge delaying appellant's commitment until such time as the writ was heard. The visiting judge who had accepted appellant's plea of no contest conducted the hearing on the merits of appellant's writ application. In his application, appellant asserted that his original retained counsel rendered ineffective assistance. Appellant complained that, after failing to obtain any appealable pretrial rulings, counsel erroneously advised him that he would have a better chance of "acquittal" if, instead of going to trial, he pled no contest to the DWI charge and appealed his case. Appellant also complained that counsel failed to file a record or brief in the appeal and failed to inform appellant of this fact when he persuaded appellant to sign the motion to withdraw the notice of appeal. Appellant contended counsel's errors rendered his no contest plea involuntary. At the writ hearing, the visiting judge reviewed the reporter's record and docket sheet from the DWI plea hearing and heard testimony from appellant and his original retained counsel. The visiting judge found, among other things, that appellant's direct appeal was filed solely for purposes of delay. He also concluded that counsel did not render ineffective assistance and that appellant voluntarily entered his no contest plea. Appellant *867 now appeals this ruling.[1] DISCUSSION Initially, we note that the visiting judge stated during the hearing, and the parties acquiesced, that he had, in fact, ruled on a motion to quash the DWI indictment. Thus, appellant's contention that no appealable pretrial rulings were made by the judge who heard his plea is incorrect. Second, appellant does not complain that counsel's representation compromised his appeal. His only contention is that counsel rendered ineffective assistance at trial, inducing him to enter an involuntary plea. Therefore, we are left with one issue to review: whether counsel's alleged erroneous advice to plead no contest and pursue an appeal, in addition to his alleged failure to prosecute that appeal, rendered appellant's plea involuntary. The burden of persuasion in a writ of habeas corpus is on the applicant to prove his allegations by a preponderance of the evidence. Guzman v. State, 841 S.W.2d 61, 67 (Tex.App.—El Paso 1992, pet. ref'd). In reviewing the trial court's decision, we view the evidence in the light most favorable to the ruling and accord great deference to the trial court's findings and conclusions. See McCulloch v. State, 925 S.W.2d 14, 15-16 (Tex.App.—Tyler, pet.ref'd), cert. denied, 516 U.S. 976, 116 S.Ct. 477, 133 L.Ed.2d 406 (1995). Absent a clear abuse of discretion, we accept the trial court's decision whether to grant the relief requested in a habeas corpus application. See Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.—Houston [1st Dist.] 1996, no pet.). No plea of guilty or no contest may be accepted by a trial court unless it is freely and voluntarily given. TEX.CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). Moreover, an accused is entitled to effective assistance of counsel during the plea bargaining process. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991) (citing Ex parte Wilson, 724 S.W.2d 72, 73 (Tex.Crim.App.1987)). A defendant's plea of guilty or no contest is not voluntary or knowing when it is based upon the erroneous advice of counsel. Battle, 817 S.W.2d at 83; see also Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). As a general rule, we determine the voluntariness of an appellant's plea based upon the "totality of the circumstances" surrounding the plea. Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986). The testimony below conflicts as to whether appellant entered his plea in reliance on erroneous advice by counsel. Appellant testified that, because of his extensive criminal history, including several prior DWI convictions, counsel told him not to go to trial, but to plead no contest and file an appeal instead. Appellant said counsel wanted to enter the plea while the visiting judge was sitting because counsel had practiced law in front of that judge for thirty years and the two men were "duck-hunting friends." Appellant testified that counsel implied the appeal would get lost or "fall through the cracks" and that appellant would never have to serve his sentence. Appellant said counsel suggested the "fix was in" and the visiting judge would do something with the file on appeal. Appellant maintains that he entered his no contest plea because he believed what his attorney said. Appellant's retained trial counsel, on the other hand, testified that he wanted appellant to enter his plea before the visiting judge instead of the judge assigned to the court because, in light of the judges' different reputations, appellant would probably get a more favorable sentence from the visiting judge. Counsel said he was willing to try the case and that appellant's decision to enter a plea was his free choice. Counsel denied suggesting that "the fix was in" or that the *868 case would "fall through the cracks." Counsel stated that, to facilitate the appeal, he filed a motion to quash that, in his opinion, had no merit whatsoever. Counsel advised appellant that an appeal may take a year or two. Counsel testified he told appellant they would file an appeal to delay imposition of appellant's sentence to allow appellant, a professional truck driver, to see if anything could be done to prevent him from losing his commercial driver's license as a result of the conviction. Counsel testified that appellant knew there was no appealable issue in the case. The determinative issue in this case hinges on an assessment of the witnesses' credibility. The evidence conflicts with regard to whether counsel told appellant he would be "acquitted" on appeal or merely promised that an appeal would delay imposition of appellant's sentence. Because we review the evidence in the light most favorable to the trial court's ruling and because counsel testified that he merely promised to delay the imposition of appellant's sentence by filing an appeal, we must conclude the trial judge did not abuse his discretion in finding against appellant. In so concluding, we note that counsel, in fact, fulfilled his promise to delay the imposition of appellant's probated sentence by more than two years. Accordingly, we overrule appellant's sole point of error. Although we conclude the trial court did not err in rejecting appellant's version of the facts and concluding counsel rendered effective representation, the conduct admitted by retained counsel during his testimony concerns us. Rule 3.01 of the Texas Disciplinary Rules of Professional Conduct provides, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous." TEX. DISCIPLINARY R. PROF. CONDUCT 3.01, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (Vernon 1998) (emphasis added); see also McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (an attorney is under an ethical obligation to refuse to prosecute a frivolous appeal); Lawyers' Duties to the Court, Standards for Appellate Conduct, STATE B. TEX. APPELLATE PRAC. & ADVOC. SEC. R. 2 (appeal should not be pursued for purely tactical reasons, such as delay). Lawyers owe a duty of scrupulous honesty, forthrightness, and the highest degree of ethical conduct, and inherent in these duties is compliance with both the spirit and the express terms of established rules of conduct and procedure. In the matter of J.B.K., 931 S.W.2d 581, 583 (Tex.App.—El Paso 1996, no writ). During his testimony, retained counsel freely admitted that he (1) filed a motion to quash that, in his opinion, "had no merit whatsoever," merely to give appellant a chance to "do something with his license," and (2) filed an appeal in which there was no appealable issue, (3) for the sole purpose of delaying the imposition of appellant's sentence. Furthermore, while that appeal remained pending in this Court for two years, counsel failed to file a reporter's record or brief. The appeal was subsequently abated by this Court for the trial court to conduct a hearing on the matter, the result of which was the withdrawal of appellant's notice of appeal. Although counsel stopped short of filing a brief in the appeal, apparently in recognition of the fact that there were no justiciable issues to discuss, we believe the frivolous motion to quash and notice of appeal, which he filed for the sole purpose of obstructing the implementation of a criminal sentence, constitute an abuse of the legal process and violate the spirit and letter of disciplinary rule 3.01. A judge who receives information clearly establishing that a lawyer has violated the Texas Disciplinary Rules of Professional Conduct should take appropriate action. Johnson v. Johnson, 948 S.W.2d 835, 841 (Tex.App.—San Antonio 1997, writ denied). When the violation raises a substantial question about the lawyer's honesty, trustworthiness, or fitness as a lawyer, the judge shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action. Id.; see TEX.CODE JUD. CONDUCT, Canon 3D(2) (1993), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. B (Vernon 1998). Accordingly, we order Lisa Rombok, the Clerk of the Court, to *869 forward a copy of this opinion and the reporter's record to the Office of the General Counsel of the State Bar of Texas for investigation and any other action it may deem necessary. We affirm the trial court's order denying relief. NOTES [1] This accelerated appeal was originally filed in April 1998 but could not be disposed of because the record was incomplete. In particular, the written order being appealed was not in the clerk's record and, in fact, did not exist. After repeated communications and requests, defense counsel finally obtained the order and a copy of it was provided to the Clerk of this Court on September 1, 1998. Such delays due to an incomplete record are not uncommon in habeas corpus appeals from Collin County. Practitioners are well advised to make the written order denying relief part of the record at the hearing or immediately thereafter.

09/14/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs August 7, 2018 STATE OF TENNESSEE v. MAURICE GRAY Appeal from the Criminal Court for Shelby County No. 15-00752 Chris Craft, Judge ___________________________________ No. W2017-01897-CCA-R3-CD ___________________________________ A Shelby County jury convicted Defendant, Maurice Gray, of aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, convicted felon in possession of a firearm, convicted felon in possession of a handgun, and evading arrest. Defendant received a total effective sentence of twenty-nine years. On appeal, Defendant argues the following: (1) the evidence was insufficient for a rational juror to have found Defendant guilty on all charges beyond a reasonable doubt; (2) the trial court erred in ordering partially consecutive sentence alignment; and (3) the trial court erred in failing to merge counts three, four, and five. After a thorough review of the facts and applicable case law, we affirm Defendant’s judgments of conviction but remand for merger of counts four and five. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined. Stephen Bush, District Public Defender; Barry W. Kuhn (on appeal) and William Johnson (at trial), Assistant District Public Defenders, for the appellant, Maurice Gray. Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.  OPINION I. Factual and Procedural Background On February 12, 2015, the Shelby County Grand Jury indicted Defendant on charges of aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, convicted felon in possession of a firearm, convicted felon in possession of a handgun, and evading arrest. Jury trial Marcus Merriweather, the victim, testified that he had been previously convicted of possession of marijuana with intent to sell in 2011 and was currently on federal probation for possession of a handgun. On August 18, 2014, Mr. Merriweather was staying at a residence on Lowell Avenue. After a job interview that morning, he picked up food from Waffle House and returned home. Mr. Merriweather testified that the first assailant, Defendant, “came from the side of the house when [he] opened the door and forced [him] in the house.” Defendant pointed a black gun with a long clip at Mr. Merriweather and asked where the marijuana was located. When Mr. Merriweather explained that he did not have any marijuana, Defendant hit Mr. Merriweather in the head with the gun. Mr. Merriweather lay on the ground, and Defendant called someone on the phone. A second armed assailant, co-defendant Ricky Faulkner, then entered the house, and Defendant took money out of Mr. Merriweather’s pocket. Defendant then searched Mr. Merriweather’s house while Mr. Faulkner guarded Mr. Merriweather. Defendant and Mr. Faulkner then ran out of the house and left in a burgundy Toyota Corolla. Mr. Merriweather stated that another individual was driving the vehicle. When police arrived at Mr. Merriweather’s residence, he informed the police that he had been robbed at gunpoint of $300 from his pocket, his phone, and his earrings. Later, Mr. Merriweather realized that Defendant and Mr. Faulkner had also stolen a Michael Kors watch and $900 from a drawer in the bedroom. Mr. Merriweather stated that he originally paid $300 for the earrings, $285 for the watch, and $600 for the phone. Mr. Merriweather later identified Defendant in a photographic lineup. Mr. Merriweather explained that, during the offense, he was “terrified[,]” “scared[,]” and believed that Defendant was going to kill him. On cross-examination, Mr. Merriweather explained that the offenses occurred between 11:00 and 11:30 a.m. Mr. Merriweather stated that his encounter with Defendant lasted between ten and fifteen minutes. He agreed that he wrote on the photographic lineup that Defendant stole between $400 and $450 from his pocket. Mr. -2- Merriweather stated that he did not receive medical treatment for the injuries he received during the offenses. Officer Dedrick Jones testified that he had worked as a uniform patrol for the Memphis Police Department (“MPD”) since 2009. On August 18, 2014, Officer Jones received a “be on the lookout” (“BOLO”) alert for a vehicle and individuals involved in a home invasion robbery on Lowell Avenue. The BOLO described a red Toyota Corolla and one suspect wearing a red t-shirt and leather pants. He located the vehicle in the “general area” of Mr. Merriweather’s residence and initiated a traffic stop. When the vehicle came to a stop in a driveway, Officer Jones observed three individuals in the vehicle. Officer Jones approached Defendant, who was driving the vehicle, and asked for identification. Defendant gave Officer Jones another individual’s identification. As Officer Jones turned and checked the identification of the rear passenger, Defendant “exited the driver front door and proceeded to run towards the back of the house.” Officer Jones pursued Defendant into the backyard, and Defendant reached into his “waistband” and threw an automatic handgun with an extended clip over the fence in the backyard. Officer Jones then took Defendant into custody. Officer Jones patted Defendant down to ensure that Defendant did not have any other weapons and discovered “a watch in his possession, a large amount of cash, and some earrings.” Officer Jones stated that the money that he obtained from the search of Defendant’s person “appeared to be well over $1,000.” After Defendant was transported to an MPD precinct, Officer Jones had “a general conversation” with Defendant in the kitchen area. Defendant informed Officer Jones that his job was to “rob people.” On cross-examination, Officer Jones explained that, when he initiated a stop on the Toyota Corolla, he “turned on [his] lights and sirens and let that individual know who was driving that vehicle that [he] was trying to stop them.” Officer Jones asserted that Defendant stayed in his sight throughout the chase to the backyard fence. Officer Charles Wren testified that he worked for the MPD. On August 18, 2014, Officer Wren was a member of the Airways Station Task Force and was alerted about “a home invasion in which a victim was robbed by two male blacks driving a Toyota [Corolla].” By the time Officer Wren arrived at the scene, Officer Jones had already located the vehicle. He saw Officer Jones running after a suspect and followed to assist in the foot chase. As the two officers were placing Defendant in custody, Officer Wren observed Mr. Faulkner “come out the rear window” of a house. As Officer Wren approached the house, Mr. Faulkner went back inside the house. Officers Wren and Jones arrested Defendant and Mr. Faulkner. On cross-examination, Officer Wren explained that, as he approached the residence with the Toyota Corolla in the driveway, he did not see any individuals in the vehicle. -3-  Defendant testified that he had been previously convicted of facilitation of aggravated robbery in April 2010. Defendant stated that he met Mr. Merriweather at a dice game two weeks before the offenses. Defendant agreed that he went to Mr. Merriweather’s house on August 18, 2014, to purchase some marijuana. Defendant entered Mr. Merriweather’s house through the front door. Defendant and Mr. Merriweather discussed marijuana and the money that Defendant won two days before from gambling. Defendant gave Mr. Merriweather $100 for some marijuana. Mr. Merriweather had two pounds of marijuana in a bag, and he wanted $900 for one pound and $800 for the other. Mr. Merriweather gave one pound to Defendant to examine and measured out seven grams of the marijuana, which Defendant gave to Mr. Faulkner. Defendant gave the pound of marijuana back to Mr. Merriweather because it was poor quality. Defendant and Mr. Merriweather began arguing about the marijuana, and eventually Defendant agreed to purchase both pounds of marijuana. However, Defendant took the two pounds of marijuana without paying and left Mr. Merriweather’s residence instead. Defendant also took a watch on Mr. Merriweather’s table and a scale. Approximately forty minutes later, Defendant was stopped by law enforcement. Defendant admitted that he gave a false license to the officer who asked him for identification. Defendant explained that he gave the false license because he had 0.25 ounces of marijuana in his pocket. Defendant also admitted that, when the officer walked away, he got out of his car and attempted to flee the scene. Defendant asserted that he had $1,100 in his pocket and that he did not throw anything over the fence before Officer Jones caught up with him. Defendant noted that he was not charged with possession of the 0.25 ounces of marijuana. Defendant stated that, when he was taken to the front of the residence, the two pounds of marijuana was no longer in his vehicle. Defendant asserted that he did not tell Officer Jones that he robbed people. On cross-examination, Defendant asserted that he stole the two pounds of marijuana from Mr. Merriweather because he argued with Mr. Merriweather. Defendant claimed that he “fronted” the two pounds of marijuana to other individuals, “One-O” and “Greg.” Defendant agreed that he fronted the marijuana to One-O and Greg so that they could sell the marijuana. Defendant testified that he was not armed with a gun when he stole the marijuana from Mr. Merriweather. Defendant stated that he stole Mr. Merriweather’s watch because “[i]t [was] just right there by the weed” and because Mr. Merriweather made Defendant mad. The jury found Defendant guilty as charged in counts one, two, three, and six. The State and Defendant stipulated that Defendant had previously been convicted of two counts of aggravated assault, felon in possession of a handgun, and facilitation of aggravated robbery. The jury found Defendant guilty as charged in counts four and five. -4-  Sentencing Hearing The trial court noted that Defendant stipulated at trial that he had previously been convicted of two counts of aggravated assault, felon in possession of a handgun, and facilitation of aggravated robbery. Regarding count one, aggravated robbery, the trial court found that Defendant was a Range II offender. The trial court noted that Defendant had been convicted of prior misdemeanors and admitted to using marijuana. The trial court found that Defendant had a previous history of criminal convictions or criminal behavior, in addition to that needed to establish Defendant’s range, see Tenn. Code Ann. § 40-35-114(1), and that “he was a leader in the commission of offense involving two or more criminal actors[,]” see Tenn. Code Ann. § 40-35-114(2). The trial court noted that Defendant “was the first person into the house, pointed the gun at the victim, Mr. Merriweather, took money from him, his cell phone, his watch, [and] his earrings” and determined that Defendant “was definitely a leader in this home invasion.” The trial court found that no mitigating factors applied to Defendant’s case. The trial court ordered the following sentences: fifteen years as a Range II multiple offender on count one, aggravated robbery; eight years as a Range II multiple offender on count two, aggravated burglary; six years as a Range II standard offender with release eligibility after service of 100% of the sentence on count three, employing a firearm during the commission of a dangerous felony; eight years as a Range II multiple offender on count four, convicted felon in possession of a firearm; three years as a Range II multiple offender on count five, convicted felon in possession of a handgun; and eleven months and twenty-nine days on count six, evading arrest. Regarding sentence alignment, the trial court found that Defendant had committed “violent crimes as a juvenile,” had no employment history, and had “committed crimes all [of] his life.” The trial court found that Defendant had an extensive history of criminal activity. The trial court also found that Defendant was “a dangerous offender whose behavior indicate[ed] little or no regard for human life because of the pistol whipping and his other crimes, [and] no hesitation about committing a crime in which the risk to human life is high.” The trial court also “found the circumstances surrounding the commission of this offense [we]re aggravated in that [Defendant] [went] in with this home invasion, pistol whip[ped] this man, [and] call[ed] another person to come in with a gun” and that “confinement for an extended period of time [wa]s necessary to protect society from his unwillingness to lead to productive life, and his resort to criminal activity in furtherance of an anti[-]societal lifestyle[.]” Thus, the trial court ordered Defendant’s sentence in count one, aggravated robbery, to be served consecutively to the sentence in count two, aggravated burglary and in count three, employing a firearm during the commission of a felony, for a total effective sentence of twenty-nine years. -5- The trial court determined that Defendant was not eligible for probation and ordered Defendant to serve his sentence in the Department of Correction. Defendant filed a timely motion for new trial, which the trial court denied. Defendant now timely appeals his convictions and sentences. II. Analysis Sufficiency of the evidence Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R. App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh the evidence. Id. Our standard of review “is the same whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) (internal quotation marks omitted). A guilty verdict removes the presumption of innocence, replacing it with a presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant bears the burden of proving why the evidence was insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at 914. On appeal, the “State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). Aggravated robbery Defendant asserts that Mr. Merriweather did not identify Defendant as the individual who entered his residence and pointed a gun at him. “Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2014). Robbery is aggravated when the robbery is “[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]” Tenn. Code Ann. § 39-13-402(a)(1) (2014). Deadly weapon includes “[a] firearm or anything manifestly designed, made or adapted for the -6- purpose of inflicting death or serious bodily injury[.]” Tenn. Code Ann. § 39-11- 106(a)(5)(A) (2014). The identity of the perpetrator is “an essential element of any crime.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial evidence alone, and the “jury decides the weight to be given to circumstantial evidence, and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks omitted). The question of identity is a question of fact left to the trier of fact to resolve. State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982). Here, Mr. Merriweather testified that Defendant “came from the side of the house when [he] opened the door and forced [him] in the house.” Defendant pointed a black gun with a long clip at Mr. Merriweather and asked where the marijuana was located. When Mr. Merriweather explained that he did not have any marijuana, Defendant hit Mr. Merriweather in the head with the gun. Defendant stole $300 from Mr. Merriweather’s pocket, his phone, his earrings, a Michael Kors watch and $900 from a drawer in the bedroom. Mr. Merriweather identified Defendant as the individual who threatened him with a gun and robbed him both in a photographic lineup and at trial. Mr. Merriweather stated that, during the offense, he was “terrified[,]” “scared[,]” and believed that Defendant was going to kill him. This evidence is sufficient for a rational juror to have found beyond a reasonable doubt that Defendant intentionally or knowingly stole property from Mr. Merriweather with a deadly weapon, a gun, and put Mr. Merriweather in fear. Defendant is not entitled to relief on this ground. Aggravated burglary Defendant argues again that Mr. Merriweather did not sufficiently identify Defendant as the individual who committed the offense. Defendant also contends that Mr. Merriweather’s testimony did not sufficiently establish that the offense occurred in a habitation because Mr. Merriweather stated that he was “staying” in the residence but did not establish that he stayed at the residence overnight. Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39- 14-402.” Tenn. Code Ann. § 39-14-403(a) (2014). As charged in this case, burglary occurs when a defendant “[e]nters a building and commits or attempts to commit a felony, theft or assault” “without the effective consent of the property owner[.]” Tenn. Code Ann. § 39-14-402(a)(3) (2014). “Habitation” is defined as “any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons[.]” Tenn. Code Ann. § 39-14-401(1)(A) (2014). -7-  We conclude that Mr. Merriweather’s testimony was sufficient to establish that Defendant entered a habitation and committed a theft. Mr. Merriweather stated that he was staying at a residence on Lowell Avenue when the offenses occurred. Mr. Merriweather referred to the residence as “the house” and described the layout of the residence while testifying about the offenses. It was within the purview of the jury to infer that the structure that Defendant entered was a building that was “designed or adapted for the overnight accommodation of persons[.]” See Tenn. Code Ann. § 39-14- 401(1)(A) (2014). As we noted above, Mr. Merriweather identified Defendant as the individual who threatened him with a gun and robbed him both in a photographic lineup and at trial. Based on its verdict of guilty, the jury clearly credited Mr. Merriweather’s identification of Defendant as the individual who entered his home, threatened him with a gun, and stole his personal property, as was its prerogative. Mr. Merriweather’s identification of Defendant was sufficient evidence for a rational juror to find that Defendant was the perpetrator of the aggravated robbery. Defendant is not entitled to relief on this ground. Firearm convictions Defendant argues that “[b]ecause the victim was unable to properly identify . . . [D]efendant, the [S]tate failed to prove the guilt of . . . [D]efendant beyond a reasonable doubt” on counts three, four, and five. As charged in count three, “[i]t is an offense to employ a firearm during the . . . [c]ommission of a dangerous felony[,]” such as aggravated burglary. Tenn. Code Ann. § 39-17-1324(b)(1),(i)(1)(H) (2014). As charged in count four, “[a] person commits an offense who unlawfully possesses a firearm . . . and . . . [h]as been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon[,]” such as aggravated assault. Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2014); see Tenn. Code Ann. § 39-13-102 (2014) (assault is aggravated when it results in serious bodily injury to another, results in the death of another, or involved the use or display of a deadly weapon). A firearm is “any weapon designed, made or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use[.]” Tenn. Code Ann. § 39-11-106(a)(11) (2014). As charged in count five, “[a] person commits an offense who possesses a handgun and has been convicted of a felony[.]” Tenn. Code Ann. § 39-17-1307(c)(1) (2014). A handgun is “any firearm with a barrel length of less than twelve inches (12”) that is designed, made or adapted to be fired with one (1) hand[.]” Tenn. Code Ann. § 39-11-106(a)(16) (2014). As we have previously stated, Mr. Merriweather identified Defendant both in a photographic lineup and at trial as the individual who threatened him with a gun and robbed him. Regarding count three, employing a firearm during the commission of a -8- dangerous felony, Mr. Merriweather testified that Defendant entered his residence with a gun and employed the gun during the burglary and robbery. Regarding counts four and five, the State and Defendant stipulated that Defendant had been convicted previously of two counts of aggravated assault and convicted felon in possession of a handgun in case number 10-02887, and facilitation of aggravated robbery in case number 09-03338. The evidence was sufficient for a rational juror to credit Mr. Merriweather’s testimony and find Defendant guilty in counts three, four, and five beyond a reasonable doubt. Defendant is not entitled to relief on this ground. Evading arrest Defendant argues that the evidence was insufficient to establish the elements of this offense because Officer Jones “d[id] not testify that he was driving a police vehicle, or that he turned on lights or siren, or did anything else that would identify him as a police officer[,]” that Officer Jones was not in uniform, and that “[t]here [wa]s no evidence regarding . . . [D]efendant’s state of mind that would indicate that he knew that Officer Jones was a police officer who was attempting to arrest him.” “[I]t is unlawful for any person to intentionally flee by any means of locomotion from anyone the person knows to be a law enforcement officer if the person . . . [k]nows the officer is attempting to arrest the person[.]” Tenn. Code Ann. § 39-16-603(a)(1)(A) (2014). Officer Jones received a BOLO alert for a vehicle and individuals involved in a home invasion robbery on Lowell Avenue. He located the vehicle, initiated a traffic stop, and “turned on [his] lights and sirens and let that individual know who was driving that vehicle that [he] was trying to stop them.” Defendant stopped the vehicle in a residence’s driveway and gave Officer Jones a false identification but then exited the driver’s door and ran towards the back of the residence. Defendant attempted to jump over a fence in the backyard and threw his firearm over the fence when Officer Jones apprehended him. Thus, contrary to Defendant’s assertion, Officer Jones clearly testified that he activated the lights and sirens on his patrol vehicle. The jury credited Officer Jones’s testimony that Defendant had notice that Officer Jones signaled him to stop, as was its prerogative. See State v. Kerry D. Garfinkle, No. 01C01-9611-CC-00484, 1997 WL 709477, at *3 (Tenn. Crim. App. Nov. 7, 1997) (“Although defendant claims that he never saw the officers’ repeated signals to stop, this was a question of credibility for the jury.”). The evidence was sufficient to establish that Defendant knew that Officer Jones was attempting to apprehend him and Defendant exited his vehicle and fled behind the residence. Defendant is not entitled to relief on this ground. -9-  Consecutive sentencing Defendant argues that the trial court failed to make the required findings under State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn. 1995) to warrant consecutive sentencing. When the record clearly establishes that the trial court imposed a sentence within the appropriate range after a “proper application of the purposes and principles of our Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The party challenging the sentence on appeal bears the burden of establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2017), Sentencing Comm’n Cmts. To facilitate meaningful appellate review, the trial court must state on the record the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706. In State v. Pollard, the Tennessee Supreme Court expanded its holding in Bise to trial courts’ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). Any one ground set out in the above statute is “a sufficient basis for the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates reasons for ordering consecutive sentences, thereby providing a basis for meaningful appellate review, the sentences will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R. Crim. P. 32(c)(1)). Tennessee Code Annotated section 40-35-115 sets forth seven different situations in which a trial court may impose consecutive sentencing, including when “[t]he defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4) (2017); see Wilkerson, 905 S.W.2d at 936. Before a trial court may impose consecutive sentences on the basis that a defendant is a dangerous offender, the trial court must also find “that an extended sentence is necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences . . . reasonably relate to the severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939. In order to limit the use of the “dangerous offender” category to cases where it is warranted, our supreme court has stated that the trial court must make specific findings about “particular facts” which show that the Wilkerson factors apply to the defendant. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Additionally, a trial court “may order sentences to run consecutively if the court finds by a preponderance of the evidence that . . . [t]he defendant is an offender whose record of criminal activity is extensive[.]” Tenn. Code Ann. § 40-35-115(b)(2) (2017). - 10 - This factor has been interpreted “to apply to offenders who have an extensive history of criminal convictions and activities, not just to a consideration of the offenses before the sentencing court.” State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999). Here, the trial court ordered partially consecutive sentences based on its findings that Defendant had an extensive history of criminal activity and that Defendant was “a dangerous offender whose behavior indicates little or no regard for human life because of the pistol whipping and his other crimes, no hesitation about committing a crime in which the risk to human life is high.” The trial court also “found the circumstances surrounding the commission of this offense [we]re aggravated in that [Defendant] [went] in with this home invasion, pistol whip[ped] this man, [and] call[ed] another person to come in with a gun” and that “confinement for an extended period of time [wa]s necessary to protect society from his unwillingness to lead to productive life, and his resort to criminal activity in furtherance of an anti[-]societal lifestyle[.]” Thus, the trial court clearly set out multiple grounds on which to base its order of consecutive sentencing. While the trial court did not explicitly find that “the consecutive sentences [were] reasonably relate[d] to the severity of the offenses committed[,]” see Wilkerson, 905 S.W.2d at 939, the trial court’s finding that Defendant had an extensive history of criminal activity is supported by the record and alone is sufficient to support the order of consecutive sentences. See Pollard, 432 S.W.3d at 862. The trial court found that Defendant had committed “violent crimes as a juvenile,” that Defendant had no employment history, and that he had “committed crimes all [of] his life.” Defendant had previously been convicted of two counts of aggravated assault, convicted felon in possession of a handgun, facilitation of aggravated robbery, and prior misdemeanors, and Defendant admitted to using marijuana. Additionally, Defendant stipulated at trial that he had previously been convicted of two counts of aggravated assault, convicted felon in possession of a handgun, and facilitation of aggravated robbery. Thus, the trial court did not abuse its discretion by ordering Defendant to serve his sentence in count one, aggravated robbery, consecutively to count two, aggravated burglary, and to count three, employing a firearm during the commission of a dangerous felony, for a total effective sentence of twenty-nine years. Defendant is not entitled to relief on this ground. Merger of convictions Defendant lastly argues that this court should address the issue of merger of count three, employing a firearm during a dangerous felony, count four, convicted felon in possession of a firearm, and count five, convicted felon in possession of a handgun, under plain error review because the convictions violate principles of double jeopardy. Defendant asserts that “[a] single, wrongful act forms the basis for all three of these convictions.” The State concedes that counts four and five must be merged. - 11 -  Defendant did not raise this issue in his motion for new trial and addresses this issue under plain error analysis. However, “the remedy for a double jeopardy violation is not a new trial but a dismissal of a charge or merger of convictions.” State v. Nicholas Keith Phillips, No. M2013-02705-CCA-R3-CD, 2015 WL 333084, at *8 (Tenn. Crim. App. Jan. 27, 2015) (citing State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997)), no perm. app. filed. Therefore, we will conduct a plenary review of this issue on the merits. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). With respect to the third category, the double jeopardy prohibition operates to prevent prosecutors and courts from imposing punishment that exceeds that authorized by the legislature. Id. at 542. Such single prosecution, multiple punishment claims ordinarily fall into one of two categories: (1) “unit-of-prosecution” or (2) “multiple description” claims. Id. at 543. Multiple description claims arise in cases where the defendant had been convicted of multiple criminal offenses under different statutes but alleges that the statutes punish the same offense. Id. at 544. Unit-of-prosecution claims arise when the defendant has been convicted of multiple violations of the same statute and asserts that the multiple convictions are for the same offense. Id. When reviewing multiple description cases, courts must determine whether the defendant committed two offenses or only one. Id. at 544. To do so, courts apply the test articulated in Blockburger v. United States, 284 U.S. 299 (1932). Blockburger, 284 U.S. at 304; Watkins, 362 S.W.3d at 544. The reviewing court should first determine whether the Tennessee General Assembly expressed an intent to permit or preclude multiple punishments. Watkins, 362 S.W.3d at 556. “Where the General Assembly’s intent is not clearly expressed, the Blockburger test should be applied to determine whether multiple convictions under different statutes punish the ‘same offense.’” Id. To make this determination, appellate courts must “examin[e] statutory elements of the offenses in the abstract, rather than the particular facts of the case.” State v. Cross, 362 S.W.3d 512 (Tenn. 2012). A Blockburger analysis requires two steps: (1) determine whether the statutory violations arose “from the same act or transaction” and (2) if they did arise from the same act or transaction, determine whether the offenses for which the defendant was - 12 - convicted constitute the same offense by comparing the elements of the offenses for which the defendant was convicted. Id. at 545. If each offense contains an element that the other does not, the statutes are treated as distinct, and courts presume that the legislature intended that the offenses be punished separately. Id. at 545-46. Whether multiple convictions violate the principles of double jeopardy is a mixed question of law and fact that appellate courts review de novo with no presumption of correctness. State v. Smith, 436 S.W.3d 751, 766 (Tenn. 2014). In State v. Martin Boyce, No. W2012-00887-CCA-R3-CD, 2013 WL 4027244, at *14-15 (Tenn. Crim. App. Aug. 6, 2013), no perm. app. filed, this court examined whether dual convictions of employing a firearm during the commission of a dangerous felony and being a convicted felon in possession of a handgun violated double jeopardy principles. This court applied the Blockburger test and concluded that the convictions arose from the same criminal conduct. Id. at *15. Next, this court examined the statutory elements of the two offenses and stated the following: Proof of a “prior qualifying conviction” for the offense of employing a firearm is not an element of the offense. Rather, the statute provides that a jury’s determination of a prior qualifying conviction is for purposes of sentencing. Tenn. Code Ann. § 39-17-1324(f), g(2), h(2). Employing a firearm during the commission of a dangerous felony is a Class C felony. Tenn. Code Ann. § 39-17-1324(h)(1), (h)(2). If the defendant has no prior felony convictions, the offense is punishable by a mandatory minimum six- year sentence; however, if the defendant has a prior felony conviction, the sentence is a mandatory minimum ten-year sentence. Id. Subsection (f) of the statute requires that a jury determination as to a defendant’s prior felony conviction be made in a bifurcated hearing where the State is seeking an enhanced sentence under subsection (h)(2). Id. § 39-17-1324(f). Therefore, we conclude that the offense of possession of a handgun by a convicted felon requires proof of an element that employing a firearm during the commission of a dangerous felony does not. Id. This court held that the dual convictions of possession of a handgun by a convicted felon and employing a firearm during the commission of a dangerous felony did not violate double jeopardy principles. Id. We see no reason to depart from the precedent set by this court in Martin Boyce. Therefore, counts four and five do not merge into count three, employing a firearm during the commission of a dangerous felony. We will apply the multiple description test to determine whether counts four and five should merge. See Smith, 436 S.W.3d at 766-68 (applying the multiple description test to determine whether convictions under multiple subsections of the same statute - 13 - violated double jeopardy). Regarding counts four and five, we initially conclude that the Tennessee General Assembly did not express intent to either preclude or permit multiple convictions under section 39-17-1307. Titled “Carrying or possession of weapons[,]” section 39-17-1307 does not contain an express provision permitting or prohibiting prosecution for the same criminal conduct under multiple subsections. Therefore, we must apply the two-step test from Blockburger. Applying the Blockburger analysis to counts four and five, we conclude that the statutory violations charged in counts four and five arise from the same criminal act. See Watkins, 362 S.W.3d at 545. Defendant’s convictions in counts four and five are based on Defendant’s possession of one handgun during a continuous transaction of criminal activity. Having concluded that counts four and five arise from the same criminal act or transaction, we must determine whether the offenses for which the Defendant was convicted constitute the same offense based on an analysis of the elements. As charged in count four, “[a] person commits an offense who unlawfully possesses a firearm . . . and . . . [h]as been convicted of a felony crime of violence[,]” based on Defendant’s aggravated assault conviction from 2010. Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2014) (emphasis added). As charged in count five, “[a] person commits an offense who possesses a handgun and has been convicted of a felony[,]” Tenn. Code Ann. § 39-17- 1307(c)(1) (2014) (emphasis added), based on Defendant’s previous convictions for convicted felon in possession of a handgun from 2012 and facilitation of aggravated robbery from 2010. In the two subsections at issue, the mens rea is not specified,1 and the actus reus is the act of possession. See id. Additionally, both statutes require the defendant to have been previously convicted of a felony, another essential element. See id. Because Watkins and its progeny apply the Blockburger test with an objective or abstract view, we conclude that the differences between the two subsections, such as firearm and handgun, and a prior felony conviction versus a prior felony conviction of violence, do not constitute separate elements. Additionally, we note that the category of handgun is subsumed within the category of firearm, and the category of a felony of violence is subsumed within the category of a felony. Thus, we conclude that these two offenses do not each have an element that the other does not have. Because these two statutes do not have an element that the other statute does not, Defendant’s convictions in counts four and five must merge. On remand, the trial court should merge the Class E felony conviction for convicted felon in possession of a handgun into the Class B felony conviction for convicted felon in possession of a firearm. See State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993). 1 Because section 39-17-1307 does not specify a mental state, “intent, knowledge or recklessness suffices to establish the culpable mental state.” Tenn. Code Ann. §39-11-301. - 14 -  III. Conclusion After a thorough review of the facts and applicable case law, we affirm Defendant’s convictions in counts one, two, three, and six and affirm the imposition of partially consecutive sentences. We remand this case for merger of count five, convicted felon in possession of a handgun, into count four, convicted felon in possession of a firearm, to ensure that Defendant is not subjected to double jeopardy. ____________________________________ ROBERT L. HOLLOWAY, JR., JUDGE - 15 - 

659 F.2d 1064 Zajacv.Harris 80-2280 UNITED STATES COURT OF APPEALS Second Circuit 4/14/81 1 E.D.N.Y. AFFIRMED

615 S.E.2d 139 (2005) 273 Ga. App. 367 CARD v. The STATE. No. A05A0043. Court of Appeals of Georgia. May 2, 2005. Reconsideration Denied May 23, 2005. *140 Bernadette C. Crucilla, Macon, for appellant. Howard Z. Simms, District Attorney, Eugene Felton, Jr., Assistant District Attorney, for appellee. BARNES, Judge. A jury convicted Stephen Wayne Card of two counts of aggravated assault on a police officer and one count of theft by receiving a stolen automobile. Card appeals, contending that insufficient evidence supports his convictions. He also asserts that the court erred by admitting evidence of a similar transaction and by refusing to allow Card to call a witness about whom the State was not given notice, and that his trial counsel was ineffective by failing to object to the admission of the similar transaction evidence when the State offered it at trial. For the reasons that follow, we affirm Card's convictions. 1. We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga.App. 254, 255, 485 S.E.2d 830 (1997). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict. Sims v. State, 226 Ga.App. 116(1), 486 S.E.2d 365 (1997). Viewed in that light, the evidence at trial established that several Macon police officers responded to a call about an automobile burglary in progress. While en route, they received an update that the car was a burgundy Oldsmobile-type with two black males in it. The first officer to arrive on the scene turned the corner onto a dead-end street and saw a burgundy Buick Regal a block away driving toward the dead-end. The car turned around and its headlights went off. The officer turned on his blue *141 lights and saw two black males inside the car, which then accelerated rapidly and came straight toward his car. To avoid a head-on collision, the officer was forced up onto the curb, damaging the rear wheel, which had to be replaced. When the second officer turned onto the dead-end street with his blue lights flashing, he saw a car coming toward him with its lights off at a high rate of speed. The first officer swerved to avoid a collision, and the second officer drove up onto the curb to avoid being hit head-on. These officers and two others began chasing the car. The driver was wearing a dark shirt, and the passenger was wearing a white t-shirt that he appeared to be trying to remove. The passenger also opened his car door several times during the chase, as if he wanted to get out. The first officer's "take-down" and bright lights were on during the three-minute chase, illuminating the inside of the fleeing vehicle, and the officer never lost sight of the car. The driver finally crashed the car into a fence, and the occupants had left the car by the time the first officer reached it. When he got to the car, the passenger was gone and the officer began to chase the driver, who he had been watching closely and who was running toward the woods. He caught the driver, who was wearing a dark shirt, and identified him at trial as Card. The officers found several amplifiers and CD players in the car, but no white shirt. The car's steering column was broken and wires were hanging loose in the car, but Card, who claimed to be the passenger, not the driver, said he did not notice any loose wires or small electronic devices in the car. He also said he told the police the driver was "Carlos," a street name, but had no opportunity to tell them the driver's real name. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Card guilty beyond a reasonable doubt of two counts of aggravated assault and one count of theft. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 2. Card also contends that the trial court erred in admitting evidence of a previous conviction as a similar transaction, arguing that the earlier offense was not similar to the one for which he was on trial, and that its prejudicial impact outweighed its probative value. In a related enumeration, he contends his trial counsel was ineffective because he failed to object to the similar transaction testimony when it was offered at trial, thus waiving his right to argue the issue on appeal. If the trial court did not err in admitting the evidence, then Card concedes that it also did not err in finding that trial counsel was not ineffective for failing to object to the evidence. Mika v. State, 256 Ga.App. 546, 551(7), 568 S.E.2d 818 (2002). We will reverse a trial court's decision to admit evidence of a similar transaction only if the court has abused its discretion. Mangham v. State, 234 Ga.App. 567, 569(1), 507 S.E.2d 806 (1998). After a hearing pursuant to Uniform Superior Court Rule 31.3(B), the trial court must determine whether the State has shown three things: (1) that it seeks to introduce evidence of the independent offense for an appropriate purpose and not to show the defendant's bad character; (2) that sufficient evidence establishes that the accused committed the independent offense; and (3) that a sufficient connection or similarity exists between the independent offense and the crime charged, so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). "The test ... is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character." (Citation and punctuation omitted.) Maggard v. State, 259 Ga. 291, 293(2), 380 S.E.2d 259 (1989). If the purpose of the similar transaction evidence is to prove the defendant's identity, then "a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant's `criminal signature.'" *142 Id. (evidence defendant committed prior manslaughter admissible in murder trial). Other purposes may be appropriate, such as those that demonstrate that the independent offense or act: is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged. (Citation and punctuation omitted.) Williams v. State, supra, 261 Ga. at 642, n. 2, 409 S.E.2d 649. At the similar transaction hearing in this case, the State presented the testimony of a police officer who stopped a car full of people in March 1999 after the driver, Card, committed a traffic violation. When the officer gave dispatch Card's name, a possible outstanding warrant came up. The officer tried to arrest him, but Card picked the officer up and threw him to the ground, knocking him unconscious. When the officer awoke, Card was gone, but the car and the passengers in it were still there. Card subsequently pled guilty in this similar transaction to felony obstruction of a law enforcement officer. The trial court found that the similar transaction was admissible because (1) it was offered for an appropriate purpose, to show motive, intent, or bent of mind; (2) Card clearly committed the prior offense; and (3) the prior offense was similar enough so that the proof of the former tended to prove the pending matter and the relevancy outweighed the prejudicial effect. As the court noted at the pre-trial hearing, in both incidents Card was driving a car, law enforcement attempted to stop him, he assaulted the officers either by fighting or using the automobile as a weapon, and he fled the scene after the assault. Before the similar transaction witness testified at trial, the court gave the jury a proper limiting instruction. Based on these facts, the trial court did not abuse its discretion by admitting evidence of the similar transaction. Further, because we find that the trial court did not err in this regard, it also did not err in finding that his trial counsel was not ineffective for waiving his right to argue the issue on appeal. Mika v. State, supra, 256 Ga.App. at 551, 568 S.E.2d 818. 3. Card's final argument is that the trial court erred because it would not allow him to call a defense witness that he identified on August 11, 2003, the day trial began. The State had filed its list of witnesses and request for reciprocal discovery on June 13, 2003, and Card was required to give the State his list of witnesses within ten days. OCGA § 17-16-8. Because Card failed to comply with this requirement, the trial court could "upon a showing of prejudice and bad faith, prohibit the defendant from ... presenting the witness not disclosed." OCGA § 17-16-6. Card argues that the court failed to find that his trial lawyer acted in bad faith. During the initial colloquy regarding this witness, the defense counsel told the court that Card did not tell him about the witness, who was his girlfriend, until the Friday before trial began on Monday, and further did not give him the name of the person he claimed was driving until then. The trial court, speaking of Card, said, "You can't hide [witnesses] until the last minute and fail to disclose them until the last minute." Defense counsel stated that Card's girlfriend would testify that, before Card was arrested, he left her house in a car that Card's friend was driving. The court then excluded the witness, ruling that because of the late notice, the State was prejudiced because it had no opportunity to question this witness and search for the friend who she said was driving, and also that the testimony would be cumulative of Card's testimony. Card had several months before trial in which to inform his attorney about the existence of his witness, and he offered no justification or valid excuse for his failure to do so until three days before trial. "Under these circumstances, evidence was presented authorizing a finding that [Card] acted in bad faith and that his actions prejudiced the State. We therefore cannot say the trial *143 court abused its discretion in granting the State's motion" to exclude the witness's testimony. Freeman v. State, 245 Ga.App. 384, 385(2), 537 S.E.2d 776 (2000). Judgment affirmed. RUFFIN, C.J., and JOHNSON, P.J., concur.

647 F.2d 164 Boothv.Califano 79-1298 UNITED STATES COURT OF APPEALS Sixth Circuit 2/23/81 1 E.D.Mich. AFFIRMED

396 Mich. 700 (1976) 242 N.W.2d 381 PEOPLE v. DEMPSTER Docket No. 55703, (Calendar No. 13). Supreme Court of Michigan. Argued April 9, 1975. Decided June 3, 1976. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and James M. Wouczyna, Assistant Prosecuting Attorney, for the people. Levine & Benjamin, P.C. (by Edwin S. Bean) for defendant Phyllis Dempster. Amicus Curiae: Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., and Marc A. Goldman, Assistants Attorney General, for Department of Commerce, Corporation and Securities Bureau. KAVANAGH, C.J. Defendants were convicted of selling unregistered securities in violation of the Uniform Securities Act, MCLA 451.701; MSA 19.776(301) in a 1971 bench trial in Detroit Recorder's Court, and defendant Phyllis Dempster was sentenced to a term of imprisonment. The convictions were affirmed by the Court of Appeals. Three issues are presented on appeal in this Court: (1) Whether the securities were exempt as "commercial paper" from the registration provisions of the statute? (2) Whether the statute impermissibly places the burden of proof on a defendant to prove an exemption? (3) Whether the "commercial *704 paper" exemption is sufficiently definite to sustain the criminal conviction? I. THE ACT The Uniform Securities Act, 1964 PA 265, became effective January 1, 1965, replacing the 40-year-old Michigan Blue Sky Law, 1933 PA 205.[1] The act substantially follows the language of the Uniform Securities Act. The Uniform Securities Act carries within itself the statement of its purpose, i.e. to "make uniform the law of those states which enact it and to coordinate the interpretation and administration of this act with the related federal regulation". MCLA 451.815; MSA 19.776(415). As a matter of judicial policy the act should be broadly construed to effectuate its purposes. Tcherepnin v Knight, 389 US 332, 336; 88 S Ct 548; 19 L Ed 2d 564 (1967). "In essence this legislation * * * is designed to protect the public against fraud and deception in the issuance, sale, exchange, or disposition of securities within the State of Michigan by requiring the registration of certain securities and transactions." Schmidt & Cavitch, Michigan Corporation Law (1974), p 1071. Violation of the act's provisions is punishable by fine and imprisonment. MCLA 451.809; MSA 19.776(409). II. THE COMMERCIAL PAPER EXEMPTION The Uniform Securities Act exempts certain *705 securities and transactions from its registration provisions.[2] One of the exemptions is for: "[a]ny negotiable promissory note or commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within 12 months of the date of issuance, exclusive of days of grace, or any renewal of such note or paper which is likewise limited, or any guarantee of such note or paper or of any such renewal." MCLA 451.802(a)(9); MSA 19.776(402)(a)(9). Defendants allege that the securities sold by Dempster Investment Company fit within this exemption, and thus need not have been registered. Mrs. Dempster and Dempster Investment Company sold to the general public shares in an "open-end trust account". One of the particular securities involved reads as follows: "Date December 2, 1969 Renewal of Trust Account Dated September 2, 1969 * * * "The Dempster Investment Company (a Michigan Corporation) incorporated February 27th, 1964 to engage and carry on a general brokerage and financial business, including mortgage brokerage and financing thereof — with Main Offices located at 14500 West Eight Mile Road, Oak Park, Michigan and branch offices throughout the State, as of this date, December 2nd, 1969, hereby creates an Open-End Trust Account for *706 Gerald N. Schultz and/or Charlotte A. Schultz with the principal sum of Three Thousand ($3,000.00) Dollars. "This principal sum ($3,000.00) is invested in the Dempster Investment Company at the rate of four (4%) percent per month interest payable each month on the principal amount owing with final total payment of principal amount ($3,000.00) due February 2nd, 1970. "In the event Gerald N. Schultz and/or Charlotte A. Schultz should want any part or all of principal sum withdrawn before the final due date — so be it — upon a thirty (30) day written notice. "DEMPSTER INVESTMENT COMPANY "By: Phyllis Dempster _________________ Its President". For the instruments sold by defendants to be exempt under § 402(a)(9) as claimed by them, they must either be negotiable promissory notes or commercial paper. The instruments clearly are not negotiable promissory notes because there are no words of negotiability; appellants do not claim otherwise. Appellants' major contention is that these instruments are "commercial paper" within § 402(a)(9). Unfortunately, the Uniform Securities Act does not define commercial paper. Appellants argue that because Article 3 of the Uniform Commercial Code is entitled "Commercial Paper", instruments satisfying MCLA 440.3805; MSA 19.3805 should be exempt under § 402(a)(9) of the Securities Act. Section 3-805 of the UCC, supra, reads: "This article applies to any instrument whose terms do not preclude transfer and which is otherwise negotiable within this article but which is not payable to order or to bearer, except that there can be no holder in due course of such an instrument." *707 This is the section relied upon by Mrs. Dempster. Professor James J. White of the University of Michigan Law School, an undisputed authority in the field of commercial transactions, was called as an expert witness by the defense at trial. Professor White testified that: "It would be my opinion that this [instrument] is commercial paper under Article 3". Professor White described the security involved as "a horribly drafted non-negotiable note". Assuming that Professor White's conclusion is accurate, the issue remains as to whether Article 3's concept of commercial paper should be read into the Securities Act.[3] The prosecution called, as their expert, Mr. John Hueni, Director of the Securities Bureau of the Michigan Department of Commerce. Mr. Hueni testified that the instruments involved here were securities, were not exempted, and were required to be registered. In People v Hall, 391 Mich 175, 189-190; 215 NW2d 166, 174 (1974), this Court in language particularly appropriate to this issue stated: "We begin our review of these statutes by affirming our previous holdings that penal statutes are to be strictly construed. Lansing v Brown, 172 Mich 50; 137 NW 535 (1912); People v Goulding, 275 Mich 353; 266 NW 378 (1936). However, as the Court pointed out in People v Consumers Power Co, 275 Mich 86; 265 NW 785 (1936), the fact that these types of statutes are narrowly construed does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation. With criminal *708 statutes, such end purpose is the evil sought to be corrected and the objects of the law sought to be effectuated. Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97; 86 ALR 509 (1933)." The application of the UCC concept of commercial paper is singularly inappropriate in this setting. The UCC is intended to "simplify, clarify and modernize the law governing commercial transactions". MCLA 440.1102(2)(a); MSA 19.1102(2)(a). The Uniform Securities Act, however, is intended to prevent an offering to the public of securities without first giving the Securities Bureau an opportunity to investigate the venture and determine whether sound policy justifies permitting the issuer to offer these securities for sale. Schmidt & Cavitch, Michigan Corporation Law (1974), p 1071. The broad concept of commercial paper that might be appropriate under the UCC provisions to facilitate commerce is, therefore, at odds with the purpose of the Securities Act to protect against swindles. The Uniform Securities Act was drafted as a means of discouraging swindlers from selecting a particular state in which to operate. With this purpose in mind, we look to the administrative and judicial interpretations of the commercial paper exemption rather than to the UCC.[4] The Uniform Securities Act, § 402, lists the exemptions to registration requirements. Section 402(a)(9) exempts "commercial paper". The Commissioners' notes to this provision state: "This exemption is modeled on § 3(a)(3) of the Securities Act of 1933, 15 U.S.C. § 77c(a)(3) * * *". The *709 Securities Act of 1933 exempts in 3(a)(3), supra, certain promissory notes with an original maturity date of less than nine months. The original 1933 draft of the Federal Securities Act provided no exemption for short-term notes. The § 3(a)(3) exemptions were then included by amendment because "it seemed to the [Federal Reserve] Board that the Act was not intended to apply to bankers acceptances or short-time paper issued for the purpose of obtaining funds for current transactions in commerce, industry, or agriculture and purchased by banks and corporations as a means of employing temporarily idle funds". Comment, The Commercial Paper Market and the Securities Acts, 39 U Chi L Rev 362, 382 (1972). Statements made during the hearings of the House Committee on Interstate and Foreign Commerce considering the 1933 act exhibit an understanding that the commercial paper to which the exemption was to be applied: "was sold only to banks and not to the `public'. Such a qualification was expressly included in the amended Senate version of the Act * * *. In the course of Senate debate, the exemption was amended to exclude that clause. The text of the motion to strike demonstrates that the commercial paper to which the securities legislation referred was not sold to the general public and that the original clause requiring that instruments exempted by section 3(a)(3) not be sold to the general public was deleted in order to insure that the exemption would be interpreted to include certain financial instruments, other than commercial paper, that were sold to the general public. Because commercial paper circulated only among banks, the provision in the original draft was thought to be unnecessary." Id. 385 (emphasis added) (citations omitted).[5] *710 The scope of this exemption was interpreted by the Securities and Exchange Commission in Release No 4412 (1961), 26 Fed Reg 9158, 9159 (1961): "The legislative history of the Act makes clear that section 3(a)(3) applies only to prime quality negotiable commercial paper of a type not ordinarily purchased by the general public, that is, paper issued to facilitate well recognized types of current operational business requirements and of a type eligible for discounting by Federal Reserve banks." Chief Judge Friendly, writing the opinion in Zeller v Bogue Electric Manufacturing Corp, 476 F2d 795, 800 (CA2, 1973), stated: "Such a ruling [Release No 4412, supra], by an agency charged with the administration of a statute, while not conclusive, is entitled to substantial weight". The SEC interpretation has also been relied upon in other cases regarding this claimed exemption. See, e.g., Sanders v John Nuveen & Co, Inc, 463 F2d 1075, 1079 (CA7, 1972), cert den 409 US 1009; 93 S Ct 443; 34 L Ed 2d 302 (1972); United States v Hill, 298 F Supp 1221, 1226-1227 (Conn, 1969); Anderson v Francis I du Pont & Co, 291 F Supp 705, 708 (Minn, 1968). Applying the standards enunciated above, which are in furtherance of the purposes of the Uniform Securities Act, to the instant case, the instruments sold by Dempster Investment Company fail on each ground. The Uniform Securities Act grants exemptions from registration only in those instances where the securities are virtually riskless, such as government bonds, nationally listed securities, etc.[6] Those exempt securities are "so inherently gilt-edge, or so unlikely to be utilized in a deceptive *711 scheme, that the Michigan Blue Sky Law exempts them from the prior registration requirement". Schmidt & Cavitch, Michigan Corporation Law (1974), p 1073. Considering these principles, and the clear purpose of the Uniform Securities Act to protect the public from the dangers inherent in the indiscriminate sale of instruments of indebtedness it would be irrational to exclude the type of securities involved here from the act's coverage. Inherent in the act's purpose is the prevention of just such sales to the general public without the protection afforded by disclosure. People v Walberg, 263 Cal App 2d 286; 69 Cal Rptr 457 (1968). We hold, therefore, that the type of instruments sold by appellants in this case were not "commercial paper" within the meaning of the Uniform Securities Act exemptions. III. BURDEN OF PROOF The Uniform Securities Act, MCLA 451.802(d); MSA 19.776(402)(d), states: "In any proceeding under this act, the burden of proving an exemption or an exception is upon the person claiming it". Appellants assert that this provision, included within a criminal statute, requires them to bear an unconstitutional burden of proving innocence. We disagree. The contention that the instruments involved here are "commercial paper" is in the nature of an affirmative defense as a claim "that the accused is within an exception or proviso in the statute defining the crime". McCormick on Evidence (Cleary ed, 1972), p 800: "[T]he recent trend is to treat these so-called matters of defense as situations wherein the accused will usually *712 have the first burden of producing evidence in order that the issue be raised and submitted to the jury, but at the close of the evidence the jury must be told that if they have a reasonable doubt of the element thus raised they must acquit." Id. 802. Recently, in People v Henderson, 391 Mich 612, 616; 218 NW2d 2, 4 (1974), we considered whether, in a prosecution for carrying a concealed weapon, by placing the burden of proving a license on the defendant the statute absolved the state of its burden of proving its entire case beyond a reasonable doubt. We stated that once the prosecution establishes a prima facie case of violation of the statute, "the defendant has the burden of injecting the issue of license by offering some proof * * * that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt." We interpreted the statute in that manner "not as absolving the state from proving one element of the crime, for to do so would vitiate the presumption of innocence". Id. We are cognizant of the fact that the concealed weapons statute speaks of the "burden of establishing" the license, and states that this does not shift the "burden of proof for the violation".[7] While that language might be preferable to that of the instant statute, the principle is not different.[8] *713 In United States, ex rel Shott v Tehan, 365 F2d 191 (CA6, 1966), cert den, 385 US 1012; 87 S Ct 716; 17 L Ed 2d 548 (1967), on a factual record very similar to the case at bar the same issue was raised. Shott was charged with violating the Ohio Securities Act by selling promissory notes without prior registration, and claimed that he was denied due process because the act's procedural provisions created an evidentiary presumption that he made an unlawful public offering of his promissory note and further shifted to the defendant the burden of proving his innocence. The Court, in rejecting appellant's contention, held: "The Ohio Blue Sky Law, as do similar State security regulations, places the burden on an offeror or seller of a security to determine if the security may be sold lawfully. Once the seller has determined that a security falls within a class of exempt securities, that knowledge is peculiarly within the personal knowledge of the seller. Considering the purpose of the State Securities Act, it cannot be said that lifting the burden of proof from the State in criminal prosecutions and casting upon the defendant the defense that he comes within an exemption is unreasonable and unfair. Here there is a general prohibition which is applicable to everyone who is unable to bring himself within the range of an exemption." 365 F2d at 195.[9] This Uniform Securities Act provision, read in light of People v Henderson, supra, must be interpreted to mean that once the state establishes a prima facie case of statutory violation, the burden of going forward, i.e., of injecting some competent evidence of the exempt status of the securities, *714 shifts to the defendant. However, once the defendant properly injects the issue, the state is obliged to establish the contrary beyond a reasonable doubt. Accord, United States v Dinneen, 463 F2d 1036 (CA10, 1972); Commonwealth v David, 1974 Adv Sheets 455; 309 NE2d 484 (Mass, 1974), Nelson v State, 355 P2d 413 (Okla Crim App, 1960).[10] There is ample evidence that the state met its burden here. IV. DEFINITENESS OF THE EXEMPTIVE PROVISION During oral argument in this case, counsel for defendants raised the issue of due process notice requirements of a criminal statute. It is contended that even if we hold that these instruments were not exempted from the registration requirements of the Uniform Securities Act as commercial paper, it would be a denial of due process to impose this interpretation retroactively and sustain defendants' conviction. Defendants argue that the record in this case provides evidence that even those charged with the enforcement of the state's securities law were of the view that if these instruments fit within the Uniform Commercial Code concept of "commercial paper", they would be exempt from registration. There is support for that contention in the record of Mr. Hueni's testimony. Because these instruments fit within an acceptable definition of commercial paper, it is contended that the defendants were free to rely on such a definition unless the statutory language clearly indicated otherwise. "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated *715 conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v Harriss, 347 US 612, 617; 74 S Ct 808; 98 L Ed 989 (1954). A criminal statute must be "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties". Connally v General Construction Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322 (1926). "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939). "[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v United States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493 (1971). Exemptions and provisos within a criminal statute must be defined with the same specificity as the prohibitive language of the statute. Cline v Frink Dairy Co, 274 US 445; 47 S Ct 681; 71 L Ed 1146 (1927). This court is not able, within the bounds of due process, to "interpret" a criminal statute which contains an ambiguous exemption such that it results in conviction of the defendant charged in the specific case. That is not the "fair warning" demanded by the Constitution. It is true that interpretations of statutory provisions by a court may add a clarifying gloss to otherwise unclear words, and thereby provide constructive notice to future defendants, but "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law * * *" and "* * * the effect is to deprive [the defendant] of due process of law in the *716 sense of fair warning that his contemplated conduct constitutes a crime." Bouie v City of Columbia, 378 US 347, 353, 355; 84 S Ct 1697; 12 L Ed 2d 894 (1964). While we are persuaded, therefore, that the "clarifying gloss" we have placed upon the commercial paper exemption in this opinion is correct when the purpose of the Uniform Securities Act is thoroughly considered, we are also persuaded that the term "commercial paper" standing by itself was not sufficiently definite to allow this conviction to stand. "The objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss." Freund, The Supreme Court and Civil Liberties, 4 Vand L Rev 533, 541 (1951). (Emphasis added.) The fact that the instrument involved in this case was not of the type "intended" to be exempted from the Act's registration provisions does not allow a different result in this case. There is no doubt that if this instrument had read "payable to the order of Gerald N. Schultz", it would be a negotiable promissory note. Section 402(a)(9) exempts negotiable promissory notes from the Act's registration provisions. Thus, it would appear that Mrs. Dempster could not be convicted for failure to register the instrument. This would be the case despite the fact that this "negotiable promissory note" would certainly not be of the type intended to be exempted from the Act's registration provisions. It would be no more "prime quality paper of a type not ordinarily purchased by the general *717 public * * *" than the instrument involved in the present case. Without a prior "clarifying gloss" or a clear definition of the special kind of negotiable promissory note intended to be exempted under the statute, or perhaps some form of prior actual notice that the instruments are not of the type exempted from registration,[11] a conviction could not stand for failure to register such a negotiable note. "To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated." United States v Wiltberger, 18 US (5 Wheat) 76, 96; 5 L Ed 37 (1820). Thus, while the construction we have placed on the commercial paper exemption is valid for the future, "it may not be applied retroactively, any more than a legislative enactment may be, to impose criminal penalties for conduct committed at a time when it was not fairly stated to be criminal". Bouie v City of Columbia, supra, 362. See also, Douglas v Buder, 412 US 430; 93 S Ct 2199; 37 L Ed 2d 52 (1973). As we recently said in People v Bloss, 394 Mich 79, 81; 228 NW2d 384 (1975): "We are persuaded that defendant's conviction cannot stand for the reason that at the time he did the act *718 complained of this Court had not construed the * * * statute * * * to proscribe such conduct." Conclusion The conviction is reversed and the defendant is discharged. WILLIAMS, LEVIN, COLEMAN, and FITZGERALD, JJ., concurred with KAVANAGH, C.J. LINDEMER and RYAN, JJ., took no part in the decision of this case. NOTES [1] State securities laws have generally been referred to as "Blue Sky Laws" due to the fact that such legislation is intended to prevent "speculative schemes which have no more basis than so many feet of `blue sky'". Hall v Geiger-Jones Co, 242 US 539, 550; 37 S Ct 217; 61 L Ed 480 (1917). [2] MCLA 451.801(l); MSA 19.776(401)(l) defines "security" as: "any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; * * * or, in general, any interest or instrument commonly known as a `security' * * *." The instruments sold by Mrs. Dempster were clearly "securities" within the definition of this act. [3] Professor White, with admirable candor, expressly stated on several occasions during the trial that he was not an expert on Blue Sky Laws or securities. E.g. "You try to push me into testifying as to my interpretation of the SEC and what I am really saying, and I am competent to say, is what commercial paper means under Article 3 of the UCC". [4] The comments of The National Conference of Commissioners and American Law Institute to UCC 3-101 state: "It should be noted especially that this Article does not apply in any way to the handling of securities. Article 8 deals with that subject." UCC 3-103(1) states: "This article does not apply to money, documents of title or investment securities." [5] For a general discussion of the legislative history of the 1933 act, see Landis, The Legislative History of the Securities Act of 1933, 28 Geo Wash L Rev 29 (1959). [6] MCLA 451.802(a)(1)-(10); MSA 19.776(402)(a)(1)-(10). [7] MCLA 776.20; MSA 28.1274(1) provides: "In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation." [8] Probably the clearest statement of the principle intended by such a proviso is found in the Drug Abuse Prevention & Control Act, 84 Stat 1279 (1970), 21 USCA 885(a)(1): "It shall not be necessary for the United States to negative any exemption or exception set forth in this title [subchapter] in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this title [subchapter], and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit." [9] Accord, State v Goodman, 110 Ariz 524; 521 P2d 611 (1974). [10] See also Model Penal Code (Proposed Official Draft, 1962), § 1.12. [11] There are provisions within the Uniform Securities Act for the issuance of cease and desist orders and injunctions. We need not decide here whether such orders would satisfy the due process notice requirements in a particular case where the activity continued thereafter. MCLA 451.808; MSA 19.776(408).

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 3, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court ABE LEHI, Petitioner-Appellant, No. 07-1131 v. (Case No. 07-cv-180-ZLW ) J. C. ZUERCHER, W arden, (D . Colo.) Respondent-Appellee. OR D ER AND JUDGM ENT * Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges. This pro se 28 U.S.C. § 2241 federal prisoner appeal is the fourth in a series of pleadings brought by Petitioner to challenge his conviction and sentence. After a careful review of Petitioner’s brief, the record on appeal, and the district court’s disposition, we affirm. Although Petitioner’s pleading purported to seek relief under § 2241, the district court correctly noted that, “[d]espite his protests to the contrary, M r. Lehi * 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. After examining Petitioner’s brief and the 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. is challenging the validity of his conviction and sentence.” (Order and Judgment of Dismissal at 2.) “The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). 1 The § 2255 remedy will be inadequate or ineffective only in “extremely limited circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). The fact that Petitioner has been denied relief under § 2255 and may be barred from filing a second or successive § 2255 petition does not demonstrate that the remedy provided in § 2255 is inadequate or ineffective. Id.; see also Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). Because Petitioner challenges the validity of his judgment and sentence and has not demonstrated that he lacks an adequate and effective remedy under § 2255, his § 2241 petition is inappropriate. Accordingly, we AFFIRM the district court’s dismissal of the action. Petitioner’s motion for leave to proceed in form a pauperis is GRANTED. Entered for the Court M onroe G. M cKay Circuit Judge 1 Petitioner’s reliance on Boyce v. Ashcroft, 251 F.3d 911, 917-18, vacated as moot, 268 F.3d 953 (10th Cir. 2001), is misplaced. Boyce dealt only with the distinction between habeas petitions and Bivens actions, see Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and did not purport to alter the well-established distinction between § 2241 and § 2255 habeas petitions. -2- 

885 F.2d 878 U.S.v.Blaik** NO. 88-8623 United States Court of Appeals,Eleventh Circuit. AUG 25, 1989 1 Appeal From: N.D.Ga. 2 AFFIRMED. ** Local Rule 36 case

867 S.W.2d 858 (1993) HUMANA HOSPITAL CORPORATION, INC., Relator, v. Honorable Carolyn SPEARS-PETERSEN, Respondent. No. 04-93-00659-CV. Court of Appeals of Texas, San Antonio. December 15, 1993. *859 Ty Griesenbeck, Jr., Deborah L. Klein, Plunkett, Gibson & Allen, Inc., San Antonio, for relator Humana Hosp. Rosemary L. Hollan, Foster, Lewis, Langley, Gardner & Banack, August C. Toudouze, San Antonio, for respondent Spears-Petersen. Before BUTTS, GARCIA and RICKHOFF, JJ. OPINION GARCIA, Justice. This original mandamus proceeding involves the confidentiality of accreditation reports prepared by the Joint Commission on Accreditation of Healthcare Organizations in its survey of Humana Hospital-San Antonio (the hospital).[1] We hold that the reports are privileged from discovery. The underlying suit is a medical malpractice action brought by Margaret G. Garcia against Dr. Govind P. Garg and relator Humana Hospital Corporation. Garcia alleges that she was scheduled to receive a cervical epidural steroid injection but was given instead a lumbar epidural steroid injection by Dr. Garg at the hospital on April 18, 1990 without her permission or informed consent. Garcia sued Garg under Tex.Rev.Civ.Stat. Ann. art. 4590i (Vernon Supp.1993) alleging battery, lack of informed consent, fraud, negligence, and gross negligence. Garcia sued Humana for negligent credentialing and negligent supervision and monitoring of Garg's clinical privileges and competency. She also alleged that Humana's conduct was willful or constituted conscious indifference. Humana received notices of intention to take the oral depositions duces tecum of Andy Williams, the hospital's chief operating officer, and Susan Rothenberg, an employee of the hospital in 1990. The lists of requested documents were identical for both notices. Humana filed objections to many of the document categories and simultaneously filed a motion for protective order. At the hearing on Humana's objections and motion, Humana produced in a sealed envelope copies of reports prepared by the Joint Commission regarding the accreditation of the hospital for the years 1987-90. The documents include a "written progress report" prepared by a team of surveyors employed by the Joint Commission and an award of accreditation contingent on compliance with the recommendations set out in the report. The recommendations note where the hospital has failed to meet certain of the Joint Commission's published standards and suggest *860 measures for achieving those goals. Subsequent correspondence notes the removal of contingencies based on the hospital's compliance with accreditation standards. After in camera inspection, respondent denied Humana's motion for protective order as to these documents. Respondent allowed Humana to redact from the copies any information not pertaining to credentialing, monitoring, or supervision practices of the hospital in regard to its physicians. It is of this portion of the order that Humana complains in its petition for writ of mandamus. Mandamus lies to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker, 827 S.W.2d at 840. Thus, a clear failure to analyze or apply the law correctly will constitute an abuse of discretion. Id. There is no adequate remedy by appeal of an order that requires the production of privileged information that will materially affect the rights of the aggrieved party. Id. at 843. The burden of proof to establish the existence of a privilege rests on the one asserting it, in this case, Humana. Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex.1985). Humana asserts that the discoverability of the Joint Commission reports is a case of first impression. A privilege for hospital review committee deliberations is, however, recognized by statute and case law. "The records and proceedings of a medical committee are confidential and are not subject to court subpoena." Tex.Health & Safety Code Ann. § 161.032(a) (Vernon 1992) (formerly article 4447d(3)). The statute defines "medical committee": (a) In this subchapter, "medical committee" includes any committee, including a joint committee of: (1) a hospital; (2) a medical organization; (3) a university medical school or health science center; (4) a health maintenance organization...; (5) or an extended care facility. (b) The term includes a committee appointed ad hoc to conduct a specific investigation or established under state or federal law or rule or under the bylaws or rules of the organization or institution. TEX.HEALTH & SAFETY CODE ANN. § 161.031 (Vernon 1992). The supreme court has construed the privilege in a series of cases. The purposes of medical research and education, and the improvement of medical treatment, in any particular hospital or medical care facility is [sic] served by the free and uninhibited discussion of all events and experiences within the hospital or facility. The Legislature by this amendment must have intended to protect and encourage open and thorough review and investigation by making the records and proceedings of any such committee confidential by expressly providing that they "shall not be available for court subpoena." Texarkana Memorial Hosp., Inc. v. Jones, 551 S.W.2d 33, 35 (Tex.1977) (emphasis in original) (quoting art. 4447d, § 3). The court reasoned that if the records were beyond the reach of court subpoena, "then the deliberations of every group of persons constituted by the rules and bylaws of the hospital in its service is [sic] placed behind the veil." Id. [T]he statutory language, "records and proceedings" means those documents generated by the committee in order to conduct open and through review. In general, this privilege extends to documents that *861 have been prepared by or at the direction of the committee for committee purposes. Documents which are gratuitously submitted to a committee or which have been created without committee impetus and purpose are not protected. Jordan v. Court of Appeals, 701 S.W.2d 644, 647-48 (Tex.1985). The privilege extends to minutes, correspondence between members relating to the deliberation process, and any final committee work product such as recommendations. Id. at 648. The privilege serves the limited purpose of protecting uninhibited discussion of matters subject to committee review and, thus, extends only to information "sought out or brought to the attention of the committee for purposes of an investigation, review, or other deliberative proceeding." Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988). See also Harris Hosp. v. Schattman, 734 S.W.2d 759, 761 (Tex.App.—Fort Worth 1987, orig. proceeding) (purpose of the privilege is to encourage "open and thorough review" of the staff and procedures of the hospital). Thus, letters requesting information regarding credentials and experience of the physicians, while potentially useful for committee deliberations, were held to be routine administrative records prepared by the hospital in the ordinary course of business and were not protected by the privilege. Barnes, 751 S.W.2d at 496. See also Tex.Health & Safety Code Ann. § 161.032(c) (Vernon 1992) (records made or maintained in the regular course of business by a hospital are not confidential). Williams testified that the Joint Commission is an organization that surveys and accredits hospitals across the country. The accreditation is voluntary, and the hospital has chosen to have the accreditation done. For its accreditation the Joint Commission looks at certain set standards for hospitals to abide by in maintaining quality care. Humana's executive committee is charged by the hospital's by-laws to keep abreast of the accreditation process. The Joint Commission sends a team of accreditors to the hospital to review its procedures and meet with its staff. The information from the Joint Commission is provided only to the medical staff and to the hospital. The court, without objection, took judicial notice that the Joint Commission is a recognized organization in a health care community for maintaining medical standards at hospitals. Full accreditation is for a period of three years. The hospital was accredited by the Joint Commission for the years 1987 through 1990, and reaccredited in 1990. The Joint Commission is directed by a 22-member board of commissioners whose members are appointed by the American Medical Association, the American Hospital Association, the American College of Physicians, the American College of Surgeons, and the American Dental Association. One member is a private citizen. The accreditation process includes: (1) the development of reasonable standards that every organization should be expected to meet and that the health professions agree will have a positive effect on patient care, (2) the voluntary request for survey, (3) the survey of the health-care organization by professionals who assess compliance with the standards and provide consultation to promote achievement of greater levels of compliance, and (4) the use of the standards and survey results by the surveyed organization to improve patient care. The information obtained in the survey process is held in confidence between the Joint Commission and the organization surveyed. Humana argues that the Joint Commission reports clearly fall within the privilege provided in sections 161.031 and 161.032. It asserts that hospitals, under an assurance of confidentiality, voluntarily cooperate with the Joint Commission investigations and openly discuss problem areas and methods of improvement in a candid manner of self-inquiry in order to improve patient care. Humana argues that release of the Joint Commission recommendations would do more than "chill" the effectiveness of such accreditations—no prudent hospital would discuss or release any *862 information to the Joint Commission knowing that it could be used against it in malpractice suits. Garcia argues first that the Joint Commission is not a "medical committee" as defined in section 161.031. The determinative factor is not whether the entity is known as a "committee," or a "commission," or by any other particular term, but whether it is organized for the purposes contemplated by the statue and the case law. We think it is clear from the evidence we have detailed that the Joint Commission is a joint committee made up of representatives of various medical organizations and thus fits within the statutory definition. Section 161.031(a)(2).[2] Further, it is organized, as are the various in-house medical committees that indisputably come within the statute, for the laudable purpose of improving patient care. Both the statute and the case law recognize that the open, thorough, and uninhibited review that is required for such committees to achieve their purpose can only be realized if the deliberations of the committee remain confidential. Garcia also makes a waiver argument, contending that the Joint Commission report was voluntarily disclosed to a third party— the hospital. The only disclosure, however, was to the hospital as the intended beneficiary of the committee's findings. The only disclosure made to the outside world was the accreditation certificate, which merely declares that the hospital has been awarded accreditation by the Joint Commission. The report has remained confidential between the Joint Commission and the hospital. Jordan is a waiver case. In that case the plaintiffs sought discovery of various hospital documents including the papers of various hospital committees. A number of the requested documents had come into the possession of the Bexar County Grand Jury. The court held that the real parties at issue had failed to carry their burden to show that no waiver had occurred. 701 S.W.2d at 649. In the present case, there has been no disclosure outside the closed circle of the reviewing committee and the subject of its review. Garcia's final argument is that the documents in question constitute routinely accumulated information developed in the course of the accreditation process and therefore enjoy no privilege. Jordan makes clear that "any final committee product, such as recommendations ..." is privileged. 701 S.W.2d at 648. The documents in question set out the results of the Joint Commission's survey, including deficiencies in compliance along with the Commission's recommendations for meeting its standards. Further correspondence notes when compliance in each deficient area has been achieved. Jordan makes clear that the privilege does not extend to "[d]ocuments which are gratuitously submitted to a committee or which have been created without committee impetus...." 701 S.W.2d at 648. Such documents include routine administrative records prepared by hospitals in the ordinary course of business. Barnes, 751 S.W.2d at 496. Clearly the documents in question reflect the deliberative process of the Joint Commission and are therefore privileged. Id. Respondent abused her discretion in ordering production of the Joint Commission reports. We are confident that Judge Spears-Petersen will vacate her November 3 order regarding the Joint Commission reports (Defendant's Exhibit 7) and issue an order granting Humana's motion for protective order as to those documents. The writ of mandamus will issue only if Judge Spears-Petersen fails to do so. NOTES [1] The Joint Commission on the Accreditation of Healthcare Organizations was previously known as the Joint Commission on the Accreditation of Hospitals. This organization will be referred to in this opinion as "the Joint Commission." [2] Although the statute refers to a joint committee of a medical organization, we note that the Code Construction Act provides that the singular tense includes the plural. TEX.GOV'T CODE ANN. § 311.012(b) (Vernon 1988). Thus the definition of medical committee also includes a joint committee of multiple medical organizations.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-41189 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTONIO ARROYO-JUAREZ, also known as Rogelio Ortega-Lopez, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-132-1 -------------------- June 7, 2001 Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges. PER CURIAM:* Antonio Arroyo-Juarez (“Arroyo”) appeals his conviction for illegal reentry after deportation, pursuant to 8 U.S.C. § 1326. He contends that the Government failed to allege his prior aggravated felony conviction in his indictment. He also contends that the district court erred by “double counting” his aggravated felony conviction to increase both his offense level and criminal history score. Arroyo concedes that his first contention in this appeal is foreclosed by the Supreme Court’s decision in Almendarez-Torres * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 00-41189 -2- v. United States, 523 U.S. 224, 235 (1998), and that he raises the issue solely to preserve it for review by the Supreme Court. Arroyo’s second contention is without merit. See United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995). This court affirms the judgment of the district court. AFFIRMED. 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 1 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CRAIG BRUCE McKINNEY, No. 17-15620 Plaintiff-Appellant, D.C. No. 3:16-cv-00448-MMD- VPC v. RICK MARTINEZ, individually and as an MEMORANDUM* officer of Fire Extinguisher Service Center, LLC; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Submitted October 23, 2017** Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges. Craig Bruce McKinney appeals pro se from the district court’s dismissal of his action alleging Racketeer Influenced and Corrupt Organizations Act (“RICO”) and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A); Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) (dismissal based on the applicable statute of limitations). We affirm. The district court properly dismissed McKinney’s action as time-barred because McKinney failed to file his action within the applicable statute of limitations. See Pincay v. Andrews, 238 F.3d 1106, 1108-09 (9th Cir. 2001) (civil RICO claims have a four-year statute of limitations, which begins to run when a plaintiff knows or should have known of the injury underlying the action); Grimmett v. Brown, 75 F.3d 506, 515-16 (9th Cir. 1996) (civil RICO claims were not tolled during the pendency of a prior judicial action because the prior judicial action was not a perquisite to review in federal court). We do not consider documents and facts not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). AFFIRMED. 2 17-15620 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOANN MARSHALL, ) ) Appellant, ) ) v. ) Case No. 2D17-2868 ) STATE FARM MUTUAL AUTOMOBILE ) INSURANCE COMPANY, ) ) Appellee. ) ) Opinion filed October 10, 2018. Appeal from the Circuit Court for Pasco County; Declan Mansfield, Judge. Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and James J. Dowling of Law Offices of Berger & Dowling, Palm Harbor, for Appellant. Dyana L. Sisti and Anthony J. Parrino of Reynolds Parrino Spano & Shadwick P.A., St. Petersburg, for Appellee. PER CURIAM. Affirmed. KHOUZAM, BLACK, and SALARIO, JJ., Concur. 

61 F.3d 911 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.James HUGHEY, Plaintiff-Appellant,v.GENERAL ELECTRIC CO.; General Electric Aircraft Engines,Aviation Service Department, a corporation; andUnited Electrical, Radio and MachineWorkers of America,Defendants-Appellees. No. 94-55086. United States Court of Appeals, Ninth Circuit. Submitted July 13, 1995.*Decided July 21, 1995. 1 Before: FARRIS and O'SCANNLAIN, Circuit Judges, and TASHIMA, District Judge**. 2 MEMORANDUM*** 3 Hughey appeals the district court's grant of summary judgment to defendants in this action under 42 U.S.C. Secs. 1981, 1982, and 1985(3) for alleged racial discrimination in the workplace. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm. BACKGROUND 4 Hughey, an African-American, has been a General Electric engine mechanic for approximately fifteen years. He is a member of a collective bargaining unit that is represented by United Electric, Radio and Machine Workers of America. The Union's agreement with GE prohibits discrimination based on race. Grievance and arbitration procedures exist to resolve disputes regarding alleged violations of the collective bargaining agreement. Over the years, Hughey has filed numerous grievances against General Electric for job assignment discrimination. 5 Hughey commenced this action on November 16, 1992. His complaint asserts that he was discriminated against because of his race with regard to compensation, terms, conditions, and privileges of employment. This alleged discrimination includes receiving inferior job assignments and failure to be promoted. He further alleges that he has been subjected to harassment at work, and that the Union has not adequately pursued his grievances. 6 GE and the Union construed Hughey's complaint as asserting claims under Title VII, Sec. 1981, Sec. 1982, and Sec. 1985(3), and a state law claim for intentional infliction of emotional distress. In response to summary judgment motions, however, Hughey clarified that his complaint only asserts claims under Sec. 1981, Sec. 1982, and Sec. 1985. 7 On November 3, 1993, the district court: (1) granted the Union's motion for summary judgment on all claims; (2) granted GE's motion with regard to the Sec. 1981 claim; and (3) provided that GE could file a subsequent summary judgment motion as to the Sec. 1982 and Sec. 1985(3) claims. On December 13, 1993, the district court granted summary judgment for GE on the remaining claims. Hughey timely appeals. DISCUSSION 8 We review de novo the district court's grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). A. Sec. 1981 Claim 9 Hughey's Sec. 1981 racial discrimination claim requires the same prima facie showing as a Title VII claim. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).1 He must provide evidence "which gives rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "Purely conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment." Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir.1988). 10 To establish a prima facie case of discrimination in job assignments or promotions, Hughey must show that (1) he belongs to a protected class, (2) he was qualified for a job, (3) an employment decision was made despite these qualifications, and (4) the position remained open and the employer continued to consider applicants with comparable qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 11 In his effort to survive the summary judgment motions by GE and the Union, Hughey relied exclusively on his deposition testimony. Although the portions of the deposition transcripts relied upon are replete with conclusory allegations of unfair treatment and discrimination, there is an absence of factual support for his claims. The transcripts reveal that Hughey was unable to cite specific facts suggesting that GE or the Union treated him differently in any way than similarly situated non-Black employees. He has therefore failed to establish a prima facie case of racial discrimination with regard to promotions, job assignments, discipline, or processing of grievance petitions. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 253. 12 The record also fails to support Hughey's racial harassment claim. "For harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation omitted). It was not error to grant summary judgment to GE and the Union on Hughey's Sec. 1981 claim. B. Sec. 1982 and Sec. 1985 Claims 13 Hughey's briefs contain no discussion of his claims under Sec. 1982 and Sec. 1985. Those issues are waived on appeal. Northwest Acceptance Corp. v. Lynnwood Equipment, 841 F.2d 918, 924 (9th Cir.1988). C. Attorney's Fees and Costs 14 All parties request attorney's fees and costs. Failure to prevail precludes Hughey's request. 15 GE and the Union argue that they are entitled to attorney's fees and costs under Federal Rule of Appellate Procedure 38 because Hughey had no grounds to file the underlying complaint or this appeal. 16 We have discretion to award attorney's fees and costs as a sanction for pursuing a frivolous appeal. Fed.R.App.P. 38; Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir.1989). "An appeal is considered frivolous in this circuit when the result is obvious or the appellant's arguments are wholly without merit." McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir.1981) (citations omitted). While Hughey's appeal lacks merit, it is not frivolous. We deny the requests of GE and Union for attorney's fees and costs. 17 AFFIRMED. * The panel unanimously finds this case appropriate for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4 ** Honorable A. Wallace Tashima, United States District Judge for the Central District of California, sitting by designation *** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3 1 This part of Patterson was not altered by the Civil Rights Act of 1991

Filed 1/27/16 Ubarieke v. Wal-Mart Stores CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA PATERSON UBARIEKE, D063555 Plaintiff and Appellant, v. (Super. Ct. No. 37-2010-00096254- CU-OE-CTL) WAL-MART STORES, INC. et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed. Paterson Ubarieke, in pro. per., for Plaintiff and Appellant. Petit Kohn Ingrassia & Lutz, Jennifer N. Lutz and Jenna H. Leyton-Jones for Defendants and Respondents. This employment discrimination case was tried without a jury, and, at the close of plaintiff and appellant Paterson Ubarieke's case, the trial court granted defendants and respondents Wal-Mart Stores, Inc. et al.'s (Walmart) motion for judgment under Code of Civil Procedure section 631.8. In granting the motion, the trial court stated that the case turned largely on matters of credibility and that Ubarieke, who was acting in propria persona, had not produced credible evidence in support of his claims. On appeal, we reject Ubarieke's contentions that: defense counsel engaged in fraud; there was any irregularity in the proceedings, error in law, accident or surprise that warrant vacation of the judgment; or the judgment is unsupported by or otherwise against the law. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Ubarieke was employed by Walmart from October 2005 until November 2010, when he resigned from his position as a retail associate at Walmart's Poway store. In November 2006, Ubarieke was transferred from one department of the store to another after a number of female associates reported Ubarieke behaved inappropriately around them and an actual altercation between Ubarieke and a female associate occurred. The female associate stated Ubarieke acted disrespectfully towards her. In June 2008, a Walmart assistant manager, Michael Macumber, gave Ubarieke a "coaching" session, the initial level of discipline Walmart uses with its employees. At Walmart, verbal coaching is followed by written coaching, "decision-making day," and termination. The June 2008 coaching session addressed an incident in which Ubarieke ignored a directive from Macumber and argued with Macumber and other management personnel in the presence of customers. In March 2009, Ubarieke received another coaching for insubordination when he ignored directives from his supervisors. On June 12, 2009, Ubarieke received a third coaching because he both ignored a directive and threatened a supervisor with legal action. Because the third coaching was 2 a "Decision Day" coaching, consistent with Walmart policy, Ubarieke was provided one day off of work with pay to determine whether he would change his behavior and write a plan of action explaining how he intended to improve his behavior. Ubarieke, however, refused to write a plan of action. Instead, on June 19, 2009, Ubarieke, acting in propria persona, filed his first employment discrimination action (First Lawsuit) against Walmart and a number of Walmart supervisors, including Macumber. In the First Lawsuit, Ubarieke alleged inter alia that he had been discriminated against and harassed on the basis of his race, color, national origin and gender, and that he had been retaliated against for complaining about allegedly illegal conduct. Ubarieke further alleged Walmart had breached a contract it allegedly had with him. 1 On June 25, 2009, Walmart's management personnel met with Ubarieke to discuss his refusal to write a plan of action in connection with his Decision Day coaching. During this meeting, Ubarieke continued to exhibit defiant conduct and was ultimately permitted to return to his department notwithstanding his refusal to write a plan of action. On or about July 4, 2009, Walmart received a complaint from a customer after Ubarieke refused to assist her. When managers spoke with Ubarieke about this incident, he denied a customer had ever approached him. On or about September 8, 2009, Ubarieke received a performance evaluation, which noted that he needed to be "willing to help out when asked." In May 2010, 1 On October 22, 2010, the trial court granted defendants' motion for summary judgment in the First Lawsuit, and thereafter entered judgment against Ubarieke. We affirmed that judgment. (Ubarieke v. Walmart Stores (Feb. 29, 2012, D058556) [nonpub. opn.].).) 3 Ubarieke commenced a medical leave of absence. On July 16, 2010, while the First Lawsuit was pending, Ubarieke filed the instant lawsuit in which he again alleged claims of employment discrimination. Ubarieke named Walmart and a number of its employees as defendants. As we indicated, Ubarieke resigned in November 2010. Prior to trial, the trial court granted in part defendants' motion for summary judgment and summary adjudication. As we noted at the outset, trial of Ubarieke's remaining claims was by the court, and, at the close of Ubarieke's case, Walmart and the remaining individual defendant moved for judgment under Code of Civil Procedure section 631.8. In granting the motion, the court stated: "In the court's view, this case comes down largely to a credibility determination. The court has carefully assessed the credibility of the witnesses and considered their attitude and demeanor while testifying. As a general matter, there was little or no corroborating evidence concerning the allegedly racially discriminatory statements or motivations for the actions of Wal-Mart's personnel." With respect to Ubarieke's principal claim that his coaching sessions and discipline were racially motivated, the trial court stated: "The court is also persuaded by the fact that two of the managers who were involved in both asking Plaintiff to perform work and providing him coachings in connection with his refusal to do so were African American. Both Venson Pugh and Cheneque Moots testified that Plaintiff's race and national origin played no role in the coachings he was provided. [¶] Moreover, Moses Nwosu, a Nigerian associate like Plaintiff, testified that he never saw evidence of discrimination against Nigerians at Wal-Mart. [¶] Plaintiff also failed to present any credible evidence establishing that similarly situated 'white' associates received better pay than he, or that he was denied a promotion to management on account 4 of any protected characteristic." After the trial court granted Walmart's motion for judgment, Ubarieke moved for a new trial, which the trial court denied.2 Thereafter, Ubarieke moved for relief from the judgment, which motion was also denied. DISCUSSION I In related arguments, Ubarieke contends Walmart's counsel unfairly and improperly interfered with his ability to compel testimony from Walmart employees and introduced into evidence a misleading videotape of deposition testimony. He also contends the trial court abused its discretion in failing to compel the attendance of a former Walmart employee and in permitting one of its employees, who was also a witness, to stay in the courtroom during the trial. Ubarieke's motion for new trial was based on what he believed was counsel's impropriety and the trial court's supposed errors. We find no impropriety on counsel's part or any error or abuse of discretion by the trial court and hence no error in the order denying Ubarieke's motion for a new trial. A. Procedural Background 1. Witnesses On the first day of trial, the trial court considered Walmart's motion to exclude testimony from witnesses not disclosed during discovery. The trial court granted Walmart's motion in part and denied it in part. The trial court determined that Ubarieke could call current Walmart employees as witnesses and that Walmart would produce 2 We grant Ubarieke's August 31, 2015 motion to augment the record with exhibits attached to Walmart's opposition to Ubarieke's motion for a new trial. 5 them upon Ubarieke's request. The trial court however excluded witnesses who were no longer employed by Walmart and had not been disclosed during discovery. During the course of the trial, Walmart in fact produced, at Ubarieke's request, 13 employees. Notwithstanding the trial court's order that Walmart produce its employees as witnesses, and Walmart's compliance with the order, Ubarieke nonetheless had a number of Walmart employees served with subpoenas. Significantly, the subpoenas directed the employees to appear on days the trial court had advised the parties that its courtroom would be dark. Ubarieke contends that some of his subpoenas were not served because the process server was erroneously advised that some of the individuals were no longer Walmart employees. When Walmart's counsel learned the company's employees had been subpoenaed to appear on days the trial court's courtroom would be dark, she advised the employees they need not appear and that she would contact them if they needed to appear. She also wrote to Ubarieke and objected to service of the subpoenas. When trial resumed, Walmart's counsel brought the subpoena issue to the attention of the trial court and stated that, in light of the trial court's previous orders, Walmart did not believe the subpoenas were valid. The trial court then inquired of Ubarieke as to what witnesses he planned to call, and he identified one of the subpoenaed employees, Moses Nwosu. Walmart's counsel then agreed to produce Nwosu. At that point, Ubarieke made no objection to counsel's representation to the court or asserted the need for production of any other witnesses. 2. Videotape During Walmart's cross-examination of Ubarieke, Walmart's counsel played for 6 the trial court excerpts of Ubarieke's deposition in which Ubarieke answered two questions about his emotional distress. Ubarieke did not ask that any other portions of the deposition be played for the trial court. 3. Peppard and Gladue Ubarieke served Walmart's counsel with a notice requesting that one of Walmart's former employees, Kimberley Peppard, attend trial. However, prior to trial, the claims against Peppard had been dismissed on Walmart's motion for summary judgment. At the time of trial, Peppard was no longer working for Walmart and Walmart's counsel understood she was living in Nevada. Accordingly, Walmart did not produce Peppard for trial and the trial court did not compel it do so. Walmart did designate one of the dismissed defendants, Arthur Gladue, as its representative under Evidence Code section 777, subdivision (c), and Gladue was permitted to stay in the courtroom during trial. B. Analysis The record discloses no impropriety on the part of Walmart's counsel. Her statements to the subpoenaed Walmart employees were accurate and practical; no useful purpose would have been served had they appeared on days in which the trial court's courtroom was dark. In any event, in light of Walmart's ability and willingness to produce its employees for trial, Ubarieke suffered no prejudice. Parenthetically, we note the trial court did not abuse its discretion in excluding witnesses who had not been disclosed during discovery and were not, at the time of trial, Walmart employees. We also find no impropriety in counsel's use of the deposition tape; if Ubarieke believed the excerpts were misleading, he could have asked that more of the deposition 7 be played for the trial court. We find no abuse of discretion in the trial court's unwillingness to call Peppard as a witness. She was no longer a party to the action and apparently was beyond the subpoena power of the court. Moreover, Walmart had the express right to designate Gladue as its representative and have him attend the trial. (Evid. Code, § 777, subd. (c).) In sum, the trial court did not error in denying Ubarieke's motion for a new trial.3 II Ubarieke also contends the trial court erred in dismissing his claims. As we have indicated, the trial court rejected Ubarieke's claims largely on the basis of its determination of the credibility of the parties' witnesses. Plainly, the trial court found that Ubarieke was not credible and that Walmart's witnesses were credible. On a motion for judgment under Code of Civil Procedure section 631.8, such determinations of credibility are the province of the trial court and, unless they are wholly unreasonable, binding on appeal. (See Kinney v. Overton (2007) 153 Cal.App.4th 482, 487.) Where, as here, the plaintiff has the burden of presenting credible evidence in support of his claims and has failed to do so, the trial court did not err in dismissing those claims.4 3 Ubarieke's motion for relief from the judgment was based on a reiteration of his contention that Walmart interfered with his ability to subpoena its employees. For the reasons the trial did not err in denying Ubarieke's motion for a new trial, it did not err in denying the motion for relief from judgment. 4 Briefly, Ubarieke's discrimination claim fails on appeal not only because he failed to present evidence that Walmart took an adverse employment action against him before he went on a medical leave and thereafter resigned, but also because he failed to show that Walmart acted with any discriminatory motive while he was working for the company. Ubarieke's harassment claim fails because although he testified that one of his supervisors called him a racially offensive term, that another supervisor told other 8  DISPOSITION The judgment is affirmed. Walmart to recover its costs of appeal. BENKE, Acting P. J. WE CONCUR: McINTYRE, J. IRION, J. employees to "keep an eye on Ubarieke," that supervisors stated they were looking for a way to fire him, and that his movements were monitored, he presented no corroborating evidence and the trial court did not find him credible. Ubarieke's retaliation claim fails because the coaching he received after he filed the First Lawsuit and later requests for assistance made by supervisors were not adverse employment actions in that they did not give rise to any decrease in his pay or demotion; moreover, there was no credible evidence that during the June 25, 2009 coaching session Ubarieke was subjected to any inappropriate behavior. Ubarieke's claim that Walmart did not take steps to prevent discrimination and harassment fails because the company not only had an anti- discrimination and anti-harassment policy, but also because Ubarieke failed to show that he was subject to discrimination or harassment. Ubarieke's breach of contract claim fails because, even if there were a contract under which the company promised not to discriminate against or harass its employees, there is no credible evidence Ubarieke suffered such discrimination or harassment. For the same reason, Ubarieke's constructive discharge claim also fails. Because all of Ubarieke's substantive claims failed, there was no basis upon which to award any exemplary damages. 9 

681 S.E.2d 113 (2009) In the Matter of M. Francis STUBBS. No. S09Y0476. Supreme Court of Georgia. June 15, 2009. Reconsideration Denied June 30, 2009. William P. Smith III, General Counsel, State Bar, Jonathan W. Hewett, Asst. General Counsel State Bar, for State Bar of Georgia. Jones, Osteen & Jones, Billy N. Jones, Hinesville, for Stubbs. PER CURIAM. This matter is before the Court on the Report and Recommendation of the Review Panel arising out of the Notice of Reciprocal Discipline sent by the State Bar to respondent M. Francis Stubbs pursuant to Rule 9.4 of the Georgia Rules of Professional Conduct. See Bar Rule 4-102(d) of the Georgia Rules of Professional Conduct. The facts show that in 2005 a federal district court judge sitting in the United States District Court for the Southern District of Georgia found that Stubbs engaged in the unauthorized practice of law when he appeared on behalf of several clients after he had been suspended from the practice of law in the Southern District and his name removed from the roll of attorneys authorized to practice law in that district. Based on these findings, the district court held Stubbs in contempt of court in violation of Southern District of Georgia Local Rule 83.5(c)[1] and ordered Stubbs to pay a $1,500 fine and refund fees earned in the cases in which he had appeared. The court also placed restrictions on the date and manner in which Stubbs could be readmitted to practice law in the Southern District. The State Bar filed a notice of reciprocal discipline after entry of the district court's order and both parties filed briefs with the Review Panel. In its report to this Court, the Review Panel recommends the disciplinary action be dismissed because, inter alia, an action under Local Rule 83.5(c) is a contempt proceeding and therefore does not constitute disciplinary action against an attorney for which reciprocal discipline may be sought under Rule 9.4. We agree with the Review Panel that this disciplinary action should be dismissed but not for the reasons stated in its recommendation. Rule 9.4 of the Georgia Rules of Professional Conduct provides that upon notification that a lawyer within the jurisdiction of the State Bar of Georgia has been disciplined by another jurisdiction, Office of General *114 Counsel shall file a certified copy of the disciplinary order with the Investigative Panel of the State Disciplinary Board. The Board shall then issue notice to the attorney and direct the attorney to inform General Counsel and the Review Panel of any claim based on certain enumerated grounds that the imposition of reciprocal discipline would be unwarranted. Bar Rule 9.4(b)(1). Under Rule 9.4(b)(4), a final adjudication in another jurisdiction of the attorney's misconduct shall "establish conclusively the misconduct or the removal from practice for purposes of a disciplinary proceeding in this State." Thus, when a Georgia lawyer is subjected to discipline in another jurisdiction, the State Bar is authorized to dispense with the traditional investigatory and fact-finding processes found in the rules of professional conduct and instead utilize an abbreviated process of reciprocal discipline in which the sole issue is whether identical discipline is warranted. The threshold issue in this case is whether the action taken by the federal district court constitutes discipline by "another jurisdiction" for the purposes of Rule 9.4. Because reciprocal discipline is an important tool in the increasingly common national practice of law, our rules reflect a deference to the actions of other jurisdictions with respect to the attorneys over whom we share disciplinary authority. Reading our reciprocal discipline rules as a whole, however, it is clear that the deference given to disciplinary proceedings of "another jurisdiction" is predicated on the existence of comprehensive disciplinary procedures adopted by a licensing jurisdiction, that is, a jurisdiction with authority similar to that granted to this Court to assess a lawyer's professional fitness to hold a license to practice law and to resolve matters pertaining to a lawyer's professional ethics and responsibility. See Carpenter v. State, 250 Ga. 177, 297 S.E.2d 16 (1982) ("Matters relating to the practice of law, including the admission of practitioners, their discipline, suspension, and removal, are within the inherent and exclusive power of the Supreme Court of Georgia"); See Comment [1] to Bar Rule 9.4 (discussing danger to public if lawyer determined to be unfit and disbarred in one jurisdiction is permitted to practice elsewhere until a new disciplinary proceeding is instituted, tried, and concluded); Comment [2] to Bar Rule 9.4 (assuming "other jurisdiction" will have disciplinary counsel who shall notify Office of the General Counsel of the State Bar of Georgia of its disciplinary action). Accordingly, we hold that our rules governing reciprocal discipline apply only to disciplinary actions taken by other licensing jurisdictions, as opposed to entities, such as individual courts and intermediate state appellate courts, that require already licensed lawyers to obtain a special certificate to practice before them. In this case, the federal district court judge held Stubbs in contempt of court based on his violation of a local court rule. While the federal district court had authority to discipline or suspend Stubbs from the practice of law in its court for misconduct or violation of its local rules, the federal court was not "another jurisdiction" within the meaning of Rule 9.4 in that it has no authority to confer or revoke Stubbs' license to practice law. See Frazier v. Heebe, 482 U.S. 641, 648, n. 7, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) (recognizing autonomy of state and federal bars); Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) ("The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers"). Thus, the district court's order did not trigger the truncated process of reciprocal discipline under the Rules of Professional Conduct and this Court is without authority to impose reciprocal discipline in this proceeding. Although this Court on two previous occasions has considered the imposition of reciprocal discipline arising out of discipline imposed by a federal trial court, in neither case did we address the issue of whether a federal district court constituted "another jurisdiction" within the meaning of Rule 9.4.[2] See In the Matter of Joyce Marie Griggs, 277 Ga. 663, 593 S.E.2d 328 (2004) (imposing reciprocal *115 discipline); In Re Levi Breedlove, Case No. S07Y0270, State Disciplinary Board Docket No. 4935 (2006) (holding Federal Rule 11 contempt sanctions do not fall within ambit of State disciplinary rules and are not subject to reciprocal discipline). Having now considered the meaning of the term "another jurisdiction," Griggs is overruled to the extent it may be interpreted as to allow the State Bar to seek reciprocal discipline based on disciplinary action taken by a federal trial court. Our holding in this matter should not be interpreted as precluding disciplinary action in this state based on Stubbs' misconduct in the federal court. A lawyer's misconduct may be both the subject of disciplinary proceedings in this Court and the subject of discipline by the federal court pursuant to its own procedures and local rules. See Theard, supra. In such cases, however, the State Bar must independently investigate the facts and follow the established procedure for seeking attorney discipline and may not take advantage of the abbreviated process of reciprocal discipline under Rule 9.4. Dismissed. All the Justices concur, except HUNSTEIN, P.J., CARLEY and HINES, JJ., who dissent. HINES, Justice, dissenting. I respectfully dissent because the majority has imposed an unnecessary bright-line rule precluding application of Bar Rule 9.4 in all cases in which disciplinary action was taken by a federal trial court, rather than another licensing jurisdiction. In doing so it has overruled In the Matter of Joyce Marie Griggs, 277 Ga. 663, 593 S.E.2d 328 (2004), which I believe was properly decided. In Griggs, this Court imposed federal-to-state reciprocal discipline under Rule 9.4 where the federal proceeding was a disciplinary action with respect to which the respondent was afforded the essential requirements of due process as they exist under Bar Rule 4-201 et seq. Other states have taken the same action in similar circumstances and "recognize discipline or sanctions imposed in federal courts for the purposes of reciprocal discipline. [Cits.]" Charles W. Wolfram, Expanding State Jurisdiction to Regulate Out-of-State Lawyers, 30 Hofstra L.Rev. 1015, 1034, fn. 80 (2002). Courts that have bar rules similar to those in Georgia have deemed federal court action to be the action of "another jurisdiction" for purposes of reciprocal discipline, see In the Matter of Edwards, 380 S.C. 84, 668 S.E.2d 791, 794 (2008); The Miss. Bar v. Alexander, 669 So.2d 40, 42 (Miss.1996), and some even have allowed reciprocal discipline from actions by the United States Patent and Trademark office, see In the Matter of Peirce, 122 Nev. 77, 128 P.3d 443, 444 (2006); People v. Bode, 119 P.3d 1098, 1100(IV) (Colo.O.P.D.J.2005). In fact, only one judge in the country has opined that federal-to-state reciprocal discipline is not appropriate because a federal court is not "another jurisdiction," see The Miss. Bar v. Shah, 749 So.2d 1047, 1050 (Miss.1999) (McRae, J., dissenting). The majority of this Court, however, now has taken that same position in lieu of holding more properly that reciprocal discipline from federal court action is not automatic, but should be analyzed with regard to whether the federal proceeding includes investigations, hearings and other due process guarantees associated with state disciplinary proceedings, see In the Matter of Allred, 108 N.M. 666, 777 P.2d 905, 906 (1989). Because there is no reason to refuse to recognize as reciprocal discipline action by a federal court taken under procedures that meet the requirements of due process and which is the functional equivalent of our state's disciplinary proceedings, Griggs should not be overruled and this Court should continue to review cases involving federal-to-state reciprocal discipline on a case-by-case basis without applying the majority's blanket prohibition on such action. I am authorized to state that Presiding Justice HUNSTEIN and Justice CARLEY join in this dissent. NOTES [1] Local Rule 83.5(c) of the United States District Court for the Southern District provides: "Any person who is not admitted to the bar of this Court or who has been disbarred or suspended, and who exercises in this Court any of the privileges as a member of its bar, or pretends to be entitled to do so, shall be in contempt of this Court and subjected to appropriate punishment." [2] We did focus in those cases, however, like we do here, on the importance of compliance with the full requirements of due process in disciplinary proceedings and the significant differences in the way in which federal and state courts admit and discipline their lawyers.

180 Cal.App.2d 615 (1960) IRA GARSON REALTY COMPANY (a Corporation), Appellant, v. SIDNEY BROWN et al., Respondents. Civ. No. 24141. California Court of Appeals. Second Dist., Div. One. May 4, 1960. Robert N. Richland and Kenneth I. Persion for Appellant. Swerdlow, Glikbarg & Nicholas, Harry B. Swerdlow and Irving A. Shimer for Respondents. LILLIE, J. Plaintiff sued defendants, owners of certain property, for recovery of a $7,500 real estate broker's commission, relying in its first cause of action on an alleged oral agreement supported by a written memorandum in the form of escrow instructions, and in the second as a third party beneficiary on a written agreement (escrow instructions). The trial court, hearing the matter without a jury, rendered judgment for defendants. Viewing the evidence most favorably in support of the trial court's findings (Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689]; Brewer v. Simpson, 53 Cal.2d 567 [2 Cal.Rptr. 609, 349 P.2d 289]), the following is a resume of the events leading up to the controversy. Defendants had put on the market for sale certain real property which various brokers were attempting to sell. Not previously known to defendants, plaintiff realty company, through Ira Garson, on January 29, 1957, telephoned defendant Brown at his home, told him he knew the property was on the market and other brokers were working on it, and inquired if he would give him authority to sell it on a non-exclusive basis. After discussing its description and the price, Brown said he would sell it for $285,000 net to him; but Garson told him that his organization "never takes a net listing" *619 as it is against its policy and asked: "(P)lease give me a price on which you can pay me a full realty board commission of 5%." Brown then responded: "Get me $300,000, and I will pay a 5% commission on the total." On March 30, 1957, Oscar Stahl, with whom Garson had previously done business and from whom he had received a commission on another transaction the year before, offered $292,500 for the property. Not believing a price under $300,000 would be accepted by Brown, Garson told Stahl, who then agreed to give Garson an exclusive listing to lease the property when the existing lease expired for the loss on commission Garson would take on the reduced price. Garson decided "in order to make the deal" and "to continue a very favorable relationship with a very good buyer and potentially a remunerative situation" to submit the $292,500 offer and accept a reduced commission. However, when he presented the $292,500 offer to Brown, he nevertheless demanded a full 5 per cent commission thereon. Brown refused to pay him a "5% commission on this price." Garson then told Brown he would reduce his commission to $7,500 but did not disclose to him his arrangement with Stahl to handle the exclusive listing to lease the property for him later on, and presented to Brown a deposit receipt (Ex. 3) and a $10,000 deposit. Brown refused to accept the acceptance portion of the deposit receipt or sign the same; but he did tell Garson "as soon as the escrow will be completed he (you) will get $7,500 out of escrow." Defendants' attorney prepared the escrow instructions (Ex. 7) based upon conversations and communications between counsel for Stahl and defendants. They were dated and signed by Stahl and defendants April 24, 1957, and Stahl deposited $10,000 in escrow. The escrow instructions declared: "Sellers assume liability for payment of a broker's commission to the Ira Garson Realty Co. in the sum of $7,500"; and provided for a total price of $292,500, issuance to the buyer of a policy of title insurance and approval by him of a preliminary title report, and that time is of the essence and if the escrow is not in condition to close by May 10, 1957, any party may cancel the escrow and demand return of money or property. On April 26, 1957, plaintiff prepared and presented to Stahl a proposed amendment to the escrow instructions extending the escrow 10 days to May 20th, because it felt that the May 10th date was "inadequate to run a complete coverage policy." Several days after April 26th, Garson orally advised Stahl that he did not think the escrow could be consummated by *620 May 10th; but Stahl refused to sign the amendment and advised him that if the escrow was not closed by May 10th he would withdraw therefrom. Plaintiff submitted the proposed amendment extending time to defendants which they signed; they were not then advised Stahl refused to do so. A survey was required in connection with the extended coverage title insurance policy. Garson undertook to obtain the same and place it in escrow and was authorized by defendants' counsel to have it made. However, it was not until May 7th that plaintiff ordered the survey; and it delivered the same to the escrow holder on May 10th, the date the escrow should have closed. The escrow was not in condition to, and did not, close on Friday, May 10th, and on Monday, May 13th, Stahl delivered to the escrow holder his letter demanding cancellation of the escrow and the return of the $10,000 deposit (Ex. G), a copy of which letter was immediately sent by the escrow holder to defendants' attorney. Defendants replied on May 14, 1957, objecting to any cancellation of the escrow (Ex. 12). In an abundance of caution, the escrow holder on June 4 transmitted to Stahl and defendants the preliminary title report. Stahl's attorney on June 7th acknowledged receipt of the same. Both before and after May 13th, Garson advised Stahl he was willing to release him from the escrow, but it was defendants who were refusing to permit him to withdraw. No money was returned to Stahl until July 1, when defendants and Stahl determined the amount to be returned and instructed the escrow holder accordingly. Subsequent to June 18, 1957, defendants sold the property to another for $310,000, $15,000 of which was paid as a broker's commission and $10,000 to the lessee to induce him to vacate the premises, defendants receiving $285,000. [1a] Anticipating under the Statute of Frauds a defense to the enforcement of the alleged oral agreement of plaintiff's employment and payment of the commission, appellant contends that respondents waived the defense and are now precluded from raising the issue for their failure to do so in the trial court by way of answer, pretrial statement, objection or proper motion to strike all oral testimony relative thereto; and argues that even if the oral agreement falls within the statute, the escrow instructions constituted a sufficient written memorandum to satisfy the requirements of the statute. Although plaintiff in its first cause of action pleaded an *621 oral agreement of January 29, 1957, supported by a written memorandum in the form of escrow instructions, and relied upon the same for recovery in pretrial and offered evidence thereon in the presentation of its case, it is apparent from the record before us that on defendants' motion for nonsuit, thereafter and now, plaintiff abandoned reliance upon the written memorandum, standing solely upon the alleged oral agreement. This change in position is reflected in plaintiff's defense to the motion for nonsuit, its argument at the close of the trial, and its opening brief in this court (pps. 4, 5, 6, 29). Obviously, defendants could not have raised the issue of the bar of the statute of frauds on demurrer inasmuch as the complaint on its face alleged an oral agreement supported by a written memorandum. [2] However, in their answer, defendants "denied the making of the contract in toto and that has been held sufficient to justify reliance on the statute of frauds (23 Cal.Jur.2d, Frauds, Statute of, 150, p. 440, citing Feeney v. Howard, 79 Cal. 525 [21 P. 984, 12 Am.St.Rep. 162, 4 L.R.A. 826]; Harris v. Frank, 81 Cal. 280 [22 P. 856]; and Walsh v. Standart, 174 Cal. 807 [164 P. 795])." (San Francisco Brewing Corp. v. Bowman, 52 Cal.2d 607, 618 [343 P.2d 1].) [1b] Plaintiff relied upon the alleged oral agreement supported by a written memorandum on pretrial, and in presenting its case, offering testimony of an oral agreement, a deposit receipt, and escrow instructions. At the conclusion of its evidence, defendants moved for a nonsuit, the first opportunity defendants with propriety could raise the bar of the statute of frauds (Carrier & Braddock v. Straus & Co., 213 Cal. 508 [2 P.2d 811]); and thereafter, when the trial judge reserved his ruling on the motion and they offered their defense, defendants properly moved to strike all testimony with reference to any oral agreement relative to the subject property between Garson and Brown, as contrary to the statute of frauds (Hanley v. Murphy, 70 Cal.App. 157 [232 P. 767]). When it first became apparent that plaintiff was relying solely upon the oral agreement, defendants then immediately and properly pursued the issue of the statute of frauds raised by the general denial in their answer, by objecting in the only manner at that time available to them--motion for nonsuit and then, motion to strike, both of which were duly considered by the trial court. These circumstances do not admit a waiver of the right to now rely upon the defense. We are somewhat perplexed by appellant's argument on the merits, but deem the same to convey primary reliance by it *622 on the alleged oral agreement, which, if misplaced because of lack of proof, then on the provision for payment of commission in the escrow instructions, which it contends constituted either a sufficient memorandum to satisfy the requirement of the statute of frauds, or a contract enforceable for its benefit. It more specifically argues that it is entitled to a $7,500 commission inasmuch as it procured a buyer ready, willing and able, and defendants acted in bad faith in procuring the cancellation of the escrow; and further, that it was the third party beneficiary of an agreement for payment of commission contained in the escrow instructions signed by the purchaser and defendants. Although recovery on the alleged oral agreement standing alone is barred by the statute of frauds, appellant nevertheless continues to predicate its position on the same oral agreement of employment supported by a written memorandum (escrow instructions) providing for a $7,500 commission, to take it out of the statute. Appellant's claim lacks merit mainly because it did not prove the oral agreement alleged in its complaint. In addition, plaintiff is entitled to no commission under the escrow instructions because the sale to Stahl was never completed. [3] Plaintiff alleged an oral contract of "January 26 [sic], 1957," whereby defendants "employed plaintiff as a licensed real estate broker to negotiate for the sale of, and to procure a purchaser who was then and there ready, willing and able to purchase" and "agreed to pay to plaintiff a real estate broker's commission in an amount equal to 5% of the sales price of said real property, or all sums in excess of $285,000, whichever sum was less"; and in support thereof a written memorandum--a provision in the escrow instructions that "(S)ellers assume liability for payment of a broker's commission to the Ira Garson Realty Co. in the sum of $7,500." Garson's own testimony proves beyond doubt that plaintiff rejected Brown's declaration he would take $285,000 net to him as a "net listing" his organization "never takes" as against its policy; and the evidence shows without contradiction that after plaintiff refused to deal with the property on a net basis, Brown then, at the instance and request of Garson, finally declared that if the latter gets him $300,000 for it he would pay a 5 per cent commission thereon. The record completely denies the existence of a net listing agreement or one to pay "all sums in excess of $285,000"; nor has any oral agreement of January 29, 1957, to pay 5 per cent of the sales *623 price been established in the evidence--it shows, at most, an oral authorization of Brown on that date to permit a sale of the property for $300,000 for which he would pay 5 per cent commission. [4] Neither does the evidence sustain an oral contract of employment on January 29, 1957, wherein plaintiff was employed to procure a purchaser or to negotiate for the sale of defendants' property as alleged in the complaint. All the record shows in this regard is that Garson, a stranger to Brown, but knowing his property was on the market and other brokers were working on it, approached him by telephoning him at his home on January 29, 1957, and asking him for authorization to sell the property if he could. He at no time obtained an exclusive listing from Brown; actually all he did was to solicit from him the opportunity to sell the property. When Brown suggested a net price to him, which he rejected, Garson continued to pursue the subject by saying: "(P)lease give me a price on which you can pay me a commission of 5%." It is clear that Brown neither approached Garson nor solicited his services, nor employed him to sell his property; but at most merely indicated a willingness to sell it for $300,000 and pay a 5 per cent broker's commission out of the proceeds. We fail to find the oral contract of employment alleged in the complaint. [5] Nor does the evidence sustain the provision in the escrow instructions as an effective written memorandum of the oral agreement of January 29, 1957, as alleged in the complaint. The instructions dated April 24, 1957, mentioned a $7,500 commission. This is not 5 per cent of the sales price. Further, on January 29, 1957, an agreement neither for a net listing nor for 5 per cent of the sales price existed; and in any event the sum of $7,500 was not mentioned. On the contrary, the proof shows that Brown was willing to accept $300,000 for the property and pay 5 per cent thereon, or $15,000. [6a] In the absence of a written agreement for employment and payment of commission, or listing, or a three party agreement by way of deposit receipt between buyer, seller and broker, even if plaintiff relies on an oral agreement and a written memorandum thereof in the form of a provision in the escrow instructions, assuming the same to have been proved, recovery still fails for it has not proved that the sale between the buyer it procured and the seller was completed. Under the circumstances of the case at bar, it is not sufficient to show that it found a buyer ready, willing and able, and is *624 entitled to a commission without regard to the consummation of the sale. The sale to Stahl was never completed, the escrow was never closed; and plaintiff did not show any agreement with defendants to pay the $7,500 regardless of whether a sale was effected, in fact, any such arrangement or suggestion of the same was emphatically denied by Brown. Garson testified that the time of payment was to be subsequent to June 30th, the close of plaintiff's fiscal year; but Brown, whose testimony the trial court obviously accepted, testified that he told Garson when he accepted the reduced $292,500 price and rejected his demand for a 5 per cent commission that he would allow him $7,500 on that price, but that payment would be after the escrow closed; and said "I told him that as soon as the escrow will be completed, he (Garson) will get $7,500 out of escrow." He was definite in his testimony that he never told Garson anything different, never promised him any money regardless of whether the escrow was completed, and that Garson never asked for any commission regardless of whether the escrow was closed. [7] That it is necessary for recovery of a commission under the circumstances of the instant case for the sale to be consummated is supported by the rule set forth in Lawrence Block Co. v. Palston, 123 Cal.App.2d 300, at pages 306-307 [266 P.2d 856]: "Where the only agreement to pay a broker a commission is contained in the contract between his principal and the customer, the broker's right to compensation is dependent upon performance of that contract. If the customer refused to perform, or if the contract is cancelled or rescinded, the broker cannot recover. In such cases the broker, not having the protection of the ordinary broker's contract for compensation for service to be performed, must stand or fall on the contract entered into; and if he has seen fit to allow payment of his compensation to be dependent upon the performance of a contract made between parties other than himself, he cannot complain if, through the nonperformance of that contract, his own contingent rights be lost (cited cases)." In that case the broker had no written listing but relied on the agreement signed by the buyer and seller (defendants) reciting "for services heretofore rendered, we also agree to pay Lawrence Block Co., Inc. (5%) five per cent of the above sales price" (p. 304). The parties never went into escrow and the plaintiff broker sued for the 5 per cent commission, claiming he had earned it when he procured a buyer ready, willing *625 and able to buy and obtained the agreement between buyer and seller. Although it is obvious from a reading of the opinion that plaintiff, prior to the execution of the agreement must have had an oral agreement for a 5 per cent commission although perhaps unenforceable, the only written agreement was that between buyer and seller. [8] From a reading of Irwin v. Klimper, 56 Cal.App. 434 [205 P. 714]; Jennings v. Jordan, 31 Cal.App. 335 [160 P. 576]; Brion v. Cahill, 34 Cal.App. 258 [165 P. 704]; Devereux v. Sirkus, 105 Cal.App.2d 340 [233 P.2d 644]; K. Lundeen Corp. v. Barlow, 120 Cal.App. 391 [7 P.2d 1102]; Houghton v. Kuehnrich, 46 Cal.App. 469 [189 P. 457]; and Dowds v. Armstrong, 17 Cal.App.2d 485 [62 P.2d 411, 63 P.2d 1114], it is apparent that our courts have taken the position that if a broker fails to protect himself with a written employment contract of his own for the payment of a commission, and relies on an oral promise and an agreement between third parties to which he is not a party, he must stand or fall on that agreement and if the sale is not consummated the commission does not become due. He cannot complain if through the nonperformance of the agreement his own contingent rights be lost. (Lawrence Block Co. v. Palston, supra, 306-307; Mitchell v. Johnston, 140 Cal.App.2d Supp. 982 [298 P.2d 170]; Sanstrum v. Gonser, 140 Cal.App.2d 732 [295 P.2d 532].) This appears to be the equitable solution where the broker initially failed to protect himself with a contract of his own and the seller received no benefit from the broker's services, which for the greater part were voluntarily rendered (Jennings v. Jordan, 31 Cal.App. 335 [160 P. 576]). "Unless and until the exchange was consummated, the parties would receive no benefit from Eppinger's efforts, and, as we have seen, there is no obligation existing to pay Eppinger anything except that arising from the written agreement under consideration. The provision relating to such payment is not separable from the remainder of the contract ..." Holding that when the contract was rescinded the provision for payment of the compensation also fell, the court said: "(I)f the broker should suffer any hardship from such construction, it is one inherent in the form of the contract entered into, and which was the only means he chose for his protection." (P. 338.) The cases relied upon by appellant, including Cole v. Low, 81 Cal.App. 633 [254 P. 676], are not here in point, for "(T)he rule laid down in those cases is based entirely on the principle that the broker, having performed what he was employed *626 to do, is entitled to be paid without regard of the ultimate fate of the contract between his principal and the purchaser produced by him. Those cases have no application for a situation where the claim of the broker is based on a provision of a contract of sale between his principal and the person produced by him to which he himself is not a party. In such a case, his rights are those only conveyed by such contract. (Brion v. Cahill, 34 Cal.App. 258, 260-261 [165 P. 704].)" (Emphasis added.) (Lawrence Block Co. v. Palston, supra, p. 306.) [6b] Relative to the language employed in the escrow instructions--"(S)ellers assume liability for payment of a broker's commission to the Ira Garson Realty Co. in the sum of $7,500"--appellant contends that it constituted a direct promise to pay regardless of whether the sale was consummated. The record does not support any finding of a promise to compensate for valuable services already rendered; and in any event, any construction of the provision as an absolute promise to pay is disputed not only by the rule laid down in the Lawrence Block case, supra, but by the evidence. The trial court herein properly construed the same to be a promise to pay a commission if the sale was effected and as an assumption of such liability as might arise in the event of consummation. Such conclusion appears to be well justified by Brown's testimony that when he agreed to accept Stahl's offer of $292,500, instead of the $300,000 he sought, he told plaintiff that the $7,500 commission he was willing to allow it would be paid "as soon as the escrow will be completed," and that it would be paid "out of escrow." It is obvious that appellant was to be paid out of the proceeds of the sale; thus, if no sale came into existence, there was no fund out of which the commission could be paid. The record before us supports at most a contingent promise to pay, the failure of which contingency lost to plaintiff the right to compensation. [9] Appellant's contention that its failure, as a licensed real estate broker, to disclose to its principal (defendants) the fact that it had agreed with Stahl (from whom Garson had previously received a commission on another transaction) to accept a reduction of its commission from defendants in exchange for an exclusive listing from Stahl to lease the property for him, a continuance of "a very favorable relationship" with him, and "potentially a remunerative situation," did not constitute bad faith, is based upon the erroneous assumption that a "net listing situation" existed between plaintiff and *627 defendants, citing Hiss v. Mulholland, 96 Cal.App. 121 [273 P. 859], and Allen v. Dailey, 92 Cal.App. 308 [268 P. 404]. The evidence affirmatively shows that plaintiff definitely refused to deal with defendants' property on a net basis, and that a net listing was at no time involved; it also points up instances of plaintiff's lack of good faith and its failure to disclose to its principal various material facts, for instance--when plaintiff submitted the $292,500 offer to Brown, Garson nevertheless demanded of him a 5 per cent commission thereon, or $14,625, despite his agreement with Stahl that he would accept $7,500 in order to facilitate the sale to him at $292,500, and despite Brown's declared willingness to pay 5 per cent on only a $300,000 price, and in addition Garson did not disclose the Stahl-Garson agreement made to defendants; both during escrow and after May 13 plaintiff told Stahl it was always willing to release him from the escrow in order to secure consent of defendants to the return of his deposit, but that defendants were unwilling to release him; and plaintiff secured the signature of defendants to its amended escrow instructions extending the time of the escrow 10 days without disclosing that Stahl had refused to sign the same. Appellant claims, without support of authority, that the rule relative to the failure of disclosure refers only to a material fact which results either in an actual gain to the broker or a detriment to the principal; but this is not the rule. [10] "The broker is bound to disclose to the principal any facts known to him which are material to the transaction ... and any concealment from the principal of material facts known to the agent ... may operate to forfeit the right of the agent to compensation for his services (citations), and it matters not that there was no fraud meditated and no injury done. The rule is not intended to be remedial of actual wrong, but preventive of the possibility of it." (Baird v. Madsen, 57 Cal.App.2d 465, 476 [134 P.2d 885].) [11] It is further contended that defendants did not act in good faith in procuring the cancellation of the escrow. Such a claim is not supported by the evidence. A review thereof discloses a delay in the proceedings occasioned by the plaintiff and an obvious expressed intention on the part of Stahl that time was of the essence as provided in the escrow instructions. Solicited by plaintiff to permit an extension of the escrow 10 days past May 10th, Stahl refused and definitely advised it that if the escrow was not completed by May 10th, as provided in the escrow instructions, he would in accordance *628 therewith, withdraw therefrom. Immediately after April 26th plaintiff was in contact with its counsel relative to the escrow and advice was available to it; further, plaintiff undertook to obtain and put into escrow the survey required in connection with the extended coverage title insurance policy and on May 2nd was authorized by defendants' counsel to have one made. Knowing that Stahl intended to withdraw from escrow if it was not in condition to close by May 10th, plaintiff nevertheless did not order the survey until May 7th, and did not deliver the same into escrow until May 10th, the actual scheduled escrow closing date. It seems clear that plaintiff's delay in this regard constituted a default for which it must assume at least part of the responsibility for the failure of the escrow to close on the day required in the escrow instructions. As to defendants, they were willing to extend the escrow 10 days and, at the solicitation of plaintiff, actually signed the amended escrow instructions prepared by it, extending the time to May 20th. Inasmuch as the escrow was not in condition to and did not, close on Friday, May 10th; on Monday, the 13th, Stahl, in writing, demanded of the escrow holder cancellation of the escrow and the return of his $10,000 deposit, a copy of which letter was immediately forwarded by the escrow holder to defendants' attorney, who on May 14th replied in writing objecting to any cancellation. Before May 13th, and thereafter, Garson repeatedly told Stahl that plaintiff was willing to release him from the escrow but defendants would not permit him to withdraw. Apparent to them that Stahl intended to stand on his May 13th demand for cancellation, defendants, a month later, and after June 18th, negotiated to sell the property to another for which sale defendants received not a penny more. We fail to perceive any lack of good faith on the part of defendants in connection with the cancellation of the escrow. [12] Appellant's second cause of action seeks recovery on the theory that it is a third party beneficiary of the provision for payment of the $7,500 commission contained in the escrow instructions. The latter were signed by Stahl and defendants; plaintiff was not a party thereto. A line of authority following Dowds v. Armstrong, 17 Cal.App.2d 485 [62 P.2d 411, 63 P.2d 1114]; K. Lundeen Corp. v. Barlow, 120 Cal.App.2d 391 [7 P.2d 1102]; Houghton v. Kuehnrich, 46 Cal.App. 469 [189 P. 457], and Lawrence Block Co. v. Palston, 123 Cal.App.2d 300 [266 P.2d 856]; has established the rule applicable here, that if the broker chooses to rely for his commission *629 on an agreement between other persons, rather than enter into a contract of his own with the seller, then his right to a commission becomes a contingent one dependent on consummation of the sale. In the case at bar when the terms of the only written agreement in existence between Stahl and defendants failed, plaintiff, upon noncompletion of the sale provided therein, lost its right to any commission. Inasmuch as no direct right of plaintiff to any commission existed after Stahl withdrew and cancelled the escrow, we find no merit in its attempt to assert the same right under the agreement in a lesser capacity as a third party beneficiary. [13] Even had plaintiff a right to rely upon the agreement between Stahl and defendants, it is obvious under its terms making time of the essence and providing cancellation by any party after May 10th, if the escrow was not then in condition to close, that Stahl's letter of Monday, May 13th, cancelled and rescinded the escrow instructions and any agreement or prospective sale between him and defendants (Leland v. Craddock, 83 Cal.App.2d 84 [187 P.2d 803]). His action after the close of business on Friday, May 10th, was, under the circumstances, prompt. Under the terms of the escrow providing that "any party who then shall have fully complied with his instructions may demand the return of his money or property," Stahl, against whom there is no evidence of noncompliance with any of the instructions, properly and timely exercised his right to cancel. The fact that defendants did not want a cancellation of the escrow and made objection thereto, could not and did not affect the validity, force or effectiveness of his rescission; and thereafter without Stahl's consent neither defendants nor the escrow holder could reinstate the agreement with him. Nor does the evidence support any contention that subsequent to May 13th, both parties were proceeding toward a consummation of the escrow. There is no record of any conduct on the part of Stahl personally between May 13 and July 1, 1957, and indeed there exists in the evidence no consent on his part to continue under the escrow agreement after his letter of rescission was sent to the escrow holder. The only act that could be attributed to Stahl during this period was that of his counsel sending a letter on June 7, 1957, acknowledging receipt of the preliminary title report. Rescission became effective in May when Stahl, under the agreement, exercised his right to cancel the escrow; not when the parties finally executed instructions to the escrow holder determining the amount to be returned to Stahl and *630 authorizing the money to be paid to him. Plaintiff filed its complaint after the date of the rescission, June 18, 1957. For the foregoing reasons the judgment is affirmed. Wood, P. J., and Fourt, J., concurred.

Fourth Court of Appeals San Antonio, Texas December 15, 2015 No. 04-15-00507-CV ESTATE OF SHIRLEY L. BENSON, Deceased, From the Probate Court No 2, Bexar County, Texas Trial Court No. 155,572 & 155,572-A Honorable Tom Rickhoff, Judge Presiding ORDER The Appellee’s Motion for Extension of Time to File Brief has this date been received and filed in the above styled and numbered cause. Extension of time to file the Appellee’s brief is this date GRANTED. Time is extended to January 20, 2016. PER CURIAM ATTESTED TO: ____________________________ KEITH E. HOTTLE CLERK OF COURT cc: David J. Beck Ellen Mitchell Beck Redden L.L.P. Cox Smith Matthews Inc One Houston Center 112 E Pecan St Ste 1800 1221 McKinney Street, Suite 4500 San Antonio, TX 78205-1521 Houston, TX 77010-2010 

718 F.2d 365 4 ITRD 2217, 218 U.S.P.Q. 678, 1 Fed.Cir. (T) 90 SSIH EQUIPMENT S.A., Appellant,v.UNITED STATES INTERNATIONAL TRADE COMMISSION andStewart-Warner Corporation, Appellees. Appeal No. 82-2. United States Court of Appeals,Federal Circuit. July 15, 1983. Kevin E. Joyce and Jonathan S. Kahan, Washington, D.C., argued for appellant. With them on the brief were George M. Sirilla, Peter W. Gowdey and Mark A. Sterling, Washington, D.C., Gerard Mandelbaum and Sandor C. Schweiger, New York City, of counsel. Joel Junker, Washington, D.C., argued for appellee. With him on the brief were Michael H. Stein, Gen. Counsel, Washington, D.C., and Catherine R. Field. Melvin M. Goldenberg, Chicago, Ill., argued for intervenor. With him on the brief were Theodore R. Scott, Thomas C. Elliott, Jr. and Augustus G. Douvas, Chicago, Ill., of counsel. Before RICH, DAVIS, KASHIWA, SMITH and NIES, Circuit Judges. NIES, Circuit Judge. 1 SSIH Equipment S.A. (SSIH) appeals from the final determinations of the United States International Trade Commission (Commission) in Investigation No. 337-TA-75, Certain Large Video Matrix Display Systems and Components Thereof, under section 337 of the Tariff Act of 1930, as amended (19 U.S.C. Sec. 1337 (1976 and Supp. IV. 1980)) (hereafter Sec. 337), which prohibits unfair methods of competition in the importation of articles into the United States. 2 The Commission determined that there was a violation of Sec. 337 because SSIH had imported and installed a stadium scoreboard for the Milwaukee Brewers Baseball Club, Inc., which infringed certain United States patents owned by Stewart-Warner. USITC Pub. No. 1158, 213 USPQ 475 (1981). An exclusion order currently bars importation of scoreboards which infringe only one of these patents, U.S. Patent No. 3,594,762. 3 Our jurisdiction over this appeal is found in the Federal Courts Improvement Act of 1982. 28 U.S.C. Sec. 1295(a)(6). We reverse in part, vacate the order, and remand. 4 * The subject investigation was instituted on December 17, 1979, by the Commission on the basis of a complaint filed by Stewart-Warner Corporation (S-W). The complaint alleged that SSIH violated Sec. 3371 by virtue of infringement of certain claims in U.S. Patent Nos. 3,495,762; 3,941,926; and 4,009,335 ('762, '926, and '335 patents, respectively).2 Specifically, S-W alleged that the following 25 claims were being infringed: The '762 patent--Claims 10, 12 The '926 patent--Claims 1 through 5 5 The '335 patent--Claims 1 through 6, 10, 11, 16 through 21 and 27 through 30. 6 The Commission unanimously determined that there was a violation of Sec. 337 in that the above claims were valid and, as asserted, were infringed by SSIH's imported scoreboard. The Commission entered an exclusion order, in accordance with Sec. 337(d),3 on June 19, 1981, and forwarded it to the President, as required under Sec. 337(g).4 This order barred importation of products which infringed "one or more claims" of the three patents. 7 On July 16 and 17, 1981, the '926 and '335 patents were held invalid in an infringement action to which SSIH was not a party. Stewart-Warner Corp. v. City of Pontiac, 213 USPQ 453 (E.D.Mich.1981).5 That decision is currently on appeal to the Sixth Circuit. 8 On August 10, 1981, while the exclusion order was before the President, the Commission was made aware of the district court decision and modified its exclusion order to suspend "that portion of the order referring to the '926 and '335 patents, pending resolution of the [question of their] validity ... on appeal." 44 Fed.Reg. 42217 (1981). 9 The General Counsel of the United States Trade Representative notified the Commission on August 19, 1981, of the President's decision on the exclusion order as modified, stating that: 10 We have received notice that the President has decided to take no action regarding the Commission's determination in Investigation No. 337-TA-75, Certain, Large Video Matrix Display Systems and Components Thereof. 11 * * * 12 * * * 13 The sixty day period provided for Presidential review of the Commission determination was not extended since the amendment made by the Commission did not alter the nature of the determination or the order materially. The exclusion order issued by the Commission following that investigation, therefore becomes final automatically on August 19, 1981. 14 SSIH filed a notice of appeal from both the order of June 19, 1981, and the order of August 10, 1981.6 SSIH asserts, however, that only the order as modified is reviewable, and that the issues on appeal are limited to the findings related to the modified order. SSIH urges that the Commission erred in holding that the '762 patent was valid and enforceable and was infringed by the SSIH imported scoreboard. It further argues that it has not caused any injury to S-W and that the public interest factors statutorily required for a determination of a remedy under Sec. 337(d) preclude issuance of the order. 15 S-W argues that the original June 19, 1981 order is the only final appealable order and asks that we affirm the conclusions of validity, infringement, and enforceability of all three patents and all other conclusions supporting that order. 16 The Government endorses the position of SSIH that only the order as modified is reviewable, but opposes SSIH on all other issues with respect to the correctness of the exclusion order based on the '762 patent. 17 SSIH and the Government both maintain that the '926 and '335 patents remain in the case only for the purpose of evaluating whether S-W was guilty of inequitable conduct. II 18 The initial question is what issues are properly before us. S-W urges that the order of June 19, 1981, is the only exclusion order sent to the President and that after 60 days, since the president did not disapprove it, all of the findings and conclusions underlying that order became final for purposes of appeal by SSIH. In S-W's view, the order of August 10, 1981, did not affect the finality of the June 19, 1981 order; rather the later order merely stayed the date when the first will become operative. 19 SSIH and the Government argue that the August 10, 1981 order in part nullified the order of June 19, 1981, and only the findings and conclusions which support the more limited exclusion order are subject to review by this court at this time. We agree. 20 In reaching our conclusion, we have first considered the authority of the Commission to modify an exclusion order before Presidential action during the 60 day period provided for such review. 21 Under the statute, Sec. 337(h),7 the Commission is specifically authorized to terminate the effectiveness of an exclusion order when the Commission finds that the conditions which led to exclusion no longer exist. S-W argues that this provision does not apply here because the order of June 19, 1981, was not "effective" until after the Presidential review period expired. S-W confuses the "effectiveness" of a determination with its "finality." While Commission determinations are not final for purposes of appeal to this court until the review period has run, they are otherwise "effective upon publication ... in the Federal Register." Section 337(g)(2). During the Presidential review period, products are in fact excluded from entry except under bond. Hence, on June 24, 1981, when the Commission's order was published in the Federal Register (46 Fed.Reg. 32694), the power to terminate arose under Sec. 337(h). 22 We also conclude that the requisite findings for nullifying the order with respect to the '926 and '335 patents were made. In its August 10, 1981 order, the Commission stated that it had reviewed the "transcript of the decision [in the Pontiac case]" and "determined ... that ... the exclusion order ... should ... operate only with respect to [the '762 patent]." (Emphasis added.) The Commission thus necessarily found that the conditions leading to a determination to exclude imports on the basis of infringement of claims of the '926 and '335 patents "no longer exist". 23 Such a finding could properly be premised on the holding of the Pontiac case. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Moreover, the law is well settled that the pendency of an appeal has no affect on the finality or binding effect of a trial court's holding. Deposit Bank v. Frankfort, 191 U.S. 499, 24 S.Ct. 154, 48 L.Ed. 276 (1903). See also 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4433 (1981). That rule is applicable to holdings of patent invalidity as well. Alamance Industries, Inc. v. Gold Medal Hosiery Co., 194 F.Supp. 538, 540, 129 USPQ 219, 220 (S.D.N.Y.1961). See also, H. Kaye, R. Lupo, and S. Lipman, The Jurisdictional Paradigm Between the United States International Trade Commission and the Federal Courts, 64 JPOS 118, 132-33 (1982). 24 The Commission took the action of modifying its exclusion order on its own motion. We agree that such action was appropriate, given the nature of a Sec. 337 investigation, which results in an order operative against goods and which is equally effective against those who participate as those who do not participate in the proceeding. Sealed Air Corp. v. USITC, 645 F.2d 976, 985-86, 209 USPQ 469, 477-78 (CCPA 1981). The Commission cannot assume a passive role once an exclusion order is issued. As stated in SSIH Equipment S.A. v. USTIC, 673 F.2d 1387, 1390, 213 USPQ 529, 531 n. 8 (CCPA 1982): 25 [T]he Commission's obligation [is] to be always concerned with the impact of its orders on the United States economy and consumers as well as its obligation to terminate orders. 26 In view of the foregoing, we conclude that the Commission acted properly in issuing its August 10, 1981 order,8 and that such action limited the appealable determination under Sec. 337(d) to the validity of an exclusion order based solely on claims 10 and 12 of the '762 patent. SSIH, whose goods were specifically held to be barred by that order, is clearly adversely affected and may challenge the findings and conclusions on which it was based. III 27 Before addressing the merits of this appeal, it is necessary to clarify the standard of review. 28 The Commission, relying on Sec. 337(c), as amended by the Customs Courts Act of 1980, Pub.L. No. 96-417, Sec. 604, 94 Stat. 1727, 1744 (1980) (hereafter "Customs Courts Act"), and General Motors Corp. v. USITC, 687 F.2d 476, 215 USPQ 484 (CCPA 1982), cert. denied, --- U.S. ----, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983), contends that all of the Commission's factual findings are reviewable under the "substantial evidence standard." SSIH argues for review under the less stringent "clearly erroneous" standard which was previously applicable to appellate review of Commission decisions.9 29 Section 337(c), as amended, applies to "civil actions commenced on or after [November 1, 1980]", Pub.L. No. 96-417, Sec. 701(b)(2), 94 Stat. 1747, 3209 (1980). SSIH asks us to interpret "civil action" to include a Commission investigation. Since the instant investigation began before November 1, 1980, under SSIH's view, the amendment does not affect this case. 30 Civil actions, as that term is commonly understood, refers to proceedings in court. It has been held, for example, that "a civil action is an adversary proceeding before a court of law; judicial review of a decision of an administrative agency is a civil action; a proceeding before the Commission is not a civil action." Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 400 A.2d 396, 401 (1979). We believe "civil action" is intended to be so construed here and does not embrace the proceedings before the Commission. The burden of proof borne by SSIH during the investigation was not affected by the Customs Courts Act. We cannot accept that a party would not put forward its best case in anticipation of an easier road to reversal in the event it lost. Nor does SSIH assert that it had a right that a particular review standard be maintained. The question is merely one of statutory interpretation and the intent of Congress. From the language of the amendment we conclude that we are directed to apply the same standard of review to all appeals from Commission determinations after a certain date. Congress has chosen that date and we are not swayed from the conclusion that all appeals filed after November 1, 1980, are thus governed by Sec. 337(c), as amended. See, e.g., General Motors v. USITC, supra. Accordingly, we will apply the substantial evidence test to factual findings on this appeal.10 We are not, of course, bound by the Commission's legal conclusions. See 5 U.S.C. Sec. 706 (the reviewing court shall decide all relevant questions of law). Accord, General Motors v. USITC, supra. IV A. 31 The invention disclosed in the '762 patent is a system for displaying information and images, especially on stadium scoreboards. A large number of incandescent lamps ("display devices") are arranged in rows and columns to form a matrix. By activating different light bulbs to form patterns, information such as team names and scores and black-and-white stick-figures can be displayed. Claims 10 and 12, the claims in issue, are directed to successive displays of stick-figures to create an illusion of movement (animation). 32 The large scoreboard matrix is comprised of elements, each of which contains rows of light bulbs. An element displaying the letter "T" would appear thus:11 33 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 34 An element's relationship to the overall display can be illustrated thus: 35 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 36 A control unit determines the on-off state of the light bulbs in each element. A particular on-off state is maintained until that element is again "addressed," that is, the control unit selects that particular element for a change in its on-off pattern. Once addressed, all bulbs in the element turn off. If there is data in the control unit presented for another display in that element, the appropriate bulbs will turn on to form the prescribed pattern. Each of the elements in the scoreboard is controlled in the above manner. Thus, to simulate a cheerleader, for example, the appropriate elements would be addressed and provided the necessary data to result in the following (Picture A) on a portion of the scoreboard: 37 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 38 To achieve the appearance of animated motion, the position of the legs and arms can be made to change so that the next picture (Picture B) would look like this: 39 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 40 By alternating between Picture A and Picture B, the cheerleader appears to move. By increasing the number of pictures the animation can be made more complex. 41 Because each element can be addressed separately, the system is characterized as having a "random accessing" feature in its preferred mode of operation. As stated in the specification with regard to a series of pictures like the cheerleader examples above: 42 For example, the animated cheerleader ... may be displayed by programming each of the figures ... in individual frames one after the other in properly timed sequence. The indicator address and character display data for the complete first figure ... is programmed ... by using the proper codes for the individual indicator characters, spaces where indicators are blank and carriage returns for sequencing each row. A predetermined interval after the time for [the first] figure ... data is programmed to cause the erasure of the figure in preparation for the display of [the next] figure.... A figure may be erased by addressing the necessary indicators followed by the data for a space .... The next figure ... is programmed for the second frame, again followed by blanking in preparation for the third figure ... for the complete cartoon. 43 If desired the whole display need not be erased for each frame, but rather only the desired indicators by individually addressing and actuating the desired indicators. Thus, if only the arms of the [first figure] are to move the appropriate indicators only are addressed and the remaining indicators will stay lit during the sequence. [Emphasis added.] 44 Thus, to go from Picture A, there are two options. The first (not random access) is to erase the entire display and to transmit the information necessary to display Picture B. The second is to transmit information only to those elements which are necessary to change from Picture A to Picture B. Whichever method is employed, the above-quoted description makes clear that all of the data necessary to display Picture A is contained in a "frame" for the entire picture, while whatever data necessary to change Picture A to Picture B is also contained in a "frame." 45 Such a "frame" refers to a "data frame" in a mass storage system, such as magnetic tape or paper tape. The specification discloses a mass storage system and one other temporary storage memory. The temporary storage memory is capable of storing no more data at one time than that associated with one element of the display matrix and acts as a buffer between the mass storage system and the display. 46 In the embodiment where the system does not function in a "random access" mode, the control system will automatically cycle through every element of the display and activate the lights necessary for a particular display and on the next cycle it can change the display. In this embodiment, the mass memory does not hold data for address purposes. The internal system automatically keeps track of what element is being altered. This embodiment is the type of display which turns off the entire picture and redisplays rather than changing only individual elements. B. 47 Because of certain statements by the Commission on the effect of the statutory presumption of validity (35 U.S.C. Sec. 28212) in connection with claim 12, we will first address SSIH's contention that claim 12 is invalid.13 SSIH argues that the invention claimed therein would have been obvious within the meaning of 35 U.S.C. Sec. 10314 in view of U.S. Patent No. 3,021,387 to Rajchman (Rajchman). There is no dispute that Rajchman is available as prior art, nor does S-W dispute the Commission's view that Rajchman is more relevant than the art cited by the examiner during the prosecution of the '762 patent application. 48 The distinction between legal conclusions and factual findings with respect to evaluating assertions of obviousness was set forth in General Motors v. United States, 687 F.2d at 480, 215 USPQ at 487-88: 49 In Stevenson v. USITC, 67 CCPA 109, 112, 612 F.2d 546, 549, 204 USPQ 276, 279 (1979), this court stated: 50 Obviousness is a legal conclusion based on factual evidence, Graham v. John Deere Co., [383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) ], ... and not a factual determination. 51 The factual determinations from which to draw the conclusion of obviousness were set out by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966): 52 Under Sec. 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. 53 The Commission stated in adopting the recommended determinations of the ALJ: 54 The Rajchman patent discloses a mural image reproducer for displaying television pictures utilizing a pair of storage circuits alternatively operated to supply video pulses to different rows of luminescent cells. There is more than an insubstantial difference between Rajchman and claim 12, however, in that Rajchman does not teach a memory for displaying data in data frames pertaining to a desired pattern. R.D. finding of fact 61. The presumption of validity of claim 12 is thus weakened by the failure of the examiner to consider the most relevant prior art--the Rajchman patent--but it is not overcome. Id. 59, 63. There are differences between claim 12 and Rajchman. Moreover, respondents adduced little or no evidence that claim 12 would have been obvious to one skilled in the art at the time. Id. 62-63. In the absence of clear and convincing evidence of invalidity, doubt must be resolved in favor of the patentee. We therefore find claim 12 of the '762 patent valid. 55 213 USPQ at 480 (emphasis added). 56 Contrary to the Commission's statement, the presumption of validity was not altered by introduction of Rajchman, even though it was more relevant prior art. The presumption of validity afforded by 35 U.S.C. Sec. 282 does not have independent evidentiary value. Rather the presumption places the burden of going forward, as well as the burden of persuasion, upon the party asserting invalidity. Solder Removal Co. v. USITC, 582 F.2d 628, 199 USPQ 129, 133 (CCPA 1978). We do not agree that the presumption is affected where prior art more relevant than that considered by the examiner is introduced. Rather the offering party is more likely to carry its burden of persuasion with such evidence. Solder Removal Co. v. USITC, 582 F.2d at 632-33, 199 USPQ at 133. 57 With respect to the Commission's statement that there must be "clear and convincing evidence of invalidity " (our emphasis), we find it inappropriate to speak in terms of a particular standard of proof being necessary to reach a legal conclusion. Standard of proof relates to specific factual questions. While undoubtedly certain facts in patent litigation must be proved by clear and convincing evidence, Radio Corp. v. Radio Laboratories, 293 U.S. 1, 54 S.Ct. 752, 78 L.Ed. 1453 (1934), the formulation of a legal conclusion on validity from the established facts is a matter reserved for the court. As a reviewing court, this court must determine not only that the facts on which a judgment of validity or invalidity was based were satisfactorily established, but also whether those facts form an adequate predicate for the legal conclusion ultimately made. 58 With respect to claim 12 which SSIH asks us to hold invalid, there is no evidence of record on which to base that conclusion. 59 Claim 12 is directed to a scoreboard incorporating the random access feature capable of changing only a particular element. The limitation around which the parties concentrate their arguments pertains to the memory: 60 a memory for storing coded address and display data in data frames pertaining to a desired pattern for each of said visual display frames .... [Emphasis added.] 61 During prosecution, the patentee amended claim 12 to specify that the data to be stored must be both address data to determine what part of the display is to be affected, i.e., the element, as well as the data which controls the pattern to be displayed for the entire picture or all parts to be changed. Moreover, the patentee specifically urged that storage of both address and display data was a basis for distinguishing over art cited by the examiner in originally rejecting claim 12. Thus, claim 12 is directed to a randomly accessible display system wherein the memory stores both the address data corresponding to the location of the element to be affected in a display and the data for what change must be made. 62 Rajchman discloses neither a memory capable of storing more than part of a total picture nor any manner of storing address data. Rajchman simply stores a part of a video signal in a memory whose contents are continually changed to correspond to the portion of the picture to be displayed. The operation of Rajchman is so rapid that an entire picture is viewed even though the whole picture is not stored at any one time. Further, the selection of which portion of the picture to display is automatic and is sequenced to correspond with the normal scanning operation of a television camera, for example. Address data is simply irrelevant in this context. 63 No prior art having been introduced to show both a memory capable of storing whole frames, nor anything whatsoever to suggest "random accessing" display devices, it has not been shown that the invention in claim 12 would have been obvious. Accordingly, the Commission correctly refused to conclude that claim 12 is invalid. C. 64 With respect to infringement, the question of "what is the thing patented" is one of law, while the question "has that thing been constructed [made], used or sold" by the alleged infringer is a factual issue, Winans v. Denmead, 56 U.S. (15 How.) 329, 337, 14 L.Ed. 717 (1853), to be proved by a preponderance of the evidence. Decca Ltd. v. United States, 544 F.2d 1070, 1081, 191 USPQ 439, 448 (Ct.Cl.1976). The Commission found that claim 12 was literally infringed by SSIH in the following terms: 65 The SSIH invention nonetheless stores address data. Its memory constitutes a map of the display board, storing data at locations corresponding to the locations at which they are displayed. Thus, there is literal infringement of the '762 patent. We reject SSIH's file wrapper estoppel argument because we find literal infringement; infringement under the doctrine of equivalent [sic] is not at issue. 66 213 USPQ at 484. From a review of the entire record, we find this conclusion unsupported by substantial evidence. Not only has the Commission erroneously ignored the prosecution history of claim 12, which is always relevant to a proper interpretation of a claim, see Astra-Sjuco A.B. v. USITC, 629 F.2d 682, 686, 207 USPQ 1, 5 (CCPA 1980); Autogiro Co. of America v. United States, 384 F.2d 391, 395-99, 155 USPQ 697, 701-04 (Ct.Cl.1967), but also there is no evidence whatsoever to suggest that "coded address data" is actually stored in the SSIH system. As intimated by the Commission, and as testified to by all of the experts, such address storage is, at most, implicit. Since claim 12 explicitly requires coded address data storage, a conclusion of literal infringement must fail. Hence, the Commission erred in stating that the doctrine of equivalents need not be considered. Since infringement cannot be found in the absence of a finding of equivalence, we reverse the finding of infringement and remand for consideration of equivalence.15 D. 67 The issue of the validity of claim 10 turns on whether the invention claimed therein16 "was described" by the disclosure in U.S. Patent No. 3,384,888 to Harnden et al. (Harnden) within the meaning of 35 U.S.C. Sec. 102(e).17 68 To be an anticipating reference, Harnden must disclose each and every element of the claimed invention. Straussler v. United States, 339 F.2d 670, 671, 143 USPQ 443, 443-44 (Ct.Cl.1964). See also In re Arkley, 455 F.2d 586, 172 USPQ 524 (CCPA 1972); Eastern Rotorcraft Corp. v. United States, 397 F.2d 978, 979, 154 USPQ 43, 44 (Ct.Cl.1967). Thus, it was required that the Commission determine (1) what is the scope of the claim, i.e., what are all the elements of the claimed invention; and, (2) what does the reference disclose.18 69 The crucial question respecting claim 10, around which the arguments of the parties center, is whether the following limitation found in claim 10 refers to the temporary (one-element) storage within the device or the mass storage system: 70 a memory for storing multibit coded data in data frames pertaining to patterns for forming said animated characterizations .... 71 From the analysis of the invention set forth in part IV, A, supra, it is manifest that the memory required by claim 10 is one that is capable of storing several frames at one time and, thus, refers to a mass storage system as opposed to the temporary memory. This appears to be the interpretation given by the Commission. 72 Harnden discloses a travelling message sign, but one which can be made to appear to be stationary and can be used for animation. Harnden states: 73 [T]he optical effect as viewed by an observer is that of a sudden presentation of a complete message which may occupy the entire length of the display sign ... followed by another presentation of a complete message which may be identical to the first or changed therefrom in a predetermined manner. 74 Only one column of information can be fed into the Harnden display at a time. After the data for a column is fed into the sign, that data is "shifted" to the next column and new data is fed into the first column. To display animations, Harnden requires that Picture A be "shifted" into the display followed by shifting in Picture B. If the shifting is rapid enough, and all of the light bulbs are forced to remain in the off state while the data is being shifted in, the resultant display will be much like the claimed display. 75 Harnden also discloses a memory 42 in which several columns of information may be temporarily stored. The Commission found that this memory is not a "mass memory," but rather holds no more than the equivalent of data for one element in S-W's display.19 While we do not question the correctness of this finding, we do not agree that it is dispositive. 76 The Commission (and the ALJ) wholly failed to take into account that Harnden also describes a mass storage system which utilizes, inter alia, magnetic tape or paper tape: 77 The input information is supplied on a suitable recording medium and may include various types of coded tapes including printed, punched, or magnetic punched or printed cards, magnetic core storage, or film. 78 Since the limitation quoted from claim 10 requires only that the mass memory hold information necessary to display a series of several pictures (i.e., successive data frames), the conclusion is inescapable that Harnden's mass storage system also holds the data necessary for a series of several pictures to result in animation in the manner above described. Further, S-W does not argue that claim 10 does not otherwise read on Harnden's disclosure, nor do we think such an argument could be made. The major difference between the disclosures of Harnden and the '762 patent resides in the manner by which the information is directed to the elements of the display (random vs. non-random access). That difference, however, does not appear in claim 10, and we cannot alter what the patentee has chosen to claim as his invention. Autogiro Co. of America v. United States, 384 F.2d at 396, 155 USPQ at 701, and cases cited at n. 5.20 79 Harnden's disclosure of a mass memory was totally ignored by the Commission. Since that memory is the only element said to be missing from the Harnden disclosure, the Commission's conclusion that claim 10 is valid is reversed. V 80 SSIH asserts that one or more of the other patents originally asserted by S-W were "procured through inequitable conduct" and that such activity also taints the '762 patent and renders it wholly unenforceable, citing Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245-47, 54 S.Ct. 146, 147-48, 78 L.Ed. 293 (1933). 81 The "inequitable conduct" is said to arise from a failure on the part of S-W to inform the patent examiner of certain acts alleged to constitute a possible on-sale bar under 35 U.S.C. Sec. 102(b)21 to all but the '762 patent. This inequitable conduct is not said to have occurred in connection with procurement of the '762 patent. Rather, SSIH relies solely on the supposition that all of the patents are so interrelated that S-W's "unclean hands" with respect to the later patents renders the '762 patent unenforceable. We reject this contention as a matter of law. 82 The acts which are alleged to have taken place all occurred after the '762 patent issued and do not deal with the invention claimed in the '762 patent. Moreover, the '762 patent issued almost three years before any of the other patents were applied for. 83 Keystone Driller and its progeny would deny enforcement of the '762 patent only if S-W were to have committed a fraud on the Commission itself. See, e.g., Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195, 190 USPQ 273, 286 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977). Such a situation does not exist here. Therefore, the enforceability of the '762 patent is unaffected. VI 84 The final issues raised by SSIH relate to injury to a domestic industry and the public interest. 85 The Commission's findings in those areas relied heavily on the '335 and '926 patents and the technology contained therein. The video patents, as the parties refer to them, were the primary focus of the Commission's inquiry. Such an inquiry is of no aid to us now where the only possible remaining basis for exclusion is the one claim (claim 12) which the SSIH and other competing scoreboards may not infringe, see n. 5, supra. Hence, upon remand the Commission is directed to reevaluate the public interest and injury factors. Conclusion 86 In view of the foregoing, the June 19, 1981 order as modified by the August 10, 1981 order is vacated and the case is remanded for further proceedings in accordance herewith. 87 REVERSED IN PART, VACATED, AND REMANDED. 88 KASHIWA, Circuit Judge, joins parts III, IVA, IVC, IVD, V and VI. 89 NIES, Judge. 90 These additional comments are added because this author perceives a recurring confusion, as in this case, between standards of proof at the trial level and standards of review at the appellate level with respect to the facts in the case.* The cases reviewed below indicate the importance of recognizing the distinction which must be made between trial and appellate standards and in understanding what is meant by each standard. 91 The importance of the distinction is well illustrated by the opinion in Charlton v. Federal Trade Commission, 543 F.2d 903 (D.C.Cir.1976), in which the FTC attempted to rely upon "substantial evidence" to determine facts. In reversing the FTC's decision, the court provided the following analysis: 92 We perceive one error which, all else aside, necessitates administrative reconsideration of the evidence. The crux of the difficulty is the Commission's use of a totally incorrect standard of proof in passing on Charlton's blameworthiness. 93 * * * 94 * * * 95 It was in the definition of that burden--in the degree of proof required--that the Commission faltered grievously. Its decision on disciplinary action was, in its words, to "be based on substantial evidence of record." "Substantial evidence," the Commission said, was not "the 'preponderance' of the evidence"; but "something less than the weight of the evidence"; it was, the Commission declared, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In adopting that formulation as the criterion by which Charlton's conduct was to be gauged, the Commission hopelessly confused two legal canons designed to serve entirely distinct purposes. 96 To be sure, on judicial review of agency action, administrative findings of fact must be sustained when supported by substantial evidence on the record considered as a whole. But that rule implicates only the reviewing court; the yardstick by which the agency itself is to initially ascertain the facts is something else again. We need not pause to elaborate on the differing norms for treatment of the evidence in administrative and reviewing tribunals, respectively.30 It suffices for present purposes simply to recall that in American law a preponderance of the evidence is rock bottom at the factfinding level of civil litigation.31 Nowhere in our jurisprudence have we discerned acceptance of a standard of proof tolerating "something less than the weight of the evidence." 97 Id. at 906-07 (footnotes 24-29 and 32 omitted). 98 In Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court similarly reversed because of the misapplication of an appellate standard to the trial level. 99 * Standards of Proof of Facts at the Trial Level 100 A particular quantum or burden of proof at the trial level (standard of proof) is generally a judge-made requirement shaped in accordance with considerations of due process and/or the importance of certain facts. Herman & MacLean v. Huddleston, --- U.S. ----, 103 S.Ct. 683, 691, 74 L.Ed.2d 548 (1983). As explicated in Addington v. Texas, 441 U.S. 418, 423-25, 99 S.Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979), three levels of proof are generally recognized: preponderance (or weight) of the evidence, clear and convincing proof, and beyond a reasonable doubt. The analysis is as follows: 101 The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370 [90 S.Ct. 1068, 1075, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decisions. 102 Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. 103 In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra. 104 The intermediate standard, which usually employs some combination of the words "clear," "cogent," "unequivocal" and "convincing," is less commonly used, but nonetheless "is no stranger to the civil law." Woodby v. INS, 385 U.S. 276, 285 [87 S.Ct. 483, 487, 17 L.Ed.2d 362] (1966). See also C. McCormick, Evidence Sec. 320 (1954); 9 J. Wigmore, Evidence Sec. 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the "clear, unequivocal and convincing" standard of proof to protect particularly important individual interests in various civil cases. See, e.g., Woodby v. INS, supra, at 285 [87 S.Ct. at 487] (deportation); Chaunt v. United States, 364 U.S. 350, 353 [81 S.Ct. 147, 149, 5 L.Ed.2d 120] (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 [63 S.Ct. 1333, 1336, 1353, 87 L.Ed. 1796] (1943) (denaturalization). 105 * * * 106 * * * 107 We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a "standard of proof is more than an empty semantic exercise." Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (Sobeloff, J., concurring in part and dissenting in part), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). [Footnote omitted.] II 108 Standards of Review of Facts by Appellate Court 109 The standards of appellate review of factual determinations, in contrast to the quantum of proof required at the trial level, are usually statutorily imposed. The standards most commonly specified are "de novo," "clearly erroneous," "supported by substantial evidence" and "arbitrary or capricious," which I translate roughly into questions of increasingly narrow focus: is a finding of fact right; is it wrong; it is unreasonable; is it irrational? 110 A "de novo " standard provides the widest latitude for review of facts. The court in "de novo " review must exercise its independent judgment on the evidence of record and weight it as a trial court. The court is not, however, required to ignore the decision below. See Nulf v. International Paper Co., 656 F.2d 553, 563 (10th Cir.1981), and cases cited. United States v. First City National Bank, 386 U.S. 361, 368-69, 87 S.Ct. 1088, 1093-94, 18 L.Ed.2d 151 (S.D.Tex.1966) provides the following guidance: 111 [T]he 1966 Act provides that the court in an antitrust action "shall review de novo the issues presented." (Emphasis added.) 12 U.S.C. Sec. 1828(c)(7)(A). It is argued that the use of the word "review" rather than "trial" indicates a more limited scope to judicial action. The words "review" and "trial" might conceivably be used interchangeably. The critical words seem to us to be "de novo " and "issues presented." They mean to us that the court should make an independent determination of the issues. Congressman Patman, the Chairman of the House Committee that drafted the Act, in speaking of this de novo review, said that the court would "completely and on its own make a determination as to whether the challenged bank merger should be approved under the standard set forth in paragraph 5(B) of the bill." He added that the "court is not to give any special weight to the determination of the bank supervisory agency on this issue." 112 * * * 113 * * * 114 The courts may find the Comptroller's reasons persuasive or well nigh conclusive. But it is the court's judgment, not the Comptroller's, that finally determines whether the merger is legal. 115 With respect to "clearly erroneous," the next level in the hierarchy, this standard is defined in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948): 116 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. 117 The standard commonly associated with review by an appellate court of agency determinations is "supported by substantial evidence." This standard (perhaps because of its inept name) appears to be the least comprehended. To begin, a "substantial evidence" standard restricts an appellate court to a greater degree than "clearly erroneous" review. The Supreme Court, in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), undertook to set out the development and various interpretations which had been given to "substantial evidence" as a standard of review. 118 Beginning with its previously defined standard: 119 "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 216, 83 L.Ed. 126]. Accordingly, it "must do more than create a suspicion of the existence of the fact to be established .... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. 120 Id. 340 U.S. at 477, 71 S.Ct. at 459, the Court noted that some courts had interpreted the standard to require a myopic view of the record, stating: 121 [U]nder a "prevalent" interpretation of the "substantial evidence" rule "if what is called 'substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate--unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored." 122 Id. at 481, 71 S.Ct. at 460 (footnote omitted). The Court unequivocally rejected this interpretation: 123 The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General's Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment. 124 To be sure, the requirement for canvassing "the whole record" in order to ascertain substantiality does not furnish a calculus of value by which reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. 125 Id. at 488, 71 S.Ct. at 464. 126 The Court's ultimate conclusion was as follows (Id. at 490, 71 S.Ct. at 465): 127 We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. 128 The narrowest latitude to a reviewing court is where the court can reverse a decision only by finding it "arbitrary or capricious." Citizens to Protect Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), is the seminal case discussing this standard. Suffice for purposes here to say that the standard is 129 whether the decision was based on the relevant factors and whether there has been a clear error of judgment. 130 Id. at 416, 91 S.Ct. at 823. III 131 Interrelationship of Trial and Appellate Standards 132 While the standard of review and the standard of proof are distinct concepts, nevertheless, the degree of proof below affects the appellate decision whether to affirm or reverse, regardless of what standard of review is applicable. For example, in reviewing whether the evidence supports a finding of fact on a "clearly erroneous" standard, the decision might be affirmed if the standard of proof below were "weight of evidence" and might be reversed on the same record if the standard of proof were "clear and convincing" evidence. Thus, the appellate court must first focus on what support is needed for the trial court determination and then review, in accordance with the standard of review permitted in the type of case, whether that finding is properly supported. For example, in applying the substantial evidence standard of review (i.e., the reasonableness of the lower decision), the appellate court in Whitney v. SEC, 604 F.2d 676, 681 (D.C.Cir.1979), correctly, in my view, stated its function to be: "We review the Commission's findings only to ascertain whether ... there is evidence which a reasonable person might find clear and convincing." 133 EDWARD S. SMITH, Circuit Judge, concurring in part and dissenting in part. 134 I concur in the decision to remand the case to the U.S. International Trade Commission (Commission), but I respectfully decline to join certain portions of the majority opinion, as set forth below. 135 I concur in the result reached by the majority that only the '762 patent is before the court in this appeal in that the '926 and '335 patents are not appealable by SSIH at this time. I also agree that claim 12 of the '762 patent is valid, although I feel that the majority unduly limits the scope of claim 12. I respectfully dissent, however, from the majority's conclusion that claim 10 of the '762 patent is invalid. I feel that the court has failed to consider an important question of claim interpretation posed by several precedents of the U.S. Court of Claims. I. 136 I agree that the issue of the collateral estoppel effect, if any, of the district court judgment of invalidity in the Pontiac case should be reserved. Collateral estoppel is an affirmative defense1 and for that and other reasons simply is not an issue in this case. The Commission could, and apparently did, consider the uncertainty generated by the Pontiac judgment in crafting its remedial order. II. THE '762 PATENT 137 With respect to the validity of claim 12 of the '762 patent, I concur in the result reached by the majority. I am unable, however, to join the majority's conclusion that claim 10 is anticipated by Harnden under 35 U.S.C. Sec. 102(e) (1976). My review of claim 10 has revealed a potential problem of claim interpretation with respect to the precedents of the former U.S. Court of Claims, binding on this court under South Corp. v. United States,2 which compels me to dissent. A. 138 I agree with the majority that claim 12 is valid. The majority's reasoning, however, appears unnecessarily to limit the scope of that claim. The reference Rajchman lacks a memory system as is called for in claim 12 and is, instead, supplied with input data through a photoelectric scanning circuit rather than from a memory. That difference alone is sufficient to ground the conclusion of validity over the reference. Yet, the majority proceeds to read into claim 12 the additional limitation of randomly accessing the display. While claim 12 clearly provides a system capable of random access display operation, the invention set forth in claim 12 is not so limited. Claim 12 merely provides a system by which the display could be randomly accessed. It is not limited to that mode of operation, but rather, fully in accordance with the limitations of claim 12, an entire subsequent data frame could be read onto the display in a non-random access mode of operation. This departure might be critically importance under the doctrine of equivalents on remand. 139 Nonetheless, I agree with the majority that claim 12 is not literally infringed, as the SSIH system does not store address data in the form required by the claim--multibit coded address data. While a finding of equivalence is implicit in the Commission's decision, the Commission did not undertake the requisite analysis. Thus, the case must be remanded for consideration of whether SSIH's hardwired mode of address data storage infringes claim 12 under the doctrine of equivalents. B. 140 Claim 10 poses a potential problem of claim interpretation. The parties and the majority focus primarily on the memory limitation of claim 10, and I agree that that element is taught by the reference. The critical limitations of claim 10, however, would appear to be those relating to the sequence of processing and displaying the data. 141 The standard test of anticipation is whether the claim reads on the reference--an "infringement" test. The "majority rule" heretofore has been that the language of the claim defines the metes and bounds of the invention for purposes of determining its validity. A minority of courts have, however, referred to the specification to provide additional limitations to the claim in order to save the claim from invalidity. The court in the instant case appears to analyze the invention as defined exclusively by the limitations of claim 10, without reference to any additional limitations of the specification. It is clear that under such an approach, claim 10 is invalid. 142 Claim 10 is quite broad. The reference expressly discloses the key element of contention between the parties--the memory element. Additionally, the limitations on the manner of operation and on the sequencing and display of the data are so general and so broad as to read on the reference. If recourse is made to the specification, however, it is clear that the invention and reference do not function in substantially the same manner, belying the conclusion that they describe the same invention within the meaning of 35 U.S.C. Sec. 102(e). 143 The court's approach is, however, supported by a substantial body of precedent. A majority of courts have declined to go beyond the language of the claim to the specification in order to save the claim from invalidity.3 The court today follows that "majority" approach without recognition of several binding precedents of the Court of Claims, which precedents appear to compel a different result. 144 The Court of Claims has generally embraced the "minority" approach to claim interpretation. That court has read the claim in conjunction with the specification in order to preserve the validity of a claim.4 Such "minority" approach garners at least some degree of support from Supreme Court precedent on the construction of an ambiguous claim.5 The articulation of the "minority" rule by the Court of Claims, however, goes beyond the situation where the claim is ambiguous. 145 In Decca Ltd. v. United States, the Court of Claims, affirming per curiam a recommended decision by then Commissioner Lane (later a judge of the Court of Customs and Patent Appeals), clearly articulated its approach in relying on the specification to supply additional limitations not found in the claims:6 146 Defendant contends that claims 1, 2, and 3 of the '980 patent are invalid under Title 35 U.S.C. Sec. 102 or Sec. 103. In support of its contentions, defendant relies on prior art patents and a report disclosing a navigation system known as LF Loran which was developed subsequent to the Loran-A system. * * * 147 We must note initially that claims 1, 2, and 3 of the '980 patent are so broad, by themselves, as to encompass any device accomplishing the general operation they describe. In fact, the claims would read precisely on an apparatus consisting of an LF Loran, with its master and slave stations, transmitting pulse-modulated signals, coupled to the British O'Brien patent, employing a phase discriminator-phase regulator. Since these are clearly "old", and plaintiff insists it has produced something novel, it is evident that a more detailed description is necessary to enable a reader to distinguish the '980 from other devices which might be covered by the '980 claims if they are read broadly and literally. [Emphasis in original.] 148 To prevent such invalidity of the patent for overbreadth and clear anticipation (35 U.S.C. Sec. 112 (1964); Hailes v. Van Wormer, 20 Wall. 353, 372, 22 L.Ed. 241 (1873); see also Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 276-277 [69 S.Ct. 535, 538-39, 93 L.Ed. 672 [80 USPQ 451, 453] (1949); Special Equipment Co. v. Coe, 324 U.S. 370, 385-386 [65 S.Ct. 741, 748, 89 L.Ed. 1006] [64 USPQ 525, 532] (1945) (dissent); General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 368-372 [58 S.Ct. 899, 901-903, 82 L.Ed. 1402] [37 USPQ 466, 468-70] (1938)), the specifications must in this instance be read to limit the claims. Hailes v. Van Wormer, 20 Wall. 353, 372, 22 L.Ed. 241 (1873); Dominion Magnesium Ltd. v. United States, 320 F.2d 388, 394 [138 USPQ 306, 310-11] (1963). The painstaking detail of plaintiff's description indicates that the specifications reveal, not a mere example of his invention, but rather the precise nature of the claimed discovery. Thus, plaintiff's claim must be limited to what appears in the description. Hailes v. Van Wormer, supra, 20 Wall. at 372 [22 L.Ed. 241] * * *. * * * [Emphasis supplied.] 149 Again in Roberts Dairy v. United States,7 the court referred to the specification to provide additional limitations to the claim and thus, preserve its validity: 150 In Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510, 37 S.Ct. 416, 418, 61 L.Ed. 871 (1917), the Supreme Court stated that "The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification." More recently, the Supreme Court reiterated that position in United States v. Adams, 383 U.S. 39, 49 [86 S.Ct. 708, 713, 15 L.Ed.2d 572] [148 USPQ 479, 482] (1966), when it stated: "it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention." See also, Tate Engineering, Inc. v. United States, [193 Ct.Cl. 1088] 477 F.2d 1336, 1340 [178 USPQ 365] (1973). Thus, a patentee is bound by his specification in interpreting his patent claims even when his specification requires a narrower interpretation of the claims than the patentee desires. Texsteam Corp. v. Blanchard, 352 F.2d 983, 147 USPQ 431 (5th Cir.1965), cert. denied, 387 U.S. 936 [87 S.Ct. 2064, 18 L.Ed.2d 1000] [153 USPQ 888] (1967). 151 * * * 152 * * * 153 Furthermore, this construction of claim 1 is required to distinguish it, as will be more fully discussed hereinafter, from the prior art and to thus avoid invalidity. Calico Scallop Corp. v. Willis Bros., Inc., 458 F.2d 390, 173 USPQ 321 (4th Cir.1972); Tate Engineering, Inc. v. United States, supra. [Emphasis supplied.] 154 It is clear that there is adequate Court of Claims precedent to support reference to the specification in order to save a claim. 155 These two analytic approaches (majority and minority) would reach different results on the facts of the instant case. As in Decca, despite the breadth of the language of claim 10 standing alone, the specification provides adequate description of the invention to safely conclude that the reference and the invention operate in a substantially different manner and thus reflect different inventions. 156 The specification discloses an extremely flexible control system for a data display device. Data is stored in "frames" corresponding to the visual display frames. The system is capable of randomly accessing both the memory and the display, although neither claim 10 nor the specification is limited to that mode of operation of either display or memory. The flexibility of the control system enables data to be processed from memory into the display in the sequence that it is displayed. In contrast, the sequencing of data processing and display disclosed by Harnden is far less flexible. 157 Harnden's logic transfer circuits consist exclusively of serially connected shift registers. This structure is physically incapable of the flexibility of data transfer that is the key feature of the invention embodied in the '762 patent. The shift register logic can transfer data only sequentially from one register to the next consecutive register. Harnden does, however, disclose an animation technique involving the presentation of a data set, flushing that data through the registers, and presentation of the next data set. Harnden processes the data as follows: 158 The traveling message sign hereinabove described may also be utilized as a changing sign, that is, a sign wherein the characters do not move thereacross but are fixed in position and can be changed. Examples of the latter type of sign are * * * and various scoreboards associated with sporting events such as baseball and horse racing. The message is encoded on the tape and goes through the same process in information circuit 24 and is thence transferred to the display sign, however, the lamp intensity control 26 is controlled in synchronism with the transfer of the message from information circuit 24 to the remote display sign such that all of the lamps on the sign are maintained in a dark condition during the interval of message transfer. Upon the complete message being obtained on the sign, decoder-encoder 41 instructs speed switch 50 in clock circuit 25 to switch to the stop position, thereby stopping the movement of characters on the display sign, and lamp intensity control 26 is simultaneously controlled to obtain the desired brilliance of lamp intensity on the sign. Thus, the optical effect as viewed by an observer is that of a sudden presentation of a complete message which may occupy the entire length of the display sign, then a short time interval of no message, followed by another presentation of a complete message which may be identical to the first or changed therefrom in a predetermined manner. [Emphasis supplied.] 159 To illustrate, assume a display of five registers and data flow from left to right through consecutive registers, as shown in figure 1. 160 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEThe data processing logic of the invention of the '762 patent, on the other hand, is not so limited. The control system of the invention can produce a display of "T" followed immediately by "I" either by changing the entire array or by deleting only the horizontal arms of the "T." The operation can be performed either with or without randomly accessing the memory as well as the display. It is not necessary to process the additional unneeded data through a series of registers, as does Harnden. The specification clearly establishes the mode of operation of the invention and that mode is significantly different from the mode of operation of Harnden. Construed in view of the specification, claim 10 is not anticipated by Harnden under 35 U.S.C. Sec. 102(e). 161 In order to establish the validity of claim 10, it has been necessary to limit the literal language of the claim by reference to the specification. Thus, it would be unfair to grant Stewart-Warner the full breadth of the broad language of the claim for purposes of infringement. I would hold claim 10 valid and remand the case to the Commission for reconsideration of the issue of infringement with specific direction to consider the effect of the reverse doctrine of equivalents on the Commission's finding of infringement. III. 162 I dissent because the principles of claim interpretation set out in Decca and Roberts Dairy would produce a result different from that reached by the majority. There are persuasive policy arguments for limiting the definition of the invention to the language of the claims when considering the issue of validity. Such an approach has considerable logical power. It reduces the subjectivity of validity analysis, resulting in increased consistency and predictability. Admittedly, the determination of validity, as opposed to infringement, should not vary based on the equities of any particular case. Yet, that may be the result where equity is allowed to step into the specification and supply additional limitations to the claims. The better rule may well be to force the patentee to bear the burden of invalidity resulting from the overbreadth of a claim. 163 There is a significant body of precedent, however, which accommodates the more subjective "minority" approach to claim interpretation and the former Court of Claims is one of those courts that has articulated that more subjective approach. Rather than allow the issue to slip silently into the backwaters of the law, I write to ventilate the issue of claim interpretation raised by these precedents. The court does not address this issue today. Despite the problems inherent in a subjective approach, provided that the claim is given a consistent interpretation in any particular case, a fair and consistent result can be achieved. The analysis may be more subjective than under the "metes and bounds" approach; however, as the precedents of this court grow in number, the uniformity and predictability sought by the Federal Courts Improvement Act of 1982 may yet obtain because of the court's exclusive jurisdiction over patent appeals. The "metes and bounds" rule may ensure even greater uniformity and predictability. The court's failure to reject, or even to grapple with, the "minority" rule in this case, however, leaves two sets of rules governing claim interpretation in the body of precedent of the Federal Circuit--a situation far more damaging to predictability than the consistent application of the more subjective rule. 164 KASHIWA, Circuit Judge, joins in Parts I and II.A of this dissent, but not in Parts II.B and III. 1 19 U.S.C. Sec. 1337 (1976 and Supp. IV 1980) provides, in pertinent part: Sec. 1337. Unfair practices in import trade (a) Unfair methods of competition declared unlawful Unfair methods of competition and unfair acts in the importation of articles into the United States, or in their sale by the owner, importer, consignee, or agent of either, the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States, are declared unlawful, and when found by the Commission to exist shall be dealt with, in addition to any other provisions of law, as provided in this section. (b) Investigation of violations by Commission; time limits (1) The Commission shall investigate any alleged violation of this section on complaint under oath or upon its initiative. * * * (2) During the course of each investigation under this section, the Commission shall consult with, and seek advice and information from, the Department of Health and Human Services, the Department of Justice, the Federal Trade Commission and such other departments and agencies as it considers appropriate. * * * (c) Determinations; review The Commission shall determine, with respect to each investigation conducted by it under this section, whether or not there is a violation of this section. Each determination under subsection (d) or (e) of this section shall be made on the record after notice and opportunity for hearing in conformity with the provisions of subchapter II of chapter 5 of title 5. All legal and equitable defenses may be presented in all cases. Any person adversely affected by a final determination of the Commission under subsection (d), (e), or (f) of this section may appeal such determination to the United States Court of Customs and Patent Appeals for review in accordance with chapter 7 of title 5. Notwithstanding the foregoing provisions of this subsection, Commission determinations under subsections (d), (e), and (f) of this section with respect to its findings on the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, the amount and nature of bond, or the appropriate remedy shall be reviewable in accordance with section 706 of title 5. (d) Exclusion of articles from entry If the Commission determines, as a result of an investigation under this section, that there is violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States, unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry. The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers refuse such entry. (e) Exclusion of articles from entry during investigation except under bond * * * (f) Cease and desist orders; civil penalty for violation of orders * * * (g) Referral to President (1) If the Commission determines that there is a violation of this section, or that, for purposes of subsection (e) of this section, there is reason to believe that there is such a violation, it shall-- (A) publish such determination in the Federal Register, and (B) transmit to the President a copy of such determination and the action taken under subsection (d), (e), or (f) of this section, with respect thereto, together with the record upon which such determination is based. (2) If, before the close of the 60-day period beginning on the day after the day on which he receives a copy of such determination, the President, for policy reasons, disapproves such determination and notifies the Commission of his disapproval, then, effective on the date of such notice, such determination and the action taken under subsection (d), (e), or (f) of this section with respect thereto shall have no force or effect. (3) Subject to the provisions of paragraph (2), such determination shall, except for purposes of subsection (c) of this section, be effective upon publication thereof in the Federal Register, and the action taken under subsection (d), (e), or (f) of this section, with respect thereto shall be effective as provided in such subsections, except that articles directed to be excluded from entry under subsection (d) of this section or subject to a cease and desist order under subsection (f) of this section shall be entitled to entry under bond determined by the Commission and prescribed by the Secretary until such determination becomes final. (4) If the President does not disapprove such determination within such 60-day period, or if he notifies the Commission before the close of such period that he approves such determination, then, for purposes of paragraph (3) and subsection (c) of this section such determination shall become final on the day after the close of such period or the day on which the President notifies the Commission of his approval, as the case may be. (h) Period of effectiveness Except as provided in subsections (f) and (g) of this section, any exclusion from entry or order under this section shall continue in effect until the Commission finds, and in the case of exclusion from entry notifies the Secretary of the Treasury, that the conditions which led to such exclusion from entry or order no longer exist. * * * 19 U.S.C. Sec. 1337 (Supp. V 1981) made no changes from the above. This court was substituted for the Court of Customs and Patent Appeals in Sec. 337(c) by virtue of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, Sec. 163(a), 96 Stat. 25, 49 (1982). 2 The '762 patent issued July 20, 1971, on an application filed March 27, 1967. The '335 patent issued February 22, 1977, on an application filed August 6, 1973. The '926 patent issued March 2, 1976, on an application filed April 8, 1974. A fourth patent (No. 4,148,073) was alleged, but was later withdrawn on S-W's motion 3 See n. 1, supra 4 See n. 1, supra 5 The '762 patent was not in issue in the Pontiac case. S-W's counsel conceded during oral argument of the instant appeal that the scoreboard constructed by American Sign & Indicator Co., which was claimed to infringe the claims of the '926 and '335 patents in the Pontiac case, did not embody the invention claimed in the '762 patent 6 SSIH filed a separate appeal from the denial of a motion to reopen proceedings to consider newly discovered evidence. See SSIH Equip. S.A. v. USITC, 673 F.2d 1387, 213 USPQ 529 (CCPA 1982) (Petition for writ of mandamus denied). SSIH subsequently amended its notice of appeal to include the denial of that motion in this appeal. In view of our disposition of this appeal, the denial of that motion need not be considered 7 See n. 1, supra 8 S-W does not assert that an exclusion order could not be terminated in part. Such a position would raise only a formalistic, not substantive, objection. By practice, the Commission issues exclusion orders covering several independent bases for exclusion of goods rather than separate exclusion orders for each. The multiple based approach was taken here in that goods infringing any one of the claims were excluded. Thus, in practical effect, the June 19 order may be thought of as separate orders on each claim, only two of which were not terminated on August 10. While the Commission's order of August 10, 1981, was phrased in terms of "suspension" of a portion of the earlier order, its effect was partial termination. We are not bound to consider it anything less because of the words used. Cf. Rohm & Haas Co. v. USITC, 554 F.2d 462, 463, 193 USPQ 693, 694 (CCPA 1977) (Commission order granting motion to dismiss without prejudice held with prejudice) The dissent's view that the Pontiac litigation could only be brought into the case as an affirmative defense of collateral estoppel by SSIH fails to appreciate that proceedings under Sec. 337 are in the nature of investigations with only limited aspects of inter partes cases. Further, the issue of whether the Commission had to modify its order under Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), is reserved. We hold only that there was a justifiable basis for the modification here. 9 Standards of proof must be distinguished from standards of review. SSIH referred to "weight of the evidence" rather than "clearly erroneous" to identify the prior standard of review. However, as more fully explained in this writer's appended views, "weight of the evidence" is more appropriately used to identify a standard of proof at the trial level, and we have, therefore, substituted "clearly erroneous" in its argument 10 In Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966), the Supreme Court provided the following exposition of the "substantial evidence" test: We have defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 217, 83 L.Ed. 126] [1938]. "[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 [59 S.Ct. 501, 505, 83 L.Ed. 660] [1939] [footnote omitted]. 11 The representative displays shown throughout are really the reverse of the actual display. Where the bulb is off, it appears white in the drawings. Where the bulb is on, it appears black. The opposite effect is seen when the true display is viewed by the human eye 12 35 U.S.C. Sec. 282 provides in pertinent part: A patent shall be presumed valid.... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. 13 Claim 12 reads: A system for displaying an animated characterization made up of a sequence of visual display frames comprising a display board having display devices arranged in addressable locations, a memory for storing coded address and display data in data frames pertaining to a desired pattern for each of said visual display frames, means for reading the coded address and display data in said data frames from said memory in sequence, means responsive to the coded address data from said memory for preparing the addressed display devices and means responsive to the display data from said memory for actuating the addressed display devices to form the patterns of each frame. 14 35 U.S.C. Sec. 103 provides: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. 15 SSIH also urges that claim 12 is unenforceable because S-W's attorneys failed to cite the Harnden patent to the examiner during prosecution. As Harnden is more relevant art, as discussed infra, this issue should also have been addressed by the Commission 16 Claim 10 reads: A system for displaying an animated characterization comprising a display board made up of a plurality of display devices, a memory for storing multibit coded data in data frames pertaining to patterns for forming said animated characterization, means for reading said data frames from said memory in sequence including electric signal conductor means having a sufficient number of conductors to transmit said multibit coded data but substantially less than the number of display devices making up said display board, and means in receipt of the data signals on said conductor means for operating said display devices in accordance with said sequenced data frames. 17 35 U.S.C. Sec. 102(e) provides, in pertinent part: A person shall be entitled to a patent unless-- * * * the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent .... S-W does not dispute that Harnden's filing date of December 30, 1974, is before the mid-1975 date asserted by S-W as the earliest date by which the invention claimed was first conceived and that Harnden is, thus, a valid reference. 18 The Recommended Determinations of the Administrative Law Judge (ALJ) and of the Commission are not clear or adequate. It is wholly insufficient to simply restate the language of the claims as findings 19 This memory is comparable to S-W's temporary memory 20 The dissent urges that we resort to the specification to "add-in" random accessing as a limitation. Such an approach would be fruitless where, as here, the specification discloses both random and non-random accessing as different embodiments of the same invention. Even the precedent cited by the dissent does not espouse the view that a disclosed embodiment may be disregarded in claim interpretation 21 35 U.S.C. Sec. 102(b) provides: A person shall be entitled to a patent unless-- * * * the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.... * I do not at this time enter the debate as to what is a fact but, rather, start with the proposition that a factual issue, not a legal issue, is before the court 30 See generally 4 K. Davis, Administrative Law Secs. 29.01-29.11 (1958) 31 See, e.g., the numerous cases collected in 9 J. Wigmore, Evidence, Sec. 2498 at 325-326 n. 1 (3d ed. 1940), Supp.1975 at 118-119 n. 1. Sometimes the standard is expressed in somewhat varying phraseology, but the meaning remains substantially equivalent. Id. Sec. 2498 at 325-327 1 Blonder-Tongue Laboratories, Inc. v. University of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788, 169 USPQ 513, 527 (1971); Fed.R.Civ.P. 8(c) 2 South Corp. v. United States, 690 F.2d 1368, 1370, 215 USPQ 657, 658 (Fed.Cir.1982) 3 See, e.g., Jamesbury Corp. v. Litton Indus. Prods., Inc., 586 F.2d 917, 199 USPQ 641 (2d Cir.1978), cert. denied, 440 U.S. 961, 99 S.Ct. 1503, 59 L.Ed.2d 774, 201 USPQ 960 (1979); Philips Indus., Inc. v. State Stove & Mfg. Co., 522 F.2d 1137, 186 USPQ 458 (6th Cir.1975); Wilcox Mfg. Co. v. Eastern Gas & Fuel Assocs., 400 F.2d 960, 158 USPQ 510 (4th Cir.1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 691, 21 L.Ed.2d 693, 160 USPQ 832 (1969); Beatty Safway Scaffold Co. v. Up-Right, Inc., 306 F.2d 626, 134 USPQ 379 (9th Cir.1962) 4 Roberts Dairy Co. v. United States, 182 USPQ 218, 223-24 (Ct.Cl.1974), aff'd, 208 Ct.Cl. 830, 530 F.2d 1342, 198 USPQ 383 (Ct.Cl.1976); Decca Ltd. v. United States, 190 Ct.Cl. 454, 420 F.2d 1010, 1021, 164 USPQ 348, 357 (Ct.Cl.1970), cert. denied, 400 U.S. 865, 91 S.Ct. 102, 27 L.Ed.2d 104, 167 USPQ 321 (1970); Palmer v. United States, 191 Ct.Cl. 346, 423 F.2d 316, 320-21, 163 USPQ 250, 254 (Ct.Cl.1969), aff'd, 423 F.2d 316, 165 USPQ 88 (Ct.Cl.1970), cert. denied, 400 U.S. 951, 91 S.Ct. 242, 27 L.Ed.2d 258, 167 USPQ 705 (1970). See also Dominion Magnesium Ltd. v. United States, 162 Ct.Cl. 240, 320 F.2d 388, 394, 138 USPQ 306, 310 (Ct.Cl.1963); Leesona Corp. v. United States, 185 USPQ 156, 164 (Ct.Cl.1975), aff'd, 208 Ct.Cl. 871, 530 F.2d 896, 192 USPQ 672 (Ct.Cl.1976). But see Chesterfield v. United States, 141 Ct.Cl. 838, 159 F.Supp. 371, 116 USPQ 445 (Ct.Cl.1958) 5 United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572, 148 USPQ 479, 482 (1966) ("it is fundamental that claims are to be construed in the light of the specification and both are to be read with a view to ascertaining the invention") 6 Decca Ltd. v. United States, 420 F.2d at 1021, 164 USPQ at 357 7 Roberts Dairy Co. v. United States, 182 USPQ at 223-24, aff'd, 530 F.2d at 1352, 198 USPQ 383

175 Mich. App. 637 (1989) 438 N.W.2d 272 In re SHAWBOOSE Docket No. 107605. Michigan Court of Appeals. Decided January 6, 1989. Harold L. Closz, III, Prosecuting Attorney, and Linda S. Kaare, Assistant Prosecuting Attorney, for the Department of Social Services. David W. Marra, for Pamela Shawboose. James G. Olsen, for the minor children. Before: MacKENZIE, P.J., and WEAVER and E.A. QUINNELL,[*] JJ. PER CURIAM. Respondent Pamela Shawboose appeals as of right from a probate court order terminating *639 the parental rights to her two minor children for reasons of neglect.[1] We affirm. I On appeal, respondent argues that the probate court erred in refusing to apply the standards of the Indian Child Welfare Act, 25 USC 1901 et seq. We disagree with this contention. The Indian Child Welfare Act did not apply to this case. Therefore the probate court properly assumed jurisdiction over the minor children. First, respondent never met the prerequisite of being an enrolled member of an Indian tribe. 25 USC 1903(4). In re Johanson, 156 Mich App 608, 612-613; 402 NW2d 13 (1986), lv den 428 Mich 870 (1987). Although respondent was eligible for membership in both the Ottawa and Chippewa Indian tribes, she never took steps to enroll as a member. Moreover, respondent never sought the help of the Michigan Indian Child Welfare Agency. Second, the issue of whether the minor children were "Indian children" was one for the tribes and not for the probate court to decide, which determination was conclusive. See In re Junious M, 144 Cal App 3d 786, 793; 193 Cal Rptr 40 (1983). Here, in accord with 25 USC 1911(b) and (c), 25 USC 1912(a), and MCR 5.980(A), the two tribes in which respondent was eligible for membership were given an opportunity to intervene in the probate court proceedings but declined jurisdiction. The Grand River Band of the Ottawa Indian Tribe declined jurisdiction because respondent was more Chippewa Indian than Ottawa Indian. The Saginaw Chippewa Indian Tribe declined jurisdiction *640 because respondent was not an enrolled member of the tribe. Accordingly, respondent's children were not "Indian children" as contemplated by the Indian Child Welfare Act. Hence the probate court did not err in declining its application. II We also reject respondent's contention that the trial court erred in admitting as an exhibit the findings and recommendations of the Foster Care Review Board because the report contained hearsay statements not subject to cross-examination. During the dispositional phase of a proceeding to terminate parental rights, the Rules of Evidence do not apply. MCR 5.973 (A)(4); MCR 5.974(E)(2). In re Nunn, 168 Mich App 203, 208; 423 NW2d 619 (1988). Respondent's argument that cross-examination was precluded is without merit, since MCR 5.974(E)(2) allowed respondent to cross-examine those who prepared the report if they were reasonably available. III We are also unpersuaded by respondent's argument that the probate court erred by considering the best interests of the children and comparing respondent to the foster parent prior to determining that there existed grounds for termination. When seeking to terminate parental rights, the burden is on the petitioner to show by clear and convincing evidence that there exists a statutory basis for termination. MCR 5.974(A) and (E)(3). Only after a statutory basis for termination is established may the trial court exercise discretion to terminate parental rights and to consider the best interests of the children and alternative *641 homes. In re Schejbal, 131 Mich App 833, 836; 346 NW2d 597 (1984). From our review of this matter we conclude that the probate court did, by evaluating the considerable evidence concerning respondent's alcoholism and neglect of her children, establish a statutory basis for terminating respondent's parental rights before considering the best interests of the children and alternative homes. IV We find no merit to respondent's contention that grounds were not established by clear and convincing evidence for termination of her parental rights on the basis of neglect, MCL 712A.19a(e); MSA 27.3178(598.19a)(e). Findings of fact which support termination of parental rights will not be reversed unless they are clearly erroneous. MCR 5.974(I); In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). Findings are clearly erroneous when, although there is evidence to support them, this Court is left with a definite and firm conviction that a mistake has been made. Tuttle v Dep't of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). We find no mistake here. The evidence showed that respondent's alcoholism together with her denial of the problem, disinclination to correct it, and failure to cooperate in a treatment setting resulted in respondent's failure to provide her children with proper food and shelter as well as other physical and emotional necessities. See In re Ovalle, 140 Mich App 79, 83; 363 NW2d 731 (1985), lv den 422 Mich 856 (1985). Hence respondent's neglect posed serious threats to her children's future welfare. In re Harmon, 140 Mich App 479, 482-483; 364 NW2d 354 (1985). *642 Clear and convincing evidence supports the probate court's finding of neglect. Affirmed. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] The children's father, respondent Samuel Landers, is not a party to this appeal.

803 F.2d 638 231 U.S.P.Q. 730, 1986 Copr.L.Dec. P 26,023 UNITED STATES of America, Plaintiff-Appellee,v.Tom GOSS, Defendant-Appellant. No. 85-8930. United States Court of Appeals,Eleventh Circuit. Nov. 3, 1986.Rehearing Denied Oct. 17, 1989. Eugene A. Medori, Jr., Decatur, Ga., Charles Eugene Goss, Harlan, Ky., for defendant-appellant. Lark I. Tanksley, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of Georgia. Before VANCE and EDMONDSON, Circuit Judges, and ALLGOOD*, Senior District Judge. EDMONDSON, Circuit Judge: 1 Appellant Tom Goss was convicted for infringing copyright by distributing copies of audiovisual works of the video games Karate Champ and Kung Fu Master. An owner of a legally made copy, however, is entitled to sell or otherwise dispose of that particular copy without the copyright owner's authorization. 17 U.S.C. Sec. 109(a). In this case, the copies in which the audiovisual works were fixed were memory chips, also known as ROMs. The government totally failed to prove that the ROMs which Goss sold were illegally made or unowned by Goss, apparently because it did not realize that the ROMs were the copies. Instead, the government attempted to show that the circuit boards which Goss sold were "counterfeit." 2 At oral argument, the government forthrightly conceded that at trial it did not address the ROM issue at all. More specifically, the government conceded that at trial it never contended that the pertinent ROMs, themselves, were from illegitimate manufacturers. Because there was insufficient evidence against Goss, we hold that his motion for judgment of acquittal should have been granted and reverse with directions to enter a judgment of acquittal. 3 The first count of Goss's indictment charged him with criminally infringing 4 the copyrights of audiovisual works ... for the purposes of commercial advantage and private financial gain [by] distribut[ing more than seven but less than sixty-five] unlawfully manufactured and unauthorized copies of the audiovisual works "Karate Champ" and "Kung Fu Master".... (emphasis added). 5 Although the indictment included a second count, that count was dismissed on the government's motion. 6 At trial, the government attempted to prove Goss's guilt by showing that Irem Corp. ("Irem") and Data East, Corp. ("Deco"), two Japanese corporations, developed the Kung Fu Master and Karate Champ video games, respectively. These corporations transferred a portion of their rights as copyright holders in these games to Data East, U.S.A., an American company. Among the rights so transferred was the exclusive right to distribute these games in North America. 7 The government's evidence showed that Goss sold to an undercover F.B.I. agent four circuit boards for the Kung Fu Master game and five entire Karate Champ games in upright cabinet form. Moreover, a government witness, who is employed as vice-president of Data East, U.S.A., testified that Goss was not authorized to distribute these. 8 The government presented evidence that the five upright Karate Champ games sold by Goss displayed the same visual images and sounds as did an authorized, factory-made Karate Champ game. Likewise, when attached to a power supply and other hardware, the four Kung Fu Master circuit boards sold by Goss produced the same sights and sounds as did an authorized Kung Fu Master game. 9 During the trial, the government attempted to prove that the circuit boards sold by Goss, including the five in the upright complete games, were "counterfeit." To show this, the government demonstrated that Goss's boards lacked the manufacturer's label and custom chip which were affixed to authorized boards. 10 The government also played tape recordings of conversations in which Goss agreed to sell the games. In the first conversation, the undercover F.B.I. agent referred obliquely to a "problem." Goss responded by saying "ya can't be too brave or conspicuous with it. Ya gotta use a little common sense." Shortly thereafter, Goss also stated that the legal expenses of "pull[ing] a game off" are so great that "[t]here's nobody left that's got the money to pursue it." In this tape-recorded conversation, Mr. Goss also said that: 11 The one thing they're after is the people that's bringing' the boards in the country. That's the ones they, they've never, I don't reckon they've ever got after an operator.... And if they do come in, all you gotta say is, you know, I bought this thing and so, off of so and so's truck or I bought it at an auction or somethin'. And the worst you're gonna lose, you're gonna lose the game. 12 After the government rested its case, Goss moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, on the grounds that the government did not present sufficient evidence to sustain a conviction. At the close of all evidence, Goss renewed this motion. Both times, the judge denied it. The jury returned a verdict of guilty as charged. 13 Goss raises numerous arguments on appeal. One of Goss's contentions is that the district court erred by denying his motion for acquittal, because the government presented insufficient evidence that the copies which he sold were illegally made or that he did not own them.1 Since we agree with this contention, we do not address Goss's other arguments.2 14 We apply a rigorous standard of review. A criminal conviction can be reversed by an appellate court for insufficiency of evidence only if a reasonable jury could not have found that the evidence established guilt beyond a reasonable doubt. When determining whether the evidence was insufficient, an appellate court must view the evidence and the inferences which can be drawn therefrom in the light most favorable to the government. See United States v. Shabazz, 724 F.2d 1536, 1539 (11th Cir.1984); United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).3 15 To determine whether the government presented sufficient evidence that Goss illegally distributed copies of audiovisual works, it is necessary to identify precisely the audiovisual works and the copies in which they were fixed. The Act defines an "audiovisual work" as a work: 16 that consist[s] of a series of related images which are intrinsically intended to be shown by the use of machines or devises such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. 17 17 U.S.C. Sec. 101. Thus, the visual images and sounds of the video games, Kung Fu Master and Karate Champ, constitute "audiovisual works". Such video game audiovisual works can be copyrighted. United States v. O'Reilly, 794 F.2d 613, 614 (11th Cir.1986); Midway Mfg. Co. v. Artic International, Inc., 704 F.2d 1009, 1011-12 (7th Cir.) cert. denied, 464 U.S. 823, 104 S.Ct. 90, 78 L.Ed.2d 98 (1983); Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 873-75 (3d Cir.1982); Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 857 (2d Cir.1982). 18 Under section 101 of the Act, "copies" are defined as: 19 material objects, other than phonorecords, in which a work is fixed by any method now known, or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.... 20 17 U.S.C. Sec. 101. A video game has a number of physical components: e.g., a power supply, display screen, outer cabinet with graphics, controls (such as the "joy stick" and firing buttons), a circuit board, and memory chips attached to the circuit board. The material object or "copy" in which the audiovisual work is fixed must be one or more of these components. 21 At trial, the government attempted to show that the circuit boards were "counterfeit," which suggests that it believed that the entire circuit boards--including the hardware and attached memory chips--constituted the copies. The government appeared confused at oral argument regarding what were the copies. When asked to identify the copies which Goss sold, the government responded that the audiovisual works were the copies. This answer misconceives the statutory definition of "copies": "work" and "copy" are not synonymous terms; rather, a copy is the material object in which a work is fixed. 22 Goss presented uncontradicted testimony by two experts that the copies in which the audiovisual works were fixed were memory chips. Such memory devices can be either ROMs (read only memory), PROMs (programmable read only memory) or E-ROMs (erasable read only memory), and are sometimes referred to generically as ROMs. 23 Mr. Leskey, one of Goss's expert witnesses, testified that the memory which is programmed into the ROMs in a video game includes 24 [a]ll of the memory in the unit, that is, all of the video or visuals, the foreground objects, the background imagery, the sound patterns, the controls for the sound patterns, the entire system controls ... as to how the game operates, the logic of the game, how you win or lose.... 25 This testimony was uncontested. 26 Moreover, Goss presented uncontradicted expert testimony that the ROM chips in this case were placed in sockets on the circuit boards, and could be removed from the circuit boards. By replacing one set of ROM chips with another, these experts testified, it is possible for the same circuit board to produce many different games. 27 Also, Goss presented uncontroverted expert testimony that the circuit board is simply hardware which responds to instructions from the software (i.e., the program stored in the memory chips). One of Goss's experts testified that the circuit board is a mechanism similar to a video cassette player, whereas the set of ROMs is a copy similar to a video cassette tape. Another of Goss's expert's analogized the ROM chips to slides and the circuit board to a projector. 28 All of the evidence adduced at trial showed that the ROMs were the copies. A jury could not reasonably have found otherwise.4 To prove that Goss illegally distributed copies, therefore, the government was required to show that Goss illegally distributed ROM chips. 29 Criminal infringement of copyright has three elements: (1) infringement of a copyright (2) done wilfully (3) for purposes of commercial advantage or private financial gain. 17 U.S.C. Sec. 506(a). Thus, one of the elements which the government must prove is "infringement." A person infringes copyright if he or she violates one of the exclusive rights of a copyright owner. 17 U.S.C. Sec. 501(a).5 30 Goss was indicted and convicted for violating the exclusive right of a copyright holder to distribute copies. This exclusive right is set forth in Sec. 106 of the Act, which provides in pertinent part that: 31 Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... 32 (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.... 33 This exclusive distribution right, however, is limited by section 109(a) of the Act, which provides that: 34 Notwithstanding the provisions of section 106(3), the owner of a particular copy ... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.... 35 17 U.S.C. section 109(a) (emphasis added). 36 The effect of section 109(a) is that, if Goss owned a legally made copy (i.e., a legally made set of ROMs), he was entitled to sell or otherwise to distribute such ROMs. Selling such legally obtained ROMs would not infringe the copyright owner's exclusive distribution right, regardless of whether the ROMs were attached to a "counterfeit" board. 37 Our analysis would not be complete, however, without considering which party bears the burden of proof under section 109(a). Legislative history indicates that section 109(a) is a defense in civil copyright cases. After criticizing a district court opinion in a civil case which placed on the plaintiff the burden of proving that a copy had been unlawfully made or acquired, the House Committee on the Judiciary stated that "in an action to determine whether a defendant is entitled to the privilege established by Sec. 109(a) ..., the burden of proving whether a particular copy was lawfully made or acquired should rest on the defendant." H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 80-81, reprinted in 1976 U.S. CODE CONG. & AD. NEWS 5659, 5694-95. Whether the Committee intended this comment to apply to criminal infringement actions is unclear. 38 Case law exists regarding the burden of proving in a criminal case that a copy is legally made and acquired. This case law, however, uses the terminology of the "first sale" doctrine. 39 The first sale doctrine developed under section 27 of the former Copyright Act, which provided in pertinent part that "nothing in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." Interpreting former section 27, courts held that a copyright owner's exclusive vending right extended only to the first sale of a copy. If a legally made copy had been the subject of a first sale, then further distribution of that copy did not infringe the copyright owner's exclusive vending right. See generally 2 Nimmer on Copyright, Sec. 8.12 (1985). 40 Courts applying the former Copyright Act consistently held that in a criminal case the government has the burden of proving the absence of a first sale. See American International Pictures, Inc. v. Foreman, 576 F.2d 661, 663 (5th Cir.1978).6 See generally 3 Nimmer on Copyright, Sec. 15.01 (1985). 41 The Eleventh Circuit has applied the "first sale" doctrine in a criminal case under the present Copyright Act. United States v. Drum, 733 F.2d 1503 (11th Cir.1984), cert. denied sub nom., Cooper v. United States, 469 U.S. 1061, 105 S.Ct. 543, 83 L.Ed.2d 431 (1984); cert. also denied sub nom., McCulloch v. United States, 469 U.S. 1061, 105 S.Ct. 543, 83 L.Ed.2d 431 (1984), cert. also denied sub nom., McKinney v. United States, 469 U.S. 1061, 105 S.Ct. 543-44, 83 L.Ed.2d 431 (1984), cert. also denied sub nom., Lockamy v. United States, --- U.S. ----, 105 S.Ct. 544, 83 L.Ed.2d 431 (1984), overruled in part, Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985). In Drum, a criminal RICO case involving substantive copyright offenses under the 1976 Copyright Act, the Eleventh Circuit treated the "first sale" issue as a defense. The Drum Court indicated that, once the defense had been raised, the government had an obligation to rebut it. The Court reasoned as follows: 42 McKinney attacks the sufficiency of the evidence to negate the "first sale" defense which he raised at trial.... The government may prove the absence of a first sale by direct evidence of the source of the pirated recordings or by circumstantial evidence that the recording was never authorized [i.e., illegally made].... The evidence [presented at trial was] entirely adequate to rebut the first sale defense. Id. at 1507. 43 We are bound by Drum, even though it does not explicitly mention section 109(a). Drum was decided under the present Act and, like our case, involved the burden of proof with respect to whether a copy was legally made or acquired. Therefore, we hold that in a criminal copyright case involving unauthorized distribution of copies, section 109(a) is a defense. If a defendant presents any evidence that the copies were legally made and that he or she owned them, this is sufficient to create a jury issue with respect to the section 109(a) defense. When the defendant makes such a showing, the burden shifts to the government to demonstrate beyond a reasonable doubt that the pertinent copies were either not legally made or not owned by the defendant. Cf. United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.1985), cert. denied sub nom. Royster v. United States, --- U.S. ----, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986) (shifting burden of proof for entrapment defense). 44 Goss's two expert witnesses compared the ROMs on an authorized, factory-built Kung Fu Master circuit board with the ROMs on a Kung Fu Master circuit board sold by Goss. According to these experts, the ROMs on both boards were the same size. One of the experts noted that the ROMs were the same shape, and that, indeed, some of the ROMs had identical serial numbers. Both experts testified that a visual inspection revealed no distinguishing physical characteristics between the ROMs on the two boards, and that it was impossible to determine by visual inspection where or by whom the ROMs had been programmed. Of course, the government's evidence indicated that the entire boards, including the ROMs, produced identical audiovisual works. 45 One of Goss's experts testified that it "might" be possible to use a method, which costs approximately ten thousand dollars, to examine the ROMs "address by address." If the test indicated a difference between the ROMs, he testified, "you might be able to tell something," but if it showed no differences between the ROMs, "you still wouldn't know." 46 In addition, the evidence at trial showed that there are numerous possible sources of legally made Kung Fu Master ROMs which could have been inserted into the boards Goss sold. Such sources include used and broken Kung Fu Master games, as well as thousands of boards sold abroad separately from the game cabinets. 47 Also, Goss presented uncontroverted evidence that he owned the ROMs in the Kung Fu Master boards which he sold to the F.B.I. agent. This evidence consisted of proof that he bought the boards, including the ROMs, from a firm in Kentucky. We hold that Goss made a sufficient showing to raise a section 109(a) defense with respect to the ROMs in the four Kung Fu Master boards he sold.7 48 Once Goss raised a section 109(a) defense with respect to the ROMs in the four Kung Fu Master boards, the burden shifted to the government to prove beyond a reasonable doubt that these Kung Fu Master copies were either illegally made or not owned by Goss. The government failed to meet this burden. Indeed, the government concedes that it never focused on or addressed the ROMs at all. 49 The government presented no evidence whatsoever that Goss did not own the ROMs he sold. Nor did the government present any direct evidence that the ROMs were illegally manufactured. Goss's highly ambiguous comments, which suggest that he thought he was doing something wrong, arguably constitute no evidence that the ROMs, in particular, were illegally manufactured. If these comments do constitute evidence, they are at most highly tenuous circumstantial evidence that the ROMs were illegally made. 50 The government's effort to prove that other components of the circuit boards were made without permission was misdirected. The ROMs were the copies, not the other components of the circuit board to which they were attached. Proof that these other elements were made without authorization does not show that the copies--the ROMs--were illegally manufactured. The government's evidence is analogous to proof, in a prosecution for illegal distribution of phonorecords, that defendant sold a record player which had been made without authorization. Manufacture and distribution of a record player without authorization does not infringe copyright in the phonorecord.8 51 In short, the government did not try to prove anything specifically with regard to the ROMs. If the government nonetheless happened to present evidence bearing on the ROMs, then such evidence was highly tenuous circumstantial evidence. No jury could have reasonably found that the government proved beyond a reasonable doubt that ROMs in the four Kung Fu Master boards which Goss sold were illegally made or not owned by Goss. Therefore, the government's proof with respect to these Kung Fu Master ROMs was insufficient. Cf. United States v. Gandolfo, 577 F.2d 955, 958-59 (5th Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (circumstantial evidence presented by government was so weak that it could not sustain a conviction). 52 We note that the burden imposed on the government is not an impossible one. Even where the distributed copies are physically indistinguishable from the authorized copies, the government can rebut a section 109(a) defense by direct evidence that the copies were illegally made (e.g., clear admissions by defendant, or testimony by a third party who saw the copies being made without authorization) or circumstantial evidence to this effect (e.g., facts indicating that defendant or an upstream supplier purchased reproducing equipment which would enable them to make the copies without authorization). Of course, where the copies are physically indistinguishable, the government is also free to show that the defendant did not own the copies. 53 The government argues that it did not need to prove anything with respect to the ROMs, because a copyrighted audiovisual work of a video game can be infringed separately from the program which produces it. Of course, the government is correct that the audiovisual work and the program of a video game are both copyrightable works, which can be infringed separately. See Stern Electronics, supra, 669 F.2d at 855. But the fact that the copyrighted audiovisual work can be separately infringed does not relieve the government of its burden of proving that it was in fact infringed. 54 A critical factor in this case is the limited nature of the exact crime charged: Goss was indicted and convicted for infringing the copyright holder's exclusive right to distribute copies.9 Therefore, the government was required to focus on the material objects in which the audiovisual works were fixed and to show that these were distributed illegally. This the government has failed to do. 55 Goss was indicted for the felony of distributing more than seven but less than sixty-five copies of audiovisual works without authorization within a 180-day period. See 18 U.S.C. Sec. 2319(b)(2)(B); cf. 18 U.S.C. Sec. 1. To distribute seven or fewer copies can be a misdemeanor. 18 U.S.C. Sec. 2319(b)(3); cf. 18 U.S.C. Sec. 1. The government did not request a charge regarding the lesser included misdemeanor offense; and, indeed, the judge instructed the jury that it must find that Goss distributed more than seven copies in order to find him guilty. The jury returned a verdict of guilty as charged. 56 The government attempted to prove that Goss distributed nine copies without authorization: four Kung Fu Master copies and five Karate Champ copies. As the foregoing analysis demonstrates, Goss presented evidence sufficient to raise a section 109(a) defense with respect to the four Kung Fu Master copies; and the government failed to rebut it. Thus, with respect to the four Kung Fu Master copies, the government's evidence was insufficient. 57 Even assuming, arguendo, that the government's evidence was adequate with respect to the five Karate Champ copies, the government still failed to present sufficient evidence to sustain Goss's felony conviction. At most, the government proved illegal distribution of five copies. The fact that distribution of five copies can be enough for a misdemeanor conviction is immaterial, because Goss was neither charged for nor convicted of such a misdemeanor. 58 We infrequently reverse on insufficiency of evidence grounds. The government totally failed, however, once the burden shifted to it, to rebut Goss's section 109(a) defense with respect to the ROMs in the four Kung Fu Master boards. Therefore, we are constrained to conclude that the evidence was insufficient to support Goss's conviction.10 The crime was not proved. 59 Accordingly, the conviction is REVERSED with instructions to enter a judgment of acquittal. * Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation 1 In his brief, Goss couches this argument in terms of the "first sale" doctrine which evolved under the former Copyright Act 2 Goss's other arguments are that (a) the government presented insufficient evidence regarding originality of authorship; (b) the district court erred by refusing to dismiss the indictment for prosecutorial misconduct and by failing to hold a hearing; (c) the trial court abused its discretion by admitting evidence of other alleged acts of infringement; and (d) the trial court erred in refusing to instruct the jury on the defense of entrapment 3 In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit Court of Appeals adopted as precedent all decisions of Unit B of the former Fifth Circuit 4 We note the factual narrowness of our ruling. The technology of video games, like other computer technologies, is diverse and constantly changing. No single rule of law can be developed regarding what constitutes a "copy" in a video game. Instead, the question of what component or components of a video game constitutes the "copy" in which the audiovisual work is fixed is a determination of material fact which must be made by the trier of fact in each copyright case. We simply hold that, in light of extensive, uncontradicted expert testimony presented at trial, a reasonable jury could only conclude that the copies in this case were the ROMs 5 Illegally importing copies into the United States can also infringe copyright, id., but Goss was not charged with illegal importation 6 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981 7 Goss presented no expert testimony comparing the ROMs in the five Karate Champ games he sold with the ROMs in an authorized Karate Champ game. Also, these ROMs were apparently physically distinguishable, inasmuch as the Karate Champ ROMs sold by Goss lacked the "Deco" copyright notice attached to the ROMs on the authorized Karate Champ board. We do not decide whether Goss presented any evidence which raised a section 109(a) defense with respect to the ROMs in the five Karate Champ boards 8 The evidence regarding the absence of the custom chip from the boards sold by Goss is also irrelevant. The testimony at trial established that the custom chip on each authorized board was a complicated relay device, which functioned as a "lock" by making it difficult to manufacture a board without permission. Proof that Goss sold boards without custom chips is irrelevant to whether the ROMs, in particular, were illegally manufactured. Indeed, such evidence is analogous to proof that defendant sold a record player without a lock on it. A copyright holder of a phonorecord has no rights with respect to the record player, and sale of a record player without a lock does not infringe copyright 9 The government could have sought an indictment for violating one or more of the copyright holder's other four exclusive rights: i.e., to reproduce the work in copies, to prepare derivative works, to perform the work publicly, and to display the work publicly. See 17 U.S.C. Sec. 106. It did not. Even if it had, the government could not have prevailed by simply asserting that the audiovisual work can be separately infringed. It would have been required to show that infringement in fact occurred 10 This Circuit's recent decision in United States v. O'Reilly, 794 F.2d 613 (11th Cir.1986), does not compel a contrary result. In O'Reilly, another panel of this Court affirmed a conviction for distribution of copies of audiovisual works in the video games Kung Fu Master and Karate Champ. The O'Reilly Court did not discuss what constituted the copies of the audiovisual works. In addition, it discussed neither a section 109(a) defense, nor the government's duty to rebut that defense once it is raised. In light of the opinion, these issues were apparently not presented in O'Reilly

612 F.3d 843 (2010) Louis THIBAULT, Jr., Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC.; Robert J. Parker, doing business as Parker Communications; Directional Road Boring, Inc.; Parker Communications, Inc.; Robert W. Parker; Parker Communications, LLC, Defendant-Appellees. No. 08-31226. United States Court of Appeals, Fifth Circuit. July 26, 2010. *844 Clement F. Perschall, Jr., Metairie, LA, Arthur J. O'Keefe (argued), Delphin Law offices, Lake Charles, LA, for Thibault. Wade P. Webster (argued), Fowler Rodriguez Valdes-Fauli, New Orleans, LA, for Bellsouth Telecommunication, Inc., Directional Road Boring, Inc. Christine S. Goldberg (argued), Kullman Firm, Baton Rouge, LA, for Parker, Parker Communications, inc. Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges. GARWOOD, Circuit Judge: Louis Thibault, Jr., (Thibault) brought suit against BellSouth Telecommunications (BellSouth), Directional Road Boring, Inc. (Directional), and Robert J. Parker, Robert W. Parker, and Parker Communications LLC (collectively Parker) arising out of electrical splicing work he performed in New Orleans, Louisiana in the aftermath of Hurricane Katrina. Thibault claimed violations of the Fair Labor Standards Act (FLSA), under 29 U.S.C. § 207(a)(1), a Louisiana state-law breach of contract, and failure to pay wages under LA.REV.STAT. ANN. § 23:631. The trial court dismissed these claims on summary judgment. Thibault appeals the dismissal of the FLSA claim and the breach of contract claim.[1] We address two issues: first, whether Thibault may maintain a claim under the FLSA, and second, whether summary judgment is appropriate for his breach of contract claim.[2] BACKGROUND As a result of Hurricane Katrina, BellSouth's telephone infrastructure suffered serious damage. BellSouth undertook the project of rewiring its entire New Orleans Area telecommunications grid. To complete this project, BellSouth employed "splicers." A splicer installs, cuts, repairs, and tests various high voltage cables. Because of Katrina, BellSouth could not, by itself, restore phone services to the region. Accordingly, BellSouth contracted with Directional to provide assistance with their project. Directional also employed their own splicers. But even Directional's additional splicers did not suffice. Directional therefore contracted with Parker to provide additional splicers for the project. Parker contacted Bill Peek, a splicer in Delaware. Parker informed Peek that the *845 job would require about eighty-four hours of work per week at an hourly rate of sixty-eight dollars and a fifty dollar per-diem. He also informed him that splicers would have to provide their own bucket trucks and tools to do the work. Mr. Peek was interested, and told his best friend, Lewis Thibault, of the job opportunity. Mr. Thibault was not a splicer by profession, but had experience as a navy jet engine mechanic. He owned and operated his own business in Delaware called K & L Sales, Inc. His business sold picnic tables, storage buildings, and golf carts. In 2005, his business made over $500,000 in gross profit. Despite his success, Thibault decided to accept Peek's invitation to travel to New Orleans as it would provide a much needed break for him from his marital problems and he felt New Orleans would be an opportunity to "get [his] head clear." Through Peek, Thibault was able to borrow a spare truck and various tools that the job required. Peek also taught Thibault the basics of splicing over the course of an evening; Thibault was able to learn the rest on the job. In October, Thibault filled his trailer home with water and food, and the two men drove to Louisiana. From October 4, 2005 to January 6, 2006, Thibault worked as a splicer. In that time, Thibault made $51,628. Everyday, Thibault was required to report to Kenner Yard, a property rented by BellSouth. At the first meeting, Thibault claims that a Parker supervisor informed them that they would be paid sixty-eight dollars an hour, would work at least eighty-four hours a week and would get a per diem and a place to park his motor home. Every day, Thibault showed up to Kenner Yard, and was assigned a specific splicing job in New Orleans. BellSouth engineers created the overall rewiring plan for New Orleans. BellSouth supervisors designated the specific jobs to be done daily, and assigned Directional supervisors to distribute the assignments. When Thibault received his assignment, he was then required to take his truck to the job and work on the problem he was assigned. When completed, Thibault would return to Kenner Yard and would be assigned another splicing job. He worked in thirteen-day intervals with a one-day break in between. While Parker paid Thibault, BellSouth had to approve all vacation and break time. On January 6, Parker laid off Thibault. Directional offered Thibault a job as a splicer, working directly for Directional, but Thibault declined. Instead, he returned to Delaware, and has not worked as a splicer since. Thibault brought this suit against Parker, Directional, and BellSouth for overtime pay under the FLSA, breach of contract, and Louisiana wage law statutes. ANALYSIS I. Fair Labor Standards Act Thibault contends that he is entitled to overtime compensation for hours worked in excess of forty hours per week pursuant to the 29 U.S.C. § 207(a)(1). The FLSA gives employees[3] certain protections from employers. The defendants contend that Thibault is not an employee, but an independent contractor. We review Thibault's status de novo. Carrell v. Sunland Constr., Inc., 998 F.2d 330, 332 (5th Cir.1993). In the present setting, a relevant question is whether the alleged employee so economically depends upon the business to which he renders his services, such that the individual, as a matter of economic reality, is not in business for himself. Id. The contractual designation of the worker as an independent contractor *846 is not necessarily controlling. See Hopkins v. Cornerstone Am., 545 F.3d 338, 346 (5th Cir.2008). Instead, we generally use as a guide five, non-exclusive factors: (a) the permanency of the relationship; (b) the degree of control exercised by the alleged employer; (c) the skill and initiative required to perform the job; (d) the extent of the relative investments of the worker and the alleged employer; and (e) the degree to which the worker's opportunity for profit and loss is determined by the alleged employer. Id. at 332-33. These factors are merely aids to analysis and no single factor is determinative. Id. at 332. Here, we believe the holding of Carrell provides substantial guidance. In Carrell, this Court faced the issue of whether twenty welders were employees under the FLSA for purposes of overtime compensation. Id. The Carrell court went through each of the five factors, and decided overall that the welders were independent contractors. Id. at 334. A. The Permanency of the Relationship First, Carrell addressed the permanency of the relationship: "During each of the years relevant to this lawsuit, none of the Welders worked exclusively for Sunland. To work consistently throughout the construction season, which lasts six to nine months, the Welders moved from job to job, company to company, and state to state. Sunland hired the Welders on a project-by-project basis, but made an effort to move the Welders to subsequent projects. The duration of Sunland's construction projects averaged six weeks, but some projects lasted only a few days. The average number of weeks that each Welder worked per year for Sunland varied from approximately 3 weeks to 16 weeks." Id. at 332. Like the welders, Thibault did not work exclusively for the defendants. He had his own business selling picnic tables, storage buildings, and customized golf carts, in his home state of Delaware. The nature of splicer work requires travel to different parts of the nation where the jobs are. Splicers travel from job-to-job and from state-to-state looking for work. Thibault and Peek traveled from Delaware to work in the aftermath of Hurricane Katrina. The project lasted only until the re-wiring project after Katrina finished. Thibault intended to return to Delaware after seven or eight months. B. Degree of Control Second, the Carrell court addressed the degree of control exercised by the employer: "While working for Sunland, the Welders performed only pipe-welding work. Sunland assigned the Welders to specific welding work and maintained daily time records for each Welder. Sunland, however, did not specify the amount of time that a Welder could spend on an assignment. Sunland required the Welders to work the same days and hours as the remainder of Sunland's crew, including taking the same daily break periods." Id. at 333. The court also relied on the fact that Sunland classified the welders as independent contractors, and many of the welders considered themselves self-employed. Here, the defendants considered the splicers independent contractors. Many of the splicers considered them-selves self-employed. The Carrell welders did only welding, and similarly here Thibault only performed splicing work. The defendants assigned the splicers to specific splicing work and maintained daily time records for each splicer. BellSouth required the splicers to work the same days and hours as the remainder of the BellSouth crew, including taking the same daily *847 break periods. In Carrell, Sunland did not control the manner and method of pipe welding. Carrell, 998 F.2d at 332. Likewise, Thibault explained that his supervisors would only come by occasionally, and never specified how Thibault should do the splicing. According to Thibault, the defendants would tell him what needed to be fixed or spliced or give him blueprints, and then it was up to Thibault to go out and fix the problem. Once Thibault finished a particular job, he would report back to be assigned another job. C. Skill & Initiative Third, Carrell examined the skill an initiative required: "Pipe welding, unlike other types of welding, requires specialized skills. That the gas companies tested and certified each Welder before a job demonstrates the specialized nature of the work. As for the initiative required, a Welder's success depended on his ability to find consistent work by moving from job to job and from company to company. But once on a job, a Welder's initiative was limited to decisions regarding his welding equipment and the details of his welding work." Id. at 333. Thibault argues that he has never worked as a splicer before. Thibault, however, was a jet engine mechanic in the navy. In fact, he described his abilities: "I aced the mechanical aptitude test in the Navy. You show me how to do something one time and I can do it." Thibault learned the job from his friend Peek, but also learned how to splice on the job, working next to Peek and other splicers. Thibault explained that splicing dealt with complicated equipment: "I mean, you're talking — you're talking phone cables this big around coming into a cross box, and there might be six of them in there. And each wire has 3,200 pairs in it, which is 7,400 wires. And its all going to these terminals. And you had to make sure they were going in at the right terminal and coming out at the right terminal." Like Thibault, individuals learn to splice through an informal apprenticeship. A fellow splicer testified that it took him about a year to learn the job. Like the welders in Carrell, the splicers' success depended on their ability to find consistent work by moving from job-to-job. D. Relative Investments The fourth factor the Carrell court examined was the relative investments of the worker and the alleged employer. Carrell, 998 F.2d at 333. The court in Carrell "recognized" the overall investment by the alleged employer, but it did not focus on it, as Thibault does in his brief. Instead, Carrell compares the amount the alleged employer and employee each contribute to the specific job the employee undertakes. Id. For example, the welders supplied their own trucks, welding machines mounted on the trucks, and other specialized welding tools. Id. The welders also assumed the costs of operating and maintaining the trucks and tools. Id. The welders provided their own lodging and own meals. Id. They often bought their own assistants, who appear to have been unskilled or semi-unskilled laborers. Id. at 333 n. 3. The alleged employer in Carrell provided general liability and worker's compensation insurance. Id. at 333. It provided the blades for the grinders that smoothed the surface of a pipe before it was welded. Id. at 333 & n. 2. Like the welders in Carrell, Thibault provided his own bucket truck, cable splicer, pump, ventilator, ladder, climbing belt, harness, hard hat, safety vest and other miscellaneous tools (such as wrenches, hammers, screwdrivers and other items one would usually find in a toolbox). In fact, the record contains a list of over 100 different tools splicers were expected to *848 have for the job. Thibault had his own motor home, which he brought to Louisiana to live in. He stocked it with enough water and food to last him at least six weeks. He drove two days to get to New Orleans. We also "recognize[]" the overall investment by the defendants. Carrell, 998 F.2d at 333. Unlike Carrell, however, we could not find, nor has Thibault pointed to, any evidence in the record of paying for general liability insurance. BellSouth did rent property in the area and built a shed and trailer as a base of operations. BellSouth also provided the materials used in the splicing: connectors, bonding straps, ground rods, terminal blocks, pedestals, cable, and drop wire, for example. The materials that BellSouth provided were either incorporated into their network or brought back to Kenner Yard at the end of the day. Parker, on the other hand, did not provide any materials, meals or other services. Instead, Parker's involvement in splicing seems limited to keeping track of the men and the hours. There was some evidence to suggest that Parker paid for worker's compensation insurance. E. Worker's Opportunity for Profit & Loss Fifth and finally, the Carrell court examined the degree to which the worker's opportunity for profit and loss is determined by the alleged employer: "Sunland did not solicit bids or proposals from the Welders. It paid the Welders a fixed hourly rate of $23, plus $10 per day for rental of their grinders. Sunland intended approximately 40% of the $23 hourly rate to compensate the Welders for supplying their own welding equipment. Sunland required the Welders to submit invoices for work performed on Sunland projects. On appeal, the Welders stress that Sunland exclusively controlled the Welders' compensation while they worked on a Sunland project: Sunland rarely deviated from its hourly rate, and it controlled the number of hours that the Welders worked. ... [A] Welder's year-end profits or losses as a welder depended on his ability to consistently find welding work with other companies and to minimize welding costs. . . . . Sunland exerted some control over the Welders' opportunity for profits by fixing the hourly rate and the hours of work. Yet, the tax returns of Carrell indicate that the Welders' profits also depended on their ability to control their own costs. Moreover, the Welders worked for numerous companies in each of the years relevant to this dispute." Carrell, 998 F.2d at 333-34. Thibault worked for a fixed hourly rate of $68 per hour, plus $50 per day per diem. The defendants required the splicers to fill out time sheets and invoices of the work performed. Like the Carrell welders, the splicers' year-end profits or losses depend on their ability to consistently find splicing work with other companies. Thibault's friend, Bill Peek testified that, even though he lived in Delaware, splicing requires travel from job-to-job across the country. The splicers here increased profits by controlling costs (repairs, supply costs, food, water, housing, etc.). F. Other Factors The determination of whether an individual is an employee or independent contractor is highly dependent on the particular situation presented. Carrell, 998 F.2d at 334. We do not hold that all splicers are always independent contractors. Indeed, the nature of this analysis suggests that in some cases splicers might be employees. E.g., Cromwell v. Driftwood Elec. Contractors, Inc., 348 Fed.Appx. 57, 61 (5th Cir.2009) (unpublished). In Cromwell, for example, the court found the splicers were employees. Id. Like Thibault, *849 the Cromwell splicers worked twelve hour days, were paid by the hour, provided their own tools and trucks, and were assigned specific repair jobs each day. Id. at 59. Cromwell compared that case to Carrell and Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th Cir.1983) (holding welders were employees under the FLSA). The Cromwell panel aptly noted, "the facts of this case lie somewhere between those of Carrell and Robicheaux." Cromwell, at 60. Likewise, Carrell, Cromwell and Robicheaux are useful case studies in resolving this case. We believe Thibault falls squarely within Carrell. Cromwell made a distinction from the Carrell welders that does not apply to Thibault. Unlike the welders, the splicers in Cromwell did "not have the same temporary, project-by-project, on-again-off-again relationship with their purported employers." Id. at 60. Also, a relevant distinction from Cromwell relates to the matter of economic independence: whether Thibault is in business for himself. Carrell, 998 F.2d at 334. The circumstances of Thibault's employment reflect that he is not economically dependant on the defendants. Unlike Cromwell, evidence shows that Thibault is a sophisticated, intelligent business man who entered into a contractual relationship to perform a specific job for the defendants. Thibault worked for three months and his relationship to the defendants centered solely around the specific project. After splicing in New Orleans, Thibault returned to his company in Delaware and has not worked as a splicer since. For "tax reasons," Thibault had Parker make all payments directly to his company, K & L Sales, Inc. In 2005, K & L Sales generated $500,503 in profit and $2,492,997 in gross sales.[4]When he worked as a splicer, he also oversaw K & L Sales operations and its multiple employees. As the owner of K & L Sales, Thibault routinely contracted with product manufacturers, customers, and transporters. He owned eight drag-race cars and also generated $1,478 in income from racing professionally. In 2005 and 2006, he also owned and managed commercial rental property that generated some income.[5] Because we hold that the summary judgment record does not contain sufficient evidence to support a finding that Thibault was an FLSA employee while performing splicer services, we affirm the judgment dismissing the FLSA claims.[6] II. Breach of Contract Thibault also appeals the dismissal of his Louisiana law breach of contract claim. Specifically, he argues the defendants promised him six months of employment and breached that agreement when they fired him after three months of work.[7]*850 The district court held that the plaintiff did not produce any summary judgment evidence that Thibault was hired for a fixed term. Under Louisiana law, "[a]bsent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge." Chapman v. Ebeling, 945 So.2d 222, 226 (La.App. 2 Cir.2006). There needs to be an "objectively determinable end to [Thibault's] employment" defined when he is hired. Overman v. Fluor Constructors, Inc., 797 F.2d 217, 220 (5th Cir.1986). Under Louisiana law: "No single foreseeable event triggered the end of his job. ... The time when his services would no longer be needed depended on a number of factors and, ultimately, on the judgment of his supervisor. Such a flexible relationship, promising employment until one's services are no longer needed, does not establish a fixed term, and, therefore, in Louisiana at least, must be regarded as employment at will." Id. at 220. Thibault did not produce sufficient summary judgment evidence to sustain a finding of an agreement to a fixed term. The evidence that Thibault points to does not specifically relate to any relationship or agreement between one of the defendants and himself for a term of six months: (1) BellSouth's leasing of Kenner Yard for a two year term; (2) BellSouth's agreement requiring Directional to supply splicers for a period of at least one year; and (3) Parker's subcontract requiring Parker to supply splicers to Directional for at least one year. These actions are consistent with having no agreement with any specific splicer. They certainly do not even imply a contract with any specific splicer for a term of six months. Next, Thibault argues that an email from the Directional vice president that says splicer pay would remain the same for about 120 to 150 days (four to five months) suggests a six month contract. This does not get Thibault to the six month contract he seeks. An employer is free to ensure a group of employees that their rate of pay would not decrease without committing itself to a contractual relationship with each specific employee for a completely unrelated fixed term. Thibault also points us to the length of other splicer's employment: (1) Chris Floyd's employment lasted two years; and (2) Bill Peek's testimony that there would be at least six months of work. First, Floyd was an actual employee of BellSouth who managed the construction project, not a splicer like Thibault. Floyd's agreement does not speak to any agreement between Thibault and any defendant. Second, Peek was questioned about the length of the work: "Q. And what did you talk — what did — what was talked about during this meeting with [the Directional supervisor] about the length of the job? A. Well, he said we had at least six months, and it was probably a whole lot longer than that, but it would depend on our job quality and — you know, just a pep talk to make everybody do good jobs if you wanted to stay longer than six months, or whatever." Peek's testimony does not show any objectively determinable end to the term of employment. See Overman, 797 F.2d at 220. According to this testimony, the end of the term could have been any time after six months. Finally, Peek testified that *851 the job specifically depended upon the quality of work by the splicers. This testimony suggests that "[t]he time when [Thibault's] services would no longer be needed depended on a number of factors and, ultimately, on the judgment of his supervisor." Id. Our review of the record does not demonstrate any evidence of the existence of a fixed term either. Bill Peek handled all the communication with Parker before arriving in New Orleans. Once in Louisiana, Thibault testified that Dan Keener, a supervisor for Parker, and others, promised him that the work would last "at least six months" guaranteed, but that the work would "probably" take up to two years. Later in Thibault's deposition, this exchange occurred: "Q. All right. You talked earlier about a guarantee of six months of employment. Did anyone from Directional or BellSouth ever guarantee to you six months of employment? . . . A. The question that I have is `guaranteed.' We were told ... we were probably going to be there for two years. Did he guarantee it? No. `Chances are we're going to be here for a long time, fellows. I mean, look at it.' Q. That's what he said? A. Yeah, I mean, look at it. They're still out there working. Q. All right. So it's true no one from BellSouth guaranteed you six months of employment; right? A. Correct. . . . A. `Guarantee' is the key word in that question. Q. Well, did anyone from BellSouth promise you six months of work? A. BellSouth and Directional said that we were going to be here for a long time." Thibault's testimony has the same problems that Peek's testimony had in establishing a fixed term of employment. Thibault himself had a problem with the word "guarantee," and could not testify that the defendants guaranteed anything. According to Thibault, he was told about the length of the project, not a specific promise or guarantee about the length of time he would be employed. On this record, we do not find sufficient summary judgment evidence to sustain a finding of a fixed term of employment for six months. CONCLUSION We affirm the judgment of the trial court because, first, Thibault was not covered by the FLSA because there is no summary judgment evidence sufficient to sustain a finding that he was an employee under the act and, second, there is no summary judgment evidence sufficient to sustain a finding that Thibault had a contract for a fixed term. AFFIRMED. NOTES [1] BellSouth and Directional filed cross claims against Parker arising out of Parker's duty to defend and indemnify. Parker filed a cross claim against Directional claiming Directional breached its contract with Parker by failing to pay the correct amount for splicers. The trial court resolved BellSouth and Directional's claims against Parker. At the time of this appeal, however, the trial court had not resolved Parker's cross claims against Directional. At the request of all parties, the district court entered an order under FED. R.CIV.P. 54(b) certifying as final judgments nunc pro tunc the judgment entered against Thibault. That order allows us to retain our jurisdiction over the case. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 338 & n. 6 (5th Cir.1997). [2] Thibault has not briefed or appealed the summary judgment on his claim under Louisiana wage law statutes. Therefore, we do not address that claim and the judgment as to it is affirmed. [3] The FLSA defines "employee" to mean "any individual employed by an employer." 29 U.S.C. § 203(e)(1). "`Employ' includes to suffer or permit to work" Id. § 203(g). [4] An individual's wealth is not a solely dispositive factor in the economic dependence question. In 2005, Thibault reported an adjusted gross income of $82,951. His 1099 from Parker reported $45,584 in non-employee compensation. [5] The plaintiff primarily relies upon Hopkins v. Cornerstone Am. to argue that he was economically dependant on the defendants. The employer in Hopkins, however, has significantly more economic control over its employees than defendants in the instant case had over Thibault or the other similar splicers here. For example, the sales leaders in Hopkins worked for the employer for years and were not allowed to work for other companies or themselves. Id., 545 F.3d at 346. The employer prevented the sales leaders from owning and operating other businesses. Id. at 344. Further, the court found that the sales leaders exhibited no specialized skills. Id. at 345. [6] Because Thibault was not an employee, we need not address Thibault's contention that the defendants were joint employers under the FLSA. [7] In the trial court, Thibault also brought a breach of contract claim based on a promise that Parker would provide him a paid location to keep his motor home. Since Thibault does not present this as an issue on appeal and does not brief it, we do not address it and hold any such claim has been waived by him.

654 So.2d 1024 (1995) SECURITY BUREAU, INC. and GAB Business Services, Inc., Appellants, v. Martha I. ALVAREZ, Appellee. No. 94-2332. District Court of Appeal of Florida, First District. May 16, 1995. Kimberly A. Hill of Conroy, Simberg & Lewis, P.A., Hollywood, for appellants. Alphonso S. Milligan of Milligan, Douthit & Lang, P.A., Coral Gables, for appellee. DAVIS, Judge. The employer and carrier (e/c), Security Bureau, Inc. and GAB Business Services, Inc., appeal an interlocutory order of the Judge of Compensation Claims (JCC) determining that Ms. Alvarez suffered a compensable injury when she shut her finger in her car door after parking her car to go in to work. The JCC held that the injury was compensable because it found that claimant had been directed to park in a public parking *1025 lot thereby making that parking lot a part of the zone and environment of her employment. The JCC's finding in this regard is not supported by the evidence, and, as a matter of law, claimant's injury is not compensable under any exception to the going and coming rule. We therefore reverse. Martha Alvarez was employed by Security Bureau, Inc., as a security guard. Her regular assignment over the fourteen months preceding her injury was the Federal Express Cargo section at the Miami International Airport. She reported directly to the Federal Express Cargo terminal without going to the offices of Security Bureau, Inc. first. The security guards were required to report to work fifteen minutes before the beginning of each shift, in order to get a report from the person who had worked the previous shift. On April 24, 1992, Martha Alvarez arrived at approximately 9:45 a.m. to begin a 10:00 a.m. shift and parked in a public parking lot across the street from the Federal Express office. The security guards and all Federal Express employees were prohibited from parking in the four spaces directly in front of the Federal Express building. Those spaces were reserved for the convenience of customers. All employees, including Ms. Alvarez, were directed to park away from the front of the building, and they parked in the only other practical place, the public lot across the street. There is no competent substantial evidence to support the factual finding by the JCC that the claimant "was subject to disciplinary action by her Employer if she did not park in the above described lot ..." Ms. Alvarez only testified that there would be a "problem" if she parked in one of the four spaces directly in front of the building which were reserved for customers. Her supervisor, Al Sarro, testified that employees would be disciplined if they parked in the spaces located in front of the building which were being reserved for customers, but that employees were free to park anywhere else. As a matter of custom they parked in the public lot across the street, which was the only practical place available, according to Mr. Sarro. The going and coming rule provides that injuries sustained by an employee going to or coming from work are not compensable. There is an exception to the going and coming rule, called the premises rule. Under the premises rule, an injury sustained by an employee with fixed hours and place of work who is injured while going to or coming from work is in the course of employment if it occurred on the employer's premises and not if it occurred off the employer's premises. There are further exceptions to the premises rule itself under which certain off-premises injuries are considered compensable. The going and coming rule, the exception thereto known as the premises rule, and the exceptions to the premises rule are explained in Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), review denied mem., 506 So.2d 1041 (Fla. 1987). Under the exceptions to the premises rule, off-premises injuries may be compensable if certain circumstances are present. Those circumstances include special hazards on the normal route to work, travel on the public way between two parts of an employer's business, and injury in an area which is customarily used by the employer for his own purposes. Id. at 662. The JCC held that this injury was compensable under the last of these exceptions because the public lot was habitually being used for the benefit of the employer, thereby bringing this off-premises injury within the "zone and environments" of Ms. Alvarez' employment. To the extent this conclusion is based upon the JCC's incorrect factual premise that employees were subject to discipline if they did not park in that lot, the JCC's order is without foundation. Furthermore, the interpretation of the JCC is an unwarranted expansion of the premises rule and its exceptions, and constitutes error as a matter of law. The crucial question is not whether the claimant was directed to park in the lot in which she was injured, instead of closer spaces. Rather, to fit within this exception to the premises rule, the lot in which the injury occurred must be under some control or subject to some special use by the employer. See, e.g., Ocean Pavilion v. Betancourt, 578 So.2d 467, 469 (Fla. 1st DCA 1991) (off-premises injury not compensable in absence of evidence that the employer ever modified, *1026 closed, controlled or habitually used the road where the injury took place for its own purposes). In other words, the employer's use of the property must be for purposes other than those shared by the general public. The case cited in Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), review denied mem., 506 So.2d 1041 (Fla. 1987) as an example of this exception to the premises rule is Fernandez v. Consolidated Box Co., 249 So.2d 434 (Fla. 1971). In that case, the public street where the injury occurred was never used by the public and had been thoroughly taken over by the employer for its sole use. In contrast, this injury took place in a public parking lot, and there is no evidence that the lot was used by the employer or its employees in any way materially different from the public in general. In El Sirocco Motor Inn, Inc. v. Prekop, 207 So.2d 434 (Fla. 1968) the claimant was injured when she slipped and fell after parking in a vacant lot across the street from her place of employment. The employer neither owned, leased nor maintained the parking lot. However, the lot where the injury occurred was customarily used for employee parking. That customary use of a public parking lot was not sufficient to make the injury compensable under this exception to the premises rule. The Florida Supreme Court held that the injury was not compensable, and was precluded under the going and coming rule. In contrast, in Maas Brothers v. Peo, 498 So.2d 657 (Fla. 1st DCA 1986) a different fact situation led to the opposite result. As in El Sirocco Motor Inn, Inc. v. Prekop, the employer in Maas Brothers v. Peo neither leased, owned nor maintained the parking lot. Parking spaces near the store entrances were being reserved for customers. Therefore, employees had been directed to park in a particular area of the public parking lot. The employee was injured in the parking lot, and the injury was held to be compensable. However, the distinguishing fact is that the area of the lot in which the employees were required to park was near some ongoing construction work which created a special hazard which led to the claimant's injury. That case does not conflict with El Sirocco Motor Inn, Inc. v. Prekop because the court expressly ruled that the injury did not take place on the employer's premises in any sense. See also Kash-N-Karry v. Johnson, 617 So.2d 791, 792, 794 (Fla. 1st DCA), review denied mem., 629 So.2d 133 (Fla. 1993). The claimant in Kash-N-Karry was injured while travelling from her parked car to her place of employment. The employer neither leased, owned nor maintained the parking lot, but had some indirect control through the terms of the building lease which required the landlord to maintain the common area which encompassed the parking lot. Employees were required to park away from the entrance so as to preserve those spaces for customers. The JCC had found the injury compensable under the special hazard exception to the premises rule. This court reversed. In doing so, this court also rejected an argument that the injury should be found compensable as having taken place on the employer's premises, stating that such a result would be contrary to Maas Brothers v. Peo. We conclude that in the absence of any evidence of actual domination or control by the employer over the parking lot and its use, this injury is not compensable under any exception to the going and coming rule. The award of attorney's fees must also be reversed, as it was based upon the determination of compensability. Accordingly, this case is REVERSED and REMANDED with instructions to enter an order denying the compensability of this claim. ZEHMER, C.J., and WENTWORTH, Senior Judge, concur.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELLIOTT ROMAN RODRIGUEZ, No. 15-56860 Plaintiff-Appellant, D.C. No. 5:15-cv-01301-VAP-KK v. MEMORANDUM * PROVIDENT SAVINGS BANK, F.S.B.; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding Submitted January 18, 2017** Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. Elliott Roman Rodriguez appeals pro se from the district court’s judgment dismissing his action alleging violations of the Truth in Lending Act (“TILA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014), and we affirm. The district court properly dismissed as time-barred Rodriguez’s TILA claims because Rodriguez failed to establish that he delivered a timely notice of rescission, see Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015) (borrower must notify creditor of intent to rescind within three years after the transaction is consummated), or that he timely filed an action for damages, see 15 U.S.C. § 1640(e) (an action for damages under TILA must be brought within one year of the alleged violation). We reject as unsupported by the record Rodriguez’s contention that the loan transaction was never consummated. See Cal. Civ. Code § 1614 (“A written instrument is presumptive evidence of a consideration.”); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (court not required to accept as true allegations that contradict exhibits attached to the complaint). The district court did not abuse its discretion in dismissing Rodriguez’s rescission and restitution claims without leave to amend. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (leave to amend not required “where the amended complaint would also be subject to dismissal”); see also 2 15-56860 Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth standard of review). We reject as unsupported by the record Rodriguez’s contentions that the district court failed to comply with the Federal Rules of Evidence or provide him with notice of the motion to dismiss filed on July 31, 2015. We treat Rodriguez’s request to “File on Demand,” filed on January 23, 2017, as a motion to supplement the record, and deny the request. AFFIRMED. 3 15-56860 

PD-0235&0236 COURT OF CRIMINAL APPEALS PD-0235&0236-15 AUSTIN, TEXAS Transmitted 2/27/2015 5:41:45 PM Accepted 3/2/2015 11:48:22 AM ABEL ACOSTA NO. PD-___________ AND PD-____________ CLERK IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS ELIAS ESEQUIEL VASQUEZ, Appellant vs. THE STATE OF TEXAS, Appellee APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW OF THE JUDGMENT AND OPINION IN CAUSE NOS. 04-13-00338-CR AND 04-13-00339-CR Respectfully submitted by Appellant's attorney, VICTORIA GUERRA Texas Bar No. 08578900 March 2, 2015 320 W. Pecan Blvd. McAllen, Texas 78501 (956) 618-2609 (956) 618-2553 Fax ORAL ARGUMENT WAIVED UNLESS REQUESTED BY COURT  IDENTITY OF PARTIES AND COUNSEL Elias Esequiel Vasquez (hereinafter “Appellant” or “Mr. Vasquez”) certifies that below is a complete list of all parties to the trial court’s judgment and their trial counsel’s names, addresses and telephone number. 1. Mr. Vasquez, resides in the I.D.T.D.C.J., Ney Unit, 114 Private Road 4303, Hondo, TX 78861-3812. His TDCJ number is: #01855231 . 2. Mr. Vasquez’s trial attorney was Juan Eduardo Garcia, whose office address is 102 Texas Ave.; phone number: (956) 487-3739. Mr. Flores’ appellate counsel is the undersigned, Victoria Guerra, whose address is 3219 N. McColl Rd., McAllen, TX 78501; phone number: (956) 618-2609; facsimile: (956) 618-2553; email: [email protected] . 3. Appellee is the State of Texas. 4. Appellee is represented by the Starr County Criminal District Attorney Omar Escobar and ADA Marty Garcia Vela. Their address is: 3rd Floor, Suite 417, Starr County Courthouse, Rio Grande City, Texas 78582. On appeal, Appellee is represented by John A. Olson. His contact information is as follows: 20634 Creek River, San Antonio, TX 78259; 210-307-0336 (phone). 5. This case was heard by the Trial Court, Judge Ana Lisa Garza, and by a panel of three judges on the Thirteenth Court of Appeals who affirmed the judgment of the Trial Court. /s/ Victoria Guerra Victoria Guerra ii  TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………..iii LIST OF AUTHORITIES……………….……………………………………...iv STATEMENT REGARDING ORAL ARGUMENT…………….……………1 STATEMENT OF THE CASE……………………….…………………………2 STATEMENT OF PROCEDURAL HISTORY……………………………….2 GROUNDS FOR REVIEW……………………………………………………..3 ARGUMENT AND AUTHORITIES…………………………………………..4 CONCLUSION AND PRAYER..……………………………………………....7 CERTIFICATE OF SERVICE…………………………………………………8 APPENDIX………………………………………………………………………. iii  INDEX OF AUTHORITIES Cases Abel v. United States, 362 U.S. 217 (U.S. 1960) ......................................... 5 McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ........................... 4 Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) ............. 5 Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009) ............................ 4 Texas Rules of Appellate Procedure 9.4(i) (l) ....................................................................................................... 9 9.4(i)(3) ....................................................................................................... 9 iv  NO. PD-______ AND PD-________ IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS ELIAS ESEQUIEL VASQUEZ, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________________________________ APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS: COMES NOW ELIAS, Appellant in the above styled cause, and respectfully urges this Court to grant discretionary review of the above cause. STATEMENT REGARDING ORAL ARGUMENT Appellant waives oral argument, unless this Court deems that oral argument is necessary. 1  STATEMENT OF THE CASE Appellant was indicted on or about June 23, 2011 in a single count indictment, alleging that Defendant, on or about the 27th day of March, 2011, and before the presentment of this indictment, in Starr County, Texas, did then and there operate a motor vehicle in a public place while intoxicated by reason of the introduction of a combination of alcohol and marijuana into the body, and did by reason of such intoxication cause the death of another, namely, Guillermo Olivares, III, by accident or mistake, to-wit: by driving his motor vehicle into the motor vehicle of the said injured party. C14.1 STATEMENT OF PROCEDURAL HISTORY On August 27, 2012, Mr. Vasquez plead guilty to the indictment. 5R20. On November 27, 2012, Mr. Vasquez sought to have his plea of guilty set aside. 6R4; C91, 104, 112. The Trial Court granted Mr. Vasquez’s motion to set aside his plea. 8R5, C186. Jury selection for Mr. Vasquez’s trial began on April 29, 2013. 12R41. Mr. Vasquez plead guilty before the jury on April 30, 2013. The sentencing trial before the jury began on May 3, 1 The companion case, appellate cause number 04-13-00339-CR arising from cause number 11-CRS-272 pertains to the charge of intoxication assault. The Trial Court consolidated these two cases. C449. Both cases arose out of the same incident and occurrence. The records are identical for all intents and purposes. However, the documents are in different order. Mr. Vasquez sees no reason why the two cases cannot be handled together. 2 2013. 14R18. The jury assessed a sentence of thirteen years confinement in the Texas Department of Criminal Justice and a fine of $ 10,000. 14R394, 399; C595. Mr. Vasquez filed a motion for new trial on May 29, 2013. C598. It appears that no hearing on this motion for new trial occurred. C10. Mr. Vasquez timely perfected his appeal. (Supplemental Clerk’s Record). GROUNDS FOR REVIEW ISSUE NO. 1: WHETHER THE FOURTH COURT OF APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY DIVESTING HIM OF FOURTH AMENDMENT PROTECTION 3  ARGUMENT ISSUE NO. 1: WHETHER THE FOURTH COURT OF APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY DIVESTING HIM OF FOURTH AMENDMENT PROTECTION Appellant seeks review of the Court of Appeals’ reliance and interpretation of McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997), which is misplaced. There exists a fundamental error in this Court’s opinion that skews this Court’s analysis and result. Specifically, this Court’s opinion was based not on the purported lack of standing of Mr. Vasquez to complain of a violation of his expectation of privacy when the police stole, in violation of the Fourth Amendment to the United States Constitution, the EDR from the GMC Canyon which Mr. Vasquez was driving. Utilizing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997), this Court held that Mr. Vasquez voluntarily discarded, left behind, or otherwise relinquished his interest in property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. No evidence exists to support this theory that appeared for the first time in the State’s brief and was not raised at the trial court by the State. 4  Abandonment of property occurs only “if the defendant intended to abandon the property and his decision to abandon it was not due to police misconduct.” McDuff, 939 S.W.2d at 616. In Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) the court drew a distinction between voluntary and involuntary abandonment. In that case, the defendant, a police officer accidentally left a personal thumb drive which contained child pornography and police activity reports in a patrol-room computer. The court noted in footnote 4 that abandonment of property occurs only if the defendant intended to abandon the property and his decision to abandon it was not due to police misconduct (citing McDuff, 939 S.W.2d at 616) and it was undisputed that the defendant’s abandonment of his thumb drive was unintentional. See Miller, 335 S.W.3d at 858. In Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), the Court of Criminal Appeals held that the defendant had abandoned the borrowed vehicle when he took off running after the police conducted a stop. Even the United States Supreme Court has addressed the abandonment issue. In Abel v. United States, 362 U.S. 217 (U.S. 1960), the defendant who was illegally present in the United States, and who was 5 under suspicion of espionage by the FBI, was arrested in a hotel room. During the search of the hotel room, a forged birth certificate was found in the trash can of the hotel room. The Court held that it was lawful to seize items thrown away in the wastepaper basket where the defendant had abandoned the articles contained in the basket by throwing them away. None of those situations exist here which establish intentional abandonment of the vehicle. Mr. Vasquez was lying on the ground at the time of the collision. 14R31, 78. Mr. Vasquez was nonresponsive at the collision scene. 14R32, 78. District Attorney investigator Trinidad Lopez called for medical assistance. 14R31. Meanwhile, the State maintained control over the vehicle. On or about January 3, 2012, a subpoena was issued to obtain the EDR from Rey’s Auto Parts. CR291; 10R13–14. Although investigator Homer Flores initially obtained the EDR from the wrong vehcile pursuant to a grand jury subpoena, he later obtained the correct EDR without a warrant. 10R14. No evidence exists that Mr. Vasquez intentionally abandoned said vehicle. Even if he wanted to obtain return of the vehicle, he could not have because it was still in the State’s custody, as the State needed it to obtain evidence as on January 3, 2012 and thereafter. Id. 6  It should also be strongly noted that the abandonment issue was not raised in the trial court and Mr. Vasquez nor the trial court had no opportunity to address said abandonment issue at said time. As such, no evidence exists that Mr. Vasquez intentionally abandoned the vehicle at issue. The judgment of the trial court and opinion of the appellate court should be vacated, reversed, and this case should be remanded to the trial court for a new trial. CONCLUSION AND PRAYER WHEREFORE, Mr. Vasquez prays that this Court vacate and reverse the appellate court’s and trial court’s decisions and remand this case to the trial court for a new trial. Mr. Vasquez also prays that this Court grant such other relief to which he is justly entitled. Respectfully submitted, Law Office of Victoria Guerra 3219 N. McColl Rd. McAllen, Texas 78501 (956) 618-2609 (956) 618-2553 (facsimile) By: /s/ Victoria Guerra Victoria Guerra State Bar Number: 0857900 Appellate Attorney for Appellant 7  CERTIFICATE OF SERVICE On this 27th day February, 2015, the undersigned delivered a copy of the foregoing Appellant’s brief to Appellee’s Counsel [email protected] or his facsimile: 210-858-6780 and to the State Prosecuting Attorney at its fax: (512) 463-5724. /s/ Victoria Guerra Victoria Guerra Attorney for Appellant CERTIFICATION OF COMPLIANCE In compliance with TRAP 9.4(i)(3), the undersigned certifies that the number of words in this brief, excluding those matters listed in Rule 9.4(i) (l), is 1092. /s/ Victoria Guerra Victoria Guerra 8  Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00338-CR No. 04-13-00339-CR Elias Esequiel VASQUEZ, Appellant v. The The STATE of Texas, Appellee From the 229th Judicial District Court, Starr County, Texas Trial Court Nos. 11-CRS-270 & 11-CRS-272 Honorable Ana Lisa Garza, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice Delivered and Filed: December 10, 2014 AFFIRMED At around 11:00 p.m., on February 27, 2011, appellant was involved in an automobile accident that resulted in the death of Guillermo Olivares III and bodily injury to Yadira Pena. Appellant pled guilty to intoxication manslaughter in the death of Olivares and guilty to intoxication assault for the injuries sustained by Pena. A jury assessed punishment. In both appeals, appellant asserts the trial court erred by denying his motion to suppress. We affirm the trial court’s judgment in both cases.  04-13-00338-CR & 04-13-00339-CR BACKGROUND At the time of the accident, appellant was driving a maroon 2005 GMC Canyon owned by his mother, who had consented to his using the vehicle. After the accident, the vehicle was towed to a salvage yard. The complainants’ vehicle, a 2008 Silverado, also was towed to the same salvage yard. Approximately eleven months after the accident, an investigator with the Starr County District Attorney’s Office went to the salvage yard to obtain the electronic data recorder (“the EDR”) from one of the vehicles. Joel Diaz, who managed the salvage yard, testified he was approached by the investigator who gave him a grand jury subpoena duces tecum for the Silverado. Diaz gave the investigator the EDR from the Silverado. About one week later, an investigator from the District Attorney’s Office returned to the salvage yard, and told Diaz he had taken the EDR from the wrong vehicle, and he needed the EDR from the GMC Canyon. Diaz said the investigator had no paperwork with him; nevertheless, Diaz gave the investigator the EDR from the GMC Canyon. Appellant later filed a motion to suppress the EDR on the grounds it was illegally obtained. The trial court denied his motion, and these appeals ensued. STANDING In these appeals, we must decide whether appellant had standing to challenge the State’s obtaining the EDR from the GMC Canyon. “The rights protected by the Fourth Amendment to the U.S. Constitution and Article I, Section 9, of the Texas Constitution are personal.” Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014). “As such, [a defendant] must show that the search violated his, rather than a third party’s, legitimate expectation of privacy.” Id. (emphasis in original). A defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must, therefore, show (1) that he exhibited an actual “subjective expectation of privacy in the place invaded,” and (2) that “society is prepared to recognize that expectation of privacy as objectively reasonable.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). -2-  04-13-00338-CR & 04-13-00339-CR Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Standing is reviewed de novo because it is a question of law. Id. In a motion to suppress, the movant has the burden to establish standing. State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). A person has an expectation of privacy in a vehicle that he does not own if he has gained possession of the car from the owner with the owner’s consent or from someone authorized to give permission to drive it. See Matthews, 431 S.W.3d at 607-08. In this case, appellant’s mother testified she gave appellant permission to drive her GMC Canyon. Therefore, at the time of the accident, appellant had both a subjective and reasonable expectation of privacy in his mother’s GMC Canyon. See id. at 610. However, a party lacks standing to object to the reasonableness of a search of abandoned property. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Abandonment of property occurs when the defendant intends to abandon the property and his decision to abandon it is not due to police misconduct. Id. “When police take possession of abandoned property independent of police misconduct[,] there is no seizure under the Fourth Amendment.” Id. Abandonment is primarily a question of intent that can be inferred from the words and actions of the parties and other circumstances surrounding the alleged abandonment. Id. The dispositive issue is whether the defendant voluntarily discarded, left behind, or otherwise relinquished his interest in property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Id. Shortly after the accident, the GMC Canyon was towed to the salvage yard. Nothing in the record indicates either appellant or his mother attempted to regain possession of the vehicle in the almost eleven months following the February 27, 2011, accident. The investigator obtained the -3-  04-13-00338-CR & 04-13-00339-CR GMC Canyon’s EDR from Diaz on January 3, 2012. Diaz testified he has a Texas Nonrepairable Vehicle title to the GMC Canyon, and the State introduced a document showing the current owner of the vehicle to be State Farm County Mutual. This document also stated: “Registration invalid. . . . Nonrepairable Vehicle Title Issued. Tx Title Surrendered on 2011/05/13. . . . Salvaged on 2012/07/18. Evidence Surrendered: Tx Nonrepair Cert of Title . . . .” On this record, we conclude appellant abandoned any reasonable expectation of privacy in his mother’s vehicle. Therefore, he lost standing to challenge the State’s obtaining the EDR from the vehicle. CONCLUSION We conclude the trial court did not err in denying appellant’s motion to suppress. Therefore, we overrule appellant’s issue in both appeals, and affirm the trial court’s judgments. Sandee Bryan Marion, Justice Do not publish -4- 

145 F.2d 692 (1944) RODNEY, Inc., v. COMMISSIONER OF INTERNAL REVENUE. No. 36. Circuit Court of Appeals, Second Circuit. November 16, 1944. LeBoeuf & Lamb, of New York City (Horace R. Lamb, and Leo A. Diamond, both of counsel), for petitioner. Samuel O. Clark, Jr., Sewall Key, and L. W. Post, all of Washington, D. C., for respondent. Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges. FRANK, Circuit Judge. We think that the Tax Court correctly held that the assumption by taxpayer on June 17, 1938, of the liabilities of Gladstone in exchange for Gladstone's assets was a capital transaction in the nature of consideration for the receipt of the assets of Gladstone, and that interest paid in that year, which had accrued before such purchase, was not "interest" within the meaning of § 23(b). Nor do we think that the payment of $32,569.33 representing interest accrued prior to June 17, 1938, can be regarded as the declaration of a dividend by taxpayer to Mrs. Scott. It constituted the payment of a debt assumed by taxpayer which it was obligated to pay and was not a voluntary distribution by its board of directors. Affirmed.

Motion Granted; Appeal Dismissed and Memorandum Opinion filed March 10, 2011.     In The   Fourteenth Court of Appeals ____________   NO. 14-10-00626-CV ____________   JERRY A. WEATHERBEE, JR. AND TERESA A. WEATHERBEE, Appellants   V.   FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee     On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 962340     M E M O R A N D U M   O P I N I O N This is an appeal from a judgment signed June 24, 2010.  On March 3, 2011, the parties filed a motion to dismiss the appeal by agreement.  See Tex. R. App. P. 42.1.  The motion is granted. Accordingly, the appeal is ordered dismissed. PER CURIAM Panel consists of Justices Brown, Boyce, and Jamison.

253 F.3d 1150 (9th Cir. 2001) ANDRE MARCUS BRAGG, Petitioner-Appellant,v.WARDEN GALAZA, Respondent-Appellee. No. 99-16636 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 7, 2000--San Francisco, CaliforniaFiled March 12, 2001Amended June 12, 2001 Quin Denvir, Federal Defender; Daniel J. Broderick, Chief Assistant Federal Defender; Carolyn M. Wiggin, Staff Attorney; Allison Claire, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant. Bill Lockyer, Attorney General of the State of California; David P. Druliner, Chief Assistant Attorney General; Robert R. Anderson, Senior Assistant Attorney General; Arnold O. Overoye, Senior Assistant Attorney General; Mathew Chan, Deputy Attorney General, Sacramento, California, for the respondent-appellee. Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-97-00741-LKK ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND AMENDED OPINION Before: Diarmuid F. O'Scannlain, Edward Leavy, and Ronald M. Gould, Circuit Judges. ORDER 1 This court's opinion, filed March 12, 2001, is amended as follows: 2 1. On page 3110 of the slip, the first sentence of the second full paragraph reads: 3 Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing to resolve any factual ambiguities. 4 The foregoing sentence should be replaced with the following sentence: 5 Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing in the trial court to resolve any factual ambiguities. 6 2. On page 3111 of the slip, the last sentence before the Conclusion reads: 7 Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evidentiary hearing. 8 The foregoing sentence should be replaced with the following sentences: 9 Diligence would require at least one step or the other to develop the factual basis of his claim. Bragg made no such efforts. Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evidentiary hearing. 10 With these amendments, the petition for rehearing dated March 21, 2001, is DENIED. 11 It is so ORDERED.

831 F.2d 305 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.William C. FRANTZ, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent. Appeal No. 87-3205 United States Court of Appeals, Federal Circuit. September 9, 1987. Before NIES, Circuit Judge, COWEN, Senior Circuit Judge, and BISSELL, Circuit Judge. PER CURIAM. DECISION 1 William C. Frantz appeals from the final decision of the Merit Systems Protection Board, Docket Number PH07528610532, dismissing his appeal for lack of jurisdiction. We affirm. OPINION 2 On February 1, 1986, the United States Postal Service hired Frantz as a part-time flexible city carrier. Frantz had transferred to the Postal Service from a position as a hospital linen coordinator with the Veterans Administration. His appointment to the carrier position was subject to a 90-day probation period. Frantz's removal occurred during that probationary period. 3 A government 'employee' has only those rights to appeal an adverse action provided by law, rule, or regulation. 5 U.S.C. Sec. 7701(a) (1982). Only a person with preference eligible status in the United States Postal Service who 'has completed one year of current continuous service in the same or a similar position' comes within the definition of 'employee' in 5 U.S.C. Sec. 7511(a)(1)(B). The Administrative Judge (AJ) found that Frantz 'had not completed [the required] one year of current continuous service in a position similar to the one from which he was removed.' Therefore, the AJ held that the board was without jurisdiction over Frantz's appeal. 4 Frantz presents three jurisdictional arguments on appeal. First, he asserts that his prior position as a hospital linen coordinator was 'similar' to his carrier position. In view of the different agencies and the different responsibilities involved in the two positions, we do not find the AJ's holding of dissimilarity either arbitrary, capricious, or unsupported by substantial evidence. 5 Frantz's second argument is that 'the severity and the amount of personnel prohibitted [sic] practices [he] was subjected to surely [grant] . . . jurisdiction.' Considerations such as the severity and amount of alleged improper practices cannot confer jurisdiction where none exists. 6 Finally, Frantz argues that he may appeal because he suffered discrimination for partisan political reasons. 5 C.F.R. Sec. 315.806(b) (1987). That right of appeal applies only to employees in the competitive service. See 5 C.F.R. pt. 315, subpt. H, Secs. 315.801-.806 (1987). Frantz held an excepted service position, which is not part of the competitive service. See Collaso v. Merit Sys. Protection Bd., 775 F.2d 296, 297 (Fed. Cir. 1985) ('excepted service' includes postal agencies); Gardner v. United States Postal Serv., 2 M.S.P.R. 276, 277 (1980) (provisions covering employees in competitive service inapplicable to employees in postal service). Therefore, the cited regulation does not apply to him. 7 We find that Frantz's three jurisdictional arguments lack merit. Accordingly, we uphold the decision of the board dismissing Frantz's appeal for lack of jurisdiction. Frantz's arguments on matters other than jurisdiction cannot be considered.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1808-19T3 GOLDEN APPLE HOLDINGS, LLC, Plaintiff-Respondent, v. GLORIA REYES, Defendant, and HERIBERTO ALMONTE, Defendant/Intervenor-Appellant. ________________________________ Argued telephonically argued April 30, 2020 – Decided June 22, 2020 Before Judges Fisher, Accurso and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. LT-013044-19. John V. Salierno argued the cause for appellant. Alison C. Ingenito argued the cause for respondent. PER CURIAM This appeal presents a question of whether an occupant of an apartment is a functional tenant protected under the Anti-Eviction Act (the Act), N.J.S.A. 2A:18-61.1 to -61.12. The occupant, Heriberto Almonte, appeals from a judgment of possession and a warrant of removal entered following a bench trial during which the trial judge rejected his argument that he was a functional tenant. We reverse and remand for a new trial before a new judge because the trial judge made inadequate findings of fact and misapplied the governing law. I. We derive the facts from the record developed at a one-day bench trial held in the Law Division, Special Civil Part, on December 16, 2019. In November 2019, the landlord, Golden Apple Holdings, LLC (the Landlord), filed a summary dispossession action seeking to evict Almonte and his two adult daughters. At trial, the Landlord called one witness: the project manager for the apartment building. The project manager testified that the Landlord purchased the building, located in West New York, in February 2018. At that time the apartment at issue was already occupied and the rent for the apartment was being paid. The Landlord submitted a February 1999 lease, which a prior landlord had A-1808-19T3 2 signed with Gloria Reyes (the Lease). The Lease was month-to-month and it did not have a provision addressing what would happen if the tenant died. The Landlord asserted that Reyes was no longer living in the apartment and Almonte and his two daughters were therefore unauthorized occupants. In support of that position, the Landlord relied on paragraph 4 of the Lease, which states: USE OF PROPERTY. The Tenant may use the apartment only as a private residence and only the persons named below may reside in the Premises with Tenant: Miosotis H. Almonte, Arian[]A. Almonte, [and] Heriberto Almonte. No other person will be permitted to reside in the Premises without the Landlord's written consent. Any change in the persons who are residing at the Premises must be reported to Landlord in writing immediately. Tenant is responsible for compliance with this agreement. If any person resides at the Premises who is not authorized by Landlord to reside at the Premises, Landlord may cancel this Lease, and Tenant must vacate the Premises within five . . . days of cancellation. The Landlord contended that the phrase "reside in the [p]remises with [t]enant" meant that Almonte and his daughters could only stay in the apartment with Reyes, and when Reyes vacated the apartment, they became unauthorized occupants. In addition, the Landlord relied on paragraph 14 of the Lease, which A-1808-19T3 3 states that the tenant could not sublease the apartment without the Landlord's prior written consent. The property manager testified that sometime after February 2018, he spoke to one of the daughters who told him that she was the daughter of Reyes and Reyes no longer lived at the apartment. Thereafter, the Landlord, through its attorney, sent two notices to the apartment. The notices were dated August 1, 2019 and September 19, 2019, and were addressed to "Gloria Reyes, tenant and Unauthorized Occupants" and "Gloria Reyes (and any other occupants)." The notices directed the occupants to cease violating the Lease and to vacate the apartment. The Landlord contended that Almonte and his daughters were violating the Lease by occupying the apartment without Reyes. The Landlord did not rely on any other provision of the Lease and did not contend that the rent for the apartment had not been paid on a timely basis. Almonte intervened in the action and testified at trial. He explained that he married Reyes in 1989, and that they had moved into the apartment in 1992 or 1993. Almonte testified his daughters were born in 1991 and 1997, and that they had lived with him continuously in the apartment. Concerning the Lease, Almonte testified that Reyes signed the Lease because he was at work when it A-1808-19T3 4 arrived. In that regard, he explained that she called him, and he told her to sign the Lease. Almonte also testified that shortly after the Lease was signed, he and Reyes separated. He stated that he and his daughters continued to live in the apartment. He also testified that he was the person who paid the rent during the entire period they lived in the apartment, including after Reyes left the apartment. He also explained that he believed Reyes had died a number of years before this action was filed. In addition, Almonte testified that he told a prior landlord that Reyes had died. According to Almonte, that landlord filed a court action that was resolved with the understanding that Almonte would be given a new lease. Almonte then explained that that landlord did not send him a new lease. Nevertheless, Almonte and his daughters continued to live in the apartment and Almonte continued to pay the monthly rent. Ariana Almonte was the third and final witness to testify at the trial. She explained she had lived in the apartment her entire life. She also testified that Reyes was her mother, but she did not have any memories of her mother or of living with her mother. A-1808-19T3 5  Based on that testimony, the trial judge found the controlling lease was the Lease signed in 1999 by Reyes. The judge then construed the Lease to require Reyes to be a tenant in the apartment with Almonte and their daughters. The judge rejected Almonte's contention that he was a functional tenant. Specifically, the judge found Almonte's testimony not to be credible because he had not brought any documents proving that he was the person paying the rent. Thus, the judge did not find that the Landlord had acquiesced to Almonte's occupancy of the apartment. On the record, the judge stated that she was ruling for the Landlord. No judgment of possession, however, was included in the record before us. Instead, the record only includes a warrant of removal ordering Almonte and his daughters to move out of the apartment before January 7, 2020. After Almonte appealed, we granted a stay of the judgment of possession and warrant pending this appeal. II. On appeal, Almonte makes three arguments. He contends that the trial judge erred in: (1) not joining him and his daughters as indispensable parties; (2) accepting jurisdiction because the notices were vague and not served directly on him; and (3) rejecting his position that he is a functional tenant. A-1808-19T3 6  We hold that Almonte was permitted to intervene to participate as a party. We also hold that the notices were sufficient because Almonte received them, intervened, and testified at trial. 1 We reverse and remand, however, because the trial judge's finding that Almonte was not a functional tenant was inadequate. Moreover, the trial judge failed to properly analyze the governing law concerning functional tenancy. Under the common law, when a tenant died, the tenancy passed to his or her estate. Maglies v. Estate of Guy, 193 N.J. 108, 120 (2007) (citing Gross v. Peskin, 101 N.J. Super. 468, 469 (App. Div. 1968)). If the lease was a month- to-month tenancy, as the Lease in this case, "then the landlord could terminate the lease by giving one month's notice to the estate's legal representatives." Ibid. (citing Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 350 (App. Div. 1993)). The law substantially changed, however, when the Legislature passed the Act. Ibid. (citation omitted). The Act provides that a tenant cannot be removed except when the landlord establishes one of eighteen enumerated grounds for a good cause eviction. Id. at 121 (quoting N.J.S.A. 2A:18-61.1). The grounds for 1 Under the Act, a landlord cannot obtain a judgment of possession unless it has "made written demand and given written notice for delivery of possession of the premises." N.J.S.A. 2A:18-61.2. A-1808-19T3 7 eviction include material breaches of the lease. N.J.S.A. 2A:18-61.1(d) to (e)(1). "When a person is protected by the Act, 'the effective term of the lease is for as long as the tenant wishes to remain, provided he pays the rent . . . and provided there is no other statutory cause for eviction under [the Act].'" Maglies, 193 N.J. at 121 (alterations in original) (quoting Ctr. Ave. Realty, 264 N.J. Super. at 350). Our Supreme Court has stated that the Act "was designed to protect residential tenants against unfair and arbitrary evictions by limiting the bases for their removal." 447 Assocs. v. Miranda, 115 N.J. 522, 528 (1989) (citations omitted). The Court has also repeatedly stated that the Act is "remedial legislation deserving of liberal construction." Maglies, 193 N.J. at 123 (quoting 447 Assocs., 115 N.J. at 529). Consistent with the design and liberal construction of the Act, the Court has recognized that an occupant can become a functional tenant protected by the Act. Id. at 125-26. To be recognized as a functional tenant, an occupant must establish three facts: (1) he or she has continuously resided at the premises; (2) he or she "has been a substantial contributor towards satisfaction of the tenancy's financial obligations"; and (3) his or her "contribution has been acknowledged and acquiesced to by" the landlord. Id. at 126. A-1808-19T3 8  Generally, a challenge to a judgment of possession is reviewed on appeal for abuse of discretion. Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998) (citations omitted). Moreover, factual findings made by a judge in a bench trial will usually not be disturbed if they are supported by substantial credible evidence. Slutsky v. Slutsky, 451 N.J. Super. 332, 343-44 (App. Div. 2017) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). Nevertheless, when fact findings are not supported by substantial credible evidence we will intervene. Id. at 369 (citing Beck v. Beck, 86 N.J. 480, 496 (1981)). Here, the trial judge failed to adequately analyze the evidence concerning whether Almonte was a functional tenant. Almonte's unrebutted testimony established that he continuously resided in the apartment since the early 1990's. Indeed, before us the Landlord conceded that fact. Almonte also testified that he paid the rent every month. He explained that when he was living with Reyes he worked, she did not, and he paid the rent. He also testified that since Reyes vacated the apartment sometime shortly after the 1999 Lease was signed, he continued to pay the rent monthly. The trial judge questioned Almonte's credibility because he did not have documents supporting that position. The record, however, is undisputed that the rent was consistently paid on a monthly basis for years. In that regard, it was undisputed that rent had A-1808-19T3 9 been received by the Landlord and those payments had been applied to the rent for the apartment where Almonte lived. Even if it was not Almonte paying the rent, then someone was sending those payments on his behalf. That fact still strongly suggests that Almonte was a substantial contributor towards the rent. Almonte also testified that a prior landlord knew and acquiesced to his financial contributions. He explained that landlord had learned of Reyes' death as early as 2009. He also testified that there had been a court proceeding which had been resolved with him being allowed to stay in the apartment. Most importantly, the record was unrebutted that for years after Reyes' death, the Landlord accepted rent payments for the apartment where Almonte and his daughters lived. The Landlord offered no evidence to rebut Almonte's testimony. Nevertheless, with virtually no analysis of the testimony presented, the trial judge found that the current Landlord (Golden Apple) had not acquiesced to Almonte's financial contributions. There are two shortcomings in that finding. First, if a prior landlord accepted payments from Almonte then Almonte became a functional tenant before Golden Apple purchased the building. In other words, the Lease would have been effectively modified and Golden Apple A-1808-19T3 10 would be bound by that modification.2 At a minimum, the court should have engaged in a more rigorous analysis to determine whether Golden Apple was bound by the acquiescence of a prior landlord. See Young v. Savinon, 201 N.J. Super. 1, 7-10 (App. Div. 1985) (citing Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 127-28 (1967)). Second, in making the finding that the current Landlord did not acquiesce, the trial judge ignored the undisputed fact that Golden Apple purchased the building in February 2018, and then waited well over one year before it stopped accepting Almonte's payments in July 2019. That one-and-a-half-year delay raises material facts concerning whether Golden Apple acquiesced to Almonte's payment of the rent for the apartment. In summary, the trial judge failed to adequately address the evidence that had been presented and the judge's finding that Almonte was not a functional tenant is not supported by substantial credible evidence in the record. 2 Before us counsel for the Landlord contended that any modification to the Lease had to be in writing pursuant to the statute of frauds. See Van Horn v. Harmony Sand & Gravel, Inc., 442 N.J. Super. 333, 341 (App. Div. 2015) (citing N.J.S.A. 25:1-12); Willow Brook Recreation Ctr., Inc. v. Selle, 96 N.J. Super. 358, 364 (App. Div. 1967). Maglies, however, does not require a written modification to establish a functional tenancy. Such a requirement would allow a landlord to prevent the establishment of a functional tenancy, even when the three-part test in Maglies is satisfied, by refusing to execute a corresponding writing. A-1808-19T3 11 Accordingly, we vacate the judgment of possession and the warrant of removal and remand for a new trial. Because the judge who tried the case has already made findings that are inconsistent with the record, we direct that on remand the matter be tried by a new judge. Reversed and remanded. We do not retain jurisdiction. A-1808-19T3 12 

433 Pa. Superior Ct. 505 (1994) 641 A.2d 315 FOX PARK CORPORATION, General Interiors Construction Company, Inc., Herbert Holland and Annie Holland, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Company, Inc., Standard Builders, Inc., The Peltz Company, Reliance Security Service Inc., and Bach Security Systems, Inc., v. ROBINSON ALARM COMPANY, Ivan Blitz t/a Ivan Blitz Group, Steven J. Helzner, P.E. LIONEL LEISURE, INC., d/b/a Kiddie City, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Co., Inc., Fire Protection Inc., Reliance Security Systems, Inc., and Bach Security Systems, Inc. v. FOX PARK CORPORATION, Carpet Warehouse, Inc., Morton Floor Covering Co., Robinson Alarm Co., Ivan Blitz, t/a The Blitz Group, Steven J. Helzner, P.C. LIONEL LEISURE, INC., d/b/a Kiddie City, v. Ivan BLITZ t/a The Blitz Group and Steven J. Helzner, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Company, Inc., Standard Builders, Inc., Peltz Fire Protection Inc. a/k/a The Peltz Company, Reliance Security Service, Inc., Bach Security Systems, Inc., Robinson Alarm Company and Fox Park Corporation, MERION FIRE COMPANY OF ARDMORE, v. FOX PARK CORPORATION, Lionel Leisure Inc., James Leasing Corp., Formerly Known As James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Company, Reliance Security Service Inc., Bach Security Systems Inc., Carpet Warehouse Outlet Inc., Ivan Blitz, Individually and t/a The Blitz Group, Stephen J. Helzner, Robinson Alarm Company, v. BOAS BOX COMPANY. BOAS BOX COMPANY, v. JAMES LEASING CORP., Formerly Known As James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Company and Peltz Fire Protection Inc., Reliance Security Service Inc., Bach Security Systems Inc., Ivan Blitz, i/t/a The Blitz Group, Steven J. Helzner, P.E., Morton Floor Covering Company, Inc., v. ROBINSON ALARM COMPANY, Fox Park Corporation. MORTON FLOOR COVERING CO., INC. d/b/a Carpet Warehouse Outlet v. JAMES LEASING CORP., f/k/a James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Fire Protection Company, Reliance Security Service Inc., Bach Security Service Inc., Ivan Blitz t/a The Blitz Group, Steven Helzner, P.E., Fox Park Corporation. COMMERCIAL UNION INSURANCE COMPANY as subrogee of Eleanor Dolan and Eleanor Dolan as Executrix of the Estate of John Dolan, t/a Dolan Electric, v. FOX PARK CORPORATION, James Leasing Corp. Formerly Known As James Flowers Inc., Frankford Concrete Company, Standard Builders Inc., Peltz Fire Protection Inc., Reliance Security Service Inc., Bach Security Systems Inc., Lionel Leisure Corp., t/a C.T. Corporation, Carpet Warehouse Inc., Morton Floor Covering Co., Robinson Alarm Company, Ivan Blitz t/a Ivan Blitz Group, Steven J. Helzner, P.E. Appeal of ROBINSON ALARM COMPANY. Superior Court of Pennsylvania. Submitted March 21, 1994. Filed May 3, 1994. *508 Nancy Campbell, Ardmore, for appellant. Elaine M. Rinaldi, Philadelphia, for Fox Park and General Interiors, appellees. Rochelle M. Fedullo, Philadelphia, for Peltz, appellee. Leonard R. McMonigle, Jr., Philadelphia, for Reliance, appellee. Andrew N. Schwartz, Philadelphia, for Blitz, appellee. Saul H. Krenzel, Philadelphia, for Merion Fire, appellee. Angelo L. Scaricamazza, Jr., Philadelphia, C.T. Corp., appellee. Richard S. March, John C. Farrell and Edwin L. Scherlis, Philadelphia, for Boas Box, appellee. Harry J. Sher, Philadelphia, for participating party. Before ROWLEY, President Judge, and OLSZEWSKI and TAMILIA, JJ. OLSZEWSKI, Judge: It is rare that a party appeals a trial court decision absolving it from liability. The Robinson Alarm Company, however, asks us to find it negligent and liable for certain damages caused by a fire in the Fox Park Complex of Ardmore, Pennsylvania. Robinson makes this strange request because it has already settled claims against it, and now seeks reimbursement from Fox Park Corporation, pursuant to their contract in which Fox Park agreed to indemnify Robinson Alarm for the latter's negligence. *509 Fox Park owns the Fox Park Complex, a building with a number of commercial tenants. The building had an automatic sprinkler system installed. Fox Park engaged Robinson Alarm to install, maintain and operate a signaling system, which monitored and responded to fluctuations in the sprinkler system's water supply, and performed other alarming functions. The sprinkler monitoring system required water in the sprinkler's pipes to operate — it could not function if the sprinkler system was dry. In April of 1988, Fox Park began renovations on its building, hiring Standard Builders as general contractor. By October, Standard had subbed out the excavation work to Frankford Concrete, which in turn hired James Flowers, Inc. to remove some concrete footers with a backhoe and piston ram. Although the excavators should have known the location of all utility lines, the backhoe struck and ruptured the building's water main. Water had to be shut off, rendering both the sprinkler system and Robinson's alarm system inoperable. As fate would have it, a fire broke out a few days later. With the sprinkler system down, it caused much damage. Fox Park sued the various contractors and subcontractors; the building's tenants joined in the litigation fiesta. Soon every entity involved was suing or being sued by someone else. Two of the building's tenants, Lionel Leisure and Morton Floor Covering, had sued The Peltz Company, which was responsible for sprinkler repair. Peltz decided to join Robinson Alarm as an additional defendant before the two-year statute of limitations ran in Lionel Leisure's case; in the Morton Floor Covering case, Peltz joined Robinson after the statute ran. By late 1990, the myriad lawsuits were consolidated for discovery and trial. Robinson Alarm was not responsible for the sprinkler system, and nobody ever faulted its alarm system, which relied on a hydrated sprinkler system to be functional. Rather, Robinson happened to have a copy of the utility plan showing the location of the underground water main; if Robinson had produced this plan, perhaps the main never would have been ruptured and the fire would have caused minimal damage. *510 But Robinson was never found to be negligent for failing to produce the plan, because it settled before trial with Lionel Leisure for $145,000 and with Morton Floors for $48,000. The issue of Robinson's hypothetical liability never went to the jury. Hence, the record does not reveal if Robinson was under any duty to produce its copy of the utility plan, or even if it was asked to do so. The jury eventually returned a verdict apportioning liability between Fox Park and Standard Builders. At the post-trial motions' hearing, Robinson Alarm sought indemnification under its contract with Fox Park for the settlement money it paid to escape this litigation. The trial court denied Robinson's motion, ruling that the indemnification clause in Robinson's contract with Fox Park did not require Fox Park to reimburse Robinson. We agree. In reviewing the trial court's decision, we defer to its factual findings. Under the trial court's findings, the only possible theory of liability for Robinson would have been negligence for failing to produce a copy of the utility plans. Trial court opinion 12/16/93 at 5; appellant's brief at 15. The trial court did not determine whether Robinson was under any duty to produce these plans, but only stated that trial testimony on this issue differed. Id. If we could be certain that Robinson was not negligent for failing to produce the plans, our inquiry would end. Fox need not indemnify Robinson's settlement payments if Robinson was never liable to anyone in the first place. See Martinique Shoes, Inc. v. New York Progressive Wood Heel Co., 207 Pa.Super. 404, 408, 217 A.2d 781, 783 (1966) (party which settles claims and then seeks indemnification must be able to prove its liability and the reasonableness of its settlement payments). Robinson could only blame itself for leaping to settle despite its own non-liability. So like the trial court, we will suppose arguendo that Robinson was negligent. The question now becomes whether Fox Park is obliged to indemnify Robinson pursuant to their signaling system contract. This contract deals only with *511 Robinson's duty to install and maintain the signaling system; it requires Fox Park to maintain the underlying sprinkler system. It contains an indemnification clause of remarkable breadth: [FOX PARK] agrees to indemnify ROBINSON and hold ROBINSON harmless from and against all claims, demands, liabilities, damages, losses, expenses and law suits which may be asserted against ROBINSON by any person not a party to this agreement for the installation, maintenance, operation or non-operation of the Signaling System or the sole or joint or several negligent conduct of ROBINSON or ROBINSON's agents, servants or employees, including the payment of all damages, expenses, costs, or attorney's fees, whether these claims, demands or law suits be based upon alleged sole, joint, or several active or passive negligence, or strict liability or product liability or any other theory of responsibility on the part of ROBINSON's agents, servants, or employees. R. 60 (emphasis added). Taken literally, this clause would constitute a policy of comprehensive liability insurance, since it would require Fox Park to indemnify Robinson for any act of negligence whatsoever. Our law, however, requires us to narrowly interpret indemnity provisions, in light of the parties' intentions as evidenced by the entire contract. First National Bank of Spring Mills v. Walker, 289 Pa. 252, 137 A. 257 (1927); Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). The trial court concluded that this indemnity provision was so broad as to render it unenforceable. Trial court opinion 12/16/93 at 8; appellant's brief at 18. We hesitate to go so far. It is precisely because courts so disfavor indemnity contracts that those who seek indemnity must draft broadly, lest our narrow interpretations deny them the sought-after indemnity. See Husak v. Berkel, 234 Pa.Super. 452, 341 A.2d 174 (1975). It would be capricious to only enforce those indemnity contracts which are drafted with just the right *512 scope, and reject anything else that we feel is the slightest bit too narrow or too broad. The trial court also held that if this indemnity provision were enforceable, it would not cover Robinson's averred negligence in this case. The contract is entirely about the installation and maintenance of Robinson's signaling system; the operation and maintenance of the sprinkler system is left to Fox Park. The contract by no means requires Robinson to produce a copy of the underground utility plans when asked, or implies the slightest obligation upon Robinson in connection with the water main which broke during excavation. Even if Robinson should have produced a utility plan before excavation began, Robinson's failure to do so is well beyond the scope of this contract and, thus, cannot trigger Fox Park's duty to indemnify Robinson under it. To hold otherwise would make Fox Park liable for any act of negligence by Robinson whatsoever, which our indemnification laws will not allow. We therefore agree that the trial court properly denied Robinson's motion for indemnification on this basis. Trial court opinion 12/16/93 at 9-10; appellant's brief at 19-20. Order affirmed. TAMILIA, J., concurs in the result.

[Cite as State v. Marshall, 2015-Ohio-3189.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY State of Ohio Court of Appeals No. L-14-1135 Appellee Trial Court No. CR0201401001 v. Charles Marshall DECISION AND JUDGMENT Appellant Decided: August 7, 2015 ***** Julia R. Bates, Lucas County Prosecuting Attorney, and Brad Smith, Assistant Prosecuting Attorney, for appellee. Mollie B. Hojnicki, for appellant. ***** PIETRYKOWSKI, J. {¶ 1} Appellant, Charles Marshall, appeals the May 30, 2014 judgment of the Lucas County Court of Common Pleas which, following his guilty plea to having a weapon while under a disability, sentenced him to the maximum of 36 months of imprisonment. Because we find that his plea was knowing and voluntary, we affirm.  {¶ 2} Appellant was indicted on January 2, 2014, on one count of having a weapon while under a disability, R.C. 2923.13(A)(3), a third degree felony, and one count of carrying a concealed weapon, R.C. 2923.12(A)(2) and (F), a fourth degree felony. Appellant was appointed counsel and entered not guilty pleas to the charges. {¶ 3} On March 31, 2014, following mutual agreement, appellant’s counsel withdrew and on April 4, 2014, new counsel was appointed. Thereafter, on May 6, 2014, appellant withdrew his not guilty pleas and entered a guilty plea to having a weapon while under a disability. Pursuant to an agreement with the state, the remaining charge was dismissed and the state agreed to recommend a 24-month sentence. {¶ 4} On May 30, 2014, appellant was sentenced to the maximum sentence of 36 months in prison. Appellant timely appealed and raises the following assignment of error: First Assignment of Error: The trial court erred in accepting appellant’s guilty plea when the plea was not entered into knowingly, intelligently and voluntarily. {¶ 5} In appellant’s sole assignment of error, he contends that his plea was not knowing and voluntary because he did not understand the maximum potential penalty that he faced. Before accepting a plea of guilty, Crim.R. 11(C)(2) requires that the trial court inform a defendant of the constitutional rights he waives by entering the plea. State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Relevant to the issue before us, Crim.R. 11(C)(2) provides, in part: 2.  In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. {¶ 6} Upon appellate review, the trial court’s acceptance of a guilty plea will be considered knowing, intelligent and voluntary so long as, before accepting the plea, the trial court substantially complies with the procedure set forth in Crim.R. 11(C). Nero at 108. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” Id. {¶ 7} At appellant’s May 5, 2014 plea hearing, the court informed appellant that the maximum sentence he faced was 36 months in prison and a $10,000 fine. When asked if appellant was satisfied with his counsel’s advice and competence he responded: THE DEFENDANT: It’s just like everything been rush-rush, ain’t been no – I mean, I don’t feel like either attorney has been looking at my case or different things like that, but. 3.  THE COURT: Well, are you suggesting to the Court when you say that you don’t believe that you really want to enter a plea to this court? THE DEFENDANT: I’ll enter plea. I have no problem with it. *** THE COURT: Well, I don’t know that I’m going to let you. * * * Cause I’ll only accept the plea knowing that’s a voluntary, complete waiver of your rights, and that you’ve been fully advised of your rights that you’re giving up and the consequences of entering the plea. That’s what I told you at the beginning of this. Do you understand that? THE DEFENDANT: Yes. The hearing continued and the following exchange took place. THE COURT: * * * State’s recommending that I consider a 24 month cap. You know I could impose a prison term of up to 36 months. State’s recommending a 24 month cap. You know, cause I know your lawyer told you, that that’s not binding on this court. THE DEFENDANT: See, I didn’t know that wasn’t binding. I thought that was a binding plea. THE COURT: You can ask the Court to impose a 24 month sentence. We can do that. That’s a different animal. * * * That’s called an agreed upon sentence. * * * Are you suggesting that you’re willing to accept the sentence of 24 months? 4.  THE DEFENDANT: No, I just thought it was just – I thought the plea meant binding plea of 24 months or less. THE COURT: You do not tie my hands unless you ask me to accept a specific period of incarceration. He told you that. You know he told you that. THE DEFENDANT: No, he told me that 24 months or less that’s what I was told. THE COURT: Is what the State is recommending. THE DEFENDANT: See, I didn’t know that was a recommendation. THE COURT: Well now you do. Are you telling me you don’t want to enter this plea now? THE DEFENDANT: I’ll enter the plea, but that wasn’t what was told to me that it was a recommendation. *** MR. HUBBELL: I made it clear to the defendant that this was a recommendation. We went over the plea agreement. We discussed it last week. He was aware of the fact that this was a recommendation, the Court could impose up to 36 months. And the Court is correct, I indicated to him that it would be my conduct would [sic] be to persuade the Court that a sentence less than 36 – 24 months would be appropriate. 5.  THE COURT: Mr. Marshall, you have to tell me whether or not you want to proceed with this plea. THE DEFENDANT: Yes. THE COURT: Knowing that there’s no guarantee you’ll be sentenced to 24 months; correct? THE DEFENDANT: Yes. {¶ 8} This court has repeatedly held that a trial court is not bound to follow the state’s sentencing recommendations. See State v. Summers, 6th Dist. Lucas No. L-08-1055, 2009-Ohio-2280, ¶ 24-25, citing State v. Jones, 6th Dist. Wood No. WD-06-082, 2007-Ohio-4090; State v. Walker, 6th Dist. Lucas No. L-98-1210, 1999 WL 278120 (May 7, 1999). As set forth above, at the plea hearing appellant was informed that he could receive the maximum 36-month sentence. After some confusion, appellant agreed that the court would not be bound by the state’s sentencing recommendations and he entered a guilty plea. Appellant’s attorney further informed the court that appellant was notified that the court was not bound by the state’s recommendations. At sentencing, the trial court specifically stated the reasons for imposing the maximum sentence which included the fact that appellant had previously served a prison term and committed the offense while on community control. {¶ 9} Based on the foregoing, we find that the trial court substantially complied with Crim.R. 11(C), and that appellant subjectively understood the possibility of a 6. sentence greater than the state’s recommendation prior to entering his guilty plea. Accordingly, appellant’s assignment of error is not well-taken. {¶ 10} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 7. 

306 B.R. 322 (2004) In re Lulu DAYTON Debtor. Sears Roebuck & Co., Plaintiff, v. Lulu Dayton, Defendant. Bankruptcy No. 02-33577DM, Adversary No. 03-3297DM. United States Bankruptcy Court, N.D. California. February 24, 2004. *323 *324 Peter N. Hadiaris, Law Offices of Peter N. Hadiaris, San Francisco, CA, for debtor/defendant. David W. Thompson, Law Offices of James G. Schwartz, Pleasanton, CA, for plaintiff. MEMORANDUM DECISION ON MOTION FOR ATTORNEY'S FEES UNDER 11 U.S.C. § 523(d) DENNIS MONTALI, Bankruptcy Judge. I. Introduction The Court has considered the Motion for an Award of Attorney's Fees ("Motion") under 11 U.S.C. § 523(d)[1] filed by counsel for Lulu Dayton ("debtor") seeking recovery of attorney's fees from plaintiff Sears Roebuck & Co. ("Sears"). Upon review of the Motion and all of the papers and arguments of counsel, the court concludes that debtor is entitled to recover attorney's fees under section 523(d), including fees for bringing the Motion. II. Background[2] In November of 1997, Sears National Bank, a corporate subsidiary of Sears, issued debtor a MasterCard. On October 10, 2002, debtor used her Sears MasterCard to pay $1,127.00 to the San Francisco Department of Parking and Traffic for parking fees and fines. In the same month, debtor also incurred about $700.00 of additional charges on the account. On December 20, 2002, debtor filed a chapter 7 bankruptcy petition. Debtor retained counsel, paying a flat fee of $595.00 for handling the bankruptcy case. $200.00 for the defense of possible non-dischargeability actions was included in the $595.00 payment. On March 21, 2003, Sears commenced this adversary proceeding against debtor based on the presumption of fraud under section 523(a)(2)(C).[3] On July 16, 2003, a trial was held to determine the dischargeability of the debt. Sears failed to demonstrate to the court that debtor's payment of parking fees and fines with her credit card constituted a cash advance within section 523(a)(2)(C). The court entered judgment in favor of debtor on July 28, 2003. On September 29, 2003, debtor filed a motion *325 for an award of attorney's fees under section 523(d) for $4,585.00.[4] III. Issues A. Whether debtor can be awarded for attorney's fees pursuant to section 523(d). B. Whether debtor can recover the market rate for attorney's fees. C. Whether debtor can recover attorney's fees for the time spent making the Motion. IV. Analysis A. Debtor is entitled to recover attorney's fees. Section 523(d) authorizes payment of attorney's fees when the court finds that the creditor was not substantially justified in bringing the dischargeability action. 11 U.S.C. § 523(d).[5] The burden is on the creditor to demonstrate that the action was substantially justified. Elsie Stine v. John Flynn (In re Stine), 254 B.R. 244, 249 (9th Cir. BAP 2000); First Card v. Rory Hunt (In re Hunt), 238 F.3d 1098, 1103 (9th Cir.2001). As recognized by BAP, however, the creditor does not have to win the dischargeability suit. Stine, 254 B.R. at 250. It is sufficient for the creditor to show that it "had a reasonable basis in law or fact, or special circumstances existed." Id. at 244 (citations omitted). In this present case, Sears has not provided any evidence that its actions were reasonably based in law or fact. Sears argues that it "had substantial justification for filing a complaint" without providing this Court with any support for its position. Sears based its entire case on the premise that the payment of parking fees and fines with a credit card was a cash advance under section 523(a)(2)(C). Sears did not attempt to prove liability under section 523(a)(2)(A).[6] This court finds that Sears was not substantially justified in bringing the non-dischargeability action against debtor. Debtor's credit card statement itself indicates that the payment of parking fees and fines is not a cash advance. The credit card statement shows one payment to the San Francisco Department of Parking and Traffic in the amount of $1,127.00 on October 10, 2002. There is no notation listed on the statement that indicates this was a cash advance. Moreover, the charge for parking fees and fines appears the same as the non-cash advance charges listed on the account statement. Based on the purpose of section 523(a)(2)(C) and the legislative history, the payment of parking fines and fees is not a *326 cash advance. See S.R. Rep. No. 98-65 at 9. Congressional concern over "loading up" by a debtor prior to bankruptcy lead to the amendment of the Bankruptcy Code in 1984.[7]Id. The Senate Report provides: A debtor planning a[sic] file a petition with the bankruptcy court has a strong economic incentive to incur dischargeable debts for either consumable goods or exempt property. In many instances, the debtor will go on a credit buying spree in contemplation of bankruptcy at a time when the debtor is insolvent. S.R. Rep. No. 98-65 at 9; Citibank (South Dakota), N.A. v. Amjad Eashai (In re Eashai), 87 F.3d 1082, 1092 (9th Cir.1996) ("Congress enacted 11 U.S.C. section 523(a)(2)(C) to address the problem of the debtor who goes on a spending spree by charging the limits on his credit card and then requests discharge of this credit card debt in bankruptcy"). Congress was concerned about debtors loading up and engaging in shopping sprees within 40 days of the filing of the bankruptcy petition.[8] S.R. Rep. No. 98-65 at 9. Debtor did not purchase any goods, nor receive any services, in excess of $700.00 and Sears has not sought dischargeability on that amount alone. Debtor's use of the credit card to pay parking fees is not consistent with loading up on consumer goods nor with a shopping spree prior to filing bankruptcy. In a dischargeability action under section 523(a)(2)(C), the United States District Court for the Southern District of New York rejected the creditor's claim that debtor's balance transfer was a cash advance. Citicorp Nat'l Credit & Mortgage Services for Citibank v. Linda Welch (In re Welch), 208 B.R. 107, 111 (S.D.N.Y.1997); see also Nat'l City Bank v. Thomas Manning (In re Manning), 280 B.R. 171, 183-184 (Bankr.S.D.Ohio 2002) (balance transfer does not constitute a cash advance). For the creditor "to satisfy its burden of proof, [it] needed to establish the actual cash advances that [the debtor] received, either through the ATM withdrawals, or by drafting checks for `cash'". Welch, 208 B.R. at 111. Based on the District Court's analysis, cash advances require the use of an ATM or checks drawn on the credit card account that are deposited for cash. Id. There is no evidence here that debtor received cash as any part of the transaction between her and the San Francisco Department of Parking and Traffic. Debtor's payment of the parking fees and fines with her credit card issued by Sears, does not constitute a cash advance. Sears has failed to provide any evidence that the non-dischargeability action was substantially justified. The court's independent research clearly demonstrates that there is no reasonable basis in law or fact to characterize the payment of parking fines and fees as a cash advance subject to non-dischargeability under section 523(a)(2)(C). B. Debtor is Entitled to Receive an Award Based on the Market-Rate of Services, despite the attorney-client agreement. Sears argues that because debtor and her attorney allocated $200.00 of the total payment to an non-dischargeability defense, an award greater than $200.00 would be unjust. Debtor responds that the attorney — client agreement is not controlling, and based on Equal Access to Justice ("EAJA") litigation, the fee award *327 should be based on the market rate of services. The court agrees. As argued by debtor, the use of EAJA as a model for attorney's fee awards is appropriate in the context of section 523(d). Hunt, 238 F.3d at 1101. "[S]ection 523(d) contains the same `substantially justified' language as the EAJA and was modeled on it". Id.; H.R.Rep. No. 96-1418 at 5.[9] The market rate should be awarded "regardless of the fee agreements between the attorney and client". H.R.Rep. No. 96-1418 at 5 (emphasis added). Here, consistent with EAJA, despite the agreement between debtor and her attorney, debtor should receive an award based on the market rate of services multiplied by the hours spent. Id. By allowing debtor to recover less than the prevailing market rate for attorney's fees the purpose of section 523(d) would be violated. The purpose of section 523(d) is "to discourage creditors from initiating. . . . exception to discharge actions in hopes of obtaining a settlement from an honest debtor anxious to save attorney fees". Daniel Barch v. John Cokkinias (In re Cokkinias), 28 B.R. 304, 307 (Bankr.D.Mass.1983) (citations omitted) (the bankruptcy court awarded the debtor attorney's fees and costs under section 523(d)). By awarding less than the market rate for attorney's fees, the court would not deter creditors from bringing frivolous non-dischargeability actions. Sears has not specifically challenged the hourly rate charged by debtor's counsel as unreasonable. Based on the court's experience, the hourly rate of $175.00 charged by debtor's counsel, and the time expended by him in this case, are reasonable. C. Debtor's is Entitled to Receive Attorney's Fees for making a Motion to Receive Fees. In the request for payment of attorney's fees, debtor included an additional $875.00 for time spent preparing and prosecution of the motion for attorney's fees. Debtor argues that in EAJA litigation, attorney's fees incurred in making the motion to receive attorney's fees are awarded, and by analogy should be awarded here. Debtor is correct. In EAJA litigation, once the court determines that the action was not substantially justified, the claimant can receive attorney's fees including the attorney's fees to get the fee award. INS v. Jean, 496 U.S. 154, 163, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). As previously discussed, section 523(d) is modeled on the EAJA and therefore, it is appropriate to award attorney's fees for bringing the motion to receive attorney's fees. Hunt, 238 F.3d at 1101; H.R.Rep. No. 96-1418 at 5. This view is also consistent with the bankruptcy code. 11 U.S.C. § 330. Under section 330, the Ninth Circuit awarded attorney's fees for the time spent by counsel on a fee application. In re Nucorp Energy, Inc., 764 F.2d 655, 658-659 (9th Cir.1985). The Ninth Circuit reasoned that because fee applications are statutorily required, attorneys should be compensated for the time spent preparing *328 the fee application. Id. Similar to section 330, section 523 expressly provides for the award of attorney's fees. 11 U.S.C. § 523(d). Moreover, since section 523(d) expressly provides for an award of attorney's fees, it makes no sense not to include fees incurred in making the motion. V. Disposition For reasons stated above, the court is awarding debtor attorney's fees in the amount of $4,585.00. The court is concurrently entering an order consistent with the memorandum decision. NOTES [1] Unless otherwise indicated, all section and rule references are to the Bankruptcy Code, 11 U.S.C. section 101-1330 and the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX. [2] The following discussion constitutes the court's findings of fact and conclusions of law. Fed. R. Bankr.P. 7052(a). [3] Section 523(a)(2)(C) provides in relevant part: (C) for purposes of subparagraph (A) of this paragraph, consumer debts owed to a single creditor and aggregating more than $1,075 for "luxury goods or services" incurred by an individual debtor on or within 60 days before the order for relief under this title, or cash advances aggregating more than $1,075 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 60 days before the order for relief under this title, are presumed to be nondischargeable. 11 U.S.C. § 523(a)(2)(C). [4] $4,585.00 is derived from 26.2 hours at a rate of $175.00 per hour. [5] Section 523(d) provides: (d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney's fee for the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust. 11 U.S.C. § 523(d). [6] Section 523(a)(2)(A) provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt- . . . (2) for money, property, services or an extension or refinancing of credit, to the extent obtained by- (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition [.] 11 U.S.C. § 523(a)(2)(A). [7] The Bankruptcy Amendments and Federal Judgeship Act of 1984, effective July 10, 1984, amended section 523(a)(2) by adding subparagraph (C). [8] The 40 day presumption has been extended to 60 days under 11 U.S.C. § 523(a)(2)(C). [9] H.R. Rep No. 96-1418 at 15 states in relevant part: The Committee, after due consideration, has concluded that amendment of this provision to incorporate the standard for award of attorney fees contained in Equal Access to Justice Act strikes the appropriate balance between protecting the debtor from unreasonable challenges to the dischargeability of debts and not deterring creditors from making challenges when it is reasonable to do so. H.R.Rep. No. 96-1418.

445 N.W.2d 749 (1989) STATE of Iowa, Appellee, v. Bryan Kirby BARRETT, Appellant. No. 87-1325. Supreme Court of Iowa. August 16, 1989. Rehearing Denied September 15, 1989. *750 Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., and James W. Ramey, III, Sp. Prosecutor, for appellee. Lylea Dodson Critelli of Nick Critelli Associates, P.C., Des Moines, for appellant. Considered en banc. HARRIS, Justice. In State v. Barrett, 401 N.W.2d 184 (Iowa 1987), we reversed defendant's convictions of two murders and remanded for a new trial. Following remand, defendant was retried and again convicted on both murder charges. He brought this appeal assigning numerous errors in his second trial. The court of appeals, being equally divided, affirmed his convictions by operation of law. We affirm. The facts are most bizarre. For the most part they will not be repeated, having been detailed in our opinion on the first appeal. The bodies of two young women, Cynthia Walker and Carol Willits, were found several miles apart along a rural Muscatine County road. The circumstances made it appear, as defendant insists, that Ms. Willits had committed suicide after murdering Ms. Walker. The State's theory was that defendant murdered Walker to obtain life insurance benefits and thereafter murdered Willits in such a way to suggest the murder-suicide theory espoused by the defendant. I. A number of assignments challenge discretionary trial court rulings. Owing to a trial court's superior vantage point at trial, certain trial court determinations are placed initially within that court's province. They will not be disturbed on appeal unless we determine the trial court's discretion was abused. Abuse exists only when the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Pappas, 337 N.W.2d 490, 493 (Iowa 1983). II. One challenged discretionary ruling allowed testimony by an expert witness for *751 the State. Vincent DiMaio, a physician and forensic pathologist, is the chief medical examiner and director of the regional crime laboratory for Bexar County (San Antonio), Texas. He testified extensively concerning his conclusion that Carol Willits did not commit suicide but was murdered. The challenged testimony came during Dr. DiMaio's redirect testimony. He testified it was common practice for forensic pathologists to discuss cases when coming to professional conclusions. The witness was then asked whether he "found any of your colleagues who have given you persuasive reason to disregard your opinion that this was a homicide as opposed to a suicide in the death of Carol Willits?" Over the defendant's hearsay objection, the trial court allowed the witness to state that, no, his colleagues had not caused him to change his opinion. In State v. Judkins, 242 N.W.2d 266 (Iowa 1976), the trial court allowed an expert witness to testify that his opinion was confirmed by a handwriting expert. We disapproved the testimony, finding it was indirect or obscured hearsay. Id. at 267. Since our Judkins holding we adopted the Iowa rules of evidence. Rule 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Other states, interpreting a similar rule, have allowed testimony not unlike that challenged here. A very similar challenge was at issue in State v. Jones, 322 N.C. 406, 368 S.E.2d 844, 846 (1988). A fingerprint expert testified regarding an office quality control system whereby identifications were verified by a second examiner before the report could be mailed out. Id. The court held this testimony was properly admitted as part of the basis for the expert's opinion. Id. Federal courts also follow this rule. See Lewis v. Rego Co., 757 F.2d 66, 73 (3d Cir.1985) (discussions with colleagues admissible as kind of material on which experts base their opinions); United States v. Posey, 647 F.2d 1048, 1051 (10th Cir.1981) (chemist allowed to testify regarding review of other chemist's analysis); American Universal Ins. Co. v. Falzone, 644 F.2d 65, 66 (1st Cir.1981) (fire marshal allowed to testify on opinion as to cause of fire based in part on reports of other investigators). We have a liberal tradition in the admission of opinion testimony. See State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). The liberal tendency is evident in the adoption of the rule of evidence 703. We are, however, inclined to disapprove this challenged testimony. Rule of evidence 703 does not go so far as to completely overrule our holding in Judkins. It does not empower one expert witness to state other experts also subscribe to the witness's stated conclusion. Additional foundation testimony, missing here, would be required in order for this testimony to be admissible under rule 703. To form a basis for admitting the challenged statement it would first be necessary to show that the opinion of his colleagues was the type of "fact or data" reasonably relied upon by experts in the field in reaching their conclusions. The usual facts or data, under the rule, would ordinarily be lab or other test results, charts, texts, etc. We agree with defendant's challenge to the testimony, but defer for now considering whether it amounts to abuse requiring a reversal. III. We find no abuse in another evidentiary ruling. Although defendant did not testify the record revealed that defendant told the police he had a sexual relationship with Ms. Willits. A prosecution witness who was a friend of Carol Willits later testified of her good character and her relationship with defendant. She stated Ms. Willits had firm convictions against premarital sex. On redirect examination the prosecutor asked the witness what she would think if defendant said he *752 had sex with Carol as early as December of 1978. The defense objected to the question on the ground of hearsay, that it was speculative and self-serving, and it improperly asked the witness to express an opinion on the credibility and truthfulness of defendant. After the court overruled the objection the witness answered that she "wouldn't believe that to be true." Barrett contends the trial court erred in admitting this testimony because the credibility of the witnesses or parties to a lawsuit is within the sole province of the fact finder. He cites State v. Myers, 382 N.W.2d 91 (Iowa 1986). The case has no application to the facts here. Myers involved expert opinion testimony on the credibility of a complaining witness who was a child and allegedly the victim of sexual abuse. Id. at 97. The testimony here, by a layperson, did not so much address defendant's credibility as it stated an opinion about Carol Willits' character and behavior. Indeed the witness told the jury she scarcely knew defendant and had only met him a couple of times. IV. As in defendant's first trial, the State relied heavily on a journal written by defendant in 1977, in which he described a plot to kill his wife. In the journal defendant related a plan, later abandoned, to kill his wife in order to recover life insurance proceeds. Because of the similarity between that plan and the State's theory in the killings here, the State contends the journal was admissible to establish a pattern of behavior. In defendant's first appeal we agreed the journal was admissible to demonstrate motive under Iowa rule of evidence 404(b). Defendant however contends the foundation for admitting the journal was not established on the retrial. In preparing for the second trial defendant took special note of the language in our first opinion relating to admitting the journal: ...the somewhat irregular circumstances surrounding defendant's actions in obtaining insurance on the life of his estranged wife approximately two years earlier.... Barrett, 401 N.W.2d at 188. Accordingly, at his second trial, defendant more fully explored the events surrounding his purchase of his wife's life insurance policy. He contends it was bought after she had lost her job and, because it was an employment benefit, also had lost her life insurance. Defendant thinks this showing dissipated any sinister implications which may have been associated with the wife's insurance policy. We think defendant's additional testimony does not destroy the foundation for the journal. Defendant's new explanations for his wife's life insurance do not preclude the possibility that a later malicious motive took hold. The new explanations go only to the weight the jury should accord the journal, not to its admissibility. There was no abuse in admitting the journal. V. Defendant's first trial took place in Muscatine County. On remand following our earlier opinion he moved for and was granted a change of venue to Cedar County, where this trial was held. Asserting that pretrial publicity would also deny him a fair trial in Cedar County, defendant moved for a second change of venue. This request was denied and defendant cites the denial as a separate assignment of error. A defendant who seeks a reversal on such a basis must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). Our review is de novo; we reverse only if the trial court abused its discretion in denying the motion. Id. Barrett argues his case is similar to State v. Robinson, 389 N.W.2d 401 (Iowa 1986), and should likewise be reversed. In Robinson we found: Nearly everyone on the jury panel had heard or read about the case and many were acquainted with the prosecution witnesses.... All panel members except one knew something about the case *753 and ten of the first sixteen questioned had already formed an opinion. Id. at 403. The facts here do not square with Robinson. Fifteen members of this panel had heard nothing at all of the case. Only two prospective jurors stated they could not set aside their knowledge of the case and reach their verdict on the basis of the facts heard at trial. These two were struck for cause. No one on the panel knew any of the parties or witnesses. The facts here more closely resemble those in State v. Gavin, 360 N.W.2d 817 (Iowa 1985), which also involved a retrial following reversal. Venue for the retrial was changed from Scott to Cedar County. Notwithstanding extensive pretrial publicity we found no abuse in the trial court's refusal to grant a second change. We said: Impartiality does not mean complete juror ignorance of issues and events. The mere fact that a juror has been exposed to information concerning the case does not justify the conclusion that the juror is prejudiced. For the purpose of determining juror prejudice, the relevant question is not what a juror has been exposed to, but whether the juror holds such a fixed opinion of the merits of the case that he or she cannot judge impartially the guilt or innocence of the defendant. Id. at 819 (citations omitted). Defendant urges that the court erred in not moving the case to Jackson County. He produced a survey which, he contends, shows it to be the county in his district with the least amount of prejudice. Our system however does not accord the defendant the privilege of designating the county to which venue is to be moved. Harnack v. District Court of Woodbury County, 179 N.W.2d 356, 360 (Iowa 1970) ("A defendant on motion for change of venue does not have a right to select a particular county for his trial."). The trial court did not abuse its discretion in denying the motion for a second change of venue. VI. Defendant challenged nine prospective jurors for cause. Two challenges were sustained. Seven challenges were denied and the denials are assigned as error. Each challenged juror indicated some outside knowledge of the case but, upon examination by the court, expressed an ability and willingness to set aside any prior knowledge pending the trial evidence. Defendant contends the court's further inquiry violated the rule in State v. Beckwith, 242 Iowa 228, 236-38, 46 N.W.2d 20, 24-26 (1951). In Beckwith the trial court's persistent questioning resulted in the jurors' retreating from their initial answers. The record is completely unlike the one in Beckwith. The court's inquiry here was not aimed at persuading a juror to compromise a valid concern about disqualification for cause. The judge here was obviously bent only on learning the jurors' state of mind. Under the three-factor analysis explained in State v. Williams, 285 N.W.2d 248, 267 (Iowa 1979), we find no abuse. Neither do we find abuse in the trial court's denial of defendant's motion to sever the two murder charges for separate trials under Iowa rule of criminal procedure 6(1). See State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986). VII. Defendant thinks the trial court abused its discretion in not granting a mistrial because of prosecutorial misconduct. To prevail on this assignment defendant must show both the misconduct and that he was prejudiced by it. State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). It is also a discretionary ruling. Id. Although some of the matters of which defendant complains are not commendable, we cannot say the court abused its discretion in determining defendant was not prejudiced by them. VIII. Defendant contends there was insufficient evidence to support his conviction. Of course we review all evidence in the light most favorable to the verdict and, because of the verdict, give the State benefit of all reasonable inferences which arise from the evidence. A verdict is binding on us if there is substantial evidence to support it. Substantial evidence *754 means evidence which could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Thompson, 326 N.W.2d 335, 337 (Iowa 1982). As can be seen from the facts as related in our opinion on the first appeal, this is a most perplexing case. This is necessarily so because the question comes down to whether the defendant is an innocent bystander of a murder and suicide or is a murderer who devised a clever way to make his crime appear to be a murder and suicide. The facts argued by defendant, however, go only to supporting his theory of the case. They do not detract from the sufficiency of the State's case. Although it could have done so, the jury was not bound to accept defendant's theory. There was also ample evidence from which a rational jury could find all the elements of defendant's guilt for both murders. IX. We have reviewed these and all defendant's arguments and contentions and, with the one exception mentioned in division II, find them without merit. It remains for us to determine whether the admission of the one answer to one question by one witness in the second protracted and complicated trial requires a reversal. The rule is that: ...the admission of hearsay evidence over a proper objection is presumed to be prejudicial error unless the contrary is affirmatively established. The contrary is established when the record shows that the challenged evidence did not impact on the jury's finding of guilt. State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984) (citations omitted). Defendant argues the expert's answer— that his conclusion was endorsed by other of his unnamed colleagues—was damaging to his case. He points out that the key factual issue was whether Carol Willits was murdered or committed suicide. This was the central subject of the expert's testimony. Defendant produced three expert witnesses to dispute the opinion of Dr. DiMaio. The defendant complains that the State, by the challenged testimony, was able to counter his array of expert witnesses before the jury without producing them for cross-examination. We are however convinced the statement did not impact on the jury's verdict. In the first place any chance the jury was swayed by the statement seems most remote. The fact that the witness's unnamed close professional colleagues where he worked agreed with him is not surprising. The jury likely would be more impressed if the witness had claimed endorsement by independent experts. This was a second trial. Two juries have unanimously agreed on defendant's guilt. That fact is of some significance in evaluating the possibility of prejudice. See State v. Burris, 198 Iowa 1156, 1181, 198 N.W. 82, 92 (1924); State v. Cross, 12 Iowa 66, 68 (1861). Defendant was superbly represented at trial and on appeal. He received a fair, if not absolutely perfect, trial. He is not entitled to a third one. AFFIRMED. All Justices concur except SCHULTZ, CARTER and LAVORATO, JJ., who dissent. LAVORATO, Justice (dissenting). I dissent to division IX. As the majority points out, the admission of hearsay evidence over a proper objection is presumed to be prejudicial error unless the contrary is affirmatively established. The contrary is established when the record shows that the challenged evidence did not impact on the jury's finding of guilt. In my view of the record, the majority turns this rule on its head. Far from affirmatively establishing that Dr. DiMaio's hearsay response did not impact on the jury's finding of guilt, I think the record establishes the opposite. A proper analysis of the prejudice issue necessarily requires an examination of the facts, an explanation of the theories of *755 both sides coupled with a determination of which theory the facts best support, an evaluation of the importance of the experts and their testimony, and the setting in which the hearsay response was solicited. As the majority notes, the facts are indeed bizarre. They involve the deaths of two young women: Cynthia Walker and Carol Willits. On February 23, 1979, Walker's body was found on a road in Muscatine. She had been shot three times. Several miles away, Willits' body was found in her vehicle with the engine running. She had a single gunshot wound to her right temple. The wound was inflicted by a gun found in her lap—the same gun that had been used to kill Walker. Willits had purchased the gun forty-eight hours earlier. Murder-homicide was the investigating authorities' initial theory—the same theory the defense used at trial. A "Dear Jane" letter from Barrett to Willits was found in her vehicle in addition to a valentine from Walker to Barrett. Barrett told the authorities that he had known both women for several months, that he had been romantically involved with both women, and that he had had sexual relation with Willits. He gave the following account of the events leading up to the deaths of the two women. On February 16 he spent the night with Walker in his home. About 2 a.m. Willits came to the home and caught the couple in bed. An argument then ensued. Willits during this time made threats of suicide. Because of what happened on February 16, Barrett wrote the "Dear Jane" letter severing their relationship. Walker's mother testified that on February 22, 1979, Cynthia received a phone call from Willits, who made arrangements to pick up Cynthia so the two of them could travel to Iowa City to meet a mutual friend. Cigarette butts of the type of cigarettes Cynthia smoked were found in the ash tray of Willits' vehicle. In addition, hairs were recovered from Willits' vehicle similar to the hairs of both women. Sand found on the bumper of Willits' vehicle was compared to and found similar to sand found at the scene where Walker's body was discovered. Sand in Willits' shoes was similar to sand found in Walker's shoes. Walker died between 10 p.m. and 1 a.m. Willits' died between 10:30 p.m. and 1 a.m. The State advanced the following theory: Barrett murdered Walker to obtain the benefits of an insurance policy on her life; he then murdered Willits in such a way as to make it appear that Willits had killed Walker and then committed suicide. Necessarily, it was crucial for the State to disprove that Willits' death was a suicide. Hence, a good share of the State's evidence focused on this part of its case. As to the insurance theory, the jury could have found the following facts. Barrett had been involved in a relationship with Walker prior to her death. In the latter part of 1978 he promised she could ride with him to California. As a condition of the trip, the two were to take out an insurance policy on Walker's life. Although Barrett did not take Walker on the trip, the insurance was nevertheless purchased. The insurance policy was for $50,000 and had a double indemnity clause providing for double recovery if Walker died a nonnatural death. Barrett was the sole beneficiary of the policy, which was in effect at the time of Walker's death. Critical to the State's theory was a journal written by Barrett in 1977, which is the subject of division IV of the majority's opinion. As the majority notes, in the journal Barrett related a plan to kill his then wife so that he could recover life insurance proceeds. Although the plan was never carried out, the State introduced the journal to establish a pattern of behavior. Simply put, the theory was that if he could plan it then, he could do it now. Barrett attempted to discount the relevancy of the journal by showing that he purchased the policy after his wife had lost her job. Because she had lost her job she had also lost her life insurance, which was an employment benefit. The State offered testimony from Willits' friends to rebut Barrett's claim that he had *756 had a romantic relationship with her and that he had had sexual relations with her. The State produced some evidence tending to rebut Barrett's story about the confrontation on February 16 and some evidence from which the jury could possibly have found that the gun had been purchased at Barrett's request. The State produced no direct evidence that Barrett was at the scene of either death. It did, however, produce two witnesses who had seen two cars on the road where Walker died at about 12 a.m. and 12:30 a.m. of the morning in question. One car was a Ford Grenada, the model Willits drove. The other car had rectangular headlights, similar to the Buick automobile belonging to Barrett's parents. Absent the testimony of the experts, the case was very close. Given the State's burden of proof, however, I think a jury would be hard pressed to say that the evidence, at this juncture, better tended to support the State's theory for conviction of murder. In light of this evaluation, it becomes clear that the testimony of the experts was extremely crucial. The State produced one expert, Dr. DiMaio, to negate the defense's theory of murder-suicide. Dr. DiMaio, the Chief Medical Examiner and Director of the Regional Crime Laboratory for Bexor County, Texas, had had considerable experience with suicides. He had been employed as a forensic pathologist since 1969. The State had asked DiMaio to review photographs of the scene, the autopsy reports, and the police investigative reports, and to determine whether Willits' death was a homicide or a suicide. His opinion was that her death was a homicide. DiMaio listed six factors he found significant in reaching his conclusion. The first factor involved the blindfold found around Willits' eyes. In his experience, he had seen no suicide in which a blindfold was used. He thought it would be possible but rare. The second factor related to the location of the knot in the blindfold. The knot was on the left side of the head. According to DiMaio, a right-handed person, as Willits was, would tie the knot either in the center of the head or more to the right because it is easier using the right hand to tie the knot. Photographs of Willits' body showed she was wearing cotton work gloves that were obviously too big for her hands, the third significant factor. In DiMaio's opinion, one could not tie a knot with these gloves on. Photographs also showed that Willits' gun hand was down with the gun on top of it. In DiMaio's opinion, the recoil of the gun would have twisted the gun hand to the right. Typically, in his experience, the gun is found on the seat next to suicide victims or clutched in their hands. The position of the gun barrel at a straight angle to the temple and the straight path of the bullet through the head were also significant to DiMaio. In his opinion it would be physically difficult if not impossible to shoot oneself in this manner. In his experience, people shoot themselves by canting or angling the gun. The photographs also showed a paper bag under Willits' arm. It was still intact, opened, and expanded. According to DiMaio, had the gun fallen it would have crushed the bag. The defense counsel vigorously cross-examined DiMaio with the intention of discrediting his opinion and securing concessions. Counsel brought out the fact that DiMaio had reached his conclusion on the very day the authorities first contacted him. In addition, counsel was able to secure some concessions that were rather helpful to the defense. For example, it was conceded that the number two cause of death among young people is suicide; that most suicide victims shoot themselves in the right temple; that in twenty to twenty-five percent of the cases, suicide notes are left near the scene; that the notes, as in this case, are generally brief, one page or less; that such notes are usually written within hours of the suicide; that there was no sign of a struggle at the scene in the present case; that the blindfold here does not rule out suicide; and that the forensic *757 experts employed by the defense were known to DiMaio and were competent. Turning his attention to some of the six factors listed as significant by DiMaio, counsel also secured some concessions here. For example, DiMaio admitted that it would be easy for someone who is blindfolded to lean forward, cock the head, and shoot. DiMaio admitted there was no physical evidence to refute this possibility. He also admitted that although he had not seen suicides in which a blindfold had been used, it can and has occasionally happened. He further conceded that Willits, sitting in her automobile, could have lowered her left elbow to avoid hitting the car window and tied the knot in that position. Had that happened the knot would have been on the left side of the head. DiMaio, in response to defense counsel's questioning, admitted that in a deposition prior to trial, he had said that the fact Willits purchased the gun alone less than forty-eight hours before her death suggested suicide. He also admitted that the angle of the bullet was consistent with suicide. Finally, he admitted that a gun held against the head by a suicide victim would cause a wound identical to one held at the same spot by a perpetrator. Defense counsel brought out the fact that Willits had told her roommate that if she were to do something terribly wrong, she would commit suicide and use a blindfold around her head. DiMaio conceded he could not remember whether he had this piece of information when he first rendered his opinion to the authorities. Against this background, the prosecutor began his redirect with an attempt to rehabilitate DiMaio. After several questions and answers, the examiner attempted to bolster DiMaio's opinion with the objectionable hearsay: Q. I think you mentioned to me you have three or four fellows in your office, other pathologists. You like to have somebody to be able to argue your cases with, don't you? A. Right, if you're by yourself, after a while you develop this God complex. You don't only talk to yourself, you begin to believe you know everything. It's nice to have other people who say, no, you don't know what you're talking about and argue with you because it makes you think, and one of the dangers of a one-man office is, again, you get this God complex, and that's why you like to have people to tell you you don't know what you're talking about and argue with you. Q. You've got that in your organization? A. Oh, definitely, yes. Q. You don't allow the God complex, to say it—A. No, believe me. Q. Doctor, have you in fact almost always or—I guess always worked in a situation where you've worked with other forensic pathologists, you've debated and discussed your cases? A. I've always worked, yes, sir, in offices with multiple medical examiners. Q. Have you, in fact, had other colleagues of yours whom you respect in the field of forensic pathology discuss this particular case with you? Have you gone over this with others? A. Yes, sir. Q. What sort of comments do you get from them? DEFENSE COUNSEL: Excuse me. That calls for hearsay, your Honor. Q. Are these the sorts of things you rely upon in your medical practice, Doctor? A. I listen to them, yes. Q. And they are the sorts—these are the individuals—other individuals to whom you give credence and credibility when you make opinions and defend or argue your opinions? A. Yes, sir. Q. What have you received by way of comment from those types of persons? DEFENSE COUNSEL: That calls for hearsay, your Honor, with respect to this matter; objected to for that reason. PROSECUTOR: It's an exception for the reason that it's the type of comment that the Doctor has indicated that in his field is relied upon. DEFENSE COUNSEL: It doesn't matter to me, the exception is that's hearsay and objected for that reason. .... *758 THE COURT: Your response, Mr. Ramey, for the record. PROSECUTOR: My response was simply that, yes, your Honor, it's hearsay but it's the type of hearsay that has an exception under the hearsay rules. It also has the exception contained within the opinion rule of the Iowa rules of evidence and the federal rules of evidence. DEFENSE COUNSEL: Your Honor, as a matter—May I make further record? THE COURT: Please. DEFENSE COUNSEL: It's also calling for this witness to express opinions of other persons that were not relied upon to make the judgment that he made on the 29th day of November of 1979. It's objected to for that reason as well. It doesn't have any probative value as it relates to this matter. THE COURT: The objection's overruled. Q. Doctor, I'm not worried about your opinion in November of 1979. You have continued to discuss this case with colleagues since that time, have you not? A. Yes, sir. Q. And in discussing this case with your fellow colleagues in the areas of forensic medicine, forensic pathology, have you detailed to them the facts that you've discussed here in front of this jury? A. Yes, sir. Q. In fact, I believe you also have on occasion discussed with them the so called suicide note, the note that was found on the dash? A. Yes, sir. Q. And in that respect, have you found any of your colleagues who have given you persuasive reason to disregard your opinion that this is a homicide as opposed to a suicide in the death of Carol Willits? DEFENSE COUNSEL: Excuse me. That's objected to for the reasons already articulated. That calls for hearsay on the part of this witness. THE COURT: Objection overruled. A. No, sir. The defendant's three experts also testified to their considerable experiences with suicide. One was a forensic scientist, another a medical doctor, and the third a forensic pathologist. The thrust of their testimony was directed at discrediting the six factors relied on by DiMaio. They also discussed the various items of physical evidence, which, in their views, were consistent with their opinions that Willits' death was the result of suicide. Whether Willits' death was the result of suicide or murder depended in large measure on the testimony of these experts. The prosecutor's redirect examination of DiMaio was an obvious attempt to shore up his testimony. Skillful cross-examination had done its damage. Perhaps the prosecutor, anticipating damaging testimony from defense experts who were waiting in the wings, was attempting to even up the odds. Doing so by soliciting hearsay testimony concerning opinions of other experts had, I think, its intended effect. The evil in such a procedure, of course, lay in the defendant's inability to challenge these opinions through cross-examination. In my view, such unchallenged opinions on a critical issue served to tip the scales in favor of the State in a case that was obviously close. I would reverse and remand for a new trial. SCHULTZ and CARTER, JJ., joins this dissent.

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 38769 (rem) ________________________ UNITED STATES Appellee v. Yogendra RAMBHAROSE Staff Sergeant (E-5), U.S. Air Force, Appellant ________________________ On Remand from the United States Court of Appeals for the Armed Forces Decided 13 July 2018 ________________________ Military Judge: Tiffany M. Wagner (arraignment); Lynn Watkins. Approved sentence: Bad-conduct discharge, confinement for 15 months, and reduction to E-1. Sentence adjudged 21 October 2014 by GCM con- vened at Joint Base Charleston, South Carolina. For Appellant: Major Annie W. Morgan, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mat- thew L. Tusing, USAF; Mary Ellen Payne, Esquire. Before HARDING, KIEFER, and SPERANZA, Appellate Military Judg- es. Judge SPERANZA delivered the opinion of the court, in which Senior Judge HARDING joined. Judge KIEFER filed a separate dissenting opinion. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________  United States v. Rambharose, No. ACM 38769 (rem) SPERANZA, Judge: Appellant was charged with five specifications of abusive sexual contact by bodily harm in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920, for allegedly touching JF on divers occasions, touch- ing Senior Airman (SrA) BN, touching SrA HK, and touching SrA TW on two separate occasions without their consent and with an intent to arouse or grat- ify his sexual desires. Appellant pleaded guilty to the lesser-included offense of assault consummated by a battery for unlawfully touching JF on one occa- sion, touching SrA BN, and touching SrA TW on one occasion, in violation of Article 128, UCMJ, 10 U.S.C. § 928. The military judge, sitting as a general court-martial, convicted Appellant of committing the greater offense of abu- sive sexual contact upon JF on divers occasions and upon SrA HK with excep- tions and substitutions. Appellant was acquitted of the remaining specifica- tion involving SrA TW and the greater offenses involving SrA BN and SrA TW. The military judge sentenced Appellant to a bad-conduct discharge, 18 months of confinement, and reduction to the grade of E-1. The convening au- thority approved only 15 months of confinement but otherwise approved the adjudged sentence. I. BACKGROUND On initial appeal, Appellant contended that his convictions for offenses re- lated to JF and SrA HK were legally and factually insufficient; the testimony of a special agent amounted to impermissible, prejudicial “human lie detec- tor” evidence; and the military judge erroneously admitted improper sentenc- ing evidence. This court also reviewed whether the military judge erred by using statements from Appellant’s guilty plea inquiry to determine the pro- priety of a false exculpatory statement argument in findings and whether the military judge erred by considering charged conduct as possible propensity evidence under Military Rule of Evidence (Mil. R. Evid.) 413 in light of Unit- ed States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). In United States v. Rambharose, No. ACM 38769, 2016 CCA LEXIS 756 (A.F. Ct. Crim. App. 15 Dec. 2016) (unpub. op.) (Rambharose I), we agreed that Appellant’s conviction of abusive sexual contact upon SrA HK was factu- ally insufficient. Thus, this court dismissed that specification with prejudice and reassessed Appellant’s sentence to a bad-conduct discharge, confinement for 13 months, and reduction to E-1. Finding no other errors that materially prejudiced Appellant, we affirmed the remaining findings. However, the United States Court of Appeals for the Armed Forces (CAAF) granted Appellant’s petition and reviewed the following issue: “WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE EVIDENCE OF 2  United States v. Rambharose, No. ACM 38769 (rem) CHARGED SEXUAL MISCONDUCT UNDER M.R.E. 413 TO SHOW PRO- PENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).” United States v. Rambharose, 76 M.J. 262 (C.A.A.F. 2017). The CAAF summarily disposed of this issue, setting aside our opinion and returning Appellant’s record of trial “to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Mili- tary Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).” United States v. Rambharose, 76 M.J. 441 (C.A.A.F. 2017) (Rambharose II). II. DISCUSSION With the exception of the legal and factual sufficiency of the evidence supporting Appellant’s conviction for abusive sexual contact upon JF on di- vers occasions, which we do not decide, we reach the same findings we previ- ously reached with respect to matters raised outside the issue granted by the CAAF and remanded for our consideration. See Rambharose I, 2016 CCA LEXIS 756; Rambharose, 76 M.J. 262; Rambharose II, 76 M.J. 441. Conse- quently, we only need to evaluate Appellant’s conviction of abusive sexual contact upon JF on divers occasions in light of Hukill and subsequent prece- dent. The current legal landscape compels us to set aside this conviction. Appellant pleaded guilty to the lesser-included offense of assaulting JF by grabbing her breast while at work on a single occasion. The Government pro- ceeded to findings on the greater offense of abusive sexual contact on divers occasions. JF testified about the incident to which Appellant pleaded guilty and one other time Appellant allegedly grabbed her breast in the workplace. The Government also presented Appellant’s statements to investigators in which Appellant admitted to intentionally touching JF’s breast on one occa- sion—the one to which he pleaded guilty. During his providence inquiry with the military judge on this lesser-included offense, Appellant’s description of the offense was largely consistent with his pretrial statements to law en- forcement. Appellant claimed that when he reached for the computer mouse on JF’s desk, JF said, “I thought you were going to grope me.” Appellant re- sponded “how, like this” and touched her breast. In order to convict Appellant of abusive sexual contact upon JF on divers occasions, the Government needed to prove beyond a reasonable doubt that Appellant touched JF’s breast on the additional occasion and that on both oc- casions Appellant intended to gratify his sexual desire. In addition to provid- ing evidence to prove the specification related to JF, the Government provid- ed evidence in support of the other abusive sexual contact allegations involv- ing SrA BN, SrA HK, and SrA TW. The military judge permitted the Gov- 3  United States v. Rambharose, No. ACM 38769 (rem) ernment to use the evidence of each charged sexual offense pursuant to Mil. R. Evid. 413 to demonstrate Appellant’s propensity to commit the other charged sexual offenses. This was prejudicial, constitutional error. The use of charged-conduct evidence as Mil. R. Evid. 413 propensity evi- dence for other charged offenses creates constitutional concerns regardless of the forum. Hukill, 76 M.J. at 222. As such, the erroneous use of evidence in this case must be tested for prejudice under the standard of harmless beyond a reasonable doubt. Id. The error is harmless beyond a reasonable doubt when the error did not contribute to the appellant’s conviction or sentence. Hills, 75 M.J. at 357. An error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error might have contributed to the conviction. Id. In testing Appellant’s case for constitutional error in light of Hukill, we considered whether the Government’s evidence, however credible, constituted evidence so overwhelming that it removed any reasonable possibility that the error contributed to Appellant’s conviction. We find that the evidence of Ap- pellant’s abusive sexual contact upon JF on divers occasions was not so over- whelming and did not remove any such possibility. While our dissenting col- league reached the opposite conclusion as to a single incident, we cannot ig- nore the military judge’s acknowledgement that she would consider evidence of the charged offenses in a manner later prohibited by Hukill. Even though we find JF credible and the circumstantial evidence of Appellant’s intent strong, the evidence of Appellant’s specific intent on the two occasions he touched JF’s breast was not overwhelming. Appellant’s specific intent had to be proven by circumstantial evidence, and we are convinced that the military judge considered all circumstances—to include propensity evidence related to the charged offenses as she said she would—to discern Appellant’s intent and find him guilty of the abusive sexual contact. Moreover, JF’s testimony re- garding the additional incident establishing “on divers occasions” lacked spe- cific evidence, such as a pretrial admission by Appellant that the additional incident occurred. Instead, the evidence of the other charged offenses provid- ed independent, additional evidence of Appellant’s intent and ready-made rebuttal to Appellant’s argument that he was joking when he grabbed JF’s breast one time. As a result, we cannot be confident there is “no reasonable possibility” that the propensity evidence admitted under Mil. R. Evid. 413 contributed to the verdict. Hukill, 76 M.J. at 222. In light of our conclusion that the error is not harmless beyond a reasona- ble doubt, we set aside Appellant’s conviction for the greater offense of abu- sive sexual contact upon JF on divers occasions, as charged in Specification 1. Consistent with Appellant’s guilty plea, the evidence supports a finding of guilty of the lesser-included offense of assault consummated by a battery of 4  United States v. Rambharose, No. ACM 38769 (rem) JF on one occasion. Therefore, this court affirms only so much of the finding as includes the lesser-included offense of assault consummated by a battery of JF on the one occasion to which Appellant pleaded guilty. See United States v. Conliffe, 67 M.J. 127, 133 (C.A.A.F. 2009); cf. United States v. Armstrong, ___ M.J. ___, No. 17-0556/AR (C.A.A.F. 28 Jun. 2018). Our conclusions as to the providency of Appellant’s guilty pleas to the lesser-included offenses of assault consummated by a battery involving BN and TW and the factual suf- ficiency of Appellant’s conviction of abusive sexual contact upon SrA HK re- main unchanged. Appellant’s pleas to the offenses involving BN and TW were provident. The evidence of abusive sexual contact upon SrA HK was factually insufficient and thus the finding of guilty as to Specification 3 is set aside and the specification is dismissed with prejudice. A rehearing on the set-aside finding of the greater offense of abusive sexual contact upon JF on divers oc- casions is authorized. III. CONCLUSION The finding of guilty as to the lesser-included offense of assault consum- mated by a battery of JF except the words “on divers occasions” for Specifica- tion 1 of the Charge is AFFIRMED. The findings of guilty as to the lesser- included offenses of Specifications 2 and 4 are AFFIRMED. The finding of guilty to the lesser-included offense of assault consummated by a battery, in violation of Article 128, UCMJ, for the Charge is AFFIRMED. The finding of guilty for the greater offense of abusive sexual contact upon JF on divers occasions as charged in Specification 1 is SET ASIDE. The find- ing of guilty as to Specification 3 is SET ASIDE and the specification is DISMISSED WITH PREJUDICE. The finding of guilty to the Charge un- der Article 120, UCMJ, is SET ASIDE. A rehearing of the set-aside findings for Specification 1 and the Charge is authorized. The sentence is SET ASIDE. A rehearing on the sentence is authorized. Article 66(c), UCMJ, 10 U.S.C. § 866(c). KIEFER, Judge (dissenting): I respectfully dissent from my colleagues’ opinion setting aside the finding of guilty to Specification 1 of abusive sexual contact on divers occasions under Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. I find that full evaluation of the Government’s case, free from any consideration of propensity issues, yields overwhelming evidence that Appellant acted with the intent to gratify his sexual desire on one of the two alleged occasions. Be- 5  United States v. Rambharose, No. ACM 38769 (rem) cause of the strength of the Government’s case, I am convinced there is no reasonable possibility the error permitting consideration of other charged of- fenses under Military Rule of Evidence (Mil. R. Evid.) 413 might have con- tributed to the conviction. Accordingly, I would affirm the finding of guilty to abusive sexual contact of JF on the one occasion to which Appellant pleaded guilty to the lesser-included offense of assault consummated by a battery. The United States Court of Appeals for the Armed Forces (CAAF) remanded this case to us to address whether the holding in United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), requires reversal of Appellant’s conviction for abu- sive sexual contact under Specification 1. In this specification, Appellant was charged with wrongfully touching a female co-worker’s breast with the intent to gratify his sexual desire on two separate occasions under Article 120, UCMJ. Appellant pleaded guilty to the lesser-included offense of assault con- summated by a battery on a single occasion under Article 128, UCMJ, and not guilty to the other alleged incident. Appellant asserts that the military judge’s decision to allow the parties to argue Mil. R. Evid. 413 constituted er- ror that was not harmless beyond a reasonable doubt. The factual record for the greater offense of abusive sexual contact con- sisted of JF’s sworn in-court testimony, Appellant’s videotaped interview with the Air Force Office of Special Investigations (AFOSI), Appellant’s sworn written statement to investigators, and Appellant’s statements as part of the providence inquiry on the lesser-included offense. At trial, JF testified that she and Appellant were co-workers in the same office. One day during work, Appellant came to her desk to help with a work- related issue. While there, he reached down and cupped her breast. In re- sponse, she moved his hand away. JF further testified that on a subsequent occasion, Appellant came to her desk and again grabbed her breast. This time she moved his hand away and bent his fingers backward. During his AFOSI interview, Appellant initially denied touching anyone or engaging in any wrongdoing. As the interview progressed and additional facts were presented, Appellant admitted that he had inappropriately touched multiple women, including JF. With respect to JF, Appellant stated that he went to her desk to help with a work issue on her computer and when he reached for her mouse, JF said she thought he was going to “grope” her. Appellant admitted that he then grabbed her breast in response to this statement. Similarly, in his written statement to AFOSI, Appellant admitted he grabbed JF’s breast on one occasion and characterized his conduct as wrong and inappropriate. At trial, Appellant pleaded guilty to assault con- summated by a battery under Article 128, UCMJ, for wrongfully touching JF’s breast on one occasion in the workplace. During the plea inquiry, Appel- lant admitted under oath that he intentionally grabbed JF’s breast without 6  United States v. Rambharose, No. ACM 38769 (rem) her consent in response to her allegedly commenting that she thought he was going to “grope” her. Appellant said he thought the incident was funny at the time. JF disagreed with this characterization and testified that Appellant’s touching of her breast was not a joke. Prior to findings argument, trial counsel requested the military judge consider evidence of other charged offenses for propensity purposes under Mil. R. Evid. 413. Defense counsel did not object, and the military judge agreed to allow the parties to argue Mil. R. Evid. 413. The military judge did not specify what evidence she might consider under this rule or for which of- fenses. She also stated that she understood the concept of spillover, how to apply that instruction with respect to the various charged offenses, and how each offense stands on its own. The military judge ultimately found Appellant guilty of the charged offense of abusive sexual contact on divers occasions against JF. I agree with my colleagues’ conclusion, as we found in United States v. Rambharose, No. ACM 38769, 2016 CCA LEXIS 756 (A.F. Ct. Crim. App. 15 Dec. 2016) (unpub. op.) (Rambharose I), that the military judge’s de- cision to allow the parties to argue evidence of other charged offenses for pro- pensity purposes was plain error. A military judge’s decision to admit evi- dence is reviewed for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The meaning and scope of M.R.E. 413 is a question of law that we review de novo.” United States v. Hills, 75 M.J. 350, 354 (C.A.A.F. 2016) (citation omitted). In Hills, the CAAF analyzed the use of charged offenses for propensity purposes in the context of a members’ case, which included Mil. R. Evid. 413 instructions. The court noted that the instructions “provided the members with directly contradictory statements about the bearing that one charged offense could have on another” and “seriously muddled” the presumption of innocence. Hills, 75 M.J. at 357. “It is antithetical to the presumption of inno- cence to suggest that conduct of which an accused is presumed innocent may be used to show propensity to have committed other conduct of which he is presumed innocent.” Id. at 356. The CAAF held that “‘constitutional dimen- sions are at play.’” Id. (quoting United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006)). Accordingly, on the issue of prejudice, the CAAF applied a harmless beyond a reasonable doubt standard finding an “error is not harm- less beyond a reasonable doubt when ‘there is a reasonable possibility that the [error] complained of might have contributed to the conviction.’” Id. (quot- ing United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)). In Rambharose I, we held that the military judge erred by agreeing to al- low the parties to argue evidence of charged offenses for propensity purposes. See 2016 CCA LEXIS 756, at *29. On the issue of prejudice, we found this case distinguishable from Hills given the number of victims, the separateness 7  United States v. Rambharose, No. ACM 38769 (rem) of the offenses, and the lack of any instructional issues in this judge-alone forum. Id. at *30. We initially applied a plain error analysis and found that the error did not materially prejudice a substantial right of Appellant. Id. We also, however, evaluated the more stringent harmless beyond a reasonable doubt standard and again found that the Government’s evidence was strong enough to meet that test. Id. at *33. Subsequent to Rambharose I, in United States v. Hukill, the CAAF fur- ther clarified its Hills ruling and held that “the use of evidence of charged conduct as Mil. R. Evid. 413 propensity evidence for other charged conduct in the same case is error regardless of the forum, the number of victims, or whether the events are connected.” Hukill, 76 M.J. at 222. “The same consti- tutional concerns exist if, in a military judge-alone trial, a military judge uses charged conduct as propensity evidence under M.R.E. 413.” Id. In Hukill, the CAAF went on to apply the harmless beyond a reasonable doubt standard outlined in Hills. Id. Thus, despite the fact that Appellant’s case involved multiple victims, included allegations over a period of years all on distinct occasions, and was tried in a judge-alone forum, the military judge’s agree- ment to allow the parties to argue evidence of other charged offenses under Mil. R. Evid. 413 was plain error which must be tested for prejudice under a harmless beyond a reasonable doubt standard. In United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), the CAAF con- sidered whether acquittals on some specifications provided proof that there was no impermissible use of evidence of other charged offenses for propensity purposes and held, “[i]t simply does not follow that because an individual was acquitted of a specification that evidence of that specification was not used as improper propensity evidence and therefore had no effect on the verdict.” Guardado, 77 M.J. at 94. The CAAF further noted, however, that even with an error in considering other charged offenses for propensity purposes, “[t]here are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by ‘tipp[ing] the balance in the members’ ultimate determina- tion.’” Id. (quoting Hills, 75 M.J. at 358). The CAAF has also held that the prohibition concerning use of other charged offenses for propensity purposes is limited to a “charged and contest- ed offense, of which an accused is presumed innocent.” Hukill, 76 M.J. at 222 (emphasis added). The CAAF’s holdings in Hills, Hukill, and Guardado do 8  United States v. Rambharose, No. ACM 38769 (rem) not limit a trial court’s consideration of offenses for which an accused has been convicted for propensity purposes. 1 In this case, Appellant pleaded guilty to the lesser-included offense of as- sault consummated by a battery on one occasion against JF. The military judge conducted an inquiry pursuant to United States v. Care, 40 C.M.R. 247(C.M.A. 1969), determined the plea was knowing and voluntary, and ac- cepted Appellant’s guilty plea to the lesser-included offense. “A guilty plea to a lesser-included offense may be used to establish facts and elements common to both the greater and lesser offense within the same specification.” United States v. Grijalva, 55 M.J. 223, 227 (C.A.A.F. 2001) (emphasis added). Thus, upon acceptance of Appellant’s guilty plea to the lesser-included offense, he no longer maintained a presumption of innocence for an intentional, unwant- ed touching of JF’s breast on one occasion. He did maintain a presumption of innocence for the element of intent to gratify his sexual desire under Article 120, UCMJ, for the first alleged incident as well as all elements of the second alleged touching. Recognizing the presumptions of innocence and considering the facts and circumstances presented at trial, contrary to the majority, I find the evidence of Appellant’s intent to gratify his sexual desire overwhelming, and I am convinced beyond a reasonable doubt that there is no reasonable possibility the error complained of might have contributed to the conviction on one occasion. See Hills, 75 M.J. at 357. On the issue of intent, JF testified to the part of the body Appellant touched (her breast) and the manner in which he touched it (“cupped it”). This was not a slap on the shoulder or a pat on the arm. The touching was of an intimate and sexual part of the body, and any fact-finder could readily in- fer from this and the nature of the touching that Appellant had the intent to gratify his sexual desire. JF also recounted the surrounding circumstances of the incident, which contradicted Appellant’s argument that the assault was a joke. JF and Appel- lant were at work. Appellant went to JF’s desk to help with a work issue. There was no previous sexual banter between the two, and nothing was hap- pening in the office to suggest a joking environment. There was no evidence presented to indicate that JF was mistaken in her account of the interaction, and the totality of her testimony demonstrated that Appellant’s touching of her breast was not a joke. 1This principle is subject to application of Mil. R. Evid. 413 and a Mil. R. Evid. 403 balancing test. 9  United States v. Rambharose, No. ACM 38769 (rem) During his AFOSI interview, after initially denying any wrongdoing, Ap- pellant admitted the basic facts that JF offered at trial, including that the incident occurred in a professional work setting. In his sworn written state- ment, Appellant again confirmed the basic facts of a work-related interaction. He agreed that he intentionally touched JF’s breast without her consent, and he characterized his actions as inappropriate. Thus, even Appellant’s version of events undermined his claim that the inappropriate touching was a joke. Appellant’s additional statements concerning the incident provide further insight into his true state of mind. As noted in Rambharose I, Appellant used the word “grope” to describe the alleged statement JF made just prior to him intentionally touching her breast. Common use of the term “grope,” in refer- ence to touching another person, carries a clear sexual connotation. Thus, whether JF actually said “grope” and Appellant responded by grabbing her breast or Appellant chose this word to explain the interaction, Appellant’s use of “grope” demonstrates his sexual intent when he touched JF. We, like the military judge, also had the opportunity to directly assess Appellant’s demeanor and credibility from his videotaped AFOSI interview. This interview showed a person who initially denied wrongdoing, failed to provide key details, sought to minimize his culpability, and ultimately admit- ted the wrongfulness of his actions. There were also several inconsistencies within the interview and between the interview, Appellant’s written state- ment, and his Care inquiry. 2 In evaluating the strength of the Government’s case, we are permitted to consider Appellant’s motive to fabricate or minimize to protect his military career, which stood in stark contrast to the lack of any motive for JF to misrepresent the circumstances of the incident. We may also consider whether Appellant’s claim is logical and supported by other evi- dence. In this case, the other evidence demonstrates that Appellant’s version of events undermines his position, and ultimately, his inconsistencies and efforts to minimize his conduct indicate a lack of credibility that bears direct- ly on the contested issue of intent to gratify his sexual desire, completely in- dependent of any reliance on propensity evidence. The standards set forth in Hills, Hukill, and Guardado permit lower courts to evaluate the strength of the evidence presented at trial to determine whether it is overwhelming on a contested issue. If this were not the case, the CAAF would simply have ruled that any error concerning the use of evidence 2I am not commenting here on the substance of the providence inquiry but instead on the fact that Appellant initially denied any wrongdoing to investigators and ulti- mately admitted to an assault consummated by a battery at trial. 10  United States v. Rambharose, No. ACM 38769 (rem) of other charged offenses for propensity purposes must result in setting aside any associated finding of guilty. No opinion of our superior court holds this, and a detailed factual analysis is essential to full consideration of these mat- ters. Further, there is no case that requires a confession or admission of a contested fact or any specific number of witnesses or types of evidence even when evaluating the prejudicial effect of an error of constitutional dimension. Here, the Government presented credible, consistent, sworn testimony from a first-hand witness, numerous corroborating facts from Appellant’s var- ious statements, a plea of guilty to all but one of the elements of the charged offense, and compelling evidence of intent to gratify sexual desire derived from the circumstances of the event, the part of the body touched, the nature of the touching, the lack of evidence supporting Appellant’s contention that everything was a joke, and Appellant’s credibility issues. The evidence that Appellant acted with the intent to gratify his sexual desire was overwhelming to the point that I am convinced there is no reasonable possibility the error permitting consideration of other charged offenses under Mil. R. Evid. 413 might have contributed to the conviction. In evaluating the evidence surrounding the second alleged touching inci- dent, the Government’s case is not as strong. Here Appellant pleaded not guilty and did not admit the basic facts of an intentional touching of JF’s breast without her consent or to any of the surrounding circumstances. Thus, all elements were fully contested at trial. While I still find JF’s testimony consistent and credible, it is far more difficult to find the Government’s evi- dence “overwhelming” on this second alleged incident. Consequently, I cannot say that the finding of guilty on “divers occasions” was free from any “reason- able possibility that the [error] complained of might have contributed to the conviction.’” Hills at 357 (alteration in original) (quoting Moran, 65 M.J. at 187). Accordingly, under Specification 1, I would affirm the finding of guilty to abusive sexual contact of JF on the single occasion to which Appellant pleaded guilty to the lesser-included offense of assault consummated by a battery. FOR THE COURT CAROL K. JOYCE Clerk of the Court 11 

People v Baker (2018 NY Slip Op 08092) People v Baker 2018 NY Slip Op 08092 Decided on November 27, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 27, 2018 Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ. 7723 5393/14 [*1]The People of the State of New York, Respondent, vJames Baker, Defendant-Appellant. Christina A. Swarns, Office of the Appellate Defender, New York (Elizabeth McLean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent. Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 5, 2016, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed. The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, including its resolution of alleged inconsistencies. The evidence established that defendant threatened to shoot the victim while simulating the presence of a firearm. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 27, 2018 CLERK

FILED Sep 03, 2019 09:30 AM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS and neck on June 19, 201 7. At the time of the work incident, her earnings resulted in a workers' compensation rate of $346.78 per week. Emory Valley provided authorized treatment for her low back with panel-selected physician Dr. Cletus McMahon. He diagnosed a left L3-4 herniated disc and a L4-L5 spinal stenosis and performed low-back surgery. Ms. Amendolia also received authorized treatment for her neck from panel-selected physician Dr. Patrick Bolt, who placed her at maximum medical improvement (MMI) on April 16, 2018. Disputed Issues The parties disputed the causal relationship of Ms. Amendolia's L4-L5 spinal stenosis to her work, the degree of permanent medical impairment caused by her work injury, and the extent of her permanent disability. Hearing Testimony Prior Low-Back Complaints Addressing the cause of Ms. Amendolia's L4-L5 spinal stenosis, the parties focused their proof in part on her prior low-back complaints. In July 2011, Ms. Amendolia traveled to visit her daughter, Jessica L'heureux. During the visit, Ms. Amendolia developed low-back muscle spasms and "sciatica." She went to the emergency room twice and treated with muscle relaxers. She testified the pain came on suddenly and resolved a few days later. She extended her visit but ultimately drove home and returned to work. Ms. L'heureux confirmed Ms. Amendolia's description of her 2011 complaints. Ms. Amendolia denied further treatment for her low-back complaints when she returned home. 3 However, the medical proof showed she treated with Dr. Pandurang Miskin in August 2011, reporting "sudden onset of severe back pain radiating to the left lower extremity." She described the pain as "excruciating," and it continued after her return. Dr. Pandurang diagnosed lumbar radiculopathy and ordered an MRI, which showed mild-to-moderate multilevel degenerative and disc and facet changes with varying degrees of central stenosis and neural foraminal narrowing. Work Injury, Medical Treatment, and Impairment Turning to the work injury, Ms. Amendolia assisted cognitively- and developmentally-disabled adults. On June 19, 2017, a falling resident pulled her to the 3 Ms. Amendolia denied any prior problems with her low back, left leg, and neck in the history she provided for the 2017 treatment. In her discovery responses and deposition, she admitted that she sought treatment for her low back at an emergency room in Tennessee in 2011. During the hearing, she explained she "honestly forgot about it." 2 ground. Ms. Amendolia twisted her knee, felt a pop in her back, and had neck pain. That same day, she went to the emergency room. A few days later, she went to a walk-in clinic. There, the provider sent her to physical therapy and referred her to specialists for her neck and low back. In response to the referrals, Emory Valley provided Ms. Amendolia with panels. She selected Dr. McMahon for her back and Dr. Bolt for her neck. Dr. McMahon, a board-certified orthopedic surgeon, saw Ms. Amendolia for low back and left leg pain. He reviewed a July 14, 2017 MRI, which showed a left L3-L4 herniated disc compressing on the L4 nerve root and significant L4-L5 spinal stenosis compressing the LS nerve root. He performed surgery and removed the L3-L4 herniated disc. On February 15, 2018, Dr. McMahon placed Ms. Amendolia at MMI for her low back and assigned a 23% whole-person impairment rating. He noted that she had lower- back pain radiating into her left leg and numbness in her third and fourth toe on the left side. He also recommended that she "no longer do [her] type of work." Later, Dr. McMahon responded to a questionnaire from Ms. Amendolia's counsel. Counsel asked whether her 2017 accident "aggravated and advanced a preexisting condition, and if so, [(1)] whether the accident contributed more than 50 percent in causing the aggravation, and (2) whether the work accident was the cause of the aggravation more likely than not, considering all causes." He answered "yes," stating "it 'aggravated the spinal stenosis and caused the HNP,' herniated disc." Dr. McMahon also addressed Ms. Amendolia's 2011 low-back complaints. He testified, "[S]he told me she had no prior problems." Before his deposition, Dr. McMahon reviewed the 2011 medical records and compared the 2011 and 2017 MRis. When asked about the 2011 complaints of low-back pain radiating into her leg, Dr. McMahon stated the only significance was the indication that Ms. Amendolia experienced sciatica in the left leg. However, he confirmed that she was able to continue working with her 2011 low-back complaints, but she was unable to work with her 2017 symptoms. Dr. McMahon testified that he did not see any difference between the two MRis. Specifically, he saw no difference in the severity on the left L4-L5 neural foraminal narrowing, but he acknowledged "varying, different ways to interpret [the MRI]." (Emphasis added). Dr. McMahon ultimately concluded Ms. Amendolia's 2017 work accident caused the L3-L4 herniated disc and aggravated her L4-L5 spinal stenosis. He testified the new knowledge of Ms. Amendolia's 2011 back complaints did not affect his causation opinion. He said that her history "just [tells] me she had some prior back pain, but she was working evidently in the six years prior to me seeing her until she had this injury." 3  He assigned a 23% permanent whole-person impairment using the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). He explained: Again, as you know, these are just simply guidelines to give us an idea, and I felt best (sic) upon the Table 17-4 on page 570 of the sixth edition that she had a 23 percent permanent physical impairment to the body as a whole based upon the findings on the page, primarily under Class 3. Primarily a herniated disc and documented residual radiculopathy, which she has. And it rates that as anywhere from 15 to 23, and I gave her 23 percent. (Emphasis added.) Dr. McMahon stated that he considered both the L3-L4 herniated disc and the L4- L5 spinal stenosis when arriving at the impairment rating, explaining, "I primarily combined them. I think the max was 23 percent." On cross-examination, he admitted that he did not use the Pain Disability Questionnaire or the Clinical Studies Adjustment sections in the AMA Guides. He recommended permanent restrictions of no lifting over ten pounds. He signed the Physician Certification Form, finding that "due to permanent restrictions on activity [she] has suffered as a result of the injury[,] [Ms. Amendolia] no longer has the ability to perform [her] pre-injury occupation." He confirmed that while Ms. Amendolia cannot perform her pre-injury occupation, she can perform other jobs within her restrictions. Dr. Bolt, a board-certified orthopedic surgeon, saw Ms. Amendolia for neck pain and headaches. He diagnosed work-related neck sprain/strain and non-work-related cervical spondylosis, which he described as arthritis and/or degenerative changes of the cervical spine. He treated her conservatively with physical therapy, anti-inflammatory medication, and injections. He confirmed the neck MRI showed no acute injury and that the injections were placed at the levels where she had cervical spondylosis. However, he reiterated that Ms. Amendolia "sustained a cervical sprain/strain, and also to some extent aggravated her cervical spondylosis." He maintained that the need for injections was due to the work injury. Dr. Bolt placed Ms. Amendolia at MMI on April 16, 2018. Using the AMA Guides, Dr. Bolt assigned a 2% permanent whole-person impairment. He placed her in Class 1 for her cervical strain and did not apply any modifiers because "it was my opinion that no modifiers were applicable due to the lack of objective findings." He permanently restricted her from prolonged cervical flexion or extension, which meant more than 33% of the workday. He confirmed that she is capable of working in a job that does not require her to hold her neck in a prolonged extended or flexed position. 4  Emory Valley sent Ms. Amendolia for an employer's examination with Dr. Thomas Koenig, who is a board-certified orthopedic surgeon and senior disability analyst, and a Bureau Medical Impairment Rating Registry physician. Dr. Koenig compared the 2011 and 201 7 MRis, finding both showed multilevel degenerative disc disease, facet changes, and stenosis throughout multiple levels of the lumbar spine. He noted the difference is a L3-L4 disc herniation on the 2017 MRI that was not present on the 2011 MRI. He also reviewed the 2011 EMG study that shows left L5-S 1 radiculopathy. Dr. Koenig testified that, secondary to the 2017 work incident, Ms. Amendolia sustained a L3-L4 disc extrusion, lumbosacral strain, cervical strain without evidence of radiculopathy, and possible malingering. He calculated her work-related permanent impairment using the AMA Guides. For her low back, he placed her in a Class 1 category for her L3-L4 disc herniation using Table 17-4 on page 570. Applying the adjustments for the modifiers, Ms. Amendolia maintained a default grade C impairment, which correlated to 7% permanent whole-person impairment. On cross-examination, Dr. Koenig indicated that the AMA Guides provide a minimum impairment of 5% for lumbar disc herniations with non- verifiable or resolved radiculopathy, and 10% for disc herniations with verified radiculopathy. However, he stated that Ms. Amendolia presented for his examination with non-verifiable left-leg pain. Considering her neck, Dr. Koenig placed her again in Class 1 category for soft- tissue and nonspecific conditions using Table 17-2 on page 564. Applying the modifiers, Ms. Amendolia had a grade B impairment, which correlated to a 1% permanent whole- person impairment. Using the combined values chart on page 604, Dr. Koenig determined Ms. Amendolia sustained an 8% permanent whole-person impairment. Regarding permanent restrictions, Dr. Koenig recommended no prolonged extension or flexion of the cervical spine; no repetitive bending, stooping, or squatting; and no lifting more than fifteen pounds. Vocational Disability To address Ms. Amendolia's vocational disability, Ms. Amendolia saw Dr. Craig Colvin, who holds a doctorate in counselor education with an emphasis in disability management and a master's in rehabilitation counseling. He conducted a situational assessment to determine her current functional level, educational history, past work experience, and activities of daily living to determine the impact on her capacity to work. He also reviewed Ms. Amendolia's discovery responses and deposition testimony, Dr. McMahon's deposition testimony, and the reports ofDrs. Bolt and Koenig. 5  During his situation assessment, Dr. Colvin noted Ms. Amendolia was a fifty- seven-year-old resident of Anderson County, Tennessee. She has a high-school education plus an associate of arts degree in social sciences. She had real estate training twenty-five years ago and received her license. She also briefly worked in insurance sales. Her primary work history was twenty-plus years working with disabled adults. Ms. Amendolia testified that her past jobs required lifting more than fifteen pounds. She also indicated she is a slow typist and struggled to understand the computer work when she worked in insurance. However, before her work injury, she had no restrictions, required no accommodations, and had no trouble performing her job responsibilities. Following the work injury, she worked light-duty until surgery, when she was taken completely off work. Emory Valley could not accommodate her restrictions, and ultimately her employment ended. She has not worked since. Based upon his situational assessment, review of the medical opinions, and consideration of her permanent restrictions, Dr. Colvin testified that Ms. Amendolia would not be able to perform the essential functions of her primary occupation as a care provider to disabled persons. He also testified that, considering her permanent restrictions described in the medical records, she would still have a significant occupational disability, approximately 85%-90% in the local labor market. Considering the restrictions in addition to her current complaints and difficulties, Dr. Colvin "doubt[ed] seriously that she could maintain an eight-hour day with her limitations." He indicated that realistically, her restrictions negatively impact her employability but do not restrict her from all jobs. As for her current symptoms, Ms. Amendolia testified she continues to have low- back problems with pain shooting into her legs as well as neck pain and headaches. She stated she is never completely comfortable and must frequently change positions from sitting to standing. Before the injury, she enjoyed an active lifestyle including hiking, riding motorcycles, and playing with her grandchildren. After the injury, she has difficulty sleeping and cannot clean her home, do laundry, or grocery shop. She either seeks help from her daughter or modifies the activities. She testified she would love to return to work, but she cannot do her prior job. When asked whether she thought she could ever work, she responded, "Never say never," and later "I honestly don't know. I hope I could return to work ... I don't foresee [returning to work] any time in the near future." Findings of Fact and Conclusions of Law Standard ofProof Ms. Amendolia has the burden of proof on all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). "[A]t a compensation hearing where the injured employee has arrived 6 at a trial on the merits, the employee must establish by a preponderance of the evidence that ... she is, in fact, entitled to the requested benefits." Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50- 6-239(c)(6) (2018). The parties stipulated that Ms. Amendolia sustained a work-related injury. Emory Valley provided authorized treatment with Drs. McMahon and Bolt, whom Ms. Amendolia selected from panels. Dr. McMahon diagnosed a left L3-L4 herniated disc and a L4-L5 spinal stenosis and assigned a 23% permanent whole-person impairment. Dr. Bolt diagnosed a cervical strain/sprain and assigned a 2% permanent whole-person impairment. As authorized, panel-selected, treating physicians, their opinions on causation and permanent medical impairment are presumed correct. To overcome the presumption, Dr. Koenig's opinion must rebut their opinions by a preponderance of the evidence. See Tenn. Code Ann. § § 50-6-102( 14 )(E) and 50-6-204(k)(7). Whenever expert opinions conflict, the Court "has the discretion to choose which expert to accredit." Woods v. Ace-American Ins., No. E2013-01916-SC-R3-WC, 2014 Tenn. LEXIS 617, at* 10-11 (Tenn. Workers' Comp. Panel Aug. 15, 2014). In this case, the Court is faced with two conflicts: (1) medical causation of Ms. Amendolia's spinal stenosis, and (2) the impairment rating for Ms. Amendolia's work-related injuries. In making this decision, the Court "is allowed . . . to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts." Id. at* 11 (quoting Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). Considering these factors, all three physicians are board-certified orthopedic surgeons. Both Drs. McMahon and Bolt treated Ms. Amendolia and examined her on numerous occasions. In contrast, Dr. Koenig evaluated Ms. Amendolia only once. Drs. McMahon and Dr. Koenig reviewed Ms. Amendolia's 2011 treatment records and diagnostic tests, although Dr. McMahon did not review the records when he began treating her, while Dr. Koenig did. Dr. McMahon placed little importance on the 2011 treatment, given that Ms. Amendolia continued to work for six years. However, Dr. Koenig found her 2011 treatment important as evidence of preexisting degenerative conditions and because she failed to mention her prior treatment and symptoms. Also, the Court notes that Dr. McMahon had an opportunity to evaluate and treat Ms. Amendolia on a more extensive basis as compared to Dr. Koenig. As the Tennessee Supreme Court stated, the physician having greater contact with Ms. Amendolia "would have the advantage and opportunity to provide a more in-depth opinion, if not a more accurate one." Orman, 803 S.W.2d at 677. 7  Causal Relationship of Ms. Amendolia 's L4-L5 spinal stenos is The Court next turns to the experts' opinions as to the cause of the L4-L5 spinal stenosis. In weighing Drs. McMahon's and Koenig's causation opinions, a physician's "expertise in utilizing the AMA Guides . . . is not relevant in determining the proper diagnosis[.]" Payne v. United Parcel Serv., Inc., 2014 Tenn. LEXIS 1112, at *21 (Tenn. Workers' Comp. Panel Dec. 30, 2014). Thus, Emory Valley's objections to Dr. McMahon' s impairment calculations are immaterial in deciding which causal opinion to adopt. Indeed, his expertise with the AMA Guides is also not relevant in rebutting Dr. McMahon's presumption of correctness. Rather, the physician's experience, his nuanced explanation of his diagnosis, and defense of his diagnosis are the relevant factors to be considered. Id. Dr. McMahon ultimately concluded Ms. Amendolia's work accident caused the L3-L4 herniated disc and aggravated her L4-L5 spinal stenosis. Despite no initial knowledge of Ms. Amendolia's 2011 complaints, Dr. McMahon testified this information did not affect his causation opinion. He said her history "just [tells] me she had some prior back pain, but she was working evidently in the six years prior to me seeing her until she had this injury." Ms. Amendolia testified she continued to have low-back problems with pain shooting into her legs. Dr. McMahon treated Ms. Amendolia from August 2017 through the present. He reviewed the 2017 MRI, which showed a left L3-L4 herniated disc compressing on the L4 nerve root and significant L4-L5 spinal stenosis compressing the L5 nerve root. He performed surgery. On February 15, 2018, he placed Ms. Amendolia at MMI for her low back and noted that she still had lower-back pain radiating into her left leg and numbness in her third and fourth toe on the left side. At the hearing, Ms. Amendolia similarly testified to continued low-back pain with radicular pain in her legs. Dr. Koenig testified that, secondary to the work incident, Ms. Amendolia sustained an L3-L4 disc extrusion, lumbosacral strain, cervical strain without evidence of radiculopathy, and possible malingering. He did not see objective findings of radiculopathy but acknowledged that Ms. Amendolia presented for the examination with left-leg pain. For these reasons, the Court adopts Dr. McMahon's causation opinion, finding Dr. Koenig's opinion failed to rebut Dr. McMahon's opinion by a preponderance of the evidence. Therefore, the Court concludes Ms. Amendolia's work injury caused the L3- L4 disc herniation and radiculopathy and was the primary cause of the aggravation of her L4-L5 spinal stenosis. 8  Degree of Permanent Medical Impairment In weighing the experts' opinions on permanent impairment, the Court notes Dr. Koenig's additional certifications in disability assessments. Further, Dr. Koenig demonstrated a mastery of the AMA Guides and detailed how he calculated Ms. Amendolia' s permanent impairment. Dr. Bolt also explained, in less detail, how he calculated Ms. Amendolia's neck impairment and confirmed his use of the modifiers. However, Dr. McMahon offered little to no explanation for how he arrived at Ms. Amendolia's low-back rating. He identified only the class and admitted that he did not use the modifiers. For her low back, Dr. Koenig assigned 7% permanent whole-person impairment. He clarified that he rated Ms. Amendolia for her L3-L4 disc herniation as her primary diagnosis and placed her in Class I for nonverifiable radiculopathy. However, Dr. Koenig testified that the minimum permanent whole-person impairment for a disc herniation with radiculopathy was 10%. In contrast, Dr. McMahon assigned a 23% permanent whole-person impairment rating for the low back. He considered both the L3-L4 herniated disc with radiculopathy and the L4-L5 spinal stenosis when arriving at the impairment rating, placing Ms. Amendolia in Class 3 and assigning the maximum rating without using the modifiers. He did not specify how he reached the maximum rating or the individual ratings applicable for the L3-L4 herniated disc and the L4-L5 spinal stenosis, which he "combined" to arrive at the rating. The Court finds Dr. Koenig's opinions successfully rebutted Dr. McMahon's on permanent impairment. However, after adopting Dr. McMahon's opinions on causation, the Court finds his diagnosis of the L3-L4 disc herniation with radiculopathy more persuasive as the treating physician. Thus, based on Dr. Koenig's testimony that the minimum rating for disc herniation with radiculopathy is 10%, the Court finds this as Ms. Amendolia's appropriate rating. For the neck, Dr. Koenig and Dr. Bolt placed Ms. Amendolia in the same class of impairment. However, Dr. Bolt did not use the modifiers due to lack of objective findings and assigned 2% permanent impairment rating to the whole person. Dr. Koenig used the modifiers and assigned a 1% permanent medical impairment. The Court again adopts Dr. Koenig's permanent impairment and finds that he successfully rebutted Dr. Bolt's opinion by a preponderance of the evidence. Therefore, as for her neck, the Court concludes Ms. Amendolia sustained a 1% permanent whole-person impairment. Thus, the Court holds that Ms. Amendolia's work injury resulted in a combined 11 % permanent whole-person impairment. 9  Extent of Permanent Disability Ms. Amendolia seeks permanent and total disability (PTD) benefits. The Workers' Compensation Law provides: "When an injury not otherwise specifically provided for in this chapter totally incapacitates the employee from working at an occupation that brings the employee an income, the employee shall be considered totally disabled[.]" Tenn. Code Ann. § 50-6-207( 4)(B). The PTD assessment is based upon numerous factors, including the employee's skills and training, education, age, local job opportunities, and capacity to work at the kinds of employment available in her disabled condition. Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Although a rating of anatomical disability by a medical expert is also one of the relevant factors, "the vocational disability is not restricted to the precise estimate of anatomical disability made by a medical witness." Henson v. City of Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993). In addition, the employee's "own assessment of [her] physical condition and resulting disability is competent testimony that should be considered[.]" Mel/vain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999). In support of her PTD claim, Ms. Amendolia relied on Dr. Colvin's testimony concerning her vocational disability. Dr. Colvin testified that she would not be able to perform the essential functions of her primary occupation as a care provider to the disabled. He also testified that, considering her permanent restrictions, she would still have a significant occupational disability, approximately 85%-90% in the local labor market. In light of the restrictions and her current complaints and difficulties, Dr. Colvin indicated that, realistically, her restrictions negatively impact her employability but admitted that her restrictions do not prohibit her from all jobs. In addition, while Drs. McMahon, Bolt, and Koenig assigned permanent restrictions, they did not indicate that she was totally disabled from working due to her work-related conditions. Moreover, when asked whether she thought she could ever work, Ms. Amendolia responded, "Never say never," and later "I honestly don't know. I hope I could return to work ... I don't foresee [returning to work] any time in the near future." The Court finds Ms. Amendolia credible despite her inability to recall her 2011 low-back treatment. Considering Dr. Colvin's testimony, the permanent restrictions, and Ms. Amendolia's self-assessment of her work injury and resulting disability, the Court cannot conclude that she is permanently and totally disabled. Thus, the Court denies her claim for these benefits. The Court must then determine Ms. Amendolia's entitlement to permanent partial disability benefits. The Workers' Compensation Law provides an injured employee may recover the "original award," which is calculated by multiplying the permanent medical 10 impairment rating by 450 weeks and then multiplying the result by the employee's weekly compensation rate. This is the employee's initial period of compensation; the period is determined by multiplying the rating by 450 weeks. See Batey v. Deliver This, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 2, *7-8 (Feb. 6, 2018); see also Tenn. Code Ann. § 50-6-207(A). The Court holds Ms. Amendolia is entitled to an original award based upon an 11 % permanent impairment rating. Her original award equates to 49.5 weeks at her stipulated compensation rate of $346.78, or $17,165.61. Further, the Court finds that Ms. Amendolia's initial compensation period expired on March 29, 2019. Therefore, the Court holds her claims for increased benefits under Tennessee Code Annotated section 50-6-207(3)(B) and extraordinary relief under Tennessee Code Annotated section 50-6-242(a) are ripe for adjudication. The parties shall appear for a Scheduling Hearing to set briefing deadlines and an evidentiary hearing on these limited issues. IT IS, THEREFORE, ORDERED as follows: 1. Emory Valley shall provide Ms. Amendolia with medical treatment for her work injuries with Drs. McMahon and Bolt as the authorized treating physicians. 2. Emory Valley shall pay Ms. Amendolia an original award lump-sum payment of $17,165.61. From this award, Ms. Amendolia's counsel shall be paid a lump-sum 20% attorney fee, or $3,433.12. 3. Ms. Amendolia's claims for increased benefits and extraordinary relief are reserved at this time. 4. This case is set for a Scheduling Hearing on September 12, 2019, at 11:00 a.m. Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041 to participate. 5. This Order shall not become final until the Compensation Order on the remaining issues is entered. ENTERED September 3, 2019. PAMELA B. JOHNSON, .nJDGE Court of Workers' Compensation Claims 11  APPENDIX Technical Record: 1. Petition for Benefit Determination - March 9, 2018 2. Petition for Benefit Determination - June 11, 2018 3. Petition for Benefit Determination - September 17, 2018 4. Dispute Certification Notice - November 21, 2018 5. Scheduling Order 6. Employee's Motion to Deem Admitted Requests for Admission 7. Employer's Response to Employee's Motion to Deem Admitted 8. Order Denying Motion to Deem Admitted 9. Employee's Motion to Exclude Dr. Koenig's Testimony and Report 10. Dispute Certification Notice - July 10, 2019 11. Employer's Motion Requesting Scheduling Hearing and Continuance 12. Employee's Proposed Exhibit List 13. Employee's Proposed Witness List 14. Employee's Prehearing Brief 15. Employer's Prehearing Brief 16. Employer's Witness and Exhibit List 17. Employer's Response to Employee's Motion to Exclude Dr. Koenig's Testimony 18. Employee's Response to Employer's Motion Requesting Scheduling Hearing and Continuance Exhibits: 1. Employee's Deposition - Page 60 2. Employee's Responses to Interrogatories and Requests to Produce 3. Dr. Cletus McMahon's Deposition 4. Dr. Patrick Bolt's Deposition 5. Dr. Craig Colvin's Curriculum Vitae 6. Dr. Craig Colvin's Report 7. Dr. Thomas Koenig's Deposition 12  CERTIFICATE OF SERVICE I certify that a copy of the Compensation Order was sent on September 3, 2019. Name Certified Fax Email Service sent to: Mail Timothy Roberto, x [email protected] Employee's Attorney Chris R. Brooks x [email protected] Employer's Attorney UM, COURT CLE [email protected] 13 

T.C. Memo. 2000-89 UNITED STATES TAX COURT JEFFREY CHRISTOPHER SPRANKLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 9910-99. Filed March 14, 2000. Jeffrey C. Sprankle, pro se. Yvonne M. Peters, for respondent. MEMORANDUM OPINION PAJAK, Special Trial Judge: Respondent determined a deficiency in petitioner's Federal income tax in the amount of $790 for the taxable year 1996. Unless otherwise indicated, section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. This case comes before the Court on respondent's motion to  - 2 - dismiss for lack of jurisdiction, filed pursuant to Rule 53. The sole issue for decision is whether the notice of deficiency for 1996 was mailed to petitioner's "last known address" within the meaning of section 6212(b). At the time the petition was filed with the Court, petitioner resided in Chula Vista, California. Petitioner filed an objection to respondent's motion to dismiss, and respondent filed a response to petitioner's objection. A hearing was held in San Diego, California, on respondent's motion. On petitioner's 1997 Federal income tax return, which was signed by him on February 13, 1998, petitioner listed his address as 808 Union Street (Apt. No.) #46925-198, San Diego, California, 92101 (Union Street address). This is the address of the Metropolitan Correctional Center, a Federal prison in which petitioner was incarcerated for 6 months. The number 46925-198 was his identification number in the prison and was listed under “Apt. No.” on the 1997 return. Nowhere on the return was it stated that petitioner was incarcerated or that the address was that of a prison. Attached to the 1997 return were two Forms W- 2, Wage and Tax Statement, with different addresses listed for petitioner. Around May 14, 1998, petitioner was moved to a halfway house located somewhere between Market Street and 14th Street in San Diego. He spent 2 months at the halfway house and was then  - 3 - released around July 14, 1998. Upon his release, petitioner moved to 1536 Avenida Rosa, Chula Vista, California, 91911 (Avenida Rosa address). In July 1998, respondent sent petitioner a 30-day letter advising him of proposed adjustments to his 1996 Federal income taxes. This letter was mailed to the Union Street address listed on petitioner's 1997 return. In response to this letter, petitioner returned to respondent a preprinted form, which came with the 30-day letter, and a two-page handwritten letter. On the preprinted form, petitioner's Union Street address was typed as petitioner's address. Petitioner did not make any corrections to the address on this form, but he did list his phone number and his hours of availability. Petitioner's handwritten letter did not include an address or any reference to an address. On the front of the envelope which petitioner mailed back to respondent, the Avenida Rosa address was written in as the return address. On the back of this envelope is a preprinted form which states: "COMPLETE AND RETURN THIS PORTION IF YOUR ADDRESS HAS CHANGED". There are spaces for the taxpayer's name, the taxpayer's identification number, and the new address. Petitioner left this form blank. The correspondence was received by respondent on July 31, 1998. On September 9, 1998, respondent sent the notice of deficiency by certified mail to petitioner at the Union Street  - 4 - address. The notice was received at that address and returned to respondent by the Postal Service stamped "Attempted Not Known". Handwriting on the envelope states: "RTS [return to sender] NOT HERE RELEASED". No forwarding address was stated on the envelope. Petitioner received a copy of the notice of deficiency on April 29, 1999. The Court's jurisdiction to redetermine a deficiency depends upon the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Pursuant to section 6213(a), the taxpayer has 90 days (or 150 days if the notice is addressed to a person outside of the United States) from the date that the notice of deficiency is mailed to file a petition with the Court for a redetermination of the deficiency. The notice of deficiency was mailed on September 9, 1998, and the 90-day period ended on December 8, 1998, which was not a legal holiday in the District of Columbia. Petitioner mailed his petition on May 22, 1999, and it was filed with this Court on May 26, 1999. Section 6212(a) expressly authorizes the Commissioner, after determining a deficiency, to send a notice of deficiency to the taxpayer by certified or registered mail. A notice of deficiency is sufficient if it is mailed to the taxpayer at the taxpayer's "last known address". Sec. 6212(b)(1). If a notice of  - 5 - deficiency is mailed to a taxpayer's last known address, actual receipt of the notice is immaterial. King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987). Although the phrase "last known address" is not defined in the Code or the regulations thereunder, we have held that a taxpayer's last known address is the address shown on the taxpayer's most recently filed return, absent clear and concise notice of a different address. Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988). A taxpayer is obliged to provide respondent with clear and concise notice of a change of address, but respondent must exercise reasonable care and due diligence in ascertaining the taxpayer's correct address. King v. Commissioner, supra at 679. Once respondent has mailed the notice of deficiency to the taxpayer's last known address, respondent's reasonable care and due diligence obligation has been satisfied. Id. at 681. The taxpayer bears the burden of proving that the notice was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987). This Court has previously held that a "return address placed on the outside of an envelope, without more, does not constitute clear and concise notification of a new, permanent address for purposes of section 6212(b)(1)". James v. Commissioner, T.C. Memo. 1990- 128; see also King v. Commissioner, supra at 681. In this case, petitioner wrote his new address only on the  - 6 - outside of the envelope in the upper left corner. He did not do anything that would constitute clear and concise notification that he had moved to a new, permanent address. We cannot find that petitioner provided respondent with clear and concise notice of his address change. Absent the proper notice, respondent correctly relied upon the address used on petitioner's most recently filed tax return. We find that the notice of deficiency was valid when mailed to the Union Street address on September 9, 1998. We hold that petitioner did not file his petition for redetermination with this Court within the time prescribed by sections 6213(a) and 7502. Therefore, we lack jurisdiction to redetermine the 1996 tax liability of petitioner. We grant respondent's motion to dismiss for lack of jurisdiction. Petitioner is not without a judicial remedy. Petitioner may pay the tax and file a claim for refund with the Internal Revenue Service. If the claim for refund is denied, then petitioner may pursue his case in the appropriate Federal District Court or the U.S. Court of Federal Claims. McCormick v. Commissioner, 55 T.C. 138, 142 (1970). To reflect the foregoing, An order granting respondent's motion to dismiss for lack of jurisdiction will be entered. 

527 F.2d 781 Fed. Sec. L. Rep. P 95,392Lawrence R. BARNETT et al., Plaintiffs-Appellants,v.Don KIRSHNER et al., Defendants-Appellees. No. 174, Docket 75--7284. United States Court of Appeals,Second Circuit. Argued Nov. 28, 1975.Decided Dec. 30, 1975. Franklin B. Velie, New York City (Bergreen & Bergreen, Gordon, Hurwitz, Butowsky & Baker, New York City), for plaintiffs-appellants. Barry I. Fredericks, New York City (Harris, Fredericks & Korobkin, Edward Marion, New York City, of counsel), for defendants-appellees. Before LUMBARD, FRIENDLY and MULLIGAN, Circuit Judges. MULLIGAN, Circuit Judge: 1 The plaintiffs below, Lawrence R. Barnett, C. Leonard Gordon and Alfred L. Hollender, acquired shares of stock in Kirshner Entertainment Corporation (this and its subsidiary and related companies are hereinafter referred to as KEC). All were executives of Chris Craft Industries and acquired their stock interests in KEC through Herbert J. Siegel, Chairman of the Board and President of Chris Craft. Barnett acquired 8,000 shares in June, 1967 at a cost of $1.00 a share with the additional obligation to lend the company $80,000 ($32,000 was in fact loaned). Gordon acquired 6,000 shares in June and September of 1967 at a cost of $1.00 a share with the obligation to lend KEC $40,000 and in fact loaned the company $24,000. Hollender purchased 8,000 shares in March, 1968 and loaned KEC $32,000. On December 30, 1968, the defendants, Herbert T. Moelis (Vice-President and Treasurer of KEC), Don Kirshner (President) and Irving Cohen (counsel to KEC) acquired from Barnett and Gordon all of their KEC stock at the agreed upon price of $14,000. The loans each had made to KEC were repaid with interest and any obligation to make further loans was assumed by the defendants. Hollender sold his shares on January 29, 1969 to Cohen as nominee for the ultimate purchaser. Hollender received $8,000 cash, was reimbursed for his $32,000 loan plus interest and was relieved of any obligation to make further loans to KEC. The agreed price was $1.00 per share in all of these sales. 2 On February 11, 1969 Kirshner and Moelis commenced negotiations on behalf of KEC to acquire the musical properties of Alan Jay Lerner, the well-known composer and lyricist and a legal client of Cohen. On March 13, 1969 the acquisition was finalized. KEC's stock was split five-for-one later in 1969 and in March, 1970 KEC made a public offering at $10 per share. Prior to the offering all shares were privately held and all the stockholders who are parties to this action were signatories to restrictive stockholders' agreements. The amended complaint in this action, brought in the United States District Court for the Southern District of New York, charged the defendants with conspiring to purchase the plaintiffs' holdings in KEC at a price substantially below their real value by wilfully concealing the proposed sale to KEC of the valuable property rights of Alan Jay Lerner, which substantially enhanced the value of the KEC stock. The first cause of action was based upon violations of section 10 of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b--5 of the General Rules and Regulations of the SEC, 17 C.F.R. § 240.10b--5. The second cause of action alleged the same facts to constitute a breach by the defendants of their fiduciary obligations to the plaintiffs. The complaint sought rescission of the stock transactions, damages and injunctive relief. 3 The matter was tried before Hon. Whitman Knapp without a jury on December 18 and 19, 1974. In an opinion filed on April 9, 1975, Judge Knapp entered judgment on behalf of the defendants dismissing the complaint. This appeal followed. 4 * In his opinion below, Judge Knapp found that the plaintiffs had sold their stock prior to February, 1969 and that this was before the defendants had in any way initiated, or made any plans to initiate, the Lerner transaction. Hence there could be no fraudulent concealment of the acquisition. 5 The plaintiffs' argument that the sale of the KEC stock in issue had not been consummated prior to February, 1969, is based upon the proposition that the restrictive KEC shareholders' agreement of June 26, 1967 (and successor agreements) granted the corporation and its individual shareholders a right to first refusal of the stock held by any of the shareholders including the three plaintiffs. In recognition of the fact that the contemplated sale to the defendants would breach the agreement, KEC's counsel prepared so-called consent letters which were executed by the selling plaintiffs at the same time as the documents of sale. The consent forms were addressed to KEC and each individual stockholder, including each plaintiff, who was a party to the KEC stockholder agreement. The pertinent sections of the consent letter relied upon are set forth in the margin.1 The plaintiffs argue that under paragraph 5 of this agreement if the transactions contemplated therein were not consummated on or before March 1, 1969, the agreement became null and void by its terms. The court below found that not all the consents, described as waivers of the option rights, had been fully completed until sometime after the KEC--Lerner negotiations began in February, 1969. Appellants argue that the timely execution of the consent letters by all the other stockholders was a condition precedent to the sale of the plaintiffs' stock, and this condition not having been complied with, the sale had not been consummated and the obligation to disclose the Lerner transaction continued. 6 We cannot agree. The transactions contemplated by the consent letter were the waiver of the option privileges by the non-selling stockholders as well as the undertaking by the defendants to be bound by the stockholder agreements and to assume the loan obligations of the plaintiffs. The stock sales in question were separate transactions effected by delivery and payment for the shares and evidenced by documents which contain no reservations or conditions. What remedies, if any, a non-consenting stockholder might have (seemingly all consents were eventually obtained) against the plaintiffs or defendants is not in issue here.2 As between plaintiffs and defendants legal title to the KEC shares passed on December 30, 1968 and January 29, 1969. Aside from the failure of the consent letter to provide that the sales were subject to any condition precedent,3 the conduct of the parties would justify the finding below that '(t)he uncontradicted evidence at trial clearly indicates that the plaintiffs intended and did in fact sell their stock interests in KEC on the dates the shares were tendered. . . .' Thus the exhibits on trial acknowledge the sale of the securities and the discharge of the loan obligations, as well as the repayment of the loans already made with interest. No reservation or condition is expressed in any of the papers.4 Barnett testified on trial that the sale of his stock was completed on December 30, 1968. Moreover, Gordon admitted that he saw no significance to the consent letter in respect to the sale. We cannot escape the conclusion reached below that there was a completed sale of the stock on the days the shares were transferred and that the consent letters were separate and apart from the sales between the parties, in no way conditioning expressly or by implication the passage of title to the defendants. II 7 The remaining issue on appeal is whether or not the defendants had sufficiently embarked upon their purchase of the Lerner properties on or before the dates of the stock sales, December 30, 1968 and January 29, 1969 to invoke Rule 10b--5. As the court below indicated, if the Lerner deal was afoot prior to the sales in question there would undoubtedly be Rule 10b--5 liability. The musical rights to the songs from My Fair Lady, Brigadoon, Camelot and Gigi, to mention some of the more memorable, were obviously valuable as the subsequent behavior of KEC stock demonstrated. On this issue the testimony of Cohen, who not only was counsel to KEC but had represented Lerner, is crucial since obviously his prior relationship with Lerner would suggest that his role in any such transaction would be prominent. Cohen testified, however, that the first time the possibility of a Lerner-KEC transaction crossed his mind was on February 2, 1969 when the defendant Moelis suggested over the telephone that Cohen arrange a meeting between Kirshner and Lerner. In the pre-trial order, the parties stipulated that this conversation took place in the manner in which Cohen testified it did. While the timing of this transaction might well give one pause, coming as it did on the heels of the sales in issue, Judge Knapp found Cohen to be a 'truthful and credible witness' and even absent the stipulation he 'would have accepted Cohen's testimony as truthful.' The court further found as a fact that all three plaintiffs had themselves initiated the sales of their stock which would indicate that they had not been victimized or gulled by a prior conspiracy among the defendants. Barnett had indicated a desire to sell in the summer of 1968; Gordon wished to sell because he was financially overextended, and Hollender because he 'lost faith in management.' All moreover were found by the court below to have been aware of Cohen's previous representation of Lerner. We cannot characterize these findings as clearly erroneous (Fed.R.Civ.P. 52(a)). 8 Appellants' only evidence of skulduggery is that Cohen, who purchased from Hollender, was a secret nominee of one Moscovitz who in turn was the nominee of Harry Saltzman. Hollender testified that he was not aware that Saltzman was to be the ultimate purchaser and had he known that fact he would not have sold. There is evidence that Saltzman had fired one David Haft, who was associated with him in producing a motion picture. Since Haft was a friend of Hollender's, Saltzman did not want to reveal himself as the purchaser of Hollender's shares. Hollender was disturbed by the firing of Haft and sought unsuccessfully to speak to Kirshner about the incident. He testified that he had lost confidence in KEC and on January 10, 1969 wrote a letter to Cohen asking him to make arrangements for his withdrawal as a stockholder 'as soon as it is expedient.' There was further the testimony of Hollender that since Saltzman had previously indicated no interest in KEC, he would 'have smelled a rat' if he knew Saltzman was now purchasing. 9 Appellants argue that the failure to disclose the identify of Saltzman as the purchaser constitutes the concealment of a material fact in connection with the sale of securities in violation of the common law fiduciary obligations of the defendants to their fellow stockholders in the close corporation, as well as a violation of Rule 10b--5. Our reading of the cases relied upon by the appellants, Strong v. Repide, 213 U.S. 419, 29 S.Ct. 521, 53 L.Ed. 853 (1909) and Ward La France Truck Corp., 13 S.E.C. 373 (1943) does not support that proposition. Where there is a fiduciary relationship and the identity of the purchaser is material because the purchaser is aware of some fact which is unknown to the seller, then disclosure of his identify becomes necessary.5 10 Here, however, the court below found that the sole reason for concealing Saltzman's identity was Hollender's dislike for him rather than Saltzman's being privy to something unknown to Hollender which would enhance materially the value of the stock. Moreover, the complaint is bottomed upon the theory that the Lerner transaction was concealed from the plaintiffs. Since the court below found that there was not even a thought of this transaction until February 2, 1969, Saltzman could not possibly have had knowledge of it at the time of his purchase in January, 1969. 11 The judgment below is affirmed. 1 Some thirty-five identical consent documents were admitted into evidence. The pertinent parts of one consent letter, Exhibit 19, are as follows: 2 To induce you to permit me to purchase all of the common stock of Entertainment, DKMI and of KEC owned by C. Leonard Gordon and to arrange to lend to Entertainment the sum of $24,000 on the same terms and conditions as the said loan by Gordon, I hereby agree, effective from the date on which such purchase shall be completed, to become and be bound by each of the Agreements as if I had been named therein at the time of their original execution. Effective from such date, each of you releases C. Leonard Gordon from any and all liability under the Agreements 3 On such effective date, I shall execute and deliver to Entertainment a stockholder's consent to Entertainment's Subchapter S election and similarly with respect to DKMI and KEC 4 Your consent to the transactions contemplated by this Agreement dated in December, 1968 (the 'December 1968 Agreement'), shall, in relation to such transactions, constitute a waiver of the rights granted to you pursuant to Paragraph '2' of the Stockholders' Agreement identified in Paragraph '1(b)' of this December 1968 Agreement 5 If the transactions contemplated by this December 1968 Agreement are not consummated on or prior to March 1, 1969, this December 1968 Agreement shall be null and void 2 There is authority for the proposition that a non-consenting stockholder may have redress for breach of a restrictive agreement either by way of damages, In re Argus Co., 138 N.Y. 557, 34 N.E. 388 (1893), or rescission, Tomoser v. Kamphausen, 307 N.Y. 797, 121 N.E.2d 622 (1954). In this case the plaintiffs not only consented but knowingly sold the stock in breach of the agreement as noted below 3 This fact distinguishes the cases principally relied upon by appellant. Detroit Football Co. v. Robinson, 186 F.Supp. 933 (E.D.La.), aff'd, 283 F.2d 657 (5th Cir. 1960), involved a player's contract which contained a clause expressly conditioning its validity upon the approval of the N.F.L. Commissioner. Pugh v. Fairmont Gold & Silver Mining Co., 112 U.S. 238, 5 S.Ct. 131, 28 L.Ed. 684 (1884); Hicks v. Bush, 10 N.Y.2d 488, 225 N.Y.S.2d 34, 180 N.E.2d 425 (1962) and Smith v. Dotterweich, 200 N.Y. 299, 93 N.E. 985 (1911), all involved transactions where the promise was explicitly conditioned upon the performance of a condition precedent 4 Exhibits 11, 31 and 58 are letters signed by each of the plaintiffs confirming the sales of KEC stock as of December 30, 1968 in the case of Gordon and Barnett and January 29, 1969 in the case of Hollender. All acknowledge satisfaction of KEC notes for previous loans, receipt of the purchase price and the agreement of the purchaser to pay stock transfer taxes. (Hollender however agreed to pay the stock transfer tax himself.) There is no condition or reservation in any document 5 Thus, in Strong v. Repide, supra, the undisclosed purchaser was in fact the owner of three-quarters of the shares of the company and was its 'administrator general,' with broad powers of management. He had extensive knowledge of an impending sale of assets which he did not wish to be disclosed and which he was planning to complete. The concealment of his identity was characterized by the court as part of deceitful machinations to complete a sale without giving any information to the plaintiff stockholder. Ward La France Truck Corp., supra, involved the purchase of its own shares by a corporation through a dummy in order to conceal, inter alia, improved earnings and a prospective merger. Helms v. Duckworth, 101 U.S.App.D.C. 390, 249 F.2d 482 (1957), and Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928), also cited by appellants, are simply illustrative of the fiduciary relationship inherent in business associations similar to the one which previously existed among the parties in this case. That relationship is not in issue here. Had negotiations or plans to purchase been contemplated prior to the sale, the obligation to disclose would be apparent

372 F.3d 1213 103 INVESTORS I, L.P., Plaintiff-Appellant,v.SQUARE D COMPANY, Defendant-Appellee. No. 02-3345. United States Court of Appeals, Tenth Circuit. June 23, 2004. Michael A. Childs, Brown and James, P.C., Kansas City, MO, for the Plaintiff-Appellant. James S. Kreamer (Thomas N. Sterchi and Christopher J.Stucky with him on the brief) Baker, Sterchi, Cowden, & Rice, L.L.C., Overland Park, KS, for the Defendant-Appellee. Before EBEL, McKAY, and LUCERO, Circuit Judges. LUCERO, Circuit Judge. 1 At the heart of this appeal is a dispute over the admissibility of expert testimony in relation to the cause of a fire that occurred in the building of 103 Investors I, L.P. ("Investors") on March 1, 2001. Square D Company ("Square D"), which manufactures electrical equipment, manufactured the building's busways. Investors alleges that those busways caused the fire and seeks to introduce expert testimony toward the goal of demonstrating that allegation. 2 Late in the discovery process, Investors attempted to add an additional party or, in the alternative, voluntarily dismiss the suit without prejudice. The district court denied both motions, and we AFFIRM on both issues. Having denied those motions, the district court granted summary judgment to Square D on the ground that Investors lacked admissible expert testimony that would demonstrate a manufacturing defect was present in the busways. Specifically, it found that Investors' initial expert reports were inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that its subsequent report was untimely. We conclude that the district court's refusal to consider Investors' subsequent expert report was an abuse of discretion; accordingly, we REVERSE and REMAND for proceedings consistent with this opinion. 3 * On March 1, 2001, a fire occurred in the electrical room on the second floor of Investors' office building. In the walls ran "busways," which are systems of four insulated aluminum bars in aluminum casing that run from the basement to the top floor and distribute electricity to various floors. Square D manufactured the busways, while another company installed them in 1978. During the months following the fire, Investors retained Carl Martin and Bryon Sherman as experts to investigate possible causes. Based on their analyses, Investors ultimately attributed the cause of the fire to a malfunction of the busways. Accordingly, it brought an action against Square D in state court on September 19, 2001, asserting theories of strict liability and negligence based on design defects, manufacturing defects, and failure to warn. Square D removed the case to federal court on October 18, 2001. 4 A detailed description of the discovery process is necessary to provide an understanding of the context of the present appeal. After conducting a scheduling conference, the district court issued a Scheduling Order on December 7, 2001. Among other things, the Scheduling Order set the following dates by which certain motions had to be filed and portions of discovery had to be completed: (1) Investors' submission of expert reports by January 10, 2002; (2) Square D's expert submissions by February 11, 2002; (3) any rebuttal expert reports by February 25, 2002; (4) motions to join additional parties by February 15, 2002; (5) potentially dispositive motions by May 3, 2002; and (6) all discovery completed by April 8, 2002. 5 These dates all changed, at the initial request of Square D and ultimately with the agreement of Investors. On April 4, 2002, the district court issued an Amended Scheduling Order, which set out the following revised dates: (1) Investors' submission of expert reports by April 1, 2002; (2) Square D's expert submissions by May 15, 2002; (3) any rebuttal expert reports by June 1, 2002; (4) motions to join additional parties by May 1, 2002; (5) potentially dispositive motions by June 3, 2002; and (6) all discovery completed by July 5, 2002. 6 Investors initially submitted two expert reports, one prepared on February 18, 2002, jointly by Martin and Sherman and the other prepared on March 25, 2002, by Martin. Under the Amended Scheduling Report, Investors' reports were timely, and Square D had over a month remaining to file its expert reports. Square D instead filed for another extension. On May 20, 2002, the district court granted Square D's motion to extend the deadline for its expert filings to June 14, 2002. Notably, the district court's order changed none of the other dates. Thus, all dates other than the date on which Square D's expert reports were due remained governed by the April 4 Amended Scheduling Order. 7 On June 3, 2002 (the due date for dispositive motions under the Amended Scheduling Order), Square D moved for summary judgment, alleging that Investors lacked any admissible expert testimony or other evidence to establish liability. In accordance with the most recent time extension that it had received, on June 14, 2002, Square D filed its expert witness report. In response to Square D's June 3 motion for summary judgment, on June 25, 2002, Investors filed an extensive motion requesting the following: (1) leave to amend the scheduling order; (2) leave to amend its complaint to join an additional party defendant; and (3) in the alternative, voluntary dismissal of its complaint without prejudice. On July 11, 2002, Investors submitted a third expert report, in which it attempts to rebut Square D's expert report. 8 In a Memorandum and Order of September 2, 2002, the district court denied Investors' procedural motions and granted summary judgment to Square D. In so doing, the district court refused to consider Investors' July 11, 2002, expert report, explaining that it was untimely and that it espoused a "totally new theory of negligence." 103 Investors I, L.P. v. Square D Company, 222 F.Supp.2d 1263, 1274 n. 10 (D.Kan.2002). Investors appealed, asserting inter alia the following claims of district court error: (1) the exclusion of the July 11, 2002 expert report; (2) the decision to grant Square D's Daubert and summary judgment motions; (3) the refusal to allow Investors to amend its pleadings and add a party; and (4) the refusal to allow Investors to voluntarily dismiss its suit against Square D. II 9 We allow a district court substantial latitude in its management of the discovery process, particularly in the context of our review of a decision to sanction the parties before it. Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir.1997). Our standard of review is abuse of discretion.1 Id. 10 The analytical process of the district court instructs our consideration of its decision to grant summary judgment to Square D. In granting summary judgment to Square D, the district court reasoned as follows, each decision depending on the one preceding it: (1) it refused to consider Investors' July 11 expert report on the basis of its untimeliness; (2) citing its unwillingness to consider that report, it granted Square D's Daubert motion; and (3) there being no expert testimony remaining, it granted Square D's motion for summary judgment. That is to say, the court's summary judgment grant was dependent on its decision to grant the Daubert motion, and the decision to grant the Daubert motion was similarly dependent on the court's refusal to consider Investors' rebuttal expert report. Therefore, our initial task is to examine whether the district court's exclusion of the expert report of July 11, 2002 constituted an abuse of discretion. 11 Explaining its exclusion of the report, the district court stated that "[t]he third report is untimely: under the second amended scheduling order, plaintiff's initial expert reports were due April 1, 2002 and rebuttal expert reports were due June 1, 2002." 103 Investors I, 222 F.Supp.2d at 1275. It also expressed the concern that the July 11 report expressed totally new theories from those asserted in the previous two reports. 12 The district court is correct that Investors' July 11 report was technically untimely. After all, the latest set of deadlines set out in the Amended Scheduling Order required that expert reports be submitted by June 1, 2002. However, as outlined above, the district court twice granted Square D extensions of time to file its expert reports. First, the district court amended the Scheduling Order, allowing Square D to submit its motions on May 15 rather than February 11. Subsequently, although Investors complied with the deadlines set forth in the Amended Scheduling Order, Square D filed for an additional extension of the date by which its reports were due. In its Second Amended Scheduling Order, the district court granted Square D's request, this time allowing Square D until June 14, 2002 to submit its expert reports.2 13 What is most notable about the Second Amended Scheduling Order, however, is the change that it did not make to the discovery dates. Specifically, while the Second Amended Scheduling Order extended Square D's deadline for filing its expert reports from May 15, 2002 to June 14, 2002, it did not grant a parallel extension to Investors to file a rebuttal expert report. It is not apparent from the record why such a change was not implemented in the Second Amended Scheduling Order. 14 Both the Scheduling Order and Amended Scheduling Order include a provision which addresses the need to allow Investors time to file a rebuttal expert report. Once the district court filed its Second Amended Scheduling Order, however, Investors' rebuttal reports remained due on June 1 while Square D's reports were not due until June 14. We see no reason why the Second Amended Scheduling Order should have created a situation in which Investors' rebuttal reports would be due prior to the deadline for Square D's initial expert reports. Such a scenario would put Investors in the impossible situation of attempting to rebut something that it had not yet seen. 15 The district court appears to recognize the quandary in which the Second Amended Scheduling Report placed Investors; indeed, it states in its Memorandum and Order that "plaintiff could not submit a rebuttal report by June 1, 2002," 103 Investors I, 222 F.Supp.2d at 1275, but the court ultimately reaches the conclusion that "[a]ll of plaintiff's rationalizations [for submitting the report on July 11] are inadequate, and the Court therefore declines to consider plaintiff's third expert report." Id. 16 We take a different view of the matter. The plaintiff's rationalization for the untimeliness of its filed report appears to us to be perfectly adequate; quite simply, Investors could not have been expected to file a rebuttal expert report prior to the report it sought to rebut. Moreover, though the district court was concerned that its allowance of Investors' July 11 expert report would amount to a modification of its pretrial order, we have previously concluded that "while the pretrial order defines a lawsuit's boundaries in the trial court and on appeal, total inflexibility is undesirable." Summers, 132 F.3d at 604 (citations and quotations omitted). We conclude, therefore, that it was an abuse of discretion for the district court to refuse to consider the July 11 report as untimely. 17 Untimeliness was not the only possible ground on which the district court could have excluded the July 11 report; the Federal Rules of Civil Procedure require that a "report [] contain a complete statement of all opinions to be expressed and the basis and reasons therefore." Fed.R.Civ.P. 26(a)(2)(B). Possible sanctions for a violation of Rule 26(a)(2)(B)'s disclosure requirements include exclusion of the undisclosed information. See Fed.R.Civ.P. 37(c). Along these lines, the district court seems to partially ground its exclusion of the July 11 report in its finding that the report was not a rebuttal report, but rather advanced "a totally new theory of negligence: that the contamination which `could' have ignited the fire occurred inside — rather than outside — the busway and was introduced in the manufacturing process." 103 Investors I, 222 F.Supp.2d at 1275 n. 11. After examining the record and Investors' three expert reports, however, we disagree with the district court's conclusion on this point. 18 Investors initially submitted two expert reports, one prepared on February 18, 2002, jointly by Martin and Sherman and the other prepared on March 25, 2002, by Martin. In their joint report, Martin and Sherman conclude that "heat emanated from within the bus duct section and that the bus bars had distorted and bowed within the duct casing." (Appellant's App. at 363.) Explaining the importance of that observation, the report states that "[t]his condition would be indicative of an internal malfunction that generated heat and could ignite surrounding combustible material resulting in a fire" and explains further that "the cause of the defect appears to be related to contamination of the insulation wrapping or coating materials." Id. Though the report never explicitly opines on whether the heat emanation was the result of a manufacturing defect per se, it explains that the condition was "indicative of an internal defect in the insulation wrapping that resulted in premature deterioration and short circuiting of electrons through the bus bar insulation that generated heat." Id. Thus, while the first two expert reports did not specifically mention the phrase "manufacturing defect," the opinions contained in the reports indicate that such a defect is the thrust of the experts' analysis. 19 Square D filed its initial expert report on June 14, 2002. The report essentially theorizes that the contamination on the bus ducts which led to the fire had entered the bus ducts from an outside source and was not due to a manufacturing defect. Specifically, Square D's report opines: 20 The `contamination' that may have deteriorated or reduced the resistance of the insulation on the bus bars is probably a result of infiltration of water and chemicals. There is evidence of water and chemical penetration into the electrical equipment room on floors above the fire floor. The bus duct is installed indoors and is not protected from such penetration. 21 (Appellant's App. at 172-73.) 22 After receiving Square D's initial expert report, Investors filed its rebuttal report on July 11, 2002. On our review of that report, it is clear that its main thrust was to rebut Square D's expert assertions that the contaminants came from an outside source. To that end, the July 11 report states: 23 [G]iven the actual location of the short circuit in the bus duct, contamination from a foreign liquid material is not a reasonable possibility. Additionally, the possibility and theory that moisture may have somehow penetrated the three separate bus bar insulation wraps was tested. This revealed that water or a liquid could not penetrate the bus bar wraps, thus further demonstrating that the contaminant conditions were generated during the manufacturing process. 24 (Appellant's App. at 357.) Although the opinions in the third expert report are otherwise similar to those of the first two reports submitted by Investors, the third report opines more directly that the contamination inside the busway must have occurred during the manufacturing process. 25 While we are sympathetic to the district court's concerns that no new theories be introduced at such a late stage of the discovery process, our review of the expert reports filed by Investors and Square D convinces us that in this case, the July 11 expert report did not espouse a new theory. The reports of February and March discussed the internal defects and contamination on the inner bus ducts, and merely labeling the cause more specifically as a manufacturing defect does not represent a new theory in violation of Rule 26. 26 Accordingly, we conclude that it was an abuse of discretion for the district court to refuse to consider the July 11 report and REVERSE the district court's exclusion of that report. In light of our holding that the exclusion of the third expert report represented an abuse of discretion and the district court's reliance on that decision to exclude the first two expert reports, we also REVERSE the district court's exclusion of the first two expert reports. Because the decision to grant summary judgment was premised upon its exclusion of the expert reports, we REVERSE the district court's decision to grant summary judgment and REMAND for proceedings consistent with this opinion. III 27 Investors also contends that the district court erred in refusing to permit it to join an additional party and refusing to allow it to voluntarily dismiss its case under Fed.R.Civ.P. 41(a)(2). Our review of a district court's decision to permit or deny joinder of an additional party, Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407, 1410-11 (10th Cir.1996), and to deny voluntary dismissal under Fed.R.Civ.P. 41(a)(2) is for abuse of discretion, Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir.1996). Our review of the record convinces us that the district court did not abuse its discretion in denying either of these motions; accordingly, we AFFIRM the district court on these two issues. IV 28 For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion. Notes: 1 The district court's exclusion of Investors' July 11 report was a sanction for untimeliness, not a finding that the report did not survive aDaubert inquiry. Accordingly, our analysis need not consider whether the district court should have included the report under the standards of Daubert. 2 Though the district court simply labeled this document "Order," we will refer to it as "Second Amended Scheduling Order."

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-13915 ELEVENTH CIRCUIT MARCH 1, 2012 Non-Argument Calendar ________________________ JOHN LEY CLERK D.C. Docket No. 3:11-cr-00037-LC-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRENCE L. WATSON, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (March 1, 2012) Before HULL, MARCUS and BLACK, Circuit Judges. PER CURIAM:  Terrence Watson appeals from his sentence of life imprisonment after pleading guilty to conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846. He argues that: (1) because his 2002 Florida conviction for possession of a controlled substance was deemed unconstitutional in a recent decision in the Middle District of Florida, the conviction cannot be used to enhance his sentence; and (2) the five-year statute of limitations for challenging predicate convictions, used to enhance a sentence under § 841, should not bar his claim. After careful review, we affirm. We review de novo a district court’s decision applying a sentencing enhancement that results in a life sentence. See United States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (reviewing the legality of a sentence de novo). Section 841(b)(1)(A) provides that a defendant convicted under that section who previously has been convicted of two or more felony drug offenses shall be sentenced to life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the government files an information pursuant to 21 U.S.C. § 851 identifying the prior convictions relied upon to support the 21 U.S.C. § 841(b)(1)(A) enhancement, the defendant may deny a conviction or claim that a conviction is invalid by filing a written response. 21 U.S.C. § 851(a), (c). “[T]he United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact.” 21 U.S.C. § 851(c)(1). The 2 defendant “shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response.” 21 U.S.C. § 851(c)(2). However, a defendant cannot challenge the validity of a prior conviction that occurred more than five years before the date that the 21 U.S.C. § 851 information was filed. 21 U.S.C. § 851(e). As a general rule, we do not allow a defendant to collaterally attack prior convictions being used to enhance his sentence in the sentencing proceeding. United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (concerning challenge to enhancement under Armed Career Criminal Act (“ACCA”)). However, in United States v. Roman, 989 F.2d 1117 (11th Cir. 1993) (en banc), we held that if the defendant adduces evidence sufficient to demonstrate that the conviction used to enhance his sentence is “presumptively void,” the Constitution requires the sentencing court to review the earlier conviction before taking it into account. Id. at 1119-20. We have suggested that presumptively void cases “are small in number and are perhaps limited to uncounseled convictions.” Id. at 1120. If the prior conviction is not “presumptively void,” review must be through habeas corpus proceedings. Id. The defendant has the burden of proving that a prior conviction is constitutionally invalid. United States v. Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000); 21 U.S.C. § 851(c)(2). 3  When we determine whether a state conviction qualifies as a predicate drug offense for enhancement purposes, we are bound by a state’s supreme court precedent when interpreting state law, including its determination of the elements of the statute at issue. Johnson v. United States, 559 U.S. ___, 130 S.Ct. 1265, 1269 (2010) (concerning challenge under ACCA enhancement). If the state supreme court has not definitively determined a point of state law, we are bound to adhere to decisions of the state’s intermediate courts, absent some indication that the state supreme court would hold otherwise. Williams v. Singletary, 78 F.3d 1510, 1515 (11th Cir. 1996) (§ 2254 case). In this case, Watson’s challenge fails because he did not challenge the validity of his prior state conviction for a violation of Fla. Stat. § 893.13 within the required five-year time period. He first challenged his 2002 conviction in 2011, over four years after the statute of limitations had run in 2007. See 21 U.S.C. § 851(e). Section 851(e) does not provide for any exceptions to the five-year statute of limitations, and Watson offers no authority for the proposition that the limitations period does not apply if the statute underlying a prior conviction is declared unconstitutional years after the statute of limitations has run. Moreover, we have upheld the validity of the statute of limitations in § 851(e), stating that the five year limitation period is 4 “reasonably tailored to impose enhanced sentences on recidivists.” United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992). In any event, even if Watson’s challenge was timely, the district court did not err in sentencing Watson to an enhanced sentence of life imprisonment because Watson has not shown that his prior conviction is presumptively void. Roman, 989 F.2d at 1119-20. In making this determination, we are bound to follow Florida state court interpretations of Florida state law. Johnson, 130 S.Ct. at 1269. Florida courts have interpreted the statute at issue to be a constitutional general intent statute. See Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005); see also Miller v. State, 35 So.3d 162, 163 (Fla. 4th DCA 2010); Lamore v. State, 983 So.2d 665, 669 (Fla. 5th DCA 2008). Therefore, the recent federal district court holding in Shelton v. Sec’y Dep’t of Corrs., 802 F.Supp.2d 1289 (M.D. Fla. 2011) -- that the Florida statute underlying one of Watson’s convictions used to enhance his sentence is unconstitutional -- is of no avail. Accordingly, he has not shown that his prior conviction is presumptively void, and we affirm. AFFIRMED. 5 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN BASSETT, No. 16-35933 Plaintiff-Appellant, D.C. No. v. 2:16-cv-00947- TSZ ABM PARKING SERVICES, INC., DBA ABM Onsite Services - West, DBA AMPCO System Parking; ABM OPINION ONSITE SERVICES - WEST, INC.; ABM INDUSTRIES, INC., Defendants-Appellees. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, Senior District Judge, Presiding Submitted December 5, 2017 * Seattle, Washington Filed February 21, 2018 Before: Michael Daly Hawkins, M. Margaret McKeown, and Morgan Christen, Circuit Judges. Opinion by Judge McKeown * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 BASSETT V. ABM PARKING SERVICES SUMMARY ** Standing / Fair Credit Reporting Act The panel affirmed the district court’s dismissal due to lack of standing in a putative class action alleging a violation of the Fair Credit Reporting Act when the plaintiff received a credit card receipt displaying the card’s full expiration date. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that to have Article III standing when alleging only a statutory violation, a plaintiff must allege a concrete injury in fact. The panel joined the Second and Seventh Circuits in affirming dismissal under identical circumstances, and held that the plaintiff failed to allege a concrete injury in fact sufficient to give him standing. The panel held that when the plaintiff received the credit card receipt and there was no identity thief there to snatch it, there was no injury. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  BASSETT V. ABM PARKING SERVICES 3 COUNSEL Darrell L. Cochran and Christopher E. Love, Pfau Cochran Vertetis Amala PLLC, Tacoma, Washington, for Plaintiff- Appellant. Ryan P. McBride, Abraham K. Lorber, and Randall P. Beighle, Lane Powell PC, Seattle, Washington, for Defendants-Appellees. OPINION McKEOWN, Circuit Judge: Today we answer a question that would certainly sound exotic to our nation’s founders: Is receiving an overly revealing credit card receipt—unseen by others and unused by identity thieves—a sufficient injury to confer Article III standing? In response to growing credit card fraud and identity theft, Congress enacted a series of protective laws. When Steven Bassett used his credit card at an ABM parking garage, he received a receipt displaying the card’s full expiration date—a violation of the requirement that businesses redact certain credit card information on printed receipts. 15 U.S.C. § 1681c(g). Bassett sued but alleged only a statutory violation and a potential for exposure to actual injury. Like the district court, we conclude that Bassett failed to allege a concrete injury sufficient to give him standing. In doing so, we join the Second and Seventh Circuits in affirming dismissal under identical circumstances. See Crupar-Weinmann v. Paris Baguette 4 BASSETT V. ABM PARKING SERVICES Am., Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016). Background The legislative backdrop for this case centers on FACTA and FCRA. The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L. No. 108-159, 117 Stat. 1952, amended the Fair Credit Reporting Act (“FCRA”) to limit the information printed on receipts: “[N]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” 1 15 U.S.C. § 1681c(g). The statute provides that “[a]ny person who willfully fails to comply with [that requirement] with respect to any consumer is liable to that consumer” for statutory damages of between $100 and $1,000 per violation or “any actual damages sustained by the consumer,” costs and attorney’s fees, and potential punitive damages. Id. § 1681n. Following the passage of FACTA, consumers filed a spate of lawsuits against merchants who printed receipts showing credit card expiration dates. In response, Congress enacted the Credit and Debit Card Receipt Clarification Act (the “Clarification Act”), Pub. L. No. 110-241, 122 Stat. 1565 (2008). The Clarification Act reiterated that the FCRA prohibits the printing of receipts bearing a card’s expiration date. Id. at 1566. But the congressional findings also noted that “hundreds of lawsuits were filed alleging that the failure to remove the expiration date was a willful violation of the 1 We use “FCRA” where “FCRA” or “FACTA” could be used interchangeably.  BASSETT V. ABM PARKING SERVICES 5 [FCRA] even where the account number was properly truncated,” and “[n]one of these lawsuits contained an allegation of harm to any consumer’s identity.” Id. at 1565. Congress went on to find that “[e]xperts in the field agree that proper truncation of the card number, by itself as required by the [FCRA], regardless of the inclusion of the expiration date, prevents a potential fraudster from perpetrating identity theft or credit card fraud.” Id. To “ensure that consumers suffering from any actual harm to their credit or identity are protected while simultaneously limiting abusive lawsuits,” the Clarification Act granted a temporary reprieve for merchants: “[A]ny person who printed an expiration date on any receipt . . . between December 4, 2004, and [June 3, 2008],” but otherwise complied with the card number truncation requirements, did not willfully violate the FCRA. Id. at 1566. The Act left the FCRA untouched for receipts printed after June 3, 2008. Id. When Bassett paid for parking at an ABM garage in 2016, he was issued a receipt bearing his credit card expiration date. Bassett filed a putative class action lawsuit against ABM Services, Inc.; ABM Onsite Services – West; and ABM Industries, Inc. (collectively “ABM”) alleging willful violations of the FCRA. Bassett’s claimed injury was “exposure . . . to identity theft and credit/debit fraud,” because he was at “imminent risk” that his “property would be stolen and/or misused by identity thieves.” He did not allege that a second receipt existed, that his receipt was lost or stolen, or that he was the victim of identity theft. Rather, he claimed that “the risk of harm created in printing the expiration date on the receipt” was a “sufficiently concrete” injury to confer Article III standing. 6 BASSETT V. ABM PARKING SERVICES The district court granted ABM’s motion to dismiss the complaint because Bassett failed to allege a sufficiently concrete injury. In dismissing the case with prejudice, the court concluded that Bassett alleged nothing more than a “possible risk of [identity] theft.” Citing the Supreme Court’s watershed decision on standing, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the district court emphasized that “[s]omething more is necessary” to allege a concrete injury in fact, because “not every procedural violation gives rise to standing.” Analysis I. SPOKEO AND DECISIONS OF OUR SISTER CIRCUITS At its core, standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Our analysis of this threshold issue begins with Spokeo. 136 S. Ct. 1540. To have standing, Bassett must allege that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of [ABM], and (3) that is likely to be redressed by a favorable judicial decision.” Id. at 1547. An injury in fact is “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). This appeal turns on whether Bassett alleged a concrete injury in fact. Spokeo, like this case, involved a putative consumer class action alleging willful violations of the FCRA. Robins claimed that Spokeo, a consumer reporting agency, published inaccurate credit report information about him, in violation of the FCRA. Id. at 1545–46. The district court dismissed the complaint for lack of standing, but we reversed. Id. at 1546. Because Robins alleged that “Spokeo  BASSETT V. ABM PARKING SERVICES 7 violated his statutory rights, not just the statutory rights of other people,” and Robins’s “personal interests in the handling of his credit information are individualized rather than collective,” we concluded that Robins’s “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.” Id. (quoting 742 F.3d 409, 413–14 (9th Cir. 2014)). Finding this analysis “incomplete,” the Supreme Court vacated and remanded to consider whether Robins alleged a concrete injury in fact. Id. at 1545. The Court emphasized that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. A plaintiff must show that a concrete injury “actually exist[s]”; in other words, it is “real, and not abstract.” Id. at 1548 (internal quotation marks omitted). Intangible harms and a “risk of real harm” can be sufficiently concrete. Id. at 1549–50. But “a bare procedural violation, divorced from any concrete harm,” cannot “satisfy the injury-in-fact requirement of Article III.” Id. at 1549. Importantly, the Court noted that “[a] violation of one of the FCRA’s procedural requirements may result in no harm”— for example, “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id. at 1550. The Court remanded to determine “whether the particular procedural violations alleged . . . entail a degree of risk sufficient to meet the concreteness requirement.” Id. Following Spokeo, two of our sister circuits dismissed for lack of standing identical consumer class actions to the one presented in this appeal—alleged violations of the FCRA’s credit card expiration date redaction requirement. In Meyers v. Nicolet Restaurant of De Pere, the Seventh Circuit held that “Spokeo compels the conclusion that Meyers’[s] 8 BASSETT V. ABM PARKING SERVICES allegations are insufficient to satisfy the injury-in-fact requirement for Article III standing”: The allegations demonstrate that Meyers did not suffer any harm because of Nicolet’s printing of the expiration date on his receipt. Nor has the violation created any appreciable risk of harm. After all, Meyers discovered the violation immediately and nobody else ever saw the non-compliant receipt. In these circumstances, it is hard to imagine how the expiration date’s presence could have increased the risk that Meyers’[s] identity would be compromised. 843 F.3d at 727. The court also observed that in the Clarification Act, Congress was “quite concerned” about abusive FCRA lawsuits where a consumer does not suffer actual harm, and “specifically declared that failure to truncate a card’s expiration date, without more, does not heighten the risk of identity theft.” Id. at 727–28. Hence, “without a showing of injury apart from the statutory violation, the failure to truncate a credit card’s expiration date is insufficient to confer Article III standing.” Id. at 728– 29. The Second Circuit reached the same conclusion in Crupar-Weinmann v. Paris Baguette America, Inc. In holding that the alleged “bare procedural violation” did not “present[] a material risk of harm to the underlying concrete interest Congress sought to protect in passing FACTA”— preventing identity theft and credit card fraud—the court viewed as “dispositive” Congress’s findings in the Clarification Act. 861 F.3d at 81. Specifically, the court pointed to Congress’s finding that “[e]xperts in the field  BASSETT V. ABM PARKING SERVICES 9 agree that proper truncation of the card number, . . . regardless of the inclusion of the expiration date, prevents a potential fraudster from perpetrating identity theft or credit card fraud.” Id. (alteration in original) (quoting 122 Stat. at 1565). That statement “ma[de] clear that Congress did not think that the inclusion of a credit card expiration date on a receipt increases the risk of material harm of identity theft,” particularly in light of Congress’s concern about “abusive” FCRA lawsuits. Id. II. BASSETT’S ABSENCE OF INJURY We think our sister circuits are correct. History and congressional judgment “play important roles” in our analysis of whether an injury is concrete. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042–43 (9th Cir. 2017) (quoting Spokeo, 136 S. Ct. at 1549). Both factors counsel that Bassett did not allege a concrete injury. A. NO HISTORICAL PREDICATE We look to history because “the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice.” Spokeo, 136 S. Ct. at 1549. Bassett’s theory of injury is not supported by historical practice. Indeed, his claimed “exposure” to identity theft—caused by ABM’s printing of his credit card expiration date on a receipt that he alone viewed—does not have “a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. Bassett urges us to look to the “close” historical relationship between his alleged injury and privacy-based torts centered on wrongful disclosures of information. But even assuming that “unauthorized disclosures of 10 BASSETT V. ABM PARKING SERVICES information” are legally cognizable, ABM did not disclose Bassett’s information to anyone but Bassett. See In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 636 (3d Cir. 2017). Without disclosure of private information to a third party, it hardly matters that “[a]ctions to remedy . . . invasions of privacy, intrusion upon seclusion, and nuisance have long been heard by American courts, and the right of privacy is recognized by most states.” Van Patten, 847 F.3d at 1043. It is important to distinguish the alleged harm here from cases where we have recognized a privacy-based injury, such as Van Patten. There, we held that a consumer who received unsolicited text messages in violation of the Telephone Consumer Protection Act alleged a sufficiently concrete injury because “unrestricted telemarketing can be an intrusive invasion of privacy and [is] a nuisance.” Id. (quoting Pub. L. 102-243, § 2, 105 Stat. 2394 (1991)). Bassett’s case is likewise dissimilar from Syed v. M-I, LLC, in which we determined that an employee sufficiently alleged a concrete injury where a prospective employer unlawfully obtained a consumer report about him without his consent, in violation of the employee’s “right to information” and “right to privacy” secured by the FCRA. 853 F.3d 492, 499–500 (9th Cir. 2017). Whereas an undisclosed receipt may not “cause harm or present any material risk of harm,” Spokeo, 136 S. Ct. at 1550, unconsented text messages and consumer reports divulged to one’s employer necessarily infringe privacy interests and present harm. Van Patten, 847 F.3d at 1043; Syed, 853 F.3d at 499. B. CONGRESSIONAL JUDGMENT In adopting the FCRA’s credit card expiration date requirement, Congress did not “elevat[e] to the status of  BASSETT V. ABM PARKING SERVICES 11 legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Lujan, 504 U.S. at 578. We look to Congress because “Congress is well positioned to identify intangible harms that meet minimum Article III requirements.” Spokeo, 136 S. Ct. at 1549. But Congress’s creation of a prohibition “does not mean that a plaintiff automatically satisfies the injury-in-fact requirement” just because “a statute grants [him] a statutory right and purports to authorize [him] to sue to vindicate that right.” Id. Bassett cannot, therefore, “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in- fact requirement of Article III.” Id. Spokeo laid to rest the notion that because the FCRA authorizes citizen suits and statutory damages, it must mean that allegations of a statutory violation meet the standing requirement. The statute does not eliminate this constitutional floor. As the Supreme Court emphasized, “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 1547–48 (quoting Raines v. Byrd, 521 U.S. 811, 820, n.3 (1997)). Spokeo rejected our conclusion that a FCRA plaintiff need only invoke a FCRA violation and seek statutory damages to allege a concrete injury. Id. at 1546, 1549. In doing so, the Court cast aside our prior dictum that “[a]llowing consumers to recover statutory damages furthers [the FCRA’s] purpose by deterring businesses from willfully making consumer financial data available, even where no actual harm results.” Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 718 (9th Cir. 2010) (emphasis added). Far from “elevating” expiration date violations, the Clarification Act suggests that alleged injuries like Bassett’s are not concrete. Bassett’s suit replicates those addressed in 12 BASSETT V. ABM PARKING SERVICES the statute: it “alleg[es] that the failure to remove the expiration date was a willful violation of the [FCRA] even where the account number was properly truncated,” and does not “contain[] an allegation of harm to any consumer’s identity.” 122 Stat. at 1565. Congress stressed that “proper truncation of the card number, by itself as required by the [FCRA], regardless of the inclusion of the expiration date, prevents a potential fraudster from perpetrating identity theft or credit card fraud.” Id. Distinguishing between “consumers suffering from any actual harm to their credit or identity” and those pursuing “abusive lawsuits,” Congress clarified that printing the expiration date on a receipt was not a willful violation of the FCRA during a temporary safe- harbor period. Id. at 1566 (emphasis added). Of course, Congress did not eliminate the FCRA’s expiration date requirement in the Clarification Act. But both the Clarification Act’s finding that a disclosed expiration date by itself poses minimal risk and the law’s temporary elimination of liability for such violations counsel that Bassett did not allege a concrete injury. On balance, congressional judgment weighs against Bassett. III. BASSETT’S STATUTORY THEORIES OF INJURY On remand from the Supreme Court in Spokeo, we acknowledged that “while [plaintiffs] may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017). Bassett offers two alternative statutory theories of injury regarding the FCRA’s expiration date requirement. At maximum, Bassett asserts, the FCRA creates a “substantive right,” the invasion of which is an injury that confers  BASSETT V. ABM PARKING SERVICES 13 standing. See Eichenberger v. ESPN, Inc., 876 F.3d 979, 982–84 (9th Cir. 2017). At minimum, the law establishes a procedural right, the violation of which creates a material risk of harm sufficient to confer standing. See Robins, 867 F.3d at 1114–17. 2 Neither theory is persuasive in this context. Bassett’s argument that Congress “created a substantive right that is invaded by a statutory violation” is unconvincing because it depends entirely on the framing of the right. One could fairly characterize the “right” granted to Bassett by the FCRA (from most abstract to most specific) as “the right to be free from identity theft,” “the right to be free from disclosure to others of his full credit card information,” or “the right to be free from receiving a receipt showing his credit card expiration date.” 3 Only the last “right” was violated in this case. Such a framing-dependent exercise is 2 We note that the distinction between a “substantive” statutory violation that alone creates standing, and a “procedural” statutory violation that may cause harm or a material risk of harm sufficient for standing, can be a murky one. In assessing constitutional standing, we must always analyze whether the alleged harm is concrete, with an eye toward history and congressional judgment (as we explained in Section II). The “substantive” and “procedural” analyses that have appeared in our case law are variations on that calculus. 3 A line of cases recognizes that a violation of a substantive statutory right to obtain truthful information is a sufficiently concrete injury to confer standing. See FEC v. Akins, 524 U.S. 11, 21 (1998); Havens Realty Corp. v. Coleman, 455 U.S. 363, 374–75 (1982); Syed, 853 F.3d at 499. Nevertheless, the FCRA provision challenged in this case does not confer a substantive right to obtain a receipt. See 15 U.S.C. § 1681c(g). And, in any event, Bassett’s receipt contains truthful information. 14 BASSETT V. ABM PARKING SERVICES arbitrary, and thus bears minimally on whether Bassett suffered a concrete injury in fact. To the extent the FCRA arguably creates a “substantive right,” it rests on nondisclosure of a consumer’s private financial information to identity thieves. See Bateman, 623 F.3d at 717 (describing the FCRA’s card number redaction requirements as “an effort to combat identity theft”). We recently held, for example, that a statute barring video service providers from disclosing knowingly and without consent a consumer’s “personally identifiable information” to third parties establishes a “substantive right to privacy.” See Eichenberger, 876 F.3d at 982–84. But here, Bassett’s private information was not disclosed to anyone but himself, and therefore no such substantive right was invaded. See id. at 983–84 (noting that whereas “the FCRA outlines procedural obligations that sometimes protect individual interests, the [Video Privacy Protection Act] identifies a substantive right to privacy that suffers any time a video service provider discloses otherwise private information” to a third party). Bassett’s allegations of FCRA procedural violations also do not “entail a degree of risk sufficient to meet the concreteness requirement.” Spokeo, 136 S. Ct. at 1550. In assessing violations of procedural statutory rights, we consider whether “the specific procedural violations alleged . . . actually harm, or present a material risk of harm to [Bassett’s] interests.” Robins, 867 F.3d at 1113. Bassett did not allege that another copy of the receipt existed, that his receipt was lost or stolen, that he was the victim of identity theft, or even that another person apart from his lawyers viewed the receipt. See Meyers, 843 F.3d at 727. Nor did he allege that any risk of harm is real, “not conjectural or hypothetical,” given that he could shred the  BASSETT V. ABM PARKING SERVICES 15 offending receipt along with any remaining risk of disclosure. Lujan, 504 U.S. at 560. Like the dissemination of an incorrect zip code, it is difficult to see how issuing a receipt to only the card owner and with only the expiration date, “without more, could work any concrete harm.” Spokeo, 136 S. Ct. at 1550. Indeed, Congress found that receipts like Bassett’s that truncate the credit card number but reveal the expiration date “prevent[] a potential fraudster from perpetrating identity theft or credit card fraud.” 122 Stat. at 1565. Bassett’s theory of “exposure” to identity theft is therefore “too speculative for Article III purposes.” See Missouri ex rel. Koster v. Harris, 847 F.3d 646, 654 (9th Cir. 2017) (quoting Lujan, 504 U.S. at 564 n.2); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (a “threatened injury must be certainly impending to constitute injury in fact” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). 4 We need not answer whether a tree falling in the forest makes a sound when no one is there to hear it. But when this receipt fell into Bassett’s hands in a parking garage and no identity thief was there to snatch it, it did not make an injury. AFFIRMED. 4 It is no help to Bassett that some courts have found injuries sufficiently concrete where plaintiffs alleged theft of their private information, even when that information had not yet been used against them (e.g., no fraudulent charges had been made). See Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x 384, 387–89 (6th Cir. 2016); Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693 (7th Cir. 2015); Krottner v. Starbucks Corp., 628 F.3d 1139, 1142–43 (9th Cir. 2010). Bassett alleged no such theft. 

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT TYRON BLANDING, : No. 121 EM 2016 : Petitioner : : : v. : : : DEPARTMENT OF CORRECTIONS, ET : AL., : : Respondents : ORDER PER CURIAM AND NOW, this 16th day of September, 2016, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED. 

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1808 UNITED STATES, Appellee, v. CHRISTOPHER N. SIA, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge] ___________________ ____________________ Before Cyr, Stahl and Lynch, Circuit Judges. ______________ ____________________ Donald Thomas Bergerson on brief for appellant. _______________________ Jay P. McCloskey, United States Attorney, and F. Mark Terison, ________________ ________________ Assistant United States Attorney, on brief for appellee. ____________________ December 18, 1996 ____________________ Per Curiam. Defendant Christopher Sia appeals from the __________ denial of his motion for reduction of sentence under 18 U.S.C. 3582(c)(2). For the reasons that follow, we vacate and remand for further proceedings. I. The background need only be briefly recounted. Defendant pled guilty to four drug charges in 1991 and was sentenced to 293 months in prison. The offenses involved LSD appearing both on blotter paper and in liquid form. Thereafter, the Sentencing Commission retroactively revised the methodology for calculating the weight of LSD. See ___ U.S.S.G. App. C (Amendment 488) (amending 2D1.1) (effective November 1, 1993). At the recommendation of the Probation Office, the district court undertook a sua sponte ____________ reconsideration of defendant's sentence in light of the amendment (as it did in over a dozen other LSD cases in the district). Applying the new formula to the blotter LSD, but deeming it inapplicable to the liquid LSD, the court reduced the amount of "heroin equivalent" attributable to defendant from 99 kilograms to 50 kilograms. Even with such reduction, however, defendant remained subject to the same offense level (of 38) and the same sentencing range as before. Accordingly, on November 12, 1993, without filings from defendant, the court issued an amended judgment finding that -2- "the term of incarceration imposed herein is unaffected by the change in the law." Defendant through counsel filed an appeal but then had second thoughts; counsel moved to withdraw and the appeal was dismissed in May 1994. In May 1996, defendant filed the instant pro se motion for reduction, contending in a lengthy memo that Amendment 488 did in fact apply to the liquid LSD as well as the blotter LSD. The government filed an opposition, and the district court denied the motion in a margin order stating: "After full review of the written submissions hereon, the within motion is hereby denied." Defendant, with new counsel, filed a timely appeal. II. We do not understand the government here to be seriously contending that Amendment 488 is inapplicable to liquid LSD. The sole reference to liquid LSD in the amendment implies otherwise.1 All courts to address the issue, although 1 differing over the precise methodology to be employed, agree that the full weight of the liquid LSD is no longer to be included in calculating drug quantities. See, e.g., United ___ ____ ______ States v. Ingram, 67 F.3d 126 (6th Cir. 1995); United States ______ ______ _____________ ____________________ 1 See U.S.S.G. 2D1.1 n.16 ("In the case of liquid LSD 1 ___ (LSD that has not been placed onto a carrier medium), using _____ the weight of the LSD alone to calculate the offense level _____________________________________________________________ may not adequately reflect the seriousness of the offense. In such a case, an upward departure may be warranted.") (emphasis added). -3- v. Turner, 59 F.3d 481 (4th Cir. 1995); United States v. ______ ______________ Jordan, 842 F. Supp. 1031 (M.D. Tenn. 1994). And in a ______ separate appeal from Maine involving the same government appellee, this court remanded for resentencing based on "the government's concession that the weight of the 'liquid LSD' should have been recalculated" in accordance with Amendment 488; we there agreed that "the commentary arguably contemplates some adjustment where liquid LSD is involved." United States v. Lowden, 36 F.3d 1090, 1994 WL 497586, at *1 _____________ ______ (1st Cir. 1994) (table) (per curiam).2 2 Instead, the government interposes various procedural objections that, in its view, foreclose defendant from seeking such relief at this juncture. It first contends that, just as in the habeas context, a defendant is precluded from filing a "successive" or "repetitive" 3582(c)(2) motion except under narrow circumstances. Yet even on the assumption that defendant's earlier appeal from the court's sua sponte order constituted such a motion, the analogy is __________ strained. A habeas petition is governed by specific rules ____________________ 2 As it did below, the government only intimates on 2 appeal that the amendment might be inapplicable--suggesting that the Probation Office did not earlier apply the revised formula to liquid LSD because the drug was not "on" a carrier medium "as required by the amendment" but rather "in" it. Yet the amended commentary uses the words "on" and "in" interchangeably. And the amendment's definition of liquid LSD as "LSD that has not been placed onto a carrier medium," see note 1 supra, indicates that the liquid solvent does not ___ _____ constitute a carrier medium. See, e.g., Ingram, 67 F.3d at ___ ____ ______ 128; Turner, 59 F.3d at 485. ______ -4- restricting multiple filings; a 3582(c)(2) motion is not. See, e.g., United States v. Hollenbeck, 932 F. Supp. 53, 56 ___ ____ _____________ __________ (N.D.N.Y. 1996). And the concerns giving rise to such constraints in the habeas context are implicated here to a far lesser extent. Instead, a motion under 3582(c)(2) would appear more akin to one under the former version of Fed. R. Crim. P. 35. And it was agreed that successive motions were permissible under that rule. See, e.g., Heflin ___ ____ ______ v. United States, 358 U.S. 415, 418 n.7 (1959); Ekberg v. _____________ ______ United States, 167 F.2d 380, 384 (1st Cir. 1948).3 3 _____________ The government also insists that defendant, having pled guilty to an indictment charging distribution of at least ten grams of LSD and having stipulated to a heroin equivalent of 99 kilograms for sentencing purposes, cannot now renege on such agreements. Yet the indictment and the stipulation were both based upon a "mixture or substance" containing a detectable amount of LSD--a methodology later discarded by Amendment 488. Our decision in United States v. Lindia, 82 _____________ ______ F.3d 1154, 1159 n.3 (1st Cir. 1996), on which the government relies, does not dictate that such stipulated drug quantities were immune from later modification resulting from an ____________________ 3 Neither below nor on appeal has the government 3 contended that this court's dismissal of the earlier appeal constitutes the law of the case binding on the district court. The matter is therefore waived. See, e.g., Castillo ___ ____ ________ v. United States, 34 F.3d 443, 445 (7th Cir. 1994). We would _____________ be inclined not to rely on the doctrine in any event. See ___ note 4 infra. _____ -5- intervening amendment. Indeed, under the government's view, the district court would have been precluded from reducing the quantity of drugs attributable to defendant in the 1993 amended judgment. In the alternative, the government contends that the district court properly denied the motion as an exercise of discretion. To be sure, given the discretion entrusted to the lower court in this context, "most resentencing battles will be won or lost in the district court, not in an appellate venue." United States v. LaBonte, 70 F.3d 1396, _____________ _______ 1411 (1st Cir. 1995), cert. granted, 116 S. Ct. 2545 (1996). _____________ Yet the court here seemingly denied the motion based on one or more of the arguments advanced by the government below. As a result, it is possible that the district court may have misapprehended that Amendment 488 was inapplicable to liquid LSD (a misapprehension shared by this court, we might add, at the time of defendant's earlier appeal). It is likewise possible that the lower court denied relief based on the mistaken notion that defendant's request constituted an impermissible "successive" motion.4 Given these possible 4 ____________________ 4 It is also conceivable (despite the lack of any such 4 contention from the government) that the lower court felt itself bound by this court's earlier decision on law of the case grounds--a rationale with which it would be difficult to quarrel. Even if so, that doctrine only "directs a court's discretion[;] it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618 (1983). And under _______ __________ the circumstances presented--particularly the clarification of the law in the wake of defendant's earlier appeal--we -6- misapprehensions, urged by the government, the district court might choose now to do something different. We think a remand is appropriate and vacate the sentence. As a final argument, the government suggests that the lower court calculated the revised sentencing range under the amendment, determined that an upward departure to 293 months would be warranted, and then denied the motion simply because defendant was already at that level. Yet the government mentioned the possibility of an upward departure only in passing below, and there is no indication that the district court engaged in any such undertaking. Given the magnitude of any possible such departure here (if defendant's calculations bear out, he will be subject to an offense level of 32, with a range of 121 to 151 months), the government's conjecture on the ambiguous record before us does not suffice. At the same time, we note that Amendment 488 encourages an upward departure in cases of liquid LSD, and the court remains free to take such action on remand. In deciding whether a reduction of sentence is warranted, and if so to what extent, the district court should first calculate the revised sentencing range under the amendment. This inquiry will require ascertaining either the weight of "pure" LSD dissolved in the liquid solvent or the number of dosage units contained therein. Defendant has ____________________ thinkit would be inappropriate to invoke that doctrine here. -7- proffered a figure for the weight of pure LSD, one apparently drawn from government laboratory reports; as those reports are not in the record, that figure cannot be confirmed. Alternatively, he notes that the original presentence report attributed a total of 7500 dosage units to 419 of the 485 grams of liquid LSD for which he was responsible. By way of extrapolation, and on the assumption that the remaining 66 grams were of comparable strength, he derives a total number of dosage units (8,680) for the full 485 grams. If defendant's factual assumptions prove valid, the court might be persuaded to adopt such an approach. Alternatively, additional evidence may be received. We leave these matters for resolution by the district court in the first instance.5 5 Vacated and remanded for further proceedings. See Loc. ________________________________________________________ R. 27.1. ________ ____________________ 5 We express no view as to whether the number of dosage 5 units should be multiplied by 0.05 mg (the presumptive weight of pure LSD per dose), see Turner, 59 F.3d at 485-91, or by ___ ______ 0.4 mg (the amendment's conversion factor), see Ingram, 67 ___ ______ F.3d at 128. Indeed, it may prove unnecessary to choose between these competing approaches in the instant case. -8-

Case: 10-10239 Document: 00511364537 Page: 1 Date Filed: 01/28/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 28, 2011 No. 10-10239 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ANTONIO GONZALEZ-MOLINA, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-132-1 Before WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* Defendant-Appellant Antonio Gonzalez-Molina pleaded guilty to illegal reentry after deportation and was sentenced to 57 months in prison. We remanded for resentencing, and the district court reimposed the same sentence after taking evidence showing that Gonzalez-Molina had previously been convicted of a “crime of violence.” See United States v. Gonzalez-Molina, 353 F. App’x 959, 960 (5th Cir. 2009). Gonzalez-Molina appeals again. * 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: 10-10239 Document: 00511364537 Page: 2 Date Filed: 01/28/2011 No. 10-10239 Gonzalez-Molina now asserts, for the first time, that his case should be remanded yet again so that the district court can resentence him in light of a recent guidelines amendment that took effect on November 1, 2010, after his resentencing and after briefing was completed. Amendment 742 eliminated criminal history points based on “recency,” that is, the temporal proximity of the offense of conviction to a prior term of imprisonment. See United States Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment 742, pp. 354-56 (Nov. 1, 2010) (amending § 4A1.1(e)). Amendment 742 is not retroactive because it is not listed as a retroactive amendment in § 1B1.10(c). See § 1B1.10(a) & (c), p.s.; United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996). Gonzalez-Molina contends that the district court should be allowed on remand to reconsider its application of the sentencing factors of 18 U.S.C. § 3553(a) in light of the Sentencing Commission’s decision to eliminate recency points. The gravamen of his contention is that his sentence is unreasonable in light of the Sentencing Commission’s “change of position.” Although the Sentencing Commission’s reasoning was not available to support a challenge to the recency point at Gonzalez-Molina’s original sentencing or on the first appeal, such a challenge could have been made pursuant to § 3553(a) and Kimbrough v. United States, 552 U.S. 85 (2007), which held that a court may vary from the advisory guidelines range based on policy considerations or disagreements with the Guidelines. Because Gonzalez-Molina failed to raise this issue in his two sentencing proceedings or his prior appeal, his claim is barred by the mandate rule. See United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006); United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). In addition, a substantive guidelines amendment that takes effect after sentencing “may not be considered on direct appeal.” United States v. Huff, 370 F.3d 454, 466 (5th Cir. 2004). As Gonzalez-Molina raises no cognizable challenge to the district court’s judgment on resentencing, the judgment of the district court is AFFIRMED. 2 

685 F.2d 360 34 UCC Rep.Serv. 166 BILL'S COAL COMPANY, INC., et al.v.BOARD OF PUBLIC UTILITIES OF SPRINGFIELD, MISSOURI, et al. Nos. 82-1297, 82-1303. United States Court of Appeals,Tenth Circuit. July 14, 1982. 1 Majority Opinion July 6, 1982, see 682 F.2d 883. BARRETT, Circuit Judge, dissenting: 2 It is my view that the District Court correctly concluded that Bill's Coal's demand for more than it was entitled under the contract with Utility constitutes a repudiation under Section 2-610 of the Missouri Uniform Commercial Code (20A U.A.M.S. § 2-610), fully justifying the Court's January 29, 1982, order dissolving the injunction. Thus, I would affirm the District Court. 3 The main issue generating this litigation involves the "take-out" provision of the 1979 amendment to the coal contract. That provision states, inter alia, that if Utility can secure a bid ... "at a delivered price of at least 25% less than the price quoted by (Bill's Coal) (adjusted to eliminate the depreciation credit referred to in paragraph 6) ... (Utility) may by written notice cancel this agreement as of the end of the then current fiscal year." 4 Utility had until March of the year to exercise the take-out provision. At a meeting later in the same day that the 1979 amendment was drafted, an attorney representing Bill's Coal noted that the contract language could be viewed to require a comparison of Bill's Coal quoted f.o.b. mine price to any competitor's delivered price. However, this attorney stated then that such was not the intention of the parties; rather, the parties agreed and intended that a comparison under the take-out clause would be delivery price versus delivery price. 5 In December, 1979, Bill's Coal became aware that Utility was going to solicit bids and attempt to utilize the "take-out" provision. Bill's Coal then formulated a "plan" to block a take-out by insisting that Utility make a comparison of Bill's Coal's f.o.b. mine price to competitors' delivered price. When Bill's Coal supplied Utility with its f.o.b. mine price for 1980, it also "demanded" that Utility make the bid comparison in accordance with Bill's Coal's "plan". An agent of Utility vehemently rejected Bill's Coal's proposed comparison formula and informed Bill's Coal if it insisted on the formula that Utility would see Bill's Coal in court. 6 Inasmuch as Bill's Coal's mine is located substantially closer to Springfield's power plant than any of its competitors, a comparison between Bill's Coal's f.o.b. mine price to competitor's delivery price could hardly, if ever, result in a bid sufficient to trigger the take-out provision. Bill's Coal's f.o.b. mine price was substantially higher than any competitor's f.o.b. mine price. 7 Utility proceeded to solicit bids and to compare Bill's Coal's f.o.b. mine price to competitors' f.o.b. mine price. On March 27, 1980, Utility gave Bill's Coal notice of termination under the take-out clause. Utility thereafter filed a declaratory judgment action against Bill's Coal seeking a declaration of the relative rights and liabilities of the parties under the 1979 amendment. Bill's Coal filed a separate action against Utility for breach of contract. Bill's Coal's action was subsequently consolidated with Utility's action. In all of its pleadings, Bill's Coal held fast to its interpretation of the comparison language of the take-out clause. 8 The parties agreed that the litigation should be divided into three phases. Phase I involved the interpretation of the take-out clause. The Court concluded that the take-out provision called for a delivery price versus delivery price comparison. It was only after this court finding that Bill's Coal finally abandoned its interpretation of the take-out clause. It amended its pleadings to assert that the contract language was ambiguous and that the parties had always intended a delivery versus delivery price comparison. In response, Utility amended its complaint to allege anticipatory repudiation and bad faith on Seller's part. 9 Phase II was conducted to determine liability. The Court found anticipatory repudiation by virtue of Bill's Coal's demand that Utility use a different price comparison than that which the parties had agreed to. The District Court recognized that although this is an unusual case on its facts, for anticipatory repudiation, the law appears clear that if a party, in bad faith, demands performance of the other party beyond the terms of the contract, and the demanding party conditions his own performance on the injured parties' performance of the additional terms, then there is an anticipatory repudiation by the demanding party. The District Court thus found anticipatory repudiation. It specifically found that Bill's Coal's interpretation of the take-out provision was the result of bad faith in that it was not an honestly held interpretation because Bill's Coal had agreed to a different interpretation. The Court also found a separate cause of action for bad faith. 10 Based upon these conclusions, the District Court dissolved the injunction, and rendered detailed findings of fact and conclusions of law with which I agree. Specifically, the Court found that because Bill's Coal admitted that it knew at all times that the parties had in fact agreed to the delivery price versus delivery price interpretation of the "take-out" provision of the 1979 amendment, Bill's Coal did not entertain an honest mistake of contract interpretation when it insisted on its f.o.b. versus delivery price position. This, the Court concluded, was a bad faith contention. I agree. 11 When a party practices fraud, i.e., assertion of a position it knows to be absolutely contrary to the agreement, it repudiates the contract if this false assertion, as here, impairs the value of the contract. This principle applies here inasmuch as the practical effect of Bill's Coal's false interpretation was to block any "take-out" and thus lock Utility into Bill's Coal's price. It follows that by forcing Utility to pay what may well be exorbitant prices under the contract, Bill's Coal impaired the value of the contract to Utility. 12 The majority opinion anchors its holding, it seems to me, on the proposition that Bill's Coal has "performed" under the contract because it has, at all times, delivered coal to Utility. This holding does not meet the issues addressed by the District Court relating to performance. What was the full performance promised? In terms of money values, it had to be Bill's Coal's promise to permit Utility to exercise the "take-out" provision in good faith by obtaining bona fide competitive bids based on delivery price versus delivery price. This plain intent was absolutely frustrated by the bad faith practiced by Bill's Coal. This bad faith could not be corrected. Accordingly, we are not here dealing with mere "deviations" from full performance which are inadvertent or unintentional. The "deviation" here is all pervasive and due to Bill's Coal's bad faith. It impaired the structure of the contract as a whole. It cannot be "repaired" and thus the contract must be terminated. 13 We have here an admitted, acknowledged manifestation on the part of Bill's Coal to frustrate the "termination" clause of the contract. The intention is unequivocal. Restatement of Contracts, (First), §§ 314, 315 and 318 (1932), as supplemented, states that in a bilateral contract, one who has failed, without justification, to perform all or any part of what is promised in a contract has breached it (here, Bill's Coal's refusal to recognize the right of Utility to receive proper competitive bids) and, further, that one who, like Bill's Coal, has prevented or hindered Utility from determining whether it is bound to the condition of further purchases of coal from Bill's Coal (performance of a return promise to purchase) is guilty of an anticipatory breach which constitutes a total breach of contract. Under § 318(a) it is stated that "... a positive statement to the promisee or other person having a right under the contract, indicating that the promisor will not or cannot substantially perform his contractual duties" constitutes an anticipatory breach. 14 U.C.C. § 2-610, Comment 1 states that "anticipatory repudiation centers upon an overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance." In Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283 (7th Cir. 1974), relied upon by the trial court, it was held that although a demand by a party to a contract for more than the contract calls for in the way of counter-performance is not in itself a repudiation, when a fair reading leads to the conclusion that it amounts to a statement of intention not to perform except on conditions which go beyond the contract, it becomes a repudiation. "In order to constitute an anticipatory breach of contract, there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives." 4 Corbin on Contracts, § 973, p. 905. (Emphasis supplied). And, "Where the two contracting parties differ as to the interpretation of a contract ... an offer to perform in accordance with his own interpretation ... (will) constitute such a breach, (if) the offer ... be accompanied by a clear manifestation of intention not to perform in accordance with any other interpretation." 4 Corbin on Contracts, § 973 at p. 911. 15 I would dissolve the injunction we reinstated and affirm the District Court.

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE ASSIGNED ON BRIEFS MAY 24, 2001 PAMELA JEAN ANNESS v. MICHAEL MARIO CHAPDELAINE, SR. Direct Appeal from the Chancery Court for Williamson County No. 20784; The Honorable Russ Heldman, Judge No. M2000-01792-COA-R3-CV - Filed September 14, 2001 This appeal arises from the Appellee’s filing of a Petition to Change Custody in the Chancery Court of Williamson County. Following a hearing, the trial court entered an Order granting custody of the parties’ minor children to the Appellee. The trial court ordered the Appellant to pay child support in the amount of $1,480.00 per month. The Appellant appeals the amount of child support set by the trial court. For the reasons stated herein, we affirm in part, reverse in part, and remand the trial court’s decision. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY KIRBY LILLARD, J., joined. P. Edward Schell, Franklin, TN, for Appellant Julia E. Stovall, Franklin, TN, for Appellee OPINION I. Facts and Procedural History The Appellant, Michael Mario Chapdelaine, Sr. (“Mr. Chapdelaine”), and the Appellee, Pamela Jean Anness (“Ms. Anness”) were divorced in 1993. On October 3, 1996, Mr. Chapdelaine was awarded custody of the parties’ children, and Ms. Anness was awarded visitation with the children. On March 14, 2000, Ms. Anness filed a Petition to Modify Custody of the parties’ three minor children in the Chancery Court of Williamson County. The hearing on the Petition was held on April 26, 2000. Mr. Chapdelaine testified that he was employed as a truck driver and was the owner and publisher of a local phone directory. Mr. Chapdelaine testified that his 1999 federal income tax return reflected that his income from both jobs was $25,385.00. On cross examination, Mr. Chapdelaine testified that he did not earn $900.00 per week truck driving. Rather, Mr. Chapdelaine testified that his truck driving income varied by the week. Mr. Chapdelaine testified that “one week I got around four hundred and something dollars, and then the other one was around $510.00, another one is nine hundred and something dollars.” Mr. Chapdelaine testified that, though he was employed as a truck driver, he was not working as a truck driver because he was working on the phone directory. Mr. Chapdelaine testified that every year he worked for three or four months on the phone directory and did not work as a truck driver. Following the hearing, the trial court found that a substantial and material change of circumstances had occurred but declined to conduct a comparative fitness analysis. The trial court appointed a Guardian ad Litem to conduct an investigation and offer evidence to the trial court. The hearing reconvened on May 22, 2000 at which time the Guardian ad Litem presented her findings to the trial court. Following the hearing, the trial court ordered the parties to file written proposals for child support of the three minor children. Both Ms. Anness and Mr. Chapdelaine submitted proposals for child support in the event Ms. Anness received custody of the children. Ms. Anness proposed that Mr. Chapdelaine pay $1,480.00 per month in child support. Ms. Anness based this amount on an income of $900.00 per week truck driving and $1,107.84 per month for the phone directory. Ms. Anness claimed that, following the hearing, Mr. Chapdelaine quit his truck driving job so that he would not have to pay child support on that income. Ms. Anness argued that Mr. Chapdelaine was willfully unemployed so that the trial court should set child support based on his ability to earn as a truck driver. Mr. Chapdelaine proposed that he pay $343.00 per month in child support. Mr. Chapdelaine based this amount on his earnings from the phone directory. Mr. Chapdelaine stated that he was no longer truck driving and had no intention of truck driving unless he could be guaranteed a local route. Mr. Chapdelaine claimed that he was not willfully unemployed. On June 19, 2000, the trial court issued an Order which provided that custody of the children be awarded to Ms. Anness and visitation of the children be awarded to Mr. Chapdelaine. The trial court ordered Mr. Chapdelaine to pay Ms. Anness $1,480.00 per month in child support in accordance with the Tennessee Child Support Guidelines. The trial court based this amount on Mr. Chapdelaine’s ability to earn $900.00 per week as a truck driver and his earnings from phone book publishing of $1,107.84 per month. The trial court acknowledged testimony at the hearing that Mr. Chapdelaine was no longer driving a truck but found that Mr. Chapdelaine’s ability to earn had not diminished. The trial court stated that Mr. Chapdelaine was willfully and voluntarily underemployed. This appeal followed. II. Standard of Review The standard of review for a non-jury case is de novo upon the record. See Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R. -2- APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996). III. Law and Analysis The following two issues are presented for our review: (1) whether the trial court incorrectly determined the amount of Mr. Chapdelaine’s child support obligation; and (2) whether Ms. Anness is entitled to an award of attorney’s fees on appeal. We will examine each of these issues in turn. The first issue presented for our review is whether the trial court incorrectly determined the amount of Mr. Chapdelaine’s child support obligation. The trial court found that Mr. Chapdelaine was willfully and voluntarily underemployed. The trial court ordered Mr. Chapdelaine to pay $1,480.00 per month in child support based on his ability to earn $900.00 per week as a truck driver and his earnings from phone book publishing of $1,107.84 per month. Mr. Chapdelaine argues that the evidence presented at the hearing preponderates against the trial court’s finding that he had the ability to earn $900.00 per week as a truck driver. Mr. Chapdelaine requests this Court to establish child support based on his income of $25,389.00 as reflected on his 1999 federal income tax return. In determining child support, courts must apply as a rebuttable presumption the child support guidelines promulgated by the Tennessee Department of Human Services. See TENN. CODE ANN . § 36-5-101(e)(1) (1996). Under the child support guidelines, the amount of child support is calculated based on a percentage of the obligor’s net income. See TENN. COMP. R. & REGS. ch. 1240-2-4-.03 (1994). In certain cases, however, the court must compute child support based on a percentage of the obligor’s potential income rather than net income. See Brooks v. Brooks, 992 S.W.2d 403, 407 (Tenn. 1999). “If an obligor is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by educational level and/or previous work experience.” TENN. COMP. R. & REGS. ch. 1240-2-4-.03(d). In order for the trial court to compute child support based on the obligor’s potential income, the court must make a threshold finding that the obligor was willfully and voluntarily unemployed or underemployed. See Marcus v. Marcus, No. 02A01-9611-CV-00286, 1998 WL 29645, at *3 (Tenn. Ct. App. Jan. 28, 1998). There may be an implicit finding of willful and voluntary unemployment or underemployment on the basis of the trial court’s ultimate decision. See Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at *7 n.7 (Tenn. Ct. App. Aug. 3, 1999) (citing Hyden v. Hyden, No. 02A01-9611-CH-00273, 1997 WL 593800, at *3 (Tenn. Ct. App. Sept. 25, 1997)). The determination of whether an obligor is willfully and voluntarily unemployed or underemployed is dependent upon the factual background of the case. See id. at *3. Willful and voluntary unemployment or underemployment does not occur solely in cases where the obligor becomes unemployed or underemployed with the intent to avoid child support obligations. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996) (citing Ford v. Ford, No. 02A01- -3- 9507-CH-00153, 1996 WL 560258, at *1 (Tenn. Ct. App. Oct. 3, 1996)). Cases differ as to whether an obligor is willfully and voluntarily unemployed or underemployed. See Brooks v. Brooks, 992 S.W.2d 403, 407 (Tenn. 1999) (finding that an obligor who sold his successful business and began a cattle breeding operation was willfully and voluntarily underemployed); Marcus v. Marcus, No. 02A01-9611-CV-00286, 1998 WL 29645, at *1 (Tenn. Ct. App. Jan. 28, 1998) (finding that an obligor who was terminated from his job and started an internet business was not willfully and voluntarily underemployed); Garfinkel, 945 S.W.2d at 748 (finding that an obligor who quit his job in physics to live off income from rental properties was willfully and voluntarily underemployed). In the case at bar, the trial court made an initial determination that Mr. Chapdelaine was willfully and voluntarily underemployed. We agree. In 1999, Mr. Chapdelaine earned $25,385.00 as both a truck driver and owner and publisher of a phone directory. The record reveals that Mr. Chapdelaine quit his job as a truck driver following the April, 2000 hearing. Mr. Chapdelaine’s sole income comes from the phone directory at which he made approximately $13,000.00 in 1999. Although Mr. Chapdelaine is disinclined to work as a truck driver, we agree with the trial court’s finding that Mr. Chapdelaine possesses the ability to earn an income as a truck driver. Mr. Chapdelaine should not be allowed to lessen his child support obligation simply because he chooses to no longer work as a truck driver. Accordingly, we affirm the trial court’s finding that Mr. Chapdelaine was willfully and voluntarily underemployed. Based on Mr. Chapdelaine’s status as willfully and voluntarily underemployed, the trial court set Mr. Chapdelaine’s child support obligation at $1,480.00 per month. The trial court based this amount on Mr. Chapdelaine’s ability to earn $900.00 per week as a truck driver and his earnings from phone book publishing of $1,107.84 per month. We agree with the trial court’s finding that Mr. Chapdelaine earned $1,107.84 per month from phone book publishing. We disagree, however, with the trial court’s finding that Mr. Chapdelaine had the ability to earn $900.00 per week as a truck driver. The child support set by the trial court implies that Mr. Chapdelaine had the ability to earn $46,800.00 per year, or $900.00 per week, as a truck driver. We find no evidence of this in the record. Mr. Chapdelaine’s 1999 federal income tax return reflected an income of approximately $12,000.00 from truck driving. Mr. Chapdelaine testified that at times he had made $400.00 per week, $500.00 per week, or $900.00 per week. Mr. Chapdelaine testified that he did not consistently make $900.00 per week as a truck driver. We find that Mr. Chapdelaine does not have the ability to earn $900.00 per week. Accordingly, we reverse the trial court’s determination of the amount of child support to be paid by Mr. Chapdelaine and remand for a determination of child support based on Mr. Chapdelaine’s net income. The second issue presented for our review is whether Ms. Anness is entitled to an award of attorney’s fees on appeal. Ms. Anness requests this Court to award her attorney’s fees necessitated by this appeal. In support of her request, Ms. Anness cites section 36-5-103(c) of the Tennessee Code. Section 36-5-103(c) permits a person to whom custody is awarded to recover his or her attorney’s fees “incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing.” -4- TENN. CODE ANN . § 36-5-103(c) (Supp. 1999). The decision to award attorney’s fees is within the discretion of the court. See id. We respectfully deny Ms. Anness’ request for attorney’s fees on appeal. IV. Conclusion For the foregoing reasons, the decision of the trial court is affirmed in part and reversed in part. This case is remanded for a determination of child support based on Mr. Chapdelaine’s net income. Costs of this appeal are taxed equally between the Appellant, Michael Mario Chapdelaine, Sr., and the Appellee, Pamela Jean Anness, for which execution may issue if necessary. ___________________________________ ALAN E. HIGHERS, JUDGE -5- 

Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 12-10-1996 New Rock Assets Ptnrs, LP v. Preferred Entity Precedential or Non-Precedential: Docket 95-5306 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "New Rock Assets Ptnrs, LP v. Preferred Entity" (1996). 1996 Decisions. Paper 11. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/11 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected].  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-5306 NEW ROCK ASSET PARTNERS, L.P. v. PREFERRED ENTITY ADVANCEMENTS, INC.; DAML REALTY CORP; ALEXANDER DILORENZO, III; ESTATES OF SOL GOLDMAN; STATE OF NEW JERSEY Preferred Entity Advancements, Inc., and DAML Realty Corp. (Amended per the Clerk's 6/2/95 order) Appellants. On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 93-cv-03371) Argued on December 13, 1995 Before: ROTH, LEWIS and MCKEE, Circuit Judges (Opinion Filed December 10, 1996) Deborah A. Silodor, Esq. (Argued) Solomon and Weinberg Two University Plaza Suite 206 Hackensack, New Jersey 07601 Attorney for Appellee Gregory R. Haworth, Esq. (Argued) Carl A. Rizzo, Esq. Christine R. Smith, Esq. Cole, Schotz, Meisel, Forman & Leonard 25 Main Street, 4th Floor Hackensack, New Jersey 07601  Attorneys for Appellants OPINION OF THE COURT ROTH, Circuit Judge: This appeal presents a series of jurisdictional questions. The underlying dispute is a state law claim involving a mortgage foreclosure action. It gained entry to the federal system via the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. No. 101-73, 103 Stat. 183 (1989), which extends federal jurisdiction to "any civil action, suit, or proceeding to which the [Resolution Trust Corporation (RTC)] is a party." 12 U.S.C. § 1441a(l)(1). Invoking this provision, the RTC filed suit in federal court, seeking foreclosure and related relief on various mortgages. The RTC subsequently sold its interest in the underlying loans and was dismissed from the case. The district court entered summary judgment against the debtor, who appeals on the ground that federal jurisdiction failed when the RTC was dismissed. We will consider in turn the three jurisdictional issues raised by the parties. We begin by rejecting a mootness challenge to our appellate jurisdiction. We next determine that we do not have continuing jurisdiction under § 1441a(l)(1). We then reject the invocation of the "black letter rule" that jurisdiction is only determined at the time of the filing of the complaint. We conclude, however, by looking to the supplemental jurisdiction statute, 28 U.S.C. § 1367. Because we find that this particular case should fall within the supplemental jurisdiction of the district court, we will affirm the grant of summary judgment, even though we found that jurisdiction under § 1441a(l)(1) had terminated. I. On December 23, 1987, Preferred Entity Advancements, Inc., ("Preferred Entity") and DAML Realty Corp. ("DAML") executed and delivered to BRT Realty Trust ("BRT") five promissory notes in the original amounts of $67,965,270; $9,447,920; $2,880,151; $706,659; and $4,000,000. These notes were secured by mortgages on tracts of land in New Jersey and New York. On the same date, BRT assigned a 95% interest in the loan to FarWest Savings and Loan Association ("FarWest"). The Notes and Mortgages contained clauses providing for acceleration and foreclosure in the event of default. On or about March 1, 1991, Preferred Entity and DAML defaulted on their obligations. Meanwhile, on February 15, 1991, the RTC had been appointed receiver for FarWest. On June 18, 1991, BRT and the RTC filed an action in the Superior Court of New Jersey, Chancery Division, Hudson County, seeking foreclosure and related relief on the mortgages secured by New Jersey property. On September 23, 1992, the RTC acquired BRT's remaining 5% interest in the loan. The RTC then dismissed the New Jersey action and, on July 30, 1993, filed this suit in the United States District Court for the District of New Jersey. Jurisdiction rested on 12 U.S.C. § 1441a(l), which grants the federal courts jurisdiction over any proceeding to which the RTC is a party. No discovery or further action took place. On October 5, 1994, New Rock Asset Partners, L.P., ("New Rock") acquired all of the RTC's right, title, and interest in the loans and mortgages. On December 9, 1994, New Rock filed an Amended Complaint stating, inter alia: 1. The Jurisdiction of this Court is invoked pursuant to the Financial Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1441a(l). . . . . 3. Plaintiff, New Rock, is the sole owner and holder of all right, title and interest in the Indebtedness (as defined herein) and the right to repayment thereof, together with all of the collateral security granted for repayment of the Indebtedness, pursuant to the Mortgage Assignments (as defined herein). . . . . 31. New Rock has succeeded to all of RTC's right, title and interest in the Rent Order [obtained against defendants in a previous state court action]. App. at 28-29, 35. On December 14, 1994, New Rock obtained an order substituting itself as plaintiff and dismissing the RTC from the case. Two day later, New Rock moved for partial summary judgment and final judgment of foreclosure. Preferred Entity responded by contesting subject matter jurisdiction and the certifications on which New Rock based its summary judgment motion. New Rock then supplemented its motion with additional certifications. The district court denied Preferred Entity's jurisdictional challenge and granted New Rock's summary judgment motion. Preferred Entity appealed. Since the filing of the appeal, New Rock has executed on its judgment and purchased the New Jersey property at a sheriff's sale conducted on August 10, 1995, by the Sheriff's Office for Hudson County. New Rock is currently pursuing various actions in New York state courts to foreclose on the New York properties. II. The propriety of federal court jurisdiction forms the nub of this case. The district court asserted jurisdiction based solely on 12 U.S.C. § 1441a(l). We exercise appellate jurisdiction over the district court's judgment and final order pursuant to 28 U.S.C. § 1291. Our review of the district court's jurisdictional determinations is plenary. Wujick v. Dale & Dale, Inc., 43 F.3d 790, 792 (3d Cir. 1994). III. A. We will first address New Rock's argument that this appeal has been "mooted in part" because the subject property has been purchased at foreclosure sale and the validity of the foreclosure sale can no longer be disputed. New Rock combines this argument with a citation to our decision in National Iranian Oil Co. v. Mapco Int'l, Inc., 983 F.2d 485 (3d Cir. 1992), contending that this appeal is not moot as to the judgement's collateral estoppel and res judicata effects. This "moot in part, yet not moot in part" argument represents a fundamental misunderstanding of mootness doctrine and National Iranian Oil. We will attempt to clarify the matter. In arguing mootness because of the foreclosure sale, New Rock relies on a Seventh Circuit case, Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260 (7th Cir. 1986), which states the rule in the Seventh Circuit: "In the absence of a stay of the enforcement of a judgment, if a district court judgment authorizes the sale of property and the property is sold to a good faith purchaser during the pendency of the appeal, the sale of property moots the appeal . . .." Id. at 1263. In the case before us, foreclosure and sale have taken place. New Rock contends that this aspect of the appeal is therefore moot. We do not agree. We in the Third Circuit have never addressed the issue of whether foreclosure and sale, purely and simply, would render an appeal moot. It is possible that we might come to that conclusion in an appropriate case after examining the full effects on the dispute of such a foreclosure and sale. But, before so concluding, our precedents require that we first determine if there is still the possibility of granting any effective relief. See National Iranian Oil, 983 F.2d at 489 ("A case is not moot if there is a real and substantial controversy admitting of specific relief through a decree of conclusive character") (citations omitted); In re Joshua Slocum, Ltd., 922 F.2d 1081, 1085-86 (3d Cir. 1990) (declining to moot appeal in landlord- tenant dispute where landlord failed to obtain stay; court could still grant effective relief); Main Line Fed. Sav. & Loan Ass'n v. Tri-Kell, Inc., 721 F.2d 904, 907 (3d Cir. 1983) ("the determination that a case is moot requires that there be nothing gained by reaching a decision"); see also New Jersey Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 30 (3d Cir. 1985) (discussing mootness in terms of inability to grant effective relief). If effective relief can be granted, then this appeal is not moot. We have commented in dictum on the possibility of effective relief remaining when a party has challenged a court's jurisdiction over a judgment used to foreclose property. In Raymark Indus., Inc. v. Lai, 973 F.2d 1125 (3d Cir. 1992), we rejected the plaintiff's contention that because money that the defendant had posted in lieu of a supersedeas bond had been disbursed, meaningful relief was precluded and the defendant's appeal was moot. We noted that if the state court order was improper and void ab initio, then the defendant could seek to "undo the harm it suffered." Id. at 1128. We analogized the defendant's position to that of an appellant who has not obtained a stay of execution on the underlying judgment pending appeal when the appellee executes on its judgment while the appeal is pending. The execution does not render the appeal moot since a reversal would allow the appellant to seek either a money judgment or return of the funds or property seized in the execution.  Id. at 1129. This situation is similar to the case before us. Applying the effective relief test, we have little difficulty finding this appeal justiciable. If the district court lacked subject matter jurisdiction and its order were void ab initio, then as indicated in Raymark, Preferred Entity could seek a variety of relief both by attempting to recover damages for the seizure of the New Jersey property and by resisting the foreclosure action in New York. Given this potential for an effective remedy, the current appeal is not moot. Because we find that the foreclosure sale has not mooted the appeal, we do not need to address New Rock's "partial mootness" theory. New Rock would have us moot the propriety of the district court's granting of summary judgment while still giving collateral estoppel effect to that judgment. We do not wish impliedly to give our stamp of approval to such a concept. We will therefore briefly point out the invalidity of the theory. In making its argument on "partial mootness," New Rock points to language in National Iranian Oil which supports its position that a judgment having possible collateral legal consequences, including collateral estoppel effect in similar actions, is not moot. 983 F.2d at 490. The problem with New Rock's argument is that the example of collateral estoppel is only one of several examples that we gave in National Iranian Oil of effects, such as a viable claim for damages or a likelihood that the parties will relitigate the same issue, that will support a finding that a matter is not moot. If any one of these factors is established, the entire judgment is saved from mootness. It is not just a portion of the judgment which survives. If, however, the appeal is moot, it is entirely moot and it will have no res judicata effect. Id. at 489 (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950); Clarendon Ltd. v. Nu-West Indus., Inc., 936 F.2d 127, 130 (3d Cir. 1991)). The need that a judgment have a res judicata effect may be enough to support a determination that a judgment is not moot. We recognized in National Iranian Oil that such a need for preclusive effect may be a sufficient reason to reject mootness. 983 F.2d at 490. However, if we come to such a conclusion, i.e., that we will reject mootness so that a judgment has res judicata effect, then a fortiori the entire matter is not moot. New Rock cannot have a res judicata effect to assist it in the New York foreclosure actions and at the same time have a declaration that the granting of summary judgment by the district court, or the propriety of that judgment, is moot. A case is either moot or not. Because the potential for effective relief remains, this case is not moot. B. We now turn to the central jurisdictional issues raised in this appeal. 1. Preferred Entity challenges the district court's granting of summary judgment based on the absence of federal jurisdiction. New Rock's sole asserted basis for jurisdiction is 12 U.S.C. § 1441a(l), which grants the federal courts original jurisdiction over any case to which the RTC is a party. Preferred Entity argues that because New Rock intervened in the suit and filed an amended complaint naming itself as sole plaintiff, the RTC is no longer a party to the action and § 1441a(l) cannot support jurisdiction. Although this question presents a difficult problem of statutory interpretation, we conclude that Preferred Entity is correct in its reading of § 1441a(l). Preferred Entity's contention forces us to explore a gray area of FIRREA jurisdiction. It seems clear that jurisdiction under § 1441a(l) would not attach had the RTC sold the loans to New Rock before litigation or had New Rock filed its own action. In such a scenario, the RTC would never have been a party to the case, and the RTC cannot pass its jurisdictional rights by contract. It seems equally clear that federal jurisdiction would attach if the RTC had remained a party to the case, regardless of its capacity. Spring Garden Assoc., L.P. v. Resolution Trust Corp., 26 F.3d 412, 415-17 (3d Cir. 1994) (finding jurisdiction where RTC substituted itself for defendant and removed entire action to federal court); Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 66-67 (3d Cir. 1993) (finding jurisdiction where RTC substituted itself for plaintiff and removed after state court judgment had been appealed). The issue is therefore whether § 1441a(l) provides for continuing jurisdiction where the RTC was once a party but has since been dropped from the case. This question raises a matter of first impression for this circuit. Indeed, few courts have ever considered it. Of the federal appellate tribunals, only the United States Court of Appeals for the Fifth Circuit has addressed the issue. Federal Sav. & Loan Ins. Corp. v. Griffin, 935 F.2d 691 (5th Cir. 1991), cert. denied, 502 U.S. 1092 (1992). Several district courts have reached it, including the Western District of Pennsylvania. Skaro v. Eastern Sav. Bank, 866 F. Supp. 229 (W.D. Pa. 1994). Skaro relied almost exclusively on Griffin, as did the district court here. By contrast, in Mill Investments, Inc. v. Brooks Woolen Co., Inc., 797 F. Supp. 49 (D. Me. 1992), the United States District Court for the District of Maine discussed Griffin thoroughly and reached contrary conclusions. After conducting our own independent analysis of the matter, we find that we disagree with Griffin and agree with Mill Investments. The scope of § 1441a(l) presents a question of statutory interpretation. This process begins with the plain language of the statute. Santa Fe Medical Services, Inc. v. Segal (In re Segal), 57 F.3d 342, 345 (3d Cir. 1995); Spring Garden, 26 F.3d at 415; see United States Trustee v. Price Waterhouse, 19 F.3d 138, 141 (3d Cir. 1994). "Where . . . the statute's language is plain, 'the sole function of the court is to enforce it according to its terms.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). Plain meaning is conclusive, "except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" Id. at 242 (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). In determining the plain meaning of FIRREA, we have consistently looked to its legislative history. Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 911 (3d Cir. 1990); see Hudson United Bank v. Chase Manhattan Bank of Conn., N.A., 43 F.3d 843, 849 n.14 (3d Cir. 1994) ("As this is a matter of statutory construction, consideration of the legislative history would be appropriate."). We have also examined "the atmosphere in which [the statute] was enacted." Carteret Savings Bank, F.A. v. Office of Thrift Supervision, 963 F.2d 567, 574 (3d Cir. 1992). Only if the plain language of the statute remains ambiguous after these steps will we "resort to other rules of statutory construction . . .." Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 64 (3d Cir. 1993) (finding ambiguity in removal provision of § 1441a(l)(3)(A) and (C)). These principles establish the requisite steps in our inquiry. We note at the outset that we reach our conclusion based on plain meaning. We find neither a "literal application of the statute [that] would produce a result demonstrably at odds with the intentions of its drafters," Ron Pair Enter., 489 U.S. at 242, nor an ambiguity that forces us to invoke general canons of statutory construction, Nernberg, 3 F.3d at 64. We begin with the provision itself. Both the initial and amended complaints ground jurisdiction with a general cite to § 1441a(l). This section, entitled "Power to remove; jurisdiction," contains three parts. Section 1441a(l)(1) sets out a general jurisdictional grant creating original jurisdiction in the federal courts. Section 1441a(l)(2) provides for substitution of the RTC as a party for the RTC's predecessors in thrift supervision, the now-defunct Federal Saving and Loan Insurance Corporation ("FSLIC"), the equally defunct Federal Home Loan Bank Board ("FHLBB"), and the reconstituted and redirected Federal Deposit Insurance Corporation ("FDIC"). Section 1441a(l)(3) sets forth specific procedures for removing actions from state court where the RTC is a party. The vast majority of case law addresses this final provision. See, e.g., Wujick v. Dale & Dale, Inc., 43 F.3d 790, 792-94 (3d Cir. 1994) (addressing jurisdictional sufficiency of removal by RTC; dismissing claim against RTC due to plaintiff's failure to exhaust remedies). Despite New Rock's general citation to § 1441a(l), neither part (2) nor part (3) is relevant. The RTC began the case as a party, obviating the need for § 1441a(l)(2). The case was originally filed in federal court, eliminating the need for § 1441a(l)(3). This case turns on § 1441a(l)(1). Section 1441a(l)(1) states: (1) In general Notwithstanding any other provisions of law, any civil action, suit, or proceeding to which the [RTC] is a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction over such action, suit, or proceeding. 12 U.S.C. § 1441a(l)(1). Preferred Entity contends that the plain language of § 1441a(l)(1) provides for jurisdiction only over cases where the RTC is a party but not where it was a party. In the current action, the RTC transferred its loans to New Rock, the court dismissed the RTC from the case, and New Rock filed an amended complaint naming itself as the sole plaintiff. Preferred Entity contends that the RTC consequently is no longer a party and jurisdiction no longer exists. New Rock argues instead that the case is controlled by the principle that jurisdiction is determined at the time the action is commenced, both as a matter of statutory interpretation and, as discussed in Part III.B.2, a matter of black letter law. Under § 1441a(l)(1), this result is obtained by reading the statute to create federal jurisdiction which, once established at the outset by the presence of the RTC as a party, continues throughout the litigation, whether or not the RTC remains as a party. We can divine no conclusive method of deciding between the two alternative readings of § 1441a(l)(1) from the text of the statute alone. Cf. Hudson United Bank, 43 F.3d at 849 ("It is true that FIRREA is awkwardly written and difficult to interpret."). Nevertheless, we find Preferred Entity's reading more persuasive. It encompasses the presence of the RTC as a party. Moreover, it reads the statute narrowly rather than expansively. See discussion, infra. Were we forced to rely solely on the words of the statute, we would agree with Preferred Entity. But other sources remain. Following Smith v. Fidelity Consumer Discount Co. and Hudson United Bank, we next turn to legislative history to clarify plain meaning. Unfortunately, the legislative history of § 1441a(l)(1) provides minimal assistance. The current provision became law as 1989 Pub. L. No. 101-73 § 53(l)(1), 103 Stat. 389. The House Report's lone comment reads: Subsection (o) [sic.] provides that suits by or against the RTC shall arise under the laws of the United States and can be removed to the District Court of the District of Columbia or if the suit arises out of actions by the RTC with respect to an institution for which a conservator or receiver has been appointed in the district court in which the institution's principal place of business is located. H.R. Rep. No. 101-54(I), 101st Congress, 1st Sess. 362 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 158. This passage does little more than reiterate the language of the bill and demonstrate that the provision was concerned first and foremost with removal. The substitution of the phrase "by or against the RTC" provides some support for the narrow reading proposed by Preferred Entity, but the same arguments for competing interpretations apply. Like the plain language of the statute, the legislative history favors Preferred Entity, but only slightly. Stronger support for a narrow reading flows from the next source to which we have looked in interpreting FIRREA, "the atmosphere in which [the statute] was enacted." Carteret Savings, 963 F.2d at 574. Carteret describes that atmosphere. In 1989, the thrift industry was in crisis. As the House Report noted, "[t]he nation's thrift industry and its deposit insurance fund, the [FSLIC] are currently in precarious financial condition and consumer confidence in the savings and loan industry is waning." H.R. Rep. No. 54, 101st Cong., 1st Sess., pt. 1, at 302 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 98. The 2,949 FSLIC-insured savings institutions holding deposits of $971 billion and assets of $1.35 trillion lost $12.1 billion in 1988. Id. at 303, reprinted in 1989 U.S.C.C.A.N. at 99. The FSLIC was in a combined deficit position of at least $56 billion by the end of 1988. Id. at 304, reprinted in 1989 U.S.C.C.A.N. at 100. Rapidly declining consumer confidence led to record deposit withdrawals by consumers. Id. at 305, reprinted in 1989 U.S.C.C.A.N. at 101. Congress believed that the Bank Board, inter alia, had repeatedly understated the magnitude of the problem. Id. Id. at 574-75. In this atmosphere of crisis, Congress passed FIRREA to serve several important purposes. As framed by the statute, these purposes included: "(7) To establish a new corporation, to be known as the Resolution Trust Corporation, to contain, manage, and resolve failed savings associations." 1989 Pub. L. No. 101-73 § 101, 103 Stat. 187. The House Report stated this goal in more general terms: "The primary purposes of [FIRREA] are to . . . establish organizations and procedures to obtain and administer the necessary funding to resolve failed thrift cases and to dispose of the assets of these institutions . . . and, enhance the regulatory enforcement powers of the depositor institution regulatory agencies . . .." H.R. Rep. No. 101- 54(I), 101st Congress, 1st Sess. 308 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 104. To serve these purposes, FIRREA established the RTC "to manage and dispose of assets acquired from failed thrifts." Id. Although not expressly discussed in the legislative history, § 1441a(l)(1)'s grant of federal jurisdiction relates to these purposes in obvious ways. It gives the RTC the benefit of a federal forum and a uniform body of federal law for its receivership activities. The federal forum is also a boon to the RTC both in pursuing claims and defending actions against the thrifts over which it had assumed control. The broader scope of a federal remedy similarly boosts the RTC's enforcement authority. Federal jurisdiction thus helps the RTC "manage and dispose of assets acquired from failed thrifts." Id. The role of federal jurisdiction in assisting the RTC in its management role and in disposing of thrift assets also indicates that once this has been accomplished, the reasons for federal jurisdiction end. Once the RTC has successfully managed a thrift and either restored it to solvency or transferred its assets to willing buyers, the agency's role-- and hence the logic of jurisdiction--no longer exists. This reading indicates why the terms of the statute limit federal jurisdiction to cases in which the RTC "is a party." The RTC will presumably only be a party where it is engaged in active management and disposal of thrifts and thrift assets. The RTC will no longer be a party--and jurisdiction will no longer apply--once the RTC has managed a thrift and its assets have been disposed. The atmosphere surrounding FIRREA and the purposes of the statute thus provide additional support for Preferred Entity's reading of § 1441a(l)(1). Once New Rock became "the sole owner and holder of all right, title and interest in the Indebtedness," and once it "succeeded to all of RTC's right, title and interest in the Rent Order [obtained against defendants in a previous state court action]," the RTC's interest in the loans had been managed and disposed. The RTC no longer had any role in the action, and the agency was dropped from the case. Similarly, there was no longer any reason for federal jurisdiction, and § 1441a(l)(1)'s power lapsed. Given the purposes of FIRREA, Preferred Entity's jurisdictional stance is correct. Based on the language of § 1441a(l)(1), its legislative history, and the background and purpose of FIRREA, we conclude that the plain meaning of the statute precludes continuing jurisdiction over an action where the RTC is no longer a party. Section 1441a(l)(1) will not support jurisdiction in this case. In Federal Sav. & Loan Ins. Corp. v. Griffin, 935 F.2d 691 (5th Cir. 1991), the Fifth Circuit reached the opposite conclusion. Griffin involved a similar scenario in which the FSLIC, acting as receiver for a failed thrift, removed a contract action to federal court. With the passage of FIRREA, the FDIC replaced the FSLIC. Jurisdiction was based on 12 U.S.C. § 1819, the FDIC's jurisdictional provision corresponding to the RTC's § 1441a(l). See Spring Garden, 26 F.3d at 416 n.7 (noting parallels between statutes); Nernberg, 3 F.3d at 66 n.2 (same). The FDIC assigned the contract action to a thrift that had acquired the assets and liabilities of the failed institution, after which it "apparently no longer pursu[ed] any claims." 935 F.2d at 694. This left the thrift and the private defendant as the only parties. Griffin nevertheless asserted jurisdiction. Griffin based its conclusion primarily on policy concerns. Without citation to caselaw or legislative history, the court concluded that policy reasons for insuring federal jurisdiction over cases involving the actions of failed thrifts continue when the FDIC is voluntarily dismissed as a party and the owner of the failed thrift's assets remains. A transferee from FSLIC or FDIC, as successor of their interests, is still entitled to the protection of federal courts applying D'Oench Duhme, even when FSLIC or FDIC is voluntarily dismissed. 935 F.2d at 696. In response to Griffin, the district court in Mill Investments, Inc. v. Brooks Woolen Co., Inc., 797 F. Supp. 49 (D. Me. 1992), explored the policies behind FIRREA's jurisdictional grant and reached the same conclusions about its plain meaning that we have reached here: FIRREA was enacted to deal with a banking crisis and "to smooth the modalities by which rehabilitation might be accomplished." Serge Marquis v. Federal Deposit Insurance Corp., 965 F.2d at 1154. It is clear to the Court that this policy is not advanced in any significant way by  retaining federal jurisdiction once the failed bank's assets have been assigned to a private company. The expanded federal jurisdiction and other procedural protections of FIRREA may "tremendously increase the FDIC's ability to carry out its regulatory and enforcement responsibilities under FIRREA." Matter of Meyerland Co., 960 F.2d 512, 519 (5th Cir. 1992). While the procedural protections also allow, "the FDIC to effectively and aggressively protect a failed bank's interests and assets," id.at 519-20, it can no longer do so when it is no longer a party to the case and when those assets have successfully been assigned to another. In essence, one of the goals of the statute has been achieved on a micro level once the assets have been assigned. 797 F. Supp. at 53-54. We agree. Contrary to Griffin's naked assertion, the policy reasons for federal jurisdiction end when the FDIC or RTC leaves the case. Mill Investments also dealt with Griffin's claim that the need for federal enforcement of the D'Oench, Duhme doctrine supported jurisdiction. "D'Oench, Duhme is a federal estoppel doctrine which prohibits borrowers or guarantors from using secret or unrecorded side agreements to defend against efforts by FDIC or its assignees to collect on promissory notes it has acquired from a failed bank." Id. at 54 (citation omitted); see generallyAdams v. Madison Realty & Dev., Inc., 937 F.2d 845, 852-54 (3d Cir. 1991) (discussing D'Oench Duhme). The Mill Investments court saw no reason why state courts could not enforce these defenses. 797 F. Supp. at 54. We also have faith in the competence of state tribunals. Griffin's D'Oench, Duhme policy rationale is not convincing. As a result, we find Griffin's position on § 1441a(l)(1) unpersuasive. By contrast, our reading of the statute is consistent with the purpose of FIRREA as expressed in the statute and its legislative history. We also note that our reading is consistent with general policies underlying federal jurisdiction. These principles include the limited nature of federal jurisdiction and the goal of not interfering in the business of the states. The limited nature of federal jurisdiction needs little discussion. This principle marks a fundamental precept of the American court system. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Interpreting § 1441a(l)(1) narrowly comports with this general rule. See Lyon v. Whisman, 45 F.3d 758, 763-64 (3d Cir. 1995) (interpreting narrowly jurisdiction under Fair Labor Standards Act); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941) (interpreting jurisdictional statute narrowly). A narrow reading of § 1441a(l)(1) also comports with the need to avoid interfering in state court matters. In BFP v. Resolution Trust Corp., ___ U.S. ___, 114 S.Ct. 1757 (1994), the Supreme Court recognized this interest in considering the impact of a federal bankruptcy provision on state foreclosure law: Federal statutes impinging on important state interests cannot be construed without regard to the implications of our dual system of government. When the Federal Government takes over local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating must be reasonably explicit. It is beyond question that an essential state interest is at issue [in property foreclosures] . . .. To displace traditional State regulation in such a manner, the federal statutory purpose must be clear and manifest. Otherwise, the [statute] will be construed to adopt, rather than to displace, pre- existing state law. Id. at 1764-65 (citations and alterations omitted). We have previously expressed similar concerns about § 1441a(l). We note with some uneasiness that . . . the Resolution Trust removal statute does not exclude [purely state law] cases. The language of the statute thus allows Resolution Trust to remove routine collection and foreclosure cases to the already overburdened federal courts. . . . It is a serious question whether such litigation is properly the[ir] role. Nernberg, 3 F.3d at 68 n.3. In this passage, we were commenting on post-judgment removal from state court where the RTC had been substituted as a party. In such a scenario, the RTC becomes an active participant in the case, injecting a federal element and creating a basis for removal. We nonetheless questioned the role of the federal courts in resolving such a dispute. The concerns expressed in Nernberg are equally appropriate and even accentuated in the current context, where the RTC was once a party to the case but has now been dismissed, leaving a purely state law matter. Extending jurisdiction to federalize this class of foreclosure actions absent a "clear and manifest" legislative intent would conflict with the Supreme Court's ruling in BFP. 114 S.Ct at 1765. Our examination of the plain meaning of § 1441a(l)(1) shows that no such "clear and manifest" intent exists. Our interpretation of the statute thus coheres with the federal goal of avoiding interference in state concerns. For these reasons, we conclude that once the RTC left the case, § 1441a(l)(1) could no longer support federal jurisdiction. We will reverse the district court's exercise of jurisdiction pursuant to this provision. 2. Having determined that the language of § 1441a(l)(1) will not support continuing jurisdiction, we must next address New Rock's argument that the "black letter rule" that jurisdiction is determined at the time of filing preserves jurisdiction after the RTC's dismissal. We disagree. The principle that jurisdiction is determined at the outset of the action is simply insufficient to support the continuing applicability of § 1441a(l)(1) to this case. One basic difficulty with this argument is that the letter and spirit of the rule apply most clearly to diversity cases. The Supreme Court set out the rule in the diversity context. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 286, 290-92 (1938). In addition, the Court crafted the rule for the removal of actions from state court, which involves a more lenient standard not relevant here. Id. Most importantly, the policies behind removal and the risks of manipulative behavior played a significant role in the Court's decision. St. Paul focused primarily on the monetary threshold for federal jurisdiction, observing that the time of filing rule prevented plaintiffs from subsequently amending their complaint to plead a lesser amount and avoid removal. Id. at 294. Similar concerns applied to changes of parties that would potentially destroy diversity of citizenship. Id.at 294-95. From the outset, the underlying concern of the time of filing rule was the risk that parties would deploy procedural tactics to manipulate federal jurisdiction. The rule that jurisdiction is assessed at the time of the filing of the complaint has been applied only rarely to federal question cases. Moreover, in these rare cases, the rule has often been applied axiomatically, without extensive discussion or analysis. See Rosa v. Resolution Trust Corp., 938 F.2d 383, 392 n.12 (3d Cir.), cert. denied, 502 U.S. 981 (1991); see also F. Alderete General Contractors, Inc., 715 F.2d 1476, 1480 (Fed. Cir. 1983) (observing in government contracts action that "the decision below is at variance with the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties"). Even in the federal question context, however, the focus of the time of filing rule has been on preventing manipulation of jurisdiction when a claim is removed. As we observed in Westmoreland Hospital Ass'n v. Blue Cross of Western Pa., "a subsequent amendment to the complaint after removal designed to eliminate the federal claim will not defeat federal jurisdiction." 605 F.2d 119, 123 (3d Cir. 1979) (emphasis added), cert. denied, 444 U.S. 1077 (1980). Along with the obvious goal of judicial efficiency, we perceive the risk of strategic behavior as the primary rationale behind the time of filing rule. Manipulation of jurisdiction is simply not at issue in this case. There is no suggestion of manipulation, nor would the facts support it. The jurisdiction-destroying transfer of assets between the RTC and New Rock was an arms length transaction independent of the jurisdictional issue. Without the possibility of manipulative behavior, the primary policy behind the time of filing rule is not implicated. Our rejection of an absolute time of filing requirement breaks no new ground. Courts that have considered the rule more fully have not hesitated to abandon it where appropriate. In Boelens v. Redman Homes, Inc., 759 F.2d 504 (5th Cir. 1985), the Fifth Circuit discussed the policies behind the time of filing rule and held that in a federal question case, where the plaintiff's amended complaint omitted federal counts included in the original complaint on which jurisdiction could be based, the court would look to the amended complaint and decline jurisdiction. Id. at 508. The Fifth Circuit interpreted this rule as consistent with the general principle that the amended complaint "supersedes the original and renders it of no legal effect, unless the amended complaint specifically refers to or adopts the earlier pleading." Id. at 508.  We were equally quick to reject the time of filing rule in Lovell Mfg. v. Export- Import Bank, 843 F.2d 725 (3d Cir. 1988): Lovell . . . cites several older Third Circuit cases for the proposition that our determination of jurisdiction should be based solely on the basis of the pleadings, and not on subsequent events. . . . We are uncertain that these cases stand for the broad proposition for which Lovell cites them. However, regardless of what they once might have stood for, and regardless of the merit of these principles elsewhere, plainly they do not reflect recent Third Circuit jurisprudence. As Lovell itself concedes, later cases clearly hold that once all federal claims have been dropped from a case, the case simply does not belong in federal court. Id. at 734 (citations omitted). We concluded by observing "that to the extent a black-letter rule ever existed, precluding a court from relying on post-removal events . . ., the Supreme Court clearly did not feel bound by it in Carnegie-Mellon Univ. v. Cohill, ___ U.S. ___, 108 S.Ct. 614 (1988)." Id. at 735. Although the time of filing rule certainly retains a large measure of persuasive efficacy, we read Lovell as a clear rejection of any iron-clad time of filing requirement. Cf. Carr v. American Red Cross, 17 F.3d 671, 683-84 (3d Cir. 1994) (federal jurisdiction arising from the involvement of the American Red Cross in a case will cease on the dismissal of the Red Cross from the case). As a result, merely reciting the time of filing rule is not enough to support jurisdiction in this case. Although invoking this general principle has some surface appeal, the rule rests on policies that are not served by its application to these facts. There is also significant authority that supports our decision to diverge from it. New Rock's black letter maxim will not give the federal courts the power to hear this state law claim. 3. We have concluded that once the RTC was dismissed from the case, jurisdiction in the district court could no longer rest on § 1441a(l)(1). We now consider whether the district court had supplemental jurisdiction over the claims pursuant to 28 U.S.C.§ 1367 after the RTC, the jurisdiction-conferring party, was dismissed and after the district court had invested considerable judicial resources and had resolved the case on its merits. We conclude that § 1367 provided supplemental jurisdiction under the circumstances of this case. Our holding means only that the district court had the discretion to retain jurisdiction after the RTC was dismissed; it does not suggest that the district court was obligated to resolve the case after the RTC dismissed, nor does it even suggest that district courts should retain jurisdiction in similar situations. The question before us has two components. First, did Congress intend with 28 U.S.C. § 1367 to provide the federal courts with the discretion to exercise supplemental jurisdiction in the situation that we face here? Second, if this was Congress' intent, does this grant of jurisdiction exceed the scope of Article III of the United States Constitution? Because it best introduces the issues involved in this case, we begin with the second question. The district court had jurisdiction over this action at the outset of the litigation pursuant to 12 U.S.C. § 1441a, which provides that any suit to which the RTC is a party "shall be deemed to arise under the laws of the United States." This jurisdictional grant did not expand the jurisdiction of the federal courts beyond that permissible under Article III. Brockman v. Merabank, 40 F.3d 1013, 1017 (9th Cir. 1994); see also Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824); American National Red Cross v. S.G., 505 U.S. 247, 264, 112 S.Ct. 2465, 2475-6 (1993). The question before us now is whether Congress could extend this jurisdiction to include cases to which the RTC was party, but is no longer, without exceeding the bounds of Article III. The Supreme Court delineated the modern constitutional bounds of pendent jurisdiction in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). In that opinion, the Court considered when federal courts have jurisdiction over state claims which are related to federal claims between the same parties, but over which the federal courts have no independent basis for subject matter jurisdiction. The Court concluded that federal courts have the power to hear a state claim if the federal claim has "substance sufficient to confer subject matter jurisdiction on the court," and the state and federal claims "derive from a common nucleus of operative facts." 383 U.S. at 725. This question is ordinarily resolved on the pleadings. The decision to exercise this power, on the other hand, remains open, and should be based on considerations of "judicial economy, convenience and fairness to the litigants." 383 U.S. at 726-727. Once a court has decided to exercise jurisdiction over the state claim, however, elimination of the federal claim does not deprive the court of the constitutional power to adjudicate the pendent claim. Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 479 (3d Cir. 1979). Can this continuing jurisdiction over a state claim exist when, rather than the federal claim being eliminated, the federal claim itself becomes a state claim? The Supreme Court recently cited to Gibbs in a context analogous to the one with which we are faced. In Gutierrez de Martinez v. Lamagno, __ U.S. __, 115 S.Ct. 2227 (1995) a bare majority of the Court held that under the Federal Employees Liability Reform and Tort Compensation Act (the "Westfall Act"), the federal courts could review certification by the Attorney General that an employee sued for a wrongful or negligent act was acting within the scope of his or her employment or office at the time of incident. If the Attorney General so certifies, the employee is dismissed from the action, the United States is substituted as the defendant, the case falls within the Federal Tort Claims Act. If the case is not already in federal court, it is then removed from state court by the Attorney General. 115 S.Ct. at 2229, 2235. Once in federal court the certification decision by the Attorney General is reviewable. Article III comes into play in this situation because if the district court concludes that the employee acted outside the scope of employment and thus rejects the certification, the individual defendant must be resubstituted and the United States will no longer be a party. If the parties are not diverse, the federal court could be left "with a case without a federal question to support the court's subject matter jurisdiction." Id. at 2236. Under the statute, the Attorney General's certification is conclusive for the purposes of removal, suggesting that even if the certification is rejected by the federal court and the United States is no longer a party, remand is not permissible. Although Lamagno itself did not raise this issue because the parties were diverse, the Court considered whether the statute should be interpreted to avoid this potential constitutional problem. A four justice plurality cited to Gibbs in concluding that any Article III problem was not "a grave one." 115 S.Ct. at 2236. At the outset of the litigation, the Court reasoned, there was a significant federal question - whether the employee acted within the scope of his federal employment. Resolving this question, the Court concluded, involved consideration of the facts relevant to the underlying tort claims, thus "‘considerations of judicial economy, convenience and fairness' [citation to Gibbs omitted] make it reasonable and proper for the federal court to proceed beyond the federal question to final judgment once it has invested time and resources." Id. at 2237. Therefore, even if the United States were replaced by a non-diverse party, and there was no other basis for federal jurisdiction, the federal court nonetheless retained jurisdiction over the case without running afoul of Article III. Justice Souter dissented, joined by three other Justices, reasoning in part that "requiring" a federal court to keep jurisdiction over the case after the United States was no longer a party "must at least approach the limit [of ‘arising under' jurisdiction under Article III], if it does not cross the line." Id. at 2239. The certification question could not provide the basis for jurisdiction, according to the dissent, because that question itself was jurisdictional. In part to avoid testing the limits of Article III, the dissent read the statute as prohibiting review of the Attorney General's certification by the district court. In our case there was federal jurisdiction at the outset of the litigation - the presence of the RTC - which does not implicate the concerns of the dissent in Lomagno. Jurisdiction springs not from the question of jurisdiction itself, but from the involvement of the RTC. Moreover, unlike the dissent's reading of the statute at issue in Lomagno, the supplemental jurisdiction statute at issue in this case does not "require" the district court to keep jurisdiction, it merely permits it to do so. The considerations of "judicial economy, convenience and fairness" cited by the Lomagno plurality are particularly compelling in this case where the district court has completely resolved the dispute on its merits. Requiring the parties to re-try the case in state court would needlessly duplicate the resources expended by the federal courts. We thus conclude that in such a case, where the jurisdiction-conferring party drops out and the federal court retains jurisdiction over what becomes a state law claim between non-diverse parties, the bounds of Article III have not been crossed. See Garcia v. U.S., 88 F.3d 318, 324 (5th Cir. 1996) (agreeing with Lomagno plurality that even after the United States was dismissed as party, Article III did not prevent federal court from resolving case on the merits); see alsoAliota v. Graham, 984 F.2d 1350 (3d Cir. 1993), cert. denied, 510 U.S. 817 (1994) (holding Attorney General's certification reviewable and that the case could not be remanded if the certification was invalidated and the United States was no longer a party). An analogy to diversity jurisdiction supports our conclusion. In diversity cases a change in domicile that destroys the original basis for federal subject matter jurisdiction does not divest the federal courts of jurisdiction to continue to hear the case. Mullen v. Torrence, 22 U.S. (9 Wheat.) 537 (1824); Clarke v. Mathewson, 37 U.S. (12 Pet.) 164 (1838). We have rejected an iron-clad "time of filing rule" that federal jurisdiction at the outset of a case is dispositive as to jurisdiction throughout the case. In rejecting the rule as dispositive, however, we do not suggest that jurisdiction at the outset of the case is irrelevant as to whether the district court continued to have jurisdiction after the RTC was dismissed. Indeed it is the initial jurisdiction over the case that provides the constitutional power for the court to continue to hear it. Finally, we note that a contrary conclusion would seriously limit the ability of Congress to provide a federal forum for litigation initiated by federally- created entities. For example, it would prevent Congress from deciding, after initially putting the case in federal court, that judicial economy required that that court have the discretion to keep the case. Congress would not even have the power to give continuing jurisdiction over the case for reasons related to the interests of the jurisdiction-conferring party. In this case, for example, the RTC may have more difficulty disposing of its assets if the purchaser knows that any litigation concerning those assets must be started anew in state court. Cf. Freeport-McMoran, Inc. v. K.N. Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 860 (1991) (using this reasoning to support the rule that diversity jurisdiction, once established, is not defeated by the addition of a non-diverse party). We conclude that Article III does not require such a significant limitation on Congress' power to give jurisdiction to the federal courts of cases involving federally-created entities. We now go to the second part of the inquiry. We have determined that Congress had the power to permit this case to continue to be heard in federal court. But is this what Congress intended under 28 U.S.C. § 1367? We turn first to the language of section 1367(a) which provides: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder of additional parties. 28 U.S.C. § 1367. Under subsection (c), the district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-- (1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Id. (emphasis supplied). Applying the statute to this case, we have pointed out that original jurisdiction pursuant to § 1441a(l)(1) existed when the RTC first filed this action. This satisfies § 1367(a). We have held that when the district court dismissed the RTC from the case, it no longer had jurisdiction under § 1441a(l)(1). This transition triggers a discretionary decision on whether jurisdiction over a state law claim should be declined pursuant to § 1367(c)(3). The plain language of the statute makes declination permissive, not mandatory. We recognize that Congress may not have contemplated the precise issue raised by this case when it drafted the supplemental jurisdiction statute. Section 1367 appears to address multiple state and federal claims growing out of the same case and controversy or existing between the parties. Here, by contrast, we have a single claim that due to the accidents of circumstance has shifted mid-action from a claim arising under federal law to a claim existing under state law. We believe, however, that the supplemental jurisdiction statute, particularly through its underlying purpose of judicial efficiency, extends to this case. See Mill Investments Inc. v. Brooks Woolen Co. Inc., 797 F. Supp. 49, 51-53 (D.Me. 1992) (considering § 1367); see also Kansas Pub. Employees Retirement Sys. v. Reimer & Kroger Assoc. Inc., 61 F.3d 608, 611 (8th Cir. 1995) (noting that after RTC removed case and was then dismissed, district court denied motion to remand to state court and asserted supplemental jurisdiction under § 1367). We do not suggest, of course, that the district court would have erred had it dismissed the case after the RTC was no longer a party. We decide only that this case comes within § 1367(a) and the district court therefore had the discretion to exercise supplemental jurisdiction after dismissal of the RTC. Several factors support our conclusion. First, the statute specifically provides that the federal court may decline (and by implication, may chose to exercise) jurisdiction over supplemental claims even when the "district court has dismissed all claims over which it has original jurisdiction." (emphasis supplied). § 1367(c)(3). The situation which the statute specifically contemplates, in which the jurisdiction-conferring claims are "dismissed" and the court retains jurisdiction over the other claims, is difficult to distinguish from this case in which the jurisdiction-conferring party is dismissed. In both situations the jurisdiction-conferring element of the case drops out, and the federal court is left with a state law claim. Moreover, this case is not one in which the dismissal of the RTC meant that the case was never properly in federal court. Congress put the case in federal court under § 1441a, and in doing so acted well within the scope of Article III. In applying § 1367 we have suggested a distinction between dismissal of a case for lack of subject matter jurisdiction, which means that § 1367(a) may not apply at all, and dismissal for failure to state a claim, which does not preclude application of § 1367(a). See Growth Horizons, Inc. v. Delaware Co., 983 F.2d 1277, 1284 (3d Cir. 1993). But Growth Horizons did not address the issue here - whether § 1367 applies where the court had subject matter jurisdiction at the outset of the case, but after the dismissal of a jurisdiction-conferring party no longer does. In this case, we distinguish between jurisdictional defects that deprive the court of jurisdiction altogether, and those that arise only after the court has jurisdiction. Cf. State Farm Mutual Automobile Insurance Company v. Powell, 87 F.3d 93, 97 (3d Cir. 1996) (making this distinction in diversity cases); IMFC Professional, Etc. v. Latin Am. Home Health, 676 F.2d 152, 159 n.12 (5th Cir. 1982) (making this distinction in removal cases). Second, the language and legislative history of § 1367(a) support its extension to the limits that Article III permits. By its language § 1367(a) confers jurisdiction in mandatory terms to include those cases "which form part of the same case or controversy under Article III of the United States Constitution" (except as expressly excluded by statute or as provided for in subsections (b) and (c)). As one commentator explained: the conferral is in very broad terms, and by using the "case or controversy" standard found in the Constitution's own statement of the outer limits of federal jurisdiction, Congress indicates that it wants supplemental jurisdiction, at least in the first instance - subject to its rejection as a matter of judicial discretion under subdivision (c) - to go the constitutional limit, where it appeared to be carried in the Gibbs case. 28 U.S.C. § 1367 (1993), David Siegal, Practice Commentary, "The 1990 Adoption of § 1367, Codifying ‘Supplemental Jurisdiction'" at 831. We have consistently read § 1367(a) as codifying, (or in the area of pendant parties, expanding) the jurisdictional standard established in Gibbs. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995); Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991); Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995). The legislative history of § 1367 supports the conclusion that subsection (a) was intended to grant supplemental jurisdiction to the limits of Article III. See Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W. New Eng. L. Rev. 1, 23 (1992) (concluding that under § 1367 "the test of the reach of subsection (a) will be the scope of Article III.") This history makes clear that the statute was passed in reaction to Finley v. United States, 490 U.S. 547 (1989), which held, in the context of pendent party jurisdiction, that the Court would not assume that Congress had intended the full constitutional power to hear the claim had been given to the federal courts, unless Congress passed specific legislation to that effect. H.R. Rep. No. 101-734, 101st Congress, 2d Sess., reprinted in 1990 U.S.C.C.A.N. 6802, 6874. The House Report states that the purpose of the legislation was to restore jurisdiction in cases like Finley and "essentially restore the pre-Finely understandings of the authorization for and limits on other forms of supplemental jurisdiction." Id. The "pre-Finley" understanding of the authorization for supplemental jurisdiction was that "where Congress has not spoken to the contrary or where we cannot find Congressional intent to the contrary, jurisdictional statutes give federal courts the power to exercise ancillary and pendent jurisdiction to the constitutional limit." Ambromovage v. United Mine Workers, 726 F.2d 972, 991 n.57 (3d Cir. 1984). This was the approach taken in United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966): the Court looked to the constitutional limits on pendent jurisdiction and assumed that the federal courts' power extended to those limits, without looking for a specific grant of statutory authority. The language of § 1367(a) stating that it applies "except as expressly provided otherwise by federal statute" (emphasis supplied) and that it shall "include claims that involve the joinder or intervention of additional parties," confirms this reading of the statute. We express no opinion as to whether § 1367 should be read broadly in cases other than the one before us, but here it is particularly appropriate because the district court resolved this case on its merits and the risk of needless expenditures of judicial resources is accordingly a very real one. Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 479 (3d Cir. 1979). The Supreme Court relied on similar reasoning when it rejected the argument that because an original constitutional claim was dismissed as moot, the district court should not have resolved the pendent claim: We are not willing to defeat the common sense policy of pendent jurisdiction - the conservation of judicial energy and the avoidance of multiciplicity of litigation -  by a conceptual approach that would require jurisdiction over the primary claim at all stages as a prerequisite to the resolution of the pendent claim. Rosado v. Wyman, 397 U.S. 397, 405 (1970). Accordingly, although we are mindful that jurisdictional statutes must be construed narrowly, Healy v. Ratta, 292 U.S. 263, 270 (1934), we are also mindful that it is our obligation to effectuate the intentions of Congress in interpreting those statutes. Here, those intentions are clear from the face of the statute and the legislative history, and they require that the statute be read broadly to retain jurisdiction in this case in which substantial judicial resources have produced a final decision on the merits. Finally, § 1367 has been read by the Fourth Circuit to provide jurisdiction in an analogous situation arising in diversity. Shanaghan v. Cahill, 58 F.3d 106 (4th Cir. 1995). In that case, after the court granted summary judgment on one of the plaintiff's claims, the amount in controversy fell below the $50,000 required for federal jurisdiction under 28 U.S.C. § 1332. The district court concluded that it no longer had subject matter jurisdiction. The Fourth Circuit disagreed, concluding that pursuant to § 1367 the court had supplemental jurisdiction over the remaining claims. Id. at 109. In that case, like this one, the jurisdictional basis for the claim dropped out; there was no claim to which the state claims were supplemental because jurisdiction was premised on the aggregate of amount in controversy involved in all the claims that were asserted at the outset. When one claim dropped out, this basis for federal jurisdiction no longer existed. The court reasoned, however, that the statute applies when the amount in controversy falls below $50,000 just as it does when a federal question drops out of the case: ...the same basic pattern of circumstances exists in both contexts: the jurisdictional basis of the action fades away and the court is left with what would otherwise be a state law case. There is no way to distinguish a reduction of the amount in controversy from the disappearance of a federal claim as contemplated under 1367(c). Indeed the factors applicable in the typical pendent jurisdiction case are equally applicable here -- comity, the existence of a state limitations bar,  and considerations of judicial economy. Whenever the basis for federal jurisdiction evaporates, Congress has provided for discretion. Shanaghan, 58 F.3d at 110; see also Clarke v. Whitney, 934 F. Supp. 148, 151 n.1 (E.D. Pa. 1996) (following Shanaghan). Based on these considerations, we conclude that the district court had supplemental jurisdiction over this case after it dismissed the RTC. When the RTC was dismissed from the action, the district court should have considered supplemental jurisdiction as the statutory basis to decide issues which had been fully presented to the court. Given the district court's failure to consider § 1367, we would generally remand the case to the district court for further proceedings on the supplemental jurisdiction issue. See Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1284-85 (3d Cir. 1993) (remanding for consideration of supplemental jurisdiction after holding that jurisdiction existed over primary federal claim). In light of the posture of the current dispute, however, we will dispense with remand, hold that supplemental jurisdiction exists, and affirm the district court's grant of summary judgment. SeeSinclair v. Soniform, Inc., 935 F.2d 599, 604 (3d Cir. 1991) (reversing district court's finding of no federal jurisdiction over maritime personal injury action; holding that supplemental jurisdiction existed over state law claims); Sparks v. Hershey, 661 F.2d 30, 34 (3d Cir. 1981) (reversing district court's dismissal of state law claims as abuse of discretion and directing court to exercise jurisdiction over them). In the instant case, the district court has already entered summary judgment for New Rock. That record is before us on appeal. We find no merit in Preferred Entity's challenges to the grant of summary judgment. Preferred Entity has never contested the validity of the mortgage, the existence of a default, or the acceleration of the indebtedness. Preferred Entity has never even contested the information in New Rock's affidavits or the specific amount due. Preferred Entity objects only to the legal sufficiency of the records to support a summary judgment motion, contending that New Rock's affidavits contain only inadmissible hearsay. We have reviewed the contours of the personal knowledge requirement of Fed. R. Civ. P. 56(e) and the business records exception of Fed. R. Ev. 803(6). See, e.g., Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1423 (3d Cir.) (discussing Rule 56(e)), cert. denied, 502 U.S. 941 (1991); In re Japanese Elec. Products. Antitrust Litig., 723 F.2d 238, 288-89 (3d Cir. 1983) (discussing Fed. R. Ev. 803(6)), rev'd on other grounds, 475 U.S. 574 (1986). We believe the documents were properly considered. We find no genuine issue of material fact. Absent the jurisdictional hurdle, we would not hesitate to affirm the district court. Given the fact that the district court has effectively resolved the case, we feel a rejection of supplemental jurisdiction would be inappropriate. See Growth Horizons, 983 F.2d at 1284-85 (emphasizing need to consider "judicial economy, convenience, and fairness to the litigants" in remanding to district court for consideration of supplemental jurisdiction over state law claim after trial on the merits); Sparks v. Hershey, 661 F.2d at 33 ("[W]e are inclined to believe that the dictates of judicial economy, convenience, fairness to the parties, and comity are better served by recognizing [supplemental] jurisdiction.") (citations omitted). Indeed, we might reverse any such rejection as an abuse of discretion. See Development Fin. Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 161 (3d Cir. 1995); but see Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995) (declining supplemental jurisdiction and dismissing case after trial on merits). We also recognize that New Rock has made substantial expenditures of time and effort in foreclosing on the property. We see no need to remand this case for a pro formaexercise of supplemental jurisdiction and a renewed appeal on the summary judgment order. We will ground jurisdiction on 28 U.S.C. § 1367 and affirm the district court. See Sinclair, 935 F.2d at 602-03; Sparks v. Hershey, 681 F.2d at 34. IV. For these reasons, the portion of the district court's order exercising jurisdiction pursuant to 12 U.S.C. § 1441a(l)(1) will be reversed. The district court's entry of summary judgment will be affirmed. TO THE CLERK: Please file the foregoing Opinion.  By the Court, Circuit Judge NEW ROCK ASSETS PARTNERS, L.P. v. PREFERRED ENTITY ADVANCEMENTS, INC., et al., No. 95-5306 McKEE, Circuit Judge, dissenting. I agree that the foreclosure sale has not mooted this appeal, and I therefore join in Part III.A of the majority opinion. However, even assuming arguendo that the majority correctly concludes that the RTC's dismissal defeated federal jurisdiction, I cannot agree that we can uphold the exercise of supplemental jurisdiction over this state law foreclosure action. Although Congress may well be able to provide for a federal court to retain jurisdiction over state law claims once the RTC was dismissed here, that is not the issue. The majority states that "[t]he question before us now is whether Congress could extend this jurisdiction to include cases to which the RTC was a party, but is no longer, without exceeding the bounds of Article III." Maj. Op. at 29. Having gone in at the wrong place, it is perhaps not surprising that the majority has come out at the wrong place. The question posed is not the issue. Rather, the question is whether Congress did so extend this jurisdiction. Our inquiry, though simply stated, is not so simply resolved. We need to determine if Congress intended to so extend our jurisdiction when it enacted 28 U.S.C. § 1367. For the reasons that follow, I conclude that it did not, and I therefore must respectfully dissent from the majority opinion. In relevant part, 28 U.S.C. § 1367 provides as follows: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that  they form part of the same case or controversy under . . . the Constitution. 28 U.S.C § 1367(a) (emphasis added). Under the statute as drafted a court can exercise supplemental jurisdiction only if it has original jurisdiction. If it does not have jurisdiction over the underlying claim there is nothing to supplement. Here, the majority first holds that the "Time of Filing" rule does not apply and concludes that the district court lost subject matter jurisdiction once the RTC was dismissed. However, it then proceeds to declare that the court nevertheless has original jurisdiction, and can therefore exercise supplemental jurisdiction because jurisdiction originally attached when the RTC was a party. It can not be both ways. If the "Time of Filing" rule does apply, the district court had jurisdiction to enter summary judgment. That jurisdiction, however, must arise not from the supplemental jurisdiction conferred in 28 U.S.C. § 1367, but from the substantive grant of jurisdiction contained in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1441a(1)(1) ("FIRREA"). If the "Time of Filing" rule does not apply, there is no federal jurisdiction for any jurisdiction under 28 U.S.C. § 1367 to supplement. In holding to the contrary, the majority relies heavily upon Gutierrez de Martinez v. Lamagno, _____ U.S. ____, 115 S. Ct. 227 (1995), however that case did not involve supplemental jurisdiction under section 1367, and is therefore inapposite to the inquiry here. The issue in Lamagno was the scope of the jurisdictional grant that Congress intended under the Westfall Act. Under that Act if a federal employee is sued, the Attorney General certifies whether or not the employee was acting within the scope of his or her federal employment at the time of the injury that forms the basis of the plaintiff's claim. If the Attorney General certifies that the individual was within the scope of his or her employment, the United States is substituted as a party, and the action is removed to federal court. If the Attorney General certifies to the contrary, the United States is not substituted as a party, and the action remains in state court, absent some other basis for federal jurisdiction. In Lamagno, an issue arose as to whether a federal court can review the certification of the Attorney General. Although the Court did discuss the parameters of the judicial power contained in Article III, the decision had nothing to do with supplemental jurisdiction. Indeed, the statute was never cited. The same is true of Garcia v. U.S., 88 F3d 318 (5th Cir., 1996) which the majority also relies upon. That case was also decided under the Westfall Act, however, it had the further dimension of determining whether a federal court lacked subject matter jurisdiction over the underlying dispute if a court reversed the Attorney General's certification and concluded that the United States could not be substituted as a party. The court stated [w]e agree with the Lamagno plurality that, because of the Attorney General's certification, there is an initial colorable federal question. Accordingly, we agree likewise that there is no 'grave' Article III problem in a district court retaining jurisdiction after rejecting the Attorney General's certification. Garcia, 88 F3d. at 325. However, that conclusion was based upon a very technical parsing of the precise language of the statute. Thus, resolution of jurisdictional issues under the statutory framework of the Westfall Act does not advance our inquiry under 28 U.S. C. § 1367 nearly so far as the majority concludes. The same is true of nearly all of the authority that the majority relies upon for its holding as to supplemental jurisdiction. Surprisingly, the majority cites Mullen v. Torrance. 22 U.S. (9 Wheat.) 537 (1824) and Clarke v. Mathewson 37 U.S. (12 Pet.) 164 (1838) to suggest that section 1367 provides supplemental jurisdiction because the court had jurisdiction at the outset of the litigation. See Maj. Op. at 34. Those cases strongly suggest that the majority is in error in not relying upon the "Time of Filing" rule in determining if jurisdiction was lost when the RTC was dismissed. In Mullen, the Supreme Court stated "[i]t is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events." 22 U.S. at 539. Similarly, in Clarke, the Court noted It has not been the course of the courts of the United States to consider their jurisdiction, after it has once attached, as taken away by the subsequent change of residence of the party. A suit properly  commenced between citizens of different states still proceeds; although the parties may, before its termination, become citizens of the same state. 37 U.S. at 167. In St. Paul Mercury Indemnity Co. v. Red Cab, 303 U.S. 283 (1938) the Supreme Court reiterated the "Time of Filing" rule as first pronounced in Mullen. In Red Cab, the Court held that jurisdiction must be established from the good faith averments on the face of the complaint, and once established it is not defeated by subsequent events. "Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction." 303 U.S. at 289. This precedent does not support the majority's holding under section 1367, and it undermines the majority's reasoning for rejecting the "Time of Filing" rule. Nevertheless, assuming arguendo that this precedent can properly be limited to diversity jurisdiction as the majority suggests, the majority's reasoning still leaves a court free to exercise supplemental jurisdiction when it has no jurisdiction to supplement. More recently in Lujan v Defenders of Wildlife, 504 U.S. 555 (1992) (See Maj. op. at 34, n.9) the Supreme Court again upheld the "Time of Filing" rule in rejecting the idea that the standing of parties who were added after litigation was begun could create a sufficient case or controversy for Art III jurisdiction even if the original plaintiffs lacked standing. The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed. . . . It cannot be that, by later participating in the suit, the State Department and AID retroactively created the redressability (and hence jurisdiction) that did not exist at the outset . . . There is no support for the dissent's novel contention, . . . that Rule 19 of the Federal Rules of Civil Procedure, . . . somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. 405 U.S. at 569.  However, if the "Time of Filing" rule does not apply here, it is nevertheless clear that 28 U.S.C. § 1367 does not intend that a federal court exercise jurisdiction over a state law claim unless the federal claim that the state claim supplements is properly before the court. I do not think that the Congress intended to allow the exercise of federal jurisdiction to resolve a uniquely state claim where, as here, the federal court concludes that it has no original federal jurisdiction. We are, after all, interpreting a jurisdictional statute. The policy of the statute calls for its strict construction. . . . Due regard for the rightful independence of state governments, which should actuate federal courts requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined. Healy v. Ratta, 292 U.S. 263, 270 (1934). This is not a case where there are federal claims and state claims that "derive from a common nucleus of operative facts. . . such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Gibbs is the source of the "modern doctrine of pendent jurisdiction", Carnegie- Mellon University v. Cohill, 484 U.S. 343, 348 (1988), and it teaches that, under the appropriate circumstances, a federal district court possesses the discretionary power to decide claims based on state law. Gibbs, 383 U.S. at 725-726. As the majority notes, the doctrine of pendent jurisdiction is now codified in the supplemental jurisdiction statute. 28 U.S.C. § 1367. However, as noted above, that jurisdiction only exists in civil actions "of which the district courts have original jurisdiction." Thus, the only way the majority can justify its contrary result is by relying upon the very "Time of Filing" rule that it rejects in the first instance. Nor is this a question of abuse of discretion where a court properly has discretion to exercise its supplemental jurisdiction. We are confronted with an error of law arising from what I believe is an erroneous application of a legal principle occasioned by an incorrect reading of the supplemental jurisdiction statute. I think it clear that the district court's action can not survive the plenary review we must give it. Accordingly, the majority's emphasis on the fact that the district court has already invested a great deal of time and resource in adjudicating this matter is irrelevant. It is axiomatic that a federal court cannot give itself jurisdiction where none exists. Although the resources that the district court has invested in resolving this case would most certainly be relevant to an exercise of the court's discretion to exercise supplemental jurisdiction of a case properly before it, it is irrelevant to the question of whether the court had jurisdiction over the state law claims to begin with. The original subject matter jurisdiction that is the condition precedent for the exercise of supplemental jurisdiction can not be conferred by considerations of convenience and efficiency. The majority's interpretation of 28 U.S. C. § 1367 is even more perplexing given the recognition of the unique state interests that are implicated in a foreclosure action, and the limited scope of federal jurisdiction. our reading of the statute is consistent with the purpose of FIRREA as expressed in the statute and its legislative history. We also note that our reading is consistent with general policies underlying federal jurisdiction. These principles include the limited nature of federal jurisdiction and the goal of not interfering in the business of the states. The limited nature of federal jurisdiction needs little discussion. This principle marks a fundamental precept of the American court system. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Interpreting [FIRREA] narrowly comports with this general rule. Maj. op. at 22. Here again, the majority attempts to have its analytical pie and eat it too. However, I fail to see how the majority can justify giving a narrow interpretation to the jurisdictional inquiry under FIRREA (and thereby departing from Mullan and its progeny) while giving such an expansive interpretation to section 1367. Here, the RTC had no interest in the New Jersey real estate that was the subject of the mortgage lien, nor was the RTC a promisee under any instruments that created the disputed indebtedness. The RTC is merely a successor in interest to some of the parties to the original lawsuit. That suit was actually initiated in state court by private entities that had an interest in the litigation. The RTC then removed it to state court, but is no longer a party. Now, through dubious reasoning, we allow the federal court to which this state action was removed to adjudicate purely state claims that are unconnected to the RTC or any other federal agency. New Rock's Amended Complaint avers: 3. Plaintiff, New Rock, is the sole owner and holder of all right, title and interest in the Indebtedness .. . pursuant to the Mortgage Assignments . . . 31. New Rock has succeeded to all of RTC's right title and interest . . . . See Maj. op. at 4. If that is so, I do not understand how 28 U.S. C. § 1367 can be interpreted to allow a federal court to adjudicate New Rock's dispute. Indeed, the analytical sleight of hand that allows the majority to rely upon the very principles it rejects has the end result of giving us the "jurisdiction by contract" it tried to avoid in refusing to apply the "Time of Filing" rule in the first instance. Id. at 10. ("[T]he RTC cannot pass its jurisdictional rights by contract.") Accordingly, I cannot join in the majority opinion. 

760 F.2d 279 *Collierv.Reigio 84-8325 United States Court of Appeals,Eleventh Circuit. 4/1/85 1 S.D.Ga. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 11th Cir.R. 23.

67 Ill. App.2d 328 (1965) 215 N.E.2d 12 Marlene H. Martino, Administratrix of the Estate of Herbert L. Hazen, Jr., Deceased, and Marlene H. Martino, Administratrix of the Estate of Josephine F. Hazen, Deceased, and Iola Saunders, Administratrix cum testamento annexo of the Estate of Charlotte D. Thacker, Deceased, Plaintiffs-Appellees, v. Ned Thomas Barra, Leon B. Stilley Construction Company, Leon B. Stilley, Anton Halmel, Cities Service Oil Company, and Mt. Vernon Tire Service Corporation, Defendants, Ned Thomas Barra and Mt. Vernon Tire Service Corporation, Defendants-Appellants. Anton Halmel and Cities Service Oil Company, Counter-Plaintiffs-Appellees, v. Ned Thomas Barra, Leon B. Stilley Construction Company, Leon B. Stilley and Mt. Vernon Tire Service Corporation, Counter-Defendants, Ned Thomas Barra and Mt. Vernon Tire Service Corporation, Counter-Defendants-Appellants. Gen. No. 49,738. Illinois Appellate Court — First District, Second Division. October 5, 1965. Supplemental opinion March 18, 1966. *329 *330 Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Oswell G. Treadway, of counsel), for Ned Thomas Barra, appellant; Patrick J. Muldowney, of Chicago, for Mt. Vernon Tire Service Corporation, appellant. James A. Dooley, of Chicago, for plaintiff-appellees; Nat. P. Ozmon, of Chicago, for Anton Halmel, counter-plaintiff-appellee; Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush and John M. O'Connor, Jr., of counsel), for Cities Service Oil Company, counter-plaintiff-appellee. *331 MR. PRESIDING JUSTICE BURKE delivered the opinion of the court. This action was brought to recover damages for the wrongful deaths of Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker, resulting from an automobile-truck collision near Mt. Vernon, Illinois. Named as defendants were Leon B. Stilley and the Leon B. Stilley Construction Company, owners of a concrete mixer truck; Ned Thomas Barra, driver of the concrete mixer truck; Cities Service Oil Company, owner of a tractor-trailer; Anton Halmel, driver of the tractor-trailer; Mt. Vernon Tire Service Corporation; and Stanley V. Koziara, owner of the Mt. Vernon Tire Service Corporation. Defendants Halmel and Cities Service Oil Company cross-claimed against the other defendants for personal injuries to Halmel and for property damage to the Cities Service tractor-trailer. The jury returned a verdict for all the defendants and against the plaintiffs, and judgment was entered thereon. No verdict was specifically rendered on the cross-claims of Halmel and Cities Service. Post-trial motions were filed by the plaintiffs for judgment notwithstanding the verdict and for a new trial on the question of damages. Cross-claimants Halmel and Cities Service filed post-trial motions, Halmel requesting a directed verdict on his cross-claim and a new trial on the question of damages, and Cities Service requesting judgment in its favor on its cross-claim in the amount of $3,000, which amount was agreed by all the parties to be the amount of damages to the tractor-trailer. Cross-defendant Mt. Vernon Tire filed a post-trial motion for judgment in its favor and against plaintiffs and cross-claimants, consistent with the jury's verdict. Cross-defendants Barra and Stilley likewise filed motions for judgment in their favor and against plaintiffs and cross-claimants. *332 Plaintiffs' motion was sustained as to defendants Barra and Mt. Vernon, and a new trial on the question of damages was granted; the motion was denied as to the other defendants. Cross-claimant Halmel's motion was sustained as to Barra and Mt. Vernon, and a new trial on the question of damages was granted. Cross-claimant Cities Service's motion was sustained as to Barra and Mt. Vernon, and judgment entered in the amount of $3,000. It is from these judgments that Ned Thomas Barra and Mt. Vernon Tire Service Corporation bring this appeal. Route 37 is a two-lane highway running north and south through Mt. Vernon, Illinois. The accident involved here occurred about 2:00 p.m. on August 26, 1958, some one and one-half miles to the north of the city. The Cities Service tractor-trailer, driven by Anton Halmel, was proceeding northerly on Route 37, followed some 500 feet behind by an automobile driven by Phillip Lenseler. Proceeding in a southerly direction and to the north of the tractor-trailer was the Stilley Construction concrete mixer truck driven by Ned Thomas Barra, followed by the automobile in which the decedents were riding, an undetermined distance behind the mixer truck. It was undisputed that all the vehicles were in their proper lanes and traveling within the posted speed limit, and that the day was sunny and the road surface in good physical condition. As the concrete mixer truck and the tractor-trailer got to within 60 feet of each other, the two left rear dual wheels of the mixer truck rolled off the axle and continued to roll in a southerly direction down the highway. The left rear side of the mixer truck fell to the pavement, but Barra was able to keep the truck in its own lane until he maneuvered it to a stop on the southbound shoulder of the highway. One of the dual wheels proceeded directly down the center of the road and passed the automobile driven by Lenseler. The other wheel crossed into the northbound *333 lane of traffic, directly in front of the tractor-trailer. In an attempt to avoid colliding with the wheel, Halmel testified that he applied his brakes immediately and attempted to turn his truck to the right. He stated that the wheel struck the front of the truck, throwing him against the windshield, and thereafter did not remember anything until he was told to enter an ambulance after the accident. The tractor-trailer cab swerved into the southbound lane, and the rear of the truck jackknifed across the southbound lane onto the shoulder of the road. The decedents' automobile struck the tractor-trailer resulting in their deaths. The record shows that in June of 1958, Mr. Fred Curl of the Nelson Concrete Culvert Company, which was not made a party to this action, inquired of Mr. Stilley concerning the possibility of renting one of Stilley's mixer trucks. It appears that two concrete mixer trucks were leased on a monthly rental, Nelson Concrete to care for their maintenance and repair. At the time of the conversation, Mr. Curl inquired whether Stilley had any drivers available who were familiar with the operation of the mixer trucks. Stilley recommended Ned Thomas Barra, who was not then in the Stilley employ, but who had been employed by Stilley until Stilley ran out of work in the spring of 1958. The concrete mixer truck involved in the accident was driven by Howard Rector, a Nelson Concrete employee, until August 25th, while Barra drove the other mixer truck. On August 11th, Rector's truck developed a flat on the outside left rear dual tire. Mt. Vernon Tire Service Corporation was employed by Nelson Concrete to repair the tire, and Mt. Vernon Tire sent its serviceman, Alvie Joe Burke, to make the repair. Burke testified that he removed the entire wheel, replaced the tire, reinflated it and replaced the wheel by the use of a hand wrench and a cheater bar, which he stated was used for leverage. Burke further testified that the nuts which hold the *334 wheel onto the wheel drum are lock nuts, and that once the nut is on tight, it cannot come off. Burke stated that after he let the mixer truck to the ground he used the cheater bar to make sure the nuts were on tight, informed Rector that the tire was repaired, and Rector looked at the tire. Rector testified he operated the truck every day after August 11th until August 25th, sometimes two and three times a day. He stated that the truck operated normally, and that he noticed nothing unusual about the performance of the left rear wheels. Barra's truck broke down on August 25th, and when he appeared for work on the 26th he was told to use the truck previously used by Rector, since Barra was more familiar with its operation than was Rector. Barra inspected the oil and motors of the truck, the air pressure in the tires, and sprayed the metal parts of the truck with paraffin, all of which was customary procedure for the truck drivers employed by Nelson Concrete. Walter Goddard, plant superintendent at Nelson Concrete, testified that the Nelson drivers were not required to check the mechanical parts of the trucks, other than to see that the truck operated. About noon on the 26th Barra was ordered to deliver a load of concrete to a job site and was returning from the site when the accident occurred. Officer Lee Lyons of the Illinois State Highway Police, called to the scene of the accident, testified he inspected the left rear wheel drum of the mixer truck after the accident and found the lugs which support the wheel to be partially stripped. The officer also stated he examined some tire marks to the north of the point of impact and found them to be of a wobbly, hit-and-miss nature, but he could not say whether they were caused by any vehicle involved in the accident. Barra testified he also inspected the threads on the wheel lugs immediately after the accident and found them to be in fair condition. Melvin Donoho, a body shop foreman for the Homan *335 Motor Company where the mixer truck was sent by Nelson Concrete for repairs after the accident, stated that the lugs were not stripped; two of the ten lugs on the wheel drum were bent and had to be replaced, Donoho stating that they were bent after the wheels had rolled off. Officer Lyons and Barra testified that the lug nuts which held the wheels onto the wheel drum were never found. The trial judge was of the opinion that the evidence clearly showed Mt. Vernon Tire liable, for the reason that they repaired and replaced the wheel on the left rear of the truck, and if it had been properly replaced, it would never have come off. He was further of the opinion that the evidence clearly showed Ned Thomas Barra liable, for the reason that he failed to properly inspect the mixer truck before operating it on the highway and for the reason it was Barra's duty to locate defects in the truck. The record does not clearly show liability on the parts of Ned Thomas Barra and Mt. Vernon Tire Service Corporation. Defendant Barra maintains that, on all the evidence, the jury found he properly discharged whatever duty of inspection he had, that plaintiffs failed to prove he failed to discharge his duty to inspect, and that the trial court improperly rendered judgment for plaintiffs and cross-claimants against him. Defendant Mt. Vernon Tire maintains the trial court improperly rendered judgment for plaintiffs and cross-claimants since there is evidence in the record upon which the jury could reasonably have found Mt. Vernon not guilty. [1, 2] With respect to defendant Barra, the operator of a vehicle has a duty to make a reasonable inspection thereof before operating the vehicle on the highways. Fried v. Korn, 286 App Div 107, 141 NYS2d 529, 531; 8 Am Jur2d, Automobiles and Highway Traffic, § 699. What constitutes a reasonable inspection and whether the duty has been breached is primarily for the jury to determine. *336 Johnson v. Skau, 33 Ill. App.2d 280, 285, 179 NE2d 40. [3-5] Where a party receiving an adverse verdict seeks a judgment notwithstanding the verdict, it is the duty of the trial court to consider all of the evidence in the case most favorably to the party against whom the motion is directed, and if there is evidence in the record upon which reasonable minds could disagree, the motion should be denied. Biggerstaff v. Estate of Nevin, 2 Ill. App.2d 462, 119 NE2d 826; Hadden v. Fifer, 339 Ill. App. 287, 291, 89 NE2d 854; Palmer v. Poynter, 24 Ill. App.2d 68, 71, 163 NE2d 851. On all of the evidence the jury could reasonably have found that defendant Barra made a reasonable inspection of the concrete mixer truck on the day of the accident. The evidence strongly indicates that Nelson Concrete assumed responsibility for the repair and maintenance of the two Stilley mixer trucks. The Nelson Concrete superintendent stated that the Nelson drivers were not required to inspect the mechanical parts of the truck, but merely to see that the truck operated. There is no evidence that Barra, or any other Nelson driver, ever inspected the mechanical parts of the trucks other than the motors to see that they were functioning properly. Nelson Concrete employed their own mechanic for this purpose, and further employed two outside agencies to make major repairs, and an outside agency to make tire repairs. The evidence in the record shows no more than that the left rear dual wheels came off the mixer truck and in no way shows that they fell off due to the breach of any duty on Barra's part to inspect. [6] The cases cited by plaintiffs in support of their position that the owner or operator of a vehicle must make, or cause to have made, a thorough inspection of the vehicle are inapposite for the reason that they deal with privately owned vehicles, or situations where the operator otherwise assumes the duty to inspect. None of *337 plaintiffs' cases deal with the specific question involved here, namely, the extent of the inspection of mechanical parts to be made by an employee of his employer's vehicle where the employer has assumed the burden of making such inspection. (See Fried v. Korn, 286 App Div 107, 141 NYS2d 529; Delair v. McAdoo, 324 Pa 392, 188 A 181; Scarborough v. Aeroservice, Inc., 155 Neb. 749, 53 NW2d 902; Petersen v. Seattle Automobile Co., Inc., 149 Wash 648, 271 P 1001; Dostie v. Lewiston Crushed Stone Co., 136 Me 284, 8 A2d 393; Lonergan v. American Ry. Exp. Co., 250 Mass. 30, 144 NE 756; Dowden v. Jefferson Ins. Co., 153 So.2d 162 (La App, 1963); McLaughlin v. Lasater, 129 Cal App2d 432, 277 P.2d 41.) To hold a driver-employee to the same degree of duty of inspection of his employer's vehicle which is required of the employer himself is unreasonable, for, when extended to its natural bounds, such duty would be required of the operators of commercial busses, railroad trains, airplanes, and the like. [7] With respect to the Mt. Vernon Tire Service Corporation, the lapse of the fifteen days between the day the tire was repaired and the day of the accident, and the continued use and control of the mixer truck by Nelson Concrete during that period created a question for the jury. It does not follow that, merely because Mt. Vernon Tire replaced the left rear dual tire, it was Mt. Vernon's fault that the wheels came off the truck. The only evidence before the jury was that the wheel was replaced on August 11th in the usual and customary manner and that the tightness of the nuts on the lugs was rechecked by use of a cheater bar after the truck was lowered to the ground. Furthermore, there was testimony to the effect that, if the wheel had been improperly mounted, it would have come off within a matter of hours, or, at the most, one or two days. The holding that Mt. Vernon Tire Service Corporation was liable as *338 a matter of law was erroneous since the jury could reasonably have concluded differently. Plaintiffs support the trial judge's action in rendering the judgments notwithstanding the verdict, with the position that, since plaintiffs made out a prima facie case for the liability on the parts of Barra and Mt. Vernon Tire, and since these defendants offered nothing in their defense, it was proper to take the case from the jury. The record does not support this argument. Barra offered evidence tending to show that he exercised his duty to inspect, and that the Nelson Concrete Culvert Company, not made a party to this action, had the duty to make the inspection of the mechanical parts of the trucks. Mt. Vernon Tire offered evidence that the wheel was properly mounted and the nuts rechecked for tightness, and that Nelson Concrete used and operated the mixer truck for fifteen days before the wheels came off. Finally, the trial court should have entered judgment for the cross-defendants and against the cross-claimants on the cross-claims. While it is true the jury rendered a general verdict "for all the defendants and against the plaintiffs," the finding for all the defendants would include the cross-defendants on the cross-claims. If no liability was found by the jury on the part of Barra and on the part of Mt. Vernon Tire as to the original plaintiffs, with respect to the coming off of the wheels, there could be no liability on their parts as to the cross-claimants with respect to the coming off of the wheels. See Kinney v. Kraml Dairy, Inc., 20 Ill. App.2d 531, 540, 156 NE2d 623. The judgment of March 6, 1964, against both appellants is reversed and the cause is remanded with directions to enter judgment on the verdict in favor of these appellants and against plaintiffs and counterplaintiffs. Judgment reversed and cause remanded with directions. BRYANT and LYONS, JJ., concur. *339 SUPPLEMENTAL OPINION ON MOTIONS TO DISMISS AND ON REHEARING MR. JUSTICE BURKE delivered the supplemental opinion of the court. The opinion in this cause was filed on October 5, 1965, reversing a judgment notwithstanding the verdict and an order for a new trial on damages entered against appellants Ned Thomas Barra and Mount Vernon Tire Service Corporation, and remanding the cause with directions to enter judgment on the verdict for said appellants and against appellees, Marlene H. Martino, administratrix, Iola Saunders, administratrix, Anton Halmel, and Cities Service Oil Company. Appellees thereafter filed "motions to expunge the orders entered" by this court. Although designated as "motions to expunge," these motions are in reality motions to dismiss the appeal, which are normally filed immediately after the notice of appeal is filed, and before an appellant incurs costs in connection with the filing of his brief and abstract. Appellees also filed petitions for a rehearing. The basis of the "motions to expunge" is that this court cannot entertain the appeal because appellants took a direct appeal from the trial court's order, which was not final and appealable, rather than proceeding by way of a petition for leave to appeal as required in cases involving the granting of new trials, as set out in Supreme Court Rule 30. The original briefs of the appellees did not call our attention to this procedural question. Section 68.1(2) of the Civil Practice Act requires that a post-trial motion must "state the relief desired." Ill Rev Stats 1965, chap 110, par 68.1(2). Section 68.2 recites that the court shall impanel a jury, where not waived, for the purpose of assessing damages if the ruling on the post-trial motion is in favor of the party entitled to recover damages and if there is no verdict *340 assessing damages. Appellees' post-trial motions requested, and the trial court granted, "judgment notwithstanding the verdict" against the appellants and a new trial as to damages. This, however, is a misnomer with regard to that part of the order concerning appellees Martino, Saunders, and Halmel. The trial court, as to said appellees, rendered a finding on liability notwithstanding the verdict and granted a trial as to damages. A "judgment" could not have been granted because damages had not been assessed. A "new trial" on damages could not have been ordered because the jury, by finding no liability in the first instance, did not consider the question of damages. The relief requested and the relief granted did substantially conform to sections 68.1 (2) and 68.2 of the Civil Practice Act. Appellees Martino, Saunders and Halmel's motions for a new trial on the issue of damages only were not in fact motions for a new trial because there had been no trial on the issue of damages. These motions were incidental to the motions for a finding notwithstanding the verdict in favor of these appellees as contemplated by sections 68.1(2) and 68.2 of the Civil Practice Act. [8, 9] The trial court's order incorporated a recital under section 50(2) of the Civil Practice Act that there was no just reason to delay enforcement or appeal of the order. Ill Rev Stats 1965, chap 110, par 50(2). This recital, however, did not render the order final and appealable as to appellees Martino, Saunders and Halmel, against whom the order was not in fact final and appealable since a trial was ordered on the question of damages. Under section 50(2) there is no right of appeal in favor of any party against whom no final judgment, order or decree has been entered. See Davis v. Childers, 33 Ill.2d 297, 211 NE2d 364; Central Wisconsin Motor Transp. Co. v. Levin, 66 Ill. App.2d 383, 214 NE2d 776; Griffin v. Board of Education of Chicago, 38 Ill. App.2d 79, 186 NE2d 367. Since there was no final judgment as to *341 appellees Martino, Saunders and Halmel, there was no appealable order entered by the trial court to give this court the authority to entertain a direct appeal as to these appellees. The appeal against Martino, Saunders and Halmel must therefore be dismissed. As to the appellee Cities Service Oil Company the order of the trial court is final and appealable, for the reason that damages were stipulated in the amount of $3,000 and a judgment entered thereon. Appellants Barra and Mount Vernon could have taken, and did in fact take, a direct appeal from this part of the order. The order further contained a recital that there was no just reason to delay enforcement or appeal, required under section 50(2) of the Civil Practice Act in cases involving multiple parties or multiple claims where a final order, judgment or decree is entered as to one or more but fewer than all of the parties or claims in order to appeal therefrom. Ill Rev Stats 1965, chap 110, par 50(2). The Cities Service Oil Company is therefore not entitled to a dismissal of the appeal against it. The Cities Service Oil Company, in its petition for rehearing, has adopted the arguments contained in the alternative petition for rehearing of appellees Martino and Saunders. The matter relating to the right of this court to entertain the appeal has been dealt with above. [10] The contention is made that the decision of this court violates the general principles of the doctrine of respondeat superior, in that a corporation can act only through its employees or agents and that a corporation may be held liable for the acts of its employees or agents even if such acts are unknown to the corporate officers. The argument is made that the Nelson Concrete Company could act only through its employee, Barra, and for this reason Barra must be held liable. It is further argued that "the concept that there could have been another employee negligent in no wise exculpates [Barra]." It is difficult to follow this reasoning in view of *342 the fact that evidence was offered that Barra, as a Nelson Concrete truck driver, was not responsible for the maintenance and inspection of the mechanical parts of his truck. If an employer places a certain duty upon one employee and not upon another, the latter employee clearly cannot be charged with the breach of that duty by the former employee, even though the employer may be charged with liability for the breach. There was no showing Nelson Concrete placed any duty with regard to maintenance and inspection of the mechanical parts of the truck upon Barra, nor that Barra voluntarily assumed such burden, and the jury so found; rather, the evidence shows that Nelson Concrete itself assumed that burden. The argument advanced with regard to the doctrine of respondeat superior revolves around the basic concept of responsibility of an employer for the acts of his employee. Whether the doctrine could have been invoked against Nelson Concrete, had it been made a party to this action, need not be considered for the reason that appellant Barra was not shown to be the employee responsible for the inspection and maintenance of the mechanical parts of the truck. Consequently, merely because the jury could have found Nelson Concrete liable under the doctrine of respondeat superior does not necessarily mean that the appellant Barra is the employee from whom this liability would stem. [11, 12] The argument is raised that, under the doctrine of res ipsa loquitur, the evidence shows there is liability on someone and consequently someone should be held liable. As stated in our original opinion, neither Barra nor Mount Vernon was shown to have violated the specific duty with which they were charged so as to be held liable. Rather, the evidence showed that Nelson Concrete assumed the duty to inspect and maintain the mechanical parts of the truck, which might have given rise to the application of the doctrine of res ipsa *343 loquitur, but Nelson Concrete was not made a party to the action. Furthermore, while it is true, as contended, that the inclusion of a specific charge of negligence does not preclude a finding of liability under a general charge of negligence (Goertz v. Chicago & N.W. Ry. Co., 19 Ill. App.2d 261, 153 NE2d 486), the complaint and cross-complaint contained no general charge of negligence upon which a finding of liability under the doctrine of res ipsa loquitur could be predicated, nor were any instructions submitted to the jury with regard to a general charge of negligence. The law as cited is correct, but the circumstances of this case do not permit its application. It should also be pointed out that this matter was not raised in the pleadings or in the trial court, and consequently cannot be raised for the first time on appeal. Benson v. Isaacs, 22 Ill.2d 606, 609, 610, 177 NE 2d 209. We adhere to our original opinion as to the appellee Cities Service Oil Company. The appeal is dismissed as to appellees Martino, Saunders and Halmel, and the judgment for Cities Service Oil Company is reversed and the cause remanded with directions to enter judgment in favor of appellants Barra and Mount Vernon and against appellee Cities Service Oil Company. Appeal dismissed as to appellees Martino, Saunders and Halmel and judgment for Cities Service Oil Company reversed and cause remanded with directions. BRYANT, P.J. and LYONS, J., concur.

85 B.R. 733 (1987) In re FAIR INVESTORS, LTD., Debtor. FAIR INVESTORS, LTD., Plaintiff, v. F.W. WOOLWORTH COMPANY, Builders Square, Inc., and Shoppers World Stores, Inc., Defendants. Bankruptcy No. 5-85-01054-A, Adv. No. 5-86-0213-A. United States Bankruptcy Court, W.D. Texas, San Antonio Division. October 8, 1987. Jeffers, Brook, Kreager & Gragg, Inc. by William A. Jeffers, Jr., San Antonio, Tex., for F.W. Woolworth Co. Urban & Coolidge by Carolyn A. Taylor, Houston, Tex., for Fair Investors, Ltd. FINDINGS OF FACT AND CONCLUSIONS OF LAW IN CONNECTION WITH THE COURT'S ORDER GRANTING F.W. WOOLWORTH CO.'S PARTIAL MOTION FOR SUMMARY JUDGMENT R. GLEN AYERS, Jr., Chief Judge. JURISDICTION AND REMAINING ISSUES This proceeding is a core proceeding and this Court has jurisdiction herein pursuant to the provisions of 28 U.S.C. § 1334 and 28 U.S.C. § 157, and these Findings of Fact and Conclusions of Law are hereby submitted pursuant to Rule 52 of the Federal Rules of Civil Procedure (as adopted by Rule 7052 of the Bankruptcy Rules) in connection with the granting by the Court of a partial Summary Judgment in favor of Woolworth. The issues disposed of by the Court's Order deal with percentage rent and subletting under the Lease in question, with the issues remaining to be determined including the following: a. Debtor's Motion to Reject Lease and reform rent thereunder; b. Woolworth's Motion to Dismiss this Chapter 11 proceeding; c. Woolworth's claim for reimbursement for expenditures made to the roof of the Leased Premises; d. Debtor's claim for damages to the parking lot and/or driveway(s) adjacent to the Leased Premises; e. Woolworth's Motion to Deposit Rent in Court pursuant to Rule 67 of the Federal Rules of Civil Procedure (as adopted by Rule 7067 of the Bankruptcy Rules); f. Woolworth's claim for costs and attorney's fees in connection with Debtor's Complaint for Declaratory Judgment; and g. Debtor's claim for damages resulting from Woolworth's repair and/or replacement of the roof of the leased premises, and to terminate and/or limit its liability for the making of subsequent or future roof repairs and/or replacements (no approved pleadings concerning these matters being currently on file, and Woolworth reserving its right to object to the same at the appropriate time). FINDINGS OF FACT 1. By lease dated October 16, 1968 ("the Lease"), Roy L. Martin & Associates, Limited leased certain premises to Woolworth in the Fair Park Shopping Center located on Fair Avenue, in San Antonio, Texas. A true and correct copy of the Lease is attached hereto as Exhibit A. 2. Subsequent to the execution of the Lease by the landlord and tenant, Fair Investors, Ltd., the Debtor herein, succeeded *734 to all of the landlord's interests under the Lease. 3. By letter dated October 4, 1982, Woolworth gave written notice to the Debtor of Woolworth's intention to discontinue the operation of its store at the leased premises pursuant to Article 5A of the Lease. 4. The decision of Woolworth to discontinue the operation of its Woolco store at the leased premises was part of an overall corporate decision to shut down all 336 Woolco stores in the United States, and was a good faith exercise of Woolworth's business judgment. 5. The Debtor did not exercise its option to cancel and terminate the Lease within 90 days after the mailing of the notice in accordance with the provisions of Article 5A of the Lease. 6. Woolworth discontinued the operation of its store at the Fair Park Shopping Center in January, 1983, and has continued thereafter to pay rent to the Debtor at the rate of $173,994.00 per year as provided in Article 5 of the Lease. 7. By subleases dated July 8, 1983, Woolworth sublet the leased premises to Shoppers World Stores, Inc., and Home Centers of America, Inc., predecessor to Builders Square, Inc., in accordance with Article 15 of the Lease. Woolworth's subtenants presently occupy the leased premises and operate their respective stores therein. 8. Woolworth did not obtain the prior consent of the Debtor to such subletting, nor did Woolworth provide copies of the proposed subleases to the Debtor prior to executing the same. 9. The Court makes no finding as to any disparity of bargaining power between the original landlord and Woolworth, but the Court affirmatively finds that there was no such disparity in bargaining power between the Debtor and Woolworth in 1982 when the notice of termination was sent by Woolworth to the Debtor. 10. The Lease has been interpreted by a number of courts, all but one of which have ultimately adopted findings of fact and conclusions of law substantially similar to those of the Court (the Conclusions of Law below contain citations for these cases). CONCLUSIONS OF LAW 1. The Lease is clear and unambiguous as to the rights and obligations of the parties with respect to percentage rent and subletting. 2. Pursuant to Article 5A of the Lease, the Debtor had one option to cancel and terminate the Lease. To effectively cancel and terminate the Lease, the Debtor was required to exercise its one option within 90 days after the date of mailing of Woolworth's notice of its intention to discontinue the operation of its store at the leased premises. 3. In accordance with the clear and unambiguous language of the Lease, and specifically Article 5A, the Debtor's failure to exercise its option to cancel and terminate the Lease within such 90 day period, and Woolworth's discontinuing the operation of its store at the leased premises, has the effect of deleting Article 5A from the Lease, and all obligations on Woolworth's part to pay percentage rent thereunder ceased as a matter of law. 4. The only remaining rent obligation of Woolworth under the Lease is to pay the sum of $173,994.00 per year as set forth in Article 5 of the Lease. 5. Pursuant to Article 15 of the Lease, Woolworth was not obligated to provide the Debtor with copies of the subleases affecting the leased premises, nor was it obligated to obtain the Debtor's consent prior to executing those subleases. 6. The subletting of the leased premises by Woolworth fully complies with the clear and unambiguous language of Article 15 of the Lease, and does not constitute a breach thereof. 7. Except for the deletion of Article 5A of the Lease, Woolworth's discontinuing of the operation of its store at the leased premises has no legal effect upon the remaining terms and provisions of the Lease. All other provisions of the Lease remain in full force and effect, including, but not *735 limited to, the provisions granting Woolworth options to extend the term of the Lease. 8. There is no issue of bad faith on the part of Woolworth herein as that term is defined in applicable state law (see, for example, the case of Wilson v. O'Connor, 555 S.W.2d 776, 780 [Tex.Civ.App. — Dallas, 1977, writ dism'd]), nor is there any issue of inequality of bargaining power between the Debtor and Woolworth in this commercial transaction under applicable case law. 9. The cases interpreting the Lease which have adopted the findings of fact and conclusions of law substantially similar to those of this Court are as follows: a. Coxe v. F.W. Woolworth Co., 652 F.Supp. 64 (M.D.La.1986) aff'd, 812 F.2d 1403 (5th Cir.1987); b. F.W. Woolworth v. Buford-Clairmont Co., 769 F.2d 1548 (11th Cir.1985); c. Blair Mill Limited v. F.W. Woolworth Co., 86-2841 (E.D.Pa. February 24, 1987) [available on WESTLAW, 1987 WL 7203], appeal docketed, 87-1166, 3rd Cir., March 20, 1987; and d. F.W. Woolworth v. Plaza North, Inc., et al, 493 N.E.2d 1304 (Ind.App.4th Dist.1986), reversing decision of lower court. The one case which has interpreted this Lease in the manner espoused by the Debtor is Joseph Brothers Co. v. F.W. Woolworth Company, 641 F.Supp. 822 (N.D. Ohio, 1985) appeal filed. 8. The Court makes no ruling on the right of Woolworth to recover costs and attorney's fees in connection with this declaratory judgment action. 9. The Order entered herein shall constitute a grant of a partial summary judgment for Woolworth on the issues covered hereby. The Order is not intended to cover any disputes as to roof repairs, parking lot damage claims, dismissal of the bankruptcy case in chief, attempted rejection of the Woolworth Lease, tender of rent into the Registry of the Court, or any other disputes pending between the parties.

261 P.3d 1292 (2011) 245 Or. App. 724 STATE v. SAVICKY. A143102 Court of Appeals of Oregon. September 21, 2011. Affirmed without opinion.

208 F.2d 777 MEAD'S FINE BREAD CO.v.MOORE. No. 4615. United States Court of AppealsTenth Circuit. Dec. 11, 1953.Rehearing Denied Jan. 16, 1954. Edward W. Napier, Lubbock, Tex. (Howard F. Houk, Santa Fe, N.M., was with him on the brief), for appellant. Dee C. Blythe and Lynell G. Skarda, Clovis, N.M., for appellee. Before PHILLIPS, Chief Judge, and MURRAH and Pickett, Circuit Judges. MURRAH, Circuit Judge. 1 This is an appeal from a verdict and judgment in favor of the plaintiff- appellee in an action for treble damages under the Robinson-Patman Amendment to the Clayton Act, 15 U.S.C.A. §§ 13(a), 13a and 15. When the case was first here, Moore v. Mead Service Co., 10 Cir., 184 F.2d 338, on appeal from a judgment of the trial court dismissing the action, we affirmed on the ground that the suit was precluded by the plaintiff's own illegal acts which initiated the alleged price discrimination. On certiorari to the Supreme Court, the case was vacated for reconsideration in the light of Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219, in which it was held that an action under Section 15 of the antitrust laws was not precluded by the claimant's infractions. 2 On further consideration, we receded from our former position, and looking at the facts of record, pointed out that by selling its products through outlets across the state line in Texas, Mead was engaged in interstate commerce, and by selling bread in Santa Rosa, New Mexico, below cost, it discriminated against its competitor plaintiff-appellee. Price discrimination and interstate commerce having been shown, we left open the question whether the effect of such discrimination might tend to substantially lessen competition or create a monopoly in any line of commerce, or injure, destroy or prevent competition with Mead or its customers. The case was accordingly reversed and remanded for the determination of that fact. See Moore v. Mead Service Co., 10 Cir., 190 F.2d 540. But in leaving the case to the undetermined facts, we did not thereby intend to hold or imply that the mere fact of interstate commerce and local price discrimination, standing alone, made out a prima facie case for the plaintiff. Indeed, on first consideration, doubt was expressed whether the purely local price-cutting war had any actionable effect or impact upon interstate commerce. See 10 Cir., 184 F.2d 338, 340. 3 Recognizing the necessity of proof on this crucial issue, the trial court charged the jury, substantially in the language of the statute, that it was incumbent upon the plaintiff to establish by a preponderance of the evidence that the defendant, while engaged in interstate commerce, and in the course of such commerce, either directly or indirectly, discriminated in price between different purchasers of its products, sold for use, consumption or resale in Santa Rosa, and that the effect of such discrimination might substantially lessen competition or tend to create a monopoly in such line of commerce, see Section 2(a) of the Clayton Act, as amended, 49 Stat. 1526, 15 U.S.C.A. § 13(a); or that the defendant, while engaged in interstate commerce, and in the course of such commerce, sold goods at Santa Rosa, at prices lower than those exacted by defendant elsewhere in the United States for the purpose of destroying competition or eliminating a competitor in Santa Rosa, or to sell goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor. Section 3, 49 Stat. 1528, 15 U.S.C.A. § 13a. It was on these pertinent instructions that the jury found for the plaintiff and assessed his damages at.$19,000, which the trial court tripled and entered judgment accordingly, together with attorney fees in the sum of $11,400. 4 The first of the statutory instructions is the embodiment of the now accepted view that purely local transactions in the form of price fixing or discrimination come within the ban of the anti-trust laws, when such transactions ay have the effect of interfering with the free flow of competitive trade and commerce. Swift & Co. v. U.S., 196 U.S. 375, 25 S.Ct. 276, 49 S.Ct. 518; Shreveport Rate Cases, Houston, E. & W.T.R. Co. v. U.S., 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328. The latter part of the court's instructions in the disjunctive is the embodiment of the equally accepted complementary view that interstate commerce powers, when exerted to their fullest nder the anti-trust laws, forbid the utilization of interstate commerce for the purpose of monopolizing local trade or business, whether through price fixing or other discriminatory practices. Stevens Co. v. Foster & Kleiser Co., 311 U.S. 255, 61 S.Ct. 210, 85 L.Ed. 173; Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 82 L.Ed. 1236; Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239. Local price fixing or discrimination is within the anti-trust laws if the means adopted for its accomplishment reach beyond the boundaries of one state. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951. And, since the design of the Robinson-Patman Amendment was to pinpoint protection of the anti-trust laws 'to the competitor victimized by the discrimination', the victim may maintain an action for damages without showing that the competitive injury was general in its scope and effect. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 49, 68 S.Ct. 822, 830, 92 L.Ed. 1196; Corn Products Refining Co. v. Federal Trade Commission, 324 U.S. 726, 65 S.Ct. 961, 89 LEd. 1320. But, whether the claim is asserted under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, or the Clayton Act, as amended, 15 U.S.C.A. § 12 et seq., the wrongs complained of must involve interstate commerce, either in 'effect' or 'purpose', for obviously, the acts can have no greater potency than the commerce clause itself. 5 Local conduct which is separable and unrelated to interstate commerce is necessarily insulated from the operation of the anti-trust laws, and so, in making application of the Clayton Act, as amended, to local purchases and sales, it is important to keep in mind the 'obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states.' United States v. Frankfort Distilleries, Inc., supra, 324 U.S.at page 297, 65 S.Ct.at page 663. '* * * It is the effect upon the interstate commerce or its regulation, regardless of the particular form which the competition may take, which is the test of federal power.# United States v. Wrightwood Dairy Co., 315 U.S. 110, 120, 62 S.Ct. 523, 526, 86 L.Ed. 726. 6 At least part of the time during which it was selling bread in Santa Rosa. Mead was also selling bread across state lines to outlets in Texas. And, it discriminated in price between the purchases of bread in Santa Rosa and those made in Texas, so that at least some of the purchases involved in the discrimination were in commerce. But there is positively no evidence that the discriminatory sales had even the probable effect of lessening competition or tended to create a monopoly in any line of commerce, or to destroy or prevent competition with Mead at any place except Santa Rosa, New Mexico, or any of its customers at any place in the United States except Santa Rosa. The sales made at Santa Rosa were to purchasers for resale locally. The competitive injury resulting from the sale was to a purely local competitor whose business was in no way related to interstate commerce. If competition was lessened or a monopoly created, it was purely local in its scope and effect and in no way related to or affected interstate commerce. The suppressive effect of the discriminatory sales on competition at Santa Rosa, reprehensible as they may have been, did not reach beyond the jurisdiction of New Mexico and cannot therefore be found to be within the 'effect' provisions of Sec. 13(a) of the Clayton Act, as amended. 7 Our case is not like Mandeville Farms v. American Crystal Sugar Co., supra, where local price fixing of sugar beets adversely affected the interstate sale and distribution of refined sugar. Nor is it like Corn Products Refining Co. v. Federal Trade Commission, supra, where the discriminatory sales of commodities were made to purchasers competing in interstate commerce. Nor is it comparable to George Van Camp & Sons Co. v. American Can Co., 278 U.S. 245, 49 S.Ct. 112, 73 L.Ed. 31, where both of the competing purchasers were engaged in interstate commerce. 8 Undoubtedly Mead sold bread in one part of the United States, to-wit, Santa Rosa, at prices lower than those exacted by it elsewhere in the United States, to-wit, Farwell, Texas, and the lower price at Santa Rosa may be said to have been made for the 'purpose of destroying competition or eliminating a competitor: at Santa Rosa. The facts thus read upon the literal language of the statute. But the statute must be kept within the constitutional power of Congress to regulate commerce. It follows then, to be constitutionally actionable under Sec. 13a, interstate commerce must be monopolized or utilized to effectuate the objective. In other words, the means employed for the elimination of the purely local competitor must, in some effective way, reach beyond state boundaries. In that respect, our case is different from United States v. Frankfort Distilleries, supra, where interstate commerce was monopolized to effect a local objective; or Standard Oil Co. v. Federal Trade Commission, supra, where discriminatory sales were made interstate to local competitors. See also Federal Trade Commission v. Morton Salt Co., supra. In those cases, interstate commerce was the forbidden means for the achievement of the local purpose. Here, although Mead was engaged in commerce, the sales made in the course of such commerce were not the means for the elimination of the local competitor. The means for the achievement of the local purpose did not extend beyond state lines. 9 The evidence showed that some of the stockholders and officers of the Mead Bakery at Clovis, New Mexico, were also stockholders and officers of other bakeries in New Mexico and Texas; that all of such bakeries produced and sold bread under the same label and that the labelled wrappers were purchased from the same source. They conducted their advertising campaigns through a common agency which billed each bakery for the amount of advertising used. It was also shown that in many instances, flour for the bakeries was purchased in Texas from a common source and sometimes in common lots. Appellee relies upon this interlocking arrangement to show an interstate corporate structure and activity. But there is nothing in this record to show that the interlocking corporate ownership and management or other business relationships were utilized or were in any way related to the local price war in Santa Rosa. There is nothing to show that bread was shipped from the Texas bakeries to the New Mexico bakeries, or for that matter, from one New Mexico bakery to another, or any other exchange of commodities which might be said to lend an interstate character to otherwise purely local transactions. 10 Our case is indistinguishably similar to Atlantic Co. v. Citizens Ice & Cold Storage Co., 5 Cir., 178 F.2d 453, where the offending competitor, while engaged in commerce, discriminated in price against a purely local competitor. The court held that the local price war had no substantial effect upon interstate commerce and was therefore not within the scope of either the Sherman or Clayton Acts. We agree that the purely local price-cutting war did not affect any line of commerce, nor did the means of its effectuation actionably involve commerce. 11 The judgment is accordingly reversed with directions to dismiss the action.

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 23, 2015* Decided October 28, 2015 Before MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 14-3801 HARRY POWELL, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 12 C 3261 VIPIN SHAH, et al., Sue E. Myerscough, Defendants-Appellees. Judge. ORDER Harry Powell, an Illinois inmate, appeals the grant of summary judgment against him in this suit under 42 U.S.C. § 1983, asserting that Wexford Health Services, which contracts with the prison to provide medical care, and two Wexford doctors were deliberately indifferent in not referring him to a specialist and ordering physical therapy. *After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C). No. 14-3801 Page 2 The district court concluded that the defendants had not been deliberately indifferent. We affirm. Powell began receiving treatment after injuring his left knee during a basketball game at the Western Illinois Correctional Center. He saw a nurse two days later, complaining of knee pain and difficulty walking and straightening his leg. The nurse gave him a cold compress and Tylenol. Two days after that, Powell saw Dr. Vipin Shah, who recorded no swelling in the knee but noted Powell’s difficulty bending his leg. Dr. Shah prescribed ibuprofen and a warm pack for what he described as Powell’s “soft tissue injury to the left knee.” After Powell received an x-ray two days later, Dr. Shah concluded that the injury was likely caused by an “osteochondral lesion-osteochondral dessicans” or possibly a bone fracture.1 He prescribed ibuprofen, crutches, an Ace bandage, and a knee brace for six months; and he recommended that Powell be assigned to a first-floor cell and a low bunk. Dissatisfied with the treatment, Powell filed successive grievances about his knee pain. About two months later, Powell’s counselor followed up on one of the grievances with a written response: “According to HCV–Dr. Shah, patient has been seen multiple times, treated with plan suggested by utilization management, knee brace, rest, [and] immobilization. If this does not help, he will be referred to ortho.” Over the next eight months and 21 appointments, Dr. Shah treated Powell for varying levels of knee pain. At one of the earlier appointments, a second x-ray showed results similar to the first, and Dr. Shah continued to treat Powell with pain medication and a knee brace. Later, after receiving an MRI, Powell says that he was told by the technician that he would need arthroscopic surgery. Dr. Shah, however, concluded from the MRI that Powell’s ligaments were intact and his knee was stable; he therefore continued prescribing the same course of treatment, though varying the doses and 1 An “osteochondral lesion-osteochondral dessicans” is alternately described as a “tear or fracture in the cartilage covering one of the bones in a joint,” Cedars-Sinai Medical Center, Osteochondral Lesions/Osteochondritis Dessicans (Oct. 23, 2015), https://www.cedars-sinai.edu/Patients/Health-Conditions/Osteochondral-Lesions-Osteo chondritis-Dessicans.aspx, or “a joint condition in which bone underneath the cartilage of a joint dies due to lack of blood flow,” Mayo Clinic, Osteochondritis Dissecans (Oct. 23, 2015), http://www.mayoclinic.org/diseases-conditions/osteochondritis-dissecans/ basics/definition/con-20024803. No. 14-3801 Page 3 strength of the pain medication. Six months into his treatment, Powell asserts, Dr. Shah told him that he “has done all he is going to do for [Powell].” Later that month, Dr. Shah recommended exercise for Powell’s recent weight gain. And about two months after that, Dr. Shah advised “relaxation behavior” for his knee pain. Four months after his last appointment with Dr. Shah, Powell saw another prison doctor, Dr. Thomas Baker, for an ibuprofen refill and because his knee sleeve had loosened. Dr. Baker reviewed Powell’s records, ordered blood work to monitor any effects from Powell’s prolonged use of ibuprofen, and then essentially continued the same treatment plan prescribed by Dr. Shah. Powell saw Dr. Baker for three more appointments until he was transferred to another prison the following year. After his transfer, Powell sued Dr. Shah and Dr. Baker, arguing that they treated his knee injury deficiently and caused him prolonged pain, suffering, and emotional distress. He asserted that the doctors should have referred him to an orthopedic surgeon and ordered physical therapy. He also sued Wexford, asserting that its policy of restricting referrals to outside specialists to save money was unconstitutional. The case proceeded to discovery, and Powell filed a motion to recruit counsel, which the court denied, finding that he was competent to litigate his claims. Ten months later Powell filed a second motion to recruit counsel, which the court also denied. The parties then filed cross-motions for summary judgment, after which Powell sought the appointment of an expert medical witness to explain why orthopedic surgery was necessary. The court denied Powell’s request, finding that he had failed to establish the need for an expert and, further, he essentially was seeking, not a neutral expert, but an expert to testify on his behalf. The district court then granted summary judgment in favor of defendants. The court found that none of the evidence cited by Powell created a fact question regarding whether the doctors’ treatment decisions rose to the level of deliberate indifference. First, with regard to the counselor’s response to his grievance that Powell would be “referred to ortho,” the court discounted the response as irrelevant because Powell had not shown that the counselor had medical training or knowledge or even authority to recommend that Powell see an orthopedic specialist. Second, with regard to Powell’s statement that the MRI technician told him that he would need surgery, the court rejected that evidence as inadmissible hearsay and, in any event, it would not be sufficient to defeat summary judgment because it referred merely to a difference of medical opinion. And third, No. 14-3801 Page 4 regarding Powell’s “subjective belief” that he should be referred to a specialist, the court found that this “supposition” did not constitute evidence that the doctors’ treatment was blatantly inappropriate. Finally, the court concluded that Powell failed to produce any evidence that Wexford maintained an unconstitutional policy that caused him to suffer a constitutional deprivation. Powell then filed a postjudgment motion to reconsider, asserting that he could prove the inadequacy of his treatment through newly discovered evidence: the opinion of an orthopedic surgeon—whom he saw after re-injuring his knee at another prison—that he should have had surgery when he first injured his knee. The district court construed Powell’s motion to reconsider as brought under Rule 59(e) and denied it, finding that the evidence concerned a new, later knee injury and was not related to the treatment at issue for his knee injury two years earlier. On appeal Powell challenges the grant of summary judgment and specifically the court’s discounting of evidence that he submitted. He argues that the district court erroneously attributed the statement that he would be “referred to ortho” to his counselor rather than Dr. Shah, and that this statement—in addition to his other evidence—shows that the doctors knew that they should have referred him to a specialist yet refused to do so. The district court did not err in concluding that Powell failed to create a fact question over whether the doctors were deliberately indifferent. Although continuing an ineffective treatment plan may constitute deliberate indifference, Ortiz v. Webster, 655 F.3d 731, 735 (7th Cir. 2011); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010), the treatment decision must be “so significant a departure from accepted professional standards or practices that it calls into question whether the doctor actually was exercising his professional judgment.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). Even if the statement that Powell would be “referred to ortho” came from Dr. Shah rather than his counselor, the district court nevertheless correctly concluded that Powell’s evidence did not support his contention that his doctors abandoned their professional judgment when they regularly monitored him but did not refer him to a specialist or order physical therapy. Powell cannot point to any evidence that calls into question Dr. Shah’s exercise of professional judgment—in concluding from two x-rays, an MRI, and multiple check-ups that Powell’s knee was stable and could be treated with a knee brace, varying doses and strengths of pain No. 14-3801 Page 5 medication, and exercise—or Dr. Baker’s, in continuing Dr. Shah’s regimen and prescribing the same treatment after examining Powell’s medical records and ensuring through blood testing that he was not suffering any adverse effects from the medication. This record supports the district court’s conclusion that Powell’s evidence amounted to a mere disagreement with his doctors’ treatment decisions and was therefore insufficient to establish deliberate indifference. See Pyles, 771 F.3d at 409. Powell also argues that summary judgment in favor of Wexford was error because Dr. Shah stated that he would have to consult Wexford before referring him to an orthopedic surgeon since “money can be an issue, cause [sic] there is not money,” and Wexford has a “public record of unconstitutional policies.” But as the district court correctly determined, not only is the evidence speculative, but Wexford cannot be held liable for damages if, as here, Powell cannot show an underlying constitutional violation. See Pyles, 771 F.3d at 412; Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013). Next, Powell challenges the district court’s denial of an expert medical witness, arguing that the need for an orthopedic specialist who could explain the standard of care was apparent from the court’s misguided ruling. An expert was not necessary, however, given the straightforward facts of the case and Powell’s failure to produce evidence that the treatment was not appropriate. Gaviria v. Reynolds, 476 F.3d 940, 945 (D.C. Cir. 2007). Moreover, the only issue in this case was whether the doctors had a “sufficiently culpable state of mind,” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Holloway, 700 F.3d at 1072, which the court accurately recognized as a subjective inquiry that did not require an expert, see Ledford v. Sullivan, 105 F.3d 354, 359–60 (7th Cir. 1997). Finally, Powell argues that the district court abused its discretion by denying him counsel because the case involved conflicting medical testimony and he is incarcerated, indigent, and lacks legal training. But as the district court correctly pointed out, Powell demonstrated over the course of litigation that he was competent to litigate his case. Powell filed “cogent pleadings” and defeated an earlier motion for summary judgment on exhaustion grounds; his claims and knee injury were not novel or complex; and he had personal knowledge of the facts underlying his claims and was able to obtain his own medical records. See Olson v. Morgan, 750 F.3d 708, 711–12 (7th Cir. 2014); Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc). AFFIRMED. 

277 F.3d 838 (6th Cir. 2002) In re: William Dunlap Cannon III, Debtor.George W. Stevenson, Trustee for William Dunlap Cannon III, Plaintiff-Appellant,v.J.C. Bradford & Company; J.C. Bradford Futures, Inc.; Charles Ross, Defendants-Appellees. Nos. 00-5624, 00-5895 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: August 10, 2001Decided and Filed: January 18, 2002 Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 99-02400; 99-02605--Julia S. Gibbons, District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Michael P. Coury (argued and briefed), Saul C. Belz (briefed), Quitman R. Ledyard (briefed), Waring Cox, PLC, Memphis, TN, for Plaintiff-Appellant. William J. Nissen (argued and briefed), R. Rene Pengra (briefed), Sidley & Austin, Chicago, IL, for Defendants-Appellees. Before: KEITH, KENNEDY, and BATCHELDER, Circuit Judges. OPINION BATCHELDER, Circuit Judge. 1 In this opinion we address two separate appeals from judgments of the district court in an adversary proceeding commenced in the bankruptcy of William Dunlap Cannon III. In the first (No. 00-5624), George W. Stevenson in his capacity as trustee of the estate in bankruptcy sought to avoid certain fraudulent transfers pursuant to 11 U.S.C. 548 (the "core proceeding"). See generally Stevenson v. J.C. Bradford & Co. (In re Cannon), 230 B.R. 546 (Bankr. W.D. Tenn. 1999). Following a bench trial the bankruptcy court entered judgment in favor of the trustee for $1,137,500 plus prejudgment interest. Id. at 599-600. See also Stevenson v. J.C. Bradford & Co. (In re Cannon), 232 B.R. 701, 709 (Bankr. W.D. Tenn. 1999). On appeal the district court ruled that the trustee had failed to establish that funds Cannon held in trust for clients constituted "an interest of the debtor in property" within the meaning of section 548(a) and reversed the judgment of the bankruptcy court. 2 In the second (No. 00-5895), the trustee asserted several claims under federal and state law against the defendants (the "non-core proceeding"). After trial the bankruptcy court made proposed findings of fact and conclusions of law recommending that the district court enter judgment in favor of the trustee for $2,361,736 in compensatory damages, $5 million in punitive damages, prejudgment interest, and reasonable attorneys' fees and costs. Stevenson, 230 B.R. at 601; 232 B.R. at 708-09. The district court sustained the defendants' objection that the trustee lacked standing to bring the non-core proceeding because the debtor could not have brought suit against the defendants. Accordingly, the district court dismissed the non-core proceeding. Stevenson timely filed notices of appeal from both judgments of the district court, and we consolidated the appeals for purposes of oral argument. For the reasons that follow, we will affirm the judgments of the district court. I. Statement of Facts 3 William Dunlap Cannon III practiced law in Memphis, Tennessee, for over twenty years before filing for bankruptcy in February 1994. Cannon's practice consisted almost entirely of real estate closings, and during the time periods relevant to this suit he averaged between 120 and 150 closings per month. Cannon maintained several escrow accounts to hold clients' funds deposited in connection with real estate transactions. His principal escrow account was at United American Bank ("UAB") and titled "William Dunlap Cannon III--Real Estate Escrow Account II." Cannon also maintained at least two similarly titled escrow accounts with First Tennessee Bank ("First Tennessee"). As a result of the volume of Cannon's closings, between $5 million and $10 million per month flowed through these accounts. Cannon understood that he was a fiduciary with respect to the funds deposited in escrow and that the accounts served the sole purpose of receiving and disbursing funds in connection with real estate transactions. As a matter of practice, Cannon collected his legal fees earned in connection with closings by depositing checks drawn on the escrow accounts into his law office's separate account maintained at First Tennessee. 4 By the mid-1980s, Cannon had begun to use funds in his escrow accounts to pay various personal and business expenses. Initially, Cannon misappropriated the "float" in the escrow accounts.1 By the Fall of 1986, the escrow accounts had a deficiency of approximately $400,000 to $500,000; but, the size of the float generated by the volume of Cannon's real estate closing business concealed the shortfall. 5 In October 1986 Cannon opened a brokerage account with J.C. Bradford Futures, Inc., a wholly owned subsidiary of J.C. Bradford & Co. (collectively "Bradford"), to trade commodity futures. Prior to opening his account with Bradford, Cannon met with Charles Ross, the head of Bradford's Memphis office, and Freddie Norman, who discussed with Cannon a system the two had developed while at Merrill Lynch for forecasting trends in commodities markets and timing trades. At their meeting Ross and Norman explained their system, showed Cannon an impressive hypothetical annual rate of return of 100% to 200%, advised Cannon to take every trade recommended by the system, and informed Cannon that he might incur substantial short-term losses that he could readily recoup by sticking with the system for a long period of time. 6 On the basis of these representations, Cannon opened an account and gave Ross and Norman discretion to enter into commodities transactions within the parameters recommended by the system. Cannon's application for the Bradford commodity account shows that Cannon had an annual income of more than $250,000 and a net worth, excluding the value of his home, of between $500,000 and $1 million. It also reveals that Cannon had no prior experience in trading commodities. Although Bradford had a policy of not accepting corporate checks, the record reflects that all of the checks that Cannon deposited into his brokerage account with Bradford came from one of his escrow accounts with UAB or First Tennessee. 7 By early 1987 Cannon's account had lost over 50% of the funds invested. After increasing the size of his positions, Cannon recovered these losses over the next two years. In September 1990 Cannon ceased trading in his Bradford commodity account. By this point in time, Cannon had realized a profit of $12,454, representing an annual rate of return of approximately 3.3%. 8 As losses from Cannon's business ventures and other investments mounted, the deficiency in the escrow accounts reached approximately $1.5 million by the Spring of 1992. Cannon could no longer rely on float to conceal the shortfall in the escrow accounts, so he began to take more aggressive measures. First, Cannon held closing checks to generate float.2 As the deficiency increased and Cannon became increasingly dependent on new funds to cover the checks being held on prior closings, Cannon began kiting checks to increase the balance in the escrow accounts.3 In addition to kiting between accounts with UAB and First Tennessee, Cannon opened accounts with several out-of-town banks. 9 Desperate for a way out of his predicament, Cannon resumed commodities trading in March 1992 based on representations that Ross and Norman had improved their system. As Cannon again sustained losses, he made margin calls and covered positions with checks drawn on the escrow accounts at UAB and First Tennessee. Cannon realized the impropriety and illegality of using the escrow accounts in this way, and he depended upon deposits from new closings to pay off the parties to earlier transactions. At various points when Cannon experienced large losses, Ross and other managers with Bradford sought explanations for Cannon's use of checks drawn on the escrow accounts, but never confirmed Cannon's verbal assurances that the accounts contained his own money, even though Cannon had previously indicated to Ross that he was trading with borrowed funds. By February 1994 Cannon had sustained gross trading losses of $2.36 million and net trading losses of more than $1 million. In turn, the losses increased the pressure on Cannon's practice to make up the deficit in the escrow accounts by delaying payments on closings and kiting checks. Cannon's trades generated brokerage commissions of $286,876 for Bradford. 10 Cannon's scheme came to an end when UAB informed Cannon on February 3, 1994, that it would no longer cover overdrafts, immediately credit his account upon presentation of a check, or transfer funds among his accounts. See Lawyers Title Ins. Corp. v. United Am. Bank of Memphis, 21 F. Supp. 2d 785, 790-91 (W.D. Tenn. 1998) (stating the facts in a related civil case). Shortly thereafter Cannon bounced two checks at First Tennessee, which then returned all checks presented for payment on Cannon's accounts and terminated Cannon's accounts on February 17, 1994. See First Tenn. Bank, N.A. v. Stevenson (In re Cannon), 237 F.3d 716, 718 (6th Cir. 2001) (stating the facts in a related case in which the trustee sought to avoid a preferential transfer). As a result of these actions, Cannon voluntarily suspended his license to practice law and filed a voluntary petition for bankruptcy under Chapter 7 on February 25, 1994. See Lawyers Title Ins. Corp., 21 F. Supp. 2d at 791. The Supreme Court of Tennessee disbarred Cannon effective August 1, 1994. Id. In 1995 Cannon pleaded guilty in federal court to charges of embezzlement, mail fraud, wire fraud, and bank fraud and began serving a sentence of forty-two months imprisonment.4 11 A. The Condition of the Escrow Accounts When Cannon Filed for Bankruptcy 12 At the time Cannon filed his petition for bankruptcy, the deficiency in his escrow accounts had ballooned to over $3.5 million. This amount was owed to mortgage companies and individuals on real estate closings. When Cannon filed for bankruptcy, the UAB escrow account had a balance of $648.81, and the First Tennessee accounts showed a balance of zero. At all times Cannon commingled the funds of clients in the escrow accounts. In addition, Cannon deposited some legal fees into the escrow accounts in a vain attempt to repay the deficiency, and the balance in the escrow accounts also increased due to Cannon's check kiting. 13 During the year prior to filing for bankruptcy, Cannon wrote twenty-one checks to Bradford from the escrow accounts totaling $1,137,500. Jeffrey Graham, a certified public accountant retained as an expert by the trustee, conducted an analysis of the cash flows in and out of the escrow accounts to determine the source of funds Cannon used to pay Bradford. According to Graham's report, the escrow checks came from an approximately $12 million pool of 242 deposits made at or near the time of checks written to Bradford. Of this amount, Graham traced approximately $9.9 million, or 83%, to funds from real estate closings; approximately $1.8 million, or 15%, to kites; and $67,389.77 to Cannon's personal funds, with the balance attributable to undetermined sources. 14 B. Commencement of the Adversary Proceeding in Bankruptcy Court 15 On February 23, 1996, Stevenson filed suit against J.C. Bradford & Co., J.C. Bradford Futures, Inc., and Charles Ross. Counts I through VII of the complaint alleged violations of federal commodities laws, breach of fiduciary duties, fraud, violations of state consumer protection laws, and failure to supervise--all non-core proceedings under 28 U.S.C. 157(b)(2). In Count VIII the trustee sought to recover under 11 U.S.C. 548 the $1,137,500 Cannon transferred to Bradford from the escrow accounts, a core proceeding under 28 U.S.C. 157(b)(2)(H). An amended complaint contained a prayer for relief requesting rescissionary and compensatory damages against all defendants, jointly and severally, in the amount of $2 million plus $6 million in punitive damages and reasonable costs and attorneys' fees on Counts I through VII. On Count VIII the trustee sought $1,137,500, prejudgment interest, and costs. 16 In an amended answer to the amended complaint, Defendants asserted several affirmative defenses. Of particular relevance to this appeal, Defendants argued that (1) the funds transferred to Bradford from the escrow accounts did not constitute "an interest of the debtor in property," (2) Bradford accepted the checks drawn on the escrow accounts for value and in good faith, and (3) the trustee lacked standing to assert the claims raised in the amended complaint because the victims of Cannon's misappropriations are not creditors of the estate and had received compensation through their insurance companies or brought separate actions to recover their losses. 17 In a motion to dismiss Count VIII, the core proceeding, Defendants argued that the funds transferred from the escrow accounts did not constitute "an interest of the debtor in property" within the meaning of section 548 and so did not come within the trustee's avoidance power. After a hearing on the partial-motion to dismiss, the bankruptcy court rejected Defendants' arguments and denied the motion. Stevenson and Defendants filed cross-motions for summary judgment. After denying Defendants' motion and granting in part and denying in part the motion of the trustee, the effect of which was to find that the funds in the escrow accounts were property of the estate under section 548, the bankruptcy court set the case for trial. Stevenson, 230 B.R. at 588. 18 C. The Bankruptcy Court's Order (No. 00-5624) and Proposed Findings (No. 00-5895) 19 Upon the conclusion of a nine-day bench trial, the bankruptcy court issued lengthy proposed findings of fact and conclusions of law with respect to the counts alleged in the non-core proceeding5 and an opinion and order with respect to the trustee's core proceeding to avoid the fraudulent transfer. See generally Stevenson v. J.C. Bradford & Co. (In re Cannon), 230 B.R. 546 (Bankr. W.D. Tenn. 1999). In the non-core proceeding, the bankruptcy court proposed that the district court find Defendants liable for commodities fraud, fraud, violations of Tennessee's consumer protection laws, breach of fiduciary duties, and failure to supervise. Id. at 570-88. The bankruptcy court recommended that the district court enter judgment in favor of the trustee for $2,361,736 in compensatory damages and $5 million in punitive damages plus prejudgment interest. Id. at 601. 20 In the core proceeding, having previously determined that the funds in the escrow accounts were property of the estate, the bankruptcy court found that Cannon transferred funds from the escrow accounts to Bradford with the intent to hinder, delay, and defraud his creditors, id. 588-91, and that Bradford did not receive the funds in good faith. Id. at 591-94. Therefore, the bankruptcy court concluded that Cannon's disbursement of funds from the escrow accounts to Bradford constituted fraudulent transfers under section 548. Id. at 591, 594. On this basis the bankruptcy court ruled that the trustee was entitled to recover the $1,137,500, plus prejudgment interest, transferred to Bradford in the year before Cannon filed for bankruptcy. Id. at 600, 601-02. 21 Defendants timely filed with the bankruptcy court objections to the proposed findings of fact and conclusions of law in the non-core proceeding and a motion to alter or amend the judgment under Rule 9023 of the Federal Rules of Bankruptcy Procedure in the core proceeding. Among the objections raised was Defendants' renewal of the argument previously made in the amended answer to the amended complaint that the trustee lacked standing to assert claims related to Cannon's trading losses. In response to the objections, the trustee asserted that Defendants had raised the standing argument for the first time. Upon review of the objections and responses, the bankruptcy court entered an order amending the proposed findings of fact and conclusions of law with respect to the non-core proceeding and an amended order in the core proceeding. See generally Stevenson v. J.C. Bradford & Co. (In re Cannon), 232 B.R. 701 (Bankr. W.D. Tenn. 1999). For purposes of this appeal, these amendments made no material changes to the bankruptcy court's initial judgment. D. The District Court's Judgments 22 On appeal to the district court in the core proceeding, Defendants argued that the bankruptcy court erred in finding that the funds in escrow were property of the debtor and that the trustee lacked standing to recover any funds fraudulently transferred to Bradford from the escrow accounts because they belonged to clients, not creditors. In an order dated March 31, 2000, the district court agreed with Defendants that the trustee lacked standing to assert claims against Defendants under section 548. Because the trustee's standing implicated the court's jurisdiction under Article III, the district court determined that it could properly entertain the issue for the first time on appeal. Reasoning that under Tennessee law the escrow accounts were express trusts, the district court concluded that Cannon had no equitable interest in the funds transferred to Bradford with the result that the definition of "an interest of the debtor in property" in section 548 excluded them from the estate in bankruptcy. Therefore, the district court reversed the judgment of the bankruptcy court in the core proceeding and entered judgment in favor of Defendants. 23 In the non-core proceeding, the district court entered a separate order on March 31, 2000, dismissing the trustee's claimsagainst Defendants. Because the money Bradford lost in commodities trades came from escrow accounts Cannon maintained for the benefit of his clients, the district court concluded that Cannon himself suffered no distinct injury as a result of the conduct of Defendants, fraudulent or otherwise. Therefore, the court reasoned, Cannon would not have standing to sue Defendants although his clients who lost money would. II. The Core Proceeding (No. 00-5624) 24 As a threshold matter, Defendants argue that the trustee did not have standing to seek avoidance of the transfers of funds in the escrow accounts belonging to Cannon's clients to Bradford. In response, the trustee assails the judgment of the district court in the core proceeding on the ground that Defendants have asserted for the first time on appeal the question of standing and the argument that funds held in express trust for Cannon's clients fall outside the scope of section 548. 25 Because 11 U.S.C. 548(a)(1) grants the trustee the power to "avoid any transfer of an interest of the debtor in property" made within one year before the debtor filed a petition for bankruptcy, we have difficulty comprehending Defendants' argument that the trustee lacks Article III standing to seek to avoid preferential transfers. Defendants likely advance this argument to circumvent the general rule that a reviewing court will not consider issues raised for the first time on appeal. See, e.g., Poss v. Morris, 260 F.3d 654, 663 (6th Cir. 2001); Michigan Nat'l Bank v. Charfoos (In re Charfoos), 979 F.2d 390, 395 (6th Cir. 1992); Pinney Dock & Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988). Whether to consider an issue on which the trial court did not pass rests within the discretion of the appellate court and depends upon the facts of individual cases. Singleton v. Wulff, 428 U.S. 106, 121 (1976). Factors guiding the determination of whether to consider an issue for the first time on appeal include: 26 1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear and beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties' right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court. 27 Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996) (citing Taft Broad. Co. v. United States, 929 F.2d 240, 245 (6th Cir. 1991)). We have also held that exceptional circumstances may warrant a departure from the general rule. Poss, 260 F.3d at 663-64; Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993). 28 The Supreme Court has committed the question of which circumstances warrant a departure from the general rule to the sound discretion of the appellate courts. Singleton, 428 U.S. at 121. Even if Defendants raised the issue for the first time on appeal to the district court, we would not conclude that the district court abused its discretion by considering for the first time on appeal a question of law intimately bound up with the power of the trustee under the bankruptcy code. Further, the record reflects that Defendants in fact raised the argument that the funds transferred from the escrow accounts to Bradford did not constitute "an interest of the debtor in property" in an amended answer to the amended complaint and in the motion to dismiss. In as much as Defendants presented the matter to the bankruptcy court and the issue concerns an important question of law regarding the scope of the trustee's avoidance power under section 548 of the bankruptcy code, we will consider whether the funds Cannon deposited with Bradford constitute fraudulent transfers within the meaning of 11 U.S.C. 548. A. Standard of Review 29 When we review appeals from the decisions of a district court in a case originating in bankruptcy court, we directly review the decision of the bankruptcy court rather than the district court's review of the bankruptcy court's decision. In re M.J. Waterman & Assocs., Inc., 227 F.3d 604, 607 (6th Cir. 2000). Because we find ourselves in essentially the same position as the district court in reviewing the bankruptcy court's decision, we accord no deference to the district court's decision. Id. at 607. "[I]n appeals from the decision of a district court on appeal from the bankruptcy court, the court of appeals independently reviews the bankruptcy court's decision, applying the clearly erroneous standard to findings of fact and de novo review to conclusions of law." In re Madaj, 149 F.3d 467, 468 (6th Cir. 1998) (internal quotations and citations omitted). 30 Because a grant of summary judgment presents a pure question of law, the district court reviews the bankruptcy court's grant of summary judgment de novo, as do we in turn. In re Batie, 995 F.2d 85, 88-89 (6th Cir. 1993). Likewise the trustee's power to avoid fraudulent transfers under section 548 presents a question of law that we review de novo. See United States v. Hunter (In re Walter), 45 F.3d 1023, 1027 (6th Cir. 1995) (citing In re Caldwell, 851 F.2d 852, 857 (6th Cir. 1988), and In re Loretto Winery Ltd., 898 F.2d 715, 718 (9th Cir. 1990)). B. Section 548 and the Power of the Trustee 31 Under 11 U.S.C. 548(a)(1), the trustee "may avoid any transfer of an interest of the debtor in property" made within one year before the debtor files a petition for bankruptcy. Although the bankruptcy code does not define "property of the debtor," section 541(a)(1) provides that the "property of the estate" includes "all legal or equitable interests of the debtor in property as of the commencement of the case." Section 541(d) further provides: 32 Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate under subsection (a) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. 33 The Supreme Court has interpreted these statutes as including in a debtor's estate "that property that would have been part of the estate had it not been transferred before the commencement of the bankruptcy proceedings." Begier v. IRS, 496 U.S. 53, 58 (1990). However, "[b]ecause the debtor does not own an equitable interest in property he holds in trust for another, that interest is not 'property of the estate.'" Id. at 59. 34 State law determines whether funds held in escrow constitute an express trust excluded from the debtor's estate. Barnhill v. Johnson, 503 U.S. 393, 398 (1992) (noting that under the bankruptcy code "'property' and 'interests in property' are creatures of state law") (citing McKenzie v. Irving Trust Co., 323 U.S. 365, 370 (1945), and Butner v. United States, 440 U.S. 48, 54 (1979)). Under Tennessee law, establishing the existence of an express trust requires proof of three elements: 35 (1) a trustee who holds trust property and who is subject to the equitable duties to deal with it for the benefit of another, (2) a beneficiary to whom the trustee owes the equitable duties to deal with the trust property for his benefit, and (3) identifiable trust property. 36 Kopsombut-Myint Buddhist Ctr. v. State Bd. of Equalization, 728 S.W.2d 327, 333 (Tenn. Ct. App. 1986) (citing G.G. Bogert & G.T. Bogert, The Law of Trusts and Trustees 1 (rev. 2d ed. 1984) [hereinafter Bogert], and Restatement (Second) of Trusts 2 cmt. h (1957)). 37 [A]t a minimum, there must be a grantor or settlor who intends to create a trust; a corpus (the subject property); a trustee; and a beneficiary. The trustee holds legal title and in that sense, owns the property, holding it for the benefit of the beneficiary who owns the equitable title. While the grantor may retain either of these interests, no one may solely hold both as the purpose of separating the two would be defeated. 38 Myers v. Myers, 891 S.W.2d 216, 218-19 (Tenn. Ct. App. 1994) (citations omitted). 39 Under these principles of Tennessee law, we conclude that the funds Cannon held in escrow for his clients were without question maintained in an express trust. In this case, purchasers of real estate deposited funds in segregated escrow accounts, which Cannon maintained subject to fiduciary duties for the benefit of parties to real estate sales who would receive the money or for whose benefit the money would be paid out upon closing. Accordingly, all of the conditions necessary for creation of an express trust are present in this arrangement. "[W]here a person has or accepts possession of personal property with the express or implied understanding that he is not to hold it as his own absolute property, but is to hold and apply it for certain specific purposes or for the benefit of certain specified persons, a valid and enforceable express trust exists." In re Elrod, 42 B.R. 468, 473 (Bankr. E.D. Tenn. 1984). See also Emerson v. Marty (In re Mark Benskin & Co.), 135 B.R. 825, 834 (Bankr. W.D. Tenn. 1991) ("If the intention is that the money shall be kept or used as a separate fund for the benefit of the payor or a third person, a trust is created.") (quoting In re Property Leasing & Mgmt., Inc., 50 B.R. 804, 807-08 (Bankr. E.D. Tenn. 1985)). 40 The Tennessee Supreme Court's rules confirm this conclusion: "Attorneys who practice law in Tennessee shall deposit all funds held in trust in this jurisdiction in accounts clearly identified as 'trust' or 'escrow' accounts, referred to herein as 'trust accounts[.]'" Tenn. Sup. Ct. R. 9, 29.1(A)(1). Therefore, at all times prior to the filing of his petition for bankruptcy, Cannon possessed only legal title to the funds in escrow while equitable title remained vested in his clients. See also Lawyers Title Ins. Co., 21 F. Supp. 2d at 803 (concluding that Cannon owed fiduciary duties to the beneficiaries of the escrow accounts). Although Tennessee law generally treats claimants of an insolvent trust as general creditors rather than beneficiaries unless they trace their property among commingled funds, Bragg v. Osborn, 248 S.W. 19 (1923), McDowell v. McDowell, 234 S.W. 319 (1921), in this situation the commingled client funds in the escrow accounts retain their character as property held subject to an express trust. This is so because in Tennessee a lawyer who holds funds belonging to a client must "maintain all such funds in a pooled . . . account for deposit of client funds that are . . . expected to be held for a short period." Tenn. Sup. Ct. R. 8, DR-9-102(C)(2). See also Formal Ethics Op. No. 84-F-68, 1984 WL 262035, at *1 (Tenn. Bd. Prof. Resp. May 29, 1984) ("Because of the impracticality of establishing a separate account for each client, all client funds generally are commingled in the lawyer's trust account."); Restatement (Second) of Trusts 179 cmt. f (1959) ("[O]rdinarily an attorney ... can properly deposit in a single trust account the funds of all his clients...."). Accordingly, the commingling of funds held in express trust in the escrow accounts does not alter their character, and these funds remain outside the estate under section 548. 41 When Cannon deposited his own funds, small as they were, into the escrow accounts, he obtained no interest under Tennessee law in the trust corpus that would allow the bankruptcy trustee to avoid the transfers to Bradford as fraudulent. According to the undisputed facts, Cannon deposited personal funds in the escrow account in a vain effort to attempt to repay the misappropriated funds. Under general common law principles, these funds became a part of the escrow account and are added to the sums held in express trust on behalf of Cannon's clients. See Bogert 929 (explaining that a trustee's later deposits of his own money into a trust account are presumed to be restitution for his stolen funds when the account is expressly labeled a trust account); Restatement (Second) of Trusts 202 cmt. m; Restatement of Restitution 212 cmt. c (1937). Accord Goldberg v. New Jersey Lawyers' Fund for Client Prot., 932 F.2d 273, 280 (3d Cir. 1991); Kupetz v. United States (In re California Trade Technical Schs., Inc.), 923 F.2d 641, 646 (9th Cir. 1991). 42 In addition, when Cannon misappropriated funds from the escrow accounts he obtained no interest in the funds that the trustee can seek to avoid. Under Tennessee law when a fiduciary misappropriates trust funds for personal use, he has converted the funds rather than obtained voidable title by fraud. See, e.g., Treadwell v. McKeon, 66 Tenn. 201 (1874). Accord 222 Liberty Assocs. v. Prescott Forbes Real Estate Corp. (In re 222 Liberty Assocs.), 110 B.R. 196, 201 (Bankr. E.D. Penn. 1990) ("A breach of the duty to deliver the escrowed property in the manner described in the agreement has been termed a conversion of the property not delivered.") (citing 28 Am. Jur. 2d Escrow 27 (1966)). For this reason, one who obtains property by conversion acquires no title, voidable or otherwise, to the property converted. Godwin v. Taenzer, 119 S.W. 1133, 1133-34 (Tenn. 1909); Huffman v. Hughlett & Pyatt, 79 Tenn. 549 (1883). See also United Brake Sys., Inc. v. American Envtl. Prot., Inc., 963 S.W.2d 749, 755 (Tenn. Ct. App. 1997) ("As a converter, [the defendant] obtained no title to the [property] and could not have transferred any title[.]"). On the undisputed facts, clients deposited funds into Cannon's escrow accounts, which they understood to be express trusts. Under Tennessee law when Cannon converted these funds he acquired no title to them. Therefore, his estate in bankruptcy has no interest in the escrow accounts that brings them within the trustee's avoidance power under section 548. 43 Because Cannon held the funds deposited into his escrow accounts in express trust for his clients, we hold that these monies are not part of his estate in bankruptcy and so not subject to the trustee's avoidance power under section 548. XL/Datacomp, Inc. v. Wilson (In re Omegas Group, Inc.), 16 F.3d 1443, 1449 (6th Cir. 1994) ("A debtor that served prior to bankruptcy as trustee of an express trust generally has no right to the assets kept intrust, and the trustee in bankruptcy must fork them over to the beneficiary."). See also United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n.10 (1983) ("Congress plainly excluded [from the bankruptcy estate] property of others held by the debtor in trust at the time of the filing of the petition."). Since the funds in the escrow accounts are not a part of the estate in bankruptcy, they are not "an interest of the debtor in property." Therefore, the trustee simply has no power to avoid the transfers to Bradford. III. The Non-Core Proceeding (No. 00-5895) 44 We next turn to the district court's ruling that the trustee lacks standing to maintain the causes of action alleged in the non-core proceeding. We have an independent obligation to ensure our jurisdiction over a case even when the parties have not disputed the issue. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) ("[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it.") (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)); Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998) ("[F]ederal courts have an independent obligation to investigate and police the boundaries of their own jurisdiction."). Because constitutional standing "is always a threshold inquiry" that a court must consider before exercising jurisdiction, Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 922 (6th Cir. 1988) (internal quotation and alteration omitted), the district court cannot have committed error--as the trustee contends--by addressing the trustee's standing to bring the non-core proceeding even if Defendants did not raise such a challenge before the bankruptcy court. We review questions of standing de novo. Johnson v. Economic Dev. Corp. of the County of Oakland, 241 F.3d 501, 507 (6th Cir. 2001) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). 45 A. Constitutional and Prudential Principles of Standing 46 To establish standing under the "case or controversy" requirement of Article III of the United States Constitution, a plaintiff: 47 (1) must have suffered some actual or threatened injury due the to alleged illegal conduct (the "injury in fact element"); (2) the injury must be fairly traceable to the challenged action (the "causation element"); and (3) there must be a substantial likelihood that the relief requested will redress or prevent [plaintiff]'s injury (the "redressability element"). 48 Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001), cert. denied, 122 S.Ct. 355 (U.S. Oct. 9, 2001) (No. 01-402) (quoting Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)). As a rule, a party must have a "personal stake in the outcome of the controversy" to satisfy Article III. Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). A "plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979) (citations omitted). When a plaintiff asserts standing based on a threatened injury, he must show that the threatened injury is so imminent as to be "certainly impending."Whitmore v. Arkansas, 495 U.S. 149, 155-58 (1990). Therefore, the alleged injury cannot be "conjectural" or "hypothetical." Id. at 155. 49 Even when a case falls within the parameters of Article III jurisdiction, a party claiming standing must also demonstrate that prudential considerations do not further limit the exercise of a court's power to hear a case. See, e.g., Warth, 422 U.S. at 498. "[A]ny inquiry into a litigant's standing to sue involves examination of both constitutional limitations and prudential restrictions." Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 456 (6th Cir. 2001) (citation omitted). Broadly speaking, there are three prudential limits on standing ordinarily counseling against the exercise of jurisdiction: (1) alleging a generalized grievance not particular to the plaintiff; (2) asserting the legal rights and interests of a third party; and (3) claiming an injury outside the zone of interests of the statute providing the cause of action. See, e.g., Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982). B. Standing of the Trustee 50 "As a creature of statute, the trustee in bankruptcy has only those powers conferred upon him by the Bankruptcy [Code]." Cissell v. American Home Assurance Co., 521 F.2d 790, 792 (6th Cir. 1975) (citations omitted). The trustee stands in the shoes of the debtor and has standing to bring any action that the bankrupt could have brought had he not filed a petition for bankruptcy. Melamed v. Lake County Nat'l Bank, 727 F.2d 1399, 1404 (6th Cir. 1984); Cissell, 521 F.2d at 792. See also Mediators, Inc. v. Manney (In re The Mediators, Inc.), 105 F.3d 822, 825-26 (2d Cir. 1997) (citing 11 U.S.C. 541 & 542 and Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 429 (1972)). Therefore, the prudential principles of standing under Article III and the trustee's powers under the bankruptcy code are coextensive: 51 [T]he "case or controversy" requirement coincides with the scope of the powers the Bankruptcy Code gives a trustee, that is, if a trustee has no power to assert a claim because it is not one belonging to the bankrupt estate, then he also fails to meet the prudential limitation that the legal rights asserted must be his own. 52 Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir. 1991). 53 Under 11 U.S.C. 704(1), a Chapter 7 trustee "shall collect and reduce to money the property of the estate . . . ." Among the "legal and equitable interests of the debtor" included within the "property of the estate" under section 541 are causes of action belonging to the debtor. Spartan Tube & Steel, Inc. v. Himmelspach (In re RCS Engineered Prods.), 102 F.3d 223, 225 (6th Cir. 1996) (citation omitted). Because causes of action belong to the estate, section 704(1) grants the trustee the exclusive right to assert the debtor's claims. Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir. 1997) (citing Schertz-Cibolo-Universal City, Indep. Sch. Dist. v. Wright (In re Educators Group Health Trust), 25 F.3d 1281, 1284 (5th Cir. 1994)). If a cause of action belongs solely to the estate's creditors, however, then the trustee has no standing to pursue the claim. Id. 54 Whether a particular cause of action belongs to the debtor so that it constitutes "property of the estate" depends upon state law. In re RCS Engineered Prods., 102 F.3d at 225 (citing Butner, 440 U.S. at 48). "However, if the debtor could have raised a state claim at the commencement of the bankruptcy case, then that claim is the exclusive property of the bankruptcy estate and cannot be asserted by a creditor." In re Van Dresser Corp., 128 F.3d at 947 (citing In re Educators Group Health Trust, 25 F.2d at 1284). "Conversely, if the cause of action does not explicitly or implicitly allege harm to the debtor, then the cause of action could not have been asserted by the debtor as of the commencement of the case, and thus is not property of the estate." Id. Therefore, if Cannon himself could have pursued the claims the trustee asserted against Defendants in the non-core proceeding, then the trustee has standing to maintain the non-core proceeding. 55 With regard to the law of trusts, Tennessee generally follows the common law. See Mayfield v. First Nat'l Bank of Chattanooga, Tenn., 137 F.2d 1013, 1018-19 (6th Cir. 1943). Cf. New Hampshire Ins. Co. v. Jones (In re Jones), 158 B.R. 731, 733 (Bankr. E.D. Tenn. 1993) (citing Kopsombut Myint Buddhist Ctr., 728 S.W.2d at 333). Under the common law, a trustee can maintain an action in law or equity against a third person to remedy an injury with respect to trust property as if he held the property free of the trust; generally, beneficiaries of the trust cannot. See, e.g., Third Nat'l Co. v. Commerce Union Bank, 181 S.W.2d 759, 512 (Tenn. 1944); Louisville & Nashville Terminal Co. v. Lellyett, 85 S.W. 881, 885 (Tenn. 1905); Coleson v. Blanton, 4 Tenn. (3 Hayw. ) 152 (1816) (per curiam). See also Restatement (Second) of Trusts 280-82; Bogert 869. When a trustee commits a breach of trust, the trustee is personally liable to the trust's beneficiaries. Morgan v. Elam, 12 Tenn. (4 Yer.) 375 (1833). 56 [I]t has long been settled that when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person, the third person takes the property subject to the trust, unless he has purchased the property for value and without notice of the fiduciary's breach of duty. 57 Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 250 (2000) (applying common-law principles in the interpretation of the Employee Retirement Income Security Act of 1974) (citations omitted). See also, e.g., Cardwell v. Cheatham, 39 Tenn. (2 Head.) 14 (1858) (stating that a bona fide purchaser for value without notice of a breach of trust takes free of the trust) (citations omitted); Covington v. Anderson, 84 Tenn. (16 Lea) 310 (1886) (holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust). On the facts presented, which indicate that all the checks Cannon deposited into his commodities account with Bradford came from the escrow accounts and clearly identified the source of the funds, Bradford cannot claim to have accepted the trust property without actual or constructive knowledge of Cannon's breach of his fiduciary duties. Stevenson, 230 B.R. at 593-94 (summarizing the evidence that Bradford knew or recklessly did not know that Cannon had appropriated funds from the escrow accounts to trade commodities). 58 Whether a third party commits an independent wrong against the trust or participates in the trustee's breach of fiduciary duty, a trustee who has committed a breach of trust can nonetheless pursue a cause of action against the third party, although in this circumstance the beneficiary may as well. Harris Trust & Sav. Bank, 530 U.S. at 252. See also Restatement (Second) of Trusts 294; Bogert 954 & 955.6 59 Although the trustee bases his cause of action upon his own voluntary act, and even though the act was knowingly done in breach of his duty to the beneficiary, he is permitted to maintain the action, since the purpose of the action is to recover money or other property for the trust estate, and whatever he recovers he will hold subject to the trust. 60 Harris Trust & Sav. Bank, 530 U.S. at 252 (quoting Restatement (Second) of Trusts 294 cmt. c). See also Terrell v. Terrell, 292 S.W.2d 179, 296 (Tenn. 1956) ("A person may not predicate an estoppel in his favor on, or assert such estoppel for the purpose of making effective, obtaining the benefit of, or shielding himself from the results of his own fraud[.]") (quoting 31 C.J.S. Estoppel 75). 61 Although under this rule the bankruptcy trustee would have standing to pursue the causes of action asserted in the non-core proceeding because Cannon, had he not filed for bankruptcy, could have brought them notwithstanding Cannon's misappropriation of trust property, the presence of the express trust in this case complicates matters. Since Bradford did not accept the trust funds as a bona fide purchaser for value and without notice of Cannon's breach of trust, under general common-law principles the funds Cannon misappropriated remain subject to the express trust. See, e.g., Harris Trust & Sav. Bank, 530 U.S. at 252 ("[W]hatever [the trustee] recovers he will hold subject to the trust."). Consequently, the trustee's recovery, if any, in this case will benefit Cannon's clients--not the general creditors of the estate. As we previously discussed, section 541 excludes from the debtor's estate property held in an express trust for another. Begier, 496 U.S. at 59. Therefore, any action brought by the trustee against Defendants would not bring property into the estate for the benefit of the creditors. Instead, such a suit would recover misappropriated trust property for Cannon's clients, the beneficiaries of the express trust who lost their money upon the collapse of his schemes. Accordingly, because the trustee asserts causes of action in the non-core proceeding alleging harm to the beneficiaries of the express trust, he lacks standing to maintain this suit against Defendants. See In re Van Dresser Corp., 128 F.3d at 947. 62 We find support for our conclusion in several cases from the Second and Eleventh Circuits. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085 (2d Cir. 1995) (holding that a trustee had no standing to pursue claims of fraud against the debtor's accountant because under Connecticut law those claims belonged to investors); Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114 (2d Cir. 1991) (holding that the trustee had standing to pursue an action for churning against the debtor's broker relating to transactions in a discretionary account, but did not have standing to bring a suit for fraud since that cause of action accrued to creditors under New York law); E.F. Hutton & Co. v. Hadley, 901 F.2d 979 (11th Cir. 1990) (concluding that the trustee of a corporate debtor that defrauded its customers did not have standing to pursue an action for fraud against a broker because the claims belonged to the defrauded customer creditors). While none of these cases involves a situation in which the third party sued by the bankruptcy trustee participated in or committed an independent wrong against trust property managed by the fiduciary of an express trust, they all demonstrate the limits the bankruptcy code places on the power of the trustee to collect money not owed to the estate. Because the code precludes a recovery that benefits anyone other than the estate, the trustee lacks standing to maintain an adversary proceeding seeking such a recovery. We are mindful that our decision in this case might allow Defendants to profit from their fraud; but, the beneficiaries of the escrow accounts and the insurers to whom they are subrogated can pursue remedies in state court, and we are simply unwilling to set aside the settled principles of the law of trusts because of the result in a particular case. Conclusion 63 In the core proceeding (No. 00-5624), we hold that under section 548 Cannon had no "interest in the property" that would subject the funds held in escrow to the trustee's avoidance power. Under Tennessee law the escrow accounts constitute express trusts and so never entered the estate of the bankrupt. Therefore, we affirm the judgment of the district court and reverse the judgment of the bankruptcy court. 64 In the non-core proceeding (No. 00-5895), we hold that the trustee lacks standing to bring suit against Defendants. Although Cannon could have brought suit against the Defendants in his capacity as the trustee of the escrow accounts had he not filed for bankruptcy, the bankruptcy code does not allow the trustee to collect money not owed to the estate. Because any recovery that the trustee might obtain in this adversary proceeding would benefit the clients Cannon defrauded, not the general creditors of the estate, the trustee lacks standing to proceed. Therefore, we affirm the judgment of the district court and reverse the judgment of the bankruptcy court. Notes: 1 "Float" refers to the artificial balance created due to delays in processing credits and debits to an account. See United States v. Stone, 954 F.2d 1187, 1188 n.1 (6th Cir. 1992). See also Black's Law Dictionary 640 (6th ed. 1990) (defining "float" as "[t]he delay in processing transactions by banks and others which may permit the interest-free use of funds for brief periods"). 2 Part of Cannon's real estate closing practice involved forwarding checks deposited in escrow to pay off mortgage loans of property being sold. By delaying in forwarding a check to the holder of the mortgage being retired, Cannon created float in the escrow accounts, which he covered as new monies came into the accounts. 3 We have given the following definition of check kiting: Check kiting consists of drawing checks on an account in one bank and depositing them in an account in a second bank when neither account has sufficient funds to cover the amounts drawn. Just before the checks are returned for payment to the first bank, the kiter covers them by depositing checks drawn on the account in the second bank. Stone, 954 F.2d at 1188 n.1. See also Black's Law Dictionary 871 (defining "kiting" as "consist[ing] of writing checks against a bank account where funds are insufficient to cover them, hoping that before they are presented the necessary funds will be deposited"). 4 In addition to the cases on appeal before this court, Cannon's bankruptcy has generated considerable litigation. In Lawyers Title Insurance Corp. v. United American Bank of Memphis, 21 F. Supp. 2d 785, 810-11 (W.D. Tenn. 1998), the district court dismissed in part a suit brought against UAB by the title insurance companies that were required to indemnify insureds who sustained losses when Cannon's scheme collapsed. Although the district court decided that certain claims brought by the title insurance companies could not proceed, genuine issues of fact remained for trial regarding UAB's degree of knowledge and participation in Cannon's scheme. Id. In First Tennessee Bank, N.A. v. Stevenson (In re Cannon), 237 F.3d 716, 717 (6th Cir. 2001), we concluded that Article 4 of the Uniform Commercial Code granted First Tennessee a fully secured interest in certain funds provisionally credited to the escrow accounts so that the trustee could not recover these credits as a voidable preference under 11 U.S.C. 547. 5 Defendants have not consented to the entry of a final judgment by the bankruptcy court with respect to the claims in the non-core proceeding. Stevenson, 230 B.R. at 548. 6 The beneficiary has two causes of action, one against the trustee and another against the third party, and should proceed by joining both in the same action. Restatement (Second) of Trusts 294 cmt. a; Bogert 871& 955. Of course, whether the beneficiaries can under the circumstances of this case pursue a cause of action has no direct bearing on the standing of the bankruptcy trustee to sue Defendants. All that matters is whether the trustee can maintain a cause of action notwithstanding his own breach of fiduciary duty.

18 F.2d 244 (1927) REARDON v. PENSONEAU (two cases). Nos. 304, Original, and 7665. Circuit Court of Appeals, Eighth Circuit. March 18, 1927. *245 Edward W. Tobin and Richard O. Rumer, both of St. Louis, Mo., for petitioner and appellant. Paul A. Richards, of St. Louis, Mo., for respondent and appellee. Before LEWIS and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. LEWIS, Circuit Judge. The case is properly here on petition to revise, as will be seen, and the appeal is dismissed. Pensoneau was adjudged bankrupt January 28, 1926, on his petition. He gave his occupation as "Fruit and Produce" and carried on a retail business of selling fruits and vegetables at 1213 North Third St., St. Louis, until he quit early in November, 1925. On March 1, 1926, Reardon, as trustee for the bankrupt estate filed his petition with the referee charging that the bankrupt had in his possession and control $8,000 as the proceeds from the sale of his stock of fruits, produce and vegetables, that said sum was assets of the bankrupt estate, and prayed for an order on Pensoneau that he deliver the money to the trustee. A hearing was had by the referee before whom the bankrupt appeared and testified, and was represented by counsel. Having heard the testimony the referee found "that between October 19, 1925, and October 28, 1925, the bankrupt had purchased from fourteen (14) different concerns, now his creditors, goods, wares and merchandise, consisting of apples, potatoes, grapes, cabbages, celery and onions of the total value of or in the total sum of $7,577.68," that the bankrupt admitted he received in cash for his stock between October 19th and 28th about $8,000. He accounted for $50 cash in his schedule, which was all the trustee had received. He claimed that he had lost the money in gambling. The referee after a full review of the testimony found that bankrupt then had in his possession and under his control $6,900 and entered an order that he turn that sum over to the trustee as assets of the bankrupt estate. By petition the bankrupt caused the action of the referee to be certified to the Bankruptcy Court for review where the action of the referee was after hearing fully confirmed in all respects, and an order was entered by the court on June 7, 1926, that Pensoneau within ten days from that date turn over to Reardon, trustee, $6,900 in money. Pensoneau failed to comply with the order, and was cited to show cause, if any he had, why he should not be punished for contempt. He came in and the court discharged him by an order of date September 13, 1926, on the ground, as therein appears: "The court doth further find that such petitioner for commitment in contempt, Joseph M. Reardon, Trustee in Bankruptcy, has failed to establish that respondent, August Pensoneau bankrupt herein, is at this time financially able to comply with said order of June 7, 1926, and deliver to his said Trustee in Bankruptcy such concealed assets in the sum of Sixty-Nine Hundred Dollars ($6,900); It is therefore by reason of the finding as last aforesaid, ordered and adjudged that the said petition of Joseph M. Reardon, Trustee in Bankruptcy herein, for the commitment in contempt of said bankrupt, August Pensoneau for failure to comply with such order of the court be, and such petition is hereby denied, and that said bankrupt be, and he is hereby, discharged in and under such contempt proceedings." It will be observed that the court put the burden on the trustee, not on the bankrupt. This is the error in law of which complaint is made, and we think it well taken. The order of the referee and that of the court on June 7th each found that Pensoneau had the money in his possession or under his control when the referee's order was made in April. In the circumstances the trustee could not be expected to know what had happened since the orders were made. Pensoneau, of course knew what he had done with the $6,900. The burden was on him; and if he could not convince the court that he had lost possession and control under circumstances which he could not prevent, he should have been held in contempt. On the facts it was twice adjudged that he had the $6,900 on a named date, and on that date the referee ordered him to turn it over to the trustee. Those were not perfunctory orders. No steps have been taken to vacate them, and we know of no reason to ignore them as not valid and binding. They establish the bankrupt's possession and control on the day the referee's order was made. The burden was on him to show what disposition had been made of the $6,900. Until that showing is made relieving him of an intentional loss of its possession and control, it must be presumed that he still has it. Remington on Bankruptcy, 3d Ed., Sec. 2428; In re Stavrahn (C. C. A.) 174 F. 330, 20 Ann. Cas. 888; In re Weber Co. (C. C. A.) 200 F. 404; Power v. Fuhrman (C. C. A.) 220 F. 787; In re Meier (C. C. A.) 182 F. 799; Good v. Kane (C. C. A.) 211 F. 956. The two cases last cited brought under consideration the question of proof in support of *246 a turn-over order. They did not involve the issue we have here, but they are in point on the presumption that possession continues in one shown to have recently held personal chattels until he removes that presumption, and the burden is on him to do so; and that a bankrupt cannot escape an order for the surrender of property belonging to his estate "by simply denying under oath that he has it." See, also, In re Graning (C. C. A.) 229 F. 370, Ann. Cas. 1917B, 1094. When the bankrupt came in on the citation for contempt a hearing was had. The trustee introduced the referee's order of April 21, 1926, which directed the bankrupt to deliver the $6,900 to the trustee; also the court's order affirming the referee's order, and the trustee then testified that none of the money had been delivered to him. Thereupon the bankrupt testified that he did not then have the $6,900 and did not have it when the referee's order was made. Objection and exception were taken to the last statement. Over objection and exception of the trustee bankrupt was permitted to offer transcript of all evidence introduced before the referee on which the turn-over order was made. From what has been said it follows that these objections should have been sustained. The bankrupt was presumed to still have the $6,900, found by the court to be in his possession or control on April 21st preceding. His mere denial under oath did not overthrow the presumption. On the case as it stood he should have been held in contempt and punished. An order may be here entered directing the Bankruptcy Court to set aside the order of September 13, 1926, discharging the bankrupt, and to take such further action against the bankrupt on the citation for contempt as to the court may seem meet and proper and in accord with the principles above stated.

95 F.3d 1149 Losadav.Johnson* NO. 95-40697 1 Fifth Circuit. Aug 14, 1996 Appeal From: S.D.Tex., No. 87-CV-141 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2